Pitcher v Commissioner of Corrections and Public Service Commission

JurisdictionBermuda
CourtSupreme Court (Bermuda)
Judgment Date25 November 2011
Date25 November 2011
Docket NumberCivil Jurisdiction 2010 No. 404

In The Supreme Court of Bermuda

Civil Jurisdiction 2010 No. 404

In the matter of Order 53 of the Rules of the Supreme Court of Bermuda

And in the matter of the Administration of Justice (Prerogative Writs) Act 1978

And in the matter of the Prison Officers (Discipline, etc) Rules 1981

And in the matter of the Public Service Commission Regulations 2011

And in the matter of the decision of the Commissioner of Corrections dated 28 July 2009

And in the matter of the decision of the Public Service Commission dated 3 August 2009

BETWEEN:
Darren Pitcher
Applicant
and
The Commissioner of Corrections and The Public Service Commission
Respondents

Ms L Sadler-Best and Mr A Doughty for the Applicant

Mr M A Cottle for the Respondents

The following cases were referred to in the judgment:

Thomas v Commissioner of PoliceBDLR[2006] Bda LR 54

Barnes v The Minister of the EnvironmentBDLR[1994] Bda LR 61

R v Secretary of State for the Home Department ex parte BenwellWLR[1984] 3 WLR 843

In Re Duffy (Northern Ireland)UNK[2008] UKHL 4

N (FC) v Secretary of State for the Home Department (Respondent)UNK[2005] UKHL 31

Blackshaw et al v RUNK[2011] EWCA Crim 2312

Abstract:

Judicial review - Dismissal for possessing a cell phone - Whether sufficient reasons given - Whether penalty unreasonable - Procedural deficiencies

JUDGMENT of Kawaley, J

Introductory

1. The Applicant, by decision of the Commissioner of Prisons1 ("COP") dated July 28, 2009 and of the Public Service Commission ("PSC") dated October 7, 2009 was dismissed from his position as a Prison Officer ("PO") for having a cell-phone in his possession in a sensitive area of Westgate Correctional Facility on February 18, 2009. He was a PO of five years standing with a clean record and was the first PO to be dismissed for the offence of breaching the COP's blanket policy prohibiting possession of unauthorised cell phones within the confines of the Facility which was aimed at addressing the well-recognised and serious problem of such items being illicitly supplied to prison inmates.

2. By Notice of Application dated November 10, 2010 filed on November 19, 2010, the Applicant sought leave to seek judicial review2 of these decisions on the grounds that, inter alia, the penalty of dismissal was so harsh and disproportionate that it was a decision which no reasonable disciplinary authority properly directing itself could lawfully reach. On the same date the Applicant filed an Originating Summons dated November 10, 2010 pursuant to Order 114 of the Rules of the Supreme Court. This Summons sought to quash the impugned decisions on the grounds that the Applicant's implied right to legal representation was infringed in the disciplinary proceedings and sought an order of reinstatement.

3. The Applicant's application for judicial review was not filed until over a year after the PSC dismissed his appeal because no one saw fit to supply him with a copy of the October 7, 2009 decision letter which was addressed to the COP as the applicable Discipline Rules, curiously, expressly mandated. He was first officially notified of the decision by letter dated August 3, 2010 which was only sent by the PSC in response to a query from the Applicant's attorneys (by letter dated July 7, 2010) as to the result of the appeal. This correspondence was initiated because, in December 2009, he had been verbally told by a representative of the Prison Officers Association ("POA") that the appeal had been dismissed.

4. The Chief Justice granted leave to seek judicial review on April 8, 2011, a mere two days after the Applicant's counsel pointed out that the leave application had been overlooked. On August 4, 2011 I directed that the constitutional and judicial review applications should be consolidated and gave directions for the filing of evidence; the Registrar fixed the hearing of the applications by Notice of Hearing dated September 23, 2011.

5. This series of unfortunate administrative events explains why this matter is only being adjudicated two years after the Applicant's appeal against his dismissal was refused by the PSC, and more than two and a half years after the impugned disciplinary penalty was first "imposed"3.

The constitutional application

6. It became obvious in the course of the hearing that the constitutional application fell to be dismissed for two reasons. Firstly, and more fundamentally, because section 16 of the Constitution itself makes it clear that section 6 (8) and its constitutional fair hearing protections do not apply to disciplinary proceedings involving members of, inter alia, the prison service. Secondly, and more prosaically, because on the facts there was no credible evidence that the Respondents had denied the Applicant the right to engage legal counsel in the course of the relevant disciplinary proceedings.

7. The Applicant's counsel opened her submissions by relying heavily on my own observations about the potential availability of relief for breach of section 6(8) rights in the context of a case dealing with a member of another disciplined force to which section 16 of the Constitution applies, the Police Force: Thomas v Commissioner of PoliceBDLR[2006] Bda LR 54 at paragraphs 34 to 40. Those observations were clearly erroneous because both I and counsel in that case were blissfully unaware of, and did not avert to, the following constitutional provisions to which Mr Cottle referred:

"Interpretation

16 (1) In this Chapter, unless it is otherwise expressly provided or required by the context'

"contravention" in relation to any requirement includes a failure to comply with that requirement, and cognate expressions shall be construed accordingly; "court" means any court of law having jurisdiction in Bermuda, including Her Majesty in Council, but excepting, save in sections 2 and 4 of this Constitution, a court constituted by or under disciplinary law; "disciplinary law" means a law regulating the discipline of any disciplined force; "disciplined force" means'

(a) a naval, military or air force;

(b) any police force of Bermuda;

(c) the prison service of Bermuda;

"member" in relation to a disciplined force includes any person who, under the law regulating the discipline of that force, is subject to that discipline.

