Senior Reporter
The Privy Council has reserved its decision on an appeal from a senior police officer and two men, who were detained over an alleged plot to kill government ministers during a State of Emergency (SoE) in 2011.
Five Law Lords of the United Kingdom-based appellate court said they needed time to consider the case after hearing submissions in the appeal brought by Ashmeed Mohammed, Dominic Pitilal and Assistant Commissioner of Police (ACP) Earl Elie, yesterday morning.
The outcome of the case is expected to set an important legal precedent for numerous challenges brought by detainees in subsequent SoEs, including the ongoing one, as it is the first to be considered by the country’s highest appellate court.
The trio was among a group of 17 men who were detained on preventive detention orders (PDOs) months after the SoE was declared in August 2011.
They were all released without being charged after the SoE ended in December that year.
Elie, who was a Sergeant (Sgt) when he was detained, received several promotions after his release. The most recent came in December last year, when he was made an ACP and assigned to the Tobago Division.
The trio filed constitutional motions claiming that they had been wrongfully arrested and detained.
They also challenged the validity of the SoE proclamation and associated regulations under which they were detained.
The High Court Judge assigned to preside over the three cases dismissed their challenge to the proclamation and the regulations.
However, the judge upheld an aspect of Elie’s case alleging that the officer who arrested him did not have the requisite suspicion under the regulations to do so.
Elie was awarded $100,000 in compensation for the seven-day period he was detained before he was placed on the PDO.
The judge also found that Elie and Pitilal had been denied access to their lawyers in breach of their constitutional right and awarded each of them $50,000 in compensation.
In January 2024, the Court of Appeal, led by then-Appellate Judge Allan Mendonca, upheld the judge’s finding in relation to the proclamation and regulations.
“In my judgment, the Regulations struck a fair balance between the rights of the Appellants and the general interest of the public and were a proportionate means of dealing 55 with the situation during the period of public emergency,” Justice Mendonca said.
Despite his findings on the issue, Justice Mendonca also found that Pitilal had been wrongfully arrested, like Elie and awarded him the same compensation.
He also found that the judge was wrong to have upheld Elie and Pitilal’s claim over access to their lawyers, as he stated that they were not adversely affected by their absence, as they were not eventually charged with any criminal offence.
Presenting submissions in the appeal at the UK’s Supreme Court Building in London, England, the trio’s lawyer, Ramesh Lawrence Maharaj, maintained that there were no lawful grounds for proclaiming the SoE in 2011.
Referencing statements made by Prime Minister Kamla Persad-Bissessar over potential threats to national security based on major seizures of drugs, arms, and ammunition at the time, Maharaj suggested that an SoE could not be utilised as a crime-fighting tool.
“Fighting crime does not meet the highest threshold unless the police are incapacitated,” Maharaj said.
He pointed out that the police and the courts were properly functioning at the time of that SoE.
“The entire population has to be at risk, not just a few individuals,” Maharaj said.
Responding to the submissions, King’s Counsel Peter Knox, who represented the State, called on the board to give deference to the consistent ruling of the local courts.
“There was no error in law made by the Court of Appeal in ruling that the 2011 State of Emergency was reasonably justifiable. There is no basis to interfere with the analysis of the local courts,” Knox said.
He also claimed that the Appeal Court was right to dismiss their claim over access to legal representation.
“They were not told they cannot see a lawyer at all, just at that time,” Knox said.
