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Cite as: [2005] ScotCS CSOH_131, [2005] CSOH 131
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Rae Chief Constable Of Strathclyde Police v. Strathclyde Joint Police Board & Ors [2005] ScotCS CSOH_131 (30 September 2005)
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OUTER HOUSE, COURT OF SESSION [2005] CSOH 131 |
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P395/05
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OPINION OF LORD CARLOWAY in the petition of WILLIAM RAE, Chief Constable, Strathclyde Police Petitioner; against (1) STRATHCLYDE JOINT POLICE BOARD; (2) THE POLICE APPEALS TRIBUNAL; and (3) STEVEN ANDERSON WRIGHT Respondents: for Judicial Review of a Decision of the Police Appeals Tribunal dated 13 May 2005 ________________ |
Petitioner: Peoples QC, Grant Hutchison; Simpson & Marwick
First and Second Respondents: Davidson QC, Lindsay; Solicitor to Edinburgh Council
Third Respondent : Doherty QC, Haldane; Balfour & Manson
30 September 2005
1. The Summary Trial
[1] The third respondent is a police constable. On 12 February and 5 March 2004, he went to trial before the Sheriff of North Strathclyde at Kilmarnock (W.S.S. Ireland Esq.) on a charge which libelled that:"on 5 October 2002 in a police vehicle at Vernon Street, Saltcoats, you...did assault Alexander...Murdoch... and punch him repeatedly on the face to his injury."
The Sheriff set out his findings in fact in a stated case [No. 6/1 of process]. The background to the assault had been the behaviour of two brothers, David and Alexander Murdoch, towards a party of mourners at a funeral ceremony on the shore at Saltcoats. Both brothers subsequently pleaded guilty to a variety of assault, vandalism and breach of the peace charges arising out of their behaviour. The conduct of the Murdochs was sufficiently reprehensible as to merit sentences of four months imprisonment. The Murdochs had been arrested by the third respondent and his colleague, Sergeant Kelly, near Saltcoats Railway Station. During that procedure, Alexander Murdoch had assaulted the third respondent by kicking him on the leg to his injury. David Murdoch had also assaulted the third respondent by trying to butt him. The Sheriff specifically found in fact that:
"10 ...Alexander Murdoch was arrested by the [third respondent] and put into the rear passenger seat, behind the front passenger seat of the police vehicle...David Murdoch was subsequently arrested and placed into the rear passenger seat behind the driver's seat.
11. The [third respondent]...was...sitting in the front passenger seat of the police vehicle. Sergeant Kelly was in the driver's seat.
12. Whilst seated in the rear of the police vehicle David Murdoch became aggressive to the police officers. Alexander Murdoch became agitated about his brother's behaviour and then he, too, became aggressive towards the police.
13. In particular, Alexander began to lean forward and was then punched repeatedly by the [third respondent] on the face, in particular to his nose. As a result of that punching the complainer's nose began to bleed."
Perhaps somewhat superfluously, the Sheriff made the following additional findings in fact :
"14. ...Sarah Guthrie and Gillian McCulloch...each saw the [third respondent] punch a boy who was sitting in the rear passenger seat, directly behind the front passenger seat, repeatedly on the face.
15. ...Alexander Murdoch was the boy seated in the rear passenger seat behind the front passenger seat within the police vehicle and it was Alexander Murdoch who was repeatedly punched by the [third respondent].
16. ...There was a young man standing near...who made a remark about police brutality..
17. ...Both...Guthrie and McCulloch had seen a boy, who had been assaulted by being repeatedly punched by the [third respondent] with a bloody nose within the police vehicle...
18. ...The [third respondent] assaulted the complainer...in the rear of the police vehicle in or around a car park near to Vernon Street, by punching him repeatedly on the face to his injury."
"started to lean forward in his seat...he was pushed away by the [third respondent] who used a sweeping arm movement. This happened four times as [he] leant forward and as a result his nose was... 'burst'".
