QUEENS BENCH DIVISON
Strand, London, WC2A 2LL
B e f o r e :
| ANTHONY CONNAL HARE
|- and -
| NICK MARCAR
BEDFORD BOROUGH COUNCIL
Samantha Broadfoot (instructed by The Standards Board for England) for the Respondent
Nigel Giffin QC (instructed by Bedford Council) for the Interveners
Hearing date: 16 January 2006
Crown Copyright ©
The Honourable Mr Justice Silber:
II. The Legislative Background of the Act
(a)There is an obligation on local authorities to adopt a code of conduct ("the Code"), incorporating the mandatory provisions of a Model Code of Conduct promulgated by the Secretary of State, which their elected members must undertake to observe: ss 50-52. In this instance, the Council's Code was in terms identical to the Model;
(b)A complaint of breach of the Code may be made to the Standards Board, which will decide whether to refer it to one of its ethical standards officers ("ESOs") for investigation: s 58;
(c)After his investigation, the ESO is empowered among other disposals to refer the matter to the President of the Adjudication Panel established under s 75, for adjudication by a Case Tribunal: s 59. The function of the Case Tribunal under s 79 is to decide whether there has been a failure to comply with the Code, and (if so) whether the nature of the failure is such that the councillor should be suspended or disqualified, or whether there should be no such sanction but simply a formal notice of the failure. The local authority must give effect to any such sanction imposed by the Case Tribunal;
(d)Suspension may be either by way of a full suspension from acting in any way as a councillor, or may be partial (e.g. suspension from membership of a particular committee): ss 79(4)(a), 83(7). The maximum period of suspension is 1 year, or the unexpired remainder of the individual's term of office if shorter: s 79(5). Disqualification as a councillor is for a maximum of 5 years: s 79(6).
III. The Background to the Complaint
"Further to your slovenly letter of 14 January 2004, signed by you as acceptable.
I do not recall attending the meeting on 4 September 2002, and did not retain the agenda or reports. The minutes are scant as regards the said land and apart from the matter regarding homelessness doubt that I would have remained, had indeed I attended for long. I certainly do not recall that Executive meeting where the subject of Land at Mill Land was discussed, and anyway I had no interest whatever in that matter at that time.
Your reference to s3 (a) of the Code of Conduct is interesting.
From the correspondence in this matter it is entirely clear I was unaware of the content of that specific Executive report until about August 2003. The content of that report seriously questions the veracity of the letter (particularly at 2.3 & 3) written by Heather Rigby to the Land Registry dated 30 June 2003, which is long after the said Executive meeting and is deliberately contrary to it's decision, the "Joyce" report, and council policy. It appears she and other officers have been peddling a deliberate lie to dupe and/or to gain unfair advantage against an elderly widow lady. I am legally duty bound to ensure such conduct, unfair advantage and lie, is brought to light, or negated. Clearly your letter, is seen by me, and doubtless by others, as justifying and defending, and fully intending to cover up such conduct and lie.
A further matter, if, which is denied, the council has continued to maintain the land as a wildlife woodland habitat, together with the maintenance regime, incurring the obvious "investment" in time, cost, and social capital; who made the decision, without any reference to members, to "write off and dispose" of such valued amenity/asset. In addition, and with that knowledge, who then agreed to waste further funds fending off the claim by Mrs Barnett with a "defence" known to found on invention and falsehood. What does equity say about "clean hands"? To embark on a matter to deliberately mislead the Land Registry, and it would also appear Mr Jones of Counsel, and maintaining such deception, and to deliberately mislead members (04.09.02), without any attempt whatsoever to correct that, is entirely wrong, and I would respectfully suggest you look to your own conduct before attempting to corner me……"
"A member must treat others with respect."
IV. Procedural Matters
V. The Procedural Challenge
"to suggest a particular penalty although our practice is to highlight matters that are either of mitigating or aggravating effect and to draw your attention to any paragraphs in the guidelines which seem particularly relevant"
VI. The Substantive Challenge
(a) any action on which a Case Tribunal decides where a respondent has been found to have failed to comply with the Code of Conduct "will be directed towards 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 non-compliance but also to discourage similar action by others" (Paragraph 5 of the Guidance).
(b) "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" (paragraph 9 of the Guidance).
(c ) "Factors which may lead to [suspension] include (a) concern that the respondent's actions have brought the body on which he or she serves, or the public service generally into disrepute [and] (b) concern as to the likelihood of further failures to comply with the Code of Conduct by the respondent .."(Paragraph 10 of the Guidance).
(d). "Circumstances [where it might be appropriate not to impose disqualification, suspension or partial suspension] include ...an inadvertent failure to abide by the Code of Conduct [and] 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" (Paragraph 13 of the Guidance).
