Kenrick Bell Claimant v Commissioner of Police Attorney General Defendants
| Jurisdiction | British Virgin Islands |
| Judge | JOSEPH-OLIVETTI, J. |
| Judgment Date | 31 October 2007 |
| Neutral Citation | VG 2007 HC 34 |
| Judgment citation (vLex) | [2007] ECSC J1031-1 |
| Court | High Court (British Virgin Islands) |
| Docket Number | BVIHCV2007/0142 |
| Date | 31 October 2007 |
IN THE HIGH COURT OF JUSTICE
BVIHCV2007/0142
Mr. Herbert McKenzie of Farara Kerins for the Claimant
Mr. Baba Aziz of the Attorney General's Chambers for the Defendants
(Administrative Law - judicial review - police officer charged with criminal offence discharged on failure of prosecution to adduce evidence - police officer later charged with disciplinary offence - whether adjudicator based on the 'no evidence rule' erred when he found officer guilty of a disciplinary offence - whether Commissioner made the decision to dismiss officer from the Force - whether decision to discharge ultra vires the Commissioner - whether police officer can avail himself of the principles of autrefois acquit - Police Act - Police Regulations )
This is a claim for judicial review by Mr. Kenrick Bell, a police officer who was discharged from service with the Royal Virgin Islands Police Force ("the Force"). In particular, Mr. Bell is seeking a declaration that the findings of a disciplinary tribunal convened under section 37 of the Police Act Cap 165 are unlawful or otherwise ultra vires and for orders of certiorari quashing the said findings, and the decisions of the Commissioner of Police and the Governor, which were based on those findings.
The facts are largely undisputed. Mr. Bell relied on his several affidavits and the Defendants on the affidavit of Mr. Philbert Alfred, the Deputy Commissioner of Police. Both deponents were cross-examined but this in the main related to one issue.
Mr. Kenrick Bell is a citizen of Jamaica where he served as a Police Constable for 6 1/2 years. He joined the Force as a Police Constable on 29 th June, 2004. He was placed on a probationary period of 3 years as is mandated by section 12 of the Police Act ("the Act").
On 1 st August 2006 Mr. Bell was charged with the indictable offence of assault occasioning actual bodily harm contrary to section 184(a) of the Criminal Code 1997. The virtual complainant was his spouse, Mrs. Verna Bell. He was interdicted from duty on 3/4 pay on the same day. 1 The preliminary inquiry into the charge commenced but Mrs. Bell after taking the stand refused to give any incriminating evidence against her husband. Accordingly, Mr. Bell was discharged following the failure of the prosecution to adduce evidence against him and the presiding magistrate entered a verdict of not guilty.
Mr. Bell was not recalled to duty but instead in early January 2007 was evicted from the Police Barracks of the East End Police Station where he was living at the time and took up residence in his car. This was so as he had been ordered by the Magistrate to vacate the matrimonial home which order he complied with.
On 15 th January, not having heard from the Commissioner of Police ("the Commissioner") as to his status Mr. Bell sought legal advice. His legal advisors by letter of same date wrote to the Commissioner to ascertain his status.
On 1 st February Mr. Bell was summoned to Police Headquarters where he was orally informed by Inspector Potter that he would be charged with the offence of discreditable conduct. Shortly after he was handed the charge-a charge of discreditable conduct under Regulation 6(a) of the Police Regulations ("the Regulations").
On 2 nd February Mr. Bell's attorney received a letter from the Commissioner which advised that Mr. Bell was still a member of the Force and that disciplinary charges would be brought against him.
Subsequently, the Commissioner appointed Chief Inspector Claudius Alexis Charles (Ag.) as adjudicator to hear the charge. Mr. Bell attended and was represented by Mr. McKenzie. At the conclusion of the hearing on 5 th April the adjudicator found that the charge was proved but that the punishment he was authorized to impose under section 37(3) of the Act was inadequate and therefore remitted the matter to the Commissioner for the imposition of punishment in accordance with section 37(4) of the Act.
