England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		23rd March 2004

Tuesday, 23rd March 2004
1. MR JUSTICE COLLINS: This is an application for judicial review by the Cleveland Police Authority in respect of a decision of a medical referee who was concerned in deciding, under the relevant regulations, to which I will come in a moment, whether the ex-police officer in question had suffered injury in the execution of his duty. If he had, he was entitled to an extra amount by way of pension and gratuity over and above that which was available to him, having retired from the Force on the grounds of ill health.
2. The officer concerned was a Police Constable Knapper, who had joined the Cleveland Police Force in July 1989. He was concerned, and was, as I understand it, the main witness, in a prosecution which was due to come to Court on 10th January 2000. He had in September of the previous year arranged to have a holiday, which I think commenced on 9th January, in Tenerife. He said that he had asked his Superintendent about the clash, or the possible clash, of dates and had received assurances that all would be sorted out. I do not need to go into the details whether or not that is accepted; it is not entirely clear from the papers before me.
3. In any event, the criminal trial was listed for 10th January and PC Knapper obviously did not attend, being in Tenerife. This led the judge to make some very adverse comments on his absence and the prosecution, which was, I gather, in relation to a relatively serious offence, had to be abandoned. As a result of the adverse publicity, because a newspaper picked up what the judge had said, PC Knapper sustained mental illness and was unable to act as a police officer thereafter.
4. On 22nd January 2001 he received a medical certificate of permanent disablement and on 30th January 2001 he retired, as I have said, on an ill health pension. On 11th April 2002 his application for an injury on duty award was refused and the matter was put before a medical referee, a Dr Watt. He heard the matter on 1st August 2002. The relevant regulation in the Police Pensions Regulations 1987 (Statutory Instrument 1987 No. 257) is A11. That relates to injury received in the execution of duty and reads as follows:

"A11-(1) A reference in these Regulations to an injury received in the execution of duty by a member of a police force means an injury received in the execution of that person's duty as a constable and, where the person concerned is an auxiliary policeman, during a period of active service as such.

(2) For the purposes of these Regulations an injury shall be treated as received by a person in the execution of his duty as a constable if -

(a) the member concerned received the injury while

on duty or while on a journey necessary to enable

him to report for duty or return home after duty,

or

(b) he would not have received the injury had he

not been known to be a constable, or

(c) the police authority are of the opinion that

the preceding condition may be satisfied and that

the injury should be treated as one received as

aforesaid."

5. Unless he could meet the conditions of A11 he would not be entitled to the interim award.
6. Regulation H1 deals with references of medical questions and provides as follows, so far as material:

"H1-(1) Subject as hereinafter provided, the question whether a person is entitled to any and, if so, what awards under these Regulations shall be determined in the first instance by the police authority.

(2) Where the police authority are considering whether a person is permanently disabled, they shall refer for decision to a duly qualified medical practitioner selected by them the following questions -

(a) whether the person concerned is disabled;

(b) whether the disablement is likely to be

permanent;

and, if they are further considering whether to grant an injury pension, shall so refer the following questions:-

(c) whether the disablement is the result of an

injury received in the execution of duty, and

(d) the degree of the person's disablement."

7. H2 provides:

(2) If the person concerned is dissatisfied with the decision of the selected medical practitioner ... he may, within 14 days after being supplied with the certificate or such longer period as the police authority may allow, and subject to and in accordance with the provisions of Schedule H, give notice to the police authority that he appeals against the said decision, and the police authority shall notify the Secretary of State accordingly, and the Secretary of State shall appoint an independent person or persons (hereafter in these Regulations referred to as the 'medical referee') to decide the appeal."

