SASCHA WIL­SON

Se­nior Re­porter

sascha.wil­son@guardian.co.tt

The Court of Ap­peal has up­held a man’s claim that his con­sti­tu­tion­al rights were in­fringed af­ter he was de­tained for al­most four days in po­lice cus­tody.

The three-judge ap­peal court pan­el, com­pris­ing Jus­tice Prakash Moo­sai, Char­maine Pem­ber­ton and Gillian Lucky over­turned High Court Judge James Aboud’s de­ci­sion to dis­miss Ger­ald Gill’s con­sti­tu­tion­al mo­tion.

Fol­low­ing an in-per­son hear­ing at the Wa­ter­front Cen­tre, the pan­el set aside the tri­al judge’s No­vem­ber 2017 or­der, and grant­ed a de­c­la­ra­tion that Ger­ald Gill’s right to be brought prompt­ly be­fore a Ju­di­cial Au­thor­i­ty un­der Sec­tion 5(2)(c)(iii) of the Con­sti­tu­tion was in­fringed.

Costs were al­so or­dered in favour of Gill in the Ap­peal and High Court mat­ters.

Gill, a car­pen­ter, was ar­rest­ed with­out a war­rant in a guest house in To­ba­go around 7 pm on Sep­tem­ber 29, 2012.

He was de­tained in a hold­ing cell at the Scar­bor­ough Po­lice Sta­tion un­til around 4 pm on Oc­to­ber 3, 2012, be­fore he was re­leased with­out be­ing charged.

He was not told why ex­act­ly he was ar­rest­ed and claimed that po­lice doubt­ed him when he said he was orig­i­nal­ly from La Brea, Trinidad.

Through his at­tor­ney Im­ran Khan, he filed two sep­a­rate claims against the At­tor­ney Gen­er­al, in­clud­ing a com­mon law claim for dam­ages for wrong­ful ar­rest and false im­pris­on­ment that was set­tled by con­sent.

The sec­ond claim was a Con­sti­tu­tion­al mo­tion seek­ing a de­c­la­ra­tion that Gill’s right to be brought prompt­ly be­fore an ap­pro­pri­ate Ju­di­cial au­thor­i­ty ac­cord­ing to Sec­tion 5(2)(c)(iii) was in­fringed.

At the hear­ing of the Con­sti­tu­tion­al pro­ceed­ings be­fore Aboud, the at­tor­ney rep­re­sent­ing the At­tor­ney Gen­er­al took the pre­lim­i­nary is­sue that the pro­ceed­ings were an abuse of process since Gill had a par­al­lel com­mon law rem­e­dy which was al­so filed in a sep­a­rate mat­ter.

The tri­al judge dis­missed the con­sti­tu­tion­al claim on No­vem­ber 9, 2017 af­ter rul­ing that it was an abuse of process and that Gill failed to sat­is­fy the Court that he had a right to main­tain a claim for con­sti­tu­tion­al re­lief.

In their grounds for ap­peal filed in 2020, Khan to­geth­er with at­tor­ney Sunil Gopaul-Go­sine sub­mit­ted that the judge erred in law and re­lied on points of law and ev­i­dence.

They ex­plored sig­nif­i­cant le­gal is­sues about the po­si­tion of the Con­sti­tu­tion ver­sus the ex­is­tence of a par­al­lel rem­e­dy of false im­pris­on­ment un­der the com­mon law.

Re­gard­ing the ap­peal as a land­mark rul­ing, Khan said, “The Court of Ap­peal in over­turn­ing the tri­al judge’s de­ci­sion and al­low­ing the Ap­peal recog­nised the Con­sti­tu­tion as the Supreme law and found that there was no par­al­lel rem­e­dy un­der the com­mon law for a breach of a Sec­tion 5(2)(c)(iii) right.”

Ex­plain­ing what the rul­ing meant, he added, “The ef­fect of the de­ci­sion was al­so that it is per­mis­si­ble for a con­sti­tu­tion­al claim un­der 5(2)(c)(iii) to ex­ist sep­a­rate and apart from a com­mon law right of ac­tion for false im­pris­on­ment.”