Bhagwan v Corbishley and Ors

• Jurisdiction: Bermuda
• Judgment Date: 26 April 2021
• Docket Number: Civil Jurisdiction 2019 No 65
• Court: Supreme Court (Bermuda)

[2021] Bda LR 37

In The Supreme Court of Bermuda

Civil Jurisdiction 2019 No 65

In the matter of the Bermuda Police Act 1974 as amended

And in the matter of the Bermuda Police Service Promotion Police and Police Conditions of Service Order 2002

And in the matter of an application to set aside the decision of the Bermuda Police Service Sergeant to Inspector Promotion Panel 2018 result

And in the matter of an ex parte application to a Judge in Chambers for judicial review under section 53 of the Rules of the Supreme Court

Between:

David Bhagwan

Applicant

and

Stephen Corbishley (Commissioner of Police)

Martin Weekes (Assistant Commissioner of Police, Interview Panel Chairman)

Antoine Daniels (Assistant Commissioner of Police, Interview Panel Member)

Michael Trott (BPS Human Resource Manager, Interview Panel Member)

John Payne (Interview Panel Member)

Respondents

Mr P Perinchief for the Applicant

Mr A Doughty for the Respondents

The following cases were referred to in the judgment:

R (ex parte Morgan) v Chief Constable of South Wales [2011] EWHC Admin 262

R (ex parte Tucker) v Director of the National Crime Squad [2003] EWCA Civ 57

Prime Minister Manning v Ramjohn [2011] UKPC 20

Commissioner of Police v Allen and Ors [2011] Bda LR 13

R (Hopley) v Liverpool Health Authority (unreported 3 July 2002)

Neill v North Antrim Magistrates Court [1992] 1 WLR 1220

Athene Holdings Ltd v Siddiqui and Ors [2019] Bda LR 21

R v Secretary of State for the Home Department, ex parte Al Fayed [2001] Imm AR 134

Amjad v Steadman-Byrne [2007] 1 WLR 2484

Associated Provincial Picture Houses Ltd v Wednesbury [1948] 1 KB 133

De Freitas v Permanent Secretary of Ministry of Agriculture [1998] UKPC 30

R (McGrath) v Secretary of State for Work and Pensions [2012] EWHC 1042

Judicial review — Promotions of police — Whether operational decisions are subject to judicial review — Bias — Whether policy arbitrary

JUDGMENT of Hargun CJ

Introduction

1. These proceedings were commenced by Detective Sergeant (“DS”) David Bhagwan by filing Form 86A on 15 February 2019, seeking leave to issue judicial review proceedings in relation to certain decisions of the Bermuda Police Service (“BPS”) 2018 Sergeant to Inspector promotion Interview Panel result dated 21 September 2018. Specifically, DS Bhagwan sought the following relief:

• i. An order of certiorari quashing the decision and the result of the BPS 2018 Sergeant to Inspector Interview Panel result dated 21 September 2018.

• ii. A declaration that the Commissioner of Police and the Interview Panel overreached their duties and responsibilities and acted unlawfully pursuant to the Police Act 1974 (“the PA 1974”) and the Police (Conditions of Service) Order 2002 (“COSO 2002”) in relation to the 2018 promotions.

• iii. A declaration that the interview process of the 2018 Sergeant to Inspector Interview Panel was conducted with bias and was ultra vires.

• iv. An order of mandamus requiring the Respondents to comply with the provisions of the PA 1974 and COSO 2002 relating to promotion.

2. By order dated 19 February 2019, the Court granted leave to issue the Originating Notice of Motion seeking judicial review, on papers pursuant to section 64 of the Supreme Court 1905 and RSC Order 53.

The background

3. DS Bhagwan served the Royal Anguilla Police Force as a Police Constable from June 1994 to June 2000. On 1 July 2000, he joined the BPS as a Police Constable on a three years non-renewable contract. However, in 2003 he was offered a five-year contract to continue to serve as a Police Constable which he accepted.

4. At the date of the commencement of these proceedings, DS Bhagwan had served altogether in excess of 20 years as an officer with the BPS and 11 years as a Police Sergeant.

Promotions within the BPS

5. Common with other Police organisations, the BPS operates a structured promotion policy within its ranks of officers. As set out in the First Affidavit of the Assistant Commissioner of Police (“ACOP”), Mr Martin Weekes, the 2nd Respondent, the BPS Promotion Policy (“the Policy”), is a document which has been revised on a periodical basis. In recent years the Policy has been revised following consultation at all levels of the Service, including the Bermuda Police Association (“BPA”).

