QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF RAVIDEEP SINGH BHOTI||(CLAIMANT)|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||(DEFENDANT)|
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(Official Shorthand Writers to the Court)
MR P NICHOLLS (instructed by the Treasury Solicitor) appeared on behalf of the DEFENDANT
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"I refer to the notice of appeal by Ex PC Ravi Bhoti under section 37 of the Police Act 1964, as substituted by Section 103 of the Police and Criminal Evidence Act 1984. Mr Bhoti appealed against punishment in respect of one offence of criminal conduct for which he was required to resign.
"In accordance with paragraph 3 of Schedule 5 to the Police Act 1964, as substituted, the Secretary of State appointed a Tribunal to hold an inquiry into the appeal and report to him which they did. The Secretary of State did not accept the recommendation of the Tribunal and upheld the Commissioner's decision and Mr Bhoti sought judicial review of the decision. The Secretary of State subsequently appealed against the judicial review.
"Following the decision in the Court of Appeal the Secretary of State has considered once again all the facts of the case, the points raised in Mr Bhoti's grounds of appeal, the Commissioner's response and the report of the Tribunal. He has taken into account the mitigation put forward on behalf of Mr Bhoti both originally, during the judicial review and at the hearing in the Court of Appeal, and following the judgment there in the letter submitted by his solicitors on 31 January 2002, and acknowledges that his appraisals showed that he had been a committed and dedicated police officer.
"Looking first at the findings made by the Tribunal, the Secretary of State notes that Mr Bhoti has accepted throughout there is no doubt he was guilty of the Discipline Offence of Criminal Conduct; he had pleaded guilty before the Magistrates' Court and at the hearing before the Discipline Board so it is clear that the offence was proved to the criminal standard.
"At the time of the hearing the policy in the Metropolitan Police Service was set out in Police Notice 23 of 1996 and it stated that 'A criminal conviction for a drink related driving offence is unacceptable and may lead to the officer's dismissal'.
"The Secretary of State notes that there was no compelling reason for Mr Bhoti to drive on the night in question and Mr Bhoti was conscious of the risks of driving while over the limit. He accepts that Mr Bhoti had been subject to racial abuse at the function he was attending. The Tribunal noted that he was distressed at the abuse and also by the failure of other officers to offer assistance to him.
"It was accepted that Mr Bhoti claimed he had drunk approximately four pints of lager during the evening. Since he had booked accommodation so that he did not have to drive after he had been drinking, it seems more likely that he considered that he would be drinking sufficient during the evening to put him over the legal limit. Further, no explanation was given by Mr Bhoti as to why he did not go back to the section house when he decided to leave the function. It also took him twenty minutes to get to his car so he did not get into it immediately after the incident.
"The Secretary of State therefore doe not agree with the Tribunal that there was not sufficient evidence that Mr Bhoti deliberately drove at a time when he appreciated he was likely to be over the prescribed limit. The Secretary of State considers that Mr Bhoti, whilst upset, was nevertheless more than likely to be aware of the possibility he would be over the limit but that he still consciously decided to drive when it was open to him to go to the section house or to call for a taxi or minicab if he felt he had to go home.
"The Secretary of State also considered evidence available in relation to how like cases were treated under the policy which applied to this case. He is satisfied that his approach in taking this decision does not unjustifiably depart from the manner in which such previous cases were dealt with when due regard is given to the differing circumstances of each case.
"For all those reasons the Secretary of State remains of the same opinion: that Mr Bhoti should be required to resign. A similar letter has been sent to the Commissioner of Police."
By section 37(2):- "On an appeal, the Secretary of State may make an order allowing or dismissing the appeal."
"Once it is held that, if the Secretary of State is to take account of a fact not accepted by the officer concerned, it must be established to the criminal standard, it is not open to him to take account of a fact which may have happened. He must be sure that it happened. Thus, here, the accident was not relevant unless the Secretary of State could be sure that it was caused or contributed to by the amount of alcohol consumed by Mr Bhoti. He could not be so satisfied."
"I tend to agree with Clarke LJ that what the Home Secretary was saying was that alcohol may have played a part in the accident. That, in my view, is the meaning if one removes the double negative and reads the sentence as 'he takes the view that the alcohol consumed may have played a part in the accident'.
"42. Whichever way the sentence is read, however, the result is, in my judgment, the same. On an important aspect of the case, the Home Secretary was taking into account against the respondent something about which there was no evidence, and which therefore had plainly not been established on the criminal burden of proof."
"We [the Home Department] do not consider that this renders the decision unlawful. First, we consider that the Court of Appeal's comments about the burden of proof [I think the author means the standard of proof] that has to be applied to 'aggravating' factors are obiter and not part of the ratio of the judgment."
This explains why the Secretary of State meant what he said, namely, more than likely. It also demonstrates a laudable example of intellectual honesty. The Secretary of State meant what he said and did not apply the criminal standard of proof of satisfaction to the extent of being sure or beyond a reasonable doubt because he took the view that the Court of Appeal's dicta on that topic were merely obiter. I have to say that even if the dicta were obiter, the explanation advanced by the Home Department shows a refreshing courage that many a puisne puny judge, including myself, would lack. The less courageous would merely apply the standard the Court of Appeal said should be applied -- obiter or not. But in any event, the dicta were, in my view, not obiter. The remarks of the Lord Justices about the standard of proof which should be applied were necessary for the decision. The Secretary of State had found that alcohol may have contributed to the accident -- that was not a good reason to differ. The Court of Appeal said only if he was sure that that was so could he consider that to be a factor in his decision to differ from the Tribunal.
"Police officers should at all times act within the law. Except in exceptional circumstances any officer convicted of a drink related driving offence will be suspended and will appear before a full disciplinary board and will be offered legal representation. A criminal conviction for a drink related driving offence is unacceptable and may lead to an officer's dismissal."
This notice does not say that a police officer will be dismissed or requested to resign, save in exceptional circumstances, but that is how it has been construed by the Secretary of State as a matter of practice, and it is not surprising that that is so. This led to a controversy over statistics. I do not think that there is anything to be gained by resolving that issue, which became somewhat arid for this reason. It is plain that the highly experienced solicitor acting on behalf of PC Bhoti knew that, absent strong mitigation, his client would be dismissed or requested to resign -- after all, that had been the view of the Disciplinary Committee and the Commissioner, and it is plain from the tenor of the solicitor, Mr Reynolds', mitigation, making every allowance for forensic skill and tact, that that indeed was the approach of the Tribunal. The only reason it came to the conclusion that PC Bhoti should not be requested to resign was, as it said, because it thought the case was exceptional. Statistics show that both under the old and new regime many officers have not been dismissed or requested to resign, although it is quite impossible for this court to assess the circumstances of each. At least under the old regime a majority were dismissed or required to resign. The new regime arises partly out of the statute, now the Secretary of State is not involved in such appeals, and partly out of guidance given to all Chief Officers' police in a letter dated 31 August 2001, following the first judicial review proceedings in this case. The letter inaccurately recorded the figures of those who had been dismissed, but nevertheless reminded all police officers that they should expect to lose their job if convicted of a drink driving offence. Indeed it is difficult to see how any responsible police officer could expect otherwise.