8. It goes on to provide that the medical referee, if he disagrees with the selected medical practitioner, must give a certificate in relation to his decision.
9. There is power under Regulation H3 to refer a decision for reconsideration if the Tribunal hearing the appeal considers the evidence before the medical authority is inaccurate or inadequate and it is possible for the police authority and the Claimant, by agreement, to refer any final decision for reconsideration on fresh evidence and, if that is done, the matter should be reconsidered.
10. The decision of the Court of Appeal, to which I will have to refer because it is central to this claim, in R (Stunt) v Mallett [2001] ICR 989, was not in the relevant circular which was available at the beginning of August 2002 and only came into an updated circular on 14th August 2002.
11. On 23rd August 2002 Dr Watt reached his decision, in the course of which he allowed the appeal. He does refer to Stunt and so he did have it drawn his attention, albeit it was something very new so far as he was concerned. He deals with it by saying he believed that the arguments put forward by the Appeal Court judges were not directly relevant to Mr Knapper's case because Mr Knapper stated that it was the adverse publicity that had caused his mental reaction, and the Appeal Court judges in Stunt concluded that the Claimant in that case who faced a disciplinary charge did not suffer an injury in the execution of his duty. He went on to say that the circumstances pertaining to Mr Knapper's case arose through his passive involvement in the system, whereas in Mr Stunt's case an active misdemeanour was alleged and he was charged under internal disciplinary procedures.
12. In Mr Knapper's case the disciplinary inquiry was incomplete and there was no conclusion that he was guilty of a misdemeanour, although there was a clear statement by the police authority that he was in breach of the normal expectations of a police officer. That refers to the fact that Mr Knapper was, perhaps not surprisingly, made the subject of disciplinary charges following his failure to attend the Court, but because of his ill health those proceedings were never completed.
13. Dr Watt's conclusions in paragraph 22 are as follows:

"Mr Knapper would not have suffered from this ill health had he not been a police officer. His illness has been accepted and he has been awarded a pension on the grounds of ill health. Mr and Mrs Knapper's description and the medical information available point to the adverse publicity surrounding non-attendance at court while on holiday as the main precipitating factor in his illness. Mr Knapper stated that he acted responsibly as far as his duty is concerned and as far as I can assess there is no official conclusion to the contrary based on a disciplinary investigation of the circumstances.

23. The Police Pensions Regulations 1987 in paragraph A11(2)(b) suggest that an injury on duty award is appropriate when as a police constable 'he would not have received the injury had he not been know to be a constable'. Attendance at court is the execution of a police officer's duty in my view and Mr Knapper's illness reaction is a consequence of involvement in a police officer's duties. The circumstances in question arose by virtue of Mr Knapper's duty to appear as a witness in a court case and his failure to do so. The circumstances are in my view part of the execution of a police officer's duty and on this basis I conclude that the provisions of Regulations A11(1) and (2)(b) apply."

