Deshurn Dember v The Commissioner Of Police et al

THE EASTERN CARIBBEAN SUPREME COURT SAINT VINCENT AND THE GRENADINES IN THE HIGH COURT OF JUSTICE SVGHCV2017/0077 IN THE MATTER OF AN APPLICATION BY DESHURN DEMBER FOR JUDICIAL REVIEW OF HIS DISMISSAL FROM THE POLICE FORCE BY COMMISSIONER OF POLICE ON 12th JULY 2013 BETWEEN: DESHURN DEMBER APPLICANT and THE COMMISSIONER OF POLICE HONOURABLE ATTORNEY GENERAL OF SAINT VINCENT AND THE GRENADINES RESPONDENTS Appearances: Mr. Joseph Delves holding papers for Ms. Heidi Badenock for the applicant. Mrs. Cerepha Harper-Joseph for the respondents. ------------------------------------------ 2018: Feb. 7 Feb. 21 ------------------------------------------- DECISION BACKGROUND

[1]Henry, J.: Mr. Deshurn Dember is a former Police Constable who served with the Royal Saint Vincent and the Grenadines Police Force. His was discharged in 2013 by then Commissioner of Police Mr. Keith Miller. In the dismissal letter, Commissioner Miller indicated that Mr. Dember was being discharged because he was recently convicted by the Kingstown Magistrate’s Court for making use of indecent language. Mr. Dember alleged that he filed a notice of appeal to the Public Service Board of Appeal (‘PSBA’) and lodged it with the Commissioner. He averred that as far as he is aware the appeal was never forwarded to the PSBA. He claimed that he is unable to produce a copy because despite numerous requests he has been unable to retrieve one from the Services Commission.

[2]Mr. Dember now applies for leave to apply for judicial review of the Commissioner’s decision. The Honourable Attorney General was joined as a respondent. Mr. Dember asserted that the Commissioner failed to observe the basic rules of natural justice and/or fairness and/or failed to act with procedural fairness. In this regard, he complained that the Commissioner did not give him the length of advance notice stipulated by statute and failed to forward his appeal to the PSBA.

[3]He claimed too that the Commissioner acted ultra vires, in excess of his powers and/or in excess of his jurisdiction when he purported to dismiss him forthwith. Mr. Dember asserted that the Commissioner failed to understand the law on dismissal, thereby rendering his decision irrational.

[4]The Commissioner and Honourable Attorney General have opposed the application. By affidavit filed on 15th June 2017, the learned Attorney General Mrs. Judith Jones-Morgan deposed that there is no evidence that Mr. Dember filed the appeal as he has alleged. She stated that there is an alternative remedy outlined in the Police Act1 (‘the Act’) which provides for an appeal to the PSBA. She pointed out that Mr. Dember has delayed in bringing this matter to the Court. The Commissioner agrees with those contentions.

[5]The Commissioner and Honourable Attorney General contended that the application should be dismissed. Mrs. Judith Jones-Morgan’s successor in title is Mr. Jaundy Martin who maintains his predecessor’s objections to the application. For the reasons outlined below, Mr. Dember’s application for leave to seek judicial review is denied.

ISSUE

[6]The issue is whether Mr. Deshurn Dember should be granted leave to apply for judicial review.

LAW AND ANALYSIS

Issue – Should Mr. Deshurn Dember be granted leave to apply for judicial review?

[7]If satisfied that an applicant has established a good arguable ground with a realistic prospect of success, the court may grant to such applicant, leave to apply for judicial review of administrative action, provided that there is no discretionary bar and no recourse is available to the applicant by way of alternative remedy.2

[8]The Commissioner and Honourable Attorney General do not dispute that Mr. Dember was discharged from the Force in the manner he described. Mr. Dember exhibited a copy of the dismissal letter to his first affidavit3. It which states: ‘July 12, 2013 Deshurn Dember Police Constable (sic) No. 59 Calliaqua Police Station Kingstown ST. VINCENT Dear Sir, NOTICE OF DISCHARGE FROM THE POLICE FORCE Reference to my letter to you dated February 07, 2012 re Notice of Suspension. I wish to inform you, that as a result of your conviction in the Kingstown Magistrate Court on March 12, 2013 for making use of indecent language on October 29, 2011, by virtue of the Power vested in me under Section 7 (4)(a) of the police Act Chapter 391, of the Revised Edition of the Laws of St. Vincent and the Grenadines, 2009, I hereby give you notice that you are discharged as a member of the Royal St. Vincent and the Grenadines Police Force with effect from July 12, 2013. As result, you are required to hand over your kit and accoutrements to the Storekeeper, immediately. You have the right to appeal against this decision to the Public Service Board of Appeal.

Yours faithfully

Keith G. Miller

COMMISSONER OF POLICE’

[9]Mr. Dember said that even though the letter was dated July 12, 2013, he did not receive it until July 17th, 2013. He admitted that he was convicted by the Magistrate’s Court on 4th March 2013 for making use of indecent language. He deposed that he was fined $400.00 for the offence which he paid. He indicated that he filed an appeal against the Magistrate’s decision and notified the Commissioner of the appeal by letter dated July 18, 2013.

[10]Mr. Dember produced a copy of the July 18, 2013 letter he allegedly sent to the Commissioner. In it he explained: ‘… I lodged an appeal against the magistrate’s decision made on 3rd March 2013 and the matter is still pending before the court. As my discharge is based solely on m conviction, I would be grateful for a suspension of your letter pending the outcome of the appeal….’

[11]Mr. Dember deposed that he sought a suspension of the dismissal pending the hearing of the appeal because he was of the view that his dismissal was based solely on the conviction. He averred that in addition to lodging the appeal with the Commissioner, he also carried a copy to the service commission.

[12]He explained that a copy of the appeal was given to one Reverend Job at the services commission, who subsequently contacted and recorded a statement from him at the Methodist Church Hall. He did not say what relationship (if any) existed or exists between the PSBA or the Commissioner and Reverend Job. He said that he has made numerous inquiries as to when the appeal would be heard but kept getting the ‘run around’. He alleged that he was also told that his appeal had been sent to the wrong board. He did not say when those inquiries were made.

[13]Mr. Dember recited a number of conversations he allegedly had with functionaries at the PSBA including one Sonny Williams whom he believed was part of the police oversight committee. He averred that Mr. Williams wanted to know how services commission could have made such a mistake and send his appeal to the wrong board. He deposed that he kept going upstairs to Permanent Secretary Pompey where the secretary told him ‘ … Pompey sent the letter and if Mr. Charles sent the Appeal, they will give …’ him a date. He said that he was even told that they did not have a board because it had been dismantled. He did not indicate when these encounters took place or what steps he took to ascertain the designation of the persons with whom he had the referenced exchanges.

