An application for Judicial Review Between: 1) Sergeant Sharon Lewis 2) Sergeant Antonio Hanna 3) The Royal Cayman Islands Police Association Applicants v 1) The Commissioner of the Royal Cayman Islands Police Service 2) The Attorney General of the Cayman Islands Respondents

JurisdictionCayman Islands
CourtGrand Court (Cayman Islands)
JudgeJustice Marlene Carter
Judgment Date02 December 2022
Docket NumberCAUSE NO. 39 OF 2021

In the Matter of an application for Judicial Review

Between:
1) Sergeant Sharon Lewis
2) Sergeant Antonio Hanna
3) The Royal Cayman Islands Police Association
Applicants
and
1) The Commissioner of the Royal Cayman Islands Police Service
2) The Attorney General of the Cayman Islands
Respondents
Before:

Hon. Justice Marlene Carter (Actg.)

CAUSE NO. 39 OF 2021

IN THE GRAND COURT OF THE CAYMAN ISLANDS

HEADNOTE

Judicial Review — Powers of Commissioner of Police under the Police Act, Section 6 — breach of statutory duty — failure to convene promotional board — Breach of Sections 19 and 24 of the Bill of Rights

Appearances:

Mr. Guy Dilliway-Parry of Priestleys for the Applicants

Dr Jevon Alcock, Deputy Solicitor General and Ms. Marilyn Brandt, Crown Counsel, Attorney General's Chambers for the Respondents

OPEN COURT
1

The Applicants were granted leave to seek judicial review on 12 March 2021. A Notice of Originating Motion was filed on 19 March 2021 wherein the Applicants sought the following relief:

  • “(a) A Declaration that:

    • i. the decisions and actions of the First Respondent in failing to implement and/or comply with the provisions of the Promotional Selection Procedure for Police Officers dated 17 March 2015 (Promotion Policy) were/are unlawful;

    • ii. the decisions and actions of the First Respondent in appointing officers to act in roles of higher rank without actually being of higher rank (Acting Up Positions) for periods in excess of 12 months were/are unlawful;

    • iii. the continuing failure to convene promotional boards is unlawful;

    • iv. the continued failure to implement Article 58(A) and 58(B) of the Cayman Islands Constitution is unlawful.

  • (b) An order of Mandamus that the First and Second Respondents immediately comply with Article 58(A) and 58(B) of the Cayman Islands Constitution;

  • (c) An order of Mandamus that the First Respondent immediately convenes a Promotion Board to consider the promotion of inter alia, the First and Second Applicants;

  • (d) Damages sustained due to the unlawful administration of promotions and failure of the First Respondent to implement and/or comply with the provisions of the Promotion Policy;

  • (e) Such further, consequential or other relief that this Honourable Court deems is just; and

  • (f) Costs”

THE PARTIES
2

The first and Second Applicants are police officers in the employ of the Royal Cayman Islands Police Service (“RCIPS”). The First Applicant passed the Promotional Examination for promotion to the rank of Inspector in 2007 but has not yet been promoted.

3

The Second Applicant passed the Promotional Examination in 2007 but has not yet been promoted.

4

The Third Applicant, the Royal Cayman Islands Police Association (“RCIPA”), is an incorporated association representing police officers who serve with the RCIPS. The Third Applicant appears in a nominal capacity only in these proceedings.

5

The First Respondent is the Commissioner of Police (“COP”) whose responsibilities include the appointment of all police officers, except the Deputy Commissioner and the Assistant Commissioner, and promotions in respect of police officers as he may see fit.

6

The First and Second Applicants each filed affidavits dated 30 July 2021 in support of the Originating Motion. The affidavit of the Rudolph Gordon, the President of the Third Applicant, filed on the 5 March 2021 in support of the application for leave to apply for judicial review, was also before the court.

7

On the 22 July 2021 the First Respondent filed an affidavit in opposition to the application.

8

At the hearing of this matter the Applicants indicated to the court that they no longer require the relief sought at a) iv, b) and c). Counsel for the Applicants noted that the COP had, since the filing of the application for judicial review, circulated two directives providing notice of his intention to convene a Promotional Board, a measure which the Applicants contend “amounts to a total concession by the COP of non-compliance with the (previous) Promotion Policy.”

