Scottish Court of Session Decisions

"No 1 and 2 are, as far as we're concerned today, the same event in that the two apparently counterfeit £10 notes were received by him at the same time and dealt with the same way. His initial actions were understandable and only incorrect in minor detail which he had the opportunity to make good. The neglect came in the enormous delay after he acknowledged receipt of the memo from the Custodier and he even updated the Crime Report Form to say that the notes had been returned to the bank. Only after his next 'lapses' (as in 3 and 4) did he return the notes some fourteen weeks [sic: the period was fourteen months] after he had originally received them, without acknowledging that he had taken so long.

This instance of neglect, as outlined in 1 and 2 of the Statement of Reasons amounts to conduct which falls below the standards expected of a police officer and raises a question over the credibility and honesty of PC Gemmell. However, the degree of gravity is reflected in the fact that I have decided to reprimand Constable Gemmell on both these first two allegations.

The gravity of miscounduct in the admitted offence outlined in No. 3 in the Statement of Reasons is more serious because PC Gemmell did not carry out any of the expected procedures (which we know he knew of) and threw suspicion on colleagues, obstructed any timely investigation of a possible crime in another Force and denied that Force and the police service in general the criminal intelligence value of this recovery. Only after this more serious lapse was discovered, some six months later, and PC Gemmell was appropriately counselled did he deal with the other matter properly. However, as with the first two allegations, there is absolutely no evidence to suggest that there was any criminal reason for this neglect.

In view of all this I have decided that PC Gemmell's conduct fell below the standards expected of a police officer and so reprimand him on this allegation also."

"With regard to No. 4, PC Gemmell has today for the first time admitted this discreditable conduct and confirms that he must have been the officer who received the found £20 note from Miss Watt, and this is strongly corroborated by fresh, post-trial evidence. Miss Watt's concern over the way in which PC Gemmell had received this found property was so great that she sought out another officer to establish what had happened to the money. That fact, and the fact that no-one here today, other perhaps than PC Gemmell, can tell Miss Watt what happened to that £20 note which she submitted as her civic duty, means that at the very least one honest member of the public and respected community figure must have a very low opinion of the conduct of Constable Gemmell which will reflect poorly on his colleagues and the whole Force. Not only that but PC Gemmell has been shown to lack the integrity necessary to deal properly, responsibly and timeously with found cash and has breached the trust of a member of the public.

Before giving my reasons for disposal on this fourth allegation, I want to go on to consider allegation 5.

As a consequence of suspicion falling on a particular police officer the Force took the serious and carefully considered decision to mount an integrity test. The behaviour of PC Gemmell when receiving this note from the undercover officer known as 'Lisa' was perhaps not as insistent as his representative has implied. And the collective experience of I, and the two officers sitting with me today, is that the proffering of found cash by a member of the public who then declines personal details is not as unusual as he implies. This misconduct is admitted in full by the officer and no reasonable explanation is offered for his failure to deal with the found property in the correct manner - as proved by the fact that the very note was discovered folded within a small bag within a large bag amongst other monies in his personal locked drawer in the station. This despite the fact that only a few days previously he had been counselled about his handling of counterfeit money and asked if he required any extra training or guidance in this regard. The response then had been that the £5 counterfeit note lapse had been an isolated incident - again despite himself knowing that, at the time, he still had two £10 counterfeit notes which should have been returned to the Bank of Scotland at least a year previously and the fact that some two months earlier he had received a £20 note which likewise had not been properly dealt with.

I conclude that, in this instance, PC Gemmell was shown to have breached the trust of someone he believed to be a member of the public, he lacked the integrity expected of every police officer and he has brought discredit to the Force through the knowledge within the organisation of his misconduct, and the wider knowledge of the local community through the publicity of a criminal trial.

Neglect of duty in itself as in the first three allegations is a serious concern about the standards and ability of a constable but this can be remedied through training or mentoring.

