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
		04/06/2008

Mr Justice Wyn Williams :

1. In these proceedings the Claimant challenges a decision of the Defendant to require him to retire from service as a member of the South Wales Police Force. The decision was made by the Defendant in exercise of its powers under Regulation A19 Police Pension Regulations 1987. That Regulation reads as follows:-

"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."

2. On 12 February 2008 Forbes J directed that there should be a "rolled-up" hearing of the application for permission with the substantive application for judicial review to follow if permission was granted. As I indicated during the course of the proceedings I grant permission without hesitation. From the outset, in effect, the hearing before me took the form of a substantive challenge.

Background Facts

3. The Claimant was born on 11 May 1958. He joined the South Wales Police Force as a police officer in December 1976. Accordingly the Claimant was due to reach 30 years' service in December 2006.
4. In the summer of 2006 the Claimant was made aware of a scheme called the "30+ Retention Scheme" (hereinafter called "the Scheme"). As I understand it the Scheme was introduced to him by employees of the Defendant who work for its Human Resources Department.
5. The Scheme is a non-statutory scheme which was first introduced in December 2002. Its aim was to give managers in the police service the scope to retain officers who were entitled to retire with maximum pension benefits and who wished to retire. At the time of the inception of the Scheme a police officer of the rank of constable was entitled to retire with maximum pension benefits after serving a period of 30 years; hence its name.
6. The main points of the Scheme were itemised in an agreement made in 2002 and known as the Police Negotiating Board Agreement. The agreement, itself, was not put in evidence but, as I understand it, the salient points of the Scheme are set out in a document dating from December 2002 and which was disclosed in these proceedings by the Interested Party (Bundle 1 pages 226 to 232). I quote:-

"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."

7. The Document produced in December 2002 contained substantial information about the criteria for joining the Scheme. It also made it clear that a person's eligibility to remain within the Scheme would be assessed annually. Under the heading "Criteria for Annual Reviews" the document reads:-

"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."

8. Having been informed about the Scheme, the Claimant sought out more information about it. He describes in his witness statement dated 30 January 2008 how he spoke to two employees of the Defendant within its Human Resources Department named David Law and Pam Horne and what they said to him.
9. On 1 August 2006 the Claimant completed an application form to join the Scheme. Part of the application form consisted of a series of declarations made by the Claimant. Those which are pertinent for present purposes are as follows:-

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)."

10. The figure "5" before the word "year(s)" was written on to the form.
11. The Claimant noticed the reference to Regulation A19. In his witness statement the Claimant describes how he telephoned the Defendant's Human Resources Department to make an enquiry about its significance. He describes how he spoke Mr Law and Ms Horne and suggests that they led him to believe that the Defendant would not invoke Regulation A19 and require the Claimant to retire provided he received satisfactory appraisals and that he was performing his duties in a satisfactory manner. It was suggested to him, so he says, that he would be contributing to the efficiency of his Force provided he performed his duties properly.
12. I should say that Mr Law and Ms Horne do not accept that they said the things attributed to them by the Claimant. At one stage of the proceedings it was contemplated that the Claimant, Mr Law and Ms Horne would give oral evidence so that specific findings of fact as to what was said between them could be made. However, at it transpired, the Claimant was ill on the day of the hearing and, accordingly, both parties agreed that the hearing would proceed without oral evidence and that it would not be possible to make specific findings of fact as to what was said to the Claimant.
13. The application form completed by the Claimant contained space for his Line Manager and his Divisional Commander to make comments about the application. Each, wholeheartedly, supported the Claimant's application. The Divisional Commander commented:-

"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.

Recommend"

14. The Claimant's application was accepted. At some point in time in late December he resigned as a detective constable. On 3 January 2007 he commenced work pursuant to the Scheme.
15. On 1 October 2007 Ms Horne wrote to Superintendent Jones, the Divisional Commander, asking him to complete an annual review form in respect of the Claimant with a view to a decision being made about whether or not the Claimant should be retained within the Scheme. Ms Horne specifically asked the Divisional Commander to indicate to her whether "there is a continuing need for this post as per the original business case".
16. On 15 October 2007 the Claimant's Line Manager wrote:-

"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."

