Clinch v Dorset Police Authority

This is an appeal by way of Case Stated from the decision of the Crown Court at Dorchester (Mr. Recorder D. O’Brien Q.C., W.Painter J.P and J.Smith J.P.) of 12 September 2002 in respect of that Court’s decision to dismiss the appeal of Mr. Trevor Clinch under Regulation H5 of the Police Pensions Regulations 1987 (“the Regulations”). The appeal to the Crown Court was brought against the refusal of the Dorset Police Authority to admit Mr. Clinch’s claim to an “injury on duty award” or to refer him to a duly qualified medical practitioner for consideration of his entitlement.

The facts as found by the Crown Court were as follows:

“2.

Inspector Clinch joined the Dorset police on 12^th March 1979. He was promoted to sergeant on 4^th January 1983 and to Inspector on 17^th December 1984.

From 1986 onwards he appeared before promotion boards obtaining ‘B’ Grades (suitable for promotion but not immediate promotion) but it was not until September 1999 that he achieved ‘A’ Grade (suitable for immediate promotion). He applied for a number of Chief Inspector roles outside the Dorset Force but failed to obtain appointment. He never attained the rank of Chief Inspector.

He attributed his failures in these respects to the fact that he did not do well or as well at interview as his competitors and the interview was central to the promotion and appointment processes.

In 1998 he was appointed as Licensing Inspector in Poole which he regarded as a dead end job and his psychiatric problems started at this time.

In early 2000 he applied for the post of Chief Inspector, Operations Manager at Poole. On 10^th March 2000 he was told (after the successful candidate had already been told) that he had not been selected. He regarded this as the last straw.

Inspector Clinch saw the Force Medical Officer Dr. Spiro on several occasions in 2000 (partly in respect of an unrelated condition concerning his back) but on 6^th December 2000 he was certified as disabled.

At this time we are told that Inspector Clinch was certified as disabled due to a psychiatric condition namely depression and was retired from the force on an ill-health pension. We were not shown the certificate but both Counsel agreed that this was the position.

3.

On 20^th December 2000 the Police Federation on behalf of Inspector Clinch applied to the Police Authority that consideration be given to the provision of an injury on duty award.

4.

There was a long delay during 2001 but on 24^th September 2001 the Police Authority made its decision communicated by letter of that date.

“… the Police Authority are not considering whether your disablement is the result of an injury received in the execution of duty. There will therefore be no reference of the issues to the Force Medical Officer.”

In essence, the Police Authority determined that Mr. Clinch’s injury was not one received in the execution of his duty because of the circumstances in which it was sustained and that, therefore, there was no requirement to refer to the duly qualified medical practitioner under the provisions in that regard to be found in Regulation H1 of the Regulations. Mr Clinch contends that the question decided by the Authority was not a matter for them since they were obliged by the Regulations to refer that question to the qualified medical practitioner. Moreover, he submits that, in so far as the Authority did take such a decision, it was wrong to decide that his depression was not an injury received in the execution of his duty.

He duly appealed to the Crown Court which decided that the Authority was entitled to take the decision it did, without reference to the qualified medical practitioner, and that, moreover, Mr Clinch’s condition arose simply by virtue of his status as a constable and was not an injury received in the execution of his duty. Further, it decided that Mr. Clinch’s claim was one that could not succeed in the light of the decision of the Court of Appeal in R v (on the application of Stunt) v Mallett [2001] ICR 989 and could not be saved by any certificate given by a medical practitioner under the reference procedures in the Regulations. Thus, the Crown Court refused the application under Regulation H5(1) in exercise of its powers to inquire into the case and make such order in the matter as appeared to it to be just.

In the case stated, the Crown Court seeks the opinion of this Court upon the following questions:

(1)

Whether the Crown Court erred in its approach to the words “are considering whether to grant an injury pension” in Regulation H1(2).

(2)

Whether, in the context of an application for a policeman’s injury on duty award under regulation B4 of the Regulations, a police authority is entitled or required to determine whether an injury was received in the execution of the officer’s duty as a constable without reference to a duly qualified medical practitioner.

(3)

Whether as a matter of law and in light of the decision in Stunt a psychiatric condition caused by a person’s disappointment at repeated failures to obtain promotion is an injury received in the execution of that person’s duty as a constable.

(4)

Whether the Crown Court erred in deciding that the application could not succeed and could not be saved by any certificate which a medical practitioner could properly give and that in exercise of its powers and duties under Regulation H5(1) the appeal should be dismissed.