Under cross-examination, he accepted that he was not saying that he had been punched. His brother maintained that he had not seen anything happening to Alexander Murdoch in the car.
[3] The evidence which proved critical in the case against the third respondent came from Sarah Guthrie and Gillian McCulloch, two sixteen year old girls. There was no suggestion that the two girls had any connection with the Murdochs. Miss Guthrie spoke to being about twelve feet from the police car when she saw the appellant punch the boy behind him in the passenger seat with a clenched fist four or five times. She saw the boy with blood on his lip and nose, when he was brought out of the car. Miss McCulloch said she saw the third respondent turn round and, with a clenched fist, punch the boy directly behind him in the passenger seat at his nose and mouth. This occurred four or five times. Although initially twenty yards away, she had moved closer, ultimately to within four feet of the incident. Latterly, she had gone forward to try to identify the third respondent's badge number but had been told by him to go away. She did, however, note the registration number of the car. The girls reported what they saw to the police. [4] There was a submission of "no case to answer" made by Mr Watson, the solicitor acting for the third respondent at the trial. It was contended that the evidence from the girls, especially in relation to which of the Murdoch brothers had been put into the car first, supported, at best, an assault on the complainer's brother. This submission was repelled. The third respondent elected not to give evidence. The defence called Sergeant Kelly and the police surgeon. Sergeant Kelly referred to the third respondent simply pushing the complainer on one occasion by using an approved "hand-off" manoeuvre. Dr Hunter had not noted any injuries to the complainer's face when he had examined him a few hours after the incident. [5] The Sheriff found the evidence of the two girls entirely credible. Indeed, it had not been suggested to them that they had been lying. He also found them reliable on the essentials of the charge, namely that the third respondent had repeatedly punched the complainer on the face. He seems to have been particularly impressed with the girls' responses under cross-examination, which had reduced each to tears on occasion. He rejected the evidence of Sergeant Kelly, partly on the basis of his demeanour in the witness box. He considered that Sergeant Kelly had been attempting to assist the third respondent. He also rejected his evidence because of the contrary evidence from the girls and, to a degree, the complainer in relation to the number of movements made by the third respondent. He otherwise rejected the complainer, in particular having regard to his over eagerness to accept the leading propositions put to him in cross-examination. It is of importance to note that, in the stated case, the Sheriff specifically stated (p 13) that he rejected Sergeant Kelly's account as untruthful. Put more bluntly, he considered that he was telling lies under oath. So far as Dr Hunter's evidence was concerned, the Sheriff noted that Dr Hunter had seen the complainer some seven hours after the incident. He did not consider it material that no injuries were apparent at that time. [6] Here then was a case where, having carefully analysed the competing evidence, the Sheriff had been satisfied beyond reasonable doubt that a serving policeman had assaulted a person in his custody by repeatedly punching him on the face. The resultant conviction was based on the evidence of two independent witnesses. These witnesses appeared to have had no cause or motive to make up their testimony and they had taken the trouble to become involved in events by both attempting to intervene at the time and later reporting what had happened to the police. In these circumstances, it is not surprising that the resultant appeal by way of stated case foundered at the stage of the statutory sift when, at the second sift, three judges of the High Court of Justiciary, presumably agreeing with a fourth who had carried out the initial sift, did not consider that the appeal was arguable in terms of the statutory test (Criminal Procedure (Scotland) Act 1995 (c 46) sections 107(1)(a) and 5(a)). These decisions, which essentially meant that it was considered that the appeal was without merit, would have included specific consideration of the questions posed in the stated case. The questions included one directed towards the significance of the police surgeon's evidence.2. The Disciplinary Process
[7] The third respondent was fined £500 by the Sheriff. No appeal was taken against the level of penalty and the reasoning behind the selection of the level of fine is therefore not set out in writing by the Sheriff. However, a report from Inspector Alexander Macdonald, [No. 7/17] the officer who had monitored the proceedings at the trial for the first respondents, recorded that:"Before passing sentence, Sheriff Ireland accepted that [the third respondent] was of previous good character with an unblemished service record. He recognised he was dealing with troublesome prisoners in a difficult situation and that he had acted in the heat of the moment rather than in a premeditated way. He recognised the possible repercussions for [the third respondent's] employment, but made it clear that the court disapproved of assaults. In closing, Sheriff Ireland made it clear that he intended dealing with [the third respondent] with a degree of leniency".