[14]Mr. Dember stated that former Commissioner of Police Mr. Michael Charles had informed him that when he took over, he met the letter on Mr. Miller’s desk and had sent it over (presumably to the service commission or the PSBA). I take judicial notice that Commissioner Charles demitted office as Commissioner just over a year before Mr. Dember initiated this action. Mr. Charles served in that capacity for just over a few years. Mr. Dember deposed that his last inquiry about the appeal was in March 2017.

[15]He produced an unsigned copy of his letter of Appeal dated 5th August to the PBSA which he allegedly submitted to the Commissioner. He deposed that he recently located a copy of the unsigned letter. It was exhibited to his second affidavit4. It states: ‘Carrierre Village, Mespo P.O 5th August,2013. Public Service Commission Board of Appeal, Kingstown. Dear Sir, I write to appeal a decision taken by the former Commissioner of Police, Mr. Keith Miller, against me. On July 17th I received a letter dated 12th July, informing me that I was being dismissed as an officer from the Royal St. Vincent and the Grenadines Police Force. The letter stated that I was being dismissed for using indecent language and I am of opinion that the punishment meted out to me for that offence is too harsh. I trust this request will be given deepest consideration. If it is necessary, I can be contacted at 527-5057. Sincerely, ________________________ Deshurn Dember’

[16]Mr. Dember accepted that he submitted it outside of the statutory time period and explained that he was misinformed as to the amount of time that he had to appeal. The Act5 provides that a police officer who is dismissed by the Commissioner, may appeal to the PSBA within 7 days of the decision being communicated to him. It also provides that an appeal is deemed to have been made when it is delivered to the dismissed officer’s superior officer; and further that every appeal must be delivered to the Commissioner who is mandated to forward it to the PSBA.

[17]Acting Commissioner of Police Mr. Renold Hadaway also provided affidavit6 testimony. He averred that he had cause to search the records at the office of the Commissioner to see if an appeal was lodged by Deshurn Dember to the PSBA in 2013 and found none. He deposed that he was never in receipt of such an appeal and therefore could not forward such to the PSBA.

[18]Mr. Dember relies on procedural impropriety, illegality and irrationality to ground his application for leave to apply for judicial review. The procedural and legal bases for Mr. Dember’s application are linked and can be conveniently dealt with together. Those items will be addressed first followed by the irrationality point.

Procedural impropriety and Illegality

[19]Mr. Dember contended that the Commissioner acted in breach of section 7(4)(a) of the Act and failed to observe the basic rules of natural justice and/or fairness and/or failed to act with procedural fairness. He argued that the subsection under which he was dismissed must be read in conjunction with its corresponding parts.

[20]Mr. Dember complained that he did not receive the 3 months’ advance notice before being dismissed, which he was entitled to receive pursuant to section 7(4)( a) or (c) of the Act. He pointed out that section 7(4) stipulates that no non-commissioned officer or constable may be discharged under the provisions of that sub-section until he has had an opportunity to be appeal to the PSBA.

[21]He contended that it is quite evident from the contents of the notice that he had no such opportunity before his dismissal, because the dismissal was expressed to be with ‘immediate effect’. He submitted that in the exercise of his statutory authority, the Commissioner clearly failed to follow the procedure laid out under the Act, and this amounts to procedural impropriety.

[22]Mr. Dember argued that the Commissioner acted ultra vires; and/or in excess of his jurisdiction; and/or that the dismissal of July 12th 2013 was in excess of his powers; when he purported to dismiss him forthwith and without the requisite notice. He contended that the Act did not authorize the Commissioner to legally dismiss him forthwith or without notice.

[23]The Commissioner and the Honourable Attorney General submitted that no Appeal was received by the office of the Commissioner and therefore the Commissioner could not have forwarded what he did not receive. They argued that Mr. Dember was further informed in the letter that he has a right to appeal to the PSBA. They contended that the letter dated July 12th 2013 to Mr. Dember clearly outlined that it served as notice.

[24]They noted that Section 7(4) a of the Act provides that a non-commissioned officer or constable may be discharged by the Commissioner if the Commissioner considers that he is unlikely to become or has cease to become an efficient police officer. They submitted that the law authorizes the Commissioner to use his discretion with respect to the discharge of an officer under that provision.

[25]They reasoned that Mr. Dember’s decision not to utilize his right to appeal was not their fault and they therefore cannot be blamed for such inaction. They submitted that the procedure followed by the Commissioner of Police is correct.

[26]Section 7 (4) (a) and (c) of the Act provides: ‘Any non-commissioned officer or constable may be discharged by the Commissioner- (a) If the Commissioner considers that he is unlikely to become or has ceased to become an efficient police officer; (b) … (c) on reduction of the establishment of the Force; … Provided that no such non-commissioned officer or constable may be discharged under the provisions of this sub-section until he has had an opportunity to appeal to the Public Service Board of Appeal. Provided further that any such non-commissioned officer or constable discharged under paragraphs (a) or (c) shall be entitled to three months’ notice: …’.

[27]I find that Mr. Dember was dismissed from the Police Force by the Commissioner by letter dated 12th July 2013 which is reproduced earlier. The dismissal is expressed to be made pursuant to the Commissioner’s powers of dismissal under section 7 (4) (a) of the Act. It was to take place from that date.

[28]Section 7(4) (a) of the Act provides for dismissal of a non-commissioned officer or constable if the Commissioner is satisfied that that such officer is unlikely to become or has ceased to be an efficient police officer. By invoking that provision, Commissioner Miller signalled in the dismissal letter that he considered that Mr. Dember was either not likely to become or had ceased to be an efficient police officer. The law stipulates that Mr. Dember was therefore entitled before such dismissal to: 1. 3 months’ notice of the Commissioner’s intention to dismiss him; and 2. an opportunity to appeal to the PSBA.

[29]If Mr. Dember could demonstrate that he likely did not receive the 3 months’ notice and/or an opportunity to appeal he would have established a good arguable ground with a realistic prospect of success, on which to seek judicial review of the Commissioner’s decision. The affidavits filed by the parties demonstrate that perhaps he did not receive either the statutory notice or adequate time to appeal before such discharge. I am satisfied that Mr. Dember has established a good arguable ground with a realistic prospect of success, on both procedural bases.

