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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Cooper, Re Application for Judicial Review [1999] ScotCS 271 (16 November 1999)
URL: http://www.bailii.org/scot/cases/ScotCS/1999/271.html
Cite as: [1999] ScotCS 271
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OUTER HOUSE, COURT OF SESSION

 

P15/14G/1999

 

 

 

 

 

 

 

 

 

 

 

OPINION OF LORD EASSIE

 

in the Petition of

 

NEIL JOHN COOPER

 

Petitioner;

 

for

 

JUDICIAL REVIEW OF A DECISION OF THE SECRETARY OF STATE NOT TO UPHOLD AN APPEAL BY THE PETITIONER AND TO REMIT AN APPEAL BY THE PETITIONER TO THE SHERIFF PRINCIPAL OF GRAMPIAN HIGHLAND AND ISLANDS FOR FURTHER INVESTIGATION

 

 

________________

 

 

Petitioner: Bovey, Q.C.; Balfour & Manson

Respondent: Dunlop, Q.C., Bevan; Richard Henderson, Scottish Executive

 

16 November 1999

 

When this petition for judicial review came before me for a first hearing it appeared that there was no material factual dispute between the parties.

Factual background and statutory Provisions

For some years prior to 18 September 1996 the petitioner held the office of a police constable in the Grampian Police Force. As the holder of that office the petitioner was subject to the Discipline Code set out in Schedule 1 to The Police (Discipline) (Scotland) Regulations 1967 [S.I. 1967/1021] promulgated by the then Secretary of State under the statutory power then available to him and very shortly thereafter continued in terms of the provisions of section 26 of the subsequent, consolidating statute, the Police (Scotland) Act 1967 - "the 1967 Act". Those regulations also contained in Part III provisions concerning the investigation, adjudication and punishment of offences against the Discipline Code, which provisions were later replaced by those to be found in the schedule to The Police (Discipline) (Scotland) Amendment Regulations 1982 [S.I. 1982/902] - "the 1982 Regulations". Subject to certain exceptions not pertinent to the present case, the disciplinary authority in relation to the petitioner and any alleged offence by him against the Discipline Code was the Chief Constable of Grampian Police (section 26(7) of the 1967 Act) and any charge against the petitioner that he had offended against the Disciplinary Code fell to be determined at first instance by the Chief Constable.

Disciplinary proceedings were indeed instituted against the petitioner in accordance with the 1982 Regulations. For the purposes of this application for judicial review the details of the charges laid against the petitioner do not matter. In due course a hearing was arranged to take place on 18 September 1996 before the Chief Constable in his capacity as the disciplinary authority. In relation to such a hearing regulation 12 of the 1982 Regulations provides inter alia as follows:-

"(1) ... subject to the provisions of this Regulation and of Regulations 13 to 15, the procedure at the hearing shall be such as that chief constable may determine.

(2) The accused shall be ordered to appear at the hearing of the case and at any adjournment thereof.

...

(4) The case against the accused shall be presented by a constable ... of rank equal to or above that of the accused, other than the chief constable, the deputy chief constable, the investigating officer or a witness.

(5) The accused shall be entitled to have a constable (hereinafter referred to as 'his representative') selected by himself to assist him in presenting his case and, without prejudice to the foregoing generality, the accused or his representative may cross examine the witnesses called in support of the case against the accused and call witnesses and make representations in his defence. The accused may also give evidence on his own behalf.

..."

Regulation 14 gives the Chief Constable the power to adjourn the hearing from time to time as it appears necessary or expedient. Regulation 15 of the 1982 Regulations is in these terms:-

"Hearing in absence of accused

15.-(1) If the accused does not attend at the hearing of the case or at any adjournment thereof, the hearing may be proceeded with and concluded in his absence:

Provided that:-

(a) if the accused is detained in pursuance of the sentence of a court in a prison or other institution to which the Prisons (Scotland) Act 1952 applies and expresses a desire to make representations in person at the hearing, the hearing shall not be concluded until the accused has been able to make such representations;

(b) if good reason is given to the chief constable by, or on behalf of, the accused why the accused is unable to attend the hearing, other than that the accused is detained as aforesaid, the hearing shall be postponed or adjourned, as the case may be.

(2) Where, owing to the absence of the accused, it is not possible to comply with the whole or any part of the procedure described in this Part of the Regulations, the case may be proceeded with as though that procedure had been complied with."

The petitioner did not attend the hearing on 18 September 1996. His representative at that hearing put before the Chief Constable certain medical reports and the oral evidence of the medical advisor to the effect that the petitioner was currently unfit to attend the hearing. It appears that the Chief Constable, having considered the terms of the medical reports and having had regard to other factors additional to the medical material, decided that the hearing should proceed in the petitioner's absence. The disciplinary hearing accordingly proceeded and at its conclusion the Chief Constable found the petitioner guilty of certain of the charges alleged against him and imposed certain penalties in respect of those charges on which the petitioner had been found guilty.

