Re Application by Constable Pedro Burton

• Jurisdiction: Jamaica
• Judge: Dunbar-Green J
• Judgment Date: 21 November 2014
• Neutral Citation: [2014] JMSC Civ 187
• Docket Number: CLAIM NO. 2014 HCV02992
• Court: Supreme Court (Jamaica)
• Date: 21 November 2014

In the Matter of an application by Constable Pedro Burton for extension of time within which to apply for leave to apply for Judicial Review

and

In the Matter of leave to apply for Judicial Review

and

In the Matter of the decision of the Commissioner of Police of November 17, 2011

[2014] JMSC Civ 187

CLAIM NO. 2014 HCV02992

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

Judicial Review — Application for leave to apply for judicial review — Application to extend time to apply for leave — Reasons for delay — Whether good reasons exist to extend time — Whether arguable ground having a realistic prospect of success — Considerations for court's discretion — CPR 2002

IN CHAMBERS

Dunbar-Green J

(Ag.)

1 The applicant, Mr. Pedro Burton, is a former constable of the Jamaica Constabulary Force (JCF).

2 His original Notice of Application for leave to apply for judicial review was filed on the 19 ^th day of June, 2014. This Amended Notice of Application for leave to apply for judicial review was filed on the 11 ^th day of August, 2014.

3 The reliefs sought are as follows.

• (1) An order granting an extension of time within which to apply for leave to apply for judicial review.

• (2) That leave be granted to file a Fixed Date Claim Form in support of an application for judicial review seeking the following remedies:

  • (a) an order of mandamus to compel the 1 ^st Defendant to re-instate the applicant to the JCF;

  • (b) an order of certiorari to quash the decision made in or about November 17, 2011 to dismiss the Applicant as a member of the JCF;

  • (c) damages to compensate the applicant for his loss of income;

  • (d) further and such other relief as this honourable court deems fit; and

  • (e) costs to be costs in the claim.

4 The applicant filed two affidavits in support of his notice of application. They are affidavits of Pedro Burton filed on June 19, 2014 and August 11, 2014.

5 I have extracted from the affidavits the relevant background, as follows:

• (a) The applicant was enlisted in the JCF on May 21, 1999.

• (b) At about 11.00p.m. on September 7, 2006, he and a Corporal Reid were at a petrol station in Naggos Head, St. Catherine, when an incident occurred involving himself and two other police officers. Those officers were Detective Sergeant Patrick Walker and Constable Brennan Cohen.

• (c) The applicant had observed a breach of the Road Traffic Act and Constable Reid used the service vehicle they were travelling in to block the path of the offending Nissan Motor car. As the Nissan reversed, the applicant alighted from the police vehicle, walked towards the Nissan and observed that the driver had a firearm on his lap. He pointed his M16 rifle at the Nissan and directed the driver to get out of the vehicle with hands in the air. The disgruntled driver identified himself as a police officer, had a conversation withCorporal Reid and then left the scene along with a passenger who by then had joined him.

• (d) A report was subsequently made by Sergeant Walker and Constable Cohen to Sergeants Allison and Richie at the Portmore Police Station, alleging that the applicant had alighted from a police vehicle which was used to block the path of a service vehicle in which they were travelling, and that the applicant pointed his firearm at their vehicle and said, ‘Pussy come out now’. In the course of the event, he also reportedly said, ‘Me nuh care bout yu pussy hole rank, come out of de vehicle’ and ‘gwan go do wah yu wan do, a my party in power, yu should a lucky say a yah so we deh’.

• (e) The applicant subsequently gave his version of the incident to Superintendent Terrence Bent, who instructed him to apologise to Detective Sergeant Walker and Constable Cohen.

• (f) In November 2010, the applicant was instructed to submit a report on the incident. He complied on November 22, 2010.

• (g) On or about March 8, 2011, the applicant was served with disciplinary charges which had been laid against him pursuant to Regulation 47 of the Police Service Regulations, 1961 (The Regulations). (The Notice and charges are exhibited as PB1 in affidavit filed August 11, 2014)

• (h) A Court of Enquiry was held between June 29, 2011 and October 5, 2011.

• (i) On or about November 17, 2011 the applicant was served with notice that the charges against him had been proved and the Commissioner of Police (the Commissioner) had ordered his dismissal from the JCF.

• (j) He appealed the decision of the Commissioner to the Privy Council within the time prescribed by the Regulations.

