Kay, R (on the application of) v Chief Constable of Northumbria Police

Introduction.

This is a hearing to determine the remedy to which Ms Kay is entitled following her successful application for judicial review before Silber J on 23^rd July 2009. It is common ground between the parties that Ms Kay is entitled to compensation. It is equally common ground that the amount of compensation cannot be determined at this hearing. Ms Kay served a 41 page schedule of loss as recently as 30^th December 2009 and the Chief Constable has not yet had the opportunity to consider it.

The main issue to be determined is whether the Court should grant Ms Kay a mandatory order directing the Chief Constable to reinstate her as a probationary police constable. Mr Greaney on behalf of Ms Kay submits that the Court has a discretion to order reinstatement and there is no good reason why it should not be ordered. Mr Wilcox on the other hand contends that this is not an appropriate case for an order for reinstatement. He relies on the circumstances of the case, the length of time Ms Kay has been away from active police duty (nearly 5 years) and the similarity between this case and a decision of the House of Lords in which reinstatement was refused.

Both Counsel have produced full and helpful skeleton arguments containing extensive citations from the authorities. I am grateful to them for their considerable assistance in what is a by no means straightforward matter.

The Facts

The facts are set out in detail in the judgment of Silber J which is reported - [2009] EWHC 1835 (Admin). I have borrowed extensively from that judgment in the summary that follows.

Ms Fiona Kay commenced serving as a probationary police constable with Northumbria Police on 5 April 2004. On 21 July 2005, she was arrested and she was suspended from duty as a result of an allegation that she had made a fraudulent insurance claim in relation to her engagement ring. The alleged offence had been reported to the police by the estranged husband of Ms Kay, who was also a serving police officer with Northumbria Police.

Subsequently, Ms Kay was charged with the offence of obtaining property by deception. She denied the charge and the case was committed to Newcastle Crown Court for trial. On 21 August 2006 at that court, the prosecution offered no evidence against her and a verdict of not guilty was entered. Ms Kay contends that her estranged husband had made up the allegations because she had rejected his proposals for reconciliation.

Before the end of the criminal proceedings, Ms Kay had been served with formal notice of the possibility of misconduct proceedings being brought against her under the Police (Conduct) Regulations 2004 (“the Conduct Regulations”). After the criminal matters had been resolved, Northumbria Police considered whether misconduct proceedings could be brought against Ms Kay. In fact no misconduct proceedings were brought against her; instead proceedings were brought against her pursuant to Regulation 13 of the Police Regulations 2003, (SI 2003/527).

This led to a hearing before Acting Assistant Chief Constable Steven Mavin on 26 July 2007, which focused on the allegation that the claimant had made a false insurance claim which the claimant denied. The hearing concluded with this exchange relating to the claimant starting with Assistant Chief Constable Mavin saying to Ms Kay :-

“Pc Kay, I’ve carefully considered the evidence in relation to this hearing today. I rely on my interview with you and the representations that have been made in reaching my decision. I’ve also considered the options that are available. I do not consider that you are likely to become a well conducted constable because I have doubts about your integrity and honesty. This is based on the answers you have given me today regarding the use of the original computer that you owned for the production of the photo of your ring and your explanation as to the way in which you say you took the photo of that photo and why you did not take the original photo to the jewellers as you did with the receipt of the ring. That leads me to believe that there was never an original photo. I am also not convinced of the veracity of your claim that you took a photo of a photo using a telephone camera because of the expert witness evidence provided by Mr Ian McArthur that states the photo on your camera phone is an original picture with a three dimensional hand. I therefore require that you resign forthwith. Will you resign?

PC Kay: Yes Sir

Supt Neill: The last day for pay purposes is 23 August …. I will require your Warrant Card and your holder and also your box key if you have them with you today. I need that. Do that before we leave”

On 7 October 2007, a letter before action was sent to the Chief Constable in accordance with the pre-action protocol for Judicial Review contending first that the Acting Assistant Chief Constable had no authority to act under Regulation 13 as the decision was solely for a Chief Constable and second that his decision was Wednesbury unreasonable. It was said that the Regulation 13 procedure should not have been used where the underlying conduct was one of misconduct which was neither admitted by the claimant nor established to be true.

