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WB 3 - Redress

Caribbean Commonwealth Human Rights Law (The University of the West Indies Cave
Hill Campus)

Studocu is not sponsored or endorsed by any college or university

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REDRESS

I. INTRODUCTION

Caribbean Constitutions contain a redress clause that makes provision for

the enforcement of the rights guaranteed in the chapter protecting
fundamental rights.

A person whose rights have been, are being, or are likely to be

contravened can apply to the High Court/Supreme Court for redress.

Redress is a means of obtaining a remedy, usually compensation

for wrong or loss.

II. WHO CAN SUE?

1. WHO IS A ‘PERSON’?

NATURAL PERSONS

Natural person are human beings.

 This was shown in Merson v Cartwright (2005) 67 WIR 17 (PC,

B’mas), where the civilian was arrested and the police had done
some serious wrongs to her such as not wanting her to change her
clothes, she couldn’t get to use the bathroom properly, etc. She
brought a constitutional claim to say her rights were breached and
she was subject to assault and battery. There was no question as to
whether she could bring a claim as the constitution conferred this
right upon her as she is ‘any person’ under the redress clause.

ARTIFICIAL PERSONS

Where the redress clause says ‘any person’ it does not only relate to
natural persons, but it also relates to artificial persons.

Artificial persons are entities that are recognized by the law, i.e.,
an entity holding legal rights and duties distinct from the
individuals who comprise it.

For example, a registered company is a person in the sense that it can sue
or be sued, as well hold property etc. in its own name.

 In AG v Antigua Times (1975) 21 WIR 560, it was a company

who brought the claim. One of the questions was whether or not the
company could bring a claim. The Privy Council in looking at this
looked at several factors as to why the company could have brought
the claim.
These included:

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i. They said the history of the constitution came from the

European Court of Human Rights so it applies to artificial
persons as well.

ii. They talked about the importance of corporate bodies in

the economic life of society citing the Interpretation Act
which said that ‘person’ included unnatural persons.

iii. The section that they were talking about does not
expressly exclude unnatural persons.

iv. There are some rights that do not apply to artificial

persons but there are some things which clearly apply to
artificial persons such as the right to property which can
apply to corporate bodies as well as freedom of
expression.

v. If some rights do not apply to companies then there will

be anomalies in the constitution because what will
happen, for example, if an individual person has a
newspaper and it becomes popular and they sell it to a
company what will happen? It was protected all the time
when the individual owned it but now that the company
has bought it then it would not have any rights? It would
create an anomaly in the constitution.

The court held that certain rights apply to artificial persons

(companies in this case) and freedom of expression was one such
right and thus the company could bring the claim.

 In Smith v LJ Williams (1980) 32 WIR 395, unlike in AG v

Antigua Times, the Trinidad and Tobago Interpretation Act
expressly excluded companies. The court found that
notwithstanding that the Interpretation Act did not include
companies, non-natural persons who include bodies corporate, were
entitled to protection under the fundamental rights. The court
suggested that while companies cannot enjoy all rights there are
some rights to which they are entitled. They also looked at the
common law and the common law included company as an
individual.

 In Collymore v AG [1969] UKPC 11, it was an unincorporated

body, a trade union, who was not really a company itself and the
court found that any of the members could have brought a claim.

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But note the suggestion (possibly incorrect) that some rights attach only
to
natural persons:

 Central Broadcasting Services Ltd v AG of Trinidad and

Tobago [2006] UKPC 35 was about a broadcasting license and the
company had applied for radio licensing but was not granted it.
Subsequently, long after their application, a party financier of the
government got a radio license. The company brought a claim
saying that their constitutional right was infringed. One of the rights
they alleged to have been infringed was their freedom of
religion/conscience. The Court of Appeal per Warner JA had found
that the freedom of religion must attach to a natural person. The
Privy Council said they agreed with the Court of Appeal that the
freedom of religion/conscience was irrelevant to an application by a
corporate entity.

 In Tomlinson v TVJ et al [2020] JMCA Civ 52, the court looked at

whether or not companies could have certain rights against
individuals.

2. LOCUS STANDI

Locus Standi is a right to appear in a court or before anybody on a given

question, or a right to be heard.

Only those persons, whether natural or artificial, who have legal

standing to bring a claim can bring one. The redress clause generally
does not permit an action by a person or a group in the name of the
collective interest. The applicant must show contravention of his rights.

Under the bills of rights, an applicant for redress must allege

contravention “in relation to him”. However, the cases do not reflect a
consistent position – on occasion the courts have interpreted this
requirement liberally.

