Jersey Unreported Judgments

Judicial review of decisions of a panel of Jurats in an appeal brought under Article 14(1)(b) of the Police (Complaints and Discipline)(Jersey) Law 1999.

[2014]JRC114B

Royal Court

(Samedi)

21 May 2014

Before     :

Sir Christopher Pitchers, Commissioner, sitting alone.

 

Advocate J. D. Kelleher for the Applicant.

Advocate M. T. Jowitt for the Respondent.

Advocate J. C. Gollop for Police Constable X, Interested Party.

judgment

the commissioner:

1.        The applicant, with leave of the court granted on 12^th November, 2013, seeks judicial review of  two decisions of a Panel of Jurats on 3^rd September, 2013:-

(i)        To vary the sanction imposed on PC X upon his admission of three offences against discipline, within the meaning of the Police (Complaints and Discipline Procedure) Order 2000 ("the decision on sanction"); and

(ii)       Not to publish its decision on sanction ("the decision on publication"). 

2.        On 13^th February, 2013, following a disciplinary hearing, the applicant ordered that PC X be immediately dismissed from the States of Jersey Police.  He gave notice of appeal against that decision.    A Panel of Jurats, appointed by the Bailiff to hear the appeal, after a hearing on 19^th July, 2013, unanimously allowed the appeal and substituted penalty of a reduction of pay of two increments. 

3.        On 3^rd September, 2013, the panel were invited to direct the publication of their ruling.  They decided that they had no power to do so. 

The Decision on Sanction

The facts

4.        PC X admitted three offences under Schedule 1 of the 2000 Order.  The facts were agreed.  PC X had been a police officer with the States of Jersey Police since November 2006.  On Sunday, 8^th January, 2012, he was on duty.  Not long before, his relationship with a local woman had been broken off by her and it was clear that PC X was emotionally upset by that break up.  He believed that she was seeing another man.  Just 05:00, he took a marked police car and drove to her home address some 14.5 km from the police station.  Although he could properly be patrolling by car during his shift, he had no legitimate policing reason to drive to that address. 

5.        A later analysis of the police car's journey showed that PC X had exceeded the speed limit on a number of occasions including driving at 63.7 mph in a 30 mph zone.  He saw a car parked outside her house and noted the number.  He then returned to the police station and accessed the police Viewpoint database to make an enquiry about that particular vehicle registration number so as to confirm the name of the keeper and hence the name of the man with his former girlfriend. 

6.        He told a colleague what he had done and she advised him to make an immediate confession to his superiors.  He did not do so but a complaint from his former girlfriend about a separate matter led to the discovery of his unauthorised accessing of the police database.  When questioned, he did not at first admit the full extent of what he had done but later did so and admitted the disciplinary offences. 

7.        Quite apart from his knowledge gained as a police officer, the specific dangers and difficulties relating to data protection had been spelled out to him in a formal briefing by a superior officer in the previous month. 

8.        Of the three charges that X faced, two related to breaches of paragraph 2 of the Code, headed "Honesty and Integrity".  Paragraph 2 states "It is of paramount importance that the public have faith in the honesty and integrity of officers. Officers should therefore be open and truthful in their dealings; avoid being improperly beholden to any person or institution and discharge their duties with integrity". 

9.        The first charge alleged that on the day in question whilst on duty as a police officer he:-

(i)        at 5:49 hours wrongfully accessed and made enquiries of the police database; and

(ii)       at 5:50 hours wrongfully retrieved information by viewing the result of the enquiry contrary to of the Data Protection(Jersey) Law 2005. 

10.      The second charge related to the unlawful processing of the data obtained by the enquiry and the fact that on 10^th October, 2012, he had been convicted of offences under the Data Protection Law in the Magistrate's Court and had been fined following a guilty plea.  

11.      The third charge was laid contrary to paragraph 13 of the Code (General Conduct) which provides that "whether on or off duty, officers should not behave in a way which is likely to bring discredit upon the force".  The facts of that offence related to his driving a police vehicle other than on police duty and exceeding the speed limit. 

Grounds for Judicial Review

12.      The possible grounds for challenge of a decision by way of judicial review are very well-established both in England and Wales, and in Jersey.  See respectively for example Council of Civil Service Unions v Minister for Civil Service [1985] AC 374 and Planning and Environment Committee v Lesquende Ltd [1998] JLR 1.  They are:-

(i)        Illegality.  Failure by the decision-maker to understand and apply the relevant law;

(ii)       Irrationality.  This is often referred to as 'Wednesbury unreasonableness' i.e. coming to a decision to which no reasonable person applying their mind to the question to be answered could have come.  

