The Judicial Committee of the Privy Council Decisions

 


Charles v Judicial and Legal Service Commission & Anor (Trinidad And Tobago) [2002] UKPC 34 (20 May 2002)

Privy Council Appeal No. 26 of 2001

Herbert Charles Appellant

v.

(1) The Judicial and Legal Service Commission and

(2) The Disciplinary Tribunal Respondents

FROM

THE COURT OF APPEAL OF TRINIDAD

AND TOBAGO

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REASONS FOR DECISION OF THE LORDS OF THE

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL

OF THE 20th May 2002, Delivered the 19th June 2002

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Present at the hearing:-

Lord Bingham of Cornhill

Lord Steyn

Lord Hope of Craighead

Lord Scott of Foscote

The Rt. Hon. Justice Tipping

[Delivered by The Rt. Hon. Justice Tipping]

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Introduction
1. At the conclusion of the argument their Lordships announced that the appeal would be dismissed for reasons to be given later. Their Lordships now give their reasons.
The issue in brief
2. The case concerns the effect of failures to observe time limits laid down by regulations dealing with discipline and misconduct in the public service. The appellant was at all material times the Deputy Chief Magistrate. Following complaints about his conduct in that capacity, the Chief Magistrate reported the matter to the Director of Personnel Administration of the first respondent, the Judicial and Legal Service Commission, pursuant to regulation 90(1) of the Public Service Commission Regulations (“the regulations”). Under the same regulation the Chief Magistrate appointed as investigating officer Master Morris-Alleyne, a Master of the High Court. She was one day late in giving the appellant the required written notice inviting him to give an explanation concerning the matters under investigation. Regulation 90(3) requires that step to be taken within three days of the investigating officer’s appointment, but the Master took four days. Regulation 90(4) obliged the investigating officer to require persons with direct knowledge of the matters under investigation to make written statements within seven days, for the information of the Commission. Only oral statements were obtained and not within seven days. It is only the time point which was raised on the appeal. Regulation 90(5) required the investigating officer, with all reasonable despatch, but not later than 21 days from the date of her appointment to forward to the Commission, for its information, all original statements and all relevant documents together with her own report. In the present case, for reasons their Lordships will mention below, the Master did not submit her report within this timeframe. No extension of time was sought. For this reason their Lordships do not consider it necessary to discuss regulation 90(5)(a) introduced in mid 1998 providing for extensions of time. Under regulation 90(6) the Commission was obliged to consider the report of the investigating officer and any explanation given by the person under investigation and then to decide whether that person should be charged. The Commission did this and decided to charge the appellant. He responded by seeking judicial review of that decision on the basis that the Commission had no power to make it, primarily because of the lateness of the investigating officer’s report. His application was declined by Kangaloo J in the High Court, whose decision was upheld by the Court of Appeal (Sharma, Permanand and Warner JJA) in a judgment delivered by Warner JA. The appellant brought the matter on further appeal to their Lordships’ Board.
3. Two broad questions were raised. The first concerned what effect a breach of the time limits in regulation 90 had on subsequent proceedings of the Commission. The second concerned what effect section 129(3) of the Constitution had on the court’s ability to consider failures to comply with those time limits. Section 129(3) was in force at the time the Commission made its decision to charge the appellant but has since been repealed. Their Lordships’ answer to the first question determined the appeal and it was therefore unnecessary for them to examine the second.
Regulation 90
4. Before describing the facts more fully it is helpful to set out the terms of regulation 90 as it stood at the time the matters of complaint about the appellant arose.

“90(1) Where a report or allegation of indiscipline or misconduct is received, other than a report or allegation of indiscipline or misconduct to which regulation 85 applies, the Permanent Secretary or Head of Department shall report the matter to the Director [(of Personnel Administration)] for the information of the Commission and concurrently warn the officer in writing of the allegation of indiscipline or misconduct and shall forthwith refer the matter to an investigating officer appointed by him.

(2) The investigating officer shall be appointed from the Ministry to which the officer is assigned and shall hold an office in a grade higher than that of the officer against whom the allegation has been made.