As such, standing/ locus standi has been interpreted two ways in the
Commonwealth Caribbean:

I. THE RESTRICTIVE APPROACH

This approach has a test of whether or not the person is personally

affected while the generous approach is more of whether the person has
sufficient interest in the determination of the case.

This restrictive approach may prevent organizations who may not be

personally affected but the persons who they represent may be personally
affected but they themselves are not personally affected but have an
interest in the matter from bringing a claim.

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 In Gordon v Minister of Finance (1968) 12 WIR 416, a

nominated member of the House of Assembly was an elector in one
of the constituencies of St. Lucia and he was a taxpayer. He claimed
he was a person having a relevant interest in the matter under the
constitution. The court held that the onus was on him to establish,
to the satisfaction of the court, that he was a person who qualified
under the constitution to bring an application and the mere
statement that he had a relevant interest because he had certain
capacities as an elector in one of the constituencies was not enough
and he needed evidence. The court said he had to show that he was
personally affected and the evidence he produced was not enough
to satisfy the court that he had sufficient standing.

 In Caleb Orozco v The Attorney General of Belize CV 688 of

2010, the claimant who was a homosexual male was ruled to have
locus standi. In that case, the Court of Appeal of Belize (JA Awich, JA
Ducille and JA Campbell) upheld the earlier 2016 decision of the
Chief Justice of Belize finding the criminalization of homosexual
conduct to breach the prohibition on sex discrimination set out in
the Constitution of Belize. The Court also held that such
criminalization breached the right to freedom of expression enjoyed
by all LGBT persons and endorsed the earlier findings of the Chief
Justice that criminalization violated the rights to privacy, dignity and
equality before the law, all protected by the Constitution.

II. THE GENEROUS APPROACH

 In Benjamin v Minister of Information and Broadcasting

[2001] 1 WLR 1040, the government had suspended a call-in
program without prior discussion with the host. The radio station
was run by the government. The program host and two regular
listeners brought a constitutional action saying that their freedom of
expression was infringed. The court allowed it and the Privy Council
said even though there was no contractual right, it was an
infringement of those persons who wished to use the program to
express their views. The program host had no contract with the
government so what was his legal right? It was interpreted quite
generously to give the program host and the two callers standing to
bring a claim.

 In AG v Lawrence (1983) 31 WIR 176, the court stated that no

one but whose rights has been directly affected by law can raise the
question of constitutionality of law. Once Lawrence could show an
infringement related to him, he could have brought a claim and he
would have locus standi.

NB: With this generous approach the court considers whether the
person has sufficient interest.

3. PUBLIC INTEREST LITIGATION/REPRESENTATIVE ACTIONS

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This is where strangers or persons who cannot in any way be said

to be personally aggrieved by a personal decision have been
allowed to bring public wrongs to the attention of the court.

This happens quite often as there are often persons who are
personally affected who can’t afford to bring a claim and/or is
scared to bring a claim.

 In T&T Civil Rights Association v AG of T&T [2006] 3 LRC 294,

the Judicial Review Act was introduced in parliament. In
implementing this they removed the section which talked about
public interest litigation in applying to the court. The applicant
brought a constitutional claim saying that that was unconstitutional
because the rights of public litigants to access the courts were being
breached. Therefore, the removal of the section was a breach of the
protection of the law under the constitution. The court held that
there was a right for people to engage in public interest litigation
and thus the removal of that section was a breach of the law.

 In Maya Leaders Alliance v AG of Belize [2015] CCJ 15, the

claimants and another organization were allowed to bring an action
not only on their behalf but also on behalf of their villagers. The HC
held that the claimants, given their representative character of the
Maya as a group as well as the individual claimant, had sufficient
interest in the matter.

NB: These cases suggest that public interest litigation is possible,

however, they are both first instance judgments, so the issue still
is, in a sense, an open one.

NB: The redress clause in the Guyana bill of rights seems to be wider but it
still includes the requirement of “in relation to him”. Likewise, the
Jamaican charter expressly contemplates that a “public or civic
organization” can initiate actions for redress on behalf of individuals – but
the individual must have standing in the first place.

By contrast, other jurisdictions have embraced a broader view of the

redress clause. For example, in Zimbabwe a human rights organization
was allowed to bring an application for redress in relation to the death
penalty in Catholic Commission for Justice and Peace v A-G [1993]
2 LRC 279.