17. On 6 November 2007 the Divisional Commander wrote:-

"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."

18. The person tasked with making recommendations about whether or not the Claimant should be retained on the Scheme was Chief Superintendent Lewis. On 20 November 2007 he wrote to Superintendent Jones in respect of three officers, including the Claimant. The letter appears at pages 76 and 77 of Bundle 1 and it should be read in full. However, it is important that I quote the following part of it:-

"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."

19. In his witness statement Chief Superintendent Lewis says that he received the documentation about the Claimant which had been completed by his Line Manager and the Divisional Commander. He correctly points out that the documentation had been completed before he sent the letter of 20 November 2007 to the Divisional Commander and that being so he decided to speak to the Divisional Commander about the Claimant's application.
20. For some reason which is not easily explicable Chief Superintendent Lewis says nothing about the content of that conversation in his witness statement. He simply says that following the conversation he assessed the Claimant's application and felt that whilst the Claimant was undoubtedly a valued member of staff his application did not meet the criteria which had to be applied. Accordingly on 29 November 2007 he made the decision that the Claimant should not be retained within the scheme after completing one year.
21. This decision was first conveyed to the Claimant orally on 5 December 2007. Thereafter, the Claimant was notified of the decision by letter dated 5 December 2007 from Deputy Chief Constable Vaughan. On 7 December 2007 the Claimant wrote to the Chief Constable. The letter is long and detailed and it was treated by the Defendant as an appeal against the Defendant's decision communicated in the letter of 5 December 2007. On 17 January 2008 Mr Woods, the Defendant's Director of Human Resources, responded. Later in this judgment I will deal with these letters in greater detail.

The Issues

22. It is common ground that the following issues arise for determination:-

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?

23. Mr Jeremy Johnson, Counsel for the Defendant, submits that the decision to require the Claimant to retire is not amenable to judicial review. He says that the decision taken was not a public law decision and it did not have any disciplinary connotations. It was a decision which can properly be categorised as routine, operational and managerial and one which was concerned with the efficient organisation of the South Wales Police. He submits that the circumstances of this case are analogous to those which arose in R (Tucker) v Director General of the National Crime Squad [2003] ICR 599.
24. In Tucker a detective inspector was seconded for five years to the National Crime Squad. Following a covert operation into drug-related crime several officers who had been seconded to the National Crime Squad were arrested on suspicion of drug-related offences. Detective inspector Tucker was not one of those officers but his secondment was, nonetheless, summarily terminated. He was returned to his home force but without any disciplinary implications. He was simply told that the Deputy Director General of the National Crime Squad had, as result of information provided to him, lost confidence in his management performance. Additionally, he was told that the lack of confidence was not related to the criminal investigation. Detective Inspector Tucker sought judicial review of the decision to end his secondment. Harrison J held that the decision in question was amenable to judicial review but that the Director General of National Crime Squad had acted fairly in making his decision notwithstanding the absence of reasons and lack of opportunity for the Applicant to make representations. On appeal to the Court of Appeal the Judge's finding that the officer had not been treated unfairly was upheld; however, the Court also found that the decision made was not susceptible to judicial review.
25. The substantive judgment in the Court of Appeal was given by Scott Baker LJ. For the purposes of this judgment, however, it is sufficient that I refer to the head note of the law report so as to identify the relevant points of principle which emerge from his judgment. The head note reads as follows so far as relevant: -

"….. 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……"

