England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand. London. WC2A 2LL
		07/10/2005 .

Mr Justice Sullivan :

Introduction

1. This is an appeal under section 79( 15) of the Local Government Act 2000 ("the Act") against a decision dated 25^th February 2005 ("the decision") of a Case Tribunal ("the Tribunal) drawn from the Adjudication Panel for England disqualifying the Appellant from being a local councillor for a period of 18 months from the date of the decision.

Factual Background

2. The Tribunal was considering the Appellant's conduct during an interview on 19^th.

June 2003 ("the interview"), and in writing a letter dated 17^th July 2003("the letter"). At that time the Appellant was 'a long standing elected member of the Peterborough City Council ("the Council"), having represented. the Newborough Ward for some 14 years. He was a member of the Conservative Party and on 19th June 2003 was leader of the Council, having been elected to that post on the 18th July 2001.

3. On the 30^th January 2002 the Council adopted a Members' Code of Conduct ("the Code") which included paragraphs 2(b) and 4 in the mandatory Model Code of Conduct for Local Authorities:

"2. A member must'

(b) treat others with respect ...

4. A member must not in his official capacity, or any other circumstances, conduct himself in a manner which could reasonably be regarded as bringing his office or authority into disrepute. "

4. In its decision the Tribunal set out those facts which were undisputed, and after a meticulous examination of those matters which were disputed,. its findings in respect of those matters. So far as relevant for present purposes the Tribunal found the following facts in respect of the interview: .

"3 .2Mr and Mrs A were in receipt of Housing Benefit and Council Tax Benefit paid by the Council. On 10 June 2003, Mrs Collcott (Benefits Investigation Officer) wrote separately to Mr and Mrs A notifying each of them of her intention to interview them at the Town Hall with regard to an investigation into their claim for benefit. Both interviews were arranged for 19 June 2003. In her separate letters to Mr A and Mrs A Mrs Collcott wrote:-

"Because I have reason to believe that your claim may be fraudulent, we need to interview you under caution. This means that depending on what you tell us during the interview, we may take criminal proceedings against you. We will provide you with more information about the allegation when you attend the interview. You may wish to seek legal advice and/or be accompanied on the interview by a friend or legal representative."

"It is important that you are interviewed. Failure to keep an appointment may not prevent criminal proceedings being taken."

3.3 Mr A asked Councillor Sanders if he would accompany him. and his wife at their interviews, as Councillor Sanders was their ward councillor.

3.4 Councillor Sanders agreed to attend the interviews with them on 19 June 2003 and confirmed that until Mr and Mrs A came to see him about this matter, he had never met them before.

3.5 On 19 June 2003 Mr A and Councillor Sanders arrived in the interview room for Mr·A's interview. Mr Wright [Benefits Investigation Officer] and Mrs Collcott were both present. Mrs Collcott explained how the interview was to be conducted and that it would be tape-recorded.

3.6 Mr Wright read to· Councillor Sanders a standard notice that is read to all those who as friends or relatives accompany claimants to interviews under caution. The notice explains the interview is being conducted under the code of practice of the Police and Criminal Evidence Act 1984 (PACE). It states "should you interfere with the interview the officer may require you to leave or bring the session to an end. The interview will be rebooked and the person being interviewed may be asked to have someone other than yourself with them. If you have any objection to the way the interview was conducted you can express your views to the officer or to a manager .in writing".

4.13 Mr A approached Councillor Sanders asking him to accompany him to the interview about one week before 19 June 2003. Councillor Sanders was shown the letter to Mr A seeking the interview dated 10 June 2003. Mr A was previously unknown to Councillor Sanders. He asked Mr A himself whether he was guilty of benefit fraud in order to satisfy himself that he was not guilty of fraud. He made no enquiries of officers at the. Council either in relation to the allegations or the procedure to be expected at the interview.

4.14 From his contact with Mr A, Councillor Sanders was aware prior to the interview that Mr A was a vulnerable person who would have difficulty In understanding legal procedures.

4.15' Councillor Sanders considered the Council's letter "outrageous" having regard to his assessment of its tone and the inference he drew from it that it implied prosecution if Mr A did not attend. On his own admission he overreacted to the letter and when he went to the interview he was not being as partial as he should have been under normal circumstances. On these matters, the Tribunal prefers' Councillor Sanders' evidence provided in his interview with the investigations officer on 8 June 2003 to that given before the Tribunal that the letter did not raise any concern with him at all and that his answers in interview reflected events subsequent to the letter. His suggestion that, had he been asked in June 2003 about the letter, his view of it would have been different to that given in October 2003, the Tribunal does not find to be credible.

4.16 Councillor Sanders' principal objective for attending the interview was to represent the interests of his constituent Mr A. He had a secondary purpose of seeing how such interviews were conducted given the previous difficulties of the Council's Benefit Fraud Department.

4.17 Councillor Sanders was not aware the interview would be conducted in accordance with the Police and Criminal Evidence Act Code until the interview itself.

4.18 The procedures adopted by Mrs Collcott and Mr Wright at the interview were entirely in accordance with the Council's guidance on Interviews Under Caution and, as a matter of fact, neither officer did nor said anything out of the ordinary. Both officers were qualified to conduct such interviews. Although it was contended on behalf of Councillor Sanders that Mrs Collcott required them to move from their initial positions chosen at the interview panel in order to establish her authority, the Tribunal accepts' Mrs Collcott's evidence that this was simply to enable Mr A to see the documents likely to be referred to in interview.

4.19 Mrs Collcott explained the procedures. to be adopted at the interview to Mr A. There is no evidence that she did this using any inappropriate manner or behaviour.

4.20 Councillor Sanders did not raise any concern with the officers about Mr A's ability to understand the procedures either before or at the interview.

4.21 As was Mr Wright's usual practice when acting as the second officer in such interviews, he assumed the responsibility of reading the standard notice "Accompanying a Friend or Relative at an Interview" to Councillor Sanders. By reason of his previous contact with Councillor Sanders, he did so in an "assertive" way. The Tribunal accepts his evidence that by "assertive" he meant that when he read out the notice he did so being formal and clear putting forward the words required so that it was understood. He was at all times composed and relaxed although defensive of the Council's procedures. Mr A, nervous and faced with a formal procedure and an experienced officer explaining that procedure in clear terms, formed the opinion that Mr Wright was very arrogant. The Tribunal is satisfied that that is an unfair description of Mr Wright's conduct at the interview.

