Michaelmas Term
[2014] UKPC 42
Privy Council
Appeal No 0082 of 2013
JUDGMENT
Peerthum
(Appellant) v Independent Commission against Corruption and another
(Respondents)
From The Supreme
Court of Mauritius
(Court of Civil
Appeal)
before
Lady Hale
Lord Kerr
Lord Wilson
Lord Hughes
Lord Toulson
JUDGMENT
DELIVERED BY
LORD HUGHES
ON
18 December 2014
Heard on 27
October 2014
Appellant
Mr Sudarshan Bhadain
Mr Yash Bhadain
(Instructed by Mr Preetam Chuttoo)
Respondent No 1
Mr Stuart Denney QC
Mr Kaushik Goburdhun
Ms Preesha Bissoonauthsing
(Instructed by Mr Sultan Sohawon)
Respondent No 2
Mr William Frain-Bell
(Instructed by Deputy Chief
State Attorney)
LORD HUGHES:
1. The question in this appeal is whether the secondment of
police officers to the
Mauritian Independent Commission
against Corruption (“ICAC”) is
nconstitutional.
ICAC
2. The Prevention of Corruption Act 2002 (“the PCA”)
established ICAC as a new independent body corporate. Its functions are set out
in section 20 and include the education of the public and enlisting its support
against corruption, monitoring public contracts and the procedures and working
methods of public bodies, advising such bodies on ways of eliminating
corruption, drafting codes of conduct and collaborating with similar bodies in
other countries. Its functions also include the detection and investigation of
offences of corruption, some of which are created by Part II of the same
statute and the detection and the investigation of money-laundering events
referred to it by a separate body, the Financial Intelligence Unit.
3. ICAC has, under the statute, a board consisting of a
Director General appointed by the Prime Minister after consultation with the
Leader of the Opposition in accordance with section 20(4), and two other
members, appointed by the Prime Minister. Within ICAC there must be a Corruption
Investigation Division, a Corruption Prevention and Education Division and a
Legal Division, and there may be other divisions if ICAC so determines. Each of
the specified divisions is to have a Director, who is to be appointed by the
Commission after consultation with the Prime Minister, or, in the case of the
Chief Legal Adviser, as provided under section 31(1). The statute sets out the
principal responsibilities of the specified Directors of Division.
4. Section 24 deals with the staff of ICAC. Its principal
provisions are as follows:
“(1) Subject to subsection (2), the Commission shall
employ such officers as it considers necessary to discharge its functions, on
such terms and conditions as it thinks fit.”
(2) [contains
provisions for advertising vacancies and selection]
(3) [contains
provisions for salaries and terms of employment generally]
(4) Employment
by the Commission under subsection (1) shall not be deemed to be employment in
a public office.
(5) Notwithstanding
subsection (1), the Commission may -
(a) with
the approval of the relevant Service Commission, recruit a public officer or an
officer of a local authority on contract; or
(b) for the
purpose of this Act, make use of the services of a police officer or other
public officer designated for that purpose by the Commissioner of Police or the
Head of the Civil Service, as the case may be.
(6) Where
the Commission recruits an officer under subsection (5) (a), that officer shall
be granted leave without pay from his service for the duration of his contract
of employment with the Commission but shall not be granted any further leave,
with or without pay, for the purposes of any extension or renewal of such
contract of employment.
(7) Notwithstanding
any condition contained in the contract of employment of an officer employed
under subsections (1) and (5) (a), the Commission may, where it is satisfied
that it is in the interests of the Commission to do so, but subject to
subsection (8), terminate the employment of an officer.
(8) [contains
provisions for fair process of termination of employment]
(9) Where
the Commission terminates the employment of an officer who was employed under
subsection (5) (a) -
(a) that
officer shall be reinstated to the office which he held immediately prior to his
appointment as an officer;
(b) the
Commission may, where the officer’s employment was terminated on grounds of
fraud, corruption or dishonesty, recommend to the relevant Service Commission
that disciplinary proceedings be taken against that officer.”