The 1967 Act makes provision for an appeal from the decision of the disciplinary authority to the Secretary of State. Section 30(2) of the 1967 Act provides that on such an appeal the Secretary of State may allow or dismiss the appeal or vary the punishment and it is enacted in sub-section (4) of section 30 of the 1967 Act that Schedule 3 to that Act shall have effect in relation to any such appeal.

Paragraph 3 of Schedule 3 to the 1967 Act (as amended by the Sheriff Courts (Scotland) Act 1971) is in these terms:-

"Inquiries

3.-(1) the Secretary of State shall, unless it appears to him that the case is of such a nature that it can properly be determined without taking evidence, request the [sheriff principal] to hold an inquiry and report to him.

(2) The [sheriff principal], in holding an inquiry under this paragraph, may require any person to attend as a witness and give evidence, or to produce any documents in his possession or power which relate to any matter in question at the inquiry and are such as would be subject to production in a court of law; and if any person fails without reasonable excuse to comply with the provisions of any such requirement he shall be liable on summary conviction to a fine not exceeding five pounds.

(3) The [sheriff principal], in the exercise of the functions conferred on him by this paragraph, shall have the like power as regards the administration of oaths as if he were acting in the exercise of his civil jurisdiction.

(4) The Secretary of State shall, before determining an appeal under the principal section, consider any report made to him under this paragraph, as well as the notice of appeal and any other documents submitted to him by the appellant and the respondent in accordance with rules under this Schedule.

(5) The Secretary of State may, before determining an appeal under the principal section, remit the case for further investigation by the [sheriff principal] when an inquiry has been held, or in any case, if he thinks fit, for further consideration by the disciplinary authority.

(6) In this paragraph '[sheriff principal]' does not include a [sheriff]."

Among other things, paragraph 4 of Schedule 3 provides that where an appeal is allowed or the punishment varied, the Secretary of State's determination shall take effect by way of substitution for the decision from which the appeal has been taken.

In terms of paragraph 5 of Schedule 3 the Secretary of State is empowered, and in part required, to make rules as to the procedure on appeals and at inquiries under the schedule. That power was exercised in the Police (Appeals) (Scotland) Rules 1969 [S.I. 1969/1632] - "the Appeal Rules". Those rules made particular provision for the inquiry by the Sheriff Principal which the terms of paragraph 3(1) of Schedule 3 to the 1967 Act requires to be held, unless the Secretary of State determines that the appeal to him may be determined without the taking of any evidence. Having been sent an appellant's statements of his grounds of appeal and the respondent disciplinary authority's statement, the Sheriff Principal is empowered (Regulation 5) to allow adjustment and revision of those statements before proceeding to hold the inquiry. Regulation 6 of the Appeal Rules is in these terms:-

"6.-(1) The sheriff [ie the Sheriff Principal] shall, by Interlocutor, appoint a day, time and place for the holding of the inquiry and shall ordain the parties to intimate in writing to the Sheriff Clerk specified in the Interlocutor, not later than 5 days before the date of the inquiry the names of any witnesses or havers whom they wish to be required to attend or to produce documents in their possession. The sheriff shall cause a copy of the Interlocutor to be sent to the appellant, the respondent and the Secretary of State not less than 14 days before the date of the inquiry.

(2) The sheriff may proceed with the inquiry in the absence of either the appellant or the respondent, whether represented or not, if it appears to him to be just and proper to do so, and may adjourn the inquiry from time to time as may appear necessary for the due hearing of the appeal.

(3) Subject to these rules, the procedure at an inquiry shall be determined by the sheriff who shall have power to hear any new evidence, and to rehear the evidence given at the disciplinary hearing, and to specify by Interlocutor the procedure to be followed at the inquiry and the party who shall lead evidence first."

Regulation 8 of the Appeal Regulations provides that the appellant shall have the right to be assisted in presenting his appeal and to be represented at the inquiry by a constable or by counsel or a solicitor. Regulation 12 relates to the report of the Sheriff Principal. Among other things the report is to include a statement of the facts admitted or found to be proved and a statement of the Sheriff Principal's opinion on whether the punishment awarded was a just and proper one warranted by the facts.

