Chief Constable of Avon & Somerset, R (on the application of) v Police Appeals Tribunal

MR JUSTICE COLLINS: The claimant in this case, the Chief Constable of Avon & Somerset, seeks judicial review of a decision of the Police Appeals Tribunal whereby it allowed an appeal by Police Constable Hopes against a decision which had been confirmed by the Chief Constable that he should be required to resign from the force. The Tribunal substituted what amounts to a financial penalty in lieu.

The claim is based upon two broad grounds: first, that the test applicable by the Tribunal in reaching its conclusion is one of review of the decision below, and as a result it is only if the Tribunal takes the view that the decision was unreasonable that it should allow the appeal; and, secondly, that the test, which is the appropriate test, was not applied properly in the circumstances of this case. It is said that in any event no reasonable tribunal could have decided other than that the penalty of requirement to resign was the appropriate penalty.

The charges laid against Police Constable Hopes numbered five altogether, although they substantially arose from the association that he had had with a particular informant (one I think related to a different informant, but essentially they related to relationships with informants). There were three charges, numbered 3, 4 and 5, which alleged that in early 2001 PC Hopes had disobeyed various provisions in the procedural guide on informants and so had acted contrary to his duties. The failures to abide by the guide were admitted, although it was said, and indeed there was, as I understand it, evidence to support this, that the information obtained was valuable information in connection with ongoing investigations into the commission of crime. The view was taken that those three charges were not of sufficient gravity to merit a separate penalty from those imposed upon the first two charges. So it is sensible to concentrate, as did the Tribunal (and there is no issue taken about this), upon the first two charges.

The first charge alleged that on a day unknown between 16th January 2001 and 17th April 2001 PC Hopes was not open and truthful in his dealings and failed to discharge his duties with integrity in that he made an entry in his pocket notebook, B42742, purporting to contemporaneously evidence a meeting that he had had with x (that is to say the relevant informant) on 16th January 2001, and the completion of an appropriate form, 78D, when in fact he made the entry in a book that had already been completed and related to events in 2000 rather than 2001.

The obligation in dealing with informants is to fill in various forms and to make entries in the notebook, for the obvious reason that it is essential that proper contemporaneous records are kept of any dealings with an informant. Obviously, if the matter were to go to court it is necessary that there can be no come back and it be shown that all dealings with the informant were in accordance with the relevant procedure.

PC Hopes filled out the form described as a Restricted Intelligence Report. This gives the details of the relevant information which had been obtained from the informant. It refers to the informant, it also gives a pocket book reference as B42742. Unfortunately, the notebook B42742 was a notebook which related to January 2000 and not to January 2001, and the entry was made in a different ink to the entries on either side. It was thus obvious that the entry had been made in a wrong notebook and it had been made, it seems, ex post facto in order to comply with the requirement to do so.

This was clearly something which should not have happened. The explanation given was difficult to ascertain, largely because the claimant himself indicated that because of the lapse of time he really could not do more than note that it was use of a wrong notebook by an error, but he could not remember the full circumstances as to how it came about that he was apparently entering the matter after he should have done. Whether it was a question of simply forgetting and trying to pretend that he had not forgotten, or whether it was something more sinister, is impossible to ascertain.

The second charge asserted that between 16th March 2001 and 23rd March 2001, without good and sufficient cause, PC Hopes disobeyed the order of 15th March from a detective inspector, who told him that he was not to make contact with x and that if x rang he was to make an excuse and not talk to him again, but that in breach of that order he spoke to x on 19th March and 22nd March and failed to bring it to the attention of the superior officer when he asked if there had been any further contact.

The reason for that was apparently that x had, until 1999, been a registered informant. He had then, for reasons which were not fully explained to PC Hopes, been de-registered, and since 1999 PC Hopes should not have used him as an informant. Charges 3, 4 and 5 show that he did continue so to use him. But there had been a double murder and it was believed that x had some knowledge of the victims of that murder and thus any contact with him might jeopardise the investigation into those murders. Accordingly, it was that the detective inspector, who was presumably a senior officer involved in the investigation of those murders, had instructed PC Hopes not to have any contact with x and had told him that if x got in touch he should make his excuses and not talk to him.

On 18th and 19th March it is clear that x was trying to get in touch with PC Hopes. There were four calls, three of them on the 19th between 3.30 in the afternoon and 5.15. Each of them lasted for some 24 or 25 seconds, which was consistent with an answer machine at PC Hope's address, and it seems, quite clearly, from those timings that indeed an answer machine was answering. Then at 5.15 there is a two second call from x's mobile to PC Hope's mobile. That is followed two minutes later by a three minute and 55 second call from PC Hopes on his mobile to x on x's mobile.

