The Judicial Committee of the Privy Council Decisions

Bhagwandeen v Attorney General of Trinidad and Tobago (Trinidad and Tobago) [2004] UKPC 21 (17 May 2004)

Privy Council Appeal No. 45 of 2003

Mohanlal Bhagwandeen Appellant

v.

The Attorney General of Trinidad and Tobago 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 17th May 2004

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Present at the hearing:-

Lord Bingham of Cornhill

Lord Hope of Craighead

Lord Rodger of Earlsferry

Baroness Hale of Richmond

Lord Carswell

[Delivered by Lord Carswell]

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1. The appellant Mohanlal Bhagwandeen is a police officer in the Police Service of Trinidad and Tobago, which he joined in 1977. The issue in the present appeal is whether the Commissioner of Police (the Commissioner) had treated him unequally and/or unfairly and had discriminated against him in refusing to recommend him for promotion from the rank of constable to that of corporal, contrary to section 4(b) and (d) of the Constitution.
2. The genesis of the long-drawn out and unhappy sequence of events involving the appellant and his career was in an incident on 19 March 1994, when he arrested one Brendon Ayers in respect of an alleged rape. Following this incident the appellant and his wife Anjanie Bhagwandeen were charged with assault upon Ayers. The charge was dismissed by the magistrates' court on 30 June 1995, no evidence having been offered. On 12 March 1996 the appellant and his wife were arrested and charged on indictment with offences arising out of the same incident. The appellant was charged with common assault, both were charged with assault occasioning actual bodily harm, while his wife was charged with attempting to pervert the course of justice by making a false report of rape and robbery against Ayers. The case was adjourned on a number of occasions over the next two years and eventually on 13 May 1998, when the appellant was in court but the prosecution representatives and witnesses did not appear, the charges were dismissed by the magistrate for want of prosecution.
3. The appellant had on 13 February 1997 been suspended from duty, pursuant to the Police Service Commission Regulations, because these charges were pending, and following their dismissal he was reinstated on 30 September 1998.
4. The same charges were again brought against the appellant and his wife by informations laid on 12 July 2000 and the appellant was arrested and released on bail. The Board was informed by counsel that he was again suspended from duty in November 2000. He brought an application for judicial review of the decision to relay the criminal charges, which was heard on 28 February 2001, but judgment has not yet been given, in consequence of which the appellant has not been tried on the criminal charges and he remains on suspension. Their Lordships were not given any reasons for this remarkably long delay, and in the absence of an explanation they will not offer any comment on it, save to say that they trust that the issues of the appellant's criminal liability and his suspension from duty will be speedily resolved after the disposition of the present proceedings.
5. The appellant submitted that the revival of the criminal charges was evidence of the malice and ill-will of the Commissioner of Police and relied on it as an element in claiming that there was bias amounting to mala fides on his part. The circumstances of the failure on the part of the prosecution to appear on 13 May 1998 were investigated by the Commissioner, who stated in his affidavit sworn on 23 October 2000 that the charges were relaid on the instructions of the Director of Public Prosecutions because it was considered that there were suspicious circumstances surrounding the dismissal of the charges in 1998. Their Lordships have examined the evidence contained in the affidavits and exhibits, but for reasons which will appear they do not find it necessary to reach a conclusion about the dismissal and relaying of the charges.
6. The appellant in 1984 passed the examination qualifying him for promotion to the rank of corporal. As required by the regulations, the Commissioner, when there are vacancies for promotion of police officers, submits to the Police Service Commission a list of officers whom he considers suitable for promotion, together with a further list of those who are not being considered for promotion but who have served longer than those being recommended.
7. Up to 1999 the appellant had not been promoted from constable to corporal. He received a letter dated 19 May 1999 from the Commissioner, which informed him that there were vacancies for 40 corporals, but that –

"You have been considered but not recommended at this point in time for promotion to the next higher rank."

The appellant's attorney wrote to the Commissioner on 18 June 1999, asking for the reasons why he had not been promoted. The Commissioner replied on 5 July 1999, stating:

"… because of your long period of suspension from duty you have been considered but not found suitable to be recommended at this point in time, for promotion to the next higher rank."

8. The appellant on 6 August 1999 brought a constitutional motion in the High Court, in which he claimed a declaration that the Commissioner had discriminated against him by failing and/or refusing to recommend him for promotion because of his suspension from duty, contrary to section 4(b) and (d) of the Constitution of Trinidad and Tobago, together with an order directing the Commissioner to reconsider his promotional prospects. In paragraph 8 of his replying affidavit sworn on 28 December 1999 the Commissioner stated:

"The reason why the Applicant was not recommended for promotion was not because he had been suspended per se, but rather because there were no performance appraisal reports for the Applicant for the period under review. There was therefore, nothing upon which I could make a proper and/or fair decision to recommend the Applicant for promotion. This is what I meant in my letter to the Applicant dated July 5, 1999 when I stated that he was not found to be suitable to be recommended at that point in time for promotion because of his long period of suspension from duty. In other words, it was not because of the actual fact of the suspension but rather, by reason of his absence from duty as a result of his being on suspension, there was no material upon which the Applicant could have been recommended."

