Dave Anderson Greenidge v The Commissioner of Police
| Jurisdiction | Bermuda |
| Judge | Smellie JA,Gloster JA,Clarke P |
| Judgment Date | 24 March 2023 |
| Neutral Citation | BM 2023 CA 5 |
| Docket Number | Case No: Civ/2022/01 |
| Court | Court of Appeal (Bermuda) |
Neutral Citation Number: [2023] CA (Bda) 8 Civ
THE PRESIDENT, Sir Christopher Clarke
JUSTICE OF APPEAL Sir Anthony Smellie
JUSTICE OF APPEAL Dame Elizabeth Gloster
Case No: Civ/2022/01
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SUPREME COURT OF BERMUDA SITTING IN ITS
ORIGINAL COMMERCIAL JURISDICTION
THE HON. CHIEF JUSTICE
CASE NUMBER 2018: No. 381
Dame Lois Browne-Evans Building
Hamilton, Bermuda HM 12
Ms. Victoria Greening of Resolution Chambers Ltd for the Appellant
Mr. Allan Doughty and Ms. Safia Gardener of MJM Ltd for the Respondent
Hearing date(s): 7 March 2023
The Appellant is a Detective Inspector of the Bermuda Police Service (“ BPS”). By way of Judicial Review proceedings in the Supreme Court, he sought to challenge the decision by which he was deemed ineligible to participate in the 2018 Inspector to Chief Inspector Promotion Process (“ the Promotion Process”).
On 26 April 2018, the Appellant submitted an application for promotion to the rank of Chief Inspector during the Promotion Process when applications for promotion to the rank were ongoing. However, on 4 May 2018, in response to his application, the Appellant received an email from Assistant Commissioner Martin Weekes (“ ACOP Weekes”) advising him that he was ineligible to participate in the process “ since (he) did not meet the PDRs [Personal Development Review] requirements”.
The Judicial Review application was heard by the Chief Justice on 8–9 March 2021and, on 26 April 2021, the Chief Justice delivered judgment dismissing the application. The Appellant appealed and, on 7 March 2023, the arguments on his appeal were heard and judgment reserved.
Five main grounds of appeal were filed. Three grounds alleged in various ways that the Appellant's trial counsel: (1) failed to put forward the Appellant's case, (2) failed to follow his instructions or (3) failed to cross-examine ACOP Weekes who was an important witness as he was responsible for the administration of the Promotion Process — all such that the Appellant's case was so inadequately presented before the Chief Justice as to have resulted in a miscarriage of justice.
On the hearing of the appeal, Ms Greening, in her arguments on behalf of the Appellant, relied upon those three grounds (discussed below). However, significantly, she did not persist in reliance on, but instead conceded, the two other grounds which were filed. These, in particular in Ground 4, had complained that the Chief Justice had failed properly to consider “ all the various examples of officers who failed to submit their PDRs within the deadline” for the Promotion Process but were nonetheless granted a waiver which the Appellant was unfairly denied. And, in Ground 5, that the Chief Justice erred when he concluded that there was no unfairness by inter alia, accepting that “ on occasion the [Promotion] Board has accepted explanations which justified why in a particular case an officer could not comply with the strict time limits relating to the completion of the PDRs (paragraph 26)”. Here too, the complaint was that the Appellant had been unfairly and discriminatorily denied an extension of the strict time limits which, as the Chief Justice accepted, had been granted to other candidates. This latter argument was, however, not pursued. The Appellant had not applied for, and in the circumstances to be examined below, could not reasonably have expected to have been granted, an extension and this was no doubt the reason why this ground was also abandoned.
The concessions of Grounds 4 and 5, on the hearing of the appeal, are of particular significance because of the nature of the allegations which were central to the challenge by way of Judicial Review. It was alleged by the Appellant, and forcefully argued on his behalf before the Chief Justice, that waivers of the PDR requirements (as distinct from extensions of time for compliance) had been routinely granted to several other officers during the Promotion Process, while unfairly and discriminatorily denied the Appellant; and, moreover, that this denial was despite his long and exemplary service, including while acting as Chief Inspector, by virtue of which the Appellant asserted he had acquired a legitimate expectation that a similar waiver would have been granted to him.
