England and Wales Court of Appeal (Civil Division) Decisions

“1. On the 22^nd October 1998 the appellant appeared at Ealing Magistrates’ Court and pleaded guilty to the offence of driving having consumed excess alcohol. He was fined £300, disqualified from driving for 1 year and ordered to pay £59 costs. On the 8^th December 1998 he appeared before the full Board for a disciplinary hearing. He admitted an offence contrary to Discipline Code 16, that he had been convicted of a criminal offence. The punishment determined was that the appellant be required to Resign forthwith. The decision of the Board was appealed and the hearing of that appeal took place on the 25 May 1999 before Assistant Commissioner Johnston. The Appeal was dismissed. This Tribunal has been appointed by the Home Secretary to consider an appeal against the punishment imposed. We met to consider the appeal on the 12^th October 1999.

2. Neither party to this appeal requests an oral hearing in this case. The Tribunal does not consider that an oral hearing is required. We have, therefore, proceeded to consider the appeal based on the written material before us.

GROUNDS OF APPEAL AND RESPONSE

3. The appellant submits that the punishment was manifestly excessive in view of the circumstances surrounding the original criminal offence; that it was unfair and inappropriate in the light of the evidence of good character; that the original Board had failed properly to appreciate the true circumstances.

4. The respondent disputed each of the Grounds of Appeal.

FACTS

5. The appellant had attended a social function on the evening of the 15 July 1998. We accept that it was his intention to spend that night at a section house and not to drive. We are told that he had a reservation for that night at the section house and this has not been contradicted by any other evidence. It appears that there was some unpleasantness of a racist nature at the social function. The appellant was distressed both by abuse directed towards him and also by the failure of other officers present to offer any assistance to him.

6. The appellant claims that he had drunk approximately 4 pints of lager during the course of the evening. It was put forward on his behalf that he was unaware that he was over the prescribed limit for driving. On the information before us, it is not clear whether he gave thought to whether he was above the prescribed limit for driving and concluded that he was not or whether he simply didn’t apply his mind to that issue. Nevertheless, we found no sufficient evidence that he deliberately drove at a time when he appreciated he was possibly over the prescribed limit.

7. A minor accident occurred between the appellant’s car and another vehicle. The issue as to the cause of this accident has never been resolved and we are not asked by either side to try and resolve it. In these circumstances, we cannot reach any conclusion as to who was responsible for the accident. It therefore follows that we cannot conclude that the amount of alcohol consumed by the appellant contributed in any way to this accident. On the evidence before us, the accident may not have been his fault at all. In any event, the consequence of the accident was very minor damage to the other vehicle.

8. The two drivers stopped to exchange particulars and passing police officers stopped to investigate. Both drivers were breathalysed, the appellant failing the test and the other driver passing it.

9. The appellant behaved properly and appropriately throughout the breath testing procedure and his subsequent arrest. Police Sergeant Boustead noted that he was “totally calm, polite, co-operative, lucid of thought, and clear in speech”. The breath test reading relied upon in the prosecution of the appellant was 58 micrograms of alcohol in 100 millilitres of breath. It therefore exceeded the prescribed limit by 23 micrograms.

BACKGROUND

10. We have been supplied with a great deal of useful material about the appellant’s background and history. Although he has not been a police officer for a great length of time, it is apparent to us that the overall assessment of him as “enthusiastic, reliable and hard working” is a wholly appropriate one. During his 7 years in the police force he has impressed a variety of colleagues with his good qualities. Without expanding on the detail contained in the written statements of the six police sergeants who provided references for the appellant, he is undoubtedly an officer with a great many excellent qualities, making him a valuable member of the police force. In addition to his general good qualities, he also has the asset of being able to assist in liaison and investigation concerning an ethnic minority group. In particular, he is bilingual and therefore can provide assistance in that way.

11. Chief Superintendent Kelleher gave evidence before the Board and supported the written character evidence of Superintendent Joley. These senior officers clearly both thought extremely well of the appellant.

