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Legitimate expectation and the INDECOM ruling
BY Victor Barrett
Tuesday, August 13, 2013
Read more: http://www.jamaicaobserver.com/colum...#ixzz2brVSkSOO
Legitimate expectation is a well-known public law headline which continues to be explored. The principle of legitimate expectation is essentially a feature of the duty upon public authorities to act fairly and not abuse their powers.
Fairness is a creature of particular sets of circumstances, and these are as infinitely variable as human beings and indeed human nature itself. The principle of legitimate expectation is used to support a balance between the achievement of the administrator's objective and, insofar as possible, protection of the individual's expectation. By using the rule of law as a means of administration, equilibrium is achieved between the public interest and the individual's expectation.
The basic features of the doctrine of legitimate expectation are well known. Where a public authority represents -- either by way of an express promise or implicitly by way of a past practice -- that it will conduct itself in a particular way, that representation may give rise to a legitimate expectation on the part of the representee that the public authority will not frustrate that expectation.
With respect to members of the security forces, there has been a legitimate expectation based on practice, that a member would not be so charged in the absence of a ruling from the office of the Director of Public Prosecutions (DPP). Rightly so, the claimants have a valid argument. There are various legal explanations to the doctrine, especially with regards to the UK jurisprudence. However, right here in the Caribbean, we have examples that could be used as guidelines when dealing with this topic.
The leading case in Barbados where the issue of legitimate expectation was given some amount of coverage was the "celebrated" decision in Leacock v Attorney General. In Leacock, the applicant was a member of the Royal Barbados Police Force. He sought leave to attend the Hugh Wooding Law School after successfully completing his Bachelor of Laws (LLB)degree. It was the usual practice for the police force to grant study leave to police officers who had applied. The police commissioner refused the application and highlighted several issues why leave was not granted.
The applicant argued that he had a legitimate expectation that he would have been granted study leave because a practice had grown in the police force over many years, that officers who were successful in the LLB were granted study leave to pursue the Legal Education Certificate at Hugh Wooding Law School. Sir David Simmons, CJ, accepted the claimant's arguments. He expressed that the applicant had no legal enforceable right to study leave, but by virtue of the practice, he had a reasonable expectation that he would be granted study leave, and there was no overriding consideration to justify a departure from what had been the previous practice, and to resile from that practice would be a breach of the applicant's legitimate expectation. The court posited that the merits of the case will often involve policy considerations but that such considerations are not for the courts.
The first consideration to observe in this case and in the case of the security forces (INDECOM ruling) is the source of the legitimate expectation itself. In Leacock, the court accepted that there was an 'established practice' to rely on -- the same way the claimants grounded their claim in the INDECOM matter (established practice). Alternatively, a sounder jurisprudential basis for the legitimate expectation in the INDECOM matter was that the practice by the office of DPP, referencing ruling and action toward the security forces, amounted to an established practice. There were no overriding public interest considerations which sought the deviaton from that practice, except that INDECOM wanted the power to arrest.
The constitutional court granted INDECOM the power to arrest inter alia. It is therefore arguable that, while this power has been granted to INDECOM, the office of the DPP, by virtue of section 94(1) and (3) of the Constitution, can take over, continue and discontinue any criminal proceedings. The critical issue is what will be the posturing of INDECOM if the office of the DPP exercises its discretion. Will there be a public squabble between the two offices, will the security forces be used as pawns in the chess game? These questions are left unanswered and only time will tell.
Having established the source of the legitimate expectation, the next question is what should the court do. In Leacock the question was asked whether to frustrate the legitimate expectation is so unfair that to take a new and different course will amount to an abuse of power. On the facts of Leacock, the frustration of the applicant's legitimate expectation will be unfair because he will lose the benefit of continuing with his legal education. In the final analysis, whatever the posturing among INDECOM, DPP and the security forces, it is highly probable that there will be confusion, and this confusion will have deleterious effects on the psyche of members of the security forces. This sort of decision may in effect cause discontent and may seek to demoralise members of the security forces, which will ultimately affect their contractual obligations to the public.
The court has a balancing role to play, whether to frustrate the legitimate expectation of the members of the security forces or the give INDECOM power. What will be the effect on the decision on the overall security of the nation is a vital question to be answered. Will the police and its auxiliaries become more cautious, will they attend to the needs of our citizens in fear of prosecution and confusion between two state entities? Will the police have a "no care" attitude? These are crucial questions and the constitutional court should look at the far-reaching effects of this decision against giving power to another state entity. Why, with a population of under three million people, should the need arise for two prosecuting agencies?
While the concept of INDECOM is plausible, it is my view that that entity should be a subgroup of the office of the DPP and the ultimate authority vested with the DPP.
Victor Barrett is a Jamaican studying law at the University of the West Indies, Cave Hill Campus.
