Detective Sergeant David Bhagwan v Stephen Corbishley
| Jurisdiction | Bermuda |
| Judge | Smellie JA,Clarke P,Bell JA |
| Judgment Date | 17 June 2022 |
| Neutral Citation | BM 2022 CA 11 |
| Docket Number | Case No: Civ/2021/10 |
| Court | Court of Appeal (Bermuda) |
| Year | 2022 |
(Commissioner of the Bermuda Police Service (BPS))
(Asst. Commissioner of Police, Interview Panel Chairman),
(Asst. Commissioner of Police, Interview Panel Member),
(BPS Human Resource Manager, Interview Panel Member),
(Interview Panel Member)
Neutral Citation Number: [2022] CA (Bda) 11 Civ
THE HON. CHIEF JUSTICE
THE PRESIDENT, Sir Christopher Clarke
JUSTICE OF APPEAL Geoffrey Bell
JUSTICE OF APPEAL Anthony Smellie
Case No: Civ/2021/10
CASE NUMBER 2019: No. 065
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SUPREME COURT OF BERMUDA SITTING IN ITS
ORIGINAL CIVIL JURISDICTION
Sessions House
Hamilton, Bermuda HM 12
Mr. Philip J Perinchief of PJP Consultants for the Appellant
Mr. Allan Doughty and Miss Safia Gardener of MJM Limited for the Respondents
Hearing date: 16 March 2022
The Appellant, Detective Sergeant David Bhagwan, appeals against the judgment of the Supreme Court of 26 April 2021 delivered by the learned Chief Justice in this matter (“the Judgment”). The Judgment dismissed the Appellant's application brought by way of judicial review by which he sought the following relief in relation to the results of the Bermuda Police Service (“ BPS”) 2018 Sergeant to Inspector Promotion Process ( “the 2018 Promotion Process”):
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(1) An order of certiorari quashing the decision and the results of the BPS 2018 Sergeant to Inspector Interview Panel, dated 21 September 2018.
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(2) A declaration that the Commissioner of Police (“ the Commissioner”) and the Interview Panel (“ the Panel”) overreached their duties and acted unlawfully pursuant to the Police Act 1974 (“ the Act”) and the Police (Conditions of Service) Order 2002 (“ COSO 2002”) in relation to the 2018 promotions.
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(3) A declaration that the interview process of the 2018 Sergeant to Inspector Interview Panel was conducted with bias and was ultra vires.
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(4) An order of mandamus requiring the Respondents to comply with the provisions of the Act and COSO 2002 relating to promotion.
On the appeal against the Judgment, Mr Perinchief presented extensive arguments on behalf of the Appellant based upon a number of revised grounds of appeal. These, on the hearing of the appeal, were reduced to six grounds of criticism of the 2018 Promotion Process, summarized and argued as follows:
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i. The exclusion of Mr Trott and Mr Payne (the 4 th and 5 th Respondents) from the assessment of the “In-Basket Exercise” part of the Interview Panel process was illegal and procedurally unfair.
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ii. The exclusion of the Bermuda Police Association (“ BPA”) observer from the Interview Panel process was illegal and procedurally unfair.
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iii. The use of the Likert Scale calculations (for calculating the results of the Interview Panel process) was illegal and irrational.
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iv. Failure to apply the Professional Development Report (“ PDR”) policy when assessing the candidates for the 2018 Promotion Process was illegal and procedurally unfair.
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v. The exclusion of Assistant Commissioner of Police (“ ACOP”) Daniels (the 3 rd Respondent) from the marking of the Appellant's “In-Basket Exercise” was illegal and a procedural irregularity which the Chief Justice failed to take into account.
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vi. The alleged non-attendance of Mr Payne (the 5 th Respondent) at the Assessors' Workshop presented for training of assessors in December 2012 caused him to be unqualified to assess the 2018 Promotion Process and therefore his involvement in the process was illegal and a procedural irregularity. And further, Chief Inspector Hashim Estwick's evidence about this should have been accepted by the Chief Justice but was not considered.
A further complaint – that of the alleged failure by the learned Chief Justice to apply proportionality principles in an attempt to balance and give effect to all interests concerned; viz: the Appellant's, the other candidates to the 2018 Promotion Process and the public at large — was abandoned, and in our view, quite properly so. In this regard, having addressed all the other substantive factual allegations made by the Appellant, the learned Chief Justice concluded at [108] of the Judgment, on the issue of proportionality: “ I do not consider that a freestanding reliance upon the principle of proportionality has any relevance to the facts of this case or the complaints made by (the Appellant)”. On the facts of this case, that was an entirely proper conclusion.
