The Privy Council has rejected 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.
Delivering a judgment on Monday, Five Law Lords of the United Kingdom-based appellate court came to the same decision as the local Court of Appeal to dismiss the case, albeit based on somewhat different reasons.
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 firearm before they were issued.
A similar letter was sent to the commission 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 commission informed Richards that disciplinary charges would be laid against him. In July 2018, the commission 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.
In the judgment, the Privy Council ruled that the commission could consider what transpired with the firearm to be a serious matter affecting the reputation of the Prison Service.
“The loss of a service firearm by theft, with the result that it may enter into circulation in the criminal world, is clearly contrary to the public interest and if this occurred because of a failure of a prison officer to take proper steps to secure the weapon when it was at his home that could undermine public confidence in the public service,” Lord Philip Sales, who wrote the judgment, stated.
He ruled that while the commission was not required to invite Richards to make representations before suspension, it should have still considered Richards’ representations if it had properly received it.
“In the board’s view, even though the commission was not obliged to invite the appellant to make representations before it took the decision, if it had appreciated that the appellant had written to it to explain things fairness would have required that it consider those representations before suspending him,” Lord Sales said.
He noted that the failure to consider the representation constituted a breach of its duty in public law.
“The position is therefore as if a decision-maker put a document containing relevant information in his or her desk and did not look at it before deciding how to proceed, which would be both unfair and irrational,” Lord Sales said.
However, Lord Sales ruled that the commission’s position would have remained the same even if it had considered Richards’ representations.
“The letter would have told the commission nothing of relevance more than it knew already: the appellant disputed the allegation of misconduct and he had offered an explanation which required investigation and was being investigated in the appropriate way,” he said.
Richards was represented by Ramesh Lawrence Maharaj, SC, Robert Strang, Alvin Ramroop, and Kingsley Walesby. Thomas Roe, QC, represented the commission.
