Dottin (The Commissioner of Police) v Belgrave (Governor General) and the Police Service Commission
| Jurisdiction | Barbados |
| Judge | Burgess J.A. |
| Judgment Date | 31 March 2017 |
| Neutral Citation | BB 2017 CA 4 |
| Docket Number | Civil Appeal No. 14 of 2013 |
| Court | Court of Appeal (Barbados) |
| Date | 31 March 2017 |
Court of Appeal
Gibson, C.J.; Burgess, J.A.; Goodridge, J.A.
Civil Appeal No. 14 of 2013
Mr. Elliott D. Mottley QC, Mr. Leslie Haynes QC, Ms. Andrea Simon and Ms. Michelle Selman for the appellant.
Ms. Donna Brathwite QC for the first respondent.
Mr. Patterson K.H. Cheltenham QC, Mr. Hal McL. Gollop QC, Mr. Alrick Scott and Ms. Natasha Green for the second respondent.
Civil practice and procedure - Application for interim relief — Injunctions — Whether judge was correct in refusing interim declarations — Whether Court of Appeal had jurisdiction to interfere with exercise by judge of her discretion to discharge injunction — Whether sufficient grounds to invoke such jurisdiction — Appeal dismissed.
The appellant, the claimant below, applied for judicial review of the decision of the first respondent, the first defendant below, to place him on “administrative leave” and the recommendation/decision of the second respondent, the second defendant below, to cause the appellant to be retired in the public interest. The appellant also sought interim relief against the first respondent by way of injunctions and declarations.
The application for interim relief was heard in the High Court by Reifer, J. who refused the interim relief sought by the appellant. The appeal before us is an appeal by the appellant against the decision of Reifer J.
The appellant was at the relevant time the Commissioner of Police. In a 16-page letter dated 10 June 2013, addressed to the first respondent and signed by the members of the second respondent, the second respondent recommended to the first respondent that the appellant be retired from the public service pursuant to section 11 of the Pensions Act, Cap. 25 (Cap. 25). The letter set out, inter alia, the basis for the recommendation, considered the process to be adopted to accord the appellant procedural fairness, and offered the opinion that the matter raised issues of national security.
On 13 June 2013, an addendum to the 10 June 2013 letter signed by the Chairman of the second defendant was sent to the first defendant. The addendum read in the relevant part as follows:
“Reference is made to our recommendation of 10 June, 2013 …At a meeting of the members of the Commission held on 13 June, 2013, it was decided that this addendum to that correspondence should be forwarded for your consideration.
We recommend that the Commissioner by (sic) informed that pursuant to section 11 (2) (b) of the Pensions Act, Cap 25 of the Laws of Barbados, the Police Service Commission has recommended that he be retired from the public service in accordance with your powers conferred by section 11 (1) (a) of the said Act.
So as to facilitate your consideration of our recommendation, the Commissioner, in the public interest, should be asked to immediately proceed on administrative leave. All of his usual conditions and benefits should remain intact. Within twenty one (21) days of the date of the notice being given to the Commissioner, he should be provided with a copy of the relevant portion of that recommendation.
The Commissioner should be given twenty eight (28) days after receipt of the relevant information to furnish Your Excellency with the reasons why the Commission's recommendation should not be accepted.
Will His Excellency please accept and approve the recommendation of the Police Service Commission that
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(a) the Commissioner of Police be immediately sent on administrative leave,
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(b) within twenty one (21) days of notification of the Commission's recommendation, the Commissioner be served with a copy of the information under consideration by Your Excellency,
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(c) within twenty eight (28) days after he received a copy of the information being considered by Your Excellency, the Commissioner be invited to furnish Your Excellency with reasons why the Commission's recommendation should not be accepted,
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(d) after considering the representations of the Commissioner of Police, if those representations do not negative the recommendation of the Commission, that the Commissioner of Police be compulsorily retired from service of the Crown under section 11(1)(a) of the Pensions Act, Cap 25 of the Laws of Barbados.”