The Regulations are made under the Police Pensions Act 1976, section 1. This provides as follows:

“(1)

Regulations to be made by the Secretary of State, with the consent of the Minister for the Civil service and after consultation with the [Police Negotiating Board for the United Kingdom], shall make provision-

(a)

as to the pensions which are to be paid to and in respect of members of the police forces, whether as of right or otherwise; …

(c)

as to the times at which and the circumstances in which members of police forces are or maybe required to retire otherwise than on the ground of misconduct.

(2)

Without prejudice to the generality of the provisions of subsection (1) above, any such regulations shall provide for the payment subject to the regulations-

(a)

of pensions to and in respect of persons who cease to be members of a police force after having served for such period as may be prescribed by the regulations; …

(c)

of pensions to and in respect of persons who cease to be members of a police force by reason of injury received in the execution of their duty; …”

Section 6 (entitled “Appeals”) provides:

“(1)

Subject to the following provisions of this section, regulations made under section 1 above shall make provision as to the court or other person by whom appeals are to be heard and determined in the case of any person who is aggrieved-

(a)

By the refusal of the police authority to admit a claim to receive as of right a pension, or a larger pension than that granted, under regulations made under that section; or

(b)

by the forfeiture of any pension granted to him thereunder.

(2)

No provision made in the regulations by virtue of subsection (1) above shall confer a right of appeal against anything done by the police authority in the exercise of any power which is conferred on them by the regulations and is expressly declared by the regulations to be a power which they are to exercise at their discretion.

(3)

The Regulations may provide, in relation to questions arising thereunder, for the reference of any such matter as is prescribed, either by the police authority or by the court, to a medical practitioner whose decision thereon shall, subject to such rights of appeal as may be provided by the regulations to such tribunal as may be constituted thereunder, be final on the matter so referred”.

I was also referred to Section 8 which provides:

“(1)

Regulations made under section 1 above which revoke regulations previously so made, either wholly or as respects cases or matters of any description, shall contain provisions having the same effect as the provisions they revoke, except for any change (whether by way of alteration or omission) made in accordance with this Act”.

The scheme of the Regulations is to make provision for what are described, in Parts B to E, as “Personal Awards”, “Widows’ Awards”, “Children’s Awards” and “Awards on Death”. Within Part B, dealing with “Personal Awards”, the provisions are sub-divided between the “ordinary pension”, the “short service award”, the “ill-health award”, the “injury award” and the “deferred pension”. Mr. Clinch claims entitlement to an “injury award”. Such entitlement would arise under Regulation B4 which provides:

“ (1) This Regulation shall apply to a person who ceases or has ceased to be a member of a police force and is permanently disabled as a result of an injury received without his own default in the execution of his duty (in Part V of Schedule B referred to as the “relevant injury”)”.

Parts C, D and E of the Regulations also provide for awards to the widows, children and dependant relatives of a police officer who dies or has died “as the result of an injury received without his own default in the execution of his duty”: see regulations C2, D2 and E2. Further, in the case of widows and orphaned children, there is provision for further augmented awards where the relevant injury was suffered in the course of an attack, in effecting a lawful detention of an offender, in saving life or in other extreme circumstances, at the police authority’s discretion.

Part A of the Regulations is entitled “General Provisions and Retirement”. Regulation A11 deals with “Injury received in the execution of duty” and provides as follows:

“Injury received in the execution of duty

(1)

A reference in these Regulations to an injury received in the execution of duty by a member of a police force means an injury received in the execution of that person’s duty as a constable and, where the person concerned is an auxiliary policeman, during a period of active service as such.

(2)

For the purposes of these Regulations an injury shall be treated as received by a person in the execution of his duty as a constable if –

(a)

the member concerned received the injury while on duty or while on a journey necessary to enable him to report for duty or return home after duty, or

(b)

he would not have received the injury had he not been known to be a constable, or

(c)

the police authority are of the opinion that the preceding condition may be satisfied and that the injury should be treated as one received aforesaid”.

A12 deals with “Disablement” and is in these terms:

“(1)

A reference in these Regulations to a person being permanently disabled is to be taken as a reference to that person being disabled at the time when the question arises for decision and to that disablement being at that time likely to be permanent.

(2)

Subject to paragraph (3), disablement means inability, occasioned by infirmity of mind or body, to perform the ordinary duties of a male or female member of the force, as the case may be, except that, in relation to a child or the widower of a member of a police force, it means inability, occasioned as aforesaid, to earn a living”.