Irrationality

[30]Mr. Dember submitted that he was found to have used indecent language during an altercation with a civilian in the public domain, for which he was convicted and fined. He said that he paid the fine. He noted that the Commissioner was authorized to discharge a non-commissioned officer or constable if he considers that the officer is unlikely to become or has ceased to become an efficient police officer. Mr. Dember argued that the Commissioner failed to understand the law on dismissal as regards to the likelihood of him (Mr. Dember) ceasing to become an efficient police officer. He contended that within the context of accepted moral standards in a Vincentian society and based on the gravity of the offence, it is unreasonable and outrageous that the use of indecent language could be deemed to amount to inefficiency on the part of a police officer.

[31]He submitted that the conviction for use of indecent language could not reasonably be said to affect the efficiency of his duty as a police officer. He argued that the Commissioner erred in his decision to dismiss him on this basis because police officers who were convicted of much more serious offences are currently within the Force. He contended that the Commissioner’s misapplication and misunderstanding of what was viewed as a discretionary exercise of power resulted in the dismissal. He reasoned that in the circumstances, the dismissal and the steps which were taken to it were unfair and unreasonable, suffered from a breach of natural justice and were irrational.

[32]The Commissioner and Honourable Attorney General submitted that the law permits the Commissioner to dismiss an officer whom he considers to be unlikely to become or has ceased being an efficient police officer.

[33]The court did not have the benefit of the reasoning behind the Commissioner’s decision. If Mr. Dember’s position is correct or substantially so, it would be a sound basis to grant leave for judicial review of the Commissioner’s decision. I find therefore that on this score Mr. Dember has advanced another good arguable ground with a realistic chance of success. But this is not the end of the matter. The court must now determine if an alternative remedy is open to Mr. Dember or whether there are any discretionary bars.

Discretionary Bar and Alternative Remedy

[34]The Honourable Attorney General and the Commissioner submitted that judicial review is a legal recourse of last resort and that an applicant seeking leave to apply for judicial review must first exhaust all other adequate alternative remedies. They cited as authority, the case of R (Bancourt) v Secretary of State for the Foreign Commonwealth Office7 They adopted the statement of Popplewell J. in the case of R v. Ministry of Agriculture, Fisheries and Food, ex p. Live Sheep Traders Ltd where he said: ‘It is a cardinal principle that, save in the most exceptional circumstances, the jurisdiction to grant judicial review will not be exercised where other remedies are available and have not been used.’8

[35]They submitted further that Mr. Dember failed to discharge the burden of proving that he delivered an appeal to the Commissioner of Police. They argued that since there is no evidence of an Appeal being delivered to the Commissioner of Police or the PSBA, there is no pending Appeal and therefore the alternative remedy has not been exhausted as the law requires. They contended that there is no special circumstance which would permit the Court to exercise its discretion to allow this matter to proceed until the alternative avenue is exhausted.

[36]Mr. Dember conceded that where an alternative remedy is available, the Court will not generally make available the remedy of judicial review. As authority, he cited Halsbury's Laws of England. 9 He argued that an appeal is made available by virtue of section 18 of the Act. He remarked that it is unfortunate that he has been unable to produce a copy of the actual appeal that was lodged and submitted that despite this there is sufficient evidence to suggest that an appeal was indeed lodged, which to his detriment was lost along the way. He submitted that based on the time period under the Act, the possibility of another appeal is long lost to him; but it would be incorrect to say that an available alternative remedy exists.

[37]The Commissioner and the Honourable Attorney General submitted that Mr. Dember was properly discharged pursuant to Section 7 (4) of the Act which empowers the Commissioner to discharge a non- commissioned officer or constable from the Force on three grounds. They argued that an officer can only be discharged from the Force after the Commissioner has considered and determined the specified questions or circumstances inherent in the ground upon which he intends to discharge the officer. They submitted that the present application must be dismissed for want of substance and that the Court should not grant to Mr. Dember leave to apply for judicial review.

[38]Mr. Dember noted that CPR Part 56.5 (1) and (2) provide: ‘(1) In addition to any time limit imposed by any enactment, the judge may refuse leave or to grant relief in any case which the judge considers that there has been unreasonable delay before making the application; (2) When considering whether to refuse leave or to grant relief because of delay the judge must consider whether the granting of leave or relief would be likely to - (a) be detrimental to good administration; or (b) cause substantial hardship to or substantially prejudice the rights of any person.’

[39]He remarked that he is in 2017 (the date the application was filed) seeking leave to apply for judicial review of a decision which occurred in July 2013. He conceded that on the face of it, this appears to be a four-year delay. He submitted however that he question in this case would be, whether the delay was unreasonable and sufficient to act as a bar to grant leave for judicial review.

[40]Mr. Dember contended that the evidence is that he submitted his appeal to the Commissioner who failed to lodge it with the PSBA as required section 18 (3) of the Act which mandates delivery of an appeal to the appellant’s superior officer. He submitted that having done so, he spent the lapsed time attempting to have it heard and was eventually informed that his appeal had never moved from the Commissioner’s desk until the post was eventually taken over by another individual.

[41]Mr. Dember contended that he made numerous and substantial inquiries into the status of his appeal, having communicated with various personnel as evidenced in his affidavit. He argued that it is therefore reasonable to conclude that he was fairly diligent in having his appeal heard, and it was not until it appeared to him that there was no alternative remedy, that he sought this course of action. Mr. Dember submitted that the delay was caused by the Commissioner and it would be unjust if it were deemed to operate to his prejudice.

[42]He argued that in the case of Jomo Thomas v The Comptroller of Customs10 it was held that ‘while the application was filed one year after the decisions complained of by Mr. Thomas, Mr. Thomas’ evidence is that he by way of appeal requested the Director General of Finance to reconsider the application. No written response was received. Having regard to the nature of the case, I find that the grant of leave would not in any way be detrimental to good administration in this case nor would it cause substantial hardship or prejudice to the rights of any person. I find that the delay in this case is not a bar to the grant of leave.’

[43]Mr. Dember referred to and relied on the case of Mary Francis v Development Control Authority11. In that case, the Court considered the issue of delay and referenced the decision in Virgin Islands Environmental Council v Attorney General12. Smith J. accepted the submission by counsel who contended that ‘… the issue of whether an applicant for judicial review has been guilty of undue or unreasonable delay will depend on the circumstances of the particular case and decisions of the courts merely serve as guidance.’ Smith J. opined that this was a reasonable starting point in considering the issue of delay.

[44]Relying on that articulation of the proposition, Mr. Dember submitted that based on the circumstances of this case and the diligence in seeking information as to the progress of the appeal, it cannot be said that his delay in seeking this course of redress was unreasonable. He argued that delay is to be considered in the context of each individual case. He noted that Smith J. also considered the case of Romaneta Francis v Public Utilities Authority13, in which the court granted leave to apply for judicial review notwithstanding a two year delay.