 In the recent case of McEwan v AG of Guyana [2018] CCJ 30(AJ)

the CCJ allowed an LGBT organization to bring a constitutional case
on the law. Other jurisdictions have embraced a broader view of the
redress clause.

 In Maurice Tomlinson v TVJ, CVM, PBCJ [2013] JMFC Full 5

concerned a homosexual advocate who wanted to have an ad run

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on TV promoting tolerance. They went to the TV stations stating that

they would pay for the ad to be run and the TV stations didn’t reply
and so the claimant brought a claim against the TV stations saying
that their constitutional right to freedom of expression was
breached. The TV stations argued that the claimant was just a tool
for the organization promoting tolerance. The court looked at
whether the claimant had locus standi and the court did not seem to
be too sure which approach they were using as they toggled
between the restrictive and generous approaches.

NB: It seems that in Jamaica, the test for standing would be that
of sufficient interest rather than personally affected.

The question also arises as to whether Representative Actions under Civil

Proceeding Rules which allow for public interest litigation can be used to
override the constitutional redress requirement for “in relation to him”.

 In Maya Leaders Alliance v AG of Belize [2015] CCJ 15, they

also used the concept of Civil Proceeding Rules. The court used this
to show that generous interpretation of the redress clause in relation
to them should be adopted because the Civil Proceeding Rules allow
it.

However there are cases such as Friday et al v. the Attorney General

of St. Vincent and the Grenadine HCA No 45 of 2007 Supreme
Court of St. Vincent and The Grenadines VC 2007 HC 45 which say
that you have to look at the redress clause and you can’t look at the Civil
Proceeding Rules to see who has locus standi to bring a constitutional
claim as the constitutional claim is to be pursuant to the redress clause
and the redress clause says “in relation to him” and they interpreted that
to mean personally aggrieved so therefore you have no standing unless
you are personally affected.

III. WHO CAN BE SUED? / THE STATE ACTION DOCTRINE

It has always been assumed that the central purpose of the bill of rights is
to protect individual rights and liberties against governmental
infringement. This is known as vertical application (or top-down: from the
government to the people).

By contrast it is much clearer that the South African constitution applies

horizontally, from citizen to citizen: note ss. 8 and 9 of the 1996
Constitution.

The leading case in the Caribbean is Maharaj (No. 2), where Lord
Diplock postulated that the protection afforded in the redress clause
was against contravention of those rights or freedoms by the
state or by some other public authority endowed by law with
coercive powers.

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In cases such as Maharaj v AG of Trinidad and Tobago (No. 2) [1978]

2 All ER 670, it seems to be that for you to bring a claim under the
constitution it must be against the state. Lord Diplock postulated that the
protection afforded in the redress clause was against contravention of
those rights or freedoms by the state or by some other public authority
endowed by law with coercive powers. The body must be exercising a
public function.

This test has been embraced by the courts around the Caribbean and
applied consistently, even in Belize (in the case of Wade v Roches BZ
2005 CA 5 where, as the judgment itself acknowledged, the
constitutional provision itself does not suggest that there is a requirement
of state action. Other constitutions, like Dominica’s, include
provisions where there is no reason to suppose that the ambit of
the provision is confined only to state action.

NB: The State Action Doctrine says that if you are bringing a
constitutional claim, it must be against the state, or a state entity
as opposed to bringing it against a private individual. This is the
vertical approach; the horizontal approach states that you can
bring a constitutional action against the state as well as against a
private individual.

 In Rambachan v Trinidad and Tobago Television Co. Ltd TT

1985 HC 8, the court had to consider whether TTT was a public
authority. TTT was the only TV station at that time, and it was fully
owned by the state although it was incorporated as a normal
company. A person who was part of the opposition wanted to have a
program on the show and it was not allowed so they brought an
action claiming that their freedom of expression was infringed. The
court had to consider whether the private company was a
public authority for the purpose of bringing a constitutional
action and they looked at the fact that it was the only TV
station at the time and freedom of expression was very
important and the media was a very important way of
transferring those views. The court found that TTT was a
public body for the purpose of bringing a constitutional
claim.

 In Millen v University Hospital (1986) 44 WIR 274 (CA, Ja), a

hospital was held as a public body for the purposes of a
constitutional action due to the minimal fees which it charged along
with certain other stipulations.

 In Ramlogan v Mayor, Alderman and Burgesses of San

Fernando TT 1985 HC 65, the borough had its own police, and it
managed its own affairs along with other matters. The court said
that it was a public body exercising public functions as what
parliament had done was delegate their powers to that particular
body so effectively it was a mini government.

