IN THE SUPREME COURT OF GIBRALTAR

1990 S 137

BETWEEN:

David Alexander Schiller

Plaintiff

-and-

HM Attorney-General for Gibraltar

Defendant

Mr N Beeson for the plaintiff

Mr A Trinidad, Senior Crown Counsel, for the Attorney-General

IN COURT

JUDGMENT

SCHOFIELD, CJ: In this action David Alexander Schiller (“the plaintiff”)

seeks redress under section 15(1) of the Schedule to the Gibraltar Constitution

Order in relation to three incidents or sets of events which occurred over a two

year period from September 1985 to October 1987. The plaintiff’s case is that

his fundamental rights and freedoms as given by the Constitution have been

infringed by those in authority in this City. His case is that such infringement

occurred in respect of each incident or set of events individually and together

the actions complained of demonstrate on the part of those responsible a

determination to deny the plaintiff his fundamental rights.

The first incident took place in the early hours of the morning of the 16th

September 1985. The plaintiff testified that he had dropped his wife at work at

6 pm and had spent most of the evening playing backgammon at Charlie’s Bar.

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He and three others went to a party on board a boat at the Marina and because

there was no food there went into town to get a meal. They ended up outside

the Bahia Bar eating their meal. The plaintiff was driving and so, he testified,

he probably had no more than three alcoholic drinks throughout the whole

evening.

At about 1 am the plaintiff went to his vehicle. He was to collect his wife

from work and he went over to the vehicle first to hurry his friends up. At the

time there was a Police Station at Waterport and the plaintiff saw Police

Constable Field (as he then was) leave the doorway of the Police Station. The

plaintiff got into his vehicle and PC Field came up and prevented him from

closing the door. The plaintiff testified that PC Field asked him if he intended

to drive the vehicle and when the plaintiff said he did PC Field advised him not

to as he had reason to believe that the plaintiff was under the influence of drink

or drugs. The plaintiff told PC Field that that was not the case.

One Charles Lloyd had been in the group at the Bahia Bar with the plaintiff.

Lloyd approached and asked what the trouble was. PC Field told Lloyd it was

nothing to do with him and asked the plaintiff to get out of the vehicle. The

situation then erupted and PC Field and Lloyd got into a scuffle which ended

up with them rolling around on the ground. The plaintiff’s evidence is that

initially Lloyd’s intervention was friendly and he does not know how the

situation erupted into violence. There was no need for any trouble he said but

he cannot say that PC Field started the fight.

Be that as it may, the plaintiff got out of his vehicle. PC Field called to another

officer and Police Constable Hamilton appeared on the scene. Between them

the officers managed to handcuff Lloyd and drag him into the Police Station.

This was now a violent scene and blows were being exchanged.

It is the plaintiff’s case that he then walked into the Police Station and prior to

doing so no police officer had formally arrested him. The police officers had

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taken Lloyd into a back room and when he entered the plaintiff saw that PC

Hamilton had Lloyd in a neckhold and PC Field was kicking him viciously in

the stomach. This, said the plaintiff, “shook me up” and he went outside to get

assistance and to find a witness. He could not find anyone willing to join him

so the plaintiff went back inside the Police Station to find Lloyd lying in a

corner and the police officers adjusting their dress. As he walked in, the

plaintiff testified, PC Field approached him. He thinks the officer wanted

details of his identity. The plaintiff put his hands up and stepped back to make

clear that there was to be no physical contact between them. In that gesture

they made contact and the officer said: “Don’t worry there won’t be any

trouble.” Lloyd got to his feet and another scuffle broke out between him and

the police officers.

Shortly afterwards other police officers arrived. One of them asked the

plaintiff to get in the police van. It is the plaintiff’s evidence that at no stage

prior to that had anyone told him he was being arrested, why his details were

required or why he had to get into the police van. When they arrived at

Central Police Station an officer asked the plaintiff if he knew why he was

there. The plaintiff said it was concerning the incident with Lloyd and the

police officer said he was suspected of being under the influence of drink or

drugs. When asked the plaintiff said he wanted both a doctor and a lawyer to

be called.

Doctor Soler arrived at the Police Station at 1.50 am and examined the

plaintiff. He reported to the police officers that the plaintiff was not, at the

time of examination, under the influence of alcohol to such an extent that he

was unfit to drive a motor vehicle. So much is recorded in the police

occurrence book. Nevertheless the plaintiff was put back in the cells. He was

seen by his solicitor, Mr Dumas, at about 3 am.

Mr Dumas, whose witness statement was admitted in evidence, has said that

the plaintiff was upset at having been put into the cells and at having to return

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there after his departure. Mr Dumas informed the plaintiff of his rights. The

plaintiff was released on bail at 5 am the same morning to return to Central

Police Station on 6th October 1985.

The plaintiff’s wife, Deidre Schiller, testified that she went to Central Police

Station that morning and saw an officer who she thinks was Inspector Viagas.

He would not allow her to see her husband and he said that he was not

releasing the plaintiff until the pubs closed, round about 5 am. Mrs Schiller

said she waited for her husband in the Piazza outside the Police Station. She

saw Mr Dumas enter and leave. Her husband was released at about 5 am.

