Smith (Kenyouth Handel) v Police Service Commission and Attorney General for Jamaica

• Jurisdiction: Jamaica
• Judge: PANTON, J.A. , COOKE, J.A. , MARSH, J.A. (Ag.)
• Judgment Date: 10 November 2006
• Neutral Citation: JM 2006 CA 65
• Judgment citation (vLex): [2006] 11 JJC 1001
• Court: Court of Appeal (Jamaica)
• Date: 10 November 2006

JAMAICA

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE PANTON, J.A THE HON. MR. JUSTICE COOKE, J.A THE HON. MR. JUSTICE MARSH, J.A (Acting)

BETWEEN:

KENYOUTH HANDEL SMITH

APPELLANT

AND:

THE POLICE SERVICE COMMISSION

1 ^ST RESPONDENT

AND:

THE ATTORNEY GENERAL FOR JAMAICA

2 ^ND RESPONDENT

Arthur G. Kitchin, for the Appellant.

Curtis Cochrane, instructed by Director of State Proceedings for the Respondents.

JUDICIAL REVIEW - Retirement in the public interest

PANTON, J.A.

1 I have read the reasons for judgment written by my learned brother Cooke, J.A..

2 I agree with his reasoning and have nothing to add.

COOKE, J.A.

3 1. On 31 ^st July, 2006, the Court handed down its decision that this appeal was dismissed and that there would be no order as to costs. On that occasion the Court indicated that written reasons for its decision would be provided. These are those reasons.

4 2. The appellant Kenyouth Handel Smith, who at the relevant time was a Detective Sergeant of Police, was retired in the public interest. This decision was made pursuant to Regulation 26 of The Police Service Regulations 1961. Proceedings were initiated by communication, dated 27 ^th August 2002 to the appellant, which was in the following terms:

"TAKE NOTICE that pursuant to Regulation 26 (1) of the Police Service Regulations, 1961, and acting on the report of the Commissioner of Police, it has been decided by the Police Service Commission that you be retired from the Jamaica Constabulary Force in the public interest.

FURTHER TAKE NOTICE that the grounds on which the Police Service Commission intends to rely are that on November 23, 2001, you attempted to extort the sum of One Hundred and Fifty Thousand Dollars ($150,000.00) from Mr. Vasant Parsard who had attended the Duhaney Park Police Station and reported to you that his licensed firearm was missing, in that you represented to Mr. Parsard that if he gave you the sum of One Hundred and Fifty Thousand Dollars ($150,000.00) he could avoid being arrested and taken to the Remand Centre; that you went to Mr. Parsard's residence at 14 Holland Avenue, Patrick City in the parish of Saint Andrew on the aforementioned date with the intent of receiving the said sum of One Hundred and Fifty Thousand Dollars ($150,000.00) which you had requested of Mr. Parsard in lieu of his arrest; that it was known to you as a member of the Constabulary Force that such behaviour was unprofessional and criminal; that your conduct is inimical to the good image and reputation of the Jamaica Constabulary Force; that confidence in your ability to discharge your duty as a Police Officer in an honest and professional manner has been lost, and that you should be retired from the Jamaica Constabulary Force in the public interest under Regulation 26 (1) of the Police Service Regulations, 1961". (Emphasis mine)

5 The Police Service Commission duly met and considered whether or not the appellant should be so retired. They determined that he should be. By letter dated November 14, 2002 the appellant was informed thus:

"I write to advise that, arising out of a report made against your attempt extortion which occurred in November 2001, the Police Service Commission has advised His Excellency the Governor-General that you should be retired from the Force pursuant to Regulation 26 of the Police Service Regulations, 1961.

However, before His Excellency acts on that advice, you may apply for your case to be referred to the Privy Council for its consideration.

If you choose to do so, you should, within fourteen (14) days of receiving this letter, submit your grounds of appeal through the Commissioner of Police.

Failure to do so will result in His Excellency acting on the advice without any further reference to you".

6 The appellant accepted the invitation to submit his "grounds of appeal". Those grounds did not find favour. The record does not reveal the communication from the Governor-General to that effect. However, by letter dated July 14, 2003 the Assistant Commissioner of Police for Administration informed the Assistant Commissioner of Police for Area 4 that:

"The Governor General acting on the advice of the Privy Council has ordered that the appeal of the above named Sub-officer, against the decision for his retirement from the Jamaica Constabulary Force in the Public Interest lacked merit and accordingly he is to be retired from the Force in accordance with the provisions of Regulation 26 of the Police Service Regulations, 1961".

7 On 17 ^th September, 2003 the appellant was granted leave to apply for Judicial Review in respect of the decision of the Police Service Commission retiring him from the Jamaica Constabulary Force. On the 14 ^th January, 2005 the Judicial Review Court refused to quash this decision. The appellant now appeals.

8 3. Before attention is turned to the grounds of appeal there should be a synopsis of the factual...