12. Unknown to the appellant’s colleagues, the appellant had sought assistance from a Consultant Clinical Psychologist in 1996. He had been complaining of symptoms of depression, low mood, tearfulness, irritability and increase use of alcohol following the break-up of a relationship with a girlfriend. There had apparently been a previous similar episode of depression etc. some time previously. We were supplied with a report from John Spector, Consultant Clinical Psychologist, who concluded that the appellant had been making excellent progress since seeking the assistance of a psychologist, although these proceedings had caused a setback.

13. We noted that the appellant had shown the insight into his own personal difficulties to seek help and that this was not something done merely in the aftermath of the arrest for the drink driving offence. We also note that the appellant had successfully concealed his personal difficulties from colleagues and had not allowed it to affect his work. It is clear from the assessment of his colleagues that his personal problems did not result in poor performance at work. We regard this as being to his credit.

EVENTS SINCE ARREST

14. We found the appellant’s conduct in the aftermath of his arrest to be entirely to his credit. Not only did he conduct himself with decorum on the night in question, he continued with his duties in an entirely proper and conscientious way and did not seek to avoid his responsibilities by taking, for example, sick leave.

CONCLUSIONS

15. We found that the appellant had been experiencing considerable personal difficulties at the time that this offence occurred. He had tried to deal with these and had the courage to seek assistance from a psychologist. It was obvious that he was under stress at the time of the incident and that this was exacerbated by the unpleasantness that had taken place that evening and which had led him to leave the social function. We also concluded that he had not deliberately flouted the law, but had failed properly to apply his mind to the consequences of his decision not to spend the night at the section house, as he had originally planned.

16. We do not consider that the alcohol level was merely marginally over the prescribed limit. Nevertheless, we do not regard it as a particularly high reading. From the experience of members of the Tribunal, the reading appears roughly consistent with the period during which the appellant claims to have been drinking and with the amount of alcohol the appellant claims to have drunk. It is not, therefore, a case of somebody drinking excessive amounts of alcohol.

17. We find the appellant to be somebody who is an obvious asset to the police force. He is clearly dedicated to his work and has always displayed a great commitment to his responsibilities. Whilst each member of the Tribunal has grave reservations about ever allowing an officer to continue in the force after a conviction for an offence of this nature, we have nevertheless concluded that there are exceptional reasons in this case for so allowing this appellant. We were greatly impressed with his excellent qualities and his dedication to his duties. The added asset of the being of real assistance in cases involving an ethnic minority had only a small bearing on our decision. We regard this as an isolated incident and one which is unlikely to ever be repeated.

18. In all the circumstances it is our unanimous conclusion that this appeal ought to be allowed. It is our recommendation that the punishment of Requirement to Resign be substituted by a Reprimand.”

“3. The Secretary of State considered all the facts of the case, the points raised in Mr. Bhoti’s grounds of appeal and in the Commissioner’s response. He has also carefully considered the report of the tribunal but, for the reasons given below, has decided not to accept the tribunal’s recommendation.

4. With regard to the circumstances surrounding the commission of the criminal offence, the Secretary of State notes that it was Mr. Bhoti’s intention to drink alcohol at the function and to stay at a section house so he would not need to drive home. Instead of this, Mr. Bhoti decided to drive home. The Secretary of State takes the view that there was no compelling need for Mr. Bhoti to drive. That he had made arrangements to stay in a section house indicates that Mr. Bhoti did not intend deliberately to flout the law but equally it shows that he was clearly conscious of the risks and, for whatever reason, took a chance.

5. The Secretary of State has considered the factors put forward to explain Mr. Bhoti’s decision to drive. He accepts that the racial abuse to which Mr. Bhoti was subjected must have been extremely unpleasant. However, he does not consider this to have been a compelling reason for Mr. Bhoti to drive when he had been drinking. He notes that Mr. Bhoti left the function later and not immediately after the abuse. He also notes that Mr. Bhoti had further time to reflect on his actions in the twenty minutes it took him to walk to the car. The Secretary of State does not consider therefore that Mr. Bhoti’s decision to drive was made in the heat of the moment.