[45]Mr. Dember submitted that the presiding judge in the Mary Francis case also took into account issues of prejudice and the public interest in good administration, and quoted approvingly from Lord Diplock’s judgment in the case of O’Reilly v Mackman, where he said: ‘The public interest in good administration must require that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision.’14

[46]Mr. Dember acknowledged that it is necessary that matters have some degree of finality. However, he contended that in circumstances in which, owing to no fault of the applicant, a matter has not been determined it cannot be said that the public interest outweighs that of the person affected by the decision. He reasoned that in addition to the right of the public authority to make decisions, there also exists a corresponding responsibility to ensure that not only are its decision-making powers exercised in accordance with the law, but also that the relevant statutory procedures are followed subsequent to the exercise of power. He maintained that in the case at bar this was not done and that this contributed largely to the delay.

[47]He argued that the delay is largely attributable to his naiveté, whereby he expected the matter to progress as it should have with the appeal being transferred by the Commissioner to the PSBA in the usual course. He contended that he sought to access this alternative remedy and as a result of lack of diligence by the Commissioner, he had no alternative but to seek relief from the Court by seeking leave to apply for judicial review. He argued that in light of those circumstances, it cannot be said that the discretionary bars of delay and alternative remedy, ought to bar him from access to his sole form of recourse.

[48]The court must be satisfied on a balance of probabilities that Mr. Dember lodged an appeal from the Commissioner’s decision to discharge him and that he did so within the timeframe stipulated by the law or within a reasonable time thereafter. The burden of proof rests on Mr. Dember throughout. In the event of delay, the court must consider whether granting relief would be inimical to good administration, cause substantial hardship or would substantially prejudice someone else’s rights. I accept that the principles highlighted by the parties are all applicable. I remain mindful that each case must be determined on its own facts.

[49]The parties have provided diametrically opposed testimony as to whether an appeal was lodged. Mr. Dember was unable to produce a signed copy of the appeal. He did not indicate under what circumstances he unearthed the unsigned copy. Such information would have assisted the court greatly. The court appreciates that records sometimes go amiss.

[50]I take into account that Mr. Dember was dismissed in 2013, over four years ago. His appeal should have been filed within 7 days or by 19th July 2013. Before approaching the court he had an alternative remedy under the Act, which he claimed he utilized. The application hinges on that singular finding.

[51]One would imagine that if Mr. Dember filed an appeal he would have exerted considerable diligence to pursue it to finality. His account of the steps he took, paint the picture of a lackluster, almost indifferent approach. In this regard, there is not one piece of documentary evidence of diarized notes or letters sent to the Commissioner or the PSBA in the intervening period. There is no corroborative account of the efforts allegedly expended throughout the years to follow up, and no explanation as to whether legal advice was sought before 2017 and if so, why not.

[52]One would reasonably have expected that a diligent and concerned person would have taken some one or more type of the actions described or some similar steps. None of those appears to have been explored by Mr. Dember before 2017. In the absence of testimony explaining this apparent lack of ‘active and documented’ interest, I am hard-pressed to find that Mr. Dember lodged the appeal in writing as he alleged. Even if he did, he still faces the hurdle of explaining why he waited this long to seek leave to obtain judicial review.

[53]The cases cited by Mr. Dember do not assist him. In the Romaneta Francis case, the High Court of Antigua and Barbuda granted a mandamus to compel the Public Utilities Authority to install electricity to Ms. Francis’ premises, which they had refused to do for 2 years. Smith J. remarked15 that the refusal was a continuing one. He distinguished those circumstances from those which were presented to him in the Mary Francis matter. In that case, the applicant was seeking relief after 2 ½ years. Smith J. found that she failed act with urgency and that the delay was unreasonable and detrimental to good administration.

[54]The Jomo Thomas case can also be distinguished. There was a one year delay in which Mr. Thomas was reasonably awaiting a response from the Director General of Finance to a request to reconsider his decision. That case involved an application by Mr. Thomas to obtain an exemption on duties in respect of the importation of a motor vehicle.

[55]In the case at bar, Mr. Dember’s conduct in waiting until 2017 to seek leave to apply for judicial review is puzzling. I fail to understand why he did not aggressively pursue the appeal before the PSBA with more alacrity. Even if the court accepts his assertion that he went to the services commission and the successive Commissioners through the years, it just does not stand to reason that he would wait this long to pursue this final rung to relief. Not even Job of the Bible is reported to have had that much patience. The reasonable thing to have done was to write to the Commissioner or the PSBA by the first anniversary of his dismissal. It seems to me that the objective of his appeal was to be re-instated or be compensated. In either case, the relief is one which the normal person would wish to have sooner rather than later.

[56]In the premises, I find that his delay was excessive and unreasonable. Moreover, granting him leave at this stage could potentially lead to a situation where other similarly aggrieved police officers or applicants would approach the court at the eleventh hour to resurrect and conduct post mortem examinations of decisions made long ago. I recognize that this is permissible in appropriate cases. This is not one. Accordingly, in light of the applicable legal principles16, Mr. Dember’s application for leave to apply for judicial review is dismissed.

[57]It cannot be over-emphasized that litigants and potential litigants must proceed with expedition to ventilate their claims. Failure to do so in a timely manner quite often results in them being shut out. Most areas of the law incorporate time limits for proceeding in a court of law. It behooves every resident of the State of Saint Vincent and the Grenadines to have a general idea of and to familiarize himself or herself with what is considered reasonable in such cases.

ORDER

[58]It is accordingly ordered: 1. Deshurn Dember’s application for leave to apply for judicial review of the Commissioner of Police’s decision dated 12th July 2013, discharging him from the Royal Saint Vincent and the Grenadines Force is dismissed. 2. Each party to bear his own costs.

[59]I am grateful to counsel for their helpful submissions.

