Trinity Term
[2016] UKPC 23
Privy Council Appeal
No 0092 of 2014
JUDGMENT
The Superintendent of Prisons and another (Appellants)
v Hamilton (Respondent) (Anguilla)
From the Court of Appeal
of the Eastern Caribbean Supreme Court (Anguilla)
before
Lord Mance
Lord Kerr
Lord Clarke
Lord Carnwath
Lord Hughes
JUDGMENT GIVEN ON
27 July 2016
Heard on 5 July 2016
|
Appellants
Rupert
T Jones (Attorney General)
Oliver Powell
Mary Haskins
(Instructed by the
Attorney General’s Chambers)
|
|
Respondent
Tana’ania
Small-Davis
Kerith T Kentish
(Instructed by
Joyce Kentish and Associates)
|
LORD HUGHES:
1.
The question in this appeal concerns the proper construction of section
7(2) of the Code of Discipline for Prison Officers in Anguilla, and in
particular the scope of the power of the Prison Superintendent to refer upwards
to the Governor charges which are brought against a prison officer.
2.
The Code of Discipline (“the Code”) is given effect by section 41 and the
Schedule to the Prison Regulations of Anguilla, which are in turn made under
the Prison Act, Chapter P75-1. By section 1(1) of the Code it is binding on all
officers, who must conform to it. The Code then provides for disciplinary offences.
Section 1(2) creates a residual or general offence of failure to conform to the
Code. Then section 2 creates specific disciplinary offences in subsections
which run from (a) to (p), and, in most of these, the different forms of the
offence which are covered are listed in sub-subsections. So, for example,
discreditable conduct is made an offence under section 2(a), and different
forms of it are dealt with in sub-subsections (i) to (v), which concern
disorderly behaviour, use of intoxicants or tobacco, bad language, assault on
another officer and being unfit through drink when on duty.
3.
Sections 3 to 15 of the Code set out the procedure to be followed when
complaint is made of an offence. For present purposes what matters is that
after the charges have been reduced to writing and served on the accused
officer, the initial responsibility for hearing the case is laid upon the
Superintendent of Prisons by section 5:
“(1) The Superintendent shall,
as soon as possible, hear the case and shall take or cause to be taken a full
record of the proceedings, and the witnesses and shall sign such parts of the
record as comprise evidence given by them, and the accused officer shall be
shown the full record and sign it.”
4.
The critical section for present purposes is section 7, which includes
provision for possible referral of the charge(s) upward to the Governor. It
says:
“(1) The Superintendent may
dismiss any charge after hearing the evidence.
(2) The Superintendent may,
after hearing the evidence, refer any charge to the Governor and, unless he
dismisses it, shall so refer a charge under section 1(2) or any provision of
section 2 of this Code, other than the following sections -
2(a)(i), (iii), (b), (c), (d),
(h)(ii), (l)(i), (m) or (n).
(3) Where the Superintendent
refers a charge to the Governor, he shall inform the accused Officer.
(4) Where the Superintendent
does not refer a charge to the Governor, he shall, unless he dismisses it,
either -
(a) caution the accused
Officer; or
(b) make one of the
following disciplinary awards -
(i) admonition,
(ii) reprimand, or
(iii) severe reprimand.”
5.
The present respondent, Mr Hamilton, was a serving prison officer with
the rank of deputy superintendent. He faced a total of nine disciplinary
charges laid under the Code. All but one were laid under section 2(d)(i):
neglect, without good and sufficient cause, promptly and diligently to perform
his duty. The exception was laid under section 2(c): disobedience to orders.
The Superintendent dismissed one charge (No 8). He referred six of the others
(Nos 1, 2, 5-7 & 9 - all laid under section 2(d)(i)) up to the Governor,
where one or more hearings ensued before a person nominated by the Governor for
the purpose. When the outcome of those hearings was that the Governor dismissed
him, Mr Hamilton brought the present proceedings to challenge the power of the
Superintendent to refer these charges up. It was and remains his contention
that section 7 gave the Superintendent no power to refer up charges laid under
the subsections or sub-subsections of the Code which are listed in section
7(2). Everything which happened after the referral up was accordingly, in his
submission, ultra vires and of no effect.