Read more: http://www.jamaicaobserver.com/colum...#ixzz2brV9oDpt
BY Victor Barrett
Tuesday, August 13, 2013
Read more: http://www.jamaicaobserver.com/colum...#ixzz2brVSkSOO
Legitimate expectation is a well-known public law headline which continues to be explored. The principle of legitimate expectation is essentially a feature of the duty upon public authorities to act fairly and not abuse their powers.
Fairness is a creature of particular sets of circumstances, and these are as infinitely variable as human beings and indeed human nature itself. The principle of legitimate expectation is used to support a balance between the achievement of the administrator's objective and, insofar as possible, protection of the individual's expectation. By using the rule of law as a means of administration, equilibrium is achieved between the public interest and the individual's expectation.
The basic features of the doctrine of legitimate expectation are well known. Where a public authority represents -- either by way of an express promise or implicitly by way of a past practice -- that it will conduct itself in a particular way, that representation may give rise to a legitimate expectation on the part of the representee that the public authority will not frustrate that expectation.
With respect to members of the security forces, there has been a legitimate expectation based on practice, that a member would not be so charged in the absence of a ruling from the office of the Director of Public Prosecutions (DPP). Rightly so, the claimants have a valid argument. There are various legal explanations to the doctrine, especially with regards to the UK jurisprudence. However, right here in the Caribbean, we have examples that could be used as guidelines when dealing with this topic.
The leading case in Barbados where the issue of legitimate expectation was given some amount of coverage was the "celebrated" decision in Leacock v Attorney General. In Leacock, the applicant was a member of the Royal Barbados Police Force. He sought leave to attend the Hugh Wooding Law School after successfully completing his Bachelor of Laws (LLB)degree. It was the usual practice for the police force to grant study leave to police officers who had applied. The police commissioner refused the application and highlighted several issues why leave was not granted.
The applicant argued that he had a legitimate expectation that he would have been granted study leave because a practice had grown in the police force over many years, that officers who were successful in the LLB were granted study leave to pursue the Legal Education Certificate at Hugh Wooding Law School. Sir David Simmons, CJ, accepted the claimant's arguments. He expressed that the applicant had no legal enforceable right to study leave, but by virtue of the practice, he had a reasonable expectation that he would be granted study leave, and there was no overriding consideration to justify a departure from what had been the previous practice, and to resile from that practice would be a breach of the applicant's legitimate expectation. The court posited that the merits of the case will often involve policy considerations but that such considerations are not for the courts.
The first consideration to observe in this case and in the case of the security forces (INDECOM ruling) is the source of the legitimate expectation itself. In Leacock, the court accepted that there was an 'established practice' to rely on -- the same way the claimants grounded their claim in the INDECOM matter (established practice). Alternatively, a sounder jurisprudential basis for the legitimate expectation in the INDECOM matter was that the practice by the office of DPP, referencing ruling and action toward the security forces, amounted to an established practice. There were no overriding public interest considerations which sought the deviaton from that practice, except that INDECOM wanted the power to arrest.
The constitutional court granted INDECOM the power to arrest inter alia. It is therefore arguable that, while this power has been granted to INDECOM, the office of the DPP, by virtue of section 94(1) and (3) of the Constitution, can take over, continue and discontinue any criminal proceedings. The critical issue is what will be the posturing of INDECOM if the office of the DPP exercises its discretion. Will there be a public squabble between the two offices, will the security forces be used as pawns in the chess game? These questions are left unanswered and only time will tell.
Having established the source of the legitimate expectation, the next question is what should the court do. In Leacock the question was asked whether to frustrate the legitimate expectation is so unfair that to take a new and different course will amount to an abuse of power. On the facts of Leacock, the frustration of the applicant's legitimate expectation will be unfair because he will lose the benefit of continuing with his legal education. In the final analysis, whatever the posturing among INDECOM, DPP and the security forces, it is highly probable that there will be confusion, and this confusion will have deleterious effects on the psyche of members of the security forces. This sort of decision may in effect cause discontent and may seek to demoralise members of the security forces, which will ultimately affect their contractual obligations to the public.
The court has a balancing role to play, whether to frustrate the legitimate expectation of the members of the security forces or the give INDECOM power. What will be the effect on the decision on the overall security of the nation is a vital question to be answered. Will the police and its auxiliaries become more cautious, will they attend to the needs of our citizens in fear of prosecution and confusion between two state entities? Will the police have a "no care" attitude? These are crucial questions and the constitutional court should look at the far-reaching effects of this decision against giving power to another state entity. Why, with a population of under three million people, should the need arise for two prosecuting agencies?
While the concept of INDECOM is plausible, it is my view that that entity should be a subgroup of the office of the DPP and the ultimate authority vested with the DPP.
Victor Barrett is a Jamaican studying law at the University of the West Indies, Cave Hill Campus.
Read more: http://www.jamaicaobserver.com/colum...#ixzz2brV9oDpt
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