4.22 Councillor Sanders' response to Mr Wright's reading of the notice to him was to state "If I have any objection to the way you are conducting this interview I shall use my executive powers as Leader of .the Council to overrule you. I am familiar with the PACE Act. This is not a police matter but a Council matter so I shall make my views known". Councillor Sanders took offence at what he perceived to be a threat to throw him out of the room.

4.23 'Mr Wright responded "This interview is .being conducted in accordance with the PACE Act and you cannot interfere with that. It is the law of the land".

4.24 Councillor Sanders responded, "You are not qualified to deal with this matter".

4.25 Mr Wright responded "We are both qualified to conduct interviews and will carry out this interview in accordance with PACE".

4.26 Councillor Sanders at this point became angry which was demonstrated by his demeanour, the raising of his voice and getting up to leave and saying "In that case we are leaving. I am stopping this interview now". Councillor Sanders and Mr A then left the room. Councillor Sanders accepted in cross-examination that . he had overreacted in as much as he called the interview to a halt, got up and walked out.

4.27 Mrs Collcott was left in tears, frightened and intimidated by Councillor Sanders' behaviour. She genuinely believed that Councillor Sanders had the power to terminate her employment. There was no dispute by Mr Sanders that she was left in this state. She has never been left in such a state following the many other interviews that she has conducted at the Council. Having had the benefit of hearing evidence from Mrs Collcott and observing her response to a lengthy cross examination, the Tribunal is satisfied that she would only have been left in that state by behaviour . which amounted at the very least· to bullying. For that reason, The Tribunal does not accept that Mr A's description of Councillor Sanders as not seeming angry or upset and not shouting, is an accurate one.

4.28 Mr Wright was not affected in the same way as Mr Collcott because he had had previous experience of Mr Sanders and the way he conducts himself.

4.29 Councillor Sanders' behaviour was motivated by the desire to terminate an interview which he believed to be in breach of the provisions of the PACE Code on interviewing suspects. That belief was erroneous.

4.30 Councillor Sanders' conduct in bringing the interview to a halt and leaving the room with Mr A did not breach the law. Mr A was not under arrest and was entitled to leave any time ..

4.31 Councillor Sanders' letter of 17 July 2003 demonstrates that he believed that he had· issued an instruction at the interview as Leader of the Council that Mr A was not to be interviewed in accordance with the Council's standard procedures."

5. In order to set the letter in context it is necessary to refer to another matter which was the subject of a Standards Board decision against the Appellant. On the 7^th September 2004 a Case Tribunal disqualified the Appellant for a period of two years in respect of that other matter. The Appellant appealed to the High Court on a number of grounds against the Case Tribunal's findings and the penalty imposed. In a judgment dated 7^th June 2005 Wilkie J. dismissed the Appellant's appeal against the finding that he was in breach of the Code of Conduct, but upheld his appeal against the penalty imposed, and substituted a partial suspension from holding the office of Leader of the Council for one year from 7^th September 2004: Sanders v Kingston (No.1) [2005] EWHC 1145 (Admin).
6. The details of that other matter are set out in the judgment of Wilkie J. and it is . unnecessary to rehearse them in this judgment. In summary, the Chief Executive of a local authority in Northern Ireland, Carrickfergus Borough Council, had sent a letter to the Chief Executives of all UK Local Authorities (including the Council) asking for their support in requesting an inquiry into the unexplained deaths of young soldiers in army barracks. The Council's Chief Executive passed the letter to the Appellant and his response, and subsequent communications caused great offence. The matter . attracted widespread and highly unfavourable publicity. On the 16^th June 2003 two Peterborough City Councillors lodged formal complaints against the Appellant with the Standards Board, and on the 25^th June 2003 he was, by resolution of the Council, removed from his position as Leader. In December 2003 he was expelled from membership of the Conservative Party.
7. Shortly after his removal as Leader of the Council the Appellant suffered a heart attack and required hospital treatment. He was still recovering when Mrs Collcott resumed her attempts to interview Mr & Mrs A. The Tribunal found the following undisputed facts relating to events after the interview:

"3.26 Following the abandoned interview, Mrs Collcott wrote again to Mr and Mrs A on 2 July2003 advising them of a new date for the interview, 15 July 20m.

3.27 The Assistant Benefits Manager took a telephone call from Councillor Sanders on 14 July to say that Mr & Mrs A would not be attending on 15 July as he had been ill and could not accompany them.

3.28 Following the interview on 19 June 2003 Councillor Sanders wrote to Mrs Collcott offering to assist in a non-PACE convened interview.

3.29 On 16 July 2003 Mr Hynes, Solicitor to the Council wrote to Councillor Sanders:"-

"It is important that the Benefit Fraud Team have the opportunity to discuss matters with Mr & Mrs [A] in terms of providing them with the opportunity of putting their side of the story. I know that you wish to attend in your capacity as local Councillor, but given your recent serious health problems it is by no means certain when you will be fit enough to attend such a meeting in the near future. In the circumstances it may be that Mr and Mrs [A] should consider utilising one of the other local councillors such as David [Sanders] ·or indeed John Bartlett. The Fraud Team will be. writing to Mr and Mrs [A] setting out this proposals."

'3.30 On 16 July 2003 Mrs Collcott wrote again to Mr and Mrs A re-arranging the interview under caution for 1 August 2003 stating:

"I understand you were unable to attend the appointment on 15 July 2003 because Councillor Neville Sanders was to accompany you but was not able to because of ill health. As it is important you are interviewed I would advise you that you might like .to find another person to accompany you and I would suggest that you speak to one of the Ward Councillors carried with it certain responsibilities; importantly the proper recognition of the distinction between those two roles. Whilst the Tribunal accepts that there can be no objection in principle to Members of the Council attending. interviews conducted by the Council as "friends", the obvious risk of a conflict of interest requires that in doing so they conduct themselves at all stages with care.

