Jamaicans for Justice v Police Service Commission and another

A public body responsible for appointments must exercise its statutory functions compatibly with constitutional rights and common-law standards of rationality, reasonableness and fairness. A power to seek information may entail a duty to do so where further inquiry is necessary for the proper discharge of the statutory function. That duty does not depend on an express statutory requirement. Where serious allegations of fatal police misconduct remain independently uninvestigated, and an independent investigative body is available, the decision-maker should obtain further inquiries before deciding on promotion. The ultimate decision remains with the decision-maker. The question is whether it was properly informed and whether there was a reasonable prospect that proper information could affect the outcome.

The appellant, a human-rights organisation, challenged the Police Service Commission’s recommendation that a superintendent be promoted despite numerous complaints and involvement in fatal incidents. Judicial review failed before the Supreme Court of Jamaica, [2012] JMSC Civ 153, and the Court of Appeal, [2015] JMCA Civ 12. The appeal concerned whether the Commission had a statutory, common-law or constitutional duty to obtain further inquiries, particularly an independent investigation by INDECOM, before deciding whether to recommend promotion. By the time of the appeal, the officer had retired, making quashing and reconsideration academic. The central issue was whether the Commission had properly informed itself before exercising its statutory functions.

Appeal allowed. The Board advised that a declaration should be made reflecting its judgment.

1. The Police Service Commission, as a constitutional organ of the state, was bound to exercise its functions compatibly with the fundamental rights guaranteed by the Constitution of Jamaica, including the rights to life, equality before the law and due process. Public authorities must respect and seek to protect those rights in all aspects of their activities.
2. The right to equality before the law, like equal protection of the law, protects against irrationality, unreasonableness, fundamental unfairness and arbitrary exercise of power. These are also fundamental common-law principles governing public functions and applied to the Commission because nothing in the statutory framework contradicted them. The Board relied on the reasoning in Nervais v R [2018] 4 LRC 545 as persuasive constitutional guidance.
3. Regulations 9 and 15(2)(k) of the Police Service Regulations 1961 did not impose an express statutory duty to conduct further inquiries. That did not resolve the common-law question. The proper discharge of the Commission’s statutory functions could require it to use its power to call for further inquiries.
4. In the circumstances, the Commission should have sought an independent investigation. The superintendent had been involved, as team leader, in a large number of fatal incidents; serious allegations had been made; no independent investigation had occurred; and INDECOM existed to undertake such investigations. An independent investigation might have revealed a different picture from the summary table supplied to the Commission and placed the Commissioner’s favourable assessment in context. The final decision remained that of the Commission, but there was a reasonable prospect that proper information might have led to a different decision.
5. The officer’s retirement made an order quashing the recommendation and requiring reconsideration academic. The parties were directed to make written submissions on the wording of the declaration and on costs within 21 days.

• Privy Council: Appeal allowed from the Court of Appeal decision, with a declaration to reflect the judgment.
• Court of Appeal of Jamaica: Appeal dismissed, upholding the decision below: [2015] JMCA Civ 12.
• Supreme Court of Jamaica: The judicial review claim failed before B Morrison J: [2012] JMSC Civ 153.