The explanation that was given by PC Hopes for that was that he was endeavouring to tell x that he should not contact him, but was trying to do this in such a way that x did not become anxious about the reasons, and, as an experienced police officer who had been a detective constable, it is possible to understand why PC Hopes formed the view that it was undesirable that x should be put on inquiry as to whether he, x, was being investigated and that he should try to explain why contact should not continue between x and himself in such a way as did not make x suspicious about what was going on. In any event, that was the explanation why he called back and why he spoke for some three minutes and 55 seconds.

Three days later, on the 22nd, it seems that x telephoned PC Hopes again. This time there was a conversation lasting some ten and three quarter minutes. Again, PC Hopes' explanation for this was that he was explaining that he should not contact x again, and it took a long time because it was necessary to explain it in a sensitive fashion.

The detective inspector apparently asked PC Hopes the following day, that is on 23rd March, whether there had been any contact. It would appear that PC Hopes was less than frank because he did indicate that there had been contact from x, but not that he had phoned x back; indeed, he said he had not. He did not explain the length of the calls.

It is not altogether surprising in those circumstances that when the fact of the calls was discovered a somewhat suspicious view was taken of it by those responsible.

In any event, the misconduct hearing took place. The Tribunal, presided over by an assistant chief constable, found that the first two charges should result in a requirement to resign. It gave its reasons. What it said, so far as material, was that it had paid particular regard to the importance placed by legislation and police policy on the correct handling of informants -- they are not now called informants but, I gather, "covert human intelligence sources", which comes to the same thing. It was said that PC Hopes was an experienced officer with considerable detective experience, and "all evidence of [his] character points to a hard working officer who is seen as very experienced and knowledgeable in many areas of operational police work". He had admitted to a series of actions directly in breach of force policy on the handling of informants, he continued to contact x and obtained information, and he had not documented contacts correctly or had falsified documentation - that relates presumably to charge number 1. They went on:

PC Hopes sought a review, as he was entitled to, from the Chief Constable. The Chief Constable rejected his application and upheld the penalties imposed. He gave his reasons. He stated that the actions, particularly those covered by charge 2, "were not the actions of an inexperienced officer not versed in the intricacies of the intelligence system, force policy and the inherent dangers that surround the use of informants". He continued thus:

His observation that neither he nor the panel could be entirely sure that the innocent explanations presented were true is an unfortunate way of expressing himself. It is clear that in disciplinary matters the burden lies upon the authority to establish that an offence has been committed, and where a question of sentence is involved, that the facts are as is alleged by the authority. If there is mitigation, if there is a case put forward on behalf of an appellant that his culpability is less than that alleged, then the sentence must be based upon what is established to the satisfaction of the tribunal. It is not for the appellant to make the panel sure that an innocent explanation is true; the burden is the other way round, although the standard is not necessarily as high as sure, it depends upon the gravity of the matter alleged.

Miss Studd submits that that observation was in the context of simply explaining why the orders existed in order to protect the individual officers. That may well be why the rules and orders exist, but, as I say, it does look, on the face of it, as if the Chief Constable was assuming the matters against the appellant because he could not be sure that the innocent explanation was made out. That clearly is, if it was adopted, a wrong approach.

Before coming to the way in which the appeal tribunal dealt with the matter, I should refer to the statutory provisions which are applicable. Section 85 of the Police Act 1996 provides, by subsection (1) that:

I should refer also, because Miss Studd has relied upon it, to section 87, which provides by subsection (1):

The reason why reliance is sought to be placed upon section 87 is because the Secretary of State has issued guidance, and in that he has dealt with determination and outcome of appeals. By paragraph 5.24 of the guidance before me this is said:

Miss Studd submits that that is guidance which the Secretary of State was entitled to give and which the Tribunal was required to take into account, albeit she accepts that it was entitled to decide otherwise provided it gave good reasons for so doing.

Mr Ford submits that that is not guidance which falls within the terms of the Act, it is not therefore statutory guidance, and, in any event, insofar as it purports to indicate what the tribunal's approach should be, it is wrong in law.

