Police Constable Theo Smith v President of the Police Tribunal

• Jurisdiction: Bahamas
• Judge: Winder, J
• Judgment Date: 15 January 2020
• Date: 15 January 2020
• Docket Number: 2017/PUB/jrv/0008
• Court: Supreme Court (Bahamas)

COMMONWEALTH OF THE BAHAMAS

Before:

Before Hon. Mr Justice Ian Winder

2017/PUB/jrv/0008

Between

Police Constable Theo Smith

Applicant

and

President of the Police Tribunal

Chief Superintnedent Ismella Davis (1)

The Commissioner of Police (2)

Respondents

Appearances:

Maria Daxon for the Plaintiff

Auderio Sears for the Respondents

RULING

Winder, J

This is an application for judicial review of the decision.

1 The Applicant (Smith) brings this application for judicial review in the prescribed form as follows:

Judgment Order, Description or other relief sought

• 1. The decision of the Deputy Commissioner of Police Anthony Ferguson to lay charges against Constable 3472 Theo Smith on two (2) charges pursuant to Section 3(36) of the Police Disciplinary Regulations 1965, which is punishable under Section 62(2) of the Police Force Act 2009.

• 2. The decision of the Deputy Commissioner of Police acting for the Commissioner of Police and the President of the Police Tribunal Chief Superintendent Ismella Davis-Delancy to proceed to proffer a complaint against Constable 3472 Theo Smith contrary to Sections 78 to 81 of the Police Force Act 2009 and Sections 40 and 42 of the Police Service Commission Regulations 1970.

The grounds for this application are:-

• 1. Procedural Impropriety:

  • i) The Commissioner of Police breached the Fundamental rules of natural justice when he failed to follow procedure laid down by Statute to institute charges against the Applicant.

  • ii) The Commissioner of Police through his agents and/or servants breached the rules of natural justice when he failed to follow procedure to investigate procedure in complaints made against a police officer as laid by Statutes.

• 2. Irrationality:

  • i) The President of the Police Tribunal irrationally exercised her powers when she deliberately and/or failed to relevantly address the issue of complaints procedure in her ruling.

  • ii) The President of the Police Tribunal failed to address the provision of the Police Service Commission Regulations 1970 as it relates to the Applicant's right to respond to the Secretary of the Cabinet.

Order sought

• 1. An Order of certiorari to remove into this Honourable Court and quash the decisions of the Commissioner of Police and/or his servants to proffer complaint charges against the Applicant;

• 2. A Declaration that the purported Royal Bahamas Police Force laying of charges against the Applicant is unlawful, void, illegal and of no effect.

• 3. A Declaration that the Applicant's right to be treated fairly with due process and in accordance with the Constitution and the Rules of Natural Justice have been, and are being breached;

• 4. A Declaration that the Respondents have acted unfairly, arbitrarily, capriciously and abusive towards the Applicant;

• 5. An Order directing the Respondents to utilize the provisions of the 40(1) and 41 of the Police Service Commission Reulations 1970 and Sections 78 to 81 of the Police Force Act 2009;

• 6. An Order that there be a stay of proceedings in this matter affecting the Applicant.

• 7. Damages

• 8. Cost;

• 9. Such further or other relief as the Court deems just.

2 The application is supported by the affidavit of Smith, which is settled in part, as follows:

• 2. Between 5 ^th September, 2016 and 14 ^th October, 2016, two recruits informed me that they were forced to make reports of the incident against me by W/Sgt 2305 Sweeting.

• 3. That sometime on the 14 ^th October 2016, I went to see Inspector James and I received a CD4 and was formally informed that a complaint was made against me which was forwarded to the Complaints and Corruption Unit by the Dean of the Police College.

• 4. Inspector James then read the particulars of the charge and then I was interviewed. During the course of the interview, I answered the questions that I remembered, but refused to sign the interview form afterwards.

• 5. Inspector James informed me that if charges were going to be made, I will hear from them soon, but if not I won't hear from them; I don't need to worry about anything.

• 6. I did not hear anything about this matter until I received a summons at the Grove Police Station from Sgt. Clarke on the 14 ^th of February 2017 I received a dispatched form from W/Ch. Supt. Davis, the Presiding Officer in my case, who informed me that she would see on the morning 16 ^th of February 2017 at 10:00 a.m.

• 7. I thought that the matter was concluded as no charges were laid against me as of 24 ^th December, 2016, which was six (6) months since the complaint was made.