(iii)      Procedural impropriety.  Failure to follow the appropriate procedure laid down either expressly or by implication from the rules of natural justice. 

13.      The applicant argues that the decision of the jurats can be challenged on each of these grounds.  The particular matters of complaint are, in some instances, said to fall under more than one head.  For example, it said that they wrongly took account of personal mitigation which it is argued was illegal and procedurally improper.  Taken as whole, it is argued the decision was irrational. 

The hierarchy of sanctions.

14.      Article 29 of the Police (Complaints and Discipline Procedure)(Jersey) Order 2000 provides:-

29    Punishments

(1) Subject to Article 11 and, in the case of the hearing of a disciplinary charge preferred at the direction of the Authority, the requirement for consultation in Article 13(4) of the Law, the presiding officer may impose any of the following punishments, that is to say -

(a) dismissal from the Force or Port Control Unit;

(b) requirement to resign from the Force or Port Control Unit, as an alternative to dismissal, taking effect either forthwith or on such date as may be specified in the decision;

(c) reduction in rank;

(d) reduction in rate of pay;

(e) fine;

(f) reprimand;

(g) caution."

15.      In their conclusion, the Panel said that they "did not find the offences so serious as to merit the highest sanction imposed by Chief Officer Bowron.  They are nonetheless offences which require a penalty".  The Panel decided to substitute the decision of Chief Officer Bowron by "the next available punishment" namely a reduction in the rate of pay by two increments' [emphasis added].  Of course, reduction in pay was not the next available punishment.  Between dismissal and a reduction in pay there was available "requirement to resign".  Reduction in rank was not available because PC X was a constable. 

16.      The applicant seeks to elevate a simple misstatement into an error of law as if there were a statutory requirement to consider each penalty in order and reject it before proceeding to the next.  The point might be arguable if it was apparent that the Panel had wished to consider a sanction which would have removed the officer from the force but did not wish to see him lose his right to immediate payment of his pension and had clearly overlooked the availability of "requirement to resign".  An officer required to resign may still take his pension under the early entitlement provisions whereas an officer dismissed retains the pension but it cannot be paid until the normal retirement age.  In fact the whole of the hearing had proceeded on the basis that what was sought was his continuation as a police officer.  Advocate Gollop had mentioned requirement to resign as something to be rejected for the same reasons as dismissal.  There was no discussion of the different financial consequences of the two sanctions. 

17.      If illustration of this be needed, it can be found in the argument of Advocate Gollop, accepted by the Panel, that the case of Salter v The Chief Constable of Dorset [2012] EWCA Civ 1047 (discussed at length below) was of no assistance to the Panel because the facts were much more serious, as indeed they were.  In fact, Salter would have provided powerful support for anyone considering reduction of the penalty in this case from dismissal to requirement to resign because on those much more serious facts, the sanction imposed on Salter was that he was required to resign. 

18.      I would have come to this conclusion simply from a reading of the transcript and applying common sense to the Panel's reasons.  It was therefore unnecessary for me to consider the affidavit of Jurat Clapham, Chair of the Panel, which the respondent sought to place before me over the objection of the applicant.  It merely confirmed what could be readily deduced from the existing papers.  Had it been necessary to do so, I would have considered it admissible as elucidating the Panel's reasons but not altering them and being consistent with the original reasons.  See the authorities cited in Nash v Chelsea College of Art and Design [2001] EWHC Admin 538 and the summary of the principles at para 34 of Stanley Burnton J's judgment. 

Applying the wrong test

19.      Before the Panel and before me, the applicant referred at length to the recent decision the English Court of Appeal in Salter v The Chief Constable of Dorset [2012] EWCA Civ 1047.  He was right to do so.  That case considers in detail the correct approach to a number of issues relating to sanctions in police disciplinary cases and the principles that it enunciates should be followed in Jersey.  Those principles do not cease to be applicable simply because the facts are more or less serious in the instant case though, of course, each case is decided on its own facts.  Having properly applied the principles, a tribunal may reasonably come to a quite different conclusion in a case with different facts. 

20.      The applicant argues that the Jurats erred in law by not applying the Salter principles in two respects: they should have regarded PC X's conduct as attracting a presumption of dismissal for operational dishonesty and they should not have had regard to personal mitigation. 

The sanction for operational dishonesty

21.      The relevant facts in Salter were these.  Sergeant Salter was an officer with 22 years of exemplary service.  He was a supervising officer in an enquiry into the death in a road traffic accident of a fellow police officer.  He discovered that a mobile phone recovered from the scene of the accident belonging to the deceased officer would reveal that, although in a long term relationship, he was conducting an affair with another woman and had been with her on the night of his death.  Salter instructed a junior officer to retrieve the phone and destroy it.  His motives were entirely altruistic: to save the hurt that would be caused to the deceased's partner and family if the affair became known. 

