Yvonne Bacchas, daughter of David Bacchas, the 63 year old taxi operator who was killed by the police in October 2003 in Flankers, St James, addresses a press briefing yesterday on the settlement between the government and the family. Beside her is attorney Oswald James.

THE government has awarded $4.5 million to the family of late taxi operator David Bacchas, 63, who was shot dead by the police on October 25, 2003 in Flankers, a poor community in Montego Bay, St James, the family's lawyer, Oswald James, announced at a press conference in Kingston yesterday.

The Observer first reported on January 4 that the government had agreed on compensation for Bacchas, but deputy solicitor general Patrick Foster was then unable to give the settlement figure, saying there were a few details yet to be settled.

It was not clear yesterday what was the stage of negotiations for a settlement in the cases of 65 year-old newspaper vendor Cecil Brown, Bacchas' passenger who was also killed by the police in the incident, and that of Audrey Stephen, 65, who was shot and injured.

Yesterday, Bacchas' daughter, Yvonne, agreed to make a contribution from the settlement toward the upgrading of the Flankers Primary School in the area, in tribute to the community.

But she again expressed her anger at the shooting death of her dad.

"My father was an aged man, he has always been doing his job helping the public and he is known by the police in Montego Bay, although there were other policemen from outside on the operation.

"Why did they not stop the car travelling slowly on a rugged road and find out who was inside, they could shoot out, blow out the tyres...there are tears in my voice, my mother has stress and pain, my dad is not being replaced, he was not the type of person you can easily forget," she said.

Initially, the police had claimed that the deaths and injury happened during a gunfight when a police party on an operation in search of guns and criminals came under fire from Bacchas' taxi.

However, the police later said the shooting was accidental, and former police chief Francis Forbes and security minister Dr Peter Phillips later went to Flankers and apologised to the residents for the incident.

Detectives from London's Scotland Yard assisted with forensic analysis of the guns used by police in the shooting, but they were later freed.

Meanwhile, attorney Oswald James has criticised the current divide between the criminal law and civil law, which he said militated against proper awards to adequately compensate victims killed by agents of the state.

"The outcome of criminal trials over the last two years, coupled with the continued high incidence of police excesses, has illustrated that the criminal law is no longer an effective means of addressing this problem in Jamaica and has no deterrent effect. We must therefore begin to place greater emphasis on using the civil law," said James.

He noted, however, that there were several factors constraining the effective use of the civil law, in particular a section of the Law Reform Act which he said prevented a judge from making an award of exemplary damages in cases covered by the Act's provisions, particularly the provision that essentially personal representatives of deceased persons could only institute civil claims against those persons against whom the deceased person himself had a cause of action before his or her death.

"In the Bacchas case for example, the personal representatives filed suit pursuant to the statute on the basis that Mr Bacchas himself, before he died, had a cause of action against the police and the state with respect to the injuries and treatment he received as a result of the police's unlawful actions.

"That the statute deprives the judiciary of the power of granting exemplary damages in cases such as these, operates as a fetter on the ability of judges so minded, to make an award of damages with a strong punitive component," said James.

He also alluded to what he described as the reluctance of judges, who he said were "famed for their moderation" to make awards of sufficient magnitude against the government where appropriate, but which he said was "unjustifiable when it translated into a failure by the judiciary to place a true value on the rights and liberties of Jamaicans".

James recommended that:

. Government repeal Section 2 (2) (a) of the Law Reform Act to give judges the unfettered ability to make awards or damages of sufficient magnitude so as to have a more punitive and deterrent effect.

. Parliament must legislate that police officers whose excesses and atrocities have resulted in the state having been held liable, must make compulsory contributions to the award;
and

. Parliament should legislate clear guidelines and principles to be applied by the judiciary in assessing awards in cases where civil liberties have been infringed with an emphasis on mandating judges to place appropriate values on the rights and freedoms of Jamaicans.

- bellanfanted@jamaicaobserver.com

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