9. The appellant then on 11 January 2000 commenced proceedings for judicial review, seeking to set aside the Commissioner's decision not to recommend him for promotion and various declarations. In order to demonstrate that he had been discriminated against he named a number of officers who had been promoted after periods of suspension. The evidence filed on behalf of the Commissioner showed that all but one of these officers had been reinstated for a materially longer time than the appellant before they were promoted, and it was clear that they were not similarly circumstanced to him. The appellant's counsel conceded in the Court of Appeal that the only serviceable comparator was Fitzgerald George, who was promoted from corporal to sergeant some seven months and twenty five days after reinstatement (closely comparable with the period of seven months and nineteen days between the appellant's reinstatement and the letter refusing him promotion).
10. The two matters were heard together by Narine J, who in a written judgment given on 31 January 2001 found in favour of the appellant on both the constitutional motion and the judicial review application. He made a declaration that his right to equality of treatment by a public authority had been infringed, directed the Commissioner to reconsider his promotional prospects and awarded him the sum of $7500 for breach of his constitutional rights under section 4(d) of the Constitution.
11. The Commissioner appealed to the Court of Appeal against the judge's decision on the constitutional motion, but not against that given on the application for judicial review. In a written judgment given on 30 September 2002, Kangaloo JA, with whom the other members of the court agreed, held that the judge had wrongly allowed the motion and the court allowed the Commissioner's appeal, with costs above and below. Mr Bhagwandeen also cross-appealed, on the ground that the judge had not made a finding on whether the Commissioner was actuated by mala fides or hostility in his dealings with him. The court allowed the cross-appeal, but with no order as to costs.
12. The issues on which the decision of the Court of Appeal turned were, first, whether the appellant was similarly circumstanced to other officers promoted after periods of suspension and, secondly, whether the Commissioner had been actuated by mala fides or hostility in deciding on the appellant's promotion.
13. On the first issue Kangaloo JA held that Fitzgerald George and the appellant were not similarly circumstanced, being, as he described them, "horses of different colours". On the second issue he held that the explanations given by the Commissioner were sufficient to disprove on a balance of probability the allegation of mala fides or hostility.
14. The appellant relied upon section 4(b) and (d) of the Constitution, by which are recognised –

"(b) the right of the individual to equality before the law and the protection of the law

…

(d) the right of the individual to equality of treatment from any public authority in the exercise of its functions."

The appellant had access to a court of justice to determine his rights and liabilities, by way of the judicial review proceedings, and it was not contended that he was deprived of the protection of the law. The case turned on whether he received equality of treatment.

15. Mr Dingemans QC for the respondent submitted as a preliminary argument that the appellant was not entitled to a constitutional remedy, since he had sufficient redress through resort to the ordinary law of judicial review. In so submitting he relied on the statement of Lord Diplock in Harrikissoon v Attorney General of Trinidad and Tobago [1980] AC 265, where he said at page 268:

"The notion that whenever there is a failure by an organ of government or a public authority or public officer to comply with the law this necessarily entails the contravention of some human right or fundamental freedom guaranteed to individuals by Chapter 1 of the Constitution is fallacious. The right to apply to the High Court under section 6(1) [the equivalent of the present section 14] of the Constitution for redress when any human right or fundamental freedom is or is likely to be contravened, is an important safeguard of those rights and freedoms; but its value will be diminished if it is allowed to be misused as a general substitute for the normal procedures for invoking judicial control of administrative action. In an originating application to the High Court under s 6(1), the mere allegation that a human right or fundamental freedom has been or is likely to be contravened is not of itself sufficient to entitle the applicant to invoke the jurisdiction of the court under the subsection if it is apparent that the allegation is frivolous or vexatious or an abuse of the process of the court as being made solely for the purpose of avoiding the necessity of applying in the normal way for the appropriate judicial remedy for unlawful administrative action which involves no contravention of any human right or fundamental freedom."

