Sanders v Kingston

This is a statutory appeal by Mr Sanders a former local councillor and leader of Peterborough City Council (“the Council”) pursuant to section 79(15) of the Local Government Act 2000 (“the 2000 Act”) against the decision of a Case Tribunal (“the Case Tribunal”) dated 7 September 2004. Part 3 of the 2000 Act creates a system whereby local authorities are required to adopt codes of conduct for their members, and complaints of breaches of that code can be investigated and adjudicated upon by statutory bodies. The respondent is an Ethical Standards Officer appointed by the Standards Board for England under the 2000 Act and, in effect, was the prosecutor of the case against the appellant before the Case Tribunal.

The Case Tribunal held that the appellant had failed to comply with paragraphs 2(b) and 4 of the Council’s Code of Conduct by, respectively, not treating others with respect and by conduct which could reasonably be regarded as bringing his office or authority into disrepute. The Case Tribunal disqualified the appellant from being, or becoming, a member of the Council or of any other local authority for a period of two years from the date of its decision.

This appeal is brought on a number of grounds, however, the main ground concerns the interface between the system of adjudication upon complaints about the conduct of a local councillor and the fundamental right of free speech enshrined in Article 10 of the European Convention of Human Rights and given direct effect in English law by the Human Rights Act 1998.

Part III of the 2000 Act concerns conduct of Local Government members and employees. Chapter 1 of that part concerns conduct of members. Section 49 is entitled “Principles governing conduct of members of relevant authorities”. Sub-section (1) provides:-

Section 50 is entitled “Model Code of Conduct”. Sub-section (1) provides:

Sub-section (4) provides that a model code of conduct must be consistent with principles issued pursuant to section 49 and may include provisions which are mandatory. The section also provides for consultation. The Secretary of State has exercised his powers under sub-section (1) by making the “Local Authorities Model Code of Conduct (England) Order 2001 SI 2001 3575.

Section 51 is entitled “Duty of Relevant Authorities to Adopt Codes of Conduct.” Sub-section (1) provides:

Section 52 is entitled “Duty to comply with Code of Conduct”. Sub-section (1) provides:

The General Principles Order referred to above includes, insofar as is relevant, the following paragraphs:

The Model Code of Conduct Order referred to above contains certain mandatory provisions which are set out in Schedule 1 to the order

The mandatory provisions include the following terms:

It is common ground that the Model Code of Conduct was the one which applied to the Council and that it adopted its own code of conduct which reflected these mandatory provisions.

Chapter 2 of Part III of the 2000 Act concerns investigations. Section 57 establishes a Standards Board for England. This Board must appoint employees known as Ethical Standards Officers and may issue guidance in matters relating to the conduct of members and co-opted members of local authorities.

Section 58 provides that a person may make a written allegation to the Standards Board for England that a member of a relevant authority has failed or may have failed to comply with the authority’s code of conduct. The Standards Board may decide that such complaint should be investigated and if so it must refer it to one of its ethical standards officers. The investigation of such cases is part of the functions of ethical standards officers (section 59). The purpose of that investigation is to determine which of a number of findings is appropriate (section 59(3)). Those possible findings include:

Ethical Standards Officers have certain powers which they exercise in the course of their investigations. Section 62(2) provides:

Chapter 4 of part III concerns adjudications. Section 75 establishes adjudication panels of persons eligible for membership of Case Tribunals. Members of the panels are appointed by the Lord Chancellor (3). The President and deputy President of the adjudication panel are responsible for training the members of the panel and issuing guidance on how panels are to reach decisions (9). One such piece of Guidance which has been issued concerns the approach to be taken by Case Tribunals when determining the sanctions to be applied to a person who has been found to be in breach of his obligations under a code of conduct. I return to this below.

Section 76 provides for Case Tribunals to conduct adjudications. They must comprise not less than three members of the panel. There is, in addition, provision preventing any member of the adjudication panel sitting on a Case Tribunal to adjudicate on a matter relating to a member of a relevant authority if, within the period of five years, that panel member had been a member or an officer of that authority or otherwise connected with it (7).

The adjudication hearing is one in which the person the subject of the adjudication has a right to attend and a right to be legally represented. The panel may also be empowered to require persons to attend to give evidence and to produce documents and to administer oaths.