They walked home and as they reached the Sundial area the inspector appeared

in a police car and was taunting them. Her husband was very upset about the

incident and found it hard to sleep.

Subsequently the plaintiff was charged with the offences of obstructing a police

officer and assaulting a police officer both contrary to section 256 of the

Criminal Offences Ordinance. He was not charged with any offence of driving,

or attempting to drive or being in charge of a motor vehicle when under the

influence of drink or drugs. After hearing the evidence called by the

prosecutor the learned Stipendiary Magistrate dismissed both charges without

calling on the defence. The transcript of the Clerk is hard to follow from the

bundles I have but we have it from Mr Dumas that his submissions for the

hearing (and it is uncertain whether he actually had the opportunity put them)

were based on the following “facts”:-

“(a) there was no arrest at the time that Mr Schiller was apprehended nor

in the Police Station;

b) there was no evidence, after the Police Doctor had examined Mr

Schiller and found that he was not under the influence at the time of

the examination, upon which to keep him in custody; and

(c) that after the Doctor had attended, the attitude of the Police was to

stall and that, in law, they could not continue to detain Mr Schiller,

there (sic) only reason being that they were going to keep him until

the pubs were closed.”

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It is clear from the transcript that Mr Dumas had instructions to put the

plaintiff into the witness box to testify but that the Magistrate did not need to

hear from him, dismissing the charge of obstruction without giving a reason

and dismissing the assault charge on the basis that he considered the arrest of

the plaintiff was not lawful.

The grounds on which the plaintiff maintains his fundamental rights and

freedoms have been infringed in relation to the incident on the 16th September

1985 are as follows:-

“(1) On or around the 15th and 16th September 1985 the Plaintiff was

deprived of his liberty by officers of the Gibraltar Police Force

contrary to sections 1(a) and/or 3 and/or 13 of the (Schedule to the

Gibraltar Constitution Order.).

(2) On or around the 15th and 16th September 1985 the Plaintiff was

subjected to inhuman and/or degrading treatment contrary to sections

1(a) and/or 5 of the said Schedule in that he was compelled to

witness the beating of one Charles Lloyd, by officers of the Gibraltar

Police Force to the great distress of the Plaintiff.”

In relation to these complaints three witnesses were called on behalf of the

Attorney-General and one witness statement was read into evidence.

Officers Field and Hamilton gave evidence by reference to affidavits or

statements they had earlier made. Field, now a sergeant, had deposed that

there was a party going on outside the Bahia Bar on the morning of the 16th

September 1985. As he watched he saw the plaintiff walk to a van and get

inside it. His evidence was that he strongly suspected the plaintiff to be under

the influence of drink or drugs. When he went up to the plaintiff he saw that

his eyes were bloodshot. I should comment here that this part of Field’s

evidence corresponds with the doctor’s report. Field’s evidence that the

plaintiff’s breath smelled of alcohol does not.

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Field asked the plaintiff to get out of the van but he refused to do so, seeking a

better explanation. At this stage the officer’s evidence is that he arrested the

plaintiff but he did not get a chance to caution him because Lloyd came up and

started to interfere. Lloyd had been drinking and said that the plaintiff was not

going anywhere.

Lloyd grabbed Field from behind but the officer managed to throw him over his

shoulder and grab hold of him. He called to PC Hamilton who went to his

assistance. At the same time the plaintiff got out of the van and went towards

Field in an aggressive manner. Field told Hamilton that the plaintiff was under

arrest and according to the two officers Hamilton went up to the plaintiff and

took him into the Police Station without difficulty. Hamilton testified that the

plaintiff’s breath smelled of alcohol and he was unsteady on his feet.

Field took Lloyd, with difficulty, into the Police Station, but once inside the

Police Station Lloyd calmed down. The evidence was that the plaintiff was

told once again of the reason for his arrest once inside the Police Station and

that when Field asked the plaintiff for his identification the plaintiff pushed him

backwards with both hands. This is the allegation of assault. At that point, the

officers said, Lloyd again went berserk and had to be restrained. Police

officers were called from Central Police Station and the struggle with Lloyd

continued into the police van. During the struggle Field was kicked, scratched

and headbutted and Hamilton was elbowed in the chest and one of his ribs was

fractured. These injuries were supported by medical evidence.

The Attorney-General’s case was taken up by Charles Polson, now retired, but

who at the time of the incident was a Police Sergeant at the desk of Central

Police Station. His evidence was that the police van containing the plaintiff

and Lloyd arrived at Central Police Station at about 1.30 am. Lloyd was

violent and noisy and had to be restrained but the plaintiff was calm. When

Polson went to the plaintiff, who had been put in the guard room, he noticed

the plaintiff was unsteady on his feet, his breath smelled of alcohol and his eyes

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were bloodshot. Polson asked the plaintiff if he was aware he was under arrest

and the plaintiff replied that there was no reason for his arrest. The plaintiff

was aware that he was under arrest. His clothing was disarranged. Polson

informed the plaintiff that he was calling a doctor and the plaintiff said he had

no objection. When asked if he wanted a lawyer the plaintiff said he did.

Polson’s evidence was that Lloyd continued to be noisy and violent and that he

was well under the influence of drink or drugs.