The merits of this argument, which will be described as the “ waiver argument”, were thoroughly examined and addressed by the Chief Justice, leading to the following conclusions in his judgment:
“ [26] In the circumstances the Court is satisfied that the Promotion Board has not adopted the policy under which “waivers” for non-compliance with the PDR requirements are granted routinely and for no reason at all. The Court accepts that on occasion the Board has accepted explanations which justified why in a particular case an officer could not comply with the strict time limits relating to the completion of the PDRs”.
[27] In the circumstances the doctrine of “legitimate expectation” can have no room to operate. In order for “legitimate expectation” to arise there must be a promise or practice which is clear, unambiguous and devoid of relevant qualification (see R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61; R v North and East Devon Health Authority, ex p Coughlin [2001] QB 213, cited in Paponette v The Attorney General of Trinidad and Tobago [2010] UKPC 32). In short there was no relevant practice of “waivers” entirely divorced from any justification for noncompliance with the PDR requirements.
[28] In the circumstances there can be no unfairness in requiring a senior officer of the BPS [such as the Appellant] to comply with the PDR requirement. As noted above, the PDR requirement is expressly set out in paragraph 5.9 of the Promotion Policy as a condition of participating in the Promotion Process. The Court accepts the proposition, set out in ACOP Weekes' Third Affidavit, that to have allowed the Applicant to proceed in the process when he contravened policy and the PDR behaviour of Personal Responsibility by failing to complete his own PDRs on time despite multiple reminders from his supervisor, would have created harm to the [Promotion] (P)rocess and the organization. The Court accepts that to have allowed the Applicant to proceed without any evidence to suggest that he had successfully completed the application process would also have opened up the Service to justifiable criticism that the Promotion Board was unfairly allowing one person to proceed where many others had been advised they could not for lesser disregard for the policy.”
And, finally from the Chief Justice's judgment for present purposes at [36]:
“ Having regard to the terms of paragraph 5.9 of the Promotion Policy it is, in the Court's view, not unreasonable to exclude officers tasked with middle level managerial responsibilities [such as the Appellant as an Inspector], from eligibility for promotion, if they fail to complete their PDRs without reasonable excuse. It is impossible, in the Court's view, to characterize such a decision as irrational.”
The focus of the arguments on appeal having shifted away from the waiver argument to the alleged failings of trial counsel, those conclusions of the Chief Justice were no longer challenged directly. Instead, Miss Greening contended, on behalf of the Appellant, that trial counsel had failed to cross-examine ACOP Weekes about evidence in the form of internal communications within the BPS (by way of email and WhatsApp messages); this, she alleged, revealed: that there was “ confusion and inconsistency” relating to the PDR requirements; that they had changed such that the Appellant should have been treated as having complied; and that the WhatsApp messages revealed that there was bias and partiality on the part of ACOP Weekes in his denial of the Appellant's eligibility for promotion. The fact that there was no cross-examination of ACOP Weekes about those internal communications before the Chief Justice, was put forward by Miss Greening as a permissible basis for the criticism of trial counsel's conduct resulting in a miscarriage of justice and for allowing the appeal.
We will come to examine these arguments further below, but before so doing, the relevance of the PDR requirements must be explained.
PDRs are mandated by the Commissioner of Police, the person charged by section 3 of the Police Act 1974 with responsibility for the command and administration of the BPS. To these ends, PDRs are promulgated by way of Standing Special Instructions (SSI-A-3/022), first issued in April 2011. SSI A-3/022 (as later amended in April 2012) explains at [1.2] that: “ The BPS is committed to the ongoing development of its personnel to ensure that officers fully meet the requirements of their post and to prepare them to fill other posts within the Service. The Performance and Development process(es) described within this document are expected to significantly contribute toward the development of BPS personnel.”
The SSI-A-3/022 then proceeds in detail to describe the PDR processes.
As their title implies, the PDRs are ongoing annual personal development reviews of officers of all ranks of the BPS, ranging from constable to superintendent. As SSI A-3/22 states at [2.1], it is the policy of the BPS that all officers will undergo annual performance and development reviews.
The reviews are based upon reports inputted electronically into the Development Performance Management System database, in accordance with procedures in respect of which training is provided. Officers are required to report by way of entering evidence-based narratives, on a contemporaneous basis, of...
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