IN THE HIGH COURT OF JUSTICE SAN FERNANDO

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO CV NO IN THE HIGH COURT OF JUSTICE SAN FERNANDO IN THE MATTER OF THE DECISION OF THE DISCIPLINARY OFFICER COMPLAINTS DIVISION TO INSTITUTE TWO DISCIPLINARY CHARGES AGAINST THE CLAIMANT ON OR ABOUT THE 26 TH DAY OF JULY 2010, FOR THE TWO DISCIPLINARY CHARGES OF NEGLECT OF DUTY CONTRARY TO REGULATIONS 150 (2) (D) (1) OF THE POLICE SERVICE REGULATIONS 2007 BETWEEN ASSISTANT SUPERINTENDENT OF POLICE JEFFREY IRISH CLAIMANT AND THE DISCIPLINARY OFFICER COMPLAINTS DIVISION" PROPOSED RESPONDENT BEFORE THE HONOURABLE MADAM JUSTICE JONES Mr. S. Gopaul-Gosine for the Claimant. Mr. D. Byam for the Proposed Respondent. Judgment 1. The Claimant, Jeffrey Irish, has been charged with two disciplinary offences contrary to regulation 150(20(d)(1) of the Police Service Regulations 2007( the Regulations ): namely that Page 1 of 13

2 he neglected to promptly and diligently carry out his duty as the Adjutant for the Special Reserve Police of Trinidad and Tobago when he failed: (i) to carry out a recognised standard procedure for enlisting by recruiting LL into the Special Reserve Police Service, without ensuring that the requisite background checks of LL and (ii) to carry out a recognised standard procedure for enlistment into the Special Reserve Police by recruiting LL without having him submit an enlistment form ( the Charges ). 2. The Respondent is the disciplinary officer appointed by the Commissioner of Police pursuant to regulation 156(1) of the Regulations. 3. The Claimant seeks against the Respondent an order of certiorari to quash the decision to prefer the Charges against him and an order of prohibition to prevent the prosecution of the Charges on the ground that the decision to do so was unlawful and procedurally improper and contrary to natural justice. By my order the hearing of the charges were being stayed until the determination of this judicial review application. Attorneys representing the Respondent appeared at the leave hearing but failed to file written submissions at the substantive hearing. 4. At the leave stage the Respondent submitted that leave ought not to be granted because regulation 156(9) empowers a disciplinary officer to cause an officer to be charged for any disciplinary offence disclosed by the results of the investigation and that in any event there was available to the claimant an alternative remedy, namely the ability to defend the Charges. With Page 2 of 13

3 respect to the first submission I determined that the Claimant had an arguable ground with a realistic prospect of success and with respect to the second submission that the ability to defend the Charges is not in fact an alternative remedy since the Claimant was contending the Charges ought never to have been laid. The ability to defend a charge in my opinion did not provide for the annulment of the charge nor does it attack decision to bring the charge. In the circumstances I gave the Claimant leave to apply for judicial review. Facts 5. The facts are as revealed by the affidavits of the Claimant. These facts are not in dispute. On or around 5 th November 2009 the Claimant was served with a warning notice pursuant to regulation 156(11) which stated that he was being warned that an allegation had been made against him that he recruited LL (name given) to train as a special reserve trainee having prior knowledge that the said LL was dishonourably discharged from the Trinidad and Tobago Regiment following the preferment of drug-related charges against him. 6. By a memorandum dated the 12 th November 2009 from the Respondent the Claimant was advised of the appointment of an investigating officer to investigate the said allegation. In his final report dated 22 nd December 2009, the investigating officer was of the opinion that there was no evidence support to the allegation. On 8 th January 2010 two warning notices were served on the Claimant by the investigating officer. These warning notices purporting to be made under regulation 156(11) advised the Claimant that allegations had been made against him that he had recruited LL to train as a special reserve trainee and failed (i) to ensure that the requisite Page 3 of 13