The petitioner duly appealed to the Secretary of State, in terms of the 1967 Act and the Appeal Regulations against the findings made and the punishments imposed by the Chief Constable in his capacity as disciplinary authority on 18 September 1996. The statement of grounds of appeal contained three principal chapters. First, challenge was made to the Chief Constable's decision to proceed with the hearing without the petitioner being personally in attendance. Secondly, challenges were made to the sufficiency and the reliability of the evidence tendered in relation to the merits of the charges against discipline upon which the petitioner was found guilty by the Chief Constable in his capacity as the disciplinary authority. The third chapter related to the penalties imposed, the contention being that they were in any event excessively severe.

On consideration of the appeal documentation the Secretary of State resolved that the appeal could not be determined without hearing evidence. No suggestion is made on behalf of the petitioner that the Secretary of State was not correct in taking that view. The Secretary of State was accordingly required to remit matters to the Sheriff Principal, which he did by a letter of 18 September 1998 (No. 7/2 of process). The letter contained a summary of the circumstances giving rise to the reference to the Sheriff Principal and, in Appendix 2 thereto, the terms of reference which in effect requested the Sheriff Principal to hold an inquiry into the case at large. A copy of that letter was sent to the petitioner's representatives.

Following receipt of the reference to him the Sheriff Principal, through the Regional Sheriff Clerk, wrote to the Scottish Office to advise as to how he proposed to proceed with the inquiry (No. 7/3 of process). The letter stated that the Sheriff Principal considered that the appeal raised three questions namely:-

"(1) Was the Chief Constable entitled to refuse the appellant's motion to postpone the hearing?

(2) If the first question is answered in the affirmative, was the Chief Constable entitled to convict the appellant of all or any of the charges?

(3) If question two is answered to any extent in the affirmative, was the punishment which he imposed too severe?"

Having made reference to paragraph 3(5) of Schedule 3 to the 1967 Act the Sheriff Clerk's letter continued as follows:-

"He [the Sheriff Principal] suggests that his inquiry should be in two stages. In the first place, he should answer question (1). If he were to answer that question in the negative the Secretary of State might wish to remit the case to the disciplinary authority for further consideration and a diet at which the appellant was able to be present and to give instructions to his solicitor. If he were to answer question (1) in the affirmative he would then require to consider questions (2) and (3), which would entail reviewing the evidence concerning the various charges."

By letter of 30 October 1998 (No. 7/4 of process) the officer in the Scottish Office to whom the Sheriff Clerk's letter had been addressed replied to the Sheriff Clerk. Having thanked her for her letter he wrote:-

"I am very grateful for the consideration which the Sheriff Principal has given to this matter, and I agree with his assessment of the issues which arise. It is helpful to have the opportunity to comment - but of course the manner in which the Sheriff Principal disposes of the matter is entirely for him and I would not wish to intrude into his exercise of discretion!

We had deliberately remitted the whole issue to the Sheriff Principal because we saw several problems in remitting the case to the Chief Constable. First we risk getting it to the same impasse as faced [the Chief Constable holding office in September 1996] because of the complicated approach taken by Regulation 15; whereas the Sheriff Principal is not trammelled by Regulation 15. Second, notwithstanding the change of Chief Constable, we think that it would be difficult in the circumstances of the case for a fresh hearing by the disciplinary authority to be seen to be impartial; whereas the Sheriff Principal's impartiality would not be questioned. Thirdly (and a less significant point) there is the practical difficulty that the present Chief Constable could not himself hear the case (because of his early involvement in one aspect of the case in his capacity as an investigating officer from another force); it would be necessary to import a Chief Constable for the purpose.

Please let me know if there is anything further I can assist with at this stage."

On 7 December 1998 the Sheriff Principal commenced his inquiry which at that stage was apparently restricted to the circumstances attending first ground of appeal - namely the Chief Constable's refusal to adjourn the hearing on 18 September 1996 - and thereafter, on 10 December 1998 the Sheriff Principal submitted a report to the Secretary of State (No 6/2 of process). In broad summary, having reviewed the material before the Chief Constable on 18 September 1996 and the transcript of the proceedings on that date the Sheriff Principal concluded that in his consideration of the motion to adjourn made to him on 18 September 1996 the Chief Constable had applied the wrong test. Since the petitioner was unfit, for medical reasons, to attend the hearing the petitioner had good reasons for not attending and consequently the terms of Regulation 15 of the 1982 Regulations required adjournment. The Chief Constable had been wrong to include any other, wider considerations in his decision whether to grant the motion for adjournment of the hearing. The Sheriff Principal concluded his report in these terms:-

"For the foregoing reasons I recommend that the appeal should be upheld to the extent of finding that the Chief Constable was not entitled to proceed with the disciplinary hearing on 18 September 1996 in the absence of the appellant. If that recommendation is accepted, you will wish to consider whether to (a) allow the appeal and quash the findings of the disciplinary hearing, (b) remit the case for re-hearing by the disciplinary authority, or (c) remit the case for further investigation by myself".