(3) The investigating officer shall, within three days of his appointment, give the officer a written notice specifying the time, not exceeding seven days from the date of the receipt of such notice, within which he may, in writing, give an explanation concerning the report or allegation to the investigating officer.

(4) The investigating officer shall require those persons who have direct knowledge of the alleged indiscipline or misconduct to make written statements within seven days for the information of the Commission.

(5) The investigating officer shall, with all possible despatch but not later than twenty one days from the date of his appointment, forward to the Commission, for the information of the Commission, the original statements and all relevant documents, together with his own report on the particular act.

(6) The Commission after considering the report of the investigating officer and any explanation given under sub-regulation (3), shall decide whether the officer should be charged with an offence and if the Commission decides that the officer should be so charged, the Commission shall, as soon as possible, cause the officer to be informed in writing of the charge together with such particulars as will leave the officer under no misapprehension as to the precise nature of the allegations on which the charge is based.

(7) Where in the explanations given under sub-regulation (3), the officer makes an admission of guilt, the Commission may determine the penalty to be awarded without further enquiry

(8) Where the Commission, under section 127 of the Constitution, has delegated to an officer its duty of deciding under sub-regulation (6) whether an officer shall be charged and of charging such officer with an offence, the reference in sub-regulations (4), (5), (6) and (7) to the Commission shall be construed as a reference to that officer.”

The relevant factual background
5. Their Lordships will now describe the facts of the case in more detail but only to the extent necessary to deal with the issue which determined the appeal.
6. On 23rd March 1998 Ms Baptiste, a legal officer in the Office of the Director of Public Prosecutions, supplied to the Deputy Director a memorandum concerning the conduct of the appellant. The precise details of her concerns are of no present relevance. The matter was referred to the Chief Magistrate who by memorandum of 8th April 1998, which attached a copy of Ms Baptiste’s memorandum, sought the appellant’s comments and explanation. The appellant responded by memorandum of 17th April 1998. On 18th May the Chief Magistrate informed the Director of Personnel Administration about the matter and appointed Master Morris-Alleyne as investigating officer. She received notice of her appointment on 22nd May and by letter of 26th May sought the appellant’s explanation. This step was one day outside the period of time allowed by regulation 90(3), as already mentioned. The appellant responded on 2nd June 1998, within the seven days allowed by regulation 90(3). The Master’s acquisition of the statements envisaged by regulation 90(4) exceeded the seven days allowed, albeit the Master did her best to fulfil her statutory duty. Indeed it could be said that her requirement was made within time. It was only compliance which exceeded the seven days. It is a moot point whether there was a breach of this subregulation at all, at least with regard to the persons to whom the Master wrote on 28th May 1998 (see para. 6 of her affidavit). But this aspect does not require further examination. It is common ground that when the Master submitted her report as investigating officer on 13th September 1998 she was in breach of the time requirement of 21 days in regulation 90(5). Her explanation for the delay was, in short, that she was waiting for a reply from the Chief Magistrate to a letter she had written to him on 10th June 1998. She also described other difficulties which she had encountered in conducting her investigation, the details of which it is not necessary to describe. The report was submitted some two months outside the 21 days envisaged by regulation 90(5) but in their Lordships’ view the reasons for the delay are quite understandable in the circumstances.
7. By letter of 29th March 1999 the Commission advised the appellant under regulation 90(6) that it was preferring two charges against him and they were set out in the letter. Further steps were taken to establish a disciplinary tribunal but the appellant then filed his application for judicial review on 24th May 1999. The decisions of the High Court and the Court of Appeal were based largely on the so-called “ouster” provisions of section 129(3) of the Constitution. This seems to have followed from the way in which the cases were presented on either side and in particular by the Commission. But, as noted above, their Lordships consider that the appellant’s case fails before the ouster provision is reached.
Appellant’s submissions
8. Before their Lordships’ Board Dr Ramsahoye, for the appellant, contended that the time limits in regulation 90 were mandatory. Their breach in any respect therefore, so he argued, rendered all subsequent steps null and void. This submission was modified during the course of argument to the extent that counsel was constrained to accept that what he called “de minimis” breaches would not have that effect. A little later he suggested that only “material” breaches would nullify what followed. However framed, the appellant’s argument sought to rely on a strict dichotomy between mandatory and directory provisions, with breach of the former leading to the nullity of subsequent steps. Counsel argued that each of the time provisions in issue was mandatory and their breach rendered all that followed null and void. That approach does not in their Lordships’ view accord with the relevant principles.
The relevant law
9. The leading authority is the decision of the Privy Council in Wang v Commissioner of Inland Revenue [1994] 1 WLR 1286. At 1296 Lord Slynn of Hadley, who delivered the judgment of their Lordships, cited from the speech of Lord Hailsham of St Marylebone LC in London & Clydeside Estates Ltd v Aberdeen District Council [1980] 1 WLR 182 in which his Lordship had discouraged the use in this field of rigid legal classifications like mandatory and directory. Lord Slynn then said:

“… their Lordships consider that when a question like the present one arises - an alleged failure to comply with a time provision - it is simpler and better to avoid these two words ‘mandatory’ and ‘directory’ and to ask two questions. The first is whether the legislature intended the person making the determination to comply with the time provision, whether a fixed time or a reasonable time. Secondly, if so, did the legislature intend that a failure to comply with such a time provision would deprive the decision maker of jurisdiction and render any decision which he purported to make null and void?”

Some five years earlier the New Zealand Court of Appeal had taken much the same approach in New Zealand Institute of Agriculture Science Inc v Ellesmere County [1976] 1 NZLR 630. Cooke J (now Lord Cooke of Thorndon) speaking for the court said at 636:

“Whether non-compliance with a procedural requirement is fatal turns less on attaching a perhaps indefinite label to that requirement than on considering its place in the scheme of the Act or regulations and the degree and seriousness of the non-compliance.”

10. The approach evidenced by these cases was a development of earlier authority and was not in itself new. It can be traced back at least as far as the judgment of Lord Campbell, sitting as Lord Chancellor in Liverpool Borough Bank v Turner (1860) 29 LJ (Ch) 827; 2 DeGF & J 502, in which he said, in relation to the issue of implied nullification for disobedience of a statute, that the duty of the courts was “to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed”. And in the well known case of Howard v Bodington (1877) 2 PD 203 at 210 Lord Penzance observed that he was not sure that the language of mandatory and directory was the most fortunate language that could have been adopted to express the idea that it was intended to convey. He continued:

“Still, whatever the language, the idea is a perfectly distinct one. There may be many provisions in Acts of Parliament which, although they are not strictly obeyed, yet do not appear to the Court to be of that material importance to the subject-matter to which they refer, as that the legislature could have intended that the non-observance of them should be followed by a total failure of the whole proceedings. On the other hand, there are some provisions in respect of which the Court would take an opposite view, and would feel that they are matters which must be strictly obeyed, otherwise the whole proceedings that subsequently follow must come to an end.”

And a little later at 211, after citing from Liverpool Borough Bank v Turner (supra), Lord Penzance said:

“… in each case you must look to the subject-matter; consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory.”

