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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

CV2011-02974

BETWEEN

JULIANA WEBSTER

CLAIMANT

AND

REPUBLIC BANK LIMITED

FIRST DEFENDANT

PC KAREN RAMSEY #13191

SECOND DEFENDANT

PC KERN PHILLIPS #16295

THIRD DEFENDANT

THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO

FOURTH DEFENDANT

BEFORE THE HONOURABLE MADAME JUSTICE JOAN CHARLES

Appearances:

For the Claimant: Mr. Christo Gift S.C Instructed by Mrs. Jocelyn Gift For the First Defendant: Mr. Kerwin Garcia Instructed by Ms. Marcelle Ferdinand For the Second to Fourth Defendants: Ms. Monica Smith Instructed by Ms. Savitrie Maharaj Date of Delivery: 6th April 2017

JUDGMENT

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THE CLAIM

[1] The Claimant was searched and detained on her employer’s, the First

Defendant’s, premises by the Second and Third Defendant. She claimed

that the detention was unlawful, unconstitutional, arbitrary, and

oppressive and breached her rights to:

i. Liberty and/or security of the person;

ii. The right not to be deprived thereof except by due process of law;

iii. The protection of the law;

iv. Her right not to be deprived thereof except by due process of law.

[2] With respect to her strip search and search of her handbag the Claimant

claimed that the searches constituted:

i. An assault and trespass to the person;

ii. An invasion of her privacy;

iii. A breach of Occupational Health and Safety Administration;

iv. A breach of her fundamental rights as it was unnecessarily

protracted, excessive and unreasonable;

v. A breach of an implied/expressed term of the Claimant’s contract

of her employment that the First Defendant would provide and

maintain a safe system of work.

[3] The Claimant therefore sought:

1. damages for false imprisonment, trespass to the person and

assault, anxiety, stress, trauma, humiliation and embarrassment;

2. aggravated and/or exemplary damages against the First

Defendant as the strip search was conducted at its place of

business in an area where the search could be seen by strangers,

with the approval of its Manager.

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[4] The fact that the Claimant alone was searched and the Manager failed to

follow the First Defendant’s procedures for police intervention at the

branch was cited as a ground for the payment for aggravated and/or

exemplary damages against the First Defendant.

[5] The Claimant further sought declarations that:

i. The First Defendant provided the environment in which it became

permissive for the Second and Third Defendant to exercise

authority over the Claimant in violation of her constitutional

rights;

ii. The First Defendant was culpable with other Defendants in falsely

imprisoning the Claimant;

iii. In the absence of the arrest of the Claimant the strip and cavity

search of her person was illegal and constitutes a trespass upon

the person.

[6] The reliefs sought arise out of a police investigation conducted by the

Second and Third Defendants at the First Defendant’s premises at Main

Street, Scarborough, Tobago into a report of the loss or theft of a cell

phone. The report had been made to the Scarborough Police Station by

one of the First Defendant’s employees, a Ms. Auriol Small.

[7] The Claimant pleaded that she ended her days’ work at approximately

5:45 pm and went to the lobby area to await her transport to her home.

While there she saw two employees of the First Defendant, a Ms. Auriol

Small and Ms. Trisha Williams, approach the entrance to the bank in

company with the Second and Third Defendants. Upon entry they spoke

to the Manager of the First Defendant, one Mr. Christopher Eugene.

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[8] The Claimant pleaded further that she walked toward the exit to leave

since her transportation had arrived. The Manager then told her and

three cleaners who were about to depart to remain on the premises. He

issued loud instructions to the security officer at the door to lock it and

not to allow anyone to leave the premises unless they were first searched.

[9] The cleaners were then taken to the basement accompanied by the

Second Defendant and Mr. Eugene. Neither the Second Defendant nor

the Third Defendant was dressed in police uniform.

[10] The Claimant averred that she was not told of the identity of the Second

and Third Defendant nor why they were on the premises. The Third

Defendant searched her handbag, lunch bag and jacket and told her she

had to go to the basement so that the Second Defendant could conduct a

body search. The Third Defendant escorted the Claimant to the basement

where she saw other staff members lined up and waiting.

