R exparte Livingston Owayne Small v Commissioner of Police and Attorney General

• Jurisdiction: Jamaica
• Judge: Campbell J
• Judgment Date: 18 September 2006
• Judgment citation (vLex): [2006] 9 JJC 1801
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2003/HCV 2362
• Date: 18 September 2006

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2003/HCV 2362

BETWEEN

REGINA ex parte LIVINGSTON OWAYNE SMALL

CLAIMANT

AND

THE COMMISSIONER OF POLICE

1 ^ST DEFENDANT

AND

THE ATTORNEY GENERAL

2 ^ND DEFENDANT

Judicial Review 舒 Certiorari 舒 Decision 舒 Civil Procedure Rule 56.16(1) Brutum fulmen 舒 Alternative Remedy 舒 Delay. Wednesbury Resonableness

JUDICIAL REVIEW - Police Officer

Campbell J

1 (1) The applicant was a Student Constable of Police in training at the Twickenham Park Police Academy. He became a member on the 9 ^th September 2002 and was due to graduate from the Academy on the 11 ^th June 2003.

2 (2) A report was made to the Commandant of the Academy, that the applicant was seen engaged in sexual intercourse with a female student of that Academy. He was subsequently dismissed from the Academy on the 16 ^th May, 2003. Between the time of his dismissal and the filing of the application for Court Orders on the 5 ^th December 2003, he occupied himself in seeking the assistance of the Police Federation and an attorney-at-law who wrote to the Commissioner in September 2003, seeking reinstatement.

3 (3) His application seeks an Order of Certiorari to quash the Commandants decision and an order of mandamus directed to the Commandant or the Commissioner of Police to restore the applicant to his post of Student Constable.

4 (4) The Grounds on which the applicant relies are:

(1) The order or decision is unlawful and in breach of principles of natural justice and/or the Police Service Regulations, 1961 and/or the Constitution of Jamaica and is unjust, capricious, arbitrary, null and void, in that:

(a) The applicant was never given a fair hearing or any hearing at all prior to the decision.

(b) The said allegation of improper conduct by the Applicant was never established or proved beyond a reasonable doubt.

(c) The applicant was denied his legitimate expectation that he would be allowed to continue his training as a student constable of police, on condition that he admitted the truth of the said allegation.

(d) The said order or decision is unreasonable in view of all the circumstances, and is such that no person or body properly directed on the relevant law could have made the same.

5 (5) Relevant Regulations, Rules and Orders .

6 (a) The Police Service Regulations 1961, Regulation 24 (6) Probationary Service

7 1.

8 (a) On first appointment to the Force a constable shall 舒 during the period of his training be deemed to be on probation, and if during that period he is, in the opinion of the Commissioner, found wanting in any such qualities as are likely to render him a useful member of the Force, his service may forthwith be dispensed with by the Commissioner: and

9 (b) at the end of the period aforesaid, if his services have not been dispensed with, be deemed to have been duly confirmed as respects his enlistment.

10 2. The above regulation has been brought to my attention and explained to me.

11 (b) Special provisions relating to orders for judicial review

12 56.16 (1) of the Civil Procedure Rule 2002 states;

13 Where the Claimant seeks an order or writ of certiorari to remove any proceedings for the purpose of quashing them, the claimant may not question the validity of any order, warrant, commitment, conviction or record unless-

• (a) before the trial the claimant has lodged with the registry a copy of the order, etc., verified by affidavit, or

• (b) can account for the failure to do so to the satisfaction of the court.

14 (c) General Standing Orders - 2000 Jamaica Police Academy

15 Out of Bounds Area

16 The quarters of officers and sub-officers as also the various operational departments and areas of the Police Academy are out of bounds to all students except duty or official authority is obtained to visit them. The Dorrmtories/Rooms are out of bounds to all male/female unless on duty or so authorized by senior members of staff. No male/female is allowed to entertain or accommodate any person of the opposite sex in his or...