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
		28th June 2005

1. MR JUSTICE BEAN: The Local Government Act 2000 by section 57 established a Standards Board for England. Section 58 provides that a person may make a written allegation to the Standards Board for England that a member of a relevant local authority has failed, or may have failed, to comply with the authority's code of conduct. If the Standards Board for England considers that a written allegation under section 58(1) should be investigated, it must, by section 58(2), refer the case to one of its Ethical Standards Officers, (ESOs). The functions of ESOs are set out in section 59, being, among other things, by s 59(1), to investigate cases referred to by the Standards Board for England under section 58(2).
2. The purpose of an investigation under section 59 by an ESO is to determine which of the findings mentioned in section 59(4) is appropriate. One of those is, by subsection (4D), a finding that the matters which are the subject of the investigation should be referred to the President of the Adjudication Panel for England for adjudication by a tribunal falling within section 76(1). Such a tribunal is called a Case Tribunal, it is appointed by the President of the relevant Adjudication Panel. Section 79(1) provids that:

"A case tribunal which adjudicates on any matter must decide whether or not any person to which that matter relates has failed to comply with the code of conduct of the relevant authority concerned."

That subsection is, in my judgment, at the heart of this case.

3. The appellant, David Adami, was a member of North Dorset District Council. A reference was made by an ESO, now the respondent to this application, to the President of the Adjudication Panel, following allegations that Mr Adami had failed to comply with the Council's Code of Conduct. The President convened a Case Tribunal which heard the case on 24th June 2004. The Tribunal found that the appellant had breached the Code of Conduct in a number of respects and decided to disqualify him for 4 years. The claimant brings a statutory appeal against both aspects of the decision, that is the finding that he had breached the code of conduct and the disqualification for 4 years; although if the first is found to be defective, the second of course falls away.
4. The procedural history of the case is as follows. A complaint was made in writing by the then Chief Executive of the Council to the Chairman of the Standards Committee on the 4th July 2002. It was referred by the Committee to the Standards Board for England who, on 31st July 2002, referred the complaint to an Ethical Standards Officer. The ESO, Mr Marcar, conducted an extensive investigation involving, among other things, interviews with Mr Adami and with a number of other principal players in the story.
5. On 2nd December 2003, the ESO sent the claimant his draft report. On 7th January 2004, having received no reply to the invitation contained in a covering letter to comment on the draft report, the ESO inquired by telephone, in a call taken by Mrs Adami, whether any response would be forthcoming, but none was. Accordingly, on 20th February 2004, the ESO made his report. It is an extensive and formidable document, carefully reasoned, examining the allegations made against Mr Adami. The decision of the ESO, at the end of the report, was to refer the matter in accordance with the Act to the President of the Adjudication Panel for England. The Panel arranged a date for hearing of 8th June 2004 and sent a bundle of documents to Councillor Adami. His reply on 30th March 2004 was, to put it mildly, unhelpful. It said:

"Dear Sirs,

Thank you for your letters 25 Feb and March 2004, reference as above.

A 5 week overseas trip, followed by 2 weeks of scheduled commitments on my return, have resulted in me only just seeing both of these letters.

At this early stage of dealing with a correspondence 'backlog' I am unable to make any response/comment on the 40-mm bundle of documents sent with your letters, except on the specific matter of the Case Tribunal date. I have to advise you that I will again be out of the UK as from 22 May 2004 and do not expect to be back by the 8 June 2004 date that you have arranged for the Hearing.

I apologise for any inconvenience this may cause."

6. On 8th April, in response to a letter of acknowledgment sent by the Panel, Mr Adami wrote:

"I confirm that I wish the content of my previous letter to be treated as a formal request for an adjournment and to list the case for a date when ... (I would) ... be able to attend."

The letter went on to make a number of points. Firstly he asked for legal representation at the Council's expense. Secondly he took issue with the fact that the original complainant, Mr Greaves (who had by this time left the employment of the council) ought to be a witness at the hearing, and said:

"May I request that no further action be taken by your Authority in this matter until such time as this Complainant/Important Witness is traced, and confirmation obtained that he will attend the hearing."

