Barwise, R (on the application of) v Chief Constable of West Midlands Police

MR JUSTICE McCOMBE: I have before me an application for judicial review brought by Mr Stephen John Barwise against the Chief Constable of the West Midlands Police. By the claim, Mr Barwise challenges the decision of the Defendant Chief Constable dated 16th September 2003, to the effect that from 15th December 2003, the day before, the Claimant would no longer hold the office of Police Constable.

Mr Barwise was, or, as he would contend, still is, a Police Constable with the West Midlands Force who went on long-term sick leave with what was described as "work-related stress" from 30th April 2002. By the decision under challenge, Mr Barwise was informed that with effect from the previous day he would no longer hold the office of Constable.

The essential factual background can be shortly stated. From April 2001 to April 2002 Mr Barwise had been assigned as part of his duty to a unit called the Public Order Training Site at a place called Cosford. He was under the supervision of two Police Sergeants and he alleges that throughout that period he was subjected to certain incidents of bullying and harassment, principally by these two Sergeants.

On 30th April 2002, at the end of the period, Mr Barwise was certified as being unfit for duty due to stress, or some related condition. On or about 1st May he was visited at home by a Police Inspector and the Claimant informed him that the stress had been caused by the supervising sergeants at Cosford. He was visited by the same Inspector and a Police Constable on 17th May. The initial response of the Chief Constable, or those acting on his behalf, was that he should be moved to another part of the Police Force. It was Mr Barwise's view that it was unfair that that should happen as he regarded the fault in the whole matter as falling at other doors.

Shortly after this, and during the period of his certified absence through sickness, he went to Spain for a two-week period, and there may be some dispute as to whether he had the Police Force's permission to do that. He did not attend a scheduled Occupational Health Department meeting on 4th July. It seems that was principally on the basis that he did not feel able to attend such an examination on premises owned or operated by the Police Force, but he had indicated that he would meet a doctor at a neutral location. Similarly, he indicated he was unable to attend premises belonging to the Police Force for management meetings. He remained on sick leave and by 4th September 2002, under the Police Regulations, he began to be paid at only half his usual rate, following his absence on sick leave through the relevant period.

On 5th September he lodged a formal grievance about the alleged bullying and the failure to resolve it. Stage 1 of the Force'sgrievance procedure was embarked upon.

In early 2003 a Superintendent saw the relevant papers and formed the view that disciplinary offences against Mr Barwise's supervisors were not disclosed. Mr Barwise was invited to submit the matter to a further grievance procedure, but he had been advised that this might have made little difference to the outcome and, accordingly, he did not pursue that.

In February 2003 a different Superintendent told the Claimant that he could only return to work once he had been assessed as fit for duty by the Force Occupational Health Department. He did not return to work or attend appointments fixed for him on 14th April at the relevant department.

On 30th April, approximately a year after his cessation of duty, he was reduced to no pay, under the provisions of the relevant Regulations, but nevertheless continued to receive a housing allowance.

In May 2003 a request appears to have been made by those representing him that he be not contacted by anyone on behalf of the Force for some two months to enable him to reflect on his future. In June of that year he again went to Spain. He contends that that was with the permission of the Force, but that is in dispute. The Force continued to make arrangements for him to attend Health Department appointments or interviews on two other occasions and he says that the Force knew that he was out of the country.

His parents received a visit at home from one of the Superintendents. They informed the Superintendent that Mr Barwise was in Spain and due back only in October or November.

On 29th August the Defendant wrote to the Claimant, stating that the Force regarded his absence as indicating that he did not really wish to return to work, and that he was regarded as no longer wanting to be a police officer. The letter went on to say that with effect from 15th September 2003 he would no longer hold the office of Constable.

There is then a dispute as to whether or not the Claimant informed the Force authorities that he had received the letter. There are in the bundle three copy manuscript letters which Mr Barwise said he wrote, indicating his dispute with the police authorities about what they had said, but the defendant says he did not receive any of those letters. The evidence about that is in some conflict. The evidence filed on behalf of the Claimant suggests in two places that one of the relevant letters, at least, was sent by Recorded Delivery, whereas in another place it is said that the document was handed to the relevant superior at the Police Force. That is denied by the officer. It is an unfortunate difference in evidence, even on the Claimant's case.