The doctor, after examining the plaintiff, reported that the plaintiff was not

sufficiently under the influence of alcohol that he was incapable of driving a

motor vehicle. Nonetheless, says Polson, he himself was of the opinion that

the plaintiff was unfit through drink or drugs before and after the doctor’s

examination. Furthermore there was sufficient reason to hold the plaintiff in

the cells after the examination because there were further investigations to

carry out. He had to await the reports of the other officers and his senior

officers.

The affidavit of Chief Inspector Viagas, now deceased, was read into evidence.

He deposed that the plaintiff was released at about 4.30 am when it was

thought that he was fit to understand his bail conditions . After his release

Chief Inspector Viagas was patrolling in a police car when he saw the plaintiff

with others outside the Chimney Corner Night Club. The vehicle was stopped

and the Chief Inspector asked if they needed any help but his offer was

declined.

The series of events which leads to the second matter complained of involves a

man called Ernest Chamberlain who was in charge of the Gibraltar Yacht

Centre. The plaintiff and his family live on board their yacht called the

“Sheiloan”. Chamberlain had bought a boat yard which he called the Gibraltar

Yacht Centre in about 1984 and invited the plaintiff to moor his yacht there.

This the plaintiff did at a fee of £20 per week on his understanding that

Chamberlain owned the area including the water in which the yacht was

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moored. After a trip to Portugal the plaintiff found the berth was occupied by

another vessel and he then rented a spot at anchor from Chamberlain at a rate

of £35 per week. Water and electricity were provided for which the plaintiff

paid Chamberlain. The plaintiff rented the anchorage and accepted the utility

services on the implied agreement that Chamberlain had the right to rent it to

him and had lawful authority to provide the services.

Subsequent investigations revealed that the anchorage was not owned by the

Gibraltar Yacht Centre and that Chamberlain had no right to supply the

plaintiff with water and electricity offshore. The plaintiff went to his solicitor,

Mr Dumas, about it and served a writ on the Gibraltar Yacht Centre. The

upshot was that just before trial in February 1995 the Gibraltar Yacht Centre

offered a sum of money in settlement of the suit which offer the plaintiff

accepted. He agreed to accept the amount by instalments but so far has

received a little over £650. There is still about £1,350 to be recovered on the

settlement.

The plaintiff took action other than pursuing his civil remedy. He reported the

matter to the police in the person of Inspector Correa and in so doing,

according to his evidence, passed over to the Inspector the documents to

support his contention that Chamberlain had been guilty of fraudulent

misrepresentation. The plaintiff claims that the police took no action. He

made his complaint to the Attorney-General and the Governor. His documents

were lost and to this day no action has been taken on his report.

The plaintiff maintains that in failing to take the appropriate action on his

report those responsible have deprived him of his fundamental rights. The

particulars in his statement read:-

“(3) the Plaintiff was deprived of his right to the protection of the law in

that the Gibraltar Yacht Centre were permitted or allowed to

fraudulently charge and obtain payment from the Plaintiff of mooring

fees in respect of moorings in waters over which they had no

proprietorial or other rights the same being public moorings and

further despite complaint being made to the proper authorities no

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proper investigation was made nor were Gibraltar Yacht Centre

prosecuted contrary to sections 1(a) and/or 8 of the (Schedule to the

Gibraltar Constitution Order.)”.

Detective Chief Inspector Correa testified that he received the plaintiff’s report

of the alleged fraud but he has no recollection that any documents were lost. If

documents were produced he would have clipped them to his report. He asked

the plaintiff to provide him with a written statement and this the plaintiff

declined to do because, said the plaintiff, it could interfere with the pursuit of

his civil claim.

Mr Trinidad also pointed to letters in the correspondence tendered to Court in

which the Attorney-General and the Assistant to the Governor had explained

to the plaintiff the reasonableness of the request that he put his complaints into

writing and, in the case of the Assistant to the Governor, urging him to do so.

The third incident complained of started about 1 o’clock in the morning of 4th

October 1987. For the purpose of these proceedings Mr Trinidad on behalf of

the Attorney-General accepted that this first part of the plaintiff’s evidence was

true and accurate. The plaintiff and his wife and daughter were asleep on

board their vessel the “Sheiloan” when they were awoken by the noise and

vibration of a vessel called the “Davina of Kernow” (to which I shall refer as

“the Davina”), piloted by one Raymond Wills, hitting the “Sheiloan”. When

the plaintiff got up he went on deck and saw Wills cutting the mooring ropes

of the “Sheiloan”. He and men called Cairney and Sweeney, who lived on

vessels moored nearby, managed to re-moor the vessels.

Wills manoeuvred his vessel towards a slipway at Marina Bay and in so doing

snapped the mooring rope of a dinghy, brushed against a speedboat and hit

three other vessels called “La Brouette”, “Foot” and “Tarifa Winds”. He did

considerable damage.

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The plaintiff called the Port Authorities and Sergeant Acris and Police

Constable Goodman arrived. First Cairney and then the plaintiff reported to

the officer what had happened. The plaintiff showed Sergeant Acris the

damage to the “Sheiloan”. It is the plaintiff’s evidence that he paid something

less than £1,000 in materials to repair the damage to his vessel and spent two

or three weeks working on the repairs.