It is quite clear that in context his Lordship was there using the words imperative and directory as shorthand for whether or not non-compliance with a particular provision should lead to a failure of the whole proceedings.
11. Their Lordships return to Wang’s case. The answer to the first question posed there must be that the framers of regulation 90, in this instance effectively the Commission itself (see the relevant notice in the Gazette of 23rd February 1984 in which the Commission adopted the regulations), must have intended those involved to comply with the relevant time provisions. The answer to the second question involves an examination of (i) the role of regulation 90, and its individual parts, in the overall regulatory scheme, (ii) the purpose and policy of the time provisions, and (iii) in the end a judgment as to whether those who promulgated the regulations intended that breach of a time limit should deprive the Commission of jurisdiction, thus rendering any later purported decision or determination null and void.
Discussion
12. The terms of regulation 90 have already been set out. At the outset their Lordships observe that it seems highly unlikely that the Commission can have intended that breaches of time limits at the investigation stage would inevitably prevent it from discharging its public function and duty of inquiring into and, if appropriate, prosecuting relevant indiscipline or misconduct. A self imposed fetter of such a kind on the discharge of an important public function would seem inimical to the whole purpose of the investigation and disciplinary regime. The proposition that this was intended is also hard to reconcile with the then existence of section 129(3) precluding inquiry into procedural irregularities not of a fundamental kind (see Thomas v Attorney-General of Trinidad and Tobago [1982] AC 113 PC).
13. The same picture emerges when reference is made to the text of regulation 90 and subsequent regulations. Regulations 90(1), 90(4) and 90(5) all use the phrase “for the information of the Commission”, thereby underlining that the inquiry function of the investigating officer is to gather material to enable the Commission to discharge its task of deciding whether the officer under investigation should be charged. Although the time limits in regulation 90 are incidentally of benefit to that officer, their Lordships’ view them as designed primarily to expedite the investigation process for the benefit of the public interest in having matters of indiscipline or misconduct effectively investigated and dealt with. This makes it unlikely that breach of a time limit was intended to lead to the frustration of that ultimate purpose.
14. Regulation 90(6) lays down no time limit for the Commission to make the decision whether to charge the officer. The words “as soon as possible” presuppose a decision to charge has already been made.
15. The same position is apparent when consideration is given to regulations 91 and the following regulations which deal with the establishment of disciplinary tribunals and matters associated with their proceedings. No time limit is prescribed in regulation 95 for the appointment by the Commission of a disciplinary tribunal. One would have thought that if the time limits in regulation 90 were designed primarily in the interests of the officer under investigation, to the extent of precluding further steps on breach, there would be corresponding time limits in regulation 95 and its cognate provisions. Their Lordships do not overlook the disciplinary tribunal’s obligation under regulation 96(1) to find the facts and make its report “as soon as possible”, but that again shows the contrast with the lack of time constraints applying to the Commission’s role under both regulation 90(6) and regulation 95(1).
16. It is helpful to recall that in London & Clydesdale Estates Lord Hailsham at 189 spoke of the courts having to decide in a particular case what should be the legal consequence of non-compliance with statutory or regulatory provisions like those in issue in the present case. The choice open to the court is not a stark choice, as his Lordship put it. The issue is seldom black and white. His Lordship spoke of a spectrum of possibilities:

“At one end of this spectrum there may be cases in which a fundamental obligation may have been so outrageously and flagrantly ignored or defied that the subject may safely ignore what has been done and treat it as having no legal consequences upon himself. In such a case if the defaulting authority seeks to rely on its action it may be that the subject is entitled to use the defect in procedure simply as a shield or defence without having taken any positive action of his own. At the other end of the spectrum the defect in procedure may be so nugatory or trivial that the authority can safely proceed without remedial action, confident that, if the subject is so misguided as to rely on the fault, the courts will decline to listen to his complaint.”

17. His Lordship added that most cases will fall somewhere in the middle and will be for the courts to assess. If a complaint is made about the non-fulfilment of a time limit the giving of relief will usually be discretionary. This discretionary element to which Lord Hailsham referred underlines the fact that problems arising from breach of time limits and other like procedural flaws are not generally susceptible of rigid classification or black and white a priori rules. With this in mind their Lordships note that in the present case the delays were in good faith, they were not lengthy and they were entirely understandable. The appellant suffered no material prejudice; no fair trial considerations were or could have been raised, and no fundamental human rights are in issue.
18. Bearing in mind the relevant aspects of regulation 90 and its regulatory environment, and the other relevant circumstances of the case, including the lack of significant impact of the time defaults on the appellant, their Lordships came to the clear view that the regulations cannot have been framed with the intention that breaches of the kind in issue would deprive the Commission of jurisdiction to act as it thought fit on the investigating officer’s report and thereby fulfil its public responsibilities.
Conclusion
19. For these reasons, which are essentially those of the courts below, albeit somewhat more expansively expressed, their Lordships agreed with Mr Guthrie’s submissions for the Commission and dismissed the appeal. The appellant must pay the respondents’ costs.