Judgment

1. MR JUSTICE MOSES: The history of this matter is set out in the judgment of Schiemann LJ in the previous hearing in the Court of Appeal between paragraphs 1 to 44. New readers should begin there. The decision of Collins J was affirmed, although not on precisely the same grounds. The matter returned to the Secretary of State. Further submissions were made on PC Bhoti's behalf on 6 February 2002. Those submissions referred specifically to the standard of proof which, it was submitted, should be applied by the Secretary of State. There was a further decision from the Secretary of State contained in his letter dated 13 May 2002. It is clear from that letter that the Secretary of State, as he was bound to do, considered the matter afresh. That decision reads:

"I refer to the notice of appeal by Ex PC Ravi Bhoti under section 37 of the Police Act 1964, as substituted by Section 103 of the Police and Criminal Evidence Act 1984. Mr Bhoti appealed against punishment in respect of one offence of criminal conduct for which he was required to resign.

"In accordance with paragraph 3 of Schedule 5 to the Police Act 1964, as substituted, the Secretary of State appointed a Tribunal to hold an inquiry into the appeal and report to him which they did. The Secretary of State did not accept the recommendation of the Tribunal and upheld the Commissioner's decision and Mr Bhoti sought judicial review of the decision. The Secretary of State subsequently appealed against the judicial review.

"Following the decision in the Court of Appeal the Secretary of State has considered once again all the facts of the case, the points raised in Mr Bhoti's grounds of appeal, the Commissioner's response and the report of the Tribunal. He has taken into account the mitigation put forward on behalf of Mr Bhoti both originally, during the judicial review and at the hearing in the Court of Appeal, and following the judgment there in the letter submitted by his solicitors on 31 January 2002, and acknowledges that his appraisals showed that he had been a committed and dedicated police officer.

"Looking first at the findings made by the Tribunal, the Secretary of State notes that Mr Bhoti has accepted throughout there is no doubt he was guilty of the Discipline Offence of Criminal Conduct; he had pleaded guilty before the Magistrates' Court and at the hearing before the Discipline Board so it is clear that the offence was proved to the criminal standard.

"At the time of the hearing the policy in the Metropolitan Police Service was set out in Police Notice 23 of 1996 and it stated that 'A criminal conviction for a drink related driving offence is unacceptable and may lead to the officer's dismissal'.

"The Secretary of State notes that there was no compelling reason for Mr Bhoti to drive on the night in question and Mr Bhoti was conscious of the risks of driving while over the limit. He accepts that Mr Bhoti had been subject to racial abuse at the function he was attending. The Tribunal noted that he was distressed at the abuse and also by the failure of other officers to offer assistance to him.

"It was accepted that Mr Bhoti claimed he had drunk approximately four pints of lager during the evening. Since he had booked accommodation so that he did not have to drive after he had been drinking, it seems more likely that he considered that he would be drinking sufficient during the evening to put him over the legal limit. Further, no explanation was given by Mr Bhoti as to why he did not go back to the section house when he decided to leave the function. It also took him twenty minutes to get to his car so he did not get into it immediately after the incident.

"The Secretary of State therefore doe not agree with the Tribunal that there was not sufficient evidence that Mr Bhoti deliberately drove at a time when he appreciated he was likely to be over the prescribed limit. The Secretary of State considers that Mr Bhoti, whilst upset, was nevertheless more than likely to be aware of the possibility he would be over the limit but that he still consciously decided to drive when it was open to him to go to the section house or to call for a taxi or minicab if he felt he had to go home.

"The Secretary of State also considered evidence available in relation to how like cases were treated under the policy which applied to this case. He is satisfied that his approach in taking this decision does not unjustifiably depart from the manner in which such previous cases were dealt with when due regard is given to the differing circumstances of each case.

"For all those reasons the Secretary of State remains of the same opinion: that Mr Bhoti should be required to resign. A similar letter has been sent to the Commissioner of Police."

2. The statutory scheme is contained within what was then section 37 of the Police Act 1964. This has now been repealed and the system is different. The Secretary of State no longer plays a part in considering such appeals. By section 37(1) a member of the police force is entitled to appeal to the Secretary of State against a punishment:

By section 37(2):- "On an appeal, the Secretary of State may make an order allowing or dismissing the appeal."