16. Dr Ramsahoye SC for the appellant advanced two arguments by way of riposte, first, that the invocation of his constitutional rights was the only way to surmount the obstacle placed in the way of the appellant's reinstatement constituted by the failure of the court to give judgment on his application for judicial review of the Commissioner's decision to relay the criminal charges in 2000 and, secondly, that this was the only avenue by which he could advance a claim to damages.
17. The issue of the appellant's entitlement to a constitutional remedy was not argued in or adverted to by the courts below, and their Lordships would be reluctant to decide it at this stage. They would confine themselves to observing that there may be substance in the appellant's second argument. If the appellant is not entitled to claim damages on an application for judicial review which involves a claim that a public authority has deprived him of a constitutional right, then there is a viable argument that he was justified in bringing a constitutional motion in order to advance that claim, which should not be regarded as frivolous, vexatious or an abuse of the process of the court. This would constitute a valid ground of distinction from the decision in Jaroo v Attorney General of Trinidad and Tobago [2002] 1 AC 871, in which the appellant had a sufficient claim in detinue. It could be said to constitute a bona fide resort to rights under the Constitution, which, as Lord Steyn said in Ahnee v Director of Public Prosecutions [1999] 2 AC 294 at 307, ought not to be discouraged. Their Lordships are accordingly willing, without deciding the point finally, to proceed on the assumption that the appellant is entitled to advance his claim for damages by way of the constitutional motion the subject of the appeal.
18. A claimant who alleges inequality of treatment or its synonym discrimination must ordinarily establish that he has been or would be treated differently from some other similarly circumstanced person or persons, described by Lord Hutton in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] 2 All ER 26 at paragraph 71 as actual or hypothetical comparators. The phrase which is common to the anti-discrimination provisions in the legislation of the United Kingdom is that the comparison must be such that the relevant circumstances in the one case are the same, or not materially different, in the other. The appellant in the present case relied on an actual comparator, Sergeant Fitzgerald George, who was promoted some seven and three quarter months after his reinstatement following a long period of suspension. That interval of time is the only real similarity between their cases. In his affidavit sworn on 28 December 1999 the Commissioner compared the history and record of the appellant and Sergeant George in some detail, which it is not necessary to set out in detail in this judgment. Their Lordships are satisfied on this evidence, which was not controverted, that the Court of Appeal was correct in rejecting Sergeant George as a true comparator. Since the appellant had to concede that none of the other officers to whom he referred in his affidavit sworn on 5 August 1999 as having been promoted following periods of suspension was similarly circumstanced to himself, he is left without a foundation for his claim of unequal treatment.
19. That conclusion is sufficient to determine the appeal in favour of the respondent and it is not necessary for the Board to decide the second issue, that of mala fides. Since it was dealt with in some detail in the judgment of Kangaloo JA, however, they propose to add a few observations on this topic.
20. The proposition that to establish a case of discrimination by a public official it is necessary to prove mala fides on his part appears in several cases in the courts of Trinidad and Tobago, notably the judgment at first instance in Smith v LJ Williams Ltd (1980) 32 WIR 395 and that of the Court of Appeal in Attorney General v KC Confectionery Ltd (1985) 34 WIR 387. In the former case Bernard J considered Indian and United States authorities and stated at page 411:

"In so far as official acts are concerned, the nub of the matter is, in my view, that the section both guarantees and is intended to ensure that where parties are similarly placed under the law they are entitled to like treatment under that law. However, there is a presumption of regularity in the acts and conducts of officials. Consequently, the burden of proof is upon the aggrieved party to establish mala fides in the administration of the enactment."

In Attorney General v KC Confectionery Ltd the Court of Appeal adopted a similar approach, accepting as correct the propositions that there is a presumption of regularity in the acts of officials and that it is necessary to show a clear and intentional discrimination when a claimant alleges unequal treatment at the hands of a public official or authority. Bernard JA, as he had then become, said at page 415:

"Having held that the presumption of regularity in the acts of public officials exists in this jurisdiction, I entertain the view that it can only be discharged by proof of mala fides on a balance of probability."

It is to be noted, however, that at first instance in that case Deyalsingh J reasoned cogently at pages 15 to 20 of his judgment (HCA No 1279 of 1982), which was reversed by the Court of Appeal, that both the presumption of regularity and the necessity for proof of mala fides rested on unsatisfactory foundations and should not be accepted as correct.

21. Their Lordships would require detailed argument on the issue before attempting to express any definite conclusion on the correctness of the propositions accepted by the Court of Appeal on this issue and would wish to give fuller consideration to the Indian authorities on which the Court of Appeal relied. Subject to that, however, they are inclined to the view that there may have been a degree of confusion between two distinct concepts, the presumption of regularity and the necessity for proof of deliberate intention to discriminate in a claim of inequality of treatment.
22. The presumption of regularity comes into play in this context when there is no evidence either way whether a public authority or official has taken into account the correct considerations in reaching an administrative decision. In such case the decider is entitled to the benefit of the presumption of regularity and is not obliged to adduce evidence to establish that he took only the correct factors into account. In consequence, in the absence of contrary evidence the application for judicial review will fail.
23. The need for proof of deliberate intention to discriminate is quite a different question. The Court of Appeal of Trinidad and Tobago accepted in Attorney General v KC Confectionery Ltd that a party complaining of discrimination must prove, in the same terms as it was formulated in the US authorities, "intentional and purposeful" acts of unequal treatment. Persaud JA said at page 403 that the complainant must show a clear and intentional discrimination, "which in turn connotes mala fides". That this is not required in discrimination cases in the United Kingdom was established by the House of Lords in James v Eastleigh Borough Council [1990] 2 AC 751, when the majority preferred what Lord Lowry termed the causative to the subjective construction and held that discrimination could be established even though the respondent council had not intended to discriminate between men and women. Accordingly the law of Trinidad and Tobago relating to discrimination by public officials may require further consideration in the light of these observations.
24. In the light of the conclusions reached in paragraph 18 and the reservations expressed in paragraph 23 above it is unnecessary for their Lordships to consider whether on the facts of this case mala fides has been established. They would, however, share the unwillingness of the Court of Appeal to regard a case of mala fides or hostile acts as having been made out where a complainant has not sought to cross-examine the party against whom the allegation is made.
25. For the reasons contained in this judgment their Lordships accordingly dismiss the appeal with costs.