Baker v Police Appeals Tribunal

On this claim for judicial review the claimant (Mr Baker) asks the court to quash an order made by the Police Appeals Tribunal (the Tribunal). In response to the claim, the Tribunal has conceded that it did not have power to make the order in question. The Tribunal has nevertheless argued that the court should decline to quash the order as a matter of discretion on the ground that to do so would result in injustice. These are the reasons for my decision to reject the Tribunal’s argument and grant the relief sought.

On 13 October 2010 Mr Baker, a constable in the Sussex Constabulary, was found guilty of gross misconduct and was dismissed without notice.

Mr Baker appealed to the Tribunal against both the finding of misconduct and the disciplinary action of dismissal. By an Order dated 24 March 2011 (the “Original Order”), the Tribunal dismissed Mr Baker’s appeal against the finding of gross misconduct but allowed his appeal against the disciplinary action of dismissal, substituting for dismissal the disciplinary action of a final written warning. The Original Order further stated:

“AND WE direct that [Mr Baker] shall be reinstated in the Sussex Constabulary in the rank of constable. The effect of this Order is that for the purposes of pay [Mr Baker] shall be deemed to have served continuously in that rank from the 13^th October 2010.”

The Original Order was sent to Mr Baker by email on 28 March 2011. On 9 April 2011 the Tribunal issued a “Statement of Determination of Appeal” giving the reasons for its decision.

Later that month, the Professional Standards Department of Sussex Police informed the Tribunal that, between the date of his dismissal and the hearing of his appeal on 24 March 2011, Mr Baker had been employed outside the police service. At the time when the appeal was heard and the Original Order was made, neither the Sussex Police nor the Tribunal had been aware of that fact.

The Tribunal invited further written representations on the question of whether it could, at that stage, make an order which provided for the amount of back pay restored to Mr Baker to be reduced to take account of his earnings from his other employment during the period between his dismissal and reinstatement. After considering such representations, the Tribunal decided that it had the power to amend its Original Order in this way and that it would be just to do so.

The Tribunal accordingly issued an “Amended Order” dated 30 June 2011. The Amended Order was in the same terms as the Original Order except that the paragraph dealing with reinstatement now provided as follows:

“AND WE direct that [Mr Baker] shall be reinstated in the Sussex Constabulary in the rank of constable. The effect of this Order is that [Mr Baker] shall be deemed to have served continuously in that rank from the 13^th October 2010 save that, for the purposes of pay, only such sum shall be restored to him as is equal to the difference between his lost police service pay and his earned income from other sources between the 13^th October 2010 and his reinstatement and as will place him in the same financial position in which he would have been had he not been dismissed.”

The Amended Order was sent to the parties on 4 July 2011 along with an Addendum to the Tribunal’s Statement of Determination of Appeal. This Addendum made it clear that, had the Tribunal been aware of the true financial circumstances at the time of the appeal hearing, it would not have made an order restoring the whole of Mr Baker’s lost police pay, and explained that the purpose of the amendment was to reflect the Tribunal’s intention that Mr Baker should be placed in the same financial position and not in a better financial position than if he had not been dismissed.

On this claim for judicial review Mr Baker contends, and the Tribunal has accepted, that at the time when it made the Amended Order the Tribunal was functus officio.

The powers of the Tribunal derive from section 85 of the Police Act 1996. Schedule 6 to the Act, which has effect in relation to appeals by virtue of section 85(6), provides at paragraph 7(2):

“Where the effect of the order made by the police appeals tribunal is to reinstate the appellant in the force or in his rank, he shall ... to such extent (if any) as may be determined by the order, for the purpose of pay, be deemed to have served in the force or in his rank continuously from the date of the original decision to the date of his reinstatement.”

It is common ground that this provision would have given the Tribunal power, by its Original Order, to direct that on his reinstatement Mr Baker should receive in back pay only the difference between (a) the amount he would have earned had he served continuously in the force and (b) the amount he in fact earned from other sources between the date of his dismissal and the date of his reinstatement. However, the Tribunal did not make such a direction in its Original Order. Instead, the effect of the Original Order was that Mr Baker should receive the same sum in back pay as he would have received had he served continuously in the force, without any deduction to reflect his income from other sources.

The procedure for the determination of appeals to the Tribunal is governed by rules made under section 85 of the Act. The rules then in force were the Police Appeals Tribunals Rules 2008. Rule 22 states (in relevant part):

“(3)

The chair shall prepare a written statement of the tribunal’s determination of the appeal and of the reasons for the decision.

(4)

As soon as reasonably practicable after the determination of the appeal the chair shall cause the appellant, the respondent and the police authority to be given a copy of such statement; but in any event, the appellant shall be given written notice of the decision of the tribunal before the end of 3 working days beginning with the first working day after the day on which the appeal is determined.”

After it has given notice of its decision and issued a statement of its determination of the appeal and of the reasons for the decision in accordance with these provisions, nothing in the Rules (nor anywhere else) gives the Tribunal power to take any further action. In particular there is no express power, and it is accepted that none is to be implied, which would enable the Tribunal subsequently to change its decision.

It is for this reason that the Tribunal has conceded in these proceedings that after issuing the Original Order and Statement of Determination of Appeal it became functus officio and accordingly had no power to make the Amended Order.

On behalf of Mr Baker, Miss Felix did not seek to argue that there was any merit in a result which enabled Mr Baker to receive full back pay without giving credit for his earnings from other sources in the period between his dismissal and reinstatement. Nor did she suggest that the Tribunal would have made an order in terms which led to this result if it had known when it determined the appeal of the existence of such other earnings. Nevertheless, Miss Felix took her stand squarely on the fact that, as is now acknowledged, the Tribunal lacked jurisdiction to amend its Original Order. It followed, she submitted, that the Amended Order was a nullity and should be quashed.

Miss Felix accepted that in proceedings for judicial review the grant of remedies is discretionary but submitted that as a general principle a decision shown to have been made in excess of jurisdiction should be quashed. She cited a statement of Lord Hoffmann in Berkeley v Secretary of State for the Environment [2001] 2 AC 603 at 616F:

“It is exceptional even in domestic law for a court to exercise its discretion not to quash a decision which has been found ultra vires …”

To similar effect Lord Bingham said (at 608D) that:

“the discretion of the court to do other than quash the relevant order or action where such excessive exercise of power is shown is very narrow.”

Miss Felix also cited R v General Medical Council, ex parte Toth [2000] 1 WLR 2209 at 2214C, where Lightman J said:

“The general principle is well established that, if an applicant establishes in judicial review proceedings that the decision which he challenges is bad in law, he should be granted relief, and most particularly an order quashing that decision, unless there are strong reasons in public policy for refusing relief or unless to quash the decision would occasion so great an injustice either to the respondent or to a third party as to require some other course to be taken.”

Miss Felix submitted that there are no exceptional circumstances in this case which should inhibit the court from exercising its discretion to quash the Amended Order. Permitting the Amended Order to stand, she argued, would undermine, and effectively debunk, the principle of functus officio.

On behalf of the Tribunal, Mr Bassett submitted that this is a case in which, to avoid injustice, the court should exercise the discretion which it undoubtedly has to decline to grant a quashing order. He emphasised that the Tribunal had upheld the finding that Mr Baker had been guilty of gross misconduct and that, had Mr Baker not been dismissed from the police force as a result of such misconduct, he would not have earned any money between 13 October 2010 and 24 March 2011 apart from his police pay. The effect of quashing the Amended Order would be to restore the Tribunal’s Original Order under which Mr Baker would receive the same amount of police pay as he would have received had he served continuously in the police force whilst also keeping earnings which he would not have made in that event. The result would be to make Mr Baker better off by reason of his gross misconduct and consequent dismissal. Mr Bassett emphasised that the Tribunal’s intention in making the Original Order was to ensure that Mr Baker did not suffer financially – but not that he should benefit – because of his dismissal and reinstatement. Quashing the Amended Order, Mr Bassett submitted, would defeat that intention and allow Mr Baker to profit from his own wrong.

Mr Bassett submitted that it is within the court’s discretion to withhold a remedy if it is fair and just in the particular case. He cited a passage from Credit Suisse v Allerdale BC [1997] QB 306 at 355D, where Hobhouse LJ said:

“The discretion of the court in deciding whether to grant any remedy is wide one. It can take into account many considerations, including the needs of good administration, delay, the effect on third parties, and the utility of granting the relevant remedy.”

Mr Bassett also relied on R v Crown Court at Knightsbridge, ex parte Marcrest Ltd [1983] 1 All ER 1148. In that case the licensing justices cancelled a licence to run a casino after finding that the licensee (Marcrest) had engaged in unlawful conduct. The licence was cancelled on the grounds that the unlawful conduct showed (a) that Marcrest was not a fit and proper person to hold a licence and (b) that the premises had been used for an unlawful purpose while the licence was in force. An appeal to the Crown Court was dismissed. On a claim by Marcrest for judicial review of the Crown Court’s decision, it was pointed out that the unlawful conduct had in fact occurred during the period of the previous licence. The justices and the Crown Court had therefore made an error in holding that the premises had been used for an unlawful purpose during the licence period. The Divisional Court was nevertheless satisfied that, even if this error had not been made, the licence would still have been cancelled because Marcrest’s conduct had established that it was not a fit and proper person. In these circumstances the Divisional Court concluded that Marcrest had not suffered any injustice as a result of the error and declined to quash the order of the Crown Court. The Court of Appeal dismissed an appeal by Marcrest, holding that this was a proper exercise of discretion by the Divisional Court, with which it would not interfere.

Mr Bassett submitted that Marcrest is an example of the court in the exercise of its discretion refusing to quash an order where to do so would cause injustice – in that case by enabling a licence holder who was not a fit and proper person to avoid the cancellation of its licence. He argued that in the present case the court should similarly exercise its discretion not to grant a remedy which would lead to an unjust result.

It is well established that public law remedies, including quashing orders and declaratory orders, are discretionary. That does not mean, however, that in exercising its discretion the court is unconstrained by principle and is free to decide whether to grant or withhold a remedy according to some general sense of what is fair and just. As Lord Justice Bingham (as he then was) emphasised in a lecture entitled “Should public law remedies be discretionary?” [1991] PL 64, it is an important element of the rule of law that the rights and obligations of citizens should depend on clear rules publicly stated and not on the whims, prejudices or predilections of the individual decision-maker. In answering the question posed by his title “Well, yes, probably, in some cases, up to a point,” Bingham LJ added the further important qualification that, to be consistent with the rule of law, the discretion must be “strictly limited and the rules for its exercise clearly understood”.

To say that exercising a discretion not to quash an unlawful decision is “exceptional” or requires “strong reasons” indicates that the discretion is limited but does not by itself assist in elucidating the rules or principles which govern its exercise. The same can be said of the statement (quoted in Marcrest, supra, at 1158) of Lord Greene MR in R v Stafford Justices, ex p Stafford Corp [1940] 2 KB 33 at 44 that there must be “something in the circumstances of the case which make it right to refuse the relief sought.” In R v HM Coroner for Inner London South District, ex p Douglas-Williams [1999] 1 All ER 344 at 347, Lord Woolf said:

“When it comes to exercising this discretion I cannot suggest a better test for a court to apply when deciding whether it should give relief than that it should be 'necessary or desirable to do so in the interest of justice'.”

All these statements beg the question of when, exceptionally, it is in principle right or in the interests of justice, or there is a sufficiently strong reason, to justify the refusal of a remedy.

In attempting to answer this question, it seems to me that the starting point must be to recognise exactly what is involved from a legal point of view in declining to quash a decision of a public body which is shown to have been unlawful.

It has long been established that where a tribunal acts without jurisdiction (in the sense of not being entitled to enter on the inquiry in question), as the Tribunal did when it issued the Amended Order in this case, its decision is a nullity: see e.g. Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 at 171, per Lord Reid. Since the Anisminic case, the same analysis has been extended to any unlawful public act. As explained by Lord Diplock in O'Reilly v Mackman [1983] 2 AC 237 at 278:

“The breakthrough that Anisminic made was the recognition by the majority of this House that if a tribunal whose jurisdiction was limited by statute or subordinate legislation mistook the law applicable to the facts as it had found them, it must have asked itself the wrong question, i.e. one into which it was not empowered to inquire and so had no jurisdiction to determine. Its purported 'determination', not being 'a determination' within the meaning of the empowering legislation, was accordingly a nullity.”

To say that a decision is a nullity does not mean that, where an unlawful decision has been made, an order quashing the decision is unnecessary. People will reasonably act on the assumption that a decision of a tribunal or other public authority is valid unless and until a court quashes the decision or declares it to be null and void. In the words of Lord Radcliffe in Smith v East Elloe Rural District Council [1956] AC 736 at 769, an invalid order “bears no brand of invalidity upon its forehead” and, until quashed, “will remain as effective for its ostensible purpose as the most impeccable of orders”. Hobhouse LJ recognised this in the Credit Suisse case, when he said (at 355):

“What is the status of an ultra vires decision which the courts have declined to quash on proceedings for judicial review? In principle any such decision is to be regarded as "void" and a "nullity." Yet the effect of the exercise of the court's discretion is to allow it to stand.”

The consequence, therefore, of a court’s refusal to quash an unlawful decision of a tribunal is to allow a purported decision which the tribunal had no power to make and which is in law no decision at all to have the same practical effect as a lawful and valid decision.

In what circumstances can it ever be permissible for a court to allow a decision which is in law a nullity to be treated as if it were legally valid? Cases in which the courts have declined to quash unlawful decisions appear to fall into four main categories.

One ground on which relief may be refused is that the claim has not been properly pursued. Delay in applying for judicial review is an obvious example. Relief may also be refused where the claimant acquiesced in the decision or did not exhaust other remedies before seeking judicial review or has abused the court’s process, for example by misrepresenting or suppressing material facts. In all these cases there is some feature of the claimant’s conduct in pursuing or failing to pursue the claim which makes it inappropriate to grant relief in these particular proceedings to this particular claimant. Generally, such factors will operate at the stage of deciding whether the court will entertain a claim for judicial review at all rather than at the stage of deciding what remedy to grant after a claim has been considered and held to be well founded. But even at the latter stage there is no difficulty in principle with the concept that failure properly to pursue the claim may disentitle the claimant to a remedy.

A second ground on which a remedy may be withheld is that granting it would cause substantial prejudice to the rights of third parties. This flows from the point already mentioned that people will reasonably act on the assumption that a decision of a public authority is valid unless and until a court determines otherwise. Where quashing the decision or declaring it a nullity would be unfair to people who have relied on the decision, this is a proper consideration for the court to take into account. It has, for example, been treated as a compelling reason for the court not to grant a remedy with retrospective effect when a ruling of the Takeover Panel made in the course of a takeover is found to have been unlawful: see R v Panel on Take-overs and Mergers, ex p Datafin [1987] QB 815 at 842; and R v Panel on Take-overs and Mergers, ex p Guinness plc [1990] 1 QB 146 at 157-8.

A third situation in which the court may refuse to grant relief is where the error of law made by the public authority was not material to its decision. The Marcrest case, as I read it, is an example of this. The reason why the Divisional Court and Court of Appeal declined to quash the decision to cancel Marcrest’s licence despite the error of law made by the justices and the Crown Court was that they were satisfied that the error did not affect the decision, and that if the error had not been made the licence would still inevitably have been cancelled (because of the finding that Marcrest was not a fit and proper person to hold a licence). The dangers of taking this line of reasoning too far, for example where the error involves depriving the claimant of the right to a hearing, have often been emphasised: see e.g. R v Chief Constable of Thames Valley Police, ex p Cotton [1990] IRLR 64, quoted by Bingham LJ at [1991] PL 64, 72.

A fourth category of case in which the court may decline to grant a remedy is where it would serve no practical purpose. It may, for example, be pointless to quash the grant of a licence which has already expired, or some other activity which has already ceased, before proceedings challenging its validity have been determined.

The present case does not fall within any of these categories. There has been no delay or other conduct by Mr Baker in pursuing his claim which might disentitle him to relief. No rights of third parties are affected by the relief sought. The Tribunal’s error in supposing that it had power to amend its order led directly to the decision which Mr Baker asks the court to quash. Furthermore, quashing the Amended Order would plainly serve a practical purpose in preventing any reliance from being placed on it to justify withholding any back pay from Mr Baker.

It would be unsafe to suppose, however, that the permissible reasons for refusing to quash an invalid order are limited to those which I have identified or that the categories of such reasons are closed. This case therefore also needs to be approached in the opposite direction by considering whether the reasons urged by the Tribunal for declining to grant the relief sought are, in principle, proper reasons for the court to take into account.

As indicated earlier, there are in essence two reasons put forward in support of the Tribunal’s contention that quashing its Amended Order would cause injustice: first, that to do so would defeat the intention of the Tribunal and prevent it from rectifying the consequences of an error made when it issued the Original Order; and second, that to do so would enable Mr Baker to make a profit from his own misconduct. Neither of these reasons is in my opinion a permissible reason for withholding the remedy sought.

The Tribunal made two errors. Its first error, as the Tribunal has candidly accepted in its written grounds for contesting the claim, lay in not inviting Mr Baker and the Police Authority to make representations on the issue of back pay at the hearing on 24 March 2011. Had that issue been raised at the hearing, the fact that Mr Baker had earned money from other sources while he stood dismissed would almost certainly have emerged. Instead, the Tribunal made its Original Order in the mistaken assumption that Mr Baker had been unemployed during that period. There was no mistake, however, in the way the Original Order was expressed. The Tribunal intended that the amount of back pay restored to Mr Baker should be the full amount that he would have been paid had he served continuously in the police force. The reason why the Tribunal wanted subsequently to amend its Original Order was not that the Original Order did not say what the Tribunal intended to say and needed to be rectified. It was that the Tribunal would not have ordered the full amount of back pay to be restored if it had known of Mr Baker’s other income.

The Tribunal’s second error was, when the facts became known, to form the view that it had power to avoid the undesirable consequence of its first error by amending the Original Order. The Tribunal wrongly rejected Mr Baker’s contention that it did not have any such power because it was now functusofficio.

If the Tribunal had recognised that it was functusofficio, Sussex Police might have considered whether to apply for judicial review of the Original Order. It is now an established ground of judicial review that a decision was based on a material mistake of fact giving rise to unfairness. In E and R v Home Secretary [2004] QB 1044, 1071 at [66], Carnwath LJ (who gave the judgment of the Court of Appeal) identified, “[w]ithout seeking to lay down a precise code, the ordinary requirements for a finding of unfairness” as follows:

“First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been ‘established’, in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not been have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal's reasoning.”

It appears that in the present case the Tribunal made a mistake as to the existence of Mr Baker’s earnings from other sources, which was a matter of established fact. There is no suggestion that Sussex Police was responsible for the Tribunal's mistake, which clearly played a material part in the Tribunal's reasoning when it made the Original Order.

Whether the Original Order could have been successfully challenged on this basis in proceedings for judicial review, had they been brought in time, is not however a question which has been argued and on which it would be right for me to express any concluded view. What is in my view clear is that the possibility that the Original Order was itself invalid cannot justify a refusal to quash the Tribunal’s second, admittedly void order. The fact that in making the Amended Order the Tribunal was seeking to achieve, by an unlawful means, a result which could possibly have been achieved by a lawful and proper means is no justification for allowing the Amended Order to remain in place.

Nor can the fact that the Original Order has the unpalatable result of allowing Mr Baker to benefit from having stood dismissed be a legitimate reason for leaving the Amended Order undisturbed. It is a fundamental requirement of the rule of law – viewed as a safeguard against arbitrary power – that decision-makers act within the powers conferred on them by law and do not exceed those powers. That fundamental requirement would be subverted if it were to be accepted as a proper reason for refusing to quash an invalid decision of a tribunal that the invalid decision is one which the court thinks it would have been desirable or just for the tribunal to make had it been within its power to make it.

In a case of the present kind, such an approach would also offend against the principle of legal certainty. It is in the public interest that there comes a point at which any adjudication is treated as final and the only way of challenging the outcome is to pursue any right of appeal or review by another court rather than by reverting to the adjudicator and asking it to change its decision. That important principle would be flouted if the court declined to quash an attempt by the original decision-maker to alter its decision after the point had passed at which the decision became final.

I therefore conclude that the reasons advanced for declining to quash the Amended Order are considerations of a kind to which it would be wrong in principle for the court to have regard.

Although this is sufficient to decide the issue in dispute, there is another point worth noting. The Tribunal’s opposition to granting the remedy sought by Mr Baker has been based on the assumption that to do so will enable Mr Baker to recover his full back pay without deduction for his other earnings and thereby lead to a result which is substantively unjust. It seems to me, however, that this assumption is incorrect and overlooks a further significant limit on the extent to which refusing to give effect to an unlawful decision of a public body is a matter of the court’s discretion.

Whether or not a decision of a public body has been quashed in proceedings for judicial review, it is still open to a party to contest the validity of the decision where the issue arises as a collateral matter in a claim for infringement of private rights: see e.g. Boddington v British Transport Police [1999] 2 AC 143, 172, per Lord Steyn.

So, for example, in Wandsworth London Borough Council v Winder [1985] AC 461 a council tenant defended a claim for arrears of rent and for a possession order based on his refusal to pay an increased rent by arguing that the resolutions of the council authorising the rent increases were ultra vires and void. The House of Lords held that the fact that the issue whether the resolutions were valid could have been the subject of judicial review proceedings, had the tenant brought them in time, did not prevent him from raising that issue – and from doing so as a matter of right and not discretion – as a defence to the private law claim. This case was followed in Credit Suisse v Allerdale BC, referred to earlier.

The same principle applies where the party who disputes the validity of a public law decision in the course of seeking to establish private law rights is the claimant. Thus, in Roy v Kensington and Chelsea FPC [1992] 1 AC 624 a GP brought an action against the local health authority for pay which he claimed was due to him under relevant statutory regulations. The health authority applied to strike out the claim as an abuse of process, arguing that any challenge to the lawfulness of its decision could be made only by way of judicial review. The House of Lords rejected that argument. Lord Lowry, with whose speech the other members of the appeal committee agreed, made it clear (at p.650) that it did not matter for this purpose whether the claimant’s rights were contractual or statutory: provided the claimant had any kind of private law right to payment of remuneration, he was entitled to sue for its breach and, in order to establish the breach, to question the validity of a decision of a public authority.

Applying this principle to the present case, if Sussex Police refuse to restore to Mr Baker the full amount of police pay that he would have received had he not been dismissed, Mr Baker will have to bring a claim for the arrears. If, in answer to such a private law claim, Sussex Police were to rely on the Amended Order, Mr Baker could point to the fact that the Amended Order was, on the Tribunal’s own admission, an order which it had no jurisdiction to make and therefore of no legal effect. That point will be available to Mr Baker whether or not the Amended Order has been quashed. Declining to quash the Amended Order in these judicial review proceedings would therefore not prevent Mr Baker from recovering his full back pay.

By the same token, it is open to Sussex Police, if so advised, to raise as a defence to such a claim by Mr Baker the contention that the Original Order of the Tribunal is invalid because it resulted from a material mistake of fact giving rise to unfairness. Even if the Amended Order is quashed, this argument, if sound, will prevent Mr Baker from recovering the back pay awarded by the Original Order.

Thus, whether or not the court grants the remedy sought in this action will not, as I see it, determine one way or the other whether Mr Baker can recover his lost police pay without giving credit for his income earned from other sources during the period when he stood dismissed.

For the reasons given, I think it right to grant the relief sought by Mr Baker and to quash the Amended Order of the Tribunal dated 30 June 2011.

After indicating at the hearing that I intended to make this order, I also heard argument on costs.

As in the case of remedy, so too in relation to costs, the court has a discretion. As in relation to remedy, however, and for similar reasons, I do not consider that there is any circumstance which would justify departing in this case from the general rule that the successful party should be awarded his costs. It is accepted that the question whether Mr Baker had earned any money while he stood dismissed was not raised at the hearing before the Tribunal. I therefore reject the suggestion made faintly by Mr Bassett that some responsibility for the Tribunal’s first error lies with Mr Baker. In any event it was not that error which caused the costs of these proceedings to be incurred but rather the Tribunal’s further error in making an order (despite objection from Mr Baker) which it had no jurisdiction to make followed by its unjustified opposition to that order being quashed. In these circumstances it is just that the Tribunal should pay Mr Baker’s costs.

I therefore order the Tribunal to pay Mr Baker’s costs of these proceedings on the standard basis, which I summarily assess in the sum of £20,000.