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 In Ford Street Tourism Village v AG of Belize (2008) 74 WIR

133, the Minister of Tourism sat on the board of the organization
which was in charge. The court said that not because the minister
sat on the board meant that the organization was a public body for
the purpose of judicial review and the board was not amenable to
judicial review. The court found that it was more a contract of a
commercial nature and therefore was not amenable to judicial
review and constitutional scrutiny.

 In Wade v Roches BZ 2005 CA 5, there was a teacher at a private

school run by the church and the rules stated that if a teacher has a
child out of wedlock they would be fired. A teacher became
pregnant out of wedlock, and she brought a constitutional action.
The church said that this was a breach of contract, and they were a
private entity so she could not bring a claim against them. The court
said that because of the role that education plays in the society that
this Catholic School was a public body for the purpose of bringing a
constitutional action.

The Jamaica Charter provides that it binds, in addition to the

State, both “natural and juristic persons, if, and to the extent
that, it is applicable, taking account of the nature of the right and
the nature of any duty imposed by the right.” It seems to
expressly state that you can bring a constitutional action against
a private individual.

 In Maurice Tomlinson v TVJ, CVM, PBCJ [2013] JMFC Full 5,

two of the TV stations claimed that they were private entities and
thus he was unable to bring a constitutional claim against them. The
court in looking at whether or not they could bring a claim against a
private entity pointed to the provision in the Charter and said that it
clearly shows that the horizontal approach was applicable in
Jamaica. The court also looked at the preparatory work/the debates
in parliament leading up to that provision to show that it was clearly
intended to allow the person to being a claim against private
individuals.

IV. FORMS OF REDRESS

There are different types of redress that the court can give. The first case
to look at this was Maharaj v AG of Trinidad and Tobago (No. 2)
[1978] 2 All ER 670.

1. COMPENSATION

 In Maharaj v AG of Trinidad and Tobago (No. 2) [1978] 2 All

ER 670, the claimant sought to sue the State for its unlawful
action; he wanted damages. The court said that in this case,

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compensation was the only practical form of redress because he

was already released from prison. The court also said there is a
difference between duress under private law and duress under the
constitution. So, it is not a claim for damages in private law but a
claim for compensation in constitutional law for depravation of his
liberty and so it is only that which he will be compensated for and
that could include his loss of earnings and recompense for
inconvenience as well as the distress of the incarceration.

 In Demerieux v AG of Barbados (1982) 1 CCCBR 10, which

involved a professor who was arrested in a magistrate’s court in
Barbados, there was an altercation between her and the magistrate
which involved her turning her back, bending over and lifting her
skirt. The judge thought she was mentally unsound and committed
her to a psychiatric institution. She brought a claim against the
State. She was awarded a sum of money for her 3 days of
incarceration. She was awarded this for her distress.

 In Cole v AG of Barbados (1999) 58 WIR 59, the claimant was

granted compensation for embarrassment. In this case, the claimant
was arrested for failing to appear in court and when she was being
arrested, she decided to wet the police officer with a hose and
subsequently she was committed to a psychiatric institution. The
court said that in assessing the amount of compensation to be
awarded on the basis of what is fair and reasonable in the
circumstances, the court will properly take into account that before
the event that occurred the claimant had not previously been in
prison nor committed to a psychiatric hospital as well as take into
account her embarrassment, distress, inconvenience and
humiliation which may have arisen out of the event.

NB: Under the constitution, compensation takes into account a

wider range of factors than damages under private law.

 In Doris Fuller v AG of Jamaica (1998) 56 WIR 337 (CA Ja), the

court said that it does not award exemplary or aggravated damages
for claims under the constitution. In this case a man was arrested
and placed in a small cell with 18 other persons. The detainees were
making noise to get the attention of the guards but the guards
raised their radio to drown out the noise and when checks were
done 3 detainees were found dead. One of the deceased’s mothers
brought a claim on behalf of his estate against the State. The
question arose as to whether she could bring the claim because she
was not the person who suffered the harm. The court said that there
was no problem with her bringing the claim paying regard to the
fact that she represents the estate as a dead person could not bring
a claim. The second question was whether she could get exemplary
damages as the State was so disgusting in how they treated the
prisoners and as such the court should grant exemplary damages to
show the level of disgust. The court said unfortunately no;

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exemplary damages is something for private law and is not a public

law head of damage and as a result she was not entitled to this. The
court went on to state that both aggravated and exemplary
damages are confined to tortious liability and should not be
enforced in public law.

