Duane O'Connor loses police suspension challenge over PNM screening

Former calypso monarch Duane O’Connor has lost his challenge over his suspension from the police service after being screened for the 2019 local government election in December that year.

On Tuesday, Justice Robin Mohammed dismissed O’Connor’s claims against the Commissioner of Police and the Attorney General, ordering him to pay 75 per cent costs of both defendants for senior counsel.

O’Connor was represented by Anand Ramlogan, SC, Renuka Rambhajan, Jayanti Lutchmedial, Ganesh Saroop and Alana Rambaran, while the commissioner was represented, at the time of the trial, by Reginald Armour, SC, Vanessa Gopaul, Rishi Dass and Makira Mendez. The AG was represented by Russell Martineau, SC, Keisha Prosper, Michelle Benjamin and Rachel Weeks.

O’Connor had complained of being slapped with a disciplinary charge for “partisanship” and suspended by former acting commissioner Gary Griffith in 2020.

His suspension and the disciplinary charge came after he applied to be screened for candidacy by the PNM for the St Ann’s River South seat. He was not selected by the party and he received correspondence from the police service about the “partisanship” charge and was suspended in June 2020 by Griffith.

He is still on suspension, and the hearing of the disciplinary tribunal was adjourned pending the outcome of his High Court challenge.

In his ruling, Mohammed said the challenge to the police service regulation which prohibits a police officer from making any public expression of political and sectarian opinions, “can be effectively raised before the tribunal as a defence to the charge.”

“Any interpretation at this stage by this court is likely to gravely prejudice the outcome of the proceedings before the disciplinary tribunal.” He also said O’Connor’s complaint of a stain on his employment record because of the suspension did not warrant his intervention.

“If the court were to permit constitutional challenges every time a civil servant is suspended it would open the floodgates to a sundry of actions and effectively stymie the functionality of legislated disciplinary tribunals.”

He also found that O’Connor’s complaint was not amenable to judicial review as he had the alternative remedy of countering the charge against him at the tribunal. He said the Police Service Act and the regulations gave certain powers to the commissioner or a tribunal appointed by him to investigate complaints against officers.

“The laying of a charge against a police officer for breach of the laws in relation to his employment must therefore come from the police service.

“...This court is extremely reluctant to disturb such decisions of the Commissioner of Police given the wide breadth of his powers and the public-policy interests he is required to take into consideration when instituting disciplinary proceedings.

“In the case at bar, the public interest in ensuring the political impartiality of the police service appears to be at stake and the court should not be quick to overstep the commissioner in the performance of his duties.”

In his lawsuit, O’Connor claimed his constitutional right to political expression was infringed by the imposition of the disciplinary charge, and maintained he saw his political affiliations as a private matter.

He also said he trusted his nomination would remain confidential and knew if he was successfully screened, he would have to resign as a police officer.

It was O’Connor’s evidence that when he was not selected by the PNM, he did not consider resigning and never publicly showed support or partisanship to any political party or form any political bias as he has always remained professional and responsible in his duties as a serving member of the police service.

O’Connor, who won the Calypso Monarch title in 2012, was assigned to the Community Policing Unit before his suspension and served as a liaison officer as well as the youth club leader in the Patna/Flat River Estate Police Youth Club.

In his challenge, he contended the charge of “partisanship” was not substantiated by evidence and was based on the lone fact that he presented himself for screening as a potential candidate in the 2019 election.

It was the case for the State that it was an abuse to have his challenge raised in a judicial review and constitutional claim as none of his rights were breached and his complaint could have been addressed at the tribunal.

The police maintained there was sufficient evidence to refer the matter to a tribunal, and by showing up at Balisier House for screening he showed his “preference” for the PNM. Both defendants argued it was for the disciplinary tribunal to determine the charge, and if it came to a wrong conclusion then the court could correct it.

Mohammed agreed. He said, “This court has no power to review a decision of the Commissioner of Police to institute disciplinary proceedings against an officer for the reasons offered by the claimant.

“This does not mean that the court may never have the authority to review a decision of the Commissioner of Police, but in the instant case, the matters raised by the claimant are all better suited to the disciplinary tribunal. An opportunity must be presented to the tribunal to perform their statutory duties before any court can intervene.”