26. Mr Westgate, Counsel for the Claimant, submits that there are important factual distinctions between the instant case and that of Tucker. Firstly, the instant case involves the Claimant's dismissal in the sense that he was being forced to retire. Secondly, the decision in this case was not personal to the Claimant in the same way that the decision in Tucker was personal to him. The instant case involves the application of general policy to a number of police officers within the Scheme. If the Defendant is correct in its interpretation of a regulation A19, the Defendant is entitled to take many features into account when deciding whether or not to retain the Claimant within the Scheme which are wholly unrelated to the Claimant's personal performance. The third distinction to which Mr Westgate draws attention is that the instant case involves the exercise of a statutory power whereas, in Tucker, that did not arise.
27. It seems to me that the distinctions drawn by Mr Westgate between the decision in Tucker and the instant case are valid ones. In my judgment the features to which he draws attention tend, strongly, to support the proposition that the decision under challenge in this case is susceptible to judicial review.
28. In R v The Cleveland Police Authority ex parte Rodger [1998] EWHC Admin 726 a serving police officer, Keith Rodger, brought judicial review proceedings against the Cleveland Police Authority. His claim arose out of the following factual circumstances. From March 1996 Mr Rodger had been away from work as a result of ill-health. On 26 February 1997 he was required by the Chief Constable to retire on medical grounds. He was actually served with a notice of medical retirement on 3 March 1997. At or about the time the notice was served it also came to the notice of officers within the force that allegations had been made about Mr Rodger which, in the ordinary course of events, would have been subject to disciplinary inquiry and proceedings. In consequence the Assistant Chief Constable wrote to Mr Rodger on 18 March 1997 to the effect that the notice of retirement served upon him was withdrawn and that Mr Rodger's retirement had been deferred. In the proceedings by way of judicial review Mr Rodger challenged the decision deferring his retirement in the sense that he argued that no power to defer existed. Collins J found for the Claimant and, in doing so, of course, accepted that the decision in question was susceptible to judicial review. During the course of his judgment reference was made to the earlier decision of R v Kent Police Authority and others ex parte Godden [1971] 2 QB 663. During the course of his judgment in that case Lord Denning said:-

"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".

29. It seems to me that the decision in Rodger and the principle quoted from the judgment of Lord Denning in Godden powerfully support the proposition that a decision of the kind in question in the instant case is susceptible to judicial review.
30. It is common ground that the dismissal of a police officer as a consequence of disciplinary process is a decision which is susceptible to judicial review. I can think of no sensible reason why a decision which forces retirement upon a police officer should not be similarly regarded. I say that particularly in the present context which, as I will develop shortly, involves the consideration of issues relating not just to the particular police officer but to wide-ranging issues relating to the efficiency of the Police Force as a whole.
31. Accordingly, I am firmly of the view that the decision taken by the Defendant on 5 December 2007 to require the Claimant to retire is susceptible to judicial review.

The Interpretation of Regulation A19

32. Mr Westgate submits that the Defendant erred in principle in its approach to the interpretation of regulation A19. He submits that the Defendant treated it as authorising redundancies or dismissals for reasons not connected with the officer's personal effectiveness. He concedes that as a matter of language the term "general interests of efficiency" is capable of including matters which are wider than the officer's personal effectiveness but he submits that in the particular context of these Regulations the phrase should be interpreted as being confined to an investigation of the officer's personal effectiveness.
33. Mr Johnson contends that the words "general interests of efficiency" relate to the efficiency of the Force, rather than the efficiency (or effectiveness) of the individual officer. He submits, in short, that that is the natural meaning of this phrase and there is absolutely no reason to give the phrase a more restricted meaning.
34. The words of regulation A19(2) must be read in the light of the Regulation as a whole and, of course, the statutory enabling legislation. Having said that, I am left in no doubt that Mr Johnson's interpretation of Regulation A19 is the one to be preferred. It seems to me to be clear that the phrase "general interests of efficiency" is addressed to the Force as a whole and cannot, sensibly, be confined to a meaning which would require the Defendant simply to consider the efficiency of a particular officer. At paragraph 12 of his Skeleton Argument Mr Johnson advances a number of reasons why the interpretation of A19 which he puts forward should be preferred. In my judgment each of his points are valid. Ultimately, however, I base my conclusion on the straight forward proposition that the natural meaning of the words used in their appropriate context is that which is advanced by Mr Johnson.

