COMMENTARY: The Commissioners’ Conundrum

Seemingly innocently entrapped in the ‘…Commissioners’ Conundrum,’ Acting Commissioner of Police Atlee Rodney, may have been vice-gripped, and awkwardly positioned to cause the institution of disciplinary proceedings against his Commissioner Wendell Robinson. Though the Police Service Commission (PSC) may be apportioned blame for abdicating its constitutional responsibilities, it shall share responsibilities with Acting Commissioner Atlee Rodney, who may have found himself inescapably entangled in a dilemma. Moreover, it may require the magical exploits of the famous magician ‘…Harry Houdini’ [1874-1926] to free himself. This may allow for a bruise-less ego and reputation. Incidentally, if not embarrassingly, by a sanctioned investigation and recommended appointment of a three-member Caribbean Implementation Agency for Crime and Security (IMPACS) team of investigators, if slapped with disciplinary charges, the most likely, ‘…Discreditable Conduct,’ he may not be authoritatively positioned to instruct or order Commissioner Wendell Robinson, to attend before the Police Service Commission to answer such charges.

PERSPECTIVE

This commentary specifically looks at, inter alia, the procedures followed in the investigative process, particularly (a) …Decision to task Acting Commissioner Attlee Rodney with the investigations; (b) …Possible difficulties faced by the Acting Commissioner; (c) …Difficulties of Police Service Commission in convening and conducting a disciplinary hearing against Commissioner of Police Wendell Robinson; (d) …Statutory provisions contained for investigating internal Force discipline; (e) …Constitutional provisions of the Police Service Commission (PSC); (f) …Appointment of three Special Constables to conduct investigations on his behalf; (g) …Procedure at Hearing.’ The ministerial making of the ‘…Procedural Regulations’ considered that options shall be given to an accused officer for the conduct of his defence. Thus, it provides that the ‘…Accused may conduct his defence either in person or by a member of the Force or by Counsel’ [Police Act: Chapter 330: Section 8 (6)].

DISCIPLINARY INVESTIGATIONS

When the disciplinary regulations were made for the Police Service, it may not have been envisaged that a Commissioner of Police would himself be cited for any breach of the ‘…Disciplinary Code,’ as to have been subjected to the indignity of ‘…Disciplinary Investigations.’ That which is noteworthy and supports such contention might be discerned from the Regulation that states, ‘…A reference to the Complainant is a reference to the originator of the complaint, notwithstanding that it was received by the Commission; …Minister or Commissioner of Police from or through some other person or body’ [Section 10 (4)]. Unlike the Commission with constitutional prescriptive authority and the Commissioner of Police with statutory powers, a Minister receiving a complaint against an offending member of the Police Service, shall channel such complaint to the office of the Commissioner of Police.

INAPPROPRIATE SEXUAL ADVANCES

The official records, as with affidavits will show that the Police Service Commission (PSC) had received Complaints from ‘…three male subordinates and an applicant’ seeking membership in the Police Service. The Complaints of ‘…inappropriate sexual advances,’ were reportedly referred to Acting Commissioner Atlee Rodney [Court Affidavit]. The disciplinary regulations make it sufficiently clear that ‘…When a report, allegation or complaint is received by the Commissioner of Police from which it appears that a member of the Force may have committed an offence, the matter shall be referred to an investigating officer who shall cause it to be investigated’ [Section 4: Chapter 330: Vol. 12]. This has never been the responsibility, role or function of the ‘PSC.’

CLARITY OF UNDERSTANDING

For ‘…Clarity of Understanding,’ the regulations further state ‘…The investigating officer shall be a member of the Force of or above the rank of Sergeant as may be designated by the Commissioner for the purpose’ [Sections (2) & (3)]. There has never been any reference to the Police Service Commission as far as directing the Commissioner of Police in conducting disciplinary complaints against any member of the Police Service. The vexed question posed was, ‘…Why Acting Commissioner Atlee Rodney was saddled with the unenviable task of conducting investigation into the conduct of his superior Wendell Robinson?’ The substantive holder of the position, he is solely charged with responsibility for inter alia, (i) …Superintending the Police Force; (ii) …Ensuring a high standard of discipline is maintained and exhibited at all material times: (iii) …Enforcing and ensuring the Rule of Law; (iv) …Maintaining law and order; and (v) …Preventing and detecting and prosecuting criminals and controlling crime [Section 6].