The allegations at 4 and 5 not only bring discredit on the organisation and cause distress to colleagues but they call into such doubt the integrity and honesty of this officer and are of such a grave nature that they cannot be dealt with in the same way.

I return to deal with the disposals in respect of allegations 4 and 5. If I had been dealing with allegation 4 in isolation, I would certainly have been considering either a heavy fine or requirement to resign/dismissal.

In considering allegation 5 in isolation my options would have been the same.

In taking my knowledge of both acts of misconduct together, and with knowledge of the neglect of duty in offences in 1-3, I have decided that I must dispose of each of allegations 4 and 5 with a requirement to resign by noon on Friday 20^th June 2003 as an alternative to dismissal."

"It is my conclusion that through his repeated neglect of duty Mr Gemmell has exhausted the degree of latitude which one might reasonably be expected to be accorded to a police officer or any other employee in the early stages of their career. He has behaved in a way which demonstrably undermined confidence of the public in his personal integrity and, by extension, that of Lothian and Borders Police. It is my view that the Chairman of the Hearing was entitled not only to consider the gravity of the individual allegations admitted by the Appellant, but also their cumulative effect in terms of casting doubt on the reliability and integrity of Mr Gemmell. I agree with the Chairman's view that either of the counts of misconduct recorded as numbers 4 and 5 at the Hearing taken individually might merit a requirement to resign as an alternative to dismissal and, taken collectively, most certainly make a compelling case for such a disposal. I therefore reject the Appeal and endorse the disposals made at the Hearing under the Chairmanship of ACC Malcolm Dickson."

"Can you confirm whether reasons will be provided for the decision or whether the reasons are limited to those contained in the decision already provided."

"I spoke to Mr Keen's PA yesterday. The document which I emailed to you yesterday is the Tribunals decision document in terms of Para 16 of the Regulations [sic]. It is not his intention to issue further advice."

"Appeals against dismissal etc

30.-(1) A constable who is dismissed, required to resign or reduced in rank by a decision taken in proceedings under regulations made in accordance with subsection (2A) of section 26 of this Act may appeal to a police appeals tribunal against the decision...

(2) Where a police appeals tribunal allows an appeal it may, if it considers that it is appropriate to do so, make an order dealing with the appellant in a way -

(3) The Secretary of State may make rules as to the procedure on appeals under this section to a police appeals tribunal.

...

(5) Schedule 3 to this Act shall have effect in relation to appeals under this section."

" Police Appeals Tribunals

...

2.-(1) In the case of an appeal by a constable who is not a senior officer, the police appeals tribunal shall consist of four members appointed by the relevant police authority, of whom -

(2) The member of the police appeals tribunal to whom sub-paragraph (1)(a) of this paragraph applies shall be the chairman.

...

7.-(1) Where an appeal is allowed, the order shall take effect by way of substitution for the decision appealed against, and as from the date of that decision or, where that decision was itself a decision on appeal, the date of the original decision appealed against.

(2) Where the effect of the order made by the police appeals tribunal is to reinstate the appellant in the force, or in his rank he shall, for the purposes of reckoning service for pension and to such extent (if any) as may be determined by the order for the purposes of pay, be deemed to have served in the force or in that rank continuously from the date of the original decision to the date of his reinstatement."

"The Registrar

2.-...

(4) On receipt of a notice of appeal by a constable who is not a senior officer, the Registrar shall forthwith request the police authority to appoint the members of the tribunal which shall determine the appeal in accordance with the Act and these Rules.

(5) The chairman of the police authority shall inform the Registrar, as soon as the authority has made the required appointments, of the names and addresses of the members of the tribunal which the authority has appointed under paragraph 2 of Schedule 3 to the Act.

...

Decision of the tribunal
16.-(1) Subject to paragraphs (3) and (4), the tribunal shall determine the appeal -

(2) The decision of the tribunal may be taken by a majority and the chairman shall record whether the decision was unanimous or taken by a majority.

