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Tokunbo wins right to appeal in police damages case

Right to appeal: Former magistrate Khamisi Tokunbo (File photograph)

The Commissioner of Police and the Attorney-General could still be named as respondents in a civil lawsuit against a police officer who illegally arrested former magistrate Khamisi Tokunbo, following a court ruling.

Yesterday’s decision by Acting Puisne Judge John Riihiluoma to grant Mr Tokunbo leave to appeal an earlier strike out ruling could open the door for greater protections for police officers in Bermuda, Mr Tokunbo’s lawyer has claimed.

Victoria Greening maintained that the police officer who arrested Mr Tokunbo more than five years ago — when he was a magistrate — had acted unlawfully.

However, she argued that it was “preposterous and illogical” for an officer to make a wrong decision in the line of duty and then face a lawsuit alone.

Instead, Ms Greening said the officer’s employers — in this instance, the Commissioner of Police and the Attorney-General — could be held vicariously liable.

The long-running legal saga began in January 2019 when Mr Tokunbo was arrested after a road traffic accident in Paget.

The retired magistrate was later charged with failure to provide a breath sample.

However, the case was dismissed in October 2019 and Mr Tokunbo was acquitted after a judge ruled that the officer who arrested Mr Tokunbo — police constable Colin Mill — had acted unlawfully.

Mr Tokunbo then launched a civil case against Mr Mill, the Commissioner of Police and the Attorney-General, claiming damages for unlawful arrest and detention.

He insisted that “the vicariously unlawful and unconstitutional arbitrary or oppressive actions or conduct by a servant of the Government” had damaged his reputation and caused him pain, suffering and loss of amenity.

However, at a hearing last year, counsel for the three respondents called for the case to be thrown out.

Brian Myrie, representing the Attorney-General and the Commissioner of Police, said that his clients had no involvement in the arrest or detention of Mr Tokunbo, and therefore no liability.

In a ruling handed down last April, Mr Justice Riihiluoma agreed. He found that, under Bermuda law, neither the Attorney-General nor the Commissioner of Police were vicariously liable for the actions of Mr Mill and struck out the claims against both, although he did rule that a common-law case against Mr Mill should be allowed to continue.

During yesterday’s hearing, Ms Greening argued that case law presented by Mr Myrie during his call for a strike out centred on “very different facts and circumstances” but confirmed that the Attorney-General was a “proper party to proceedings”.

She referred to one case in Jamaica in which a man was shot unlawfully by an off-duty police officer. The victim sought damages and the Privy Council concluded that the Attorney-General had vicarious liability.

Mr Greening told the judge: “It would be easier for this court to find a connection in this case because Mill was acting as a police officer on duty. In the Jamaica case, the officer was off-duty.

“There’s no dispute that Mill was acting in the execution of his duties as a police officer and he carried out an unlawful arrest.

“The Attorney-General is a proper party to these proceedings and it was an error in law to strike out the action.”

Ms Greening also pointed out that the law on vicarious liability in Britain had undergone significant developments in recent years to expand its scope

Mr Myrie countered that police officers act under their own authority “as given to them by law”.

He said: “You may well find that he [Mill] was acting as a police officer but it doesn’t follow that the Commissioner of Police is vicariously liable.”

Ms Greening concluded: “Police officers have the most draconian and oppressive job, day in, day out.

“They have to make unenviable decisions, often on the spot, that infringe the rights of the public. It is preposterous and illogical to think that an officer can make a wrong decision and be entirely responsible for it himself.”

She added that she had heard reports that several officers had resigned after Mr Justice Riihiluoma had issued his strike out ruling last year.

Mr Justice Riihiluoma agreed that his previous ruling could be appealed.

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