3. Under the Police Discipline Regulations 1985, which again have now been superseded, a member of a police force commits an offence against discipline if he commits an offence set out in the Discipline Code (see Regulation 5). The criminal conduct in respect of which the claimant pleaded guilty is set out in paragraph 16 of schedule 1 of the Discipline Code. Paragraph 3 of schedule 5 of the 1964 Act allows for reference to a Tribunal for the purpose of making an inquiry and paragraph 3, sub-paragraph 3 identifies those who should sit on the Tribunal. It is plain that they have, in a case such as this, a wide spread of experience and seniority.

4. It is clear from the Secretary of State's decision that he found that PC Bhoti had no compelling reason to drive. Further, he found that he had had 20 minutes in which to leave the party and get to his motor car. As was accepted on PC Bhoti's behalf by the solicitor appearing for him before the Tribunal, it was accepted that PC Bhoti had had time to cool off after the unpleasant incident at the party. Further, the Secretary of State found that PC Bhoti was conscious of the risks of driving well over the limit. This, as a general proposition of fact, can hardly be doubted and was certainly a view that the Secretary of State was entitled to reach. He explained why he had reached that conclusion. PC Bhoti had envisaged drinking at the party and had accordingly made plans not to drive again, but to go to a section house for the night. That amounted to evidence that when, in fact, PC Bhoti chose to drive, he realised he was likely to be over the limit. That aspect of the decision is challenged by Mr Bromley-Martin QC on behalf of the claimant, as being inconsistent with what Collins J said in his judgment between paragraphs 41 to 42. That passage was gently criticised by Schiemann LJ in his judgment at paragraph 27 as straying into the realm of fact and merit. It is clear from Schiemann LJ's judgment, particularly at paragraph 19, that he accepted that it was open to the Secretary of State to reach that view. There clearly was evidence that before the party, PC Bhoti, as one would expect, realised the dangers of drinking and driving and envisaged that he would be drinking more than he should if he was going to drive. Further, there was evidence that, in view of the 20 minute gap between leaving the party and reaching his motor car, despite the stress he had undergone at the party, aggravated by his pre-existing psychological condition, that he appreciated that there was a risk that he would be over the limit before he chose to drive. That was a view the Secretary of State was entitled to take. But though there was evidence to support that conclusion, that is not enough. The evidence must be such that the Secretary of State was satisfied so that he felt sure that the officer realised he might be over the limit when he chose to drive. That that is the state of mind the Secretary of State must reach before he differed, in fact, from the Tribunal is plain from the previous decision in this case of the Court of Appeal. The majority of the Court of Appeal took the view that the flaw in the previous decision of the Secretary of State was his conclusion that alcohol may have contributed to the minor accident which occurred. Clarke LJ said at paragraph 36:

"Once it is held that, if the Secretary of State is to take account of a fact not accepted by the officer concerned, it must be established to the criminal standard, it is not open to him to take account of a fact which may have happened. He must be sure that it happened. Thus, here, the accident was not relevant unless the Secretary of State could be sure that it was caused or contributed to by the amount of alcohol consumed by Mr Bhoti. He could not be so satisfied."

5. Wall J, sitting as the third member of the Court of Appeal, said at paragraphs 41 to 42:

"I tend to agree with Clarke LJ that what the Home Secretary was saying was that alcohol may have played a part in the accident. That, in my view, is the meaning if one removes the double negative and reads the sentence as 'he takes the view that the alcohol consumed may have played a part in the accident'.

"42. Whichever way the sentence is read, however, the result is, in my judgment, the same. On an important aspect of the case, the Home Secretary was taking into account against the respondent something about which there was no evidence, and which therefore had plainly not been established on the criminal burden of proof."

6. Schiemann LJ, in the minority on this point, said at paragraphs 8 and 9 that the true reading of the Secretary of State's earlier decision was that he had concluded that alcohol did play a part in the accident (see paragraph 8). He found that there was no evidence upon which the Secretary of State could have reached that conclusion. He continued that, even if what the Secretary of State had said meant that he took the view that alcohol may have contributed to the accident, then the criminal standard of proof had not been satisfied (see paragraph 13). It is clear that all three of the Lord Justices agreed that in relation to facts in respect of which the Secretary of State took a different view to that of the Tribunal, he must be satisfied of that fact so that he was sure. Absent satisfaction to that extent, there would be no good reason for the Secretary of State to differ from the view of the Tribunal.

