Ganga and Others v Commissioner of Police/Police Service Commission
| Jurisdiction | UK Non-devolved |
| Judge | LORD DYSON |
| Judgment Date | 09 August 2011 |
| Neutral Citation | [2011] UKPC 28 |
| Date | 09 August 2011 |
| Docket Number | Appeal No 0046 of 2010 |
| Court | Privy Council |
and others
[2011] UKPC 28
Lord Phillips
Lord Brown
Lord Mance
Lord Kerr
Lord Dyson
Privy Council
Appellant
Sir Fenton Ramsahoye SC
Elton Prescott SC
Tom Richards
Anthony Bullock
Jodie Blackstock
Sanjeev Datadin
Cindy Bhagwandeen
(Instructed by Bankside Commercial Solicitors)
Respondent
Peter Knox QC
Miss Carol Hernandez
Ms Nadine Nabie
(Instructed by Charles Russell LLP)
Introduction
The appellants have at all material times been officers in the First Division of the Police Force of Trinidad and Tobago. The Police Service Commission ("the Commission") is the body responsible for appointing, promoting and dismissing police officers. Its powers are regulated by the Police Service Commission Regulations 1966 as updated ("the Regulations"). The appellants were all omitted from the list made by the Commissioner of Police ("the Commissioner") of the officers he recommended for promotion and, accordingly, were not promoted by the Commission. In these proceedings, they challenge the decision by the Commissioner not to recommend their promotion on the grounds that (i) his decision was ultra vires and (ii) in making his recommendations, he applied a points-based system which was irrational and unfair.
The Police Service of Trinidad and Tobago consists of two Divisions, the First Division (which includes senior officers of ranks from Assistant Superintendent to Commissioner) and the Second Division (which includes officers of ranks from Constable to Inspector): see section 6 and Schedules 1 and 2 of the Police Service Act 1966 and Schedules 1 and 2 of the Police Service Act 2006.
The statutory framework
Section 129(1) of the Constitution of the Republic of Trinidad and Tobago 1976 empowers the Commission with the consent of the Prime Minister to make regulations to regulate its own procedure. The Regulations are such regulations. Chapter II, which is headed "The Police Service Commission", sets out some of the powers and duties of the Commission. Regulation 8 provides:
"8. (1) The Commission in considering any matter or question may consult with any police officer or public officer or other person as the Commission may consider proper and desirable and may require any police officer to attend for the purpose of assisting the Commission in its deliberations and producing any official documents relating to such matter or question."
Chapter III is headed "Appointments, Promotions and Transfers". Regulation 14 provides that "every application for appointment to an office in the First Division shall be made in writing to the [Director of Personnel Administration] on the prescribed form".
Regulation 15 provides:
"15. (1) The Commissioner shall, after taking into account the criteria specified in regulation 20, submit to the Commission a list of the officers in the Second Division-
(a) whom he considers suitable for promotion to an office; and
(b) who are not being considered for promotion yet but who have served in the Service for a longer period in an office, or who have more experience in performing the duties of that office, than the officers being recommended.
(2) The Commissioner shall also advise those officers referred to in subregulation (1 )(b) of their omission from the list for promotion, together with the reasons for such omission.
(3) An officer who is advised under subregulation (2) may make representations on his own behalf to the Commission within fourteen days of being so advised and the Commission may invite him for interview on the basis of his representations.
(4) The Commission shall advise those officers making representations under this regulation of the outcome of their representations.
(5) The Commission may, after considering the representations made, endorse, or otherwise, the recommendations of the Commissioner when promoting an officer."
Regulation 20 provides:
"20. (1) When considering officers for promotion, the Commission shall take into account the experience, the merit and ability, the educational qualifications and the relative efficiency of such officers.
