by Bennette Roach
H M Prison front entrance
Attorney at Law Warren Cassell spent sixteen months in prison upon a conviction which is presently pending before the Privy Council, since before he was released from prison.
Following that incarceration of Cassell, and as a result of a High Court challenge by him since his release, prisoners on Montserrat will now be able to enjoy the extension of additional electronic items for personal use while in prison.
Justice Combie Martyr ruled that Her Majesty’s Prison was in constant breach of the prisoners right to own and use personal portable DVD players in prison; and also the prison authorities on Montserrat have been using and practicing unlawfully in the way they conducted visits to prisoners.
Cassell had issued a claim against the Superintendent of Prison, the Deputy Superintendent , three senior prison officers and the Attorney General.
In his claim he complained: “that between the period of February 23, 2012 to June 15, 2013, and during that period of incarceration, that the prison administrators took the following “actions (1) disallowed certain reading material in particular, a book entitled “Sh*t My Dad Says” (2) restricted the claimant and other prisoners from watching certain television programs and turned off the television when others leave for religious instructions or education classes (3) did not provide the claimant with certain toilet articles in particular – shampoo, deodorant and mouthwash (4) denied the claimant use of his personal mini DVD player (5) imposed restrictions on the content and recorded the claimant’s conversations with visitors and (6) denied the claimant a spousal visit.
The claimant further alleges that a strip search was conducted on the claimant on his return to the prison from a weekend release, which search was recorded on video. This search the claimant alleges resulted in personal injury…”
The case heard on May 11, 2015 in the ensuing judgment of November 9, 2015 Justice Combie Martyr made declarations and orders which said: “Written recording of the content of the claimant’s conversation or any conversation between a prisoner and his visitor/s, is unlawful; The denial of the use by the claimant or any local prisoner, of a personal mini DVD player is unfair, discriminatory and unreasonable.
During the trial the court heard evidence from the Superintendent and prison officers who stated that all prisoners are permitted to use their laptops, mp3 players and kindles but not DVD players. Cassell who was represented at the trial by Attorney-at-Law Miss Loveta Silcott and himself, argued that other prisoners such as those who were transferred from other British Overseas Territories, were granted the use of their DVD players in their prison cells while local prisoners were denied.
The Crown represented by attorneys Ms. Janine Greenaway with Ms. Amelia Daley in resisting Cassell’s suit, maintained that the granting to foreign prisoners their DVD players was justified because being in Montserrat they were deprived family visits and communication with certain individuals for their safety. Moreover, to make them more comfortable in a strange country it was reasonable to allow them use of their DVD players.
Justice Martyr found, “Personal DVD players are special devices for viewing video content and are capable of playing audio files. There seems to me to be no justification for excluding DVD players, given that video content may be viewed on laptops and ipods. If the 1st defendant permits devices (lap tops and ipods) on which movies can be viewed by all prisoners, how then can a restriction on a device specifically dedicated for viewing movies which can be vetted and approved, be justified? She declared, “This court finds that the restriction on the use of DVD players by local prisoners seems unjustified and in that regard it is discriminatory, unfair and unreasonable. The court further finds that there is no justifiable reason for denying local prisoners the use of their DVD players with the content viewed vetted and approved.”
During trial, the evidence revealed that prison officer would take down in writing things said by prisoners to their visitors.
Cassell argued that this was unlawful as the rules provide only for the recording of the visit, (that is the name and address of visitors and duration of visit) rather than the recording of what was said during the visit.
Denying the claim regarding spousal visits, the Judge found, “There is no evidence presented to the court in support of the remedy sought which the court can review, assess and determine whether such a declaration can be made. The court accordingly finds that the claimant is not entitled to such a declaration being made in his favour.
Most of Cassell’s claims hinged on Constitutional rights, but in denying most of them the judge also said that, “The court agrees with counsel for the defendants that the claimant failed to present any evidence in support of contravention of the Prison Rules…”
At judgment the Ag. lady Justice ruled, “There shall be no award of damages. And there shall be no order as to costs”, after saying, “In some cases a suitable declaration may suffice to vindicate the right; in other cases an award of damages, including substantial damages may seem to be necessary.”
However she also said: “The court holds the view that in the case at bar, where the court finds in favour of the claimant, that a suitable declaration will suffice to vindicate the rights of the claimant and will accordingly decline to make any award as to damages.”
Cassell disagrees strongly with the court’s findings in respect of all his other claims and has said that he will ask the Appeal Court to reconsider the case.