On 17 October 2007, the solicitor for the Chief Constable wrote to the claimant accepting that there was some merit in the first complaint (which was that the Acting Assistant Chief Constable had no authority to act under Regulation 13) while not accepting the second complaint which was the challenge of the decision before offering to reinstate the claimant pending a re-hearing before the Chief Constable. It was thus accepted that there would be reconsideration of the decision by the Chief Constable.

Following further correspondence (which is set out in detail in the judgment of Silber J) on 10^th December 2007 the Chief Constable expressed his view of his role:

“.. this is not a hearing. It is an administrative process. I am not prepared to delay the process further. My view is that I can have access to any documents which I choose to have access to, which will inform and help me to determine whether or not [Ms Kay] is fitted to be a Police Constable. I do not agree with your suggestion that I should be unaware of the previous decisions of Acting Assistant Chief Constable Mavin. However, what I can assure you of, is that I will make my decision quite independently and I will not be influenced by the decision or view of any other officer”.

Following further correspondence (also set out in Silber J’s judgment) the Regulation 13 hearing took place on 20^th February 2008. The hearing was recorded as having lasted 5 minutes. The Chief Constable required the resignation of the claimant stating that-

“I have doubts regarding your personal integrity and honesty and also around your professional judgement. My concerns regarding your honesty and integrity are based on the expert evidence of Mr Ian McArthur (sic – a reference to Iain McArthur, an expert who was to have been called during the criminal prosecution) who states that the photograph on your camera phone is an original of a 3 dimensional hand contrary to your own version. I also have doubts regarding your truthfulness in regard to your version of events in claiming that there ever was an original photograph of the ring produced from a computer. My concerns regarding your professional judgement stem from your decision not to allow access to your daughter in order to help establish the truth. You are a professional police officer and I find it unacceptable that you would be expected to ask of the public that which you are not prepared to do yourself. I am not swayed by your claim that you sought advice on this matter. It remains your decision and your decision alone. This is not the standard I expect of my officers.”

The issues before Silber J

The issues which were considered by Silber J were:

Regulation 13 provides (with Silber J’s underlining):

“(1)

Subject to the provisions of this regulation, during his period of probation in the force the services of a constable may be dispensed with at any time if the chief officer considers that he is not fitted, physically or mentally, to perform the duties of his office, or that he is not likely to become an efficient or well conducted constable”.

Silber J cited a number of authorities including R v Chief Constable of the West Midlands ex parte Carroll (Court of Appeal- Unreported 10 May 1994), R v Chief Constable of British Transport Police ex parte Farmer (Court of Appeal- 30 July 1999 unreported), R (Begley) v Chief Constable of West Midlands Police [2001] EWCA Civ 1571 and R (Khan) v Chief Constable of Lancashire [2009] EWHC 472 (Admin).

In the light of those authorities he concluded in paragraph 38 of the judgment that:

Silber J rejected a submission from Mr Wilcox that there was limited dispute on the evidence and referred in particular to four matters:

In Silber J’s judgment (paragraph 44):

Silber J came to no conclusion on these issues which were academic in the light of his conclusion on Regulation 13. He did however express a provisional view that Ms Kay must have known from the correspondence and the history that she was charged with making a dishonest claim, that reliance would be placed on the evidence of Mr Iain McArthur and her failure to allow her daughter to be questioned.

Silber J made the point that this point too had become academic in the light of his conclusion on Regulation 13. He expressed the provisional view that if the Chief Constable had been entitled to invoke Regulation 13 and if the Chief Constable had been entitled to conduct the hearing in the way he did, he would have required much persuading that the decision under challenge was irrational.

