Wendell Nichols Claimant v Attorney General Commissioner of Police Defendants

• Jurisdiction: British Virgin Islands
• Judge: Joseph-Olivetti, J.
• Judgment Date: 19 June 2007
• Judgment citation (vLex): [2007] ECSC J0619-1
• Docket Number: BVIHCV2005/00313
• Court: High Court (British Virgin Islands)

[2007] ECSC J0619-1

IN THE HIGH COURT OF JUSTICE

BVIHCV2005/00313

Between:

Wendell Nichols

Claimant

and

Attorney General

Commissioner of Police

Defendants

Appearances:

Mrs. Lorna Shelly-Williams of Farara Kerins for the Claimant

Mr. Arden Warner of the Attorney General's Chambers for the Defendants

(Contract of employment - claim for wrongful dismissal - Police officer discharged without being given an opportunity to be heard - whether implied term of his contract that he should be given that right - alternatively whether he had a legitimate expectation to be heard prior to his discharge - whether serving at pleasure of the Crown and therefore dismissible at will - Police Act Cap165 s. 161)(d))

Joseph-Olivetti, J.

1 The police force of any country is the public's first line of defence against crime. Therefore, much is expected of police officers especially in these times of public declaration of war on crime and the recent incentive undertaken with regional police to fight transnational crime 1. But, what can a police officer expect of his employers? This is a claim by Mr. Wendell Nichols a Police Officer who was discharged from service with the Royal Virgin Islands Police Force ("the Force") in the British Virgin Islands ("BVI"). He is seeking damages for wrongful dismissal on the basis that the Commissioner of Police ("the Commissioner") acted in breach of contract as he dismissed him from the Force without giving him an opportunity to be heard. The Commissioner says that he was a

servant of the Crown, holding office at the Crown's pleasure and that the Crown was entitled to dismiss him at will under s. 16(1)(d) of the Police Act.Cap.165 ("the Act").

The Facts

2 The facts are largely undisputed as the parties properly viewed this case as raising important issues of law only. Mr. Nicholls relied on his witness statement and the Crown on the witness statement of Mr. Reynell Frazer, the Commissioner 2. Both parties relied on their respective documents contained in the bundle of documents produced at trial which was admitted by consent. The facts as gleaned from this evidence can be summarized as follows. Mr. Wendell Nichols is a citizen of St. Vincent, a ruggedly beautiful country in the southern Caribbean forming part of the English Commonwealth and of Pirates of the Caribbean fame. He was appointed as a Police Constable in the Force on 9 ^th July, 1990 3. He served well and faithfully and attained the rank of Sergeant on 8 ^th July 2002 and was acting as an Inspector in March 2004. He had up to that date an unblemished record of service. However, in late March 2004 he was accused of incest by his minor daughter. On 27 ^th April 2004 he was arrested and charged with that offence which is an indictable offence. 4 Ironically, this preceded by only a few days a letter of commendation dated 29 ^th April 2004 from the then Commissioner in which he commended him for his "outstanding police action" at an incident at Her Majesty's Prison at Balsam Ghut on 22 ^nd April,2004. 5

3 As a result of the charge the Commissioner of Police properly interdicted Mr. Nichols from duty on half pay 6. Subsequently, the Preliminary Inquiry into the charge commenced but the virtual complainant refused to give evidence after she was sworn and the presiding Magistrate dismissed the case on 28 ^th January, 2005. Thus, there was no decision on the merits and Mr. Nichols did not have an opportunity to refute the charge. Before this court he states, and this was not challenged that he denied the allegations made against him and continues to do so. See para. 7 of his witness statement.

4 Despite the dismissal of the charge Mr. Nichols was not reinstated as he expected to be and he remained on suspension. In March, 2005 he made inquires of the Commissioner

and subsequently of Superintendent Duncan as the Commissioner had indicated that he would ask him to look into the matter, but these bore no fruits. The Commissioner did not proffer any disciplinary charges against Mr. Nichols. However, by chance he met the Commissioner in August 2005 at the T.B. Lettsome Airport when he was about to travel to St. Vincent and the Commissioner indicated to him that he would not be getting back into the Force and that he should consider resigning and that he would be wasting his time and money to get a lawyer because the Governor's decision was final. Evidently, Mr. Nichols did not accept that no doubt well-intentioned advice.

