¹ú²úAV

Pursuant to section 3 of ST/AI/371, in determining if the preliminary investigation appears to indicate that the report of misconduct is well founded, the head of office or responsible officer is vested with a wide discretion. That discretion is to be exercised judiciously in the light of what the investigation has revealed. The discretion cannot and should not be used capriciously. It is incumbent on the person vested with that discretion to scrutinise the evidence carefully before deciding whether any act of misconduct as defined has been committed. A judicious exercise ofthe discretion requires a proper analysis of the meaning of the words appears to indicate that the report of misconduct is well founded in regard to the evidence. The European Court of Human Rights has stated that having reasonable suspicion presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence. It is the view of the Tribunal that the same approach should be adopted in the exercise of the discretion given to the head of office or the responsible officer in determining whether the report of misconduct is well founded following the investigation. The conduct of the preliminary investigation should demonstrate the investigator’s commitment to ascertaining the facts of the case. The rules of fairness should also be complied with and this requires the gathering of all relevant facts whether incriminating or exculpatory. In the Tribunal’s view, in addition to a breathalyzer test, other tests such as a blood analysis test (blood alcohol concentration test), urine analysis and overall behavior may be utilized provided that in the latter case those behaviors tested comply with international standards.