Thirdly he asked for all exhibited documents to be in un-redacted form. Fourthly he wrote:

"I anticipate a large number of Witnesses will be called to give evidence at the Hearing, and this may well cause difficulty for them because of current commitments. May I respectfully suggest that a Hearing be scheduled for (at least) well beyond the generally perceived 'holiday months' of this year."

Point 5 asked whether the time allowed for the hearing had been estimated and then point 6 was this:

"I would advise you at this early stage that I have a current commitment of considerable importance, which pre-dates your notification to me. This is a Commercial Litigation that I am running in the High Court of the Republic of Singapore through Advocates & Solicitors based in that country. There is a considerable 6 figure sum of money involved, and I have to be available at very short notice to be personally involved in any negotiations, Court processes or other aspect of the matter. Additionally, there are other commitments of a more domestic nature."

Point 7 anticipated some preliminary issues being submitted.

7. The Panel, in my view entirely reasonably, acceded to the request to alter the date of 8th June and rescheduled the hearing for 24th June. On 14th May 2004, the President wrote:

"A request for an adjournment was made by Councillor Adami in which he stated that he would be out of the country from 22nd May and did not expect to be back by 8th June, the provisional date notified when the Case Tribunal was likely to be held. A request made to him on 13th April for details of what dates between 14th June and 30th July he would be able to attend has not produced any response. In the circumstances, I am directing that the Tribunal be held on 24th January 2004."

8. I mention all these preliminaries because the hearing took place in Mr Adami's absence. Although he has not pursued this today as a head of complaint, it did originally feature prominently in his criticisms of the procedures and the conclusions of the Tribunal. I will only say that, in my judgment, given the history, it was entirely right and proper that the hearing should proceed on 24th June.
9. Returning to the President's directions of 14th May, the President dealt next with the request for Mr Greaves to appear as a witness. In response to that he noted that there did not appear to be any disputes as to the facts set out in the reference, although there might well be a dispute as to whether, on the basis of those facts, there has or has not been a failure to follow the provisions of the relevant code of conduct. Again, that seems to me, with respect, entirely correct.
10. The President's direction then went on to advise Mr Adami that the Tribunal had a three-stage process, the first being resolution of any disputed facts, the second being a determination of whether there has been a failure to follow the code of conduct and the third, if the second was answered in the affirmative, dealing with the sanctions.
11. There was an Appendix to the listing direction, a rather more substantial document than the use of the word "appendix" would suggest. Section 2, under the heading "Findings" begins:

"The Case Tribunal will consider the following facts. Any dispute to the facts will be resolved by the Case Tribunal."

There follows a substantial narrative of the history of the matters giving rise to the ESO's reference to the panel, although with the ESO's value judgments removed.

12. Section 3 of the appendix sets out the submissions firstly of Mr Adami and secondly of the ESO relating to the issues in dispute. This quite naturally draws on the work of the ESO in his report and it contains, if I may say so, a fair and clear summary of the points which, it was understood, were being made by Mr Adami in answer to the complaints.
13. On 23rd June, the day before the date fixed for hearing, Mr Adami wrote by fax to the panel noting that "unfortunately" his request for deferment of the hearing date had not been granted and saying:

"I understand the case is to proceed on 24 June and this can be in my absence."

He made four applications: 1) to strike out the claim; 2) to determine a preliminary issue:

"... whether or not my primary duty in representing the public places on me under an obligation not to conceal, distort, misrepresent or otherwise confuse any situation or event, or be a party to same, either by direct involvement and/or failure to take prompt and appropriate action to prevent or reveal any situation of suspected abuse, even if such may conflict with the Code of Conduct."

Thirdly, he applied to have the hearing deferred until the Council provided properly qualified legal representation for him, and, fourthly, he denied any breach of laws or regulations applying to him and summarised his position that he was an independent member, not aligned to any political group and susceptible to vexatious and mischievous actions of which he considered this complaint to be an example.

