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Jaroo v. Attorney General of Trinidad and Tobago (Trinidad and Tobago)  UKPC 5 (4 February 2002)
Privy Council Appeal No. 54 of 2000
Thakur Persad Jaroo Appellant
The Attorney General of Trinidad and Tobago Respondent
THE COURT OF APPEAL OF TRINIDAD AND TOBAGO
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL,
Delivered the 4th February 2002
Present at the hearing:-
Lord Hope of Craighead
Lord Scott of Foscote
Sir Christopher Slade
Sir Andrew Leggatt
[Delivered by Lord Hope of Craighead]
- In October 1987 a motor car which the appellant had recently purchased in good faith was suspected by the licensing authorities of being a stolen vehicle. On their instructions he took the motor car to the police so that they could examine it and conduct such inquiries into its theft as they thought appropriate. After a suitable interval, having heard nothing from them, he asked the police to return the vehicle. Repeated requests to this effect met with no reply, so he took his case by way of a constitutional motion to the High Court. His attempts to obtain redress by this means have been singularly unsuccessful, as the vehicle has still not been returned to him. Now, fourteen years later, a dispute which ought to have been resolved long ago has been appealed as of right to the Judicial Committee of the Privy Council.
- The appellant’s case for the return of his vehicle was capable of being dealt with relatively simply in the ordinary courts in Trinidad and Tobago by means of processes which were available to him under the common law. It has been complicated by the fact that he chose to apply instead by way of an originating motion under section 14 of the Constitution of the Republic of Trinidad and Tobago 1976 to the High Court. The question whether it was appropriate for him to assert his constitutional rights in a case of this kind lies at the heart of this appeal.
- The appeal, which the appellant has brought before the Board under section 109 (1)(d) of the Constitution, is against an order of the Court of Appeal of Trinidad and Tobago (de la Bastide CJ, Ibrahim and Hosein JJA) dated 30 November 1998. The appellant’s case was that his vehicle had been unlawfully detained by the police. He sought an order for its return together with damages for a contravention of his rights under sections 4(a) and 4(b) of the Constitution. By its order of that date the Court of Appeal dismissed the appellant’s appeal from an order of Gopeesingh J dated 7 May 1990 dismissing his application by way of a constitutional motion in respect of the seizure and detention of his motor car.
- The motor car in question was a 1600 Galant motor vehicle registration number HAM 8086 which the appellant had purchased on 26 August 1987 for $12,500. It had been licensed by the previous owners as a hire car, and the appellant wished to use it only for his own private purposes. So he took it to the licensing office at San Fernando to be reclassified and registered in that category under section 18(1) of the Motor Vehicles and Road Traffic Act (Ch 48:50). Section 18(1) provides that applications of that kind must be dealt with as if the vehicle had not been previously registered. Section 13(1) provides that, before registering any motor vehicle, the automotive licensing officer must verify all the particulars entered on the application form and that he may, if he deems this necessary, send the vehicle to be examined by a motor vehicles inspector. Section 12(1) provides that no person shall, in any place, use or keep for use any motor vehicle not being exempted from registration under the Act, unless it is registered under the Act and has affixed thereto in the prescribed manner the prescribed registration mark.
- On 20 October 1987 a motor vehicles inspector attached to the licensing office, Ken Supersad, informed the appellant that he believed that the chassis number of the vehicle had been tampered with. He told him that the police would have to be called in to investigate. The vehicle remained at the licensing office compound until 30 October 1987. The appellant was then told that the vehicle would be released to him so that he could take it himself to the police for further inquiries to be made as there was reason to suspect that it was a stolen vehicle. He collected the vehicle from the licensing office and, as instructed, took it to the police criminal investigation division, stolen vehicle squad, Port of Spain, that afternoon. He handed over the keys and left the vehicle there in the custody of Police Sergeant Flemming.
