Immigration Officer Norman Bastian v Claudia Edwards Bethel

On 13 December 2014, Claudia Bethel (deceased), a Jamaican national married to a Bahamian citizen, was arrested during a police raid despite possessing a copy of her spousal permit. She was subsequently detained at a police station and then at the Detention Center until 15 December 2014. On that day, senior immigration officer Norman Bastian took Bethel into his custody, purportedly to verify her address. However, Bethel alleged that Bastian took her to his home and sexually assaulted her. Bethel filed a lawsuit against Bastian, the Attorney General, Minister of Immigration, Director of Immigration, and Commissioner of Police for unlawful detention, assault, and constitutional rights violations. On 27 January 2023, the trial judge found that Bethel was unlawfully detained for 48 hours and 55 minutes and that Bastian had sexually assaulted her. However, the judge ruled that the government was not vicariously liable for Bastian's actions. Bethel's Estate now appeals on several grounds, including the judge's finding that the initial arrest and detention were lawful, failure to award damages for false imprisonment and vindicatory constitutional damages, rejection of the claim of inhuman and degrading treatment at the detention center, and the determination that the government was not vicariously liable for Bastian's actions. Bastian cross-appeals, arguing that the delay in delivering judgment prejudiced the decision against him, that the judge failed to make proper findings of fact due to trial delays, and that the judge inadequately assessed witness credibility, particularly Bethel's. On 9 April 2024 after hearing the parties, the Court reserved its decision.

Held: Mr. Bastian's appeal (SCCivAppeal. No. 34 of 2023) is unanimously dismissed in its entirety. Mrs. Bethel's appeal (SCCivAppeal. No. 40 of 2023) by majority ( Barnett, P dissenting) is allowed on grounds 1, 3 and 5. Grounds 2 and 4 are dismissed.

The learned judge's orders at paragraphs [193.2], [193.4] and [193.5] respectively of her written judgment handed down on 27 January 2023 in Supreme Court Suit No. 2015/CLE/gen/00245 are quashed. Mrs. Bethel's Supreme Court Suit (No: 2015/CLE/gen/00245) is remitted to the Supreme Court for Mrs. Bethel's damages to be urgently assessed by a Judge of the Supreme Court in accordance with the following general directions:

Mrs. Bethel is entitled to an award of common law damages to be paid by the Crown in connection with the Crown's liability for the following torts: (i) the unlawful arrest/false imprisonment which occurred throughout the entire period of her unlawful detention by the Crown commencing at 1:30 a.m. on 13 December 2014 until her release by senior immigration officer, Mr. Bastian, on 16 December 2014; and (ii) the assault and battery (i.e. sexual assaults) which Mrs. Bethel endured whilst falsely imprisoned by senior immigration officer, Mr. Bastian.

The assessment should be guided, inter alia, by the five heads of injury identified and discussed in Alseran & others v. Ministry of Defence [2019] Q.B. 125 (paras 876–880) for which common law damages (including aggravated damages) may be awarded for the torts of assault and false imprisonment. Regard must also be had to the Board's guidance in Douglas Ngumi v. The Attorney General of the Bahamas & Others [2023] UKPC 12.

A discrete award for aggravated damages is also to be made to Mrs. Bethel with due regard being given to the evidence of misery and distress which Mrs. Bethel suffered during the sexual assaults she endured at the hands of Mr. Bastian who obviously targeted her

Costs: Notwithstanding that Mrs. Bethel failed in her bid to obtain an increased award of damages and lost on grounds 2 and 4 of her appeal, the usual rule is that that costs shall follow the event. There is no reason to depart from this rule. Accordingly, the Respondents shall pay Mrs. Bethel's costs of the appeal to be taxed if not agreed. Mr. Bastian shall pay the Respondents' costs of his appeal, to be taxed if not agreed.

per Crane Scott, JA: In cases involving parallel claims for false imprisonment and breach of constitutional rights, where there is complete overlap between the tort and the constitutional breach, the appropriate remedy is an award of common law damages for false imprisonment rather than constitutional damages. The court may also award aggravated damages for sexual assault if there is sufficient evidence of injury to feelings and particular malice, even if the victim is deceased and unavailable to testify at the assessment stage.

