Long v Police Service Commission
| Jurisdiction | UK Non-devolved |
| Judge | Lord Sumption |
| Judgment Date | 03 December 2018 |
| Neutral Citation | [2018] UKPC 32 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No 0093 of 2015 |
| Date | 03 December 2018 |
[2018] UKPC 32
Lord Kerr
Lord Sumption
Lord Hodge
Lord Lloyd-Jones
Lady Arden
Privy Council Appeal No 0093 of 2015
Privy Council
Michaelmas Term
From the Court of Appeal of the Republic of Trinidad and Tobago
Appellant
Peter Knox QC
Anand Ramlogan SC
Phillip Patterson
(Instructed by Alvin Shiva Pariasingh)
Respondent
James Guthrie QC
Navjot Atwal
(Instructed by Charles Russell Speechlys LLP)
Heard on 1 November 2018
The respondent, the Police Service Commission of Trinidad and Tobago, was responsible under section 123 of the Constitution of 1976 for (among other things) the removal of police officers from the service and the exercise of disciplinary control over them. The appellant, Levelle Long, was an officer in the Trinidad and Tobago Police Service. In September 2007, the Commission required him to retire “in the public interest” under Regulation 50 of the Police Service Commission Regulations 1966. This appeal arises out of Mr Long's application for the judicial review of that decision. A large number of complaints are made about the competence of the Commission to make the decision, having regard to the transfer of its functions to the Commissioner of Police with effect from 1 January 2007, and about the fairness of the procedure by which the decision was reached. There is, however, a threshold issue of wider significance. Section 129(4) of the Constitution provides:
“No penalty may be imposed on any public officer except as a result of disciplinary proceedings.”
It is common ground that Mr Long's compulsory retirement was not the result of disciplinary proceedings. The threshold issue is whether it was a “penalty”. If it was, then it was unconstitutional and cannot stand, whatever the answer to the other questions before the Board.
The chain of events which led to Mr Long being required to retire began with an incident at Trincity Mall on 29 April 2005, in which he is said to have been involved. This resulted in his being arrested on 11 May 2005 and charged, together with three other men, with kidnapping. As a result, on 13 May 2005, he was suspended from duty. On 19 August 2005, he was given notice that the Commission proposed to interdict him from duty on half-pay under Regulation 80 of the Police Service Commission Regulations, on the ground that criminal proceedings had been instituted against him. However, when those proceedings came before the Magistrate, on 1 November 2006, the prosecutor reported that the complainant could not be found, two of Mr Long's co-accused had died, no witnesses were available and the file had been mislaid. The charges were therefore dismissed for want of evidence.
At the relevant time, disciplinary proceedings against police officers were governed by Chapter VIII of the Police Service Commission Regulations 1966 as amended by the Police Service Commission (Amendment) Regulations 1990 and the Police Service Commission (Amendment) (No. 2) Regulations 1966. These were subsequently replaced, with effect from 6 August 2007, by the Police Service Regulations 2007. The Commission acted throughout under the 1966 Regulations (as amended), and for present purposes the Board will assume, without deciding, that they were entitled to do so. Those regulations set out a detailed procedure leading to a hearing before an internal tribunal, at which the officer charged may call witnesses to give evidence in person and cross-examine any witnesses called to give evidence against him. Regulation 95 provided that the applicable standard of proof was the balance of probabilities, and that the tribunal would not be bound by the rules of evidence. The tribunal was required to report its findings to the Police Service Commission which was then to determine the “penalty” to be imposed. Regulation 104 defined the available penalties. They include dismissal, demotion, loss of earnings, a fine or a reprimand. Substantially similar procedures applied under the 2007 Regulations.
On 28 November 2006, four weeks after the dismissal of the criminal charges, disciplinary proceedings were initiated against Mr Long by the appointment of an investigating officer under Regulation 84. A notice to this effect was sent to him under the heading “kidnapping”. This recorded that the investigating officer was “to enquire into the allegation which resulted in you being charged for the above-mentioned offence.” Particulars of the allegation were subsequently served upon him, which referred to the incident at Trincity Mall. Mr Long responded that the charges against him had been dismissed. No further steps appear to have been taken to prosecute the disciplinary proceedings. Instead, it was decided to require Mr Long to take early retirement.
Chapter VI of the Police Service Commission Regulations dealt with the resignation, retirement and termination of appointment of police officers. Regulation 46 provided that in the case of a police officer such as Mr Long holding a permanent appointment, his services could be terminated only “on dismissal or removal in consequence of disciplinary proceedings”, by compulsory retirement at the age of 60 or voluntary retirement earlier, by retirement for medical reasons, by resignation without financial benefits, on the abolition of the office, or “on being retired in the public interest.” Separate provision is then made for each of these modes of termination. It will be apparent that termination in consequence of disciplinary proceedings and on being retired in the public interest are distinct modes of termination governed by distinct rules governing the circumstances in which they may be imposed and the procedure to be followed.
Provision is made for retirement in the public interest in Regulation 50. This is part of Chapter VI dealing with termination, and not of Chapter VIII regulating disciplinary proceedings. It is in the following terms:
“(1) Where it is represented to the Commission or the Commission considers it desirable in the public interest that any police officer should be required to retire from the Police Service it shall call for a full report on the police officer from the Commissioner and may take into account the police officer's previous record during the last preceding five years or where the police officer has less than five years' service, the police officer's record during his period of service.
…
(3) If, after considering such report and such record and giving the police officer an opportunity to submit a reply to the grounds on which his retirement is contemplated, and having regard to the condition of the Police Service, the usefulness of the police officer thereto and, all the other circumstances of the case, the Commission is satisfied that it is desirable in the public interest so to do, it shall require the police officer to retire on such date as the Commission shall determine, and he shall be retired accordingly.”
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