Commissioner of Police Darrin Simons.
HAMILTON, Bermuda--Commissioner of Police Darrin Simons should not be held “vicariously liable” for the actions of his officers but the state can be, a Court of Appeal panel found.
A civil judgment, published this month, will enable former magistrate Khamisi Tokunbo to continue to pursue a lawsuit against the attorney-general (AG) for his illegal arrest six years ago, after a judge previously struck out the claim.
Commissioner of police Simons will no longer be a respondent in the case, which seeks damages for unlawful arrest and detention.
Tokunbo’s lawyer Victoria Greening told “The Royal Gazette”: “It is a good first step that the Court of Appeal has finally settled the issue of whether members of the public can seek relief from the state for the unlawful actions of the police.
“Equally, there is some protection for police officers carrying out one of the most dangerous jobs to know that the state may be vicariously liable for their unlawful actions carried out in the execution of their duties.”
Tokunbo’s grievance dates back to January 2019, when he was arrested after a road-traffic accident in Paget. The retired magistrate was later charged with failure to provide a breath sample.
The case was dismissed in October 2019, and he was acquitted after Cayman Islands magistrate Valdis Foldats ruled that the officer who arrested him – police constable (PC) Colin Mill – acted unlawfully.
Tokunbo then launched his civil case against the police commissioner, the AG and PC Mill, arguing in his claim that the “vicariously unlawful and unconstitutional arbitrary or oppressive actions or conduct by a servant of the government” had damaged his reputation and caused him pain, suffering and loss of amenity.
Brian Myrie, representing the AG and the commissioner of police, told a 2023 hearing before Acting Puisne Judge John Riihiluoma that his clients had no involvement in the arrest or detention of Tokunbo, and therefore no liability.
The judge was persuaded, finding that, under Bermuda law, neither the AG nor the commissioner of police were vicariously liable for the actions of PC Mill. Justice Riihiluoma struck out the claims against both, while ruling that a common-law case against the constable should be allowed to continue.
Appeal court President Sir Christopher Clarke disagreed with the decision. He made an order to allow Tokunbo’s appeal against Justice Riihiluoma’s decision to strike out the claim against the AG – a post held by Kim Wilkerson at present – and said she must remain as a defendant.
He ruled that the AG should pay Tokunbo the costs of his appeal and of defending the strike out claims.
The ruling, which all three appeal justices agreed upon, stated that Greening did not pursue the issue regarding the commissioner of police after it was accepted that if the AG was vicariously liable for the acts of PC Mill within the scope of his employment, then Tokunbo had adequate means of redress.
Sir Christopher wrote: “I do not propose to make any final decision on potential vicarious liability of the commissioner. But it would seem to me that he is not to be held vicariously liable for the torts – or civil wrongs – of the police.”
Wrong assumptions
Two previous rulings of unlawful arrest against the commissioner of police were brought against him on a wrong assumption, according to the president of the Court of Appeal.
Sir Christopher Clarke, in his ruling about whether a civil action for unlawful arrest brought by Khamisi Tokunbo could proceed, referred to past cases involving plaintiffs Zarah Harper and Mahesh Reddy.
Radio station owner Harper successfully sued the commissioner for unlawful arrest in 2023, while Dr. Reddy did the same in 2017.
Sir Christopher wrote that those two cases “proceeded on an assumption, which I do not share, that vicarious liability rested with the commissioner”.
The appeal court president wrote that the true position was “police officers are servants or agents of the Crown and, as such, the Crown is vicariously liable for their wrongful acts or omissions”.
The appeal court president added: “He has the command of the police service and is responsible for its administration … But that does not, as it seems to me, render him vicariously liable for the acts of police officers any more than a general is responsible for the acts of his soldiers.”
Sir Christopher noted that the situation in Bermuda differed from Britain, where the “chief officer of police for a police area is liable in respect of torts committed by constables under his direction and control and provides for payment of any damages out of the police fund”.
Commissioner of Police Simons said on Wednesday: “I respect the decision of the Court of Appeal in this complex matter. Each new judgment we get contributes to the body of case law that will help determine future matters.”
Greening said Tokunbo was awaiting a trial date for his action against the AG and PC Mill. ~ The Royal Gazette ~