The Third Issue

35. As a consequence of my view as to the second issue the Defendant was fully entitled to take into account factors other than the personal efficiency and effectiveness of the Claimant. It is necessary to consider, with some care, however, precisely what the Defendant did take into account when the decision in question was made.
36. As from 1 April 2007 a new chief officer team was put in place for South Wales Police Force. The team was the Chief Constable, Deputy Chief Constable, three Assistant Chief Constables and the Directors of Human Resources, Legal Services and Finance. According to a witness statement prepared by Deputy Chief Constable Vaughan (DCC Vaughan) the arrival of the Directors of Finance and Human Resources provided the team with a degree of financial clarity that had been missing hitherto. It also provided real opportunities to realise greater efficiencies. That was important, so he says, since at about the same time South Wales Police Force was notified of the future three year funding settlement. In the light of this settlement it became clear that the financial future was bleak – I choose that word simply because that is the word chosen by DCC Vaughan in his witness statement.
37. This bleak future led to a number of initiatives one of which was an initiative known as Workforce Transformation. Workforce Transformation was and is the South Wales Police version of the national drive for Workforce Modernisation. The initiative involves two main concepts. The first concept is the transformation of the workforce so that police officers only occupy roles where they require a warrant card and are replaced by civilian police staff for other duties. The second concept involves a greater degree of scrutiny over sickness, restrictive and recuperative duty.
38. DCC Vaughan says that in order to create the necessary financial savings required to properly police the area of the South Wales Police Force it is necessary to "transform" some 350 – 450 police officer roles. That in turn means reducing the police officer establishment. It is in this context that the issue of the Scheme and the officers within it was considered.
39. DCC Vaughan says that he had most recently worked in a Force (before the SWP Force) where there were very few officers on a 30+ Scheme. Consequently he was surprised to find that South Wales Police Force had many such officers. According to DCC Vaughan, as I understand his evidence, the average number of officers engaged in a scheme in any particular Force is 15 to 30 whereas the figure is 75 for South Wales Police.
40. DCC Vaughan says, quite openly, that the removal of officers from the scheme was "an integral part of us getting near the required reduction of 350/450 police officers."
41. On 16 July 2007 at a meeting between the Police Federation and Chief Officers the issue of the scheme was discussed. DCC Vaughan informed Police Federation representatives that the chief officers intended to instigate a review of the Scheme and that, in the past, the scheme appeared to have been applied in an inconsistent manner across the force. The minute of meeting exhibited by DCC Vaughan supports what he says in his witness statement.
42. In September 2007 members of the Chief Officers Team commenced a series of briefings in each part of the Force area; part of this process was to provide feedback relating to the scheme and the fact that it was being reviewed. One of the messages being put forward was that there were officers within the scheme who should not be. DCC Vaughan said that he personally delivered this message in the presence of the secretary and other officers of the Police Federation.
43. The review of the Scheme led the chief officers to conclude that the criteria for entry into the Scheme, in the past, had not been applied rigorously.
44. As I have said earlier, the officer actually tasked with making decisions about whether to retain officers within the scheme was Chief Superintendent Lewis. He began his work, as I understand it, after a meeting on 26 October 2007. By the time Superintendent Lewis started his task a moratorium had been put in place in relation to all new applications for the Scheme. He was asked to review all requests for retention on the Scheme and he was told that "NPIA criteria were to be applied robustly on a force wide basis in a fair and consistent manner."
45. As I understand it, by late autumn 2007 a draft document had been circulated the purpose of which had been to replace and update the guidance issued in December 2002 about the Scheme by the NPIA. The provisions which are of relevance in the instant case are to be found in section 7 under the heading "Renewing and Extending Appointments" and section 8 under the heading "Concluding a 30+ Appointment".
46. Paragraph 7.1 to 7.4 of the document reads as follows:-

"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.

8.2 ………..

8.3 ……….

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."

47. In his witness statement Superintendent Lewis sets out the criteria which he used as the basis for his assessment of whether or not an officer should be retained within the scheme. It is to be observed that these criteria mirror almost exactly the criteria specified in the draft document for appointment to the Scheme. The criteria specified by Superintendent Lewis are:-

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"?"