Silber J’s views on the question of remedy

It is plain from paragraph 51 of the judgment that the decision of the Chief Constable to compel Ms Kay to resign had to be quashed. Silber J then received submissions from Counsel as to the consequential orders that should be made. Mr Wilcox submitted that the Chief Constable did not wish to reinstate Ms Kay; it would be difficult to hold a misconduct hearing now for a variety of reasons. Accordingly Mr Wilcox submitted that Ms Kay was not entitled to reinstatement or to any salary from 20^th February 2008 because that is the date when Ms Kay’s tenure came to an end.

Silber J rejected that submission as being totally inconsistent with his conclusion that the decision made under Regulation 13 was wrongful. He referred to the decision of the House of Lords in Chief Constable of the North Wales Police v. Evans [1982] 1 WLR 1155 where a decision to dispense with the services of a probationary police constable was overturned. Declarations were made that (a) the Chief Constable acted unlawfully and in breach of his duty in threatening to dispense with the probationary police constable’s services unless he resigned from the police force and thus causing him to resign; and (b) by reason of such unlawfully induced resignation the probationary police constable thereby became entitled to the same rights and remedies, not including reinstatement as he would have had if the Chief Constable had not unlawfully dispensed with his services under the appropriate regulation. It will be necessary to consider the decision in Evans in more detail later in this judgment.

Silber J held that Ms Kay was certainly entitled to declaration (a) but had concerns about declaration (b) with or without the italicised words. He accordingly gave the parties liberty to restore the application if a declaration in the form of declaration (b) was sought by Ms Kay.

Events since the order of Silber J

By letter of the 14^th of August 2009 Ms Kay’s solicitor’s indicated that Ms Kay would be seeking a mandatory order for reinstatement but remained open to suggestions of alternative solutions.

The Chief Constable’s position about reinstatement has never changed since the original claim was put forward. This was repeated in a letter dated 11^th September 2009. In the letter the Chief Constable’s instructing solicitor sought alternative proposals from Ms Kay’s solicitors.

On 16^th September 2009 Ms Kay’s solicitor’s asked if the Chief Constable would be prepared to discuss the issue of compensation.

On 28^th or 30^th October 2009 Ms Kay submitted a formal Notice to the Chief Constable for further relief. In summary she sought:

It will be seen that the primary relief sought by Ms Kay was the declaration in the form of declaration (b) identified by Silber J with the addition of the italicised words together with a mandatory order for reinstatement. The alternative claim for damages is her fallback position.

A Schedule of Loss was not served on the Chief Constable’s solicitors until just before Christmas and was not seen by Mr Wilcox until 30^th of December 2009. Plainly the amount that Ms Kay is entitled to recover by way of compensation is dependent on whether there is an order for reinstatement.

Mr Greaney’s submissions

Mr Greaney first makes the point that Ms Kay’s strong wish is to return to her duties as a police officer. He submits that the authorities establish that there is a discretion to make an order for reinstatement. In the course of his submissions Mr Greaney analyses 3 authorities - Chief Constable of North Wales Police v Evans [1982] 1 WLR 1155, R (Bolt) v the Chief Constables of Merseyside Police and North Wales Police [2007] EWHC 2607, and McLaughlin v Governor of the Cayman Islands [2007] 1 WLR 2839. He submits that these authorities establish a discretion to order reinstatement in the case of an office holder wrongfully deprived of his or her office. In so far as the discretion was in fact exercised against the office holder in question he seeks to distinguish the authorities on their facts. I shall consider the authorities later in the judgment.

He seeks to analyse the reasons given by the Chief Constable for refusing reinstatement:

In support of Ms Kay’s claim for reinstatement he relies on 4 matters:

Mr Wilcox’s submissions

Mr Wilcox submitted that it was an inappropriate case for an order for reinstatement both because of the length of time since Ms Kay’s suspension and because of the circumstances of the case.

He referred me to the observations of the Chief Constable at the hearing on 20^th February 2008 which I have already set out.

