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Naraynsingh v Commissioner of Police (Trinidad and Tobago) [2003] UKPC 20 (20 April 2004)

Privy Council Appeal No. 42 of 2003

Barl Naraynsingh Appellant

The Commissioner of Police Respondent

FROM

THE COURT OF APPEAL OF

TRINIDAD AND TOBAGO

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 20th April 2004

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Present at the hearing:-

Lord Nicholls of Birkenhead

Lord Hoffmann

Lord Hope of Craighead

Lord Scott of Foscote

Lord Brown of Eaton-under-Heywood

[Delivered by Lord Brown of Eaton-under-Heywood]

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The appellant is a man of good character now aged 85, the manager of two petrol filling stations in Trinidad, each with an annual turnover of over $7 million. From 1961, until its revocation in 1998, he was the holder of a firearm user's licence under which he was authorised to keep, carry and use for personal protection, initially a shotgun and later, following a variation of the licence at his own request in 1991, a Taurus .38 revolver and ammunition.

The licence was revoked on 28 December 1998 by the respondent Commissioner of Police (the Commissioner) pursuant to section 21 of the (Trinidad and Tobago) Firearms Act 1970 as amended. That is the decision impugned in these proceedings. It is convenient at once to set out section 21 in full whilst noting that the Commissioner was in fact acting here under para.(d):

"21. The Commissioner of Police may revoke any licence, certificate or permit –

(a) if, in the case of the holder of a Firearm Dealer's Licence or a Gunsmith's Licence, he is convicted of an offence against this Act or of an offence against the Customs Ordinance;

(b) if he is satisfied that the holder thereof is of intemperate habits or of unsound mind, or is otherwise unfit to be entrusted with such a firearm or ammunition as may be mentioned in the licence, certificate or permit;

(c) for non-payment of fees;

(d) in any other case, if he thinks fit."

The essential basis of the Commissioner's decision was that during the execution of a civil debt at the appellant's home on 7 March 1996 a second firearm (this one unlicensed) was allegedly found on the premises.

By judicial review proceedings commenced on 17 March 1999 the appellant challenged the Commissioner's decision on various grounds including in particular that it was reached unfairly and without any sufficient investigation having been made into the circumstances of the alleged finding of the second firearm, an allegation strenuously denied by the appellant from the outset.

The challenge failed before Tam J on 27 March 2000 and again on appeal before the Court of Appeal of Trinidad and Tobago (Nelson, Lucky and Kangaloo JJA) on 14 November 2002. The appellant's further appeal to the Board is brought by leave of the Court of Appeal.

The appellant's arguments before the Board focused almost entirely upon the fairness and adequacy of the process by which the impugned decision was arrived at. It will therefore be unnecessary for their Lordships to address a number of other issues which had been raised before the Court of Appeal.

With this brief introduction it now becomes necessary to set out the relevant facts so far as these are known to the Board. As stated, the second firearm was allegedly found on the appellant's premises on 7 March 1996. Whilst he and his wife were at home that day no fewer than 17 people arrived to execute process in respect of an order of the Petty Civil Court - to enforce, that is, a relatively modest civil debt. Included within the party, none of whom were known to the appellant or his wife, were a police officer, PC Legendre, and a Marshall. During the course of the levy, whilst the appellant was outside his house with PC Legendre, a member of the party approached them and produced a .22 revolver and ammunition (46 live rounds and one spent round), alleging that he had found these in the house. The appellant immediately denied that the firearm or ammunition were his or that they could have been found on his premises. His denial notwithstanding, the appellant and his wife were both charged with being in possession of an unlicensed firearm and a quantity of ammunition. In addition, ten days later, on 17 March 1996, the police required the appellant to hand over his licensed firearm, the .38 Taurus revolver, together with 17 rounds of ammunition, for "safekeeping" by them.

