Mohammed v Police Service Commission

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Kangaloo, J.A.
• Judgment Date: 31 March 2010
• Neutral Citation: TT 2010 CA 17
• Docket Number: Civil Appeal No. 53 of 2009
• Date: 31 March 2010

Court of Appeal

Kangaloo, J.A.; Weekes, J.A.; Jamadar, J.A.

Civil Appeal No. 53 of 2009

Mohammed

and

Police Service Commission

Appearances:

Mr. A. Ramlogan for the appellant.

Mr. R. Martineau, S.C. for the respondent.

Constitutional law - Fundamental rights and freedoms — Right to access to an attorney — Whether breached — Evidence that appellant had briefed his attorney before his arrest and that the attorney had been given the opportunity to speak to the appellant on his arrest — Also the attorney left the station when asked to remain — No ground for appeal — Appeal dismissed.

I have read the judgment of Kangaloo, J.A. and agree with it.

P. Weekes,

Justice of Appeal

I, too, have read the judgment of Kangaloo, J.A. and agree with it.

P. Jamadar

Justice of Appeal

Kangaloo, J.A.

1 This is an appeal from the judge below, who refused permission to apply for judicial review. His refusal was on the basis that the application for permission was filed some 5 ¹/₂ months after the impugned decision which was contained in a letter of the defendant Commission to the appellant. This he regarded as undue delay and he was of the view that there was no explanation sufficient to justify the delay nor was there any good or satisfactory reason to support an application for an extension of time (See pg 4 of the notes of proceedings in the supplemental record of appeal).

2 The sole issue that arises on this appeal, is therefore, whether it can be demonstrated that the learned judge was plainly wrong, when he refused permission to apply for judicial review on the basis set out above.

3 Factually, the learned judge was wrong in his calculation of the period of delay; it was really from the 6th August 2008 to the 26th November 2008, a period of some 3 months and 20 days, instead of the 5 ¹/₂ months calculated by the judge. However the appellant was still outside of the ultimate three-month period set by the Judicial Review Act, 2000 (See 11(1)). It was therefore incumbent on the appellant to explain his delay in seeking permission to apply for judicial review- He also had to demonstrate a good reason for the court to extend the period for the making of the application (Ibid).

4 It is beyond argument that the appellant did not attempt to explain the delay. In fact on his ex parte application at pg. 10, the appellant states “(d) there has been no delay in making this application. Further, in his written submissions for the purposes of the appeal the appellant contends at paragraph 8” The appellant submits there has been no delay in filing this application for judicial review.

5 The appellant's contentions for saying that there was no delay in the making of the application are two-fold.

First, he contends that the letter of the 6th August 2008 containing the impugned decision was only received by the appellant on the 22nd August 2008.

Secondly, he says that the appellant caused a pre-action protocol letter to be sent on the 8th September 2008. The response to this pre-action protocol letter was dated the 6th November 2008 and was only received by the appellant on the 10th November 2008, and the application for permission to apply for judicial review was made within one month, that is, on the 26th November 2008

6 Suffice it to say that these reasons given by the appellant in his submissions for his contention that there was no delay are quite wrong. There was a delay in so far as the impugned decision is the 6th August 2008 and the application for permission was made, more than 3 months later, on the 26th November 2008. As the respondent correctly contends, the letter of the 6th November 2008 from the Commission confirmed its initial decision of the 6th August 2008 and so was not itself reviewable (See de Smith's Judicial Review 6th ed. Para. 3-028). Time, therefore, began to run from the 6th August 2008. In any event the pre-action protocol for administrative orders itself says at 1.7:

“This protocol does not affect the time limits specified by Rule 56.6(2) of the Civil Proceedings Rules (CPR), the Judicial Review Act, 2000 or The Freedom of Information Act, 1999.”

7 In his written submissions, both before the judge below and in the Court of Appeal, the appellant contends that assuming but not admitting that there was undue delay in the making of his application for permission to apply for judicial review, the time for the making of this application should be extended. This he says for two reasons in the Court of Appeal:

• (a) compliance with the pre-action protocol was a genuine attempt to resolve the matter without litigation; and

• (b) the substantive application has merits arid-raises important issues.

