[1] Willan Thompson (Commissioner of Police) [2] Smith Roberts (Assistant Commissioner of Police) Appellants v [1] Attorney General of Grenada [2] The Public Service Commission Respondents

• Jurisdiction: Grenada
• Judge: Blenman, JA,Louise Esther Blenman,Justice of Appeal,Mario F. Michel,Paul Webster,Justice of Appeal [Ag.]
• Judgment Date: 20 June 2016
• Judgment citation (vLex): [2016] ECSC J0620-3
• Court: Court of Appeal (Grenada)
• Docket Number: GDAHCVAP2015/0010
• Date: 20 June 2016

[2016] ECSC J0620-3

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Mde. Louise Esther Blenman Justice of Appeal

The Hon. Mr. Mario F. Michel Justice of Appeal

The Hon. Mr. Paul Webster Justice of Appeal [Ag.]

GDAHCVAP2015/0010

Between:

[1] Willan Thompson (Commissioner of Police)

[2] Smith Roberts (Assistant Commissioner of Police)

Appellants

and

[1] The Attorney General of Grenada

[2] The Public Service Commission

Respondents

Appearances:

Mr. Rohan A. Phillip for the Appellants

Mr. Thomas Astaphan, QC and with him, Mr. Dwight Horsford, Solicitor General and Miss Francine Foster, Crown Counsel for the Respondents

Civil appeal — Constitution of Grenada — Section 89 — Whether a commissioned officer in Royal Grenada Police Force is liable to be transferred to another post of equivalent grade outside of the Police Force but within the public service — Costs — CPR 56.13(6)

The issue on appeal concerns whether section 89 of the Constitution of Grenada ("The Constitution") prohibits the Governor General, acting on the advice of the Public Service Commission ("PSC"), in the case of Mr. Willan Thompson, the former Commissioner of Police, and the PSC, in the case of Mr. Smith Roberts, the former Assistant Commissioner of Police, from transferring them from Royal Grenada Police Force ("RGPF") to equivalent offices in the public service.

Mr. Thompson and Mr. Roberts were both transferred from the RGPF by the Governor General of Grenada and the PSC respectively, without their consent. Each of them filed a constitutional motion in which they alleged a breach of section 89 of the Constitution and sought a declaration that the RGPF is a special or closed department within the Public Service of Grenada established by the Police Act ("The Act"). They contended that pursuant to section 89 of the Constitution, as police officers they cannot be transferred either by the Governor General or by the PSC to a post outside of the RGPF without their consent or the permission of the public service.

In the court below, the learned Justice Gerhard Wallbank, with the consent of the parties, identified a preliminary issue and it was agreed that that issue should have been ventilated first namely:

"Whether a commissioned officer in the Royal Grenada Police Force is liable to be transferred to another post of equivalent grade outside of the Police Force but within the public service."

After hearing the arguments put forward by both sides, Wallbank J held that as long as the commissioner of police or other gazetted officer receives a rank or grade which is not lower than that which he or she previously held, and as long as he received an emolument package that is not less than what he or she previously enjoyed there is nothing in the Constitution, the Act and the Police Regulations ("The Regulations") which prevent the Governor General (in the case of the Commissioner of Police) and the PSC (for other gazetted officers and others above the rank of sergeant) from deploying the talents and experience of such senior public servants outside of the police force in the public service, on a number of grounds.

Mr. Thompson and Mr. Roberts are both dissatisfied with the ruling of the learned judge and accordingly appealed his decision.

The main thrust of the arguments put forward by Mr. Thompson and Mr. Roberts is that the RGPF is of a "closed nature" and it is therefore impossible to transfer an officer of the RGPF to the wider public service without that officer's consent. The respondents' primary argument on the other hand was that the PSC is an autonomous body specifically vested with the power of control over all public officers in the public service by the Constitution and that consequently Mr. Thompson and Mr. Roberts are therefore public officers amenable to the constitutional jurisdiction of the PSC.

Held: dismissing the appeal and ordering that each party bear its own costs pursuant to CPR 56.13(6) that:

• 1. The Constitution of Grenada, in particular section 83 is written in clear and simple language and it is evident that the framers of this Constitution created one autonomous body, the Public Service Commission, to regulate the public service.

• 2. The power and scope of the Public Service Commission has been long settled. It is trite law that the power to appoint carries with it the power to remove and transfer. It is therefore axiomatic that the Public Service Commission, which has the power to appoint police officers, equally has the power to transfer those officers. The law is clear — a police officer can be properly transferred from an office in the police force to an office in the wider public service provided that he or she suffers no loss of benefits or salary. Therefore there was absolutely no impediment to the PSC or the Governor General transferring Mr. Thompson and Mr. Roberts from the RGPF to other equivalent offices in the public service.