[11] The Claimant was ordered to undress by the Second Defendant who

conducted a cavity search of her body despite her protests. It was during

this search and after her objections thereto, that the Claimant learnt that

the Second Defendant was a police officer and that she was looking for a

cell phone owned by Ms. Small. The search was conducted in the

presence and with the assistance of three of the bank’s cleaners who

were present. The Claimant was only allowed to leave the bank after the

search.

[12] The Claimant stated that she was mortified and humiliated by the

experience; she suffered anxiety, sleeplessness and could not go to work

for extended periods. Additionally, she could not attend supervisor

meetings at the bank and indeed, never worked there after the incident.

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[13] The Claimant asserted that Mr. Christopher Eugene, the agent of the

First Defendant, facilitated the excesses perpetrated upon her by

allowing the Second and Third Defendants to conduct the body search of

her person, which was in breach of her liberty, the protection of the law

and her right not to be deprived thereof except by due process of law.

DEFENCE OF THE FIRST DEFENDANT

[14] The First Defendant pleaded that sometime after 5:30 pm Mr. Eugene

Christopher met the Second Defendant and Third Defendant at the

branch. They informed him that they had come to conduct investigations

into the alleged theft of Ms. Small’s cell phone. Mr. Eugene told them

that he would not allow them entrance into the bank to conduct their

investigation whereupon the officers threatened that if they were not

allowed to conduct the investigation onsite they would take everyone

down to the police station and conduct their investigation there. The

First Defendant averred that it was under these circumstances that he

allowed the Second and Third Defendant to conduct their investigation

on the premises.

[15] It was also pleaded that it was the officers and not Mr. Eugene who

instructed that security guard at the branch Mr. Simon that no one was

to leave without their authority and Mr. Eugene simply the order.

[16] The First Defendant averred further that the Second and Third

Defendants asked for a private area in which to conduct their

investigation and Mr. Eugene offered them a ladies’ room on the 1st floor

or basement. It was denied that Mr. Eugene escorted the cleaners

downstairs.

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DEFENCE OF THE SECOND, THIRD AND FOURTH DEFENDANTS

[17] It was pleaded that on August 7th 2007 at approximately 5:15 pm the

Third Defendant received a report from Ms. Auriol Small by telephone

that her cell phone ‘was missing while at work’. He told her that he

‘would come to the bank’.

[18] He then contacted the Second Defendant, told her of the report of larceny

of the cell phone and asked her to accompany him to the bank. They left

for the bank at approximately 5:30 pm, dressed in plain clothes.

[19] Upon arrival at the bank they discovered that it was locked with security

personnel inside. They identified themselves as police officers,

whereupon Mr. Eugene, the bank manager, came to the door. They

identified themselves once more and the Second Defendant told Mr.

Eugene of the report that they received from Ms. Small. Mr. Eugene then

instructed the security personnel to allow the Second and Third

Defendant to enter the bank; they did so and spoke to Ms. Small who

gave them a description of the phone and its value.

[20] The officers then identified themselves to the cleaners and staff on the

premises, informed them of the report that they were investigating and

the Second Defendant indicated to those present her intention to carry

out a search of their property and person. The Second Defendant then

left with the female staff members and cleaners for the basement.

[21] It was admitted that the Claimant was strip searched by the Second

Defendant and she was asked to squat but no cell phone was found on

her.

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[22] After the searches, Ms. Small informed the Second Defendant that she

did not want any further police action with respect to her report. The

staff was allowed to leave.

[23] These Defendants pleaded that there was reasonable and probable cause

to search the Claimant and relied upon the facts and matters pleaded

above.

[24] All the principals filed witness statements in this matter – the Claimant,

Julianna Webster, Mr. Christopher Eugene for the First Defendant and

the Second and Third Defendants.

[25] The Claimant’s witness statement closely mirrored the Statement of Case

filed herein.

Witness Statement of Christopher Eugene

[26] This witness testified that he first learnt of the disappearance of Ms.

Small’s cell phone about 4:30 pm when she reported its loss to him. He

assisted her in looking for it in the branch by calling its number but it

was not found.