• 11. According to Section 2(7) of the Police Disciplinary Regulations “using obscene, abusive, or insulting language towards any other member of the Police Force” is listed as a minor offense and not a major offense as listed on the charge sheet.

• 12. Further, according to Section 40(1) of the Police Service Commission Regulations 1970. the Director of Public Personnel or the Secretary to the Cabinet should have informed me in writing that my discharge was being recommended.

• 13. That I was supposed to be given an opportunity to reply to the said charges, but I was never given an opportunity to reply to these said charges.

• 18. I would like the Royal Bahamas Police Force to allow me to fulfil the requirements of Sections 78–81 of the Police Act 2009 and Sections 40- 41 of the Police Service Commission Regulations 1970; and write to the Secretary to the Cabinet and the Director of Public Personnel in response to these charges.

3 The Respondent's evidential response is found in the affidavit of the 2 ^nd Respondent Ismella Davis-Delancey, which provides in part as follows:

• 6. Upon receipt of a complaint, the aforesaid Branch investigates such complaint and advises the Commissioner of Police of any preliminary finding. Should preliminary investigations prove that the offence complained of is of a major nature in accordance with the provisions of the Police Disciplinary Regulations, the aforesaid Branch may charge the Officer with a major offence relative to the complaint. Upon charging an Officer with a major offence, the aforesaid Branch shall advise the Commissioner of Police of such charge.

• 7. During the course of the Complaints and Corruption Branch's investigation, the officer in question is called into the Branch and served with a CD4 Form containing the particulars of the complaint against him.

• 8. Upon service of the CD4 Form, the particulars of the complaint are read over to the Officer, and the officer is formally interviewed in relation to the same.

• 9. By virtue of the Police Force Act, 2009, the aforesaid Branch is mandated to complete every investigation of a complaint against a Police Officer within six (6) months from time when the matter of such complaint arose or within such greater period not exceeding one (1).

• 10. Once the Complaints and Corruption Branch lays a charge of a major offence against an Officer, the Commissioner of Police appoints either one or more Gazetted Police Officers (of or above the rank of Assistant Superintendent of Police) to form a Court of Enquiry to determine the charge laid against the Officer.

• 11. The charged Officer is then summoned to appear before the Court of Enquiry to answer to the charge laid against him.

• 12. At the start of the initial Hearing of the Officer's charge before the Court of Enquiry, the charges are read over to the Officer and a plea is solicited and recorded. The Officer is also furnished with a copy of any complaints and reports made against him in connection with the charges for determination.

• 17. The particulars of the charges against Constable 3472 Theo Smith were:

  • I. That [he] on Friday 24 ^th June, 2016, at about 8:00pm at the Police College Compound, Oaks (sic) Field, New Providence, did use obscene, abusive and insulting language towards a number of police recruits.

  • II. That [he] on Friday 24 ^th June, 2016, at about 8:00pm at the Police College Compound, Oaks (sic) Field, New Providence, did drive a 1999 silver Honda vehicle in a reckless and dangerous manner in the area of the male dormitories, which is contrary to discipline, good order and guidance of the Force.

• 18. On or before Thursday, 16 ^th February, 2017, Constable 3472 Theo Smith was aware of the charges laid against him, in addition to the informants of such information to which the charges referred.

4 Smith's case is that the Respondent failed to follow procedure relative discipline by which the police force is governed, including: The Constitution (Articles 119, 120, 121); Police Act 2009 (Sections 78 to 81) and Police Service Commission Regulations 1970 (Sections 40 to 43).

5 Smith's submissions, as outlined in his written submissions, are as follows:

• 21. In the instant case, the investigators are employed under the Respondent, the Police Tribunal are officers appointed by the Respondent, and the Police Services Commission are appointed by the Respondent meaning that all are answerable to the Respondent and thus the Applicant was unable to receive a fair assessment during the decision to institute charges and is unlikely to receive a fair trial.

• 25. The charges instituted against the Applicant was unlawful and the Deputy Commissioner of Police acted in excess of his authority by laying charges against the Applicant, which should have been ratified by the Secretary to the Cabinet, the Police Service Commission and the Governor General.

• 26. The First Respondent through its agents and/or servants acted with extreme bias when it deliberately failed to do a thorough investigation in the complaint against the Applicant. Section 79- 81 of the Police Act 2009 and Sections 40(1) and 41 of the Police Service Regulations 1970 was breached when the First Respondent exercised its duty failing to ensure the investigation was conducted impartially.

• 27. The Second Respondent failed to follow procedure as laid down by the Police...