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Police Commissioner Erla Harewood-Christopher – File photo by Angelo Marcelle
The Court of Appeal has ruled in favour of Commissioner of Police (CoP) Erla Harewood-Christopher in a lawsuit brought by gun dealer Towfeek Ali, saying she is not compelled by law to communicate delays in approvals for ammunition import applications.
Ali, who is managing director of the Firearms Training Institute (FTI), took the commissioner to court over delays in approving his company’s importation of 3.6 million rounds of ammunition.
Import permits were previously granted within a month, but on June 28, 2022 Ali submitted two import permit applications and received no response.
On September 12, 2022 he wrote to the COP, reminding her of the applications.
He followed up with another letter on November 1, 2022, asking for the permits to be granted no later than November 10, 2022.
He received a letter dated November 10, 2022, from a legal officer attached to the office of the CoP asking for 14 working days to ascertain the status of the applications, but never received any further response.
Almost eight months after filing the application and having got no reply, Ali filed an application for leave to apply for judicial review on February 8, 2023 and issued the claim on March 14, 2023.
He sought a declaration that the continuing failure of the commissioner to make a decision in relation to the import applications was unlawful; and an order compelling the commissioner to make a decision on the applications within seven days.
The trial judge ruled in Ali’s favour, declaring the delay unlawful and ordering the commissioner to pay his legal costs.
The Appeal Court, though, found the judge had erred in his decision.
In their ruling issued on July 16, Justices of Appeal Ronnie Boodoosingh, Mark Mohammed and Peter Rajkumar said the trial judge’s failure to appreciate what steps the commissioner was actually taking in the months after the application was a fundamental error.
“While the trial judge correctly recognised the national security concerns that justified the pause, he first erred in not appreciating that during the seven-month period of delay, and even thereafter up to May 1, 2023, efforts and ongoing exercises were being conducted to ascertain the quantity of arms and ammunition legally imported into the country, an exercise which had been complicated by extremely deficient record-keeping.
“It led the trial judge to the conclusion that if during five months of the seven-month period…nothing had been done (which was not in fact the evidence), this would serve to minimise the continued relevance of the serious national security concerns raised by the COP.”
They said the CoP’s evidence showed “a number of steps” were being taken which may have caused the delay, including the inspection of the stock and registers of all licensed firearms dealers, along with an ongoing exercise to collate information on the quantities of firearms and ammunition imported.
“This involved liaising with the Customs and Excise Division. It was also necessary to attempt to ascertain how many firearms were test fired and introduced into the ballistics database over the period 2018-2022. Further a draft Firearm User Licence (FUL) policy which contained input from the office of the CoP was submitted to the Ministry of National Security on December 19, 2022.”
It said these issues all suggested there was a reason for the pause in approvals granted by the office of the CoP.
“While the decisions on the applications themselves were paused, relevant steps were being taken towards addressing the national security concerns of the office of the CoP.”
The justices added although courtesy might dictate the CoP should communicate delays in considering applications for import permits, she was not mandated by law to do so.
“While communication with applicants may be appropriate, especially in light of the exercise and the lengthy delay it would cause, that matter does not go towards the issue of legality, that is, whether the delay in considering the application was unreasonable in the circumstances. It may go towards the issue of public relations, courtesy or good public administration.”
They said the judge should have taken into account the CoP’s assertions of public safety and national-security considerations.
“He was not entitled to assume that if items of information were coming in that the commissioner could project as to a likely date for making a decision. Further such an assumption was too speculative a basis upon which to ground an alleged default on the part of the CoP, far less one which had the effect of rendering unlawful her delay in making a decision on the applications.”
The justices suggested, in any event, it was impossible for the CoP to provide an estimated timeframe for granting the approvals.
“The clear evidence was that for good reasons of national security, reasonable in the circumstances explained, an estimated time for the decisions could not have been provided.
“Providing an estimate which one cannot meet can be no better than providing no estimate at all. If an estimate is provided then it would have to be based upon some material, or evidence. Providing an estimate for the sake of providing an estimate, which cannot be met is not required as a matter of law. There is therefore no basis for elevating this to a requirement of law such that its omission could render the instant delay unlawful.”
In response to the Appeal Court ruling, attorney Nyree Alfonso, Ali’s wife, said they intend to take the matter to the Privy Council.
In a statement issued on July 16, Alfonso said they are “deeply troubled” by the court’s decision, which she said seemingly gives a nod of approval to the CoP to “continue a dilatory approach to the granting of firearm user’s licences (FULs) and other permits under the Firearms Act.
“The CoP has asserted that national security considerations are the genesis for her refusal to grant certain applications under the act. One assumes that the personal security of law-abiding citizens who wish to own firearms and to train in their use using ammunition must be subsumed to the CoP’s view of national security considerations.”
Alfonso said the CoP’s delay in approving FULs and other firearm-related applications has done nothing to address crime.
“The claimant’s note that depriving firearms dealers and owners of permission to import ammunition for a period of over two years has not had the effect of stymieing the crime wave which has engulfed the country.”
