Jersey Unreported Judgments

[2005]JRC014

royal court

(Samedi Division)

 

20^th August 2004.

(authorised for publication 8^th February 2005)

 

 

 

 

 

Application by the second and third Plaintiffs for an injunction restraining the Defendant Committee from holding disciplinary hearings against them on 10^th and 11^th August respectively.

 

Advocate O A Blakeley for the second and third plaintiffs

Miss S C Nicolle QC., HM Solicitor General for the defendant

 

judgment

deputy bailiff:

1.        This is an application by the second and third plaintiffs (the first plaintiff having decided not to proceed with his application) for an injunction restraining the Defendant Committee from holding disciplinary hearings against them on 10^th and 11^th August respectively.  The application was heard as a matter of urgency on Friday 6^th August (the application having originally been made ex parte on Wednesday 4^th August when I had ordered an urgent inter partes hearing) and the Court announced, at the conclusion of the hearing, that it was refusing the injunction.  The Court now gives its reasons.

Factual background

2.        The plaintiffs are employees of the Committee.  They are employed in the Information System Department at Police Headquarters.  The second plaintiff is an information systems manager and the third plaintiff is a systems analyst developer.  They are not police officers but rather civil servants employed to work within the police department.

3.        On 23^rd October 2003 they were arrested at work on suspicion of offences of dishonesty in relation to the misappropriation of computer equipment belonging to the States Police.  The next day they were suspended from their employment whilst enquiries into alleged disciplinary offences were carried out.  Accordingly there have been two enquiries in train; one criminal, the other disciplinary. 

4.        The alleged criminal offences are still being investigated.  We were told that enquiries are now complete but that the detective inspector in charge of the criminal enquiry is in the course of preparing a report for the Attorney General.  Thus the plaintiffs have not been charged with any criminal offence nor is it known whether they will be charged.  If they are charged it is not known what offences they will face. 

5.        On 7^th May 2004, each of the plaintiffs was informed by letter that a disciplinary hearing would be held in relation to allegations of gross misconduct.  The nature of the alleged misconduct was set out in the letter.  Originally the hearings were to have been held on 28^th and 29^th June but on 17^th June they were postponed.  Subsequently they were re-fixed for the dates stated in paragraph 1 of this judgment. 

6.        Originally each plaintiff was provided with a substantial file of papers in connection with his disciplinary hearing.  However the Data Protection Registrar raised a concern that the data protection principles had been breached.  The files were withdrawn and accordingly the enquiry is apparently now to proceed by way of presentation of a 'Summary of Facts' which will be presented by Mr Leonard Harper, the Deputy Chief Officer of the States Police.  Each plaintiff has been supplied with the summary of facts which relates to his case. 

7.        In passing, we would note that Mr Blakeley made certain criticisms of the disciplinary procedure which had been followed and was apparently to be followed at the hearing.  We have to say that these are not matters for us.  We are not here today to regulate or assess the disciplinary process.  We are considering the narrow point of whether the disciplinary hearings should be postponed in the light of the possible criminal proceedings.

8.        Each hearing will take place before a panel consisting of the Chief Officer of the States Police and Mr Mark Littler (Director of Employee Relations & Pensions - States Human Resources Department).  The Deputy Chief Officer will present the case alleging gross misconduct and the only other persons present will be an Inspector, who is the head of professional standards, together, of course, with the relevant plaintiff and any representative of his. 

9.        During the course of the hearing the Deputy Chief Officer undertook that:-

(i)        These would be the only persons present at the disciplinary hearing;

(ii)       The hearing would be held in private;

(iii)      None of the members of the panel or the police officers present would disclose to any person anything which was said or any document which was produced at the hearing until termination of the criminal investigation or prosecution or until further order of the Court.

At the request of the Court before it gave its decision, the Deputy Chief Officer further undertook that, in the event of any recording of the hearings taking place, there would be no transcription of the record of the hearings without the consent of the relevant plaintiff or order of the Court.  We further confirmed that none of those involved in the disciplinary hearing would be playing any part in the criminal investigation or any prosecution.

