Scottish Court of Session Decisions

As a result of a fire at her home on 26 November 1997 Amanda Duncan died. The fire was deliberately set in a flat below hers. The fire raiser was convicted of culpable homicide. A Fatal Accident Inquiry was held. The sheriff's determination was published on 10 March 1999. Both the conduct of officers fighting the fire and the evidence given by certain officers at the Inquiry were the subject of criticism reflected in the sheriff's determination. Thereafter Tayside Fire Board initiated disciplinary proceedings against the eight petitioners, all officers who attended the fire. Each is charged with contravening paragraph 5(a) of the Code of Discipline set out in The Fire Service (Discipline) (Scotland) Regulations 1985, viz. without reasonable cause failing to attend to or carry out their duties promptly and diligently. In light of the sheriff's comments in his determination the procurator fiscal commenced an investigation into whether the first three petitioners and another officer W committed perjury in the course of the Inquiry. That investigation is ongoing, a report having been submitted to the Crown Office and a request having been made by Crown Office for a supplementary report.

The disciplinary hearing was initially set to take place on 25 October 1999. On 13 October the petitioners applied for a postponement of the hearing. They advanced two grounds. The first was to allow more time for preparation. On that ground the application was successful. The Tribunal agreed to adjourn the hearing for four weeks at the end of which period a fresh date for the hearing would be set. The date set was 17 January 2000.

The second ground advanced was that it would be unfair to the petitioners to proceed with the hearing pending a decision whether any of them were to be prosecuted for perjury and, if so, the outcome of these proceedings. Two of the reasons relied upon in support of that ground formed no part of the petitioners' submissions to me, viz. that there would be a breach of natural justice and that there would be particular unfairness to the first petitioner because of the relationship between a charge of perjury and the terms of the disciplinary offence with which he was charged. (The charges against the petitioners under the Code are not in identical terms).

The third reason advanced in support of the submission that it would be unfair to the petitioners to proceed with the disciplinary hearing was that the proceedings would be conducted in anticipation of criminal proceedings, that the criminal proceedings would cast a pall over the disciplinary proceedings so that evidence which might otherwise be given might not be given and other evidence might be tailored to suit the ends of those giving it, and in particular that the criminal proceedings might be affected by witnesses either not coming forward or tailoring their evidence in light of events at the disciplinary hearing and by jurors being unduly influenced by press reports of the hearing. The Tribunal refused the motion to adjourn pending the outcome of the criminal investigation or proceedings. The chairman explained the decision orally. No request was made for written reasons then or subsequently.

On 10 January 2000 this petition for Judicial Review of that decision was presented, along with a motion for interim interdict to prevent the respondents, Tayside Fire Board, from proceeding with the disciplinary hearing fixed for 17 January. Mr Ferguson for the respondents submitted that by taking no action at all on the decision since 13 October the petitioners had acquiesced in it and were therefore barred from seeking review. However, the productions show that in the intervening period the petitioners have been in communication with the procurator fiscal to ascertain the stage of the investigation and did have reason to think that there might be an outcome prior to 17 January. It is now plain that there will not be any decision prior to 17 January. Against that background I do not consider that the petitioners have acquiesced in the refusal of the motion on 13 October.

On the other hand, I do not consider that the petitioners can at this stage make anything of the absence of a written statement of reasons for the decision, having taken no steps to obtain reasons. It was submitted by Mr O'Neill, Q.C., for the petitioners, that the reasons, as the petitioners understood them, were inadequate and that there was thus a prima facie case for reduction of the decision. That submission owed much to what I consider to be a misinterpretation of the judgment of Woolf J. in R. v BBC ex parte Lavelle [1983] 1 W.L.R. 23. That argument in relation to inadequate reasons depended on the proposition that from ex parte Lavelle there could be derived a presumption that in cases where possible criminal charges may result collateral disciplinary proceedings should be adjourned in the absence of circumstances justifying rebuttal of the presumption. In such a case, said Mr O'Neill, any tribunal not applying the presumption was bound to explain why it did not do so. I am unable to derive from ex parte Lavelle any such presumption. The passages relied upon are at p.36A-C and p.39B-C and are as follows:

These passages do not establish a presumption. They relate to circumstances in which a petitioner can demonstrate clearly a real danger of a miscarriage of justice in criminal proceedings. The petitioners' separate case on that point fails for want of the very foundation on which it is set. In the end Mr O'Neill made little of this submission other than as adding some weight to his principal submission.

