Cabey v The Governor et Al

• Jurisdiction: Montserrat
• Court: High Court (Montserrat)
• Judge: George-Creque, J.
• Judgment Date: 21 October 2004
• Neutral Citation: MS 2004 HC 1
• Docket Number: MNIHCV 0004 of 2003
• Date: 21 October 2004

Cabey

and

The Governor et al

George-Creque, J.

MNIHCV 0004 of 2003

High Court

Judicial review - Application for declarations that first defendant's refusal to grant claimant permission to leave the territory was unreasonable, irrelevant, disproportionate, an abuse of the first defendant's discretion and in breach of applicant's constitutional right under s. 63 of the Constitution to protection from discrimination — Claimant Accountant General — Her computer was seized by police as part of a criminal investigation — Declarations granted that restraint imposed on freedom of claimant to leave the territory without permission of the first defendant and seizure of her computer were unconstitutional — Damages for loss of income and the value of her computer awarded to claimant.

Appearances:

Mr. Jean Kelsick for the claimant.

Mrs. Esco Henry Greer for the defendants.

George-Creque, J.

1 This action arises out of the suspension of the claimant from performing the duties of Accountant General of Montserrat by the first defendant by letter dated 2nd January, 2002 (sic 2003) and the seizing of a computer and files belonging to the claimant following a search in December, 2002 by the police of the claimant's home in connection with a criminal investigation into certain actions of the claimant.

THE BACKGROUND

2 The reliefs sought by the claimant arises against the following factual background which is not in dispute:

• (a) The claimant, an accountant by profession was appointed Accountant General of Montserrat on 1st November, 1995. She held and actively served in that post until 2nd January, 2003 when she was suspended from that post by letter signed by the Permanent Secretary, (“The PS' Letter”) who stated that she was so directed by the first defendant. In this letter the Permanent Secretary also advised the claimant that officers suspended from duty may not leave the island without the permission of the Governor.

• (b) Prior to this the claimant had been placed on leave as from 28th March, 2002, in connection with certain audit queries relating to the Emergency Department Fuel operations and monies collected in respect thereof by the Treasury Department.

• (c) On 16th December, 2002 the claimant's home was searched by the police under a lawfully issued search warrant. They seized the claimant's computer along with other items of related software and personal files and subsequently on 23rd December, the claimant was arrested and charged with certain criminal offences.

• (d) By letter dated 3rd February, 2003, the claimant, through her solicitors, wrote to the second defendant stating that a request had been made at the time of the arrest of the claimant in December, 2002, and again reiterating the request that the claimant be permitted to download her files from the computer seized so as to enable her to use same on another computer for work purposes and alluding to the fact that their failure to comply with this request was causing the claimant financial loss. He gave a deadline of 15th February, 2003 for the return of her documents.

• (e) The second defendant wrote to the 3rd named defendant, on 7th February, 2003 requesting the 3rd named defendant provide the claimant with copies of the files on her computer's hard drive.

• (f) Neither the request made by the claimant or the 2nd named defendant was complied with by the 3rd named defendant. This prompted an Application for leave to apply for judicial review and to seek relief under the Constitution and for certain interim reliefs, inter alia, liberty of the claimant to leave Montserrat as well as for the furnishing by the 3d named respondent to the applicant a copy of her computer records on a disc.

• (g) Edwards, J., on hearing the Application on 25th March, 2003, granted leave to the claimant to apply for judicial review and also gave permission to the claimant to travel abroad once she informed the police of her departure and return dates. It was also ordered that copies of the claimant's computer documents be made available to her, ON A DISC (emphasis added) by the 3rd named defendant by 18th April, 2003 with a further direction for the inclusion of a penal notice directed to the 3rd named defendant (“Edward, J.'s Order”). As will be seen later, as to what was meant by a “disc” in Edward, J.'s Order took on significance during subsequent events and during the proceedings.

• (h) On 17th April, 2003, Inspector Ezekiel Woodley, in purported compliance by the 3rd named defendant with the order of 25th March, 2003 went to the claimant's home and attempted to deliver to her a computer hard drive also referred to as a hard disc which was stated as being a duplicate copy of the claimant's hard drive of her seized computer. She refused to accept delivery thereof.