14. The Panel proceeded to hear the case the following day. They cannot possibly be criticised for doing so. They rejected the application to strike out the claim, which was based on a number of matters: firstly, failure to investigate the complaint within a reasonable amount of time, so as to create a breach of Article 6: that, in my judgment, was an application with no prospect whatever of success. Secondly, the failure to call Mr Greaves as a witness: my view is the same. Given that Mr Adami had not disputed the factual narrative set out by the ESO, it was quite unnecessary for Mr Greaves or anybody else to be called to give oral evidence. Thirdly, failure by the investigators, the Standards Board, to read or examine the entire file and, fourthly, failure to provide the Tribunal with a complete documentary record. Again, the Tribunal were quite entitled to reject those various grounds for striking out the case and to proceed with it.
15. In similar vein, the proposed preliminary issue, as formulated by Mr Adami, begs all the questions in the case and it was unnecessary and inappropriate to determine a preliminary issue of that nature. What was necessary was to decide, in accordance with section 79, whether, on the factual narrative undisputed by Mr Adami, he had failed to comply with the Code of Conduct. Similarly, the Tribunal were entitled to proceed notwithstanding that Mr Adami had not been provided with properly qualified legal representation. I doubt very much whether it would have been within the Council's powers to provide legal representation at its expense for a Councillor brought before the Tribunal. The failure of the State to provide legal aid in civil proceedings, while capable in the most extreme circumstances of being a breach of Article 6 of the European Convention of Human Rights, would not, in my judgment, even arguably be so in the present case, particularly when the Councillor concerned is, as Mr Adami evidently is (and has been at pains to tell me that he is), experienced in business affairs, and highly intelligent and articulate.
16. So the hearing proceeded. No oral evidence was called. The Tribunal noted that there was no dispute as to findings of fact. Ms Genn, who appeared before the Tribunal, as she has in this court, has told me, and I accept, that the Tribunal asked her a number of questions both on the procedural aspects and on the substance of the case before reaching its decision. Thus far it does not seem to me that Mr Adami has any cause for complaint on this appeal.
17. The Tribunal's decision is contained in a short Notice of Decision and a fuller document, the Decision itself which contains or purports to contain the Tribunal's reasons. The notice of the decision contains sections as follows: (1) Simply states that Ms Genn represented the ESO, the respondent was not present and not represented (2) is headed "Preliminary Documents" and sets out representations by the parties on certain preliminary matters (3) is headed "Procedural Matters" and deals with the respondent's letter of 23rd June and the Tribunal's decision to continue. I have already made it clear that no complaint can sensibly be made of the Tribunal's decision thus far. Section 4, headed with a single word in bold type, "Findings", says The Tribunal found the following facts; and there then follow some 20 pages of text which are lifted verbatim from section 2 of the Appendix to the President's listing directions. I do not consider that there was anything wrong with that, in circumstances where none of the facts had been disputed by the respondent.
18. Section 5 is headed "Whether the material facts disclose a failure to comply with the Code of Conduct." It then sets out, over some 17~pages, the submissions first of the respondent, that is Mr Adami, and secondly of the ESO. This section also is lifted verbatim from the Appendix to the President's listing directions, except that that document, section 3, was headed:

"The Case Tribunal will take account of the following submissions as to whether the material facts disclose a failure to comply with the Code of Conduct."

As I have already said, the first eight subsections of part 5 set out, admirably, the points which Councillor Adami had made to the ESO in the course of the investigation and might be expected to make to the Tribunal, if he were present.

19. The decision document then continues as follows:

"6. The Tribunal found that on the basis of its findings of fact the Respondent had breached the following provisions of North Dorset District Council's Code of Conduct."

[There are then set out 10 subparagraphs of the Code which have been breached]:

"7. Case Tribunal's Reasons.

The Tribunal finds that the Respondent breached these provisions by the conduct identified in paragraphs 7.1 to paragraph 7.8 of the report of Mr Nick Marcar, the Ethical Standards Officer, dated 20 February 2004 with the exception of paragraph 7.3(7). The Tribunal adopts the reasoning of the Ethical Standards Officer as set out in his report dated 20 February 2004."

The question I have to decide is whether this is an adequately reasoned decision.