(2) In the performance of its functions under subregulation (1), the Commission shall in respect of each police officer take into account-
(a) his general fitness;
(b) any special qualification that he possesses;
(c) any special courses of training that he may have undergone, whether at the expense of Government or otherwise;
(d) the evaluation of his overall performance as reflected in his performance appraisal reports;
(e) any letters of commendation or special reports in respect of any special work done by him;
(f) the duties of which he has had knowledge;
(g) any specific recommendation of the Commissioner for filling the particular office;
(h) any previous employment of his in the Service or otherwise;
(i) any special reports for which the Commission may call;
(j) his devotion to duty;
(k) the date of his entry into the Service;
(l) the date of his appointment in his present office.
(3) In addition to the requirements prescribed in subregulations (1) and (2) the Commission shall take into account any specifications that may be required from time to time for appointment to the particular office."
On 5 July 2004, by Departmental Order 188/2004, the Commissioner introduced a points-based system for evaluating members of the Police Service for promotion. It was said to be based on the criteria specified in regulation 20 of the Regulations. The details of the system (which was amended by three further Departmental Orders) are considered later in this judgment when the Board deals with the appellants' second ground of challenge.
The history
At some point prior to 21 April 2006 following a request by the Commission, the Commissioner decided to make recommendations to the Commission for the promotion of officers in the First Division, and in doing so to apply the points-based system to those officers. By letters dated 21 April 2006, the Commissioner wrote to each of the appellants saying that "[i]n accordance with Regulation 15(2) of the [Regulations], I wish to advise you that you were omitted from the list of persons selected for promotion…… as the officers selected received a higher score than yours." In the same letters, the Commissioner invited the appellants to make representations to the Commission within 14 days in accordance with regulation 15(3).
By a letter to the Commissioner dated 2 May 2006, the appellants' attorney contended that the assessment procedure that the Commissioner had used was "ultra vires and illegal because it does not apply to the First Division and is clearly inappropriate for evaluating officers from the First Division". The letter called upon the Commissioner to revoke his decision not to recommend the appellants for promotion and to reconsider their promotional prospects in accordance with the Regulations within 10 days, failing which judicial review proceedings would be instituted to challenge the assessment procedure. By a letter dated 8 May 2006, the appellants' attorney also wrote to the Commission challenging the lawfulness of its procedure, asking it to refrain from making the recommended promotions pending the proposed proceedings.
The Commissioner did not revoke his decision and the appellants did not make any representations to the Commission. Instead on 1 June 2006, they applied for leave to bring judicial review proceedings against the Commissioner, naming the Commission as an interested party. They sought (i) an order quashing the Commissioner's decision to apply the regulation 15 procedure on the grounds that the decision to do so in relation to First Division officers was ultra vires and (ii) a declaration that they had been treated unfairly and in breach of their rights to natural justice and contrary to section 20 of the Judicial Review Act 2000, which provides that a person acting in the exercise of a public duty or function in accordance with any law shall exercise that duty or perform that function "in accordance with the principles of natural justice or in a fair manner."
The Commissioner swore three affidavits in the judicial review proceedings. In his third affidavit, he explained that promotions in the First Division were not carried out in accordance with regulation 15 and that all promotions in the First Division were carried out under regulation 20. He said that there was no provision applicable to First Division officers comparable to regulation 15. There was, therefore, no provision in the Regulations for giving officers who are not recommended for promotion an opportunity to make representations to the Commission. He felt that "in the interest of fairness and in accordance with the principles of natural justice", since such a right was accorded by the Regulations to officers of the Second Division, it should also be accorded to officers of the First Division. Despite the fact that by his letters of 21 April 2006 the Commissioner said that the appellants were omitted from the list "in accordance with regulation 15(2)" (emphasis added), this affidavit evidence has not been challenged.
Madam Justice Rajnauth-Lee dismissed the claim on the grounds that (i) under the procedure that was adopted, the Commissioner's recommendations were to be considered and evaluated by the Commission and not merely "endorsed or rubber- stamped" and since the decision whether or not to promote was that of the Commission, there could be no unfairness or illegality in the Commissioner making recommendations; and (ii) the use of the points-system was not irrational or unfair.
The Court of Appeal (Hamel-Smith JA, Warner JA and Kangaloo JA)...
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