Scottish Court of Session Decisions

[1] This is a Petition for Judicial Review at the instance of two police officers against a decision of the Assistant Chief Constable of Lothian and Borders Police dated 29 September 2000.

[2] The facts are not in dispute and may be summarised thus. Both petitioners are serving Constables. They each had a home but began to live together at an address in South Queensferry. They did not notify their change of circumstances to the police and each obtained over £5, 000 of housing allowance to which they were not entitled. The matter was discovered and they were each charged with committing a careless falsehood contrary to Paragraph 5 of the Police (Conduct) (Scotland) Regulations 1996. They were served with the proper notices of the allegations on 26 July 2000; of the hearing to be held and of the penalties (called "Notice of Disposals") to which they were subject. It was made clear to them that dismissal, resignation from the force or reduction in rank were not going to be considered.

[3] In writing both admitted the allegations (a concession which could scarcely have been withheld). A misconduct hearing took place on 28 September 2000. The Presenting Officer (a Chief Inspector) made submissions as did the petitioners' representative. The Chairman (a Chief Superintendent) and his assessors thereafter retired to make their decision.

[4] Thereafter an inexplicable mistake occurred. For reasons that are unclear the Investigating Officer (an Inspector) and the Presenting Officer entered the room occupied by the Chairman and his assessors and the door was closed. When the hearing reconvened the petitioners' representative submitted that the cause should be dismissed as the procedure was now tainted. The Chairman then abandoned the hearing.

[5] The next day the respondent decided to set down a further hearing for 31 October 2000.

[6] To prevent that the petitioners seek reduction, suspension and interdict.

[7] I was furnished with a photocopy of part of the Chairman's notes at the abandoned hearing (see Regulation 13(16)). It is clear that the facts were admitted and the proposed penalty in each case was "to reduce 2 increments of pay for one year" (sic). He also records that he was

It is also clear that he was mindful of the concerns of the petitioners but was also alive to his responsibilities to the police force.

[8] In the course of the argument a number of cases were mentioned but only a few were looked at by counsel in any detail. The cases fully canvassed were: T. Petitioner 1997 S.L.T. 724: Calveley v Merseyside Police [1986] I.R.L.R. 177: Hynd 2000 S.C.C.R. 644. The cases merely noticed were McDonnell Ptr. 1987 S.L.T. 486; Matchett v Dunfermline District Council 1993 S.L.T. 537; McKenzie v H.M.A. 1983 S.L.T. 220; Abdadou v Secretary of State for Home Department 1998 S.C. 518.

[9] The Police (Conduct) (Scotland) Regulations 1996 as amended provide inter alia.

Mr Grant Hutchison moved me to reduce the decision and grant interdict. What was involved was a minor infringement of the Regulations described as a "careless falsehood" resulting in an overpayment of the appropriate housing allowance. The petitioners had at once admitted the 'offence' and co-operated. They were repaying the overpayment.

[10] The decision of the Board was one normally written by the Chairman but once the matter was abandoned the Chairman was functus because his decision was to abandon (Reference was made to Clyde on Judicial Review at p. 455). The 1996 Regulations gave certain powers. A hearing could be discharged before it was held (Reg. 10(7)). Regulations 13 did not allow the Chairman to abandon proceedings. Regulation 15 allowed for adjournment prior to, during a hearing or to give a decision. Regulation 7(A) allowed for termination of proceedings, but there was no power to abandon and re-raise. His actions were thus ultra vires. The Court should not give a broad interpretation to the Regulations especially where the proceedings were tainted by the actions of the prosecutor. This was a quasi criminal forum with power to impose penalties. The police had no recourse to Employment Legislation. The proper analogy was the line of cases where a new prosecution was not allowed where the Crown had caused the problem. He returned me to McKenzie. It was also unreasonable in the Wednesbury sense to proceed to a new hearing.

[11] The case arose before the Human Rights Act 1998 was in force, but the Court should interpret the Rules in accordance with the Convention. Counsel referred to T. Petitioner and Abdadou. I was also asked to proceed on the basis of Protocol 7 which had not yet been ratified.

[12] Finally, and also in relation to the Convention, counsel said that Article 6 applied and to some extent Article 3. The original charge was made in February and any new hearing was 8 months later. That was an unreasonable delay. Finally I was referred to Calveley.

[13] The argument for the respondent was in the following terms.

[14] Neither petitioners could claim the offences were minor. Over £5, 000 each had been wrongly obtained. However, the investigating authorities only sought a financial penalty. The offences were admitted and all that was in issue was a plea in mitigation. The steps taken by the Chairman and the Assistant Chief Constable fell within the Regulations. Regulation 13(5) was in very broad terms and should be interpreted as a power to abandon and suggest reconvening. What should happen if a party became ill or was incapacitated?

[15] As far as the Assistant Chief was concerned Regulation 10(1) was in wide enough terms to cover abandoned hearings, and it would be extraordinary if there could never be a re-hearing.

[16] The Regulations should be interpreted with common-sense and flexibility. What had occurred was sensible and fair and in the public interest.

