Thomas v Commissioner of Police

• Jurisdiction: Bermuda
• Judgment Date: 13 July 2006
• Date: 13 July 2006
• Docket Number: Civil Jurisdiction 2004 No. 418
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Kawaley, J

Civil Jurisdiction 2004 No. 418

BETWEEN:

Anthony Dexter Thomas

Applicant

and

The Commissioner of Police

Respondent

Mr D Duncan and Mr A Doughty for the Applicant

Mr L Rochester for the Respondent

The following cases were referred to in the judgment:

Prendergast v Police CommissionerUNK (1989) 37 WIR 143

Enderby Town Football Club v The Football AssociationUNK [1971] 1 All ER 215

Williams v Public Service Commission and the Commissioner of PoliceBDLR [2005] Bda LR 6

R v Secretary of State ex parte TarrantUNK [1984] 1 All ER 799

Preiss v General Dental CouncilWLR [2001] 1 WLR 1926

Maynard v OsmanUNK [1977] 1 All ER 64

Observer Publications Ltd v MatthewsUNK [2001] UKPC 11

S, T and P v London Borough of Brent; Oxfordshire County Council, Head Teacher of Elliott School [2002] EWCA 693

Roodal v Trinidad and TobagoELR [2005] AC 328

R (on behalf of Barlow) v West Midland PoliceUNK [2005] EWHC (Admin) 1876

Police (Discipline) Orders 1975

UK Human Rights Act 1998

Representation by legal counsel before disciplinary tribunal — Constitutional right to fair hearing

JUDGMENT of Kawaley, J

Introductory

1. The present case, narrowly defined, requires the Court to determine whether to quash the decision of a Police disciplinary tribunal to refuse the Applicant legal representation, on the grounds that the tribunal erred in law in concluding, on October 25, 2004, that it had no discretion to permit the Applicant to have a lawyer. This question turns primarily on whether as a matter of construction, paragraph 7(2) of the Police (Discipline) Orders restricts a police officer to being represented by another officer in first level disciplinary proceedings, or permits a disciplinary tribunal in its discretion to permit legal representation. The essential facts are agreed.

2. On July 1, 2000, the Applicant, a citizen of Trinidad and Tobago, was engaged as a constable in the Bermuda Police Force on a three year contract. In 2003, the Applicant entered into a new five year contract on the basis that he had resigned from the Trinidad and Tobago service. He was unable to provide proof of his resignation, and his contractual position since on or about June 27, 2003 has been in dispute. A seemingly similar dispute recently came before this Court by way of judicial review in relation to an officer from the same country, and will be mentioned below. This contractual dispute is only potentially relevant in explaining why the Applicant was particularly anxious to have the best possible representation in relation to a disciplinary offence, leaving the island without permission, which might otherwise seem to be of an inconsequential character.

3. According to paragraph 10 of the Applicant's February 27, 2006 Affidavit, he has been on suspension earning only basic pay since May 17, 2004. It was a term of his suspension that he not leave the island without the Commissioner's permission. On June 24, 2004, seemingly in his absence, the Applicant was charged in the Magistrates' Court with assault arising out of an incident involving other police officers, which was seemingly the basis for the original suspension. Before this criminal charge was laid, on June 5, 2004 the Applicant applied for leave to travel abroad to his daughter's graduation on June 17, 2004, and other personal matters, between June 11 and June 29, 2004. According to Police records, the accuracy of which is in this respect controversial, the Applicant was verbally notified by Acting Commissioner Carlton Adams that permission was refused on June 6, 2004. The refusal, the records show, was because of concerns that he was a flight risk at a time when the Director of Public Prosecutions was considering criminal charges against the Applicant.

4. On June 16, 2004 the Defendant left Bermuda, and he was arrested in Puerto Rico while returning to Bermuda on July 9, 2004. On arrival in Bermuda later the same day, he was arrested by Bermuda police and told he would be charged with desertion. On July 15, 2004, the day after a desertion charge against another officer was dismissed by the Senior Magistrate, the Applicant was told that only the assault charges would be pursued in the Magistrates's Court. These charges were dismissed on August 20, 2004.

