Prendergast v Commissioner of Police

• Jurisdiction: Cayman Islands
• Judge: (Schofield, J.)
• Judgment Date: 17 November 1989
• Court: Grand Court (Cayman Islands)
• Date: 17 November 1989

Grand Court

(Schofield, J.)

PRENDERGAST

and

COMMISSIONER OF POLICE and ATTORNEY GENERAL

N.W. Hill, Q.C. and G. Hampson for the applicant;

A.S. Smellie, Principal Crown Counsel, for the respondents.

Cases cited:

(1) Dean v. Weisengrund, [1955] 2 Q.B. 120; [1955] 2 All E.R. 432, dictum of Jenkins, L.J. applied.

(2) Enderby Town F.C. Ltd. v. Football Assn. Ltd., [1971] Ch. 591, dicta of Lord Denning, M.R. applied.

(3) Maynard v. Osmond, [1977] Q.B. 240; [1977] 1 All E.R. 64, dicta of Lord Denning, M.R. and Waller, L.J. applied.

(4) Pett v. Greyhound Racing Assn. Ltd., [1969] 1 Q.B. 125; [1968] 2 All E.R. 545, dictum of Lyell J. considered.

(5) Pett v. Greyhound Racing Assn. Ltd. (No. 2), [1970] 1 Q.B. 46; [1969] 2 All E.R. 221, distinguished.

(6) R. v. Home Secy., ex p. Tarrant, [1985] 1 Q.B. 251; [1984] 1 All E.R. 799, dicta of Webster and Kerr, JJ. applied.

(7) University of Ceylon v. Fernando, [1960] 1 W.L.R. 223; [1960] 1 All E.R. 631, dicta of Lord Jenkins considered.

Legislation construed:

Police Law (Law 5 of 1976), s.51(1),(4): The relevant terms of these sub-sections are set out at page 502, lines 35–39; page 504, lines 38–41.

Police Regulations 1976, reg. 7: The relevant terms of this regulation are set out at page 505, lines 5–33.

Police-disciplinary proceedings-legal representation-Commissioner has discretion to allow legal representation in appropriate case because right not specifically denied by Police Law or Police Regulations 1976-provision allowing assistance by fellow officer consistent with Commissioner”s discretion

Police-disciplinary proceedings-legal representation-guidelines for exercise of Commissioner”s discretion-to consider seriousness of charge; potential penalty, e.g. loss of liberty, reputation, employment; complexity of legal issues; adequacy of other available internal procedures; need for speedy adjudication

The applicant police constable sought an order and related declarations directing the Commissioner of Police to allow him legal representation in disciplinary proceedings.

It was alleged that the applicant had falsified the result of a blood test taken from an alleged offender with the aim of assisting him to escape prosecution. Disciplinary proceedings were commenced against him under the Police Regulations 1976; if found guilty he faced dismissal from the Police Force and the loss of his pension rights and other privileges. He applied to have counsel represent him in the proceedings.

The Commissioner refused the request on the ground that (a) this was an internal disciplinary matter and the Police Force standing order A17, para. 33(g) adequately provided for representation by a serving police officer of any rank to be nominated by him; (b) he could alternatively apply to the Commissioner under reg. 7(g) of the Police Regulations 1976 for permission to have a gazetted officer assist him instead; and (c) there were no provisions in those Regulations for an officer charged with disciplinary offences to have legal representation.

The applicant then applied in the present proceedings for, inter alia, an order prohibiting the hearing of the disciplinary proceedings without legal representation; a declaration that, on the true construction of the Police Law and the Police Regulations 1976, the Commissioner of Police hearing disciplinary proceedings against a police officer had a discretion whether or not to permit that officer to be represented at the hearing by an attorney or counsel of his choice; and alternatively, a declaration that if on their true construction reg. 7(g) and standing order A17, para. 33(g) prohibited the Commissioner from permitting the accused to be legally represented, such regulations were ultra vires the Police Law and contrary to the rules of natural justice.

Held, granting the orders and making the declaration sought:

(1) Although there was no provision in the Police Law or Police Regulations 1976 expressly permitting legal representation in disciplinary proceedings, there was none, on the other hand, either expressly or by implication, precluding it. It was right and proper that a facility such as that provided for in reg. 7 of the Police Regulations 1976 (which took precedence to similar provisions in standing order A17, para. 33) should exist and be formally recognized for assisting a police officer who had to face disciplinary charges. Its existence, however, was not in itself a sufficient justification for excluding a discretion on the part of the Commissioner to permit proper legal representation in an appropriate case in which the right to assistance might prove inadequate (page 506, line 35 – page 507, line 16; page 507, lines 38–40).

