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High Court of Justice in Northern Ireland Queen's Bench Division Decisions
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Cite as: [2001] NIQB 46
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Neutral Citation no.[2001] NIQB 46
Ref:
KERF3555
Judgment: approved by the Court for handing down
Delivered:
11.12.2001
(subject to editorial corrections)
IN THE MATTER OF AN APPLICATION BY PAULINE SHIELDS FOR JUDICIAL REVIEW
KERR J
Introduction
Paragraph 9 (3) of Royal Ulster Constabulary Force Order 10/2001 provides that an officer whose attendance "does not meet the required standard" shall not be eligible to apply for promotion. Mitigating circumstances are to be taken into account under paragraph 9 (4) and an officer who has applied to be considered by a promotion board but who has been rejected on the basis of their attendance record may make "a personal appeal to the Chief Superintendent Personnel". The required standard for the purpose of paragraph 9 is an absence record of less than 14 days per annum.
The applicant is an inspector in the Police Service of Northern Ireland. She held a similar rank in the Royal Ulster Constabulary. In April 2001 a promotion board was scheduled to consider officers who wished to apply for promotion. The applicant was deemed ineligible to apply because she failed to achieve the standard required by the Force Order. An appeal panel was set up to consider appeals by individual officers against a finding of ineligibility. The applicant lodged an appeal with the panel. This was rejected. Her appeal was reconsidered some short time later but was again rejected.
By this application the applicant seeks a declaration that paragraph 9 (3) of the Force Order is unlawful and an order of certiorari to quash the decision of the appeal board rejecting her appeal.
Background
In 1992 the average period of absence from duty through illness for officers in the Royal Ulster Constabulary was fourteen days per year. The period of absence continued at more or less that level until 1998 when it increased to 16. In the year 1999/2000 it increased to 21 and for the year 2000/2001 the figure has been 22. The absence from duty through illness record of RUC has been the worst in the United Kingdom. Her Majesty's Inspector of Constabulary and the authors of the Patten Report on RUC have referred to the problem of absence from duty through illness in their reports to the government. Both have identified the need for measures to combat the problem. Her Majesty's Inspector recommended that the RUC should implement a sickness management policy "to provide a clear corporate lead to reduce sickness levels across the organisation".
Work on the development of a suitable policy to deal with the absence problem has been taking place since 1983. Several drafts of a new Force Order were prepared but intensive work on the matter began after the appointment, in January 1998, of Robert McDowell as personnel services manager of RUC. Mr McDowell brought impressive qualifications to the post, having been a personnel officer with the Fair Employment Commission for more than five years. He is a fellow of the Chartered Institute of Personnel and Development.
The work on the new policy included (a) considering how other large organisations (such as the Civil Service and the Police Authority) managed attendance policy; (b) consultation with the Police Federation and the Superintendents' Association; (c) deliberations with RUC senior officers including the Chief Constable. The new policy was considered and approved by the Chief Constable's Policy Group. This group includes representatives from the Police Federation and the Superintendents' Association. The Force Order was made on 8 February 2001 and came into effect on that date. Since its introduction there has been a significant improvement in absence records.
According to Mr McDowell prospective candidates for promotion were informed that one of the eligibility criteria would be their record of absence from duty through sickness. They were given full details of this in a document provided for the promotion exercise and were told that they should highlight any mitigating circumstances in their self-nomination form. They were also informed that grounds for an appeal against a decision that they were ineligible had to be specified when making the appeal.
The applicant has been a police officer for some fifteen years. On 17 March 1999 while on duty in Portadown she was struck on the right leg by a missile that had been thrown during a riot. As a result, she was off work until 7 June 1999. On 13 November 1999 she was driving to work when she was involved in a road traffic accident. She was off work from that date until 10 January 2000. On the latter date she returned to work but on 2 October 2000 was compelled to give up work again, she claims, as a result of the effects of the injury sustained in the road traffic accident.
An appeal panel was constituted to consider appeals by those who had been deemed ineligible to apply for promotion because of their sickness record. The applicant wrote to the panel setting out details of her injuries and the reasons for her absences from duty. She also enclosed with her letter a short report from her general practitioner which baldly stated: -
"I consider this lady fit to undergo a selection procedure which does not involve any physical aspect."