4 background checks were completed in favour of the said LL; and (ii) to ensure that the said LL submitted his enlistment form and that he may be charged for disciplinary offences. 7. Thereafter nothing happened until the 26th day of July 2010, when the Claimant, was served with memorandum notifying him of the preferment of the Charges against him pursuant to regulation 156(9). The Charges were in the same terms as the allegations contained in the warning notices served on him in January The memorandum further advised him of a disciplinary tribunal hearing scheduled for 17 th August The Claimant now challenges the decision of the Respondent to prefer the Charges against him. He contends that the decision to proceed with the Charges is illegal, procedurally improper, in breach of the rules of natural justice and ultra vires in that, contrary to regulation 156(3) of the Regulations no investigating officer was appointed to investigate the allegations; he was not served a notice specifying the nature of the complaint and not given an opportunity to make an explanation with respect to these allegations. The Respondent, on the other hand, says that the procedure adopted was in keeping with the Regulations and that in any event, in accordance with the Regulations the Claimant would have had the opportunity to be heard on the allegations resulting in the charges by virtue of the earlier investigation. 9. The questions for my determination therefore are, whether in preferring the Charges the Respondent followed the procedure set out in the Regulations and, if not, whether the Claimant is entitled to the relief sought. Page 4 of 13

5 The Regulatory Scheme 10. Part VIII of the Regulations provides a comprehensive disciplinary procedure to be followed by the Commissioner of Police in prosecuting disciplinary offences of this nature. It is not in dispute that these Regulations, and in particular regulation 156, applies in this case. 11. Regulation 156 provides for the appointment of a disciplinary officer in each division, branch or section who shall be responsible for receiving all complaints against an officer by any person: 156(1). Upon the receipt of a complaint in writing against an officer the disciplinary officer shall appoint an investigating officer who shall give the officer concerned a written notice stating: the specific nature of the complainant, that the matter shall be investigated and that the officer concerned may within seven days of receipt of the written notice give to him an explanation in writing concerning the complaint: 156(2). 12. The investigating officer must report promptly to the disciplinary officer. He has 30 days in the first instance and thereafter he may apply for an extension not exceeding 30 days thereafter he must forward a report of his investigations to the disciplinary officer:156(5) and (6). 13. Based on the results of the investigation where the disciplinary officer finds that: (a) the complaint is without substance he shall so inform the officer concerned and the record of the complainant and of the investigation shall be immediately forwarded to the Commissioner for his final determination: 156(8); (b) there is substance in the complainant, he shall cause the officer Page 5 of 13

6 concerned to be charged with any disciplinary offence disclosed and refer the matter to the disciplinary tribunal not later than 20 days of the date of the charge: 156(9). 14. Regulation 156(11) provides that where an officer finds an officer of a lower rank than him committing a disciplinary offence or receives a report from another officer or member of the public, the senior officer shall warn the officer in writing that he may be charged for a disciplinary offence and shall refer the matter to the disciplinary officer immediately. Where an officer is warned under sub regulation (11) sub regulation (2) shall not apply: 156(12). 15. The Regulations therefore describe two situations by which disciplinary proceedings may be commenced against an officer. The first arises where the disciplinary officer is informed of the complaint in writing by an officer junior in rank to the officer concerned, 156(2) and the second arising where an officer finds an officer of lower rank than him committing a disciplinary offence or receives a report of such from some other officer or member of the public, 156(11). 16. In both cases the Regulations require a referral to an investigation officer. In the first instance the disciplinary proceedings are begun by a complaint to the disciplinary officer in writing. In the second case the proceedings are begun by a warning in writing from the senior officer to the officer concerned and an immediate referral to the disciplinary officer. The Regulations specifically provide that where the proceedings are begun pursuant to 156(11) there is no need to comply with 156(2): 156(12). This makes sense because the matter would already been referred to the disciplinary officer in accordance with 156(11). The Regulations do not however suggest that there is no need to comply with regulations 156(3) to (10) with respect to Page 6 of 13