Section 79 provides for decisions of case tribunals. Sub-section (1) provides:

Section 79(15) provides:

Section 83 is an interpretation section which gives further details as to what is meant by suspension and partial suspension.

Section 1 of the Human Rights Act 1998 identifies the rights under the European Convention of Human Rights which have effect for the purposes of that act. They include Articles 6 and 10 of the ECHR. Section 3(1) of the 1998 Act provides that so far as it is possible to do so…..subordinate legislation must be read and given effect in a way which is compatible with the convention rights.

Section 6 of the 1998 Act provides as follows:

Article 6 of the ECHR provides:

An issue has arisen which I may have to consider concerning the powers of, respectively, Carrickfergus Borough Council (“Carrickfergus”) and the Council to act in certain circumstances.

The relevant powers of Carrickfergus are contained in section 115 of the Local Government Act (Northern Ireland) 1972. It provides as follows:

The Council’s relevant powers are contained in section 2 of the Local Government Act 2000. Insofar as is relevant it provides as follows:

The appellant has for many years been a member of the Council. Until the events the subject of this appeal he was a member of the Conservative Party. On 18 July 2001 he was elected Leader of the Council. On 30 January 2002 the Council adopted a code of conduct which included the mandatory model code provisions paragraphs 2(b) and 4.

In July 2001 Paul Cochrane a soldier with the Royal Irish Regiment, aged 18, shot himself at the barracks in Holywood. He left three suicide notes saying he suffered abuse at the army base.

According to the Belfast Telegraph report on the matter his father has since lobbied tirelessly in a bid to change the way in which the Army handles internal investigations. It is well known that there have been a number of similar incidents, most notably at Deepcut Barracks in England, which have similarly given rise to demands for and a campaign to support, an independent inquiry into such matters.

In April 2003 Carrickfergus, within whose area the Cochrane family resides, passed a resolution recording their serious concern at Paul Cochrane’s unexplained death and the high number of similar deaths amongst Army personnel over recent years. The resolution apparently requested the Town Clerk and Chief Executive to write to the Secretary of State for Defence requesting a full and independent inquiry into these deaths. It also asked the Chief Executive to seek the support of other local authorities in the United Kingdom. This resulted in a letter sent to Chief Executives of all UK local authorities asking them to bring the letter to members’ attention. The letter refers only to “unexplained death” and makes no specific reference to an apparent suicide or its linkage to the Deepcut incidents. Accordingly, in my judgment, the letter sent by the Town Clerk and Chief Executive was open to misinterpretation.

The Council’s Chief Executive passed the letter to the appellant as leader of the Council for him to deal with pursuant to matters delegated to him. He apparently construed the letter as not referring to these particular personal tragedies but rather to have arisen in respect of “the Troubles”. His unreflective and immediate response was to write in handwriting on a copy of the letter and return it to the Carrickfergus Chief Executive. The comments he wrote were as follows:

On 5 June 2003 the Carrickfergus Chief Executive wrote to the appellant a private and confidential letter. He enclosed a copy of the original letter with the hand written comments on it. He asked the appellant to identify himself as the writer of the comment as he had been asked by councillors to write further to the author of the comment.

The appellant did not grace this letter with a formal reply but rather wrote the following comment on it and returned it.:

On 11 June 2003 the Carrickfergus Chief Executive wrote further to the appellant. He thanked him for confirming that he was the author of the original note. He again referred to the matter as “the number of unexplained deaths” without making clear the nature of the matter concerned. He then says:

Thus far the matter had been conducted as an official, though private, exchange between the Chief Executive of Carrickfergus and the appellant as Leader of the Council. Matters then developed, however, and it became what may be termed a political or media event. The trigger for this was the leaking by an unidentified member of Carrickfergus of the original letter with hand written response to the Belfast Telegraph.

A journalist on the Belfast Telegraph Mr McCambridge telephoned the appellant on 11^th June and it is not in dispute that a heated conversation then ensued. Mr McCambridge wrote that conversation up as part of an article which appeared in the Belfast Telegraph on 12 June. In that article Mr McCambridge attributed to the appellant comments which are both foul mouthed, potentially racist and personally abusive. It appears that, at least to some extent, the appellant remained under the misapprehension that the “unexplained deaths” the concern of Carrickfergus arose from the Troubles and not from the way in which young recruits were being treated in training camps. There was a sharp dispute between Mr McCambridge and the appellant as to the accuracy of Mr Cambridges’s recollection of what the appellant had said. However the appellant did accept that in the course of the conversation he had been offensive and had on one occasion used a mild expletive.