That submission was that to hear the disciplinary case before any criminal proceedings would cause such a risk of serious prejudice in both that the disciplinary hearing should be postponed pending the outcome of the criminal investigation or proceedings. Mr O'Neill suggested that, if he were to establish a prima facie case of such a risk, that was sufficient for interim interdict subject, of course, to the question of balance of convenience. What the court would be doing was suspending the disciplinary proceedings pending determination of the petition which sought reduction of the decision refusing an adjournment. He submitted that the general supervisory jurisdiction of the court exercised in petitions for Judicial Review entitled the court to act as an independent arbiter of fairness in the conduct of other proceedings referred to it and to make its own decision independently of the normal exercise of reviewing the decision of an inferior tribunal. For that proposition he relied on a number of English authorities, but in particular R. v Chance ex parte Coopers & Lybrand and Others [1994] 7 A.L.R. 821, in particular at 829C-E where Henry L.J. said:

While there is ample authority for that approach in England, I was referred to no Scottish authority supporting that approach. Indeed it is not the approach of the petition in which the plea in law seeks reduction on the basis that the decision made was ultra vires. I did not find Chance, or the other related cases mentioned below, to be a satisfactory basis for determining that in the particular circumstances of this case the court has a wider role than that described in Moss's Empires v Glasgow Assessor 1917 S.C. (H.L.) 1 at 6 by Lord Kinnear as follows:

That is the role of the court in this petition. The question of law for me is whether the petitioners have a prima facie case that the decision made was ultra vires and should be reduced. On that question Mr Ferguson did not dispute that the petition and remedy sought were competent.

That question, whether there is a prima facie case that the respondents acted ultra vires, was narrowed down in submissions before me to the issue whether there was a prima facie case that the respondents acted wholly unreasonably in the Wednesbury sense. Mr Ferguson did not dispute that it would be sufficient for interim interdict for the petitioners to demonstrate prima facie that there was a real danger of a miscarriage of justice in either proceedings. He did not seek to rely on the opinion of Sheriff Stewart in Bennett v Bennett 1996 S.C.L.R. 736 that a risk of injustice in collateral proceedings cannot be relied upon. If such a prima facie risk could be demonstrated in relation to either proceedings there would, in my opinion, be a case for interim interdict since there is no apparent reason on the face of the material before me, other than matters that fall within the ambit of the balance of convenience, for the respondents insisting upon the disciplinary proceedings being heard in the face of such a risk.

That the test is as set out by Woolf J. is confirmed by a number of cases applying the same test, in particular R. v Panel on Takeovers and Mergers, ex parte Fayed and Others [1992] B.C.C. 524; R. v Institute of Chartered Accountants in England and Wales and Others, ex parte Brindle and Others [1994] B.C.C. 297; and Chance referred to above. However, with a view to elucidating the principle, Mr O'Neill founded particularly on observations made by Sir Roger Parker in ex parte Brindle and Others at p.316F where he comments on the judgment of Neill L.J. in the Fayed case as follows:

In my opinion that adds nothing to the principle stated by Woolf J. A "risk" obviously relates to "possibility" and not "certainty". With it clearly in mind that it is the risk of injustice that matters and that that injustice could arise in relation to either disciplinary or criminal proceedings, I now turn to the facts of the present petition.

