Andy Greene v The Commissioner of Police

JurisdictionAntigua and Barbuda
JudgeWilliams, J.
Judgment Date15 May 2024
Judgment citation (vLex)[2024] ECSC J0515-1
Docket NumberCLAIM NO.: ANUHCV2023/0335
CourtHigh Court (Antigua)
Between:
Andy Greene
Claimant
and
The Commissioner of Police
Defendant

CLAIM NO.: ANUHCV2023/0335

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Appearances:

Mr. Wayne Marsh for the Claimant

Ms. Carla Brookes-Harris for the Defendant

Williams, J.
1

The Claimant-Police Constable Andy Greene fears that he will be unlawfully dismissed from the Royal Antigua and Barbuda Police Force by the Defendant who is the Commissioner of Police. Consequently, on 21 st September 2023, the claimant commenced proceedings by Fixed Date Claim Form seeking declarations and an injunction to prevent this from happening.

2

The claimant had initially also sought an interim injunction to restrain the defendant from dismissing him from the Force. However, the parties agreed to an early trial of the claim, and this application was withdrawn. The parties by consent order filed on 21 st February 2024 agreed that no disciplinary proceedings would be undertaken against the claimant pending the determination of this claim.

Evidence
3

At this point, it is necessary to briefly outline the factual basis for the claim. The Claimant's evidence is contained in three affidavits filed on 21 st September 2023, 14 th December 2023 and 4 th March 2024 respectively.

4

The defendant's response is contained in four affidavits sworn to by Assistant Superintendent Grantley Simmons (hereafter ASP Simmons), Senior Sergeant Kenny McBurnie (hereafter Sgt. McBurnie) and Constable Kizzy-Tonge Nedd. The affidavits of ASP Simmons and Sgt. McBurnie were filed on 3 rd November 2023 whilst the affidavit of Constable Tonge-Nedd was filed on 20 th November 2023. ASP Simmons swore to a further affidavit which was filed on 4 th March 2024.

5

The defendant did not swear to an affidavit in these proceedings. This is unfortunate as many of the claimant's allegations relate to actions allegedly taken by him in his capacity of Commissioner of Police. The defendant's evidence would have been especially desirable in respect of providing details of his interactions with the claimant on the 18 th, 22 nd and 25 th of August 2023.

6

However, ASP Simmons has given evidence as to what the defendant said at these meetings, but the claimant disputes the actual meaning of the defendant's statements. It therefore would have assisted the court greatly if the defendant had given evidence not only of what he said but also of what he meant.

7

ASP Simmons in his affidavit outlines meetings between the defendant and the claimant on 22 nd and 25 th August 2023. He states that these meetings were not disciplinary in nature. According to him, “The Defendant is within his authority to inform the Claimant as to his assessment of the Claimant's performance and conduct at work based on the number of disciplinary actions on his record where he was found and pleaded guilty.” 1 ASP Simmons emphasizes that the defendant is

aware that an officer cannot be dismissed from the Force unless there is due process and adherence to the disciplinary procedures in the Police Act and Regulations
8

Sgt. McBurnie and Constable Kizzy-Tonge Nedd describe the events at the Liberta Police Station on 13 th June 2023. As these matters are the subject of disciplinary proceedings it is not appropriate for the court to make any findings of fact as to what transpired on that day especially where recollections of the events may differ.

9

The factual basis of the claim relates to the following occurrences:

a. An incident of 13 th June 2023;

b. An incident of 18 th August 2023;

c. A Meeting of 22 nd August 2023;

d. A Meeting of 25 th August 2023; and

e. A Disciplinary hearing held on 15 th February 2024.

10

Each of these incidents will now be briefly examined.

The Incident of 13 th June 2023
11

The Claimant was scheduled to report for duty at 5 p.m. on 13 th June 2023 at the Liberta Police Station. However, he reported about fifteen to twenty minutes late. Senior Sergeant Kenny McBurnie who was the officer-in-charge of the station questioned the claimant as to the reason for his lateness.

12

Sgt. McBurnie states that the claimant responded that his vehicle had broken down on the way to work. When Sgt. McBurnie pointed out that the claimant should have called to request assistance the claimant allegedly replied in a rude and intemperate manner.

13

Sgt. McBurnie then informed the claimant that he was reporting him for being late for duty and insubordination. This allegedly prompted another intemperate outburst from the claimant who then walked off. Sgt. McBurnie indicates that on 14 th June 2023, he caused a disciplinary note to be made in the station diary concerning his interaction with the claimant. It should be noted that the claimant disputes Sgt. McBurnie's version of events.