Other media outlets got wind of this story and, according to the appellant, bombarded him with telephone enquiries. It is certainly not in dispute that on 12 June he was interviewed on the telephone by an Ulster TV reporter David Morgan. In the course of that interview he appears to have stood by the words that had been reported in the Belfast Telegraph. He denied that any of the comments attributed to him could properly be construed as racist. In a further interview on BBC Northern Ireland’s News Line programme on 12 June he was interviewed by Donna Traynor. In the course of that interview he said as follows:

Unsurprisingly the journalists concerned sought comments from various interested parties. Mr Cochrane is reported in the Belfast Telegraph to have described the appellant’s comments as “very insulting”. He said:

In the same Ulster TV programme the Mayor of Carrickfergus Councillor Ferguson said:

On 13 June the parent of another young soldier who had apparently committed suicide in Army barracks wrote to the Council expressing his “absolute disgust” at the remarks of the appellant describing him as a bigot and demanding that he be removed from public office. On 16 June another person, a resident of Peterborough, wrote to the Council’s executive complaining of the impact of the appellant’s remarks on community relations within Peterborough within the Irish community. The author of the letter asked what the Council was going to do about its Leader who had insulted the family of the young soldier, the Irish community in Peterborough and Peterborough as a whole. He believed that he should make a formal apology to the Irish community and the family.

On 13 June the Peterborough Evening Telegraph picked up the story. The appellant is recorded as saying that he made “no apology” for his strong views. He is quoted as saying as follows:

On 16 June the appellant wrote a further letter to Carrickfergus. Far from being an apology or expression of regret he maintained his position and accused Carrickfergus of raising a political and media storm for political reasons, inferentially suggesting that part of the problem of Northern Ireland was lack of effort on the part of the Northern Irish and taking the point that it was no part of local authority business to join “spurious” lobbying. He accused the local government officials of being involved in political activity and wrote as follows:

On 25 June 2003 the Council passed a resolution totally disassociating itself from the appellant’s attributed statements, recording that considerable damage to the reputation of the City and Council had been done by those views, resolved to remove with immediate effect the appellant as leader of the Council and asked the Conservative majority group to nominate a new leader in his place. This resolution plainly had the support of at least some of the appellant’s Conservative Party colleagues. On Ulster TV on the same day one of them, Councillor David Thorpe, indicated his support for that resolution. Furthermore, on 1 July the Mayor of Peterborough wrote to the Mayor of Carrickfergus informing her that the appellant had been removed as leader of Peterborough and expressed his unreserved apology for any offence caused to the Cochrane family and also to the people of Carrickfergus and Northern Ireland.

Meanwhile, on 13 and 16 June, two Peterborough councillors lodged formal complaints with the Standards Board for England. Pursuant to the statutory power referred to above, on 7 October, and following, the person conducting the investigation conducted several interviews. He interviewed Mr McCambridge twice and interviewed the appellant. In addition there was an interview with a Mr Thomas Gee who had been present for part of the time when the appellant was receiving a number of telephone calls from the media.

On 8 January 2004 a draft report was sent to the appellant for his comments and on 15 January he responded. His letter of response concluded as follows:

The hearing before the Case Tribunal took place on 7^th September 2004. Mr McCambridge chose not to attend to give evidence orally. The appellant did choose to attend in order to make two preliminary submissions which, having been rejected by the Case Tribunal, he then departed and took no part in the hearing whether to give evidence, or to make submissions on his own behalf either as to their findings or, in the event of a finding of breach, as to sanction.

The decision of the Case Tribunal first recorded their decision on the preliminary issues to which reference has already been made.

Part 3 of the decision concerns the facts in dispute. They set out those facts in extenso and in large measure they are a repeat of the Appendix submitted by the ESO to the tribunal.

Part 4 concerns submissions as to disputed facts and they there set out the ESO’s submissions which are in essence those which were contained in the earlier document. It records that Councillor Sanders made no submissions about the conflict of fact.