[27] He stated that between 5:15 to 5:30 pm he overheard a conversation

between Ms. Small and two other members of staff about having

searches of the staff members in order to locate the phone.

[28] Mr. Eugene called the Industrial Relations Manager who informed him

that the branch could only effect searches of the property of its staff if

said staff voluntarily agreed to same and that such searches should be

limited to bags and handbags. He informed Ms. Small of the Industrial

Relations Manager’s advice whereupon Ms. Small inquired whether the

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bank would allow the police to conduct personal searches of staff if a

report was made to the police. He informed her that the bank would not

allow the police to search staff on its premises; however, the police could

do so away from the bank.

[29] This witness stated that the three cleaners on the premises voluntarily

submitted to have their bags searched after being told of the loss of the

phone and this search was done in the presence of Ms. Small; the phone

was not found.

[30] Later on Mr. Eugene saw Ms. Small outside the bank. She later came

inside with a man and a woman who identified themselves to him as

police officers and they told him that they were there relative to a report

of loss/theft of a cell phone and intended to conduct investigations.

[31] Mr. Eugene asserted that he told the officers that in accordance with

bank policy they were not allowed to conduct investigations at the bank;

however the officers then threatened to take everyone down to the station

to conduct investigations there. Mr. Eugene then sought further advice

from the Industrial Relations Manager who told him to allow the officers

to conduct the investigation but that the workers should not be ‘handled

in any rough manner1’. He then informed the officers that they could

proceed.

[32] He stated that the police officers then told the bank’s security officer that

no one was allowed to leave the branch without the police’s authority and

he (Mr. Eugene) repeated that instruction to the bank’s security officer.

1 Witness Statement of Christopher Eugene , paragraph 23, filed 18th March 2013

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[33] PC Phillip and WP Corporal Ramsey asked for a room to conduct

investigations which they told him would include verbal questioning and

searches of persons present at the bank. The three cleaners accompanied

the Second Defendant to the basement (while Mr. Eugene returned to his

office). At this time the Claimant attempted to leave the bank but was

told by the bank’s security officer that she could not leave until she was

questioned and searched. He returned to his office and updated senior

officers of the First Defendant about unfolding events at the branch.

[34] Mr. Eugene was informed by the Industrial Relations Manager a short

while later that strip searches were being conducted by the police. He

attempted to go to the basement to stop the searches but was prevented

from doing so by the Head Cleaner.

[35] He called to the Second Defendant, confirmed that she was conducting

strip searches and told her that that was unacceptable and against bank

policy; he also demanded that she come upstairs. Shortly thereafter the

Claimant came upstairs, visibly upset and said that she felt humiliated.

She left shortly thereafter.

[36] PC Ramsey threatened to conduct the strip searches at the police station

if she could not do so at the bank. At this point Ms. Small stated that she

wished to have the police actions discontinued and the Second and Third

Defendant then allowed the remaining staff to leave.

Witness Statement of Acting Sergeant Woman Police Karen Ramsey

[37] This witness admitted conducting personal searches of female workers

including the Claimant.

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[38] After the Claimant’s outburst to Mr. Eugene, Ms. Small told her that she

did not want any further police action. She informed Mr. Eugene what

was told her by Ms. Small and advised that everyone was free to leave the

bank.

[39] The Second to Fourth Defendants conceded that the strip search was

illegal before the trial began.

THE CASE AGAINST THE FIRST DEFENDANT

[40] The following were the reliefs sought against the First Defendant by the

Claimant:

1. Damages for False imprisonment and trespass to the person;

2. A declaration that the First Defendant was culpable in providing

the environment in which it became permissible for the Second

and Third Defendants to exercise authority over the Claimant in

violation of her constitutional rights;

3. A declaration that the First Defendant was in breach of an implied

and/or expressed term of Claimant’s contract that the First

Defendant would provide and maintain a safe and healthy work

environment for its staff;

4. A declaration that the First Defendant was in breach of its

procedures to be followed with respect to the intervention by the

police at its branches;

5. A declaration that the First Defendant together with other

Defendants falsely imprisoned the Claimant and that that

detention amounted to a breach of her constitutional rights to

liberty and/or security of the person, to the protection of the law,

and the right not to be deprived thereof except by due process of

law;

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6. A declaration that the First Defendant is also liable for assault and

trespass to the person for the search of her handbag and the strip

search of her person;

7. Damages for anxiety, stress, trauma, humiliation and

embarrassment.

