Graham v Police Service Commission and Another
| Jurisdiction | UK Non-devolved |
| Judge | Sir John Laws |
| Judgment Date | 20 December 2011 |
| Neutral Citation | [2011] UKPC 46 |
| Date | 20 December 2011 |
| Docket Number | Appeal No 0108 of 2010 |
| Court | Privy Council |
[2011] UKPC 46
Lord Hope
Lord Clarke
Lord Dyson
Sir John Laws
Sir Patrick Elias
Appeal No 0108 of 2010
Privy Council
Appellant
Sir Fenton Ramsahoye SC
Anand Beharrylal
(Instructed by Bankside Commercial Solicitors)
Respondent
Howard Stevens
Ms Rachel Thurab
(Instructed by Charles Russell LLP)
Heard on 16 November 2011
The appellant Mr Dennis Graham appeals against the judgment of the Court of Appeal of Trinidad and Tobago (Mendonça, Jamadar and Bereaux JJA), delivered on 26 March 2010, by which the court dismissed his appeal against the amount of damages awarded in the High Court by Deyalsingh J on 10 December 2007 for breach of the appellant's right to equality of treatment guaranteed by section 4(d) of the Constitution of Trinidad and Tobago. Final leave to appeal to the Judicial Committee was granted by the Court of Appeal on 15 October 2010.
The appellant was a career police officer. The essence of his complaint was that his promotion from Assistant Superintendent to Superintendent in 1997 should have been backdated so as to take effect on the same date (23 December 1996) as the promotion to Superintendent of other officers who were junior to him. Deyalsingh J upheld the claim and awarded TT$35,000 damages. In the Court of Appeal the appellant submitted that "a sum of $150,000–$200,000 would have been a more appropriate figure…" (skeleton argument, 9 November 2009, paragraph 22; see also the judgment of Mendonça JA at paragraph 85). The Court of Appeal disagreed. There was a cross-appeal by the Police Service Commission ("PSC") against the judge's grant of permission to the appellant to amend his notice of motion "de bene esse". That too was dismissed, and is not the subject of any further appeal to the Judicial Committee. Their Lordships are not concerned with the merits of the finding of constitutional breach; the appellant's appeal as to damages is the only issue before the Board. On damages, it is notable that the genesis of much of the argument has been the absence, at every stage of the proceedings, of any proper particulars of pecuniary loss.
Section 4 of the Constitution of Trinidad and Tobago provides in part:
"It is hereby recognised and declared that in Trinidad and Tobago 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—
(d) the right of the individual to equality of treatment from any public authority in the exercise of any functions;…"
Section 14 provides ("for the removal of doubts") that redress may sought in the High Court for violation of any person's constitutional rights. Damages are discretionary; as was stated by Lord Kerr giving the judgment of the Judicial Committee in James v Attorney General of Trinidad and Tobago [2010] UKPC 23 at paragraph 36, "[t]o treat entitlement to monetary compensation as automatic where violation of a constitutional right has occurred would undermine the discretion that is invested in the court by section 14 of the Constitution".
The appellant joined the Police Service on 1 June 1966 and retired in the rank of Assistant Commissioner on 18 November 2007. On 4 April 1991 he was appointed Assistant Superintendent. On 30 August 1993 he was suspended from duty by reason of an accusation of indecent assault relating to an incident said to have taken place two months before. As was later noted by Deyalsingh J he had also faced prosecution in 1970 for offences of assault and battery, but no evidence had been offered. On 12 November 1993 the appellant was "interdicted" from duty on 75% salary. On 12 June 1995 the indecent assault charge was dismissed by the Senior Magistrate after a full hearing on the merits, and the appellant was reinstated on 19 September 1995. On 3 June 1996 he was appointed Acting Superintendent. On 24 January 1997 he was asked by Senior Superintendent Narace to provide the notes of evidence in the indecent assault proceedings for perusal by members of the PSC before a decision was made as to his promotion to the rank of Superintendent. The notes were sent to Superintendent Narace on 31 January 1997 and forwarded to the PSC.