Nineteen months then passed until 14 October 1997 when the charges against the appellant and his wife, due for hearing that day at the Magistrates Court, were dismissed by the magistrate because no one appeared to prosecute them. Neither the complainant, PC Legendre, who had retired from the police force on 28 December 1996, nor any witness, had attended court.

Following the dismissal of the charges against him, the appellant wrote to the Commissioner on 1 November 1997 seeking the return of his licensed firearm and ammunition. There being no reply, he repeated his request on 19 January 1998. Six months later the Commissioner responded by letter dated 21 July 1998:

"It has been drawn to my attention that during the execution of a levy from the Petty Civil Court at your home on March 7 1996, a .22 revolver and a quantity of ammunition were found, which resulted in charges of possession of firearm and ammunition being preferred against you.

Notwithstanding that the matters were dismissed by the court due to the non-appearance of the complainant, the fact remains that the firearm and ammunition were found in your possession.

In view of the above, I am extending an opportunity to you to address me in writing within 14 days of receipt of this letter on matters raised above."

As will shortly appear, the Commissioner had by then obtained a report into the matter from a senior superintendent.

The appellant's solicitor responded by letter dated 25 August 1998 in the following terms:

"The incident referred to ... arose on the occasion of a levy at my client's residence by reason whereof there were numerous persons in and upon the premises who were unknown to my client. It was during the levy, whilst my client was outside the residence in the presence of a police officer, that a man, whom my client assumed was part of the party executing the levy, approached my client and the said officer and presented a firearm which he alleged that he had found on the premises.

My client maintains that said firearm does not belong to him, nor was he aware that such a firearm was on his premises. It was my client's hope he would have the opportunity in the Magistrates Court to determine from the said man by means of cross-examination the exact circumstances of the alleged discovery as he is convinced that same was not discovered on his premises. Regrettably this opportunity never arose as the matter was dismissed by the learned magistrate for reasons attributable to the prosecution."

Four months later, by letter dated 28 December 1998, the Commissioner acknowledged the solicitor's letter but revoked the appellant's licence, stating that:

"[It] is cancelled for the reason outlined in my letter to you dated July 21, 1998."

The appellant's affidavit in support of his judicial review challenge described the circumstances in which the unlicensed second firearm had been produced consistently with the account earlier given in his solicitor's letter of 25 August 1998.

The Commissioner's affidavit in response dated 13 July 1999 stated that he understood the appellant to be saying that the second firearm "was not discovered on his premises (and probably was brought into his premises by a member of the levy party who wanted to frame him)" and continued:

"I found no suggestion of a reason why a member of the levy party, unfamiliar to the applicant, would 'plant' a firearm on his premises. I chose to adopt the opinion of Constable Legendre who, on 7th March, 1996 had decided on the basis of what had transpired on that day to charge the then 76 year old applicant for the offence of possession of a firearm without the requisite user's licence. I adopted Constable Legendre's opinion as expressed in his decision to charge, against the background of my own experience which has taught me that the response 'I do not know how that got there' is a standard response from persons in whose premises prohibited items are found."

Earlier in his affidavit the Commissioner had stated that, following his receipt of the appellant's original letter of 12 November 1997 seeking the return of his licensed firearm, he had requested a report on the matter from Sr. Supt. Christopher. It is necessary to set out that report in full:

"Commissioner of Police:

Mr Barl Naraynsingh who resides at 56 Chaconia Drive, Edinburgh Gardens, Chaguanas is the holder of Firearm User's Licence 2730/91 for a Taurus, .38 Special Revolver, Serial Number LE 2654.

On 7 March, 1996, No. 8397 Constable Legendre (retired 28-12-96) accompanied a Marshall from Port-of-Spain High Court to the home of Barl Naraynsingh at 1, Edinburgh Gardens, Chaguanas and executed a Levy from the Petty Civil Court Action against him.

During the execution Constable Legendre found on the premises a .22 revolver and forty-six (46) live and one (1) spent round of ammunition. Mr Naraynsingh and his wife, Sylvia Naraynsingh were arrested and subsequently charged for (1) Possession of a firearm and (2) Possession of ammunition (46 live and 1 spent round).

