Police Law Blog European Decisions Statutory Materials

Policy / administrative instruction to redeploy Commissioner gave rise to no legally enforceable rights or obligations

Not an English case – but those concerned at the time taken for police cases to be resolved may raise an eyebrow at the case of Kupo v Independent State of Papua New Guinea [2020] PGNC 3. A Papua New Guniea Commissioner of Police was appointed on 1 November 2001, removed from post on 12 September 2002 and then removed from the payroll on 12 December 2002. He was still litigating for damages in 2019. Aside from the case failing for being two years out-of-time, the court held that where the decision to redeploy the Commissioner, having the effect of removing him, was the result of a policy or administrative instruction, this gave rise to no legally enforceable rights or obligations.

The National Executive Council had directed that the Commissioner be redeployed, which had the effect of removing him from office. In 2002, he intimated a claim against the state for unlawful removal from office by breach of contract and denial of livelihood until retirement age. The state agreed to compromise the contract claim on 3 March 2003 but failed to pay – so the now ex-Commissioner issued proceedings in 2006 for the balance. That was decided by judgment on 5 January 2011 – and paid in 2013.

The ex-Commissioner would have retired on 31 October 2014, which date came and went. In early 2019, he then commenced fresh proceedings in respect of his second intimated claim – the failure to redeploy him, and averred that this breached his right to continuous employment under Police Act 1998 and his human rights under the constitution, including freedom from inhuman treatment and the right to the protection of the principles of natural justice.

Case dismissed!

It is apparent that the judge was not impressed with the defence arguments that the case be dismissed for breach of procedural rules, which he considered to be “more of a gripe than a serious defence”. He further observed that the statement of claim was “convoluted and prolix” but ultimately pleaded an “identifiable cause of action” [11].

The defence application to strike out the claim due to its having being compromised or being contrary to the principle of res judicata failed. The first claim concerned the issue of removal from office rather than failure to redeploy, which was a different question. The claim was also not time barred by the Frauds and Limitation Act 1988 because human rights claims fell outwith its provisions.

The claim failed, however, because of the duty on the ex-Commissioner to commence the proceedings within a “reasonable time”. The judge held that in view of the inherent seriousness of an allegation of a breach of human rights, this period should be three years – half the standard limitation period of six years. The ex-Commissioner’s cause of action would, therefore, have continued to accrue until the date of his retirement on 31 October 2014, so that he should have brought his claim by 31 October 2017 [23].

The consequence was that the ex-Commissioner’s claim was struck out for an abuse of process due to the prolongation of his grievances, unreasonable delay in commencing his proceedings and engaging in a multiplicity of proceedings [24]. Interestingly, the judge held that the National Executive Council decision on the ex-Commissioner’s redeployment “was not made under any law”, so that it could only be regarded as a “policy or administrative instruction… not capable of giving rise to legally enforceable rights or obligations”.

And in English law?

In English law, one might think of the case of R (Crompton) v South Yorkshire Police and Crime Commissioner [2017] EWHC 1349 (Admin); [2018] 1 WLR 131, which held that the dismissal of a Chief Constable engaged the Human Rights Act 1998 art 8 and that such a decision had to be lawful, proportionate and not irrational.

As to “policy or administrative instruction”, The Court of Appeal in R (Tucker) v Director General of the National Crime Squad [2003] EWCA Civ 57; [2003] ICR 599 held that operational decisions (such as promotion) would not be susceptible to judicial review.

This in Tucker was criticised in the Privy Council case of Manning v Ramjohn [2011] UKPC 20 and not followed in R (Hodgson) v South Wales Police Authority [2008] EWHC 1183, where the forcing of an officer to retire was taken pursuant to a general policy which affected others and where it involved the exercise of a statutory power. It was also not followed in R (Simpson) v Chief Constable GMP [2013] EWHC 1858 (Admin), where the decision, which was to withdraw promotion for officers, again was based on policy considerations and affected a class of officers.

The English cases were reviewed in the Northern Ireland case of Re Colville’s Application for Judicial Review [2017] NIQB 14, which held that decisions fell broadly into three categories:

  • First were those involving discipline or the operation of a statutory scheme: these related to public law issues requiring fairness and were reviewable;
  • Second were decisions based on general policy affecting classes of officers: these were also reviewable;
  • Third were cases involving administrative / managerial decisions often affecting only individual officers and being not of general application: these fell out with judicial review.

Given the failure to issue in time and the “multiplicity” of litigation, perhaps the same result would have been reached in English law, in any event.

Follow @EGoldLdn