England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(MR JUSTICE BLOFELD)

		Royal Courts of Justice Strand, London, WC2A 2LL
		Tuesday 31st July 2001

LORD JUSTICE SIMON BROWN:

1. The question for decision on this appeal is whether a senior police officer, suspended under police disciplinary regulations following a complaint made against him, whose appointment to office under a fixed term contract then expires by effluxion of time, nevertheless remains subject to the disciplinary process. Mr Beckett, the respondent, submits not and succeeded in that contention before Blofeld J on 22 May 2001. The Surrey Police Authority submit the contrary and now appeal to this court by leave of the judge below.
2. The issue is one of general application and falls to be decided by reference rather to the relevant police regulations than to the detailed facts of the case. These, therefore, can be briefly stated.
3. The respondent was appointed by the appellants to the office of assistant chief constable of the Surrey constabulary by letter dated 3 October 1995. The terms most material for present purposes are these:

"DURATION OF THE CONTRACT

4. Your appointment will be for a fixed term starting on 1 April 1995 and expiring on 20 May 2001, unless determined earlier by prior notice on either side.

5. It is a condition of you accepting the appointment that, in accordance with s.142 of the Employment Protection (Consolidation) Act 1978, you agree to waive your rights to:

(a) Make a complaint of unfair dismissal;

(b) A redundancy payment;

on expiry of the contract on 20 May 2001.

6. Notice to terminate the contract other than by reasons of its expiry, shall be three months in writing on either side."

4. That appointment superseded the respondent's appointment by the appellants in 1994 as deputy chief constable, an appointment which had itself been described in the appellant's confirmatory letter dated 1 August 1994 as "permanent, but subject to three months notice in writing on either side." Both letters noted that the appellant had been in continuous police service since 26 May 1965.
5. In late December 1998 a complaint of sexual harassment was made against the respondent by a female employee of the Surrey police force, and on 8 January 1999 he was suspended under regulation 23 of The Police (Discipline)(Senior Officers) Regulations 1985 (the Discipline Regulations) pending investigation of the matter. Following his suspension four other female employees made complaints against him and an investigating officer was appointed.
6. In September 1999 the respondent was charged on four criminal counts of indecent assault. A year later, on 8 September 2000, following trial at Southwark Crown Court, he was acquitted of each. Ten days later, on 18 September 2000, he was served with a written notice pursuant to regulation 7 of the Discipline Regulations, stating that disciplinary action would be taken against him in respect of the alleged sexual harassment of five named female employees of the Surrey police force over different periods, between 1991 and 1998.
7. A number of further steps had to be taken in the course of these disciplinary proceedings (including the addition of a further charge in respect of a sixth complainant) and it became apparent that the process would not be able to be completed until after the expiry of the respondent's fixed term contract on 20 May 2001. The parties being in dispute as to the effect of that upon the disciplinary process, the appellants claimed in the High Court a declaration that they be at liberty to continue the disciplinary proceedings against the respondent even after the expiry of his fixed term contract on 20 May 2001. The application was, as stated, dismissed on 22 May 2001.
8. The point at issue falls to be resolved by reference to the Police Regulations 1995 (the 1995 Regulations), originally made on 30 January 1995 under s.33 of the Police Act 1964 and having continuing effect as if made under s.50 of the Police Act 1996. Regulation 13A (inserted by amending Regulations later in 1995) was introduced to establish fixed term appointments for certain senior ranks and so far as material provides as follows:

"13A(1) This regulation applies to every appointment on or after 1^st April 1995 of a person to the rank of (a) … assistant chief constable of a police force …

(2) Where it is proposed to vary by agreement the conditions of service of a person who on 1^st April 1995 holds one of the ranks specified in paragraph (1) above indefinitely so that he holds that rank instead for a fixed term (a) that term shall be for a period authorised by … paragraph 4 …

(4) Subject to paragraph … (9), an appointment to the rank of assistant chief constable … shall be for a term of not less than 4 years and not more than either (a) 10 years, or (b) a period expiring with the date on which the person appointed reaches minimum retirement age or, if that period is less than 4 years, 4 years, whichever of the periods in sub-paragraphs (a) and (b) is the shorter.

(7) The term of an appointment to which this regulation applies may be extended by agreement for a period or periods up to the time when the person appointed (a) has completed 30 years pensionable service for the purposes of the Police Pensions Regulations 1987, or (b) has completed 25 years pensionable service for those purposes and has attained the age of 50, whichever is the earlier.

(9) This regulation is without prejudice … to regulation 16(1) and (2) (retirement) and the provisions referred to in regulation 16(3)."

9. Regulation 16, under the heading Retirement, provides so far as material:

"(1) Without prejudice to the provisions mentioned in paragraph (3) and subject to paragraph (2) a member of a police force may retire only if he has given to the police authority one month's written notice of his intention to retire or such shorter notice as may have been accepted by that authority.

Provided that, while suspended under the Discipline Regulations, a member may not, without the consent of the chief officer of police, give notice for the purposes of this regulation or retire in pursuance of a notice previously given.

(2) In the case of a[n] … assistant chief constable, paragraph (1) shall have effect as if (a) for "one month's" there were substituted "three months'", and (b) for "chief Officer of police" there were substituted "police authority".

(3) The provisions referred to in paragraph (1) are … (d) the provisions of the Police Pensions Regulations relating to compulsory retirement …"

10. Regulation A18 of the Police Pensions Regulations provides amongst other things that an assistant chief constable shall be required to retire on attaining the age of 65 unless the police authority postpone that date of retirement, which they may do for up to 5 years.
11. Of the various provisions set out above, those closest to the heart of this dispute are regulations 13A(9) and 16 of the 1995 Regulations. I propose, therefore, to set out afresh the main parts of regulation 16(1) (as applied by regulation 16(2) to assistant chief constables):

"… a member of a police force may retire only if he has given to the police authority 3 months' written notice of his intention to retire or such shorter notice as may have been accepted by that authority. Provided that, while suspended under the Discipline Regulations, a member may not, without the consent of the police authority, give notice for the purposes of this regulation or retire in pursuance of a notice previously given."