He referred me to the 4 matters set out above identified by Silber J which Silber J thought should have been the subject of careful scrutiny in misconduct proceedings.

He referred me to Evans’ case. In effect he submitted that the treatment meted out to PC Evans was “little short of outrageous” yet there was no order for reinstatement in that case. He relied on an observation of Lord Brightman to the effect that it might border on usurpation of the Chief Constable’s powers. He made the point that in this case there have been no factual findings on the disputed matters.

He accordingly submits that it would be wrong to compel the Chief Constable to reinstate Ms Kay when he has no confidence in her.

He submitted that Ms Kay could be adequately compensated by an award of damages. He conceded that such damages would include damages for loss of her career as a police officer. He accepted that the loss of earnings claim would take into account the fact that she was earning significantly less than she earned as a police officer and that there was a loss of pension rights. He submitted, however, that there should be a discount to reflect the possibility that Ms Kay’s career could have been terminated by successful misconduct proceedings. As I understood his submissions in Reply Mr Greaney accepted that, as a matter of law, there was a theoretical possibility of a discount. In practice he submitted that it could and should be ignored. He reminded me that the criminal proceedings against Ms Kay had failed when no evidence was offered against her. Furthermore Mr Duff had advised on two occasions against misconduct proceedings on evidential grounds. It was only after receiving this advice that the decision was made not to proceed by way of misconduct proceedings but (erroneously as Silber J has held) to proceed under Regulation 13.

The authorities

As already noted Evans was also concerned with the summary dismissal of a probationary police officer by the Chief Constable under the then equivalent regulation to Regulation 13. He, too, had had good progress reports. A number of allegations were made against PC Evans; that he had bigamously married his aunt who was much older than him, that he had resided in a hippy commune with his aunt, that he was in breach of the terms of his council tenancy by keeping 4 dogs in his council accommodation. Many of these allegations were in fact found to be wrong. PC Evans had a brief interview with the Chief Constable at which he was required to resign. PC Evans made an application for judicial review of the decision of the Chief Constable. At first instance Woolf J held that the Chief Constable had not acted fairly in dismissing PC Evans but granted no further relief. The Court of Appeal made a declaration that the decision of the Chief Constable requiring PC Evans to resign or be dismissed was void. The basis of the decision was that he did not have a fair hearing. The House of Lords varied the decision of the Court of Appeal and made the declarations that I have set out above. Importantly they refused to make a declaration that PC Evans was entitled to reinstatement. It is, of course for that reason that Mr Wilcox invites me not to make an order for reinstatement for Ms Kay.

It is plain from the judgments of the House of Lords (and not disputed by Mr Wilcox) that the question of reinstatement was treated as a matter of discretion (Footnote: ¹). Thus it is necessary to consider why reinstatement was refused to PC Evans. There were 3 reasoned decisions on the question of reinstatement. Lord Hailsham expressed the view that the treatment of PC Evans was little short of “outrageous”. He stated that it was difficult to decide the appropriate order for the House to make. At 1163C – E he pointed out difficulties in treating the Chief Constable’s decision as “void”. These difficulties included the question of whether he was then an established constable, was he entitled to back pay or pension rights might he be subject to a fair hearing under Regulation (13) which would lead to dismissal on a month’s notice?

At 1163H he expressed the view that the case ought to have been dealt with either by re-engagement perhaps on a fresh term or by substantial damages. In his view the order of the Court of Appeal could not stand and the best that could be done was the order proposed by Lord Brightman.

At 1165H Lord Bridge made the point that at one stage he was strongly inclined to think that an order for reinstatement should be made. However as the other members of the House did not favour it he was not prepared to dissent. He thought that great practical problems would arise in relation to the training and other matters as a result of 4 years interruption from service. Furthermore human nature being what it is there would be an obvious danger that there would be an undercurrent of ill feeling which would affect his future relations with his superiors in the force.

