Judge calls for legislative reform: 'Let errant police pay for misconduct'

A HIGH Court judge has again urged legislative reform to ensure police officers who unlawfully arrest citizens are disciplined and held personally accountable for their actions by being made to pay court-awarded damages rather than borne by taxpayers.

Justice Frank Seepersad made the call on January 20, after ruling that a special reserve police officer acted maliciously and outside the rule of law in the 2019 arrest and prosecution of a Sangre Grande man.

The ruling arose from a claim filed by Jawanza Simmons of Guaico, a self-employed businessman, against the Attorney General and special reserve constable Cleon Smith over an encounter outside the Shops of Cunapo on November 20, 2019.

According to the evidence accepted by the court, Simmons was standing on the pavement smoking a cigarette and speaking with his brother at about 10.30 am when Smith approached and demanded that he drop the cigarette.

When Simmons asked why, the officer slapped the cigarette from his hand, demanded his name and address, and refused to say whether Simmons was suspected of committing an offence.

Simmons testified that Smith then pushed him against a wall, emptied his pockets and failed to identify himself or display a badge. He was told he was under arrest for failing to give identification. Simmons said he protested the arrest, maintaining he had done nothing wrong, but was handcuffed, placed in a marked police vehicle and taken toward the Sangre Grande Police Station.

On the way to the station, Simmons said he was punched in the stomach and verbally abused. He testified that Smith told the desk officer Simmons had been arrested for disorderly conduct. Simmons was held in a squalid cell for about 12 hours without being allowed to contact anyone before being charged with disorderly conduct and resisting arrest later that day.

Simmons was granted bail and released. He pleaded not guilty when he appeared before the magistrates’ court the next day. The matters were later dismissed after Smith failed to attend court.

At the High Court trial on January 20, Seepersad refused the state’s request for an adjournment after attorneys said they were unable to contact Smith. The judge said the court would not tolerate the non-appearance of a police officer who had an obligation to account for his actions, noting that the state had also failed to secure a witness statement from the officer and that he had not appeared before the magistrates’ court.

He suggested the state’s attorneys write to the commission since, he stressed, the

failure to cooperate with court directions was “intolerable and unacceptable.”

In his ruling, Seepersad said there was no dispute that Simmons had been charged and that the charges were dismissed. He said the court had the benefit of seeing and hearing Simmons and his brother testify, describing Simmons as “cool and collected” and a “witness of truth.”

The judge accepted Simmons’ account, finding no law mandated the officer’s direction regarding the cigarette and no reasonable basis to suspect Simmons of any illegality. Speaking in a loud tone, the judge said, did not amount to disorderly conduct, and there were no circumstances to justify a charge of resisting arrest.

“The conduct of the officer appears to be so arbitrary and so not rooted in the rule of law that the court is prepared to infer that the officer acted with malice when those charges were proffered,” Seepersad said. He found that Simmons was wrongly arrested, deprived of his liberty for 12 hours and prosecuted.

Seepersad also criticised the officer’s repeated failure to attend court, saying the conduct appeared to be part of a broader pattern. He warned against what he described as a frequent and unacceptable modus operandi of threatening arrest without reasonable or probable cause.

“There is an unacceptable level of lawlessness and criminality in this country, but that does not obviate the need for police to act within the law,” the judge said, adding that authority “must be exercised responsibly.”

“The frequent modus operandi to say ‘I will lock you up,’ where there is no reasonable or probable cause to effect the arrest, would not be tolerated by the court.

“There is an unacceptable level of lawlessness and criminality in this country, but that does not obviate the need for them to act responsibly.

“There is a saying that ‘fish often rots from the head,’ so for the level of lawlessness to be addressed, there has to be a level of cooperation between the police and the public.

“The police have a lot of work to do in terms of their internal reorganisation.

“You cannot lock up somebody because you get vexed with them.

“The court is again suggesting that the legislature make the relevant amendments to the law so that police officers who arrest people when there is no justifiable reason are disciplined or determine whether they should continue to serve.”

He added, “Damages should be recoverable from the police officer, whether by installations or if the officer's service is terminated, then accrued benefits and entitlement. But, taxpayers should not be made to bear the burden of the misconduct by officers.

“Until Parliament intervenes, police officers will continue unabated and unaccountable because they do not feel the brunt of the orders.”

The court ordered the state to pay Simmons $75,000 in compensatory damages and $25,000 in exemplary damages, along with costs.

He was represented by Elvin Cudjoe, while Keron Maynard represented the state.