The appeal panel also had available to it the applicant's medical file and her computerised sickness record. Superintendent Duncan McCausland acted as chairman of the panel. The other members were Superintendent Julie Lindsay, district commander in Carrickfergus and Chief Inspector Jonathan Kearney of RUC personnel branch. Dr David Courtney who is the chief medical adviser to the Police Occupational Health Unit acted as adviser to the panel. According to Mr McDowell the panel considered the reasons for the absence of each officer. Absences due to injuries that had been sustained in the execution of duty were disregarded. Absences due to "surgical or medical procedures" that had required substantial periods off work were also disregarded where the panel had been supplied with "medical evidence to substantiate the period of absence".
On 11 April 2001 the appeal panel wrote to Inspector Shields informing her that her appeal had been rejected. The letter contained the following passage:
"In arriving at their decision the panel have stated,
'The member has 3 periods of sickness. Periods 2 & 3 whilst accepted as injury on duty for the basis of pension purposes were not in the execution of duty – the member was travelling to work and therefore not performing duty. Medical evidence provided did not assist the panel in accepting mitigating circumstances. Appeal is refused.'
On 13 April Assistant Chief Constable Lamont wrote to Inspector Shields telling her that he had asked the appeal panel to sit again and that she would have the chance to submit further information if she wished. The only further information submitted by the applicant was material generated by the police inquiry into her road traffic accident. The appeal panel again rejected the applicant's appeal and on 23 April 2001 ACC Lamont wrote to explain why. In that letter he said: -
"The panel considered the documentation submitted by the appellant. No evidence was presented to support mitigation in relation to the ongoing absence. Appeal is dismissed."
The case for the applicant
For the applicant Mr Larkin submitted that the ineligibility imposed by paragraph 9 (3) of the Force Order was "retrospective, inflexible and absolute". He claimed that it was inconsistent with the applicant's rights under Article 8 of the European Convention on Human Rights and Article 1 of the First Protocol to the Convention. Alternatively, the term "mitigating circumstances" in paragraph 9 (4) was "impermissibly unclear". The applicant had no means of knowing, Mr Larkin suggested, what might be taken into account as a mitigating circumstance or what impact such a factor might have in the decision as to her eligibility.
Furthermore, he argued, the appeals panel had been provided with irreproachable evidence that the applicant was justifiably absent from duty in the form of a report from the medical adviser of the Occupational Health Unit of RUC, Dr J F McCaughan. This was part of the applicant's medical file that had been supplied to the panel. On 2 February 2001 Dr McCaughan reported that following an examination of the applicant on 1 February 2001 he had concluded that she remained unfit for work and that he did not anticipate an early return to duty. Mr Larkin submitted that the appeal panel had failed to take this evidence into account.
Finally, Mr Larkin argued that the applicant had not been made aware that the appeal panel intended not to treat her absence from duty due to the injuries sustained in the road traffic accident as an injury on duty. This injury and the absence from duty that it occasioned was treated as an injury on duty for the purposes of the Royal Ulster Constabulary (Pensions) Regulations (Northern Ireland) 1988 by virtue of Regulation A 10. The failure of the panel to notify the applicant of this constituted procedural unfairness, Mr Larkin claimed.
The case for the respondent
For the respondent Mr Maguire argued that no aspect of the applicant's private life was affected by the decision of the appeals panel; therefore, Article 8 of the Convention was not engaged. Similarly, the office of constable did not constitute a property right under Article 1 of the First Protocol. Alternatively, if Article 8 or Article 1 of the First Protocol were engaged, the decision taken by the Chief Constable to promulgate the Force Order was in accordance with the law and was necessary in a democratic society and was consistent with the right of a State to enforce such laws as it deemed necessary to control the use of property in accordance with the general interest.
Mr Maguire contended that the applicant had been put sufficiently on notice of the intention of the panel to deal differently with periods of absence which arose from injuries sustained when the officer was not actually on duty. In this context he referred in particular to the letter sent to the applicant on behalf of the panel dated 11 April 2001. He suggested that the applicant was well aware of the considerations that the panel would regard as "mitigating" and that she had chosen not to supplement the medical evidence that had already been submitted on her behalf when given the opportunity to do so. There was no warrant, he said, for concluding that the panel had failed to take account of Dr McCaughan's report. They had considered that report but they were not obliged to accept that as constituting "mitigating circumstances" which would justify disregarding these periods of absence.