(3) The decision of the tribunal shall be made -

(4) Subject to paragraph (5), where a decision cannot be made within the relevant period mentioned in paragraph (3) by reason of any member of the tribunal being incapable of carrying out his duties -

(5) Notwithstanding paragraph (4), an appeal may be determined by the tribunal in the absence of a member (other than the chairman) if the parties consent to the tribunal proceeding to a determination in the absence of that member.

(6) The decision of the tribunal shall be recorded not later than 7 days after the date on which it is made in a document which shall contain -

and shall be signed and dated by the chairman of the tribunal.

(7) The Registrar shall forthwith send a copy of the document to -

(8) The Registrar shall also send to each Registrar appointed by every police authority other than the relevant authority a copy of the document marked in such a manner which ensures that the identity of either of the parties to the appeal is not disclosed and not capable of being disclosed.

17.-(1) Any irregularity resulting from failure to comply with any provision of these Rules or of any direction of the tribunal before it has reached its decision shall not of itself render the proceedings void.

(2) Where any such irregularity comes to the attention of the tribunal, it may, and shall if it considers that a party may have been prejudiced by that irregularity, give such directions to cure or waive the irregularity as it thinks just before reaching its decision.

(3) Clerical mistakes in any document recording a direction or decision of the chairman or of the tribunal, or errors arising in such a document from an accidental slip or omission, may be corrected by the chairman by certificate under his hand."

"Any statement of the reasons for such a decision... shall be taken to form part of the decision and accordingly to be incorporated in the record".

"The purpose of this statutory requirement is not merely to inform the parties of the result of the committee's deliberations, and to make clear to them the basis on which the decision was reached; but the purpose is also to demonstrate that the committee reached their result in conformity with the requirements of the statutory provisions, and in accordance with the principles of natural justice."

"The statutory obligation to give reasons is designed not merely to inform the parties of the result of the committee's deliberations but to make clear to them and to this Court the basis on which their decision was reached, and that they have reached their result in conformity with the requirements of the statutory provisions and the principles of natural justice."

"The review board shall record in writing every decision which it makes on further review and shall include in every such record a statement of the reasons for its decision and its findings on material questions of fact".

"It will not suffice if the board attempts (as it has done in this case) to explain or elaborate its reasons by way of answers to the petition [for judicial review]".

"In the petition the petitioners seek reduction of the panel's decision and their entry on to the pharmaceutical list of the Lanarkshire Health Board. In their second plea in law, however, by way of alternative remedy, the petitioners seek an order from the court ordaining the panel forthwith to provide a proper and adequate statement of reasons. Counsel for the petitioners explained that the petitioners were anxious to know the reasons for the panel's decision so that they could consider what their future action should be. He accordingly accepted that at this stage it might be appropriate to remit to the panel in order that they should provide a proper and adequate statement of reasons. Counsel for the panel did not accept that the panel had failed to give sufficient reason for their decision, and emphasised that the panel did not require to give reasons for reasons. Ultimately, however, he did not oppose a remit being made to the panel so that they could give further elaboration of their reasons. In the circumstances, we have come to the conclusion that it would be appropriate at this stage to remit to the panel so that they can provide a complete and adequate statement of the reasons for their decision, and in particular to state what material factors they considered in arriving at their decision, and what conclusions they reached on these material factors. Until that has been done, the court will not be able to dispose of this reclaiming motion."

"The respondents have not chosen to amplify their reasons in any way in their answers and their counsel frankly conceded that he had no reason to suppose that the respondents were in a position to add to their reasons... In the circumstances I doubt if anything could be gained by remitting to the respondents for further amplification of their reasons. The court cannot be satisfied that the respondents acted properly within their statutory powers..."

