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Cite as: [2000] EWCA Civ 101, [2000] Po LR 76, [2000] ICR 1122

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R v. SUSSEX POLICE AUTHORITY ex parte STEWART [2000] EWCA Civ 101 (4th April, 2000)

Case No: QBCOF 1999/1283 C

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MR JUSTICE DYSON
Royal Courts of Justice
Strand, London, WC2A 2LL
Tuesday 4 April 2000

B e f o r e :
LORD JUSTICE SIMON BROWN
LADY JUSTICE HALE
and
SIR CHRISTOPHER STAUGHTON
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	R
	- v -
	SUSSEX POLICE AUTHORITY ex parte STEWART	Respondent Appellant

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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Mr G. Millar (instructed by Russell Jones & Walker of London WC1X 8DH, solicitors) for the appellant
Miss M. O'Rourke (instructed by The Sussex Police Authority Legal Dept) for the respondent
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Judgment
As Approved by the Court
Crown Copyright ©

LORD JUSTICE SIMON BROWN:
Introduction
Under the Police Pensions Regulations 1987 (the Regulations) police officers may be required to retire on pension if they are disabled and their disablement is thought likely to be permanent. If later it is found that their disability has ceased, they may be invited to rejoin the force, and whether or not they do so, their pension will be terminated. Disablement for these purposes is defined to mean:
"... inability, occasioned by infirmity of mind or body, to perform the ordinary duties of a male or female member of the force, as the case may be."
The central, indeed sole, issue raised on this appeal is what are "the ordinary duties of a ... member of the force"?
The question of disablement usually arises in connection with enforced retirement. Here, however, it arises in the context of the respondent police authority's invitation to the appellant to rejoin the force. Their contention is that she is now able to perform the police duties which they would assign to her (essentially sedentary work in an office) and thus is no longer disabled within the definition. She, however, argues that the ordinary duties of a member of the force include operational duties and these she could not perform.
Let me at this stage set out the three Regulations at the heart of this appeal:
"Disablement
A12. (1) A reference in these Regulations to a person being permanently disabled is to be taken as a reference to that person being disabled at the time when the question arises for decision and to that disablement being at that time likely to be permanent.
(2) ... disablement means inability, occasioned by infirmity of mind or body, to perform the ordinary duties of a male or female member of the force, as the case may be, ... "
"Compulsory retirement on grounds of disablement
A20. Every regular policeman may be required to retire on the date on which the police authority determine that he ought to retire on the ground that he is permanently disabled for the performance of his duty:
Provided that a retirement under this Regulation shall be void if, after the said date, on an appeal against the medical opinion on which the police authority acted in determining that he ought to retire, the medical referee decides that the appellant is not permanently disabled."
"Cancellation of ill-health and injury pensions
K1. (1) As long as a person -
(a) is in receipt of an ill-health pension; ...
the police authority may, if they wish to exercise the powers conferred by this Regulation consider, at such intervals as they in their discretion think proper, whether his disability has ceased.
(2) If on any such consideration it is found that his disability has ceased, the police authority may give the person concerned notice that if he wishes to rejoin the force as a regular policeman within a period of not less than three months from the date on which he has been given such notice he will be permitted to do so.
(3) If the person concerned within the period referred to in paragraph (2) offers to rejoin the force as a regular policeman, he shall be permitted to do so in a rank not lower than that he held immediately before he retired with the ill-health pension.
(4) On the person concerned rejoining the force as mentioned in paragraph (3) or, where he does not offer to rejoin within the period referred to in paragaph (2), at the end of that period, there shall be terminated -
(a) the unsecured portion of his ill-health pension, ... "
On 18 September 1998 the respondents issued a notice to the appellant under Regulation K1(2). That is the decision which the appellant challenges in these proceedings. Her application failed before Dyson J on 29 November 1999. With his leave she now appeals to this Court.
A number of issues arose below. The true construction of Regulation A12(2), however, is the only one still alive, and of the rest I shall say nothing. The point of statutory construction is, submits counsel for the respondent authority "a very significant point for police officers and police forces around the country".
The Facts
This being a point of general application, the facts of the present case are of no particular relevance. It is nevertheless conventional to say something of them and in any event they serve to illustrate the problem. They can be summarised as follows.
The appellant is thirty-one years of age. She joined the Sussex Constabulary in 1987. On 3 June 1995 she sustained a fracture of her left ankle whilst on duty. She underwent an operation to fix internally the medial malleolus which required the insertion of two screws. Having made what appeared to be a good recovery she returned to work in September 1995. In June 1996, however, during an operation to have the screws removed, she suffered ligament/tendon damage. On 18 April 1997 she was certified as permanently disabled from performing the ordinary duties of a member of the police force by reason of scarring of ligaments and tendons of the left ankle, and on 22 May 1997 she was retired from the force on the ground of permanent disability pursuant to Regulation A20.
Following her retirement, the appellant obtained employment in an office with a company in Worthing. On 13 February 1998 she was recalled to see the force medical adviser, Dr O'Donnell, for further examination under Regulation K1. On 18 February 1998 Dr O'Donnell issued a certificate to the effect that she was not disabled from performing the ordinary duties of a member of the police force. The following day, Inspector Prout, an inspector in the respondents' employee relations department, wrote to the appellant enclosing a copy of Dr O'Donnell's certificate and giving the relevant notice under Regulation K1(2). The letter related to the doctor's opinion that "whilst you are not fit for all police duties you are fit for those duties with a low risk of confrontation".
On receipt of that notice the appellant exercised her right of appeal to a medical referee under Regulation H2 (which I need not recite). She contended that she was still disabled because she was "unable because of infirmity to perform all, or the overwhelming majority of, the ordinary duties of a police officer". Inspector Prout stated to the medical referee:
"It is our view that Miss Stewart is perfectly capable of discharging the ordinary duties of a police officer. What she may not be able to do is discharge all of the roles. She might have a problem as a beat officer in Brighton for example but it is unlikely that she would have a problem discharging her duties in a similar role in a country area i.e. the risk of confrontation is very much reduced. We look at the ordinary duties of a particular post and not one which is manufactured. Looked at in this way very few posts require full fitness.
If Miss Stewart had accepted the medical recall she would have been working in the control room at Bognor Police Station and in reality her duties would be no different from the work that she carries out at present i.e. the driving would be the same and in physical content the work would be the same."
The medical referee examined the appellant and produced a report on 21 August 1998. He said that the most likely diagnosis of her condition was chronic tenosynoritis or tendonitis. Having stated that she was capable of carrying out regular sedentary work in an office, and of driving to and from that office for some distance, his report continued:
"It is, on today's evidence, unlikely that this lady would function very well in extreme circumstances, i.e. where she may be needed to run or apprehend or tackle an individual. Under these circumstances she might have difficulty and I would have thought not only would she be vunerable but her reliability would certainly be in question. Outside of these circumstances it is clear, by her own volition, that she would be able to function.. ... If therefore the definition of `fit for service' is as outlined by Inspector Prout, then this lady is clearly fit for work of some nature in the police force, and if the nature of that work was similar to the work she is presently doing, then there could be very little argument. If by contrast the definition `fit for service' means that she must be capable of attending to all situations, however vigorous in the police force, then I would doubt whether she could reasonably be said to be fit."
Following that report, the respondents on 18 September 1998, relying on their own view of "disablement", issued their further notice under Regulation K1(2), the notice under challenge in these proceedings.
It is convenient at this stage to set out certain further evidence given by Inspector Prout in the course of this case. In his statement to the medical referee he had explained how, until comparatively recently, "there tended to be a requirement by the divisional commanders that all officers should be completely fit for all possible duties." By 1996, however, he and Dr O'Donnell had concluded that medical retirement was becoming too easy. He said:
"By retiring officers, waste was occurring in both a financial and practical sense. We were discarding officers, some of whom did not wish to retire, wasting many years of service and training when their experience could be used and throwing away acquired skills and the cost of training. In addition, of course, the actual cost of medical retirement for each officer was extremely expensive ... During the year 1996-97 some 50 officers out of a total of 3,000 were medically retired which seemed extremely high. Many officers were not significantly disabled and could discharge duties but resistance was faced from divisional commanders who were requiring 100% fitness for all duties. In our view this was totally unnecessary since there are numerous roles and duties within the force that could be adequately discharged with much less than 100% fitness such as control room, crime management, criminal justice support unit and many other posts. ... In fact very few posts require a significant level of fitness. ... It was accepted that, where appropriate, officers would be placed in roles where there was a low risk of confrontation even though this could not be totally avoided in that officers have a responsibility even when off duty. Nevertheless in their training all officers are taught to operate within their capabilities and an officer who is not 100% fit in confrontation is not necessarily any worse than, for example, a very small officer faced by a very large criminal. ... it is perfectly feasible for the Sussex police ... to accept an officer at an extremely reduced level of fitness if there is willingness on each side. By way of example there is one officer who was very badly injured in a road traffic accident many years ago but has remained with the force. Equally we are considering a case involving a superintendent who is in fact in a wheel chair as a result of serious injuries. She is extremely keen to remain with the police and we are equally keen to retain her. These are not the only examples."
In a subsequent affidavit Inspector Prout said this:
"[The appellant's solicitor] talks of the primary function of a constable based on a 17th century definition. Sussex police is about to move into the 21st century and the role of a constable has substantially changed. To say it is confined to response and problem solving is to seriously misrepresent the duties of a contemporary police officer. Substantial numbers of police officers preserve the peace in support of operational police colleagues. They are not, and many will not be, required to perform `operational duties'. ... There are now many facets to police work and numerous officers not on patrol. ... There are currently 32 police officers within Sussex police force who for the foreseeable future will only be fit for non-confrontational duties.
It is agreed that a police officer has a duty to deal with all incidents, whether on or off duty, which fall within their primary duties. That said, any officer must deal with any incident according to their skills and abilities. ... A slightly built female officer confronted by two large offenders wielding knives would not be expected to apprehend them without the arrival of suitable `back up' resources ...
Once outside their probationery period Sussex police officers are not required to be `fully fit' unless they are in specialist posts such as firearms or P.S.U. No police force has fitness testing for officers outside probation, unlike the armed services, and were this to be introduced, a substantial number of officers would probably be unable to meet the fitness requirement.
Miss Stewart is being treated differently to the required fitness standard of new recruits, but identically to every other officer outside of their probationery period. There are a substantial number of officers who it is acknowledged will never return to `front line policing' but are still capable of performing useful and real `police officer' roles in areas such as control rooms, incident management centres, call handling centres, firearms departments and others. Their skills and abilities. gained over several years of police service, are valued as are they. Were the 100% fit rule to be applied they would have to be thrown on the scrap heap losing all the experience gained over those years and confining them to the ranks of the unemployed."
The Judgment below
In the light of that evidence the judge observed:
"There is no definition of `ordinary duties' in the Regulations. In my view, the phrase should be given a reasonable interpretation, and it should be borne in mind that, in a modern police force, a wide range of activities and duties is performed by officers, involving different skills and abilities. Some functions are highly specialised and involve very particular skills, for example, firearms and surveillance duties." (paragraph 40)
Then, having quoted at length from Inspector Prout's evidence, the judge in paragraph 42 concluded:
"This is the factual background against which the phrase `the ordinary duties' of a member of the police force should be construed. Many officers do not, and are not required to, perform all the duties of a police officer. They are nevertheless undoubtedly performing the duties of a police officer, and those duties are ones which are ordinarily and normally carried out by police officers. Putting it another way, they are doing the ordinary work of a police officer, although they may not be doing the work ordinarily carried out by every member of the entire police force. I can think of no good reason why Parliament should have intended to prohibit a police authority from recalling to the service a person who is able to carry out most, but not all, of the duties ordinarily performed by the entire police force."
He accordingly held the appellant to be capable of performing "the ordinary duties" of a member of the force within the meaning of Regulation A12(2) and dismissed her challenge.
The History of the Regulations
It is, I think, helpful at this stage, before turning to the rival arguments, to note something of the history of these Regulations including the background to the reference in Regulation A12(2) to the "ordinary duties of a male or female member of the force".
The first Police Pensions Regulations were made under the Police Pensions Act 1948 and came into force on 5 July 1948. So far as presently material, the wording of the 1948 Regulations was identical to that of the present (1987) Regulations (and, indeed, the four intermediate sets of Regulations). Both, moreover, were made under identical empowering provisions, namely s.1(1) of both the 1948 Act and the Police Pensions Act 1976 which required Regulations to be made not only as to pensions and contributions but also:
"(c) as to the times at which and the circumstances in which members of police forces are or may be required to retire otherwise than on the ground of misconduct. "
There also came into force on 5 July 1948 the Police (Consolidation) Regulations 1948 and the Police (Women) (Consolidated) Regulations 1948, both made under the Police Act 1919. The former provided:
"6. The numbers shall be sufficient to provide men for the carrying out of patrol, station, reserve and any other appointed police duties under responsible supervision in each tour of duty.
7. A candidate for appointment to a police force - ... (4) must be certified by a registered medical practitioner approved by the police authority to be in good health, of sound constitution and fitted both physically and mentally to perform the duties of his office."
The Police (Women)(Consolidation) Regulations 1948 provided:
"2(2) The numbers shall be sufficient to provide women for the carrying out of such of the duties mentioned in the First Schedule to these Regulations as may be assigned to women members of the force by the chief officer of police with the approval of the police authority."
The First Schedule read:
"DUTIES WHICH MAY BE ASSIGNED TO WOMEN MEMBERS OF A POLICE FORCE
Patrol duty.
Duties in connection with women and children reported missing, found ill, injured, destitute, or homeless, and those who have been the victims of sexual offences, or are in amoral surroundings.
Taking statements from women and children in cases of sexual offences.
Duties in connection with the conveyance of women and children to or from hospitals, poor-law institutions, police stations, prisons, remand homes, and approved schools.
Watching female prisoners or women who have attempted suicide detained in hospitals, etc.
Attendance on women and children in court.
Searching and attending female prisoners.
Clerical work.
Plain clothes duty and detective work."
Regulation 3 provided:
"3. A candidate for appointment as a woman member of a police force ... (3) must be certified as a registered medical practitioner approved by the police authority to be in good health, of sound constitution and fitted both physically and mentally to perform the duties of her office."
The following year, by the Police (Women)(Consolidation) (Amendment) Regulations 1949, the First Schedule to the 1948 Regulations was omitted and no limitations were thereafter imposed on the duties which could be assigned to women police officers. For three more years, however, women officers remained unable to be promoted beyond the rank of Inspector, until the 1949 Regulations were in turn replaced by the Police Regulations 1952 which drew no material distinction between male and female officers.
That history seems to me to explain very clearly why, in its first manifestation in the 1948 Regulations, Regulation A12(2) of the Pension Regulations referred to "the ordinary duties of a male or female member of the force, as the case may be": their respective duties were then different. Why, however, those words should have remained in the Regulations since 1949 is less clear; it seems likely to have been an oversight. Certainly no one suggests that disablement now means anything different for a woman police officer than a male police officer and thus the central question for the court is what are the ordinary duties of a police officer of either sex.
The Appellant's argument
In addressing this question, Mr Millar for the appellant points out that every member of the police force of whatever rank is a constable, and he invites our attention to various passages in volume 36(1) of Halsbury's Laws (4th edition, reissue of 1999), including the following:
"201. The common law constable. The history of the police is the history of the office of constable and, notwithstanding that present day police forces are the creation of statute and that the police have numerous statutory powers and duties, in essence a police force is neither more nor less than a number of individual constables, whose status derives from the common law, organised together in the interests of efficiency."
"204. The status of the police constable. A member of a police force, of whatever rank, when carrying out his duties as a constable acts as an officer of the Crown and a public servant. His powers, whether conferred by common law or statute, are exercised by him by virtue of his office ... ."
524. General functions of constables. The primary function of the constable remains, as in the 17th century, the preservation of the Queen's peace. From this general function stems a number of particular duties additional to those conferred by statute and including those mentioned below.
The first duty of a constable is always to prevent the commission of a crime. If a constable reasonably apprehends that the action of any person may result in a breach of the peace it is his duty to prevent that action. ... It is a constable's general duty to protect life and property. The general function of controlling traffic on the roads is derived from this duty. ...
Every member of a police force must carry out all lawful orders and at all times punctually and promptly perform all appointed duties and attend to all matters within the scope of his office as a constable."