The short point that arises on this application is that Mr Barwise contends that the letter written by the Chief Constable, or on his behalf, on 16th September 2003, purporting, in effect, to dismiss him summarily for absence without leave was simply out with the powers of the police authorities under the Regulations.

The submission is that a police officer is not an employee in the normal sense of the word. He holds the office of a Police Constable and that office can only be terminated in accordance with duly enacted legislative provisions, either under statute or subordinate legislation. Reference is made to the case of Farah v The Commissioner of Police for the Metropolis [1998] QB 65. That proposition is not disputed by the defendant in the present matter. Although this did not emerge, either in response to a letter before action or from the Acknowledgment of Service filed in the case, the point invoked by the Defendant is that he was entitled to terminate the Claimant's position by virtue of the provisions of Regulation 14 of the Police Regulations 2003. The Claimant denies that that Regulation enabled that course to be taken. It is submitted by the Claimant that in circumstances such as those that I have endeavoured to outline, retirement can only be effected either by a medical retirement under the appropriate Regulations, or proceedings for misconduct or inefficiency under either the Police Pensions Regulations 1987, the Police Conduct Regulations 1999 or the Police Efficiency Regulations 1999.

Regulation 14 of the Police Regulations 2003, upon which the Defendant relies, is in the following terms:

For the purpose of that Regulation, the Secretary of State has made a determination which is in the following terms:

I need not read sub-paragraph 2) of that determination which is not material to the present case.

The provisions of the Regulation and of the determination that I have just read were previously, in their essence, contained entirely within formal subordinate legislation in the predecessors to the Regulations applicable in the present case. It appears to have been thought more desirable that detailed matters of the present type be regulated, rather than in the Regulations themselves, by "determinations" which perhaps may be perhaps more readily changed or altered administratively. However, it is to be noted that one of the requirements under the 2003 Regulations, namely Regulation 46, is that such determinations do have to be the subject of negotiation with the Police Negotiating Board, also established under statute, before they can be implemented.

The short point that the Claimant makes is that the reliance by the Defendant upon Regulation 14, is misplaced because there has been no determination by the Secretary of State that it shall be open to a Chief Constable to cause the retirement of a Constable in the manner for which the Defendant now contends.

On the other side of the argument, Miss Garner, who argued the point with tenacity and ability on behalf of the Defendant, submits that the Regulation can and should be read so that where it provides that notice of intention to retire may be given on one month's notice, if the relevant officer has, in effect, evinced an intention to retire by his conduct, the authority is entitled to treat that as such and to accept it as terminating the office, even without one month's written notice having been given. Miss Garner relies in particular on the passage in the Home Secretary's determination that I have already read, encapsulated in the following extract from that quotation:

The argument is that, in effect, Mr Barwise, by his conduct, gave notice that he did not really intend to be a police officer any more and, in essence, in the frustration of the situation, that intention manifested by conduct was accepted as short notice by the letter of 16th September, so terminating his position.

Miss Hill, who argued the case for the Claimant with equal ability, submits that this was not a case where the Claimant retired at all. The Chief Constable purported to dismiss him. She points to the principle, which is not in dispute, that the office of Constable can only be terminated on proper statutory grounds in accordance with proper statutory procedures. She refers to the three sets of Regulations which I have already mentioned as providing those procedures.

Miss Hill further submits that Regulation 14 cannot be read in the loose fashion for which Miss Garner contends because it was, in effect, a replacement of the earlier provision of the Police Regulations 1995 which provided in clear terms that a Police Constable "may retire only if he has given to the police authority one month's written notice of his intention to retire or such shorter notice as may have been accepted by that authority." It is not to be assumed that any change to the earlier legislation was envisaged, particularly as any such change has to be preceded by appropriate negotiation under Regulation 46 before it can take effect.

Moreover, she submits that it is clear that in the normal course of events, where a Constable is subject to criticism of his conduct either for efficiency or conduct as such, there are statutory mechanisms whereby those alleged defaults can be tested with relevant fairness procedures to ensure that any dispute is properly and fully determined.