NB: Compensation under the constitution for redress does not

include aggravated and exemplary damages.

2. VINDICATORY DAMAGES

This is what you would get for a breach of your fundamental

rights and freedoms.

The early cases adopted a restrictive approach as to the kind of monetary

award which could be made under the clause. In Maharaj (No. 2), the
issue of exemplary damages was left open by the Privy Council. But all
that changed with AG of T&T v Ramanoop which was followed
thereafter in Merson v Cartwright and then a slew of other cases.

A-G of T&T v Ramanoop [2005] UKPC 15, is the locus classicus on

vindicatory damages.

 In A-G of T&T v Ramanoop [2005] UKPC 15, Sharma CJ at the

CA coined the concept of vindicatory damages and this was upheld
by the Privy Council. The court said when exercising this
constitutional jurisdiction the court is concerned to uphold or
vindicate the constitutional right. A declaration by the court will
articulate the fact of the violation but in most cases, more
will be required than words. If the person wronged has suffered
damage, the court can award him compensation. This award is
discretionary which shows that the courts will not always award you
compensation. An award of compensation will go some distance
towards vindicating the infringed constitutional right. How far it goes
will depend on the circumstances but in principle it may well not
suffice. The fact that the right violated was a constitutional right
adds an extra dimension and an additional award; not necessarily a
substantial one, may be needed to reflect the public outrage
emphasizing the importance of the constitutional right and the
gravity of the breach as well as to deter further breach. The
concepts of punitive and exemplary damages are best left alone in
this concept as the award of damages here is simply to vindicate the
person for the breach of their constitutional right.

The Privy Council has stated that where there is a breach of your
constitutional right the award of damages is to vindicate your
constitutional right.
 In Merson v Cartwright [2005] UKPC 38 (PC) the court stated
that you cannot get double compensation for a wrong that has been
done. The court stated that you should not get constitutional relief

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unless the circumstances of the claim made include some feature

which makes it appropriate in that court. The nature of the damages
awarded may be compensatory but should always be vindicatory.

NB: Circumstances where a declaration by the court will be

enough to suffice include where you have suffered no harm.

 In Dennis Graham v Public Service Commission HC

2727/2004, the court looked at whether or not to grant vindicatory
damages. The court reiterated the Ramanoop principle as well as
that in Merson that vindicatory damages are not always
granted and should only be granted where the
circumstances dictate that a declaration alone will not be
sufficient. In this case, the court was satisfied that no additional
damages was necessary as the constitutional breach was in the
nature of a procedural fairness wrong (he wasn’t given the right to
be heard) and there was no question of bad faith or deliberate
wrongdoing on behalf of the State and so those features meant that
they didn’t need to give the person damages. A declaration that
that was in breach of the constitutional right was all that was
needed.

CAUTION: If you are looking at vindicatory damages state that

you get compensation for vindicating your constitutional right. On
the authorities, however this is discretionary and not in all cases
you will get an award for vindicatory damages, as a declaration
may very well suffice.

3. MANDATORY ORDERS

These force the government to do or not to do something.

 In Jaundoo v AG of Guyana [1971] A.C. 972, the Privy Council

refused to accept the amplitude of the jurisdiction and stated that
they did not have jurisdictional power to grant an injunction against
the State. The reason was because they said the court cannot
coerce the sovereign. The court stated that they could not grant the
injunction as they did not have the power to compel the State to do
anything.

 In Gairy v AG of Grenada (No 2) [2001] UKPC 30, the claimant’s

property was taken away from him in the revolution and after the
revolution, compensation was ordered but not paid by the State.
Subsequently, his estate brought a claim seeking an order of
mandamus to compel the Minister of Finance to give them
compensation. They sought to make a distinction between the
minister and the state. The court had to decide whether or not they
could grant the order in light to the authority of Jaundoo. The court
said the Privy Council in Jaundoo did not prevent the court from
making injunctive relief against a minister as opposed to the State.

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They went on to state that constitutional relief is different from

normal relief that you would have been able to get from the court
against the state and therefore it does not fall under the Crown
Proceedings Act and so therefore the act can’t prevent it from
granting injunctive relief or mandamus that the claimant was
seeking.

 In Baird v PSC (2001) 63 WIR 134 the issue was the non-
payment of retirement pension and the court citing Gairy stated
that the court had the power to give effective relief under the
constitution and so that has to include coercive orders.