6.
This contention succeeded in the High Court. The Court of Appeal agreed
and dismissed the Superintendent’s appeal. The Superintendent appeals further
to Her Majesty.
7.
It will be seen that subsection 7(2) concludes with a list of charges
for which a differential provision is made. The listed charges are:
Under 2(a)(i):
discreditable conduct in the form of acting in a disorderly manner or any
manner prejudicial to discipline or likely to bring discredit on the Service;
Under 2(a)(iii): using, whilst
on duty, obscene, abusive or insulting language to another member of the
Service;
Under 2(b): insubordinate
conduct towards an officer whom it was his duty to obey;
Under 2(c): failing without
good and sufficient cause to carry out a lawful order;
Under 2(d): neglect of duty
(i) generally, (ii) by carelessness or neglect contributing to the escape of a
prisoner or (iii) contributing by carelessness or neglect to the occurrence of
loss damage or injury to any person or property;
Under 2(h)(ii): using obscene
insulting or abusive language to a prisoner;
Under 2(l)(i): deliberately
acting in a manner calculated to provoke a prisoner;
Under 2(m): absence without
leave or lateness for duty;
Under 2(n): (i) wilful or
negligent damage to or loss of clothing or equipment provided to him, or (ii)
neglecting to report any damage to, or loss of, the same.
In the present case, the charges which the Superintendent
referred up were all listed charges, all being laid under section 2(d)(i)
(neglect of duty).
8.
The essential contention made for Mr Hamilton is that section 7(2) must
be construed as meaning that:
(a)
the Superintendent must refer up charges other than the
listed ones, but
(b)
he may not refer up the listed charges.
9.
Conversely, the argument of the Superintendent, and of the
Attorney-General, is that section 7(2) means that:
(i)
the Superintendent may refer up any charge, but
(ii)
he must refer up non-listed charges.
10.
At first instance, the judge held that section 7(2) conferred a
discretion on the Superintendent as to referral. She appears to have held that
there were no charges where the Superintendent was bound to refer
up. But whether she did so or not, she held that the purpose of the
specification of the listed charges was to exclude them from any power to
refer. She reached this conclusion in large part on the basis that the listed
charges were, in general terms at least, the less serious amongst the full
range of possible offences.
11.
In the Court of Appeal Mr Hamilton succeeded for different reasons. That
court held that section 7(2) divided the range of charges into those where the
Superintendent must refer (the non-listed ones) and those where he could
not refer (the listed ones).
12.
It remains part of Mr Hamilton’s argument that the listed offences are
the less serious. Accordingly, he contended, the scheme of the Code is that
such lesser offences were appropriate to the lesser disciplinary sentences
available to the Superintendent, whilst the more serious non-listed charges
were apt to be met by the greater sentencing powers of the Governor.
13.
It is certainly correct that the Code equips the Governor with greater
sentencing powers than it does the Superintendent. The Superintendent’s powers
are caution, admonition, reprimand or severe reprimand, as stated in section
7(4), set out above. The Governor, if a charge comes to him, has the greater
powers set out in section 12(1), which range from dismissal or requirement to
resign, down via reduction in rank and forfeiture of increments to probation
for up to 12 months. However, the Governor also has, by section 12(1)(g) the
same powers as the Superintendent is given by section 7(4), so that he is not
limited to his more severe sanctions.
14.
Up to a point it is true that the listed charges are likely to comprise
the less serious offences. But it would be dangerous to derive any firm
conclusion as to the correct construction of section 7(2) from this. Whilst
more serious offences such as assault (section 2(a)(iv)), false statements (section
2(e)), financial misconduct (section 2(f)), improper relations with prisoners
(most of section 2(h)), trafficking (section 2(j)) and corrupt practice (section
2(k)) are outside the listed charges, it is obvious that the circumstances of a
listed charge may vary greatly in gravity. Repeated contumacious disobedience
to orders (a listed charge) might in some cases be a good deal more serious
than a single instance of assault on another officer (non-listed). The same
might well be true of repeated neglect of duty (listed), which was, in effect,
the allegation in the present case. Thus the selection of the listed offences
on the basis of relative likely gravity is equally explicable on the
grounds that for those listed offences it was thought unnecessary to make
referral up mandatory, and it was felt sufficient to leave a discretionary
power to refer if the circumstances of the offence(s) warranted it. Accordingly
the relative gravity of the charges is equally consistent with the
Superintendent’s construction of section 7(2).