In my view, it clearly is not covered by section 87. The guidance within section 87 is to be directed to police authorities, chief officers of police and other members of police forces concerning the discharge of their functions under the regulations to which I have referred. The police appeals tribunal does not fall within the category of persons to whom such guidance can properly be given, and it would be surprising if it did. Under the terms of section 103 of the Police and Criminal Evidence Act, which was replaced by section 85 of the Police Act, an appeal lay to the Secretary of State, and normally the Secretary of State would appoint a tribunal of three to consider the matter and give recommendations, but it was for the Secretary of State to decide what the penalty should be. That was obviously considered by Parliament to be undesirable and so it was in 1996 that the independent Police Appeal Tribunal was set up. Its independence appears from its composition, which is set out in schedule 6 to the 1996 Act. This provides by paragraph 2, relating to an appeal by a member of a force who is not a senior officer, that the tribunal shall in such cases consist of four members who are appointed by the police authority; one shall be a person chosen from a list of persons who have a seven year general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990 and have been nominated by the Lord Chancellor for the purposes of the schedule. That usually means a QC in the context of these cases, or presumably a circuit judge or a retired circuit judge, but it is a lawyer who can either be a barrister or solicitor who has the relevant seven year qualification. Then:

The regulations made under section 85, the Police Appeals Tribunal Rules 1999, provide that the statement of the grounds of appeal, supporting documents and written representations must be copied to the tribunal, as must a statement of the respondent's response to the appeal and supporting documents or written representations. It is provided that the tribunal can hear evidence and that oral evidence must be given on oath. It also receives a record of the proceedings below.

There is nothing in the statutory framework which indicates the way in which the tribunal must approach its task. It is, in terms, an appeal. It is an appeal to an expert tribunal. In those circumstances one would expect that that tribunal, particularly where it can hear fresh evidence and consider all matters that are put before it (and it has the power to substitute in the case of sanctions any that could have been imposed by the tribunal from which it is hearing the appeal), has a full power to reconsider and exercise its own judgment as to what the appropriate outcome should be.

I have been referred to a decision of Goulding J, Lothbury Investment Corporation Ltd v Inland Revenue Commissioners [1981] 1 Ch 47. The circumstances of that case need not concern us, but the question arose as to the powers of the Special Commissioners in dealing with an appeal against a decision of the Inland Revenue on certain tax matters. The relevant section of the act that was considered was then section 296 of the Income and Corporation Taxes Act 1970. The relevant subsections of that section were subsection (8), which provided that "a company which is aggrieved by any notice of apportionment under this section shall be entitled to appeal to the special commissioners on giving notice" et cetera and subsection (10), which provided:

I recognise, of course, that the factual circumstances differ and we are not concerned here with an appeal from an administrative act, but an appeal from an internal disciplinary tribunal. Nonetheless, it seems to me that when Parliament confers a right of appeal to a specialist tribunal such as the Police Appeals Tribunal, it is inherent in that that the powers of the tribunal are to consider all matters put before it, in the form of fresh evidence or fresh submissions or whatever, and to reach its own conclusions upon the matter. Of course, it will have regard to the decision of the body from whom the appeal is brought. It will have regard to the views of the chief constable, and it will no doubt be slow to differ from those views unless it is persuaded that they were, in its view, wrong, but if it is so persuaded then it has an obligation to apply what it believes to be the correct result. In this case it decided that the correct result was not to require the appellant to resign but to impose what I have described as a financial penalty - in fact, it involved loss of pay for some days, but it amounts to a financial penalty.

In those circumstances, in my view the guidance which is given by the Secretary of State in the document in question is potentially misleading. Certainly, to the extent that it indicates that the powers of the tribunal are limited to review, it is wrong. The construction of the section, the construction of the legislation, the powers of the tribunal and the correct approach by the tribunal to the exercise of its functions is a matter of law; it is not a matter that can depend upon guidance given by the Secretary of State, however well-meaning that guidance may be. As I have already said, that is clearly not guidance which falls within the terms of the statute, for the reasons which have already been indicated.

The Tribunal directed itself in these words:

I am bound to say that I think that there is some force in the submission that the reasons given by the Tribunal are not as satisfactory as they should be. However, the Tribunal noted that it was unnecessary to go into the facts in any detail at all because they were well-known to all the parties. What the chairman said was that it was unnecessary to go into any great detail, "save as to explain the reasons for our decision". They noted the service record and personal circumstances. They had put before them an explanation for the offences, which amounted in regard to charge 2 to relatively strong mitigation of what otherwise would be regarded as a very serious matter. There was some support for the explanation, particularly in the calls to the answer phone, and it was not unreasonable for the appellant to form the view that he needed to explain his requirement to have no further contact with x carefully and it may well be that x was reluctant to accept that that should occur. This does not excuse, it cannot excuse, the lapses by PC Hopes, and I am sure he recognises that as well as anyone, but it does mean that they were perhaps not as severe as might otherwise appear to be the case.