- The appellant said in an affidavit which was filed in support of his application that he made numerous requests to the police thereafter, both written and oral, for the return of his motor car but without any success. No reason had been given to him by the police for its detention. He had not been charged by them with any offence. On 22 April 1988 his attorneys sent a letter on his behalf to the Commissioner of Police in which they requested him to return the vehicle within seven days, failing which legal proceedings would be commenced. No reply was received to this letter. On 19 May 1988 the appellant applied for constitutional relief by way of originating motion to the High Court. In support of his application he filed a copy of his certificate of ownership of the motor car. It recorded the fact that he had purchased it from Harold Bridgelal who was the person named on it as the previous owner of the vehicle.
- It was not until 28 June 1988 when the respondent filed an affidavit by Sergeant Flemming dated 27 June 1988 in opposition to his motion that the appellant received an explanation for the continued detention of the motor car. Sergeant Flemming said in his affidavit that when he examined the vehicle he found that the chassis number had been tampered with. He gave instructions for it to be taken to the forensic science centre to be examined. It was found that both the engine and the chassis numbers had been tampered with. The plate bearing the original chassis number had been removed and a new plate had been welded in its place. The original engine number had been erased and a new number had been stamped in place of the original. Paint examination of the vehicle showed that it was originally white and was subsequently painted grey. He said that the information which he had obtained indicated that it was a stolen vehicle and that he was conducting further inquiries to ascertain the identity of the true owner of it. His view was that the inquiries would lead to the apprehension of all those concerned in the theft and to charges being preferred against them. He said that it was necessary to preserve the vehicle as material evidence.
- The appellant did not seek to challenge any of the contents of this affidavit when his originating motion came before Gopeesingh J for hearing in the High Court. His case was simply that his constitutional rights under section 4(a) and section 4(b) had been infringed because he had been deprived of the enjoyment of his property without due process of law and because he had not been afforded protection under the law.
- Chapter 1 of the Constitution of the Republic of Trinidad and Tobago of 1 August 1976 provides:
“4. It is hereby recognised and declared that in Trinidad and Tobago there have existed and shall continue to exist, without discrimination by reason of race, origin, colour, religion or sex, the following fundamental human rights and freedoms, namely –
(a) the right of the individual to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except by due process of law;
(b) the right of the individual to equality before the law and the protection of the law …
5.(1) Except as is otherwise expressly provided in this Chapter and in section 54, no law may abrogate, abridge or infringe or authorise the abrogation, abridgement or infringement of any of the rights and freedoms hereinbefore recognised and declared. …
14.(1) For the removal of doubts it is hereby declared that if any person alleges that any of the provisions of this Chapter has been, is being, or is likely to be contravened in relation to him, then without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the High Court for redress by way of originating motion.
(2) The High Court shall have original jurisdiction –
(a) to hear and determine any application made by any person in pursuance of subsection (1); and
(b) to determine any question arising in the case of any person which is referred to it in pursuance of subsection (4), and may, subject to subsection (3), make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of, any of the provisions of this Chapter to the protection of which the person concerned is entitled.”
- In his judgment dated 4 May 1990 Gopeesingh J dealt first with the appellant’s case that his constitutional right under section 4(b) had been infringed because he was being denied protection under the law. He recalled that in Attorney General of Trinidad and Tobago v McLeod  1 WLR 522, 531 Lord Diplock said that the existence of a right of access to the courts of justice to declare that an Act of Parliament was invalid was sufficient to preserve the constitutional right to the protection of the law to which all individuals are entitled under section 4(b). As Lord Diplock put it at p 531B-C, access to a court of justice for that purpose is itself “the protection of the law” to which all individuals are entitled under section 4(b). Gopeesingh J said that, in the light of that authority, it seemed to him to be manifest from the very fact that the appellant had filed his motion that he had not been denied access to a court for the purpose of establishing the invalidity of the decisions and conduct of the licensing authority and the police.