5.3.10 In relation to the interview on 19 June 2003, the Tribunal has concluded that Councillor Sanders' behaviour must be judged as a single course of conduct starting with Mr A's approach to him for assistance. He clearly formed the view from his contact with Mr A that he would have difficulty with the procedures as described in the letter of 10 June 2003, a letter he regarded as "outrageous". Whilst he was apparently prepared to make enquiries about Mr A in the locality to establish whether he was likely to have .been guilty of benefit fraud, he made no approach to Council officers to make enquiries, to express his concerns about their procedures or to voice apprehension about Mr A's capacity to understand an interview. These failures must be seen in the context of a Leader of a Council who had existing concerns about Council procedures in the· Housing Benefit department and who had ready access to officers to make enquiries and to voice any . concerns.

5.3.11 Rather than raise his concerns in advance, Councillor Sanders chose to raise them for the first time at the interview. He did so in an intemperate and intimidatory way. He threatened, in front of a member of the public to use his executive powers to override . the officers. He questioned their qualifications and he

reduced one of them to tears.

5.3.12 This was not a brief, inconsequential playground spat. It was a course of conduct which led, ultimately, to threatening and intimidatory behaviour directed at Council officers trying to do their job. The Tribunal was left with the clear picture that Councillor Sanders went to the interview with the intention of confronting what he perceived to be wrongdoing and who was set on getting his own way. It may be that, as Leader of the Council he felt that he was entitled to more respect than the standard interview procedures accord to a "friend", but any such feeling was a result of his failing to draw a proper distinction between the roles for your area who are Councillor David Sanders and Councillor John Bartlett."

3.31 On 17 July 2003 Councillor Sanders wrote to Mrs Collcott:-

"Your impatience has dragged me from my sick bed for a consultation with my constituent [Mr A]. This poses the question would YOU attend your office within seven days of heart surgery?"

"I am particularly disturbed you expect lay members of the public to understand and accept PACE - even if they could read it! I distinctly recall instructing your good self and your colleague that [Mr A] was not to be interviewed under the conditions you wished to impose. Standing orders state existing instructions and policies remain in force on change of command, thus before you proceed with this proposed PACE interview, today's Leader of the Council may wish to countermand my instruction."

"Your letter of 16^th inst. to [Mr A] contains a cardinal error of the type that led to benefit overpayment, it quite wrongly stated Councillor D A Sanders and Bartlett are Ward Councillors for his area. [Mr A] quite properly visited the Housing Office for benefit advice; I am advised Mrs Bartlett completed his benefit application, accordingly, if there is an error leading to overpayment, the blame falls on PCC staff. Examination of the application form will quickly verify this statement."

"I support your desire to curb benefit fraud, however, I cannot support bullyboy methods likely to bewitch the socially excluded, elderly or infirm Your questions can properly be put without PACE because process to actual prosecution is not intra PCC. The constabulary do not have the power to demand attendance except under arrest or thereafter to demand answers to questions. Of major importance, Police interviews qualify for legal aid, that would make a world of difference to the unfortunate events I was forced to witness."

"In my view your demand for a PACE interview lacks authority. Accordingly, on the Ward Councillor authority imposed by the Local Government Act 2000 I will advise [Mr A] not to attend as instructed. I would be pleased to accompany him as soon as possible to enable you to consider elements of possible offences - if any - and indeed learn how PCC will alone for the sins of your good self and Mrs Bartlett".

3.32 Mrs Collcott found Councillor Sanders' letter of 17 July 2003 to be intimidating in tone and implying incorrectly she had led· Mr A to call Councillor Sanders· out of his sick bed. The letter also contained inaccuracies. Mrs Bartlett (wife of Councillor Bartlett) denied completing. Mr A's Housing Benefit application form.

3.33 Until Councillor Sanders wrote to Mrs Collcott on 17 July 2003 she had received no letter or other form of contact from Councillor Sanders offering assistance.

3.34 An inspection of the forms completed by Mr and Mrs A by the Benefits Fraud Team Manager showed no evidence they were completed by anyone other than the claimants. There is a specific box on ·the form to indicate if it has been completed by a third party; none of the forms indicate that they were completed other than by Mr and Mrs A.

3.35 Mr and Mrs A live within the ward represented by Councillor Sanders and not, as Mrs Collcott understood, in the neighbouring ward which Councillor David Sanders and Councillor John Bartlett represent.

3.36 Because Mrs Collcott and Mr Wright had lodged an allegation about Councillor Sanders with the Standards Board for England [on 4^th July 2003], it was decided the Fraud Manager should conduct any further interview under caution with' Mr A if Councillor Sanders was to be present."

8. In due course Mr A did attend for an interview, but the Fraud Manager terminated it because he was not certain that Mr A had understood the caution put to him. It was agreed that an "appropriate adult" should be provided. by the Social Services Department to protect Mr A's interests during interview, and he, and Mrs A were advised to seek legal representation.

The Tribunal's conclusions as to breach

9. Having said that Mrs Collcott and Mr Wright in seeking to interview Mr A had followed the established and lawful practices of the Council in the manner in which they had been trained to do, the Tribunal concluded:

"5.3.8 Whilst the Tribunal is satisfied that at all material times, Councillor' Sanders had as his primary objective, providing support and protection to his constituent, Mr A, it is also clear from his evidence before the Tribunal that he had a secondary,. but nonetheless significant motive for attending the interview, namely to observe as Leader of the Council. how the' Council's Benefit Fraud Investigation function was performing.

5.3.9 The Tribunal considers that Councillor Sanders was entitled to attend the interview with these dual motives but his attendance in two capacities, as Leader· of the Council and also as a "friend" to Mr A, in which he attended the interview. The officers cannot be criticised for following standard procedures simply because a member of the authority is present. The termination of the interview may have been in Mr A's interests but that· cannot alter the fact that Councillor Sanders' behaviour judged as a whole amounted to a clear breach of paragraph 2(b) of the Code. The Tribunal would add, that in its view, the threatened use of executive powers by Councillor Sanders in the circumstances of this interview, was of itself a breach of paragraph 2(b) of the Code.

5.3.16· The Tribunal also has to consider the separate allegation made against Councillor Sanders in relation to the tone and content of the letter he wrote to Mrs Collcott dated 17 July 2003.

