Person arrested not bearing the same name as contained in the warrant. We are looking at issues that can arise on arresting someone and depriving them of their liberty. Officers have to be very careful when arresting someone, even with the protection of a warrant. There are hidden hazards.
So, where a constable arrests the wrong person, that is, a person other than the one named in the warrant, he may be liable in tort for wrongful arrest or false imprisonment. It is important that the warrant correctly name the person to be arrested. This is illustrated by the 2002 Trinidadian case of Maharaj v A-G. The warrant named the plaintiff as “Mary”, when her correct name was Kamaldaye Maharaj. The arresting constables knew her as Mary. There was no doubt that she was the person for whom the warrants were intended, and that she was well aware of that fact. Nevertheless, the court held that the constables had no defence to an action for false imprisonment brought by Kamaldaye after the police case against her had been thrown out. The warrants failed, as the law required, to correctly name the plaintiff. In the circumstances, the arrest of the plaintiff ‘Kamaldaye’ was not in obedience to the warrant, which was for a ‘Mary’.
We may say that can never happen in Anguilla where everybody knows everybody else. That may have been true 30 years ago. I am not so sure it still is.
Arrested without a warrant. We are looking at the lawful ways in which our second fundamental right under our 1982 Constitution of Anguilla can be taken away from us. One way is when we are arrested by a police officer. The old common law rules governing the powers of arrest without a warrant have been greatly expanded by statute. Under the common law, a great deal turned on whether or not the offence that had been committed was a felony or was only a misdemeanour. The common law rule was that where a police officer had reason to believe that I had committed or was about to commit a felony he could arrest me without a warrant. In the case of a lesser offence, a misdemeanour or a summary charge, generally speaking, in the absence of special statutory power, an officer without a warrant could only arrest me if I had committed the misdemeanour in his presence or if the officer believed I might escape or cause injury to some person or property.
Since the year 2000, section 356 of the Criminal Code provides the new rules for arrest without warrant. The new rule, is, basically, that a police officer may arrest without warrant a person who has committed an offence that carries a penalty of 5 years imprisonment or longer. Such an offence is called an arrestable offence. If the offence is not an arrestable offence, that is, has a maximum sentence of less than 5 years imprisonment, then the officer will be very unwise to arrest the offender. It is his duty instead to make a report of the commission of the crime at the police station, and to let the Inspector decide whether or not to issue a complaint to the Magistrate's Court. If a complaint is filed before the Magistrate, the Magistrate will issue a “summons” for the accused person to appear in court to answer the charge.
The police officer cannot simply arrest without warrant a person whom he suspects of having committed an offence which carries a penalty of less than 5 years. Police officers go to police school and are required to study the Criminal Code so that they can be knowledgeable about which offences they can arrest without a warrant, and which ones they must get a warrant for.
To summarise section 356:
(a) Any police officer or private citizen may arrest without warrant a person whom he has reasonable cause to suspect is in the act of committing an arrestable offence. Remember that an arrestable offence is one which carries a maximum penalty of 5 years imprisonment or more.
(b) Where an arrestable offence has been committed, any police officer or private citizen may arrest without warrant a person whom he, with reasonable cause, suspects to be guilty of the offence.
In considering whether to carry out an arrest without a warrant, a police constable may often be in a difficult position. If he delays making an arrest, vital evidence may be lost, and a crime go unpunished. On the other hand, if he acts too hastily in arresting, he may be held liable for false imprisonment. The rules are that he may arrest you if he does not know your name and cannot get it, if he thinks you have given a false name, if you have not given a satisfactory address where he can contact you or if you have given a false address, or if arrest is necessary to prevent you causing physical injury to someone or causing loss or damage to property, or causing an unlawful obstruction of the highway, or if he has reasonable grounds for believing that arrest is necessary to protect a child or other vulnerable person.
The test for determining whether an arresting officer had reasonable cause for making the arrest is whether a reasonable person, assumed to know the law and possessed of the information which was in fact possessed by the officer, would believe that there was at the time of the arrest reasonable and probable cause for it. As Wooding CJ said in the 1965 Trinidadian case of Irish v Barry,
“The right or power of arrest without warrant ought never to be lightly used. Those who possess it ought, before exercising it, to be observant, receptive and open minded, not hasty in jumping to conclusions on inadequate grounds. Caution should be exercised before depriving any person of his liberty, and more especially so when no prejudice will result from any consequent delay.”