5. On September 28, 2004 the Applicant was given formal notice of prosecution under the Police (Discipline) Orders 1975 and on October 21, 2004 he appeared before the Presiding Officer, Superintendent Sinclair White, to be formally charged. Inspector Taylor was the prosecutor, and the Applicant was represented by Constable Volney Welch. The disciplinary offence charged was leaving Bermuda without the permission of the Commissioner of Police on June 16, 2004. Constable Welch withdrew after the tribunal refused the application for legal representation, and hearings on October 29, 2004, November 4, 2004 and November 8, 2004 were adjourned, twice on the grounds of the Applicant's ill-health. Constable Neblett represented the Applicant at each of these hearings.

6. The proceedings are at the half-way stage, the prosecution having opened and closed its case on December 6, 2004, and adjourned to enable the Applicant to prepare his defence. On December 10, 2004, the Applicant obtained leave to issue the present proceedings, and obtained an interim stay. So the Applicant seeks to set aside virtually all proceedings thus far taken in this disciplinary hearing, almost two years after they commenced, with a view to commencing the matter ab initio before the tribunal. However, the tribunal would be directed by this Court to reconsider a fresh application for the Applicant to be legally represented, on the new legal basis that the tribunal possesses a discretion to accede to such an application.

7. Looked at narrowly, it seems obvious that the interests of good administration, the principal goal of judicial review, will not be served by encouraging Police officers subject to internal disciplinary charges to tie up those proceedings for a year and a half by challenging in the courts interlocutory decisions made by a disciplinary tribunal. It seems obvious that such delays are undesirable for two main reasons. Firstly, a disciplined force cannot maintain internal discipline if routine disciplinary matters cannot be dealt with expeditiously, protected from the public gaze. Secondly, the public purse should not have to bear the costs, of paying an officer on suspension without receiving any service from him in return, for periods as long as (in the present case) more than two years.

8. But the present application raises a number of broader issues of import beyond the confines of the present case, which clearly justify the decision of the Police Association to instruct Mr. Duncan, a leading public law specialist, to bring the present proceedings. Do the applicable regulations exclude or include a discretion to permit legal representation? If yes, on what grounds should such a discretion be exercised? If no, is a blanket ban on legal representation inconsistent with the fair trial rights enshrined in section 6(8) of the Bermuda Constitution? If so, should the courts determine how the conflicting public policy interests of maintaining discipline in a disciplined force and protecting civil liberties should be balanced in disciplinary proceedings? Or should the Governor1 (acting in a legislative capacity) make this determination, after considered and informed input from the Commissioner of Police and the Police Association? These are the main issues of principle raised by the present application, in relation to a fundamental right which the courts are usually most interested in protecting: the right to a fair hearing.

9. The Court is indebted to Counsel on two counts. Firstly, they courteously advised the Court before the hearing commenced that the three days set aside should be reduced to two days. Secondly, both sides helpfully submitted written submissions and authorities well in advance of the hearing, with the result that the hearing was completed in only 1 ¹/₂ days.

Statutory framework: the Police (Discipline) Orders 1975

10. Section 82 of the Bermuda Constitution empowers the Governor to exercise disciplinary control over all public officers, while section 82(3) empowers Parliament to regulate disciplinary proceedings in respect of police officers. The Governor has delegated all of his powers in respect of police officers of the rank of sergeant and below to the Commissioner of Police under the Public Service (Delegation of Powers) Regulations 2001, and directed that the Police (Discipline) Orders 1975 shall apply2. And section 83(2) of the Constitution provides that where the Governor delegates his section 82 powers to a public officer, they may be exercised without reference to the Public Service Commission.

11. The Police Act 1975, section 32, empowers the Governor to make provision ‘by order’ for disciplinary matters. Section 33(1) (a) empowers the Commissioner to make ‘Service Standing Instructions’ with respect to disciplinary matters. The Police (Discipline) Orders 1975 (‘the Orders’) are made under section 32 of the Act, and most significantly provide as follows:

‘6 Any witnesses whom the accused desires to call at the hearing of the charge shall be notified that their attendance is requested at the relevant time and place, and any such witnesses who are members of the Police shall be ordered to attend the hearing.

Procedure at hearing

7 (1) An officer of the rank of Superintendent or above (hereinafter called ‘the Presiding Officer’) shall be appointed by the Commissioner to hear the case.

(2) The accused shall be ordered to attend the hearing and may conduct his defence in person or by any police officer he selects.

(3) The case in support of the charge shall be prosecuted by the Divisional Officer who ordered the investigation unless...