"It was argued for the respondents initially that the notice as to rights of appeal required by article 3(3) of the 1959 Order was something severable from the certificate itself. The certificate, so it was maintained, constituted a decision of the local planning authority which had a force and validity of its own unaffected by any failure to give the statutory required notice about rights of appeal. Reference was made to the decision of the Court of Appeal in Brayhead (Ascot) Ltd v Berkshire County Council, where it was held that the failure of a local planning authority, when granting planning permission subject to a condition, to give reasons in writing for the imposition of the condition as required by article 5(9) of the Town and Country Planning (General Development) Order 1950 did not render the condition void. This was upon the ground, as stated by Winn J at pp.313-314, that while the requirement was mandatory in the sense that compliance with it could be enforced by mandamus, non-compliance did not render the condition void because that result was not required for the effective achievement of the purpose of the statute under which the requirement was imposed, and not intended by Parliament on a proper construction of that statute. In my opinion the argument is not assisted by the case referred to and is unsound. Article 3(3) of the 1959 Order specifically states that any certificate issued under section 25(4)(b) of the Act 'shall include' a statement in writing of rights of appeal. This is entirely contrary to any idea of severability, and the provision is clearly necessary for effectively achieving the obvious purpose that the applicant receiving the certificate should know what his rights are. The consequences of failure to inform him of these rights may be irretrievable, unlike the consequences of failure to state reasons in writing, which can always be put right at a later date without anything more serious than some inconvenience."

"Then it was contended that article 3(3) was not intended to be mandatory or imperative, but merely directory and procedural in effect...

The word 'shall' used in article 3(3) is normally to be interpreted as connoting a mandatory provision, meaning that what is thereby enjoined is not merely desired to be done but must be done. In many instances failure to obtemper a mandatory provision has the consequence that the proceedings with which the failure is connected are rendered invalid. But that is not necessarily so. As is shown by the case of Brayhead (Ascot) Ltd v Berkshire County Council (supra) something may turn upon the importance of the provision in relation to the statutory purpose which the provision is directed to achieving, and whether any opportunity exists of later putting right the failure. I have no doubt that in the present case the provision under consideration is intended to be mandatory and is of such a character that failure to comply with it renders the certificate invalid."

"The jurisdiction is inherently discretionary and the court is frequently in the presence of differences of degree which merge almost imperceptibly into differences of kind".

"No doubt such a non-compliance may be and often will be inconvenient for an applicant; he may find it necessary to give notice of appeal to the Minister before he knows the strength or weakness of the case which he will have to meet. However, he could undoubtedly demand, as of right, a statement of reasons and by threat or effect of an order of mandamus secure them, and it would be strange if the Minister did not adjourn his appeal until the reasons had been delivered and considered. In the sense that there is a duty to state the reason in writing requirement (2) is undoubtedly mandatory. Comparison may be made of the provisions of section 12 of the Tribunal and Enquiries Act, 1958, requiring that reasons, if requested, be stated, in general, for a decision: a non-compliance with those provisions would certainly found a mandamus.

It is another matter whether the notice of condition in the present case, or such a tribunal decision is rendered null by a failure to state reasons in writing: notwithstanding the obiter dicta of Salmon J this extreme result is not required for the effective achievement of the purposes of the statute nor intended, as a matter of construction, by Parliament."

"39.-(1) Where there is a hearing of an appeal and the appellate authority does not reserve the determination on the appeal, the authority shall pronounce the determination and the reasons therefor at the conclusion of the hearing.

(2) Whether or not paragraph (1) above applies, the determination of any appeal shall be recorded by the appellate authority in a document signed by the adjudicator or, as the case may be, the president or presiding chairman of the Tribunal; and the reasons for the determination shall be set out therein.

(3) The appellate authority shall, as soon as practicable, cause a copy of the document referred to in paragraph (2) above to be sent to every party to the appeal."

"Where one gets a decision of a tribunal which either fails to set out the issue which the tribunal is determining either directly or by inference, or fails either directly or by inference to set out the basis upon which they have reached their determination upon that issue, then that is a matter which will be very closely regarded by this court, and in normal circumstances will result in the decision of the tribunal being quashed. The reason is this. A party appearing before a tribunal is entitled to know, either expressly stated by the tribunal or inferentially stated, what it is to which the tribunal is addressing its mind. In some cases it may be perfectly obvious without any express reference to it by the tribunal; in other cases it may not. Secondly, the appellant is entitled to know the basis of fact upon which the conclusion has been reached. Once again in many cases it may be quite obvious without the necessity of expressly stating it, in other cases it may not."