[41] The First Defendant submitted that the Claimant is not entitled to any of

the reliefs sought against it because:

i. Constitutional reliefs are not available against private

citizens/entities2;

ii. The investigation by the police at the First Defendant’s premises

where the Claimant was searched was conducted by the police

over which the First Defendant had no control3;

iii. All actions taken by the police (the detention and the strip search)

were independently pursued by the police and the First Defendant

was powerless to intervene.

[42] He relied upon the evidence of the Third Defendant in cross examination

that:

i. the police made the decision to search persons present at the

bank before their arrival at the bank and that this decision was

the officers’ alone;

ii. this was the police’s investigation and not the bank’s;

iii. it was the Third Defendant who ordered that no one was to leave

the bank without his permission;

iv. from the time they entered the bank this was the police’s

investigation and not the bank’s;

v. the officers did not ask the Manager’s permission to search the

staff;

2 Submissions of the First Defendant paragraph 25 (b),(c),(e),(f) 3 Paragraph 3, Submissions of the First Defendant

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vi. the bank manager, Mr. Eugene, at first told PC Phillips that it was

not bank policy to allow searches on the compound but the Third

Defendant asserted that the police had the authority to conduct

said searches;

vii. the detention was occasioned by the police and not the First

Defendant. The police came on the premises pursuant to a report

of larceny of a phone on the premises made by a member of staff

of the bank, one Ms. Small.

[43] He submitted that in these circumstances the Claimant could not

establish that the First Defendant provided the environment in which her

constitutional rights were infringed.

ANALYSIS

The Search

[44] What is clear from Mr. Eugene’s evidence is that he was aware, even

before the arrival of the officers, that Ms. Small anticipated that staff and

other persons at the bank would be searched by the police in order to

locate the cell phone4. He was also aware of the bank’s policy that

searches of the property of staff members could only be undertaken

voluntarily.

[45] His exchange with Ms. Small about whether the police could search staff

members on the premises or off5 clearly shows that he knew such

searches were not to be conducted on the bank’s premises. He knew that

the officers intended to search staff members present6 yet he did not

4 Witness Statement of Christopher Eugene paragraph 8 5 Witness Statement of Christopher Eugene paragraph 12 6 Witness Statement of Christopher Eugene paragraph 26

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object, inform the police of the bank’s policy or sought legal advice or the

advice of Ms. Fingal, Industrial Relations Manager. It was only after Ms.

Fingal called and instructed him to ensure that officers were not strip

searching staff that he intervened – this was after the cleaners and the

Claimant had been strip searched.

[46] In cross examination Mr. Eugene stated that he agreed to comply with

the police’s request for a comfortable place for a search and interview. He

also testified that when the police indicated to him that their

investigations would include “searches of persons present”, he

understood this to mean that the police would search bags only. He later

admitted that this statement could mean searches of the person.

[47] I have also taken into account the evidence of the Second Defendant that

shortly after entering the bank she informed Mr. Eugene, the Manager,

that all persons present would be searched7. In her words “He did not

protest nor question our authority”8.

[48] She also contradicted his testimony that he sought to intervene after he

had spoken to Ms. Fingal in that she stated that after the Claimant was

searched, she went to Mr. Eugene, ‘who was standing nearby’ and

complained about the search obviously upset and crying.

[49] It is this witness’ testimony that after Ms. Small told her that she wanted

no further police action, the Third Defendant told Mr. Eugene what the

latter said and advised that everyone was free to leave the bank. She

specifically stated that the manager “did not say anything9”.

7 Witness Statement of WP Sergeant (Ag) Ramsey paragraph 9 8 Witness Statement of WP Sergeant (Ag) Ramsey paragraph 9 supra 9 Witness Statement of WP Sergeant (Ag) Ramsey paragraph 22

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[50] PC Phillips gave similar testimony in his witness statement. He related

that the officers were allowed entry to the bank by Mr. Eugene. He did

not testify that Mr. Eugene told them that it was against bank policy for

the police to conduct investigations at the bank and that they in turn

threatened to take everyone down to the station to pursue the

investigation.

