Carl Palmer v The Superintendent of Prisons and The Attorney General

• Jurisdiction: Anguilla
• Judge: Ramdhani, J. (Ag.)
• Judgment Date: 30 July 2018
• Neutral Citation: AI 2018 HC 9
• Date: 30 July 2018
• Docket Number: CLAIM NO. AXAHCV 2018/0010
• Court: High Court (Saint Christopher, Nevis And Anguilla)

IN THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Ramdhani, J. (Ag.)

CLAIM NO. AXAHCV 2018/0010

Between:

Carl Palmer

Applicant

and

[1] The Superintendent of Prisons

[2] The Attorney General

Respondents

Appearances:

The Applicant in Person

Mrs. Sherma Blaize Sylvester for the Respondents

Judicial Review - Application for leave — challenge to several decisions made by separate persons Grounded on procedural irregularity and unreasonableness of decision — Applicant complaining that decision maker (Tribunal headed by Ms. Fontaine) who was empowered to conduct rehearing, failed to do so but instead held a truncated hearing — Further complaint that the decision maker failed to properly exercise her powers to call for available evidence during hearing — Further complaint that one decision maker (the Superintendent of Prisons) failed to exercise his discretion properly and acted unreasonably in laying charges and referring charges to Governor — Applicant failing to show that an arguable case with any likelihood of success that any of the decisions were bad in law. Application dismissed.

DECISION

Ramdhani, J. (Ag.)

1 This is an application for leave to apply for judicial review filed on 7 ^th March 2018, seeking permission inter alia to challenge the decision of a Tribunal of Inquiry made on the 28 ^th January 2018, and for further declarations that a decision made by the Governor on 20 ^th February 2018 to dismiss him from the prison service is null, void and of no legal effect. Having heard the parties and considered the submissions, permission is denied with no order as to costs for the following reasons.

The Application for Leave

2 The applicant, Carl Palmer, was at all relevant times a Senior Officer at Her Majesty's Prison. He became the subject of certain disciplinary charges in 2016 and after several inquiries, he was dismissed by His Excellency the Governor on the 20 ^th February 2018.

3 He filed this Application on 7 ^th March 2018 seeking declarations relating to the validity of certain decisions which led to his dismissal as well as an order quashing and setting aside those decisions. The details of those relief are now set out:

• 1. A Declaration of the Tribunal of Inquiry led by Ms. Eustella Fontaine and contained in her Report, dated 26th January 2018, to His Excellency the Governor of Anguilla, Tim Foy upholding two charges of discreditable conduct against the applicant, infringes the due process rights and the procedural fairness rights of the applicant;

• 2. A Declaration that the decision made by His Excellency the Governor, Tim Foy on 20th February 2018 to dismiss the applicant from his post as Senior Officer of the prison service of Anguilla is unlawful, null and void and of no legal effect;

• 3. A Declaration that the applicant remains in his post as Senior Officer at Her Majesty's Prison, Anguilla, and that the applicant remains entitled to the full remuneration attaching to his post since the applicant is willing and able to continue to render the service required of him;

• 4. An order of Certiorari quashing the said decision of Ms. Eustella Fontaine and setting aside the said decision of His Excellency the Governor Tim Foy.

• 5. Costs.

• 6. Such further or other relief as the Court deems fit.

4 The grounds of the application were set out as follows:

• 1. The applicant alleges unfairness in the decision making process of the Tribunal Inquiry led by Ms. Eustella Fontaine, relative to the said two charges of discreditable conduct brought against the applicant;

• 2. The decision of the Tribunal of Inquiry was rendered without any proper reasoning to support said decision;

• 3. The remit of the Tribunal of Inquiry was to review, hear evidence and make a final recommendation regarding the decision of an earlier tribunal headed by Don Mitchell CBE., QC (the “Don Mitchell Inquiry”) with respect to the charges aforesaid against the applicant. Ms. Fontaine in her decision failed to make a proper or any assessment of the facts surrounding said charges; failed to fully consider the decisions of the Don Mitchell Inquiry which she was required to review and in particular failed to consider the reasons given for the decision of the said Don Mitchell Inquiry; further Ms. Fontaine failed to consider how Don Mitchell, CBE QC applied his mind to the facts surrounding the charges against the applicant and failed to give particulars of how she arrived at her conclusion that the two charges of discreditable conduct against the applicant should be upheld;

• 4. Contrary to the self-stated scope of the Tribunal of Inquiry, it failed to consider fully in its review the totality of the evidence relating to the charges brought against the applicant;

• 5. The Tribunal of Inquiry wrongfully limited its proper consideration of the evidence in this matter to hearing three additional witnesses, namely, Lansworth Laborde, Dannice Simmons and Ms. Sasso, contrary to the requirement that the Tribunal review all relevant and appropriate evidence including the evidence of all relevant witnesses available to the Tribunal;

• 6. The Tribunal of Inquiry ruled inappropriately that the first of the two alleged incidents which formed the basis of the charges against the applicant occurred on 29th February 2016 despite the urging of the applicant and the evidence of the witness, Prison Officer, Mr. Laborde that the alleged incident took place on 28th February 2016.

