A Trip Down Memory Lane: Revisiting Findings of Facts by The Judicial Committee of the Privy Council03/01/18
Harcus Sinclair successfully acted as Privy Council agent for Jamal Cleare, the Appellant in Cleare v AG of the Bahamas & ors JCPC 2014/0070. The case concerned a final appeal of proceedings for damages arising from wrongful arrest and detention, malicious prosecution, and assault and battery, together with claims for breaches of his constitutional rights. It was heard before a five-judge panel at the Privy Council.
The Appellant sought an appeal of the dismissal of the assault and battery claim, as well as the breach of his constitutional rights not to be subjected to torture or inhuman or degrading treatment, on the basis that the trial Judge and Court of Appeal in the Bahamas had disregarded crucial expert evidence and had failed fully to assess the expert evidence corroborating the Appellant’s case before dismissing his oral evidence. The Appellant sought a direction from the Privy Council for a re-trial of these issues by the Supreme Court of the Bahamas.
Appellate Courts and Retrials
As a general rule, appellate courts do not interfere with concurrent findings of fact made by both a lower court and an appellate court, as confirmed in Devi v Roy  AC 508 and reiterated in Central Bank of Ecuador v Conticorp SA  UKPC 11. Lower courts have the task of examining evidence in chief and any relevant witnesses, and have the benefit of testing their evidence against the background of the material available and the inherent probabilities at a point in time closer to the events in question. Nevertheless, a higher court may interfere with prior findings of fact where it is satisfied that the trial judge had overlooked a cardinal fact, or an erroneous approach had been taken with regards to the evidence (Montgomery v Lanarkshire Health Board  UKSC 11). Therefore, the appellant was faced with something of a legal mountain to climb if he was to overturn the concurrent findings of fact in the court below.
Early in the morning in January 2007, Mr Cleare was arrested by police officers in connection with an alleged housebreaking. Later, however, having been escorted and brought to his home by the police to conduct a search, he was handcuffed behind his back and beaten by one of the officers. Following the conclusion of their search, Mr Cleare was then taken back to the police station for further questioning. Over the course of further questioning – despite having relayed to officers that he had no knowledge of the housebreaking – Mr Cleare had two plastic bags placed over his head which were left on until he lost consciousness. Mr Cleare made requests for medical attention when he came to, but was denied such attention and was instead left in his cell.
Officers at the station subjected Mr Cleare to a further round of questioning, who then signed a statement to his detriment. He was subsequently charged with housebreaking, stealing and receiving stolen goods. That matter went to trial in the Magistrates’ Court, and was dismissed in November 2009. Following the dismissal, Mr Cleare saw a number of specialists so as to ascertain the precise cause of pain in his neck and head which he believed was caused by his mistreatment at the hands of the police. He subsequently brought a civil claim on the basis of having suffered a fractured vertebra in his neck and hypoxic brain injury which continued to cause significant ongoing symptoms (e.g., sudden muscle contractions, seizures).
At first instance, his claim failed and was dismissed – with the exception of damages arising from three days of unlawful detention. On appeal, damages arising from his unlawful detention were increased, but the remaining claims were once again dismissed on the basis that there was “ample evidence” that the findings of the trial judge could be supported.
The Privy Council
Counsel for Mr Cleare made submissions that the Privy Council could intervene with concurrent findings of fact because there was clear, unequivocal and largely unchallenged expert evidence on the injuries sustained by him, whose objectivity could be established without reference to his evidence and did not depend on his credibility. It was put to the Board that the trial Judge had ignored or entirely misunderstood this expert evidence. Furthermore, submissions were made that the Court of Appeal had repeated and compounded these errors, and had not taken into account the relevance of the Appellant’s fresh symptoms – an approach which was manifestly wrong.
Considering the submissions before it, the Board allowed the appeal relating to the claims of assault on the following bases:
- The trial judge had been wrong to reject Mr Cleare’s evidence as untrue or fabricated without considering it in light of the medical evidence said to corroborate it;
- The trial judge had simply put to one side crucial and unchallenged evidence;
- Whilst Mr Cleare was an unimpressive witness, there was nevertheless a need to consider all the other relevant evidence – particularly unchallenged expert evidence – before a court could reject a witness’ evidence;
- The trial judge did not consider unrefuted expert evidence of substantial significance prior to rejection of the Appellant’s evidence. When he belatedly did consider it, he did not do so satisfactorily; and
- The Court of Appeal, in effect, repeated all these mistakes.
In allowing the appeal, the Board directed the matter to be reheard by another judge of the Supreme Court of the Bahamas.
Challenges to the findings of fact made by lower courts are a difficult issue for appellate courts, as the implications for widening or narrowing the threshold for revisiting a matter’s factual matrix could have an impact on all litigation that follows. Establishing the timeline of events and making findings of fact with clear reasoning is fundamental to decisions made by first-instance judges, who have the advantage of seeing the witnesses give their evidence. In Cleare, the decision of the Board has underscored the need for judges to consider all relevant evidence, including expert evidence, before they can move to reject any witness’ evidence – factual or expert.
Harcus Sinclair acts as Privy Council agent in a range of matters. Indeed, the firm acted in five appeals that were heard by the JCPC in the Michaelmas term 2017, in four of which it was successful with judgment still awaited in one appeal.
If you would like to find out more about the firm’s JCPC agency practice, please call us on +44 20 7242 9700. We would be more than happy to discuss your matter and your options.
Article written by Henry Hickman, Jennifer Cassidy and Marek Ejmont.