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Cite as: (2009) 107 BMLR 22, [2009] EWHC 88 (Admin)

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		Neutral Citation Number: [2009] EWHC 88 (Admin)
		Case Nos: CO/7812/2007, CO/8734/2007

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

Royal Courts of Justice
Strand, London, WC2A 2LL

23/01/2009

B e f o r e :

MR JUSTICE CRANSTON
____________________

Between:

	Merseyside Police Authority	Claimant
	- and -
	Police Medical Appeal Board -and- Kevin John McGinty John Hudson	Defendant Interested Parties

____________________

John Bassett (instructed by Merseyside Police Force Solicitors) for the Claimant
Martin Westgate (instructed by Russell Jones and Walker) for the Interested Parties
Hearing date: 27 November 2008
____________________

HTML VERSION OF JUDGMENT
____________________

Mr Justice Cranston :

INTRODUCTION

In addition to a retirement pension, the police officers in this case have been awarded a gratuity and an injury pension on the grounds that their permanent disablement was the result of an injury received in the execution of duty with the Merseyside Police. For both police officers, Kevin McGinty ("Mr McGinty") and John Hudson ("Mr Hudson"), the interested parties in this case, this was determined by the defendant, the Police Medical Appeal Board ("the Board"). The Board allowed their appeals from decisions of the "selected medical practitioners" in their respective cases. It is agreed that both Mr McGinty and Mr Hudson are permanently disabled from performing the ordinary duties of a member of the police force. With each the disablement has resulted from a psychiatric condition, although in the case of Mr McGinty the condition followed a physical injury when he was exercising his police dogs. However, the claimant in the present judicial review, the Merseyside Police Authority ("the Police Authority"), challenges the Board's determination that the respective disablement of each was received in the execution of duty. This concept – "received in the execution of duty" – should be capable of easy application. In the first instance, decisions on the matter have to be made by medical practitioners. Then appeals are heard by the Board, comprised of doctors, not lawyers. Unfortunately the case law suggests that the doctors making decisions on the application of the concept are not finding the matter straightforward.

BACKGROUND

(a) Mr McGinty

Mr McGinty was a police officer serving as a dog handler. He had two dogs, a German Sheppard and a Labrador. He received an annual dog handler's allowance. As explained in a national agreement reached in the Police Negotiating Board in 2000, this allowance was payable to police officers to compensate them for caring for police dogs on rest days and public holidays. The allowance was incorporated in the Police Regulations 1995, 1995 SI No. 215, as amended, r. 58(1) and Schedule 10 ("the Police Regulations 1995"). Mr McGinty was also given the benefit of the so-called kennel hour allowing dog handlers to finish their shifts one hour earlier in recognition of the work of caring for a dog. Before the Police Negotiationing Board the official side noted that the common practice of the kennel hour should continue to be honoured. In the agreement there was acceptance of the official side's proposal. It had taken advice from the National Canine Defence League, that the time commitment for caring for a dog was one hour a day plus 15 minutes for grooming twice a week. The staff side unsuccessfully proposed much higher allowances, with the justification that the practice of officers caring for police dogs was cost effective in that forces did not have to maintain kennels and specialist staff, response times were reduced and there was an enhanced relationship between handler and dog. As for annual leave, there was no mention in the agreement, but regulation 10(3) of the 1995 Police Regulations provided:

"For the purposes of this regulation and of Schedule 10 a member of a police force shall be treated as keeping and caring for a dog at his home if he would be so doing but for his being on annual leave."

In March 2002 Mr McGinty was injured from a fall when he was exercising his two police dogs. He was on annual leave at the time. He had released the dogs from his vehicle off the lead and to catch up had started to jog, his normal practice as it enabled him to maintain fitness while exercising them. He suffered a broken foot and ankle. Although he returned to work in a different capacity in September that year, he failed to make a full recovery. He developed a complex regional pain syndrome, a recognised complication with this kind of injury, and he also suffered reactive depression. An occupational health physician, acting as a selected medical practitioner, certified that Mr McGinty was permanently disabled from the ordinary duties of a police officer but that his disablement was not the result of an injury received in the execution of duty. McGinty appealed that decision. On the standard form, "Appellant's Statement of Grounds of Appeal", he wrote:

"At the time of the injury I was in the execution of my duty as a dog handler exercising two police dogs for which I was paid an allowance."