[51] PC Phillips also testified that Sergeant Ramsey relayed her intention to

conduct personal searches of the workers’ and cleaners’ property and

person in Mr. Eugene’s presence10. He too gave no evidence in his

witness statement of Mr. Eugene protesting and of either officer

threatening to take everyone down to the station to conduct searches of

their property and person there. I also noted Officer Phillips’ evidence

that while Sergeant Ramsey went down to the basement with the female

members of staff and the cleaners, he remained on the ground floor level

of the bank with the security officers and Mr. Eugene11.

The Detention

[52] Woman Police Sergeant (Ag.) Ramsey stated that Mr. Eugene informed

her that it was against bank policy to enter the compound to conduct

inquiries but she informed him that the police did have the authority to

enter the compound to conduct inquiries whereupon he let them in a

short while later12. She did not support Mr. Eugene’s evidence that the

officers threatened to take everyone to the station to conduct inquiries if

he did not allow them entry.

10 Witness Statement of PC Phillips paragraph 12 11 Witness Statement of PC Phillips paragraph 13 12 Witness Statement of WP Sergeant (Ag) Ramsey paragraph 5

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[53] In cross examination Mr. Eugene denied that the Claimant performed her

duties in an end office behind the manager’s office even though this was

admitted in the Defence13. I did not accept the Manager’s evidence that

the Claimant performed her duties as Treasury Cashier Supervisor in the

general office.

[54] Mr. Eugene admitted that there was a bank policy with respect to

searching staff at the time.

[55] In order to determine whether the First Defendant is liable for the

unlawful detention and trespass to the person of the Claimant, I must

decide whether Mr. Eugene encouraged and or instigated the police to

commit the acts which amounted to breaches of the Claimant’s

constitutional rights.

[56] The point should be made at the outset that the Claimant cannot pursue

a claim for constitutional relief against the First Defendant, a private

citizen/entity. Therefore, all her claims against the Defendant for

damages for breaches of her constitutional rights must fail.

[57] From the evidence I have concluded that Ms. Small was the main actor in

instigating the events that occurred at the bank. It is clear that she

wanted persons searched by the police and the officers came to the bank

to search all persons on the compound. The conduct of the police upon

arrival at the bank in searching the persons present amounted to a gross

dereliction of duty in that they conducted no verbal inquiries to identify

or eliminate suspects but immediately proceeded to strip search the

cleaners and the Claimant.

13 Paragraph 5 of the First Defendant’s Defence

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[58] The fact that Ms. Small discussed the search of staff before the arrival of

the police and after her report was made leads me to infer that she had

discussed and agreed with the officers beforehand that that is what they

would do upon entry into the bank’s premises. The fact of her discussion

with the manager about the search of staff by the police and his actions

thereafter are more germane to the issue that I must determine, however.

[59] I have concluded that Mr. Eugene knew of the bank’s policy against

personal searches; he was aware that Ms. Small anticipated that the

police officers would search the staff upon their arrival at the bank. I

accepted the evidence of the police officers that they informed him soon

after their arrival of their intention to search the property and person of

staff present and he did not object. I do not accept that he told the

officers of the bank’s policy and they threatened to take everyone to the

station to search them there. Mr. Eugene facilitated the personal search

of the Claimant by providing Sergeant Ramsey with a room in the

basement of the bank for this purpose.

[60] Mr. Eugene had a responsibility to the staff at the bank to ensure that

they were not violated there by the police or anyone else. Upon the

announcement by Sergeant Ramsey that she intended to search staff, he

ought to have objected or call the bank’s attorneys or senior management

to obtain advice. His failure to do so, taken with all the other

circumstances here, led me to draw the inference that he and Ms. Small

agreed that a personal search of staff be conducted by the police and he

encouraged and facilitated it.

