Jamaicans for Justice v Police Service Commission and Attorney General

• Jurisdiction: Jamaica
• Judge: Morrison JA,Phillips JA,McIntosh JA
• Judgment Date: 26 February 2015
• Neutral Citation: JM 2015 CA 27,[2015] JMCA Civ 12
• Court: Court of Appeal (Jamaica)
• Docket Number: CIVIL APPEAL NO 154/2012
• Date: 26 February 2015

[2015] JMCA Civ 12

JAMAICA

IN THE COURT OF APPEAL

SUPREME COURT

Before:

The Hon Mr Justice Morrison JA

The Hon Miss Justice Phillips JA

The Hon Mrs Justice McIntosh JA

CIVIL APPEAL NO 154/2012

Between

Jamaicans for Justice

Appellant

and

Police Service Commission

1st Respondent

and

The Attorney General

2nd Respondent

Richard Small , Miss Camille Lee and John Clark for the appellant

Miss Carlene Larmond and Miss Lisa White instructed by the Director of State Proceedings for the respondents

CONSTITUTIONAL LAW - Judicial review - Police officer - Duty of Public Service Commission to ensure independent, thorough and impartial investigations are carried out into allegations of serious misconduct and possible breach of constitutional right of citizens - Wednesbury unreasonableness principle - Difference between disciplinary process and promotional process - Role of INDECOM - Public dimension of decision - Public Service Regulations 1961

Morrison JA

Introduction

1 The appellant (‘JFJ’) is a citizens' rights, non-governmental organisation, with a particular interest in, among other things, the representation of vulnerable members of society who complain that they have suffered human rights abuses at the hands of agents of the state.

2 The — ^st respondent (‘the PSC’) is established by section 129 of the Constitution of Jamaica (‘the Constitution’). The PSC is one of two independent commissions established under chapter IX of the Constitution 1 , under the general rubric, ‘The Public Service’. Members of the PSC are appointed (for five year terms at a time) by the Governor-General, on the recommendation of the Prime Minister, after consultation with the Leader of the Opposition 2 . Salaries and allowances of the members of the PSC, which are fixed by law or by resolution of the House of Representatives, are a charge on the Consolidated Fund and may not be reduced during the members' continuance in office 3.

3 In the performance of its functions, the PSC is governed by the provisions of the Police Service Regulations, 1961 ("the PSR") (made under section 87 of the Jamaica (Constitution) Order in Council, 1959 and preserved by section 2 of the Jamaica (Constitution) Order in Council, 1962). Pursuant to section 13(a) of the PSR, the PSC is required to make recommendations to the Governor-General with respect to, among other things, appointment, promotion, termination and discipline of members of the Jamaica Constabulary Force ("the JCF"). Of particular relevance to the present

proceedings are sections 15 and 16, which set out the applicable principles of selection for promotion in the JCF

4 Section 15(1) establishes the basic principle, which is that, in considering the eligibility of members for promotion, the PSC “shall take into account not only his seniority, experience and educational qualifications but also his merit, ability and good conduct”. Section 15(2) lists a number of specific factors which the PSC is required to take into account in respect of each member, as follows:

• “(a) his general fitness;

• (b) his seniority;

• (c) his basic educational qualifications and any special qualifications;

• (d) any special course of training that he may have undergone (whether at the expense of Government or otherwise);

• (e) markings and comments made in confidential reports by any officer under whom the member concerned worked during his service;

• (f) any letters of commendation in respect of any special work done by the member;

• (g) the duties of which he has had knowledge and experience;

• (h) the duties of the post for which he is a candidate;

• (i) any specific recommendation of the Commissioner for filling the particular posts;

• (j) any previous employment of his in the public service or the Force or otherwise;

• (k) any special reports for which the Commission may call.”

5 Section 15(3) enters a caveat, which is that, notwithstanding anything in section 15(1) and (2), “the Commission shall at all times give preference to members who have manifested superior intelligence and efficiency in the performance of their functions”. And finally, section 16(1) provides that the procedure for making recommendations in relation to “[a]n acting appointment as a prelude to a substantive appointment shall be the same as that prescribed in regulation 15” (although, as section 16(2) makes clear, an acting appointment “arising from the absence from duty of an officer on leave may be made without strict regard being had to the provision of regulation 15”).

