QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN ON THE APPLICATION OF
|- and -
SOUTH WALES POLICE AUTHORITY
|- and -
NATIONAL POLICING IMPROVEMENT AGENCY
for the Claimant
Mr Jeremy Johnson (instructed by The Director of Legal Services South Wales Police)
for the Defendant
No appearance or representation by or an behalf of the Interested Party
Hearing dates: 13 May 2008
Crown Copyright ©
Mr Justice Wyn Williams :
"A19 Compulsory Retirement on Grounds of Efficiency of the Force
1. This Regulation shall apply to a regular policeman, other than a Chief Officer of Police, Deputy Chief Constable or Assistant Chief Constable, who if required to retire would be entitled to receive a pension of an amount not less than 2 thirds of his average pensionable pay
2. If a police authority determine that the retention in the force of a regular policeman to whom this Regulation applies would not be in the general interests of efficiency, he may be required to retire on such date as the police authority determine."
"The main points of 30+ agreed by the PNB are:-
- It will be open to ranks below ACPO level where a business case can be made for it.
- Each officer who wishes to participate will have to apply for selection.
- Ability to take a tax-free retirement lump sum, under Police Pensions Scheme commutation provisions.
- Re-engagement at former rank and pay level
- Pension abatement lifted to allow for payment of sufficient pension to restore the pre-retirement earnings level, including any replacement allowances lost on retirement.
- Access to Special Priority Payments of up to £5000 on the same basis as other officers.
- Participants will not be able to re-join the Police Pension Scheme, but they will be able to purchase additional benefits by taking out a personal pension."
"27. The officer's contract of re-engagement would be subject to annual renewal depending on his or her continuing effectiveness, satisfactory disciplinary record and commitment to remaining in service. Although the effectiveness and commitment will normally go together, there may be cases where an officer is still competent but starting to show a loss of interest in the job. It is important, if the 30+ is to work effectively, that officers are not kept on beyond the point where they really want to participate. Annual medical checks would not normally be required.
28. There are no provisions at present in the Police Regulations for fixed-term appointments for officers below ACPO rank. The power not to renew a 30+ appointment will be derived from regulation A19 of the Police Pensions Regulations Compulsory Retirement on the grounds of the efficiency of the force. Because of the system of annual review, regulation A19 should normally be used only to terminate a contract of re-engagement at a date before its expiry/renewal date.
29. Unless expressly stated otherwise in the scheme, a contract of re-engagement may be terminated under the Police Regulations, the Police Pensions Regulations, the Police (Conduct) Regulations and the Police (Efficiency) Regulations. Accordingly a participant may be compulsorily retired under regulation A20 of the Police Pensions Regulations (on grounds of ill-health). Moreover, a contract of re-engagement may not extend beyond the maximum period of 5 years for which compulsory retirement on grounds of age may be postponed at the discretion of the Chief Officer of Police under Regulation A18 of the Police Pensions Regulations. 30+ officers, as with all officers, have the right under regulation 16 of the Police Regulations (1995) to give one month notice to terminate their contract."
- I understand that I will be deemed to be an officer with 30 years' reckonable pensionable service for the purposes of regulations A19 (compulsory retirement on grounds of the efficiency of the force) and B4 (policeman's injury award);
- I understand that the power under regulation A19 will normally be used only for the purpose of not renewing my 30+ appointment after an annual review. Where A19 is used mid-year, I will be given 28 days notice;
- I understand that my term of re-engagement is also subject to the provisions of the Police Regulations, the Police Pensions Regulations, the Police (Conduct) Regulations and the Police (Efficiency) Regulations, unless expressly excluded or modified by the terms of this agreement;
Immediately above the space for the Claimant's signature in this section of the application form there appears the following: -
"I undertake to serve for 5 year(s) subject to annual renewal not being withheld under regulation A19 of the Police Pensions Regulations or notice by me in accordance with regulation 16 of the Police Regulations (1995)."
"DC Hodgson is a very experienced detective. He has skills of specialist nature particularly in relation to major case enquiries and complex fraud and financial issues. He has been trained on a range of skills to match throughout his career. The CID is currently a difficult department into which to recruit.
"The officer's role is vital to the Department in which he serves. He is a professional, efficient and effective individual who performs at the highest level. I fully support his retention on the 30+ scheme and consider him to be a continued asset to the organisation."
"DC Hodgson is an experienced detective performing front-line CID duties. This division has a skills shortage in this area and struggles to recruit officers of sufficient calibre in the CID. He is an extremely competent officer who contributes to performance in a very significant way and acts as a mentor and role model for more junior investigators."
"As you know the 30 plus retention scheme should only be available to officers meeting the scheme criteria, namely:
The loss of the officer would impact on the operational effectiveness of the force.
They have specialist skills, knowledge and experience which, despite succession planning remain difficult to replace in the short term.
And in terms of the wider workforce you should consider the impact of retention on:
The impact on promotion and career development opportunities of others
Force policy of the recruitment of new officers and its diversity objectives."
i) Is the decision taken by the Defendant to invoke Regulation A19 and insist upon the Claimant's retirement susceptible to judicial review?
ii) Did the Defendant correctly interpret Regulation A19 when making its decision?
iii) Did the Defendant act lawfully when it made its decision on 5 December 2008 and, if not, what is the significance, if any, of the fact that the decision was apparently subject to some kind of appeal process?
I deal with each of these issues in turn.
Is the Defendant's decision susceptible to judicial review?