The submission on behalf of Mr. Clinch, that the Authority here was obliged to refer important elements of his claim to a medical practitioner, derives from Part H of the regulations. The material parts of Part H are as follows:

In this case, Mr. Clinch’s appeal to the Crown Court was pursuant to Regulation H5. His submission there and before me was and is that following the claim to the injury award, the Authority had to consider whether he was disabled and whether the disablement was the result of an injury received in the execution of his duty. Therefore, they were obliged to refer everything relating to those matters to the statutory medical practitioner for decision. On behalf of Mr. Clinch, Mr. Ford submits that the authority must still consider the questions of possible “default” under regulation B4(1), whether he should be required to retire and, if so, on what date under Regulation A20 and, if such a question arises, whether he should be treated as having received the injury because he was known to be a police officer under Regulation A11(2)(c). Otherwise, submits Mr. Ford, the Authority is bound to defer to the decision of the medical practitioner on all questions under Regulation B4(1) including whether the identified medical cause of the injury derived from the execution of Mr. Clinch’s duty. Thus, he submits that, notwithstanding that the question is one of law, it is the medical practitioner who decides whether a disablement caused by psychiatric problems arising from his lack of promotion prospects is the result of “an injury received in the execution of duty”.

It would be surprising if the legislature deliberately intended such a result. Is the Court restrained, however, to hold that such a result follows inevitably from the wording of Regulation H ? At least three Crown Courts have answered that question in the negative. Apart from the decision under appeal, there are also the decisions of the Crown Courts at Snaresbrook and Kingston upon Hull in Lyons v Secretary of State (Police Authority with Metropolitan Police) 29 May 1999 (His Honour Judge Reynolds, Mrs.J.Simpson JP and Mr. J. Povey JP) and Hubie v Humberside Police 7 August 2000 (His Honour Judge Mettyear and Justices) and there is also thought to be a similar decision of the Crown Court at Preston in Chapman v Lancashire Police Authority 17 April 2000 (His Honour Judge Aglionby).

Against this there are dicta of Latham J (as he then was) in R v Merseyside Police Authority ex parte Yates 19 February 1999 (CO/4181/97). In that case, Latham J refused a remedy by way of judicial review to a former officer who had also been disabled by psychiatric illness. The Authority had rejected his claim to an injury award without making any reference to a medical practitioner of the questions under regulation H1(2)(c) and (d). Latham J held that the Regulations provided a “self-contained” code of appeals and that the appropriate appeal was to the Crown Court. However, the learned judge went on to consider the substantive point as to the Authority’s duty to refer questions to a medical practitioner. He said,

“Nonetheless, it seems to me that it would be helpful if I considered the second argument of the respondents, since this is an argument of some importance not only in this case, but generally. There is no doubt that the scheme of Part H of the regulations, read literally, appears to abdicate to the medical practitioner responsibility for deciding issues in relation to which he is not necessarily appropriately qualified. In the present case, an answer to the question of whether the disablement is the result of an injury received in the execution of duty is a question of mixed fact and law. On other occasions, the question may well involve disputed issues of fact. It is not clear why the medical practitioner is considered the appropriate person to deal with these issues. There is merit in the contention that these are issues best determined by the Police Authority, subject to appeal to the Crown Court, which would provide a perfectly workable scheme.

I do not, however, consider that the Regulations permit anything other than a literal reading. The questions which are to be referred to the medical practitioner under Regulation H1(2) are unambiguous, and the answers given by the medical practitioner are, pursuant to Regulation H1(4) to be final. The answers will determine the claim subject to the rights of appeal. This produces an unsatisfactory result. If the claimant is dissatisfied with the answers of the medical practitioner as to the facts upon which his opinion is based, he has an appeal to the Crown Court; if he is aggrieved by reason of the medical practitioner’s opinion, then he has an appeal to the medical referee; if he is aggrieved by the medical practitioner’s conclusions as to law as to whether or not an injury was received in the execution of duty, it would appear that he can only challenge the matter by way of judicial review. That would be one of the special circumstances in which the court would intervene because the statutory scheme provides no effective remedy. As for the police authority, there is no mechanism which would enable it to correct any errors of fact upon which a medical practitioner may have based his opinion, unless they could be dressed up as issues of law, which again could be the subject matter of judicial review.