5. In aid of the functions of ICAC, section 53 of the PCA
creates a limited power of arrest which may be exercised by any of its
officers. This power is different from, and more restricted than, a policeman’s
powers of arrest. It may be exercised only if the Director General is satisfied
that the person concerned is either about to leave Mauritius, or has interfered
with a potential witness, or intends to destroy documentary evidence in his
possession which he refuses to give to ICAC. If it is exercised, there are
special rules as to the treatment of the person arrested; for example he must
be questioned only if the process is video-recorded, which is a provision which
does not apply generally to arrested persons in Mauritius. These powers of
arrest are quite separate from the ordinary process of arrest by a police
officer in relation to a suspected offence when the conditions for it lawfully
to be carried out are met. They do not, it is clear, constitute exhaustive
provisions for arrest in relation to suspected offences of corruption or
money-laundering. Suspected offence of those kinds may of course be
investigated by ICAC, but its powers to do so are not exclusive; such offences
may well be investigated by the police force, for example (but not only) where
they are wrapped up with other suspected offences, such as, perhaps, drug
trafficking, fraud or economic crime. Nor is the section 53 power of arrest
particularly geared to the arrest of persons suspected of committing offences.
It is there in aid of ICAC’s powers generally, which, significantly, include
calling for hearings in relation to possible acts of corruption and the
summoning of persons to give evidence on oath, whether suspects or not
(sections 47 and 50). The limited section 53 power of arrest, clearly intended
to cope with urgently arising situations, extends to any person who is judged
by the Director General to be able to assist any investigation.
The present case
6. ICAC investigated offences of corruption allegedly committed
by the claimant, a senior local government officer. He was arrested and
provisionally charged on four occasions by a police officer (Assistant
Superintendent Coret) who was working for ICAC under the provisions of section
24(5)(b). The arrests were made on the basis of suspected commission of
offence(s) of corruption. Mr Coret purported to exercise the ordinary powers of
arrest available to a police officer in relation to a person suspected of a
serious offence. The more limited powers of arrest given by section 53 PCA to
all ICAC staff would not have been available. The claimant was bailed in each
case. A number of prosecutions of him for alleged offences of corruption
followed but no trial has yet been completed. In November 2011 notice was given
to the claimant that a further similar arrest was to be made.
He challenged the legality
of the last (and indirectly of the earlier) arrests by way of application for
leave to seek judicial review.
The Constitutional challenge
7. The principal basis of the claimant’s challenge was the
assertion that section 24(5)(b) is contrary to the Constitution. His contention
is that it is unconstitutional for a police officer to work for ICAC whilst
continuing to hold the position and powers of a police officer. He says that a
police officer can only work for ICAC if employed by way of contract by it
pursuant to section 24(5)(a). In that event, says the claimant, he would cease
pro tem to hold the position and powers of a police officer, being on leave
without pay under section 24(6), would not have a policeman’s powers of arrest
and would have instead only the limited powers of arrest given to officers of
ICAC generally by section 53 of the statute. The constitutional contentions
failed before the Supreme Court and are now renewed before the Board pursuant
to leave which the Supreme Court granted on the basis that section 81(1)(a) of
the Constitution affords an appeal as of right where the case involves a
decision upon the interpretation of the Constitution.
8. The claimant’s argument as to constitutionality is thus
based upon the constitutional provisions which stipulate the control and
discipline authorities for disciplined forces generally and for the police in
particular. Someone in the position of Assistant Superintendent Coret cannot,
it is said, serve two masters.
9. The provisions of the Constitution relied upon are sections
91, 71 and 118.
10. Section 91 provides:
“91. Appointment in Disciplined Forces
(1) Subject
to section 93, power to appoint persons to hold or act in any office in the
disciplined forces (including power to confirm appointments), to exercise
disciplinary control over persons holding or acting in such offices and to
remove such persons from office shall vest in the Disciplined Forces Service
Commission:
Provided that appointments to the office of
Commissioner of Police shall be made after consultation with the Prime
Minister.
