Thomas (Endell) v Attorney General of Trinidad and Tobago
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1981 |
| Date | 1981 |
| Year | 1981 |
| Court | Privy Council |
Trinidad and Tobago - Constitution - Police Service Commission - Officer dismissed on charges of neglect of duty - Commission's power “to remove” officer - Whether regulations imposing code of conduct ultra vires - Whether charges valid - Whether action maintainable in High Court -
Section 99 of the Constitution of Trinidad and Tobago provides:
“(1) Power to appoint persons to hold or act in offices in the police force (including appointments on promotion and transfer and the confirmation of appointments) and to remove and exercise disciplinary control over persons holding or acting in such offices shall vest in the Police Service Commission: provided that the commission may, with the approval of the Prime Minister and subject to such conditions as it may think fit, delegate any of its powers under this section to any of its members or to the Commissioner of Police or any other officer of the police force.”
Section 102 provides:
“(1) Subject to the provisions of subsection (3) of this section [the Police Service Commission] may, with the consent of the Prime Minister, by regulation or otherwise regulate its own procedure, including the procedure for the consultation with persons with whom it is required by this Constitution to consult, and confer powers and impose duties on any public officer or on any authority of the Government of Trinidad and Tobago for the purpose of the discharge of its functions. (2) Without prejudice to the generality of the powers conferred by subsection (1) of this section [the commission] may by regulation make provision for the review of its findings in disciplinary cases …. (4) The question whether — (a) [the commission] has validly performed any function vested in it by or under this Constitution; (b) any member of [the commission] or any other person has validly performed any function delegated to such member or person in pursuance of the provisions of section 84 (1), or section 93 (1), section 99 (1), as the case may be, of this Constitution; or (c) any member of [the commission] or any other person has validly performed any other function in relation to the work of the commission or in relation to the work of the commission or in relation to any such function as is referred to in the preceding paragraph; shall not be inquired into in any court.”
The plaintiff was a police officer in the Trinidad and Tobago police force. In 1972 he was charged with three offences against discipline. Each of the charges specified that he had been guilty of neglect of duty contrary to regulation 74 (2) (d) of the Police Service Commission Regulations 1966 and gave particulars of the offence alleged. The Police Service Commission, purporting to act under regulation 99 of the Regulations of 1966, dismissed the plaintiff from the police force. He brought an action against the Attorney-General in the High Court claiming a declaration that he was still a member of the police force or that he had been wrongfully dismissed and was entitled to damages. In the High Court Maharaj J. certified three preliminary questions of law for the consideration of the court, namely, whether the offences with which the plaintiff had been charged were validly created by the Police Service Commission Regulations 1966, whether the plaintiff's action was maintainable in view of sections 99 and 102 of the Constitution, and whether the plaintiff was a Crown servant dismissible at pleasure. All three questions were answered in favour of the plaintiff. The Court of Appeal reversed that decision.
On the plaintiff's appeal to the Judicial Committee:—
Held, dismissing the appeal, (1) that on a proper construction of section 99 (1) of the Constitution, in the light of its context in chapter VIII of the Constitution and in accordance with the right of an individual to equality of treatment under section 1 (d), the Police Service Commission's power “to remove” a police officer was a power to remove him for reasonable cause of which the commission was the sole judge; that, since the right of the Crown to dismiss its servants had not been transferred to the commission and was inconsistent with both the Constitution of 1962 and the present Constitution, a police officer was not a servant of the Crown dismissible at pleasure (post, pp. 610E–611B, D).
(2) That the Police Service Commission had no power to lay down terms and conditions of service of a police officer; that, although the power of the commission to make regulations to regulate its own procedure under section 102 of the Constitution included the power to make regulations prescribing the penalties that the commission would impose in carrying out its functions of exercising disciplinary control over police officers, it did not include the power to make regulations concerning the conduct of police officers; that, accordingly, those regulations, including regulation 74, of the Police Service Commission Regulations 1966 which imposed a code of conduct on police officers were ultra vires but regulation 99 and other regulations which dealt with the penalties that the commission could impose and the circumstances in which those penalties might be imposed were valid (post, pp. 611G–H, 616D–F, 617A).
Per curiam. It is for the commission to determine what are the kinds of penalties that may be inflicted, as well as deciding which of them is appropriate for the particular form of misconduct committed by the police officer in each individual case. It is inherent in this function that the commission should be entitled to publish in a form calculated to bring it to the attention of all members of the police service an indication of the various kinds of misconduct which in its opinion are capable of justifying disciplinary proceedings, and of the various kinds of penalties that such misconduct may incur (post, p. 615D–E).
(3) That in the absence of a comprehensive code of conduct embodied in the
(4) That in the absence of an allegation that the commission had acted outside its jurisdiction or had contravened the right of an individual to a fair hearing secured by section 2 (e) of the Constitution, section 102 (4) of the Constitution excluded a court from inquiring into whether the commission had validly performed its functions and, therefore, the High Court had had no jurisdiction to entertain the plaintiff's claim (post, p. 618F–H).
The following cases are referred to in the judgment of their Lordships:
Anisminic Ltd. v. Foreign Compensation Commission[
Harrikissoon v. Attorney-General of Trinidad and Tobago[
Smith v. East Elloe Rural District Council[
The following additional case was cited in argument:
Kanda v. Government of Malaya[
APPEAL (No. 47 of 1980) by the plaintiff, Endell Thomas, against a judgment (January 19, 1979) of the Court of Appeal of Trinidad and Tobago (Hyatali C.J., Phillips and Kelsick JJ.A.) by which it allowed the appeal of the defendant, the Attorney-General of Trinidad and Tobago from a judgment and order (December 17, 1976) of Braithwaite J. in the High Court of Trinidad and Tobago answering three preliminary points of law (certified by Maharaj J. on July 2, 1973) in favour of the plaintiff.
The facts are stated in the judgment of their Lordships.
Nicholas Lyell Q.C., Martin Daly S.C. (of the Trinidad and Tobago Bar) and Michael Gettleson for the plaintiff.
Anthony Lester Q.C., Michael Beloff Q.C. and Jean A. Permanand, Solicitor-General, Trinidad and Tobago for the Attorney-General.
July 27. The judgment of their Lordships was delivered by LORD DIPLOCK.
This is an interlocutory appeal in an action which was started in October 1972. It raises matters of great constitutional importance as to the terms of employment and security of tenure of members of the public service of Trinidad and Tobago in general and in particular of members of the police force. That it should have taken so many years to come before this Board for final decision after giving rise to acute divergences of judicial opinion in the High Court and Court of Appeal is, in their Lordships' view, a matter for regret.
The action itself arose out of events that occurred between April 1970 and August 1972, and culminated in the Police Service Commission removing Mr. Thomas (plaintiff in the action and appellant before this Board) from the police service in which he then held the rank of Assistant Superintendent. These events occurred at a time when Trinidad and Tobago was still a constitutional monarchy under the 1962 Constitution and before it became a republic. In dealing with the appeal their Lordships will have to use the...
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