By letter of 7 January 1999 the officer of the Scottish Office dealing with the matter wrote to the Sheriff Principal stating that:-

"The Secretary of State has agreed that the case should be remitted to you for further investigation which would entail the re-hearing of the whole evidence".

By letter of 8 January 1999 (No. 7/6 of process) the same officer wrote to the petitioner's agents in these terms:-

"I am writing to bring you up to date with the appeal on behalf of [the petitioner] - about which I last wrote to you on 18 September.

As you know the Sheriff Principal commenced his inquiry on 7 December 1998 and I attach the report which he subsequently submitted to the Secretary of State. The Secretary of State has accepted the recommendation in the final paragraph of the Sheriff Principal's report, and has remitted the case for further investigation by the Sheriff Principal (that is, the third option in the final paragraph of the report). I understand that, against the possibility of such a remit, the Sheriff Clerk's officer has already been in touch with you to suggest dates in February and March for the whole evidence".

By interlocutor of 9 March 1999 the Sheriff Principal assigned a diet for further inquiry into the petitioner's appeal to the Secretary of State. On 26 March 1999 this petition for judicial review was presented and in consequence of its presentation agreement was reached in relation to the seeking of interim orders that that further stage of the Sheriff Principal's inquiry should not proceed pending a decision in these proceedings.

The Petition

The orders now sought by the petitioner (other than interim orders) are set out in Statement 3 of the Petition as follows:-

"3.1 Declarator that the decision of the Chief Constable to dismiss the petitioner as a constable is a nullity et separatim ultra vires and that in not upholding the petitioner's appeal the respondent accordingly erred in law et separatim reached an unreasonable decision.

3.2 Declarator that deciding to remit the petitioner's appeal to the Sheriff Principal of Grampian, Highland and Islands for further investigations the respondent erred in law et separatim reached an unreasonable decision; ...

3.3 Reduction of the said decisions;"

The pleas-in-law set out in the petition are in these terms:-

"1. The decision of the Chief Constable to dismiss the petitioner as a constable being a nullity et separatim ultra vires and the respondent having accordingly erred in law et separatim reached an unreasonable decision in not upholding the petitioner's appeal, declarator should be pronounced as sought.

2. Separatim and in any event the petitioner having legitimate expectation that the regulation relied upon will be complied with in the determination of the disciplinary case against him is entitled to enforce that compliance.

3. The respondent having erred in law et separatim reached an unreasonable decision in deciding to remit the petition's appeal to the Sheriff Principal of Grampian Highland and Islands for further investigation declarator et separatim reduction should be pronounced as sought".

Submissions for the Petitioner

Although in the second plea-in-law and elsewhere in the petition reference is made to legitimate expectation, the submissions advanced by Mr Bovey, who appeared for the petitioner, made no reference to the concept of legitimate expectation and no authority relevant to that concept was cited by him. In summary, counsel submitted firstly that the petitioner was entitled to enforce compliance with Regulation 15 of the 1982 Regulations, which was conceived for the benefit of the petitioner. A decision of the disciplinary authority taken when compliance with that regulation had not been made was unlawful. The Sheriff Principal had found that the disciplinary authority should not have proceeded with the hearing. The material and evidence regarding the merits of the charges thereafter placed before the Chief Constable was put before the Chief Constable irregularly. That being so, (notwithstanding the evident contention in the petition that the procedural defect led to the automatic allowance of the appeal) counsel for the petitioner referred to the terms of paragraph 3(5) of Schedule 3 to the 1967 Act and submitted that under those provisions the Secretary of State had a power to remit the whole case to the Chief Constable for a re-hearing. If that power were exercised, there being otherwise nothing validly before the Chief Constable, the 1982 Regulations (rather than the Appeal Regulations) would have to apply to that re-hearing and consequently the protection of Regulation 15 would exist. The Scottish Office letter of 30 October 1998 indicated a motive to elide the protection of Regulation 15. Counsel accepted that it could not be said that the petitioner had not agreed with the Sheriff Principal's proposed approach to the inquiry. However, it was said by counsel that it was not in the competence of the Secretary of State to deny the petitioner what counsel described as the benefit of rule 15.