(2) The
Disciplined Forces Service Commission may, subject to such conditions as it
thinks fit, by directions in writing delegate any of its powers of discipline
or removal from office to the Commissioner of Police or to any other officer of
the Disciplined Forces, but no person shall be removed from office except with
the confirmation of the Commission.”
11. The Police Force is one of the Disciplined Forces. For the
claimant, Mr Bhadain contends that a policeman who goes to work for ICAC in
purported application of section 24(5)(b) is being removed from his office as
policeman and this cannot, according to section 91, be done without the
authority of the Disciplined Forces Service Commission. He is being removed
from his office as policeman, so the argument runs, because he is appointed an
officer of ICAC. Section 2 of the PCA defines an officer of ICAC thus:
““officer” -
(a) means
an officer appointed under section 24; and
(b) includes
the Director of the Corruption Investigation Division, the Director of the
Corruption Prevention and Education Division and the Chief Legal Adviser;”
As an officer of ICAC, it is said, a police officer
working there under section 24(5)(b) comes under the authority of ICAC, in the
last resort of the Director General, and is no longer therefore under the
control and discipline of the Disciplined Forces Service Commission. Moreover,
section 81 of the PCA provides that every officer of ICAC must take an oath of
confidentiality in the form prescribed by Schedule 2 to the Act. That oath
requires the officer to keep secret and confidential all documents and
information relating to the operations of ICAC and to refrain from disclosing
them to any unauthorised person. It is the practice of policemen working at
ICAC under section 24(5)(b) to take this oath. That demonstrates, it is said, that
such a policeman is under the control and discipline of ICAC in a manner
inconsistent with his remaining a police officer under the control and
discipline of the Disciplined Forces Service Commission, hence it is clear that
he has been removed from his position as policeman.
12. A similar argument is mounted for the claimant upon section 71
of the Constitution. That provides:
“71. Commissioner of Police
(1) There
shall be a Commissioner of Police whose office shall be a public office.
(2) The
Police Force shall be under the command of the Commissioner of Police.
(3) The
Prime Minister, or such other Minister as may be authorised in that behalf by
the Prime Minister, may give to the Commissioner of Police such general
directions of policy with respect to the maintenance of public safety and
public order as he may consider necessary and the Commissioner shall comply
with such directions or cause them to be complied with.
(4) Nothing
in this section shall be construed as precluding the assignment to a Minister
of responsibility under section 62 for the organisation, maintenance and
administration of the Police Force, but the Commissioner of Police shall be
responsible for determining the use and controlling the operations of the Force
and, except as provided in subsection (3), the Commissioner shall not, in the
exercise of his responsibilities and powers with respect to the use and
operational control of the Force, be subject to the direction or control of any
person or authority.”
Says Mr Bhadain, a policeman
working for ICAC under section 24(5)(b) has ceased to be under the control and
discipline of the Commissioner for Police, and the Commissioner has surrendered
all or some of his responsibilities for that policeman to the Director General
of ICAC and has to that extent infringed the rule in section 71(4) that he must
not be subject to the direction or control of any (other) person.
13. Thirdly, the claimant relies upon section 118 of the
Constitution. This contains supplemental provisions for the carrying out of
their functions by Commissions established by the Constitution, thus including
the Disciplined Forces Service Commission. By section 118(4) this provision
confirms that, subject to a stated exception which does not apply here,
“... no such Commission shall be subject to the
direction or control of any other person or authority.”
The same submissions are
made, to the effect that a policeman working for ICAC under section 24(5)(b)
has come under the control of ICAC in breach of this provision.