- As to the argument relating to section 4(a), Gopeesingh J held that the appellant had failed to establish that he was entitled to possession of the property which had been seized from him as, standing the uncontradicted evidence that the chassis and engine numbers of the vehicle had been tampered with and the absence of an explanation for this, the certificate of ownership on which he relied was insufficient to prove that it was his property. He also said that it was reasonable for the authorities concerned, having discovered that the vehicle’s chassis number had been tampered with, to suspect that it was possibly stolen and that it was proper for them to seize it since the object of the exercise was to conduct further inquiries. He said that its continued detention was also lawful as it would afford evidence of the commission of a crime and that the respondent would not be able to preserve it as an exhibit for evidential purposes except by its retention.
- Their Lordships observe that nowhere in his judgment did the judge say that the claim for return of the vehicle ought to have been brought before the court by means of a common law action and not by way of a constitutional motion. The respondent does not seem to have raised any objection to the appellant’s decision to proceed by way of a constitutional motion at that stage.
- In the Court of Appeal the appellant maintained his argument that his constitutional right under section 4(b) had been infringed, in addition to the argument with reference to section 4(a). The court rejected the argument under section 4(b) and it was not renewed before the Board. Their Lordships are in full agreement with the Court of Appeal on this point. They consider, for the reasons given by Lord Diplock in Attorney General of Trinidad and Tobago v McLeod  1 WLR 522, 531B-C, that this point was unarguable. In Alleyne-Forte v Attorney General of Trinidad and Tobago  1 WLR 68 the appellant’s complaint was that his constitutional rights had been infringed when the police removed his motor car on the ground that it had been parked illegally. It was held that there was no question of an infringement of section 4(b) of the Constitution. This was because, as Lord Nicholls of Birkenhead said at p 72E, the car owner could have recourse to the courts to challenge the lawfulness of the removal of his car.
- The Court of Appeal also rejected the appellant’s argument under section 4(a). But Hosein JA, in a judgment with which de la Bastide CJ and Ibrahim JA agreed, raised the question for the first time whether the constitutional route which the appellant had chosen for his application was appropriate. The question which he posed was whether proceedings under the Constitution ought really to be invoked in matters where there is an obvious available recourse under the common law. He referred to Lord Diplock’s observation in Harrikissoon v Attorney General of Trinidad and Tobago  AC 265, 268 that the mere allegation of constitutional breach was insufficient to entitle the applicant to invoke the jurisdiction of the court under what is now section 14(1) of the Constitution if it was apparent that the allegation was frivolous or vexatious or an abuse of the process of the court as being made solely for the purpose of avoiding the necessity of applying in the normal way for the appropriate judicial remedy. He said that in his opinion the appellant’s motion was inescapably doomed to failure on the merits. But he also said that it connoted a resort to proceedings under the Constitution which lacked bona fides and was so clearly inappropriate as to constitute an abuse of process.
- Against this background the following issues arise in this appeal:
(a) what is the extent of the appellant’s constitutional right under section 4(a);
(b) whether his resort to a constitutional motion was an abuse of process;
(c) if not, whether his constitutional right under section 4(a) has been infringed.
The constitutional right
- It is necessary first, by way of background, to examine the right under section 4(a) of the Constitution on which the appellant seeks to rely in this case. Among the rights declared in section 4(a) are the fundamental right to “the enjoyment of property”, to which is attached the right not to be deprived thereof “except by due process of law”. In the present case two questions of interpretation require to be addressed. First, was the appellant in a position to claim, when he filed his constitutional motion, that he had a constitutional right to the enjoyment of the vehicle? Secondly, was he in a position to claim that he had been deprived of it other than by due process of law?
- As to the first question, Gopeesingh J said that, in the face of the evidence about the tampering with the chassis and engine numbers of the vehicle, the appellant was not in a position to claim that it was his property or that he was entitled to the possession of it. In the Court of Appeal Hosein JA took the same view. He said that the appellant had failed to show a good paper title to the vehicle, and that for this reason he was not in a position to found a claim for deprivation of property without due process. He also said that the police were unable to restore the vehicle to the appellant because to do so would place him in the position of one keeping for use a vehicle that was not qualified for registration under section 12 of the Motor Vehicles and Road Traffic Act.