Article 8
Article 8 of the European Convention on Human Rights provides: -
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
In advancing the claim that the applicant's Article 8 rights had been infringed, Mr Larkin relied principally on the decision in Neimitz v Germany [[1992] ECHR 13710/88. In that case the offices of the applicant, a lawyer, were searched pursuant to a search warrant granted by a court. The warrant ordered the search in order to find information that would reveal the identity of an individual subject to a criminal investigation and against whom the public prosecutor had unsuccessfully attempted to institute criminal proceedings. The applicant alleged that the search had violated his right to respect for his home and correspondence, contrary to Article 8, and constituted a breach of his right to peaceful enjoyment of his possessions, contrary to Protocol 1 Article 1. The court held that that the references to an individual's 'home' and 'private life' in Article 8 included certain aspects of an individual's professional or business life, especially where a confidential relationship exists, such as the relationship between a lawyer and his client. This interpretation was consonant with the essential object and purpose of Article 8, namely, to protect an individual from arbitrary interference by the public authorities. It followed that Article 8 had been breached. At paragraph 29 the Court said: -
"29. The Court does not consider it possible or necessary to attempt an exhaustive definition of the notion of "private life".
However, it would be too restrictive to limit the notion to an "inner circle" in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world not encompassed within that circle. Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings.
There appears, furthermore, to be no reason of principle why this understanding of the notion of "private life" should be taken to exclude activities of a professional or business nature since it is, after all, in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity of developing relationships with the outside world. This view is supported by the fact that, as was rightly pointed out by the Commission, it is not always possible to distinguish clearly which of an individual's activities form part of his professional or business life and which do not. Thus, especially in the case of a person exercising a liberal profession, his work in that context may form part and parcel of his life to such a degree that it becomes impossible to know in what capacity he is acting at a given moment of time.
To deny the protection of Article 8 on the ground that the measure complained of related only to professional activities – as the Government suggested should be done in the present case – could moreover lead to an inequality of treatment, in that such protection would remain available to a person whose professional and non-professional activities were so intermingled that there was no means of distinguishing between them. In fact, the Court has not heretofore drawn such distinctions: it concluded that there had been an interference with private life even where telephone tapping covered both business and private calls (see the Huvig v France judgment of 24 April 1990, Series A no. 176-B, p. 41, para. 8, and p. 52, para. 25); and, where a search was directed solely against business activities, it did not rely on that fact as a ground for excluding the applicability of Article 8 under the head of "private life"(see the Chappell v United Kingdom judgment of 30 March 1989, Series A no. 152-A, pp. 12-13, para. 26, and pp. 21-22, para. 51). "
In this passage of its judgment, the Court was making the unexceptionable point that a person's professional life may not always be easy to segregate from his private life. It was also remarking on how the relationship that a lawyer has with his client may also be a feature of his private life. The Court was not saying that every aspect of one's professional life will engage the protection afforded by Article 8. In my opinion, a clear distinction can be drawn between the circumstances in the Neimitz case and the present. Here the eligibility of the applicant for promotion within the police force is at issue. That does not involve, even in an oblique way, her personal life nor is there any relationship akin to the lawyer/client relationship that arose in Neimitz at stake. I do not consider, therefore that Article 8 is engaged in this case.
Even if I had concluded that the eligibility of the applicant for promotion attracted Article 8 protection, I would have held that there has not been any interference with the applicant's right to respect for her private life. I am satisfied that it was necessary for the Police Service to devise a scheme to manage absences from duty on the ground of illness and to reduce the substantial level of these absences in the force in Northern Ireland. As conceived and operated, it does not appear to me that the scheme involves any lack of respect for the applicant's private life. She is rendered ineligible as a result of the scheme but this does not appear to me to give rise as an automatic consequence to a lack of respect for her private life.
Furthermore, I am satisfied that if there had been any interference with her private life, this would be justified under Article 8 (2). Society as a whole has an obvious interest in the maintenance of a well-run and effective police force. It was not suggested by the applicant that the Chief Constable was not entitled to devise a scheme that rendered ineligible officers who had been absent from duty through illness. The criticisms of the scheme were not related to it as a concept but rather to its implementation in the applicant's case and the vagueness of the term "mitigating circumstances".
Mr Larkin urged me to conclude, however, that the respondent had not sought to minimise the effects of the scheme on the applicant. In this context he relied on the judgment of the European Court of Human Rights in the recent case of Hatton & ors v United Kingdom [2001] ECHR 36022/97. In that case the applicants lived in the vicinity of Heathrow airport and alleged that their sleep had been regularly disturbed by aircraft noise. The Court held that states were under a positive duty to take reasonable and appropriate measures to secure rights under the Convention and a fair balance had to be struck between the competing interests of the individual and the community as a whole. In striking the required balance, states had to have regard to the whole range of material considerations, and in particular, had to seek to minimise, as far as possible, interference with Article 8 rights. At paragraph 97 the Court said: -
" ... States are required to minimise, as far as possible, the interference with these rights, by trying to find alternative solutions and by generally seeking to achieve their aims in the least onerous way as regards human rights. In order to do that, a proper and complete investigation and study with the aim of finding the best possible solution which will, in reality, strike the right balance should precede the relevant project. "
The Hatton case concerned what the Court described as "the particularly sensitive field of environmental protection" and it remains to be seen whether the Court's analysis of the duty will be applied mutatis mutandis to all species of Article 8 rights. In any event, I am not satisfied that there was any deficiency in the investigation carried out by RUC in advance of the introduction of the scheme. On the contrary, views were solicited from all interested groups and substantial deliberations were undertaken. Even if there had been an interference with the applicant's Article 8 rights, therefore, I would have held that this was justified under Article 8 (2).