7. As is clear from my citation of his decision letter of 13 May 2002, the Secretary of State had found that Mr Bhoti was "more than likely" to be aware of the risk that he would be over the limit. The Secretary of State did not say that he was sure that Mr Bhoti was aware of that risk. The letter must not be read as a statute or as a judgment. The decision letter of the Secretary of State must be read fairly as a whole, not as if construing a piece of prose. In making every allowance for those considerations, in the light of the decision of the Court of Appeal, it is difficult to understand why, if the Secretary of State meant that he was sure that PC Bhoti was aware of the risk that he might be over the limit, he did not say so. This was the second time around in an old July 1998 case. The least one could expect is that the Secretary of State should say clearly what he meant. His decision letter should not require any explanation whatever. This was a second decision -- a fresh decision -- after the Secretary of State's original decision had been impugned in the first hearing. What he meant should be plain from the terms of the decision letter.

8. An official in the Home Department, on behalf of the Secretary of State, has sought so explain, in a letter dated 12 August 2002, and in an affidavit, what the Secretary of State meant by "more than likely". The first explanation demonstrates that the Secretary of State did indeed, as one would expect of him, mean exactly what he said -- "more likely than not". That is clear from the explanation that was given. The letter dated 12 August 2002 said:

"We [the Home Department] do not consider that this renders the decision unlawful. First, we consider that the Court of Appeal's comments about the burden of proof [I think the author means the standard of proof] that has to be applied to 'aggravating' factors are obiter and not part of the ratio of the judgment."

This explains why the Secretary of State meant what he said, namely, more than likely. It also demonstrates a laudable example of intellectual honesty. The Secretary of State meant what he said and did not apply the criminal standard of proof of satisfaction to the extent of being sure or beyond a reasonable doubt because he took the view that the Court of Appeal's dicta on that topic were merely obiter. I have to say that even if the dicta were obiter, the explanation advanced by the Home Department shows a refreshing courage that many a puisne puny judge, including myself, would lack. The less courageous would merely apply the standard the Court of Appeal said should be applied -- obiter or not. But in any event, the dicta were, in my view, not obiter. The remarks of the Lord Justices about the standard of proof which should be applied were necessary for the decision. The Secretary of State had found that alcohol may have contributed to the accident -- that was not a good reason to differ. The Court of Appeal said only if he was sure that that was so could he consider that to be a factor in his decision to differ from the Tribunal.

9. The second reason advanced for the contention that the decision of the Secretary of State on 13 May 2002 was not unlawful was that the words "more than likely" meant that the Secretary of State was sure. This, I hope I may be forgiven for remarking, seems to be wholly inconsistent with the first explanation. If the Secretary of State meant that he was sure, why did he not say so? -- particularly in the light of the dicta in the Court of Appeal. Mr Nicholls, who advanced the Secretary of State's case with moderation, but with cogency, bravely sought to defend that passage in the explanatory letter of 12 August 2002, by reference to the first decision where it appears that the Secretary of State had said he was sure of that fact. This was a fresh decision and it makes it all the more odd that the Secretary of State did not say that he was sure if that was what he meant second time around. I am compelled to the conclusion that the Secretary of State meant what he said. He was satisfied to the extent that it was more than likely that PC Bhoti was aware, when he chose to drive, of the risk that he was over the limit.

10. To reach a conclusion that a fact is more than likely, is not the same as reaching a conclusion of being sure of a fact. The distinction may be little in practice. These are, after all, all words to explain the degree of certainty one must reach to provide a morally justifiable basis for action. The more severe the consequences, the greater the degree of certainty. But that there is a difference cannot be doubted. No court would direct a jury that it was sufficient that it should be satisfied that guilt was more than likely. The decision must be judged by the words the Secretary of State used. The explanation for those words is contained in the first explanation advanced in the letter dated 12 August 2002. Any other explanation I reject as being understandable, but nevertheless impermissible, ex post facto justification with all the attendant dangers familiar to the Administrative Courts. The failure of the Secretary of State to be satisfied beyond a reasonable doubt that PC Bhoti was aware that there was a risk that he would be driving over the limit, vitiates the Secretary of State's decision. It was an error of law. It discloses no good reason for differing from the Tribunal.