- It is clear from these observations that, if the constitutional right to the enjoyment of property extends only to property of which the person is the owner or to which he can show a good title, the motion which the appellant filed in this case was bound to fail. Dr Ramsahoye SC accepted that there was evidence that the numbers had been tampered with and that there were reasonable grounds for believing that the vehicle was stolen property. But he maintained that it was sufficient for the purposes of the appellant’s constitutional right that the vehicle was in his possession when he was deprived of it. He also maintained that the return of the vehicle would not have been contrary to the provisions of the Motor Vehicles and Road Traffic Act as the appellant was entitled to use it according to its existing registration as a hire vehicle. In any event he was entitled to have it back so that he could dispose of it for such value as it might have to a purchaser.
- It is to be noted that the words used in section 4(a) are the “enjoyment of property” and “the right not to be deprived thereof” without due process. Two constitutional rights are recognised and declared by these words. One is the right to the enjoyment of property. The other is the right not to be deprived of property without due process. In neither case however is the constitutional right confined to the rights which flow from the ownership of property. It is not necessary for a person who wishes to assert his constitutional right to the enjoyment of property against the State to show that he is the owner of the property which he wishes to enjoy or to demonstrate that he has some other good title to it. It is sufficient for him to show that at the relevant time he was in possession of the property. The rights which are protected by section 4(a) include the right of possession, which vests a possessory title in the possessor, as well as the right of ownership.
- In Webb v Chief Constable of Merseyside Police  QB 427 the police sought to retain sums of money which had been seized on suspicion that they were the proceeds of drug trafficking. It was held that, even although it was established on balance of probabilities that the money was the proceeds of drug trafficking, this was no defence to the plaintiffs’ claims as they could rely on their right to possession as against the police. May LJ said at p 448:
“As to entitlement to possession, there is an instructive analysis in the decision of the Supreme Court of Victoria in Field v Sullivan  VLR 70. The essence of an extended passage in the judgment of Macfarlan J, at pp 84-87, is that if goods are in the possession of a person, on the face of it he has the right to that possession. His right to possession may be suspended or temporarily divested if the goods are seized by the police under lawful authority. If the police right to retain the goods comes to an end, the right to possession of the person from whom they were seized revives. In the absence of any evidence that anybody else is the true owner, once the police right of retention comes to an end, the person from whom they were compulsorily taken is entitled to possession.”
- In Costello v Chief Constable of Derbyshire Constabulary  1 WLR 1437, which was concerned with facts not dissimilar to those in this case, the police seized a motor car which they believed was stolen and retained it as its owner was unknown. The person from whom it had been taken raised an action against the Chief Constable for delivery up and damages for unlawful detention of the car. It was held by the Court of Appeal that, save so far as legislation otherwise provided, possession, whether obtained lawfully or not, vested in the possessor a possessory title which was good against the world save anyone setting up or claiming under a better title and that, although he at all times knew that the car was stolen, the claimant was entitled to an order for its delivery and to damages. Lightman J, with whom Keene and Robert Walker LJJ agreed, said at p 1450D that possession is entitled to the same legal protection whether or not it has been obtained lawfully or by theft or by other unlawful means. The decision in Webb v Chief Constable of Merseyside Police  QB 427 was followed and applied.
- The appellant asserted in his constitutional motion that he was being deprived of the use and enjoyment of “his” motor car, and he claimed in his affidavit that he was the owner of it. But, as the judgment of Macfarlan J in Field v Sullivan indicates, it was sufficient for the purpose of his constitutional right that it was in his possession when it was taken from him by the police. It is the right to possession, not the right of ownership only, that is protected by section 4(a). The fact that the vehicle was in his possession when it was taken from him is not in dispute. The fact that he handed it over to the police for further inquiries did not deprive him of his possessory title to the vehicle. In this situation their Lordships consider that the right in section 4(a) on which the appellant founds is in principle a right that he was entitled to assert in relation to the motor car.