The plaintiff took the police officers out to the “Davina” and Wills and his

crew member were conveyed to the “Sheiloan” and to Cairney’s vessel.

Eventually Wills got into a dinghy and set off back to the “Davina”. It is the

plaintiff’s testimony that Sergeant Acris told Wills to get out his papers and

meet them at Marina Bay. He told the plaintiff that Wills would not be leaving

Gibraltar that night, that there would be an investigation and that they would

return in daylight. The plaintiff was under the impression that Wills was under

arrest. Furthermore he maintains that a maritime lien existed over the

“Davina” for the damage caused to the “Sheiloan” and that Wills owed money

to the Gibraltar Yacht Centre. One of the most serious offences at sea, he

pointed out, is to cut a vessel adrift.

About an hour after the police officers had left he and Cairney, who had stayed

up talking, heard the engines of the “Davina”. The plaintiff knew that Wills

had intended to go to Seville and thought he was escaping from police custody.

He and Cairney decided to give chase in an admiral’s barge which belonged to

the plaintiff and which was moored to the “Sheiloan”. He testified that he had

no idea how they intended to prevent Wills leaving other than to go after and

arrest him. The “Davina” is a larger vessel than the admiral’s barge, and is

equipped with navigation lights and a radio, which were not on the admiral’s

barge. The plaintiff left it to his wife to report the matter by radio to the

authorities. He also called in at the Yacht Reporting Berth and reported the

escape to the officer there.

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It is the plaintiff’s evidence that the “Davina” proceeded out to sea, slowly at

first, and then followed an erratic course. The plaintiff manoeuvred seaward of

the “Davina” but kept behind her, following the “Davina’s” erratic course.

Eventually the “Davina” reached the light at the end of the Spanish Mole,

turned round and headed back down again. Both vessels were heading south

towards the North Mole with the barge about 50 yards behind and west of the

“Davina”. The “Davina” turned sharply westward and the plaintiff

endeavoured to turn in the same direction to avoid a collision but was unable

to do so. The barge had to cut through the wash of the “Davina” and its bow

came down on the “Davina” just above the water line. There was just the one

collision.

A police car containing Sergeant Acris, PC Goodman and Inspector

Revagliatte had made its way to the end of the North Mole and the lights and

blue beacons of the vehicle were put on to attract the occupants of the two

vessels. The plaintiff says that the collision occurred too far away from the

North Mole for anyone present there to see it at that time of the night. Indeed

the plaintiff called Moses Benyunes who was on duty in the Port Lookout

Tower on the North Mole on the night in question. He logged the radio

messages including one from the “Davina”: “We now find ourselves in a very

desperate situation as this man wants to sink us”. That message is put at 5.55

am, which is, according to the other evidence, some time after the collision and

possibly the arrest of the plaintiff. Be that as it may Mr Benyunes did not see

the collision although he heard its sound. Both vessels made their way to the

North Mole. The plaintiff and Cairney were taken to Central Police Station.

They were eventually charged with causing criminal damage to the “Davina”.

They elected to be tried by a jury and after a trial before Alcantara J (as he then

was) they were convicted. Both the plaintiff and Cairney were given a

conditional discharge.

Wills was charged with offences involving the damage to the vessels at the

Marina at about 1 am on the morning of the 4th October 1987. He left the

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jurisdiction before his trial. He died soon afterwards and may well have been

dead before the trial of the plaintiff. In any event he was not called as a

witness at the trial of the plaintiff and Cairney, and his deposition was read to

the Court. The plaintiff testified, and the testimony was supported by his wife,

that on a mention date before the actual hearing, he had told Alcantara J that

he had been assured at the committal hearing that Wills would be called at the

trial as a prosecution witness yet he had reason to believe that Wills would not

attend the Court. One or two of the plaintiff’s witnesses were in the United

Kingdom and he did not want to go to the expense of calling them if the trial

would not proceed. Alcantara J assured the plaintiff, he says, that if Wills did

not appear at the trial the plaintiff and Cairney would be acquitted.

The plaintiff appealed against his conviction and the Court of Appeal quashed

the conviction on the basis of a misdirection by the learned Judge. The plaintiff

took me through a catalogue of misdirections in Alcantara J’s summing-up and

asserted that the summing-up was deliberately slanted to ensure a guilty verdict

from the jury.

In relation to this third series of events the plaintiff alleges that his fundamental

rights have been breached in the following ways:-

“(4) The Plaintiff was deprived of his right to the protection of the law

contrary to sections 1(a) and/or 8 of the (Schedule to the Gibraltar

Constitution Order) in that the Defendant failed to restrain one

Raymond Wills knowing or having good grounds for believing him to

have been guilty of committing unlawful acts to the detriment and

harm of the Plaintiff.

(5) The Plaintiff was deprived of his right to the protection of the law

contrary to section 1(a) of the said Schedule in that the Defendant

maliciously prosecuted the Plaintiff in the case of R v Cairney and

Schiller knowing that there was no justifiable cause for such

prosecution.