The appeal was heard by the Board in June 2007. By majority the Board decided that the injury was in the execution of duty and they remitted the matter to the selected medical practitioner to determine the degree of disablement. During the Board hearing, Mr McGinty's position during annual leave was explored. If he wished, he could place the dogs in kennels at the police force training centre. However, if he did not he would be expected to exercise the dogs himself. The Board recorded the Merseyside force's policy that if he did not exercise them, "he would not be disciplined if this was merely for a day or two as a result of, for, example, ill-health". It seems implicit that he would be disciplined if the failure to exercise the dogs was not for some such good cause. The Board also recorded a number of points made by the Police Authority: it accepted that exercising a dog is part of the bonding between dog handler and dog; if the dog handler is off sick, the dog has to be handed back either to another handler or to the police kennels to ensure that it continues to be exercised; only a police dog handler is allowed to exercise a dog so that, on annual leave, it would not be possible for a spouse or family member to do that; and were the dog to be in a police kennel, it would be exercised by an appropriately trained kennel maid. After referring to the decision of R (Edwards) v Police Medical Board [2005] EWHC 1788 (Admin), the Board said that it had been asked to consider various aspects of case law. Although this did not relate specifically to this type of incident it had been asked to extrapolate. After further discussion the Board then said:

The Board, having reviewed the evidence, had no problems with the medical issues. However, it failed to reach an agreement over whether it was an injury in the execution of duty. Some members of the Board preferred the evidence for an injury on duty as being supported by:

Only the handler can exercise the dog, the wife cannot exercise it even though the officer is on annual leave.

If the animal bit a member of the public, the Officer would be subject to a disciplinary investigation even if whilst on annual leave.

He is expected to care for the dogs' welfare whilst he is on annual leave for which he is paid an allowance.

The opposing view was that it was not an injury in the execution of duty because:

He was involved in exercising the dog, not working the dog, i.e. it was for the dog's welfare but it was not being trained.

He could have put the dogs in kennels and therefore he was not under an order to keep the dogs at home.

The officer was not carrying out duty activities such as searching premises or people.

It does not require a police officer to exercise the dog, a police kennel maid (who is not a police officer but is trained to handle dogs) could have exercised the dog, even if the wife could not.

Rulings after Kellam take that to be the farthest that an injury in the execution of duty can go.

If Mr McGinty was required to apprehend a felon or prevent a crime, he would have placed himself on duty for this purpose. The fact that he did not would suggest therefore that he was not on duty at the time of the injury."

As mentioned earlier, the Board could see both sides of the argument but on the majority decision, decided that this was an injury on the execution of duty, fully recognising that because of the closeness of the decision it may well be that the police authority will wish to seek an Administrative review of this decision.

(b) Mr Hudson

Mr Hudson joined Merseyside Police in 1976 and was medically retired in early 2004. The circumstances leading to his retirement began with an affair he had in 1999 with a woman police officer. Subsequently he was the subject of an allegation in 2000 in which she claimed that he had been guilty of criminal damage. He was confident that the disciplinary investigation would be resolved in his favour. However, he was transferred and placed on restricted duties. That went on for a period of time. In his view his superior officers sided with her and failed to investigate his own concerns. He found himself sidelined and "sent to Coventry". The cumulative effect of his work experiences over the period 2000 to 2003 caused him to suffer depression. To the consultant psychiatrists he identified various matters as the cause of his psychiatric injury: the allegations the woman made against him; his arrest in early 2003 on suspicion of having committed an offence in respect of his son; and his unhappiness at being moved.

Mr Hudson made a claim for an injury award in February 2004. In his application he stated that the incident which led to his injury was "bullying, victimisation, and discrimination over a prolonged 4 year period by senior officers employed by the force". The period in which this was alleged to have occurred was stated as "03/01/00 and continuing to present date." Early in 2005 a Dr B Roy certified that his injuries had been incurred in the execution of his duty but he failed to give reasons for that conclusion. The Police Authority began proceedings for judicial review and the decision was quashed by consent. The case was then remitted to Dr Vincenti for reconsideration.

Mr Hudson's solicitors made submissions to Dr Vincenti. These are important because they became the framework for the later proceedings. Having reviewed the medical records the solicitors summarised the effect of the case law and stated:

"[W]e do not seek to challenge that principle [i.e. that submission to disciplinary proceedings is not in itself execution of duty] simply to suggest that Mr Hudson's case can be distinguished in that he would not have been made ill by a proper impartial investigation of the allegations against him carried out in a timely fashion. This is evident from the fact that he always co-operated fully with such enquiries, knowing he had done no wrong".

The solicitors identified 21 matters as being injuries on duty which had cumulatively made a substantial contribution to his disablement ("the scheduled matters).

Dr Vincenti reported on 30 March 2006. He concluded that Mr Hudson was permanently disabled as a result of depression but that that condition was not the result of an injury received in the execution of duty. Dr Vincenti summarised Mr Hudson's account, that the woman police officer had influential allies within the police force and that her complaints were investigated. Mr Hudson had "no difficulty with that" but was concerned about the manner in which it was done. When the police force realised they had "backed the wrong horse" Mr Hudson was "sent to Coventry" and made to work on his own. He was deliberately held back from attending courses and from a commendation parade. As a result he felt "shunned". Nonetheless, Dr Vincenti rejected the claim. In doing so he said that "the transfer of Mr Hudson to a new police station and the restrictions imposed in parallel, formed part of the disciplinary response to the allegations served against Mr Hudson".

Mr Hudson appealed to the Board. In a lengthy submission the Police Authority supported Dr Vincenti's conclusion that all that had happened to Mr Hudson had been because of activities within his private life and not because of any connection with his duty as a police officer. In summarising this, the Board said:

"The Police Authority … asked three questions to be considered

Which events had caused disablement.

Which events were not linked to discipline or grievance.