Where there is only a suspicion that an arrestable offence has been committed, a police officer, but not a private citizen, may arrest without warrant a person whom he reasonably suspects to be guilty of that offence. But, he should not jump to do so. The rule is that if there is nothing to be lost by simply reporting the offender and having a summons issued for him to appear in court, then it is safer not to arrest him, nice as that might make the police officer feel.
Finally, under section 356, where there is only a suspicion that an arrestable offence is about to be committed, a police officer but not a private citizen, may arrest without a warrant.
There are a number of other laws that give police constables, customs officers, forestry agents, and numerous other officials, powers of arrest without a warrant. Examples from our laws in Anguilla are section 39 of the Firearms Act (possessing a firearm without a licence); section 49 of the Vehicles and Road Traffic Act(driving under the influence of alcohol or drugs); section 25 of the Drugs (Prevention of Misuse) Act (any person whom he with reasonable cause suspects of having committed an offence under the Act). Police officers are expected to study these laws carefully so as not to exceed their powers when arresting a citizen.
The warrant of arrest. The topic of wrongful arrest is one of considerable complexity. It arises while we are considering the second of our fundamental rights, the right to personal liberty. Let us start at the beginning. A person may be arrested either with or without a warrant. A warrant of arrest is an authority in writing, issued by a justice of the peace or a magistrate, or by any court having civil or criminal jurisdiction, addressed to a police officer to arrest an offender and bring him before the court. A police officer who arrests within the terms of the warrant will have a complete defence to any action for wrongful arrest, false imprisonment, assault or battery. That is the principal function of a warrant of arrest. It is for the protection of the police officer. Without it, if the person the officer arrested were to be let off by a subsequent trial, the officer could face a suit by the civilian against him personally for one or more of assault, battery, false imprisonment and wrongful arrest.
There is a law which gives an arresting officer a defence when he arrests a person in obedience even to a defective warrant, or a warrant issued without jurisdiction. Section 76 of the Anguilla Police Act provides that members of the Royal Anguilla Police force are not liable for any irregularity in a warrant. The warrant may not have been properly issued by the Magistrate or the JP, or the Magistrate may have lacked jurisdiction. If this happens, once the Magistrate or JP issued the warrant, and the police officer was only obeying the warrant, this will be a complete defence for the police officer if he should be sued. That is why police officers are so careful to get a warrant of arrest before going off to arrest someone they suspect of having committed a crime. Arresting even the right person without a warrant can be a very risky thing for a police officer to do.
In addition to the police officer being sued, the government may be forced to pay compensation if the person who was wrongfully arrested or locked up brings a constitutional action against the State. Our constitutional remedies are much broader than our normal private remedies.
The basic rule to remember is that, in the absence of statutory authority, a police officer has no right or power to detain us for questioning unless he first arrests us. Where a constable takes me to the police station, without first arresting me, in order to question me, and then to decide, in the light of my answers, whether to charge me, this would be unlawful and would constitute false imprisonment. Of course, if the police officer invites me to accompany him to the police station, and I agree to go willingly, I cannot complain afterwards. However, if I refuse to go willingly, the police officer must decide whether or not to arrest me based on the evidence he already has. It may be safer for him to leave me while he continues his investigations until he has enough evidence to get a warrant to arrest me.
Proposals to reform section 3 of the Anguilla Constitution. We have been looking at our right to personal liberty guaranteed by the Constitution under section 3. Many lawyers consider this section of the Constitution defective in one specific way. In dealing with persons arrested on suspicion of having committed an offence, it does not provide that he is entitled to be told of his rights. These rights include our right to remain silent. If we volunteer any information to the police after we have been given this warning it can and will be used against us in a court of law. We also have the right to an attorney to advise us before we give the police a statement. In the USA, but not in Anguilla, we have the right to be provided with an attorney to advise us before we are questioned by the police.
It has been left to the Courts to interpret and to enforce the ancient common law entitlement to these rights. You may agree with me that such a right is better included as in the fundamental rights in our Constitution, rather than being left as a common law right for judges to interpret one way or the other. The Attorney-General’s Chambers and the police fought hard to have this recommendation deleted from the Report. They would prefer their powers to interrogate and question suspects left a bit more woolly, as it makes it easier for them to secure a confession or an admission that can be used against the suspect.
