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Prison Commissioner Dennis Pulchan

A policy, which sought to give the Commissioner of Prisons the power to allow prison officers to carry their service firearms home after their shifts ended because of concerns over their safety, has been declared illegal.

Delivering a written judgement on Thursday, High Court Judge Devindra Rampersad upheld a judicial review lawsuit from police officer Vishal Singh, who brought the case after he was shot by a prison officer while executing a search warrant at his home in 2015.

The outcome had an immediate impact on the personal safety of at-risk prison officers who benefitted from the “Keep and Carry” policy, as it required those on duty yesterday to lodge their firearms before returning home and those off duty to return their firearms.

Contacted by Guardian Media on the ruling yesterday, Prisons Commissioner Dennis Pulchan said the judgement was being appealed.

“I am commanded by the court…I don’t make laws…What can I say…They are putting my officers to death,” Pulchan said, in a WhatsApp message, in reference to the recent killings of two officers and reports of a hit list against others.

Guardian Media understands that if the Prison Service fails to obtain a stay of the judgement pending the appeal, or is unable to have the judgement quickly overturned on appeal, it would mean that many prison officers would be without firearms while off duty for quite some time, as there is currently no acting or substantive Police Commissioner to approve Firearm User’s Licenses (FULs) and the operations of the T&T Police Service (TTPS) Firearms Unit are currently suspended pending a probe into its recent activity.

In a brief telephone interview, Prison Officers’ Association president Ceron Richards said they were deeply concerned by the development.

“That is a very serious and worrisome situation and it only compounds what prison officers are going through at this time,” Richards said.

He confirmed the association wrote to Prime Minister Dr Keith Rowley for a meeting to discuss solutions to the issue and other pressing concerns.

“We are not interested in meeting with the National Security Minister, we are only interested in meeting with the Prime Minister as head of the National Security Council,” Richards said, as he noted the association was yet to receive a response to the request, which was sent via registered mail.

In the case, Singh was claiming the policy, introduced in July 2016, breached the provisions of the Firearms Act, which only allowed on-duty prison officers to carry service firearms without a FUL issued by the Commissioner of Police.

In response to the lawsuit, the Office of the Prisons Commissioner claimed the policy, which allows the commissioner to decide an officer is “constructively” on-duty after his shift has ended, was permissible because officers are always on duty as they can be called out in an emergency.

In his judgement, Justice Rampersad said the intention of the policy to protect prison officers while off duty was noble and worthy due to numerous recent incidents of them being murdered. However, he questioned whether the positive intention could usurp the clear provisions of the legislation.

“The thing is, can the Commissioner of Prisons bypass the law by him deciding that firearms can be given to prison officers who are not actively in the prison at the particular time due to a threat assessment in respect to their safety?” Rampersad said, as he ruled there was no statutory basis for the discretion as claimed by Singh.

“Though well-intentioned, and obviously with a view to the safety and security of his officers, the Commissioner of Prisons cannot create a new category to exempt his officers when a plain and ordinary reading of the statute does not allow such.”

Rampersad also dismissed the claim that prison officers can be deemed to be always on duty.

“The court rejects the suggestion that a prison officer is always on duty, since it stands to reason that when the officer comes off his or her shift, they would no longer be in active duty as a prison officer in charge of prisons, although he or she may be summoned at any time thereafter to such active duty,” Rampersad said.

Rampersad noted that when the Prison Amendment Act was debated in Parliament in 2014, then national security minister Emmanuel George recognised that the Commissioner of Police had to grant FULs for off-duty prison officers. He suggested that Parliament should reconsider and address the issue urgently.

As part of his decision in the case, Justice Rampersad declared that the policy is irrational and illegal and ordered the State to pay Singh’s legal costs for bringing the lawsuit.

On August 10, 2015, Singh, who was assigned to the Sangre Grande Police Station, received a tip that a man in the district had an illegal firearm and ammunition. Singh and three of his colleagues attempted to execute a search warrant at the man’s home but there was an exchange of gunfire. Singh was shot in his chest and back, while the man, who was later identified as prison officer Ruel Accoo, was also wounded. Accoo’s injuries were less severe and he was treated and discharged. Singh, who was left with a bullet lodged in his back, had to undergo extensive treatment but has since returned to active duty.

Following the incident, Singh made several requests under the Freedom of Information Act (FOIA) to both the Prisons and Police Commissioner for information on the shooting and Accoo’s status as a holder of a firearm. Both office holders claimed the information was exempt but Singh eventually obtained much of the sought disclosure after successfully pursuing lawsuits over the issue. Singh then sued Accoo personally for assault and battery. Accoo filed a similar lawsuit against Singh, his colleagues and by extension the State. Both cases are still pending determination.

Singh was represented by Anand Ramlogan, SC, Jayanti Lutchmedial, Alvin Pariagsingh, Douglas Bayley and Ganesh Saroop. Mary Davis and Nairob Smart represented the Prisons Commissioner.