Which events were related to discipline or grievance.

In considering item 2, if there was a substantial contribution then if it was not linked to discipline then he would be eligible for injury on duty. If substantial events were in fact discipline and grievance then the Board would need to consider Stunt."

The essence of Mr Hudson 's case was:

"7. In paragraph 5.2 of his report [Dr Vincenti] did not give sufficient weight to the way in which Mr Hudson was treated by management and colleagues while on duty after the investigation had begun. These events (set out in the Schedule to this submission [i.e. the 21 matters]) are capable of being injuries on duty even if stress which results from being under investigation is not. The fact that he was under investigation did not worry Mr Hudson to the extent that it contributed to his illness. He had done nothing wrong and knew that a thorough and impartial investigation would clear him.

"8. In paragraph 7.1.7 of his report [Dr Vincenti] failed to give sufficient weight to the GP's note in December 2000 which makes reference to "very little support at work" - a clear indication that it was not the fact of the investigation but the treatment from management which was the primary cause of the medical issue.

"11. The assertion in paragraph 9.7 that the transfer of Mr Hudson and the imposition of restrictions formed part of the Police's "disciplinary response" to the allegations is wrong in law. The disciplinary punishments open to a Police Force at the relevant time were set out in the Police (Conduct) Regulations 1999 and did not include postings/restrictions. These powers derive from the responsibility of the Chief Constable for the direction and control of the Force and are management matters not disciplinary measures. There is nothing in the Stunt decision to prevent these being injuries on duty if they caused injury either individually or cumulatively. Importantly this case is very different from the case put on behalf of Mr Stunt that the mere fact of being on duty while investigated caused further stress. Mr Hudson is not putting forward that argument. It is actions taken by the Force while he was on duty (while he was also under investigation) which caused or substantially contributed to his disablement".

Thus Mr Hudson relied on the 21 scheduled matters mentioned as being part of his work circumstances. He also took the point that the limitation in the leading case of Commissioner of Police of the Metropolis v Stunt [2001] ICR 989, considered below, had no application where the disciplinary action concerned was unlawful or improper. However, he also made clear that it would not be necessary to consider this if he was entitled to an award because of his work circumstances.

The Police Authority then made further submissions and characterised most of Mr Hudson's complaints about what was done as "legitimate managerial responses to the disciplinary process which followed from [Mr Hudson's] arrest and involvement with [the woman police officer]". In a letter the Police Authority identified the task for the Board as follows:

"The first stage is for the Panel to determine which events or actions will have caused Mr Hudson's disablement. In doing this, they will need to consider:

(a) Events unrelated to his police service

(b) Events which occurred during his police service, but are not linked to discipline or disciplinary investigations or indeed the grievances, that he raised …

(c) Events that form part of the disciplinary processes (and grievance process, if relevant) that he went through.

If only events in sub-paragraph (a) were causative, there is no entitlement to an injury award,

If only events in sub-paragraph (b) were causative, Mr Hudson would be entitled to an injury award".

If the panel considers that sub-paragraph (c) events caused Mr Hudson's disablement (either alone or in conjunction with events in sub-paragraph (a)) the panel will have to go on to the second stage of the process"

(The second stage was to consider whether Stunt only applied to lawful discipline and if so then to consider whether the process was lawful).

The Board handed down its decision in July 2007. Following an examination of Mr Hudson the medical member considered that "the most relevant causative factor contributing to Mr Hudson's mental illness are the events he experienced in January 2000 and subsequently in connection with his employment referred to in the schedule to the submission made to the Appeal Board on behalf of the Appellant" [i.e. the 21 matters]. Under the heading "Detailed Case Discussion", the Board began:

"The Board have had access to considerable material and written argument as well as hearing the verbal submissions that on the one hand suggests the Board should consider that the cause of Mr Hudson's depression related to duty events and on the other hand, that the events that took place in the work place were in fact disciplinary events and as a consequence of using the case of Stunt, would be ineligible for the purposes of his condition being classified as an injury in the execution of duty."

A little later it said:

"In addition, it appears that the force knew that the allegations against Mr Hudson were false because video evidence did not show Mr Hudson at the scene.

It could therefore be argued that the matter could have been dealt with very quickly, but it was not."

It then referred to the catalogue of 21 events "of what he perceived were activities likely to be considered as bullying or harassment." Further on under this heading the Board added:

"In Mr Hudson's case …. there are a number of incidents that are likely to have led in totality to Mr Hudson's depression.

However, on clinical interview, the Specialist to the Board was able to determine that although Mr Hudson had been exposed to disciplinary proceedings in relation to the accusations of malicious damage to the premises of the woman he had previously had an affair with, there was no clear evidence that at that stage Mr Hudson had developed a permanent depressive illness.

It may well have made him more sensitive or susceptible to any further events that took place, but the opinion of the Board's Specialist Psychiatrist was that it was the drip, drip, drip of a number of non-disciplinary-related events over a period of time which led to the depressive illness.

As a consequence, the Board have concluded that Mr Hudson's permanently disabling depression was, on the balance of probabilities caused during his service as a Police Officer and in the execution of his duty."