It is submitted for the petitioners that the risk arises in relation to criminal proceedings. Against that it was submitted for the respondents that the initial motion to postpone the hearing indefinitely pending criminal proceedings was premature since there were no extant proceedings and all the authorities founded upon by the petitioners related to extant proceedings. Indeed there was no evidence that any of the petitioners had even been detained or questioned in relation to an allegation of perjury. In that situation, it was submitted, there could be no risk of prejudice in criminal proceedings since these did not exist and might never be instituted. I agree with the submission made for the respondents. In the absence of any proceedings it is not possible to identify a real risk of injustice. Any risk is entirely notional and speculative. If and when any criminal proceedings are instituted the petitioners, or such of them as are involved in these proceedings, will be able to turn to the court before whom the proceedings are taken for protection against miscarriage of justice. It will be for that court to ensure that the proceedings are fair.

In any event, the factors founded upon by Mr O'Neill as indicative of a real risk of a miscarriage of justice, do not in my opinion give rise to such a risk. It was suggested that in the light of the evidence and the findings at the disciplinary hearing witnesses might tailor their evidence at the criminal proceedings. It was also suggested that a jury might be influenced by press reports of the hearing. When I sought details of the witnesses who it was being suggested might so tailor their evidence, I was referred only to W, who gave an account to the Inquiry that was completely at odds with the account of the first petitioner and who is also the subject of investigation by the fiscal. I note that in Jefferson Limited v Bhetcha [1979] 1 W.L.R. 898 Megaw L.J. gave as an example of a possible risk of miscarriage of justice, the tailoring or fabrication of evidence by prosecution witnesses in the light of the disclosure of the defence case in other proceedings. A similar point was made by Neill L.J. in ex parte Fayed and Others. In both cases reference is also made to the possibility of a criminal jury being influenced by the publicity given to disciplinary proceedings. In my opinion, in relation to either of these so called risks there would require to be material before the Tribunal and this court indicative that such was a real risk in this case. Even allowing for the fact that the criminal proceedings would relate to perjury, there is no material to indicate any basis for anticipating that W, should he give evidence, or any other witness, will not comply with the terms of his oath. The suggestion that he or any other witness might not do so is, in my opinion, no more than groundless speculation. In addition, there is an agreement that the disciplinary proceedings will be in private. In light of Article 10 of the European Convention on Human Rights, it is always possible that steps might be taken by interested parties to compel the respondents to conduct the disciplinary proceedings in public. However, there is no basis for thinking that the proceedings will be public. The petitioners do not want that. Even if the proceedings were in public and were to be reported, there is no reason to think that in this case, as distinct from other criminal cases, the jury could not be relied upon to reach a verdict on the evidence presented to them in the light of the directions given to them by the trial judge. There is in my opinion no basis for fearing that the jury in the criminal proceedings would act contrary to their directions. In any event, any trial will take place long after the conclusion of the proposed hearing.

It was also submitted that potential witnesses might be deterred from coming forward by what they read in newspaper reports of the hearing. No indication was given to me of who these witnesses might be. I do not consider that a vague submission in these terms can provide a proper basis for concluding prima facie that there is a risk of a miscarriage of justice in any criminal proceedings.

It was further submitted that the first three petitioners may prejudice themselves in relation to any criminal proceedings by giving evidence in relation to matters on which they would be entitled to invoke the privilege against self-incrimination and remain silent. No particular issues in respect of which this might arise were identified. In any event the petitioners are well aware of their rights and are free to participate as they consider appropriate in the disciplinary proceedings. There was no indication before me that any petitioner has even been interviewed in connection with any criminal charge. There is in these circumstances no basis for concluding that there is a risk of a miscarriage of justice in relation to any of the first three petitioners should he be the subject of criminal proceedings.

For these various reasons I consider that there is no basis for concluding that there would be a real risk of a miscarriage of justice in the criminal proceedings were they to take place after the disciplinary hearing.