Turning then to the words in Regulation A12(2) "the ordinary duties of a ... member of the force", Mr Millar submits that the word "the" must mean all the duties, not merely some of them; that "ordinary" means customary, usual or normal; that the word "a" denotes the typical (male or female) holder of the office of constable; and that a constable's duties are those described in Halsbury, his or her "first duty" being "always to prevent the commission of a crime." A constable cannot perform his or her ordinary duties, submits Mr Millar, unless he or she can at least run, walk reasonable distances (i.e. patrol), stand for reasonable periods, and exercise reasonable physical force appropriate to his or her size and sex in exercising powers of arrest, restraint and retention in custody. And, as Inspector Prout makes plain, that certainly was how the respondents' own divisional commanders had earlier understood and applied the Regulations.
Moreover, submits Mr Millar, not only is that the natural construction of the Regulation, but it also achieves the most sensible result. The key Regulation here, as between Regulations A20 and K1(2), is Regulation A20: there are far more occasions when a police authority may wish to retire a police officer on medical grounds than wish an officer to rejoin the force (or at any rate to terminate their pension) on the ground that their (thought to be permanent) disability has ceased. Far better, submits Mr Millar, that the Regulations be construed so as to give the police authority a wider, rather than narrower, discretion under Regulation A20. Indeed, if the respondents' argument be right, there will be very few cases in which they could ever retire anyone on the grounds of physical disability: if, as Miss O'Rourke argues, "an officer cannot be held to be disabled if able to perform duties which are the characteristic duties of some other police officer or a group or category of police officers", and if the force retains, as the respondents do, officers disabled to the extent even of being in a wheel chair, then the limited scope of Regulation A20 is self-evident.
The Respondents' argument
Somewhat paradoxically, as it appears, Miss O'Rourke contends for a narrow construction to be given to Regulation A20. Generally speaking, she tells us, police officers wants to be able to say that they are permanently disabled so as to be retired from the force with a pension - often (as in the case of this appellant) then taking alternative employment outside. Police authorities for their part are not troubled at the prospect of being unable to retire physically unfit officers. As Inspector Prout states, there are many officers unfit for operational (or at any rate confrontational) duties and, as a matter of practical reality it will almost always be possible to assign unfit officers to desk jobs or other physically undemanding duties.
As for the construction of Regulation A12(2), Miss O'Rourke submits that there are many members of the force whose ordinary duties involve no greater physical fitness than that required to drive to work and sit at an office desk (which is what this appellant would be asked to do and, indeed, already does). The question, submits Miss O'Rourke, is "whether the police officer is able to perform full-time police work taking into account the variety of police work available in a 21st century modern police force". The purpose of the Regulations, she says, is "to pay pensions to those who need them and not to those who can continue to serve [or, I am sure she would add, those who can resume serving] as police officers".
Conclusions
Persuasively though the judgment below reads, I for my part have come to the contrary conclusion. It seems to me perfectly clear that when these Regulations were first drafted in 1948 "the ordinary duties" (respectively of a male and female police officer) to which (the predecessor of) Regulation 12A(2) referred were the self-same "duties of his [her] office" which, under the other 1948 Regulations, officers had to be "fitted both physically and mentally to perform". The Regulation, I have no doubt, is talking about the duties of the office of constable and, as the 1999 re-issue of Halsbury's laws states, these in law remain as they were in the 17th century, the first of them being to prevent of the commission of a crime.
It is, of course, true that the prevention of crime is much assisted by technical advances and that, as the years have passed, the amount of police work able to be undertaken by those substantially less than 100% physically fit has greatly increased. A job in IT, for example, requires little in the way of running, walking or standing. But is that a sound basis for construing the Regulations as Miss O'Rourke invites us to do?
In my judgment it is not. In the first place, I find her approach difficult to reconcile with the language of Regulation A12(2). Given that several police jobs do not require physical fitness and in that respect are just like jobs in ordinary civilian life, the very concept of "ordinary duties of a ... member of the force" becomes, on Miss O'Rourke's argument, meaningless: the Regulation could as well speak of unfitness for any ordinary job. For this reason, if for no other, there can to my mind be no question of applying the "ambulatory" or "always speaking" approach to the construction of these Regulations - see Cross on Statutory Interpretation, 3rd edition, at pp.51-52. As it seems to me, therefore, Mr Millar's arguments on construction are to be preferred: the hypothetical member of the force whose ordinary duties the Regulation must have in mind is the holder of the office of constable who may properly be required to discharge any of the essential functions of that office, including therefore operational duty.
Secondly, I see no good reason why Mr Millar's construction should not be preferred as a matter of policy. I simply cannot accept Miss O'Rourke's submission that, on this approach, police officers are in a position to exploit the Regulations to their advantage. Regulation A20 manifestly vests in the police authority a discretion whether or not to enforce retirement on grounds of disablement. A combination of the words "may" and "ought" in the Regulation make plain that it is they who can compulsorily retire the officer, not he who can compel them to do so. So far, therefore, from police officers being able to exploit the Regulations, the construction I favour would allow the police authority to retain any officer they wish to retain and at the same time enable them to ensure that they have as many fully fit officers as the force requires, for example in times of emergency.
Nor does it seem to me that police officers like this appellant are on this appraoch unfairly advantaged under Regulation K1(2). As Mr Millar observes, the exercise of this power by a police authority would, on Miss O'Rourke's construction, force an officer back to work on a restricted basis. Assume that an officer had joined the police force for an active, front-line life, and, having later suffered disablement and been retired compulsorily under Regulation A20, had then recovered sufficiently for the police authority to invite him back into the force to undertake non-operational work. Should he be required to accept such an invitation or lose his pension? It seems to me one thing to say that the police authority were not obliged to retire him in the first place; quite another to say that, having done so, he can then fairly be recalled for a life of restricted duties. Were he, of course, to make a full recovery, that would be another matter. Clearly then the police authority could use the Regulation K1(2) power.
Be all that as it may, however, I have reached the clear conclusion that, within the meaning of these Regulations, a police officer's "ordinary duties" include operational duties and accordingly that the appellant remains disabled. It follows that the notice served upon her under Regulation K1(2) was invalid and that she is entitled both to remain retired from the force and to draw her pension.
I would allow this appeal.
LADY JUSTICE HALE:
I agree.
SIR CHRISTOPHER STAUGHTON:
With either of the two interpretations of the Police Pension Regulations which have been put before us, there may be unfortunate consequences. Take first Miss Stewart's case, that "the ordinary duties of a ... female member of the force" require her to run, to walk reasonable distances, to stand for reasonable periods, and to exercise reasonable force appropriate to her size in exercising powers of arrest, restraint and retention in custody. If the officer fails in any one of those requirements, the police authority may require her to retire on the ground of permanent disablement. That seems to result in a degree of absurdity if the officer is and always has been in an occupation which does not require her to do any of those things.
If on the other hand the Sussex Police Authority are right, they cannot require any policeman to retire under Regulation A 20 if he is able to undertake any job which any policeman carries out, such as a clerical job in an office. That would be the case even if the policeman were otherwise wholly disabled, and if there were no clerical job available. Again there is a degree of absurdity.
It may be that in practice a police officer is seldom displeased if he is asked to retire on medical grounds, as he will receive a pension. It may also be that a police authority will not wish to retire on medical grounds a police officer who is capable of some job in the force, and that there is seldom if ever a shortage of clerical jobs. I do not know how likely it is that such a situation will arise, or how frequently. So I can only have regard to the possibility that it may.
The right solution, for police authorities and for the Police Federation, may be to adopt some intermediate test. Samuel Butler, as I have remarked before, wrote "Extremes are alone logical, but they are always absurd; the mean is illogical, but an illogical mean is better than the sheer absurdity of an extreme". Perhaps the test should be whether the officer is disabled from discharging any duty of a kind which she has undertaken in the past. But it is not for me to rewrite the regulations.
We must accept what we find in the regulations, and interpret them as best we can. The arguments of absurdity on either side cancel each other out. We are left with the ordinary meaning of the words used. On that basis I agree with Simon Brown LJ that this appeal should be allowed. The Authority's decision to issue a notice under Regulation K1(2) should be set aside.
Order: Appeal Allowed.