(6) The Plaintiff was deprived of his right to the protection of the law

contrary to sections 1(a) and/or 8 (2) (c) of the said Schedule in that

he was judicially assured that in the absence of one Wills the

prosecution in R v Cairney and Schiller would not proceed and the

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Defendant would be acquitted and the said Wills being out of the

jurisdiction no proper defence was prepared.”

For the Attorney-General Mr Trinidad called Acris and Goodman who went to

the Gibraltar Yacht Centre as a result of the plaintiff’s call. They confirm that

Acris, who is now a Detective Inspector, was shown the damage to the

“Sheiloan” and the mooring ropes which were cut, but their evidence is that the

damage was slight. They did not see the damage to the other vessels that

night, but when Acris subsequently investigated the matter he realised there

was sufficient evidence to charge Wills with causing criminal damage. Had

Acris seen the extent of the damage on the night of the 4th October 1987 he

accepts he may well have taken Wills into custody and then released him on

bail. In the event, and after making enquiries of this senior officer and the Port

Authorities, he formed a view that he had no grounds for detaining Wills and

released him. Wills told him he was going to Seville but had given Acris the

name of his solicitor.

Acris and Goodman, accompanied by Inspector Revagliatte, later went to the

end of the North Mole and were there joined by Alfred Sardena, a Boarding

Officer with the Gibraltar Port Department. They all testified that they saw the

barge operated by the plaintiff deliberately ram into the “Davina”. When

subsequently the plaintiff was asked by Acris why he had done so the plaintiff

is alleged to have replied: “We had to do something to stop him.”

Chief Inspector Lopez was in charge of Police operations in 1987. One of his

functions was to check reports made by junior officers and to send the reports

onwards with his recommendations on whether or not to prosecute. He sent a

report to his Chief Superintendent in this case giving his opinion that the

plaintiff and Cairney were not guilty of causing criminal damage.

I should add for the sake of completeness that shortly before the plaintiff’s trial

before Alcantara J the Crown Counsel who by then had conduct of the case

sought directions from his Senior Crown Counsel, Mr Harris, on whether they

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should proceed with the trial in the absence of Wills. Mr Harris advised to

continue and indeed took over conduct of the prosecution. It is the plaintiff’s

contention that Mr Harris was motivated by previous dealings he had had with

the plaintiff in which he, Mr Harris, was resisting the grant of a licence to the

plaintiff to operate a fast launch.

Before I turn to my findings on the evidence I consider it appropriate to set out

those parts of the Schedule to the Gibraltar Constitution Order which this case

touches.

The relevant portion of section 1 reads:-

“1. It is hereby recognised and declared that in Gibraltar there have existed

and shall continue to exist without discrimination by reason of race, place of

origin, political opinions, colour, creed or sex, but subject to respect for the

rights and freedoms of others and for the public interest, each and all of the

following human rights and fundamental freedoms, namely -

(a) the right of the individual to life, liberty, security of the person and the

protection of the law;

......

and the provisions of this Chapter shall have effect for the purpose of

affording protection to the said rights and freedoms subject to such

limitations of that protection as are contained in those provisions, being

limitations designed to ensure that the enjoyment of the said rights and

freedoms by any individual does not prejudice the rights and freedoms of

others or the public interest.”

The relevant portion of section 3(1) reads:-

“3.(1) No person shall be deprived of his personal liberty save as may be

authorised by law in any of the following cases, that is to say -

(e) upon reasonable suspicion of his having committed, or being about

to commit, a criminal offence; ”

Subsections (2), (3) and (4) of section 3 read:-

“(2) Any person who is arrested or detained shall be informed as soon as

reasonably practicable, in a language that he understands, of the reasons for

his arrest or detention.

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(3) Any person who is arrested or detained -

(a) for the purpose of bringing him before a court in execution of the order

of a court; or

(b) upon reasonable suspicion of his having committed, or being about to

commit, a criminal offence,

and who is not released, shall be brought without undue delay before a

court; and if any person arrested or detained as mentioned in paragraph (b)

of this subsection is not tried within a reasonable time, then, without

prejudice to any further proceedings that may be brought against him, he

shall be released either unconditionally or upon reasonable conditions,

including in particular such conditions as are reasonably necessary to

ensure that he appears at a later date for trial or for proceedings

preliminary to trial.

(4) Any person who is unlawfully arrested or detained by any other person

shall be entitled to compensation therefor from the other person.”

Section 5(1) reads:-

“5.(1) No person shall be subjected to torture or to inhuman or degrading

punishment or other such treatment.”

The relevant portion of section 8 reads:-

“8.(1) If any person is charged with a criminal offence, then, unless the

charge is withdrawn, the case shall be afforded a fair hearing within a

reasonable time by an independent and impartial court established by law.

(2) Every person who is charged with a criminal offence -

(c) shall be given adequate time and facilities for the preparation of his

defence; ”

Sections 13(1) and (2) read:-

“13.(1) No person shall be deprived of his freedom of movement, and for

the purposes of this section the said freedom means the right to move

freely throughout Gibraltar, the right to reside in any part of Gibraltar, the

right to enter Gibraltar, the right to leave Gibraltar and immunity from

expulsion from Gibraltar.