Article 1 of the First Protocol
Article 1 of the First Protocol to the Convention provides: -
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."
An interesting debate was engaged as to whether the office of constable constitutes a possession for the purposes of this provision. Mr Larkin submitted that the holder of the office of constable enjoys a property interest in that office. He referred to Blackstone's Commentaries (1766), Volume II, page 36 where it is stated: -
"Offices, which are a right to exercise a public or private employment, and the fees and emoluments thereunto belonging, are also incorporeal hereditaments: whether public, as those of magistrates; or private, as those of bailiffs, receivers and the like."
For the respondent Mr Maguire argued that there was no authority that suggested that the office of constable constituted a property right. He referred to the fact that by virtue of section 19 of the Police (Northern Ireland) Act the police force is under the direction and control of the Chief Constable and under section 25 of the same Act the Secretary of State for Northern Ireland has extensive powers to make regulations controlling the activities and duties of the police force. The existence of such powers was inconsistent, Mr Maguire argued, with the notion that the holder of the office of constable enjoyed a right to it as a possession for the purpose of Article 1 of the First Protocol.
I do not find it necessary to attempt a resolution of this dispute because I am satisfied that, even if the office of constable is to regarded as a possession, and even if the refusal to treat the applicant as eligible for the promotion board can be said to deprive her of the "peaceful enjoyment of her possessions", the implementation of the Force Order is consistent with the right of the Police Service to enforce such a regime "in accordance with the general interest". It is in the public interest, in my judgment, that absence of officers from duty through illness should be minimised. There is already evidence that this is being achieved through the implementation of the Force Order. Its provisions are, I believe, proportionate in their response to the perceived problem. I do not consider, therefore, that there has been a violation of Article 1 of the First Protocol.
Retrospectivity
The applicant claimed that the Force Order was retrospective in its effect in that its introduction and coming into force in February 2001 meant that her sickness record for the two years prior to April 2001 (the date scheduled for the promotion board) would count against her whereas previously it would not have been a bar to her eligibility. In advancing this claim Mr Larkin relied on the decision of the House of Lords in L'Office Chefifien des Phosphates and another v Yamashita-Shinnihon Steamship Co Ltd [1994] 1 A.C. 486. In that case in 1985 the owners of a vessel allegedly damaged while on hire to the charterers referred their claim against the charterers to arbitration. In 1992, the charterers applied to the arbitrator to dismiss the claim for want of prosecution under section 13A of the Arbitration Act 1950, as inserted by section 102 of the Courts and Legal Services Act 1990, which had come into force on 1 January 1992. The arbitrator found the owners guilty of inordinate and inexcusable delay before, but not after, 1 January 1992. He concluded that section 13A applied retrospectively and that the conditions prescribed for its operation by section 13A(2) were satisfied and dismissed the claim. On the owners' appeal, Saville J. set aside the arbitrator's award, holding that in the absence of express statutory terms the presumption against retrospectivity applied so as not to deprive the owners of their existing right to pursue the claim. The Court of Appeal by a majority dismissed an appeal by the charterers. The House of Lords held that the basis of the rule regarding retrospectivity was fairness; that the rule was not absolute and the question in each case was whether the consequences of reading the statute with the suggested degree of retrospectivity were so unfair that Parliament could not have intended its words to be so construed. It held that the meaning of the words employed in the statute was sufficiently clear to indicate that Parliament had been willing to tolerate the degree of hardship involved in giving the legislation a partially retrospective effect; and that, accordingly, the arbitrator had been entitled to take into account the delay that had occurred before 1 January 1992 and dismiss the owners' claim.