In the court below the appellant added that “there is no conceivable prejudice to the defendant or any third party.” (Paragraph 7 of written submissions in the court below)

8 The Commission has asserted that there was no application for an extension of time before the judge below as can be gleaned from the notes of the proceedings. The appellant contends that he made an oral application for the extension. It is indeed unfortunate that the Court of Appeal should be called upon to decide whether there was such an oral application or not. The notes of the learned judge do not contain such an oral application but I bear in mind that these notes are summary and not verbatim. It is clear that in the written submissions ordered by the judge below, the appellant does assert that any delay was caused or contributed to, by compliance with the pre-action protocol “which should favour an extension of time to permit the making of this application for judicial review.” (Paragraph 7 of the written submissions below) Additionally, the learned judge in his reasons says “I am given no good or satisfactory reason either for the delay, or to support an application for extending the time to file the application.” (See the penultimate paragraph of judge's reasons at pg. 3 of 3) I therefore am of the view that an oral application was made by the appellant during the hearing of the application below. No point has been taken that such an oral application could not properly have been made and I therefore do not decide it.

9 To appreciate the merits argument as well as the lack of prejudice argument, it is necessary to set out briefly the facts which gave rise to the application for permission.

10 The appellant was a police constable against whom three disciplinary charges were preferred arising out of an incident which occurred on the 30th May 2003. At the time of these charges, the appellant had a right of appeal to the Public Services Appeal Board (PSAB). By letter of the 6th August 2008, the appellant was informed by the Director of Personnel Administration that he was dismissed from the Police Service with effect from the date of receipt of the letter (22nd August 2008). He was also informed that the provisions of the Constitution do not provide for an appeal from the Commission as a result of a decision on disciplinary proceedings, but that amendments to the Constitution were being pursued in this regard. The advice given to the appellant, that there was no appeal from the Commission's decision, was as a result of the Commission's interpretation of an amendment to the Constitution brought about by the Constitution Amendment Act, 2006. It appears that the advice was given pursuant to regulation 101 of the Police Service Commission Regulations which mandates the Commission to inform a police officer against whom there are disciplinary charges as soon as possible, in writing of the penalty imposed on him and of his right to appeal to the PSAB.

11 The contention of the appellant on the merits of his case is that the Constitution Amendment Act, 2006 has no application to him, in so far as it seeks to deprive him of his right of appeal to the PSAB. The basis of this contention is “that at the time of the initiation of the disciplinary charges, the appellant had a vested right of appeal which could not have been retrospectively removed by the amendment to the Constitution in 2006.

12 With respect to prejudice to the defendant or third parties, the appellant contended in the Court below that there was none.

13 The question that arises therefore is whether the learned judge below erred in not extending the time for the application for permission.

14 As indicated earlier, (See para. 1 above) the learned judge was of the view that compliance with the pre-action protocol was not a valid reason for not seeking permission to apply for judicial review earlier. In so far as that determination goes, it cannot be said that the judge erred. Compliance with the pre-action protocol is necessary, but it does not prevent time from running in judicial review cases.

15 The question, however, is whether the learned judge erred by adopting too technical an approach to the application for the extension of time by using the explanation for the delay as a threshold condition to the exercise of his discretion. I am of the view that he did. I should say that my view is premised on the assumptions that (a) the argument of the appellant about the effect of the Constitution is not without merit and (b) no prejudice to third parties or the Commission nor detriment to good administration has been shown nor is self evident. With respect to the merits argument, the Commission was not asked by the judge to deal with it, nor did the judge himself address it in his judgment. I am of the view therefore that it does not arise on the appeal as a factor to be taken into consideration in deciding whether or not to extend the time for the making of the application.

16 An appropriate starting point in the analysis is the dictum of Lord Woolf in R. v Commissioner for Local Administration ex parte Croydon London Borough Council & Or. [1989] 1 All E.R. 1033, 1046g:

“While in the public law...