15.
Questions of construction begin with the ordinary and grammatical
meaning of the words used. As everyone agrees, section 7(2) has two operative
parts, providing for different rules for two classes of charge. Essentially the
question is whether the closing words of section 7(2) - “other than the following
sections [and the numbered list]” govern the whole of section 7(2) or the
second part dealing with mandatory referral up. The Board entertains not the
slightest doubt that on its face section 7(2) has the meaning for which the
Superintendent contends (see para 9 above). The contrary contention, of Mr
Hamilton, requires a quite unnatural reading of the words. It requires the
section to be read, so far as concerns the listed offences, as if it said:
“The Superintendent may, after
hearing the evidence, refer any charge to the Governor … other than the
following sections [and then the numbered list].”
This is, however, simply ungrammatical. “Any charge … other
than the following sections” is contrasting “charge” with “section”. If section
7(2) were to mean what Mr Hamilton contends for, it would have contained at
least the word “under”, so as to read “any charge ... other than under
the following sections …”. Conversely, the syntax is perfectly properly aligned
with the Superintendent’s proposed construction. The part of the section which
catalogues the numbered listed charges relates to the immediately preceding
words, which is what one would expect. It thus reads “… and, unless he
dismisses it, shall so refer a charge under section 1(2) or any provision of section
2 of this Code, other than the following sections …”.
16.
This is also consistent with other provisions of the Code. Section 11
sets out the powers of the Governor, other than as to sentence, when a charge
is referred to him. Section 11(2) provides:
“(2) Where the Superintendent
has referred to the Governor a charge that he had power to deal with by
himself, the Governor may remit the case to the Superintendent to be dealt with
by him.”
Thus this subsection contemplates a situation where the
Superintendent has referred a charge up, but the Governor disagrees and thinks
it could and should be dealt with by the Superintendent. Because it
contemplates a situation in which the Superintendent has referred up a charge
which he could have dealt with himself (“that he had power to deal with by
himself”), it is simply inconsistent with Mr Hamilton’s suggested construction
of section 7(2). If Mr Hamilton were right about section 7(2) there could be no
charge which the Superintendent could have dealt with by himself but which he
had nevertheless chosen to refer up. So far as the Superintendent is concerned,
on Mr Hamilton’s construction, charges are binary. Either they cannot be
referred to the Governor or they have to be.
17.
For Mr Hamilton, Ms Small-Davis valiantly contended that section 11(2)
might be meant to deal with the case of the listed charge, where, as she
contended, the Superintendent had no power to refer up, if he had erroneously
purported to do so. But if that were so the rules would not give the Governor a
mere power to remit; they would have to make remission mandatory, for the referral
would have been unlawful. Nor would section 11(2) speak of a charge which the
Superintendent “had power to deal with by himself” for, if Mr Hamilton’s
construction were correct, he would have had no choice but to deal with it
himself.
18.
Ms Small-Davis also urged on the Board the contention that no safe
conclusion could be reached upon the ordinary meaning and usage of the words of
section 7(2) because it is, so she submitted, ungrammatical also on the
Superintendent’s construction. That is because, says she, the saving “unless he
dismisses it” is absent from the first part of section 7(2). If it be the case,
she says, that the first part of the section confers a discretion to refer, it
must plainly have been meant that such discretion could only be exercised if
the Superintendent did not dismiss the charge. It is plainly correct that if
the Superintendent dismisses a charge there can be no question of reference up,
for there would then be nothing for the Governor to do. But the power to
dismiss any charge is expressly provided for by section 7(1). It makes
perfectly good sense for it not to be repeated in the first part of section
7(2), but for it to be emphasised in the second part in relation to charges
which it is mandatory to refer up. Otherwise, the argument might be anticipated
that a mandatory referral up precluded dismissal by the Superintendent.
19.