After the conviction, the third respondent was suspended from duty. In due course, he was charged with misconduct under and in terms of the Police (Conduct) (Scotland) Regulations 1996 (SI 1996 No. 1642 (S.138)). In terms of paragraph 9 of Schedule 1 to the Regulations, misconduct includes: "Having been found guilty by a criminal court of a criminal offence...". The third respondent appeared at a misconduct hearing before a Chief Superintendent on 27 September 2004 (transcript No. 6/2). He was represented by Mr McCreath, a solicitor from the same firm as Mr Watson. The misconduct alleged (i.e. the conviction) was admitted (p 4), as it was bound to be. The only issue before the hearing was the appropriate sanction. The presenting officer went through the circumstances of the original criminal investigation from the apparently unsolicited report by the girls to the police on the day of the incident, through the events at the trial as stated in the monitoring officer's report, to the ultimate failure of the appeal. In mitigation, the third respondent's solicitor covered the third respondent's personal circumstances and submitted that his was an exceptional case deserving an exceptional outcome, namely the retention of his office of constable. However, the solicitor then chose to raise the merits of the conviction. The following is recorded as having been said by the solicitor in respect of the third respondent not having given evidence at the trial:
"And you will note that this officer (the third respondent) was not called as a witness in the case to give his contradicting account. I have spoken to Mr Watson and I think it is important to understand why that occurred. It wasn't because [the third respondent] had anything to hide. Mr Watson made the decision to call Sergeant Kelly and to call the police surgeon. So [the third respondent] did not even have the chance in court to give his own contradictory account. But that was a decision made by the presenting solicitor."
This did not accord entirely with the account subsequently given by Mr Watson (infra). The solicitor proceeded to rehearse some of the evidence which had been given at the trial and which had been recorded in the monitoring officer's report. He founded upon the evidence of the complainer, the police surgeon and Sergeant Kelly. The purpose of doing this became slightly blurred since, having referred somewhat inaccurately to the test applied in criminal appeal sifts, he said he was not criticising the Sheriff and that it would be "wholly wrong professionally" to do so. The solicitor then reverted to the record of the third respondent in the service of the police and presented various statements from senior officers and a local minister of religion. However, in response to a question from the Chief Superintendent, the solicitor returned to the issue of why the third respondent had not given evidence at the trial as follows (p 39):
"Mr Watson believed the evidence was so poor. He made certain submissions which were rejected. He believed that there was no need to lead the evidence and that [the third respondent] would be acquitted because he felt the evidence was confused. That part of it was incredible, part of it was unreliable and there was no medical evidence to justify the allegation of repeated assault. And I would say that one person left the court absolutely staggered by the outcome is Peter Watson despite thirty years of experience in cases. But he did not, that's what the question is you have asked me. He made the decision. He didn't think it was necessary to call him."
On being asked for Mr Watson's view on why the evidence of the girls had been given such weight by the Sheriff, the solicitor made further comments on the quality of the evidence as perceived by his predecessor.
[8] The solicitor having concluded his address, the report from the third respondent's senior officer was read out by that officer, Chief Inspector Harry Young. This concluded (pp 46-47) :"I have personally only known [the third respondent] since August 2003...He has impressed me with his enthusiasm, commitment and loyalty to the service. He is an officer who has an outstanding work rate and it is not uncommon for him to be detained on duty completing paperwork for criminal related cases. He diligently executes warrants, particularly apprehension warrants, on every shift he plays his part in ensuring that the criminal fraternity are processed as quickly as possible. He is, in my opinion, one of the hardest working, competent operational officers that I have seen in my service. He takes an obvious professional pride in the way he carries out his cases."