Despite the unsatisfactory consequences of the literal interpretation, I can see no way in which better sense can be made of the provisions without rewriting them. It follows that once a Police Authority applies its mind to a claim by someone such as the applicant that he is entitled to an injury pension, it is required pursuant to Regulation H1(2) to refer the relevant questions to a duly qualified medical practitioner. In any ordinary use of the word, the authority is “considering” the matter even if it decides to refuse the claim. It will then have refused to “admit a claim” so as to engage a right of appeal under regulation H5. A claim to an injury pension is a claim to receive “as of right” an award: this, it seems to me, is simply a phrase used to differentiate between awards which are discretionary and awards which are mandatory. It picks up a phrase in section 1(1) (a) of the Police Pensions Act 1976, which empowered the Secretary of State to make provision by way of regulations “as to the pensions which are to be paid to and in respect of members of Police Forces, whether as of right or otherwise……”. It follows that a Police Authority is not entitled to pre-empt the answers of the medical practitioner by coming to adverse conclusions as to fact, or law, in relation to the claim in order to avoid reference to the medical practitioner. That would not, however, prevent a Crown Court from declining to require the Police Authority to refer the matter to a medical practitioner in a case where the claim is obviously spurious or vexatious.

The applicant’s claim in the present case certainly does not fall into that category. If Doctor Spratt is correct, the applicant would appear to have suffered an injury, within the definition in the regulations. Again, if he is correct, that injury was sustained as a result of the disciplinary proceedings against him. The applicant was obliged as part of his duties as a police officer to subject himself to such proceedings. I can see much to be said for the argument that he was in the course of his duty whilst subject to those proceedings, and therefore “while on duty” for the purposes of Regulation A11(2)(a). But I consider that these issues should be resolved within the scheme of Part H of the Regulations”.

It is clear that Latham J regarded his view of the proper construction of the Regulations as leading to an unsatisfactory result but he felt compelled by what he saw to be the literal meaning of the relevant words.

In a distinguished argument Miss Powell for the Authority submits that a full reading of regulation H1 in the context of the regulations as a whole and of the statutory background indicates that the “literal interpretation” is not correct.

First, Miss Powell submits that, as with all legislation, in this problem of statutory construction the task is to give effect to the intention of the legislature. The legislature should not be presumed to have intended an absurd result and particular care should be exercised to avoid such a result in subordinate legislation which purports to give effect to the will of Parliament expressed in the principal Act. Unless the statute itself compelled the making of Regulations producing an unlikely result, the court should be slow to find that such a result has flowed from the delegated legislation made under such statute.

Secondly, she submits that the regulations as a whole make it clear that the primary decision upon all questions of pension entitlement is that of the police authority and that the Regulations may require the reference of ”Medical Questions” to medical practitioners, as the heading to Part H of the Regulations indicates.

Thirdly, she submits that when seen in the context of the legislative history and the case law in other areas, it is clear that questions, such as the one arising here, cannot have been intended by regulation H1 to be decided by a medical practitioner.

I accept the first submission which seems to me to be clearly correct in principle.

The second submission requires closer examination of the Regulations. Here, Miss Powell submits, that the true construction of the Regulations requires the authority to consider and decide all the questions arising under Regulation B4 but with the obligation to refer “medical questions” rather than questions of fact or law to the medical practitioner. She derives that construction from two sources internal to the Regulations themselves. First, she relies upon the definition of “injury received in the execution of duty” in Regulation A11, and in particular A11(2). For ease of reference, I quote Regulation A11(2) again:

“(2)

For the purposes of these Regulations an injury shall be treated as received by a person in the execution of his duty as a constable if –

(a)

the member concerned received the injury while on duty or while on a journey necessary to enable him to report for duty or return home after duty, or

(b)

he would not have received the injury had he not been known to be a constable, or

(c)

the police authority are of the opinion that the preceding condition may be satisfied and that the injury should be treated as one received aforesaid”.

Miss Powell says that the express reference to “the police authority” in paragraph (c) makes it clear that under that paragraph the decision is for the authority alone. Further, since (subject to Part H) questions of entitlement are for the authority in the first instance, the questions arising under paragraph (b) and (a) must also be for the authority. It cannot, for example, have been intended that a medical practitioner should decide the factual questions that may arise under paragraph (a) of whether a particular injury was sustained on a journey necessary for him to report for duty or return home after duty. Mr. Ford’s submission (in an equally excellent argument) was that this takes the matter no further since the Glossary of Expressions in schedule A to the regulations provides that the expression “injury received in the execution of duty” is to have the meaning assigned to it in Regulation A11. Therefore, that definition has to be read with that term in regulation H1(2). Accordingly, this is a matter that has to be explained to the medical practitioner when questions are referred to him and he must then decide any question arising under Regulation A11 also.