[61] Mr. Eugene, as Manager, knew that the Claimant’s duties were

conducted for most of the day away from Ms. Small in an office behind

his own. It lay within his power to indicate to the police officers present

that the Claimant, for most of the afternoon, and certainly after the time

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that Ms. Small’s phone went missing would have been in company with

another officer counting and verifying the bank’s daily cash intake. I also

noted that he attempted to deny in cross examination that the Claimant

worked from a small office behind his office in company with another

officer. This led me to infer that Mr. Eugene was not an honest or reliable

witness.

[62] I did not accept his evidence about his exchanges with Ms. Fingal; I

believed that this testimony was given to buttress his claim that he was

ignorant of the bank’s procedures on police intervention in the branches

and the conduct of searches of the person and property of the bank’s

employees. I did not accept that as Manager of one of the First

Defendant’s branches he could reasonably have been ignorant of these

procedures. Further, his exchanges with Ms. Small before the arrival of

the police, in my view, is clear evidence that he knew of her intention to

have the police search persons present before their arrival and he did

nothing to stop this before it happened except to allegedly call the

Industrial Relations Manager.

[63] He had the authority as Manager to deal with this matter internally

without the intervention of the police but did not do so. Regrettably he

chose the course of subjecting a senior member of his staff to this

horrifying and humiliating personal search. Indeed I form the view that

Mr. Eugene abdicated his responsibility as Manager by agreeing to allow

the police to conduct the unlawful search of the person of the Claimant

and to detain her for that purpose.

[64] Unfortunately, because of his position as Manager his tortious action can

vicariously bind the bank and I hold that they do so on the facts of this

case. I therefore hold that the First Defendant is liable for the tortious

action of its manager, acting in the course of his employment in:

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i. The false imprisonment of the Claimant;

ii. Trespass to the person against the Claimant for the strip search

conducted on her.

[65] The detention and assault of the Claimant was particularly damaging to

her by reason of the fact that her colleagues at the bank facilitated these

wrongs. The actions of Mr. Eugene and Ms. Small were particularly

heartless and cruel when one considers that:

i. The Claimant was employed at the bank for over 30 years;

ii. She was a senior staff member;

iii. There was no basis to suspect her;

iv. To subject her to a strip search like a common criminal would

always have affected her ability to supervise junior employees, or

work at the branch;

v. The suspicion of theft would affect her especially as her job

entailed verifying cash intake at the bank.

[66] In the circumstances I grant judgement for the Claimant against the

First Defendant for false imprisonment and trespass to the person. On

the facts of this case the award of damages includes aggravated

damages.

[67] In the circumstances I order the First Defendant to pay to the Claimant:

i. Damages in the sum of $20,000.00 for false imprisonment;

ii. Damages in the sum of $250,000.00 for trespass to the person and

assault;

iii. The First Defendant to pay the Claimant prescribed costs on these

sums.

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THE SECOND TO FOURTH DEFENDANTS

[68] The Second to Fourth Defendants conceded that the search of the

Claimant was unlawful and amounted to:

i. A trespass to the person;

ii. An invasion of her privacy;

iii. A violation of her constitutional rights since the search was

excessive, protected and unreasonable;

[69] They also conceded thereby that the Claimant was entitled to:

a) A declaration that in the absence of the arrest of the Claimant, the strip

and cavity search was illegal;

b) A declaration that in the absence of the Claimant first having been

arrested, the conduct of a strip search and/or cavity search or both upon

the person of the Claimant constitutes a trespass to the person.

[70] They thereby accepted liability for damages for trespass to the person,

anxiety, stress, trauma, humiliation and embarrassment in relation to

the strip search of the Claimant.

[71] It should be noted that the Claimant failed to claim exemplary damages

against the Second to Fourth Defendants although the facts of this case

satisfy the criteria for such an award against the Second to Fourth

Defendants. As admitted by those Defendants, the action of the police

was unlawful and calculated to cause humiliation, embarrassment and

trauma to the Claimant. She was a senior member of staff at the bank

and was subjected to this invasion of her privacy in the presence of

cleaners and to the knowledge of her peers and Manager. A particularly

aggravating factor is that the Claimant ought to have been excluded as a

suspect since at the time that the phone went missing she would have

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been in her office conducting the treasury balance in the company of

other members of staff, and this task lasted from 4:15 to 5:30 pm.