Part 5 sets out their findings of fact. They indicate that, notwithstanding the fact that Councillor Sanders stated before leaving the tribunal that he disputed each and every fact, nonetheless many of the facts before the tribunal were beyond dispute. They recorded that the main issue in dispute was the detailed content of the telephone conversation between Councillor Sanders and Mr McCambridge. They then set out in paragraph 5.4 what Councillor Sanders accepted as far as that conversation was concerned. They state as follows:

Part 6 of the decision considers whether the material facts disclosed a failure to comply with the code of conduct. In paragraphs 6.1, 6.2 and 6.3 they repeat what the ESO had written in the appendix as to the submissions which he believed the appellant would wish to make together with the ESO’s own submissions. Having set out the contending submissions the decision of the case tribunal is set out as follows:

Paragraph 7 sets out the ESO’s submissions as to the action to be taken, again reproduced from the appendix. They record that the respondent had not made any submissions on that matter. Paragraph 7.3 sets out the Case Tribunal’s decision in this respect. They set out in a number of paragraphs their conclusion that the conduct found was very serious. They describe his comments as “remarkably insensitive and must have been deeply offensive and upsetting to the Cochrane family”. They also record that Councillor Sanders’s conduct was such that the Council on 25 June 2003 totally disassociated itself from his statements and removed him as leader. They also took account of the fact that at no time had Councillor Sanders sought to mitigate his breach or to apologise for his behaviour but that rather had continued to stand by his comments. In those circumstances the Case Tribunal decided to disqualify him for a period of two years from being a member of the Council or of any other relevant authority.

On this issue I have had cited to me a number of relevant authorities namely Ghosh v General Medical Council (2001) UKPC 29, Preiss v General Dental Council (2001) UKPC 36, Gupta v General Medical Council (2001) UK PC 61 and EI Dupont Nemours and Co v ST Dupont (2003) EWCA Civ1368.

The starting point of the court’s jurisdiction is a combination of section 79(15) of the 2000 Act, which places no explicit limits on the scope of the appeal, and Rule 52.11 of the CPR which provides as follows:

In my judgment the approach thus described is the appropriate approach. I am not exercising a purely supervisory function. I am permitted to engage with the merits. In doing so, however, I must pay due deference to the role of the tribunal in particular where it is a specialist tribunal selected for its expertise and trained to the task.

At the heart of this appeal lies the significance of Article 10. A number of other points have, however, been taken by the appellant and I address them before turning to Article 10.

Mr Béar has attacked the quality of the decision of the Case Tribunal. He accepts that the decision sets out in full the issues of fact and also their findings of fact. It also sets out in full the contending submissions on whether the findings of fact amounted to a breach by the appellant of the code of conduct. He says, however, that the conclusions of the case tribunal set out in paragraph 6.4.1 and 6.4.2 are so spare that they do not demonstrate that any proper process of reasoning has been undertaken. In particular he says that there is no specific finding as to which elements of Councillor Sanders conduct has been found to amount to a breach of the code of conduct. Nor he says do they specify what he said to Mr McCambridge save that he used offensive language.

In my judgment Mr Bear’s criticism is not well founded. It is clear that the case divided itself into two elements. The first concerned his official exchanges as leader of Peterborough with the Chief Executive of Carrickfergus. The case tribunal concluded that in his correspondence with that officer he was disrespectful and deeply offensive to any reasonable person and that his conduct brought his office and authority into disrepute. The second matter concerned his comments to the Belfast Telegraph and other media outlets. It is clear that the case tribunal viewed his comments in the round and did not separate them out into constituent elements e.g., personal abuse to the Cochrane family, disparaging remarks about the Northern Irish generally, statements of resentment about the sacrifice made by English soldiers during the troubles. They decided the case on the basis favourable to the appellant that in his conversation with Mr McCambridge he went no further than he had admitted ie that he had used offensive language. It is clear that their approach and their process of reasoning was to take the comments to the media in the round and not to compartmentalise them. In my judgment they were entitled to do so. It was legitimate to have regard to the overall effect of what they found he had said. As a statement of their decision and as evidence of their reasoning, in my judgment their decision reveals to the reader that this is the approach they have taken. In my judgment the decision itself cannot be faulted in terms of its form or its adequacy as revealing the Tribunal’s thought processes.

