Jamaican wins unlawful detention lawsuit against Guyana’s Police

…Chief Justice awards $3.1M in damages

Having found that her fundamental rights to freedom of movement and not to be subjected to cruel and inhumane treatment under Guyana’s Constitution were breached because of her prolonged detention at the East La Penitence Police Station, Chief Justice Roxane George has awarded $3.1 million in damages to Jamaican national Sandra Russell, who had sued the State.
Russell arrived in Guyana legally on May 13, 2013. However, on June 25, 2018, she was arrested by Police ranks at Omai Landing in the Essequibo River, after 70 grammes of marijuana were found in her possession. She was charged and placed before the court, where she pleaded guilty to the offense and was sentenced to eight months in prison, besides being fined $105,000.

In her Statement of Claim, Russell has said that, after the sentence was imposed on her, she was taken to the New Amsterdam Prison to serve her time. While so doing, her sentence was reduced to three and a half months, and she was released from prison on November 10, 2018.
Upon her release, a female Immigration Officer informed her that she would be taken to the Immigration Office to be processed for deportation to Jamaica.
Russell has said she was instead taken to the East La Penitence Police Station, where she was detained for an additional eight months. She was released on July 7, 2019 on $10,000 bail, without being taken before a court of law.
In the circumstances, Russell, who resided locally at Pouderoyen, West Bank Demerara, instituted a lawsuit seeking in excess of $100 million from the State.
Represented by Attorney-at-law Darren Wade, the woman sued the Commissioner of Police and the Chief Immigration Officer for a breach of her fundamental rights as guaranteed under Articles 139, 141, and 148 of the Constitution of Guyana.

Unlawfully detained
In a ruling delivered on Wednesday, the Chief Justice held that although Russell was a prohibited immigrant pursuant to the Immigration Act, since she overstayed the six-month period granted to Caricom nationals, she was unlawfully detained, in contravention of Articles 139 and 148.

While acknowledging that the State needed time to verify the identity and nationality of the woman, and that the Immigration Act allows for the detention of persons for a period that is necessary for investigations into their removal from Guyana at the first reasonable opportunity, Justice George underscored that the statute clearly does not contemplate lengthy detentions.
“It strongly speaks to tenuous action,” she said. According to her, under Article 139 (2) of the Constitution, a person can be held in preventive detention for not more than three months, unless a tribunal grants an extension. Having regard to the foregoing, Justice George held that, of the eight months of detention, the State had three months to make a determination regarding Russell’s situation.
Considering this, she noted, the woman should have been taken before a court for the presentation of a case against her and for relevant orders to be sought, more especially regarding her detention.
Against this background, Justice George held that the woman was unlawfully detained and deprived of her freedom of movement for five months, and not eight as she had initially claimed.

Inhumane, degrading
The Jamaican woman complained that the conditions at the East La Penitence Station were poor, and she was left without proper and adequate meals, which resulted in her being taken to a health centre for medication. As a result, she had deposed that, during her incarceration, she became depressed.
“At the East La Penitence Station, the lighting and ventilation were very poor, and I spent all the time in the cell. I had no leisure or physical activities. There were no beds at the East La Penitence Police Station, and I slept on a thin mattress that was very stink, on the concrete floor. I suffered from back pains.”

She further deposed, “There were only three cells at the East La Penitence Police Station, and at times it could be about three to twenty of us prisoners in those cells. There were many of us; we were packed like sardines in order to fit on a mattress, and the place was very humid because we had no fan nor AC.”
Justice George, in her ruling, said the State made no arguments to counter Russell’s claims of the conditions she had to endure while incarcerated. In fact, the Chief Justice noted that the State said it did not know of such conditions existing at the East La Penitence Police Station.
“It is the duty of the state to have such knowledge, and to provide the requisite information to the court. The fact that others may have endured poor conditions does not make them acceptable. In the absence of any evidence to counter [Russell’s] assertions, I accept that as being true,” Justice George added.
Lawyers from the Attorney General’s chambers had argued that the conditions at the station lockups should “not be held against the State”, given Guyana’s socio-economic circumstances. To amplify their argument, the State counsel had cited a local case that was decided in 1998.
However, in dismissing this argument, the Chief Justice noted, “We are now in the 21st century. With all due respect, to continue to so hold in the context of the incorporation of several international human rights conventions, including the International Covenant on Civil and Political Rights, into the Constitution of Guyana would be to condone an unacceptable state of affairs.”

State must do better
According to the Chief Justice, the “State must do better” in regard to facilities for the incarceration of persons. The claim of the “so-called Third World status”, Justice George said, “cannot be permitted to be a continual excuse for poor conditions” of such facilities in Guyana.
As such, she declared that the woman’s right pursuant to Article 141 of the Constitution not to be subjected to cruel or inhumane treatment was infringed, more so given the length of time she was kept in custody.
Though there were negative matters against Russell, such as her conviction for drug trafficking, Justice George held that they do not justify her prolonged detention. “It was behooved on the State to act in a timely manner to address [Russell’s] situation,” she said in her ruling.
Russell’s lawyer Darren Wade had argued that her continued detention was a burden on the State. Nevertheless, the Chief Justice concluded that an award for damages is necessary in this case, but not in the exorbitant sum being claimed by Russell, which has no basis in law.
Given the circumstances of this case, Justice George said, Russell contributed to her “predicament” by overstaying her time in Guyana and committing a serious criminal offence [drug trafficking]. She added that “it cannot be countenanced that she would be handsomely rewarded for “self-inflicted breaches.”
The Chief Justice awarded Russell compensatory damages in the sum of $2.5 million- $500,000 for each of the five months she was unlawfully detained. Russell was further awarded $600,000 in damages, representing $75,000 for each of the eight months she was subjected to poor conditions while in the lockups.
Costs were awarded against the Attorney General in the sum of $250,000.
Since Russell “clearly overstayed” her time in Guyana, Justice George said, unless some accommodation is granted to her by the State, she must be deported at her own expense. If she cannot afford to stand the cost, the court ordered that same be deducted from the judgement awarded.
The woman believes that the Police had no authority to keep her in custody beyond 72 hours without seeking an extension from the court, given that she had completed serving her sentence.
Russell had initially sought the following reliefs: damages of more than $50M for false imprisonment; damages in excess of $20M for breach of her freedom of movement; $10M per day for every day she spent in unlawful custody; and $20M in damages for inhumane and degrading treatment. (G1)