(2) Moreover, it was necessary in principle for the court to recognize a discretion in the Commissioner in such cases. It was consistent with the requirements of natural justice that this should be so where the charge was serious in its implications for the loss of liberty, reputation or employment and all ensuing benefits and where the disciplinary proceedings were to be conducted in the same way as a judicial enquiry. In addition, a practical consideration was that some cases were so complex and demanding that it was likely to be to the advantage of both sides if there were legal representation. Local considerations were also relevant-such as, in this case, the small size of the Police Force, the familiarity of the members with each other and the probability of the applicant being seriously disadvantaged if he were compelled to rely on the few persons available from within the Force to assist him. All of these considerations demanded that the Commissioner exercise his discretion in favour of legal representation for the applicant and the court would so order (page 509, lines 3–14; page 510, line 22 – page 512, line 8; page 512, lines 15–41).

(3) For the assistance of the Commissioner in the exercise of his discretion in future cases, the court would lay down the following albeit not comprehensive guidelines. The Commissioner should consider (i) the seriousness of the charge and the potential penalty; if, for example, discharge or dismissal from the Police Force was a real possibility then legal representation should be granted but most other cases would not normally be serious enough; (ii) whether any points of law were likely to arise; (iii) the ability of a particular officer or a chosen gazetted officer fairly and independently to present the case of the accused officer and the need for fairness as between the accused officer and his fellow and senior officers; and (iv) the need for reasonable speed in making an adjudication (page 514, line 17 – page 515, line 5).

SCHOFIELD, J.: Richard Prendergast (‘the applicant’) is a
police constable in the Royal Cayman Islands Police Force. He is
20	alleged to have been approached to assist one Ladon Weideranders
to escape prosecution for an offence of driving whilst intoxicated
and, in connection therewith, to have made a false entry in a
Traffic Department register in relation to the result of Mr.
Weiderander”s blood test. These are very serious allegations, so
25	serious in fact that criminal charges were contemplated against
the applicant. I am told that these charges were never pursued
because Mr. Weideranders left the Cayman Islands. However,
the matter is the subject of Police Force disciplinary proceedings
and the applicant is due to face three charges under the Police
30	Regulations 1976, before the Commissioner of Police. I do not
think it is disputed that if found guilty of the charges the applicant
could well be dismissed from the Police Force and lose all his
pension rights and other privileges.
The disciplinary proceedings papers were served on the
35	applicant by Supt. Sambula on June 15th, 1989. The applicant
was seen again by Supt. Sambula, who is the presenting officer in
the proceedings, and asked if he had selected a police officer to
represent him, according to the Police Force standing orders, to
which I shall return. The applicant then tried to hand Supt.
40	Sambula a letter which requested that Mr. Hampson, his
attorney-at-law, and any other leading counsel instructed by him,

be permitted to represent him at the disciplinary proceedings.
Mr. Hampson later spoke to Supt. Sambula from which conversa-
tion he gained the impression that legal representation would not
be permitted at the hearing. Mr. Hampson then wrote to the
5	Commissioner of Police on July 4th, 1989, the day before the
hearing, informing him of his intention to appear at the hearing,
together with leading counsel. The Deputy Commissioner tele-
phoned Mr. Hampson to say the proceedings had been postponed
to July 21st, 1989, due to the unavailability of witnesses. A letter
10	from the Deputy Commissioner followed that conversation, the
relevant portion of which reads:
‘With regard to legal representation for P.C. Prendergast
at these proceedings, I am to advise that in accordance with
Force standing order A17, para. 33(g), the officer is entitled
15	to nominate a serving police officer of any rank to assist him
in the presentation of his defence. He is not entitled under
standing orders to have an attorney to represent him and the
Commissioner of Police has requested me to advise you that
such representation will not be permitted.
20	The case against P.C. Prendergast will be presented by a
serving police officer and not counsel or any other member
of the Government Legal Department. It should also be
understood that P.C. Prendergast has not been charged in a
court of law with a criminal offence but with offences against
25	discipline and the case will be heard at closed disciplinary
proceedings. P.C. Prendergast

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