She further points out that the list of determinations made by the Home Secretary specify that the circumstances in which a member of the Police Force may retire shall be those specified in Annex D to the determinations, and those are to be presumed to be the exclusive categories of retirement.

She finally points out that the proviso to the determination (to deal with cases of officers under suspension) would be frustrated if there could be a means of a retirement taking effect other than by the method for which she contends.

Miss Garner submits that even if she is wrong on the proper construction of Regulation 14, that, in effect, the conduct of this Claimant was essentially repudiatory of the relationship of police officer and police authority and that the authority by conduct accepted such repudiation under rights conferred at common law. Similarly, she says that the Chief Constable has in the past effected dismissals in this manner and it has always been considered that they were properly effected under the Police Regulations or at common law.

To my mind, the Regulation as drafted is entirely clear. The effect of it is that retirement shall be in such circumstances as determined by the Secretary of State. It is therefore necessary to look for something in those determinations to see whether the grounds are covered. It seems to me, quite shortly, that the ground for which the Defendant contends is not so covered. I cannot, for my part, read sub-paragraph c) of paragraph 1) of the determination at Annex D as encompassing the wide view of the meaning of notice and acceptance of notice by the authority for which Miss Garner contends. It seems to me quite clear that what is envisaged is a notice of retirement of one month in length, or a notice given by the officer and an acceptance by the authority of a shorter notice period as it sees fit. It does not seem to me to cover a case which is essentially an allegation of misconduct or inefficiency and a termination on those grounds. To read the Regulations in the way suggested by Miss Garner goes far beyond the permissive construction which I recognise can be applied to documents, enacted under statutory authority, which are not themselves subordinate legislation.

For those reasons it seems to me clear that the Claimant is entitled to appropriate relief, following from the unlawfulness of the conduct of the Defendant. The question that arises is whether I should refuse such relief in the exercise of my discretion. Essentially for two reasons, Miss Garner submits that really the exercise is futile because the conduct of the Claimant indicates that he should, in any event, have been dismissed pursuant to the Conduct or Efficiency Regulations and that in reality he clearly does not wish to resume his position as an officer. Further, it is submitted that his conduct has been such that he should not be entitled to discretionary relief from this Court.

I cannot regard the question of Mr Barwise's status as being academic. Financial consequences may follow from what I have found to be the unfortunate misapprehension by the police authority of its powers.

The question remains as to whether by his conduct Mr Barwise has precluded himself from relief by way of judicial review. I can summarise what the authority contends amounted to the misconduct on the part of Mr Barwise by reciting the features identified in a witness statement made by the authority's Director of Personnel, Mr David Williams. He refers in paragraph 3 of his witness statement to the following matters:

Mr Williams concluded that he had no other alternative, as he says in his witness statement, than to accept that Mr Barwise no longer wished to hold the office of Constable.

The reasons why Mr Barwise failed to engage with the management process or health occupational appointments and his conduct in general in departing for Spain cannot entirely be resolved on this application. The facts giving rise to those contentions are very much in dispute. On the papers that I have seen, I can understand Mr Williams's frustration and can understand why the authority acted as it did.

I have been referred to authority covering the limits of the exercise of discretion to refuse relief by way of judicial review, first of all by Mrs Garner in the case of Nichol v Gateshead Metropolitan Borough Council (1988) 87 LGR 435 where, in a completely different context, Taylor LJ, as he then was, said the following at page 460:

I have also been referred to the well-known passage to be found in the Civil Procedure Volume 1 of the 2003 edition. (Unfortunately, the 2004 edition has not reached this Court.) It is a well-known principle and the Editor's comment is as follows:

It seems to me that in spite of what is said by Taylor LJ in the Nichol case, the principle is clear that it is only in exceptional cases that relief will be refused if unlawful conduct is established on judicial review proceedings. Certainly, I accept the submission of Miss Hill that however this case may appear to me at a first impression several of the facts remain in dispute, and it would be wrong for me to refuse relief based upon conduct grounds in circumstances where the precise rights and wrongs of the parties' actions have not been established.