7 proceedings begun by 156(11). Indeed, in my opinion, the presumption is that these regulations, that is 156(3) to 156(10) apply to both 156(2) and 156(11) complaints. 17. At the leave stage the Respondent submitted that regulation 156(9) applies. According to the submission once the disciplinary officer was satisfied that there was substance in the complaint he was empowered by the regulation to charge the officer with any disciplinary offence disclosed. In those circumstances, he submits, there would be no need to re-engage the procedure as outlined by 156(3) to (10). 18. There is no doubt that this is the effect of 156(9). The real question here is whether the Respondent in fact acted in accordance with regulation 156(9) in this case. If he did it goes without saying that the Claimant has no leg to stand on with respect to any procedural irregularity. In addition the question of the right to be heard does not apply because the Claimant would have had the opportunity to be heard in the investigation which resulted in the charges. 19. It is not in dispute that the allegation that was investigated was that the Claimant recruited LL to be trained as special reserve trainee with prior knowledge that he had been discharged from the regiment for drug related offences. Neither is it in dispute that the investigator found that there was no evidence to support the charge. According to the investigating officer the only element of the charge that could be substantiated was that LL was discharged from the regiment. 20. Insofar as the charges are concerned however the following facts are revealed by the Page 7 of 13

8 investigator s report: (i) LL was a trainee recruit and had been so since the 26 th October 2009; (ii) According to LL around the end of October 2009 he attended the Adjutant s office for a letter to take to an educational institution. While there he was told by one WPC Gonzales that there was no enlistment form on his file and was given an enlistment form to fill out. This form was retrieved from him by the investigating officer on the night of the interview; (iii) As a result of the above the investigator solicited a report from WPC Gonzales who indicated that LL s forms had been misplaced and as a result he was requested to fill out new forms. (iv) No suitability reports had been received with respect to LL. 21. It is clear therefore that based on the investigators report while the investigator found that there was no substance in the complaint the report revealed some basis for the preferment of the charges. Indeed it seems to me that the Claimant accepts this when he says at paragraph 8 of his affidavit: The said investigating officer concluded inter alia, that there was no evidence to support the existing allegation made against me. However, he also suggested that there was gross failure to ensure the requisite background checks were completed by me and Mr. L. never submitted his enlistment form to me and it was suggested that I was to ensure same was submitted. Page 8 of 13

9 22. Under regulation 156(9) what is relevant is not the investigator s recommendations but rather the disciplinary officer s conclusions based on the results of the investigation. If, on the basis of the results of the investigation, the disciplinary officer concludes that the complaint is without substance he refers the matter to the Commissioner and that is the end of his involvement in the matter. If, however, he concludes that there is substance in the complaint he is entitled to cause the officer to be charged for any offence disclosed. 23. The Claimant submits that based on the results of the investigation the disciplinary officer could not have properly concluded that there was substance in the complaint. I do not accept the submission. Indeed the Claimant accepts that the report alludes to some failure on his part. Further the charges being investigated was that LL had been recruited into the training programme by the Claimant, despite the fact that the claimant had certain knowledge with respect to his discharge from the regiment. The complaint therefore included the question of LL's recruitment by the Claimant. It cannot therefore be said that the Claimant had no opportunity to answer that allegation. 24. The question here is not whether I would have come to the same conclusion as the Respondent based on the investigators report but rather whether it was open to the Respondent to come to the conclusion that a disciplinary offence was disclosed by the report. On the evidence before me, I find that there was sufficient material in the investigators report for the Respondent to conclude that there was substance in the complaint and that a disciplinary offence was disclosed. Page 9 of 13

10 25. It would seem to me therefore that if this is all that the Respondent did then he could have properly acted under regulation 156(9) and caused the Claimant to be charged with the disciplinary offences disclosed in the investigators report. In that instance the Respondent would be required to have the Claimant charged with the offences and refer the matter to the disciplinary tribunal not later than 20 days of the date of the charge. 26. Unfortunately while this was done by the Respondent certain other things were also done. On the 8 th January 2010 warning notices sent to the Claimant by the investigating officer with respect to the charges pursuant to regulation 156(11). This warning notice, in my opinion, triggered the procedure identified in regulations 156(3) to (10). Thereafter some six months later charges purporting to be brought pursuant to regulation 156(9) were served on the Claimant and the disciplinary tribunal convened. 27. On the one hand therefore, some 17 days after the conclusion of the investigation process, the Claimant is warned of new allegations being made against him in accordance with regulation 156(11), and on the other hand, seven months after the conclusion of the investigation process, he is advised that the Respondent has acted in accordance with regulation 156(9) and referred two disciplinary offences disclosed in the investigator s report to a disciplinary tribunal. The question is whether these facts entitle the Claimant to the relief sought. 28. While it is clear that the Regulations here notwithstanding the fact that regulation 156(9) does not specifically fix a time frame for the disciplinary officer s Page 10 of 13