" .. there was no single test or criterion by which the question whether a decision had a sufficient public law element to justify intervention by judicial review could be determined; that the susceptibility of a decision to the supervision of the Courts had to depend, in the ultimate analysis, on the nature and consequences of the decision and not the personality or individual circumstances of the person called on to make the decision; that three things had to be identified, namely, whether the Defendant was a public body exercising statutory powers, whether the function being performed in the exercise of those powers was a public or private one and whether the Defendant was performing a public duty owed to the Claimant in the particular circumstances under consideration; that, applying those criteria, it was clear that the third criterion was not met, since the Director General had not been performing a public duty owed to the Applicant when he sent him back to his home force because the decision taken in relation to the Applicant was specific to him; that there was a clear line between the disciplinary issues where an officer had the right to public law safeguards such as fairness, and operational and management decisions where the police were entitled to run their own affairs without the intervention of the Court; but the fact the Applicant could not invoke a private law remedy, though a factor, was not determinative "
"I am clearly of opinion that the decisions leading to compulsory retirement are of a judicial character and must conform to the rules of natural justice. They are, first, decision by the Medical practitioner or on appeal by the Medical referee, and secondly, the inquiry by the police authority themselves".
The Interpretation of Regulation A19
The Third Issue
"7.1 Even though 30+ appointments can initially be granted for up to 4 years, any appointment is subject to an annual review process, during which the requirement to keep an officer engaged on the scheme should be as closely examined as it would be on initial application to the scheme.
7.2 Forces should have a formal and consistent procedure in place for re-visiting the initial application and business case (where applicable) to assess the necessity and validity of keeping an officer engaged on the scheme. Forces should refer to the original justification for the retention of the officer and consider whether or not this is still valid. For instance, if the officer was contained for succession planning, has this been completed since? If the officer was contained for a specific project, has this project come to an end? In the case of hard-to-fill positions is there now another officer interested in the 30+ officer's role where before there was no other suitable candidate?
7.3 If the reasons listed in the original application or business case still apply and the officer wishes to continue on the scheme, the force may effectively renew the officer's 30+ appointment for another year, subject to the 7 year maximum. If the original reasons no longer stand but there are new reasons for further retaining the officer and a new business case can be made for their redeployment, the officer's 30+ appointment may also be renewed. However, where the original reason for retention or business case no longer stands and no business case can be made, the officer's 30+ appointment should be terminated either through voluntary resignation or by invoking regulation A19 of the Police Pensions Regulations 1997.
7.4 For any annual review of the process and regardless of the outcome, an annual review form should be completed .This form serves as a record for any decisions taken and as evidence to back these up. This is especially crucial when regulation A19 is to be applied as the reasons presented at the annual review can be used in defence of invoking this regulation should the officer appeal. This prevents duplication of efforts."
The relevant parts of section 8 read:-
"8.1 A 30+ placement may be terminated under the Police Regulations, the Police Pensions Regulations, the Police (Conduct) Regulations, and the Police (Efficiency) Regulations.
Terminating an appointment through Regulation A19
8.4 The power not to renew a 30+ appointment was agreed by the PNB to be derived from regulation A19 of the Police Pensions Regulations .Officers applying for the scheme sign a declaration explicitly accepting that this regulation may be used to discontinue their 30+ appointment.
8.5 A19 must not be used as a short cut or substitute for the Police (Conduct) Regulations. However, apart from that restriction, A19 will normally be the most appropriate way of cutting short a 30+ placement where the reasons (or business case) for retaining the officer has ceased to apply.
8.6 Due to the annual review system, A19 should not normally be used to terminate a 30+ appointment on a day prior to its expiry/ renewal date. Where A19 is used at the annual review of an officer's 30+ appointment, the reasons given in this context also serve as the reason for using A19 (as described above). If A19 is used outside of the annual review process, the reasons given should include a specific justification for terminating the placement at that point. Officers should be given one month notice of such a decision. This will provide the officer with the time to make any necessary arrangements including time to decide whether to make representations to the Chief Constable/ HR Director. The opportunity should also be given to the officer to resign voluntarily.
8.7 Applying regulation A19 should under no circumstances reflect badly on the officer and forces should ensure that termination of appointment through regulations in A19 is deemed no less honourable than any other way of leaving the service. It should be remembered that it is meant to be have been an achievement to be accepted onto the 30+ scheme in the first place."
- First the loss of the officer would impact of the operational effectiveness of the force.
- They have special skills, knowledge and experience which, despite a succession planning remain difficult to replace in the short term.
In terms of the wider force you should consider the impact of retention on:
- The impact of promotion and career development opportunities of others
- Force's police on the recruitment of officers and of its diversity objectives.
In applying these criteria to each officers' application Superintendent Lewis says that he asked himself a series of questions.
"1. Does the officer occupy a role in which specialist skills are not easily replaced on a force-wide basis?
2. Is this a role into which we could and do recruit officers with relative ease?
3. Is this a role into which we would potentially transfer an officer subject to workforce transformation who has appropriate skills?
4. Is this a role one which itself can be transformed?
5. Does this officer possess a skill for which they are accredited to train or pass onto other officers and there are insufficient other such accredited/qualifying officer to deliver the skill in the force?
6. Is there any other reason that the loss of this officer will impact on the "operational efficiency of the force"?"
"I have carefully considered this matter and reviewed your position in accordance with the force 30+ scheme appeals procedure. Having conducted this review, I am satisfied that the decision not to grant a further 12 month extension is correct in all circumstances. As set out in the guidance this appeal's decision is final."