LEGAL FRAMEWORK

(a) Police Regulations 1995

There is no need to explore in detail the general regulations governing police conduct. Some, however, are pertinent. At the relevant time the regulations were the Police Regulations 1995. (Under the Police Regulations 2003, 2003 SI No. 527, the relevant substantive provisions are the same but they are now contained in Determinations made by the Secretary of State, rather than being in the Regulations themselves). By regulation 21 of the 1995 regulations "[e]very member of a police force shall carry out all lawful orders and shall at all times punctually and promptly perform all appointed duties and attend to all matters within the scope of his office as a constable". Regulations 24-27 dealt with rostering of duty and rest days between shifts. Regulations 28 and 29 addressed respectively overtime and allowances, and time off in lieu or allowances for time worked on rest days and public holidays. In particular regulation 29 provided for time off in lieu or an allowance where an officer was "required to do duty" on a rest day or public holiday. However, Regulation 29(9) provided:

"Subject to paragraph (10), for the purposes of this regulation

— (a) a member of a police force who is paid a dog handler's allowance shall not be treated as required to do duty by reason only of his being required to care for the dog".

Regulation 58 set out the allowance "in respect of the care accorded to the dog on the member's rest days and on public holidays". Regulation 58(3) read:

"(3) For the purposes of this regulation and of Schedule 10 [the Dog Handler's Allowance], a member of a police force shall be treated as keeping and caring for a dog at his home if he would be doing so but for his being on annual leave."

Annual leave was dealt with under Schedule 4 and in regulation 34(2) was expressly stated to be "additional to the days upon which he is not required to perform police duties in accordance with … (a) regulation 29, in the case of a member below the rank of inspector".

(b) Police (Injury Benefit) Regulations

The benefit awards under consideration can be traced back to the Police Pensions Act 1921 and the Police Pensions Act 1948. At present the governing provisions are the Police (Injury Benefit) Regulations 2006, SI 2006 No 932 ("the 2006 Regulations"). These came into force on the 20^th April 2006, re-enacting corresponding regulations in the Police Pensions Regulations 1987, 1987 SI No 257. The applications for benefits awards by Mr McGinty and Mr Hudson were made under the latter, but as a result of the transitional provisions contained in regulation 9 of the 2006 Regulations they fell to be considered as if they had been made under the 2006 Regulations.

Regulation 6 is the key provision, since it has the definition of an injury received in the execution of duty.

"6. (1) A reference in these regulations to an injury received in the execution of duty by a member of a police force means an injury received in the execution of that person's duty as a constable and, where the person concerned is an auxiliary policeman, during a period of active service as such.

(2) For the purposes of these Regulations an injury shall be treated as received by a person in the execution of his duty as a constable if –

(a) the member concerned received the injury while on duty or while on a journey necessary to enable him to report for duty or return home after duty, or

(b) he would not have received the injury had he not been known to be a constable, or

(c) the police authority are of the opinion that the preceding condition may be satisfied and that the injury should be treated as in received in the execution of duty.

…

(4) For the purposes of these Regulations an injury shall be treated as received without the default of the member concerned unless the injury is wholly or mainly due to his own serious and culpable negligence or misconduct."

"Disablement" and "permanent disablement" are defined in regulation 7. Regulation 7(5) is worth quoting:

"(5) Where it is necessary to determine the degree of a person's disablement it shall be determined by reference to the degree to which his earning capacity has been affected as a result of an injury received without his own default in the execution of his duty as a member of a police force."

Regulation 11 sets out the entitlement to an injury gratuity and an injury pension in the case of a police officer permanently disabled as a result of an injury received without his own default in the execution of duty. The award takes the form of a gratuity and a minimum earnings guarantee. The amount of the guarantee depends on the degree to which the officer's earning capacity is impaired by the relevant injury.

"(1) This regulation applies to a person who ceases or has ceased to be a member of a police force and is permanently disabled as a result of an injury received without his own default in the execution of his duty (in Schedule 3 referred to as the "relevant injury")."

(2) A person to whom this regulation applies shall be entitled to a gratuity and, in addition, to an injury pension, in both cases calculated in accordance with Schedule 3; but payment of an injury pension shall be subject to the provisions of paragraph 5 of that Schedule and, where the person concerned ceased to serve before becoming disabled, no payment shall be made on account of the pension in respect of any period before he became disabled".

Regulation 30 governs the manner in which decisions are to be made as to whether a person qualifies for any injury benefit. The determination of disablement and whether a police officer's permanent disablement is as a result of an injury received in the execution of duty is referred at first instance to a selected medical practitioner: reg 30. There is a right of appeal to the Police Medical Appeal Board ("the Board"), a right exercised in this case: reg 31. The Board is not required to include legally qualified members. The determination of the Board is to "be expressed in the form of a report of its decision on any of the questions referred to the selected medical practitioner on which it disagrees with the latter's decision" (reg 31(3)). I agree with Lord Matthews in a recent Scottish decision that this means that the reasons of the Board are not to be construed in the same way as a judgment: Lothian and Borders Police Board v Smillie [2008] SLT 1081, [247].