Esco L. Henry

HIGH COURT JUDGE

By the Court

Registrar

THE EASTERN CARIBBEAN SUPREME COURT SAINT VINCENT AND THE GRENADINES IN THE HIGH COURT OF JUSTICE SVGHCV2017/0077 IN THE MATTER OF AN APPLICATION BY DESHURN DEMBER FOR JUDICIAL REVIEW OF HIS DISMISSAL FROM THE POLICE FORCE BY COMMISSIONER OF POLICE ON 12 th JULY 2013 BETWEEN: DESHURN DEMBER APPLICANT and THE COMMISSIONER OF POLICE HONOURABLE ATTORNEY GENERAL OF SAINT VINCENT AND THE GRENADINES RESPONDENTS Appearances: : Mr. Joseph Delves holding papers for Ms. Heidi Badenock for the applicant. Mrs. Cerepha Harper-Joseph for the respondents. —————————————— 2018: Feb. 7 Feb. 21 ——————————————- DECISION BACKGROUND

[1]Henry, J.: Mr. Deshurn Dember is a former Police Constable who served with the Royal Saint Vincent and the Grenadines Police Force. His was discharged in 2013 by then Commissioner of Police Mr. Keith Miller. In the dismissal letter, Commissioner Miller indicated that Mr. Dember was being discharged because he was recently convicted by the Kingstown Magistrate’s Court for making use of indecent language. Mr. Dember alleged that he filed a notice of appeal to the Public Service Board of Appeal (‘PSBA’) and lodged it with the Commissioner. He averred that as far as he is aware the appeal was never forwarded to the PSBA. He claimed that he is unable to produce a copy because despite numerous requests he has been unable to retrieve one from the Services Commission.

[2]Mr. Dember now applies for leave to apply for judicial review of the Commissioner’s decision. The Honourable Attorney General was joined as a respondent. Mr. Dember asserted that the Commissioner failed to observe the basic rules of natural justice and/or fairness and/or failed to act with procedural fairness. In this regard, he complained that the Commissioner did not give him the length of advance notice stipulated by statute and failed to forward his appeal to the PSBA.

[3]He claimed too that the Commissioner acted ultra vires, in excess of his powers and/or in excess of his jurisdiction when he purported to dismiss him forthwith. Mr. Dember asserted that the Commissioner failed to understand the law on dismissal, thereby rendering his decision irrational.

[4]The Commissioner and Honourable Attorney General have opposed the application. By affidavit filed on 15 th June 2017, the learned Attorney General Mrs. Judith Jones-Morgan deposed that there is no evidence that Mr. Dember filed the appeal as he has alleged. She stated that there is an alternative remedy outlined in the Police Act’)

[5]The Commissioner and Honourable Attorney General contended that the application should be dismissed. Mrs. Judith Jones-Morgan’s successor in title is Mr. Jaundy Martin who maintains his predecessor’s objections to the application. For the reasons outlined below, Mr. Dember’s application for leave to seek judicial review is denied. ISSUE

[6]The issue is whether Mr. Deshurn Dember should be granted leave to apply for judicial review. LAW AND ANALYSIS Issue – Should Mr. Deshurn Dember be granted leave to apply for judicial review?

[7]If satisfied that an applicant has established a good arguable ground with a realistic prospect of success, the court may grant to such applicant, leave to apply for judicial review of administrative action, provided that there is no discretionary bar AND no recourse is available to the applicant by way of alternative remedy.

[2][8] The Commissioner and Honourable Attorney General do not dispute that Mr. Dember was discharged from the Force in the manner he described. Mr. Dember exhibited a copy of the dismissal letter to his first affidavit

[8][35] They submitted further that Mr. Dember failed to DISCHARGE THE burden of proving that he delivered an appeal to the Commissioner of police They argued that since there is no evidence of an Appeal being delivered to the Commissioner of Police or the PSBA, there is no pending Appeal and therefore the alternative remedy has not been exhausted as the law requires. They contended that there is no special circumstance which would permit the Court to exercise its discretion to allow this matter to proceed until the alternative avenue is exhausted.

[10]Mr. Dember produced a copy of the July 18, 2013 letter he allegedly sent to the Commissioner. In it he explained: ‘… I lodged an appeal against the magistrate’s decision made on 3 rd March 2013 and the matter is still pending before the court. As my discharge is based solely on m conviction, I would be grateful for a suspension of your letter pending the outcome of the appeal….’

[11]Mr. Dember deposed that he sought a suspension of the dismissal pending the hearing of the appeal because he was of the view that his dismissal was based solely on the conviction. He averred that in addition to lodging the appeal with the Commissioner, he also carried a copy to the service commission.

[12]He explained that a copy OF the appeal was given to one Reverend Job at the services commission, who subsequently contacted and recorded a statement from him at the Methodist Church Hall. He did not say what relationship (if any) existed or exists between the PSBA or the Commissioner and Reverend Job. He said that he has made numerous inquiries as to when the appeal would be heard but kept getting the ‘run around’. He alleged that he was also told that his appeal had been sent to the wrong board. He did not say when those inquiries were made.

[9]Mr. Dember said that even though the letter was dated July 12, 2013, he did not receive it until July 17 th , 2013. He admitted that he was convicted by the Magistrate’s Court on 4 th March 2013 for making use of indecent language. He deposed that he was fined $400.00 for the offence which he paid. He indicated that he filed an appeal against the Magistrate’s decision and notified the Commissioner of the appeal by letter dated July 18, 2013.

[13]Mr. Dember recited a number of conversations he allegedly had with functionaries at the PSBA including one Sonny Williams whom he believed was part of the police oversight committee. He averred that Mr. Williams wanted to know how services commission could have made such a mistake and send his appeal to the wrong board. He deposed that he kept going upstairs to Permanent Secretary Pompey where the secretary told him ‘ … Pompey sent the letter and if Mr. Charles sent the Appeal, they will give …’ him a date. He said that he was even told that they did not have a board because it had been dismantled. He did not indicate when these encounters took place or what steps he took to ascertain the designation of the persons with whom he had the referenced exchanges.

[14]Mr. Dember stated that former Commissioner of Police Mr. Michael Charles had informed him that when he took over, he met the letter on Mr. Miller’s desk and had sent it over (presumably to the service commission or the PSBA). I take judicial notice that Commissioner Charles demitted office as Commissioner just over a year before Mr. Dember initiated this action. Mr. Charles served in that capacity for just over a few years. Mr. Dember deposed that his last inquiry about the appeal was in March 2017.

[15]He produced an unsigned copy of his letter of Appeal dated 5 th August to the PBSA which he allegedly submitted to the Commissioner. He deposed that he recently located a copy of the unsigned letter. It was exhibited to his second affidavit

[16]Mr. Dember accepted that he submitted it outside of the statutory time period and explained that he was misinformed as to the amount of time that he had to appeal. The Act

[17]Acting Commissioner of Police Mr. Renold Hadaway also provided affidavit

[18]Mr. Dember relies on procedural impropriety, illegality and irrationality to ground his application for leave to apply for judicial review. The procedural and legal bases for Mr. Dember’s application are linked and can be conveniently dealt with together. Those items will be addressed first followed by the irrationality point. Procedural impropriety and Illegality

[20]Mr. Dember complained that he did not receive the 3 months’ advance notice before being dismissed, which he was entitled to receive pursuant to section 7(4)( a) or (c) of the Act. He pointed out that section 7(4) stipulates that no non-commissioned officer or constable may be discharged under the provisions of that sub-section until he has had an opportunity to be appeal to the PSBA.

