Superintendent of Prisons et Al v Hamilton

JurisdictionUK Non-devolved
CourtPrivy Council
JudgeLord Hughes
Judgment Date27 July 2016
Neutral Citation[2016] UKPC 23
Date27 July 2016
Docket NumberAppeal No 0092 of 2014

[2016] UKPC 23

Privy Council

From the Court of Appeal of the Eastern Caribbean Supreme Court (Anguilla)

before

Lord Mance

Lord Kerr

Lord Clarke

Lord Carnwath

Lord Hughes

Appeal No 0092 of 2014

The Superintendent of Prisons and another
(Appellants)
and
Hamilton
(Respondent) (Anguilla)

Appellants

Rupert T Jones (Attorney General) Oliver Powell Mary Haskins

(Instructed by the Attorney General's Chambers)

Respondent

Tana'ania Small-Davis Kerith T Kentish

(Instructed by Joyce Kentish and Associates)

Heard on 5 July 2016

Lord Hughes
1

The question in this appeal concerns the proper construction of section 7(2) of the Code of Discipline for Prison Officers in Anguilla, and in particular the scope of the power of the Prison Superintendent to refer upwards to the Governor charges which are brought against a prison officer.

2

The Code of Discipline ("the Code") is given effect by section 41 and the Schedule to the Prison Regulations of Anguilla, which are in turn made under the Prison Act, Chapter P75–1. By section 1(1) of the Code it is binding on all officers, who must conform to it. The Code then provides for disciplinary offences. Section 1(2) creates a residual or general offence of failure to conform to the Code. Then section 2 creates specific disciplinary offences in subsections which run from (a) to (p), and, in most of these, the different forms of the offence which are covered are listed in sub-subsections. So, for example, discreditable conduct is made an offence under section 2(a), and different forms of it are dealt with in sub-subsections (i) to (v), which concern disorderly behaviour, use of intoxicants or tobacco, bad language, assault on another officer and being unfit through drink when on duty.

3

Sections 3 to 15 of the Code set out the procedure to be followed when complaint is made of an offence. For present purposes what matters is that after the charges have been reduced to writing and served on the accused officer, the initial responsibility for hearing the case is laid upon the Superintendent of Prisons by section 5:

"(1) The Superintendent shall, as soon as possible, hear the case and shall take or cause to be taken a full record of the proceedings, and the witnesses and shall sign such parts of the record as comprise evidence given by them, and the accused officer shall be shown the full record and sign it."

4

The critical section for present purposes is section 7, which includes provision for possible referral of the charge(s) upward to the Governor. It says:

"(1) The Superintendent may dismiss any charge after hearing the evidence.

(2) The Superintendent may, after hearing the evidence, refer any charge to the Governor and, unless he dismisses it, shall so refer a charge under section 1(2) or any provision of section 2 of this Code, other than the following sections —

2(a)(i), (iii), (b), (c), (d), (h)(ii), (l)(i), (m) or (n).

(3) Where the Superintendent refers a charge to the Governor, he shall inform the accused Officer.

(4) Where the Superintendent does not refer a charge to the Governor, he shall, unless he dismisses it, either —

  • (a) caution the accused Officer; or

  • (b) make one of the following disciplinary awards —

    • (i) admonition,

    • (ii) reprimand, or

    • (iii) severe reprimand."

5

The present respondent, Mr Hamilton, was a serving prison officer with the rank of deputy superintendent. He faced a total of nine disciplinary charges laid under the Code. All but one were laid under section 2(d)(i): neglect, without good and sufficient cause, promptly and diligently to perform his duty. The exception was laid under section 2(c): disobedience to orders. The Superintendent dismissed one charge (No 8). He referred six of the others (Nos 1, 2, 5–7 & 9—all laid under section 2(d)(i)) up to the Governor, where one or more hearings ensued before a person nominated by the Governor for the purpose. When the outcome of those hearings was that the Governor dismissed him, Mr Hamilton brought the present proceedings to challenge the power of the Superintendent to refer these charges up. It was and remains his contention that section 7 gave the Superintendent no power to refer up charges laid under the subsections or sub-subsections of the Code which are listed in section 7(2). Everything which happened after the referral up was accordingly, in his submission, ultra vires and of no effect.

6

This contention succeeded in the High Court. The Court of Appeal agreed and dismissed the Superintendent's appeal. The Superintendent appeals further to Her Majesty.

