Perinchief v Governor of Bermuda, Public Service Commission, Attorney General and Commissioner of Police 1996 Civil Jur. No. 85

• Jurisdiction: Bermuda
• Judgment Date: 23 October 1996
• Date: 23 October 1996
• Docket Number: Civil Jurisdiction 1996 No. 85
• Court: Supreme Court (Bermuda)

In the Supreme Court of Bermuda

Wade, J

Civil Jurisdiction 1996 No. 85

Wayne Norris Perinchief

Plaintiff

and

The Governor of the Islands of Bermuda

1st Respondent

The Public Service Commission

2nd Respondent

The Attorney-General

3rd Respondent

The Commissioner of Police

4th Respondent

Mr. Delroy Duncan for the Plaintiff

Mr. Barrie Meade, Q.C. for the Respondents

Chief Constable of the North Wales v EvansWLR [1982] 1 WLR 1155

R v Kent Police, ex parte Godden

R v Devon County Council, ex parte BakerUNK [1995] 1 All ER 73

McLaren v Homes Office (1990) 1 C.R. 824

R v Secretary of State for the Home Dept., ex parte BenwellELR [1985] QB 554

R v Portsmouth City Council, ex parte Gregory and Moss [1990] LGR 713

Police Act 1974, s. 7

Bermuda Constitution Order 1968, ss. 26–51

Public Service Commission Regulations 33(1)

Judicial review — Order for certiorari — Termination of employment as Assistant Commissioner of Police — Whether abolition of post was unlawful — Relief

JUDGEMENT

Wade, J.

This is an application for judicial review and the prerogative order of certiorari to quash the decision of the Cabinet of Bermuda, the Public Service Commission and the Governor of the Islands of Bermuda which culminated in the termination of the applicant's employment as Assistant Commissioner of Police.

On the 7th day of March, 1996 the applicant, Wayne Norris Perinchief filed an ex-parte summons—supported by his affidavit, sworn on 6th March, 1996—seeking an order granting leave to issue a summons seeking relief by way of:-

• ‘1. Certiorari removing into the Supreme Court of Bermuda and quashing the decision of the Cabinet of the Government of Bermuda in its conclusion 48(95)9 evidenced by a letter dated 20th December, 1995 from the Director of Personnel Services to the Applicant whereby the Applicant's post of Assistant Commissioner in the Bermuda Police Service was abolished,

• 2. Certiorari removing into the Supreme Court of Bermuda and quashing the decision of the Public Service Commission made in accordance with Section 33(1) of the Public Service Commission Regulations 1968 whereby the Public Service Commission recommended to His Excellency the Governor that the services of the Applicant as Assistant Commissioner of Crime be terminated effective 31st December, 1995;

• 3. Certiorari removing into the Supreme Court of Bermuda and quashing the decision of the Governor of the Islands of Bermuda whereby he accepted the recommendation of the Public Service Commission that the Applicant's employment as Assistant Commissioner of Police should be terminated in accordance with Section 33(1) of the Public Service Commission Regulations 1968.’

On the 8th March, 1996 leave was granted by the Hon. Mr. Justice Ward, Chief Justice. On the 11th March, 1996, an originating summons seeking orders of certiorari was filed in this court on behalf of the applicant, pursuant to leave granted by the Honourable Chief Justice seeking orders of certiorari against a purported decision of the Commissioner of Police, the Cabinet of the Government of Bermuda, the Public Service Commission, and the Governor of Bermuda, ordering the abolition of the applicant's post in the Bermuda Police Service.

The evidence before the court consists of the uncontested statement of the applicant in support of the application for orders of certiorari filed March 11, 1996; two affidavits, one sworn by the 4th Respondent on the 29th April, 1996, and the other sworn by the 2nd Respondent on the 29th April, 1996.

The background to this matter can be stated briefly thus: the applicant commenced his employment with the Bermuda Police Force (now Bermuda Police Service) in July 1964. Mr. Perinchief worked in the force for 31 years. During these years, he was promoted a number of times, namely: 1st July, 1973 to Sergeant; 3rd July, 1979 to Inspector; 16th July, 1986 to Chief Inspector; 1st December, 1988 to Superintendent; 1st June, 1994 to Assistant Commissioner of Crime, a position which he held until he was advised by the letter dated 20th December, 1995 from the Director of Personnel Services for the Government of Bermuda (the Director) that his post as Assistant Commissioner of Crime had been abolished.