12. As stated, regulation 13A, introduced to establish fixed term appointments in place of indefinite appointments for certain senior ranks, is provided by regulation 13A(9) to be "without prejudice to … regulation 16". The critical question, therefore, is this: what, if any, effect does regulation 16(1) have upon ongoing disciplinary proceedings in the case of a suspended senior police officer whose fixed term contract then expires by effluxion of time?
13. That disciplinary proceedings against a suspended police officer may be brought to an end simply by the arrival of a particular date cannot be doubted. Once an officer reaches compulsory retirement age under regulation A18 of the Police Pensions Regulations (or at the very latest once that period has been extended for up to the maximum 5 years permitted), there is no question of his then remaining amenable to the disciplinary process: regulation 16(1) of the 1995 Regulations is in terms made without prejudice to regulation A18 of the Police Pensions Regulations. And that, indeed, provides the complete answer to one of Mr Straker QC's arguments for the appellants, his submission that regulation 23(5) of the Discipline Regulations (which I need not set out) provides exhaustively for the circumstances in which a senior police officer's suspension can be brought to an end and these do not include the expiry of a fixed term contract. No more do they include the officer's attainment of his compulsory retirement age. The argument, therefore, proves too much. Regulation 23(5) in truth begs rather than answers the real question which is whether the officer concerned has actually ceased to be a police officer. If he has, then necessarily and automatically his suspension from that office ceases to have effect.
14. That, however, leaves untouched Mr Straker's central argument which focuses upon regulation 16(1) itself. The first limb of this regulation provides that a police officer may retire only if he has given written notice of his intention to retire; the second limb precludes a suspended officer from giving such a notice or from retiring pursuant to one already given. The argument, as I understand it, runs essentially thus. On the introduction of fixed term contracts in 1995, senior police officers cannot have been intended thereby to be more readily able to escape from ongoing disciplinary proceedings – hence regulation 13A(9). It is accordingly necessary and appropriate to regard the contract itself (here the 1995 contract) as the written notice for regulation 16 purposes pursuant to which this respondent on 20 May 2001, albeit suspended, sought to retire. The appellant authority having refused their consent to his retirement, however, the respondent remains in office. Alternatively, if it cannot realistically be said that the 1995 contract constituted written notice, it follows that no notice of retirement was ever given so that in any event the respondent cannot retire and necessarily, therefore, remains in office. The emphasis in the court below appears to have been on the first part of that argument; before us it was on the second part. Either way the contention is that this respondent's fixed term contract, despite never having been "extended by agreement" under regulation 13A(7), nevertheless continues in force so that he remains an assistant chief constable of the Surrey police force and thereby subject to the disciplinary proceedings still in progress against him.
15. Ably though the argument was advanced, I for my part would reject it.
16. There is, of course, ample scope for the operation of regulation 16(1) irrespective of whether or not an officer on a fixed term contract automatically ceases to hold his office once the term expires by effluxion of time and is not extended by agreement. Regulation 16(1) in any event applies both to require a 3 months' notice of premature retirement (i.e. retirement before the end of the fixed term), a requirement reflected here in the express terms of the 1995 contract, and to prevent any such notice taking effect if the officer is suspended. The suggestion that the contract itself should be regarded as a written notice of an intention to retire on the expiry of the fixed term seems to me, as it seemed to the judge below, wholly unrealistic and unconvincing.
17. I turn, then, to Mr Straker's alternative argument, his core submission to us that, irrespective of whether or not disciplinary proceedings are on foot against him, a police officer cannot simply allow his fixed term contract to expire but must in addition give a written notice of his intention to retire on the date when it does so. That submission too I would reject. Indeed it seems to me inconsistent not only with the express terms of the written agreement but, perhaps more importantly, with the scheme of the 1995 Regulations themselves. As to the contract, clause 6 expressly provides that "notice to terminate the contract, other than by reasons of its expiry, shall be 3 months in writing on either side" (emphasis added). That clause to my mind necessarily implies that no such written notice is required if the contract is to terminate simply by the expiry of the fixed term.
18. As to the 1995 Regulations themselves, it is difficult to see how these can sensibly accommodate the consequences of Mr Straker's argument, namely to leave in office senior police officers (not, of course, ordinarily under suspension on disciplinary charges) whose fixed terms of office have expired and who have not agreed to extend them, merely because they have omitted to give three months' notice of their intention to retire (which Mr Straker accepts means the same in this context as to terminate their contracts) on the very date their contracts in any event terminate by effluxion of time. True, the police authority can accept less than 3 months' notice under regulation 16(1). But they are not obliged to do so and could, therefore, if Mr Straker's argument be right, frustrate an officer's apparently clear contractual right to relinquish his office of constable and perhaps accept other employment immediately his fixed term expires.
19. Mr Straker stresses, of course, the plain words of regulation 16(1) that "a member of a police force may retire only if he has given to the police authority [3 months'] written notice of his intention to retire" and submits that they unambiguously support his argument. In my judgment, however, retirement in this context necessarily means retirement from the office on a date not otherwise prescribed by a fixed term appointment, i.e. retirement by an officer who holds his office indefinitely or (and this explains regulation 13A(9)) on a date prior to the expiry of his fixed term appointment.
20. The answer to the further point taken by Mr Straker that, on the respondent's approach, regulation 16(3)(d) would be redundant, lies in the differing nature of specified dates of retirement from the office of constable depending upon whether they are specified by contract or by regulation. Retirement ordained by the Police Pensions Regulations as a result of an officer reaching his compulsory retiring age understandably fell to be provided for in the 1995 Regulations: these very properly prescribed the intended relationship between the two pieces of subordinate legislation. There was no necessity, however, for the 1995 Regulations to refer expressly to fixed term contracts. These are governed by the common law. The only basis for saying that regulation 16 interferes with the ordinary processes of the common law would be if it were expressly so provided. It is not.
21. There is, I may perhaps note, very little difference in effect between the old "permanent" contracts under which senior police officers used to hold office and the new fixed term contracts introduced by regulation 13A of the 1995 Regulations: both were subject to 3 months notice on either side and both excluded any statutory right to complain of unfair dismissal or redundancy (as, indeed, does the employment protection legislation itself). The new contracts, however, clearly give a different emphasis and expectation. Since they provide for a final date of termination unless extended by agreement, it is perhaps not an unjust corollary that at that date the officer should be no less free of disciplinary proceedings than if his contract had ended by his reaching compulsory retiring age. Be that as it may, however, it seems to me that only the most compelling words in regulation 16(1) could result in an officer whose fixed term appointment had ended nevertheless remaining in office. When regulation 13A was introduced into the 1995 regulations the draftsman had every opportunity to amend regulation 16 in order to achieve that result. He chose not to take it. I regard the language of regulation 13A(9) as wholly insufficient for the purpose. On the contrary, it makes perfect sense by reference to the need to put premature retirement under a fixed term contract on the same footing as retirement under the pre-existing form of permanent appointment.
22. By way of footnote I add just this. Although, of course, I quite understand the stance which the appellants have taken in this litigation - it may well be thought unsatisfactory that the mere passage of time can thwart the completion of a disciplinary process – we are told that no financial penalty of any kind could have attended this disciplinary process even if it had come to be resolved against the respondent. The abatement of the process by his retirement at least saves the appellants having to pay the respondent a very substantial salary perhaps for a protracted further period of suspension.

LORD JUSTICE TUCKEY:

23. I agree.

LORD JUSTICE LAWS:

24. I also agree.
ORDER: Appeal dismissed with costs, Permission to appeal to the House of Lords refused. (Order does not form part of approved Judgment)