Mr Béar attacked paragraphs 2(b) and 4 of the model code of conduct and the code of conduct adopted by Peterborough as insufficiently precise so as to enable a person to foresee when they may be in breach of it. He contended that it followed that they failed to be a restriction on Article 10 rights which could properly be described as being prescribed by law. He cited the case of Hashman v United Kingdom (2000) 30 EHRR 241 in support of this contention. That was a case in which the decision in question was to bind the claimants over to keep the peace and to be of good behaviour. They complained that the finding that they had behaved in a manner “contra bonas mores” and a binding over order constituted an interference with the exercise of their Article 10 right which was not “prescribed by law.” Their complaint was upheld. At paragraph 38 the court stated as follows:

In my judgment the same criticism cannot properly be made of the phrases in the model code of conduct. Each of them is specific in describing the nature of the conduct or its consequence. In one case it is a failure to treat others “with respect”. That is a concept, particularly where it describes the conduct of an official to others, which is perfectly capable of being applied by a reasonable person considering a course of conduct so as to enable that person to know whether what they are doing, or are about to do, would or would not comply with the code in that way. The other paragraph in the code, which prohibits conduct which could reasonably be regarded as bringing his office or authority into disrepute, adopts a concept which is well known in a number of different contexts as a method of identifying a level of conduct which is expected of persons holding certain positions or being members of certain bodies. Once again it describes clearly the consequence or potential consequence of conduct which is prohibited in such a way as to enable a reasonable person to predict whether or not his actions or proposed actions would or would not be in breach of the provision. I therefore reject the contention of Mr Béar that these paragraphs fail to be sufficiently precise so as to amount to a restriction “prescribed by law.”

This point concerns the fact that, pursuant to the statutory regime, a person may be required to submit himself to interview on pain of criminal sanction. Mr Béar says that the use of comments made in such an interview as evidence could amount to a breach of the obligation under Article 6 in respect of a fair trial. He cites the decision of the Court of Appeal in Official Receiver v Stern and another (2000) 1WLR 2230 in support of his contention. In particular he relies on the following passage in the judgment of the Court of Appeal, in the judgment of Lord Justice Henry:-

Thus the fact that in connection with these proceedings there was a statement taken from the appellant pursuant to a power which had compulsion as a backstop could amount to unfairness in the trial. Mr Béar acknowledged that the use by the Case Tribunal of the interview conducted with Mr Owen is sparse. In my judgment none of the Case Tribunal’s use of it disclosed any material which was not otherwise available in statements made by Councillor Sanders on other occasions, in the course of radio interviews or in his letter dated 16 June 2003, and none of them remotely caused the Case Tribunal hearing to constitute an unfair trial.

Mr Béar contends that an important matter which the case tribunal did not have regard to was the statutory context in which Councillor Sanders had his exchange with Carrickfergus. Mr Bear contends that Carrickfergus had neither the vires to pass the resolution that it did nor to seek the support of others for a public inquiry into the unexplained death of Paul Cochrane. He also contends that the Council did not have the vires to lend support to that campaign. I have identified the different statutory powers available respectively to local authorities in Northern Ireland and in England and Wales. I have had cited to me two authorities which do no more that confirm the fact that a local authority must act within its powers, however wide they may be, and does not have carte blanche to pass whatever resolution it wishes. In my judgment it is not necessary for me to decide whether or not either Carrickfergus or the Council would or would not have the vires to take the steps in question. I accept, for the purposes of this appeal, however, that Councillor Sanders was of the view that there was a question mark whether the Council had any vires and was certainly of the view that if it had it would be wholly inappropriate for it to take the action requested. I also accept that he inferred that Carrickfergus may not have had the vires either and he was greatly concerned that an official such as the Chief Executive of Carickfergus appeared to be descending into the political arena as a result of the concluding comment contained in the letter of 11 June.

Mr Béar’s principal contention is that the Case Tribunal failed to have regard to the fact that Article 10 was engaged. They were being invited to consider taking steps to penalise the appellant for exercising his right to freedom of expression. The way he puts it is that penalising Councillor Sanders for what he said, either to Carrickfergus or to the media, constitutes an interference with his freedom of expression. It may only be justified if it falls within Article 10(2). He therefore says that, before the Case Tribunal, as a public authority, could lawfully penalise him it had first to consider whether by so doing they would be acting within the limits of Article 10(2).

He says that, notwithstanding the explicit raising of the matter by the appellant, the Case Tribunal failed to have regard to this issue at all and, in so doing, they were misled by the peremptory dismissal of the issue by the ESO in his report.

Mr Beal disputes that Article 10 is in play at all. He says that the nature of what Councillor Sanders did was to engage in gratuitous and offensive abuse and it cannot be dignified by the description of a statement which attracts the attention of Article 10.