• (i) Claimant's computer was not returned to her until 14th August, 2003 when same was returned to her solicitors. The computer was immediately taken to the offices of Jimmy Lee a computer technician for inspection, testing and advice on the condition thereof. It was also inspected by one Sylvia White Gabriel who has some knowledge of computers and Mr. Denzil West, Director of Government Information Systems with expertise in computer science and programming

• (j) When the computer was seized the claimant says that the computer was in good working order but on its return by the police was found not to be in working order, This is disputed by the 3ro defendant. There is some conflict of opinions between the various computer experts as to the proper functioning of the computer upon its release to the claimant by the 3rd defendant.

THE RELIEFS CLAIMED

3 The claimant asks for the following reliefs:

• (1) A Declaration that the first defendant's refusal to grant the claimant permission to leave the Territory pursuant to section 41(4) of the Public Service Commission Regulations, 1980, (“the PSC Regulations”) is, at common law, unreasonable, irrational, disproportionate and an abuse of 1st defendant's discretion.

• (2) Further or alternatively, a Declaration that 1st defendant's refusal to grant the claimant permission to leave the Territory is in breach of her constitutional right under section 63 of the Constitution to protection from discrimination.

• (3) Further or alternatively, a Declaration that 1st defendant's refusal to grant claimant permission to leave the Territory is in breach of her constitutional right under section 62 of the Constitution to protection of freedom of movement.

• (4) Further or alternatively, a Declaration that 1st defendant's refusal to grant claimant permission to leave the Territory is in breach of the doctrine of separation of powers.

• (5) Compensation for loss of income resulting from the loss of use occasioned by the seizure of the computer files.

4 Leave was also granted to the claimant on 14th November to add the following reliefs

• (6) A Declaration that the seizure of claimant's computer data was in breach of her constitutional right under section 64 of the Constitution to protection from the unlawful deprivation of property.

• (7) Compensation for loss of claimant's computer, and

• (8) A Declaration that Regulation 41(4) of the PSC Regulations is ultra vires the Montserrat Constitution

5 At the time when this matter came on for hearing, Regulation 41(4) of the Public Service Commission Regulations was “deleted” by virtue of SR&O No. 72 of 2003 published on 22nd December, 2003. This renders a decision in respect of the relief set out at subparagraph (8) above unnecessary. Mr. Kelsick on behalf of the claimant however contends that his prayer set out at subparagraph (1) above is alive in so far as it affected the claimant as between the date of her suspension (2 January, 2003) to 25th March 2003, the date of the Court order granting her permission for leave to leave the Territory.

PERMISSION TO LEAVE THE TERRITORY

6 I propose to deal with the reliefs set out at subparagraphs 1 to 4 above inclusive together as the common thread running through these prayers is the refusal of the 1st defendant to grant permission to the claimant to leave the Territory. The Attorney General contends that claimant has failed to establish that 1st defendant at any time denied claimant permission to leave the Territory. Indeed it is not asserted by the claimant that any such request was made and refused by ‘any of the defendants. Further, she says it has not been shown that the PS’ Letter in which she referred to Regulation 41(4) of the PSC Regulations was done on the instructions of either of the defendants.

7 Counsel for the claimant's contention however, is that if Regulation 41(4) of the PSC Regulation was unconstitutional, as is to be concluded by its repeal, the very reference in the PS' Letter to Regulation 41(4), which could only mean that the claimant was not free to leave the Territory without permission of the 1st defendant, constituted a breach of her fundamental right under section 56 of the Constitution which protects against deprivation of personal liberty. It is to be noted that the claimant's case is being put on a somewhat different basis to the reliefs set out in the Motion. Counsel in his skeletal submissions however has urged upon the Court that the letter was tantamount to a curtailment of her liberty in that she was not free to leave the Territory and was also a contravention of her right to freedom of movement as protected under section 62 of the Constitution.

8 I am not persuaded that the PS' Letter amounted to an infringement of the claimant's personal liberty as guaranteed under section 56 of the Constitution There is no assertion that claimant was unlawfully arrested and or detained by virtue of Regulation 41(4) or the PS' Letter. The claimant, in paragraph 19 of her Affidavit of April 10th 2003, speaks of being arrested by the police on 23rd December, 2002 and later that evening being granted bail by...