Public Service Commission v Ceron Richards
| Jurisdiction | UK Non-devolved |
| Judge | Lord Sales |
| Judgment Date | 31 January 2022 |
| Neutral Citation | [2022] UKPC 1 |
| Docket Number | Privy Council Appeal No 0037 of 2020 |
| Court | Privy Council |
[2022] UKPC 1
Lord Briggs Lady Arden
Lord Sales
Lord Leggatt
Lady Rose
Privy Council Appeal No 0037 of 2020
Privy Council
Hilary Term
From the Court of Appeal of the Republic of Trinidad and Tobago
Appellant
Ramesh L Maharaj SC
Robert Strang
Alvin Ramroop
Kingsley Walesby
(Instructed by BDB Pitmans LLP (London))
Respondent
Thomas Roe QC
(Instructed by Charles Russell Speechlys LLP (London))
Heard on 25 November 2021
This case is primarily concerned with the obligation of the Public Service Commission (“the Commission”) to act fairly when deciding to suspend a prison officer from duty, on full pay, while a disciplinary investigation proceeds against him. It also raises an issue regarding the responsibility of the Commission for misfiling a letter of representations sent by the appellant, causing it to omit to consider those representations when it took its decision to suspend him.
The Commission is a body established under section 120(1) of the Constitution of Trinidad and Tobago. It has jurisdiction in relation to matters of discipline in relation to all public officers, including prison officers. The Public Service Commission Regulations (“the Regulations”) govern the exercise of the Commission's functions in relation to discipline, among other things.
Chapter VIII of the Regulations is entitled “Discipline” and comprises regs 84–114. It applies in relation to officers employed in the civil service, the prison service and various other public services. Regulation 84 provides that an officer who is alleged to be guilty of misconduct or indiscipline by failing to comply with any regulation, order or directive which applies to him “is liable to disciplinary proceedings in accordance with the procedure prescribed in these Regulations”.
So far as is relevant for the present case, Chapter VIII provides in reg 90 that where a report or allegation of indiscipline or misconduct by an officer is received, the Head of Department (in this case, the Commissioner of Prisons — “the COP”) shall report the matter to the Director of Personnel Administration (“the Director”), an official of the Commission, for the attention of the Commission and shall warn the officer of the report or allegation (sub-reg (1)); an investigating officer shall be appointed by the Director or relevant Head of Department (sub-regs (2) and (2A)); the investigating officer shall give the officer a written notice specifying the time, not exceeding seven days, within which he may, in writing, give an explanation concerning the report or allegation (sub-reg (3)); the investigating officer shall “with all possible dispatch but not later than thirty (30) days from the date of his appointment” forward to the Director for the information of the Commission a report together with all relevant documents and statements (sub-reg (5)); the Commission may grant an extension of the time for the investigating officer to report (sub-reg (5A)); and, after considering his report and any explanation given by the officer, the Commission shall decide whether the officer should be charged with a disciplinary offence (sub-reg (6)).
Regulation 88 provides:
“(1) When the Commission becomes aware of any act of indiscipline or misconduct and the Commission is of the opinion that the public interest or the repute of the public service requires it, the Commission may direct the officer in writing to cease to report for duty until further notice from the Commission, and an officer so directed shall cease to perform the functions of his office forthwith.
(2) An officer directed to cease to perform the duties of his office in accordance with subregulation (1) shall continue to draw full salary until notice is given to him by the Commission under regulation 89.”
Although the language used in reg 88(1) might suggest that the power of suspension can only be used where an act of indiscipline or misconduct has occurred, it is evident from the context in which it appears and it is common ground that reg 88 applies in a case where the Commission becomes aware of any allegation of indiscipline or misconduct.
Regulation 89(1) provides that where disciplinary proceedings for an officer's dismissal or criminal proceedings have been or are about to be instituted against him, and where the Commission considers that the public interest requires that he should forthwith cease to perform the functions of his office, “the Commission shall interdict him from such performance”. The effective date of such interdiction is the date of receipt of notification of the interdiction or, where the officer has already been suspended under reg 88, such date as the Commission may direct (reg 89(2)); and once interdicted he shall be permitted to receive such proportion of his pay, not being less than one half, as the Commission may determine (reg 89(3)). Any deduction of pay may be reversed or varied in light of the outcome of the disciplinary proceedings (reg 89(4)).