The better modern practice would require that a person arrested should be entitled immediately upon his arrest, and not after he has been brought to the police station and made to sit on the bench for a few hours, to be told of his rights. You have seen this right at work in US movies, when a police officer pulls out of his pocket a little card with the prisoner's Miranda Rights on it and reads it out to the prisoner. The process is named after the case in the United States which established that it was a constitutional right. The officer must as soon as practicable after the arrest read out these rights to the suspect, even as he is taking him to the car or police van. The 2006 Report of the Constitutional and Electoral Reform Commission recommended that there should be a new sub-section of the Constitution setting out this right in the clearest language.
Another important reform would be to provide for an Ombudsman with power to investigate complaints of abuse of this and other fundamental human rights. The main function of an Ombudsman is to investigate any complaint relating to any decision or recommendation made or any act done or omitted by any officer of the Government or statutory body in any case in which a member of the public claims to be aggrieved, or appears to the Ombudsman to have sustained injustice as a result of the administrative functions of that officer or body.
The Ombudsman is found in several Commonwealth Caribbean countries. These include Antigua and Barbuda, Trinidad and Tobago, and Barbados. Typical faults in administration that the Ombudsman investigates include delay, bias, unfair discrimination, failure to give proper advice, discourtesy, and failing to follow recognised procedures.
While the Ombudsman is not established to be a national human rights organisation, in practice the office of the Ombudsman performs some of the functions. In addition to dealing with complaints of maladministration in the public service, the Ombudsman could investigate complaints of the public against abuse of power by the police. It would be a very useful reform if, when the office of Ombudsman is introduced into the new Constitution of Anguilla, he was given specific powers to investigate claims of breaches of fundamental rights.
Scotty asked a good question. Am I so comfortable with the new administration in Anguilla that I have converted this blog into a constitutional tutorial? That deserves an answer. Well, here goes my attempt to be clear on what I am doing with this blog.
Yes, the new administration does deserve a short period to become familiar with the issues and to develop policy in relation to them without being sniped at by me from the sidelines. The election campaign was quite passionate. Temperatures became very high. Things must be allowed to cool down. The new government has not been in place for two full months. There is no healthy purpose in digging at minor scratches and bumps when the body politic needs to heal. I am sure I shall feel quite differently in a year or two.
Then, I am not aware of anything terribly wrong that the new Hubert Hughes administration is doing that needs to be highlighted. I am not aware of any scandals or maladministration that need to be exposed to the light of day.
If anything, my very minor complaint has to do with the lack of information coming out of the administration. Hubert has not done what we have all been asking and introducing more transparency into the system. He has allowed himself to go along with the traditional British system of secrecy in Anguilla’s administration. What do I mean by this?
One, he should insist that the press be invited to Executive Council meetings. Except for matters of national security, which will be dealt with in private, the public ought to be informed weekly by the mainstream press what matters have been discussed and what decisions have been reached by our cabinet.
Two, if the Governor does not permit this, he should go on national radio and TV every week and give a summary report to the public on what matters were discussed and what decisions were reached. If the Governor tries to stop him, let him point out that in other BritishOverseasTerritories this is a routine matter. There is nothing wrong with it in principle or in practice. On the contrary, it is very bad for his reputation and that of his government if he continues to let everything done by his administration remain shrouded in secrecy and subject to baseless rumour.
Three, the most important reform that we need in Anguilla, as a matter of urgency, is constitutional reform that will entrench measures designed to ensure transparency, accountability and integrity in government in the future. We all know what these measures are, as I have dealt with them extensively before. They range from the enlargement of the House of Assembly to improve debate and to enlarge the catchment area for appointing ministers, to the ombudsman, to the integrity commissioner, to the public service, teachers and police commissions, to the tenders board, to the freedom of information Act, and the many others. These reforms all need to be embedded in the Constitution and given real teeth, not cosmetic ones. Most of them cannot be achieved by common statute, far less by administrative reform.
In light of this last, I think it is worth harping on about weaknesses in the Constitution for the next year or two if necessary.
Of course, if there are any real errors in administration that need exposing please let me know about them so that I can write my views on them.
Bail: We are looking at the second of our fundamental rights in Anguilla, the right to personal liberty. The right to bail when we are in custody is properly to be considered in any discussion on the right to personal liberty. When we have been arrested and brought before the Magistrate, we shall not have enjoyed this right if the Magistrate does not consider the question whether we ought to be granted bail until the case against us is made ready. Sometimes, it can take weeks or months before the police are ready to present the evidence against us to the court. It is considered unjust for us to remain in custody until the police get their act together and decide to bring forward the case before the court. Once we are convicted by the court, we can no longer claim to have any right to personal liberty.
