Title: Flemming v DET. CPL.

Myers et al

Citation: JM 1989 CA 171

Facts:

On October 10, 1978 the appellant was taken into custody at the Hope
Bay Police Station on the instructions of Detective Corporal Myers who
had been conducting investigations into the murder of one Calvin
Wilson. The appellant was then asked why he had killed ‘the man’ at
Shrewsbury but he denied any participation in such a crime. He was
then told that he was being arrested and on the same day was
transferred to the Buff Bay Police Station. He remained there until
October 23, 1978 when he was taken before the Resident Magistrate’s
Court for the first time. During this two-week period he was beaten on
the soles of both feet by the police using a stone hammer and suffered
other ill-treatment causing him to seek medical attention at the Kingston
Public Hospital on two occasions in 1979.

The appellant was remanded into custody after appearing before the
Magistrate and was finally discharged on February 9, 1979 after a
preliminary hearing into the charge of murder was held.

In an action against the officer involved and the Attorney-General, the

appellant claimed false imprisonment, malicious prosecution and
assault. The trial judge entered judgment in the appellant’s favour in the
sum of $3,000.00 on the claim for assault but dismissed the other two
claims, holding that the appellant failed to discharge the burden of
proving absence of reasonable and probable cause or malice on the part
of Detective Corporal Myers.

An appeal was allowed.

Held:

A unanimous decision was taken to increase the damages awarded for

assault from $3,000.00 to $10,000.00 and the claim for false
imprisonment was successful. However, on a 2-1 majority it was held
that there was no evidence adduced to support a claim of malicious
prosecution.
Issues:

1) Was the amount of $3,000.00 awarded on the claim for assault

inordinately low? (YES)

2) Was there any reasonable or probable cause for detaining the appellant
over the period from the 10th October to 23rd October? (NO)

3) Was the defendant motivated by malice and had no reasonable or

probable cause for prosecuting the appellant? (NO)

Holding:

1) An appellant is deserving of punitive damages where the motives and

conduct of an officer aggravates the appellant’s injury.
2) In determining the reasonableness of the time that elapses, the
circumstances of each case must be the guiding principle and any
unreasonable delay in taking an imprisoned person before the Court
will result in liability for false imprisonment.
3) Liability for malicious prosecution arises where the plaintiff proves
that the defendant acted maliciously or without reasonable and
probable cause in prosecuting. It is the act of prosecuting and not of
imprisoning or detaining as in false imprisonment which must have
been done without reasonable or probable cause.

Reasoning:

2) The action of false imprisonment arises where a person is detained

against his will without legal jurisdiction. The legal justification may be
pursuant to a valid warrant of arrest or where by statutory powers a
police officer is given a power of arrest in circumstances where he
honestly and on reasonable grounds believes a crime has been
committed. However there is a duty on the part of the police officer to see
that the person is brought before the Court within a reasonable time.
What is reasonable is a question of fact and must be determined on the
circumstances of each case.

In the instant case, the evidence revealed the existence of a statement

from a potential witness, the information from which, together with other
 information received during the investigations formed the basis upon
which the appellant was taken into custody. In those circumstances the
Defendant was entitled to arrest the appellant and take him to the police
station and consequently the initial arrest would be lawful. Having
regard to the evidence that the appellant was detained for 13 days and in
the absence of any explanation for the apparently long delay, the Court
ought to have found on a balance of probabilities that the defendant had
no reasonable or probable cause to detain him for such a long period of
time, albeit that the initial arrest was indeed lawful.

3) By virtue of section 33 of the Constabulary Force Act in Jamaica, a

plaintiff suing a police officer for malicious prosecution as a result of an
act done in the execution of his duty is required to prove that the
defendant acted either maliciously or without reasonable and probable
cause. For the purpose of malicious prosecution “malice covers not only
spite and ill-will but also any motive other than a desire to bring a
criminal to justice” – per Lord Devlin in Glinski v. McIver.

There is no evidence revealed in the transcript which establishes on the

plaintiff’s case, any spite or ill-will on the part of the Defendant or indeed
anything to suggest that the Defendant acted with any motive other than
to bring a criminal to justice. It does not necessarily follow that the
assault on the Appellant was due to the fact that there was no
reasonable and probable cause for believing that the appellant had
committed an offence. Apart from his imprisonment and subsequent
acquittal, the appellant advanced no evidence to show that the
respondent had no reasonable or probable cause for charging him of the
offence of murder.

Ratio:

The detention of a citizen by an arm of the state i.e. the police force,
without reasonable or probable cause for so doing, is indeed an act
which the Court ought to view as a serious breach of the citizen’s right to
liberty and one which amounts to liability for false imprisonment.

In evaluating the test of reasonable and probable cause for the purpose
of malicious prosecution, it is the act of prosecuting and not of
imprisoning or detaining, as in false imprisonment, which must have
been done without reasonable or probable cause.
Policy:

Abuses of authority by the police should not go unpunished and

situations which potentially seek to limit the power of the police in the
execution of their lawful duties should, conversely, not be allowed.