Supreme Court
Action No. 291 of 1981
16th September, 1982.
Moe, C.J.

Mr. Dean Barrow, for the Plaintiff.
Mr. George Brown, Solicitor General (Acting) for the Defendants.

Tort - False Imprisonment - Wrongful arrest - Whether arrest of Plaintiff unlawful - Arrest without a warrant - Section 21 Firearms Ordinance CAP 171 - Public Safety (Maintenance of Order) Regulations (No. 62 of 1981) - Regulation 3 thereof - Whether there was reasonable suspicion that Plaintiff committed or was committing acts proscribed by law - Aggravated or Exemplary Damages - Judgment for Plaintiffs - Costs.

J U D G M E N T

The Plaintiff claimed damages for wrongful arrest and false imprisonment by the servants or agents of the Commissioner of Police and the Commandant, Belize Defence Force. At the close of the case it was conceded that there was no evidence of an act on the part of anyone for which the Second Defendant may properly be held liable. Judgment is accordingly entered for the Second Defendant with costs.

The case against the First Defendant, the Commissioner of Police proceeded and was argued from the point of view as to whether or not the Police can justify an arrest of the Plaintiff which he claims occurred on the 28th July, 1981. I give judgment on that basis only.

About 11 o' clock on the night of 28th July, 1981 the Plaintiff while walking on Orange Street, Belize City, was stopped by a member of the Belize Defence Force who was carrying a baton about 2 feet in length, and who was accompanied by three other members of the Belize Defence Force each of whom was also carrying a baton of similar size. The Plaintiff was told that the Police would like to talk to him, he was searched by two of the Belize Defence Force personnel and was invited to accompany the Belize Defence Force personnel to a place where a second lieutenant of the Belize Defence Force was. The Plaintiff asked of these members of the Belize Defence Force what the Police wanted to talk to him about. That question was not answered but the Plaintiff was directed to a truck where the second lieutenant was. Here the Plaintiff asked the second lieutenant what the police wanted to see him about. The question was not answered but the Plaintiff was put in the truck and taken to the police station where the Belize Defence Force personnel handed him over to members of the police force. The Plaintiff asked members of the police force why he was brought to the station. He got no answer until Assistant Superintendent of Police Miguel had a conversation with him when he was then allowed to leave the police station, the time then being about 12.30 a.m.

I have to decide first whether there was an arrest. There was a submission for the Defendant that there was no arrest prompted probably by the statement of Cpl. Henry of the Belize Defence Force who said that the Plaintiff volunteered to go along with the Belize Defence Force personnel and the statement of Sergeant Broaster of the police department that at the police station the Plaintiff was free to leave the station if he wanted to. The law on this is adequately set out in Hussein v. Chong Fook Kam (1970) A.C at page 947 where Lord Devlin states "an arrest occurs when a police officer states in terms that he is arresting or when he uses force to restrain the individual concerned. It occurs also when by words or conduct he makes it clear that he will, if necessary, use force to prevent the individual from going where he may want to go."

In this case there is evidence that the Belize Defence Force personnel were to bring the Plaintiff to the police station whether or not he wanted to come; that the Belize Defence Force personnel by their conduct made it clear to the Plaintiff that he had to go with them whether or not he wanted to. Because the police wanted to talk to the Plaintiff did not mean they had to talk that night nor at the police station, but the Belize Defence Force personnel made sure that the police talked with him within that very hour, and at the police station and moreover that he got to the Station by their means of transportation. It may be added that Cpl. Henry's evidence indicates that the Plaintiff was reluctant to get into the Belize Defence Force truck without a reason being given to him and the second lieutenant insisted on his getting into the vehicle. Further, Sergeant Broaster qualified his statement as referred to above when he said, "the police would have prevented the Plaintiff from leaving the station without seeing Assistant Superintendent of Police Miguel." This evidence is consistent with the Plaintiff's evidence that he at one point said he was leaving the station and a corporal of police told him in no uncertain terms that he could not.

I hold that the Plaintiff was arrested in Orange Street and was under arrest until he left the police station after he had the conversation with Assistant Superintendent of Police Miguel.

The question now is whether the arrest was unlawful. The submission for the Defendant was that if an arrest was found, the police honestly and on reasonable grounds believed that the Plaintiff had committed an offence for which they were entitled to arrest him without a warrant firstly by virtue of section 21 of the Firearms Ordinance CAP. 171 and secondly under regulation 3 of Statutory Instrument No. 62 of 1981.

Section 21 of CAP. 171 provides that "Any police officer may arrest without warrant any person whom he believes to be possession of, or to be using or carrying a firearm or ammunition in contravention of any of the provisions of the Ordinance and may search that person and whether arresting him or not, may seize and detain any firearm or ammunition in his possession or used or carried by him.

Regulation 3 of the Public Safety (Maintenance of Order) Regulations 1981 i.e. S.I. No. 62 of 1981 provides "(1) No person shall commit a prohibited act in any public premises or premises in the possession or occupation of another person or body of persons or in any public institution, government office or premises or place of business."

"(2) Any person acting in contravention of this Regulation may be arrested without warrant and be detained."

In relation to both provisions, the Defendant relied on the evidence of Sergeant Broaster of the Police Department who stated that the police had information that the Plaintiff was seen on more than one occasion at a South Street base speaking with some fellows apparently to get a group to create disorder in the city and that one Lumumba had issued rifles to some of the same fellows to whom the Plaintiff had been talking. On evidence also that at the time Belize City was experiencing disturbances and the Governor had made regulations being satisfied that a state of civil commotion which threatened the public safety was likely to arise in Belize.