Until we are proved guilty, it must be that only in exceptional cases will the Magistrate order us to be confined pending the trial. For centuries the proper test of whether bail should be granted or refused has been whether the defendant will appear for trial. Bail may never be withheld merely as punishment. This principle is as applicable now as it was centuries ago. So, it is at the early stage when an arrested person is brought before the Magistrate for the first time after arrest that the question of bail arises. The Magistrate must consider the question even if the person in custody is too poor or too unaware of his or her right to ask for bail.
The rules for giving an accused person in custody bail are contained in the Magistrate’s Code of Procedure Act. Section 67 states that a person charged with an offence punishable with fine or imprisonment for a term not exceeding two years is entitled to be admitted to bail. That means that the police are not permitted, except in the most exceptional case that I can hardly imagine now, to object to bail. If fact, in such minor crimes they usually grant bail at the police station and do not even bother to bring the accused to court for him or her to apply to the Magistrate for bail.
Where the offence is more serious, the Magistrate may grant bail depending, for example, on whether the Magistrate considers that the offender might flee from the jurisdiction, or might commit another offence, or might interfere with the witnesses.
In the two cases of murder and treason the Magistrate may not grant bail. Only the judge can approve granting bail in such a case. The procedure is for the judge to hear the application for bail, and if the judge considers that it is appropriate for the person charged with murder or treason to be bailed, then the judge sends the matter to the Magistrate to admit the person to bail. The judge does not set the conditions for bail himself or herself. The reason for this is that the bail may have to be policed, and the accused brought back to court from time to time to have bail renewed. It is more appropriate for the Magistrate’s Court to be the place where all this activity is conducted.
The circumstances in which a Commonwealth Caribbean court may today refuse bail are well established by the cases. The right to personal liberty, although not absolute, is a right which is at the heart of all political systems that purport to abide by the rule of law and protect the individual against arbitrary detention. The only recognised grounds for refusing bail are (i) the risk of the defendant absconding bail; (ii) the risk of the defendant interfering with the course of justice; (iii) the risk of the defendant reoffending while out on bail; (iv) preserving public order; and (v) if detention is necessary to protect the defendant. We have a useful judgment from George-Creque J on this very provision in the law of Anguilla.
States of emergency. We have been looking at the exceptions to the constitutional right to freedom of the person. There remains one other provision that allows the government to lock us up and deprive us of our right to personal liberty. It is found hidden away in section 14 of the Constitution. This is the emergency powers section. The section says that nothing done under the emergency powers laws is to be deemed a breach of this right, to the extent that the law authorises the taking during any period of public emergency of measures that are reasonably justifiable for dealing with the situation during the period of emergency.
The law in question is the Emergency Powers Act. This law permits the Governor in specified circumstances to declare a state of emergency that in effect suspends some of our fundamental rights. To be lawful the declaration must be published by a proclamation in the Official Gazette. The Governor may declare that a state of emergency exists when a state of war arises, or as a result of an earthquake, hurricane, flood, fire, outbreak of pestilence, infectious disease or any other calamity. It may also arise when any person or body of persons take action of such a nature as to be likely to endanger the public safety or public order, eg, rioting breaks out.
When the Governor declares that a state of emergency exists he is authorised to make Regulations that provide for the detention of persons and their deportation and exclusion from Anguilla, without regard to the constitutional protections. The Regulations may authorise the seizing of any property or the entering and search of any premises without following the constitutional protections. The declaration lapses at the end of 90 days if the Governor has not previously revoked them by a proclamation published in the Gazette.
Some more of the limits of our right to personal liberty: In the last post, I began looking at our second fundamental right under our Constitution of Anguilla. The fourth exception to this right to personal liberty occurs when we are locked up “in execution of the order of a court made in order to secure the fulfilment of any obligation imposed on him by law.” This is another example of a person being able to be imprisoned for failing to carry out an order of a court compelling the person to do something that some law required him to do. So, if the Planning Department orders me to pull down a house I started without planning permission, and if I refuse or neglect to pull it down, the Planning Department can get a court order compelling me to pull it down. If I fail to carry out the order of the court to pull down the house, the court can order me imprisoned until I have it pulled down.