Additionally, her office was located in a room at the back of the

Manager’s office in which two persons must always be present – no doubt

because that was where monies were kept.14 Ms. Small was never the

second person with the Claimant in the room nor does she work in the

Claimant’s department – there was no contact between these persons on

that day.

[72] Had the Second and Third Defendants conducted a basic investigation by

ascertaining where members of staff were at the time of the alleged loss

of the phone, they would have reasonably have been able to exclude the

Claimant. From the evidence it was clear that no investigation was

conducted by the officers – they came to the bank intending to search

persons present without making any inquiries first. Mr. Eugene’s

evidence15 makes it clear that Ms. Small was determined that searches of

all staff be conducted by the police. Indeed, I infer from the evidence that

she knew that was the purpose of their visit.

[73] Overall this was a brutal, horrifying and unjustified assault against a law

abiding citizen by the police. These officers had to know that this ought

not to have been done – there were no evidence/information/facts to

support their actions that day. I take into account the fact that the

Second Defendant was a Corporal and they were both detectives – they

must have known that:

i. They had to conduct verbal inquiries to determine who were

suspects and eliminate those who were not;

ii. In light of the fact that most of the employees had left the bank, it

was unreasonable and irrational to conclude that those present

14 Statement of Case paragraph 4, 4(a) 15 Witness Statement of Eugene Christopher paragraphs 8-12

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over one hour after Ms. Small discovered her phone missing had to

be suspects;

iii. They had to discover who were the persons who had access to the

area of Ms. Small’s office;

iv. Without having done the above, and without an arrest, they could

not subject the Claimant to a strip search.

[74] All in all I considered their actions to be vindictive, oppressive and an

abuse of their authority. It is shocking in my view that no action was

taken against them by the Police Professional Standards Bureau for their

clear and wanton abuse of their authority. Indeed, I have noted with

amazement that the Second Defendant was promoted since this incident.

[75] Counsel for the Claimant has submitted that her failure to claim for

exemplary damages against the Second to Fourth Defendants was due to

inadvertence and now seeks leave of the court to amend her claim to add

this relief. In my view an application to amend in order to include a claim

for exemplary damages had to have been made at a Case Management

Conference. Further, the Claimant had to set out the grounds upon

which she relied in support of her claim for exemplary damages in her

pleadings in order to comply with the Civil Proceedings Rules16. This was

not done and in the circumstances the application made by the Claimant

in her submissions is refused.

16 CPR 20.1 (as amended)

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Whether there was reasonable and probable cause for the Claimant’s

detention for one hour by the Second and Third Defendants.

[76] It is not in dispute that the Claimant was detained at the bank by the

Second and Third Defendants – the issue is whether there was

reasonable and probable cause for the detention

[77] These Defendants submitted that the offence being investigated was

larceny, an arrestable offence under s.4 of the Larceny Act Cap 11:12.

They submitted further, relying on s.3(4) of the Criminal Law Act, that

the officers had reasonable cause to suspect that an arrestable offence

had occurred and had reasonable cause to suspect that the Claimant

was guilty of this offence – therefore they were entitled to detain her.

They relied upon evidence from the officers, the Claimant and Mr.

Eugene which confirmed that the officers came to the bank to investigate

a report of theft of a cell phone.

[78] The principles to be applied in determining whether a police officer has

reasonable and probable cause to detain someone are well established.

[79] In Harold Barcoo v The Attorney General of Trinidad and Tobago17

the then Justice Mendonca outlined the test to be applied in cases of

false imprisonment or wrongful arrest. He opined that the test whether

there is reasonable and probable cause has both subjective and objective

elements. They are:

1. Did the arresting officer honestly have the requisite suspicion or

belief?

17 HCA No 1388 of 1989

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2. Did the officer, when exercising the power, honestly believe in the

existence of the “objective” circumstances which he now relies on

as the basis for that suspicion or belief?

3. Was his belief in the existence of these circumstances based on

reasonable grounds?

4. Did these circumstances constitute reasonable grounds for the

requisite suspicion or belief?

The Learned Judge opined further that the first two questions are

subjective and the second two are objective. If the answer to any one of

these grounds is no, then there would be an absence of reasonable and

probable cause for arrest.