10.      The 'Summary of Facts' in relation to the second plaintiff sets out three allegations:-

Allegation 1           

Mr Taylor assisted in the illegitimate acquisition of computer equipment on behalf of the States of Jersey Police, the high specification of which was, in the main, to satisfy the requirements of Mr Taylor and his colleagues' personal interests rather than to satisfy the professional requirements of the States of Jersey Police. 

Allegation 2

Mr Taylor used, or allowed to be used, his States of Jersey Police desktop computer, a States of Jersey Police hard drive and a police owned laptop computer in an inappropriate manner for the loading and downloading of sexually explicit images and illegally obtained software files, this action being in clear breach of the States of Jersey Information Security policy and the States of Jersey Police Information Security policy. 

Allegation 3

It is contended that Mr Taylor breached both the States of Jersey and the States of Jersey Police Information Security policies by the inappropriate manner in which he allowed others access to police owned computer equipment, thereby compromising the security of the systems.  He furthermore failed to maintain a record of the police equipment contained at his home.

11.      The third plaintiff faced six allegations of gross misconduct.  The first three essentially mirror the three allegations against the second plaintiff.  The remaining three are as follows:-

Allegation 4

It is alleged that Mr Tucker's actions in allowing his son to take a States of Jersey police computer out of the island and utilise it in the United Kingdom amounts to gross misconduct.

Allegation 5

It is alleged that Mr Tucker was found at work on duty in an intoxicated condition on 23^rd October 2003.

Allegation 6

Mr Tucker's conviction for having driven a vehicle whilst having excess alcohol in his breath at Jersey Magistrates Court on 18^th November 2003, such a conviction bringing the civil service into disrepute, is clear evidence of gross misconduct. 

The essence of the plaintiffs' claim

12.      The plaintiffs assert that there is a risk of their facing criminal proceedings which cover the same facts as are the basis of the disciplinary proceedings.  They contend that it would be prejudicial to them for the disciplinary hearing to take place before any criminal proceedings have been concluded or a decision has been taken not to bring any criminal charges.  There is a risk that they would be prejudiced in the conduct of any criminal proceedings and they pray in aid the maxim 'le criminel tient le civil en état'. 

The applicable principles

13.      The effect of the maxim was helpfully summarised by Southwell J A in Glazebrook -v- Housing Committee [2000 JLR 301] at 306:-

"In the light of these Jersey and English authorities, I can summarize with what is in my view the true application of the Jersey law principle that 'le criminel  tient le civil en état' in this way;

Where there are or may be concurrent civil and criminal proceedings, the Jersey courts have a discretionary power to control the conduct of the civil proceedings so as to ensure that there is no real danger of prejudice to the fair trial of existing or potential criminal proceedings.

The burden of persuading the court to exercise this power is on the person seeking such exercise.

If the same or similar questions of facts will have to decided in both sets of proceedings, it will generally be wrong to allow a decision to be made in the civil action before it is made in the criminal proceedings, because that would create a real danger of prejudice to the fair trial of the criminal proceedings.

But it may be appropriate in such a case to allow the interlocutory stages of the civil action to proceed so that there is not undue delay.

If and insofar as the civil action can be decided without impinging on the question of fact to be decided in the criminal proceedings, the civil action can be allowed to go to trial."

14.      Although the maxim is not quoted as such in English cases, the underlying principles in both jurisdictions are both the same.  Helpful passages are to be found in two English cases.  The first is Jefferson Limited -v- Bhetcha Limited (1979) 2 All ER 1108.  In that case the claimant was seeking summary judgment in respect of matters which were to be the subject of pending criminal proceedings.  At first instance the judge either adjourned the application for summary judgment or stayed the whole action (it was not clear which).  The Court of Appeal held that the judge had been in error, that the 'right to silence' which was available in criminal proceedings did not apply in civil proceedings, that the burden of showing that a stay or adjournment of the civil proceedings in whole or in part was necessary lay on the defendant, and that in that case this burden had not been discharged.  We would refer in particular to two passages from the judgment of Megaw L J.  The first is at 1113b. 

