The Estate of Claudia Edwards Bethel v Attorney General of The Bahamas and another (The Bahamas)

An arrest under section 9 of the Immigration Act requires proof of three cumulative matters: reasonable cause to suspect an immigration offence, necessity for immediate arrest, and prompt information about the reasons for arrest and detention. Reasonable cause requires a genuine suspicion based on grounds actually in the arresting officer’s mind which are objectively reasonable. The officer need not identify a specific statutory provision, but must have in mind the nature of the suspected offence and a factual basis for it.

Vicarious liability requires a two-stage inquiry. An employee’s misuse of entrusted custody, authority and control may satisfy the close-connection test even where the employee acted dishonestly or breached protocol.

This was an appeal by State defendants from the Court of Appeal of the Commonwealth of The Bahamas. The trial judge, in 2015/CLE/gen/00245, held that the police arrest and initial detention were lawful, but that the employers of the immigration officer who later detained and raped Mrs Bethel were not vicariously liable.

The Court of Appeal, in SCCivApp & CAIS Nos 34 and 40 of 2023, reversed both conclusions. Its decision on the arrest issue was by majority; its decision on vicarious liability followed the leading judgment of the President. The issues before the Board were whether the police arrest and initial detention were lawful and whether the immigration officer’s employers were vicariously liable.

The appeal was dismissed. The Board advised His Majesty accordingly.

1. Arrest and initial detention. Article 19 of the Constitution of the Commonwealth of The Bahamas and section 9 of the Immigration Act required the appellants to establish three cumulative requirements: reasonable cause to suspect that Mrs Bethel had committed an immigration offence; necessity for her immediate arrest to secure the ends of justice; and information about the reasons for arrest and detention as soon as reasonably practicable.
2. Reasonable suspicion. The Board applied the subjective and objective approach in O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286. The arresting officer must have a genuine suspicion, based on grounds actually in his mind at the time, and those grounds must be objectively reasonable. Section 9 did not require technical identification of a specific statutory offence. It did require the officer to have in mind the nature of the suspected offence and a factual basis for suspecting it, applying Betaudier v Attorney General of Trinidad and Tobago [2021] UKPC 7 and Chapman v Director of Public Prosecutions (1988) 89 Cr App R 190.
3. The evidence did not establish an individualised basis for suspecting Mrs Bethel. The intelligence concerned unlawfully present women engaged in exotic dancing, whereas she was working behind the bar, was dressed differently and had produced a copy of her spousal permit. Group-based suspicion was insufficient. The appellants also failed to establish that immediate arrest was necessary. The availability of the section 8 power to summon her did not itself bar arrest, but further inquiry and the closure of the Immigration Office over the weekend were relevant to necessity. The Board therefore did not need to decide whether the reasons given for arrest were adequate. It observed, obiter, that the sufficiency of describing an arrest as being for immigration purposes depended on the context and specific circumstances.
4. Vicarious liability. Applying BXB v Trustees of the Barry Congregation of Jehovah’s Witnesses [2023] UKSC 15, the Board treated vicarious liability as involving two stages: the employment or akin-to-employment relationship, and the close connection between the tort and authorised employment activities. Both stages were satisfied. Mr Bastian had custody under authority associated with his immigration role, continued to purport to exercise that authority, controlled Mrs Bethel while she feared him, and committed the torts during a seamless period of custody.
5. The rapes were an abuse of entrusted authority, control and care, and a breach of Mr Bastian’s continuing duty of care. Breach of protocol, an implied lie, private motive or an express prohibition did not by itself sever the connection with employment. The Board distinguished BXB v Trustees of the Barry Congregation of Jehovah’s Witnesses because that case concerned abuse of a friendship rather than abuse of an employer-conferred custodial role. The reasoning was supported by Lister v Hesley Hall Ltd [2001] UKHL 22, Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 and Armes v Nottinghamshire County Council [2017] UKSC 60.
6. The appellate courts were entitled to reconsider the close-connection issue because the trial judge had failed rationally to link her findings to the legal test, made an error of law concerning Mr Bastian’s continuing duty, and reasoned inconsistently. The employers were vicariously liable for his false imprisonment, assault and battery.

• Privy Council: The Board dismissed the appeal and advised His Majesty that the Court of Appeal’s decisions should stand.
• Court of Appeal of the Commonwealth of The Bahamas: In SCCivApp & CAIS Nos 34 and 40 of 2023, judgment given on 27 June 2024, the Court of Appeal overturned the trial judge’s conclusions on both issues. The arrest decision was reversed by majority; the vicarious-liability decision followed the President’s leading judgment.
• Supreme Court of The Bahamas: In 2015/CLE/gen/00245, judgment delivered on 27 January 2023, Charles J held that the police arrest and initial detention were lawful but that the immigration authorities were not vicariously liable for Mr Bastian’s torts.