• 7. The Superintendent of Prisons wrongly exercised his discretion to charge the applicant with assault and to refer the charge of assault up to the Governor. The scheme of the Code of Discipline for Prison Officers contained in the Prison Regulations of Revised Regulations of Anguilla (RRAP75—1) and the interests of justice require that the discretion to be exercised on a rational basis and in accordance with the purposes of the Code and the Prison Regulations;

• 8. The decision of Ms. Fontaine was wrong in law and against the weight of the evidence;

• 9. In all the circumstances of the case the decision of the Governor to dismiss the applicant from the prison service following upon the decision of the Tribunal of Inquiry was wrongful, unlawful and contrary to the precepts of due process and procedural fairness.

5 The application was supported by an affidavit sworn by the applicant on even date, in which he set out the history of the events leading up to the two decisions which effected his dismissal.

6 In brief, at the relevant times the applicant was a prison officer who began his career with Her Majesty's Prison as a prison officer Basic Grade in 2009 and was then promoted to Senior Officer in 2015. He asserts that his professionalism caused him to come at odds with then Superintendent Gumbs on issues related to prison discipline among inmates. He stated that he was battling a ‘state of chaos’ in the prison and this caused him to question the ‘less than effective management of the prison’. He stated that he voiced his opinions and disagreement with management issue s and this caused the Superintendent to become ‘disaffected’ with him. As a result, the prison environment among his peers became ‘hostile’ and in fact that this was being orchestrated by the Superintendent who had become hostile towards him. Matters got to the point where the Superintendent threatened to see him dismissed.

7 It was in this environment that two complaints were made against him related to allegations made by two separate prison officers. The two charges are as follows:

• (a) That on Monday, 29th February 2016 in the island of Anguilla, Senior Officer Carl Palmer did commit an offence of discreditable conduct in that while in a verbal confrontation with SO Rondel Kyte he threatened to ‘mash him up’ contrary to section 2(a)(iii) of the Code of Discipline for Prison Officers, Prison Regulations RRA P75—1; and

• (b) That on Wednesday 2 ^nd March 2016 in the island of Anguilla Senior Officer Carl Palmer did commit an offence of discreditable conduct in that while in a verbal confrontation with SO (Ag) Delma Titre he assaulted her by brushing her hand down when she attempted to turn on the light switch contrary to section (2)(a)(iv) of the Code of Discipline for Prison Officers, Prison Regulations RRA P75—1

8 Those charges first came before the Superintendent who did not dismiss them but eventually referred the charges to the then Governor. The then Governor appointed Mr. Don Mitchell Q.C. to conduct a formal inquiry into the charges. Mr. Mitchell Q.C. held the inquiry and issued a report on the 20 ^th April 2017 and found the applicant guilty of both charges.

9 By a letter dated the 9 ^th May 2017, the then Governor wrote to the applicant and informed him that she had considered the record of proceedings of Inquiry before Mr. Mitchell Q.C. and for the reasons given in the report, had decided to uphold the two charges of discreditable conduct against him. The Governor gave notice that she was proposing to dismiss the applicant and informed him that he had a right before such step was taken to request that a personal hearing be held in accordance with the Code of Discipline.

10 The applicant requested a personal hearing and one was held by Mr. Stanley Reid who recommended that a further inquiry be held in accordance with section 12(5) of the Prison. The essential complaint before this personal hearing was that the complaint from the applicant that Mr. Mitchell Q.C. had not heard crucial witnesses from his side.

11 This led to the Governor appointing Ms. Eustella Fontaine to convene a Tribunal of Inquiry to hold a further inquiry into the charges. That further inquiry was held and the findings made by Mr. Mitchell Q.C. were upheld.

12 The essential complaints against the Ms. Fontaine's Inquiry were contained in the applicant's affidavit at paragraphs 13 to 17. He states:

• 13. I am...