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[2023] JMSC Civ 179
CLAIM NO. SU 2023 CV 01798
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN CIVIL DIVISION
Injunction — Application for the grant of an interlocutory injunction — Application for the grant of an interlocutory injunction made against the background of a constitutional claim challenging the legality of an inmate being held in solitary confinement — Whether there is a serious issue to be tried — Whether the application is frivolous and vexatious or amounts to an abuse of the process of the court
Natural justice — Due process — Inmate allegedly found in possession of a prohibited article — Inmate employed to his cell while investigations are pending — Whether inmate afforded the right to due process
Civil procedure — Amendment to statement of case — Amendment to statement of case prior to the first hearing of the fixed date claim form — Whether the amendment is properly made — Whether the permission of the court is required for the amendment to be made — Whether the amendment amounts to an abuse of the process of the court
Misjoinder — Misjoinder of parties — Whether the proper parties have been named to the application — The Judicature (Supreme Court) Act, section 49(h), The Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011, sections 16 and 19, The Corrections (Amendment) Act, 2021, sections 3, 5, 6, 7, 9, 35, 36 and 38A, The Correctional Institution (Adult Correctional Centre) Rules, 1991, rules 129 and 157, Civil Procedure Rules, 2002, as amended, rules 17.1(1)(a), 17.4, 19.2(1) and 19.2(2)
Mr Isat Buchanan, Ms Alessandra LaBeach and Mr Iqbal Cheverria for the Claimant/Applicant
Messrs. Louis Jean Hacker and Jenoure Simpson instructed by the Director of State Proceedings for the 1 st and 3 rd Defendants/Respondents
Mesdames Stephany Ebanks and Kimberlee Edwards for the 2 nd Defendant/Respondent
This matter raises important considerations in relation to the Claimant's Constitutional right to due process. The Claimant, Mr Adidja Palmer, asserts that his Constitutional right to due process was breached by certain actions on the part of the Department of Correctional Services, which affected him directly. He specifically asserts that he was subjected to solitary confinement, without a hearing, in contravention of section 16 of the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011 (“the Charter”), and section 36 of the Correctional Services Act.
These assertions are encapsulated in the Amended Fixed Date Claim Form, which was filed on 22 June 2023, by virtue of which Mr Palmer seeks the following Orders: -
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i. A Declaration that the Claimant's right to due process was breached by the Department of Correctional Services and the Superintendent of the Tower Street Adult Correctional Centre, in that they subjected him to solitary confinement, without a hearing, and contrary to section 16 of the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011 and section 36 of the Correctional Services Act.
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ii. An Order prohibiting the Department of Correctional Services and the Superintendent of the Tower Street Adult Correctional Centre and or their agent from enforcing the Order for solitary confinement, which was placed on the Claimant on 23 March 2023, due to those conditions being a breach of his Constitutional rights, of his status as being an inmate who has appealed against his conviction and sentence, and of section 45.2 of the Mandela Rules.
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iii. A Declaration that the Claimant's rights, as a second division inmate, was breached by the Department of Correctional Services, without reason and contrary to its rules.
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iv. Damages for breach of the Claimant's Constitutional rights.
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v. A Declaration that the Department of Correctional Services, as a public authority, has an obligation by virtue of sections 13(2) and 13(3)(h) of the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011, to exercise its functions to treat citizens of Jamaica equitably and humanely.
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vi. Such further Order, Declaration, Writ, Direction, and other relief the Court considers appropriate for enforcing or securing the enforcement of any of the provisions of the Constitution to the protection of which the Claimant, as the person concerned, is entitled.
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vii. Cost of this Claim to the Claimant to be agreed or taxed.
The Claim is brought on the bases that: -
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i. The fundamental rights guaranteed and acknowledged by the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011, are rights which existed from time immemorial. The acts and omissions of the Defendants and other servants or agents of the Government of Jamaica contravened the Common Law rights afforded to the Claimant.
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ii. These rights are fundamental rights which need to be respected by the Defendants and all State organs who are enjoined to take no actions which abrogate or infringe these basic rights.
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iii. These rights will be vindicated by granting the relief sought against the named Defendants.
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iv. As a result of these Constitutional breaches, the Claimant has suffered loss, injury, and damage.
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v. It is within the power of the Court to grant the relief sought.
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vi. There are no adequate means of redress for the alleged contravention available to the Claimant under any law.
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vii. It is equitable for the Court to grant the Orders as prayed.
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viii. As a result of the unlawful conduct, actions, and inactions of the servants or agents of the State, the Claimant has suffered breaches [sic] and contravention of his fundamental human, statutory and constitutional rights and has sustained injury, loss, and damage.
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ix. The Claimant requests that this Court enhances the respect for his inherent dignity as a person and a citizen of a free and democratic society as well as his Constitutional rights by granting the relief sought herein.
On 13 March 2014, Mr Palmer was convicted of the offence of Murder. He was sentenced to imprisonment for life at hard labour, to serve a minimum of thirty-five (35) years before becoming eligible for parole. He was incarcerated at the Tower Street Adult Correctional Facility and has been so incarcerated since 2 February 2021 to present, pending his appeal to His Majesty, the King of England.
The Tower Street Adult Correctional Centre is a maximum-security correctional institution where persons who are found guilty of particularly heinous crimes are housed for the duration of their sentences.
On 19 May 2023, at approximately 6:45 a.m., following a search of his person, Mr Palmer was found with an electronic communication device in the form of a mobile cellular phone, which is a prohibited article. 2 3 This device was confiscated from Mr Palmer.
Similarly, on 21 May 2023, at approximately 12:00 noon, following a search of his person, Mr Palmer was found with another electronic communication device, also in the form of a mobile cellular phone. 4 This device was also confiscated. 5
In light of these infractions, the high security risk involved, and the need for the maintenance of good order and discipline within the penal institution, the Superintendent of the Tower Street Adult Correctional Centre, Mr Leslie Campbell, avers that he decided to employ Mr Palmer to his cell. This was done with effect from 22 May 2023.
Additionally, Mr Campbell avers that the Department of Correctional Services does not engage in the practice of placing inmates in solitary confinement. Prior to doing so, Mr Campbell asserts, the principles of natural justice would be followed and a medical assessment would be carried out on the inmate. Any inmate who is placed in solitary confinement is fed the bare minimum diet of bread and water, through a hole, with further mandatory medical assessments done on the said inmate whilst he is in solitary confinement.
Conversely, an inmate who is employed to his cell has all the privileges of diet and access to the commissary. Such an inmate is allowed out of his cell and is
Mr Campbell further avers that Mr Palmer was employed to his cell, which contains bedding and a standing fan, 7 for twenty-three (23) hours per day, from 22 May 2023 until 30 May 2023, when a medical Order was issued requiring him [Mr Palmer] to be allowed out of his cell for one (1) hour, every two (2) hours. Mr Campbell maintains that Mr Palmer was always provided with medical care, in accordance with his requests. 8
On 31 May 2023, all restrictions were lifted and Mr Palmer returned to enjoying privileges as other inmates. 9 Mr Campbell avers that the investigation surrounding the possession of the prohibited articles is ongoing and that the appropriate action will be taken once that investigation is concluded. 10
For his part, Mr Palmer avers that he suffers from Graves' Disease with associated Atrial Fibrillation and Thyrotoxic Cardiomyopathy. He maintains that he has a history of Dyslipidaemia, 11 as a direct result of which he suffers from an
Mr Palmer contends that he was placed in solitary confinement without there being a hearing to determine his guilt. Mr Palmer also contends that he was not informed of the reason that he was placed in solitary confinement. He...