• (k) He attempted to re-enlist as a member of the JCF in January 2014.

• (l) On January 31, 2014 he was served with Notice of Suspension with effect from November 17, 2011. (The Notice is exhibited as PB2 to Affidavit of August 11, 2014)

• (m) On March 21, 2014 the dismissal was published in the weekly Force Orders.

  (The extract is exhibited as PB3 to affidavit of August 11, 2014).

• (n) Subsequently, the applicant was notified in letter dated March 17, 2014 that his appeal had been refused.

  (The letter is exhibited as PB4 to affidavit of August 11, 2014).

6 The applicant contends that when he met Superintendent Terrence Bent and was told to apologise that was the end of the matter. It is also his contention that at the Court of Inquiry he did not get an opportunity ‘to present a case to establish [his] innocence’. Further, there had been an inordinate delay of five (5) years between the date of the alleged offence and the hearing. This, he claimed, was prejudicial and caused him hardship.

Extension Of Time

7 The authority for granting an extension of time is provided in rule 56.6 of the Civil Procedure Code Rules (the CPR) which states as follows:

• (1) An application for leave to apply for judicial review must be made promptly and in any event within three months from the date when grounds for the application first arose.

• (2) However the court may extend the time if good reason for doing so is shown.

• (3) Where leave is sought to apply for an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date on which grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceedings.

• (4) Paragraphs (1) to (3) are without prejudice to any time limits imposed by any enactment.

• (5) When considering whether to refuse leave or to grant relief because of delay the judge must consider whether the granting of leave or relief would be likely to –

  • (a) cause substantial hardship to or substantially prejudice the rights of any person; or

  • (b) be detrimental to good administration.

8 As one of the remedies to be sought is an order of certiorari to quash the decision of the Commissioner, the date on which the grounds for the application first arose must be determined. The CPR requires that an application for leave to apply for judicial review must be brought within three (3) months from the date when the grounds for the application first arose.

9 On a proper construction of rule 56.6(1), the date of the impugned decision is the date when grounds for the application first arose. Accordingly, grounds for the application first arose from the decision contained in the Commissioner's letter of November 14, 2011, which was to take effect on the date when the applicant received the notice.

10 The applicant deposed that he received the letter on November 17, 2011. Based on his evidence, the date on which grounds for the application first arose was November 17, 2011. Therefore, the limitation period for this application would have expired on February 17, 2012.

11 The first application in this case was filed on 19 ^th June, 2014. This was some thirty-one (31) months after the grounds for the application first arose. An amended application was filed on August 11, 2014 in which the applicant requested an extension of time for leave to apply for judicial review.

12 This is undue delay. The CPR requires that the applicant make the application promptly and certainly within three (3) months. Where the application is not made within three (3) months it cannot prevail unless there is good reason to justify why an extension should be granted by the court. Ackner L.J. inR v Stratford-on-Avon DC, ex p Jackson [1983] 3 ALL ER 769 [1983] 3 ALL ER 769, 744 expresses the effect of the rule in these terms:

…we have concluded that whenever there is failure to act promptly or within three months there is undue delay. Accordingly, even though the court may be satisfied in light of all the circumstances…that there is good reason for the failure, nevertheless the delay viewed objectively remains ‘undue delay’…

13 Counsel for the applicant submits that although the date of dismissal is the date on which grounds for the application first arose, the applicant had acted promptly to pursue the statutory remedy available to him and it was pursuit of that remedy which had delayed the application for leave to apply for judicial review. He relies on rule 56.3(3)(d) in conjunction with rule 56.6(3), and alsoR v Commissioner of Police ex parte Detective Constable Glen Riley 2013 HCV 00593 at paras 20–22.

whether an alternative form of redress exists and, if so, why judicial review is more appropriate or why the alternative has not been pursued;

Rule 56.6(3) provides:

Where leave is sought to apply for an order of certiorari in respect of any…proceeding, the date on which grounds for the application first arose shall be taken to be the date of that… proceedings .

Rule 56.3(3)(d) requires that an application for leave state –

14 InR v Commissioner of Police ex parte Detective Constable Glen Riley Morrison J cited, with approval, the dictum of Lord Scarman in Preston v Inland Revenue Commissioners [1995] 2 ALL ER 372 [1995] 2 ALL ER 372 as authority that an applicant must exhaust...