- As for the meaning of the expression “due process”, in Boodram v Attorney General of Trinidad and Tobago  AC 842, 854 Lord Mustill said that it had two elements which were relevant to that case, where the appellant was asserting his constitutional right to a fair trial. First, there was the fairness of the trial itself. Secondly, there was the availability of the mechanisms which enable the trial court to protect the fairness of the trial from invasion by outside influences. In the present context, a broader meaning is appropriate. Here too it has two aspects. First, there is the right to protection against the abuse of power. Secondly, there is the requirement that when powers are exercised by the State against the individual they must be exercised lawfully and not arbitrarily.
- In their dissenting judgment in Thomas v Baptiste  2 AC 1; Lord Goff of Chieveley and Lord Hobhouse of Woodborough explained at p 32 that the phrase “due process of law” was derived from the Magna Carta. They pointed out that it came to be used in English law as a synonym for “law of the land”, and that these two phrases were treated by Coke in his Institutes (1628), Pt II, vol 1 as interchangeable. They added these observations at pp 32-33:
“It is the law of the land which gives the concept of due process its broader meaning – for example, the principles of natural justice, burden of proof etc (Holden v Hardy (1898) 169 US 366) – and shows that it does not necessarily preclude reference in cross-examination to previous convictions: Adamson v California (1947) 332 US 46. This approach of the courts of the United States is fully consistent with the approach adopted by the Constitution of the Republic and those of other Caribbean countries. The due process of law provision fulfils the basic function of preventing the arbitrary exercise of executive power and places the exercise of that power under the control of the judicature … The authorities show that the requirement is that rights and liabilities, criminal and civil, be determined in accordance with the law of the land as a matter of both substance and procedure.”
- The police have extensive powers in relation to the seizure and detention of property. But enshrined in the requirement of due process is a declaration of the fundamental guarantee afforded under the constitution to each and every individual that the powers of the police must be exercised lawfully and not arbitrarily. They exist to protect the interests of society, but their exercise must respect the rights of the individual. Where these interests come into conflict the question is ultimately one of balance, to be determined according to the common law of Trinidad and Tobago. As Lord Nicholls of Birkenhead put it in Alleyne-Forte v Attorney General of Trinidad and Tobago  1 WLR 68, 71-72:
“The right of property recognised in section 4(a) calls for a balancing exercise. A court investigating an alleged infringement of this right is concerned to see whether in the particular case a fair balance was struck between the requirements of the general interest of the community and the requirements of the protection of the fundamental rights of the individual.”
- In Ghani v Jones  1 QB 693, 708 Lord Denning MR said that the freedom of the individual, whose privacy and possessions were not to be invaded except for the most compelling reasons, had to be balanced against the interests of society at large in finding out wrongdoers and repressing crime. He then set out at p 708-709 the following propositions which explain where the balance is to be struck:
“Balancing these interests, I should have thought that, in order to justify the taking of an article when no man has been arrested or charged, these requisites must be satisfied:
First: The police officers must have reasonable grounds for believing that a serious offence has been committed – so serious that it is of the first importance that the offenders should be caught and brought to justice.
Second: The police officers must have reasonable grounds for believing that the article in question is either the fruit of the crime (as in the case of stolen goods) or is the instrument by which the crime was committed (as in the case of the axe used by the murderer) or is material evidence to prove the commission of the crime (as in the case of the car used by a bank raider or the saucer used by a train robber).
Third: The police must have reasonable grounds to believe that the person in possession of it has himself committed the crime, or is implicated in it, or is accessory to it, or at any rate his refusal must be quite unreasonable.
Fourth: The police must not keep the article, nor prevent its removal, for any longer than is reasonably necessary to complete their investigations or preserve it for evidence. If a copy will suffice, it should be made and the original returned. As soon as the case is over, or it is decided not to go on with it, the article should be returned.
Finally: The lawfulness of the conduct of the police must be judged at the time, and not by what happens afterwards.”