In anticipation of an argument on behalf of the respondent that the existence of an appeal at large might remedy or cure the procedural defect reported upon by the Sheriff Principal in his report of 10 December 1998 counsel for the petitioner said that there was a difference between a case involving a misapplication or breach of a statutory procedure rule and one involving a breach of the rules of natural justice. In that regard counsel referred to McDonald v Lanarkshire Fire Brigade Joint Committee 1959 S.C. 141 (and its subsequent mentions in Watt v The Lord Advocate 1977 S.L.T. 130; 1979 S.L.T. 137 and West v The Secretary of State 1992 S.C. 385). Counsel referred also to paragraph 227 of Professor Bradley's article in Volume I of the Stair Encyclopaedia. In regard to the curing of first instance procedural defects by appeal proceedings Mr Bovey also referred to certain passages in the speeches delivered in Lloyd v McMahon [1987] 1 A.C. 625; Annamunthodo v Oilfields Workers' Trade Union [1961] A.C. 945 and Calvin v Carr [1980] A.C. 574. Assuming that the concept of the curing of procedural defects at first instance could be applied in cases in which the defect was a breach, not of the requirements of natural justice, but of some statutory procedural rule (which assumption counsel appear to dispute) the proposition which I understood him to seek to derive from Lloyd v McMahon in particular was that the "quality" of the appellate review was important in deciding whether that review overcame the procedural defect at first instance. In the present case, said counsel, the quality of any inquiry before the Sheriff Principal would be worse than a hearing before the Chief Constable. The reason for which it would be worse was that the Sheriff Principal would not be subject to the provisions of rule 15 of the 1982 Regulations. Counsel went on to place before the court the decision in Johnston v The Secretary of State 1992 S.L.T. 387 and referred in particular to the passages at 391K and 393C ff. As I understood counsel, his position was that the present case was to be distinguished from Johnston in that the object of the present petition was to prevent the Secretary of State from getting material other than in a manner provided by the 1982 Regulations. The departure from the rules in Johnston was minor but in the present case it was major. In essence the Secretary of State had acted unreasonably in remitting to the Sheriff Principal for further investigation. In a concluding, but confused, discussion of the pleas-in-law for the petitioner counsel moved first that plea 2 be upheld (although conceding that he had presented no argument in support of a case of legitimate expectation); secondly, that the third plea be upheld and the decision to remit for further inquiry be reduced simpliciter - the implication being that the Secretary of State might then remit for a re-hearing before the disciplinary authority; and thirdly - as I understood it - that if (a) the choice facing the Secretary of State were between a further remit to the Sheriff Principal to continue his inquiry or allowing the appeal and thus acquitting the petitioner and (b) the remit were unreasonable and thus invalid, it would follow (c) that the only legitimate option was to uphold the appeal. However, if it were an option to remit to the disciplinary authority for a complete re-hearing that would mean that the first plea-in-law should not be upheld.

Submissions for the Respondent

In his reply Mr Dunlop, for the respondent, observed at the outset that counsel for the petitioner's discussion of his pleas bore little relationship to the terms of the petition or his arguments. He further observed that the instance of the petition stated that it was directed to a decision by the Secretary of State "not to uphold the petitioner's appeal". However, it was plain that the Secretary of State had not decided not to uphold the appeal. His decision on the appeal was yet to come and he had not dismissed it. On receipt of the appeal to him the Secretary of State had remitted matters to the Sheriff Principal for inquiry. The Sheriff Principal, in his discretion, had chosen to go about that in a particular way with which the Secretary of State had not taken particular issue but the Secretary of State had not exercised any power under paragraph 3(5) of Schedule 3 to the 1967 Act to remit for further inquiry having received a final report from the Sheriff Principal. The letter of 7 January 1999 had to be seen in the context of its being a reply to the Sheriff Principal's letter of 10 December 1998 in which the Sheriff Principal himself had envisaged continuing with the inquiry remitted to him previously. In asking the Sheriff Principal to continue with the remit previously given to him the Secretary of State was not exercising any power under paragraph 3(5) of Schedule 3.

Counsel for the respondent then observed that the result for which the petitioner was contending in the petition amounted to the assertion that in the light of the Sheriff Principal's report of 10 December 1998 the Secretary of State had no choice but to allow the appeal and exonerate the petitioner. If regard were had to the whole provisions of the statutory scheme that assertion was unsound and unjustified. The provisions of the 1967 Act were enacted also with the public interest in view. Prima facie the notion that a mistake in procedure by a disciplinary authority would result in the exoneration of the constable, even if he were in fact unfit to hold office as a police constable by reason of the matters alleged against him, was unattractive. The element of public interest had been stressed by the court in the Johnston case (at 393E) and matters could not be viewed simply in terms of the possible interests of the petitioner without regard to the public interest.