48. Superintendent Lewis says, and I have no reason to doubt it, that he applied the criteria and asked himself the questions set out above when assessing whether or not the Claimant should be retained within the scheme.
49. In the letter which DCC Vaughan wrote to the Claimant dated 5 December 2007 DCC Vaughan made clear to the Claimant that, in the past, managers had not rigorously applied the relevant criteria when deciding whether or not an officer should join the Scheme or be retained within it. He then went on to inform the Claimant of the criteria by which the decision to retain or dispense with his services had been made. Having so informed the Claimant DCC Vaughan informed the Claimant, in effect, that he did not meet the criteria for being retained within the Scheme. It is to be observed that the criteria specified by the DCC Vaughan were the criteria which Superintendent Lewis had used in assessing the Claimant's position although, it is to be observed, that DCC Vaughan did not spell out to the Claimant the sort of questions which Superintendent Lewis asked himself when applying the criteria.
50. The Claimant's letter to the Chief Constable dated 12 December 2007 is a robust rebuttal by the Claimant of the suggestion that he did not meet the criteria. The letter consists of 8 pages of detailed arguments by the Claimant justifying the view that he should have been retained within the Scheme.
51. As I have indicated, a reply was sent by Mr Woods. Mr Woods's letter does not engage in any detail at all with the Claimant's letter of 12 December. The first page of the two page reply consists of generalised statements about the Scheme and the substance of the following paragraphs is simply to assert that regulation A19 empowers the Defendant to require an officer to retire and this regulation has been applied in the context of officers within the Scheme. The substantive response of Mr Woods to the letter of 12 December 2007 simply says this: -

"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."