"In the execution of duty": the case law

The leading authority on the concept of injury received in the execution of duty is the decision of the Court of Appeal in Commissioner of Police of the Metropolis v Stunt [2001] ICR 989. The Court of Appeal approved the cases leading up to, and reviewed by Richards J, in R v Kellam ex parte South Wales Police Authority [2000] ICR 632, although in the circumstances they thought that Richards J took the principles he derived from the authorities to their limits in the actual decision in Kellam. It seem to me that the following principles of law can be derived from the Court of Appeal's decision:

i) The words "in the execution of duty" are to be given a "benevolent interpretation." That can be traced back to the decision of Gavin v London (City) Police Authority [1944] KB 358.

ii) Regulation 6(2) of the 2006 Regulations does not contain an exhaustive definition of the circumstances in which an injury may be received in the execution of duty as a constable. It operates as a deeming provision, extending the application of regulation 6(1). Equally, an officer may qualify for an award under regulation 6(1) but not under regulation 6(2) when, for example, off duty but required by virtue of the office of constable to preserve the Queen's peace, to protect a person from attack or to arrest an assailant: per Simon Brown LJ at para [23].

iii) For an injury to be received by a police officer in the execution of duty the injury has to be directly and causally connected with service as a police officer. The test of causation is not to be applied in a legalistic way; it is a relatively straightforward concept. It is not necessary to establish that being in the execution of duty was the sole cause of the injury. An event or events, conditions or circumstances must impact directly on the physical or mental condition of the officer while carrying out duties which caused or substantially contributed to physical or mental disablement.

iv) A police officer's duty relates not just to operational police duties but to all aspects of the officer's work or work circumstances.

The difficulty in the application of these principles has arisen primarily with psychiatric injury as opposed to physical injury. With psychiatric injury it may be difficult to identify a specific time or incident when the injury occurred. In Kellam the police officer's anxiety and stress had been caused by a number of factors: he believed he was victimised because his wife, also a police officer, had complained about misconduct and sex discrimination in the force, but also their baby had been stillborn and neighbours had raised ill-founded but serious allegations of criminal conduct against him. Richards J held that since what had happened to him at work was one cause of his psychiatric injury, the medical referee had not erred in law in deciding that it constituted an injury received in the execution of his duty.

However, it may be that psychiatric injury does not qualify because it falls outside the situations connected with a person's service as a police officer. In Stunt the police officer had suffered a stress related depressive illness after being subject to internal disciplinary proceedings. That was a result of a complaint by a member of the public whom he had arrested while on duty outside the Palace of Westminster. The Court of Appeal restored the decision of the independent medical referee: this was an injury resulting from being subjected to disciplinary proceedings and could not be said to have been incurred in the execution of duty.

Subsequent to Stunt, there have been a number of single judge decisions which have grappled with the question of whether psychiatric injury was received in the execution of duty. In Clinch v Dorset Police Authority [2003] EWHC 161 (Admin) the psychiatric injury arose as a result of the officer's disappointment in not gaining promotion. McCombe J held that the relevant events impacted on his condition not while carrying out his duties but when, having sought to obtain other duties, he was disappointed in not being given them. "The injury derived simply from 'being a police officer' and wanting promotion that he failed to obtain. On any ordinary meaning of the regulations that does not, in my view, amount to an injury received in the execution of duty": para [40].

South Wales Police Authority v Morgan [2003] EWHC 2274 (Admin) was a case of a police officer's depression being caused by overwork. Subsequent to the onset of depression, it was exacerbated by stress and anxiety from an investigation into an injury suffered by his three year old foster son, and financial difficulties experienced during sickness absence and the resultant reduction in pay. In relation to the second and third of those, Stanley Burnton J held that they could not have been injuries received in the execution of duty. On the other hand, the first – stress and depression caused by overwork – gave rise to different considerations and if it were a substantial cause of disablement the disablement could be an injury received in the execution of duty.

In R (on the application of Sussex Police Authority) v Cooling [2004] EWHC 1920 (Admin) Collins J held that a stress-related psychiatric condition developed while an officer was suspended from duty could not be regarded as an injury received in the execution of duty. While suspended the officer could not be on duty. The suspension resulted because he was the subject of a criminal and disciplinary process, but that did not mean that the injury was received in the execution of duty. The suspension was lifted for a short period, and the officer tried to return to duty. But he had not undertaken any of the ordinary duties of a police officer since his suspension, so it could not be said that he had received an injury in the execution of duty.

As in Stunt the police officer in Merseyside Police Authority v Gidlow [2004] EWHC 2807 (Admin) incurred a psychiatric injury resulting from a complaint made against him and the invocation of his force's grievance procedure. Stanley Burnton J held that this was not an injury received in the execution of duty. His psychiatric injury was not the result of his police work as such; it was the result of his perception that an allegation against him had not been adequately investigated. However, Stanley Burnton J accepted that the mere fact that an officer is involved in a grievance or disciplinary procedure does not of itself mean that his psychological injury is not suffered in the execution of duty: at para [46].

