Felix Augustus Durity v Attorney General of Trinidad and Tobago
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hope of Craighead |
| Judgment Date | 08 December 2008 |
| Neutral Citation | [2008] UKPC 59 |
| Court | Privy Council |
| Docket Number | Appeal No 83 of 2007 |
| Date | 08 December 2008 |
[2008] UKPC 59
Present at the hearing:-
Lord Phillips of Worth Matravers
Lord Hope of Craighead
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Carswell
Privy Council
[Delivered by Lord Hope of Craighead]
The appellant, Mr Felix Durity, was until he took early retirement in 1997, a senior magistrate. In August 1989 he was suspended from his office by the Judicial and Legal Services Commission ("the Commission") because it had been reported to it that he had been guilty of misconduct. Many months then elapsed before the Commission referred the matter to an investigating officer. The appellant took exception to the way the Commission had dealt with his case. His first complaint was that the charges which led to his suspension were misconceived, as the misconduct that was alleged against him related to decisions that he took in the performance of his judicial duties as a magistrate. The second is that he was treated unfairly by the Commission because there was a delay of about 33 months before the charges against him were investigated, contrary to the requirements of regulation 90 of the Public Service Commission Regulations, chap 1:01.
The issue that lies at the heart of this appeal is whether, in the events which have happened, the appellant is entitled to constitutional relief for these complaints. The appellant claims that the Commission's decision to suspend him from office and its delay in referring the matter to an investigating officer contravened several provisions of the Constitution of Trinidad and Tobago, in particular section 4(b) (the right to the protection of the law) read together with section 5(2)(e) (the right to a fair hearing) and section 5(2)(h) (the right to procedural safeguards). He seeks redress by way of a constitutional motion under section 14 of the Constitution. Subsection (1) of that section provides:
"For the removal of doubts it is hereby declared that if any person alleges that any of the provisions of this Chapter has been, is being, or is likely to be contravened in relation to him, then without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the High Court for redress by way of originating motion."
The respondent submits that there has been no infringement of the appellant's constitutional right to the protection of the law. He maintains that the appellant always had access to the courts to challenge the proceedings that had been brought against him, including the delay which he acknowledges was unacceptable. This is because it was open to him from the outset to apply for judicial review, as he did later unsuccessfully. The fact that he did so late and unsuccessfully was no reason for concluding that there was an infringement of the right to the protection of the law. His right of access to the courts meant that he always had the protection of the law, and there was no deprivation of procedural safeguards. Furthermore, as that other procedure was available to compel either the laying or the dismissal of the charges that had been made against him, an originating motion under section 14 of the Constitution was inappropriate. It was an abuse of the process for him now to resort to it: Jaroo v Attorney General of Trinidad and Tobago [2002] UKPC 5; [2002] 1 AC 871, para 39. There is also an issue about the quantum of damages.
The litigation that the appellant has been pursuing has gone through many stages and the facts of the case have been narrated on a number of previous occasions, notably when the case was last before the Judicial Committee in 2002: [2002] UKPC 20; [2003] 1 AC 405. The point at issue on that occasion was whether the appellant's constitutional motion was subject to the twelve months limitation period contained in section 2(1) of the Public Authorities Protection Act, chap 8.03. The Board resolved that question in the appellant's favour. It left open the question whether judicial review proceedings could have afforded adequate relief for the Commission's failure to investigate or charge the appellant while he remained on indefinite suspension: para 39. The factual background to the questions that their Lordships have now been asked to decide has not changed in the meantime. But it needs to be set out again at this stage, as the context in which these questions arise has to be fully appreciated.
The facts
The appellant was appointed a magistrate in 1981 and a senior magistrate in 1986. He was the presiding magistrate in the Arima Magistrates' Court from October 1988 until August 1989, when he was suspended from office. He remained under suspension for nearly seven years from August 1989 to May 1996. In April 1997 he took early retirement.