11. In the light of my conclusion, it is no longer necessary to deal with the other arguments advanced, but nevertheless, I shall make a few comments on the understanding that they are clearly obiter to my decision. I do not accept that the Secretary of State was bound to give an opportunity to PC Bhoti to be called if he did not accept the conclusion that the Tribunal had reached that he was not aware that he ran the risk of being over the limit. It was suggested that, if the Secretary of State had in mind to disagree with the Tribunal as to that fact, he should have referred the matter back for further evidence to be taken by the Tribunal pursuant to powers that then existed under the 1985 Appeal Rules -- the specific provision of which was not furnished to me. I am not quite clear what purpose it is thought that that might have served. No doubt if PC Bhoti had been called to give evidence he would have confirmed what had been said on his behalf and then, no doubt, deny what would be put to the contrary in cross-examination. That does not seem a very helpful use of the forensic weapon of cross-examination.

12. It is plain, on the contrary, that the Secretary of State has power to reverse a Tribunal on questions of fact: see the decision of the Court of Appeal in R v Secretary of State for the Home Department ex.p Barr and Others [1995] Admin 157 at page 170F to 170(1A) in the judgment of Neil LJ. It is true that there had been evidence on the point about which there was a dispute in that case and the police officers had chosen not to give evidence by way of defence, but there is no difference to the principle expressed by Neil LJ, authority for which is the statute and the rules made under it. There was no error in the Secretary of State failing to remit this case to the Tribunal, and I find nothing in the judgment of Schiemann LJ to the contrary.

13. It was further contended that he had misconstrued his own policy and acted in an inconsistent manner. In particular, it was said that there were many cases in similar circumstances of greater gravity than this where police officers had been dismissed or required to resign, and PC Bhoti had been dealt with far more harshly than any other case, highly experienced counsel and solicitors in this field have been able to discover. That lead to considerable debate as to the meaning of the policy and how it had been applied. The Police Notice 23 of 1996 dated 5 June 1996 said:

"Police officers should at all times act within the law. Except in exceptional circumstances any officer convicted of a drink related driving offence will be suspended and will appear before a full disciplinary board and will be offered legal representation. A criminal conviction for a drink related driving offence is unacceptable and may lead to an officer's dismissal."

This notice does not say that a police officer will be dismissed or requested to resign, save in exceptional circumstances, but that is how it has been construed by the Secretary of State as a matter of practice, and it is not surprising that that is so. This led to a controversy over statistics. I do not think that there is anything to be gained by resolving that issue, which became somewhat arid for this reason. It is plain that the highly experienced solicitor acting on behalf of PC Bhoti knew that, absent strong mitigation, his client would be dismissed or requested to resign -- after all, that had been the view of the Disciplinary Committee and the Commissioner, and it is plain from the tenor of the solicitor, Mr Reynolds', mitigation, making every allowance for forensic skill and tact, that that indeed was the approach of the Tribunal. The only reason it came to the conclusion that PC Bhoti should not be requested to resign was, as it said, because it thought the case was exceptional. Statistics show that both under the old and new regime many officers have not been dismissed or requested to resign, although it is quite impossible for this court to assess the circumstances of each. At least under the old regime a majority were dismissed or required to resign. The new regime arises partly out of the statute, now the Secretary of State is not involved in such appeals, and partly out of guidance given to all Chief Officers' police in a letter dated 31 August 2001, following the first judicial review proceedings in this case. The letter inaccurately recorded the figures of those who had been dismissed, but nevertheless reminded all police officers that they should expect to lose their job if convicted of a drink driving offence. Indeed it is difficult to see how any responsible police officer could expect otherwise.