- Their Lordships consider that these observations explain what is meant, in the circumstances of this case, by the constitutional guarantee of due process. It means that the following requisites had to be satisfied by the police in order to justify their continued detention of the motor car. First, they must have had reasonable grounds when they insisted on detaining it for believing that it was a stolen vehicle. Second, they had to be in a position to show that its continued detention was reasonably necessary to complete their investigations or to preserve it for evidence. As Roskill LJ said in Malone v Metropolitan Police Commissioner  QB 49, 70, there is no general power in the police, when they have lawfully seized property which is thereafter not the subject of any charge and is clearly shown not to have been stolen, to retain that property as against the person entitled to possession of it against some uncertain future contingency. As he put it, the police who wish to continue to detain the property must be able to justify their retention of it upon some ground which is clearly ascertainable.
- Dr Ramsahoye did not dispute the fact that, as there was evidence that the chassis number and engine number had been tampered with, the police had reasonable grounds at the outset for suspecting that the vehicle was a stolen vehicle. The point which he wished to assert against the State was directed to the situation as it was in May 1988 when the constitutional motion was enrolled. He said that, as matters stood at that date, the police no longer had any grounds for continuing to detain the vehicle. Their Lordships consider that the question whether the detention of the vehicle at that date was lawful and not arbitrary is an issue which falls within the “due process” provision in section 4(a).
Abuse of Process
- Nevertheless, it has been made clear more than once by their Lordships’ Board that the right to apply to the High Court which section 14(1) of the Constitution provides should be exercised only in exceptional circumstances where there is a parallel remedy. In Harrikissoon v Attorney General of Trinidad and Tobago  AC 265, 268, Lord Diplock said with reference to the provisions in the Trinidad and Tobago (Constitution) Order in Council 1962:
“The notion that whenever there is a failure by an organ of government or a public authority or public officer to comply with the law this necessarily entails the contravention of some human right or fundamental freedom guaranteed to individuals by Chapter I of the Constitution is fallacious. The right to apply to the High Court under section 6 of the Constitution for redress when any human right or fundamental freedom is or is likely to be contravened, is an important safeguard of those rights and freedoms; but its value will be diminished if it is allowed to be misused as a general substitute for the normal procedures for invoking judicial control of administrative action. In an originating application to the High Court under section 6(1), the mere allegation that a human right or fundamental freedom of the applicant has been or is likely to be contravened is not of itself sufficient to entitle the applicant to invoke the jurisdiction of the court under the subsection if it is apparent that the allegation is frivolous or vexatious or an abuse of the process of the court as being made solely for the purpose of avoiding the necessity of applying in the normal way for the appropriate judicial remedy for unlawful administrative action which involves no contravention of any human right or fundamental freedom.”
- Lord Diplock repeated his warning against abuse of the constitutional motion in the context of criminal cases where there was a parallel remedy in Chokolingo v Attorney General of Trinidad and Tobago  1 WLR 106, 111-112: see also his observations in Maharaj v Attorney General of Trinidad and Tobago (No 2)  AC 385 399-400 and Attorney General of Trinidad and Tobago v McLeod  1 WLR 522, 530. The same point was made recently in Hinds v The Attorney General  UKPC 56, where Lord Bingham of Cornhill said in paragraph 24 that Lord Diplock’s salutary warning remains pertinent.
- For the reasons which their Lordships have just indicated, the appellant may have had sound reasons at the outset for thinking that his constitutional rights were being infringed by the police. This is because they were continuing to detain the vehicle which he had handed over to them voluntarily without giving any reasons for doing so, and because they had declined to answer his requests for it to be returned to him. All the signs were that they were abusing their common law powers in a manner which was no longer lawful and which could properly be described as arbitrary. Section 14(1) of the Constitution declares that, without prejudice to any other action with respect to the same matter which is lawfully available, a person may apply to the High Court for redress by originating motion in such circumstances. This procedure enables the person who seeks a quick judicial remedy to avoid the delay and expense which a trial of the case by means of an ordinary civil action will involve. As the appellant had received no reply to his solicitor’s letter of 22 April 1988, their Lordships are disposed to think that he could not reasonably have been criticised at the outset for regarding the constitutional route as the best way to make rapid progress in his efforts to obtain the return of the motor car.