[19]Mr. Dember contended that the Commissioner acted in breach of section 7(4)(a) of the Act and failed to observe the basic rules of natural justice and/or fairness and/or failed to act with procedural fairness. He argued that the subsection under which he was dismissed must be read in conjunction with its corresponding parts.

[21]He contended that it is quite evident from the contents of the notice that he had no such opportunity before his dismissal, because the dismissal was expressed to be with ‘immediate effect’. He submitted that in the exercise of his statutory authority, the Commissioner clearly failed to follow the procedure laid out under the Act, and this amounts to procedural impropriety.

[22]Mr. Dember argued that the Commissioner acted ultra vires; and/or in excess of his jurisdiction; and/or that the dismissal of July 12 th 2013 was in excess of his powers; when he purported to dismiss him forthwith and without the requisite notice. He contended that the Act did not authorize the Commissioner to legally dismiss him forthwith or without notice.

[23]The Commissioner and the Honourable Attorney General submitted that no Appeal was received by the office of the Commissioner and therefore the Commissioner could not have forwarded what he did not receive. They argued that Mr. Dember was further informed in the letter that he has a right to appeal to the PSBA. They contended that the letter dated July 12 th 2013 to Mr. Dember clearly outlined that it served as notice.

[24]They noted that Section 7(4) a of the Act provides that a non-commissioned officer or constable may be discharged by the Commissioner if the Commissioner considers that he is unlikely to become or has cease to become an efficient police officer. They submitted that the law authorizes the Commissioner to use his discretion with respect to the discharge of an officer under that provision.

[25]They reasoned that Mr. Dember’s decision not to utilize his right to appeal was not their fault and they therefore cannot be blamed for such inaction. They submitted that the procedure followed by the Commissioner of Police is correct.

[26]Section 7 (4) (a) and (c) of the Act provides: ‘Any non-commissioned officer or constable may be discharged by the Commissioner- (a) If the Commissioner considers that he is unlikely to become or has ceased to become an efficient police officer; (b) … (c) on reduction of the establishment of the Force; … Provided that no such non-commissioned officer or constable may be discharged under the provisions of this sub-section until he has had an opportunity to appeal to the Public Service Board of Appeal. Provided further that any such non-commissioned officer or constable discharged under paragraphs (a) or (c) shall be entitled to three months’ notice: …’.

[27]I find that Mr. Dember was dismissed from the Police Force by the Commissioner by letter dated 12 th July 2013 which is reproduced earlier. The dismissal is expressed to be made pursuant to the Commissioner’s powers of dismissal under section 7 (4) (a) of the Act. It was to take place from that date.

[28]Section 7(4) (a) of the Act provides for dismissal of a non-commissioned officer or constable if the Commissioner is satisfied that that such officer is unlikely to become or has ceased to be an efficient police officer. By invoking that provision, Commissioner Miller signalled in the dismissal letter that he considered that Mr. Dember was either not likely to become or had ceased to be an efficient police officer. The law stipulates that Mr. Dember was therefore entitled before such dismissal to:

[29]If Mr. Dember could demonstrate that he likely did not receive the 3 months’ notice and/or an opportunity to appeal he would have established a good arguable ground with a realistic prospect of success, on which to seek judicial review of the Commissioner’s decision. The affidavits filed by the parties demonstrate that perhaps he did not receive either the statutory notice or adequate time to appeal before such discharge. I am satisfied that Mr. Dember has established a good arguable ground with a realistic prospect of success, on both procedural bases. Irrationality

[30]Mr. Dember submitted that he was found to have used indecent language during an altercation with a civilian in the public domain, for which he was convicted and fined. He said that he paid the fine. He noted that the Commissioner was authorized to discharge a non-commissioned officer or constable if he considers that the officer is unlikely to become or has ceased to become an efficient police officer. Mr. Dember argued that the Commissioner failed to understand the law on dismissal as regards to the likelihood of him (Mr. Dember) ceasing to become an efficient police officer. He contended that within the context of accepted moral standards in a Vincentian society and based on the gravity of the offence, it is unreasonable and outrageous that the use of indecent language could be deemed to amount to inefficiency on the part of a police officer.

[31]He submitted that the conviction for use of indecent language could not reasonably be said to affect the efficiency of his duty as a police officer. He argued that the Commissioner erred in his decision to dismiss him on this basis because police officers who were convicted of much more serious offences are currently within the Force. He contended that the Commissioner’s misapplication and misunderstanding of what was viewed as a discretionary exercise of power resulted in the dismissal. He reasoned that in the circumstances, the dismissal and the steps which were taken to it were unfair and unreasonable, suffered from a breach of natural justice and were irrational.

[32]The Commissioner and Honourable Attorney General submitted that the law permits the Commissioner to dismiss an officer whom he considers to be unlikely to become or has ceased being an efficient police officer.

[33]The court did not have the benefit of the reasoning behind the Commissioner’s decision. If Mr. Dember’s position is correct or substantially so, it would be a sound basis to grant leave for judicial review of the Commissioner’s decision. I find therefore that on this score Mr. Dember has advanced another good arguable ground with a realistic chance of success. But this is not the end of the matter. The court must now determine if an alternative remedy is open to Mr. Dember or whether there are any discretionary bars. Discretionary Bar and Alternative Remedy

[7]They adopted the statement of Popplewell J. in the case of R v. Ministry of Agriculture, Fisheries and Food, ex p. Live Sheep Traders Ltd where he said: ‘It is a cardinal principle that, save in the most exceptional circumstances, the jurisdiction to grant judicial review will not be exercised where other remedies are available and have not been used.’

[34]The Honourable Attorney General and the Commissioner submitted that judicial review is a legal recourse of last resort and that an applicant seeking leave to apply for judicial review must first exhaust all other adequate alternative remedies. They cited as authority, the case of R (Bancourt) v Secretary of State for the Foreign Commonwealth Office

[36]Mr. Dember conceded that where an alternative remedy is available, the Court will not generally make available the remedy of judicial review. As authority, he cited Halsbury’s Laws of England.