The last of these single judge decisions is R (Edwards) v Police Medical Board [2005] EWHC 1780 (Admin), when the officer's depressive illness was precipitated by his being notified that, in accordance with the tenure policy of his force, he would be returned to uniform duties after 12 years in the CID. The Board had said that the "loss of tenure and transfer back to uniform duties did not arise in the execution of the Claimant's duty. It was the application to him of a management process to which he was subject by virtue of being a Police Officer within the Authority". However, Sir Richard Tucker expressed the issue in his judgment differently: the injury had not been sustained because of being at work, but because of the impact of the notification of transfer. That was received when he was at a conference which he was required to attend, but he attended as a police officer, not in the execution of duty: at para [16].

For my own part I confess to having difficulty with the distinction drawn in some of the cases between being on duty and being in the execution of duty. In some cases it appears to me that the distinction will be the rationalisation of a particular conclusion rather than a useful tool for analysis. What can be said is that not everything which happens to an officer on duty resulting in an injury involves an injury caused in the execution of duty. The best examples from the case law are probably the depression caused by being in a dead end job or the receipt of disappointing information about future prospects, which may not involve a sufficient causal link. Of course when one is no longer working as a police officer and injury is caused, that cannot be in the execution of duty. There is no authority for the proposition that an injury resulting from the application of a management process cannot be received in the execution of duty. Stress related illness caused by failure properly to supervise or support may qualify. Psychiatric injury from stresses at work, bullying or harassment can be treated as an injury in the execution of duty. So too depression brought about by the appraisal process: Lothian and Borders Police Board v Ward [2004] SLT 215. Generally speaking, however, the authorities indicate that psychiatric injury from exposure to disciplinary or grievance proceedings, or failed promotion attempts, will not. However, that will not be the invariable outcome, as Stanley Burnton J acknowledged in Gidlow. One can conceive of situations where, for example, psychiatric injury is caused by a baseless allegation being brought against an officer by another member of the force, or by a member of the public. It must be that police officers defending themselves in those circumstances have a strong case for saying that they are acting in the execution of duty because, in a sense, they are defending not only their own integrity but that of the force as a whole.

MR MCGINTY AND HIS POLICE DOGS

The Police Authority's case is that Mr McGinty's injury occurred when he was off duty, on annual holiday. There is no suggestion that at the time of his injury he was engaged in any police purpose such as the apprehension or detection of a suspected criminal. Rather, it occurred at a time when he was off duty, exercising the dogs which were with him because he was a police dog handler. Thus the injury was not directly and causally connected with his service as a police officer but resulted from his status as a particular type of police officer, a police dog handler. The incidental benefits which may have resulted from his exercising the dogs while off duty – the maintenance of the dogs' fitness, the bonding between the dogs and him – cannot translate an off duty activity into service as a police officer in the execution of duty. Were it otherwise it is difficult to conceive of any situation when police dog handlers would not be considered to be acting in the execution of duty when accompanied by their police dog. Accordingly, in ruling that Mr McGinty's injury was received in the execution of his duty as a constable the Board misdirected itself in law.

The Police Authority submits that in finding that Mr McGinty's injury was received in the execution of duty the Board reached a decision which was irrational and which no reasonable Board, properly directed, could have reached. The three reasons behind the majority decision were incapable of supporting the conclusion. Regarding the first, that only he could exercise the dogs, the fact was that at all times the dogs were owned by the Police Authority. As such they were, as a matter of law, bailed to him. It was entirely within the rights of the Police Authority to impose conditions on that bailment, including a condition which prevented others from exercising the dogs. Mr McGinty himself stated before the Board that the dogs were "police property", and given their value it was entirely appropriate to limit those who might exercise them. The fact that the Police Authority imposed this condition did not mean that whenever Mr McGinty exercised them he was acting in the execution of duty. Were this to be so it would be difficult to conceive of any situation when a dog handler, in the company of a police dog, was not acting in the execution of duty. In any event the Board's rationale ignored the fact that Mr McGinty was not the only person permitted to exercise the dogs, for there were trained kennel maids available for the task.

The second reason the Board gave, that Mr McGinty might have been the subject of a misconduct investigation had the dogs bitten a member of the public, could not be a reason for deciding that in exercising them he was acting in the execution of duty. As Stunt [2001] ICR 989 made plain, a police officer's being subject to a misconduct investigation arises simply from the fact of being a police officer and can be triggered by off duty conduct. As to the Board's third reason, the receipt of a dog handler's allowance, the regulation itself makes clear that it is paid "in respect of the care accorded to the dog on the member's rest days and on public holidays". In other words, it is paid in recognition of the fact that having a police dog impacts on a dog handler's home life when off duty, not in respect of periods when he is on duty. Moreover, it is paid while a dog handler is on annual leave, irrespective of whether he has the dog. It would be illogical to find that Mr McGinty was injured in the execution of his duty because he was in receipt of an allowance expressly paid for periods when he was off duty.