14. The fallacy in this reasoning is the proposition that such a
police officer has been removed from his position as such and ceases to hold
his office as policeman. That is precisely what does not happen. Section
24(5)(b) provides for secondment of a police officer to ICAC. Secondment is
very common in many fields. Policemen in particular may, like officers in the
armed services, be posted by way of secondment to a variety of bodies operating
in linked areas, such as other police forces, regulatory agencies, prosecution
authorities, border control agencies, training bodies or the like. It is in the
nature of secondment that the seconded person remains a member of his home
organisation. A policeman remains a policeman. There is no question of a
policeman seconded to ICAC under section 24(5)(b) being removed from his office
of policeman.
15. The key characteristic of such secondment, which is
specifically provided for by section 24(5)(b) is that it is accomplished by the
force to which the policeman belongs, here by the Commissioner of Police. A
policeman can only go to work at ICAC under section 24(5)(b) if the
Commissioner of Police designates him for this purpose. The Commissioner can
likewise withdraw his designation as and when he chooses. It follows that the
Commissioner has in no sense come under the control of any other person. Nor
has he ceded his command of the seconded policeman to ICAC. He has agreed that
for as long as the designation lasts, the policeman shall function within the
organisation of ICAC, and thus that he will be given instructions by senior
ICAC officers, but he has agreed this voluntarily; it is a form of temporary
delegation of part of his control of the policeman, and it is subject to his
own control of him wherever he needs to exercise it.
16. It is no doubt possible, in theory at least, for conflicting
instructions to the seconded policeman to come into existence. It should happen
only in the rarest of circumstances, but it might occur. This remote
possibility does not, however, involve any unconstitutional self-subjection to
the control of a third party by the Commissioner of Police. If such a situation
were to arise, there would no doubt be sensible co-operation between ICAC and
the Commissioner. But in the last resort, the Commissioner retains the power to
terminate the designation, and his instructions will, accordingly, prevail in
the unlikely event of an irreconcilable conflict.
17. The retention by the Commissioner of Police of his control of
seconded officers is well illustrated by a written instruction issued by him on
27 June 2003. Headed “CP’s Circular No 29/2003: Administrative Orders and
Guidance for ICAC Police Officers”, its relevant parts provide:
“1. Police officers who have been granted leave
without pay to take employment on contract with [ICAC] are referred to as ICAC
officers and not as police officers during their tenure of office with ICAC.
ICAC officers do not have any powers of arrest other than those provided by
section 53 of the Prevention of Corruption Act 2002.
2. Police
officers who are on attachment to the ICAC and are still under the operational
and administrative control of the Commissioner of Police have retained their
police powers of arrest. However, they are hereby reminded that while performing
their duties at ICAC, they must strictly abide by Police Standing Orders and
other instructions and guidance issued by way of CP’s circulars to the Force.
3. Police
officers posted to ICAC are to take all necessary precautions so as to ensure
that they do not unduly encroach on the fundamental rights of the citizen as
enshrined in the Constitution. Moreover they must scrupulously observe the
Judges Rule. Under no circumstances should they effect any arrest unless same
has been ordered by the Commissioner of Police after perusal of the relevant
case file and assessment of the evidence on hand.”
The Order goes on to require
separate approval by the Commissioner himself for any detention following an
arrest, and prohibits any acceptance of an arrested person by any police
station without such personal authorisation. There are then consequential
orders relating to the conduct of any prosecution which may follow.
18. Thus the Order first distinguishes between, on the one hand,
police officers who take employment with ICAC and are granted leave without pay
from the Force (section 24(5)(a)) and, on the other, seconded officers (section
24(5)(b)). Then, in relation to the latter, it issues orders which make it
clear that they remain under Police control and discipline. In particular,
arrests made by them in the course of their secondment to ICAC require the
personal written authority of the Commissioner himself, after sight of the case
file. This document was provided not only to policemen but also to the head of
ICAC, as well as to the Home Secretary, the Director of Public Prosecutions and
the Solicitor General. It establishes a regime which has clearly been accepted
and operated by the Director General of ICAC for more than ten years.