Secondly, Miss Powell submits that the fact that there is no reference to medical practitioners with regard to any issue relating to “injury received in the execution of duty” in the case of widow’s awards, children’s awards or dependant relatives’ awards indicates that, in general, the primary questions under the regulations are for the police authority to take with any strictly medical questions being referred to medical practitioners in limited circumstances under Part H of the Regulations. Mr. Ford’s reply was that this is simply an indication that the Regulations, resulting after consultation with the joint negotiating body, had made specific provision for the medical practitioners to decide all these issues with regard to personal awards but had left death benefits to the police authority.

Miss Powell makes three further points from the internal drafting of the Regulations. She submits that Regulations H4 and H7 point to the construction for which she contends. These read (respectively) as follows:

“Refusal to be medically examined

4.

If a question is referred to a medical authority under Regulation H1, H2 or H3 and the person concerned wilfully or negligently fails to submit himself to such medical examination or to attend such interviews as the medical authority may consider necessary in order to enable him to make his decision, then –

(a)

if the question arises otherwise than on an appeal to a medical referee, the police authority may make their determination on such evidence and medical advice as they in their discretion think necessary;

(b)

if the question arises on an appeal to a medical referee, the appeal shall be deemed to be withdrawn”.

“Limitations on appeals

“7.

(1) An appeal shall not lie under regulation H5 or H6 against anything done by a police authority in the exercise of a power conferred by these regulations which is expressly declared thereby to be a power which they are to exercise in their discretion.

(2)

Subject to Regulation H3(1), in any proceedings under regulation H5 or H6 the court or tribunal shall be bound by any final decision of a medical authority within the meaning of regulation H3”.

On Regulation H4, Miss Powell’s point is that the reference in paragraph (a) to the police authority making “their determination” in a case where an officer fails to submit to medical examination, indicates that the decision is in all cases that of the authority with the assistance of answers provided by the medical practitioner, where necessary and practicable, and otherwise upon such evidence and advice as is thought necessary.

On Regulation H7, Miss Powell asks rhetorically, can it really have been the draftsman’s intention that the Crown Court on an appeal was to be bound by a final decision of a doctor on a question of law.

Miss Powell’s third point was that the Heading and Sidenote to part H of the regulations both refer to “medical questions”. This, she says provides a further indication that it was only questions of that nature which were intended to be referred to the doctors.

Mr. Ford’s simple response, which is none the worse for its simplicity, is that the words of Regulation H1(2) are entirely clear and that the consequences must follow. In other words, even if I were to accept (as I do) Miss Powell’s submission that the Court should be slow to find that such delegated legislation as this has produced an unsatisfactory and perhaps unintended result, the words of the Regulations compel such a result. In so far as there are contradictions of the nature pointed out by Miss Powell, they cannot (Mr. Ford submits) prevail over the clear words of the Regulation. It should perhaps be observed that the Crown Court decisions to which I have referred largely adopt reasoning similar to the points made by Miss Powell which I have endeavoured to set out above. Each considered that the alternative was unsatisfactory and, if possible, the Regulation ought to be construed in a manner that led to a satisfactory result.

Miss. Powell’s second main submission derived from the statutory background to the present regulations. The initial statute to which reference was made was the Police Pensions Act 1921, in Section 12 of which it was clearly enacted that the relevant decisions as to injury in the execution of duty were to be taken by the police authority with the requirement that the authority should take evidence where necessary from a doctor.

There then followed the Police Pensions Act 1948 which provided for all these matters to be governed by regulations made by the Secretary of State, with the consent of the Treasury, after consultation with the Police Council. Section 5 of the 1948 Act provided for an appeals procedure in the following terms:

“Appeals.

5.

(1) If any person (other than a person such as is mentioned in subsection (1) of section one of the Police (Overseas Service) Act, 1945), is aggrieved by –

(a)

the refusal of the police authority to admit a claim to receive as of right a pension, or a larger pension than that granted, under the regulations made under this Act; or

(b)

the forfeiture, under the provisions in that behalf contained in this Act, of any pension granted to him, whether under the regulations made under this Act or under any of the enactments specified in Part I of the First Schedule to this Act.

he may appeal to a court of quarter sessions and that court, after enquiring into the case, may make such order in the matter as appears to the court to be just:

Provided that-

(a)

nothing in this section shall confer a right to appeal against anything done by the police authority in the exercise of any power which is conferred on them by regulations under this Act and is expressly declared by those regulations to be a power which they are to exercise in their discretion;

(b)

regulations made under this Act may provide, in relation to questions arising out of those regulations, for the reference of any such matter as is specified in the regulations, either by the police authority or by the court, to a medical practitioner, whose decision thereon shall, subject to such rights of appeal as may be provided by the regulations to such tribunal as may be constituted thereunder, be final on the matter so referred”.

The Regulations made under that Act, the Police Pensions Regulations 1948, included Part VII which was headed “Determination of Questions” and noted in the margin as dealing with the “Reference of medical questions”. Regulation 47 provided:

“Determination of Questions

(1)

Subject to hereinafter provided, the question whether a person is entitled to any and, if so, what awards under these Regulations shall be determined in the first instance by the police authority.

(2)

Where the police authority are considering whether a person is disabled they shall refer for decision to a duly qualified medical practitioner selected by them the following questions:-

(a)

whether the person concerned is disabled,

(b)

whether the disablement is permanent,

and, if they are further considering whether to grant a supplemental pension, shall so refer the following questions:-

(c)

whether the disablement is the result of an injury received in the execution of duty, and

(d)

the degree of the person’s disablement,

and, if they are considering whether to revise a supplemental pension, shall so refer question (d) above.

(3)

A police authority, if they are considering the exercise of their powers under regulation 44, shall refer for decision the question whether the person concerned has brought about or substantially contributed to the disablement by his own default to a duly qualified medical practitioner selected by them.

(4)

The certificate of the selected medical practitioner on the questions referred to him under the preceding provisions of this Regulation shall, subject to the provisions of Regulations 48 and 49, be final”.

As can be seen, that Regulation is in essentially identical terms to Regulation H2 of the 1987 Regulations. Subsequent Regulations of 1962, 1966 and 1971 made similar provision: see Regulation 49 of the 1962 Regulations, Regulation 53 of the 1966 Regulations and regulation 70 of the 1971 Regulations.

Miss Powell’s submission was that the later legislation should be presumed, other matters being equal, to have intended the least alteration of the existing law. She submits that, given the clear position under the 1921 Act, and the absence of any indication in the 1948 Act to change the mechanics of decisions upon pensions entitlement, it should not be thought that Parliament intended that new Regulations should now provide for all these matters to be determined by a medical practitioner.

Mr. Ford’s response was straightforward: he submits that Parliament provided for an entirely new procedure for prescribing how pension entitlement should be determined. Everything was to be left to Regulations, promulgated after appropriate consultation with the officers’ negotiating body. It should not be thought, therefore, that Parliament intended or envisaged the preservation of the “status quo ante” 1948. It should, therefore, be no surprise if the 1948 Regulations produced a change. As a final “throw”, Miss Powell postulated a hypothetical case in which the Authority is confronted with facts on which it is clear that the claimant police officer is not entitled as a matter of law to an injury award, e.g. facts such as those in Stunt’s case where the Court of Appeal held that, in law, the officer was not entitled to such an award. Is, she asks, the Authority still bound to refer the matter to a doctor who must then deal with the statutory questions even though there can be only one answer?

In the end, it seems to me that this statutory enigma can only be solved by one of two unsatisfactory results. Either one can take the line favoured by Latham J in applying the literal wording of the Regulations to an unsatisfactory conclusion or one can try to detect in Miss Powell’s statutory pointers significant contra-indications to decide that the effect of the literal wording cannot have been intended. If one takes the latter course, it must mean that it is necessary to imply in the statute some additional words as was decided by the Crown Court in Lyons’ case or as was necessary to Miss Powell’s argument. While this is not a case of a claim to rectify a contract (to which other principles apply) it is not clear what words are necessary. They will change depending upon the varying questions that arise.

In the end, on this first issue, in the light of the arguments and the decisions and dicta of persuasive authority before me, I propose to follow the dicta of Latham J in Yates’s case. On the wording of the Regulations as drafted, it seems to me that the conclusion drawn Latham J is unavoidable. I do not see that the other provisions identified by Miss Powell are sufficient to do away with the need to follow the literal words nor do they suggest an obvious alternative re-reading of the Regulations such as to make clear that the intention of the maker of the Regulations was other than that which the express words provide.

