Annissa Webster and Others v Attorney General of Trinidad and Tobago
| Jurisdiction | UK Non-devolved |
| Judge | Lady Hale |
| Judgment Date | 09 March 2015 |
| Neutral Citation | [2015] UKPC 10 |
| Date | 09 March 2015 |
| Docket Number | Appeal No 0048 of 2013 |
| Court | Privy Council |
[2015] UKPC 10
Lady Hale
Lord Kerr
Lord Wilson
Lord Carnwath
Lord Hodge
Appeal No 0048 of 2013
Privy Council
From the Court of Appeal of the Republic of Trinidad and Tobago
Appellants
Peter Knox QC Ramesh Lawrence Maharaj SC Robert Strang
(Instructed by Sheridans)
Respondent
Alan Newman QC Tom Richards
(Instructed by Charles Russell Speechlys)
Heard on 10 June 2014
Trinidad and Tobago has two classes of police officer, regular police officers (RPOs) and special reserve police officers (SRPs) (as well as the municipal police force, which is the subject of the Board's decision in Alleyne v Attorney General [2015] UKPC 3). The issue is whether, by virtue of section 4(d) of the Constitution of Trinidad and Tobago, present and former SRPs are entitled to equal treatment with RPOs.
When these proceedings were begun in 2003, the Regular Police Force was established under the Police Service Act of 1965 and the Police Service Regulations of 1971 made under it (these have since been replaced by the Police Service Act 2006 and Regulations 2007). The Police Service is also recognised in sections 122–123 of the Constitution, under which the power to appoint, promote, discipline and remove RPOs was given to an independent Police Service Commission established under the Constitution (under changes made in 2006, these powers have been transferred to the Police Commissioner, but remain subject to the supervision of the Commission).
The Special Reserve Police Force was established in 1946 by the Special Reserve Police Act. SRPs do not enjoy the same constitutional protection as do the RPOs. It is common ground that the Special Reserve Police Force was originally intended to "provide a body of persons, otherwise employed, but who out of civic responsibility was prepared to assist the police by rendering part time service" (affidavit of Superintendent Wayne Richards, para 5). Originally, they could be called out by the Commissioner, Deputy Commissioner or any Superintendent or Assistant Superintendent, in only three situations: "in cases of external aggression or internal disturbance, actual or threatened, or on any special occasion when additional police may be required for the preservation of good order" (1946 Act, section 4(1)).
But in 1967 the third of these situations was widened to cover "whenever additional police may be required for the preservation of good order, the protection of persons or property or the performance of any other duty exercisable by members of the Police Service" (1946 Act, section 4(2)). It was also made clear that they could be called out on "full-time, part-time, or temporary service" (1946 Act, section 4(2)). Thereafter, from about 1969, as is also common ground, "due to the increasing demand for manpower in the Trinidad and Tobago Police Service without corresponding increases in its sanctioned strength members of the Special Reserve Police Service were being called out on what appeared to be a permanent basis instead of on fulltime or part-time or temporary service as contemplated by [the Act]" (affidavit of Hetty Mohammed-Libert, Acting Director of Human Resources in the Ministry of National Security, para 5). If called out for service, SRPs have no choice. They can be subject to police discipline (section 5) or to prosecution (section 13) if they fail to obey.
The result was that the great bulk of SRPs were employed as police officers on a permanent, full-time basis, rather than on the temporary or ad hoc basis envisaged by the 1946 Act. By 2000, 969 of the 1110 SRPs had been continuously employed on a full time basis for more than two years. They amounted to about one sixth of the total Police strength. While full time SRPs received the same basic pay as RPOs, they were not entitled to the same benefits, in particular to free medical treatment, overtime payments, a housing allowance and a pension.
This situation was unjust, not only to the officers themselves but also to the people of Trinidad and Tobago. Police officers, including SRPs, have special powers to enforce the law which are not enjoyed by ordinary citizens. It is important that they are appointed, disciplined and removed by independent authorities who are themselves insulated from political control: see Endell Thomas v Attorney General [1982] AC 113, 124, per Lord Diplock. It is one thing for a police force to have "specials" who help out from time to time; it is another thing entirely to have a permanent, full-time cadre of police officers who have the powers but not the constitutional status, or the terms and conditions, enjoyed by the RPOs. Greatly to its credit, the Government decided to do something to rectify the situation.