14. There followed an attempt to agree with those representing Mr Knapper that there should be a reference back to Dr Watt under Regulation H3 on the basis that there was fresh evidence, the fresh evidence being, it seems, his failure properly to understand the effect of Stunt. That is not fresh evidence and it seems clear to me that the attempt to persuade Dr Watt to reconsider was misguided. In any event, he stated in a letter of 16th December 2002 that he did not agree that he had failed to take account of the case of Stunt; indeed, he clearly had taken account of it, he had simply got its effect wrong and, accordingly, he refused to reconsider the matter or to change his view.
15. There then followed this application for judicial review. The Claimant attempted to file it with the Court on 12th March 2003. The Court Office apparently refused to accept that Dr Watt was the correct defendant and insisted that the matter be refiled, naming the Secretary of State for the Home Department as the proper defendant.
16. The Secretary of State, not surprisingly, indicated that he was not the proper defendant. The only involvement of the Secretary of State was in the provision of a medical referee. He has the responsibility of appointing medical referees. In fact, Dr Watt was based in Scotland and that led to a suggestion that there was no jurisdiction in this Court, and that the matter should have gone to the High Court in Scotland. That is a misconception. This case concerns an English police authority, an English police officer and the effect of the decision upon PC Knapper. It is clear that all that is within the jurisdiction of this Court. It is a matter of chance that the doctor who was available to act as the medical referee happened to be based in Scotland. Of course, Cleveland is close to the Scottish border so it is perhaps not altogether surprising that from time to time it is not possible or not convenient to find a doctor based in England and it is necessary to go over the border. That does not mean that the jurisdiction to deal with errors which may take place in the system are to be dealt with in Scotland rather than England. The whole process was in England and accordingly, as I say, in my view there is nothing in the suggestion that this Court does not have jurisdiction.
17. However, there was subsequent delay, for which it seems the Court must bear the greatest responsibility, and it was not until November of last year that the matter got before a judge. He was concerned about the delay and about the jurisdiction points and needed them to be dealt with. In due course that was dealt with and, so far as delay is concerned, there was some correspondence between those representing ex-PC Knapper and Harrison J, who eventually decided that permission be granted.
18. Harrison J considered that the delay was excusable in the circumstances and that decision having been made, I cannot, of course, reconsider it. I could only consider delay on the basis that there was detriment to good administration or prejudice to any person. The only person who might argue that he was prejudiced is Mr Knapper, but he has not chosen to attend and has not put forward any arguments to suggest that the delay has in fact prejudiced him. I am told that the award which would otherwise be due to him under the injury pension has not been paid, awaiting the outcome of these proceedings.
19. The correct approach is set out in the decision of the Court of Appeal in Stunt. That was a case where the officer in question had suffered disabling psychiatric illness as a result of stresses which arose from disciplinary proceedings to which he had been subjected. It seems he was an officer on duty at Parliament. He got involved in an altercation with a member of the public who was bringing a group to visit Parliament. He arrested that person, but there was an intervention by a senior officer which resulted in what is described as a de-arrest. The individual made a complaint about PC Stunt's actions and that led to disciplinary proceedings. As a result of all that, as I say, he suffered mental stress and never subsequently returned to service.
20. There are some obvious similarities with the present case. The distinction is that in this case the mental illness arose as a result of the adverse publicity itself resulting from his failure to attend court, and in PC Stunt's case it arose because of the referral of disciplinary proceedings against him, arising out of the incident which I have just described.
21. There was considerable argument as to the expression 'in the execution of his duty'. I concede there are a considerable number of authorities which deal with that issue and most of them are referred to in Stunt and there is extensive citation of the decision of Richards J in R v Kellam ex parte South Wales Police Authority [2000] ICR 632. In that case Richards J had, as Simon Brown LJ put it, valuably analysed all the earlier authorities. Essentially, the Court approved the conclusions reached by Richards J.
22. At paragraph 34 on page 1000 of the report instant, Simon Brown LJ said this:

"It follows that I would regard the series of cases concluding with Kellam [2000] ICR 632 to have been rightly decided provided only and always that the officer's untimely disabling mental state had indeed been materially brought about by stresses suffered actually through being at work. In the majority of the decided cases this clearly was so; the significant part played by events at work was a consistent theme. In Kellam itself, however, that was by no means obvious. The medical referee there ascribed the officer's depressive illness 'to emotional stress which had four causes: (1) the stillbirth, (2) his wife's treatment by the police force, (3) his perception of the attitude of his colleagues after his wife won her case against the chief constable, and (4) the investigation of his neighbours' complaint against him'. Allowing the officer's appeal, the medical referee said: 'These all interacted with each other and all substantially contributed to the disablement. The last three in my opinion resulted from his being a police officer.'"

23. He then went on to deal with what he describes as the narrow argument which had been raised by counsel appearing for the police authority. At paragraph 46 he said this:

"Sympathetic though I am to police officers for the particular risk of disciplinary proceedings they run by the very nature of their office, I cannot for my part accept the view that if injury results from subjection to such proceedings it is to be regarded as received in the execution of duty. Rather it seems to me that such an injury is properly to be characterised as resulting from the officer's status as a constable - 'simply [from] his being a police officer' to use the language of paragraph 5 of Richards J's conclusions in Kellam [2000] ICR 632, 645 when pointing up the crucial distinction. This view frankly admits of little elaboration. It really comes to this: however elastic the notion of execution of duty may be, in my judgment it cannot be stretched wide enough to encompass stress-related illness through exposure to disciplinary proceedings. That would lead to an interpretation of regulation A11 that the natural meaning of the words just cannot bear."