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(2) Any restriction on a person’s freedom of movement that is involved

in his lawful detention shall not be held to be inconsistent with or in

contravention of this section.”

The relevant part of section 15 reads:-

“15.(1) If any person alleges that any of the foregoing provisions of this

Chapter has been, is being or is likely to be contravened in relation to him,

then, without prejudice to any other action with respect to the same matter

that is lawfully available, that person may apply to the Supreme Court for

redress.

(2) The Supreme Court shall have original jurisdiction to hear and

determine any application made by any person in pursuance of the

preceding subsection, and may make such orders, issue such writs and give

such directions as it may consider appropriate for the purpose of enforcing,

or securing the enforcement of, any of the foregoing provisions of this

Chapter to the protection of which the person concerned is entitled.

(3) The Supreme Court shall have such powers in addition to those

conferred by the preceding subsection as may be prescribed for the purpose

of enabling that court more effectively to exercise the jurisdiction conferred

upon it by this section.”

Let me now deal with the incidents, or rather sets of events, in the order they

were presented to Court.

I find on the evidence before me that the plaintiff was arrested by Officer Field

and that Field had reasonable cause to suspect that the plaintiff was about to

drive his motor vehicle whilst under the influence of drink. I found Field and

Hamilton to be straightforward witnesses and, for reasons which will become

apparent, preferred their evidence to that of the plaintiff.

Looking at the scene which presented itself to Field, there was a group of men

outside the Bahia Bar who had been drinking. It was 1 am. The plaintiff tried

to tell me that Lloyd was not the worse for drink but the evidence, including

Lloyd’s acts of violence, leads me to the opposite conclusion. Out of this

group came the plaintiff. He had, on his own admission, had three beers. I do

accept the officer reasonably believed him to have had too much drink to

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permit him to drive. The plaintiff’s refusal to get out of the car would only

heighten the officer’s suspicions. Certainly the plaintiff’s eyes were bloodshot.

Within the previous half hour he had had a drink of lager so there would be

some evidence of alcohol on his breath. I am also satisfied that the officer told

the plaintiff he was under arrest. So much is borne out by Hamilton. Of

course there is some inconsistency in the evidence of the two officers but it

would be surprising if there were not after all these years, given the

circumstances of that night.

Section 3(2) of the Schedule to the Constitution requires that a person who is

arrested shall be informed as soon as is reasonably practicable of the reasons

for his arrest. It would, to my mind, have been sufficient had the plaintiff been

informed of the reasons for his arrest after the officers had brought Lloyd

under control. In the event I am satisfied that Field informed the plaintiff of

the reasons for his arrest both before and after Lloyd was brought under

control. By the time he reached Central Police Station the plaintiff would well

know why he was in police custody. His subsequent assertions to the contrary

are, I am convinced, untrue.

I do not believe that Field and Hamilton assaulted Lloyd in the manner testified

to by the plaintiff. The independent medical evidence on the record points to

the police officers having been injured by Lloyd. Hamilton suffered a broken

rib and Field less serious injuries. Even on the plaintiff’s evidence it was a far

from subdued Lloyd who was taken to the Police Station.

It is the plaintiff’s contention that in holding him at the Police Station after the

doctor had declared him fit to drive a motor vehicle that the police officers

unlawfully deprived him of his liberty. I must say at once that I found Charles

Polson to be an unreliable witness. He gave a poor showing in the witness

box. If, as has been suggested, the only reason to keep the plaintiff in the cells

was to hold him until he sobered up, then that flies in the face of the doctor’s

evidence and would cause one to doubt the reasonableness of his being held

18

from about 2 am to 5 am. However, it must not be forgotten that there were

further allegations by Field that the plaintiff had obstructed and assaulted him.

These would have to be considered before a decision was taken whether or not

to release the plaintiff. Indeed it is Field’s evidence that the plaintiff was not

released immediately because he was to be charged with obstruction. Certainly

this was a matter which would have to be considered by the officer responsible

at Central Police Station before any decision was taken on whether to release

the plaintiff or on what terms. The allegations could be, in fact, sufficiently

serious to hold the plaintiff in custody, certainly if his address was suspect. It

was not unreasonable for the police to make enquiries to verify his

identification.

Given all the circumstances, and whilst not wishing in any way to condone the

holding of a person in custody one minute longer than is necessary, I am unable

to say that section 3(1)(e) of the Schedule to the Constitution Order has been

offended. For the sake of completeness, although I have not been referred to

them, I set out below the provisions of section 41 of the Criminal Procedure

Ordinance so far as they relate to bail being granted by a police officer.

“41.(1) On a person being taken into custody for an offence without a

warrant, a police officer not below the rank of sergeant may, and, if it will

not be practicable to bring him, before the magistrates’ court within

twenty-four hours after his being taken into custody, shall, inquire into the

case and, unless the offence into a recognizance, with or without sureties,

for a reasonable amount, conditioned for his appearance before the

magistrates’ court at the time and place named in the recognizance.

The provisions of this subsection shall not affect the provisions of section

44 (which relates to the release on bail of persons under seventeen).

