Ex-prison driver loses transfer challenge to Carrera Island

A now-retired driver for the prison service has been ordered to pay half of the legal costs of the deputy Commissioner of Prisons after he failed to convince a High Court judge his transfer from the Golden Grove prison to Carrera Island was unlawful and done because of malice.

The order was made by Justice Ricky Rahim on Friday when he dismissed the judicial review and constitutional claim of Dexter McDonald against deputy commissioner Shamshudeen Mohammed.

McDonald, who retired in January last year, took legal action because he was transferred from the Arouca prison to Carrera in April 2020.

Mc Donald was not a member of the prison service but was a public servant assigned there. His duties as a prison service driver were to drive vehicles, check for water and oil levels and prepare road traffic accident reports.

He argued in addition to the move being unlawful since the order to transfer him did not come from the acting commissioner but also done by “pure malice” because there are no vehicles at Carrera to drive.

McDonald claimed in prior to the transfer, while at the garage of the Golden Grove Prison, he brought coconuts from home and offered them to the prison officer in Mohammed’s presence.

He said Mohammed asked where he got the coconuts and said, in jest, he would not give him one, even if he asked.

McDonald claimed the deputy commissioner replied, “I thought you were brilliant, I will see how smart you are while you are romancing the stone”.

He said this was a common expression in the prison service to refer to officers who are transferred to perform duties at Carrera Island.

The ex-driver said after this conversation, he was transferred to the Carrera Convict Prison but was not assigned any duties there and after a period of two months of inactive service, he went on pre-retirement leave but viewed his transfer as a penalty.

Mohammed’s account of what took place was different.

He said he pointed out there was a vacancy on “the stone” for a driver in the event a medical emergency was to arise both because of the covid19 pandemic or otherwise.

He also said he did not know of the term “romancing the stone” or said the phrase. Mohammed also said he was instructed by the acting commissioner, who has the power to make decisions such as a transfer from one prison to another, to find a driver for Carrera in March 2020, when the country went into lockdown because of the pandemic and the need to have a driver on hand because of past issues in getting ambulances on the mainland when medical emergencies arose.

Acting Commissioner Dennis Pulchan also went on affidavit to say McDonald’s temporary transfer was one of 12 made although the former driver was the only one to Carrera. Pulchan’s evidence was that it was the first time a driver was being assigned to the island prison since its ambulance was located at Hart’s Cut and McDonald would have had to prepare for it to be transported to the island.

It was also advanced that it was not an order of transfer but an order to report to duty elsewhere and Mc Donald was chosen as a senior driver

In his decision, Rahim said the prison service operated with staff that fell under the purview of the Public Service Commission and McDonald fell into the category of public service officer appointed to the service.

“It follows that by virtue of the provisions of the Constitution, he falls under the direct control of the COP.

“It makes for good administration that the COP is permitted to delegate his power to his deputies or assistants having regard to the nature of the duties involved.”

He said the evidence was that the transfer was an internal one from one prison to another so McDonald retained his substantive posting of prison service driver with the Prison Division, Ministry of National Security.

“It is equally clear that the office holder who acts in the position of a COP is vested with the same delegated powers of a COP. This also makes for good and proper administration otherwise why make an acting appointment.”

He said it was Pulchan’s uncontradicted evidence that McDonald, along with others, were transferred on his instructions to his subordinates.

“This is potent evidence, the effect of which the claimant appears to have misunderstood in the respectful view of the court.

“The facts show that the decision to transfer was not that of the deputy but that of the office holder of COP (acting).”

McDonald was represented by attorney Kenneth Thompson while Mohammed was represented by State attorneys Ebo Jones and Ryan Grant.