Below is an opinion piece by Attorney-at-Law, Member of Parliament and former Attorney General and Minister of Legal Affairs, Mohabir Anil Nandlall:
It is common knowledge that Dr. Ashni Singh and Mr. Winston Brassington were overseas when the charges of Misconduct in Public Office were filed against them in the Georgetown Magistrate’s Court. The summonses for them to appear in Court on the 8th of May 2018, at 1:30pm, were only served at their respective addresses in Guyana around mid-day of the 7th of May 2018. These summonses were obviously not served personally upon them.
Notwithstanding, they both appeared with their attorneys-at-law at the Court to which they were summoned, promptly at 1:30 PM. The Prosecution did not oppose bail. These persons have impeccable personal records and reputation; they are prominent in society; they have no criminal antecedents; as soon as they were summoned, though not personally and although they were on another continent, they appeared at the place, date and time when summoned. Once the Prosecution did not oppose bail, it means that the Prosecution was satisfied that the men were not flight risks.
The courtroom was packed to capacity. In the gallery were two former Presidents, a number of Members of Parliament of the People’s Progressive Party/Civic (PPP/C), a number of former Ministers of the PPP/C Government and an unusually large contingent from the press. During the proceedings, almost absolute silence permeated the gallery of the court. The accused persons were ushered into the dock and stood there, silently, throughout the proceedings.
There was absolutely no ruckus or disorderly conduct at any time during the proceedings, either from the accused persons or anyone else. There was absolutely no evidence that there was any likelihood of such eventuality. The entire proceedings was conducted with an aura of sobriety and in an environment of quietude, which the occasion demanded. It is against that backdrop, that I wrote the following, two weeks ago, about what transpired after the court proceedings.
“What followed next convinced the objective by-stander that extraneous influences were at work. Every day, persons of no known profile pass through the very court system without being handcuffed, and moved from the upper flat to the lower flat of the Magistrate’s Court building without resorting to the infamous schute; nor are they placed in the “holding cell” while arrangements are being made for their bail to be lodged. However, these facilities were not extended to a former Minister of Finance, who served in that capacity and in the National Assembly of Guyana for almost a decade! Singh and Brassington, for absolutely no good reason, were handcuffed and transported through the schute, making them available for the flashing cameras of the large contingent of reporters present. It was simply done to humiliate, degrade and publicly embarrass them.”
Just one week after, I was vindicated. A young lady charged with attempted murder of a Police Officer with the use of an unlawful firearm and who was remanded by the Magistrate, was not handcuffed. This is so despite the fact that she is alleged to have committed a violent crime and was obviously viewed by the court as a flight risk, hence her remand to prison. Photographs of her being escorted by the Police to the court lock-ups showed that she was not handcuffed. I submit that the decision not to handcuff her was a correct one in law. On the contrary, the decision to handcuff Singh and Brassington was unlawful.
The law
Section 202 of the Criminal Law (Procedure) Act Cap 10:01, Laws of Guyana provides that: “A person arrested, whether with or without warrant, shall not be handcuffed or otherwise bound except in case of necessity, or of reasonable apprehension of violence, or of attempt to escape or to rescue, or by order of the Court or a judge, or of a magistrate.”
This provision appears in identical form as Section 76 of the Summary Jurisdiction Act Cap 10:02. In the pre-eminent Practitioners Manual, Blackstone’s Criminal Practice 2018, Section D, para 1.8, under the caption, “Use of handcuffs” it is stated: “Handcuffs should be used only where they are reasonably necessary to prevent an escape or to prevent a violent breach of the peace by a prisoner (Lockley (1864) 4 F & F 155). The same rule applies to the handcuffing of prisoners in court (Cambridge Justices, ex parte Peacock (1992) 156 JP 895; Horden [2009] 2 Cr App R 406). It would seem that, where handcuffs are unjustifiably resorted to, their use will constitute a trespass even though the arrest itself is lawful (Taylor (1895) 59 JP 393; Bibby v Chief Constable of Essex (2000) 164 JP 297).”
In the old English, case of R v Taylor (1895) 59 JP 393, the then Chief Justice of England, Lord Russell of Killowen posited: “Handcuffing is only justifiable where reasonable necessity exists for it, and if it is resorted to in the absence of such necessity the party so treated may bring an action to recover damages for such a grievous indignity.”
In another English case of more recent vintage, Bibby v Chief Constable of Essex Police (2000) All ER (D) 487, the Claimant was requested to leave certain private premises. He refused to do so. Both parties called the Police. The Officers thought there would be a breach of the peace and told the Claimant to leave. He refused. They arrested him and led him away to the Police Station in handcuffs. An hour later, he was released without charge. He sued and lost in the High Court. The Court of Appeal allowed his appeal on the ground that the mere fact that the Police Officers thought that a breach of the peace was likely did not justify the arrest of the Claimant and the use of handcuffs. They stated the rationale thus: “In order to exercise the now exceptional common law power of arrest, certain conditions had to be met. There had to be the clearest of circumstances and a sufficiently real and present threat to the peace to justify the extreme step of depriving a citizen, who was not at the time acting unlawfully, of his liberty. The threat had to come from person who was to be arrested, and his conduct had clearly to interfere with the rights of others. The natural consequence of his conduct had to be violence, which was not wholly unreasonable, from a third party, and the conduct of the person to be arrested had to be unreasonable.”
Finally, in Ramsarran v Attorney General (2001), High Court, Trinidad and Tobago, R, a well-known businessman, who had voluntarily turned himself over to the police, was handcuffed to a rail. Moosai J pointed out that the alleged offences for which R had been charged were summary offences, and s 109 of the Summary Courts Act, Ch 4:20 (Laws of Trinidad and Tobago) provides that a person arrested shall not be handcuffed except in cases of necessity, or of reasonable apprehension of violence, or of attempt to escape, or by order of a court or magistrate. None of these circumstances were present in this case, and the act of handcuffing amounted to oppressive, arbitrary and unconditional conduct warranting an award of exemplary damages.
It is clear that the handcuffing of Singh and Brassington was unlawful and most likely they are entitled to exemplary damages. The lawsuit will follow soon.
