Ex-cop loses appeal for reinstatement after being booted for misconduct

A former police constable, who was dismissed after pointing a firearm at two of his colleagues – one of whom was a superior officer – and hurling expletives at them during a late-night patrol, has lost his appeal to be reinstated to the Jamaica Constabulary Force (JCF).

The Court of Appeal, in a decision delivered on May 26, 2025, upheld a 2017 Supreme Court ruling that dismissed Petro Burton’s judicial review application challenging his dismissal from the Force.

Justice Frank Williams, in delivering the ruling, said, “The learned judge had sufficient evidence before her to arrive at the decision that she did.

“The orders of the judge were reasonable and unassailable, having regard to the facts and circumstances of the case.”

Burton had challenged the 2011 decision of the commissioner of police to dismiss him from the Force, following disciplinary proceedings relating to an incident that occurred on September 7, 2006, in Portmore, St Catherine.

In the September 7, 2006 incident, Burton and another officer were on mobile patrol in the Naggo Head area of Portmore. During the patrol, Burton allegedly pointed his firearm at a vehicle carrying two plainclothes officers – Detective Sergeant Patrick Walker and Constable Brennan Cohen – and used vulgar and threatening language, despite Walker identifying himself.

It was alleged that Burton uttered “P$### come out now,” and “Mi nuh care ‘bout yu p#$% rank, come out de vehicle.”

According to Burton, on approaching the “suspicious looking” vehicle he noticed that the driver had a firearm on his lap and appeared anxious and fidgety, and out of fear for his life pointed the weapon at the men.

Further in his defence, the ex-constable said he did not know that the men were policemen until after they had identified themselves.

However, four and a half years after the incident, Burton was instructed to write a report and in February 2011 was charged with three counts of misconduct under the Police Service Regulations, including disrespecting a superior officer and behaving unprofessionally. He was dismissed later that year following a court of enquiry.

UNLAWFUL DISMISSAL

But, the former constable argued that the nearly five-year delay in bringing charges – due to administrative errors, mislabelled files, and witness unavailability – rendered the process flawed and the dismissal unlawful.

He also claimed he was instructed by his then-superior, Superintendent Terrence Bent, to apologise and consider the matter resolved.

However, Bent, during the enquiry, denied instructing Burton to apologise.

Burton then appealed his dismissal but was never notified of the outcome. By 2012 he was denied re-enlistment and in 2014 was served with a notice of suspension with effect from November 17, 2011. He was thereafter advised that his appeal was rejected and his dismissal was subsequently published in the JCF’s weekly force orders.

Displeased with his dismissal, Burton sought permission for a judicial review with a number of orders including an order of mandamus to compel the commissioner to reinstate him as an active member and an order of certiorari to quash his dismissal but was unsuccessful.

He then filed an appeal with several grounds including that the judge’s decision was unreasonable, that she erred in finding that his dismissal was not ultra vires and excessive. He said the judge had also failed to consider the provisions of Section 32 of the Police Service Regulations within the circumstances of the case in that the delay of 7.5 years was abusive, a breach of process and therefore he was irremediably prejudiced.

Burton’s lawyer, Shantel Jarrett, argued during the appeal hearing that the delay in initiating disciplinary proceedings rendered the process unfair and in breach of Section 32 of the Police Service Regulations.

She further argued that the delay was the commissioner’s fault and that the lengthy delay would have affected the recollection of the witnesses called to give evidence.

Jarrett also claimed that the commissioner’s decision was ultra vires and sought an order of certiorari to quash the dismissal, mandamus to reinstate him, and damages for alleged unlawful administrative action.

CAUSES OF DELAY

The delay, according to the commissioner’s evidence, was caused by a mislabelled personnel file – incorrectly filed under “Constable Barton” – and an uncooperative witness. Then-Commissioner of Police Dr Carl Williams also cited resource limitations and backlogs within the Force.

The commissioner’s attorney, Taniesha Rowe-Coke, argued that delay by itself did not necessarily amount to prejudice and that it was Burton’s duty to provide evidence to the court that he suffered prejudice, which the judge found that he had not done.

She also argued that the issue of delay was not mentioned in the court of enquiry and should not be allowed.

In dismissing the appeal, Williams said the court found no legal error in the handling of the case.

“It is clear that the appellant failed to furnish the court below with the evidence needed to prove that the delay, albeit significant and unfortunate, was prejudicial to him,” the judge said.

“The appellant was afforded a hearing, and the charges against him were found to have been proven.”

Furthermore, she said, “A careful review of the judgment makes it clear that the learned judge considered the respondent’s delay and the reasons for the delay in arriving at her findings. She also considered whether the appellant was prejudiced by the delay, but correctly exercised her discretion in accepting the commissioner’s evidence as to the reasons for the delay and in rejecting Burton’s contention that he was prejudiced by the delay.”

Jarrett was instructed by Zavia Mayne & Co while Rowe-Coke was instructed by the director of state proceedings.

tanesha.mundle@gleanerjm.com