Incident of 18 th August 2023
14

On 18 th August 2023, the claimant was again on duty at the Liberta Police Station. On that day the defendant paid an unannounced visit to the station. On that occasion, the defendant was not satisfied with the manner in which the claimant had greeted him. The defendant was concerned that this reflected poor customer service on the claimant's part. The defendant seems to have expressed his dissatisfaction with the claimant in the presence of other police officers. The defendant then required the claimant to report to his office on 22 nd August 2023.

15

The claimant also alleges that on that occasion the defendant referred to a previous disciplinary charge against him in 2016 as well as Sgt. McBurnie's recent disciplinary note. 2 ASP Simmons disputes this and states that the defendant was referring to the report of adjudicated disciplinary matters for the month of June 2023. According to ASP Simmons, the claimant's name was on that report in addition to that of other persons.

Meeting of 22 nd August 2023
16

On 22 nd August 2023, the claimant attended the meeting as required. In addition to the claimant and the defendant, ASP Simmons, Sergeant M. Stewart, and Assistant Superintendent Rodney Ellis (ASP Ellis) were present.

17

At that meeting, the defendant examined the claimant's personal file and referred to previous disciplinary matters brought against him. In relation to a previous disciplinary matter involving the claimant, the Defendant reportedly said to ASP Ellis, “Ellis you normally recommend dismissal but recommended reduction in pay.”

The claimant submits that this was a directive to ASP Ellis to recommend dismissal in the event of any further disciplinary matters involving the claimant
18

In this regard, the Claimant states, “Since there was a note placed in the Liberta Station Diary by S/Sgt. McBurnie, I firmly believe that I could be charged and brought before ASP Ellis or ASP Simmons for a hearing of those charges. The statement of the Respondent was clearly a directive to both of them to recommend my dismissal from the force.” 3

19

The claimant was then requested to submit a letter to the defendant convincing him why he should remain in the Police Force. The claimant was required to submit this letter on 25 th August 2023.

Meeting of 25 th August 2023
20

On 25 th August 2023, the claimant attended a further meeting with the defendant and presented the letter which he had been previously required to write. After having the claimant read the letter out loud, the defendant expressed doubts that the claimant had written the letter himself.

21

The claimant alleges that at the conclusion of that meeting, the defendant indicated that he had not yet decided whether he would allow him to remain in the police force. He allegedly told the claimant to enjoy Police Week and that he would call the claimant back to inform him of his decision. 4 ASP Simmons who gave affidavit evidence on behalf of the defendant, neither confirms nor denies that the defendant made these alleged statements. 5

Disciplinary Hearing of 15th February 2024
22

Acting Senior Sergeant Byers-Walker was designated to investigate the disciplinary report made by Sgt. McBurnie. She completed her report on 13 th November 2023. On that day the claimant was served with disciplinary charges of being late for duty by 20 minutes and two counts of insubordination. These disciplinary offences arose out of his interaction with Sgt. Mc Burnie on 13 th June 2023.

23

On 15 th February 2024, the claimant appeared before Assistant Superintendent Jeffrey Morgan (ASP Morgan) who was appointed under the delegated powers of the defendant to convene a disciplinary tribunal to hear these charges. At that hearing the claimant pleaded not guilty to the charges

24

The hearing was adjourned to 22 nd February 2024 to facilitate disclosure on the claimant. However, by consent order filed in this matter on 21 st February 2024, it was agreed that the disciplinary proceedings would not proceed until a determination of this claim.

Relief
25

The Claimant seeks the following relief:

  • 1. A declaration that the decision of the Commissioner of Police/Respondent to instruct the Claimant to write a letter to him by Friday 25 th August 2023 convincing him why the Claimant should be allowed to remain in the Royal Police Force of Antigua and Barbuda is void and unlawful and of no legal effect.

  • 2. A declaration that the decision of the Respondent to summon the Claimant to a meeting at his office to state reasons why he should not be terminated from the police force is unlawful.

  • 3. A declaration that the actions of the Respondent when he demanded that the Claimant write a letter to him convincing him why the Claimant not be dismissed from the force amounted to a trial of the Claimant for an alleged disciplinary offence when a discipline was written in the Liberta Police station diary accusing the Claimant of having committed certain disciplinary offences on 13 th June 2023.

  • 4. A declaration that the Respondent's actions at the meetings held on 22 nd August 2023...

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