Nor, in the Police Authority's submissions, can the decision of the Board be supported by the other reasons advanced before it on behalf of Mr McGinty. To Mr McGinty's argument that he was acting in the execution of duty because it was his "duty" to look after the dogs as police property, the Police Authority reply that all police officers are under a duty to "exercise reasonable care to prevent loss or damage to [police] property: Police (Conduct) Regulations 2004, 2004 SI No 645 Schedule 1, Code of Conduct, paragraph 9 (now repealed). Accordingly, any duty Mr McGinty was under to look after the dogs arose simply from his being a police officer. In any event, the duty postulated was not the same as that contained in the concept of "being in the execution of duty". As to any liability on the part of the Police Authority to a member of the public bitten by a dog while being exercised by Mr McGinty off duty, that would have arisen under the Animals Act 1971 because it was the owner of the dogs. It has no bearing on the issue in Mr McGinty's case.

Further, the Police Authority contend that in reaching its decision, the Board failed to have regard to matters which supported its argument that Mr McGinty's injury had not been received in the execution of duty. Thus all keepers of dogs, whether civilian or police, should recognise the need to exercise their dogs. In the case of off duty dog handlers such exercise might be of incidental benefit in strengthening the bond between them and maintaining their dogs' fitness for performing police tasks. But that was insufficient to transform such off duty activity into the execution of duty as a constable. There was no obligation on Mr McGinty to care for the dogs on annual leave. While dog handlers were encouraged to do so unless going abroad, there was no obligation, and they had the option of placing them in police kennels. Mr McGinty's position was no different from any dog owner who is likely to be reluctant to place a pet dog in kennels, unless absolutely necessary. The opportunity for Mr McGinty to exercise the dogs arose while he was off duty. The Police Authority operates under the system whereby one hour of a dog handler's shift, in other words, while the dog handler is on duty, is intended to be devoted to care of the dog. Finally, there was Mr McGinty's own description of how the accident happened, jogging to maintain fitness while also exercising the dogs. Had the accident happened when Mr McGinty was jogging on his own while off duty, it is inconceivable that he would have been held to have suffered an injury while in the execution of duty on the basis that jogging had the secondary effect of keeping him fit to perform his duties. It is equally inconceivable that such a finding could be made because he decided to go jogging while off duty, and incidentally took the dogs with him. Nothing happened which caused him to act in a way which Mr McGinty was required to do by virtue of his office. It was not the situation where an off duty officer was required by virtue of his office to preserve the Queen's peace, to protect a person under attack or to arrest an assailant. These were matters over which the officer has no control but he must place himself back on duty.

In the Police Authority's submission, Crosby v Sandford (1979) 78 LGR 85 does not assist. That case was concerned with regulations about the remuneration of all officers. While consideration was indeed given to whether a dog handler's duties in a general sense included, for example, grooming and exercising a police dog when on rest days and public holidays, the case was not concerned with the specific issue of when an officer could properly be said to be in the execution of duty. The issue in the case was whether dog handlers were on duty when grooming and exercising their police dog on rest days, on public holidays or overtime, or during the "kennel hour" immediately after the end of an officer's rostered shift. The Court of Appeal held that an officer was on duty on such occasions, and thus they had to be taken into account when calculating remuneration under the regulations. However, the Court of Appeal never suggested that dog handlers who exercised their dogs while on annual leave would be considered to be on duty. The Police Regulations 1995, regulation 29(9) specifically provided that "a member of a police force who is paid a dog handler's allowance shall not be treated as required to do duty by reason only of his being required to care for the dog". If Mr McGinty could not be considered to be on duty at such times when caring for the dogs, by the same token he could not be considered to be acting in the execution of his duty when on annual leave.

(b) Analysis and conclusion

In Mr McGinty's case the event causing the injury is clear. The issue is whether what he was doing can be described as the execution of duty. Two principles affirmed in the jurisprudence are pertinent in Mr McGinty's case. The first is that the term "execution of his duty" is a wide one and should be given a benevolent interpretation: Garvin v Metropolitan Police [1944] KB 358. Secondly, the concept goes beyond the active execution of duty and can cover all aspects of an officer's work. In the light of these principles I have concluded that the Board did not misdirect themselves. Their conclusion that Mr McGinty was in the execution of his duty was not only one they were entitled to reach but was correct in the circumstances.

The leading case, Commissioner of Police for the Metropolis v Stunt [2001] ICR 989, makes clear that officers may be acting in the execution of duty even though not on rostered duty. Simon Brown LJ gave the examples of an officer required by virtue of his office of constable to preserve the Queen's peace, to protect a person under attack or to arrest an assailant. Those, however, were only examples. Mr McGinty was, of course, on annual leave at the time. That certainly gives one pause. But the crucial issue is: what was he actually doing when he was injured and how did that relate to his duties? He could look after his dogs at home when on annual leave, although he could put them in kennels. But if he kept them he was required to apply the same standards of care as at other times. On ordinary duty days it was common ground that he was required to work only 7 hours, not 8 (or 9 hours, rather than 10, if on variable shifts) to take account of the grooming and exercise required for the dogs. As the Police Authority accepts the kennel hour spent caring for the dog on those days was duty, and was counted as such. Thus in taking them out for exercise on his annual leave he was carrying out the same function as he would have on an ordinary duty day and for the same purposes. What he was doing was an integral part of his functions as a dog handler. He was acting in the execution of his duty. That conclusion does not open the floodgates. It does not mean that dog handlers are in the execution of duty whenever they have their dogs with him. They would still have to be doing something that involves caring for the dogs in the scope of their duty. And the injury would have also to be causally related to what they were doing.