- There is no doubt however that a parallel remedy was available to the appellant to enable him to enforce his right to the return of the vehicle. As the Court of Appeal observed, the appropriate remedy for him to pursue at common law was an action for delivery in detinue. The question which then arises is this. Was the Court of Appeal right to hold that it was clearly inappropriate for him to proceed by way of an originating motion under section 14(1) in the circumstances?
- The Court of Appeal said that if the appellant had examined the facts of the case more carefully it would have been apparent to him that no constitutional right could have been breached and that the facts of the case revealed various contraventions by him of the Motor Vehicles and Road Traffic Act. These observations appear to their Lordships to have been based on two misconceptions. These were, first, that it was necessary for the appellant to prove that he was the owner of the motor car and, secondly, that a breach of the statute would have been inevitable if the vehicle were to be delivered back to him. For the reasons which they have already given, their Lordships consider that the right to the enjoyment of property which is guaranteed by section 4(a) extends to the right to possession of property as well as to the rights which depend on ownership. They also consider that there were uses which the appellant could have made of the vehicle, such as by continuing to use it according to its existing registration as a hire car or by disposing of it for value to a purchaser, which would not have involved him in a breach of the Motor Vehicles and Road Traffic Act.
- But it is clear that there was a fundamental change from the position on which the appellant had been relying at the outset when in opposition to the motion the respondent filed the affidavit by Sergeant Flemming on 28 June 1988. It emerged for the first time in this affidavit that the police were asserting that they had good reason for wishing to continue to detain the vehicle. In paragraph 5 of his affidavit Sergeant Flemming said:
“The information I have obtained as a result of my inquiries indicates that this motor vehicle is in fact a stolen vehicle bearing a false chassis number of A161-U-001825. I am conducting further inquiries into the matter in order to ascertain, among other things, the identity of the true owner of the motor vehicle. I am of the view that the further inquiries now being undertaken will lead to the apprehension of all those concerned in the theft of the motor vehicle and in charges being preferred against them. The motor vehicle is the fruit of the crime and it is necessary to preserve it as material evidence.”
- The content of this affidavit showed that issues of fact had now emerged which required to be tested in evidence if the appellant was to mount an effective challenge to the right of the police to continue to detain the vehicle. It was now clear that the police were asserting that they had that right under the fourth principle described by Lord Denning MR in Ghani v Jones  1 QB 693, 709. They could not assert that right indefinitely, as the constitutional guarantee of due process requires that due diligence must be exercised. But so long as these statements remained unchallenged it would not have been open to the court to hold that they were acting unlawfully. If the case was ever suitable for a constitutional motion, it plainly was no longer so now.
- Their Lordships wish to emphasise that the originating motion procedure under section 14(1) is appropriate for use in cases where the facts are not in dispute and questions of law only are in issue. It is wholly unsuitable in cases which depend for their decision on the resolution of disputes as to fact. Disputes of that kind must be resolved by using the procedures which are available in the ordinary courts under the common law. As Lord Mustill indicated in Boodram v Attorney General of Trinidad and Tobago  AC 842, 854, in the context of a complaint that adverse publicity would prejudice the appellant’s right to a fair trial, the question whether the appellant’s complaint that the police were detaining his vehicle was well founded was a matter for decision and, if necessary, remedy by the use of the ordinary and well-established procedures which exist independently of the Constitution. But instead of amending his pleadings to enable him to pursue the common law remedy that had always been available to him, the appellant chose to adhere to what had now become an unsuitable and inappropriate procedure. Moreover, having decided to adhere to that procedure, he did not challenge the statements in Sergeant Flemming’s affidavit that further inquiries were being undertaken which would lead to the apprehension of those concerned in the theft of the vehicle and that it was necessary to preserve it as material evidence.
