The Tribune

By LYNAIRE MUNNINGS

Tribune Staff Reporter

lmunnings@tribunemedia.net

A SUPREME Court judge has ruled that a Guyanese man was unlawfully detained for more than three months in 2006 under an invalid deportation order and in conditions that breached his constitutional rights, awarding him $75,000 in damages but rejecting his claims that his later arrest, prosecution and year-long imprisonment on bribery charges were unlawful.

Justice Loren Klein found that Feizal Khan was falsely imprisoned from January 12, 2006, to April 25, 2006, after police arrested him on suspicion of bribery but failed to charge him within a reasonable time, failed to bring him promptly before a court and continued to hold him without any valid legal authority.

The judge ruled that during this period, Mr Khan was first kept at the Central Police Station and later at Her Majesty’s Prison while authorities relied on a deportation order that had already been declared invalid in separate habeas corpus proceedings.

That earlier ruling, delivered by then Senior Justice Jon Isaacs, found that the deportation order did not comply with the Immigration Act because it failed to state when the deportation was to occur and therefore could not lawfully justify detention. Justice Isaacs had also ruled that if authorities intended to pursue bribery charges, Mr Khan could not be detained without the consent of the Attorney General under the Prevention of Bribery Act and without being brought before a court.

On April 25, 2006, a writ of habeas corpus was granted and Mr Khan was ordered released.

Justice Klein found that although police had reasonable grounds to arrest Mr Khan on January 12, 2006, the way he was detained afterward breached constitutional protections. The court awarded both compensatory and exemplary damages, bringing the total award to $75,000.

Interest will be applied at a rate of 6.25 percent from the date Mr Khan filed his action, which was later converted to a writ, up to the date of judgment, and will continue to accrue at the statutory rate until the sum is paid.

Mr Khan had sued the Commissioner of Police, the Director of Immigration, the Superintendent of Her Majesty’s Prisons and the Attorney General, alleging unlawful detention, malicious prosecution, inhuman and degrading treatment and constitutional breaches.

The court heard that Mr Khan entered The Bahamas in 2005 using a fraudulent passport under the name Umkan Roopnarine. He was arrested in December 2005 for possession of a forged document, pleaded guilty, was fined $1,000 and detained pending deportation before being removed from the country.

Police later investigated allegations that he was involved in a scheme to pay bribes to facilitate illegal entry into the United States through The Bahamas. When he returned to the country, he was arrested on January 12, 2006.

The court noted that the respondents later accepted that this first period of detention was unlawful. However, Justice Klein rejected Mr Khan’s argument that his re-arrest later on April 25, 2006, was also unlawful or barred by the habeas corpus ruling.

The judge explained that a habeas corpus order only determines whether a detention is lawful at that moment and does not prevent a person from being lawfully re-arrested once the legal defects have been corrected.

After his release, the Acting Attorney General gave the required permission to prosecute under the Prevention of Bribery Act. Mr Khan was re-arrested, formally charged on April 28, 2006, taken before the Magistrate’s Court and remanded to Her Majesty’s Prison to await trial.

He remained in custody until May 21, 2007, when he was acquitted of all charges. He was later handed over to immigration authorities and deported.

Justice Klein dismissed Mr Khan’s claim for malicious prosecution, finding that investigators and prosecutors acted on information they believed to be credible and that his acquittal alone did not show bad faith.

Several constitutional claims were also dismissed, with the court finding that some were misconceived and others could not proceed because adequate remedies already existed under common law.

Although Mr Khan succeeded in establishing unlawful detention for the first period, the judge ruled that he was not entitled to all of his legal costs because he failed in his claims relating to the second and longer period of detention and because the malicious prosecution claim lacked merit.

The court awarded Mr Khan 50 percent of his legal costs, to be taxed if not agreed. All other claims were dismissed.