England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT LIST

		The Royal Courts of Justice The Strand London Thursday 18 October 2001

Thursday 18 October 2000

1. LORD JUSTICE BUXTON: This is a renewed application for permission to apply for judicial review by Miss Begley, a former officer of the West Midlands Police Force, brought against the Chief Constable of that force. Permission was refused by Ouseley J on paper and also by Richards J at a hearing before him on 11 April 2001, at which Miss Begley was represented by counsel. She renews her application today to this court. She has appeared in person.
2. The background facts are set out in the judgment of Richards J, and I do not intend to repeat them in this judgment. I come straight to the matters that are in dispute. Miss Begley has submitted to the Court a skeleton argument of some 12 pages, supplemented by a bundle of papers of some 220 pages, in support of her renewed application. She has also addressed me this afternoon. In addressing me this afternoon she has really concentrated on two points, and not on all the points set out in her skeleton argument. However, it is right that I should deal with everything of which she complains.
3. The first complaint that she made before the judge below was that the Chief Constable who took the decision in this case should not have so acted because he was effectively acting as judge in his own cause. There appear to be two elements to that. The first is that Miss Begley also has, or had, on foot Employment Tribunal proceedings against the police force, to which the Chief Constable is the nominated respondent. Secondly, his involvement in the operation of the police force itself meant that he had a personal interest in the proceedings.
4. She relied on the case of Chief Constable of Merseyside Police ex parte Bennion [2000] IRLR 821. Richards J distinguished the case of Bennion, on grounds with which I respectfully agree, in paragraph 11 of his judgment. Since then, however, the judgment of Toulson J on which Miss Begley relied has been reversed by the Court of Appeal [2001] EWCA Civ 638. I do not need to set out what the court said in detail: it is only necessary to refer to the summary conveniently to be found in paragraph 50 of the judgment of Hale LJ in that case. Amongst other things she pointed out (as had Ouseley J) that, if this type of argument were to prevail, the bringing of Industrial Tribunal proceedings would paralyse the statutory operation of the Force disciplinary proceedings. In my judgement, therefore, there was no breach of natural justice in the investigation. Miss Begley agreed that she had had a hearing in front of the Assistant Chief Constable in respect of this matter, in preparation for which she was supported by a very well-informed trade union in the shape of the Police Federation.
5. The second complaint -- and one which I think is the nub of Miss Begley's submissions to me today -- is that it was not open to the Force to use the system relevant to probationers to dispense with her services, rather than treating her as a disciplinary case. There are two aspects to that. Firstly, Mrs Begley contends that she was no longer a probationer at the time at which investigations took place because she had not received any notification of the fact that probation had been extended, and therefore the wrong system was used in any event. Secondly, because of the matters of which the Police Force complained against her, it was not open in any event to use the probationary system rather than the disciplinary system.
6. The answer to the first of those complaints was given by Richards J in paragraph 20 of his judgment, which is that regulation 14(2), which Miss Begley relies on and which deals with extension of probation, in fact does not require any notification to the officer involved. I agree with him that it would have been better in this case if notification had been given to Miss Begley. (We are assuming, although it is disputed by the Force for the purposes of this application, that no notification was in fact given.) Nonetheless I agree with the judge below that failure to notify Miss Begley, if that was the situation, does not invalidate the extension which the Chief Constable decided to make. Nor can it be said that it was unreasonable to extend Miss Begley's probation, because she fairly agreed that at the time that the extension was granted she was suspended on full pay because of the magistrates' court proceedings in which she was unfortunately involved. Secondly, it is in my judgement clear from the observations of this court in the case of Chief Constable British Transport Police ex parte Farmer (Times Law Reports 4 September 1998) referred to by Richards J in paragraph 23 of his judgment, that it is open to the employing Force to decide whether it shall use the dismissal procedure that governs probationers or whether it shall use the disciplinary procedure.
7. Miss Begley says, however, that this is clearly a case in which the disciplinary procedure should have been used. That is because the complaints made against her, and which led to her services being dispensed with, were of a disciplinary nature, not of a nature that affected her suitability as a probationer as such. In the latter connection she can point to the extract from the report of the interviewing officer that is to be found in paragraph 7 of Richards J's judgment, saying that her performance as a probationer constable was not under question: the matters for consideration were whether she was fitted to perform the duties of her office by reason of her conduct and physical fitness.
8. So far as her conduct is concerned, the matters complained of by the Chief Constable were, firstly, an assault that she had allegedly committed on a woman called Karen Noble. That did not result in a criminal conviction, but the Chief Constable was entitled to take note of the observations of the Crown Court judge hearing the appeal that he was satisfied that an assault had taken place and the allowing of the appeal was on grounds to do with the form of the charge which had been brought. The second complaint was of unauthorised use of the police computer in order, as I understand it, to identify or locate Mrs Noble; and the third that she saw fit to grant an interview to the News of the World during the period she was under suspension but when, in my judgement, it is quite clear that, although not in formal terms a police officer, she still had, if she wished to return to the Force, responsibilities contingent upon the office of constable.
9. In my judgement none of those points of the applicant are well founded. It was entirely open to the Chief Constable to form the conclusion that, as a result of those matters about which he was satisfied, it would have been inappropriate for Miss Begley to pass to the status of established officer.
10. So far as the other complaints she makes are concerned, she has this afternoon complained firstly, as I understand it, that there were various matters that occurred during her probation which should have been taken into account in her favour or in mitigation. She did not put it like this, but effectively she said she had not had a fair chance to show herself as an officer. Whether or not that is so I do not know and it is irrelevant for two reasons, one because she had a chance to put those points and did not put them to the Chief Constable; and, secondly, it was not her performance as an officer to which objection was taken, but the particular points of difficulty that I have mentioned. Secondly, she complains that various stages in the procedure with regard to assessment of probationers were not gone through in her case. It did not occur to me to ask her whether these points had previously been taken, but I do not think they assist Miss Begley because her case is an unusual one. As I have said, she was not dismissed because of lack of efficiency as an officer, which is the reason for the particular elements in the procedure that she draws attention to: she was dismissed because of specific acts of misconduct, in respect of which I agree with the Force that the detailed procedure laid down by regulation 14 is inappropriate.
11. In my judgement, therefore, there is no prospect of this application successfully proceeding further. I do not give permission for it be pursued.
12. I will say one other thing. Miss Begley filed her application to this court late because she said she was misinformed by her solicitor about the time limit. In view of the fact that that is not in the event causing any difficulty to anybody the court in its discretion allowed her to present this application, even though it was out of time.
ORDER: Application for extension of time allowed. Application for permission to appeal refused. (Order not part of approved judgment)