(2) Where, on a person being taken into custody for an offence without

a warrant, it appears to any such police officer that the inquiry into the case

cannot be completed forthwith, he may release that person on his entering

into a recognizance, with or without sureties, for a reasonable amount,

conditioned for his appearance at such a Police Station and at such a time

as is named in the recognizance unless he previously receives a notice in

writing from the officer in charge of that Police Station that is attendance is

not required; and any such recognizance may be enforced as if it were

19

conditioned for the appearance of that person before the magistrates’

court.”

It will be seen that these provisions also were adhered to.

It will be clear that I find there is no merit in the plaintiff’s allegations that he

witnessed Field and Hamilton subject Lloyd to a beating. There is certainly no

merit in the contention that he was compelled to do so. If the plaintiff’s

evidence is to be believed he was free to leave the Waterport Police Station.

There is no evidence that Lloyd himself ever made a complaint about the

alleged beating.

I find that there was no infringement of the plaintiff’s fundamental rights and

freedoms in relation to the incident in the early hours of the 16th September

1985. In so finding I accept that my findings may, to some extent, appear to

conflict with those of the learned Stipendiary Magistrate who heard the

criminal case against the plaintiff. Unfortunately there is no judgment in which

the Magistrate’s reasoning is set out. Furthermore I am bound to make a

decision on my own assessment of the evidence.

So far as the alleged inactivity of the police and other authorities to pursue the

plaintiff’s complaint against the Gibraltar Yacht Centre is concerned I am

unable to see how the plaintiff has been deprived of his fundamental right to

the protection of the law. I think in argument Mr Beeson abandoned any claim

that there had been a contravention of section 8 of the Schedule to the

Constitution Order. Section 8 has no relevance to the present suit. Instead he

takes me to section 1(a) which recognizes the right of an individual to the

protection of the law. This cannot mean that an individual has a right to

demand that a police officer arrest and charge a person who that individual is

convinced has committed a criminal offence. Surely it is for a police officer to

exercise his own judgment on whether a criminal offence has been committed

or whether he suspects a criminal offence to have been committed.

20

The plaintiff has had the protection of the law in relation to his claims against

the Gibraltar Yacht Centre. He commenced civil proceedings and accepted

settlement. That his claim has not been fully met is a matter he should take up

with the Gibraltar Yacht Centre. It cannot be laid at the door of the Attorney-

General or the police. In any event the documentary evidence shows that the

police, the Attorney-General and the office of the Governor have all behaved

reasonably so far as the plaintiff’s complaint is concerned. He refused to give a

written statement. There are two reasons for his reluctance. First, and the

plaintiff accepted this in Court, he felt that a written statement may interfere

with his civil claim. Second that he should not go to the expense or trouble of

making a written statement when he had already reported the matter to the

police. Neither of those reasons is satisfactory. There is no merit in the

plaintiff’s allegations that his fundamental rights have been infringed by the

police inaction on his complaint regarding the Gibraltar Yacht Centre.

The same principle must apply to the plaintiff’s allegation that his fundamental

right to the protection of the law was infringed by the failure by Acris to arrest

and detain Wills on the 4th October 1987. After reviewing the evidence I

accept the evidence of Acris that he took what he considered at the time to be

appropriate action. He took Wills to the Police Station. He took advice from

his senior officer and from the Port Authorities on what his powers were.

Certainly subsequent investigations revealed that he had cause to take further

action against Wills but I accept that on the information he had before him on

the night in question Acris exercised his discretion in good faith. In any event

the powers of the police are not there to serve the plaintiff in any civil claim he

may have.

The plaintiff further claims that his fundamental rights and freedoms were

infringed by his subsequent arrest, and by his trial. It must not be forgotten

that whatever the shortcomings of Alcantara J’s summing-up a jury must have

been sure on the evidence before it that the plaintiff had recklessly or

intentionally damaged the “Davina”. On the evidence I have heard I am not

21

surprised that the jury reached the conclusion it did. Four witnesses testified

that the plaintiff’s vessel, steered by him, deliberately rammed the “Davina”.

Of course there were discrepancies and inconsistencies in the evidence of the

witnesses, but before me their evidence substantially corresponded without

appearing rehearsed. I have given consideration to the possibility that the

police officers got together to put consistency into their evidence. Such a

situation is not unknown. But we have the independent evidence of Mr

Sardena who, from my assessment of him, just would not lend himself to being

persuaded to bend the truth. Mr Sardena came across as very much his own

man.

And just look at the plaintiff’ version of events. Wills was setting off for

Seville. His vessel had greater fuel capacity than the plaintiff’s. All he needed

to do was set his course and continue on his way and there was nothing the

plaintiff could have done about it, if his intention was merely to track the

“Davina”. Instead, according to the plaintiff, Wills conveniently kept a slow

speed until the plaintiff could get on the seaward side of him and from then on

steered an erratic course. If the plaintiff was not attempting to ram Willis’

vessel the erratic steering was unnecessary and Wills would have simply

steered his vessel into open waters. Furthermore there was the independent

evidence of Mr Wilkes, a Fellow of the Institute of Naval Architects who

testified, after examining the “Davina”, that the most likely cause of the

damage was that the boat was rammed from the stern.