Next, Ms Small-Davis contended that the absence from the Code of any rubric
setting out how any discretion to refer is to be exercised is a clear
indication that no such discretion exists. One would expect, she suggests, at
the least a provision such as “if in all the circumstances he considers his
powers of disposal are inadequate” if a discretion has been conferred. There
are certainly places in comparable legislation where a discretion is regulated
by some such rule setting out the basis on which it is to be exercised. One of
them is in these very Prison Regulations, where section 34(1) deals with
offences by prisoners. There, the Superintendent has power to refer a charge to
the Visiting Committee if he decides that, if the prisoner were to be found
guilty, his powers of punishment would be inadequate. But the absence of such a
rule explaining the basis on which a discretion is to be exercised is not, in
the circumstances of this case, in any way inconsistent with the discretion
existing. Without any such provision, the discretion has to be exercised on a
rational basis and in accordance with the purposes of the Code and the Prison
Regulations. It makes perfectly good sense for the framer of the Code to have
left the circumstances for referral undefined, taking the view that the
possible circumstances justifying it cannot exhaustively be anticipated. They
would not necessarily in any event be limited to inadequate sentencing powers. Another
example of a proper exercise of a discretion to refer (if it exists) would, as
Ms Small-Davis realistically accepted, be the case where the Superintendent was
himself a key witness to the alleged misbehaviour by the officer. There may
well be others, for example the disabling ill-health of the Superintendent. The
possible advantages and disadvantages of an attempt at a prescriptive set of factors
on which the discretion is to be exercised cannot begin to prevail over the
clear language of section 7(2).
20.
Ms Small-Davis contended, next, that unless section 7(2) were to be
construed as she claims it should be there would be an unacceptable risk of
breaches of natural justice occurring. This she says might happen because the
accused officer would, on the Superintendent’s construction, be exposed to the
risk of referral up, and consequent possibility of greater punishment, without
being put on specific notice of it. Mr Hamilton’s claim in the present case has
never been put on any basis other than ultra vires. There is simply no evidence
what notice or want of notice there was as to the possibility of referral up. The
Board entertains some doubt that any specific notice would be necessary, since
section 7(2) itself constitutes the very plain warning of the risk, but that
point is not before it for decision. What is clear is that whether any such
notice is required or not cannot govern the meaning of section 7(2), which is
clear in what it says and without doubt confers a discretion to refer the
listed charges.
21.
Lastly Ms Small-Davis boldly contended that in the absence of Mr
Hamilton’s construction, section 7(2) would amount to an absurdity, because it
would mean that the Superintendent could simply refer up every charge which
came before him, except those he dismissed. There is no such absurdity in the
Superintendent’s construction. Given that there is a discretion, it must be exercised
on ordinary principles. It must actually be exercised, and a blanket
determination to refer up everything would be a denial of its existence. And it
must be exercised rationally and in conformity with the purposes of the Code
and the Regulations in which it is contained.
22.
There being no persuasive argument to the contrary, it is appropriate to
return to the words used by the drafter of section 7(2). In the end, if there
is ever a statutory word which normally constitutes a reliable indication of
the creation of a discretion it is the word “may”. Where “may” is contrasted in
the same subsection with “shall”, its meaning is, if anything, even clearer. The
alternative construction put upon the section by Mr Hamilton involves reading
“may … refer any charge” in the first part, as “may not refer” the listed
charges. That is simply an impossible construction. The sense of section 7(2)
is not only apparent from its wording; it also achieves a perfectly rational
common sense result. The potentially more serious (non-listed) charges have to
be referred to the Governor unless the Superintendent dismisses them on his consideration
of the evidence. The potentially less serious (listed) charges can be dealt
with by the Superintendent without referral, but if he thinks that there is a
good reason for referral up, he is entitled to take that course. Circumstances
justifying referral up would include such gravity of alleged offence(s) that
his powers of punishment were likely to be inadequate, but are not confined to
such a consideration.
23.
For those reasons, the Board will humbly advise Her Majesty that the
appeal by the Superintendent and Attorney General ought to be allowed. Mr
Hamilton’s claims ought to be dismissed. Unless reasoned written argument to
the contrary is received within 14 days of the delivery of this judgment, an
order that the respondent pay the costs of the appellant ought to follow.
