FUL audit report stays out of Parliament

FORMER commissioner of police Gary Griffith convinced the High Court to prevent the Prime Minister and the National Security Council (NSC) from laying any part of a controversial firearm user's licence (FUL) audit report in Parliament.

The audit report, or any part of it, will not make its way into the Parliament or the public domain as there is an injunction in place preventing that from taking place.

However, Justice Devindra Rampersad on Wednesday did not find favour with Griffith's complaint on the powers of the prime minister and his NSC. In fact, the judge said Dr Rowley and the members of his Cabinet, who form the NSC, had the power to appoint the committee to audit and investigate the grant of firearms by the police over the period 2016 to 2021.

Griffith had complained about the legality of the setting up of the committee by Dr Rowley and his NSC to investigate the police’s firearms department licensing regime, its operations, and the issuance of FULs.

The former top cop, 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 of 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 political party and his decision to reapply to be top cop.

Griffith said he feared 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.

On Wednesday, Rampersad agreed that the contents of the report, as it related to the former commissioner, should only be provided to the current top cop and the Police Service Commission (PSC) for further inquiries.

“Should no such investigation ensue, then the prohibition would be absolute,” the judge said. Griffith should also be given an opportunity to respond, he said.

In a statement, the Attorney General said the "most significant feature" of the ruling was the direction for the report to be handed to the PSC and the top cop.

The AG also said, "The direction of the High Court today to the Commissioner of Police and to the Police Service Commission is a definitive judicial direction that the law must now, therefore, be allowed to take its course."

Last year, Rampersad granted Griffith leave to pursue a judicial review claim against the Prime Minister, the NSC members and the retired cops who formed the audit committee.

He also granted an injunction restraining the prime minister and his ministers from laying the report in the Parliament. The matter was then appealed and the higher court varied the injunction, allowing only those named in the report to get a redacted copy so they could respond in the interest of natural justice.

He granted one of the declarations sought by Griffith that the decision of the Prime Minister to publish the report to other state agencies, or Parliament, other than the PSC and the CoP was irrational and in breach of the rules of natural justice and fairness.

As for the other reliefs Griffith sought, Rampersad said he could not, and will not, grant the declarations on the unlawfulness of the committee nor make an order declaring the report to be null and void.

“To declare the report to be null, void and of no effect would be too far in this court’s respectful view.”

The committee’s mandate was to look at the procedures for granting FULs, shooting ranges, variations to licences, identifying those in possession of firearms and other related matters.

“A perusal of the report produced a mixed bag. It addressed the mandate but went further to leave inferences and innuendos in relation to the persons named in the investigation process, including the claimant.”

However, he found there was no right to be heard at this time since no decisions had been made on anyone and dismissed Griffith's contention that the Prime Minister acted in bad faith by forming the committee because he was a political opponent. Rampersad said this was illogical since Griffith had not yet entered the political arena.

"Where the court has an issue is the use to which the report is to be put. There is the potential for reputational harm which may be irremediable."

Other than the PSC and the top cop, the report can only be used by the NSC to inform policy and reform in relation to firearms, the judge ruled.

“Anything beyond that would be also beyond the remit of the provisions of the Constitution and even in relation to the same section 75 that they rely on.”

In a post-script in his judgment, Rampersad said while considering whose duty it was to ensure the practice and procedures of the police in relation to firearms were being carried out properly, he “became alarmed” that the Executive had given the power to ex-police officers to investigate police records.

“Those records are obviously related to the operation of the police service and ought not, in this court's respectful view, to fall into the hands of the Executive or any other person acting on behalf of the Executive even though it was done through the unchallenged allegation of the permission of the Commissioner of Police at the time.”

He said now those police records have become the property of the Ministry of National Security.

Rampersad said if Griffith or anyone else named in the report had asked him to strike down the agreement, he would have considered doing so.

And although there was no challenge before him on that issue, he said he felt “compelled to express its deep concern with that position.”

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

Representing Griffith were Avory Sinanan, SC, Larry Lalla, and Ajay Babal while Russell Martineau, SC, Kerwyn Garcia, Tenille Ramkissoon, Kendra Mark-Gordon, Nisa Simmons, and Chantell Le Gall represented the PM. The audit committee members were represented by Gilbert Peterson, SC, and Rishi Dass.