Fair Employment Tribunal Northern Ireland Decisions

You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> Clarke v Police Service for Northern Ireland [2003] NIFET 60_01 (15 August 2003)
URL: http://www.bailii.org/nie/cases/NIFET/2003/60_01.html
Cite as: [2003] NIFET 60_1, [2003] NIFET 60_01

[New search] [Printable RTF version] [Help]

FAIR EMPLOYMENT TRIBUNAL

CASE REF: 60/01 FET

APPLICANT: Adrian Clarke

RESPONDENT: Chief Constable of the Police Service for Northern Ireland

DECISION

The unanimous decision of the Tribunal is that the applicant was not unlawfully discriminated against and his Originating Application is dismissed. He is ordered to pay the sum of £2,000.00 by way of costs to the respondent.

Appearances:

The applicant was represented by Mr P O'Kane, Barrister-at-Law, instructed by Bogue & McNulty, Solicitors.

The respondent was represented by Mr F O'Donaghue, QC, instructed by The Crown Solicitor's Office.

After opening submissions were made in relation to the applicant's claims, Counsel for the applicant took some time and prepared a statement of the issues to be relied on by the applicant in his claim of unlawful discrimination. This statement is annexed to the decision.

The applicant is a serving police constable who has been a member of the force from 1983 and had been serving at Portrush Police Station in or about 1997 onwards. He was a beat and patrol constable involved in neighbourhood policing of the Dhu Varren Estate and the Glenmanus Estate. On 21 May 1999 the applicant was asked to return to the police station and spoke to a Detective Sergeant from Special Branch who warned him that there was a threat to his personal and family safety and information had been provided to criminal elements in the Dhu Varren Estate which appeared to be information coming from 'a leak' within the police station. The applicant was asked to make a report and he was told that it would be fully investigated.

His claim to the Tribunal was that the investigation was not properly conducted and he listed reasons why it was not properly conducted, namely that the other party, Constable Kincaid, was not interviewed properly. The allegations that were made by the applicant were not put to Constable Kincaid and that the Detective Inspector who led the investigation was a family friend of Constable Kincaid. The second element of the alleged discrimination concerned an investigation into the applicant's conduct at Coleraine Courthouse concerning his perverting the course of justice. He and a Protestant Inspector Kincade were both the subjects of a criminal investigation which was conducted by Detective Inspector Montgomery and Detective Sergeant Braithwaite. It was agreed evidence that Detective Inspector Montgomery was Protestant and Detective Sergeant Braithwaite was Roman Catholic. The applicant was a Roman Catholic. The Tribunal accepted that the investigation into the applicant's conduct at Coleraine Courthouse continued after 13 November 2000 and was conducted by other officers. His objections were in relation to the roles of Detective Inspector Montgomery and Detective Sergeant Braithwaite, but in particular Detective Inspector Montgomery continuing to investigate his case. After the objections were raised these two officers handed over the investigation to other policemen.

In relation to the allegation that Detective Inspector Montgomery was a family friend of the Kincaid family, the Tribunal found no evidential basis whatsoever for this allegation. It was accepted that Constable Kincaid's father had worked in Ballymena Police Station during two stages of his career with Detective Inspector Montgomery. Detective Inspector Montgomery was not the Supervising Inspector for Kincaid's father and there was no evidence at all of anything other than a working relationship between the two people. Detective Inspector Montgomery knew that Stephen Kincaid was the son of Aubrey Kincaid and he told Detective Sergeant Braithwaite accordingly. The Tribunal saw all the statements that were taken, some 22 in total, in relation to the criminal investigation initiated by the applicant's complaints. The applicant did not highlight any evidence from the statements that was wrong and the only evidence from those statements which was challenged, in any meaningful sense, was the record of the interview he had with Detective Sergeant Braithwaite in which he denied being at Coleraine Courthouse on the day in question. The allegation was that the applicant was there without any valid reason and talked to John Dillon who was a well-known drug dealer and criminal in the Coleraine/Portrush area. Dillon wanted bail and the allegation was that the applicant went to see him in the cells and said he would assist in getting bail if Dillon went to the police station and made allegations against Constable Kincaid. The Tribunal is satisfied that there was a bad relationship between Constable Kincaid and the applicant.