The terms of the statutory provisions meant that on appeal to the Secretary of State the whole case was open for re-hearing de novo. Unless the appeal could be determined without evidence, the Secretary of State was required to remit to the Sheriff Principal. The appeal rules envisaged the taking of evidence and a complete hearing (rules 3(4), 6(3)). The Sheriff Principal required to report on the facts admitted or found proved and to give his reasons and recommendations but the ultimate decision on the whole merits of the appeal was with the Secretary of State. The statutory scheme therefore envisaged the overcoming of any procedural deficiencies at first instance by the comprehensive re-examination provided for on appeal. The arrangements in this case were similar to those in Lloyd v McMahon. There was no material difference between a breach of a statutory rule of procedure, such as rule 15 of the 1982 Regulations, and a breach of the fundamental rules of natural justice, the latter being just as mandatory and having a similar vitiating effect on the first instance proceedings. In that respect, counsel referred to Calvin v Carr, in particular at 598H; 592C-593C whence it was apparent that breach of the rules of natural justice entailed voidness.

Counsel for the respondent further pointed out that the petitioner had initiated the current appeal. The appellate arrangements were plainly capable of ending in a fair result. There was no reason why the court in the exercise of its supervisory jurisdiction should stop that appellate process half way through its currency.

Counsel went on to observe that the approach adopted by counsel for the petitioner entailed the proposition that no result could be valid unless the petitioner had "throughout" the "protection" of Regulation 15 of the 1982 Regulations. That was inherent in the contention that it was unreasonable for the Secretary of State to continue the remit which he had made to the Sheriff Principal and not send the case to the Chief Constable for a re-hearing. But, properly construed, the statutory provisions did not give the Secretary of State power to remit to the disciplinary authority to carry out a re-hearing. Unless the appeal could be determined without hearing evidence (which did not apply in the present case) the Secretary of State was required to remit to the Sheriff Principal to carry out his inquiry. Even if, in an appropriate case, the Secretary of State exercised the power under paragraph 3(5) of Schedule 3 to refer the case to the disciplinary authority for further consideration, that reference preceded the Secretary of State's decision on the appeal, the determination of which always remained with him. It was not correct to say that if the Secretary of State decided, as part of the appellate process, that he should invite some reconsideration by the disciplinary authority that the procedural rules applying at first instance would then apply to what was a stage in the appellate process.

Counsel for the respondent referred additionally to Brown v The Labour Party 1995 S.L.T. 985, and in particular to the passage at 990F but acknowledged that it was not a decision of direct relevance to the present case. Counsel for the respondent moved that the petition be dismissed, the first plea-in-law for the respondent being upheld.

Decision

Although in his submissions counsel for the present petitioner approached the matter in what appeared to be a somewhat indirect manner a material issue - and indeed the principal issue focused in the petition - is the proposition that in light of the Sheriff Principal's report concerning the first ground of appeal the Secretary of State had no choice but to uphold the appeal and thus exonerate the petitioner from the charges on which he had been found guilty by the disciplinary authority.

In my view that proposition is unsound. Accepting for present purposes that the Chief Constable, as disciplinary authority, may have misconstrued or misapplied rule 15 of the 1982 Regulations it does not follow that such a procedural defect at first instance must automatically result in the allowance of the appeal and the exoneration of the constable. It is, I think, clear that where an appeal exists against a decision of a tribunal of first instance the nature and scope of the appeal may be such as to remedy or overcome a defect in procedure at first instance, such as a breach of the rules of natural justice. In Calvin v Carr the Judicial Committee of the Privy Council said, at 592C-E:-

"... their Lordships recognise and indeed assert that no clear and absolute rule can be laid down on the question whether defects in natural justice appearing at an original hearing, whether administrative or quasi-judicial, can be 'cured' through appeal proceedings. The situations in which this situation arises are too diverse, and the rules by which they are governed so various, that this must be so. There are, however, a number of typical situations as to which some general principle can be stated. First are cases where the rules provide for a re-hearing by the original body or some fuller or enlarged form of it. This situation may be found in relation to social clubs. It is not difficult in such cases to reach the conclusion that the first hearing is superseded by the second, or, putting it in contractual terms, the parties are taken to have agreed to accept the decision of the hearing body, whether original or adjourned".

While recognising at the other extreme cases in which the person concerned was entitled to a fair hearing at both first and appellate instance, the Committee described as too broad a statement the pronouncement by Megarry J. in Leary v National Union of Vehicle Builders [1971] Ch. 34 that a "failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body" and went on to recognise an intermediate category where the appeal process itself was less than perfect and in which it would be right for the court to quash the original decision.