CRIMINAL INVESTIGATIONS

It was to the knowledge and experience that apart from the ‘…preservation of order,’ situations may demand that a Commissioner of Police makes recommendations for the appointment of ‘…Special Constables,’ but only to the extent of assisting the national Police Force with the expertise of ‘…Criminal Investigators.’ For such services, they shall be given Police powers of arrest and detention and placed under the orders and supervision of a designated officer or in his absence, the Commissioner of Police [Section 76]. Functioning in such capacity, they were not considered members of the local Constabulary as prescribed in the Act [Section 18]. Though infrequently, this has been previously done in cases such as the brazen daylight and merciless killing of Susan Powell’ [February 26, 2013], when a two-man team of Barbadian Police investigators ended their engagement in futility. Then there was the successful engagement of Scotland Yard Detectives in (i) …the Comptroller of Customs Rolston Samuel’s murder of savagery [January 8, 1993]; (ii) …Yacht Computacenter Challenger multiple murders in Barbuda [January 30, 1994]; and (iii) …the double-murder of Ben and Catherine Mullany [July 14, 2008]. 

CONTENTIOUS AND TROUBLING

In clearly different circumstances, a ‘…Contentious and Troubling’ area for Acting Commissioner Atlee Rodney, has been the ‘…Appointment of Special Constables.’ This often requires a policy-decision taken at the National Security level with referrals to the Police Service Commission to complete the necessary formalities. For enlightenment, the law states ‘…The Commission may, any time that they think it expedient in the public interest so to do, appoint fit and proper persons to be Special Constables to act as such for the preservation of the peace’ [Section 72: Police Act: Chapter 330]. Even with the word ‘may,’ a policy-decision taken at that level removes all discretion and imposes a duty upon the Commission to make recommended appointments by the Commissioner of Police as approved by the Executive.

PROCEDURAL LAPSES

It was not clear what the Chairman of the seven-member Kelvin John may have been thinking. However, the unfolding events and obvious ‘…Procedural Lapses,’ speak to a body clearly starved of procedural knowledge. The most troubling aspects appeared to have been the appointment and empowerment of the regional investigators with Police powers for a seemingly ill-advised role in conducting disciplinary investigations. This appears embarrassingly out of its scope and far removed from ‘…CARICOM IMPACS Crime and Security Agenda.’ Even so, no blame may be apportioned to the ‘Police Service Commission’ for external arrangements not advocated nor sanctioned by the body. Though its ‘…dilly- dallying tactics’ with clear moments of uncertainty and indecision that provoked angst among the personnel and the citizenry, the record will show that it had discharged its constitutional responsibilities [CO: Section 105: & Sections 16 & 37: Police Act: Chapter 330]. More importantly, it will show that the offending Commissioner was ‘…immediately suspended from office until the Commission decides otherwise’ [ANR: April 5, 2018].

ERROR AND IGNORANCE

As the exceedingly long delayed investigation was said to have been completed, that which now hangs in the balance’for the substantive holder of the office of Commissioner, Wendell Robinson’s are (a) …successful and rewarding career and (b) …the prospects of tenure of longevity.’ While the complaints against the suspended Commissioner were to be given very serious attention, the investigative procedures followed appeared ill-advised and inapplicable. The disciplinary regulations provide no legal basis for Special Constables to be appointed to investigate internal Force discipline. Research has failed to show that such is obtained in jurisdictions within the Organization of Eastern Caribbean States. Yet for the very first time in the nation’s law enforcement history, Special Constables had been appointed to investigate the conduct of a Commissioner of Police. Candidly put, this appears to be more out of administrative ‘Error’ and procedural ‘Ignorance.’ There are further possible difficulties if the accused Commissioner is slapped with disciplinary charges.

PROCEDURE AT HEARING

Such might be contingent upon an insurmountable hurdle now facing the Acting Commissioner. This has to do with the stipulated ‘…Procedure at Hearing.’ The regulations  specifically states (i) ‘…The accused shall be ordered to appear at the hearing of the case; (ii) …The Commission shall hear the case; (iii) …The case against the accused shall be presented by a member of the Force designated by the Commissioner of Police’ [Section 8]. In most disciplined organizations, while suggestions and/or information flows up the chain of command, ‘…orders; …commands; …instructions; and/or directives flow only from a ‘…top-down position.’ Thus, in view of the organizational structure, while an inferior may cause disciplinary action to be taken against a superior for oppressive conduct, the regulations do not allow for an inferior to discipline his superior or to order him to attend hearings before disciplinary tribunals.