At the end of the hearing, the Chief Superintendent said (p 52) :
"...when tested at Kilmarnock Sheriff Court the evidence of the complainer and the police casualty surgeon offered little or nothing against you. That said, two young girls, independent witnesses that largely provided the evidence upon which you were convicted of punching Alexander Murdoch repeatedly in the face to his injury. The Sheriff had the opportunity to listen to the evidence at first hand and to how they responded under cross-examination from a skilled and experienced advocate. It is not for me to call their evidence into question because it has been fully tested and found to be reliable and preferred to other evidence led in your support. The difficult issue for me then is the disposal and I have been asked to consider this as an exceptional case. You are young in service with you and your family dependent on your earnings as a police officer. You are highly regarded by colleagues, senior officers and the community. You have an unblemished record and faced a very difficult situation on 5 October 2002. On the other hand, police officers are called upon to deal with such instances. Young men fuelled with drink act in an aggressive manner towards police and public alike. It is always thus and always will be. This is the nature of the service you joined. Police officers require to show restraint and professionalism and judgment in the face of such adversity. To have assaulted a prisoner, no matter his behaviour, whilst handcuffed in your care and custody is in my view a serious allegation and a serious breach of the trust placed in you as a constable. That trust must go beyond the local trust and confidence that colleagues and the community have of you. I feel that if I do not deal with this disposal, with a disposal commensurate with the seriousness of the allegation then the Force's credibility, public confidence in us and the confidence of the Chief Constable in you to discharge your duty lawfully and fairly will be compromised. I therefore require you to resign as an alternative to dismissal."
"10.5 As Chief Constable of Strathclyde Police, I expect all my officers to conduct themselves in a manner that will not attract complaint or criticism and will not bring discredit on the Police Force or Service. I am satisfied that Chief Superintendent Smith took into account all relevant considerations in reaching what he considered - and I wholeheartedly agree - was a disposal which was fair and just in all of the circumstances.
10.6 ...Any lesser disposal would have been wholly inappropriate, given the nature of the allegation of misconduct which was admitted by and found proven against the [third respondent]."
He criticised Chief Inspector Young for failing to take into account the issue of public interest in his comments and continued:
"10.9 ...However "exceptionally highly regarded" the [third respondent] may be in the eyes of his senior officers and local community, and no matter how unpleasantly the prisoner...behaved towards the police on 5 October 2002 within the police vehicle at Saltcoats, nothing justifies his being brutally assaulted in the manner described in this case by being punched repeatedly on the face to his injury by the [third respondent] when a serving, on duty, police officer.
10.10...The [third respondent's] proven misconduct calls into question his judgment and, more generally, his fitness to continue to serve as a police officer, his ability to retain and promote public confidence; and to retain the trust, confidence and respect of other police officers...
10.11 ...a criminal offence is by itself misconduct...This means that having been convicted of an offence, a Police Officer cannot avoid the conclusion that misconduct has occurred. I consider that in a situation in which a serving Police Officer is convicted of a criminal offence involving assault on a prisoner, a disposal which results in a loss of position within the Police Service is likely to be appropriate in almost every case...
10.19 In my view the behaviour of [the third respondent]...was an anathema to all the high standards Strathclyde Police strive to achieve. I regard his proven misconduct as nothing short of disgraceful and, as such, I have had no difficulty in dismissing this Appeal as being wholly lacking in merit.
...
10.22 ...Quite simply, the [third respondent's] position as a police officer in this Force at any time in the future is untenable.
...