5.3.17 The Tribunal concludes that by its tone and content the letter is unfair, unreasonable and bullying in torte. It is expressed in unreasonably intemperate terms and falls far short of showing the standard of respect to officers of the Council which they are entitled to expect from Members and, more particularly the Leader of the Council. The letter should simply never have been written to any officer of the Council let alone to a case officer in the Housing Benefit department of the Council, a comparatively junior front line post. Any concerns about the· continuing investigation could and should have been raised in an appropriate manner with more senior officers with whom he was in contact at the time. The Tribunal notes from Mr Hynes' letter of 16 July 2003 that Councillor Sanders had discussed the matter with him on 14 July 2003.

5.3.18 Whilst Members are entitled to express reasonable criticism of officers, in this case, the criticism was wholly unjustified and the letter is expressed in terms which were demeaning and intimidatory. Whilst the Tribunal accepts that at the date of the letter Councillor Sanders was recovering following recent surgery that cannot alter the fact that the letter itself failed to treat Mrs Collcott with respect and in sending it Councillor Sanders breached paragraph 2(b) of the Code .

5.3.19 The Tribunal also finds that the extent of the letter's unfairness and unreasonableness and its· bullying tone coupled with the fact that Councillor Sanders chose to copy it to senior officers of the Council was such that, looked objectively and in the light of all of the circumstance, its writing did amount to conduct which could reasonable be regarded as bringing both his office and his authority into disrepute.

5.3.20 The Tribunal finds that in writing and sending the letter of 17 July 2003, Councillor Sanders did breach paragraph 4 of the Code:"

10. Although the Grounds of Appeal challenged these findings, following consideration of Wilkie J's judgment (above) the' Appellant's Solicitors indicated that, subject to one qualification, the. appeal would be pursed as an appeal against penalty only. The one qualification was the Tribunal's finding that in writing and sending the. letter the Appellant had breached paragraph '4 of the Code (there was no longer any challenge to the conclusion that he had thereby breached paragraph 2(b) of the Code). They indicated that this challenge would be pursued unless the Respondent accepted that this finding was immaterial to the appropriate penalty to be imposed.
11. In her submissions on behalf of the Respondent Miss Lieven made it clear that, while there might well be certain cases where the fact that paragraph 4 had been breached in addition to paragraph 2(b) (or some other paragraph of the Code) would justify the imposition of a more severe penalty, there was no indication in this particular decision that the Tribunal considered that this breach of paragraph 4 warranted an additional period of disqualification. On the particular facts of this case, writing and sending the letter was in breach of the Code and for the purposes of penalty it mattered not that it was in breach of paragraph 4 as well as paragraph 2(b). On this basis, the appeal proceeded as an appeal against penalty only.

The Tribunal's conclusions as to penalty

12. Having set out the submissions made on behalf of the Respondent Ethical Standards Officer (ESO) and the Appellant, the Tribunal said this in paragraph 6.8 of its decision:

"6.8.1 The Tribunal has taken into account all of the matters . advanced on behalf of the parties. It approaches the issue of sanction on the basis that each case turns on its own particular facts and the circumstances of other cases are persuasive only. It does not consider that the Local Government Act 1972 has any material bearing on the issue of sanction for breaches of the Code under the Local Government Act 2000 which creates a new ethical framework.

6.8.2 The Tribunal takes account of the fact that at all times Councillor Sanders had, as hi~ sole motive, assisting his constituent Mr A. It has also takes account of the fact that at the time he wrote the letter of 17 July 2003 Councillor Sanders was in poor health having recently suffered a heart attack. However, the Tribunal considers that Councillor Sanders' breaches of the Code, involving intimidation and bullying were very serious. They are compounded by the fact that Councillor Sanders was an experienced Councillor and should have known that his behaviour was unacceptable. There were at all times appropriate, reasonable and obvious alternatives to the unacceptable behaviour he chose to adopt.

6.8.3 The Tribunal is very troubled that Councillor Sanders appears still to consider that his behaviour was appropriate and by way of defending the proceedings has continued to question the motives of the officers in making the complaint. The Tribunal considers that this absence of any contrition or recognition of the unacceptability of his behaviour gives rise to a real prospect that further similar behaviour will occur.

6.8.4 Having regard to all of the circumstances, the Tribunal considers that the breaches of the Code are so serious as to warrant the imposition of a substantial period of disqualification. Indeed, had the letter of 17 July 2003 been the only breach of the Code such a sanction would have been appropriate. The Tribunal has reduced the sanction it would otherwise have imposed having regard to the mitigating factors advanced on Councillor Sanders behalf and considers that a period of disqualification of 18 months is warranted.

6.8.5 The Tribunal decides that the Respondent should be disqualified for a period of 18 months from being or becoming a member of a relevant authority or of any other relevant authority within the meaning of the Local Government Act 2000. The disqualification is effective from today."

The Guidance

13. The relevant statutory framework is set out in some detail in the judgment of Wilkie J. In view of the relatively narrow focus of this appeal it is unnecessary to repeat it in this judgment. However, one enactment is of particular relevance, section 75(9)(b) which provides that:

"The President and deputy president (if any) of the Adjudication Panel for England are to be responsible -

(a) ...

(b) for issuing guidance on how tribunals drawn from the Panel are to reach decisions.

The President has issued such guidance ("the Guidance") :

GUIDANCE ON ACTION TO BE TAKEN BY A CASE TRIBUNAL WHERE A RESPONDENT HAS BEEN FOUND TO HA VE FAILED TO COMPLY WITH A CODE· OF CONDUCT

14. In order to set the context for the Tribunal's decision that an 18 month period of disqualification was appropriate, and to understand the Appellant's criticisms of that decision, it is necessary to set out the Guidance in full:

Introduction

1. The powers available to the Case Tribunal are set out in Section 79(4) of the Local Government Act 2000 and in essence are:

1.1. To disqualify the Respondent

1.2. To suspend the Respondent

1.3 Partially to suspend the Respondent

2. Although not expressly provided for by the Statute, if the Case Tribunal decides not to suspend or disqualify . a respondent· it might reprimand him or her and warn the Respondent as to future conduct.

