clr/1984/1984_3_449.pdf

(1984)endorse ihe illegal detention; that they could be ignored with immunity; that, in fac>, policemen had a duty to disregard them and they Could not become parties to an illegal detention; that, consequently, no charge of neglect of duty could be grounded upon alleged disobedience ofillegal orders; that inexorably, 5 the premises of the accusation of neglect of duty levelled against the applicant, collapse; that the reports that gave rise to the complaint and led to his interdiction, did not disclose a case, prima facie or otherwise, of neglect of duty; and that, consequently, the decision to interdict himwas ill-founded and ought 10 to be set aside. Held, further, that the respondents should pay £125 towards the costs of the applicant. Per Pikis, J.: The rejection of superior orders as a defence is a hedge against 15 arbitrary authority safeguarding an unqualified spirit of respect for the laws. In the last analysis, it is expected of men to reject illegal superior orders and guard the state of legality that should obtain in every civilised society; for, if illegal, superior orders are obeyed, they open the way to lawlessness. It is, after all, 20 not only difficult but impossible to reconcile any doctrine recognising superior orders as a defence and the fundamental principle of supremacy of the law a prerequisite for sustaining the rule of law. Sub judice decision annulled. 25 Cases referred to: Veis and Others v. Republic

(1979)3 C.L.R. 390; Payiatas v. Republic

(1984)3 C.L.R. 165; loannidis v. Republic

(1972)3 C.L.R. 318; Demetriou and Another v. Anastassiou (Larnaca Action No. 1095/75 deliveied on 7.1.78); 30 Anastasstou v. Demetriou and Another

(1981)I C.L.R. 589; R. v. Metropolitan Police Commissioner [1968] I All E.R. 763; Fisher v. Aldham Corpn. [1930] All E.R. Rep. 96; A.G. of New South Wales v. Perpetual Trustee Co. Ltd. [1955] I All E.R.

1. 450 35 3 GL.R. 5 10 15 20 25 Grigoropoullos v. Republic Recourse. Recourse against the decision of the respondent to interdict the applicant pending completion of investigation into a case of neglect of duty. L. Papaphilippou, for the applicant. A. Vassiliades, for the respondent. Cur. adv. vult. PIKIS J. read the following judgment. Applicant contests the validity of the decision to interdict him, taken by the Larnaca Divisional Police Commander on 2.12.83, suspending him from duty pending completion of investigation into a case of neglect of duty. During interdiction, hisemoluments werecut down to twothirdsofhisnormal remuneration. Thedisciplinary offence examined against him arose of and was connected with the detention and escape of four aliens from police) custody, on 28.11.
2. The charge against him was that he showed neglect inhisdutytooverseeorensuretheincarceration ofthedetainees. Notwithstanding the inconclusive character of interdiction and the absence of any permanent repercussions on the status of the officer in the Force, it is, nonetheless, an executory act because of its immediate legal consequences resulting in the removal, be it temporarily, of the officer from the Force and the financial repercussions consequent thereupon. So, although interdiction isanincident of a preparatory act, that is,theinvestigation, it is, because ofitsconsequences, detachable therefrom and justiciable as an independent executory act (see, Veis And Others v. Republic

(1979)3 C.L.R. 390; Payiatas v. Republic, delivered on 2.2.84 - not yet reported)*. The letter informing the applicant of his interdiction merely 30 records the decision. It says nothing of the facts giving rise to it or the reasons warranting his suspension. Interdiction is not an automatic consequnece of investigation into a disciplinary offence. It is a discretionary power, exercisable, like every discretionary power, in the interest of promotion of the purpose 35 for whichit isgiven. Power tointerdict vests,in virtue of regulation 23ofthe PoliceDisciplinary Regulations,inthe Divisional Police Commander, subject to the procedure specified therein. The principal object of the power to interdict is, to ensure the Now reported in

(1984)3 C.L.R. 165. 451 Pikis J. Grigoropouilos v. Republic

(1984)unobstructed investigation of a case. Temporary suspension from the Force isjustified whenever the removal of the officer from the rank isjudgedexpedientintheinterestsof the efficacy of the investigation. Failureto specify thereasonsleadingtoadecisioninthenoti- 5 fication of the decision, is not fatal. The reasoning may be supplemented and,inapropercase,extractedfrom thefile ofthe case. The material in the file of the case, preceding the interdiction, consists oftwo reportsprepared, the one byP.Polydorou, Assistant Chief of Police (exhibit 1) and, the other, by 10 Chief Inspector Spyrou (exhibit 2). The reports review the facts relevant tothearrest ofthefour aliens,theirdetention,the legal and factual circumstances bearing on their detention, as wellastheirescape. Blameisthrownonsomeofficers, including theapphcantf- apolicesergeant-forfailuretopreventorcontain 15 theescapeofthedetainees. Inface ofthefactsdisclosed bythe reports, counsel for the appUcant submitted that not only they reveal no reasons necessitating theinterdiction of the applicant, butdemolishinthemselveseveryallegationofneglectofdutyon thepart oftheappUcant. For, thedetention wasillegal and no 20 onehad a duty tooverseeitscontinuance. It appearsfrom the reportsthat the detainees werefirst arrested and later remanded in custody for the possession and carrying of firearms. Although the order for their remand expired and the case against them was closed, they were kept in custody, in anticipation of 25 arrangements for their departure from Cyprus. No formal deportation was contemplated and no order for their deportation wasissued*. Theircontinueddetentionhadnolawful authority in law and was patently illegal. The oral evidence before the Court, coming from Inspector N. Parpas and Chief Inspector 30 Kouis, confirms the facts relevant to detention, outlined in the reports. There can be no doubt. The detention of the four aliens,for whoseescapetheapplicant wasaccused of neglectof duty, was unauthorised and illegal. Counsel for the Republic acknowledged the police had no 35 (See,Article 11(f)of the Constitution, and s.14 of theAliensandImmigration Law—Cap. 105. For a discussion of thecircumstances under which detention, for purposes of deportation is legitimised, see Fawcett—Application of the European Convention on Human Rights,pp. 86 and 87—loannides v. Republic

(1972)3 C.L.R. 318). 452 3 C.L.R. Grigoropoullos v. Republic Pikis J. authority to detain the four aUens. The crux of the matter is whether the Divisional Police Commander, or any other police officer, had a right, notwithstanding the lack of authority for the detention of the four aliens, to issue instructions for their in5 carceration and demand of his subordinates, as a matter of duty,to keepthem incustody or overseetheirdetention. Carrying the argument a step further, if the Divisional PoUce Commander had norightto command hissubordinatesto enforce the detention of the four aliens, no duty could be cast upon any 10 pohceman to observe, enforce or implement such orders. The orders would beillegal. No oneis under duty to heed, obey, or enforce illegal orders. A policeman isan instrument of the law. In the discharge of his duties, he embodies the authority of the law. Who defines 15 his duties? His duties are defined by the Police Law, Regulations made thereunder and residually by the common law. So long as a command of hissuperior emanates from the law, he is dutybound to implement it, to carry it out as effectively as he can, in vindication of the law. But no superior can order him 20 to do something that the law does not permit. More so, something that the law prohibits. Superior orders are not, in themselves, a source of legal authority. Their vahdity is directly dependent on the lawfulness of their origin. If they are issued outside the bounds of the law, they have no force and, if they 25 direct the doing of something that isillegal, not only they can be ignored at will, but they must be ignored as a matter of duty. Superior Orders: In Eleni Demetriou And Another v. Anastassiou*. I examined at length the impUcations of superior orders and the duty of those to whom they are addressed. The 30 subject wasexamined in connection with the coup d'etat but the principles adopted and applied are of universal application. They turn on the supremacy of the law. The imprint of higher authority does not settle a poUceman's or anybody's duties. Only the law defines rights and duties. Duties detailed in the 35 course of application of the law, must be carried out minutely. Otherwise, superior orders are valueless as a source of legal authority. I put the matter in this perspective: "The rejection of superior orders as a defence is a hedge • Action 1095/75, Larnaca District Court—Judgment delivered on 7.1.1978). 453 pais J. GrigoropouIIos v. Republic

(1984)against arbitrary authority safeguarding an unqualified spirit of respect for the laws. In the last analysis, it is expected of men to reject illegal superior orders and guard the state of legality that should obtain in every civilised society; for, if illegal, superior orders are obeyed, they 5 open the way to lawlessness. It is, after all, not only difficult but impossible to reconcileanydoctrine recognising superior orders as a defence and the fundamental principle of supremacy of the law, a prerequisite for sustaining the rule of law". 10 (p.10 of judgment) On appeal, the Supreme Court adopted the approach of the Court of first instance, espoused its reasoning and largely reproduced its text, authoritatively settling the invalidity of superior orders, as a legal norm—See, Anastassiou v. Demetriou 15 And Another

(1981)1 C.L.R.

1. The position of a policeman in law, wasthe subject of weighty pronouncements in R. v. Metropolitan Police Commissioner [1968] 1 All E.R.
2. Especially instructive is the judgment of Lord Denning, M.R., who described, if I may say so with 20 respect, the position of a policeman in terms that is difficult to rival. The pohceman, he said, is not the servant of anyone, save of the law itself. No one can tell him, no matter how high he stands, to do anything outside the law. Any such directions must beignored. The pohceman is himself the agent 25 of the law, an expression of its authority, the guardian of the peaceable objects of society. In the words of Lord Denning, "he is answerable to the law and to the law alone" (see, also, Fisher v. Aldham Corpn. [1930] All E.R. Rep-, 96 and, A-G for New Southwales v. Perpetual Trustee Co. (Ltd.) [1955] 1 30 All E.R. 846). I find myself in total agreement with the principle expounded in R. v. Metropolitan Police Commissioner and, share the judicial sentiment behind the judgment. The sovereignty of the people will be destroyed if anyone other than its representatives has a right to frame or shape legal com- 35 mands. In the absence of judicial sanction, as provided in Article 11.2 of the Constitution, the detention of the four aliens was illegal. Equally illegal were instructions designed to endorse the illegal detention. They could be ignored with immunity. 40 454 3 CX.R. Grigoropoullos v. Republic Plkis J. In fact, policemen had a duty to disregard them. They could not become parties to an illegal detention. Consequently, no charge of neglect of duty could be grounded upon alleged disobedience of illegal orders. That the Police were trying to 5 cope with a difficult situation, does not alter the complexion of their acts. Illegal action does not become legal on account of benevolent motives. Inexorably, the premises of the accusation of neglecl of duty levelled against the applicant, collapse. The reports that gave rise to the complaint and led 10 to his interdiction,did not disclose a case, prima facie or other­ wise,of neglect of duty. Consequently, thedecision to interdict him was ill-founded and ought to be set aside. I have purposely refrained from examining the oral evidence before me, bearing on the alleged complaint of neglect of duty. 15 Suchevidence would be relevant, if a case of neglect of duty was disclosed. If such had been the case, this would not be the proper stage of evaluating it. I merely notice that from the evidence of officers Parpas and Kouis, no fault whatever can be attributed on the appUcant. I shall not probe theissue further 20 for, as already decided, the whole case against the appUcant is ill-founded, as well as the interdiction that followed it. The sub judice decision is hereby annulled. Counsel for the appUcantinvited the Court to make an order for costs in favour of his cUent, not least because of the dis25 bursements incurred for the vindication of his rights. His out-of-pocket expenses alone, amounted to £57.-. Ϊ remind that the case was adjourned more than once in order to afford an opportunity to the respondents to defend the proceedings. In the exercise of my discretion, I shall adjudge the respondents 30 to pay £125.- towards costs of the applicant. Sub judice decisionannulled. Order for costs as above. 455