The issue of the curing procedural defects was further discussed in Lloyd v McMahon. That case was concerned with a decision of the District Auditor to surcharge certain councillors on Liverpool City Council. The legislation in question provided for an appeal from the Auditor's determination to the Divisional Court. In his speech Lord Keith of Kinkell said [697C]:-

"Upon the view which I take, that the district auditor's decision was not vitiated by procedural unfairness, the question whether such unfairness, had it existed, was capable of being cured by the appeal to the High Court does not arise directly for decision. It is, however, my opinion that the particular appeal mechanism provided for by section 20(3) of the Act of 1982, considered in its context, is apt to enable the court, notwithstanding that it found some procedural defect in the conduct of an audit which has resulted in a certificate based on wilful misconduct, to inquire into the merits of the case and arrive at its own decision thereon. Section 20(3)(b) empowers the court to 'confirm the decision or quash it and give any certificate which the Auditor could have given'. The relevant rules of court enable a re-hearing of the broadest possible scope to take place. Evidence may be given on oath, which is not possible before the auditor, and there is no limit to the further material which may be introduced so as to enable the whole merits to be fully examined. There is no question of the court being confined to a review of the evidence which was available to the auditor. In the circumstances, it would be quite unreasonable and not in accordance with the intendment of the enactment to hold that the court, where an issue is raised as to the fairness of the procedure adopted by the auditor, is confined to a judicial review species of jurisdiction so as to have power only to quash or affirm the auditor's certificate without entering upon its own examination of the merits of the case. No doubt there may be cases where the procedural defect is so gross, and the prejudice suffered by the appellant so extreme, that it would be appropriate to quash the auditor's decision on that ground. But in my opinion the court has a discretion, where it considers that justice can properly be done by its own investigation of the merits, to follow that course. I may add that I agree entirely with all that is said upon this aspect of the appeal in the speech of my noble and learned friend Lord Bridge of Harwich".

Lord Bridge in his speech stressed the amplitude of the appellate jurisdiction residing in the High Court to review the merits of the auditor's certificate and, at page 708F said that:-

"In every case it must be for the court, as a matter of discretion, to decide how in all the circumstances its jurisdiction under section 20(3) can best be exercised to meet the justice of the case. But I am clearly of the opinion that when the court has, as here, in fact conducted a full hearing on the merits and reached a conclusion that the issue of a certificate was justified it would be an erroneous exercise of discretion nevertheless to quash the certificate on the ground that before the matter reached the court there had been some defect in the procedure followed".

In his speech, Lord Templeman said at page 716D:-

"My Lords, when by statute an appeal lies from a tribunal to a court of law, the statute must be construed to determine whether the court is free to determine the appeal on the basis of the evidence before the court or is bound by the evidence or information laid before the tribunal. In the present case I have no doubt that it was for the court of law to consider whether 'wilful misconduct' was proved and for that purpose to consider the evidence laid before the court. The task of the court was to give 'any certificate which the auditor could have given' ... The court was not concerned with a defect in the procedure adopted by the auditor because those defects (if any) did not hamper the prosecution or conduct of the appeal. Different considerations apply if a statute only allows an appeal to a court of law on a question of law, or entitles or obliges the court of law to rely on the facts found by the tribunal. And the defects in the inquiry conducted by the tribunal may be so prejudicial to the aggrieved person that the court in its discretion may decide to quash the decision and not proceed with an appeal on the merits in the absence of the views of the tribunal after proper inquiry. In the present case the Divisional Court was entitled to consider the appeal on its merits and on the basis of the evidence presented to the court".

I would add that the case of Annamunthodo v Oilfields Workers' Trade Union, on which counsel for the petitioner had also relied, was explained in Calvin v Carr at 594A-B thus:-

"It is not, in their Lordships' judgment, a case of 'curing the defect' at all. The General Council had acted invalidly in expelling the appellant through a rule under which he had not been charged. It would seem clear that the Annual Conference, which had appellate functions, had no more power to use the rule in order to expel him."

In the light of that line of authority one then turns to the particular statutory provisions under which the Secretary of State exercises his appellate functions in respect of disciplinary proceedings against police constables. It is to my mind indisputable that the Secretary of State's appellate jurisdiction is not one of cassation or supervision but that of full review of the whole merits of the case carried out by means of inquiry before the Sheriff Principal. That inquiry into the merits of the case may, in particular, involve not just the re-hearing of the evidence given before the disciplinary authority but the hearing of any new evidence tendered by either party. The oral testimony may be given on oath. It is of course the case that the appeal regulations do not contain a provision in precisely the same terms as Regulation 15(1)(b) of the 1982 Regulations and that by virtue of Regulation 6(2) of the Appeal Regulations the Sheriff Principal is empowered to proceed with the inquiry in the absence of an appellant if it appears just or proper to do so. However, the Sheriff Principal may also in terms of that regulation "adjourn the inquiry from time to time as may appear necessary for the due hearing of the appeal". One must naturally assume that any Sheriff Principal will exercise his powers properly and justly. If a Sheriff Principal were not to act properly and justly no doubt other remedies would be available. But it cannot be said that the particular procedural defect complained of in this case at first instance is incapable of being cured by the carrying through of the appeal procedure. Accordingly, it follows in my view that the petitioner was not entitled to have his appeal upheld at the stage of the Sheriff Principal's interim report.