14. For those reasons, the Secretary of State was perfectly entitled, if he found the facts to the requisite standard of proof, to disagree with the conclusion of the Tribunal that PC Bhoti's case was not exceptional. After all, the Tribunal's view that his case was exceptional was based upon the fact that it took the view that PC Bhoti was not aware of the risk that he might have drunk to the extent that he was over the limit. Once the Secretary of State disagreed as to that fact, absent any question of standard of proof, the basis of the Tribunal's decision was gone. But for the reasons I have given, the Secretary of State reached his conclusion in the context of an error of law in the standard of proof he applied to a crucial fact. That vitiates his decision, and on that limited but significant basis, this application is allowed. I shall now be grateful to hear submissions on what relief I should give and what the further conduct of this case is likely to be.

15. MR BROMLEY-MARTIN: My Lord, so far as the order is concerned, the comments of your Lordship yesterday afternoon leave me to suggest that the appropriate order would be one quashing the decision of the Secretary of State, rather than taking it further.

16. MR JUSTICE MOSES: We will hear what is going to happen.

17. MR BROMLEY-MARTIN: My Lord, it may be that what I have to say about that is subject to Mr Nicholls.

18. MR JUSTICE MOSES: Do you want to say anything about quashing the order?

19. MR NICHOLLS: Only this: I canvassed in the course of submissions yesterday that even if, as you have indicated, the 12 August letter and the evidence cannot be taken into account for the purposes of construing (inaudible) the decision, it is relevant to the issue of what remedy you should grant.

20. MR JUSTICE MOSES: I think I have made clear what I think about that. So I shall quash the decision of 13 May 2002. So that is the first stage. Now what is going to happen now I have quashed that? Are you in a position to tell me?

21. MR NICHOLLS: I am not in a position to tell you. The people who were behind me yesterday are not behind me today.

22. MR JUSTICE MOSES: That is not quite right. One of them is.

23. MR NICHOLLS: My instructing solicitor is, but the departmental clients are not and they will plainly need to consider your Lordship's judgment. I can say no more than they heard what you said yesterday.

24. MR JUSTICE MOSES: I do not mind going this far. Wholly different considerations may apply now after this distance of time and having failed to produce a lawful decision on appeal twice as to what will be fair in all the circumstances. The Home Department and the Secretary of State have got to look at it in that light now because I have already indicated the decision is for him not for me, but that there are strong arguments for saying it will be wholly unfair now to reach any conclusion inconsistent with the Tribunal when you have had two days about something that happened in 1998 and got it wrong, to be brutal about it, twice. It is as simple as that. Anyway I know that they will have the benefit of your advice. Right, do you want to say anything more about that? I just do not see how it would be appropriate for me to make a mandatory order on the Secretary of State to allow the appeal.

25. MR BROMLEY-MARTIN: I believe, my Lord, that your Lordship's utterances a few moments ago --

26. MR JUSTICE MOSES: He is going to have to face yet further judicial review proceedings if he went to the contrary because it would now be said that you cannot keep having a go and getting it wrong and then third time trying to get it right. I cannot decide that issue and perhaps some considerations of mercy might also enter into it, but it is not a judge's job to be merciful. Right, any other applications?

27. MR BROMLEY-MARTIN: My Lord, Mr Bhoti is not legally aided so I would ask for costs.

28. MR JUSTICE MOSES: Do you have anything so say about that?

29. MR NICHOLLS: I cannot resist costs.

30. MR JUSTICE MOSES: I cannot assess them today?

31. MR BROMLEY-MARTIN: My Lord, I fear not.

32. MR JUSTICE MOSES: It is unfortunate, may I say, in a case like this -- a short case and a short point, we really ought to have been able to assess these costs.

33. MR BROMLEY-MARTIN: I apologise for that, my Lord.

34. MR NICHOLLS: My Lord, plainly, my clients having heard what you indicated yesterday, I am asked to apply for permission to appeal on this point of law about the extent to which one can look outside the decision in order to ascertain the real reasons.

35. MR JUSTICE MOSES: There is masses of law. There is that judgment of Simon Brown J as he then was.

36. MR NICHOLLS: There is law that seems not to come to any concluded view as far as I can see.

37. MR JUSTICE MOSES: It depends on the circumstances. Sometimes you can and sometimes you cannot. Anyway, no you cannot have permission. You must go and ask the Court of Appeal. Right, I do not think there is anything new in what I have said. Thank you all.