Police Service Commission, Commissioner of Police, Attorney General and Governor General
| Jurisdiction | Barbados |
| Judge | Reifer, J. |
| Judgment Date | 04 March 2014 |
| Neutral Citation | BB 2014 HC 9 |
| Docket Number | 1280 of 2012; 1281 of 2012; 1316 of 2012 |
| Court | High Court (Barbados) |
| Date | 04 March 2014 |
High Court
Reifer, J.
1280 of 2012; 1281 of 2012; 1316 of 2012
Mr. Alair Shepherd QC in association with Ms. Jennivieve Maynard and Mr. Kevin Miller for the claimant Errol Ellis (#1316/2012).
Mr. Tariq Khan, Attorney-at-Law, for the Police Service Commission.
Ms. Donna Brathwaite QC for the first, third and fourth respondents.
Mr. Ralph Thorne QC in association with Ms. Mechelle Forde for the claimants (1280 and 1281/2012).
Constitutional Law - Fundamental rights and freedoms — Right to a fair hearing — Doctrine of Separation of Powers — Constitutionality of sections 9 and 10 of the Service Commissions Act.
This is a matter involving three separately filed (July 2012) applications for judicial review, which on the 1st November, 2012 were consolidated by Order of Chandler, J. on an application of counsel in suit #1316/2012 filed 27th September, 2012.
The respondents to the claims are largely the same, with the exception in the last filed claim (1316/2012) of a fourth respondent, being the Governor General of Barbados.
The first respondent is the Commissioner of Police of the Royal Barbados Police Force, the functionary or public official charged with the “responsibility for the command and superintendence of the Royal Barbados Police Force under the Police Act, Cap.167 of the laws of Barbados”.
The second respondent, the Police Service Commission, is “an authority of the Government of Barbados established by virtue of section 91 of the Constitution of Barbados charged with the power and duty conferred by the Constitution to determine, inter alia, the appointment of police officers.”
The third respondent, the Attorney General “is being sued as the Representative of the Crown in right of its government of Barbados pursuant to the provisions of the Crown Proceedings Act, Cap. 197.”
The fourth defendant in the third claim, the Governor General, “is joined as his Office is the office ultimately responsible for making all promotions within the Barbados Police Force acting on the representation of the Police Service Commission.”
Chandler, J. further granted leave to counsel in that matter to amend his Statement of Case in terms that will be outlined later in this judgment as that amendment is the genesis of the current matter for determination, namely, a preliminary submission on a point of Constitutional importance.
At this stage, it is relevant to briefly outline the nature of the substantive application which is generally (but not entirely) the same in all three actions. They have however been precipitated by the same event and for reasons which will become evident have been titled locally as “The Police Promotions Case(s)”.
It was a matter of public knowledge within the Royal Barbados Police Force in and about 2012, that there were a number of senior positions currently or, soon to be, vacant as a result of senior officers retiring or nearing retirement. In fact, it is deposed by several of the claimants that in May 2012 the first respondent (Commissioner of Police) actually met with a general assembly of police officers to inform them of the existence of a high number of vacancies among the higher ranks of the Royal Barbados Police Force.
The listed claimants were generally aware that they had been recommended for promotion and/or fell within the “zone of promotion” pursuant to the rules governing promotion within the Royal Barbados Police Force (presumably by the Promotions Advisory Board and/or the Commissioner of Police.)
Sometime in mid-July 2012 (immediately prior to the commencement of these legal proceedings) it was made known (as deposed by the claimants) that police officers who had not been recommended by the Promotions Advisory Board and by the Commissioner's Office were to be promoted to the vacant senior positions with effect from 1st August, 2012 (some in fact purported to take effect from 15th July, 2012) and these said police officers were purportedly about to be handed their instruments of promotion instead of the claimants.
This fact was allegedly made known by the delivery to the first respondent/Commissioner of Police by the second respondent/Police Service Commission of letters of appointment.