On 12 th April, Mr. Bell, on the invitation of the Deputy Commissioner of Police, attended at Police Headquarters where Deputy Commissioner Alfred orally informed him that the Commissioner would be recommending his discharge from the Force effective 19 th April unless he successfully appealed against his conviction and that he had a right of appeal to the Governor. This was the main area of factual dispute and I accept the evidence of Deputy Commissioner Alfred that he not only told Mr. Bell that the Commissioner would be recommending his discharge but informed him of his right of appeal. Mr. Bell disputed that saying that Deputy Commissioner Alfred told him that the Commissioner 'might' recommend his dismissal. In any event nothing to my mind turns on the use of the word 'might' rather than 'would' in the circumstances and Mr. Bell was in no way prejudiced.
Mr. Bell through his legal advisors then filed an appeal to the Commissioner against his conviction on 13 th April. This was stated to be pursuant to sections 38 and 39 of the Act. Mr. Bell heard nothing about that appeal until 6 th June when he was handed a letter dismissing him and informing him that his appeal had not been successful.
On 7 th June, Mr. Bell, again through his legal advisors, appealed to the Governor under s. 39(1) of the Act. The Governor by letter of 11 th June advised him that the finding of the Tribunal and the Commissioner's decision were upheld and referred Mr. Bell's legal advisors to his earlier letter of 11 th May by which he had rejected his appeal of 13 th April. (Mr. Bell claimed never to have received this letter but nothing turns on this).
The main issue arising is whether, the adjudicator, based on the 'no evidence rule' misdirected itself when he found Mr. Bell guilty of a disciplinary offence. A secondary issue is whether it was the Commissioner who made the decision to dismiss Mr. Bell from the Force and if so whether this decision was ultra vires the Commissioner. And a third issue is whether Mr. Bell can avail himself of the plea of autrefois acquit having regard to the fact that the criminal charge which was substantially the same as the disciplinary offence had been dismissed.
Mr. Herbert McKenzie, Learned Counsel for Mr. Bell in essence submitted that there was no evidence before the adjudicator to support his finding that Mr. Bell was in breach of Regulation 6 and thereby guilty of the offence charged. He emphasized that Mrs. Bell did not give evidence and that no one testified to seeing Mr. Bell assault Mrs. Bell.
Mr. McKenzie founded his argument on the basis that the absence of evidence as a ground of judicial review has now been established and the "no evidence rule" applies equally to both statutory and domestic tribunals. Counsel relied on inter alia the cases of Westbourne Industrial Enterprises Ltd v Labour Relations Board 2, Lee v The Showmen's Guild 3, Allison v General Council of Medical Education 4, Re Rivas 5 and Wade on Administrative Law, 7 th Edn.
Counsel further submitted that Mr. Bell can rely on the plea of autrefois acquit based on the dismissal of the criminal charge as it was substantially the same charge as that heard by the adjudicator.
On the third ground Counsel submitted that under the Act the power of the Commissioner is limited to recommendation only. He is not vested with the power to dismiss or discharge a member who has been found guilty of a disciplinary offence. Those powers are vested in the Governor by virtue of section 36 of the Act. Having regard to the tenor of the correspondence exchanged between the Commissioner, the Governor and Mr. Bell it was the Commissioner who in effect took the decision to discharge Mr. Bell and accordingly the Commissioner acted ultra vires his powers and the dismissal is void.
Mr. Baba Aziz, Learned Counsel for the Defendants, submitted that Mr. Bell's challenge to the adjudicator's decision is an attack on the merits of the decision of the adjudicator and thus cannot be entertained by the Court as judicial review is not an appeal from a decision but a review of the manner in which a decision is made. See Chief Constable of North Wales exparte Evans. 6 The grounds upon which the decisions of inferior tribunals can be questioned were enumerated by Lord Reid in Anisminic Company Ltd v Foreign Compensation Commission 7 as (1) decision given in bad faith, (2) failure in the course of the enquiry to comply with the requirement of natural justice; (3) misconstruing the
And, pursued Counsel, these categories were synthesized by Lord Diplock in Civil Service Union v Minister of Civil Service 8 into three main grounds namely illegality, irrationality and procedural impropriety. Mr. Bell has not shown that the adjudicator's decision fall within any of these categories. Counsel also relied on Associated Provincial Picture Houses Limited v Wednesbury Corporation. 9
Counsel also pointed out that these principles apply equally to the Commissioner's decision to recommend his discharge as well as the Governor's decision to accept the recommendation and that Mr. Bell had not shown that those decisions were capable of being challenged in the accepted manner. In any event, on the evidence before the Court the Commissioner only recommend his discharge and the Governor accepted the recommendation and acted on it. Therefore neither...
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