The common law has always required that before a person can be lawfully arrested and deprived of his personal liberty, not only is the person making the arrest required have ‘reasonable cause to suspect’ the person of having committed a specific criminal offence; but where an arrest is being made without a warrant, the common law also requires the suspect to be informed of the offence for which he (or she) is being arrested. A general statement of arrest for “Immigration purposes” or for determining whether an offense has been committed is insufficient to justify a lawful arrest.

Mrs. Bethel is entitled to be compensated for her tortious injuries by way of an award of tortious damages on account of: (a) the false imprisonment she endured over the entire period of her unlawful detention commencing with her arrest by police at the Twilight Club on 13 December 2014 through 16 December 2014 when she was eventually released from Mr. Bastian's custody and control; and (b) the sexual assault (being the assault and battery) she endured on 15 and 16 December 2014 whilst unlawfully detained by Mr. Bastian.

The lower court's decision that Bastian was “on a frolic of his own” and not acting within the scope of his employment is quashed. Bethel is entitled to compensation for false imprisonment for the entire period of her unlawful detention, from her initial arrest through her release from the immigration officer's custody, as well as for the sexual assault she endured while detained by the officer.

The Crown is vicariously liable for the actions of a senior immigration officer Bastian who sexually assaulted Mrs. Bethel while ostensibly acting in the course of his employment. Vicarious liability as established as seen in Trustees of the Barry Congregation of Jehovah Witnesses v. BXB [2023] UKSC 15.

Alseran & Others v. Ministry of Defence [2019] Q.B. 1251

Christie v. Leachinsky [1947] A.C. 573

Douglas Ngumi v. The Attorney General of the Bahamas & Others [2023] UKPC 12

Lincoln Bain v. Zinnia Rolle SCCivAppeal No. 9 of 2022

Natwest Markets plc v Bilta (UK) Ltd (in liquidation) [2021] EWCA Civ 680

Ousman Bojang v. Attorney General & others SCCivApp. No. 139/2022

Polymers v Hepburn SCCiv App. No. 8 of 2021

Ramon Lop v Attorney General SCCiv 118 of 2022

Trustees of the Barry Congregation of Jehovah Witnesses v. BXB [2023] UKSC 15

per Evans, JA: The appellant Bethel was unlawfully detained from the time of her arrest to the time of her ultimate release. Consequently, she is entitled to be compensated for the entire period of her detention. It is insufficient to merely inform an individual that they are being arrested for a breach of the Immigration Act without specifying the contemplated offense. While the officer is not required to cite the specific provision of the Act, they should at least articulate the nature of the particular offense for which the arrest is being made. The learned Judge erred in not properly assessing the reason provided by Superintendent Curry for effecting the arrest. Furthermore, Curry failed to comply with the requirement of notifying Bethel of the reason for her arrest, thereby preventing her from being properly aware of the specific offense(s) for which she was being arrested. The Court is not convinced that she knew the reason for her arrest in the absence of a specific indication from the arresting officer.

In the present case, the learned Judge clearly found that the appellant was both falsely imprisoned and unlawfully detained. However, the awarded compensation only covered the unlawful detention under Article 19(4) of the Constitution. No reasons were provided as to why an award for false imprisonment was not made. The Court must be cautious not to duplicate awards in granting compensation in tort as well as granting constitutional relief. Considering the complete overlap of the claim for false imprisonment and the constitutional claim for wrongful detention, an award under the Constitution was not appropriate. The starting point should have been an award for false imprisonment. In the absence of an extra feature, there was no need to have recourse to the Constitution. Therefore, the constitutional award should be set aside and instead an order given that damages be assessed for false...