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.