20. Ms Genn pointed out that that criticism of the Tribunal's decision is not among the many put forward in Mr Adami's notice of appeal, which is a fair point as far as it goes; but it seems to me that it would be wrong -- in a case where an appellant is acting in person and where a ground of appeal cries out, it seems to me, from the face of the decision -- to deny him the opportunity to avail himself of that ground of appeal. Ms Genn did not ask for a formal amendment, and indeed that would be rather pointless. She did, however, submit that the hearing should be adjourned in order that the respondents to the appeal should have the opportunity to obtain an affidavit from the Chairman of the Case Tribunal, amplifying or explaining its findings in paragraph 6 and/or its reasons in paragraph 7.
21. I refused the application for an adjournment. It seemed to me that it would only achieve anything if such an affidavit would be permissible.
22. In a number of recent cases, including the leading case of English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409 the appellate courts have made it clear that it is the duty of a court or a tribunal established by statute, adjudicating on the rights of a citizen, to give reasons for its decision sufficient to enable the losing party to know why he has lost. It is not sufficient, in my judgment in the present case, for the Tribunal simply to have set out 10 paragraphs of the Code of Conduct and then find, wholesale, that the respondent had breached them; and to give as its reasons the reasons contained in the Ethical Standard Officer's report of 20th February. The terms of section 79 of the Act are quite clear: the Case Tribunal must decide whether or not the Councillor concerned, or Council involved, has failed to comply with the Code of Conduct. It is their decision, not the ESO's decision. The jurisprudence on when an appeal tribunal or appellate court can simply set out the reasoning of the fact-finding tribunal or court of first instance and say, "we agree" would not be in point.
23. The decision being that of the Case Tribunal, they have to give their own reasons. It is of course unnecessary for these to be in the form of an extended essay and they are entitled to take account of the fact that the parties, who are the most important people for the purposes of understanding for the court, are familiar with the facts. I am sorry to say that it is not clear to me, from this decision, which parts of the factual narrative were regarded as a breach of which parts of the Code, nor why. Moreover, the principle in English v Emery Reimbold includes as an important factor that the loser must know why his arguments have been rejected. The submissions so admirably set out in paragraphs 5.1 to 5.8 of the decision, although in the words of the President rather than the words of the Tribunal, were drafted after the report of the Ethical Standards Officer of 20th February 2004. It is not apparent at all from the Tribunal's decision why each of those submissions were rejected. There may have been very good grounds for rejecting them; I can well imagine what a judgment turning down those submissions one by one might have said. But the Tribunal did not say it: and although Ms Genn valiantly tried to argue that their reasons for rejecting them were to be found in the last sentence of paragraph 7 of the Tribunal's decision, I am afraid she has not persuaded me.
24. Ms Genn also drew attention to paragraph 9.1 of the Tribunal's decision in the section of the document dealing with penalty:

"The tribunal took account of the length of the Respondent's current term of office, the overall period he had served as a councillor, that many of the Respondent's inquiries related to legitimate concerns and of the factors raised in the ESO's representative submissions."

The reference to the fact that in the Tribunal's view, many of the respondent's inquiries "related to legitimate concerns" is, Ms Genn submits, evidence that they were aware of the submissions recorded by them in sections 5.1 onwards of the report which the President considered to have been made on Mr Adami's behalf, and had them well in mind in reaching their conclusion. Again, although I admire the valiant effort which Ms Genn has made to uphold the reasoning of the Tribunal, I cannot accept that paragraph 9.1 amounts to adequate reason for the rejection of those submissions.

25. Given the serious deficiency in the adequacy of the Tribunal's Decision, it would not be right to adjourn the case in order to enable the Chairman of the Tribunal to produce now what would inevitably be ex post facto reasoning. That would go far beyond the procedure for amplifying reasons or explaining ambiguities in reasons identified in any of the cases of the Court of Appeal, or for that matter the Employment Appeal Tribunal, so far. It seems to me that we must proceed with the material we have and on that basis the decision cannot stand.
26. I should make it clear in reaching the conclusion that this appeal must be allowed that I do not in any way criticise the Ethical Standards Officer whose report, as I have said, seems to me a careful and admirably reasoned document; nor anyone who was concerned with bringing the case to a hearing; and certainly not Ms Genn who appeared for the ESO at the hearing. My concerns have been simply that the decision which the Tribunal gave is not a reasoned decision on the critical issue, which is what section 79 of the 2000 Act requires them to make.
27. It is accordingly unnecessary to go on to consider Mr Adami's appeal against the four-year disqualification, which would have raised further interesting issues because, with the decision being quashed, the disqualification must be quashed with it.