For those reasons, I find that this claim for review must succeed and I will hear counsel as to the appropriate form of order.

MISS HILL: My Lord, I am grateful. The claim form seeks relief under three heads, the first is obviously a declaration to the effect that you have given.

MR JUSTICE McCOMBE: Which page is that?

MISS HILL: My Lord, it is on page 10 of the claim form. My Lord, there is a claim for damages resulting, I think, from the logical consequence of your ruling which is that effectively the Claimant has remained in police service since the date of the decision. So effectively that is a claim for a debt rather than damages for the back payment for that housing allowance. My Lord, my learned friend and I are agreed that if you are minded to grant that order, we can agree the quantification amongst ourselves. We need not trouble you with that.

MR JUSTICE McCOMBE: I can see the declaration follows. Do damages follow, Miss Garner? Do you accept the principle, even if you say you can agree the quantum? I do not know.

MISS GARNER: My Lord, the difficulty is that if he had remained in office, which is the effect of the decision that has been made, then he would have been entitled to that allowance.

MR JUSTICE McCOMBE: So you cannot resist it, is what you are saying?

MISS GARNER: It is difficult to resist it.

MR JUSTICE McCOMBE: So be it. I shall make an order for damages in the appropriate sum, calculated in the manner indicated in section 7(2) of the claim form.

MISS HILL: My Lord, finally I have an application for my costs. There is a schedule of costs, which I believe have has been provided to the Court.

MR JUSTICE McCOMBE: Yes, I think I saw one earlier on.

MISS HILL: My Lord, my learned friend has seen it.

MR JUSTICE McCOMBE: Let me find my copy.

MISS HILL: My Lord, I apply for the costs in that amount in the sum of £7,350.

MR JUSTICE McCOMBE: The principle, presumably, is not disputed, Miss Garner. What about quantum?

MISS GARNER: Forgive me, I have only seen this in the last few hours.

MR JUSTICE McCOMBE: Has your instructing solicitor seen it? It is often more useful than counsel, if I may say so, with respect.

MISS GARNER: He has seen it. My instructions are that it is a little on the high side, as far as he is concerned. There seem to be rather a lot of telephone calls from his office to the client which seems to have ratcheted that figure up, we would say, a little too much. The letters and the e-mails, the total there being some £900 for correspondence with the client, which seems a touch on the high side. We suggest that that is halved. Correspondence with counsel also, that figure too seems a little high. My Lord, in fact the telephone calls and the letters and e-mails seem a little on the excessive side. Again, we would ask for that total figure to be halved.

In relation to the consideration of the documentation, I am in difficulty to see whether there is anything there which is considered excessive. No, there is nothing that sticks out, he says, and I would agree. There is the additional research that had to be done with regard to the PMV and consultations on that, of course, which appear to us to be legitimate costs. So I believe that those are the two main issues that we have.

MR JUSTICE McCOMBE: So that would bring the figure down to something like £6,900 or something of that order?

MISS GARNER: Yes.

MR JUSTICE McCOMBE: Miss Hill?

MISS HILL: My Lord, I am not in a position to give you any information about the level of correspondence with the client, but certainly as far as the correspondence with myself is concerned, my Lord, I think you have the point that the legal issues were raised relatively recently and it was necessary to prepare an extensive supplementary skeleton, in fact entirely recasting the defendant's case. That explains why there was more correspondence with myself than there would otherwise have been. That also necessitated, my Lord, the investigation of the background of Regulation 14, obtaining the PMV circular and considering that, et cetera, et cetera. So that explains my costs.

MISS GARNER: Could I come back on that? With regard to that, the background to Regulation 14 is perhaps something that should have been considered at an earlier stage. In terms of the level of correspondence that I had with my instructing solicitors, we just confirm that we recollect it was something like five phone calls and three e-mails. That is the reason why we turn round and say that maybe a few more than that is acceptable, but not to the level we have here.

MR JUSTICE McCOMBE: Yes, it strikes me that possibly some of the correspondence costs are a little high, but on the whole this bill does not strike me, in regard to many others one has seen for a day's hearing, as in any way excessive. Some trimming is probably required, but not to a great degree. I would assess the costs at £7,000.