3. In the case of a suspension or disqualification the Case Tribunal will also need to consider the period over which such a sanction should apply:

3.1 A period of disqualification must not exceed 5 years

3.2 A period of suspension or partial suspension must not exceed one year or the remainder of the respondent's term of "office if shorter.

4. In the case of a partial suspension the Case Tribunal will need to decide from what activity the Respondent is to be suspended.

The aims ,of the Case Tribunal

5. The action on which the Case Tribunal decides will be directed toward upholding and improving the Standards of Conduct expected of Members of the various bodies to which the Codes of Conduct apply. Thus, the action will be designed both to discourage or prevent the particular respondent· from any future none-compliance but also to discourage similar action by others.

Disqualification

6. Disqualification is the most severe of the options open to the Case Tribunal. Factors which may lead to this option include one or more of the following:

6.1 The Respondent having deliberately sought personal gain (for either himself or some other person) at the public expense by exploiting his membership of the body subject to the Code of Conduct.

6.2 Repeated breaches of the Code of Conduct by the Respondent.

6.3 Misusing power within the Authority or use of public funds for political gain.

There may be other factors not listed above which also merit disqualification. Nor will disqualification always be appropriate even if the listed factors are present.

7. In deciding the length of any disqualification the Case Tribunal will not usually take into account the electoral cycle of the particular body.

8. The Case Tribunal is not likely to disqualify a Respondent for less than one year.

Suspension

9. Suspension is appropriate where the circumstances are not so serious as to merit disqualification but sufficiently grave to reassure the public and impress upon the respondent· the severity of the matter and the need to avoid repetition.

10. Factors which may lead to this 'option include:

10.1 Concern that the Respondent's actions have brought the body on which he or she serves, or the public service generally into disrepute.

10.2 Concern as to the likelihood of further failures to comply with the Code of Conduct by the Respondent. (If there were such failures to comply after a period of suspension then it is highly likely that a future case tribunal faced with a reference about that further breach will opt to disqualify the Respondent).

Partial Suspension

11. This option might be appropriate where there is a concern that the Respondent is judged to have difficulty in understanding or ,accepting the limitation placed on his or her actions by the Code .of Conduct in relation to a particular matter or area of activity but the difficulty does not affect the respondent's ability to act properly in relation to other matters. Suspending the Respondent from exercising some particular function or having particular responsibility (such as being a member of a particular committee or sub committee) may in the view of the Case Tribunal provide an adequate safeguard against such a, future breach whilst leaving the Respondent able to make an effective contribution to the other work of the body.

12. The option may also be seen as an effective sanction in respect of an Respondent exercising executive functions for the body to which the Code of conduct applies.

A decision not to impose Disqualification, Suspension or Partial Suspension

13. Circumstances where such a decision may be 'appropriate include:

13.1 An inadvertent failure to abide by the Code of Conduct.

13.2 An acceptance that' despite the lack of suspension or partial suspension, there is not likely to be any further failure to comply on the part of the respondent."

The Court's powers

15. The scope of an appeal under section 79(15) is discussed in paragraphs 54-56 of ' Wilkie 1's judgment. I respectfully adopt the same approach. I should not interfere with the penalty· imposed by the Tribunal unless I am satisfied that there has been some error of principle, or that the, penalty, is "plainly wrong." When considering whether I 'am so satisfied I must pay due deference to the Tribunal's expertise in matters relating to Local Government.

The Appellant's submissions

16. On behalf of the Appellant, Mr Giffin QC advanced two principal submissions:

i) There had been an error of principle because the Tribunal had failed to have regard to the Guidance.

ii) Imposing a penalty of disqualification was "plainly ,wrong" because it was a ' wholly disproportionate response to the two incidents, the interview and the letter, and manifestly excessive, or in the vernacular, "completely over the top."