Four days later, by a letter dated 17 June 2013 signed by the Chairman of the second respondent and addressed to the appellant, the appellant was advised as follows:
“I write to inform you that His Excellency, Sir Elliott Fitzroy Belgrave, G.C.M.C., K.A., Governor General of Barbados, has been advised by the Police Service Commission to exercise the power conferred on him by section 11(1)(a) of the Pensions Act, Cap. 25, and requested that you, in the public interest, be retired from the office of Commissioner of Police.
His Excellency directed the Police Service Commission to provide you with copies of all statements and other evidence which was considered by the Police Service Commission in reaching its decision that you should be required to retire in the public interest, within twenty one (21) days of today's date, 17 June, 2013.
His Excellency has further advised that within twenty eight (28) days thereafter, you may provide him with any statement or other evidence or document which, in your opinion, will cast doubt on, or completely rebut the case presented to his Excellency by the Police Service Commission and which is capable of showing that His Excellency should not act on the advice of the Police Service Commission, that you should be retired from the office of Commissioner of Police.
His Excellency expressed the view that when he is fully satisfied that all the rules of natural justice as they apply to your case have been satisfied, he would be in a position to determine whether or not you should be required to retire.
His Excellency is, however, of the view, that you should be placed on administrative leave with immediate effect, today 17 June, 2013, until further notice.
I am further advised that on the advice of the Police Service Commission, after consultation with the Prime Minister, His Excellency has appointed Mr. Tyrone Griffith, Assistant Commissioner of Police, to act as Commissioner of Police with effect from today, 17 June, 2013, until further notice.
You should conduct yourself accordingly.”
Thereupon, by fixed date claim form dated 20 June 2013, amended on 27 June 2013, the appellant applied under the Administrative Justice Act, Cap. 109B (Cap. 109B) for judicial review of the decision of the first respondent to place him on “administrative leave” and the recommendation/decision of the second respondent to cause the appellant to be retired “in the public interest”. In its amended fixed date claim form, the appellant also sought interim relief as follows:
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“9. An Injunction to restrain the first defendant, by himself, his servants and/or agents or otherwise howsoever, from taking any further steps or action to cause the claimant to be retired from the Office of Commissioner of Police under the provisions of section 11(1)(a) of the Pensions Act, Cap. 25 or at all.
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10. An Injunction to restrain the first defendant, by himself, his servants and/or agents or otherwise howsoever, from taking any step or doing any act to cause the office of Commissioner of Police to be filled by a permanent appointment until after the trial of these proceedings or other order.
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11. An Order that all proceedings relating to the removal of the claimant from the office of Commissioner of Police by the first defendant be stayed pending the determination of the trial of these proceedings;
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12. An order that pending the determination of the trial of these proceedings the status quo be maintained so that the claimant is permitted to return to work/resume the office of Commissioner of Police.”
The appellant filed two affidavits in support dated 20 June and 4 July 2013 respectively.
The claim for interim relief came on for hearing before Reifer, J. in the High Court on 24 and 28 June 2013 and 5, 10 and 11 July 2013. On 10 July 2013, the second respondent entered a plea in bar to the application for interim relief that, on grounds of national security, the second respondent's recommendations/decisions were immune from judicial review. On that same date two affidavits were filed under seal of the Registrar by the second respondent and on 12 July 2013, the appellant filed an affidavit in response to the second respondent's affidavits.
A special order was made by the judge with respect to these three affidavits, consequent upon their contents, in a course of action agreed by all parties in an effort to avoid the unwarranted or unjustified disclosure of their contents as, in the submission of counsel for the second appellant, they raised grave issues of national security. The order was that those documents be filed with the Registrar of the Supreme Court personally, who would immediately thereafter seal them and return them to the judge.
On 18 September 2013, Reifer, J. delivered her judgment. With respect to the second respondent's plea in bar, she held at para [55] of her judgment that “the evidence provided by way of Affidavit evidence in this matter does not, at this stage of the proceedings, meet the threshold necessary to successfully ground a plea of National Security”. As regards the appellant's claim for interim relief, she made the following order at para [71] of her judgment:
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“(1) All action taken in this matter to date by the second defendant is stayed and the second defendant is restrained from making any further recommendations to the first defendant to effect the compulsory retirement of the claimant from the Office of Commissioner of Police under the provisions of section 11(1)(a) of the Pensions Act, Cap...
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