Public Service Commission v Ceron Richards (Trinidad and Tobago)

A statutory discretionary power affecting an individual carries a presumption that it will be exercised fairly, but fairness is contextual. A suspension power exercisable in the public interest and on full pay does not ordinarily imply an automatic hearing, particularly where a disciplinary investigation provides an imminent opportunity for representations. That does not remove the general duty to act fairly. If the decision-maker has received relevant representations, it must consider them; an administrative misfiling is attributable to the public body and may make the decision unfair and irrational. Relief may nevertheless be refused where the breach clearly could not have affected the outcome.

The appellant, a prison officer, challenged the respondent Commission’s decision under the Public Service Commission Regulations to suspend him on full pay while an investigation continued into the loss of a service firearm and ammunition. The Commission did not consider written representations because they were misfiled.

Rahim J quashed the decision, holding that fairness required the Commission to hear or consider the appellant’s representations. The Court of Appeal allowed the Commission’s appeal on 11 June 2019, holding that the statutory disciplinary code excluded any additional hearing at the suspension stage and that there was no duty to consider the representations. The central issues before the Board were whether fairness required pre-suspension representations and whether failure to consider received representations required the decision to be quashed.

Lord Sales delivered the judgment of the Board, which dismissed the appeal.

1. The Commission could rationally regard the alleged failure to secure a service firearm, resulting in its theft, as a serious matter affecting the reputation of the public service and the public interest. The delay before the decision did not show any unexplained change of position because the Commission first received notice of the allegations on 2 August 2016.
2. The decision in Police Service Commission v Murray (Appeal No 143 of 1994) (unreported) 7 February 2000, concerning materially equivalent regulations, was correct to the extent that there was no automatic right to a hearing before suspension under the equivalent power. Its scope was comparatively narrow.
3. That conclusion did not exclude a general duty to act fairly. Legislation conferring a discretionary power against an individual is presumed to require fair exercise. The content of fairness depends on the statutory language, the character and seriousness of the decision, its consequences, and the surrounding procedure: R v Secretary of State for the Home Department, ex p Doody [1993] UKHL 8; Lloyd v McMahon [1987] UKHL 5. Section 20 of the Judicial Review Act 2000 reinforced that conclusion.
4. In the circumstances, fairness did not require a hearing or invitation to make representations before suspension. The suspension was on full pay, a preliminary investigation under reg 90 was continuing, the appellant had an opportunity to explain matters to the investigating officer, and a report was expected shortly. The Commission was entitled to leave the preliminary investigation to that officer rather than pre-empt it. The contrasting New Zealand decision, Birss v Secretary for Justice [1984] 1 NZLR 513, involved suspension with loss of pay.
5. Nevertheless, once the Commission had received the appellant’s written representations, fairness and rationality required it to consider them. Misfiling by the Commission’s officials was attributable to the Commission. The breach was analogous to failure to take account of relevant matters through an inaccurate summary: R (Palmer) v Herefordshire Council [2016] EWCA Civ 1061; R (Mansell) v Tonbridge & Malling Borough Council [2017] EWCA Civ 1314.
6. Relief was nevertheless refused. The letter added no material information beyond the appellant’s denial and explanation, which were already apparent and were being investigated. The unlawfulness therefore could not have affected the decision, so the suspension was not quashed.

• Privy Council dismissed the appeal from the Court of Appeal.
• Court of Appeal of the Republic of Trinidad and Tobago, 11 June 2019, allowed the Commission’s appeal and reversed the decision of Rahim J.
• High Court, Rahim J, 17 November 2017, held the suspension decision unfair and quashed it.