The question which arises is whether that material was sufficient to ground reasonable suspicion that the Plaintiff had committed or was committing any of the acts proscribed by the above provisions. The test I use is whether the "ordinarily prudent and cautious man" placed in the same position as the police was at the time of the arrest, would come to the conclusion that the Plaintiff was guilty of the offences imputed.

The Plaintiff's submission was tenuous, contending merely that the Plaintiff being seen talking to people by a south street base was not sufficient ground for reasonable suspicion entitling to arrest without a warrant. That approach avoided taking into account other pertinent circumstances as set out above. I would repeat them. At the material time a state of civil commotion was thought likely to arise, the police were informed that the Plaintiff appeared to be making efforts to get a group to create disorder, that a person had issued firearms (which are most effective means by which disorder may be created) to persons to whom the Plaintiff had been talking. I may add that there was no challenge to the police information nor any suggestion that the police was not entitled to treat the information as trustworthy. Where, therefore, the police had information as above which it is assumed they were justified in giving credit, it would not be unreasonable for them to suspect that the person counseling or instigating persons to commit acts of disorder, persons who were put in possession of firearms, might himself be about to commit an act or acts of disorder and might himself be in possession of a firearm which might be unlicensed. Looking as carefully and closely as I can at the situation which existed at the time of the arrest, I take the view that on the material before the police the circumstances relating to the Plaintiff gave reasonable ground for suspicion that more likely than not the Plaintiff was committing an offence under the provisions of CAP.171. It was not required of the police to decide the guilt or innocence of the Plaintiff nor even to have formulated the precise offence which he was suspected of having committed.

With regard to regulation 3 of S.I. 62 of 1981 there appears to be no ground for the contention of the Defendant. By regulation 2(1) (ibid) "prohibited act" shall include any description of intimidation or acts or threats of violence to person or property or any other disorderly conduct ------ ". By regulation 3 (1) such an act is not to be committed in any of the premises therein set out. The power to arrest without a warrant therefore, is given under regulation 3(2) where a person is committing or apparently committing any kind of intimidation or acts of violence or other disorderly conduct in certain premises. I have been unable to determine from the evidence what offence under the regulation the Plaintiff was reasonably suspected of having committed. I hold that there was no reasonable ground for suspicion that the Plaintiff was at the time of arrest acting in contravention of S.I. No 62 of 1981.

Now in view of my finding that the police had reasonable grounds for the suspicion that the Plaintiff was committing an offence under the provisions of CAP. 171, I hold also that the police was entitled to arrest the Plaintiff without warrant thereunder, i.e. under S.21 (ibid). However the Plaintiff's submission is that even if the police had reasonable grounds for suspicion authorizing arrest without warrant, the arrest was yet unlawful because the police did not communicate the basis of the arrest to the Plaintiff. The evidence is that when the Plaintiff was arrested on Orange Street he was told that the police wanted to talk to him. That may very well be a reason why but was not sufficient. An arrested man is entitled to be told what is the act for which he is arrested or the facts which are said to constitute a crime on his part unless the circumstances are such that he must know the reason already. The Plaintiff was not so informed at the time he was arrested as was required on 25th July 1981 when this incident occurred. Consequently, while I find that the police were entitled to arrest the Plaintiff, the arrest effected was unlawful. I also find that the unlawful arrest subsisted until Assistant Superintendent of police Miguel told the Plaintiff the reason why he was brought to the police station, that is, the unlawful arrest subsisted for a period of about one hour and a half.

The Defendant in his pleading accepted responsibility for the acts complained of. The Defendant is held liable for the wrongful arrest of the Plaintiff and must compensate the Plaintiff for this infringement of his rights. The Plaintiff claimed aggravated or exemplary damages. I was referred to the case of Hussein v. Chong Fook Kam (supra) in support of the proposition that the Court can mark the departure from constitutional practice by awarding exemplary damages.

I have considered all the surrounding circumstances affecting the unlawful arrest. I do not find that the arrest was effected with any malicious intent. Nor do I hold that the behaviour of the persons effecting the arrest was oppressive. There was however a departure from correct procedure the extent of which I bear in mind. We cherish our personal freedom and any infringement of it is a serious matter. It is quite contrary to the concept of individual liberty for a person when arrested not to be told why his personal freedom is being interfered with. On arrest, a person knowing why he is being deprived of his freedom may immediately take steps to regain it. He can then and there give an explanation of any misunderstanding or call attention to matters which show the arrester the inappropriateness of detaining further. Thus, from a practical point of view if what took place in the office of Assistant Superintendent of Police Miguel had taken place on Orange Street where the Plaintiff was stopped, the matter could very well have ended on Orange Street and all unpleasant consequences avoided. I take it too, that more serious consequences were avoided by the exercise of discretion on the part of the Plaintiff, an Attorney-at-law who would have known of his entitlement to resist in the circumstances but submitted to the arrest.

While bearing in mind the intolerable situation in which the Plaintiff found himself, the distress which he was caused, and the brief period over which the situation lasted, I also consider the need to ensure respect for constitutional principles. I think the Plaintiff will be adequately compensated by an award of $750.00 with costs and judgment will be entered accordingly.

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