During Mr. Perinchief's service, he was given the responsibility of leading a number of divisions in the force, namely the Criminal Investigation Department, the Fraud Squad, the Criminal Records, the Scenes of Crime Office and the Fingerprint Department. During this period, the applicant undertook extensive professional education and training.

The applicant was one of only four Bermudian officers who undertook the Special Command Course designed to train policemen to lead a Police Force and to become a Commissioner of Police. In 1982 the applicant received the Colonial Police Medal for long service and good conduct, and thereafter in 1989 and 1994 he received “one bar” in each year respectively. In 1991 the applicant received the Colonial Police Medal from the Governor of Bermuda for his meritorious service in the Force.

On the 23rd March, 1995 the first Defendant, His Excellency the Governor, appointed Mr. Colin Coxall, the 4th Respondent as Commissioner of Police in command of the force. As part of his duties, the 4th Respondent conducted a review of the force and prepared a strategic plan (exhibit CC1) for its reorganization. As a result of the review, the 4th Respondent determined that this reorganization required a reduction in the number of Assistant Commissioners and Superintendents. The re-structuring plan, exhibit CC1 supra, was submitted to the Minister of Labour & Home Affairs with a request that Government approved the plan including the abolition of the four senior posts, one being the applicant's post.

Before these proceedings commenced, Mr. Duncan had moved to make an application to join the Cabinet of the Government of Bermuda (the Cabinet) as a Respondent to the application. The Solicitor General felt at that stage, that such an application was unnecessary. Mr. Duncan then reserved the right to make his application.

On the fifth day into the trial, Mr. Meade submitted that ‘although the decision of the Cabinet is impugned in the application for relief, no proper official is named …. [He said] certiorari runs against an officer or tribunal, but that the target must be named ….’ Mr. Meade maintained that the applicant made a fundamental error when he joined the Attorney-General as a party. The Attorney-General made no decision of which complaint is made, and the ‘whole scheme of the issuance of a prerogative writ is directed at the officer who did the action. Therefore one cannot issue a prerogative order against the Attorney General to command another officer (to act). [He added] Cabinet is not properly before the court and in any event their decision is not justicable.’ Mr. Meade maintained that the correct party is the Minister of Home Affairs (the Minister) to whom the Commission's strategy document was presented The Minister in turn took the document to Cabinet for approval.

Mr. Duncan countered that none of the documents named the Minister and he relied on the documents and the interpretation of the documents in support of his application to amend. In an attempt to obviate the issuance of proceedings against Cabinet and any consequential delay, Counsel for the parties agreed a statement of facts. That being so, there was no need for the court to further consider whether the amendment should be granted and the question of whether Cabinet's decision is reviewable. There is no need for me to restate the agreed facts which I adopt as part of my summary of the history of this matter. I quote directly from the agreed statement :-

‘1. … At that time the Applicant was one of two Assistant Commissioners (the establishment called for three but one post had not been filled.) …. The Commissioner understood that in order to change the establishment of the Force he required the approval of Cabinet and the authorisation of the legislature in the Appropriations Act. He believed that he could reduce the size of the Force once the approval of Cabinet has (sic) been obtained, but that any increase had to await the passage of the Appropriations Act.

2. On 24 August 1995 the Applicant and the 4th Respondent met. At that time they discussed the 4th Respondent's plan [and the Applicant was asked by the 4th Respondent if he would consider early retirement from the service provided he could leave with dignity and without any loss of pension rights] and the Applicant declined to retire voluntarily although he was aware that his post was to be abolished. On 31 August the Applicant wrote to the Chairman to the Public Service Commission seeking information as to his pension rights as he considered his post to have been abolished. Despite the fact that he had expressed an intention to continue working until he was 60 years old. [In response to the Applicant's letter of 31st August, 1995] on 31 [sic 3rd] October the Secretary to the Public Service Commission replied advising him as to the appropriate sections [S.36(l) and (2)] of the Public Service Superannuation Act 1981. On 7 November the Accountant General wrote to the Applicant outlining the pension settlement, presuming that Perinchief retired on 31 October 1996.

3. Also on 7 November the Cabinet met and approved the Commissioner's Strategy, they resolved to abolish four offices (two posts of Assistant Commissioner and two of Superintendent) (emphasis added). The Commissioner received notice of Cabinet's decision and reviewed the matter with the Deputy Commissioner. The Commissioner determined that Assistant Commissioner H S Moniz should remain in the Force because he had greater experience than the Applicant who had limited operational, executive and administrative experience. Moniz also had a higher overall standard of work performance and his abilities...