The Tribunal does not in terms say that it accepts the explanation that was given, but it is, as it seems to me, implicit in the findings and conclusions reached by it that it must have done. So far as the first charge is concerned, it is always a serious matter that notebooks are not filled in accurately. More particularly, it is a very serious matter that entries in police officers' notebooks are made after the event or are made in circumstances which endeavour to cover up a lapse which had previously occurred; that is to say, to cover up that an entry which should have been made at an appropriate stage had not been so made. Indeed, the Chief Constable, in his evidence before the court, has referred to this and has made the point that as a result it would be almost impossible to employ PC Hopes in an operational role because it would have to be disclosed, if there were any prosecution, to the defendant and his advisers that PC Hopes had been the subject of disciplinary proceedings and the nature of those proceedings, and once it was disclosed that an officer had wrongly made an entry such as this in a notebook, his veracity would or might be in issue and it would be difficult to rely on his evidence in court. That certainly is a real difficulty.

This was not raised at any stage; indeed, quite the contrary because character evidence was given before the Tribunal by the inspector who was PC Hopes' superior officer. The inspector said that he would welcome PC Hopes' return to service under him -- I paraphrase, but that was the effect of his evidence. He was not asked about this particular problem, nor was the existence of this problem raised. Miss Studd tells me that, as a matter of practice, this sort of matter would not normally be raised before either the tribunal or the lower tribunal.

The domestic tribunal, if I may call it such, consisted of course of serving officers, and they would be expected to be aware of problems such as this which would arise in the case of an officer who had done what PC Hopes had done. Equally, the Chief Constable would know of it. So too, one would imagine, would at least the ex-police officers on the appeal tribunal. But it seems to me that this is just the sort of thing that ought to be brought out into the open. If it is a matter which is material to sentence, then it is a matter which should be put before the tribunal, provided of course that the appellant has full and proper opportunity to deal with it. Obviously it should not be sprung on him at the last moment, it is a matter that should be mentioned in advance so he can deal with it. Much better that, and much fairer that, than if it is something which the expert member of a tribunal refers to in private when the hearing has taken place and the officer has not had an opportunity to deal with it. If there is any restriction on the giving of this sort of information before a tribunal, then, in my view, it ought to disappear. It is right that any tribunal, when dealing with sentence, should have full information about matters which could affect the appropriate sentence in any given case. Of course, the fact that an officer would be restricted in the duties that he could perform does not, of itself, mean that it is right to require him to resign, because such a restriction may result from an offence which would not, normally, require such a severe penalty, and to increase penalty because of the difficulties in the future in finding a niche for the officer in his employment is something which obviously would have to be very, very carefully considered and would normally, I would expect, not be appropriate. Nonetheless, as I say, this sort of factor is clearly potentially relevant in deciding on sentence, so that if, for example, a tribunal was thinking that, notwithstanding the seriousness of the matter, the officer's record and so on was such as to make it possible that a lesser sentence was appropriate, then matters such as this would, as it seems to me, properly also be taken into account.

Although, as I say, the reasoning could have been more extensive, the Tribunal was, in my judgment, entitled to reach the decision that it did in the circumstances of this case. It clearly had regard to all the matters that were put before it in the grounds of appeal, in the submissions that were made and in the character evidence that was given. The tribunal unanimously decided that, as they put it, "a requirement to resign cannot reasonably be considered to have been an appropriate response to the charges". It did not need to go that far, but the fact that it decided that it was able on the evidence to go that far shows that it quite clearly was entitled to decide, in the exercise of its judgment based upon the material before it, and taking into account and giving appropriate weight to the decision of the tribunal below, that that was the appropriate result.

In those circumstances the claim must fail.

MR FORD: Thank you, my Lord. One very minor error. I think under schedule 6 paragraph 2 one of the people may be an ex-police officer but he is not necessarily police.

MR JUSTICE COLLINS: You may well be right. Give me a moment.

MR FORD: Page 67, my Lord. Under 2(c), chief officers or within the last five years have been. They are not necessarily retired.

MR JUSTICE COLLINS: You are quite right, it can be a serving chief officer from another force.

MR FORD: Apart from that, my Lord, I would ask for our costs, whether as a party, an interested party or on the basis that we are the substantive defendant.

MISS STUDD: Subject to the usual order that they be subject to detailed assessment.

MR JUSTICE COLLINS: Yes. I do not think you can resist costs, can you?

MISS STUDD: No.

MR JUSTICE COLLINS: This claim is dismissed with costs to the interested party, PC Hopes, which will be subject to a detailed assessment if not agreed.

MISS STUDD: My Lord, I am instructed to ask for permission to appeal.

MR JUSTICE COLLINS: I wondered whether you might.

