Privy Council reserves decision on SoE detention of senior cop, two others

DEREK ACHONG

Se­nior Re­porter

[email protected]

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.