[37]The Commissioner and the Honourable Attorney General submitted that Mr. Dember was properly discharged pursuant to Section 7 (4) of the Act which empowers the Commissioner to discharge a non- commissioned officer or constable from the Force on three grounds. They argued that an officer can only be discharged from the Force after the Commissioner has considered and determined the specified questions or circumstances inherent in the ground upon which he intends to discharge the officer. They submitted that the present application must be dismissed for want of substance and that the Court should not grant to Mr. Dember leave to apply for judicial review.

[38]Mr. Dember noted that CPR Part 56.5 (1) and (2) provide: ‘(1) In addition to any time limit imposed by any enactment, the judge may refuse leave or to grant relief in any case which the judge considers that there has been unreasonable delay before making the application; (2) When considering whether to refuse leave or to grant relief because of delay the judge must consider whether the granting of leave or relief would be likely to – (a) be detrimental to good administration; or (b) cause substantial hardship to or substantially prejudice the rights of any person.’

[39]He remarked that he is in 2017 (the date the application was filed) seeking leave to apply for judicial review of a decision which occurred in July 2013. He conceded that on the face of it, this appears to be a four-year delay. He submitted however that he question in this case would be, whether the delay was unreasonable and sufficient to act as a bar to grant leave for judicial review.

[40]Mr. Dember contended that the evidence is that he submitted his appeal to the Commissioner who failed to lodge it with the PSBA as required section 18 (3) of the Act which mandates delivery of an appeal to the appellant’s superior officer. He submitted that having done so, he spent the lapsed time attempting to have it heard and was eventually informed that his appeal had never moved from the Commissioner’s desk until the post was eventually taken over by another individual.

[41]Mr. Dember contended that he made numerous and substantial inquiries into the status of his appeal, having communicated with various personnel as evidenced in his affidavit. He argued that it is therefore reasonable to conclude that he was fairly diligent in having his appeal heard, and it was not until it appeared to him that there was no alternative remedy, that he sought this course of action. Mr. Dember submitted that the delay was caused by the Commissioner and it would be unjust if it were deemed to operate to his prejudice.

[42]He argued that in the case of Jomo Thomas v The Comptroller of Customs

[43]Mr. Dember referred to and relied on the case of Mary Francis v Development Control Authority

[44]Relying on that articulation of the proposition, Mr. Dember submitted that based on the circumstances of this case and the diligence in seeking information as to the progress of the appeal, it cannot be said that his delay in seeking this course of redress was unreasonable. He argued that delay is to be considered in the context of each individual case. He noted that Smith J. also considered the case of Romaneta Francis v Public Utilities Authority

[45]Mr. Dember submitted that the presiding judge in the Mary Francis case also took into account issues of prejudice and the public interest in good administration, and quoted approvingly from Lord Diplock’s judgment in the case of O’Reilly v Mackman, , where he said: ‘The public interest in good administration must require that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision.’

[12]. Smith J. accepted the submission by counsel who contended that ‘… the issue of whether an applicant, for judicial review has been guilty of undue or unreasonable delay will depend on the circumstances of the particular case and decisions, of the courts merely serve as guidance.’ Smith J. opined that this was a reasonable starting point in considering the issue of delay.

[47]He argued that the delay is largely attributable to his naiveté, whereby he expected the matter to progress as it should have with the appeal being transferred by the Commissioner to the PSBA in the usual course. He contended that he sought to access this alternative remedy and as a result of lack of diligence by the Commissioner, he had no alternative but to seek relief from the Court by seeking leave to apply for judicial review. He argued that in light of those circumstances, it cannot be said that the discretionary bars of delay and alternative remedy, ought to bar him from access to his sole form of recourse.

[48]The court must be satisfied on a balance of probabilities that Mr. Dember lodged an appeal from the Commissioner’s decision to discharge him and that he did so within the timeframe stipulated by the law or within a reasonable time thereafter. The burden of proof rests on Mr. Dember throughout. In the event of delay, the court must consider whether granting relief would be inimical to good administration, cause substantial hardship or would substantially prejudice someone else’s rights. I accept that the principles highlighted by the parties are all applicable. I remain mindful that each case must be determined on its own facts.

[49]The parties have provided diametrically opposed testimony as to whether an appeal was lodged. Mr. Dember was unable to produce a signed copy of the appeal. He did not indicate under what circumstances he unearthed the unsigned copy. Such information would have assisted the court greatly. The court appreciates that records sometimes go amiss.

[50]I take into account that Mr. Dember was dismissed in 2013, over four years ago. His appeal should have been filed within 7 days or by 19 th July 2013. Before approaching the court he had an alternative remedy under the Act, which he claimed he utilized. The application hinges on that singular finding.

[51]One would imagine that if Mr. Dember filed an appeal he would have exerted considerable diligence to pursue it to finality. His account of the steps he took, paint the picture of a lackluster, almost indifferent approach. In this regard, there is not one piece of documentary evidence of diarized notes or letters sent to the Commissioner or the PSBA in the intervening period. There is no corroborative account of the efforts allegedly expended throughout the years to follow up, and no explanation as to whether legal advice was sought before 2017 and if so, why not.

[52]One would reasonably have expected that a diligent and concerned person would have taken some one or more type of the actions described or some similar steps. None of those appears to have been explored by Mr. Dember before 2017. In the absence of testimony explaining this apparent lack of ‘active and documented’ interest, I am hard-pressed to find that Mr. Dember lodged the appeal in writing as he alleged. Even if he did, he still faces the hurdle of explaining why he waited this long to seek leave to obtain judicial review.

[53]The cases cited by Mr. Dember do not assist him. In the Romaneta Francis case, the High Court of Antigua and Barbuda granted a mandamus to compel the Public Utilities Authority to install electricity to Ms. Francis’ premises, which they had refused to do for 2 years. Smith J. remarked

[54]The Jomo Thomas case can also be distinguished. There was a one year delay in which Mr. Thomas was reasonably awaiting a response from the Director General of Finance to a request to reconsider his decision. That case involved an application by Mr. Thomas to obtain an exemption on duties in respect of the importation of a motor vehicle.

[55]In the case at bar, Mr. Dember’s conduct in waiting until 2017 to seek leave to apply for judicial review is puzzling. I fail to understand why he did not aggressively pursue the appeal before the PSBA with more alacrity. Even if the court accepts his assertion that he went to the services commission and the successive Commissioners through the years, it just does not stand to reason that he would wait this long to pursue this final rung to relief. Not even Job of the Bible is reported to have had that much patience. The reasonable thing to have done was to write to the Commissioner or the PSBA by the first anniversary of his dismissal. It seems to me that the objective of his appeal was to be re-instated or be compensated. In either case, the relief is one which the normal person would wish to have sooner rather than later.