(e) Courts "15…should not interfere with the penalty imposed by the Tribunal unless [it is] satisfied there has been some error of principle or that the penalty is 'plainly wrong'. When considering whether [a court is] so satisfied [the court] must pay due deference to the Tribunal's expertise in matters relating to Local Government" (per Sullivan J in Neville Sanders v Steven Kingston  EWHC 2132 Admin )
"4.3.1 The Case Tribunal had the benefit of detailed submissions from the respondent. However at no stage has he apologised to Mr Fordham for his accusations and his apology to Mrs Rigby was expressed in conditional terms if he had caused offence. There was no recognition of the appropriate nature of his language or the gravity of his allegations. Mr Abrahams [who appeared for the ESO ] helpfully drew the Tribunal's attention to the High Court cases relating to Mr Sanders and the dicta of Mr Justice Sullivan in the case concerning the appropriateness of disqualification. The Tribunal considered the terms of the guidance provided by the President and in particular paragraphs 10.2-suspension being appropriate where there was a risk of further breach and 13.2 a decision not to impose a penalty if there is little likelihood of a future failure.
4.3.2. The Tribunal considered that the failure to apologise was a significant aggravating feature and that, together with the lack of understanding of the gravity of his allegations was a matter of deep concern. Given the gravity of the allegations of an essentially criminal nature against professional staff in senior positions of trust in a major public body a reprimand would be wholly inadequate. The lack of understanding and insight shown by the Respondent caused the Case Tribunal serious concern that this conduct was likely to be repeated.
4.3.3. Accordingly the Case Tribunal concluded that a significant period of suspension was the appropriate sanction in these circumstances and determined that a suspension from the service of the Council for a period of 6 months from the date of hearing was appropriate. The decision of the Tribunal was unanimous".
VII. The Substantive Challenges
"4.5. 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 that letter alone a reprimand would probably have sufficed…".
"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 were merely attempting to carry out their public duties…..On no rational basis could it be said that this letter was amongst the worst of its kind".
(i) Ms Heather Rigby, a principal conveyancer and other unnamed officers, were guilty of "peddling a deliberate lie to dupe/or to gain unfair advantage against an elderly widow lady";
(ii) Mr Fordham, by his letter was guilty of "justifying and defending, and fully intending to cover up such conduct and lie";
(iii) Officers of the council were guilty of mounting a defence to Mrs Barnett's claim which was "known to be found on invention and falsehood" and of deliberately misleading the Land Registry, and members of the Council without any attempt whatsoever to correct it.
(iv) These accusations were apparently directed towards Mr Fordham (at least), since they were followed by an invitation to "look to your own conduct".
(a) he saw Ms Rigby three weeks after the letter of 19 January 2004 had been sent and she did not complain. This does not lessen the seriousness of his conduct in making extremely serious and unjustified allegations for which he had not apologised. He has expressed regret for the contents of the letter of 19 January 2004 but that is not the same thing as apologising soon after writing the letter, which he did not do;
(b) his constituents will suffer by his suspension especially as his fellow councillor for his Ward has some conflicts of interest which preclude him from becoming involved in some matters concerning their constituents. The Guidance makes clear that the crucial factor when considering the punishment for a council member who behaves as the appellant did, is to impose penalties "directed towards upholding and improving the Standards of Conduct expected of Members;
(c) the Tribunal misdirected itself as to the gravity of the appellant's conduct but the allegations made by the appellant against senior named officials were exceedingly serious, such as stating, for example that "officers have been peddling a deliberate lie to dupe and/or to gain unfair advantage against an elderly widow lady". In my opinion, it is not easy to envisage many more serious allegations against Council officials than those allegations contained in the letter of 19 January 2004;
(d) the Tribunal erred in attaching importance to the risk of the appellant failing to comply with the Code in future. It must not be forgotten that the Tribunal had the opportunity of hearing the appellant when he appeared before them and as fact-finders, they were entitled to reach a decision based on their evaluation of the appellant, whose submissions they heard over a substantial period of time. They were also entitled to take into account his failure to apologise properly to the people referred to in the letter of 19 January 2004. The Tribunal was entitled to reach the conclusion it did on this issue.
"considered that the failure to apologise was a significant aggravating feature and that, together with the lack of understanding of the gravity of his allegations was a matter of deep concern. Given the gravity of the allegations of an essentially criminal nature against professional staff in senior positions of trust in a major body a reprimand would be wholly inadequate. The lack of understanding and insight shown by the Respondent caused the Case Tribunal serious concern that this conduct was likely to be repeated"