Judge: Prisons Commissioner's policy of giving off-duty guards guns is illegal

A HIGH COURT judge has ruled the Commissioner of Prisons does not have the authority to allow prison officers to “keep and carry” guns when they are not on active duty and the practice is “irrational, illegal and clearly ultra vires.”

Justice Devindra Rampersad said, “The Commissioner of Prisons clearly has no authority to bypass the Commissioner of Police to allow prison officers to carry firearms outside of the prison environment while in the active performance of their duties as prison officers.”

Rampersad was presiding in the judicial review claim of a police constable who was shot by a prison officer while executing a search warrant at his home in 2015.

PC Vishal Singh challenged the policy of the Commissioner of Prisons to allow off-duty officers to use their service weapons for personal protection.

“Though well-intentioned, and obviously with a view to the safety and security of his officers, the Commissioner of Prisons cannot create a new category to exempt his officers when a plain and ordinary reading of the statute (the Firearms Act) does not allow such.”

He said by introducing the “keep and carry” policy, the Prison Commissioner exceeded his remit and rejected the evidence of Commissioner Dennis Pulchan that prison officers were always on duty, as they were expected to be at “the disposal of the Government” at all times.

Pulchan, in his evidence, asserted the Prisons Act gave him the discretion, as head of the prison service, to determine whether an officer was acting. He also said as the head of the service, he determined when to issue a firearm to an officer when he determined “an imminent threat” existed against an officer’s life as a direct result of his duties.

Rampersad said the court could not see where the discretion claimed by Pulchan was derived as he examined the Prison Act, the Firearms Act, and the prison rules.

“One cannot truly say that a prison officer is always on duty, as alleged by Mr Pulchan. Being at the disposal of the Government does not mean that the prison officer is always acting as such.”

“…It stands to reason that when the officer comes off his or her shift, they would no longer be on active duty…in charge of prisoners although he or she may be summoned at any time thereafter to such active duty.…They are not on the prison environment or premises or elsewhere in charge of prisoners, they are not being paid while off-duty, they are not in uniform, etc.”

The judge added it was “not to say that such a concern and intention (of the commissioner) is not noble and worthy…The stark reality of the unfortunate demise of prison officers by murderers suggests that there is merit in the safety aspect and concern.”

However, he said, “ The thing is, can the Commissioner of Prisons bypass the law by him deciding that firearms can be given to prison officers who are not active in the prison at the particular time due to a threat assessment in respect of their safety?”

To answer that question, he pointed to the debate on the Prison (Amendment) Act of 2014, when it was recognised that the power to grant firearm users licences (FUL) and allow the use of guns outside the prison environment was for the Police Commissioner.

“It has been part of the discussion since at least 2014 and probably even longer, but we are still here in 2021 – seven years later – without any firm steps taken to further adjust this 1900 act to meet the current situation.”

He suggested that Parliament “may want to look at this very serious situation in great detail urgently.”

As a result of the judge's ruling the Commissioner of Prisons will now have to recall all the official guns prison officers were allowed to carry when not on the job. They will also have to apply for a FUL for their personal use. although the issuing of licences has been suspended pending an audit of the process by the police service and the appointment of a CoP.

Under the Firearms Act, prison officers are issued a firearms user's certificate to allow them to carry weapons while on duty.

In his legal challenge, Singh’s attorneys, Anand Ramlogan, SC, Alvin Pariagsingh, Jayanti Lutchmedial, Ganesh Saroop, and Douglas Bayley contended the policy, which sought to allow officers who are deemed to be “constructively” on duty to carry their service weapons, was illegal.

Singh’s attorneys argued under the Firearms Act, only officers on active duty were permitted to carry guns and off-duty officers had to get an FUL from the Police Commissioner.

“The act clearly does not empower him to make such a policy – the act clearly restricts and specifically defines when a firearm can be issued to an officer and the respondent cannot on his own volition expand the circumstances in which same may be done outwith the four corners of the act,” Singh’s claim contended.

Singh filed the claim after a prison officer shot him on August 10, 2015. Singh, who was assigned to the Sangre Grande Police Station, received a tip that a man in the district had an illegal gun and ammunition.

Singh and three of his colleagues tried to search the man’s home but there was an exchange of gunfire.

Singh was shot in the chest and back, The other man, later identified as prison officer Ruel Accoo, was also wounded.

Accoo’s injuries were less severe and he was treated and discharged. Singh was left with a bullet lodged in his back and had to have extensive treatment, but has since returned to work.

After the incident, Singh made several requests under the Freedom of Information Act (FOIA) to both the Prisons and Police Commissioner for information on the shooting and Accoo’s status as the holder of a gun.

Both officials claimed the information was exempt from the act, but Singh eventually obtained disclosure after successful lawsuits over the issue.

Singh then sued Accoo personally for assault and battery. Accoo filed a similar lawsuit against Singh, his colleagues and the State. Both cases are still pending determination.

The Commissioner of Prisons was represented by State counsel Mary Davis and Nairob Smart.