In my judgment Mr Bear is right, at least to this extent, that Article 10 was engaged. It was an error for the ESO to discount it entirely and for the Case Tribunal to fail to consider it at all. That, however, does not take the case very far and it is necessary to look at the nature of the expression indulged in by Councillor Sanders in order to see whether the interference with it by virtue of this process is lawful pursuant to Article 10(2).

Mr Béar has referred to a series of cases in which the importance of political freedom of expression has been emphasised. In Lingens v Austria the following was said in paragraph 41:

Mr Beal sought to rely on R (pro life) v BBC (2003) UKHL 23 in support of his contention that where, as here, a statutory body was tasked with taking decisions which intrinsically impinged on freedom of expression then as long as they did that lawfully Article 10 could not be invoked. In my judgment that case is not authority for such a wide ranging proposition because as was made clear by Lord Hoffman in his speech at paragraph 55 the primary right protected by Article 10 is the right of every citizen not to be prevented from expressing his opinions. He has the right to receive and impart information and ideas without interference by public authority. However in that case that primary right was not engaged. What was in issue was whether the claimant in that case could be given access to use a TV channel as to which there is no intrinsic right.

He also relied on the case of Ahmed and others v UK 29 EHRR 1. That was a case which concerned a prohibition on certain limited categories of local government official being permitted to be candidates in elections. Mr Beal is entitled to rely on this authority as authority for the proposition that even such a fundamental restriction on freedom of speech may be lawful provided the Article 10(2) limitations exist. In that case the court at paragraph 53 emphasised that the local government system of the UK has long resided on a bond of trust between elected members and a permanent core of local government officers who both advise them on policy and assume responsibility for the implementation of policies adopted. That relationship of trust stems from the right of council members to expect that there being assisted in their functions by officers who are politically neutral and whose loyalty is to the council as a whole. Members of the public also have a right to expect that the members whom they voted into office will discharge their mandate in accordance with the commitments they made during an electoral campaign and that the pursuit of that mandate will not founder on the political opposition of their members own advisors.

In my judgment the questions that I must answer are as follows:

As for the first question I am in no doubt that the Case Tribunal was fully entitled to find that Councillor Sander’s conduct was in breach both of paragraphs 2(b) and 4.

In connection with his correspondence with Carrickfergus he was plainly acting in his official capacity. He was a leader of a council corresponding with the Chief Executive of another council concerning a request which had been made in perfectly civil terms. It called for a response which paid due respect to the author of the request and its terms. It got an off the cuff, unreflective, hand written, response which, the Case Tribunal was entitled to find, showed a complete lack of respect for either the author of the request or the request itself. Furthermore they were entitled to conclude, as I would have done, that his second hand written response compounded that lack of respect and that his third response, whilst in small part reflecting understandable surprise at the Carrickfergus Chief Executive making what appears to have been a party political point, was little more than an ill tempered rant showing no respect to Carrickfergus, its members or officers. They were also entitled to conclude, as I would have done, that for a leader of a council to respond in this way on no less than three occasions was such as could not but result in a reasonable person considering that the reputation of Peterborough with Carrickfergus would be significantly damaged and thereby satisfy the requirements of paragraph 4.

As for his comments to the media, on his own case he made offensive comments to Mr McCambridge. They included the use of a mild expletive. The Case Tribunal were entitled to conclude, as I would have done, that his comment to the BBC was highly disrespectful and offensive to the Cochrane family and to the Irish people as a whole. Furthermore, its mode of expression, though not containing any expletives, was so offensive and lacking in any reflective content that they were entitled to conclude, as I would have done, that it was such as would cause the reputation of Peterborough to suffer in the mind of a reasonable onlooker. Accordingly, in my judgment the case tribunal were entitled on the facts to conclude that Councillor Sanders had broken the code of conduct in these two respects.

On a superficial level it is obvious that to penalise Councillor Sanders because of what he has said or written does constitute a breach of Article 10(1). That, however, is not the gist of Mr Béar’s complaint. What he says is that in considering whether such infringement is justified pursuant to Article 10(2) Councillor Sanders was entitled to the extremely high level of protection which the authorities demonstrate must be given to political expression because of its fundamental importance for the maintenance of a democratic society. In my judgment Mr Beal is correct when he argues that each of the forms of expression engaged in by Councillor Sanders falls short of being the expression of a political view attracting that high level of protection. However my conclusion is not quite for the reasons given by him.