10.24 There are, in my view, no exceptional circumstances here mitigating against the disposal selected..."
3. The Police Appeals Tribunal
[10] The third respondent appealed the petitioner's decision to a Police Appeals Tribunal in terms of section 30 of the Police (Scotland) Act 1967 (as substituted by section 55 of the Police and Magistrates' Court Act 1994 (c 29)). An oral hearing took place on 22 April 2005, with the third respondent represented by Mr Murray, another solicitor, and Mr McCreath. The statement of reasons (No. 6/4) given by the Tribunal, the second respondents, narrates as fact that:"6. The events which led to and resulted in the [third respondent's] conviction occurred in Saltcoats on 5th October 2002...After their arrest, in the course of which Alexander Murdoch kicked the [third respondent], the two brothers were being transported in a police car to Saltcoats Police Office. The police car was being driven by a Sergeant Wilson (sic) and the [third respondent] was a front seat passenger. At some point in the journey and in response to a disturbance being caused by the brothers, the police car was brought to a halt in a car park near to an open air market. Thereafter the [third respondent] assaulted Alexander Murdoch, who was sitting directly behind him in the rear passenger's side seat and who was handcuffed, by punching him repeatedly in the face. The assault was witnessed by two teenaged girls."
The description of the movements of the car does not accord entirely with the evidence given before the Sheriff, but this is not of material significance. The narrative continues with a description of what happened during the hearing:
"12. ...Mr Murray led in evidence Mr...Watson...Mr Watson is an experienced and distinguished practitioner. He explained that he was instructed to act on behalf of the [third respondent] in the criminal trial in Kilmarnock. Mr Watson explained that having heard the evidence of the complainer and the two teenage girls as part of the Crown case, and having led the police surgeon who examined the complainer, he was of the view that the [third respondent] could not add anything to the case, and it was in those circumstances that he advised the [third respondent] not to give evidence - advice which the [third respondent] accepted. He also explained that the [third respondent's] appeal to the High Court of Justiciary was refused at the stage of a second sift by a single judge (sic). Mr Watson expressed his complete astonishment that the [third respondent] was convicted given the state of the available evidence. In answer to a question from the Chairman he agreed that characterised the Sheriff's decision as perverse (sic), and that that view was stated objectively and not tainted by professional disappointment. In answer to a question from Councillor McFadden he explained that the two girls, upon whom the Sheriff relied, and who were the only witnesses to speak to repeated punching, had a view from the rear of the police car and at an acute angle.
13. Mr Murray also led the [third respondent] in evidence... The [third respondent] said he turned round, kneeling on his seat. He forced Alexander Murdoch back into his seat by pushing his right hand into Murdoch's face. He did this once. He explained that the blood which was later noticed on Alexander Murdoch's face had been there before the incident in the police car, and he surmised that it may have been caused when Murdoch was in an altercation with members of the funeral party. The [third respondent] became visibly upset when he recalled the circumstances of his trial which he attended having completed a night shift, and where he had to change into his civilian clothes in the public toilet at the Court. He accepted with the benefit of hindsight that it would have been better if he had given evidence at his trial..."
After the oral evidence had been led, the solicitor made certain criticisms of the petitioner's decision, in the context of which he reverted to some of the evidence at the original trial, including that of the Murdochs and the police surgeon. He accepted that a police officer convicted of assault committed in the course of his duty would usually have his career terminated, but that generality was subject to the qualification that, in exceptional circumstances, a lesser result might be appropriate. The second respondents continue:
"17. ...Mr Murray went on to list four matters which rendered the circumstances of the [third respondent] exceptional. Firstly, he referred to the report from Chief Inspector Young which, through a coincidence of expression, described the [third respondent] as an exceptional officer. Secondly, he referred to a statement provided by the Reverend James McCracken and a Petition organised by him headed "Wrong about Wright" and signed by members of the local community. The degree of local support was, said Mr Murray, highly unusual. Thirdly, he referred to the [third respondent's] unblemished record. Fourthly, he highlighted the apparent perversity of the conviction as spoken to by Mr Watson. The cumulative effect of these factors was such as to place the [third respondent] in an exceptional position, and to warrant a departure from the normal response to a situation where an officer has been convicted of assault in the course of his duties."