24. Lord Phillips, the Master of the Rolls, at paragraph 56, said this:

"A number of authorities were referred to Grigson J and to us where a similar issue arose. There is one common element in each case in which the injury was held to have been sustained 'in the execution of duty'. An event or events, conditions or circumstances impacted directly on the physical or mental condition of the claimant while he was carrying out his duties which caused or substantially contributed to physical or mental disablement. If this element cannot be demonstrated it does not seem to me that a claimant will be in a position to establish that he has received an injury in the execution of his duty."

25. If one goes back to paragraph 5 of Richards J's judgment in Kellam, he says:

"The causal connection must be with the person's service as a police officer, not simply with his being a police officer (the exception in regulation A11(2)(b) is immaterial to the kind of situation under consideration in the present case)."

26. I do, of course, have to consider A11(2)(b) because it is that upon which Dr Watt relied. It is to be noted that A11(1) requires that the injury is received in the execution of duty as a constable, but 11(2)(b) clearly is capable of extending that somewhat. What it is obviously intended to cover is a situation where a police officer who may be off duty receives an injury because some member of the public recognises him to be a police officer. That might arise when, for example, because of what he had done as a police officer, there was a grudge against him so that he was assaulted, or when perhaps off duty he was involved in an incident in the course of which, because he was a police officer, he felt it necessary to take some action which an ordinary member of the public might not have taken. The situations in which 11(2)(b) will be relevant are perhaps all too obvious. What they do not extend to, in my judgment, and what would be wholly inconsistent with the decision in Stunt would be where the injury had been received in circumstances which went beyond what could be regarded properly as even an extended form of execution of duty.
27. The reality here is that the stress which led to the mental illness resulted because he was not acting in the execution of his duty. What he should have done was to attend court. He did not attend Court. He received adverse publicity and the result was illness. It seems to me that it would be to strain, as Simon Brown LJ put it, the language of A11 beyond anything that it could properly bear to regard that as falling within its terms.
28. If one goes back to Dr Watt's original decision and the first sentence of paragraph 22, he says Mr Knapper would not have suffered this ill health had he not been a police officer. That may well be as a matter of fact in a sense correct, but only in a sense because he suffered it because he was a witness required to attend at Court and he did not attend. There is no difference in principle between any member of the public who is the subject of a witness order and required to attend Court and a police officer in the same position. The failure of a member of the public who is perhaps the chief prosecution witness to attend Court may have as disastrous an effect upon the prosecution as the failure of an important police officer witness to attend. But it was not because he was a police officer that he received the adverse publicity; it was because he was a witness who did not attend who happened to be a police officer, and that led to the possibility of disciplinary proceedings.
29. In my judgment there is no material difference between this case and the case of Stunt and the principles which have been applied in Stunt, and in the earlier case of Kellam, make it clear that this award simply cannot stand. Accordingly, this application succeeds and the decision of Dr Watt must be quashed.
30. Technically, I suppose, this means that the matter must go back for reconsideration by another medical referee because once the decision goes, it would be necessary to appoint another medical referee and for the matter to be reconsidered. The decision must be quashed. That will leave the appeal still standing, but those advising Mr Knapper should be asked whether in the light of this judgment they wish, in the circumstances, to pursue it.
31. MR WILCOX: Yes, they will be communicated with.
32. MR JUSTICE COLLINS: If they do wish to pursue it, obviously there will have to be a fresh medical referee found.
33. MR WILCOX: In the circumstances, the only Acknowledgment of Service was by the Home Office. I do not seek costs against them, and I do not blame Dr Watt's solicitors for making the point. I think I would be churlish to ask for costs.
34. MR JUSTICE COLLINS: I think probably you would not get them if you did.
35. MR WILCOX: Thank you, my Lord.