Long v Police Service Commission

Compulsory retirement of a public officer against his will is a dismissal, whatever label is used. Under section 129(4) of the Constitution of 1976, a penalty means an adverse consequence imposed by a relevant authority on account of misconduct, namely an act or omission breaching a disciplinary code binding on the officer. Dismissal may therefore constitute a penalty even when imposed through a public-interest retirement procedure. The constitutional safeguard cannot be avoided by using a non-disciplinary process or because disciplinary proof is difficult. The substance and reason for the consequence matter, rather than its formal route or name. Retirement based only on incompetence or incapacity falls outside this definition. Where misconduct is a material reason, disciplinary proceedings are constitutionally required.

The Police Service Commission required a police officer to retire in the public interest under Regulation 50 of the Police Service Commission Regulations 1966, after he had been charged with kidnapping. The criminal charge had been dismissed for want of evidence, and no disciplinary proceedings had been completed. The officer’s application for judicial review was dismissed by the High Court and by the Court of Appeal of the Republic of Trinidad and Tobago. The Privy Council considered whether compulsory retirement based materially on alleged misconduct was a penalty within section 129(4) of the Constitution of 1976, so that it could be imposed only as a result of disciplinary proceedings.

Appeal allowed. The decision requiring the appellant to retire in the public interest was set aside.

1. Section 129(4) protects public officers from penalties imposed outside disciplinary proceedings. Compulsory termination of service against an officer’s will is a dismissal, regardless of its description, including a requirement to accept early retirement. The distinct treatment of disciplinary dismissal and public-interest retirement under regulation 46 does not resolve whether the consequence is constitutionally a penalty. The Board applied the reasoning in Endell Thomas v Attorney General of Trinidad and Tobago [1982] AC 113 concerning the constitutional protection of public services from political influence.
2. A penalty under section 129(4) is an adverse consequence imposed on a public officer on account of misconduct. Misconduct means an act or omission breaching a disciplinary code binding on the officer. Dismissal is capable of being such a penalty. If dismissal, including compulsory retirement, is imposed for misconduct rather than mere incompetence or incapacity, it cannot be imposed except through disciplinary proceedings.
3. The constitutional right cannot be circumvented by relying on disciplinary infractions in support of dismissal through an administrative process. The difficulty of proving the alleged kidnapping in disciplinary proceedings could not justify imposing the same consequence without the procedural safeguards of disciplinary proceedings. The Board distinguished In re Pratt, (unreported) 12 February 1988, Mullings v Police Service Commission (unreported) 23 February 2009, and Police Service Commission v O’Connor [2014] 2014 JMCA Civ 35, because those decisions did not involve an equivalent constitutional or legislative prohibition.
4. Although the Commission had to act fairly under regulation 50, fairness would not necessarily require every formal notice, hearing or evidential safeguard applicable to disciplinary proceedings. That observation did not permit the Commission to use regulation 50 where misconduct was a material reason for the retirement.
5. The Commissioner’s report and the Commission’s provisional notice showed that the alleged kidnapping was at least a material reason for the decision. The appellant therefore had a constitutional right to require the allegation to be substantiated in disciplinary proceedings and to seek exoneration. The procedure adopted denied that right.

1. Privy Council — On appeal from the Court of Appeal of the Republic of Trinidad and Tobago, the appeal was allowed and the Commission’s decision was set aside: [2018] UKPC 32.
2. Court of Appeal of the Republic of Trinidad and Tobago — The appellant’s judicial review claim was dismissed. No citation is stated in the judgment.
3. High Court — Bereaux J dismissed the judicial review application. No citation is stated in the judgment.