Generally, all claimants (being those officers who had been informed of their recommendation for promotion and not included in the list of persons to receive instruments of promotion) are aggrieved that their respective expectation of promotion within the ranks of the Force has been defeated by certain alleged unlawful acts (in breach of the Administrative Justice Act, Cap. 109B and the rules relating to promotions) deemed by them to be unreasonable, irregular, arbitrary, improper, an abuse of power and in bad faith.
In the first claim (1280/2012) fourteen (14) police officers sought Judicial Review of the decision of the second respondent (the Police Service Commission) in failing to promote them to certain specified ranks in the Royal Barbados Police Force (at the rank of Sargeant and above) and to certain attendant declarations. In essence, they allege that the Police Service Commission has failed to follow the correct procedure in relation to the recommendations made by the Police Service Commission to the Governor General.
In the second claim, one police officer seeks relief in identical terms to the first claim (1280/2012). It is of course relevant that the same counsel acts in claims 1 and 2.
In the third claim filed by a second/different attorney-at-law, a single police officer seeks judicial review, inter alia, of the decision of the Police Service Commission (the first named respondent in that action) to promote certain officers to various ranks in the Royal Barbados Police Force with effect from the 1st day of August 2012. He has requested that the Police Service Commission provide him with reasons as to why he has not been promoted in view of the fact that he is within the “zone of promotion”. The Police Service Commission while responding to the effect that he was considered, has declined to say ‘why’ he has not received a promotion.
As stated above, this is similar but different relief as that being sought in claims 1 and 2. The difference between these three consolidated claims will not be explored in this preliminary application but may be of real significance in the determination of the substantive action.
Pursuant to an Application for Interim Relief (Application for Court Orders During or After the Course of Court Proceedings) filed under claims 1280 and 1281, Kentish J on the 13th August, 2012 ordered, inter alia, the following:
“That the respondents/defendants be and are hereby restrained either by themselves, their servants and/or agents or howsoever otherwise from delivering or publishing in the Official Gazette or in any manner whatsoever or otherwise confirming to anyone the recent letter of appointment delivered to the respondent/defendant (Commissioner of Police) to implement the said appointments until the hearing and determination of the substantive application for review.”
A perusal of the file by this Court suggests that this current application is as a result of the content of an Affidavit in Response to claim 1316/2012 filed 2nd August, 2012 by the then Chairman of the Police Service Commission, Dr. Trevor Austin Carmichael Q.C. (as he then was), because it was shortly thereafter (on 27th September, 2012) that counsel for the third claim filed the Application presently before the Court. At the heart of the response by the Chairman of the Police Service Commission was a reference to and reliance on the requirements of sections 9 and 10 of the Service Commissions Act, Cap 34 the provisions of which said sections apply to all the individuals connected with these proceedings.
Section 9 and 10 of the Service Commissions Act state as follows:
“9. A person shall not in any legal proceedings be permitted or compelled to produce or disclose any communication, whether written or oral, which has taken place between the Commission or any member of the Commission and the Government or the Governor-General or any member of the Governor General's personal staff, or the head of a department of Government, or any communication between any member of the Commission and the Chairman or between the members in exercise of, or in connection with the exercise of, the functions of the Commission, unless the Governor-General, after consultation with the Chairman, consents in writing to such production and disclosure.
10. (1) No member of the Commission or any other person shall, without the written permission of the Governor-General, publish or disclose to any unauthorized person or otherwise than in the course of duty the contents or any part of the contents of any document, communication or information whatsoever which has come to his knowledge in the course of his duties in respect of any matters relating to the functions of the Commission.”
Significantly, subsection (2) ascribes criminal status and sanctions to a contravention of this provision.
The Application presently before this Court appears to flow from a continuation of the proceedings before Kentish, J. (after the Order made by Chandler, J. on 1st November, 2012 consolidating all the actions and granting leave to amend claim #1316/2012), and pursuant to the Order made by her on 9th January, 2013 similar in terms to the Application of 27th September, 2012 in which it was ordered, inter alia, that the...
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