A fifth exception to the constitutional right to personal liberty occurs where a person is seized for the purpose of bringing him before a court in execution of the order of a court. This happens when the court issues a bench warrant to the police to find a person and bring him before the court. So, if I receive a Summons to appear in the Magistrate’s Court, and I go to work instead, I may find the police appearing at my work place with a bench warrant to pick me up and bring me to court. I will not be allowed to complain if this happens.
The sixth exception is the familiar one which gives the police the power to arrest someone upon reasonable suspicion of his having committed or of being about to commit a criminal offence under the law of Anguilla. Note that the power of arrest is not limited to police officers. It says that a person can be deprived of his personal liberty, ie, arrested, upon reasonable suspicion of his having committed or of being about to commit a criminal offence under the law of Anguilla. The question of wrongful arrest is a difficult, but interesting one. I shall look at this problem in a little more detail in a separate programme.
The seventh exception applies to children who are adjudged to be so unmanageable that it is necessary to confine them for their education or welfare during the period that they are under eighteen years of age. This can only be done with the consent of their parents or guardians. This falls within the category of the parent, and the state acting in the place of the parent, making provision for the care and protection of the child. It is not a form of punishment.
The eighth exception is for the purpose of preventing the spread of an infectious or contagious disease. It is under this exception that quarantine laws can be justified. If we are suspected of having contracted one of the listed dangerous and contagious infections, we can be ordered by the health authorities to be confined in a place of quarantine for the specified duration.
The ninth exception is the case of a person who is suspected to be of unsound mind, addicted to drugs or alcohol or a vagrant. It exists for the purpose of his care and treatment and for the protection of the community. It is this law that permits the Mental Health Act to provide for mental cases to be picked up and detained at a special ward at the Hospital while they are being observed and treated.
The tenth exception exists for the purpose of preventing the unlawful entry of a person into Anguilla, or for the purpose of effecting his expulsion, extradition or other lawful removal from Anguilla. This section permits someone to be restricted while he or she is in Anguilla in the course of his extradition or removal from Anguilla. So, if a visitor becomes a prohibited immigrant, he can be picked up and detained at the Police Station while they wait for a ferry to take him back to St Martin or wherever he came from.
The final exception mentioned in section 3 is in the case of a restriction that may be considered necessary in the execution of a lawful order requiring a person to remain within a specified area within Anguilla or prohibiting him from being within such an area or to such an extent as may be reasonably justifiable for the taking of proceedings against that person relating to the making of such order, or to such extent as may be reasonably justifiable for restraining that person during any visit that he is permitted to make to any part of Anguilla in which, in consequence of any other such order, his presence would otherwise be unlawful. It is this exception that permits a judge or magistrate to order abusive spouses never again to be present within a certain radius of their victim, or risk going to gaol. It would permit a foreigner to be allowed into Anguilla solely for the purpose of being conveyed to the Court to be dealt with there in relation to some offence with which he is charged. We're not yet finished. I have three more posts on this fundamental right.
The second of our fundamental rights enshrined in the 1982 Anguilla Constitution is the right to personal liberty. That refers to our right not to be locked up in a police cell, or a prison, or a hospital ward, or in any other place of any description, without our consent, or unless some law permits it.
Section 3 of our Constitution provides:
Protection of right to personal liberty
3. (1) No person shall be deprived of his personal liberty save as may be authorised by law in any of the following cases, that is to say—
So, no government officer can order us, even under penalty of arrest, to go to any office building, or police station, or hospital, or health clinic, except there is a law giving them that power.
As we can expect, there are various exceptions to this fundamental right to personal liberty. They are all situations authorised by law. Our House of Assembly has to pass a law that infringes our right to freedom. No government can by mere executive decision or action take away this fundamental right.
The first of these exceptions is in consequence of our "unfitness to plead to a criminal charge". So, if I commit a crime, and come before the court, the court may be satisfied that my mental condition makes me unfit to stand trial. Does that mean that I am set free to commit another crime? No, the court can order me confined in some safe place prescribed under the Mental Health Act until the court is satisfied that I am fit to plead to the charge. Then, when I am better, the court can proceed to try me and to impose such sentence as it considers fit. But, note that it is the court that orders me deprived of my liberty, and the court does it under the power given to it by an Act. I cannot be detained under this exception by a person who does not have the legal right to do so.
