Vydia Charles v The Commissioner of Police
| Jurisdiction | Anguilla |
| Judge | ‘Innocent, J.’ |
| Judgment Date | 30 June 2021 |
| Neutral Citation | AI 2021 HC 9 |
| Docket Number | CLAIM NO. AXAHCV 2018/0046 |
| Court | High Court (Saint Christopher, Nevis And Anguilla) |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE (CIVIL) A.D. 2021
CLAIM NO. AXAHCV 2018/0046
Mr. Thomas Astaphan, Q.C., with him Mr. Devin Hodge of counsel for the claimant
Mr. John Carrington, Q.C., with him Ms. Sherma Blaize-Sylvester, Crown Counsel, Attorney General's Chambers of counsel for the defendants
Anguilla Police Act, R.S.A. c. A70 — Sections 6 and 22 — Police Regulations, R.R.A. A70–2 — Regulations 12(1), 12(2) and 12(4) — Judicial Review — Promotion to rank of Inspector — Police Promotion Selection Board — Senior Management Team — Whether Police Promotion Selection Board delegating power to make promotions to the Senior Management Team — Whether ultra vires Police Act and Police Regulations — Promotion selection process — Whether selection process unfair — Whether procedure adopted by the Police Promotion Selection Board ultra vires section 12 of the Police Regulations — Prejudice — Bias — Legitimate expectation — Whether the claimant had a legitimate expectation to be promoted to rank of Inspector based on previous practice in the promotion selection process — Whether the actions of the Commissioner of Police as a member of the Promotion Selection Board rendered the decision of the Promotion Selection Board unlawful — Whether the requirement to undertake an interview as part of the promotion process was unlawful and outside the remit of Regulation 12 of the Police Regulations — Whether the requirement to partake in an interview was ultra vires Regulation 12 of the Police Regulations — Whether interview was a threshold requirement to promotion to the rank of inspector
This is a claim for Judicial Review brought by the claimant, Sergeant Vydia Charles of the Royal Anguilla Police Force (the RAPF) against the Commissioner of Police (the Commissioner), the Promotion Selection Board of the RAPF (the Board) and the Senior Management Team of the RAPF (the SMT). These proceedings arise out of a promotion and selection procedure conducted by the Board for the promotion of certain police officers who held the rank of Sergeant to the rank of Inspector.
Consequent on her unsuccessful application for promotion to the rank of Inspector, the claimant filed a claim for judicial review seeking the following relief, namely, (1) an order for certiorari quashing the decision of the Board of November 2018 as it related to the promotion and selection of police officers within the RAPF; (2) an order of mandamus directing that the selection and promotions process within the RAPF be remitted to the Board for the purpose of conducting the promotion and selection process anew in accordance with the findings of the Court and in accordance with law; and (3) an order of prohibition directing that the interview stage not be used as a determinant of threshold eligibility for selection and promotion within the RAPF.
The claimant had initially sought leave to bring the claim for judicial review on an ex parte application (the ‘Ex Parte Application’) filed on 23 rd November 2018. In the Ex Parte Application, the claimant sought the following orders and relief, namely, (1) leave to apply for judicial review, in particular (a) to obtain an order of certiorari against the Board and the SMT bringing up and quashing the purported decisions of each of them purported to have been made on or about 19 th and 20 th November 2018, respectively, whereby in the case of the Board (i) they failed to promote the claimant to the rank of Inspector and they purported to select other applicants for promotion to the rank of Inspector and Sergeant, and (ii) they ceded and or delegated their power to make said promotion to the ranks set out in Regulation 12 of the Police Regulations to the SMT, and the purported decision of the Board and the SMT to promote other named officers to the rank of Inspector and Sergeant respectively (iii) Alternatively, if the Board did make said selections and promotions, they erroneously took into account the views therein of the SMT; (2) An order of mandamus directed to the Commissioner and the Board directing them to begin the process of promotion and selection process afresh and in accordance with law; (3) An injunction against the SMT prohibiting them from participating in the promotion and selection process in contravention of Regulation 12 of the Police Regulations; (4) an interim injunction to prevent from going into effect the purported promotion of the officers named in the Report dated 20 th November 2018 taking effect until the trial of the claim for judicial review, if leave is granted.