Error of principle·

17. In Sanders (No. 1) it was common ground before Wilkie J that the Case Tribunal was not referred to the Guidance (para. 86). Wilkie J. said that "it was the plainest possible error on the part of the ESO not to draw the Case Tribunal's attention to this important statement of guidance" (para. 87). In his Skeleton Argument Mr. Giffin. submitted that the same omission had occurred in the present case so that not only was the Tribunal (presumably) unaware of the Guidance, but the· Appellants' Advocate, Mr Williams, was unable to rely upon it. It was said that the Appellant's representatives had become aware of the existence of the Guidance at a late stage in the preparation of Sanders (No.1) because of a reference to it in an unreported case, Sloam v. Standards Board for England [2005] EWHC 124 (Admin), decided on 25^th January 2005 and referred to in the Respondent's Skeleton Argument in Sanders (No. 1).
18. In response to this submission (which had not been included in the Grounds of Appeal filed on 1^st April 2005) the Respondent e-mailed the Chairman of the Tribunal, Mr Simon Bird on 5^th July asking if he had knowledge of the Guidance and if so to what extent the Tribunal took it into account in reaching its decision dated 25^V1 January 2005. Mr Bird replied in an e-mail sent later that day that he did have knowledge of the Guidance, having been provided with a copy of it during the compulsory training session prior to sitting as a Case Tribunal Chairman, that he took it to each Tribunal he chaired, and that it was his practice (which he followed in this case) in those cases which reached the sanction stage to advise his fellow members of the Guidance and its contents.
19. In the light of this evidence I expressed concern at the outset of the hearing that there appeared to have been no reference to the Guidance at the hearing notwithstanding the fact the ESO's representative (presumably) knew of it, and the Chairman knew of it and clearly regarded it as material because he had drawn his fellow panel members' attention to it. In response to my enquiries Miss Lieven confirmed that the ESO's representative did know of the Guidance, but had not referred to it because it was the Standards Board's understanding that the independent Adjudication Panel did not wish to hear submissions on behalf of the ESO as to the appropriate penalty.
20. As a result of further enquiries made by Miss Lieven it was established that the Adjudication Panel had sent a letter dated 5^th October 2004 to the Appellant's Solicitor, Mr Williams, enclosing a set of case papers, copies of recent correspondence and "2 booklets which explain our procedures and sanctions." One of those booklets, "Guidance on Powers available to a Case Tribunal" is the Guidance set out in paragraph 14 above. The other booklet dealt with "Case Tribunal Procedures".
21. Mr Williams asked his staff to check his files, and Mr Giffin: was able to confirm· during the course of the hearing that the Guidance had -indeed been received by Mr Williams. It also emerged that the Adjudication Panel had sent a letter dated 27^th May 2004 to the Appellant (who was not at that stage represented) enclosing "A booklet ... which sets out the Adjudication Panel Procedures." It was not possible to establish whether that booklet was the Guidance, or the procedures booklet referred to in paragraph 20 (above).
22. Mr Giffin withdrew his submissions that the Tribunal had been unaware of the Guidance and that there had been procedural unfairness by reason of a failure to draw the Guidance to the attention of the Appellant or his advocate, but maintained his submission that the reasoning in the Tribunal's decision was seriously deficient because it did not indicate how (if at all) the Guidance had been applied by the Tribunal, and did not explain why the imposition of a penalty which was at least prima facie at odds with the Guidance was appropriate.
23. I adjourned the hearing to enable the parties to make their submissions, about the Guidance on a proper evidential basis. In particular, I wished to know' whether there had been any reference to the Guidance at the hearing before the Tribunal, and if not, why not, bearing in mind the statement in Mr Bird's e-mail that he had advised his . fellow members of its contents (para. 18 above).
24. In a witness statement dated 29^th July Mr Williams confirmed that he had received a copy of the Guidance under cover of the letter dated 5^th October 2004, but had failed to appreciate its significance at the time. He had been instructed by the Appellant at the end of September 2004, only a very short time before the date for the Tribunal hearing which was originally fixed for the, first week in October (later adjourned to 6^th December 2004), and was preoccupied with getting to grips with the factual issues in the case. I accept his assurance that he had no recollection of seeing the Guidance until the letter of 5^th October 2004 was produced at Court on the 14^th July 2005, and that he had no intention of misleading the Court. The, contemporaneous correspondence demonstrates that he had not appreciated the significance of the two booklets. To some extent that is understandable since there is nothing on the face of "Guidance on Powers available to a Case Tribunal" to indicate that it is statutory guidance issued by the President pursuant to section 75«9) (b).
25. In a witness statement dated 8^th August 2005 Mr Bird (who consulted with the other members of the Tribunal in the preparation of the statement) said that, so far as the Tribunal could recall, there was no reference to the Guidance at the hearing by either the parties or the Tribunal. The Tribunal knew that in accordance with the Adjudication Panel's normal procedures Mr Williams would have been sent a copy of . the Guidance, and proceeded on the assumption that he would have familiarised himself with its contents. The Tribunal knew that the practice of ESOs at that time was not to make specific reference to the Guidance, but simply to identify any aggravating or mitigating factors, leaving the application of the Guidance to the Tribunal. I was told by Miss Lieven that there had been a change in practice, and that ESOs do now draw the Tribunal's attention to the Guidance.
26. I unreservedly accept Mr Bird's evidence that he and his fellow panel members were aware of the Guidance. The Tribunal was entitled to assume that Mr Williams would have familiarised himself with the Guidance and would therefore make submissions in respect of the Guidance if he thought it appropriate to do so on behalf of the Appellant. Unfortunately, the Tribunal's entirely reasonable assumption was incorrect. Mr Williams had seen the relevant booklet but had not appreciated its, significance, and the ESO who was well aware of the Guidance felt constrained not to mention it. In consequence, there was no reference to the Guidance at the hearing before the Tribunal.
27. I appreciate that the Guidance is just that - guidance, not a list of mandatory requirements, but it will almost invariably be the appropriate starting point from which a departure may, or may not be justified to a greater or lesser extent, depending on the facts of the particular case. The new practice on the part of ESOs, to make express reference to the Guidance at the hearing, is to be welcomed. It will· ensure that, at the very least, the parties and the Tribunal consider whether the Guidance is of any assistance in the circumstances of the particular case, and if not, why not. The new practice is in line with the present approach towards the duties of prosecuting counsel in a criminal trial: see Attorney General's Reference No. 52 of 2003 (Jan David Webb),[2004] Crim LR 306 at p.307. Reminding the Tribunal of the sanctions available, and 'any guidance from the President as to their imposition, is not to be equated with arguing for a particular penalty, which would be inappropriate.
28. If Mr Williams had been reminded in consequence of the ESO's submissions, or by the Tribunal itself, that he should (if he thought it appropriate) make submissions in respect of the Guidance because it would be taken into account by the Tribunal as a material consideration, there can be no real doubt that he would have wished to pray it in aid of the Appellant's case on penalty: that disqualification was not appropriate (and that the Council's internal complaints procedure should have been used.)
29. While the Tribunal might or might not have been impressed by such submissions, they would at least have served to focus the Tribunal's attention on the need to make it clear in its decision whether, having taken the Guidance into account, it was of the opinion that the Appellant's conduct in the interview and in writing the letter should be equated in seriousness with the kinds of conduct described in sub-paragraphs 6.1 6.3 of the Guidance, and thus appropriately regarded as among the "other factors" meriting disqualification, and if so why; and if it could not sensibly be equated in seriousness with such conduct, whether it would be appropriate in this case to depart from the Guidance, and if so why. As it is, the Tribunal's decision, so careful in all other respects, is conspicuously silent on these questions.

30. I do not suggest that a failure to refer to the Guidance will necessarily mean that there has been an error of principle. In Sloam Bennett J. was prepared to assume that the Tribunal, as a specialist tribunal, would have had the Guidance in mind even though it was not specifically referred to in the decision (see para. 16). That assumption will be justified in those cases where the Appellant's conduct, and the Tribunal's response by way of penalty, fall c1earlywithin the Guidelines. In such cases it would be· most unfortunate if reference to the Guidelines in the Tribunal's reasons was required as a kind of mantra. However, in cases such as the present appeal, where there is (to put it at its lowest) scope for debate as to where the Appellant's conduct should be placed on the scale of seriousness, and what the appropriate response should be by way of penalty, a brief explanation of whether, and if so how, the Guidelines have been applied will be necessary, if only to ensure that the Tribunal's reasoning is adequate. On the particular facts of this case, the Tribunal's failure to engage with the Guidance· in its decision was. an error of principle. If it had engaged with the Guidance, it is difficult to see how it could reasonably have concluded that the Appellant's conduct. could be equated with the kinds of conduct described in paragraph 6 of the Guidance.