Lord Brightman dealt with the position at 1176B-E. He made the point that the choice of remedy was difficult. An order for reinstatement was the only satisfactory remedy from PC Evans’ perspective. He had been much tempted to suggest that it be granted. However, in his view it would be unusual in a case such as this for a Court to order re-instatement and it might border on the usurpation of the powers of the Chief Constable. He pointed out that it would be open to PC Evans to apply to rejoin the police force and he hoped that any such application would receive serious consideration. If he were accepted in this way it would avoid the usurpation of the power of the Chief Constable. A decision to accept or reject must lie with him.

The most important difference between Evans’ case and the decision in the case of Ms Kay lies in the development of the law relating to the use of Regulation 13 to dismiss probationary constables in cases where there is a dispute of the facts alleged to constitute misconduct. It is now clear that in such a case the Regulation 13 procedure is not available to the Chief Constable. The only way that the probationary constable can be dismissed is as a result of formal misconduct proceedings. As is explained in Bolt the proceedings are determined by the panel and not by the Chief Constable. Thus it is not right to say, in this case, that the Chief Constable had the power to dismiss Ms Kay. Thus an order for reinstatement would not usurp the power of the Chief Constable.

Bolt was also an application for judicial review following the dismissal of a police officer. However PC Bolt was not a probationary constable. Furthermore the passages in the judgment relied on were not part of the ratio of the case. One of the observations relied on by Mr Greaney is plainly “obiter dicta”, the other is a comment by Underhill J on his view of the true construction of Regulation 36(3).

PC Bolt faced disciplinary proceedings arising out of his conduct in September 2003. One of the charges involved an allegation relating to his honesty and integrity. All of the charges against him were either admitted or found proved. The disciplinary panel ordered that he be dismissed from the service forthwith. PC Bolt exercised his right to require a review which was carried by the Chief Constable of a neighbouring force (Mr Brunstrom). Mr Brunstrom upheld the convictions of PC Bolt on all charges but went on to conclude that the punishment was excessive and sought to replace them with a fine of 13 days’ pay. He purported to reinstate PC Bolt. PC Bolt’s Chief Constable did not accept the decision of Mr Brunstrom and refused to reinstate him. PC Bolt therefore sought judicial review of the refusal.

Underhill J refused any relief to PC Bolt. In his view the decision of Mr Brunstrom in carrying out the review was unsupportable. Mr Brunstrom was himself carrying out a review and the decision of disciplinary panel to dismiss PC Bolt was – in Underhill J’s view – not open to challenge and thus Mr Brunstrom’s conclusions could not be sustained in law.

In paragraph 39 of the judgment Underhill J went on to consider a submission based on Evans that there should in any event be no reinstatement because of lack of confidence in PC Bolt:

It is, of course, now clear in the light of Silber J’s judgment that Ms Kay was entitled to the benefit of the disciplinary procedures.

The other passage relied on by Mr Greaney is paragraph 23 of the judgment. Underhill J was dealing with a submission as to the scope of Regulation 36(3) of the Regulations. It was argued on behalf of PC Bolt that Regulation 36(3) did not give the Chief Constable power to review the decision of the reviewing officer (Mr Brunstrom). One of the arguments put forward by the Chief Constable was that if there was no such power the Chief Constable might be saddled with someone in whom he had no confidence. In accepting the submission that the Chief Constable had no such power Underhill J said:

Discussion and Conclusion

I have to confess that I have not found the exercise of my discretion easy. I am very conscious of the arguments put forward on the part of the Chief Constable. I realise that Ms Kay has been away from full active duties as a police constable for nearly 5 years. I appreciate that the Chief Constable says he has no confidence in her and that there is the possibility of an undercurrent of ill feeling as suggested by Lord Bridge. In the end, however, I prefer the submissions of Mr Greaney and have decided to make an order for reinstatement. My reasons for so doing are as follows:

Both Counsel expressed the view that the assessment of compensation in the event of an order for reinstatement was unlikely to cause any insuperable problems and were content that it be adjourned in the hope that it could be agreed.