The Court having considered the Ex Parte Application, and noting that it contained a claim for immediate interim relief, ordered an inter partes hearing of the application for leave. The inter partes leave application was opposed by the defendants. 1
By order dated 14 th December 2018 a differently constituted Court made the following ruling:
“The Court grants leave to file an Application for Judicial Review once that Court is satisfied that there is an arguable ground for judicial review having a reasonable prospect of success.
Having reviewed the Application along with the affidavits in support along with the application in opposition and its accompanying affidavits, the Court finds:
1. That the Commissioner of Police in this case treated the test scores achieved by the relevant applicants for the post of Inspector as the threshold eligibility for the post when it ought not to have been so.
2. It appears therefore that the requirement to consider merit and efficiency as required by section 12(2) of the Police Regulations were ignored in determining the eligibility of the Applicants for the post of Inspector and sole reliance placed on the test scores.
3. Further, the Commissioner of Police had established a practice of dealing with promotions to specialized positions, added to which the representation made by the Commissioner of Police to the Applicant created a legitimate expectation that the established procedure would have been followed in this instance and it was not.”
It was on the abovementioned basis that the Court granted the application for leave to file a claim for judicial review. In addition, to the grant of leave, the Court also ordered that the application having been heard after the effective date of promotions, no order is made on the injunctive relief sought by the claimant.
The substance and tenor of the order granting leave to the claimant to file a claim for judicial review present some difficulty for the Court hearing the substantive claim for judicial review for obvious reasons. It appears that the Court in granting leave to the claimant seemed to have already made a determination on critical issues to be determined on the substantive hearing of the claim for judicial review.
The above observation brings to mind the decision of the Court of Appeal of the Eastern Caribbean Supreme (‘Court of Appeal’) in the case of Edgecombe v Premier and another 2 where it was made clear that the leave stage is a filtering process, with the proper analogy being to applications for leave to appeal and to the proper conduct of such applications as recently remarked upon by Mitchell JA (Ag) in the case of Treasure Bay (St Lucia) Ltd v Cage St Lucia Ltd where His Lordship expressed the view that, without deciding the issue, applications for leave to appeal are intended to be a weeding out process, to ensure that unmeritorious appeals are not filed and that such applications should not be contested on the merits at such an early stage in the proceedings.
Therefore, where the court directs an oral hearing to take place on notice, it is not desirable that a mini-trial of the issue whether leave should be granted should involve the deployment of evidence that does not focus on the narrow issue of
whether leave ought to be granted, ought to be actively discouraged. Where a judge determines that leave to seek judicial review should be given to the respondent, it should always be borne in mind that no more than leave is involved and so legal submissions should be directed to whether the threshold requirements of leave have been met rather than to the merits of any possible substantive claim for reviewIn the claim for judicial review, the claimant relied on the following grounds which may be briefly summarized as follows:
(a) That she had a legitimate expectation that selection and promotion to the rank of Inspector in the RAPF would take place as and when a vacancy in that rank arose;
(b) That the implementation of an interview process as a threshold for eligibility for selection and promotion to the post of Inspector was irrational;
(c) That she was treated unfairly to the extent that she was not provided with full information regarding the interview process, specifically, the weight to be attached to the interview process, the pass mark, the criteria for marking the answers on the interview and the material to be reviewed in preparation for the interview;
(d) That the Board's and the Commissioner's reliance on the SMT in arriving at a final decision in the selection and promotion process was unlawful;
(e) That the Commissioner was manifestly biased towards her as a candidate for the selection and promotion process in light of his unfavourable view that he held of her as an officer in the Prosecution Department of the RAPF and as Acting Inspector in that Department;
(f) That she was prejudiced in the selection and promotion process as a result of the Commissioner's bias in his capacity as a member of the Board and the SMT.
The selection and promotion process under review was...
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