Mr Larkin argued that fairness in the present case required that the policy should not be applied retrospectively to the applicant and the Force Order should be construed so as to apply it only to those who had accumulated the requisite period of absence from duty after it came into force. Alternatively, he suggested that paragraph 9 (3) of the Force Order should be declared unlawful because of its retrospective effect. In this context he relied on the decision of ECtHR in the case of Pressos v Belgium [1995] ECHR 17849/91. In that case the applicants were owners of ships involved in collisions in Belgian or Netherlands territorial waters prior to September 1988, who had brought proceedings in negligence, which were still continuing, either against the Belgian State or private pilot services. In September 1988 Belgian law was amended so as to remove retrospectively liability for the negligence of pilots. The Court held that the claims in respect of damage done to the applicants' ships were claims in tort, which came into being as soon as the damage occurred and therefore such claim constituted an asset which was a possession so as to be within the scope of Article 1 of the First Protocol. There had been an interference therewith by the 1988 law.
Mr Larkin submitted that the Force Order brought about essentially the same type of result. Before the coming into effect of the Order, the applicant would have been eligible for consideration by the promotion board. After February 2001 she was ineligible on the basis of events that had occurred before that date. This was, he claimed retrospective penalisation. Fairness required that the applicant should not be subject to ineligibility on the basis of events that would have been innocuous before the Force Order came into effect.
I do not consider that the Force Order can be said to have retrospective effect. It came into force before the promotion board was held. Unlike the position in the Pressos case, here the applicant's right to apply for promotion did not exist at the time that the promotion board was due to take place. Her right was not removed by a retrospective measure. As Mr Maguire pointed out, the Force Order does not remove an established right; rather it seeks to make use of historic information to provide for contemporaneous eligibility. In any event, there is no rule of law in pre-incorporation domestic jurisprudence that prohibits the introduction of a measure such as the Force Order on account only of its retrospective effect. Even if such a rule of law were to be recognised, by analogy with the L'Office Chefifien case, I would have held that it would be fair that such a retrospective effect should be permitted to occur. To hold otherwise would cause a substantial compromise in the efficacy of the policy of reducing the absence from duty record of the police force as a whole. The implementation of the policy would effectively be delayed for two years. I cannot accept that this would be either fair or reasonable.
By the same token, any interference with Article 1, Protocol 1 rights is justified in the general public interest. In the Pressos case the court had ruled that the 1988 law was a fundamental interference with the applicant's rights and inconsistent with preserving a fair balance between the various interests at stake. By contrast a fair balance has been struck in this instance between the individual interest of the applicant and the general interest in reducing the absence from duty record of the police force.
Procedural unfairness
The argument that the applicant had not been made aware that the appeal panel intended not to treat her absence from duty due to the injuries sustained in the road traffic accident as an injury on duty can be dealt with briefly. The letter of 11 April 2001 was explicit in informing the applicant that the panel was not prepared to treat absences due to injuries sustained in the road traffic accident as having been sustained on duty even though these would have been so treated for pay and pension purposes. The applicant was clearly on notice of this view when she had the opportunity to make further submissions to the panel.
The applicant was also aware that the panel had concluded that the medical evidence available to it was not sufficient to persuade it to disregard those periods of absence from duty under paragraph 9 (4) of the Force Order. She had the opportunity to supplement her medical evidence, therefore, and it appears that she had been examined by a consultant orthopaedic surgeon. She did not ask the panel to consider a report from the surgeon, nor did she offer any further medical evidence.
Failure to have regard to Dr McCaughan's report
I accept the submission of Mr Maguire that there is no evidence to support the suggestion that the panel failed to have regard to Dr McCaughan's report. It was before them at both stages of consideration of the applicant's appeal and there is no reason to suppose that they would have ignored it.
I do not consider that the panel was bound to accept the report as constituting "mitigating circumstances" which would justify disregarding these periods of absence. The report was cryptic and had not been produced for the purpose of the appeal hearing. It was a report to the chief inspector of personnel services. The approach of the panel appears to have been that they would automatically disregard any period of absence from duty as a result of an injury sustained while the officer was actually on duty. An injury that was suffered other than on duty (even if it would have been treated as an on duty injury for pay and pensions purposes) would not be disregarded. Absences arising from such injuries were nevertheless considered by the panel and would be disregarded if the panel considered that the particular circumstances of the case warranted it. I can detect nothing wrong with this approach or with the panel's conclusion that in the absence of sufficiently strong medical evidence, the applicant's sick leave as a result of the road traffic accident should be taken into account in deciding whether she should be deemed eligible to apply for promotion. The application for judicial review is therefore dismissed.
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
IN THE MATTER OF AN APPLICATION BY PAULINE SHIELDS FOR JUDICIAL REVIEW