Mr Beal essentially argues that what a councillor says in the course of the discharge of his office can never amount to political expression. He says that a Councillor is entitled to the additional protection given to political expression only when he is acting as a politician rather than in his official capacity as member of a council. He says that when he is acting in that capacity the statutory scheme holds sway without exception. In my judgment that is not the correct distinction. As Mr Béar points out, members of councils are politicians and their actions as such are often political actions. An obvious example is when they are speaking in council meetings where robust political debate may reflect lack of respect for political opponents or may result in views being expressed which many might regard as offensive. It cannot be the case, in my judgment, that the sole source of obligation in that context is the code of conduct unmediated by consideration of Article 10.

In my judgment the reason that Mr Beal is right in his contentions is that there was nothing in what Councillor Sanders wrote to Carrickfergus which amounts to a political expression of views at all. Similarly, looked at as a whole, there was nothing in what the Case Tribunal found that Councillor Sanders said to the Belfast Telegraph or, more importantly, to the BBC which could properly be described as political expression of views.

As for the former, what he wrote on those three occasions was written as leader of the council responding to a request from Carrickfergus. In my judgment it amounts to little more than an expression of personal anger at his time being wasted by Carrickfergus’s request. It does not contain anything which could be dignified with the description of a political opinion or the importation of information.

Similarly what he said to the BBC, in my judgment, amounts to no more than a personal attack upon the family of Paul Cochrane and the people of Northern Ireland. It is little more than vulgar abuse.

I accept, of course, that there is a political position which opposes the call for a public inquiry into the unexplained deaths of soldiers in training camps. Furthermore, the families of such unfortunate young people, who engage in such campaigning, are not immune from political criticism or from the view contrary to theirs being expressed, perhaps even forcibly. Similarly there is a political position which is a reflection of resentment and war weariness which criticises the two contending sides in Northern Ireland for being “the cause” of the deaths of many British soldiers and which calls for the disengagement of the British from Northern Ireland leaving the contending factions to sort out their own problems. I have no doubt that these political opinions can be expressed in forceful and perhaps on occasions in offensive terms. The overwhelming impression, however, of Councillor Sander’s correspondence and his broadcast utterances is that they are the ill tempered response of a person who thought that he should not be being troubled by the request of Carrickfergus and who has chosen to express his annoyance in personal and abusive terms directed, in the main to Carrickfergus council and to the Cochrane family, as a by product to the Irish people and, to an even more insignificant degree, reflecting at all on the question of the Troubles. In my judgment, therefore, Councillor Sanders’s statements do not attract the high degree of protection to which the expression of political opinion is fully entitled. Accordingly, whilst I agree that Article 10 is engaged, that the decision of the Case Tribunal prima facie infringes it, and that the Case Tribunal was wrong not to consider Article 10 I shall engage with the merits and consider whether Article 10 (2) applies. I shall do so on the footing that Councillor Sanders letters and statements do not attract the high level of protection given to expressions of political views.

I have already concluded that the provisions of the code of conduct were “prescribed by law”.

The question is whether they were “necessary in a democratic society for the protection of the rights of others”. This calls for the following questions to be asked: (a) was the legislative objective behind these provisions sufficiently important to justify limiting freedom of speech? (b) were the measures adopted rationally connected to the legislative objective? and (c) were the means used to impair the right or freedom of speech no more than is necessary to accomplish the legislative objective? (see R (Daly) v Secretary of State for the Home Department (2001) 2 AC 532.)

As Mr Beal has pointed out, the adoption by Parliament of the statement of principles and establishment of a code of conduct arose from the publication by Lord Nolan of the third report of the Committee of Standards in Public Life in July 1997 (CM 3701-1). This report called for a new start based on an ethical framework the effect of which would be a radical change in the ethical framework within which local government operated. It was stated that it was important that local authorities themselves should adopt their own codes of conduct but had to be with a degree of consistency across local authorities and an assurance that certain minimum standards would be attained by any individual code. The government in response introduced into Part III of the Local Government Bill clauses relating to the conduct of local government members and employees. The purpose of the legislation was to encourage and impose certain minimum standards of behaviour in respect of local government. No challenge is made by Councillor Sanders to the scheme. It is, therefore, implicit that he accepts that the system whereby members are obliged to undertake that they will comply with the code of conduct and will be subject to the jurisdiction of the Case Tribunal in the event that they are not satisfies, in principle, the three conditions for a lawful interference with free speech in a democratic society. I have concluded that the words and writing of the appellant amounted to no more than expressions of personal anger and personal abuse and did not constitute political expression which attracts the higher level of protection. In those circumstances, in my judgment the finding by the Case Tribunal that the appellant had breached the code of conduct and its notification of that finding to his local authority constitute an interference with freedom of expression but one which was lawful pursuant to Article 10(2).