The result, on the procedural question, is less than satisfactory. However, in many cases in practice the questions that go to the doctors will be truly medical ones and the Claimant and the Authority will be able, if so advised, to make representations to the doctors on matters that are not truly medical in nature. It is, moreover, interesting to note that the true legal question arising out of the facts in Stunt’s case eventually reached the Court through the avenue of judicial review (as Latham J envisaged they would). There is no reason to think that if it had been the Authority that had been dissatisfied with the legal conclusions drawn by the medical authorities in that case , it would not have been possible for it also to seek a judicial review of those conclusions, so as to reach an appropriate forum for the resolution of questions of law: see e.g. the course of proceedings in R v Kellam, ex parte South Wales Police Authority [2000] ICR 632. I would, therefore, answer questions (1) and (2) posed by the Crown Court, “Yes” and “No” respectively.

I turn now to question (3) that is whether “a psychiatric condition caused by a person’s disappointment at repeated failures to obtain promotion is an injury received in the execution of that person’s duty as a constable”.

In the present case, the Crown Court found that Mr. Clinch’s psychiatric problems did not arise from performance of his duties but from the lack of prospects of any promotion from it: see paragraph 6(5) of the Case stated. The Court assumed that the medical cause and effect for which Mr. Clinch contended could be fully supported by a medical practitioner and they noted that Mr. Clinch accepted that they should proceed on the basis that his depressive condition was due to his failure to attain the career advancement to which he thought he was entitled: see paragraph 18 of the judgment.

The answer to the question posed by the Crown Court lies in the decisions of the Courts ending with Stunt’s case (surpa). In R v Kellam ex parte South Wales Police [2000] ICR 632, 644-5, Richards J drew conclusions from the earlier authorities. The primary test is whether the injury is directly and causally connected with the officer’s service as a police officer. When considering a psychiatric condition it is necessary to find a causal connection with service as a police officer in order to establish that the injury has been received while on duty, just as it is necessary to find such a causal connection in order to establish that the injury has been received in the execution of duty. The test of causation is not to be applied in a legalistic way and fine distinctions between direct and indirect causes are impermissible. There needs to be a substantial causal connection between the injury and the person’s service as a police officer as opposed to a situation where the receipt of an injury and the service were entirely coincidental. The causal connection has to be with the person’s service as a police officer not simply with his being a police officer. “Duty” is not to be given a narrow meaning. It relates not just to operational duties but to all aspects of the officer’s work. Again, the causal connection with the service may not be the only cause but it must have been substantial. In Kellam’s case itself it was held that the medical referee had not erred in holding that the officer’s anxiety and depression caused by victimisation for a number of years by work colleagues satisfied the statutory test. Simon Brown LJ, giving the first judgment in the Court of Appeal, said that he had no doubt that officers whose depressive illness develops from the accumulated stresses of their work qualify for an award. It followed that he regarded the series of cases concluding with Kellam had been rightly decided “provided only and always that the officer’s ultimately disabling mental state had indeed been materially brought about by stress suffered actually through being at work” : see [2001] ICR at page 1000, paragraphs 33 and 34. At page 1001 of the report, Simon Brown LJ said,

“….I would at least suggest that Kellam takes to their limits the principles which [Richards J] himself deduced from the earlier cases. It was, as it seems to me, critical to his final conclusions that most if not all of the various stresses had borne more heavily upon [the officer] because of his actually being at work and mixing with other police officers at the time”.

With regards to the particular injury alleged in that case, Simon Brown LJ’s conclusion was:

“Sympathetic though I am to police officers for the particular risk of disciplinary proceedings they run by the very nature of their office, I cannot for my part accept the view that if injury results from subjection to such proceedings it is to be regarded as received in the execution of duty. Rather it seems to me that such an injury is properly to be characterised as resulting from the officer’s status as a constable – “simply [from] his being a police officer” to use the language of paragraph 5 of Richards J’s conclusions in Kellam [2000] ICR 632, 645 when pointing up the critical distinction. This view frankly admits of little elaboration. It really comes to this: however elastic the notion of execution of duty may be, in my judgment it cannot be stretched wide enough to encompass stress-related illness through exposure to disciplinary proceedings. That would lead to an interpretation of regulation A11 that the natural meaning of the words just cannot bear.”