"I should be prepared to accept that the court which is competent to control the proceedings of the civil action would have a discretion ........ to stay the proceedings, if it appeared to the court that justice (the balancing of justice between the parties) so required, having regard to the concurrent criminal proceedings and taking into account the principle, which applies in the criminal proceeding itself, of what is sometimes referred to as the 'right of silence' and the reason why that right, under the law as it stands, is a right of a defendant in criminal proceedings.  But in the civil court it would be a matter of discretion, and not a right.  There is, I say again, in my judgment, no principle of law that a plaintiff in his civil action is to be debarred from pursuing that action in accordance with the normal rules of the conduct of civil actions merely because so to do would, or might, result in the defendant, if he wished to defend the action, having to disclose, by an affidavit under Ord 14 or in the pleading of his defence or by way of discovery or otherwise, what his defence is or may be, in whole or in part, with the result that he might be giving an indication of what his defence was likely to be in the contemporaneous criminal proceedings.  The protection which is at present given to one facing a criminal charge (the so-called 'right of silence') does not extend to give the defendant as a matter of right the same protection in contemporaneous civil proceedings."

Later on at g of the same page:-

"In my judgment, while each case must be judged on its own facts, the burden is on the defendant in the civil action to show that it is just and convenient that the plaintiff's ordinary rights of having his claim processed and heard and decided should be interfered with.

Of course, one factor to be taken into account, and it may well be a very important factor, is whether there is real danger of the causing of injustice in the criminal proceedings.  There may be cases (no doubt there are) where that discretion should be exercised.  In my view it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors.  By way of example a relevant factor telling in favour of the defendant may well be the fact that the civil action, or some step in it, would be likely to obtain such publicity as might sensibly be expected to reach, and to influence, persons who would or might be jurors in criminal proceedings.  It might be that if the criminal proceedings were likely to be heard in a very short time ...... it would be fair and sensible to postpone the hearing of the civil action.  It might be that it could be shown, or inferred, that there was some real, not merely notional, danger that the disclosure of the defence in the civil action would, or might, lead to a potential miscarriage of justice in the criminal proceedings by, for example, enabling prosecution witnesses to prepare a fabrication of evidence or by leading to interference with witnesses or in some other way."

15.      Both Glazebrook and Jefferson involved civil proceedings.  The case of R -v- BBC ex p Lavelle (1983) 1 All ER at 241 concerned disciplinary proceedings against an employee of the BBC in circumstances where the employee had been charged with theft of some tapes belonging to the BBC which had been found at her home.  The BBC took the view that the removal of the tapes was misconduct which justified her dismissal regardless of whether she was guilty of theft.  It therefore wished to hold a formal disciplinary hearing with a view to her dismissal.  The employee sought the intervention of the High Court.   Woolf J refused to intervene and had this to say at page 255g:-

"It seems to me that while the court must have jurisdiction to intervene to prevent a serious injustice occurring, it will only do so in very clear cases in which the applicant can show that there is real danger but not merely a notional danger that there would be a miscarriage of justice in the criminal proceedings if the court did not intervene."

Some of the matters which he took into account in reaching his decision to refuse relief to the employee can be found in his conclusion on page 256:-

"Furthermore, approaching the matter in the way indicated by Megaw L J and Philipps J, I have considerable reservations whether or not there was any risk of a real injustice to the applicant in this case.  The proceedings before Mr Singer were to be in private.  The applicant had already answered on 2 February giving a version of events which was presumably substantially true.  Although a witness from the BBC was to be an important witness of the criminal trial, it is fanciful to suggest that he would fabricate his evidence to incriminate the applicant in some dishonest manner.  Finally, the matters which are going to have to be proved in the criminal proceedings are much more extensive than those in the disciplinary proceedings.  In disciplinary proceedings  the removal of the tapes to where they were found would be sufficient to establish a disciplinary offence in the contention of the BBC."

