R (ex parte Ira Raphington) v Commissioner of Police and Attorney General for Jamaica

• Jurisdiction: Jamaica
• Judge: BROOKS, J.
• Judgment Date: 25 October 2007
• Judgment citation (vLex): [2007] 10 JJC 2501
• Court: Supreme Court (Jamaica)
• Date: 25 October 2007
• Docket Number: CLAIM NO. 2006 HCV 00925

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2006 HCV 00925

Regina vs. The Commissioner of Police Ex parte Ira Raphington

BETWEEN

REGINA ( Ex parte Ira Raphington)

CLAIMANT

AND

THE COMMISSIONER OF POLICE

1 ^ST DEFENDANT

AND

THE ATTORNEY GENERAL FOR JAMAICA

2 ^ND DEFENDANT

JUDICIAL REVIEW - Police Officer - Promotion reversed

BROOKS, J

1 Detective Corporal Ira Raphington's joy at being promoted to the rank of Sergeant on December 15, 2005 was short-lived. One week after receiving the felicitous news, he was informed that his promotion had been cancelled. On both occasions it was a publication, known as the "Jamaica Constabulary Force Orders" and intended to be communicated to all the members of the Constabulary Force, which was used to convey the news. He had no prior notice of the cancellation or that such an action was being considered by the Commissioner of Police who had bestowed the promotion.

2 Detective Raphington now seeks to have this court review the later action of the Commissioner, set aside the cancellation and order the Commissioner to restore the promotion.

3 The Commissioner's response is that the promotion was subject to a probationary period of six months and that in those circumstances he was entitled to cancel it without reference to Detective Raphington. The Commissioner insists that the cancellation did not constitute disciplinary action taken against Detective Raphington. He asserts that, at the time of the granting of the promotion, there were some outstanding investigations concerning the detective, of which he, the Commissioner, was unaware. On being told about the investigations, he cancelled the promotion pending those investigations being concluded. In any event, says the Commissioner, he has since assigned the post to another member of the force.

4 The issues to be resolved are, firstly, whether the cancellation amounted to disciplinary action which required the Commissioner to follow the relevant procedure laid down in the Police Service Regulations, and secondly, there being allegations being made against him, whether the natural law principle of affording Detective Raphington a hearing, applied. I shall deal with each issue in turn, but first have to consider a preliminary point raised by Miss Manley on behalf of the Attorney General.

5 Preliminary point

6 Miss Manley submitted that the Attorney General is not a proper party to the proceedings and should be removed therefrom. The point made by counsel was that prerogative remedies cannot lie against the Crown since it is the Crown which is the substantive applicant. Counsel relied on the authority of Millicent Forbes v. The Attorney General of Jamaica (SCCA 29/05 (delivered 20/12/06).

7 Mr. Wellesley, appearing for Detective Raphington, argued that because the Commissioner is a servant of the Crown, it would be necessary to join the Attorney General by virtue of the Crown Proceedings Act. Mr. Wellesley submitted that it would not be appropriate to bring the application solely against the Commissioner.

8 I am not in agreement with Mr. Wellesley on these submissions. The nomenclature given to the action reveals the nature of the matter. It is the Crown which assists Detective Raphington. In Millicent Forbes Harrison, P stated at page 17 that, "[p]rerogative orders, such as certiorari cannot be brought against the Crown because, it is at the instance of the Crown that they are initiated". Cooke J.A. in that case (at page 32), quoted from pages 623–4 of Administrative Law (Wade and Forsyth) 7 ^th Ed.:

"Certiorari is used to bring up into the High Court the decision of some inferior tribunal or authority in order that it may be investigated....The underlying policy is that all inferior courts and authorities have only limited jurisdiction or powers and must be kept within their legal bounds. This is the concern of the Crown, for the sake of orderly administration of justice, but it is a private complaint which sets the Crown in motion. The Crown is the nominal plaintiff but is expressed to act on behalf of the applicant, so that an application by Smith to quash an order of (for instance) a rent tribunal would be entitled R. v. The - Rent Tribunal, ex parte Smith...." (Emphasis supplied)

9 I respectfully adopt the view of the learned authors.

10 Were the matter of a public nature, Detective Raphington would have had to have secured the leave of the Attorney General to bring the claim. It is to be noted that he claims orders of certiorari and mandamus, and not a declaration. I find that, in these circumstances, the Attorney General is not a proper party these proceedings.

11 Does the cancellation of the promotion amount to disciplinary action?

12 The provisions dealing with promotions in the Constabulary Force are outlined in regulation 24(1) and (5) of the Police Service Regulations, 1961 ("the regulations). These require that each promotion is subject to a period of probation and that before the expiry of the probation period a report must be prepared in respect of the member so promoted. The probation period for sergeants is six months. Regulation 24 (4) provides that the report in respect of the member promoted, should be accompanied by a...