At the material time the appellant was a prison officer in the Trinidad and Tobago prison service. (He was also the President of the Prison Officers' Association of Trinidad and Tobago, but this has no bearing on the resolution of the legal issues in the appeal). He was subject to the Prison Service (Code of Conduct) Regulations 1990 (“the Code of Conduct”). Regulation 20 of that Code of Conduct provides that a prison officer commits an act of misconduct if he is guilty of discreditable conduct which includes conduct likely to bring discredit on the prison service: reg 20(2)(a)(i). Further, it provides by reg 20(2)(f) that a prison officer commits an act of misconduct if he fails to account for property for which he is responsible in connection with his duties as a prison officer.
In November 2013, the COP issued the appellant with a regulation firearm (an H & K Compact 9mm pistol) and ammunition.
According to the appellant, on 10 March 2016 he secured the firearm and ammunition in a small safe at his home, keeping the key in his personal possession. The safe was a portable type and was not affixed to the appellant's property. The appellant left his home to conduct business elsewhere and stayed overnight at a friend's house. When he returned home on 11 March 2016 he discovered that the safe and its contents had been stolen. The same day, he reported the theft to the local police, who conducted an investigation at the scene and recovered fingerprints. The appellant did not report the loss of the firearm to the prison service at this time.
In April 2016 the appellant ran into Mr Rudy Mahase, the armourer for the prison service, and told him that he had lost his firearm and ammunition. Although the evidence does not disclose what the appellant said, it is a fair inference that he told Mr Mahase that his firearm had been under lock and key but had been stolen. It seems that this led Mr Mahase to inform the COP about the incident. By a letter dated 9 May 2016 from Mr Mahase to the COP, Mr Mahase reported on the latest routine firearm inspection carried out by him with prison officers and again mentioned that the appellant's firearm and ammunition had been reported stolen.
By letter dated 28 June 2016, the COP informed the appellant that Mr Allan Nanan, a prison supervisor, had been appointed by him as investigating officer pursuant to reg 90 of the Regulations to enquire into allegations that (i) the appellant was discreditable in his conduct, contrary to reg 20(2)(a)(i) of the Code of Conduct, by reason of his failure adequately to secure the firearm and ammunition, which resulted in their theft; and (ii) the appellant had failed to account for the firearm and ammunition, contrary to reg 20(2)(f) of the Code of Conduct, when he reported the theft of the equipment. According to reg 90(1), at the same time the COP should have informed the Director, for the Commission, about the allegations against the appellant, but by an oversight this was not done.
By a letter dated 11 July 2016 Mr Nanan wrote to the appellant to introduce himself and explain that he had been appointed to investigate the allegations, inviting the appellant to submit a statement in relation to them within seven days. Mr Nanan also met the appellant on 13 July and gave him a copy of this letter.
By letter dated 19 July 2016 (“the 19 July letter”), the appellant wrote to Mr Nanan to give his account. He wrote that he had secured the firearm and ammunition in a safe at his locked residence; on 11 March he discovered that his home had been broken into and the firearm and ammunition stolen by persons unknown; he had reported the theft to the police on the same day; and he maintained that he had acted in accordance with the Firearms Act. The appellant also sent a copy of the 19 July letter to the Director, for the Commission.
Also on 19 July, the appellant's lawyer wrote to the Director, at the Commission, to submit that it would be wrong to prefer any disciplinary charge against the appellant and enclosing a copy of the 19 July letter, referred to as the appellant's “statement”. Unfortunately, this was misdirected within the Commission and did not reach the members of the Commission who later considered the appellant's case. It seems that the same happened with the copy of the 19 July letter which the appellant had sent directly to the Director.
By letter dated 2 August 2016, Mr Nanan wrote to the Commission to ask for permission to extend the time for his enquiries into the allegations against the appellant by 30 days (ie pursuant to reg 90(5A)). It appears from this letter that Mr Nanan assumed that the Commission had already been informed about his...
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