The preponderance of evidence is that the plaintiff was out to stop the

“Davina” and arrest her and exercise what the plaintiff perceived to be his legal

rights. I make no comment on Alcantara J’s summing-up. If it was in any way

slanted towards a conviction it was perhaps not surprising given the weight of

the evidence against the plaintiff. Indeed the Court of Appeal referred to

“serious inconsistencies” in its judgment, but the Court based its decision on a

clear misdirection on the jurisdictional point, a point of law. I have

independently considered those inconsistencies and have come to the same

22

conclusion as the jury. In my judgment the plaintiff was properly charged for

his action of ramming the “Davina”. He received a fair trial.

The last complaint is against Alcantara J for allegedly leading the plaintiff to

believe that if Wills did not testify at the trial he and Cairney would be

acquitted. I am told that the plaintiff referred to his understanding of his

assurance at the trial itself and Alcantara J denied making the assurance. I am

not surprised. It was an assurance which the Judge could not give. Unless a

prosecution amounts to an abuse of the Court’s process (and there was no

suggestion at the time that such was the case here) the conduct and

continuation of a prosecution is in the hands of the Attorney-General and not

the Judge. I am certain that this is a case of the plaintiff hearing what he

wanted to hear and that no assurance, such as he alleges, was given.

I ought perhaps to deal with one matter which has exercised my mind

throughout this trial and that is whether an action under section 15 of the

Schedule to the Gibraltar Constitution Order was the appropriate method of

moving the Court and whether it would have been proper for the plaintiff to

proceed rather with an action in tort for wrongful arrest and malicious

prosecution and, perhaps, if appropriate, to apply for judicial review. The

authority cited to me of Kemrajh Harrikissoon v Attorney-General of Trinidad

and Tobago [1980] AC 265, a decision of the Privy Council, is not of a great

deal of assistance. In that case Lord Diplock, delivering the judgment of the

Court, said:-

“The notion that whenever there is a failure by an organ of government or

a public authority or public officer to comply with the law this necessarily

entails the contravention of some human right or fundamental freedom

guaranteed to individuals by Chapter I of the Constitution is fallacious.

The right to apply to the High Court under section 6 of the Constitution for

redress when any human right or fundamental freedom is or is likely to be

contravened, is an important safeguard of those rights and freedoms; but

its value will be diminished if it is allowed to be misused as a general

substitute for the normal procedures for invoking judicial control of

administrative action. In an originating application to the High Court

under section 6(1), the mere allegation that a human right or fundamental

freedom of the applicant has been or is likely to be contravened is not of

23

itself sufficient to entitle the applicant to invoke the jurisdiction of the court

under the subsection if it is apparent that the allegation is frivolous or

vexatious or an abuse of the process of the court as being made solely for

the purpose of avoiding the necessity of applying in the normal way for the

appropriate judicial remedy for unlawful administrative action which

involves no contravention of any human right or fundamental freedom.”

However that case concerned the right of the holder of a public office not to be

transferred against his will from one place to another. It is far removed from

the present case which concerns allegations of unlawful detention and so on.

Section 15(2) of the Schedule to the Constitution Order provides that the

Supreme Court has jurisdiction to hear and determine an application made

pursuant to section 15(1) and may make orders etc “for the purpose of

enforcing, or securing the enforcement of, any of” the earlier Chapters in the

Constitution Order. Does this provision permit the award of damages for

unlawful arrest and detention? One of the earlier provisions in the Chapter is

section 3(4) which provides that a person unlawfully arrested or detained shall

be entitled to compensation, so perhaps it does. However I have a lingering

doubt whether section 15(1) should be used when there is an acknowledged

jurisprudence which gives an individual redress if he is unlawfully arrested or

detained. In the event the facts resolve the questions in issue without me

having to give a firm opinion on the matter.

I find that on each of the particulars raised there has been no infringement of

the plaintiff’s fundamental rights and freedoms as recognized by our

Constitution. Of course the plaintiff has argued that when set together the

complaints demonstrate a conspiracy, if I may call it that, on the part of certain

persons in authority to deny him his rights. I have no reason to disbelieve Field

when he says he had no dealings with the plaintiff before arresting him on the

16th September 1985. I have no reason to disbelieve Acris when he says he

had nothing to do with the plaintiff before the 4th October 1987. The

extravagance of the plaintiff’s complaints in this regard is demonstrated by the

fact that he brings a senior member of the Attorney-General’s Chambers and

even a Judge of this Court into this somewhat loose conspiracy.

24

I had an opportunity to observe the plaintiff in the witness box for over two

days and throughout the course of the trial. His view of what is right and just

depends upon what is in Mr Schiller’s best interests. He has shown himself

capable of applying his undoubted intelligence to persuading this Court that

those in authority in this City are denying him his rights and freedoms, often at

the expense of the truth. That this Court has devoted a considerable amount of

time and much public expense to permitting the plaintiff to test the actions of

those he complains of is ample demonstration that the institutions which have

been set up to preserve and protect the Constitution are in place and are in

good working order. I have little confidence that the plaintiff, Mr Schiller,

would be capable of seeing matters in that way even if the action were decided

in his favour.

As it is the action is dismissed.

D Schofield

Chief Justice.

14 February 1997.