16.      In our judgment it is clear from the cases that, in the ordinary course, the fact that a defendant has been charged with a criminal offence should not prevent a third party from seeking to enforce a civil claim which he may have against the defendant or, in the case of an employer, from seeking to dismiss the defendant if he has grounds upon which to do so.  The burden lies upon the defendant to show that there is a real danger of injustice to him in the criminal proceedings so that the third party should be prevented from enforcing his ordinary rights, whether as plaintiff in civil proceedings or as an employer.  Clearly, as Southwell J A indicated, this may arise where the very same issue has to be resolved in civil proceedings which will be publicly known.  We are not convinced that many difficulties will arise in most disciplinary hearings.  As Woolf J pointed out, these are generally in private so that jurors will not get to hear of the material produced at the hearing.  Furthermore, even though one or more other employees of the employer might be witnesses in a criminal case, the prosecution, as such, will not be represented in a disciplinary hearing before a private employer and, indeed, will have no right to be present.  We accept that in this case the position is not exactly akin to a normal disciplinary hearing by a private employer because, although the plaintiffs are civil servants, the disciplinary hearing involves active participation by police officers and it is of course police officers who are carrying out the criminal investigation and will be briefing the prosecuting authorities in due course.  To that extent there is clearly a greater danger of the defendant being obliged effectively to disclose his defence in a criminal case to the very persons responsible for the criminal investigation and prosecution.   Nevertheless it is clear from the authorities that, in order for the ordinary rights of a plaintiff or employer to be interfered with in this way, it is not enough that there is some notional or theoretical danger of injustice; the defendant must shoulder the burden of satisfying the court that there is real danger of injustice in the criminal proceedings if the relevant civil or disciplinary hearing is allowed to proceed.

Application to the facts of this case

17.      In his skeleton argument Mr Blakeley's main submission was that, because the disciplinary allegations and the potential criminal allegations arose out of the same set of facts, the effect of holding the disciplinary hearing in advance of any criminal prosecution would be to compel each of the plaintiffs to reveal evidence and/or defences which he would be putting forward in any criminal case, thereby negating his right to silence.  This would become known to the prosecution and would therefore enable them to rebut the anticipated line of defence.  Furthermore the evidence might become publicly known, thereby creating a risk of prejudice on the part of future members of a jury.

18.      During the course of the hearing, and following the various undertakings given by the Deputy Chief Officer, Mr Blakeley was forced to concede that, if the contents of the disciplinary hearing did not in fact leak (i.e. come into the public domain or become known to the prosecution team) there could be no prejudice to either plaintiff in defending any subsequent criminal proceedings.  Even if he had to disclose his line of defence to the disciplinary hearing, this would not have become known to anyone and therefore no prejudice or injustice could be caused.  He was reduced therefore to submitting that, notwithstanding the undertakings and the good faith of those involved in giving the undertakings, there was a risk of inadvertent leakage of the contents of the disciplinary hearings with the consequent risk of prejudice to the plaintiffs' interests in any criminal proceedings. 

19.      We remind ourselves that the test is whether there is a real (the burden being on the plaintiffs) rather than a notional danger of a miscarriage of justice in any criminal proceedings if the disciplinary hearings proceed.  The Court has receive solemn undertakings from the Deputy Chief Officer that the contents of the disciplinary hearings will be known only to the three senior police officers whom he has named and a senior civil servant and that none of them will disclose anything which takes place at the hearings.  A breach of an undertaking to the Court may of course amount to a contempt of court.  The additional undertaking requested by the Court is aimed at preventing any inadvertent disclosure by reason of the process of transcription of any record of the hearings.  In our judgment we are entitled to rely upon the solemn undertaking given by such a senior officer.  In the face of that undertaking we cannot possibly say that there is a real danger of leakage with a consequent risk of injustice.