5 On his return from St. Vincent in September 2005 Mr. Nichols received his letter of discharge under the hand of the Commissioner dated 18 ^th Sept. The relevant part simply states 7:-

"On behalf of His Excellency the Governor, I have to inform you that you are discharged from the Royal Virgin Islands Police Force with immediate effect in accordance with Section 16(1)(d) of the Police Act Cap. 165."

6 And to show that no ill-will was intended the letter also stated in the last paragraph - "O n behalf of the Governor, I thank you for your services with the Royal Virgin Islands Police Force and wish you well in your future endeavours."

7 Mr. Nichols was aggrieved and sought legal advice. His legal advisors by letter dated 19th September 2005 appealed to the Governor under section 39 of the Act. The undoubted dilemma in which the lawyers apparently found themselves having regard to the baldness of the letter of discharge is reflected in their letter of appeal which states in the material part 8:-

"Pursuant to section 39 of the Police Act Cap.165 we hereby appeal against the decision of the Commissioner of Police to discharge Mr. Wendel Nichols from the said Royal British Virgin Islands Police Force. The notice of the discharge was communicated… The letter cites as the ground for the discharge, section 16(1) (d) of the Act. That provision states: "An inspector…. (the entire sub-section is quoted). At the time of receipt of the letter of discharge Mr. Wendell Nichols held the rank of Acting Inspector."(Emphasis mine)

8 The Governor by letter dated 24 ^th October 2005 gave short shrift to the appeal. His Excellency stated concisely:-

"I am afraid that I do not find in your letter of appeal any substantive ground upon which the decision is appealed.

The fact that Mr. Nichols held the rank of acting Inspector has no bearing upon the application of section 16 of the Police Act, as that section also applies to subordinate police officer, and as such he was appropriately dismissed under section16." 9

9 And so, Mr. Nichols' appeal through no fault of his was dismissed. One may reflect that it was fated from the start as one cannot lose sight of the fact that the underlying reason for this almost automatic and inevitable dismissal stemmed from the simple fact that the letter of discharge itself gave no reasons for his discharge in the first place. No doubt His Excellency the Governor was not aware of the specific contents of the letter of discharge. Mr. Nichols could only have surmised that it concerned the criminal charge which as far as he was concerned was dismissed and so he could not have assumed without more that that was the basis for the decision to discharge him.

10 Mr. Nichols gave evidence which was not challenged about the attempts he made to obtain other employment both here and elsewhere after his discharge and the futility of his search and the resultant hardship visited upon him and his family. See paras.13 - 16 of his witness statement. And para.16 sums up his present situation in stark terms:-

"At this present time in my life I feel like a prisoner although I have not been convicted of any crime. I am feeling like I am being punished without being convicted of any wrongdoing. My life is at a total standstill. I am unable to work; I am only allowed to visit the territory as a visitor. I have nowhere to live. I have not been able to do the little things we normally do as a family such as taking my children for a drive, going to the beach, or to even sit and have pizza on Fridays. I am bankrupt and in debt. The bank has already

informed me that they are in the process of recovering their money, a scarce commodity for me."

11 Mr. Nichols filed this claim in the High Court on 21 ^st December 2005 seeking damages for wrongful dismissal. He alleges that the Commissioner 10 wrongfully dismissed him as (a) the criminal charges against him were dismissed and (b) he was not given an internal hearing which is a breach of Natural justice. He claimed for damages including inter alia a claim for loss of earnings until retirement age and pension. 11

12 In their Amended Defence (See Tab 3) the Defendants aver that Mr. Nichols was lawfully and properly discharged by the Governor under s. 16(1)(d) of the Act and in para. 5 they set out the basis for the recommendation for the discharge. This is reflected in the Commissioner's witness statement para. 3–12. It can readily be seen that the reasons centre around the same allegation of incest and the effect on the Force if it were to have a serving member against whom unventilated allegations of such a grave and serious nature were made, the strength of the written statement of the complainant and the perceived public interest implications for the Force. In paras. 10 - 11 of his witness statement the Commissioner said "it was the considered opinion that it would not be 'in the public interest' for Sergeant Nichols to remain a member of the Royal Virgin Islands Police Force and that accordingly he recommended to the Governor that he be dismissed in accordance with section 16(1)(d) of the Act."

13 It is noted that this is the first time that Mr. Nichols learnt exactly why he was discharged from the Force.

Claimant's submissions

14 Mrs. Shelly-Williams, Learned Counsel for Mr. Nichols in essence submitted that at common law every citizen always has a legitimate expectation of natural justice which...