The Superintendent of Prisons and another v Hamilton

Where a disciplinary code provides that an officer may refer any charge to a Governor but shall refer specified classes unless dismissed, referral is discretionary for the specified classes and mandatory for the others. The exception list qualifies the mandatory limb, not the general power. The discretion must be exercised genuinely, rationally and consistently with the code’s purposes. It may reflect the seriousness of the charge or the inadequacy of the Superintendent’s powers, but is not confined to those considerations.

The Superintendent of Prisons and another v Hamilton concerned nine disciplinary charges against a deputy prison superintendent. One charge was dismissed and six neglect-of-duty charges under section 2(d)(i) of the Code of Discipline for Prison Officers in Anguilla were referred to the Governor. Following the respondent’s dismissal, he challenged the referrals as ultra vires.

The High Court upheld the challenge, and the Court of Appeal of the Eastern Caribbean Supreme Court (Anguilla) dismissed the Superintendent’s appeal. The central issue before the Privy Council was whether section 7(2) prohibited referral of listed charges, or permitted referral of any charge while making referral of non-listed charges mandatory unless dismissed.

1. Appeal allowed. Lord Hughes delivered the judgment of the Board. The Board advised that the appeal should be allowed and that the respondent’s claims should be dismissed.
2. Construction of section 7(2). The ordinary and grammatical meaning of section 7(2) gives the Superintendent power to refer any charge after hearing the evidence. The provision separately requires referral of a charge under section 1(2) or section 2, other than the listed charges, unless the Superintendent dismisses it. The closing words qualify the mandatory referral limb. Reading them as removing the power to refer listed charges would be unnatural and ungrammatical.
3. Consistency with the Code. Section 11(2), which permits the Governor to remit a charge that the Superintendent had power to deal with himself, is inconsistent with a binary scheme under which listed charges could never be referred and other charges had to be referred. The omission of the words “unless he dismisses it” from the discretionary limb was explained by section 7(1), which already expressly permitted dismissal of any charge.
4. Exercise of the discretion. The discretion to refer listed charges must be genuinely exercised, rationally and in accordance with the purposes of the Code of Discipline for Prison Officers in Anguilla and the Prison Regulations of Anguilla. A blanket decision to refer every charge would deny the existence of the discretion. Seriousness and inadequate sentencing powers may justify referral, but neither exhausts the relevant considerations.
5. The relative seriousness of listed and non-listed offences could not determine the construction. Listed offences might, in particular circumstances, be more serious than non-listed offences. The issue of whether specific notice of a possible referral was required was not decided.

1. Privy Council: Allowed the appeal and advised that the respondent’s claims be dismissed.
2. Court of Appeal of the Eastern Caribbean Supreme Court (Anguilla): Dismissed the Superintendent’s appeal and upheld the challenge to the referrals.
3. High Court: Allowed the respondent’s challenge to the Superintendent’s power to refer the charges.