Peters v Marksman et Al

• Jurisdiction: St Vincent and the Grenadines
• Court: High Court (Saint Vincent)
• Judge: Mitchell, J.
• Judgment Date: 31 July 1997
• Neutral Citation: VC 1997 HC 25
• Docket Number: 246 of 1997
• Date: 31 July 1997

High Court

Mitchell, J.

246 of 1997

Peters

and

Marksman et al

Appearances:

V.I. Cuffy Esq. for the applicant.

D. Browne Solicitor-General and Mrs. J Jones-Morgan with him for the Superintendent of Prisons.

P. Campbell Esq for the Attorney-General.

Constitutional law - Constitutionality of the cat-o-nine tails — Fundamental rights and freedoms — Right not to be subjected to torture or inhuman or degrading punishment — Applicant was serving a term of 12 years imprisonment for manslaughter — Applicant assaulted a senior prison officer — Disciplinary charges were also brought against the applicant under Section 50 of the Prison Rules — Superintendent of Prisons found the applicant guilty of the disciplinary charges and ordered that he receive 10 strokes with a cat-o-nine tails and cellular confinement — Whether flogging with a cat-o-nine tails infringed the Constitution of St. Vincent and the Grenadines — Ruling that the execution of a purported sentence of whipping by 10 strokes of a cat-o-nine tails whip or instrument ordered by the Superintendent of Prisons was unconstitutional and unlawful in that it was done in contravention of the applicant's right not to be subjected to torture or to inhuman or degrading punishment or other such treatment guaranteed to him by Section 5 of the Constitution of St. Vincent and the Grenadines — Declaration that the whip or instrument known as the cat-o-nine tails is not an instrument which was legalized at the present time for the purpose of punishment of offenders against the criminal and/or penal law or the prison rules or regulations in St. Vincent and the Grenadines.

Mitchell, J.

1 This is a constitutional motion. It principally involves the question whether flogging with a Cat-o-nine tails infringes the Constitution of St Vincent and the Grenadines. It was brought by way of a motion filed in the registry of the East Caribbean Supreme Court at St Vincent and the Grenadines on 9 July 1997. The motion is supported by an Affidavit of VI Cuffy Esq. a barrister and solicitor sworn on the same day, with further affidavits of 14th July and 23rd July. The Affidavits were originally intended to be sworn by the applicant, but he was not permitted by the prison authorities to swear them. The Superintendent of Prisons has filed an Affidavit in Reply on 22 July. At the commencement of the hearing counsel for the respondents took a preliminary point as to whether the application had been authorised by the applicant. The applicant had signed an affidavit on 18 July which was exhibited with the affidavit of the respondent Superintendent of Prisons to the effect that he had not authorised his solicitor to file these proceedings on his behalf, and that many of the allegations in the Affidavit of Mr. Cuffy were not true. At that point in the proceedings the court called forward, and questioned the applicant, who confirmed that he approved of and had authorised the application. He had, he said, signed the repudiating Affidavit “for reasons” that he did not go into. I was satisfied that the application was properly before the court, and ordered that argument on the matter should proceed.