"22. ...In approaching its task the Tribunal is guided and has regard to the observations of Collins J...This Tribunal is, as Collins J said, an expert Tribunal, and given its powers to hear evidence and to substitute its own decision for that of the tribunal below, it is able to reconsider the circumstances and, importantly, to exercise its own judgment as to the appropriate disposal. These observations...inform the Tribunal's approach to this appeal, and accordingly the Tribunal has reconsidered the circumstances, and has exercised its own judgment as to the appropriate disposal. For the avoidance of any doubt, the Tribunal does not consider that it can only interfere with the decision appealed against if it is satisfied that that decision is so unreasonable...as to be outwith the range of decisions open to a reasonable decision maker.
23. The Tribunal considers it right to endorse the observation made by both parties that a police officer who is convicted of an assault upon a person in his custody will normally face the termination of his/her career absent exceptional circumstances. The Tribunal has, however, considered very carefully the evidence it has heard and the competing submissions of parties' representatives, and has concluded in this case, unanimously and with minimal hesitation, that exceptional circumstances exist in this case which, in our judgment, render a lesser disposal just and equitable. The information placed before the Tribunal, and the Tribunal's own assessment of the [third respondent] having heard him give evidence, leads the Tribunal to conclude that the [third respondent] is an officer of the highest calibre who has brought to the force a level of dedication and competence far in excess of that to be normally expected. The events of 5th October 2002, and the subsequent conviction, are an undoubted and serious blot on an otherwise unblemished record of service. The Tribunal obviously has to accept the [third respondent's] conviction as a datum, and the Tribunal has not had the advantage which the Sheriff had of hearing the evidence of the witnesses to the incident and assessing their credibility and reliability...the Tribunal is not and cannot be a substitute for the Appeal Court of the High Court of Justiciary, but it is right to observe that this Tribunal has had the benefit of hearing oral evidence which was neither available to the Sheriff nor to the Misconduct Tribunal or the Chief Constable. The Tribunal accepts, of course, that the [third respondent's] evidence is a partial account of events. That said the Tribunal has the benefit of the clear professional view of an experienced and distinguished solicitor who conducted the [third respondent's] trial that the outcome was one which has caused his (sic) considerable concern as an injustice, and the Tribunal does note that the police surgeon found no injuries on the complainer shortly after the incident which were consistent with the narrative that the [third respondent] had repeatedly punched the Appellant (sic) in the face, and there appears to the Tribunal to be no clear explanation for that apparent inconsistency.
24. The Tribunal does not consider that the reprehensible behaviour of the complainer and his brother in any way excuses the conduct of the [third respondent], and the Tribunal accepts that an assault on a person who is in custody and who is restrained by handcuffs is a matter of the utmost concern. The [third respondent] in his evidence recognised it as such. The Tribunal notes, however, that the monitoring officer at the [third respondent's] trial (whose report we commend as a thorough and detailed piece of work) noted that the Sheriff, having convicted the [third respondent] took the view that the [third respondent] had acted not in a premeditated way but in the heat of the moment, and that in sentencing the [third respondent] that he could deal with the matter "with a degree of leniency". The fine of £500 reflects that.
25. In all these circumstances the Tribunal considers that the disposal ordered by the Misconduct Hearing and confirmed on appeal by the Chief Constable is harsh and that the circumstances, in the Tribunal's judgment, allow for a lesser disposal. The Tribunal considers in this case that the career of a dedicated and promising officer, who has served the force and community with credit up until this incident, should not be brought to an end as a result of an incident which occurred in the heat of the moment and in respect of which the Sheriff took the view that he could deal with the [third respondent] with a degree of leniency..."
In addressing the issue of the difficulties involved in re-instating an officer with a conviction for assault, the Tribunal simply comment:
"In the Tribunal's view the difficulties following upon the Tribunal's order are far from insurmountable. If a difficulty is encountered at a local level with other officers or the local community, then the [third respondent] can be deployed elsewhere, although on the basis of the information the Tribunal has been provided with, it considers such an eventuality unlikely. The Tribunal further considers that the [third respondent] should be the subject of a reprimand in substitution for the disposal imposed by the Misconduct Hearing."