Mr Naraynsingh firearm one (1) Taurus revolver .38 Special serial number LE 2654 with seventeen (17) rounds .38 Special ammunition and Firearm User's Licence No. 2730/91 were also seized and lodged at Chaguanas Police Station as property number 343/98.

On 27 October, 1997, Mr Naraynsingh appeared before Chaguanas Magistrate's Court on 27th October, 1997 where both charges preferred against him were dismissed on the grounds –

(1) No appearances of complainant (who retired on 28-12-96);

(2) No appearance of witnesses.

In the circumstances outlined I await your directions in this matter.

Signed: Christopher S/Supt.

Snr Superintendent

CENTRAL DIVISION"

Those, then, are the only facts before the Board and, indeed, the only facts known to the Commissioner when he revoked the appellant's licence. He appears never to have followed up any aspect of Mr Christopher's report. Although in the course of the report Mr Christopher says that "During the execution Constable Legendre found on the premises [the unlicensed second revolver and ammunition]", this can mean only that these items were produced to the officer as described by the appellant, not that the officer personally found them. That, certainly, is the basis on which both courts below dealt with this case and, indeed, the assumption which underlies the Commissioner's reasoning set out in his affidavit (see para 13 above). If PC Legendre had himself discovered the second firearm, there could be no question of a "plant" by "a member of the levy party" and nor would the Commissioner have been referring to the officer's "opinion" – on the basis of which he decided to charge the appellant – namely, the officer's own judgment that the person producing the weapon had indeed found it, rather than planted it. It is, however, entirely unclear how Mr Christopher obtained such information as he had. No statement appears ever to have been taken from PC Legendre nor the person who allegedly found the second firearm nor, indeed, anyone else in the large levy party. The circumstances in which PC Legendre failed to attend court to prosecute the case also remain wholly unexplained except only insofar as (a) the Commissioner deposes that "Constable Legendre did not have instructions not to appear at this matter", and (b) Mr Christopher's report records that the officer had retired on 28 December 1996.

So much for the facts. The question for the Board's determination is whether the Commissioner acted fairly in those circumstances in reaching his conclusion that the appellant's licence should be revoked. Could he properly "think [it] fit" to revoke the licence without making any further enquiry into the matter and without giving the appellant any further or better opportunity of contesting the allegation that a second firearm had indeed been found at his house rather than, as he himself was alleging, been planted there? As for the demands of fairness in any particular case, their Lordships, not for the first time, are assisted by the following passage from Lord Mustill's speech in R v Secretary of State for the Home Secretary, ex parte Doody [1994] 1 AC 531, 560:

"What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer."

Clearly the Commissioner was required to act fairly in the exercise of the administrative power conferred on him by section 21. As for the statutory context within which this discretionary power falls to be exercised, it is noteworthy that, unlike the position in the United Kingdom, no right of appeal lies to the Court against any adverse decision - compare section 44 of the Firearms Act 1968 as amended.

The appellant submits that in the circumstances of the present case the Commissioner had no alternative but to hold some form of inquiry, an oral hearing at which the appellant could have confronted the alleged finder of the second firearm, in particular given that this opportunity had been lost to him by the prosecution's non-attendance before the magistrate.

Notwithstanding the absence of any right of appeal from the Commissioner's decision, their Lordships would unhesitatingly reject this submission. Rather they would accept in this regard the correctness of two earlier decisions of the courts of Trinidad and Tobago concerning the exercise of this section 21 (d) power of revocation of a firearm user's licence: Burroughs v Katwaroo (1985) 40 WIR 287, CA, and Globe Detective and Protective Agency Ltd v Commissioner of Police (an unreported first instance decision dated 11 June 1997). The Commissioner, in short, is not required to convene an oral hearing before exercising this power: he can adopt an exclusively written procedure.