I recognise that, were this machinery to be used against a member of a local authority who did give expression to political opinions of an offensive nature or expressed political opinions in an offensive way, then there might be circumstances in which the Case Tribunal could not find a breach of the code of conduct without involving itself in an unlawful infringement of the rights protected by Article 10. However, as a matter of fact, this is not such a case.

It was common ground that the Case Tribunal was not referred to the relevant guidance on the circumstances in which, respectively, disqualification, suspension and partial suspension may be appropriate following a finding of breach of the code of conduct. As for disqualification it says as follows:

In my judgment it was the plainest possible error on the part of the ESO not to draw the Case Tribunal’s attention to this important statement of guidance. Had he done so they would have to have considered that the types of conduct which they found against Councillor Sanders did not fall within that which would, at first blush, call for a disqualification but fall within the type of conduct which would attract either a suspension or a partial suspension, in particular the latter, because the breaches complained of occurred when Councillor Sanders was performing the role of Leader of the Council acting under delegated powers. Not having done so when they should have, this court is entitled to engage with the merits and consider the sanction having regard to that guidance.

The guidance indicates that the Case Tribunal will not usually take into account the electoral cycle of the particular body. There were, in my judgment, exceptional circumstances, of which the Case Tribunal was unaware, which made the electoral cycle of great importance in this case. In my judgment it is clear that the election at which Councillor Sanders was re-elected could not by any means have been a routine matter. On the contrary it is, I infer, obvious that the circumstances of his re-election were highly unusual. These events blew up in June 2003. Councillor Sanders was the leader of the Council and a high profile local politician. These events gained significant local notoriety, in particular in the Peterborough Evening Telegraph. As a result of these events national Conservative Party political figures were forced to make statements, the Council passed a resolution removing Councillor Sanders as leader, and he was expelled from membership of the Conservative Party in a manner sufficiently high profile as to warrant a two page article on the BBC News website for 3 December 2003. Furthermore, it is clear from the letter of 16 June and from what he said as reported on the website that he regards plain speaking as part of his political stock in trade. He was re-elected at the council election for his ward a few months later as an Independent. It must, as a matter of inference, be the case that the electorate were aware of his peculiar personal position and recent history when casting their votes and re-electing him as Councillor. The Case Tribunal was unaware of all of this, save that in fact Councillor Sanders had been re elected to the Council in May 2004, when it took its decision to disqualify Councillor Sanders as a council member.

In the light of these two defects in the process by which the Case Tribunal reached its decision on sanction, I will engage with the merits and consider whether in the light of these matters the decision of the Case Tribunal was wrong. In my judgment it was. It is a very serious thing indeed for a non elected body, such as the Case Tribunal, to disqualify from membership of a council a person who has been elected to that body by the electorate after the events complained of. In effect the case tribunal is overriding the wishes of the electorate. Whilst it cannot be said that this would never be an appropriate course for the case tribunal to take it, in my judgment, where the matter complained of was, by inference, put before the electorate as an issue and they have delivered their verdict through the ballot box it cannot be right to override that verdict. Accordingly, in my judgment the decision to disqualify Councillor Sanders was wrong. An appropriate and proportionate sanction would have been one of suspension of Councillor Sanders from the role in which the breaches of the code of conduct occurred. Accordingly, I uphold the appeal to the extent that I substitute a partial suspension for a period of one year from 7^th September 2004, from holding the position of the role of leader of the council upon Councillor Sanders in place of the decision of the Case Tribunal disqualifying him for a period of two years from that date.

I dismiss the appeal against the finding that Councillor Sanders was in breach of the code of conduct but I uphold his appeal against the sanction by imposing a partial suspension upon him of one year from 7^th September 2004, from holding the office of leader of the Council.