I would add as respect the distinction which counsel for the petitioner sought to draw between a breach of a statutory rule of procedure such as Regulation 15 and a breach of the rules of natural justice that it appears to me, having regard to the passages in Calvin v Carr to which counsel for the respondent referred, that the vitiating effect of the latter is as great as that of the former. The case of McDonald v Lanarkshire Fire Brigade Joint Committee is an example of this court exercising its power of judicial review as respects a disciplinary measure from which there was no substantive appeal then available.

The other, and perhaps principal, basis upon which counsel for the petitioner sought to impugn the Secretary of State's decision to instruct the Sheriff Principal to continue with the inquiry previously remitted to him was that the decision was unreasonable. Although perhaps not truly focussed in the terms of the petition, the basis for this contention was that the Secretary of State should have remitted to the Chief Constable as disciplinary authority, to carry out a fresh hearing at which, said counsel, the petitioner would have the protection of Rule 15 of the 1982 Regulations.

In my opinion counsel for the Secretary of State is correct in his submission that such proposition proceeds upon a misunderstanding of the relevant statutory provisions and the nature of the process of appeal to the Secretary of State. Except in appeals which may be determined without the hearing of evidence - and it was not suggested that the petitioner's appeal came within that category - the Secretary of State is required by paragraph 3(1) of Schedule 3 to the 1967 Act to cause the Sheriff Principal to hold an inquiry and report. By paragraph 3(4) of that schedule the Secretary of State is obliged to consider the Sheriff Principal's report before determining the appeal. The submission advanced by counsel for the petitioner was to the effect that the next ensuing sub-paragraph of paragraph 3 gave to the Secretary of State an alternative a power to remit to the disciplinary authority for a re-hearing. It may be convenient to reiterate the terms of that sub-paragraph:-

"The Secretary of State may, before determining an appeal under the principal section, remit the case for further investigation by the Sheriff Principal when an inquiry has been held, or in any case if he thinks fit, for further consideration by the disciplinary authority."

It may be noted that in relation to the further remit to the disciplinary authority the word used is "consideration" rather than "investigation" or indeed "re-hearing". It is also apparent from the opening words of that sub-paragraph that any reference to the disciplinary authority for further consideration is simply a step in the appellate process preparatory to the Secretary of State's determination (which will take effect in substitution for the decision appealed against - cf. paragraph 4(2) of Schedule 3 to the Act). It is, to my mind, understandable that in cases in which no evidence need be heard in the appellate process or in appeals which had reached the stage at which all the facts have been reported on by the Sheriff Principal a power to seek a view from the disciplinary authority before deciding the appeal might be appropriate. However, having regard to the whole statutory scheme and in particular paragraph 3(1) of Schedule 3 to the 1967 Act I do not consider that the provisions of paragraph 3(5) of that schedule empower the Secretary of State to remit to the disciplinary authority to re-hear a case in which the hearing of evidence is required. The statutory arrangements appear to me to provide for the protection of police constables by ensuring that at second instance any inquiry into the case will be carried out by a professionally qualified judge, namely the Sheriff Principal. To hold that the Secretary of State had the alternative of inviting the first instance body to conduct a re-examination before the Secretary of State decided the appeal would undermine the protection which the statute evidently intends for those accused of offences against the Disciplinary Code by requiring investigation by the Sheriff Principal. Since, in agreement with the argument advanced by counsel for the respondent, I consider that the Secretary of State was required to remit to the Sheriff Principal it naturally follows that his decision cannot be said to be unreasonable.

Should I be wrong in that construction of the statutory provisions and if the power under paragraph 3(5) of Schedule 3 has a wider application than I perceive, I would not be persuaded of the proposition that the exercise of a power to remit to the disciplinary authority, as part of the appellate process, would automatically mean that the whole provisions of the 1982 Regulations apply to that exercise of reconsideration. Moreover, even if there were a true choice open to the Secretary of State as to whether to continue with the remit to the Sheriff Principal or remit to the disciplinary authority for a re-hearing other considerations, apart from the application of Regulation 15 of the 1982 Regulations, come into play. As already indicated, a remit to the Chief Constable would deprive the petitioner of a hearing before a professional judge, independent of the police force, who may be counted upon to carry out his function in a proper and judicial manner. Accordingly, in my view, it cannot be said that the decision of the Secretary of State to proceed with a further remit to the Sheriff Principal (which was included among the options suggested by the Sheriff Principal in his report of 8 December 1998) was unreasonable.

In these circumstances I shall dismiss the petition.

 

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