  Endell Thomas v Attorney-General of Trinidad & Tobago (1981) 32 WIR 375 ; GHCVAP2003/0011 ( delivered 4th February 2004, unreported) applied; Public Service Regulations, 1969, regulation 2 applied; Brian Francis v Attorney General GDAHCV2001/0521 ( delivered 28th November 2002, unreported), applied; Felix Da Silva v Attorney General of St. Vincent & the Grenadines and Others (SVGHCVAP1997/0018, delivered 9 ^th December 1998, unreported), applied; Ausbert Regis, Commissioner of Police v Attorney General of St. Lucia SLUHCV2010/0497 ( delivered 21st November 2011, unreported), applied; The Commissioner of Police et al v Romero Allen and Others, Civil Appeal No. 6 of 2010; [2011] CA (Bda.) 1 Civ. distinguished.

Background

Blenman, JA

1 Mr. Willan Thompson, former Commissioner of Police, and Mr. Smith Roberts, Assistant Commissioner of Police, were both transferred from the Royal Grenada Police Force ("RGPF") by the Governor General of Grenada and the Public Service Commission ("PSC") respectively, without their consent. They challenged their transfers on the basis that they were not liable to be transferred outside of the RGPF without their consent because the RGPF was "closed" in nature. Indeed, each of them filed a constitutional motion alleging breach of section 89 of the Constitution of Grenada ("the Constitution") and in which they sought a declaration that the Royal Grenada Police Force ("RGPF") is a special or closed department within the Public Service of Grenada established by the Police Act ("the Act"). 1 They contended that pursuant to section 89 of the Constitution, as police officers they cannot be transferred either by the Governor General or by the Public Service Commission to a post outside of the RGPF without their consent or the permission of the public service. Mr. Thompson and Mr. Roberts named the Attorney General and the Public Service Commission ("PSC") as the respondents to their motions.

2 The Attorney General and the PSC filed an application to strike out the motions on the basis that both Mr. Thompson and Mr. Roberts had no reasonable ground for bringing them.

3 The learned Justice Gerhard Wallbank, with the consent of the parties, identified a preliminary issue and it was agreed that that issue should have been ventilated first namely:

"Whether a commissioned officer in the Royal Grenada Police Force is liable to be transferred to another post of equivalent grade outside of the Police Force but within the public service."

4 I propose to briefly address the ruling below.

Ruling below

5 The learned judge having heard the arguments put forward by both sides held that as long as the commissioner of police or other gazetted officer receives a rank or grade which is not lower than that which he or she previously held, and as long as he received an emolument package that is not less than what he or she previously enjoyed there is nothing in the Constitution, the Act and the Police Regulations which prevents the Governor General (in the case of the Commissioner of Police) and the PSC (for other gazetted officers and others above the rank of sergeant) from deploying the talents and experience of such senior public servants outside

of the police force in the public service, on a number of grounds.

6 Both Mr. Thompson and Mr. Roberts are dissatisfied with the ruling of the learned judge and they have accordingly appealed his decision.

The Issue on Appeal

7 Both sides have agreed that three issues arise to be resolved in this appeal. However, with no disrespect intended to the parties these issues can helpfully be crystallised into one issue namely:

"Whether section 89 of the Constitution of Grenada prohibits the Governor General, acting on the advice of the Public Service Commission, in the case of Mr. Thompson and the Public Service Commission, in the case of Mr. Roberts from transferring them from RGPF to equivalent offices in the public service."

Appellant's Submissions

8 In seeking to answer the above question, learned counsel Mr. Rohan Phillip advanced a number of arguments that were similar to those canvassed in the court below. Chief among them is his contention that the RGPF is of a "closed nature" and it is therefore impossible to transfer an officer of the RGPF to the wider public service without that officer's consent. Mr. Phillip also referred the Court to the decision of the Bermuda Court of Appeal in the case of The Commissioner of Police et al v Romero Allen and Others, 2 which accepted the English Court of Appeal's position in R (Tucker) v Director General of the National Crime Squad, 3 where Lord Justice Scott Baker opined:

"A police officer is in a different position from other employees. On becoming an officer he forfeits certain advantages, for example the right to strike or bring proceedings for unfair dismissal. He is subject to the discipline of his force and has by and large to go where and do what he is told. On the other hand he...