Sheriff Y. v.

The District Magistrate of Port Louis

1989 MR 260
1989 SCJ 368

In the presence of:–

The Director of Public Prosecutions

R. AHNEE, Judge and V. BOOLELL*, Judge

13 October 1989

The applicant applied for and was refused bail on the 8th August 1989 by
the District Magistrate of Port Louis. In an application before us on 3 October
1989 we ordered that he be released on his furnishing sureties in the amount of
Rs 50,000. We also ordered that the applicant should report to the nearest
police station of his locality every Saturday at 9.00 a.m. and 6.30 p.m.

We are now setting out the reasons for our decision.

The circumstances leading to the arrest of the applicant are as follows.

On the 21st July 1989, one Jocelyn Selmour who, during the preceding week, had
been frequenting the headquarters of the Anti-Drug and Smuggling Unit (ADSU) at
Line Barracks Port Louis made a declaration to the effect that the applicant
had on the 28th December 1986 supplied him with five grams of heroin worth Rs
12,000.

Jocelyn Selmour himself had been convicted for possession of heroin and
had on 8th May 1987 been sentenced to undergo three years’ imprisonment. He was
released on 8th April, 1989. On 29th June, 1989, he was convicted for failing
to make monthly report and sentenced to undergo three weeks’ imprisonment with
hard labour.

Prior to the declaration made against him, the applicant had on four
occasions made declarations against Jocelyn Selmour between the 20th July and
23rd July 1989. The substance of the complaint of the applicant was that
Selmour was threatening to denounce him as a drug trafficker unless an amount
of Rs 150,000 was remitted to him. The nature of the declarations made by the
applicant was never checked by the ADSU Officers who presumably thought that
once a declaration of drug trafficking had been made, nothing else mattered any
more, except the arrest and detention of the suspect. In the present case,
asked by the Court whether he had enquired from Selmour why he had waited three
years before denouncing the applicant Inspector Fullee contended himself to
answer that it had not crossed his mind.

We also have it from Inspector Fullee who solemnly affirmed an affidavit

sustaining the objection to the release of the applicant that the enquiry which
started on 21st July, 1989, on the allegation made by Selmour, was completed
one week ago. We have not been told whether the enquiry has been submitted to
the Director of Public Prosecutions yet.

Two months since the applicant has been in detention may not, on the face
of it, appear to be lengthy or oppressive. But the circumstances of the case
here are such that we are at a loss to surmise what else the police needed to
complete their enquiry since they had only the declaration of Selmour to arrest
 2

the applicant, having judged the declarations of the applicant to be

irrelevant.

That the police have an undeniable right to arrest and detain persons
suspected of having committed an offence is almost axiomatic. But the basis of
the involvement of the suspect must reveal more than a mere hunch on the part
of the police, and this whether the arresting officer of his own volition
harbours suspicion towards the suspect or whether it is provoked by a witness
or an informant. Were it otherwise, any citizen of this country might run the
risk of falling a prey to blackmailers or those who can be made to level
charges against anybody according to their whims or caprices.

There have been some divergent views in the conceptual thinking of the
courts on this matter. In Wilkshire v. Barrett (1966) 1 Q.B 312 at p. 322 – 323
Lord Denning held the view that “the constable is justified if the facts, as
they appeared to him at the time were such as to warrant him thinking that the
man was probably guilty”. Lord Bridge rejected this approach in Wills v. Bowley
(1983) 1 A.C 57 at p. 103. He thought that belief had been replaced by
suspicion. This approach would cast a lesser standard that the one requiring
the police officer to believe reasonably that the suspect is guilty. In Shaaban
Bin Hussein v. Chong Fookham (1970) A.C 942 at p. 948 Lord Devlin felt that the
test required was one lower than that required for the establishment of a prima
facie case against the suspect.

But, whatever the approach which is taken, a police officer effecting an

arrest must take into consideration the totality of the circumstances including
the explanations of the suspect and the motive of the declarant. We feel that
whatever suspicion the police may harbour against the suspect should be weighed
against any factors which tell in favour of the suspect. A total neglect of the
explanations that the suspect may have to offer may well lead to the conclusion
that the suspicion is not reasonable: (see Hogate – Mohammed v. Duke (1984) A.C
437).

Doubtless any person may face substantial freedom restriction in the

context of our criminal justice system. But this power must be sparingly used
and the courts must ever be vigilant to check this power. Our law relating to
the freedom of the individual and the restriction on his liberty should not be
interpreted in such a way that arrest and detention become the rule and freedom
the exception. The spirit of our Constitution would favour the contrary view
and this is why we feel that the pronouncement made in the case of Rodolphe v.
DPP 1983, M.R 54 to the effect that an accused party has no invariable right to
be at large under our Constitution may go a bis far. It is only in exceptional
cases that the liberty of the subject can be subordinated to the greater needs
of society requiring the forfeiture of his freedom.

The factors that should weigh with the authorities in matters of release
of suspects have been laid down in many cases. They may be summarised as
follows: (a) the seriousness of the offence and the punishment it carries;(b)
the risk that the offender may repeat the same offence though it would not
always be easy to predict his future criminality; (c) the risk that the suspect
may tamper with witnesses or destroy material evidence on his release;(d) the
likelihood of the suspect not appearing at his trial if released; (e) the
strength of the evidence against the suspect. We do not pretend however that
these factors are exhaustive.

No two cases involving the detention of a suspect present similar

features. The discretion to withhold or grant release should above all be
governed by the facts of the case whilst guidance may be sought from the
factors which have been laid down in the case law and now also in the Bail Act
1989.

C:\My Documents\Judgmt1989\SHERIFF.doc
 3

The applicant has been arrested and detained in connection with a drug
offence allegedly committed in 1986, prior to the coming into force of the
Dangerous Drugs Act 1986 which provides for tougher penalties for offenders in
contradistinction to users. We are fully alive to the fact that the fight
against those involved in the commission of offences relating to drug
trafficking should be relentless and merciless. But in this pursuit the
authorities should ever be alive to the existing principles regulating the
freedom of the individual. The fight against drug trafficking should not turn
into an obsession whereby on a mere hunch or on unverified allegations people
are arrested and detained.

When detention becomes necessary there must be compelling reasons for

this. Detention of a suspect is the ultimate weapon that the authorities should
resort to when everything else has failed. Should detention therefore become
necessary, those responsible for enquiring into and prosecuting cases should do
their utmost to exercise diligence so that the suspect is brought to trial
within a reasonable time. Detention should never be used as a disguised
punishment against a suspect whom the police feel they cannot pin down in the
absence of solid evidence.

The applicant here has been in detention for some time. The enquiry we
have been told rested only on the allegation of Selmour. The case has not been
lodged yet. No cogent reasons have been given for this. Nor have we been told
when the case is going to be lodged. We have not even been told either that the
applicant is likely to repeat the offence or is likely to abscond if released
on bail. In these circumstances we are not prepared to say that his continued
detention is justified.

Record No. 39020

C:\My Documents\Judgmt1989\SHERIFF.doc