……Man awarded damages for malicious prosecution
By FRANCIS JOSEPH
It is becoming common these days to see judgments handed down by the courts relating to malicious prosecution and false imprisonment. In all these cases, the Police Service do not pay the damages – it is the Attorney General.
In most of the cases, while the AG seeks to defend the claims, his office loses before it even starts.
In a judgment handed down last week, Justice Robin Mohammed awarded damages to a man who fought trumped up charges for 16 years to clear his name.
Hear the judge: “The instant case involves a longer prosecution (8 years). The damage to reputation and the injury to feelings are significantly greater. Taking all these factors into account, and including a substantial uplift for the aggravating factors, namely, the deliberate decision to lay the most serious charges possible based on no evidence, the unnecessary and humiliating nature of the DNA testing, and the eight-year ordeal, I assess general and aggravated damages.”
The judge ruled in favour of Devin Kern Glasgow.
The following is the award:
The AG shall pay to Glasgow:
[a] General Damages inclusive of Aggravated Damages in the sum of $180,000;
[b] Special Damages for loss of earnings in the sum of $98,739.12;
[c] Exemplary Damages in the sum of $75,000
*Interest on Damages as follows:
[a] Interest on General and Aggravated Damages at the rate of 2.5% per annum – $29,034.24;
[b] Interest on Special Damages at the rate of 1.5% per annum – $24,423.72;
[c] No interest allowed on Exemplary Damages.
Costs in the sum of $62,219.70
THE CASE
Devin Kern Glasgow brought an action for malicious prosecution against the Attorney General. The Claim arose from the laying of five (5) criminal charges against Glasgow on the 29th of December, 2009, by Police Constable John Farrell (now retired as a Sergeant).
These charges were: (i) Grievous sexual assault; (ii) Sexual intercourse with a woman without her consent; (iii) Buggery (iv) Breaking and entering a dwelling house and robbing the occupant of $28,000 in cash and valuables; and (v) Breaking and entering the same dwelling house and robbing another person of $14,500 in cash and valuables.
All charges were dismissed by Magistrate Cherril Anne Antoine on the 17th of January, 2018, after a protracted magisterial proceeding lasting over eight years.
Glasgow’s case, was that he was maliciously prosecuted without reasonable and probable cause. He claimed that in mid-December 2009, he purchased a Blackberry cellular phone from a man on Mucurapo Street, San Fernando, for $200. Days later, police came to his home. He voluntarily handed over the phone and agreed to accompany them to the Mon Repos Police Station to give a statement. He was never informed he was a suspect.
At the station, he was kept in a cell for a day and a half. He gave a statement and was taken to Victoria Laboratories for blood and DNA tests. He alleged that PC Farrell told him he was only supposed to be charged with possession of a stolen article, but that “someone higher than him instructed him to lay the said charges.”
The DNA tests, he said, proved he had no sexual engagement with either victim. He further claimed that his home was searched on the 29th of December, 2009, and nothing was found. He attended court on 35 occasions, incurred legal expenses of $16,500, and was dismissed from his employment at Team Industrial Service Inc. as a result of the charges.
THE AG’S CASE
The AG depended on the witness statement of Sergeant (Retired) John Farrell. The defence was that the agents and servants of the State lawfully arrested and detained Glasgow as there was reasonable and probable cause to do so. PC Farrell had an honest belief that Glasgow was guilty of the offences based on:
(a) a report of burglary and sexual assault at the home of a woman;
(b) the discovery of a stolen Blackberry cell phone belonging to the woman in Glasgow’s possession;
(c) the presence of a woman’s family photos on that phone;
(d) Glasgow’s failure to have his story of purchasing the phone verified by CCTV footage at King’s Recreation Club;
(e) Glasgow’s own statement.
The AG denied any malice on the part of PC Farrell.
THE ISSUES
The central issues for the court’s determination were:
1. Whether the AG, through its servant or agent PC Farrell, prosecuted Glasgow without reasonable and probable cause.
2. Was PC Farrell actuated by malice in instituting and/or continuing the prosecution?
3. If Glasgow succeeded on both counts, what was the appropriate quantum of damages?
