Appeal Court to rule on Wednesday on FUL audit report injunction

THREE Appeal Court judges will on Wednesday say if an injunction against the Prime Minister from publishing the contents of a controversial firearm user’s licence (FUL) audit report in Parliament, should remain in place.

On Tuesday, Justices of Appeal Nolan Bereaux, Peter Rajkumar and Maria Wilson agreed to hear Dr Rowley’s appeal as an urgent one and at the end of a full day of submissions, they said they will give their decision on Wednesday.

Bereaux said the oral decision will be delivered at 10 am as they needed more time to think and consider the issues raised in the prime minister’s appeal.

On December 13, High Court judge Devindra Rampersad granted the injunction in favour of former commissioner of police Gary Griffith after the State failed to give an undertaking that the audit report would not be laid in Parliament. Almost immediately, the State filed an appeal to "correct the errors" made by the judge. There are ten grounds of appeal, in all.

Griffith, now the political leader of the National Transformation Alliance, has complained about the legality of the setting-up of the committee by Dr Rowley and his National Security Council (NSC) to investigate the police firearms department's licensing regime, its operations, and the issue of FULs.

Griffith, who held the post from 2018-2021, said he was concerned that the contents of the report and the process used by the committee – comprising retired police officers – were irretrievably tainted by bad faith and illegality, because the Prime Minister had no power to appoint such a committee, and because of statements Dr Rowley made after Griffith announced the launch of his party and his decision to reapply to be top cop.

On Tuesday, lead attorney for the Prime Minister, Russell Martineau, SC, said the audit report dealt with the issuance of firearms and was directly related to the Government's ability to establish policies to deal with crime.

“It is public knowledge what our crime situation is… The evidence shows that firearms are a central issue when dealing with crime,” he said.

Martineau said Rampersad was wrong to not consider the assurance given by the AG’s office that the report will not be published until those who are adversely affected are given an opportunity to make representations, including Griffith. He said the injunction prevents anyone adversely affected from getting that opportunity since it was too wide.

Martineau also said Griffith’s fear of the report being published before he is allowed to respond to it, was an empty one.

“The word of the appellant must mean something. There was no reason to come to court. We had hoped the judge would have said, ‘I am not granting the injunction.’”

In granting the injunction, Rampersad pointed out that despite the assurances of the State that the contents of the report will not be published in Parliament, none was given in court. The judge also held there was a serious issue raised in Griffith’s claim to be tried.

However, Martineau also said an undertaking in court was not required and was an irrelevant consideration.

“There is no law that says you must give one.”

In response to questions by the judges on statements made by Rowley on the report and Griffith, Martineau said “one may not like the comment of the prime minister, but it was not a breach or detraction from the assurance (given by the Attorney General.”

“He has not breached anything. He has not published anything.”

Martineau also disagreed with the judge’s finding that the lawfulness of appointing the audit committee was a serious issue to be tried.

He said the audit was requisitioned by the Cabinet as it was the fundamental responsibility of the Government to ensure the nation’s security and the safety of citizens.

“What the Government cannot do is dictate to the commissioner how to manage the service but there is a role for the Government to play. They were not imposing anything on the police service. It appointed a committee under its policy-issues remit.

“Cabinet needs to get information if they are to change the statute (on firearms licences). That is the role of Cabinet and it is not managing the police service.”

He pressed the judges to take judicial notice of the crime situation and the increase in gun violence. “The government is getting ‘pong’ every day for a lack of effort on issues of national security and crime.”

“The audit is an administrative enquiry to get information so it can assist the steps the Cabinet can take to keep the public safe.”

He also said there was no question of a breach of natural justice at this stage.

“The report was investigative and the AG says you will be heard before we publish it so no natural justice issue arises here.”

Martineau also rubbished any consideration that statements made by National Security Minister Fitzgerald Hinds at a meeting of a joint select committee of Parliament on the report, after Griffith’s lawsuit, had been filed was in breach of the AG’s “assurance” that the contents of the report will not be made public until those affected were allowed to make their representations.

He admitted it might have been prudent for the minister not to give an answer to the JSC and said Hind’s statements were “unfortunate.”

In response to the appeal, Griffith’s lead attorney, Avory Sinanan, SC, said the scales of justice tipped in his client’s favour

“The court will deal with justice doesn't matter if you’re king or pauper. If you want to deal with crime deal with it by law and not transgress on the rights of citizens.”

While he agreed it was within Cabinet’s power to govern the country, he said the powers of the police commissioner were to manage the police service without the input of the Cabinet.

“If you have allegations of wrongdoing, report them to the commissioner who can refer them to the DPP.”

Sinanan warned of the issue entering the political gayelle, saying it began with the prime minister’s comments on Griffith’s appointment as top cop.

He also said the commissioning of the report made the process “irretrievably corrupted” and nothing can cure it.

“How does the issuing of firearm licences, publishing the report or laying it in Parliament achieve Cabinet’s policy objective, other than to embarrass anyone mentioned in it, including the claimant (Griffith).”

On October 28, Griffith was given permission to pursue his judicial review claim against Rowley, the NSC members, and the committee. He claims the publication of the report, or any part of it, would expose him to public ridicule and, if laid in Parliament, would protect Rowley and the media, by qualified or absolute privilege, from defamation claims for damages.

Named as respondents in Griffith’s lawsuit are Dr Rowley, former attorney general Faris Al-Rawi, ministers Fitzgerald Hinds, Colm Imbert, Stuart Young, Marvin Gonzales and retired police officers Wellington Virgil, Raymond Craig, Lennard Charles, and Brian Pierre – who formed part of the audit team.

Sinanan leads Larry Lalla, and Ajay Babal for Griffith. Martineau, Kerwyn Garcia, Tenille Ramkissoon, Kendra Mark-Gordon, Nisa Simmons, and Chantell Le Gall represent the appellants.

At Tuesday’s virtual hearing of the appeal, Dr Rowley, AG Reginald Armour, SC, Minister Stuart Young and Griffith were seen as having logged in on the platform.