That is not to say, however, that the procedure adopted in the present case, and in particular the perfunctory nature of the Commissioner's own inquiry into the facts, satisfied the requirements of fairness. Their Lordships note that this alternative argument is not one which appears to have been advanced before the Court of Appeal. Instead it seems to have been suggested that on the material before him the Commissioner could not logically conclude that the unlicensed weapon was found rather than planted on the appellant's premises. That argument the Court of Appeal not surprisingly rejected:

"It appears from the respondent's affidavit therefore that the logic which operated in the mind of the respondent in respect of the allegation that the firearm and ammunition were found on the appellant's premises, is that since there was no suggestion of a reason why a member of the party levying execution, all of whom were unfamiliar to the appellant, would 'plant' a firearm on the appellant's premises, he chose to prefer the contention of Constable Legendre that the firearm was so found.

To this Court, that logic appears to be sound. The appellant apparently did not know any of the members of the party who were present and carrying out the business of the Petty Civil Court. Why would anyone of them want to frame the appellant? If the appellant in his response made even the slightest suggestion of impropriety on the part of any of the members of the party, then the respondent without more, would not have been entitled to act on the allegation of Constable Legendre. But, however, Legendre being for all intents and purposes, disinterested in the appellant's affairs and there not having been advanced by the appellant any reason whatsoever, when given the opportunity why Legendre should not be believed, it was in this Court's view open to the respondent to conclude that Legendre's allegation was logically probative."

The force of that reasoning is readily apparent. But was the Commissioner entitled to reject the appellant's allegation of a "plant" without more simply on the basis of the material before him? In their Lordships' opinion he was not. Substantially more in the way of investigation was required than was undertaken here. Improbable though it was that a member of the levy party unknown to the appellant would plant a weapon in his premises, it was also far from clear why the appellant for his part would want to keep a second firearm at home when he already had a licensed firearm there, and indeed why he would keep it in a place where it could be found during the levy process whereas his licensed firearm was securely locked away in compliance with the licence conditions. To this day nothing has been ascertained about precisely where and in what circumstances and by whom the second firearm and ammunition were allegedly found and as to whether anyone else was said to have been present at the time of the finding. All that is known is that the unlicensed items were presented to the appellant and PC Legendre outside the premises and that the appellant immediately denied all knowledge of them. Further inquiries plainly could and should have been made. They should have been made, moreover, long before PC Legendre retired. After all, the police had already by then taken the appellant's licensed firearm into their possession even though his licence was not in the event to be revoked for a further two and three-quarter years.

Not having made such further inquiries, all that the Commissioner could put by way of "the gist of the case which [the appellant had] to answer" (Doody) was that the unlicensed items "were found in your possession" (Commissioner's letter of 21 July 1998 set out in para 9 above). All, therefore, that the appellant could say in response when afforded the opportunity to make representations was that it cannot have been so: "He is convinced that the same was not discovered on his premises" (his solicitor's letter of 25 August 1998). Who knows what other and more telling responses might have been open to him had a properly detailed account of the alleged finding been put to him? And who knows what view might have been taken of the probative value of the Senior Superintendent's report had it not been confined, as it was, to the barest of accusations?

Their Lordships do not say that it will always be necessary for the Commissioner to ascertain more about the circumstances of whatever it is which inclines him to revoke a licence than was ascertained here. Sometimes further information may simply not be available, or the facts may be plain enough. But where, as here, further information obviously was available, and where there are a number of puzzling features of the case (not least why so many people should have attended the appellant's home to enforce a small debt), then a fair procedure demanded that further inquiries be made, particularly having regard to the abandonment of the criminal prosecution.

Their Lordships accordingly allow the appeal, quash the Commissioner's decision to revoke the appellant's licence, grant the appellant leave to apply to the judge at first instance for whatever consequential relief he may still seek and order the Commissioner to pay the appellant's costs, both before the Board and in the lower courts.