MISS STUDD: Really on the basis as set out in my skeleton argument, with the additional point that your Lordship has indicated that the guidance is wholly irrelevant. This is going to make for practical difficulties with chief constables and --

MR JUSTICE COLLINS: I can see that, but I hope I have made it clear what my view is, and at the moment my view is the law. It can be changed, it is true, by the Court of Appeal, but that is the law and that is clear, is it not? There is no muddle, I hope, is there?

MISS STUDD: Well, it depends upon the regard that should be had to the guidance and whether or not, as non-statutory guidance, it has any application at all.

MR JUSTICE COLLINS: I have said what the law is, I may be wrong, but that is what I have said, the guidance falls away then because the law is above the Secretary of State's guidance, is it not?

MISS STUDD: The law is above the Secretary of State's guidance, but the question is how much regard any appeal tribunal should have to it.

MR JUSTICE COLLINS: Well, it is only to that bit of the guidance.

MISS STUDD: It is, but in fact the effect of your Lordship's ruling goes further than that because there is a considerable amount in the guidance which relates to appeals, and if none of it applies.

MR JUSTICE COLLINS: None of it, as I understand it, is material to this issue as to how the --

MISS STUDD: I agree.

MR JUSTICE COLLINS: All the rest, I suspect, is very sensible and in accordance, and no-one has suggested it is other than in accordance, with the law.

MISS STUDD: No.

MR JUSTICE COLLINS: If the Secretary of State gives guidance, and it is perfectly appropriate for him to do so, he has to get the law right. Provided he gets the law right, no problem. In this particular regard I have formed the view that he got the law wrong, and it is as simple as that.

MISS STUDD: You have, but there is the question of whether or not police appeal tribunals have to have any regard to the guidance once it has been given. Your Lordship has said no, because it is wrong and it should not have been given in the first place.

MR JUSTICE COLLINS: All I have said is that it will have regard to the guidance if the guidance is not wrong in law. The only bit of the guidance that is suggested to be wrong in law is effectively that one sentence, I think.

MISS STUDD: It is that whole passage.

MR JUSTICE COLLINS: Well, the passage in that paragraph, that it cannot apply because it would be wrong in law to do so. That is all I have decided. The rest of the guidance, I am sure, I have not read it all, is all good stuff which will greatly assist the tribunal in the approach it should apply. I have not understood there to be any suggestion to the contrary.

MISS STUDD: I take it that permission is refused.

MR JUSTICE COLLINS: That is right, is it not, Mr Ford? All right, we have not focused on anything else, we have not had to.

MR FORD: I have not pored over them with --

MR JUSTICE COLLINS: No, nor have I, but for the purposes of how the tribunal should approach its functions, it can apply all the guidance except for this.

MR FORD: Yes, and in my submission the position is clearer now than it was before.

MR JUSTICE COLLINS: I hope so. Anything you want to add on that?

MISS STUDD: No, I take that as permission refused.

MR JUSTICE COLLINS: Well, I have not assumed that. What do you have to say, Mr Ford?

MR FORD: Yes, my Lord. We say the statutory framework is clear and my Lord has given clear guidance --

MR JUSTICE COLLINS: I have, but it is obviously quite an important issue, because what I am doing is, I suppose, changing what all tribunals have done hitherto, am I not? They have all mouthed compliance, whether they follow it is another matter, but they have all said they are following the guidance. As it happens, I have another case, which I do not know if you have any knowledge of, Chief Constable of Nottinghamshire v Police Appeals Tribunal. It is only a paper application but it has been put before me, obviously awaiting the decision. The facts are obviously very different, but it is a similar sort of challenge. There is in fact an acknowledgment of service by the tribunal in this one by the Treasury Solicitor, but as your solicitors, I suspect, may be concerned, it is CO/6900/2003.

MR FORD: I am not aware of that case, my Lord.

MR JUSTICE COLLINS: The officer in question is called Everington. Unless there is an oral renewal I suspect it will not get any further anyway.

MR FORD: My short point is that my Lord's judgment is clear and the guidance is wrong and the appeal does not have a reasonable prospect of success on that point.

MR JUSTICE COLLINS: The difficulty is I think that, quite apart from the guidance point, one has to consider the merits of the application, and I do not think that the claim is likely to get anywhere even if the guidance goes, so I think in those circumstances I should leave it to the Court of Appeal to decide whether, if an application is made, they should grant leave, so I shall refuse leave. I shall say: "Although the approach of the tribunal and whether the Secretary of State's guidance is correct is important, in my view the answer is clear and in any event this claim is not likely to succeed".