6. ACOP Weekes explains that there exists no entitlement to promotion within the BPS and the members are not automatically promoted in any circumstances. Promotions are made based on merit and operational needs and always subject to the decision of the Commissioner of Police (“COP”). The Promotion Policy (“the Policy”) does not guarantee promotion. Passing any part or indeed the whole of the extended Promotion Process (“the Process”) simply provides an applicant with the opportunity to then be considered for promotion by the COP. In all cases, promotion is at the discretion of the COP and in the case of the ranks of Inspector and Chief Inspector following the COP's recommendation to the Public Service Commission (“PSC”) and their subsequent approval. This lack of entitlement is reinforced at every stage of the Process to ensure that all expectations are properly handled.

7. The earlier Process and Policy, such as followed in 2013, was radically different from the previous policies in that it provided for a very strict drawn-out process designed to “filter out” as many candidates as possible in order to limit the amount of formal interviews that took place. The Process for each rank promotion had an application form which had multiple questions to answer as well as a career summary document to prepare. All candidates' applications were marked and many were “failed” on the answers they gave to the questions. The applicants had to submit two Performance and Development Review (“PDR”) documents completed pursuant to the Performance and Review Policy (“the P&R Policy”). These PDRs were then screened by the Assessment Panel (“the Panel”), and where entries were not deemed strong enough the candidate was rejected. The idea was to only have 10 candidates in each rank progressed through to the Interview stage. Following the Process, all applicants were invited along with the BPA to submit written feedback on the Process.

8. ACOP Weekes recalls that when it was suggested in 2017 that a revised Process needed to be established, he volunteered to take the lead in re-promulgating it. It took the written feedback from 2012–2013 Process and invited volunteers from across the Service to form a Working Group to refine the Policy and presented a revised Policy to the COP.

9. A Working Group was formed with membership from Constable to Chief Inspector as well as representatives from the BPA. DS Bhagwan asked to become a member and was made member of this Working Group. The feedback from the Working Group was that the 2013 Process was unduly time-consuming and that a number of candidates felt it unfair that their PDR's, which had been signed off by the supervisors, were found not to be strong enough for them to continue in the Process. The Working Group proposed a new Policy to the COP. The COP directed that the new Policy should be “inclusive” as possible and not designed to “exclude” candidates like the previous one had. To that end, the COP allowed the following changes:

• (a) Removal of the lengthy questions from the application form leaving only the requirement to complete all sections (including the Career Summary and details of professional development undertaken by the candidate at their own volition).

• (b) Removal of the requirement for PDR to be graded by the Panel. The COP declined to remove the PDR requirement completely but did agree to only require an applicant to attach the two completed PDR's for the last 2 years. The COP agreed that the applicants would not be marked down on the contents and they must just prove compliance with the PDR Policy by completing one each year.

10. The result of this was that there was no limit on how many candidates could go through to the interview stage and so, over the course of next year, the panel interviewed 80 candidates across the various ranks. This was done to ensure that everybody who successfully completed the application Process received a fair chance to interview face-to-face which was a big criticism of the previous policy.

11. ACOP Weekes points out that Mr Bhagwan was instrumental in the development and formulation of the Policy which is the subject matter of these judicial review proceedings. He was and is, contends ACOP Weekes, fully conversant with exactly how it works.

The 2018 Promotion Policy

12. The relevant provisions of the 2018 Promotion Policy (“the 2018 Policy”), amended in October 2017 under ACOP Weekes, provided as follows:

• (a) It shall be the policy of the BPS to maintain standardised procedures pertaining to promotions. Under the guidelines of the Policy, the promotion process will be fair and transparent and will result in the appointment of individuals who best demonstrate the prerequisite skills, knowledge, and abilities necessary for the BPS to achieve its overall mission, goals and objectives (paragraph 2.1).

• (b) The BPS will conduct all examinations and interviews for promotions of police officers within the Service. The only external involvement in the process, involve the roles played by the PSC and the Governor. The COP will make all promotion appointments to the rank of sergeant. The promotions for ranks above sergeant will be upon the recommendation of the COP to the PSC and with the final ratification from the Governor. The BPS may utilize a person from outside the Service as assessors or role players during the Process (paragraphs 2.2 and 2.3).

• (c) The COP is responsible for the overall administration of the Process within the Service. Any changes to the Process for the ranks of Sergeant to Superintendent will be made after consultation with the BPA in accordance with COSO 2002...