Longmore LJ agreed as did Lord Phillips of Worth Matravers MR, whose judgment included the following, at page 1004, paragraph 56:

“There is one common element in each case in which the injury was held to have been sustained “in the execution of duty”. An event or events, conditions or circumstances impacted directly on the physical or mental condition of the claimant while he was carrying out his duties which caused or substantially contributed to physical or mental disablement. If this element cannot be demonstrated it does not seem to me that a claimant will be in a position to establish that he has received an injury in the execution of his duty”.

Miss Powell submits that the relevant disability must arise from the conduct or conditions of the officer’s duty. Disabling psychiatric injury deriving from failure to achieve promotion to other duties does not meet the statutory test. She pointed me to a decision to similar effect in the Crown Court at Kingston-upon-Hull in later proceedings in Hubie’s case (His Honour Judge Dowse, Mr. R.E.Hills JP and Mrs. L.A. Hall JP). She submitted that the Crown Court in the present case had been correct to state that, given the reasoning in Stunt, the present case was “a fortiori” . See paragraph 18 of the judgment.

For my part, I am unable to see that, in the present case, an event or events, condition or circumstances impacted directly upon the mental condition of the Claimant while carrying out his duties which contributed to mental disablement. It seems to me that the relevant events impacted on his condition not while carrying out his duties but when, having sought to obtain other duties, he was disappointed in not being given them. The injury derived simply from “being a police officer” and wanting promotion that he failed to attain. On any ordinary meaning of the regulations that does not, in my view, amount to an injury received in the execution of duty. While Mr. Ford may be right to submit that the decisions of the courts have taken the meaning of the words “injury received in the execution of duty” beyond what one would intuitively consider that meaning to be, I believe that it is impossible to regard this medical condition as being such an injury. Like Simon Brown LJ, I find it difficult to elaborate upon the point, but, in essence, I accept Miss Powell’s submission.

Before leaving this part of the case I should refer to the decision of the Divisional court in R v Court and Bronks, ex parte Derbyshire Police Authority 11.10.94 upon which Mr. Ford relied and in which the following passage appears:

“Obviously, psychological stress is capable of amounting to an injury. The classic case is where an officer suffers a physical injury when on duty, for example in trying to arrest a criminal. But “injury” is not restricted to physical injury. Here the stress that this lady suffered from may have resulted from the proceedings before the Industrial tribunal and from dissatisfaction with her career advancement prospects, but what I cannot find acceptable is the suggestion that one can compartmentalise it, and say that these are private matters falling outside her public duty, because, in my judgment they, in fact, were intimately connected with her public duty. That indeed is where the stress was”.

When one looks at the facts of that case set out at pp. 2B – 3B of the same judgment, it seems clear that the case was also one of alleged discrimination and harassment coupled with the matters mentioned in the quoted passage. It is not surprising, therefore, that the Court’s decision on that aspect of the case was that there was clearly material on which the medical referee could have arrived at the conclusion he did and that it was impossible to say that no reasonable Medical Referee could have arrived at the same conclusions. I do not consider that this case assists materially with the issue in the present case where disappointment at failing to achieve promotion is accepted to be the only relevant cause of the medical condition.

As a result of the conclusion set out above, I answer question (3) posed by the Crown Court, “No”. On the procedural issues raised by the first two questions, I have followed the dictum of Latham J in Yates’s case which, with respect, appears to me to be correct for the reasons already given. In that case, Latham J took the view that his construction of the Regulations would not prevent the Crown Court from declining to require the Police Authority to refer a matter to a medical practitioner in a case where the claim is obviously spurious or vexatious, or as the Crown Court put it, where the claim is bound to fail. I agree with that view of the matter, which is in accord with the provisions of Regulation H5. That Regulation enables a Crown Court, on an appeal such as that which was before them in the present case, after enquiring into the case, to make such order as appears to it to be just. It would have been entitled to proceed on its alternative ground that the application for the award simply could not succeed and could not be saved by any certificate which a medical practitioner could properly give.

I would answer question (4) to the effect that the Crown Court did not err in deciding that the application could not succeed and that, in exercise of its powers under Regulation H5(1), it should dismiss the appeal.

Accordingly, I dismiss the present appeal to this Court.

If I am wrong in considering that the Crown Court was entitled to make the Order that it did under regulation H5(1) in the light of its decision that the application was bound to fail, I would also dismiss the present appeal on the basis that, on the accepted facts, reference to the medical practitioner could only be answered unfavourably to Mr. Clinch and there would, therefore, be no purpose in this court directing that such a reference should be made. For that reason also, I would dismiss this appeal.