Mootness
9

The Respondent had submitted as a preliminary point that this court should not embark on what counsel termed “a forensic exercise” for the purpose of rendering a decision which would have no practical effect on the parties, that this was not a case of exceptional public importance. This argument stems from the fact that a new promotion policy is now in place as of May 2021. I do not find that, as counsel submitted, the application has “been overtaken by events, and as such, they have been rendered moot”. The Applicants' challenge is that the COP failed to act in accordance with the Promotion Policy. I agree with counsel for the Applicants that the implementation of a replacement policy does not have a material impact on their case as filed. On the Applicants' case, the “actions and inactions complained of by the Applicants have already taken place, the damage has already been incurred and the COP remains in breach of his obligation to convene a promotional board.”

10

It was agreed that the Second Respondent, the Attorney General, ought to be removed as a party to these proceedings, which do not fall to be constructed as ‘civil proceedings’. This court is clear that the Third Applicant appears as a nominal party only. As counsel for the Applicants state in his written submissions: “… the involvement of the Third Applicant, as nominal applicant, is of little consequence.”

THE LAW
11

Section 6(1) of the Police Act (2021 Revision) (“Police Act”) provides:

“The Commissioner shall have the command, superintendence and direction of the Service and may:

  • (a) subject to section 8, make such appointments and promotions in respect of police officers as he may see fit;

  • (b) make standing orders for the general government of police officers in relation to their enlistment, discharge, … and other appointments, and particular services as well as their distribution and inspection, and such other orders as he may deem expedient for preventing neglect and for promoting efficiency and discipline; and

  • (c) make such rules of practice and procedure for the efficient operation of [the Police Act] as he may see fit”

12

Section 8 of the Police Act provides:

“(2) Police officers —

(b) other than those specified in paragraph (a), shall be appointed by the Commissioner to hold office at his pleasure and be disciplined, discharged, retired early or otherwise dealt with subject to such other terms and conditions as are provided by this Act, the regulations and standing orders”.

13

The Police Act further defines “standing orders” as “standing orders made by the Commissioner under section 6(1)(b)”.

14

Pursuant to Section 6 of the Police Act, a policy entitled ‘The Promotion Selection Procedure for Police Officers’ was issued on the on 17 March 2015.

15

This policy stated as its objective:

  • i “the promotional selection process is transparent and clear to potential candidates”;

  • ii “all promotional candidates are treated fairly and consistently”;

  • iii “all promotional selection decisions are based on ability, the experience and skills required for the rank”;

  • iv “the promotion selection process complies with the Police Law 2014 and Police Regulations (2006 Revision)”.

16

Section 1 of The Promotion Policy states that it applies to all police officers within the RCIPS and further that it is intended to:

“..maintain a standard procedure regarding promotions that is fair and equitable, and will result in the appointment of individuals who best demonstrate the skills, knowledge and abilities necessary for the Royal Cayman Islands Police Service to achieve its goals and objectives.”

17

Section 1 also states its intention to: “outline in clear and concise terms the procedures established by the Royal Cayman Islands Police Service that facilitate the promotion of the most suitable police officers to the ranks of Sergeant, Inspector, Chief Inspector, Superintendent and Chief Superintendent.”

18

Section 5.1 of the Promotion Policy provides that:

  • i. “Sergeants and Inspectors examinations will normally be held annually…” (“Promotional Examination”); and

  • ii. “… promotion boards for all ranks will be held as and when required to meet organizational resourcing needs” (“Promotional Board”,).

19

Section 6.1 of the Promotion Policy lists the criteria to be satisfied for promotion. It is required that an officer must “… have passed the appropriate promotion boards”. The policy further states that to be eligible to apply for the Promotional Board, officers must, inter alia: “Have obtained a pass in the police promotion examination for promotion to the rank of [sergeant] [or] [Inspector]”.

20

Section 17.4 of the Promotion Policy further states: “All candidates who are successful will be considered as suitable for promotion and placed in a pool for promotion, which will be subject to organizational needs.”

21

Section 31 of the Personnel Regulations provides:

“An appointing officer who is appointing a staff member to act in a position under section 41 (12) of the [Public Service Management Law (2018 Revision) (“PSML”)] may, under section 41(13) of the PSML, do so without following the notification, short-listing, interviewing or other processes required by section 41(2) to (9) of the PSML, provided that the period the staff member is to act in the position is no more than twelve months.

Grounds of Review
22

The Applicants seek to challenge the First Respondent's decisions on the following grounds:

Ground 1 — Breach of Statutory Duty
23

It was submitted that the First Respondent has a statutory obligation under Section 6 (1) of the Police Act. This obligation must be read in conjunction with section 8 to which section 6 refers. The Promotion Policy was issued pursuant to Sections 6 and 8 (2) (b) of the Police Act. The contention of the...

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