[17] So far as Convention Rights were concerned, and on the assumption that the Human Rights Act 1998 applied, there was no delay under Article 6. The period was only one month. Article 3 did not apply nor did Protocol 7 which had not even been ratified. In any case the Assistant Chief Constable was not part of the Scottish Executive.

[18] The proposal to reconvene was not Wednesbury unreasonable. There could be no anxiety about anything other than the penalty to be imposed (here proposed at a figure of £2000 each).

[19] The application should be refused and in any event interdict should not be granted.

[20] I can deal briefly with the cases cited. The case of McKenzie is not in point. There a retrial was allowed due to a misdirection by the Judge. It had nothing to do with any action of the "prosecutor". Hynd disclosed a very much greater delay that has occurred here. McDonnell was a very obvious decision where the facts were close to what happened here with the exception that it did not involve any new hearing. Matchett discloses different facts. The relevant gaming committee reconsidered its decision while the whole matter was on appeal. The remarks on who was or was not functus were obiter. Abdadou is probably now only of persuasive interest I am satisfied that the trend now is to look at the Convention in all cases even though it may not have been in force at the relevant time. To that extent the decision in T. Petitioner reflects the proper approach now. That leaves Calveley. The point in this case concerned delay in a complaint against police officers. It raised the issue of "substantial compliance" with the disciplinary Regulations. I accept (para 18) that the case is authority for the view that a Constable is bound by the procedures taking them as a whole. However, the facts of the case were extreme. The circumstances were uncomplicated; a street fight, yet there was over 3 years delay. Unsurprisingly, judicial review was granted. I do not think the case helps me either way.

[21] I am satisfied that this petition cannot succeed. In my opinion the relevant Regulation which governs the matter is Regulation 13(5). This vests the Chairman with a very wide discretion on to how he conducts the actual hearing. Until the final procedural error every proper step had been taken. It is obvious that even at the end of proceedings matters could arise which might make abandonment appropriate and necessary. A party could become seriously ill; so could a member of the panel, it might be such that they could never continue to participate in the proceedings. It might not be possible to solve this kind of difficulty by a simple adjournment under Regulation 15.

[22] In my opinion, in proceedings, such as this, a degree of flexibility and common-sense must be used in giving a proper interpretation to Regulation 13(5). It ought to be interpreted in such a way as to make the Regulations workable and not to frustrate them. This is particularly so in a case where the facts have never been in dispute and all that is in issue is a question of a penalty which will not prejudice the rank of the petitioners.

[23] Given that the "offences" have been admitted, it also seems to me in the public interest that they should be properly dealt with at a fresh misconduct hearing. The money overpaid ultimately comes from general taxation. It also seems to me to be in the interests of the petitioners and the police force that officers who get involved in such careless falsehoods are not seen to go unpunished on technical grounds.

[24] I next move to consider whether the proposal to fix a new hearing was unreasonable in the Wednesbury sense. I have already expressed the view that the abandonment of the hearing disclosed no error in law under the Regulations. The respondent under Regulation 10 has power to require appearance at a misconduct hearing and I can see no unfairness in using the forms which were used at the first hearing especially in a case where the facts are not disputed.

[25] It was never suggested that the respondent in addressing the matter had taken account of irrelevant matters or had failed to consider relevant matters. That only leaves the question of whether his decision was such that no officer properly considering the matter could ever have reached the view he did. The overwhelming evidence needed to demonstrate that is wholly absent in this case. Indeed in my opinion the respondent would be failing in his duty not to act as he has purported to do.

[26] The final arguments rested on the Human Rights Act 1998 and the attendant Convention Rights. I am prepared to look at the Convention even though, as to date, I am not certain it was in force at the time. Both parties referred to it and invited my decision. One point was left not fully argued viz whether the respondent was part of the Scottish Executive. I express no opinion on that.

[27] It is easier to deal with the three matters argued since in my opinion there is no merit in what was said.

[28] I was first invited to consider Protocol No. 7. Article 4. It is not necessary to set this out at length. It refers to "double jeopardy". The short answer to this argument is that the Protocol had not been ratified by the United Kingdom and so has no application. In any case it seems to me that Article 4(2) would have provided a complete answer to the petitioners' argument about a second hearing.

[29] It was said, without much force or enthusiasm, that what had occurred was a breach of Article 3 which provides

The only basis for reliance on Article 3 was that the petitioners had experienced "..considerable distress..." and that the female petitioner was being treated for stress. In my view such allegations come nowhere near the obvious meaning of Article 3 and Counsel was wise not to press the point.

[30] That leaves Article 6 "...a...hearing within a reasonable time...". Again this matter was not argued with much conviction. Whatever earlier investigations in February 2000 revealed, the proceedings against the petitioners began on 26 July when the forms were served on them (Regulations 6(9)). The hearing on 28 September was thus within eight weeks. In my view it is unarguable that this amounts to any delay. The proposed new hearing was to have been within four weeks and again I cannot accept that this involves any undue delay. I accordingly conclude that there has been no breach of the right to a hearing within a reasonable time.

[31] In the result I will sustain the pleas in law for the respondent and repel the plea in law for the petitioners and dismiss the petition.