There is another more obvious way that a court can order me confined. That is, "in execution of the sentence or order of a court". This may be a court established in Anguilla or some other country, in respect of a criminal offence of which I have been convicted. This exception is limited to where a court has sentenced me to a term of imprisonment. Note that, under this exception, if the police find an escaped prisoner from St Maarten at large in Anguilla, they can arrest him. The Anguilla court can order him confined even though he has not done anything against the law in Anguilla. That is as it should be. If a prisoner escaped from Anguilla and went to St Maarten, we would expect the police and the courts in St Maarten to respect the sentence of the court in Anguilla. We would want the escaped prisoner confined until he could be brought back to Anguilla to continue serving his sentence.
The third exception is where a judge sentences a lawyer or some other person to serve a term of confinement for being in contempt of court. It is lawful for us to be deprived of our personal liberty in execution of an order of the High Court or the Court of Appeal or such other court as may be prescribed by the Legislature on the grounds of our contempt of any such court or of another court or tribunal. Note that the power to order a person who is in contempt of court is limited to the High Court and the Court of Appeal. A Magistrate would only have the power to confine a person who is in contempt of the Magistrate's Court if a law passed by the Legislature gives that power. And, no law in Anguilla does so.
A High Court has the widest power to commit a person in contempt of its order to imprisonment, providing the rules are followed. If I say anything rude to the judge, she can hold a hearing and send me to prison, say, for a week. A Magistrate, by comparison, has a very limited power to punish for contempt. The normal way in which a Magistrate can imprison a person for contempt is where the Magistrate has ordered the person to pay a debt, or child support, and the debtor has refused to pay without a good reason. Additionally, where the Magistrate has ordered someone to do something, or to stop doing something, and the person persists, the magistrate may imprison the offender for up to 10 days. If someone is rude in the Magistrate's Court, the Magistrate may be able to fine the person, but he cannot commit him to a term of imprisonment in the same way a judge can. I have known of exceptional cases where a person has been brought before the Judge of the High Court on a charge of contempt in a Magistrate's Court. Only a High Court Judge can order a person to serve a term of imprisonment for behaving badly in a Magistrate's Court.
The right to life is wider than the death penalty. At about 8:00 am on the morning of 1 December 1987, a 22 year-old Indian man was taken into custody by the police in connection with an investigation into a theft. He was taken to a police outpost near to his home in the State of Orissa in India. His mother, Nilabati Behera, visited him that night with his supper, which he ate. On the following day, he was found dead on a nearby railway track with multiple injuries. He was still wearing a handcuff. The mother wrote a letter to the Supreme Court complaining that she wanted justice for her son. The Supreme Court treated her letter as a writ petition in the original jurisdiction of the court under the Constitution of India, and accepted it as a case filed. The court treated her letter as initiating a claim for compensation for contravention of the fundamental right to life of her son guaranteed by the Constitution.
The Supreme Court of India directed a District Judge in the State of Orissa to hold an inquiry into the facts and to report back. The police claimed that the deceased had escaped from police custody and that his injuries were the result of his having been run over by a train. The medical evidence from the doctor who conducted the post-mortem examination was that most of the injuries had been caused by a long and violent beating. His body had, subsequent to his death, suffered further injuries from being dragged by a train after it had been placed on the train line. The Judge conducting the inquiry reported back to the Supreme Court that according to the evidence that he had uncovered the deceased had died from multiple injuries inflicted on him while in police custody.
The Supreme Court heard argument from the lawyers for the State. It held that the State had breached the deceased's fundamental right to life. The Court explained that the purpose of public law is not only to civilize public power, but also to assure citizens that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, it is the duty of the court to mould a relief by granting compensation in proceedings brought under the Constitution seeking enforcement or protection of fundamental rights. It does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen.
The judges of the Supreme Court sat down and worked out, based on the age of the son, what his loss of income to his family had been if he had lived to the usual age. They awarded what was at the time a large sum of money by way of damages to be paid to the mother.
As the Indian Supreme Court explained, the payment of compensation in such cases is not to be understood as damages, as it is generally understood in a civil action for damages under the private law. It is to be understood as damages in the broader sense of providing relief by an order of making 'monetary amends' under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is in the nature of exemplary damages awarded against the wrong-doer for the breach of its public law duty. It is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a court of competent jurisdiction, and/or the right to prosecute the offender under the penal law. The Supreme Courts and the High Courts, are the protectors of the civil liberties of the citizen. The court has not only the power and jurisdiction but also an obligation to grant relief in exercise of its jurisdiction under the Constitution and its duty to the victim or the heir of the victim whose fundamental rights are established to have been flagrantly infringed. It does this by calling upon the State to repair the damage done by its officers to the fundamental rights of the citizen. This, notwithstanding the right of the citizen to seek a remedy by way of a civil suit or criminal proceedings.