On the question of tailoring or fabrication of evidence I would add one brief comment. The potential for that, such as it is, exists in relation to both disciplinary and criminal proceedings. The questions for determination in each are different. There are likely to be two sets of proceedings no matter what the outcome of any trial. Should criminal proceedings precede disciplinary proceedings then there is the potential for the fabrication or tailoring of evidence in the disciplinary proceedings. Albeit they will not then be on oath, the witnesses will be admonished to tell the truth. That is expected of them. The charge of neglect of duty in the disciplinary proceedings is in the circumstances of this case a serious charge. It is difficult to compare the gravity of that charge with the gravity of the charge of perjury. Indeed in the mind of any fireman, who is the subject of disciplinary proceedings, the particular neglect of duty involved, which in the opinion of the sheriff may have had a bearing on the survival of the deceased, could be more important than perjury.

Mr O'Neill's submission on the question of risk of miscarriage of justice in the disciplinary proceedings was that the very threat of criminal proceedings for perjury would cast a pall over the disciplinary proceedings and would prevent them from being conducted fairly. It was submitted that the position of each petitioner was to some extent related to that of one or more of the other petitioners. The position of any one could therefore be affected by the way in which his colleagues, or indeed he himself, chose to respond to the disciplinary charge. Any might decide that defence of criminal proceedings and the privilege against self-incrimination were most important, and might not respond to the charge in the way in which he might in his own interests and possibly to the benefit of his colleagues were no criminal proceedings pending. In response Mr Ferguson submitted that the court was simply being invited to speculate in general terms about a situation where each of the petitioners was free to choose what stance to take in the disciplinary proceedings. When interviewed by the investigating officer under caution that there was no obligation to answer, each had exercised the right not to answer. Of the four petitioners who gave evidence at the Inquiry only three were the subject of investigation and only the first petitioner was the subject of a disciplinary charge which had any connection with a potential perjury charge. In the absence of any specific indication from Mr O'Neill of the way in which the risk of miscarriage of justice arose, the court could only assume that the position of the first three petitioners would be as it was at the Inquiry, which accounts were already in the public domain. The other petitioners were not affected by the threat of criminal proceedings. There was accordingly no material available on the basis of which it could be concluded that there was a real risk of a miscarriage of justice in relation to the disciplinary proceedings. I agree with Mr Ferguson that the petitioners have failed to identify where the alleged risk of miscarriage of justice arises. They are entirely free to decide how to approach the disciplinary proceedings. Those who are the subject of criminal investigation have already given evidence in public. I was given no example of how in practice a difficulty might arise for any of the petitioners in the conduct of the disciplinary proceedings. It will be open to any of the petitioners to decline to give evidence in the disciplinary proceedings no matter when they take place. The privilege against self-incrimination applies only to criminal offences. The disciplinary charge against each petitioner depends on his conduct in the course of his duties and raises a question quite distinct from the question whether he gave evidence knowing it to be false. Both issues arise against a common factual background, but the issues to be determined against that background are quite distinct. Nothing said to me was indicative of anything more than a notional risk of prejudice. In these circumstances it was within the discretion of the Tribunal to refuse the motion.

For these various reasons I do not consider the petitioners have made out a prima facie case for interim interdict.

Had the issue of balance of convenience arisen, I would have determined it in favour of the petitioners. In the event of there being a real risk of a miscarriage of justice in any proceedings, the balance of convenience will generally favour the party at risk unless there are particular features of the case which merit proceeding in the face of that risk. An example is given in ex parte Coopers & Lybrand and Others of the public interest in the prompt and efficient operation of the Chartered Accountants' Disciplinary Scheme as possibly outweighing the risk of injustice. The only feature of that nature relied upon by Mr Ferguson was the perceived effect on the morale of the Brigade from the uncertainty as to the outcome of the disciplinary proceedings, heightened by the considerable passage of time. However, he was unable to point to any objective evidence of that, such as an increase in sick leave. He relied purely on the perception of those closely associated with the work of the Brigade. That subjective view would not in my opinion be sufficient to counter-balance a risk of injustice.

I shall accordingly refuse the motion for interim interdict. Since the respondents do not oppose further procedure on the petition, I shall make a first order in the usual terms.