6. The Secretary of State takes a different view from the tribunal on the issue of Mr. Bhoti’s awareness of his being over the limit. He notes that Mr. Bhoti drank approximately four pints of lager. The Secretary of State finds it inconceivable that an experienced officer would not appreciate that four pints of lager was highly likely to take him over the prescribed limit. He also finds it inconceivable that a police officer might not “apply his mind” to this issue. The Secretary of State notes that Mr. Bhoti was more than 1 ½ times over the legal limit. He does not consider this to be marginally over the limit.

7. The Secretary of State has taken account of the fact that Mr. Bhoti was involved in an accident on his way home. He notes that the collision resulted in very minor damage and no personal injury. Whilst he accepts that there was no attribution of responsibility for the accident he does not take the same view as the tribunal that the alcohol consumed may have played no part in the accident.

8. The Secretary of State has taken account of all the mitigation, including Mr. Bhoti’s record of service, the glowing character references given by senior officers and Mr. Bhoti’s attitude at the time of the incident and later. However, he does not consider these or the circumstances surrounding the offence to be sufficiently exceptional to outweigh the seriousness of Mr. Bhoti’s conduct. He takes the view that drink./driving is a serious offence, particularly when committed by a police officer who is well aware of, and responsible for, upholding the law and he does not consider the punishment imposed to be excessive, unfair or inappropriate. In the light of this, the Secretary of State has decided to dismiss the appeal. A copy of the Order determining the appeal is enclosed.”

“34. However if … the Secretary of State decides that he will not follow the recommendation of a Tribunal he must have good reason for so doing. It is of course right as a matter of law that the decision is the decision of the Secretary of State. If one looks at it in isolation it may be that one can say that this is a decision which cannot be regarded as irrational. But that is not the end of the story. It seems to me that one must take account of the recommendation because, at the very least, the Secretary of State is required to take it into account and that must mean that he must take it properly into account. He is not, in my judgment, entitled simply to say: ‘I do not like it. I do not agree with it. I am not going to follow it.’ He has to have in such circumstances some reason for failing to follow it. If it transpires that his reasons are inadequate, or do not stand up to scrutiny, that may indicate that his subsequent decision is one which cannot stand. Accordingly, it is necessary to see what reasons he does give for not following the recommendation. Those reasons are to be found in the decision letter of 14^th March.

36. Mr Bromley-Martin … submits that in stating that there was no compelling need for Mr Bhoti to drive the Secretary of State was applying altogether too high a test. …

37. It seems to me that the Secretary of State was perfectly entitled to approach this case in [sic] taking account as one factor which he had to consider in assessing the seriousness of the offence, that there was no compelling need to drive. That is clearly correct. There was no compelling need. This was not a case, therefore, which even began to approach special reasons and that was undoubtedly a matter that the Secretary of State was properly entitled to take into account. His conclusion in the last sentence that this showed that Mr. Bhoti did not intend deliberately to flout the law is, of course, an important factor as well because that goes perhaps the other way and shows some mitigation for what in the end happened, making it clear that this was something that arose unexpectedly and was not something which was anticipated by Mr. Bhoti when he started his evening at the social event.

38. Equally, it is quite fair for the Secretary of State to say that Mr. Bhoti was conscious of the risks. He obviously was. He thought that he was going to be drinking more than was appropriate, if he was to drive a motor car, and for whatever reason took a chance. Again, I do not think Mr. Bromley-Martin could or indeed seeks to criticise that as a conclusion reached by the secretary of State. Accordingly, in my view, there is nothing in that complaint.

40. The Secretary of State has already accepted, and indeed the Tribunal makes clear, that the claimant decided to drive as a result of an unpleasant incident which occurred at the social function. The Tribunal went on to refer to his depression and his consultation with a clinical psychologist some time before that. The Tribunal goes on to indicate that he was under stress at the time of the incident and that was exacerbated by the unpleasantness. Accordingly, his state of mind was not normal. That must be the only conclusion to be reached from those findings at the time he decided to drive his car. True that he did, as is recorded, take 20 minutes to walk to his car. It is said that that meant that he did not drive, as it were, on the spur of the moment and in the heat of the incident which occurred. That may be so, but nevertheless it does not detract from the facts as found by the Tribunal. It has not been disputed by the Secretary of State that he was in a stressed state and so not in a normal state of mind. That is my gloss, but it seems to me inevitably to follow.