[80] The evidence adduced before me reveals that the police officers, based on

the report, honestly suspected that an arrestable offence had been

committed. This belief entitled them to conduct an investigation into the

circumstances surrounding the loss of the phone. On the facts of this

case that investigation should have included:

i. Taking a statement from Ms. Small (which they did);

ii. Ascertaining from Ms. Small the persons who would have access to

her office where the phone was and those persons who would not

have had that access;

iii. Ascertaining how many persons were at work that day and how

many had left since the phone was discovered missing/report had

been made;

iv. What efforts, if any, had been made to locate the phone;

v. Very importantly, where the Claimant was for most of the day

including the period when the phone went missing. This was

particularly important, given the fact that her department was

located in an area that was separate from Ms. Small’s, that

another staff member was always with her, and that from 4:15 to

24

5:30 pm she was in the presence of other staff counting and

verifying the cash at the bank.

[81] The above exercise was important in order to eliminate or identify

suspects as a preliminary step on this investigation. This was not done.

Indeed, the evidence of the Second Defendant reveals that their intention

upon entering the bank was to search persons present – this was the

only investigative measure that the officers planned to take. Having

conceded that the search of the Claimant was unlawful and

unconstitutional, it follows that the period of detention during which the

Claimant was searched cannot be justified.

[82] The period of detention during which the Third Defendant spent

interviewing Ms. Small was lawful since this was a necessary part of his

inquiry. This timeframe was not identified, nor was any note of this

interview produced in court. Given that the officers already had a report

from Ms. Small and no new information was added, I ascribe ten minutes

to this event.

[83] I hold that there were no objective circumstances to justify the belief that

the Claimant had committed an arrestable offence, neither were there

any reasonable grounds to support such a belief. Indeed, the evidence

points to the contrary that there were no grounds to justify the detention

of the Claimant beyond the time that Ms. Small was interviewed. Had the

police spent the time conducting a lawful investigation as suggested

above, I may have arrived at a different conclusion.

[84] I also hold that the Claimant is entitled to a declaration that the

detention of the Claimant contravened her rights:

i. To liberty and/or security of the person;

ii. The right not to be deprived thereof except by due process of law;

25

iii. To the protection of the law;

iv. Freedom of movement.

[85] The circumstances of the Claimant’s detention, though for a relatively

short period, entitled her to compensatory damages including vindicatory

damages. Like Ms. Small, the Claimant was a senior member of staff at

the bank – a Supervisor. She was humiliated during the period of

detention before her peers and juniors and in the presence of her

Manager.

[86] I take into account the fact that she could not work at the branch after

the incident, or attend supervisor’s meetings, no doubt as a result of this

mortifying experience. To add insult to injury, the entire train of events

was instigated by one of her colleagues, Ms. Small, who as I outlined

below, brought the police onto the premises for the express purpose of

searching the staff members present. Additionally, as I have found above,

the Manager of the First Defendant agreed with the actions of Ms. Small

and indeed invited the police onto the premises for the purpose of

searching the members of staff present. No doubt this betrayal by her

colleagues in exposing her to this detention and strip search would have

added to her trauma, anxiety, stress and embarrassment.

CONCLUSION

[87] I therefore order judgement for the Claimant against the Second, Third

and Fourth Defendants. I hold that her detention on 7th August 2007

between 6:25 pm to 7:15 pm was unlawful and a breach of her

constitutional rights and that she is entitled to damages including

aggravated damages therefor. I also hold that her strip search on the said

date amounted to a trespass and assault against her person also in

26

breach of her constitutional rights for which she is entitled to damages

including aggravated damages. I also hold that the Claimant is entitled to

vindicatory damages for breaches of her constitutional rights in the

circumstances as outlined herein.

[88] I therefore order that the Claimant be awarded:

i. General damages including aggravated damages for assault and

trespass to the person in the sum of $250,000.00;

ii. Vindicatory damages for breach of her constitutional rights as

outlined in the sum of $60,000.00;

iii. Damages for false imprisonment in the sum of $80,000.00.

iv. The Second to Fourth Defendants to pay the Claimant’s prescribed

on these awards.

Joan Charles

Judge