19. The oath of confidentiality taken by all ICAC staff, including
seconded policemen, is not inconsistent with this analysis. In seconding
(“designating”) a policeman to ICAC under section 24(5)(b), the Commissioner
has clearly accepted that he will owe this duty of confidentiality to ICAC
whilst there, on top of his duty of confidentiality as a policeman. For its
part, ICAC has clearly accepted, in particular but not only by the assent to
the operation of the Commissioner’s Order in Circular No 29/2003, that the
policeman remains under the ultimate control of the Commissioner. The
Commissioner of Police is clearly an authorised person for the purposes of the
oath, insofar as a seconded policeman is concerned. Ad hoc arrangements would
no doubt have to be made if it were to happen that ICAC were investigating the
Commissioner or a senior police officer, but so they must be made if such a
person is the subject of any other, non-corruption, criminal investigation.
20. The Board was referred to a report of the Select Committee on
Fraud of the National Assembly which preceded the enactment of the PCA. In it,
attention was drawn to the desirability of ICAC selecting its own staff, rather
than depending on nomination by others, such as the Commissioner of Police, and
misgivings were expressed about the capacity of the police force to investigate
serious corruption. That report did not, however, contain any draft bill, and
the Act subsequently adopted by Parliament plainly departed from it to the
extent that it included section 24(5)(b). There is no ambiguity in that
subsection and the Select Committee report cannot be resorted to in aid of its
interpretation.
21. The foregoing analysis is consistent with the practice in the
UK for secondment of police officers. Guidance issued with the concurrence of
the Police Advisory Board for England and Wales (December 2013), replacing
guidance in a different form makes clear, for example, that whilst different
secondments may need ad hoc treatment, the basic principle is that the seconded
officer retains his status as police officer and is entitled to return after
secondment to his home force in the same rank as before.
22. It is unnecessary to these conclusions to decide separately
whether Mr Coret or any other policeman seconded to ICAC under section 24(5)(b)
is within the definition of “officer” of ICAC. It is, however, clear that he is
not. The definition of “Officer”, in relation to the staff of ICAC, is
contained in section 2 (see para 11 above). A policeman seconded under section
24(5)(b) is not, in the clear view of the Board, “appointed” under section 24,
within this definition. That expression contemplates appointment by ICAC to an
employed position. Rather, such a policeman is designated by the Commissioner
of Police. Section 24 distinguishes between persons employed on contract, who
include policeman “recruited” under section 24(5)(a) and seconded policemen
who, according to section 24(5)(b), are not referred to as employed or on
contract but rather as persons of whose services ICAC may “make use”. The
former, recruited under section 24(5)(a), have, as officers of ICAC, the powers
of arrest created by section 53. The latter, seconded under section 24(5)(b),
do not have those powers but as policemen retain the ordinary police powers of
arrest.
23. The Board’s principal conclusion, that a seconded policeman
remains in the police service and subject to the control of the Commissioner of
Police, was also that reached some years ago by the Court of Appeal in Ha Yeung
v ICAC [2003] SCJ 273. The Board does observe, however, that in that case the
policeman in question, originally seconded under section 24(5)(b), had
additionally been appointed under section 29 PCA as the (acting) Director of
the Corruption Investigation Division. Once appointed to that position, he
undoubtedly was an “officer” of ICAC, as the terms of the definition in section
2 make expressly clear. The Board has not heard argument upon the question
whether, once so appointed and during his appointment, such a
policeman/Director can remain able to exercise at the same time both his powers
as an officer of ICAC and also his powers as a police officer, as the Court of
Appeal then held that he could. Such suggested dual capacity raises different
questions and may well be more difficult to sustain, but the issue does not
arise in this case, and it is neither necessary nor desirable to express any
opinion upon it.
24. Likewise, whilst the Board recognises that part of the
appellant’s case is to assert that repeated arrests were not justified and that
his trials have been unwarrantably delayed, those issues are not before it and
it has no means of knowing whether the complaints are well-founded or not. If
they are well founded, the appellant’s remedy lies in the trial process and not
in the constitutional contention presently advanced.
25. For the reasons here set out, the Board’s conclusion is that
this appeal should be dismissed.