41. Accordingly, one is not dealing with someone who is thinking entirely rationally of the consequences of his actions. It seems to me in those circumstances that it is quite unreasonable to find that it was inconceivable that he would not appreciate that four pints of lager was highly likely to take him over the prescribed limit and, equally, it is unreasonable to find it inconceivable that he might not as a police officer have applied his mind to the issue in question.

42. Mr. Bromley-Martin further submits that if one looks at those two sentences what the Secretary of State must be saying to himself is this: ‘It is inconceivable that he might not apply his mind to this issue. Therefore, he must have applied his mind to the issue. If he had applied his mind to the issue it would be inconceivable that he did not appreciate that four pints of lager was highly likely to take him over the prescribed limit.’ I agree. As it seems to me, what the Secretary of State is saying to himself is that he must have realised when he drove that he was highly likely to be over the limit. In those circumstances, it follows that he is saying, in effect, that Mr. Bhoti deliberately chose to drive his motor car knowing that it was highly likely that he was over the limit. That, of course, is not only contrary to the findings of the Tribunal, but in my view is adopting far too harsh a view of the likely state of mind and thought processes of this particular individual, bearing in mind that unchallenged findings of the Tribunal about the stress under which he was operating at the time, exacerbated by the unpleasant incident that occurred at the social function.

44. Accordingly, at the very least, the Secretary of State must have approached his decision on the basis that the consumption of alcohol may have played a part in the accident that occurred and, thus, may have substantially impaired the driving ability of the claimant at the material time.

45. The Regulations require that any allegation relied on to establish a disciplinary offence has to be proved against an officer. That of course is limited, just as a prosecution for a criminal offence is so limited, to establishing guilt. Here guilt was admitted. And so that particular regulation did not directly apply. Nonetheless, as it seems to me, by analogy with criminal processes, if a particular view of the offence is to be taken which is more adverse to an officer than that which he has prepared to admit, any aggravating circumstances must be proved. The onus must be upon the respondent police force to establish those matters, just as would occur in the criminal field in a Newton hearing.

46. Now here the claimant’s case was, first, that the alcohol played no part in the accident; and secondly, this point is also relevant to the matter I have just dealt with, that his state of mind was such that he did not appreciate that he was highly likely to be over the prescribed limit. If it was going to be held against him that alcohol played a part in the accident, it seems to me that that is a matter which ought to have been established by some evidence stated before the relevant disciplinary bodies. It was not.

47. The Tribunal records, as I have already indicated, that they were not asked by either side to try to resolve the issue as to the cause of the accident. In those circumstances, as it seems to me, it was wrong for the Secretary of State to have regard to the fact, as he would have it, that the alcohol may have played a part in the accident, because that obviously would be an aggravation of the circumstances of the offence.

48. Accordingly, as it seems to me, in carrying out the balancing exercise that he had to carry out the Secretary of State has placed far too much weight in the scales against this claimant. I appreciate of course that as a general proposition the Secretary of State as decision-maker must decide what weight to attach to any particular item. That is true. But if he is putting into the scales matters which ought not to be there at all, as has happened in my judgment here, then the decision that is finally reached is one which is clearly flawed on classic Wednesbury grounds. Although it is described as irrationality, for my part I have always regarded that to be something of a misnomer when one is considering, as here, having regard to immaterial considerations, which is what effectively he has done. He has had regard to matters which he ought not to have regard to and that has, in my judgment, quite plainly tainted the decision which was ultimately reached.”

Discussion.

“(1) The officer conducting the hearing of a charge shall, at its conclusion, dismiss the charge or find it proved.

(2) A charge shall not be found proved unless it is –

(a) admitted by the accused; or

(b) proved by the officer presenting the case to the officer conducting the hearing beyond reasonable doubt.”

“In the case of the applicant, Ravi Bhoti, it was never contended before the Magistrates’ or the Discipline Board that his driving in any way contributed to the accident which occurred, on the basis that that driving was particularly reprehensible or it was considered that the minor accident arose as a result of the influence of alcohol.”

Lord Justice Clarke:

Mr. Justice Wall: -