(2) In relation to any person who is a member of a disciplined force raised under the law of Bermuda, nothing contained in or done under the authority of the disciplinary law of that force shall be held to be inconsistent with or in contravention of the provisions of this Chapter other than sections 2, 3 and 4.

(3) In relation to any person who is a member of a disciplined force raised otherwise than as aforesaid and lawfully present in Bermuda nothing contained in or done under the authority of the disciplinary law of that force shall be held to be inconsistent with or in contravention of any of the provisions of this Chapter."

8. Section 16 governs the interpretation of Chapter 1 of the Constitution, which contains Bermuda's 'Bill' of Fundamental Rights and FreedoMs Subsection (1) deals with the interpretation of Part 1 and the following subsections of section 16 itself. The following terms of section 16(2) unarguably have the effect that members of a disciplined force cannot advance a claim for an alleged contravention of, inter alia, their section 6(8) rights: "nothing contained in or done under the authority of the disciplinary law of that force shall be held to be inconsistent with or in contravention of the provisions of this Chapter other than sections 2, 3 and 4." The constitutional protections for the right to life (section 2), protection from inhuman or degrading treatment (section 3) and protection from forced labour or slavery (section 4) remain available.

9. Without deciding at this stage what the implications of section 16(2) are on the common law rules of natural justice in the prison disciplinary proceeding context, and whether or not section 16(2) is inconsistent with Article 6 of the European Convention on Human Rights ("ECHR"), I find that the Applicant's Originating Summons seeking relief under section 6 of the Constitution must be dismissed.

10. A PO has no right under the Constitution itself to complain that disciplinary action taken against him under the authority of the disciplinary law of the prison service contravenes section 6 of the Constitution. No need to decide whether section 6(8) of the Constitution incorporates an implied right to legal representation in civil cases arises. However, even if such right was found to exist, there is no basis for a factual finding that it was infringed in the present case. The Applicant elected to be represented by the POA. He never asked for, and accordingly was never refused, legal representation.

Findings: the disciplinary legal framework

11. Mr Cottle's typically thorough and careful analysis of almost every nook and cranny of the relevant statutory provisions and rules greatly assisted the Court to make sense of an unfamiliar (and in one instance surprising) disciplinary framework. In summary:

i. the Prisons Act 1979 empowers the Minister to make rules relating to disciplinary matters;

ii. the relevant rules are the Prison Officers (Discipline, etc.) Rules 1981 ("the Rules");

iii. the Rules create various disciplinary offences and disciplinary penalties;

iv. the Rules provide that offences are to be tried by an Adjudicating Officer, who recommends the penalty for an admitted or proved offence to the COP. Where the proposed penalty is more serious than an admonition, reprimand or serious reprimand, the Commissioner in turn decides whether to recommend the same or a different penalty to the PSC. The penalty is only finally imposed by the COP if the approval of the PSC is obtained;

v. a PO (surprisingly) has a right of appeal to the same tribunal, the PSC, which in the case of most penalties (including dismissal) has supported the initial penalty appealed against.

12. Because the Applicant complains that the...

To continue reading

Request your trial
5 cases
  • Soares and Hamilton Medical Center Ltd v Bermuda Health Council
    • Bermuda
    • Supreme Court (Bermuda)
    • 8 April 2021
    ...and Barbuda [2007] UKPC 34 Coxon et al v Minister of Finance et al [2007] Bda LR 78 Pitcher v Commissioner of Corrections and anor [2011] Bda LR 68 Minister of the Environment v Rodrigues Trucking and Excavating [2004] Bda LR 39 Guide Dogs for the Blind v Box [2020] EWHC 1948 Re Blast 106 L......
  • Acorn Services Ltd v Dill
    • Bermuda
    • Supreme Court (Bermuda)
    • 23 April 2013
    ...the legality of a decision is an aspect of the common law rules of natural justice: see e.g. Pitcher v. Commissioner of Corrections [2011] Bda LR 68. Findings: disposition of appeal 10 I find that the appellant's claim for the collection fees as a contractual entitlement linked to the amoun......
  • Acorn Services Ltd v Dill
    • Bermuda
    • Supreme Court (Bermuda)
    • 23 April 2013
    ...the Appellant The Respondent in person The following cases were referred to in the judgment: Pitcher v Commissioner of CorrectionsBDLR [2011] Bda LR 68 Philips Hong Kong Ltd v Attorney General of Hong Kong [1993] UKPC 29 Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor CoELR [1915] AC 79......
  • Dawson v Commissioner of Police and Bermuda Police Association
    • Bermuda
    • Supreme Court (Bermuda)
    • 17 July 2013
    ...Act, 1974. INTERPRETING THE STATUTORY FRAMEWORK IN THE CONTEXT OF A JUDICIAL REVIEW APPLICATION 11 In Pitcher v. Minister of Corrections [2011] Bda LR 68 , [2011] SC (Bda) 52 Civ (25 November, 2011). I observed: “74. To my mind, the starting point for any analysis of whether the impugned de......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT