Berrington Gordon v Commissioner of Police

• Jurisdiction: Jamaica
• Judge: Sykes J
• Judgment Date: 01 May 2012
• Neutral Citation: [2012] JMSC Civ 46
• Docket Number: CLAIM NO 2009 HCV 05590
• Court: Supreme Court (Jamaica)
• Date: 01 May 2012

Between

Berrington Gordon

Claimant

and

Commissioner of Police

Defendant

[2012] JMSC Civ 46

CLAIM NO 2009 HCV 05590

IN THE SUPREME COURT OF JUDICATURE

CIVIL DIVISION

APPLICATION FOR JUDICIAL REVIEW — REHEARING BY DECISION MAKER OF PREVIOUS DECISION —BREACH OF DUTY OF FAIRNESS — WHAT FAIRNESS DEMANDS WHEN THERE IS A REHEARING —LEGITIMATE EXPECTATION — WHETHER DAMAGES CAN BE AWARDED FOR UNLAWFUL ADMINISTRATIVE ACTION

Denise Senior-Smith instructed by Oswest Senior-Smith and Co for the claimant

Curtis Cochrane , Director of State Proceedings for the defendant

IN OPEN COURT

Sykes J

1 This is an application for judicial review where Corporal Berrington Gordon is asking for:

• a. a declaration that the decision not to permit him to re-enlist is void and in breach of the principles of natural justice and his legitimate expectation to be re-enlisted;

• b. certiorari to quash the decision of the Commissioner of Police not to permit him to re-enlist;

• c. an order that a hearing be held for him to be heard regarding the decision of the Commissioner of Police not to allow his re-enlistment;

• d. damages;

• e. costs

• f. such further or other relief as the court thinks fit.

2 The relief of damages can be dealt with summarily. It is well established that unlawful administrative action does not generally give rise to a claim for damages. It is true that a functionary can be held liable in damages in negligence, breach of statutory duty and misfeasance in public office but that is because the conduct of the functionary goes beyond mere unlawful conduct. Judicial review is about process not merits and an unlawful process does not usually give rise to damages unless there is some other kind of conduct than just, for example, a failure to be fair. Usually, for damages to be claimed because of an unfair process there usually has to be an assertion (supported by evidence) that the decision maker acted out of malice or spite towards the applicant for judicial review. Also, it is my view that if the claimant is seeking damages the pleaded case ought to set out the factual basis for such a claim. To simply state the claim for damages in the fixed date claim form without following up, in the affidavit, with stating the facts on which the claim is based is not sufficient. Fairness demands that the defendant knows the case he is going to meet. For these reasons the claim for damages fails.

Summary of facts

3 According to the Constabulary Force Act (the Act) and attendant rules and regulations, persons of the rank of Corporal Gordon on joining the Jamaica Constabulary Force (JCF) are engaged for five years initially and thereafter they are required to apply for re-enlistment. If successful, the person will be engaged for another five years. This is the process of engagement of police officers until they reach the gazette ranks.

4 Corporal Gordon enlisted in the Jamaica Constabulary Force (JCF) on August 18, 1994. Since that time he has had two successful re-enlistment applications. In May 2009 he applied to be re-enlisted third time and it was the rejection of this application by the Commissioner of Police (CP) that has sparked this judicial review.

5 The Corporal stated that on July 29, 2009, he was handed a letter from the CP which stated that he would not be re-enlisted. That letter also stated the reasons for the CP's decision and closed by saying that he had seven days to respond “as to why [his] re-enlistment in the Jamaica Constabulary Force should not be refused.” By a response dated August 5, 2009, the Corporal refuted the allegations made against him in the CP's letter and asked that he be “given an opportunity to defend those allegations before a fair and impartial tribunal.”

6 It appears that neither the CP nor the Corporal regarded the August 5 missive as the only opportunity to be heard after which a final decision would be taken. This is supported by an exhibit to the affidavit of Assistant Commissioner of Police Baldwin Burey. The exhibit is a document headed “Formal Hearing offered to N0. 6705 Corporal Barrington K. Gordon — St. Catherine North Division.” The first sentence reads “A formal hearing was granted to No. 6705 Corporal B. Gordon on August 25, 2009 at 3:3opm by the Commissioner of Police.”

7 At the end of the hearing, the CP reaffirmed the decision that the Corporal would not be permitted to re-enlist.

8 It should be noted that I have not stated what the allegations against the Corporal were. It would not be appropriate in light of the fact that a re-hearing has been ordered and at the end of the day, the allegations against the Corporal may prove to be unfounded. However it must be said that if the allegations are true then the Corporal should not be re-enlisted.

The submissions

9 Mrs Denise Senior-Smith submitted that what took place on August 25, 2009 was not a hearing as contemplated by the principles of natural justice or fairness. She contended that it was not sufficient for the CP to have a hearing but the hearing must be fair. The court understood her to mean that if the hearing was to be meaningful then the CP ought to approach the matter with an open mind in the sense that he would genuinely listen to the submissions or representations made to him and if they found favour with him, he should be willing to change his mind. There would not be a fair hearing if the CP just went through the motions with no intention of reconsidering his position. Just to make it clear, Mrs Senior-Smith's attack on the CP's decision is not that it is so unreasonable that no reasonable CP could have come to the decision what was eventually made but rather about process and the steps along the way to the final decision.

10 On the other hand, Mr Curtis Cochrane submitted that the Corporal was the beneficiary of exceptional indulgence. He received not just one (the August 5 response) but two hearings (the August 25 meeting). In effect, the Corporal made written submissions and had an opportunity to make oral submissions. The fact that the CP was unpersuaded by either submission does not translate into a breach of natural justice.

The legal principles

11 Before examining the issues raised in some detail it is important to state the legal context in which this application will be decided. Though it has been common to speak of natural justice perhaps is it better to speak of the duty to be fair. What is fair is not unchangeable. It all depends on the circumstances. The following cases support this point.

12 In Lloyd v McMahon [1987] 1 All ER 1118, Lord Bridge indicated at page 1161:

My Lords, the so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates.

13 Lord Mustill spoke in similar terms in Regina v. Secretary of State for the Home Department, Ex parte Doody [1994] 1 A.C. 531, 560 —561:

What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer. …

Conversely, … it is not enough for [the Corporal] to persuade the court that some procedure other than the one adopted by the decision-maker would be better or more fair. Rather, [he] must show that the procedure is actually unfair. The court must constantly bear in mind that it is to the decision maker, not the court, that Parliament has entrusted not only the making of the decision but also the choice as to how the decision is made.

14 Ex p Doody was approved by the Court of Appeal of Jamaica in Wood and Thompson v DPP [2012] JMCA Misc 1 [17].

15 In the case before this court, the allegation is that there was unfairness in the rehearing. It has been said in the instant case that there are no rules prescribing the process leading to the decision. That may be so but no decision maker has a license to be unfair. What has just been stated is supported by the case of AMEC Capital Projects Ltd v Whitefriars City Estates Ltd [2005] 1 All ER 723. The Court of Appeal in that case was speaking in the context of adjudication in a construction...