On 1 April 2000, the Cabinet decided that the practice of using the services of SRPs on a full time basis for extended periods should be discontinued. Those SRPs who had been continuously employed on a full time basis for two years or more should be absorbed into the regular police service with the rank of constable (whatever their previous rank had been). Because SRPs were not required to have the same entry requirements or undergo the same training as RPOs, special criteria for absorption were devised: a medical examination to establish fitness; a successful drug test; a satisfactory record of good conduct and performance; and a phased induction course. Those SRPs who could not or would not meet these criteria would be terminated with the offer of a "separation package". This decision was put into effect in 2001.
The Cabinet decision did not mean that from then on former and remaining SRPs were treated as if they had always been on an equal footing with RPOs. Hence this constitutional motion was brought in December 2003, originally by 592 applicants, but now reduced to 258. They fall into five categories:
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(1) By far the largest category (more than 200 of the appellants) consists of those SRPs who became RPOs in 2001 as a result of the Cabinet decision. Although they all started as constables, whatever their previous rank had been, the difference between their previous pay and the maximum pay grade for constables was made up by a taxable allowance. According to the representative affidavit of Ancil Hosanine, they have two complaints. The first is that they were denied equal treatment with RPOs during their years of service as SRPs. The second is that they were told that their years of service as SRPs would be added to their years of service as RPOs (for pension purposes), but they are being required to pay pension contributions for those earlier years as if they had been RPOs (despite not having had the same benefits as RPOs during those years).
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(2) 10 appellants were employed as SRPs on a full time, permanent basis at the time of the Cabinet decision in 2000, and despite that decision have continued to be employed on the same basis thereafter. It would appear that most of them were employed in the IT unit, where it would not have been efficient for them to work part time (see the affidavit of Assistant Superintendent Andrews, para 6). Their complaint is that, although they are paid a salary consistent with that of RPOs, they do not have the same entitlements to paid leave, medical benefits and other allowances (the representative affidavit is from Ellen Henry).
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(3) Four appellants were employed part time as SRPs in 2000 and have continued to be so employed thereafter. Their complaint is that they are paid lower hourly rates than RPOs and do not receive the benefits and allowances that RPOs receive (the representative affidavit is from Annissa Webster).
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(4) Seventeen appellants were retired after the Cabinet decision in 2000, as they were too old to be absorbed into the regular police force, where the retirement age is 55 (compared with 60 for SRPs). Their complaints are, first, that they were denied equal treatment with RPOs during their years of service as SRPs; and secondly, that they were not entitled to a pension, but received a "separation package" instead.
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(5) Ten appellants had already retired, having reached the age of 60, before the Cabinet decision. Their complaint is that nothing at all has been done for them. They did not have the same pay and benefits while they were in service and were given only modest gratuities on retirement (less than those offered to the SRPs in category (4)).
It will be seen, therefore, that the complaints fall into two distinct categories: first, that the appellants were not treated in the same way as RPOs before the Cabinet decision of 2000 was implemented; and second, that those who remain as serving police officers, whether as RPOs or as SRPs, are still not being treated equally with other RPOs.
By section 4 of the Constitution of Trinidad and Tobago it is recognised and declared that "there have existed and shall continue to exist, without discrimination by reason of race, origin, colour, religion or sex, the following fundamental human rights and freedoms, namely: … (b) the right of the individual to equality before the law and the protection of the law; … (d) the right of the individual to equality of treatment from any public authority in the exercise of its functions".
This case was originally brought on the basis of both those rights. It was alleged that the failure to make regulations governing the terms and conditions of SRPs denied them the same protection of the law as was afforded to the RPOs. However, that claim has not been pursued before the Board. The appellants now found their claims exclusively on section 4(d) of the Constitution, the right to equality of treatment from a public authority.
It is well-established that this right...
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