6 On 30 October 2012, B Morrison J refused an application by JFJ for orders of certiorari and mandamus directed to the PSC. The application was made in respect of the decision made by the PSC on 15 April 2011 to recommend to the Governor-General that Superintendent Delroy Hewitt (‘SP Hewitt’), a member of the JCF, should be promoted to the rank of Senior Superintendent, with effect from 1 April 2011 (‘the decision’).

7 By notice of appeal filed on 11 December 2011, JFJ appealed from the judge's decision. The main burden of JFJ's complaint on appeal is that the PSC, in considering the question of SP Hewitt's promotion, ought to have conducted or caused to be conducted an effective, thorough and impartial investigation into allegations of misconduct made against him by JFJ and others. In particular, JFJ contends, the PSC ought to have referred the matter to the Independent Commission on Investigations (‘Indecom’), the special commission of Parliament established by the Independent Commission of Investigations Act, 2010 (‘the ICIA’). For this and other reasons, JFJ now seeks orders of certiorari and mandamus from this court (i) quashing the decision; and (ii) directing the PSC “to cause to be conducted an effective, thorough and impartial investigation into the allegations of misconduct made against [SP Hewitt] and directing the [PSC] to reconsider its decision in the light of such effective, thorough and impartial investigation”.

8 For its part, the PSC contends by way of counter-notice of appeal filed on 23 January 2012 that the judge's decision should be affirmed, not only for the reasons given in the judgment, but also on the ground that JFJ lacked a sufficient interest in the subject matter of the application to give it standing for judicial review.

9 Broadly stated, the issues which arise on this appeal are therefore (i) whether, at the time of making the application for judicial review, JFJ had a sufficient interest in the subject matter, as required by rule 56.2(1) of the Civil Procedure Rules 2002 (‘the CPR’); and (ii) whether, given the provisions of sections 15 and 16 of the PSR, and on the material before him, the judge ought to have made orders of certiorari and mandamus against the PSC.

10 The evidence relied on by both parties was presented entirely by way of affidavit, two on each side. JFJ relied on the affidavits of David Silvera (‘Mr Silvera’), a former chairperson of its Board of Directors, and Jennifer Carolyn Gomes (‘Dr Gomes’), its Executive Director; while the PSC relied on the affidavits of Gordon Shirley (‘Professor Shirley’), its chairman at the material time, and Granville Gauze (‘ACP Gauze’), who was at the material time an Assistant Commissioner of Police in charge of the Bureau of Special Investigations (‘the BSI’) of the JCF. As there were very few matters of fact in dispute between the parties, the summary of the evidence which follows is based on the uncontested information contained in all of the affidavits, without, save where necessary for clarity, specific attribution. However, because of the nature of JFJ's complaint against the PSC, it is regrettably necessary to recount the facts in somewhat greater detail than might ordinarily be the case.

SP Hewitt

11 SP Hewitt is a career police officer. At the material time, he had had a total of almost 40 years' service in the JCF. Over that period, he had been promoted through the ranks of the JCF and was appointed Superintendent of Police with effect from 1 January 2006. For several years prior to 2009, SP Hewitt was stationed in the Kingston Western and St Andrew South Divisions of the Corporate Area. It is clear from the evidence that he was held in extremely high regard by the leadership of the JCF.

The roots of JFJ's discontent

12 Among other things, JFJ provides legal advice and assistance to persons who complain of having family members who have been fatally shot or injured or subjected to abuse by members of the security forces. Whenever complaints of police misconduct are received, the complainants are usually referred by JFJ to the BSI, the Police Public Complaints Authority (‘the PPCA’) or, now, to Indecom.

13 On JFJ's account, it had begun to receive complaints about the conduct of SP Hewitt and the men under his command from as early as 2000 and, in a letter to the BSI dated 26 January 2009, JFJ advised that it was “continuously receiving disturbing complaints of victimization by the police, from persons in various communities under [SP] Hewitt's charge”. In that letter, JFJ requested the BSI to provide “a list of matters with which [SP] Hewitt is implicated and/or in which allegations of misconduct have been made against him”. BSI's response (in a letter mistakenly dated 21 January 2009) was that, because its mandate was “to investigate shootings by the police…complaints of allegations of misconduct in the nature that you have highlighted would not be within our jurisdiction”. Accordingly, BSI indicated that JFJ should direct its request to either the Inspectorate of the Constabulary or the PPCA, and “strongly” suggested “that formal complaints be made of the allegations raised”.

The complaint

14 JFJ's concerns were first brought to the attention of the Commissioner of Police (‘the Commissioner’) at a meeting at his office on 1 June 2009. Then,...