IGNORANCE OR INCOMPETENCE

Consequent upon the action taken against Commissioner Wendell Robinson, there have been anxious moments for some, equally as much as there has been eager anticipation by others of the investigative outcome. Reasonable inferences may have been drawn that either out of ‘…Ignorance or Incompetence,’ that before the ink may have been dried regarding his appointment by the Police Service Commission; it had shifted its responsibilities to an apparent unsuspecting and docile Acting Commissioner of Police Atlee Rodney. Though the Police Service Commissions is not an investigative body, anticipating that it might be impelled to initiate disciplinary action against holders of offices within the Police Service, framers of the Constitution Order prudently inserted this Section ‘…The Commission may, with the consent of the Prime Minister confer powers or impose duties on any public officer or on any authority of the Government for the purpose of the exercise of its function’ [CO: Section 99 (13)].

CONSTITUTIONAL PROVISIONS

It is important to note that while the ‘…Constitutional Provisions’ allow for the Commission to confer authority or imposed duties on public officers with written consent of a Prime Minister, the historic case ‘…Regina v Metropolitan Police Commissioner, Blackburn Ex parte’ has made it clear that ‘…No member of the Crown and no Police authority, may command, order, direct, instruct or impose their will on the office of Commissioner [1968: 1 AER: 763]. Though not necessarily sacrosanct, the actions of the office holder is not only to be guided by the law, but also said to be ‘…responsible only to the law’ [Lord Alfred Thompson Denning: Master of the Roll]. Ensuring that the seven-member Police Service Commission understands their authority, the Constitution unambiguously states, ‘…The provisions of sub-sections (2) to (15) inclusive of Section 99 of the Constitution, shall apply in relation to the Police Service Commission as they apply in relation to the Public Service Commission [CO: Section 104 (2)].

CONSEQUENCES OF WOE

As the extraordinary long and overdue investigation into alleged misconduct by ‘…Commissioner of Police Wendell Robinson’ was reported to have been completed, attention was said to have been on the ‘…seven-member Police Service Commission (PSC), Chaired by attorney Kelvin John, and Acting Commissioner of Police Atlee Rodney. The allegations that attracted widespread media coverage, saturated news portals and provoked intense public debates, except someone had become delusional, the stiff-necked could cause ‘…Consequences of Woe’ to be visited upon them. Even so, given the nature of the Complaints, the record will show that the Police Service Commission acted appropriately in an attempt at giving personnel and public assurances that irrespective of organizational rank, discipline was to be maintained at all levels of its structure [Section 105: Constitution Order: 1981].

TREPIDATION AND HOPE

Though its membership and Acting Commissioner of Police Atlee Rodney exhibited no acrimonious intent or instinct associated with the nature and voracious instinct of lions, Commissioner of Police Wendell G. Robinson may have been given reasons to feel that he may have been hounded by three regional Police officers appointed in the capacity of ‘…Special Constables.’ He may also have been led to believe that he was surrounded by humans with an uncanny spirit and a devouring appetite of hungry lions. Looked at biblically, and from the experience of ‘Daniel who was confined to a ‘…Den of Lions’ [Daniel 6:15], in living history, only a few persons have entered the habitat of lions and escaped without experiencing their mauling instinct. Likened to magicians, mesmerizing audiences by sleight of hands, keeping them spell-bound, while the accused/suspended Commissioner waits with ‘…Trepidation and Hope,’ rank and file members of the Police Service, and by extension the citizenry, are all waiting patiently, yet with anxious expectations to see what may eventually unfold.

CONCLUSION

While substantive holder of the office of Commissioner of Police, Wendell Robinson may find no glimmer of hope, either in retaining or regaining positional favor, he may still find some measure of comfort knowing that the Police Service Commission (PSC), suspended him from office and with fox-like cunningness, hid in the shadowsof Acting Commissioner Atlee Rodney. Even though the body had seemingly divorced itself from the investigation, with no justifiable reasons, the engagement and appointment of ‘…Special Constables’ for purposes other than ‘…Crime and Security,’ appeared procedurally incorrect [Section 74: Police Act: Vol. 12]. The procedures had shown evidence of an administrative decision ‘…Pregnant with Irregularities.’ In the ‘…Terms of Reference,’ even without submission of their findings, investigators were urged to proffer disciplinary charges against the accused/suspended Commissioner [High Court Affidavit: ANUHCV: 2018/0202]. This suggested an exercise bordering a farce and may now be seen by Directors of the requested agency as an administrative blunder. Subject to judicial review, the embattled Commissioner may now seek declarations in nullifying the (i) ‘…Atlee Rodney-sanctioned investigation; (ii) …Special Constable Status; (iv) …delegated investigative authority; (v)  …their Report and findings,’ as to be procedurally wrong and shall be void and deemed of no effect. ***

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