In essence, as set out above, the Appellant's complaints on the appeal are about alleged illegality, procedural irregularity and unfairness of the 2018 Promotion Process, and in particular, the conduct of the interview by the Panel.
However, as set out above in the third head of relief from his Notice of Application, before the Supreme Court the Appellant also sought to challenge the results by a specific allegation that the conduct of the Panel had been tainted by bias on the part of ACOP Martin Weeks, the second Respondent and one of two officers who co-chaired the Panel. While that ground was not relied upon before this Court, given the sensitivities of the issues raised in the Appellant's reliance upon it before the Supreme Court, it is worthwhile explaining why we consider that the learned Chief Justice's rejection of it was correct and why we consider the Appellant's abandonment of it as a ground of appeal, to have been appropriate.
The Appellant, who had served altogether in excess of 20 years as an officer of the BPS with the latter 11 years as a Sergeant, applied as a candidate but was not selected by the Panel for consideration for promotion to Inspector, following the 2018 Sergeant to Inspector interview process. He was advised by letter dated 21 September 2018 that his final score was calculated at 55.48%, whereas the passing grade was 60%. For reasons explained below, his score was later corrected to 56.68% but as that score also failed to meet the passing grade, it did not change the final outcome.
The Appellant argued before the Supreme Court that given the alleged history between ACOP Weeks and himself ACOP Weeks, on the ground of “ personal biases (real, apparent or imagined) against this applicant personally, and against Caribbean officers generally” should have recused himself from the Panel. Widely cast though it appeared, as the Judgment records at [46], it was explained that this allegation of bias against ACOP Weeks was meant to be one not of actual but of apparent bias. So far as the allegation involved the relationship between the Appellant and ACOP Weeks, it was moreover, sought to be substantiated only by reference to a written assessment which ACOP Weeks had provided to the Commissioner of Police in September 2007, of the Appellant's suitability then to have been confirmed for promotion to the rank of Sergeant. For the reasons detailed in that written assessment, ACOP Weeks then recommended that the Appellant not be confirmed as Sergeant until he had undergone a probationary period of supervision and mentoring by a senior Sergeant and an Inspector, whilst on shift duty. Those recommendations on their face provided sound reasons for the requirement of a period of probationary supervision and they were in fact accepted and implemented, before the Appellant was confirmed as Sergeant.
So far as the allegation of bias against ACOP Weeks related to “ Caribbean officers generally”; in the Court below, the Appellant relied upon the 2013 Sergeant to Inspector promotion process of which ACOP Weeks had also been the chairman and alleged that he had influenced the selection of five United Kingdom officers but only allowed two Caribbean officers to progress to the extended selection process. The Appellant also alleged that in 2015, when the BPS was challenged with austerity measures to reduce operating costs, ACOP Weeks prepared the list advising which BPS service officers' contracts should not be renewed and that in so doing, he discriminately listed low value to several Caribbean officers whose contracts were up for renewal.
However, as the learned Chief Justice records at [52]–[63] of the Judgment, there were readily apparent reasons why these allegations of bias were unsustainable. For instance, as regards the 2013 Process, the unchallenged evidence of ACOP Weeks was that the scores and results had been overseen not by himself but by DCOP Paul Wright, ratified by the Commissioner and signed off by the Public Service Commission ( “the PSC”).
Further, as to the factual unsustainability of the allegations, the evidence revealed that in the 2018 Process co-chaired by ACOP Weeks, of the 11 officers who were successful, the ethnic and national composition was as follows: West Indian Officers 1 (passed in 2 nd place), British 2 (passed in 8 th and 9 th place), white Bermudian 1 (passed in 7 th place) and all of the other 7 successful candidates were black Bermudians. There were 6 West Indian officers who were unsuccessful (including the Appellant). Moreover, in the 2018 Constable to Sergeant Process, out of the 24 candidates who were successful, 13 were West Indian (ie: Caribbean).
In relation to the list drawn up as part of the austerity measures, as the Judgment records and contrary to the Appellant's assertions, the list was drawn up by the Commissioner's Staff Officer (Constable Julie Gardner) at the Commissioner's request using language directed, so far as ACOP Weeks was aware, by then DCOP Jackman, a West Indian officer. The “ high value/low value” criteria listed against respective officers was, according to ACOP Weeks, rightly criticized in court. Further, ACOP Weeks averred that he was not the author of the list but was instructed to tick boxes against names by the then Commissioner, using the...
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