The suspension had its origin in a bail application that was made to the appellant in his judicial capacity in February 1989. On 20 February 1989 Clement Boodoo appeared before the appellant on two charges of larceny. He was represented by counsel, Mr Robert Devenish, who applied for bail. The appellant fixed bail at $25,000 by way of cash deposit with the court, and the case was adjourned to 20 March 1989. On 3 March 1989 another counsel, Mr Selwyn Ross, applied to a judge in chambers, Mr Justice Lucky, purportedly on behalf of Mr Boodoo to review the appellant's bail decision. Mr Justice Lucky ordered that the amount of bail should be varied to a surety in an increased amount of $50,000. When Mr Boodoo next appeared before the appellant on 20 March 1989 he was represented again by Mr Devenish. Counsel informed the appellant, in the hearing of Mr Ross who was also present, of the order that Mr Justice Lucky had made. He said that the application had been made to the judge without Mr Boodoo's authority. He asked the appellant to continue Mr Boodoo's bail as ordered by him on 20 February 1989. The appellant acceded to this application, substituting his order for that which had been made by Mr Justice Lucky. The prosecution raised no objection, nor did Mr Ross.
The following day an article appeared in the Trinidad Guardian newspaper under the heading "Magistrate reverses judge's bail decision." On 29 March 1989 the Chief Magistrate wrote to the appellant on the direction of the Chief Justice. He asked him to state whether the contents of the article were accurate and, if they were, for an explanation as to why he had purported to reverse an order of a High Court judge. The appellant responded by sending him a statement which he had obtained from Mr Devenish. In that statement Mr Devenish said that Mr Boodoo had not authorised the application to Mr Justice Lucky and that his application to the appellant for restoration of his order of bail by means of a cash deposit had been made with Mr Boodoo's consent. On 6 April 1989 the Chief Magistrate wrote again to the appellant on the direction of the Chief Justice asking for his reason for what he had done. On 24 April 1989 the appellant replied that he had acted judicially in granting bail to Mr Boodoo in accordance with the authority vested in him as inquiring magistrate. On 1 May 1989 he went abroad on vacation leave.
On 3 July 1989 the Chief Justice forwarded a report from the Chief Magistrate together with the copies of the correspondence to the Judicial and Legal Service Commission for its consideration. On 27 July 1989 the Commission met to consider the report. The Chief Magistrate, Mr Melville Baird, was in attendance. He gave details of the appellant's decision about Mr Boodoo's bail and of the correspondence that had followed the publication of the article in the newspaper. He also gave details of a report that he had received from the magistrate who had been acting as senior magistrate in Arima Magistrates' Court while the appellant was on leave. It referred to a substantial number of cases in which the appellant was said to have remanded defendants in custody without their consent beyond the statutory period. The Chief Magistrate said that on receipt of that report he had gone himself to the Arima court and enquired of the Clerk of the Peace whether the appellant was informed that the remands were illegal. He was told that the appellant had been reminded of this, but that he was of the view when he fixed bail that the onus was on the accused to get a bailor. The Commission was informed that the appellant had not been written to about the illegal remands as he was out of the country on leave until 17 August 1989.
After discussion the Commission decided that the appellant should be suspended. On 10 August 1989 the Commission's acting Director of Personnel Administration wrote to the appellant informing him that it had been reported to it:
"that on 20 March 1989 you disobeyed the order of Mr Justice Lucky concerning bail set for Clement John Boodoo and purported to reverse it by restoring the original order;
that you fixed bail for accused persons and without their consent remanded them to dates beyond the statutory period in contravention of section 14(3) of the Indictable Offences (Preliminary Enquiry) Act Chapter 12:01 and section 66(3)(b) of the Summary Courts Act Chapter 4:20."
and that the Commission had decided that he should cease to report for duty with effect from the date of his receipt of that notification.
The disciplinary proceedings
On 23 November 1989 the Commission decided to refer the matter to the Solicitor General for the drafting of the allegations against the appellant that were to be investigated as acts of misconduct. The Director of the Commission wrote to the Solicitor General asking for this to be done on 5 December 1989. No response was received to this letter. Three reminders were sent to him by the...
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