That was a powerful judgment. It is worth remembering that it is a part of the law of Anguilla too.
We take a break from considering fundamental rights and the right to life. Something urgent has come up that I need to consider. Mike Gapes MP (photo left) and his Foreign Affairs Committee have just put out another report affecting us in the British Overseas Territories. After having read it, I am concerned. It would appear that the Foreign and Commonwealth Office is refusing to accept responsibility for the decline of good government in the Turks and Caicos Islands. They are holding up reform by refusing to fund the necessary prosecutions. The inevitable result, I fear, will be the British Government’s international embarrassment.
The FAC is about to be dissolved as Britain heads into general elections. There will be a new Committee from about May 7. Before being dissolved, the FAC has done us the favour of producing this Report. It analyses and summarises where the Interim Government of the TCI is in investigating and prosecuting the crimes of the previous government and in putting in place mechanisms that will ensure that such a state of affairs as we have seen over the past 5 years does not easily happen again.
The Report is not very long (read it here). I urge you to read it for yourself. The appendices, titled “Written Evidence”, provide startling new information to the effect that the FCO has not understood the extent to which it is responsible for the decline in governmental standards in our Territories. The gnomes of Whitehall appear to have taken the view that it is the responsibility of Territories such as TCI and Anguilla to fund their own investigations, prosecutions, and reforms. All those experts presenting evidence to the FAC, except those coming from within the FCO, were unanimously of a different view. It is the responsibility of the British Government to produce the necessary funds. If this is not done, the inevitable outcome of reductions in public service salaries and the laying off of surplus workers will be that the public will view the reforms as having come at the expense of income and jobs of the locals. The risk is that the reforms will be rejected as having cost too much. That is in addition to the point that the island budgets could never raise the necessary funds.
As Special Prosecutor Helen Garlick reported, the budget for her prosecutorial team to the end of next year is ₤6.8 million. At 4 to 1, that would be EC$27.2 million. That is just the beginning, as the figure does not include the cost of any actual prosecutions. We can assume that figure will double and triple once prosecutions begin. This is an enormous cost for a small-island territory to bear.
Helen Garlick, Special Prosecutor, TCI
As the old maxim has it, a stitch in time saves nine. If the FCO had only done its oversight job properly in the first place, this expense would not have had to be incurred.
Paragraph 14 is relevant to us in Anguilla. It reads:
14. Although this Report deals specifically with issues relating to TCI, a number of concerns have been brought to our attention in relation to allegations of corruption and poor governance in other OverseasTerritories—for example, in Anguilla. We recommend that the Government should supply us with a memorandum setting out in detail what support is provided by the UK Government to each of the individual Territory governments to assist them in tackling corruption and maintaining standards of good governance. In the event that it is not possible to supply this information to us before the dissolution of the present Parliament, we recommend that the Government should make it available to our successor Committee in the next Parliament when it begins its work.
Those three sentences raise a spark of hope in our breasts that someone in Westminster understands the needs of these OverseasTerritories for reform in our system of governance. Whether the FCO will live up to its responsibilities is another matter. Only time will tell, bearing in mind that the likelihood is that there will be a new government in place in the UK in a few short weeks. New policies will surely sweep away the old ones.
We have got to keep our focus on the need to reform our Constitution to put in place an entirely new regime of checks and balances designed to ensure that the risk of political and administrative abuse is minimised.
Anguillians have to be concerned that under any new UK government the FCO will continue to refuse to fund good governance programmes in the OverseasTerritories and will wash their hands of us at the end of the day, leaving us to become yet another failed Caribbean banana-republic state.
Burning alive. I had mentioned in the post on the death penalty in Anguilla that there was no evidence that any one had ever been executed in the island. Now, I have been sent documents that prove otherwise. It would be as well to share them with you. The first is a record of a trial by the Council of Anguilla in 1758 of two runaway slaves known only as Pero and George. The record reads:
Anguilla
At a meeting of His Majesty’s Council, being present, The Honourable Benjamin Gumbs, Esquire; John Hughes, Benjamin Roberts, Joseph Burnett, Esquires, Members of Council.