- Submissions [12] The petitioner's submissions followed broadly the statements in the petition itself (Statement 6), although not all of the points raised in the petition were pursued at the bar. Under reference to the dicta of Collins J in R (on the application of the Chief Constable of Avon and Somerset) v Police Appeals Tribunal (supra at para 28), the petitioner submitted first that the second respondents had erred in failing to address the issue of whether the petitioner had been "wrong" to reach the decision he had arrived at. In terms of that dicta, the second respondents had to have regard to the decision of the chief constable and state why it ought to be regarded as wrong. Secondly, as a variant of that submission, the second respondents had failed to address, and thus to take into account, the various public interest elements, which the petitioner had stated would arise in the event of re-instating a constable convicted of assault. Thirdly, the second respondents had erred in taking into account evidence, which they regarded as new, that called into question the soundness of the conviction. It was extraordinary for the Tribunal to have taken into account the views of the third respondent's solicitor on the merits of his client's conviction. The solicitor's views were irrelevant and immaterial yet they featured prominently in the reasoning behind the second respondents' decision. The second respondents appear to have proceeded upon their own view of the evidence at the trial. Their reasoning was inconsistent; in that, at some points, it accepted the facts upon which the conviction was based; but, at others, it called those facts into question. Fourthly, the circumstances before the second respondents could not be regarded as exceptional; amounting to little more than that a police officer, with a hitherto unblemished record and the continued support of his colleagues, had been convicted of an assault. [13] The first and second respondents submitted that the second respondents had not gone behind the conviction. Paragraph 6 of the second respondent's reasoning (supra) made that clear. They accepted the conviction but considered, as they were entitled to do, that the correct result in the disciplinary proceedings was a reprimand. In so saying, they had plainly regarded the petitioner's decision as wrong. The references to Mr Watson's evidence by the second respondents were made simply because that evidence had been given at the hearing. The second respondents did not say that they had taken Mr Watson's views into account. It was accepted that Mr Watson's views on the soundness of the conviction were irrelevant. However, that would have been clear to the second respondents. It would have been obvious that such views could be given, at best, only the lightest weight. The second respondents had considered that the case was, as the Sheriff had said, one where leniency was appropriate. They reached that view not so much because of an absence of premeditation in the assault but because of the third respondent's qualities as an officer. A series of references had been produced to the second respondents (Nos. 7/3-7). These disclosed that the third respondent was not simply an officer with an unblemished record but was one with outstanding commendations from senior officers and the local minister of religion. It was these qualities which had persuaded the second respondents that the petitioner's decision had been harsh. In that regard, the second respondents were entitled simply to substitute their views for that of the petitioner (see Collins J (supra)). There was no need for the second respondents to address every point which the petitioner had raised (South Bucks District Council and another v Porter (No 2) [2004] UKHL 33, Lord Brown of Eaton-under-Heywood at paras 35-36). [14] The third respondent adopted the submissions of the first and second respondents. The appeal to the second respondents had been an open appeal and was not restricted to the grounds available on a judicial review. It was for the second respondents to form their own views on the evidence presented to them and to determine any issues of weight anew. They had not proceeded on the basis that the conviction had been "perverse". To do so would have been inappropriate and wrong. The conviction had been taken as a datum. The second respondents had not regarded the third respondent as being in the "run-of-the-mill" category of officer but as an exceptional one. Chief Inspector Young's report bore this out as did the other testimonials. The second respondents were entitled to attach more weight to the third respondent's qualities than the petitioner had done. In that regard, the second respondents had rejected the petitioner's comment (No. 7/11 para 9(5)) that little weight ought to be attached to the views of the minister or the signatories to the local petition. No error of law in the second respondents' approach had been identified.
- Decision