THE APPLICATION

2 The following reliefs are sought in the motion:

1

A declaration that the execution of a purported sentence of whipping by 10 strokes of a Cat-o-nine tails whip or instrument on the applicant ordered by Superintendent of Prisons, Bernard Marksman, on August 26, 1996 was unconstitutional and unlawful in that it was done in contravention of the applicant's right not to be subjected to torture or to inhuman or degrading punishment or other treating guaranteed to him by section 5 of the Constitution of St Vincent and the Grenadines, 1979. 2. A declaration that the Superintendent of Prisons acted without lawful authority by ordering that corporal punishment be administered to the person of the applicant on August 26 1996 for what was alleged to have been breaches of Prisons Rules s. 51 (a), (d), (f), and (s) of Booklet 1 of Cap 281 of the Laws of St. Vincent and the Grenadines. 3. A declaration that cellular confinement of the applicant since August 26 1996 and continuing to the present time without break and ordered by the Superintendent of Prisons amounts to inhuman or degrading punishment which the applicant is guaranteed not to be subjected to by section 5 of the Constitution of St Vincent and the Grenadines. 4. A declaration that the applicant having been kept in iron-clad foot leggings and handcuffs from August 26 1996 until the month of February 1997 continuously and with which he had to sleep and eat so bound and only relieved of these shackles when he was allowed a bath amounted to torture or to inhuman or degrading punishment contrary to sections 5 of the Constitution of St Vincent and the Grenadines. 5. A declaration that the whip or instrument known and referred to as the “Cat-o-nine tails” is not an instrument which is legalized at the present time or at the time of August 26 1996 in St Vincent and the Grenadines for the purpose of punishment of offenders against the criminal and/or penal law or the prison rules or regulations in St Vincent and the Grenadines. 6. An order that the Superintendent of Prisons and/or the Attorney General of St Vincent and the Grenadines do pay compensation in damages to the applicant for the unlawful assault and beatings ordered by the Superintendent of Prisons, Bernard Marksman, upon him on August 26 1996 with a Cat-o-nine tail whip or instrument, and also in his unlawful holding in log-irons and hand-cuffs, and also in unlawful extended cellular confinement for the periods mentioned herein above respectively. 7. Alternatively, if the applicant proves to this court that an act of torture or other cruel inhuman or degrading treatment or punishment is well founded by or at the instigation and order of the Superintendent of prisons, Bernard Marksman, demand is made that the applicant be awarded redress and compensation as provided for under article 11 of the United National Declaration on the prevention of crime and the Treatment of Offenders Act, 1984, Cap 143 of the laws of St Vincent and the Grenadines Revised Edition 1990. 8. Such orders, writs, or directions as may be necessary or appropriate to secure redress by the applicant for contravention by the respondents or either of them of the Fundamental Rights and Freedoms guaranteed to him by section 5 of the Constitution of St Vincent and the Grenadines.

THE FACTS

3 The evidence in the various filed affidavits may be summarised as follows. The applicant Reynold Peters (hereinafter Mr. Peters) is 40 years old. He is serving a term of 12 years imprisonment for manslaughter, imposed on 12 June 1988, at the State Prison for men in Kingstown. On 26 August 1996 he is alleged to have assaulted Senior Prison Officer Linus Goodluck. To be specific, he is said to have hit him in the back of his head with a 3 foot length of 2” x 2” wood, rendering him unconscious for several hours. Even while Officer Goodluck was unconscious and being dragged from the prison, Mr. Peters pursued him with the length of wood attempting to strike him again. There is no suggestion that he succeeded in striking Officer Goodluck more than once. Nor is there any indication what sparked the assault. There is a charge of assault causing actual bodily harm still pending in the Magistrates Court relating to this incident. Mr. Peters is liable, if he is convicted of this charge, to be sentenced to a lengthy term of imprisonment to run either concurrently with or consecutive to the balance of the term is still serving.

4 On 26 August, the day of the incident and immediately after it had occurred, the applicant was, additionally, charged as a result of this incident with various contraventions of section 50 prison rules. The actual assault on Officer Goodluck did not form part of the disciplinary charges brought under the prison rules. That offence of assault is being dealt with by the police, not the prison authorities, and is still before the magistrate. The disciplinary charges brought against Mr. Peters under section 50 included, under paragraph (a) disobeying a lawful order; under paragraph (d) using abusive, insolent and threatening language to prison staff; under paragraph (k) being in possession of the piece of wood without authorization; and under paragraph (s) offending against good order and discipline.

5 The above charges under section 50 were heard by the Superintendent of Prisons on the same day as the incident. The Superintendent found Mr. Peters guilty of the above disciplinary charges. As punishment the applicant was ordered to receive 10 stokes with a Cat-o-nine tails, and to cellular confinement. He was placed lying on his stomach on a bench with iron stays to each of his legs to keep them in place. His hands were handcuffed. A hood was placed over his face. His back was then exposed. The flogging with 10 strokes of the Cat-o-nine tails was then carried out.

6 Following the execution of this physical punishment the applicant was placed in a single cell, where he was still kept at the time of the hearing of this application on 24 July 1997. He is confined to his cell continuously, allowed out only for a short period each day to shower. The evidence in the affidavit of the Superintendent is that this cellular confinement was for a twofold purpose, to aid recovery from the flogging, and to form part the punishment for the threat on the lives of officers, including that of the Superintendent. The applicant must have recovered from his injuries from the flogging by this time. He must, therefore, be still in solitary confinement for the other remaining reason, as punishment.

7 He was for some months kept in his single cell in restraint. That is, he was kept shackled in solitary confinement in a single cell. He had to eat sleep bound with foot-leggings and...