22.      Salter faced charges under a provision of the disciplinary code relating to honesty and integrity which is identically worded to the one under which PC X was charged.  The disciplinary process is somewhat different in England from Jersey.  At a Misconduct Panel, the stage equivalent to the hearing in this case before the Chief Officer, Salter was required to resign.  He appealed to a Police Appeals Tribunal (with equivalent powers to the Panel of Jurats in this case), who reduced the sanction to reduction in rank.  The Chief Officer sought judicial review of the decision and the judge hearing that case quashed the decision of the Police Appeals Tribunal which had the effect of re-instating the penalty imposed by the Misconduct Panel.  The Court of Appeal upheld that decision. 

23.      The Court of Appeal was clear as to the outcome for any officer charged with operational dishonesty.  Kay LJ giving the leading judgment approved these words of Burnett J in his judgment on the judicial review:-

"Honesty and integrity in the conduct of police officers in any investigation are fundamental to the proper workings of the criminal justice system.  The public should be able unquestionably to accept the honesty and integrity of a police officer.  The damage done by a lack of integrity in connection with the investigation of an alleged offence may be enormous.  The guilty may go free.  The innocent may be convicted. Large sums of public money may be wasted.  Public confidence in the integrity of the criminal justice system may be undermined.  The conduct of a few may have a corrosive effect on the reputation of the police service in general.......the correct approach for a decision-maker is to recognise that a sanction which results in the officer concerned leaving the force would be the almost inevitable outcome in cases involving operational dishonesty. That terminology itself recognises that there may be exceptions."

Kay LJ summarised the position himself at para 19 of his judgment when he said:-

"a sanction resulting in the officer concerned having to leave the force will be the usual consequence of operational dishonesty but it admitted of the possibility of exceptional cases".

That the court was considering operational dishonesty specifically is clear also from the judgment of Gross LJ agreeing with Kay LJ whose words also underline why the distinction is made for operational dishonesty. 

"His [Salter's] insuperable difficulty, however, is that the operational integrity of the police is of fundamental importance.  A central role of the police involves the gathering and preservation of evidence.  The destruction of evidence is inimical to the office of constable, all the more so, when it entailed an instruction to a junior officer to do so."

24.      The applicant seeks to put a gloss on what the Court of Appeal said in Salter so as to extend it to any misconduct while on duty.  This is not what the Court said.  There are different ways of looking at the seriousness of a disciplinary offence.  One of them is the context in which it is committed.  There is a distinction between an offence committed whilst off-duty, one committed whilst on duty but not whilst engaged in operational tasks (this case) and operational misconduct (Salter). 

25.      It is very important to add that there are clear limitations in the application of this distinction.  It would be a serious error for anyone to argue in disciplinary proceedings that Salter is any support for the proposition that only in exceptional cases will dismissal be appropriate for non-operational misconduct.  Misconduct off-duty may be so serious that instant dismissal is called for.  So also may non-operational misconduct whilst on duty. 

26.      This is a convenient point to deal with another of the applicant's arguments although it is deployed in the context of the suggestion that the Panel took into account matters they should not have.  In the course of the hearing, there was discussion as to whether there was a policy in the States of Jersey Police of "zero tolerance" in respect of misuse of personal data.  It was clear that, although all officers had been told of the importance of the security of personal data, they had not been told that instant dismissal would be the normal consequence of any breach. 

27.      In my judgment, a Chief Officer would be fully justified in implementing a policy that a particular form of misconduct which had not previously resulted in automatic dismissal should in future do so provided that:-

(i)        The approach is a proportionate one to the gravity of the misconduct;

(ii)       The new approach has been expressly communicated to all officers;

(iii)      In the words of Kay LJ quoted above, it admits of the possibility of exceptional cases. 

28.      Had that been done in the present case, the applicant would have been on far stronger ground in arguing irrationality in the Jurats' decision.  The legitimate public concern about the holding of personal data on computer by public bodies and the possibility of unauthorised access to it is very relevant to police systems such as Viewpoint.  A vast amount of highly sensitive data is properly held by the police electronically not merely, as in years gone by, previous convictions and ownership of vehicles. 

29.       The applicant further argues that the Jurats' decision was flawed because they took into account matters which were irrelevant.  I consider each of those matters separately. 