7

It will be seen that subsection 7(2) concludes with a list of charges for which a differential provision is made. The listed charges are:

Under 2(a)(i): discreditable conduct in the form of acting in a disorderly manner or any manner prejudicial to discipline or likely to bring discredit on the Service;

Under 2(a)(iii): using, whilst on duty, obscene, abusive or insulting language to another member of the Service;

Under 2(b): insubordinate conduct towards an officer whom it was his duty to obey;

Under 2(c): failing without good and sufficient cause to carry out a lawful order;

Under 2(d): neglect of duty (i) generally, (ii) by carelessness or neglect contributing to the escape of a prisoner or (iii) contributing by carelessness or neglect to the occurrence of loss damage or injury to any person or property;

Under 2(h)(ii): using obscene insulting or abusive language to a prisoner;

Under 2(l)(i): deliberately acting in a manner calculated to provoke a prisoner;

Under 2(m): absence without leave or lateness for duty;

Under 2(n): (i) wilful or negligent damage to or loss of clothing or equipment provided to him, or (ii) neglecting to report any damage to, or loss of, the same.

In the present case, the charges which the Superintendent referred up were all listed charges, all being laid under section 2(d)(i) (neglect of duty).

8

The essential contention made for Mr Hamilton is that section 7(2) must be construed as meaning that:

  • (a) the Superintendent must refer up charges other than the listed ones, but

  • (b) he may not refer up the listed charges.

9

Conversely, the argument of the Superintendent, and of the Attorney-General, is that section 7(2) means that:

  • (i) the Superintendent may refer up any charge, but

  • (ii) he must refer up non-listed charges.

10

At first instance, the judge held that section 7(2) conferred a discretion on the Superintendent as to referral. She appears to have held that there were no charges where the Superintendent was bound to refer up. But whether she did so or not, she held that the purpose of the specification of the listed charges was to exclude them from any power to refer. She reached this conclusion in large part on the basis that the listed charges were, in general terms at least, the less serious amongst the full range of possible offences.

11

In the Court of Appeal Mr Hamilton succeeded for different reasons. That court held that section 7(2) divided the range of charges into those where the Superintendent must refer (the non-listed ones) and those where he could not refer (the listed ones).

12

It remains part of Mr Hamilton's argument that the listed offences are the less serious. Accordingly, he contended, the scheme of the Code is that such lesser offences were appropriate to the lesser disciplinary sentences available to the Superintendent, whilst the more serious non-listed charges were apt to be met by the greater sentencing powers of the Governor.

13

It is certainly correct that the Code equips the Governor with greater sentencing powers than it does the Superintendent. The Superintendent's powers are caution, admonition, reprimand or severe reprimand, as stated in section 7(4),...

To continue reading

Request your trial
6 cases
  • National Bank of Anguilla (Private Banking and Trust) Ltd v Chief Minister of Anguilla
    • Caribbean Community
    • Eastern Caribbean Supreme Court
    • 30 July 2021
    ...60 – 61 of the decision. 71 [2009] UKPC 37 at para. 14. 72 Para. 13, 27, 28 and 29 of the judgment. 73 Dated 15 th September 2016. 74 [2016] UKPC 23. 75 [2007] UKPC 76 Section 1 of the Trust Companies and Offshore Banking Act defines “offshore banking business” thus: “offshore banking bu......
  • National Bank of Anguilla (Private Banking and Trust) Ltd ((in Administration)) v Chief Minister of Anguilla
    • Anguilla
    • Court of Appeal
    • 30 July 2021
    ...58, 60 —61 of the decision. 71 [2009] UKPC 37 at para. 14. 72 Para. 13, 27, 28 and 29 of the judgment. 73 Dated 15th September 2016. 74 [2016] UKPC 23. 75 [2007] UKPC 76 Section 1 of the Trust Companies and Offshore Banking Act defines “offshore banking business” thus: “offshore banking ......
  • Carl Palmer v The Superintendent of Prisons and The Attorney General
    • Anguilla
    • High Court
    • 30 July 2018
    ...powers of reference to the Governor was addressed by the Privy Council in The Superintendent of Prison and another v Hamilton [2016] UKPC 23. The answers provided by the Board were very instructive on this 26 Section 3 to 15 of the Code sets out the procedure to be adopted when complaint is......
  • Carl Palmer v The Superintendent of Prisons
    • Caribbean Community
    • Eastern Caribbean Supreme Court
    • 30 July 2018
    ...powers of reference to the Governor was addressed by the Privy Council in The Superintendent of Prison and another v Hamilton [2016] UKPC 23. The answers provided by the Board were very instructive on this 26 Section 3 to 15 of the Code sets out the procedure to be adopted when complaint is......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT