A High Court judge has quashed a decision by the Defence Force to discharge four officer cadets in 2018, arising out of an incident that resulted in them being charged with the rape of a fellow trainee officer.
The four former officer cadets are before the court on the rape charge.
They challenged their dismissal on several grounds and were successful in only one of them with Justice Eleanor Donaldson-Honeywell last Thursday. The judge quashed the discharge decision and sent it back to the Defence Force to follow proper procedures of natural justice.
In her findings, the judge held that the four ought to have been given notice of the reasons for the intention to discharge them and given an opportunity to make representations.
She said there was no evidence on how the discretion to discharge was exercised, also ruling that the principles of natural justice were not applied.
The four were discharged on June 29, 2018, after they were convicted, at a summary military trial, of offences of disobeying commands prohibiting entry to an out of bounds area, disobedience to standing orders by consuming alcohol and fraternising with a female officer cadet, and colluding to conceal the events that took place on October 29, 2016.
Donaldson-Honeywell said there were grounds provided for their conviction for unmilitary-like behaviour, based on their admissions in their statements and reports, but there they were not given an opportunity to be heard on the discharge decision.
In sending back the issue, the judge declined to award compensation or reinstatement, saying it should be considered by the Defence Force in the event, after following the proper process to discharge any or all of them, is found to be merited.
In their judicial review claim, the four alleged procedural unfairness, breach of natural justice and inequality of treatment, among other complaints.
They said their discharge arose from an incident, which allegedly took place on October 29, 2016, in an out-of-bounds area called the Crow’s Nest, in which seven male officer cadets and one female cadet engaged in activities such as drinking alcohol.
According to their claim, the investigations into the incident began in February 2017, and they were interviewed and asked to submit reports. They did so and on March 16, 2017, they were charged with offences of disobeying commands prohibiting entry to an out of bounds area, disobedience to standing orders by consuming alcohol and fraternizing with a female officer cadet and colluding to conceal the events that took place on October 29, 2016.
They pleaded guilty and the sanction imposed on them was that they were to be admonished.
Shortly after the Defence Force charges were dealt with, they were charged by police with sexual offences against the female cadet, which are still before the courts.
In March 2017, they were told they would be discharged from the TTDF on the basis of a “zero-tolerance policy” in relation to members charged with criminal offences, and their date of discharge was June 29, 2018.
Donaldson-Honeywell said it was recognised that the TTDF student standing orders gave the authority for a recommendation where any cadet is found to have committed breaches, but there was no indication who the recommendation should be made to.
“There is no provision that the decision-makers having received such a recommendation are permitted to merely rubber-stamp it and implement the discharge,” she said.
Adding that it was unequivocal that they did write and sign statements admitting the events for which they were convicted, the judge, however, said this did not mean that consideration “ought not to have been given by the decision-maker, who decided on their discharge, whether they should have been afforded to make representation, and whether they had qualified to be cadets.”
Among its defences, the TTDF claimed that the decision to discharge was an administrative one and not part of the disciplinary proceedings.
The judge found that the discharge had nothing to do with the zero-tolerance policy but the unmilitary-like behaviour.
The four former officer cadets were represented by attorneys Arden Williams and Shelly-Ann Daniel while the TTDF was represented by attorneys Karlene Seenath and Amrita Ramsook