On 27 January 1997 notice was posted of the promotion by the PSC of thirteen officers from Assistant Superintendent to Superintendent with effect from 23 December 1996. They did not include the appellant. Eleven of them were junior to him in the rank of Assistant Superintendent. On 24 March 1997 a fourteenth officer, also junior to the appellant, was promoted Superintendent again with effect from 23 December 1996. On 12 May 1997 the appellant's attorneys first wrote to the PSC complaining that he had been bypassed for promotion and asking that he be appointed to the next vacancy for Superintendent with effect from 23 December 1996. They asserted that the denial of his promotion to date was unconstitutional and illegal. There were further letters but no substantive reply. Six more officers, again junior to the appellant, were promoted Superintendent on 18 August 1997. On 27 January 1998 the attorneys provided material to support the appellant's promotion and suggested that the accusation of indecent assault had been concocted. On 22 July 1998 the appellant was promoted Superintendent, but with effect only from 16 July 1998. Despite the appellant's protests, that was confirmed as the effective date by letter of 16 March 2000. On 23 March 2001 he was promoted Senior Superintendent with effect from 8 February 2001. On 7 July 2003 he was appointed Acting Assistant Commissioner with effect from a future date, 15 July 2003. At length on 16 March 2004, though his earlier pleas had been rejected, the PSC backdated the appellant's appointment as Superintendent: not, however, to 23 December 1996 but to 23 July 1997. On 25 May 2004 he was promoted to Assistant Commissioner with effect from 19 September 2003. On 29 June 2004 that appointment was backdated to 15 July 2003.
Meantime in further correspondence the appellant maintained or repeated his complaint as to the way he had been treated, and on 21 October 2004 he obtained leave to seek judicial review of the decision of 29 June 2004 to backdate his appointment as Assistant Commissioner no further than 15 July 2003.
The claim as originally formulated sought no relief in relation to the PSC's failure or refusal to backdate the appellant's appointment as Superintendent to 23 December 1996. Nor did it raise any complaint of constitutional violation; it was merely asserted (paragraph 9 of the grounds) that the appellant had been treated "unfairly, contrary to the principles of natural justice". It was moreover stated in terms that the appellant claimed no damages. However leave to amend the judicial review Statement was sought and was granted by Deyalsingh J on 14 November 2006. His order was expressed to be made "de bene esse", but when it was later challenged it was held by the Court of Appeal to have been made unconditionally; the words "de bene esse" were treated as surplusage. By the amendment the appellant asserted that the refusal to backdate his appointment as Superintendent to 23 December 1996 violated his right to equality of treatment guaranteed by section 4(d) of the Constitution and sought damages "including aggravated and/or exemplary damages" (amended Statement paragraph 3(d) and (e)). No details of pecuniary loss were pleaded or particularised in any document before the court.
The case came on for trial before Deyalsingh J on 20 June 2007. However there was insufficient time that day; and in addition the judge indicated that he would soon be leaving the bench and would be unable to complete the matter. So it was that with the full consent of the lawyers on both sides Deyalsingh J proceeded to determine the case on the documents and the parties' written submissions.
Deyalsingh J delivered judgment on 10 December 2007. He concluded (paragraph 33) that but for the indecent assault charge and the earlier proceedings in 1970 the appellant would have been promoted Superintendent with effect from 23 December 1996. He held (paragraph 35) that the PSC had been entitled to consider the notes of evidence. However (paragraph 36) fairness required that the appellant be given an opportunity to be heard if the PSC proposed to take account of either charge in deciding whether or not to promote him; and in fact he should have been promoted with effect from 23 December 1996. The failure to do so was in the circumstances unjustified and in breach of the appellant's constitutional right to equality of treatment under section 4(d) (paragraph 42).
Finally Deyalsingh J turned to the question of relief. He decided to award damages in the sum of $35,000 for breach of the appellant's constitutional rights (paragraphs 51 and 52). He gave no reasons other than to say the award "would go some way towards remedying the injustice". In particular there is nothing to show how the sum is made up. He also directed the PSC to determine what the appellant's present ranking would be had he been promoted Superintendent on 23 December 1996, and to "factor in" that date, and his present ranking, to any future decision concerning the appellant's seniority.
A number of issues were raised in the Court of Appeal, but at length only two remained: the appellant's appeal as to the quantum of damages, and the PSC's appeal against the judge's order permitting amendment of the judicial review Statement. Both were dismissed on 26 March 2010....
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