Derek Achong

The Privy Coun­cil has re­served its de­ci­sion in an ap­peal by Prison Of­fi­cers’ As­so­ci­a­tion pres­i­dent Ceron Richards chal­leng­ing the dis­missal of his law­suit over his tem­po­rary sus­pen­sion pend­ing an in­ves­ti­ga­tion in­to the theft of his ser­vice-is­sued firearm in 2016.

Five Law Lords of the Unit­ed King­dom-based ap­pel­late court de­ferred their de­ci­sion in the ap­peal af­ter hear­ing sub­mis­sions from at­tor­neys rep­re­sent­ing Richards and the Pub­lic Ser­vice Com­mis­sion (PSC) dur­ing a vir­tu­al hear­ing yes­ter­day.

Ac­cord­ing to the ev­i­dence in the case, on March 11, 2016, Richards re­port­ed to po­lice that the firearm, which had been is­sued for his pro­tec­tion while off-du­ty, had been stolen from his home.

On June 28, 2016, the Com­mis­sion­er of Pris­ons wrote to Richards and in­formed him that a col­league had been as­signed to in­ves­ti­gate the theft.

Richards was ac­cused of breach­ing two seg­ments of the Prison Ser­vice (Code of Con­duct) Reg­u­la­tions 1990 by al­leged­ly en­gag­ing in dis­cred­itable con­duct by fail­ing to ad­e­quate­ly se­cure the firearm and by fail­ing to ac­count for the items when he re­port­ed them stolen.

Richards wrote to the in­ves­ti­ga­tor and de­nied any wrong­do­ing. He claimed that he se­cured his firearm in a safe be­fore leav­ing home to at­tend a meet­ing at the Min­istry of Hous­ing and made a re­port as soon as he re­turned home and found it miss­ing.

Richards claimed that he com­plied with the Firearms Act and that there was no of­fi­cial prison pol­i­cy ad­vis­ing prison of­fi­cers on how to se­cure their firearms be­fore they were is­sued.

A sim­i­lar let­ter was sent to the PSC but through an ad­min­is­tra­tive er­ror placed be­fore the com­mis­sion be­fore it de­cid­ed to sus­pend him pend­ing the com­ple­tion of the in­ves­ti­ga­tion in Au­gust 2016.

Al­most a year lat­er, the PSC in­formed Richards that dis­ci­pli­nary charges would be laid against him. In Ju­ly 2018, the PSC in­di­cat­ed that it would not be pro­ceed­ing with the charges and the sus­pen­sion was lift­ed.

A High Court Judge ini­tial­ly ruled that the charges lev­elled against Richards were self-con­tra­dic­to­ry and that Richards had a right to be heard or have his let­ter con­sid­ered be­fore the de­ci­sion to sus­pend him was tak­en.

The de­ci­sion was re­versed by the Court of Ap­peal, who ruled that nat­ur­al jus­tice did not re­quire Richards to be heard be­fore be­ing sus­pend­ed.

Pre­sent­ing sub­mis­sions on Richards’ be­half, Se­nior Coun­sel Ramesh Lawrence Ma­haraj claimed that the Court of Ap­peal’s de­ci­sion was wrong as the charges were even­tu­al­ly dropped based on Richards’ rep­re­sen­ta­tions.

“Fair­ness de­mand­ed ac­quaint­ing it­self with the rel­e­vant facts and lis­ten­ing to what the ap­pel­lant had to say,” Ma­haraj said.

Ma­haraj sug­gest­ed that the court could not spec­u­late over whether the PSC would have come to the same de­ci­sion if it had seen Richards’ let­ter and con­sid­ered it.

“We don’t know what it would have done, the point is he was de­nied pro­ce­dur­al fair­ness,” Ma­haraj said.

Ma­haraj al­so ques­tioned the PSC’s claim that the sus­pen­sion was in the pub­lic’s in­ter­est as he point­ed out that it took place af­ter Richards was al­lowed to con­tin­ue his du­ties for six months af­ter the theft.

“If he was heard he would be able to ask why now?” Ma­haraj said.

In his sub­mis­sions, Thomas Roe, QC, who rep­re­sent­ed the com­mis­sion called on the ap­peal board to up­hold the de­ci­sion of the lo­cal court of ap­peal.

While Roe main­tained that Richards did not have a right to be heard, he ad­mit­ted that there may be some cas­es in which his client may be re­quired to lis­ten to rep­re­sen­ta­tions be­fore is­su­ing a sus­pen­sion.

“There might be a case where the facts are so ex­treme, but this is not that case,” Roe said.

Roe al­so sug­gest­ed that Richards gave an in­suf­fi­cient ex­pla­na­tion which would not have been ac­cept­ed by the com­mis­sion even if they had seen the cor­re­spon­dence.

“Even if the ex­pla­na­tion was true, there still are a num­ber of ques­tions,” Roe said, as he de­scribed the ex­pla­na­tion as in­ad­e­quate. 

Roe not­ed that al­though Richards had pro­vid­ed his ex­pla­na­tion to the in­ves­ti­ga­tor it did not re­sult in the im­me­di­ate quash­ing of the in­ves­ti­ga­tion as the claims had to be prop­er­ly probed.

“That does not un­der­mine the va­lid­i­ty of the sus­pen­sion,” he said.