Injunction modified – PM still can't lay FUL report in Parliament

THE Prime Minister still cannot lay any part of a controversial firearm licence audit as the Court of Appeal says this seems to be “some way off” since those who may have been named in it have not been given an opportunity to respond to any allegation against them.

On Wednesday, Justice of Appeal Nolan Bereaux, Peter Rajkumar and Maria Wilson said they could not say Justice Devindra Rampersad was wrong to grant the injunction.

However, while the injunction remains, it was deemed to be “too wide” by the court and was varied.

Dr Rowley cannot lay the report in Parliament or a summary of it except to those who are named in it so they can make representations. These comments are to be incorporated into the report and the audit report can be shared with Cabinet.

Those who will receive a copy of the report will only get those parts which affect them. The judges ordered that the report must be redacted and this will remain in place until Justice Rampersad gives his decision on the challenge to the report, which he is expected to do on March 3.

In delivering the oral decision, Bereaux said the injunction was “unnecessarily wide” as it prevented not only those affected by it to respond but also Cabinet from considering the contents of the report which may have implications for national security.

The State was given the liberty to apply for leave to take its challenge of the injunction further.

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.

In their ruling, the judges faulted Rampersad on his finding of the failure of the State to give an undertaking in court. They said the assurance was acceptable in a court of law.

However, they agreed with him on the natural justice complaint raised by Griffith since they, too, agreed there was a serious issue to be tried on the question of the legality of setting up the audit committee of retired police officers.

“The difficulty is that the assurance doesn't answer the question if the PM had the power to appoint the committee.

“...There is a serious question to be tried on the natural justice point as they (those affected) have not been given an opportunity to be a part of the investigation.”

Bereaux also raised the issue of the apparent breach by National Security Minister Fitzgerald Hinds who referred to an aspect of the report at a joint select committee of Parliament, last month but said there was not an appeal on this issue.

They also said Rampersad could not be faulted on his finding on the question of prejudice and did consider the public interest aspect of being able to lay the report in Parliament, saying he did not have to go into details in his decision.

“But he did refer to the public interest. He placed the greatest emphasis on prejudice which he was entitled to do.”

It was the State’s argument that the prevalence of gun violence was a concern and the injunction prevented the Cabinet from getting Parliamentary approval to implement policies to deal with crime and amend legislation.

However, Bereaux pointed out that the report was submitted on July 11 yet those whose names may be mentioned in it, have not yet been given an opportunity to make representations while Cabinet had decided to refer the report, the representations they eventually get to a committee to decide the way forward.

It was for this reason, the judges felt there was “still some distance away from laying the report in Parliament.”

He also referred to an additional mandate given to the audit committee to sanitise the report by December 31, yet that too had not started.

Griffith, now the political leader of the National Transformation Alliance, had 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 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.

While Griffith was made to pay the PM’s cost of the application to deem the appeal urgent, the State has to pay 75 per cent of his costs of the substantive appeal on the injunction.

Named as respondents in Griffith’s lawsuit are 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.