Plainly wrong

31. The full text of the letter is set out in the Tribunal's decision (para. ·7 above). It will be recalled that the Tribunal in paragraph 6.8.4 of its decision, having said that the breaches of the Code were "so serious as to warrant a substantial period of disqualification", continued "Indeed had the letter of 17^th July 2003 been the only breach of the Code such a sanction would have been appropriate."

32. Mr Giffin submitted that by this stage of the· decision any sense of proportion appeared to have entirely deserted the Tribunal. I agree. No Case Tribunal' could reasonably have concluded that disqualification, the most severe penalty available, much less a "substantial period of disqualification", would have been a proportionate ' response to the letter alone. The letter was certainly expressed in "unreasonably intemperate terms" (para. 5.3.17), and the Tribunal was entitled to conclude that it was "unfair, unreasonable and bullying in tone" (ibid), particularly bearing in mind the fact that it was written by the (then ex) Leader of a Council to a comparatively junior council officer.

30. That said, it is necessary to retain some sense of proportion. While the letter was intemperate it was neither abusive nor threatening. In terms of unfairness, unreasonableness and its bullying tone it is well towards the lower end of' the spectrum of abusive letters not infrequently received by council officials who, are merely attempting to carry out their public duties. The most severe penalty must be reserved for the worst breaches of the Code. On no rational basis could it be said that this letter was among the worst of its kind. Had it been written by an irate member of the public one suspects that it would have been regarded by the officers as "par for the course." Since it was written to an officer by an ex Leader of the Council it was an inexcusable breach of the Code, but in the light of the Guidance disqualification for the letter alone would have been a very considerable over-reaction. A warning, reprimand, or at the very most a short period of suspension, would have been a proportionate response if this one letter had been the only breach of the Code.
31. Miss Lieven emphasised the fact that the statutory regime is intended to promote the highest standards of behaviour in public life: see per Simon Brown LJ (as he then was) at paragraph 62 of R (Richardson) v North Yorkshire County Council [2003] EWCA Civ 1860, [2004] 1 WLR 1920 She submitted that the Tribunal was entitled to regard the Appellant's conduct, involving intimidation and bullying, as very serious because of the potentially corrosive influence of bullying of officers by members in local government. As a number of notorious cases had demonstrated, officers might be so intimidated that they felt unable to give objective, professional advice. If that' was allowed to happen it would be destructive of public confidence in local government and therefore as harmful as the kinds of conduct mentioned in paragraphs 6.1- 6.3 of the Guidance.
32. While I am prepared to accept the submission that, in principle bullying and intimidation of officers by Councillors could be as serious as the kinds of conduct discussed in paragraph 6 of the Guidance, the Tribunal was concerned, with this Appellant's conduct in the interview and in writing the letter about the same matter some four weeks later. It could not be suggested (and it was not suggested by Mr Giffin) that the Appellant's conduct on these two occasions was out of character. In paragraph 43 of Wilkie J's judgment in Sanders (No. 1) the Appellant is recorded as having written that:

"my hallmark is plain speaking. The electorate acknowledge my lower deck language and refusal to be influenced by blackmail, favours, friends or enemies by installing the first Peterborough City Council Conservative administration· since 1979."

33. In paragraph 6.8.3 the Tribunal said that it was "very troubled" by the fact that the Appellant still considered that his action was appropriate. The absence of any contrition or recognition of the unacceptability of his behaviour gave rise to a real· prospect that further similar behaviour would occur. Reading between the lines, the Appellant was his own worst enemy at the hearing before the Tribunal, and appears to have adopted the strategy of "when in a hole, dig deeper. " He told the Tribunal that he believed that the criticisms of his conduct were "wholly unjustified" (para 3.14). The Tribunal was not impressed with his evidence, saying that his explanations for inconsistencies were: -

"unconvincing and in some instances lacking in credibility. His manner before the Tribunal demonstrated that he is a man with a short fuse whose emotions swing quickly from relative passivity to anger, hostility and aggression which appears intimidating" (para. 4.10)"

37 . However, the Appellant was not being punished for his conduct before the Tribunal, and it must be borne in mind that the two incidents related to the same subject matter, and were not presented as "specimen charges" related to a more general course of bullying and intimidatory conduct pursued over an more extended period. While such a course of conduct might well have been reasonably equated with the kinds of behaviour described in paragraph 6 of the Guidance, these two incidents in respect of the same matter could not sensibly be so described. The ill tempered interview may not have been "a brief, inconsequential playground spat" (para 5.3.12), but it lasted less than 12 minutes. The Tribunal concluded that the letter was not:

"the product of a flash of temper. It was typed, it would have taken time to write out and it must be treated as something carefully thought out"

Since the letter was a response to Mrs Collcott's letter of the previous day, the time· for careful thought, which would have been uncharacteristic in the case of this Appellant, was plainly limited.