11 determination with respect to the laying of charges arising out of the investigator s report it is clear that the regulatory scheme provides for the preferment of charges against officers to follow tight timelines. The effect of non-compliance with time limits under regulations dealing with discipline and misconduct in the public service was dealt with by the Judicial Committee of the Privy Council in the case of Herbert Charles v The Judicial and Legal Service Commission and the Disciplinary Tribunal, Privy Council Appeal No. 26 of Their deliberations on the effect of non-compliance with disciplinary regulations are of some assistance. Of particular assistance is the reference to statements of Lord Hailsham in London and Clydeside Estates Limited v Aberdeen District Council[1980] 1WLR 182 at page 189 where he opined that a court having to decide the legal consequence of noncompliance with statutory or regulatory provisions was faced with a spectrum of possibilities. At one end of this spectrum, there may be cases in which a fundamental obligation may have been so outrageously and flagrantly ignored that the subject may safely ignore what has been done and treated as having no legal consequences upon himself. In such a case, if the defaulting authority seeks to rely on its action, it may be that the subject is entitled to use the defect in procedure simply as a shield or defence without having taken any positive action of his own. At the other end of the spectrum the defect in procedure may be so nugatory or trivial that the authority can safely proceed without remedial action confident that if the subject is so misguided as to rely on the fault the court will decline to listen to his complaint. Page 11 of 13

12 29. In the Herbert Charles case the Judicial Committee was of the opinion that the appellant suffered no material prejudice from the breaches of the time limit. In their opinion the case was at the lower end of the spectrum. The question here where on the spectrum does this case fall. 30. While it cannot be disputed that arising out of the investigator s report the disciplinary officer could properly have preferred the charges against the Claimant. It seems to me that this ought to have been done in a timely manner. In my opinion to bring these charges some six months after the receipt by him of the report does not accord with the timeliness envisaged by the Regulations. If, however, this was the end of the case I may be inclined to say that, as in the Herbert Charles case, the effect of this breach was so trivial as not to entitle the Claimant to any relief. 31. It seems to me, however that by the service of the warning notice pursuant to regulation 156 (11) the Claimant was led to believe that a new investigation was to be commenced based on the allegations made against him in that warning notice. Further the fact that no steps were taken pursuant to the warning notice in accordance with the requirements of regulations 156(3) to (10) must have led the Claimant to the conclusion that no further disciplinary proceedings were to be pursued against him. In these circumstances it seems to me that the attempt to bring the charges pursuant to regulation 156(9) some six months after the receipt of the investigator s report brings this case somewhat higher on the spectrum. Page 12 of 13

13 32. To my mind, the Claimant has suffered material prejudice by the decision of the disciplinary officer to pursue charges against him for the following reasons: (i) the disciplinary offences were disclosed in an investigator s report received some seven months earlier; (ii) by the service on him of a warning notice of new allegations the Claimant had been led to believe that a new investigation would have been commenced against him; and (iii) the fact that no further steps had been taken on that warning notice in accordance with regulations 156(3) to (10), by the end of January 2010, the Claimant would have been led to believe that the matter was at the end. 33. Accordingly, I am of the opinion that to proceed with the Charges, in light of what has occurred, is procedurally unfair and in that context is in breach of the rules of natural justice which imposes a duty on the Respondent to act fairly. In the circumstances the Claimant is entitled to an order of certiorari quashing the decision of the Respondent made on or about the 26 th day of July 2010 charging the Claimant with disciplinary charges of neglect of duty contrary to regulation 150(2)(d)(i) of the Regulations and an order of prohibition preventing the Respondent from prosecuting the charges. Dated this 2 nd day of November, Judith Jones Judge Page 13 of 13