52. It seems to me to be clear that there was a very distinct shift in the attitude of the senior management team of the Defendant to the Scheme from 1 April 2007 onwards. Prior to that date the likelihood is that although it was necessary to make a business case for accepting an application by an officer to join the Scheme that issue was looked at very much in the context of the officer's personal qualities and the fact that, in the short term, less money would be paid to the officer than if he were permitted to retire. The Claimant's joining the Scheme was approved in late 2006. Nothing in the evidence presented by the Defendant suggests that before he joined the Claimant was given any real reason to suppose that his continuation within the Scheme was likely to be truncated at an annual review on grounds which related not to his personal efficiency or effectiveness but rather by reference to much more wide-ranging considerations. In making this point I do not, of course, suggest that the Claimant was given assurances that his continuation within the Scheme would relate only to his personal effectiveness. To repeat, I simply make the negative finding that nothing was said to the Claimant which would suggest that his future within the Scheme might depend on factors unrelated to his own performance. That is hardly surprising. The document which then existed and which spelled out the criteria for annual reviews clearly emphasises the fact that annual renewal will depend upon continuing effectiveness and commitment to remain in the service. Nothing in the document existing at the time of the Claimant's successful application to join the Scheme suggested that much wider factors relating to the efficiency of the South Wales Police Force generally would be taken into account at annual review.
53. Equally clearly the criteria used by Superintendent Lewis in making his decision about the Claimant were based upon a draft document produced after the Claimant had joined the Scheme. Mr Westgate, on behalf of the Claimant, submits that it is "conspicuously unfair" that the Defendant has applied to the Claimant a different set of criteria when judging whether or not to retain him within the Scheme than that which the Claimant expected would be applied.
54. I am not convinced by this argument. It is true that at the time the Claimant was accepted into the Scheme the only explanatory document in existence suggested that any decision on annual review about whether or not to retain the Claimant would be taken very much by reference to his own personal performance. There was no suggestion, however, that the Defendant was in any way binding itself to proceed on that basis indefinitely. The application form signed by the Claimant made it clear that the Defendant might invoke regulation A19. Upon its true interpretation regulation A19 empowers the Defendant to take into account factors which are much wider than the personal efficiency of a particular officer. In my judgment in the absence of proof of a specific representation upon which the Claimant relied it is difficult to see why a finding of "conspicuous unfairness" should be made simply because there has been a change in the approach to the criteria to be applied before invoking A19. I note also that the Defendant at least made it clear in the Autumn of 2007 that it was intending to apply the relevant criteria in a much more rigorous way.
55. However it does seem to me that a necessary incidence of the finding that the Defendant's decision in this case is susceptible to judicial review is that the Claimant had the right to be heard about any proposed decision to force him to retire before it was made. As I understand it, Mr Johnson does not seek to argue the contrary. True it is that the Defendant obtained information about the Claimant from his Line Manager and the Divisional Commander. That information, however, amounted to no more than a few lines of writing. As I have said Superintendent Lewis apparently spoke to the Claimant's Divisional Commander but he has chosen not to disclose what was said in that conversation. While I accept that the Divisional Commander was likely to have spoken in very supportive terms about the Claimant, I simply do not know whether or not he descended into much detail in offering that support.
56. The need for the Claimant to have been alerted to the proposed decision before it was made is graphically illustrated by his 8 page letter in response to the actual decision. On any view, in my judgment, that letter amounts to a powerful submission as to why the Claimant should be retained. It contained the sort of information, in my judgment, which a decision maker would need to weigh in the balance when applying the criteria which were applied in this case.
57. In my judgment the complete absence of any procedure whereby the Claimant could make representations about the proposed decision to make him retire before it was made and the failure to see representations from the Claimant rendered the decision unlawful.
58. In the particular context of this case I do not think that the fact there was an "appeal procedure" cures that illegality. I simply cannot detect from Mr Woods' letter of 17 January 2008 to what extent, if at all, he had regard to the numerous issues which were raised by the Claimant in the letter of 12 December 2007.
59. In reaching this last conclusion I would not want it to be thought that I am laying down any kind of general proposition to the effect that a decision maker on an appeal against a decision to insist upon an officer retiring pursuant to regulation A19 must give detailed reasons for his decision. I do not need to do so in the particular circumstances of this case. I say that for this reason. The unlawfulness which I have found to have existed relates to the failure to provide any means by which the Claimant could make any representations and/or the failure to seek such representations before the decision was made. That being so it seems to me that the decision maker on an appeal was bound to engage with the representations which were in fact made when making his decision. To repeat there is simply no means of knowing that he did so given the terms of his letter on 17 January 2008. In the particular context of this case it was necessary for Mr Woods to demonstrate why it was that he was rejecting the Claimant's detailed representations.
60. Mr Westgate also submits that the decision of 5 December 2007 was unlawful because it was irrational. In summary, irrationality is alleged because no attempt was made to assess the Claimant as against other members of the Scheme or, for that matter, other members of the force who fell within Regulation A19.
61. In the light of my view that the decision was unlawful on the grounds that the Claimant had not been afforded an opportunity to be heard before it was made it is not necessary, strictly, to consider this aspect of the case. Further, while there was some evidence put before me which enabled Counsel to make arguments about the rationality of the decision I was left with the distinct impression that the witness statements are but a short summary of the process – no doubt painful – which the Defendant has to undertake in reducing its workforce. In these circumstances I do not propose to make any kind of ruling on the challenge based on rationality. I content myself with saying that I can see the force in the submission that some kind of comparative exercise should be made so as to ascertain those persons who are least suitable to be retained. Whether a failure to undertake such an exercise in the context of a Police Force renders a decision not to retain an individual officer within the Scheme irrational must be a matter better debated and determined in a case where both sides have adduced evidence which is specifically focused on that point.
62. I am conscious that I have not dealt with some of the submissions made by both Counsel. Particularly, I have not dealt with how issues such as "conspicuous unfairness" and "legitimate expectation" may be discreet topics or, as may be the case here, amount to the same thing. I have not done so, essentially, since it would make no difference to the outcome, on my analysis of the case, and there is a clear need to provide the parties with this judgment sooner rather than later.
63. In my judgment this challenge succeeds on the basis I have indicated. Accordingly, I quash the decision of the Defendant which requires the Claimant to retire.