Whereas two negro men, namely, Pero and George, belonging to this island have been lately taken on board a Schooner of War belonging to the subjects of the King of France who had in a felonious and treasonable manner fled from this island to the French in time of war between the Crowns of England and France; and likewise endeavouring to pilot and did aid and assist the said subjects of the Crown of France to land on the said island Anguilla to distress the said English inhabitants of said island.
It is hereby ordered and decreed by this Court that the negro man called George be put to death immediately by burning of his body until it be dead and that the negro man called Pero be immediately put to death by hanging by the neck until he be dead.
Signed by command, Joseph Burnett, Clerk to the Council.
It would appear from this record that, some time before their execution in 1758, George and Pero had fled from Anguilla and enlisted on a French privateer, probably from St Martin, and whose victims would have included Anguillian sloops and schooners. More grievously, they had allegedly acted as guides for a French raid on Anguilla, though there is no confirmation of such a raid between 1756 and 1758 in the historical records. This trial took place during the time of the Seven Years War (1756-1763) between the British and the French. As such, they had been found guilty of committing the very serious crime of treason.
Pero must have been a slave of Sarah Hodge of Anguilla as there is also a copy of her letter to her son confirming that she consents to the execution. The letter reads:
Tuesday night, 19th September 1758
Dear son,
I received your note which does not a little surprise me, to think that Pero has been taken on board a French Privateer, his behaviour has been so extraordinary, that I resign him to the Governor and Council, to do as they think proper. I hope this may in some wise deter the other negros from the like attempts.
I am dear son, your loving mother, Sarah Hodge.
Death by burning alive has a long history as a method of execution in crimes such as treason, heresy, and witchcraft. In 1184, the Roman Catholic Synod of Verona legislated that burning was to be the official punishment for heresy, as Church policy was against the spilling of blood. It was also believed that the condemned would have no body to be resurrected in the Afterlife. The decree was later reaffirmed by the Fourth Council of the Lateran. Burning was also used by Protestants during the witch-hunts of Europe. Edward Wightman, a Baptist from Burton-on-Trent, was the last person to be burnt at the stake for heresy in England in the market square of Lichfield, Staffordshire, on 11 April 1612.
In the United Kingdom, the traditional punishment for women found guilty of treason was to be burnt at the stake, where they did not need to be publicly displayed naked. Men were hanged, drawn and quartered. The penalty of burning was introduced into the Colonies during the eighteenth century. The most famous use in the New World occurred in the New York slave revolt conspiracy of 1741. A large group of slaves were accused of plotting to escape and to destroy their masters at the instigation of white abolitionists. Some 35 people, including 4 whites, were found guilty and executed. Most of them were hanged, but 13 slaves were burned alive at the stake. The plot allegedly included mass arson, which may have influenced this choice of punishment.
Burning at the stake fell out of favour among governments in the late 18th century when more 'humane' methods were introduced. In 1789, Catherine Murphy, convicted of counterfeiting, was the last person to be burnt at the stake in England. In 1790, Sir Benjamin Hammett, who had been involved in her trial, introduced a bill into Parliament to end the practice. The Treason Act of 1790 which resulted gave ladies equal access to the halter, and was duly given royal assent by King George III.
From this we can deduce that the sentence of death by burning imposed on George by the Anguilla Council was a lawful form of capital punishment in cases of treason, the crime for which he had been convicted. The Anguilla Council of the time had no jurisdiction to convict or to execute a free person of treason or any other felony. Anguilla never had a writ of assize issued to hold trials of felonies and misdemeanours until after she was joined to St Kitts in 1825. A free person would have had to have been deported to Antigua, the seat of the Governor in Chief of the Leeward Islands, to be tried for treason and executed if convicted, as had been done with Captain Birmingham and the three French spies in 1711. Slaves however were another matter. They were not considered as persons but were the chattel property of their owners, and were not protected by law. They could as easily be killed by their owners as executed by the Council. The result is that Pero was hanged by the neck until he was dead, and George was burned at the stake in CrocusBay.
In practice, prisoners sentenced to be burned were usually strangled at the stake before the fire was set. This was not to spare the victim the pain of burning, but to save his executioners the pain of seeing his suffering. We can hope that this favour was shown to George, though he had clearly been sentenced to be burned alive until he be dead. Both executions would have been carried out in public for the purpose of discouraging similar conduct by any discontented and rebellious slave in the future.
