THE Jamaican Government suggested last night that a Privy Council decision on the phone booth shooting case would likely make it easier to hold the state responsible for the illegal acts of its servants, even when they act without the consent of their employer and for their own benefit.

Immediately, the Government, through Attorney-General A J Nicholson advised the police in particular – one of whose former members triggered the case – to take note of the ruling.

The police in Jamaica are often accused of abuse of power and extra-judicial killings.

“We are not necessarily surprised by the conclusions arrived at by the Judicial Committee,” Nicholson said in a statement. “We had always seen this as a borderline case.”

The case involved Clinton Bernard, a Kingston man who 13 years ago was shot and injured by police constable Paul Morgan at a phone booth at the post office’s central sorting office in Kingston.

Morgan sued the government and won in the Supreme Court.

The Government appealed and the Court of Appeal overturned the decision, but at the same time urged the Government to make an ex-gratia payment of $2.54 million to Bernard – the same amount that had been awarded by the lower court.

In yesterday’s ruling, the Privy Council, in a decision delivered by Lord Steyn, argued that Bernard had made his case of the Government’s ‘vicarious liability’ for Bernard’s action and told the Government that it would now have to add the interest and costs that were awarded by the lower court, to the payment it made to Bernard.

Morgan had, during the incident, purported to act as a policeman, the law lords held, and would have been aided by the fact that he carried a loaded service revolver “given to him as a police officer which he was permitted to carry even when off duty”.

In his statement Nicholson argued that there was a public benefit conferred by the policy of allowing off-duty police officers to retain their guns, but conceded that it carried “an element of risk, in that it may be seriously abused, as in this case”.

“In such circumstances, it is perhaps not unreasonable to say that the unlawfully injured person, Mr Bernard, should be able to look to the state for compensation,” Nicholson said.

“The members of the police force would be made aware of this and should constantly bear it in mind.”

Local human rights groups last night welcomed the decision.

“My initial response is that it is a step in the right direction, particularly because it does speak to the fact of the policeman asserting himself as a policeman and (using) his service revolver,” said Susan Goffe, the chairman of the citizens’ advocacy group, Jamaicans For Justice.

Dr Lloyd Barnett, an eminent constitutional lawyer and chairman of the Independent Jamaica Council for Human Rights (IJCHR), said the ruling has “implications in relation to the law (and) the responsibility of employers for the acts of employees, and more particularly in relation to the responsibility of the state for the actions of members of the security forces who abuse their power”.

“The responsibility of the state to ensure that the police act in accordance with the law, and with appropriate procedures, becomes greater.” Barnett said.

The case arose out of an incident on March 17, 1990 when Bernard was among several persons in a queue seeking to use a public telephone at the Central Sorting Office.

When it came to Bernard’s turn, as he was dialling his number, Morgan intervened, announcing himself as “police” and declaring his wish to make a “long distance call”.

When Bernard refused to yield he was hit and shoved by Morgan, who then shot him in the head. At the Kingston Public Hospital Morgan arrested Bernard, handcuffing him to his bed. He was charged for allegedly assaulting a police officer.

However, the charges were later dropped and Morgan, apparently expecting action against him, skipped Jamaica and was fired from the police force for being absent from duty.

The law lords, in their ruling, drew heavily on a May 2001 House of Lords decision of Lister v Hesley Hall Ltd in which a school was held vicariously liable for the actions of the warden of the school’s boarding house who had sexually abused resident children.

That case, decided just over a month before Bernard’s case was argued in Kingston, firmly established the principle that employers could be held responsible for the action of their servants in circumstances where the servants may act in their own interest but their actions were “so closely connected with (their) employment that it would be fair and just to hold the employers vicariously responsible”.

In yesterday’s ruling, the Privy Council, in dealing with the questions to be settled in resolving such issues said: “The correct approach is to concentrate on the relative closeness of the connection between the nature of the employment and the particular tort and to ask whether looking at the matter in the round is just and reasonable to hold the employers vicariously liable. In deciding this question a relevant factor is the risks to others created by an employer who entrusts duties, tasks and functions to an employee.”

Risks were clearly attendant when the State allowed Morgan to have his service revolver even when off duty.

Said the judges: “.One must consider the relevance of the risk created by the fact that the police authorities permitted constables like Constable Morgan to take loaded service revolvers home and to carry them while off-duty. The social utility of allowing such a licence to an off-duty policeman may be a matter of debate. But the state certainly created risks of the kind to which (Justice) Bingham made reference.

“It does not follow that the using of a service revolver by a policeman would, without more, make the police authority vicariously liable. That would be going too far.

“But taking into account the dominant feature of this case, viz that the constable at all material times purported to act as a policeman, the risks created by the police authorities reinforce the conclusion that vicarious liability is established.”