[56]In the premises, I find that his delay was excessive and unreasonable. Moreover, granting him leave at this stage could potentially lead to a situation where other similarly aggrieved police officers or applicants would approach the court at the eleventh hour to resurrect and conduct post mortem examinations of decisions made long ago. I recognize that this is permissible in appropriate cases. This is not one. Accordingly, in light of the applicable legal principles

[57]It cannot be over-emphasized that litigants and potential litigants must proceed with expedition to ventilate their claims. Failure to do so in a timely manner quite often results in them being shut out. Most areas of the law incorporate time limits for proceeding in a court of law. It behooves every resident of the State of Saint Vincent and the Grenadines to have a general idea of and to familiarize himself or herself with what is considered reasonable in such cases. ORDER

[15]that the refusal was a continuing one. He distinguished those circumstances from those which were presented to him in the Mary Francis matter. In that case, the applicant was seeking relief after 2 ½ years. Smith J. found that she failed act with urgency and that the delay was unreasonable and detrimental to good administration.

[58]It is accordingly ordered:

[59]I am grateful to counsel for their helpful submissions. Esco L. Henry HIGH COURT JUDGE By the Court Registrar

[16], Mr. Dember’s application for leave to apply for judicial review is dismissed.

[1](‘the Act’) which provides for an appeal to the PSBA. She pointed out that Mr. Dember has delayed in bringing this matter to the Court. The Commissioner agrees with those contentions.

[3]. It which states: ‘July 12, 2013 Deshurn Dember Police Constable (sic) No. 59 Calliaqua Police Station Kingstown ST. VINCENT Dear Sir, NOTICE OF DISCHARGE FROM THE POLICE FORCE Reference to my letter to you dated February 07, 2012 re Notice of Suspension. I wish to inform you, that as a result of your conviction in the Kingstown Magistrate Court on March 12, 2013 for making use of indecent language on October 29, 2011, by virtue of the Power vested in me under Section 7 (4)(a) of the police Act Chapter 391, of the Revised Edition of the Laws of St. Vincent and the Grenadines, 2009, I hereby give you notice that you are discharged as a member of the Royal St. Vincent and the Grenadines Police Force with effect from July 12, 2013. As result, you are required to hand over your kit and accoutrements to the Storekeeper, immediately. You have the right to appeal against this decision to the Public Service Board of Appeal. Yours faithfully Keith G. Miller COMMISSONER OF POLICE ‘

[4]. It states: ‘Carrierre Village, Mespo P.O th August,2013. Public Service Commission Board of Appeal, Kingstown. Dear Sir, I write to appeal a decision taken by the former Commissioner of Police, Mr. Keith Miller, against me. On July 17 th I received a letter dated 12 th July, informing me that I was being dismissed as an officer from the Royal St. Vincent and the Grenadines Police Force. The letter stated that I was being dismissed for using indecent language and I am of opinion that the punishment meted out to me for that offence is too harsh. I trust this request will be given deepest consideration. If it is necessary, I can be contacted at 527-5057. Sincerely, ________________________ Deshurn Dember’

[5]provides that a police officer who is dismissed by the Commissioner, may appeal to the PSBA within 7 days of the decision being communicated to him. It also provides that an appeal is deemed to have been made when it is delivered to the dismissed officer’s superior officer; and further that every appeal must be delivered to the Commissioner who is mandated to forward it to the PSBA.

[6]testimony. He averred that he had cause to search the records at the office of the Commissioner to see if an appeal was lodged by Deshurn Dember to the PSBA in 2013 and found none. He deposed that he was never in receipt of such an appeal and therefore could not forward such to the PSBA.

1.3 months’ notice of the Commissioner’s intention to dismiss him; and

2.an opportunity to appeal to the PSBA.

[9]He argued that an appeal is made available by virtue of section 18 of the Act. He remarked that it is unfortunate that he has been unable to produce a copy of the actual appeal that was lodged and submitted that despite this there is sufficient evidence to suggest that an appeal was indeed lodged, which to his detriment was lost along the way. He submitted that based on the time period under the Act, the possibility of another appeal is long lost to him; but it would be incorrect to say that an available alternative remedy exists.

[10]it was held that ‘while the application was filed one year after the decisions complained of by Mr. Thomas, Mr. Thomas’ evidence is that he by way of appeal requested the Director General of Finance to reconsider the application. No written response was received. Having regard to the nature of the case, I find that the grant of leave would not in any way be detrimental to good administration in this case nor would it cause substantial hardship or prejudice to the rights of any person. I find that the delay in this case is not a bar to the grant of leave.’

[11]. In that case, the Court considered the issue of delay and referenced the decision in Virgin Islands Environmental Council v Attorney General

[13], in which the court granted leave to apply for judicial review notwithstanding a two year delay.

[14][46] Mr. Dember acknowledged that it is necessary that matters have some degree of finality. However, he contended that in circumstances in which, owing to no fault of the applicant, a matter has not been determined it cannot be said that the public interest outweighs that of the person affected by the decision. He reasoned that in addition to the right of the public authority to make decisions, there also exists a corresponding responsibility to ensure that not only are its decision-making powers exercised in accordance with the law, but also that the relevant statutory procedures are followed subsequent to the exercise of power. He maintained that in the case at bar this was not done and that this contributed largely to the delay.

1.Deshurn Dember’s application for leave to apply for judicial review of the Commissioner of Police’s decision dated 12 th July 2013, discharging him from the Royal Saint Vincent and the Grenadines Force is dismissed.

2.Each party to bear his own costs.

[1]Cap. 391 of the Laws of Saint Vincent and the Grenadines, Revised Edition 2009.

[2]Civil Procedure Rules 2000 (‘CPR’), rules 56.4 – 56.5; Satnarine Sharma v Browne-Antoine [2006] UKPC 75.

[3]Filed on 2 nd June, 2016.

[4]Filed on 11 th August 2017.

[5]Section 18(2) and (3).

[6]Filed on 7 th July 2017.

[7][2001] QB 1076.

[8][1995] COD 297.

[9]Vol. 61, 2010 Ed.

[10]SVGHCV2008/331 (unreported).

[11]SLUHCV2016/0484 (unreported).

[12]BVIHCV2007/0185 (unreported).

[13]ANUHCV2006/0452 (unreported).

[14][1983] 2 AC 237 at pp. 280-281.

[15]In Mary Francis v Development Control Authority.

[16]See also Roland Browne v PSC, SLUHCVAP2010/0023 (unreported).