The trag­ic killing of three men in Mor­vant un­der con­tro­ver­sial cir­cum­stances have seen the swift call for the sus­pen­sion of po­lice of­fi­cers al­leged­ly en­gaged in con­duct that amount­ed to ex­tra­ju­di­cial killings. No less­er than the Law As­so­ci­a­tion of Trinidad and To­ba­go (LATT) has tak­en up the call for sus­pen­sion. LATT, head­ed by the em­i­nent Dou­glas Mendes SC, a not­ed in­dus­tri­al re­la­tions prac­ti­tion­er, re­port­ed­ly stat­ed in a press re­lease: “In the mean­time, the Com­mis­sion­er is urged to take im­me­di­ate steps to iden­ti­fy those of­fi­cers who were in­volved in the shoot­ings and, with­out mak­ing any de­ter­mi­na­tion as to guilt, send them on ad­min­is­tra­tive leave so that in­ves­ti­ga­tions may pro­ceed with­out hin­drance.”

The ex­ec­u­tive of LATT has en­er­get­i­cal­ly tak­en up the role of speak­ing for thou­sands of at­tor­neys in Trinidad and To­ba­go, on mat­ters of pub­lic in­ter­est. It would be in­ter­est­ing for LATT to in­di­cate to its mem­ber­ship and the wider pub­lic, how the con­tin­u­ing ac­tive em­ploy­ment of the po­lice of­fi­cers would hin­der the in­ves­ti­ga­tion of the case.

While in cer­tain cir­cum­stances, some­one fac­ing pos­si­ble dis­ci­pli­nary ac­tion may be sus­pend­ed for a pe­ri­od of time so that the em­ploy­er can in­ves­ti­gate the al­leged mis­con­duct, em­ploy­ers should be very care­ful about de­cid­ing to sus­pend some­one in this sit­u­a­tion.

The sus­pen­sion of po­lice of­fi­cers is cov­ered by the statu­to­ry regime gov­ern­ing the em­ploy­ment of such of­fi­cers. The Court ex­plored this is­sue in the Ap­pli­ca­tion of Rod­well Mur­ray--HCA No. 1973 of 1992 (T&T). In an elo­quent judge­ment de­liv­ered by Jus­tice Bis­soon­dath Ram­lo­gan, he stat­ed: “In my view fi­nan­cial loss may be of lit­tle con­se­quences when weighed against em­bar­rass­ment, frus­tra­tion and men­tal agony which a sus­pend­ed per­son may have to un­der­go. It is true that the pub­lic in­ter­est may in most cir­cum­stances be best served by the sus­pen­sion of the Of­fi­cer with­out a hear­ing be­cause he has an op­por­tu­ni­ty to be heard at a lat­er stage.

The pub­lic in­ter­est and that of the Po­lice Ser­vice may how­ev­er be far bet­ter served if the Of­fi­cer is giv­en a hear­ing in cir­cum­stances like these. The sus­pen­sion of Of­fi­cer with­out a hear­ing, up­on ten­u­ous ev­i­dence, may be in­im­i­cal to the pub­lic in­ter­est and even in vi­o­lent col­li­sion with it.” The Court of Ap­peal did not agree with Jus­tice Bis­son­dath and re­versed his de­ci­sion by hold­ing that a po­lice of­fi­cer is not en­ti­tled as of law, to be the ben­e­fi­cia­ry of the rules of nat­ur­al jus­tice (ie the right to be heard) be­fore sus­pen­sion.

The on­ly fac­tor to con­sid­er, as con­tem­plat­ed by the statu­to­ry regime, in de­ter­min­ing whether to sus­pend a po­lice of­fi­cer or not as part of an in­ves­tiga­tive process, is where it is re­quired by the pub­lic in­ter­est (Nel­son JA, CVA No 142 of 1994).

The Court of Ap­peal re­turned to the is­sue in 2019, in the de­ci­sion of the Pub­lic Ser­vice Com­mis­sion v Ceron Richards, CA 409 of 2017. Ra­jku­mar JA com­ment­ed that: “The reg­u­la­tions do not al­so con­tem­plate a right to an ad­di­tion­al hear­ing pri­or to a de­ci­sion to sus­pend. Un­less such a right is demon­strat­ed to be vest­ed in the re­spon­dent there can­not be its con­verse, a du­ty on the part of the ap­pel­lant, whether based on fair­ness or nat­ur­al jus­tice, to af­ford him a hear­ing pri­or to a de­ci­sion to sus­pend him.”

The Court fur­ther opined that there is a statu­to­ry pow­er to sus­pend un­der the statu­to­ry regime where it is in the pub­lic in­ter­est or there is the pos­si­bil­i­ty of dam­age to the re­pute of the pub­lic ser­vice. The statu­to­ry regime con­sid­ered by the Court is sim­i­lar to that con­tained in the new Po­lice Ser­vice Reg­u­la­tions of 2007. Ac­cord­ing to Reg­u­la­tion 152(1), “When a re­port or al­le­ga­tion is re­ceived by the Com­mis­sion­er from which it ap­pears that a po­lice of­fi­cer may have com­mit­ted an of­fence, and the Com­mis­sion­er is of the opin­ion that the pub­lic in­ter­est or the re­pute of the Ser­vice re­quires it, the Com­mis­sion­er may in writ­ing di­rect the of­fi­cer to cease to re­port for du­ty un­til fur­ther no­tice, and an of­fi­cer so di­rect­ed shall cease to per­form the func­tions of his of­fice im­me­di­ate­ly.”

There is noth­ing in the Po­lice Ser­vice Reg­u­la­tions that em­pow­er the Com­mis­sion­er to sus­pend po­lice of­fi­cers in the in­ves­tiga­tive stage on the ba­sis of the con­tin­u­ing ac­tive em­ploy­ment of po­lice of­fi­cers be­ing a hin­drance to an in­ves­ti­ga­tion of mis­con­duct.

The statu­to­ry dis­cre­tion of sus­pen­sion is ex­er­cis­able when de­mand­ed by the pub­lic in­ter­est or the rep­u­ta­tion of the po­lice ser­vice. To do oth­er­wise would be to en­cour­age the Com­mis­sion­er to en­gage on a frol­ic of his own.

Ri­ot­ing in lim­it­ed parts of T&T is not re­flec­tive of a pub­lic in­ter­est mat­ter es­pe­cial­ly when the Min­is­ter of Na­tion­al Se­cu­ri­ty has al­lud­ed to the fact that crim­i­nal el­e­ments were be­ing paid to ini­ti­ate the dis­tur­bance and peo­ple were be­ing paid mon­ey to go on the street.

LATT must be care­ful in its call which ef­fec­tive­ly ex­pands the statu­to­ry grounds for sus­pen­sion at the in­ves­tiga­tive stage to in­clude the fac­tor of “hin­drance” to the in­ves­ti­ga­tion.

Jus­tice must be served for those killed in Mor­vant but equal­ly there must jus­tice for the po­lice of­fi­cers al­leged­ly in­volved.

Pro­fes­sor Ra­jen­dra Ram­lo­gan, Com­mer­cial and En­vi­ron­ment Law, The Uni­ver­si­ty of the West In­dies. The views ex­pressed are en­tire­ly his own.