- Dr Ramsahoye said that it was sufficient for him to meet this challenge to show that there had been a breach of section 4(a). This was because it was provided by section 14(1) that his right to apply to the High Court by way of originating motion was without prejudice to any other action with respect to the same matter that is lawfully available. He said that Lord Diplock’s observations in Harrikissoon v Attorney General of Trinidad and Tobago  AC 265 at p 268 had been misunderstood by the Court of Appeal. He maintained that it was the making of a “mere allegation” of a contravention of a human right or fundamental freedom that was being criticised in that passage by Lord Diplock. He accepted that a mere allegation was not enough to entitle the applicant to proceed by way of an originating motion. But he said that, provided that he could establish that there had been a breach of the constitutional guarantee, the choice of remedy was a matter for the individual.
- Their Lordships do not accept this argument. The appropriateness or otherwise of the use of the procedure afforded by section 14(1) must be capable of being tested at the outset when the person applies by way of originating motion to the High Court. All the court has before it at that stage is the allegation. The answer to the question whether or not the allegation can be established lies in the future. The point to which Lord Diplock drew attention was that the value of the important and valuable safeguard that is provided by section 14(1) would be diminished if it were to be allowed to be used as a general substitute for the normal procedures in cases where those procedures are available. His warning of the need for vigilance would be deprived of much of its value if a decision as to whether resort to an originating motion was appropriate could not be made until the applicant had been afforded an opportunity to establish whether or not his human rights or fundamental freedoms had been breached.
- Their Lordships respectfully agree with the Court of Appeal that, before he resorts to this procedure, the applicant must consider the true nature of the right allegedly contravened. He must also consider whether, having regard to all the circumstances of the case, some other procedure either under the common law or pursuant to statute might not more conveniently be invoked. If another such procedure is available, resort to the procedure by way of originating motion will be inappropriate and it will be an abuse of the process to resort to it. If, as in this case, it becomes clear after the motion has been filed that the use of the procedure is no longer appropriate, steps should be taken without delay to withdraw the motion from the High Court as its continued use in such circumstances will also be an abuse.
- For these reasons their Lordships agree with Court of Appeal that for the appellant to proceed in this case by way of a constitutional motion was an abuse of process. It follows that the appellant is not entitled to a declaration in these proceedings that his constitutional rights have been infringed. The appeal must be dismissed.
- But the situation which this case has revealed is far from satisfactory. There are two aspects of it which suggest that the appellant has not been dealt with fairly by the police. In the first place, they omitted to give him any explanation as to the reasons why they were continuing to detain the vehicle which he had handed over to them voluntarily. It was not until 27 June 1988, five weeks after the constitutional motion had been filed, that an explanation for its continued detention was given by Sergeant Flemming in his affidavit. Secondly, fourteen years have now gone by since the appellant handed the vehicle over to them. It has still not been returned to him, nor has he or anyone else been charged with any offence in relation to it. Mr Dingemans was unable to say where the vehicle is now, if indeed it still exists.
- In his judgment of 4 May 1990 Gopeesingh J said that he was not to be taken as condoning the apparent lack of expedition by the police in having the necessary tests done to the vehicle and in ascertaining the true owner of it. He expressed his dismay at the lack of urgency in investigations of this nature. The Court of Appeal observed in its judgment of 30 November 1998 that, in the absence of appropriate criminal proceedings, there would of necessity arise a time beyond which it would be unreasonable to continue to detain the vehicle. Despite these observations, with which their Lordships respectfully agree, the appellant is still awaiting the return of his vehicle.
- Their Lordships consider that in these circumstances the conduct of the respondent cannot escape criticism. It is not disputed that the appellant was acting in good faith when he acquired the vehicle. He did all that was asked of him both by the police and by the licensing authorities. He had good reason to complain about the way in which the case was being dealt with by the police. The continued detention of the vehicle has not been explained, and after such a long period it is now inexplicable. Their Lordships consider that it would be unfair for the appellant to have to bear the costs of the proceedings in these circumstances. The orders which were made against him for costs in the High Court and in the Court of Appeal will be set aside. There will be no order as to costs in the courts below and in proceedings before their Lordships’ Board.
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