20.      Mr Blakeley drew our attention to a passage from the judgment of the Royal Court in Wood -v- Establishment (1989) JLR 213 where the Court was considering whether to allow a disciplinary hearing against a civil servant to proceed in the light of criminal proceedings pending against that civil servant.  The court held that the issues to be decided in the disciplinary hearing were not the same as those in the criminal trial and therefore dismissed the application.  However, in passing, it considered an undertaking by the Crown that no publicity would be given to any disciplinary proceedings and in particular the outcome would not be revealed to any party other than committees of the States, and then only on a need-to-know basis.  It was however the case that three members of the proposed disciplinary hearing were to be principal witnesses in the criminal prosecution.  At page 235  Hamon, Commissoner said this:-

"We have, however, more sympathy when it is said that however solemn the undertaking and however careful the restraints, in a small island such as this, publicity is inevitable.  It might be a remote case but the very possibility that a member of the jury (if the matter comes to an Assize trial) might get to know of the hearing and, one might add, its possible consequences, is sufficient caveat to make the court extremely wary of lifting the injunction."

It is not possible for this Court to know what views the court in Wood formed as to the risks of inadvertent disclosure in that case.  Clearly there were a number of people involved in the disciplinary hearing in that case.  For our own part we respectfully consider that the court in Wood was perhaps unduly reluctant to place weight upon a solemn undertaking on behalf of the Crown but, in any event, we are quite satisfied that we can and should rely upon the undertaking given in the case before us.

21.      In the circumstances, that is sufficient to dispose of this matter.  We are satisfied that there is no real danger of injustice being caused to the plaintiffs in any criminal proceedings which may follow if we allow the disciplinary hearings to continue. 

22.      It follows that it is not strictly necessary for us to consider whether, if the disciplinary hearings had not been in private and an undertaking had not been given, the issues involved in the disciplinary hearings and any criminal proceedings would be so similar as to lead us to conclude that injustice might be caused if a public decision were made in the disciplinary proceedings prior to the criminal proceedings.  Nevertheless, because the point was argued, it might be helpful if we simply give the conclusions which we would have reached on that aspect.  It is of course difficult to be sure because no criminal proceedings have been instituted and the Court has very little evidence as to what if any criminal charges might be brought.  However it seems likely that they would be closely related to Allegation 1, namely the suggestion that desktop computers of this specification were ordered by the plaintiffs, not because they were in reality necessary for the performance of their work, but because the plaintiffs wished to use them at home for their own purposes.  In our judgment that is so closely related to Allegation 1 that we would have considered that there was a real danger that they would raise the same issues.  We were unable to accept the Solicitor General's argument that Allegation 1 did not technically require a finding of dishonesty and should therefore be distinguished from any criminal charge which might arise out of the acquisition of these desktop computers. 

23.      As to the remaining allegations, we are quite satisfied that these all relate to breaches of States or Police policies, rules and guidelines and do not (save in relation to Allegation 6 against the third defendant where he has already been convicted) involve any need to establish that a criminal offence has been committed or consideration of whether the necessary elements of dishonesty or criminal intent are present.  The disciplinary hearing will simply have to ascertain whether certain events took place and whether these events amounted to a breach of the relevant policies and rules.  As in Wood, we consider that to be a quite different issue to that of whether the defendant has committed a criminal offence and we do not consider that there would be real danger of injustice even if such a hearing were to be held in public.

24.      If follows that, had the disciplinary hearing been in public, we would have stayed the hearing on Allegation 1 but not on the remaining Allegations against either plaintiff.

25.      However, for the reasons we have given, these matters do not fall for decision in the light of the undertakings and we declined to stay the disciplinary hearings.

26.      Finally, we would invite observations on whether we should order that this judgment should remain confidential to the parties and not be made publicly available until the conclusion of any criminal proceedings or a decision that no charges are to be brought.

Note

This judgment was authorised for publication following a decision not to bring criminal charges against any of the plaintiffs.

Authorities.

Wood -v- Establishment (1989) JLR 213.

R -v- BBC ex p Lavelle (1983) 1 All ER at 241.

Jefferson Limited -v- Bhetcha Limited (1979) 2 All ER 1108.

Glazebrook -v- Housing Committee [2000 JLR 301].