Once again, the early cases reveal the initial hesitance, or uncertainty, of
the courts as to what exactly was possible under the clause. But much of
that reluctance has dissipated, and over the last two decades courts have
made some innovative – in one case quite controversial – orders against
the Crown/State.

V. TECHNICALITIES OF JUDICIAL REVIEW

1. Procedural technicalities

Sometimes if you don’t bring your claim for redress through the right
method the courts may throw out the claim.

The redress clause, as you have seen, is potentially quite broad. But it
took a while for courts to appreciate this potential, even as the State
sought to resist the scope of its application. The very earliest cases
(Mbanefo; Jaundoo), for example, focused on how to bring actions under
the clauses, in the process never dealing with the issues on the merits.

In T&T there are specific provisions on how you are to bring constitutional
claims.

 The case of Durity v AG of T&T (2002) 60 WIR 448 further

illustrates other obstacles the government sought to impose in the
way of BR litigation. In this instance, it was a limitation period, which
they argued applied through the incorporation of the State Liability
and Proceedings Act in the Constitution. But the SLPA does not
directly limit actions against public authorities – it has this effect
because it incorporates in turn the Public Authorities Protection Act.
This was too roundabout for the Privy Council, which held that the
PAPA gave the State the same statutory defense of limitation
periods as if proceedings had taken place between two private
individuals, and none of that rationale could apply to a constitutional
action.

The term “is likely to be contravened‟ in the clause strongly suggests that
anticipatory review is possible. But in the Bahamas District of the
Methodist Church v Symmonette [2000] 5 LRC 196 case, the PC

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imposed limits on this provision, saying that only in exceptional cases

where there was a risk of irreversible damage would it review the
legislation before it had become enacted by Parliament.

2. THE PROVISO

In Barbados, it is stated that the courts cannot consider an action for

constitutional redress if there is another appropriate remedy that can be
sought.

The clause is saying if you can get a remedy in a normal private law action
why is it that you are coming to the constitutional court? The court says
that it will not provide a constitutional remedy where there is an
alternative remedy available and it would throw out such an action as this
may be seen as an abuse of process to come by a constitutional action as
opposed to a normal action as constitutional actions are fast tracked by
the courts. However, in some jurisdictions such as Belize, it is
discretionary because it provides that the Supreme Court may
decline to exercise its jurisdiction.

 In Kemrajh Harrikissoon v A-G (1979) 31 WIR 348, a teacher

was transferred from a school and the PSC did not follow the
procedure under the regulations but under the PSC regulations there
was appeals process that the claimant could have taken. Instead, he
filed a constitutional claim and the court said that he should have
went by the appeals process under the regulations instead of
bringing a constitutional action and refused to hear the case.

 In Chokolingo v A-G of T&T (1980) 32 WIR 354, the court said

that if there was an alternative remedy that you could have pursued
then bringing a constitutional action would be an abuse of process.

 In Jaroo v A-G of T&T (2002) 59 WIR 519, the applicant’s cars

were taken by the police. They were detained and the applicant
tried to get them back but those efforts proved futile. The applicant
then brought a constitutional action saying they were being
deprived of their property. The court said there was an alternative
remedy of detinue in private law and so they could not get a
constitutional remedy as only in exceptional cases would you be
able to bring a constitutional claim if there is an alternative remedy
otherwise it would be an abuse of process.

 In Scantlebury v A-G of Barbados (2009) 76 WIR 86, the court

found that there were no exceptional circumstances why the
claimant could not go by means of a private law action.

The cases clearly show that the courts have not approached the
proviso uniformly, though it does seem that the ban is more likely
to be invoked in criminal proceedings or in collateral proceedings

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where no constitutional breach is involved. But there are exceptions

to this, as Jaroo demonstrates.

3. REDRESS IN CRIMINAL PROCEEDINGS

The critical issue is how do courts approach evidence that has been
obtained in breach of a constitutional right. But there are also wider
ramifications where a breach of the constitution has occurred, including
the ultimate one as to the fairness of the trial as a whole (for which the
remedy would be a permanent stay of the proceedings).

In America where evidence is obtained unlawfully, the evidence is thrown

out in court however in the Caribbean even though the evidence is
unconstitutionally obtained in the criminal proceedings, it is admissible
and the only time, they will not admit it or stop the proceedings is if it is
an abuse of process. This is a balancing between your constitutional right
and the proceedings of a trial. Examples of where the rights of the
individual have been breached and there is an abuse of process
include where the police officers beat a confession out of the
accused, or they did not provide him with any food to get the
confession.

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