Thus it was not irrational for the Board to have regard to the factors it did. Only Mr McGinty could exercise his dogs. The Police Authority contend that this was because the dogs were valuable police property and it was a condition of their bailment. To my mind this underplays the material before the Board which indicated that this requirement was there because it promoted a bond between dog handlers and their dogs. In my view the Board were entitled to take this into account as a relevant consideration. Looking after police dogs is at a different level from the obligation on any police officer as bailee of police property to exercise reasonable care. The fact that trained personnel could have stepped in if Mr McGinty had kennelled the dogs does not help the Police Authority. It simply shows that exercising the dogs was a specialist task. The Board also referred to his liability to disciplinary action if one of the dogs had bitten a member of the public. It was also implicit in their decision that he would have been liable to such action if he had failed to care for the dogs. Contrary to the Police Authority's submission it was exposure to the disciplinary investigation itself in Stunt which caused the injury, and not the underlying performance of duty which led to the disciplinary action.

Nothing in the regulations is inconsistent with the conclusion that Mr McGinty was acting in the execution of his duty. There are separate provisions in the regulations dealing with rest days and public holidays. On rest days and public holidays dog handlers have to look after their dogs. There is no option of placing the dog in kennels, unlike annual leave. In recognition of this officers are paid a dog handler's allowance. As we have seen regulation 29 of the Police Regulations 1995 provided for allowances and time off in lieu for officers who were required to work on rest days or public holidays. As for the dog handler's allowance, it does not in fact compensate the officer for caring for the dog when on annual leave but in respect of rest days and public holidays. It is payable during annual leave periods, whether the officer cares for the dog then or not. I cannot draw the inference that the allowance is paid in recognition of the fact that having a police dog impacts on a dog handler's home life when "off duty". As the Board put it, "he is expected to care for the dog's welfare whilst he is on annual leave." In caring for the dogs on annual leave Mr McGinty was discharging a function he was required to fulfill as a member of the force. If he failed to do so he could be disciplined, the source of that disciplinary power being best located, in my judgment, in paragraph 5 of the Code of Conduct: "Officers should be conscientious and diligent in the performance of their duties." In Crosby v Sandford (1979) 78 LGR 85 the Court of Appeal held that dog handlers carry out their duty when they care for their dogs at home outside their ordinary rostered period of duty. In the Police Regulations, as we have seen, regulation 29(9)(a) provided that a member of a police force who was paid a dog handler's allowance "shall not be treated as required to do duty by reason only of his being required to care for the dog". Without this provision, caring for the dog would be a duty on public holidays and rest days. Dog handlers would be doing their duty despite the fact that they would not be on rostered duty at that time.

Annual leave is treated separately in the regulations. Importantly, there is nothing comparable to regulation 29(9)(a). Yet during annual leave dog handlers are carrying out the same functions in exercising the dogs as they do on a duty day or on a rest day or public holiday. As long as the dogs are in their custody they must exercise them. They have a responsibility for doing so. The only difference between annual leave and the other days is that they have the option of placing the dogs in kennels. In my judgment this is not a material consideration. It cannot be said that dog handlers are not executing their duty because they could avoid it by choosing to do something else or not volunteering for it. Crosby v Sandford is against that proposition. There Megaw LJ said he had considerable difficulty understanding the arguments that the requirement that a dog handler should spend time caring for the dog at home was not duty.

"The factors which were said to be relevant as leading to that conclusion, if I understood the argument correctly, were these. First, the work involved was unlike the ordinary obligations of a police constable. Counsel put this on the basis that it was a "lighter kind of effort", "a less disciplined kind of effort". The nature of the work, it was said, took it outside the scope of "ordinary police work". Secondly, some of the work, such as feeding the dog, could be delegated by the dog handler to his wife. If the dog handler wished to take the dog with him to the seaside on a holiday or rest day, he was free to do so. Thirdly, he could do the work of feeding and grooming and exercising the dog in his own time. There was no obligation on him to do it at any particular time after he left the mobile patrol. And fourthly, I think it was put that becoming a dog handler was always a matter of volunteering. If one chose to volunteer to be a dog handler, knowing that it involved keeping the dog at home and performing some of these obligations, with regard to the care of the dog, then that was something which, because it was voluntarily undertaken, should not be regarded as coming within the scope of "duty". I do not accept those submissions, whether individually or collectively."

Certainly Crosby was concerned with whether an officer was on duty, not acting in the execution of duty. The terms under consideration in that case were "recall to duty" and a requirement to "do duty". Although as I said earlier I find the distinction difficult, authority requires me to accept that this is not necessarily the same as the phrase "execution of duty". In my judgment, however, there is no reason for the content of the term "duty" to be radically different in the two cases.