34. The Tribunal accepted that the Appellant's sole motive was not to obtain some personal advantage for himself, but to assist his constituent Mr A, and also took account of the fact that he was in poor health on the 17^th July 2003, having recently returned from hospital- after having suffered a heart attack (6.8.2). In paragraph 6.8.4 the Tribunal stated that it had reduced the sanction it would otherwise have imposed having regard to the mitigating factors advanced on behalf of the Appellant. That suggests that its starting point, prior to reduction on account of mitigation, must have been in excess of 2 years' disqualification. Since the maximum period of disqualification, which must be reserved for the very worst cases, is 5 years, it is difficult to see how a starting point greater than 2 years could give adequate head room for the much graver breaches of the Code which could be envisaged.
35. As the Tribunal said in paragraph 6.8.1 each case will turn upon its own facts, but it is instructive to consider the length of disqualification imposed in the cases cited before me. Disqualification was the penalty in two of those cases: Hathaway v. Ethical Standards Officer [2004] EWHC 1100 (Admin), a decision of Evans-Lombe J on 13^th May 2004, and Sloam, a decision of Bennett J. on 25^th January 2005. In Hathaway the appellant had barged past the council's traffic warden so as to strike him on his way into the Town Hall where he abused a market manager using violent language . . He pleaded guilty to assault, was fined and ordered to pay costs. His appeal against disqualification for 1 year was dismissed. In Sloam the appellant had pleaded guilty to attempting, by deception dishonestly to evade a liability (four penalty charge notices issued by his council), was fined £225 and ordered to pay £60 costs. Having regard to his personal mitigation a 1 year disqualification was imposed. His appeal against that disqualification was dismissed.
36. It will be noted that in both of these cases the Councillor concerned· had committed a criminal offence, of violence or dishonesty. In the present case the Appellant, who was not even charged with any criminal offence in respect of his bullying conduct, much less convicted of one, was disqualified for 18 months. While each case will turn upon its own facts, unless there is a degree of consistency in the penalties imposed by different Case Tribunals there· is bound to be a perception of unfairness, and hence a loss of confidence in the operation of the statutory system. No doubt the Guidance was intended to encourage consistency in the imposition of penalties. That is why it is essential that it not merely is, but can be seen to have been, properly taken into account.
37. Miss Lieven pointed to paragraph 5 of the Guidance which states that the penalties imposed by Case Tribunals will be designed not merely to discourage or prevent the particular respondent from any future compliance but also to discourage similar action by others. I accept that an apparently severe penalty in an individual case may well be justified "pour encourager les autres", but there is nothing in the Tribunal's decision ·to suggest that these two incidents, both related to a particular concern (which turned out to be justified) on behalf of a particular constituent (Mr A), were anything other than a "one off". As mentioned above, they were not presented as specimen charges in respect of the Appellant himself, and there was no suggestion that there was a wider problem of Councillors bullying and intimidating officers within the Council. The two incidents were the result of the Appellant's "short fuse" and not (on the Tribunal's own findings) symptomatic of a wider problem which needed to be discouraged. The Appellant's influence within the Council had ended in any event. He was not merely removed from office as leader, he had ceased to be a member of a political party and had been re-elected to the Council as an Independent in May 2004.

Conclusions

38. For these reasons, I am satisfied that in addition to the error of principle in failing to engage with the Guidance in its decision, if was plainly wrong (because manifestly excessive and/or disproportionate) to disqualify the Appellant for 18 months for these breaches of the Code. The appeal against penalty must be allowed. Under CPR 52.10 the Court has power to set aside or vary the Tribunal's order, or to refer the matter back to the Tribunal for redetermination. Miss Lieven submitted that the latter course would be appropriate, but she accepted that the matter would have to be remitted to a differently constituted tribunal if I concluded (as I have) that the penalty imposed by the Tribunal was manifestly excessive.· It follows that if the matter was to be remitted to a differently constituted Tribunal, that Tribunal would either have to proceed on the basis of the existing written record, in which case it would be in no better position than this Court (not having heard the Appellant give evidence), or arrange a further hearing in respect of penalty only, with the inevitable further delays in respect of incidents that took place over 2 years ago.
39. In certain cases remission may well be the more appropriate course where the outstanding issue is peculiarly within the expertise of the Tribunal. The Court must pay due deference to the Tribunal's expertise (para. 15 above), but certain matters require more expertise that is outwith the Court's experience than others. Unlike the subject matter of cases heard before some other kinds of Tribunal (involving ·eg. technical, medical or financial expertise), the issue of the appropriate penalty on the facts found by this Tribunal is relatively straightforward. While the Tribunal has considerable expertise in the field of Local Government, that expertise is shared, at least to some degree, by judges sitting in the Administrative Court.
40. For these reasons; it would not be appropriate to remit the question of penalty to a differently constituted Tribunal, and the Court should decide the matter itself. This was the course adopted by Wilkie J. in Sanders (No.1). although in that case it was conceded that he should determine the appropriate penalty if he concluded that the Tribunal's decision was plainly wrong.
41. Having regard to the Guidance I consider that a short period of suspension for a maximum of six months would have been the appropriate response to the Appellant's conduct in the interview and in writing the letter. For the letter alone a reprimand would probably have sufficed (see para. 33 above). When both incidents (the meeting and the letter) are considered, together with the lack of any contrition, suspension would be appropriate, bearing in mind the need to avoid repetition, see paras. 9 and 10.2 of the Guidance. I say suspension, rather than partial suspension as leader of the Council, because the letter was written after the Appellant had ceased to be Leader. His conduct did not warrant the most severe of the options open to the Case Tribunal. It cannot reasonably be equated with the examples given in paragraph 6 of the Guidance.
42. It was common ground before the Tribunal that the Appellant could not be suspended because he had already been disqualified for 2 years from 7^th September 2004 (para. 6.5). Both Miss Lieven and Mr Giffin accepted that this would not have been a justification for imposing a more severe penalty, disqualification, much less a substantial period of disqualification, even though it would be running concurrently with the earlier 2 years disqualification. In fairness to the Tribunal, there is no suggestion in its decision that this was the basis upon which it imposed disqualification. Since there was . no power to impose. the appropriate penalty (suspension), a reprimand would have marked the seriousness of the breaches of the Code, and repetition would in any event have been prevented by the disqualification then in force until September 2006.
43. In respect of the breaches of the Code which are the subject of this appeal, the Appellant was disqualified for some 20 weeks, from 25^th February - 14^th July 2005 (when I allowed the appeal, quashed the penalty of disqualification and reserved the question of penalty for further consideration at this adjourned hearing). On any basis that was more than a sufficient penalty, and no further penalty should be imposed in respect of these breaches, subject to the implications of the earlier disqualification.
44. The Appellant was disqualified in respect of the other matter for the period from the 7^th September 2004 to 7^th June 2005 when Wilkie.1. gave his judgment in Sanders (No.1) . Wilkie J. concluded that disqualification was not appropriate and substituted a partial suspension as Leader of the Council for a period of 12 months until 7^th September 2005. The Respondent ESO sought permission to appeal against that decision. Clarke LJ refused permission on the papers and the Respondent has not renewed the application." It follows that the Appellant was disqualified from being a Councillor for more than 10 months (from 7^th September 2004 - 14^th July 2005) when he should not have been disqualified at all. The Newborough Ward is a single member ward. The inhabitants of the ward have been deprived of the services of their elected representative for the whole of this period. In these unhappy circumstances any further penalty would be wholly inappropriate.