We heard evidence from Detective Inspector Montgomery and Detective Sergeant Braithwaite as well as the applicant and have no hesitation in saying that we accepted the respondent's evidence in relation to the applicant's presence in Coleraine Courthouse on the day in question. This gave rise to a serious question as to why he was there. The Tribunal accepted from these two officers' evidence that if the applicant had said he was in Coleraine Courthouse there would have been further questions, but the applicant denied that he had been there and the two investigating officers received other persons' statements which led them to believe that the applicant was lying.

The applicant complained that no formal witness statement had been taken from him and the investigating officers had only acted on his complaint report. The Tribunal saw the applicant's report which consisted of four pages and the Tribunal is satisfied that it formed the basis for the investigation and all relevant witnesses were called to give evidence by way of witness statements. The Tribunal does accept that the applicant did not keep a police notebook and had no objective evidence which could be tested in Court in relation to the allegations he made.

The Tribunal accepts the reason put forward by Detective Inspector Montgomery that he did not interview the applicant for the purposes of providing a witness statement because of his failure to keep a police notebook. The Tribunal noted that the applicant was disciplined for this failure. After a full and thorough investigation, Detective Inspector Montgomery, with the assistance of Detective Sergeant Braithwaite, compiled a report which covered every aspect of the investigation. It was forwarded to the Director of Public Prosecutions and 'No Prosecution' of Constable Kincaid resulted. The concurrent investigation into the applicant's conduct at Coleraine Courthouse was finally resolved in 2003 and no criminal prosecution was brought against him.

A complaint was made by the applicant that there was delay in taking statements from all the witnesses after he had presented his complaints. The Tribunal accepts that there was a period of over a year before all the statements were compiled, but accepts the respondent's explanation that they were two busy officers who had to fit in this investigation around their other duties. We are also mindful of the length and number of witnesses who were interviewed in relation to this investigation. In cross-examination, the applicant could not show that Constable Kincaid would realistically have been put on any criminal charge for his behaviour. There were a number of matters which were not proved against him and this was the conclusion reached by the DPP.

The Tribunal does not accept that the applicant has proved that he was subjected to less favourable treatment on the grounds of his religious belief. At its height he has shown that he was Roman Catholic, and one of the investigating officers was Protestant. Also Stephen Kincaid who was investigated at the same time in relation to the death threat on the applicant was a Protestant. This in itself is not enough. When the Tribunal considered all aspects of this case it was satisfied that there was a thorough and full investigation into all the events and accepted that the investigating officers had to make value judgements relating to the credibility or otherwise of the witnesses. Detective Inspector Montgomery stated in evidence that after the incident at Coleraine Courthouse he concluded that the applicant's evidence was totally unreliable. He also stated that 'alarm bells were ringing' when he realised that the applicant did not keep an official police notebook in relation to events during this period or before. The Tribunal has considered all aspects of the applicant's claim and is satisfied that he has not proved he was less favourably treated on the grounds of his religious belief.

The Tribunal was asked by the respondent to consider the questions of costs of this case. Senior Counsel drew our attention to a letter which had been sent to the applicant's Solicitors on 7 August 2003 which dealt with the inadequate replies to particulars and put the party on notice that they would be making an application for costs at the Tribunal. In answer to a question from the Tribunal, Senior Counsel stated that Detective Inspector Montgomery's report and witness statements were provided to the applicant's representatives on 11 June 2003. The applicant in cross-examination was not able to point to any significant indicator of discrimination from that report and the Tribunal considers that that was the time that the applicant and his advisers should have looked very carefully at whether this case should have continued. We have spent four days considering the evidence and have been aware of the unpleasant nature of the allegations which were made and at the end of the day have not been substantiated by evidence.

Under the Fair Employment Tribunal (Rules of Procedures) Regulations (Northern Ireland) 1989, Schedule 1, Rule 11 provided– 'A Tribunal shall not normally make an award in respect of the costs or expenses incurred by a party to the proceedings, but where in its opinion a party ... has in bringing or conducting the proceedings acted frivolously, vexatiously or otherwise unreasonably a Tribunal may make an Order that that party shall pay to another either a specified sum in respect of the costs or expenses incurred by that other party or the whole or part of those costs or expenses as taxed'.

The Tribunal is satisfied that in the way that this case was brought and conducted it does come within unreasonable conduct of proceedings and although the costs of the respondent will be measured in many thousands of pounds, the Tribunal is satisfied that the applicant should be ordered to pay the sum of £2,000.00 as part of those costs to the respondent.

Vice President:

Date and place of hearing: 12 – 15 August 2003, Belfast

Date decision recorded in register and issued to parties: