Fraser v Judicial and Legal Services Commission and Another
| Jurisdiction | UK Non-devolved |
| Judge | Lord Mance |
| Judgment Date | 03 December 2008 |
| Neutral Citation | [2008] UKPC 57 |
| Court | Privy Council |
| Docket Number | Appeal No 116 of 2006 |
| Date | 03 December 2008 |
Privy Council
Present at the hearing:-
Lord Hoffmann
Lord Hope of Craighead
Lord Scott of Foscote
Lord Walker of Gestingthorpe
Lord Mance
[Delivered by Lord Mance]
Under the Constitution of St Lucia "[t]he power to appoint persons to hold or act in offices" which include the office of (inter alia) magistrate is vested in the Judicial and Legal Services Commission (s.91(2)), and "the power to exercise disciplinary control over persons holding or acting in [such] offices …. and the power to remove such persons from office" is likewise vested in the Commission (s.91(3)). It appears that in practice, once the Commission decides that a person should be so appointed, a written agreement to give effect to the appointment and deal with matters such as salary is made between the person in question and the Ministry of Public Service.
Pursuant to decisions by the Commission, the appellant served as a magistrate in St Lucia under successive annual contracts, the first commencing on 6 September 2000 and the last on 6 September 2003. By letter from the Permanent Secretary of the Ministry of Public Service dated 15 January 2004, followed by a second letter stated to supersede it dated 16 January 2004, the appellant was dismissed from his office with effect from 19 January 2004. In respect of that dismissal, the appellant sought constitutional relief against both the Commission and the Attorney General representing the Government of St Lucia.
On 10 June 2005 Shanks J Ag gave judgment in his favour, declaring that both the Commission and the Government had contravened s.91 and ordering the Commission (only) to pay the appellant (a) his net loss of salary and other benefits (including gratuity) for the period 19 January to 5 September 2004 and (b) $10,000 for distress and inconvenience. On 28th November 2005 the Eastern Caribbean Court of Appeal allowed the Commission's and Government's appeals in respect of the judge's finding that they had been in breach of s.91 of the Constitution. The Court held that the only breach was a breach of the appellant's contract by the Government. The majority (Barrow JA and Gordon JA) held that this breach consisted in a failure to pay one month's salary in lieu of notice; Rawlings JA, in the minority, would have awarded three months' salary. Against the Court of Appeal's decision, the appellant now appeals to the Board.
The relevant agreement for the appellant's employment was dated 29 October 2003 and was in a form which is, it appears, in long-standing and standard use in East Caribbean countries. The agreement recorded the appellant's engagement to perform the duties of magistrate for a "tour of one year resident service commencing from" 6 September 2003 (clause 1(1)) and stated the basic salary of the office per annum. It went on:
"4 (1) If the person engaged shall be compelled by reason of ill-health (not caused by his own misconduct) to terminate his office, or if at any time it shall be certified by a duly constituted Medical Board that he is incapable, by reason by informity of mind or body, of rendering further efficient service in the State, the Government shall pay his salary up to the date of such termination or certificate.
(2) …..
5 If the person engaged shall at any time after the signing hereof neglect or refuse from any clause [sic] (other than ill-health) not caused by his own misconduct, (as provided in Clause 4) become unable to perform any of his duties or to comply with any order, or shall disclose any information respecting the affairs of the Government to any unauthorized person, or shall in any manner misconduct himself, the Government may terminate his engagement forthwith and thereupon all rights and advantages reserved to him by this Agreement shall cease.
6 (1) The Government may at any time determine the engagement of the person engaged on giving him three months' notice in writing or on paying him one month's salary.
(2) The person engaged may, at any time after the expiration of three months from the commencement of any residential service, and while serving in the State determine his engagement on giving to the Government three months' notice in writing or paying to the Government one month's salary.
(3) If the person engaged terminates his engagement otherwise than in accordance with this Agreement he shall be liable to pay to the Government as liquidated damages, three month's [sic] salary."
Further provisions entitled the appellant to 23 days leave per annum (clause 8) and to a gratuity of 25% of the total annual salary "on the satisfactory completion of the term of engagement provided for in Clause 1(1)" - i.e. at the end of the year (clause 10(a)) - and also required him to give notice in writing 6 months prior to the completion of his tour of service as to whether he desired to continue in office, whereupon the Government would decide whether to offer a further engagement. By clause 13, the agreement "is to be interpreted in accordance with the Laws of St Lucia".
The background to the appellant's dismissal was as follows. At a meeting on 10 September 2003, at which the appellant was present, the Commission decided to appoint a retired High Court judge to investigate what the Commission's chairman, Sir Dennis Byron, described in the letter dated 14 October to the appellant confirming the decision as "the unsubstantiated reports I have received of corruption in drug cases involving you". The letter recorded that the appellant had welcomed the investigation. Retired Justice Odel Adams was appointed and produced a report dated 3 November and submitted to Sir Dennis Byron on 11 November 2003. Justice Adams considered the papers in three drugs cases. In two he thought that the appellant had, in acquitting the defendants at the close of the prosecution case, reached a wrong decision, but not so wrong as to give rise to any adverse inference about his integrity. In the third, he found no acceptable excuse for a grant of bail involving the revocation of an order by Shanks J that the defendant surrender his passport. On 20 November 2003 Justice Adams wrote to Sir Dennis Byron that in the light of his report he believed it to be justifiable to lay against the appellant a charge of gross incompetence (which he formulated in detail), but concluded the letter with this sentence:
"Having reflected on the matter however, I believe that the Commission may wish to consider that Magistrate Fraser's service be terminated pursuant to the notice provisions in his contract."
The Commission acted on the last sentence. On 5 January 2004 it wrote to the Ministry of Public Service reporting that Justice Adams had carried out an inquiry into reports and allegations of improper conduct on the appellant's part and that:
"The inquiry has concluded and the findings of Justice Adams are that Mr Fraser's actions amounted to improper conduct that justified the laying of charges that could result in Mr Fraser's dismissal. However, upon reflection, Justice Adams recommended that Mr Fraser's contract of engagement be terminated pursuant to the notice provisions in his contract.
The Commission has seen the report of Justice Adams and agrees with the recommendation for termination. In the circumstances, the Commission recommends that clause 6 of Mr Fraser's contract be invoked, and that his contract be determined with immediate effect upon paying to him one month's salary in lieu of notice.
Please find attached for your information and attention a copy of Justice Adam's report and recommendations.
The Commission should be grateful for your immediate attention and action."
The Ministry in turn wrote to the appellant a letter dated 15 January 2004. It said that it was in receipt of the Commission's report, that "Having read and considered their report, we have found the said charges substantiated" and that it had therefore "no alternative" but to terminate his contract under clause 5 of the contract with effect from 19 January 2004 and would be paying one month's salary in lieu of notice under clause 6. On the next day, by letter expressed to supersede its first letter, the Ministry said that the Commission had advised the Ministry that, due to improper conduct on the appellant's part, his contract should be terminated with immediate effect from 19 January 2004. No mention was made in this second letter of payment of a month's or any salary, and none was in the event paid.
Before Shanks J counsel for the Commission frankly accepted that the Commission had not complied with its own procedures or with any procedure which entitled it to reach any conclusion that the appellant had misconducted himself in any way. Equally, he accepted that any decision by the Commission to remove the appellant under s.91(3) could only be made for reasonable cause, and that, if there was a removal in this case, the Commission was unable to show any such cause. The implied requirement of reasonable cause for any removal is established by the Board's decision in Thomas v. Attorney-General of Trinidad and Tobago [1982] AC 113.
Justice Adams's inquiry provided no basis for removal. Under the Commission's code for Disciplinary Proceedings, Justice Adams's role was simply to report whether the appellant had a case to answer, in which event it was for the Commission, after considering such report, to decide whether the appellant should be charged with an act of misconduct; further, if it did so decide, it had to inform the appellant in writing of the act of misconduct with which he was charged and then either hear the charge itself or refer it to a tribunal of two or more persons to do so. The code continues by laying down the...
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