Personal mitigation

30.      In Salter, Kay LJ, having agreed with the judge below that personal mitigation carries less weight in this context than in some others, said:-

"23. As to personal mitigation, just as an errant solicitor can usually refer to an unblemished past and the esteem of his colleagues, so will a police officer often be able to do so.  However because of the importance of public confidence, the potential for such mitigation is necessarily limited".

31.      In their reasons at para 22, the Jurats said:-

"while accepting the [applicant's] submission that in case of this kind little weight is to be given to personal mitigation which speaks of their good character and exemplary record, the panel accepted that on the night in question PC X's actions were prompted by 'impaired judgment associated with his distressed mental state' and attach considerable weight to this."[emphasis added]

32.      The applicant characterises the approach in this paragraph as 'plainly wrong' and contrary to Salter.  In fact, as the words emphasised indicate, the Jurats' approach was entirely in accord with Salter.  What will be of little weight is evidence of 'an unblemished past and the esteem of colleagues'.  Factors relevant to the offence such as the state of mind of the officer when he committed the offence are a proper and indeed necessary factor for the Chief Officer and the Panel to consider which may go in his favour as here or against him if, for example, if what took place was a carefully planned and calm act of revenge. 

Mr Hollywood's report

33.      The words quoted by the Panel 'impaired judgment associated with his distressed mental state' came from a report by Mr Hollywood, a clinical psychologist, who acted as a counsellor to PC X some months after the event.  His report was put in by PC X during the hearing before the Chief Officer.  Submitting a report from a psychologist or psychiatrist in mitigation is commonplace and to describe it as 'ambushing' as Advocate Kelleher does is absurd.  It was perfectly open to him when prosecuting the case before the Chief Officer to seek an adjournment to obtain his own report or to require Mr Hollywood to give oral evidence.  He did not do so. 

34.      Mr Hollywood was not putting forward any diagnosis of mental illness and was, in truth, doing no more than confirming the common sense proposition that, after the break-up of an important personal relationship, a person is liable not to be thinking as sensibly as he or she normally would.  That was confirmed by the description of PC X's emotional state on the night given by his two colleagues to which the Panel was fully entitled to have regard. 

Previous disciplinary cases

35.      In the course of the hearing, Advocate Gollop said to the Panel that there was a history of previous cases of a similar nature which had received a lesser or no sanction.  Advocate Kelleher objected on the grounds that there was no evidence before the Panel of those cases.  Plainly, the Panel could not proceed on the basis of such an assertion unsupported by evidence and they expressly did not do so. 

36.      What is, in my judgment, much less plain is why evidence of previous decisions by the Chief Officer in similar cases should not be before a Panel in a case like this.  One aspect of decision-making which can properly be examined both on re-hearing before a Panel of Jurats and by way of judicial review is consistency by the decision-maker, whether like cases are being treated alike.  For example (not this case), a police officer might complain that he or she was being singled out for different treatment in disciplinary proceedings from colleagues in similar cases.  Such an issue could only be decided by examining previous cases. 

37.      It appears that the perceived difficulty is that to reveal in any form the outcome of a disciplinary hearing would transgress the principle that, as I find below, the rules setting up the disciplinary process make it unlawful to publish the decisions taken.  I would have been very sympathetic to the argument that simply giving the outcome of similar cases with the briefest of facts from which the officer concerned could not be identified was not impermissible where it was done in the context of proceedings themselves heard in private and where it was necessary for the proper determination of the issues in the case.  It could be argued that such limited publication did not undermine the statutory requirement that the original proceedings be private.  However, that has not been fully argued before me.  Advocate Kelleher argued for full public dissemination of the unredacted reasons in this case and similar cases albeit he would concede that the names might be removed where the disciplinary proceedings have been unsuccessful.  Advocate Jowitt positively cautions against even such a limited approach as I suggest above.  This must therefore be left for another day. 

The case of PC Y

38.      One previous decision of the Chief Officer and the reasons given by a Panel of Jurats for their decision on appeal was before the Panel in this case.  Both sides referred to it as did the Jurats who simply said that they did not feel much assisted by it.  The objection to mention of Y is not that it was irrelevant.  It was relevant for the reasons set out in paragraph 36 above but that it was inadmissible because it should not be published.  It illustrates an element of unreality in this situation.  Not only will the Chief Officer know what his previous decisions were but so also will any advocate who appeared on either side in other cases and probably also the Police Association.  This is quite apart from canteen gossip which no doubt reaches the ears of other officers.  However, since the Panel did not rely upon it in their decision, this point is of academic interest only. 

Substituting my own decision

39.      The applicant has been unsuccessful in his judicial review so the question of whether, had he been successful, I could substitute my decision for that of the Panel does not arise.  However, since it has been argued, I express a view briefly. 

40.      The High Court in England has the power to substitute its own decision, in very limited circumstances, granted by statute in s31 of the Supreme Court Act 1981 (as amended).  No such statutory power exists in Jersey.  I am unpersuaded that it is possible or indeed necessary were it possible to imply such a power from the inherent powers of the Royal Court.  The normal remedies in judicial review of quashing a decision and sending the matter back to the original decision maker with directions as to the correct approach or, in some cases, the correct decision will almost always be entirely satisfactory. 

41.      In relation to the specific case of police discipline, that is a creature of statute and the 1999 Law gives the power to make a decision in such cases to the Panel of Jurats not to the Royal Court.  For me to make the decision would be to take a power which is, by statute, expressly given to someone else. 

Conclusion

42.      I stress the fundamental point that, on an application for judicial review, my task is to determine whether the decision of the Panel of Jurats was illegal, irrational or demonstrated procedural impropriety.  I have no doubt that it was none of these and that this application must fail.  That does not mean that had they come to a different conclusion that would have been irrational.  Where, after the law has been properly applied to the facts, a decision is a matter of judgment there will frequently be different conclusions to which rational decision makers may come on the same facts.  So it is here. 

The Decision on Publication

43.      On 3^rd September, 2013, the applicant applied to the Panel of Jurats to direct publication of their reasons for allowing PC X's appeal.  This was opposed by PC X.  The applicant seeks judicial review of that refusal.  His further application is opposed by Advocate Jowitt for the Respondents. 

44.      The arguments can be simply stated.  Advocate Kelleher argues that because proceedings in court are published in full unless there is a compelling public interest in not doing so, so also should the proceedings in this case before the jurats.  Advocate Jowitt responds that the fact that the appeal tribunal was composed of jurats does not make the proceedings before them court proceedings.  The Panel hearing an appeal from a disciplinary decision of the Chief Officer is a creature of statute.  Art. 36(1) 0f the 2000 Order states that the appeal hearing shall be in private.  Publication of the reasons would be inconsistent with that and is nowhere sanctioned by any Law or Order. 

45.      Since the conclusion of oral argument, Advocate Kelleher has produced a schedule analysing the position in relation to disciplinary proceedings and appeals both in Jersey and in England and Wales.  It is a helpful document which unfortunately for its author fully supports Advocate Jowitt's argument.  I would point out that the UK First Tier Tribunals referred to therein are not the equivalent of the Panel of Jurats in this case and are properly regards as courts, sitting in public and hence giving published reasons.  Their equivalent in Jersey is the Jersey Employment Tribunal which expressly has the powers of the Royal Court and which required is by the Employment (Jersey) Law 2003 Art.90 (1) to sit in public.  The publication of their judgments flows from those facts. 

46.      Advocate Kelleher's analysis clearly demonstrates that in England and Wales where disciplinary proceedings are against professionals whose conduct may affect the general public, for example lawyers and the medical professions, the legislation setting them up frequently dictates that they shall sit in public.  Publication of their reasons follows inevitably from that.  So far as the police are concerned, the hearing in England and Wales may be directed to be in public but only in the minority of cases where the Independent Police Commission conducted the investigation and then only in limited circumstances. 

47.      Proceedings against lawyers in Jersey are in private (Art. 22(3) of the Law Society of Jersey Law 2005) and Art. 23(2) forbids any publication except where the disciplinary committee directs a public reprimand by way of sanction.  There are no examples in Jersey or in England and Wales of disciplinary hearings where reasons are published following private proceedings where no statutory provision is made for publication. 

Conclusion

48.      The application for judicial review is dismissed.  The Panel of Jurats is not a court.  It is a creature of statutory law whose proceedings are expressly said to be in private.  It would require express statutory provision to justify publication of the reasons for the outcome in private proceedings.  In contrast, this application was heard in court and this judgment will be published subject to suitable anonymisation as to which I will receive submissions from the parties. 

Authorities

Police (Complaints and Discipline Procedure) Order 2000.

Data Protection(Jersey) Law 2005.

Council of Civil Service Unions v Minister for Civil Service [1985] AC 374.

Planning and Environment Committee v Lesquende Ltd [1998] JLR 1.

Salter v The Chief Constable of Dorset [2012] EWCA Civ 1047.

Nash v Chelsea College of Art and Design [2001] EWHC Admin 538.

Supreme Court Act 1981.

Employment (Jersey) Law 2003.

Law Society of Jersey Law 2005.