"Mr Stoker, on behalf of the council, submits, first, that the letter of April 29, 1986, is not the decision but the notification of the decision. I have no evidence from which I can discover who took the decision and when, but Mr Stoker submits that once the decision had been taken, this could only be challenged for perversity or procedural irregularity in the decision-making process. The failure to comply with section 64 is of no relevance to the legality of the decision itself. Thirdly, he submits that the decision is not one verging on absurdity, nor does it on its face betray an error of law because, he says, there is no face that I can look at, the decision having preceded in time the letter. In my judgment, I am entitled to treat the letter of April 29, 1986, as the decision of the authority, just as the court will treat the decision letter of the Secretary of State on an appeal under section 36 of the Town and Country Planning Act 1971 as the decision of the Secretary of State. It is no doubt true in every case that the decision conceptually precedes the communication of that decision in letter form, but it is not permissible for the court, in my judgment, to go behind that letter and hear evidence as to what the real reasons were. This is consistent with the general procedure adopted by the courts in relation to administrative decisions in cases where the decision maker is obliged to give reasons for his decision. One of the purposes of requiring the decision maker to state his reasons is to give the recipient of the decision the opportunity of challenging it... I am prepared to accept that the court has jurisdiction not to quash the decision if satisfied that there would be no purpose in so doing, having regard to the totality of the evidence before the court. Nevertheless, where a decision letter is manifestly flawed, in general the court would be slow not to quash. In my judgment, in the present case it would be right to quash the decision and I shall do so."

"There is only one point on which I would add a few remarks. There was some debate about the obligation under section 64 of the Housing Act 1985 to give reasons. I readily accept that the reasons may be very brief and must be read in the context of the matter in question. But to my mind the statutory obligation necessarily imports a duty to furnish adequate reasons for the decision having regard to the issue, or issues, to which the decision relates. In my judgment the idea that material gaps in the reasons can always be supplemented ex post facto by affidavit or otherwise ought not to be encouraged. That in effect is what we have been asked to do on behalf of the council. No doubt questions of the sufficiency of reasons usually involve a judgment as to matters of degree. Nevertheless it seems to me that if the reasons are insufficient to enable the court to consider the lawfulness of the decision the obligation of furnishing reasons has been breached and in that event the decision itself will be unlawful."

"These submissions seem to me to disregard the authorities to which we have been referred. Moreover, underlying Mr Jones's approach was the notion that the quashing of the decision for lack of proper reasons was a mere formality, in that it left the authority, in a case such as the present, with no more than a sort of mechanical or formal function to perform: they would simply, tomorrow as it were, send a further letter in effect incorporating the reasoning contained in Mr Lodge's affidavit. I do not for a moment accept that that is the correct approach. What was sought by the applicant was not an order of mandamus requiring the authority to give reasons, but an order of certiorari quashing the decision coupled with mandamus directing them to reconsider the application. If such orders are granted, they necessarily involve proper reconsideration...

The frequent practice of the courts when orders of this sort are quashed is not to make orders of mandamus directing reconsideration, because it is thought unnecessary to make such orders against responsible local authorities, who can be trusted to do without compulsion what an order would direct them to do. It does not need to be said that that practice in no way lessens the obligation that reconsideration entails."

"(1) It is unrealistic to seek to draw any significant distinction, in the context of s 64, between the decision and the communication of the decision with reasons, or to treat the giving of reasons as purely procedural. In reaching this conclusion I am influenced by the fact that the section in terms requires reasons to be given at the same time as the decision is communicated; by Schiemann J's observations in Ex p Shield; and by the many cases in which such decisions have been quashed for inadequacy of reasons.

(2) The court can and, in appropriate cases, should admit evidence to elucidate or, exceptionally, correct or add to the reasons; but should, consistently with Steyn LJ's observations in Ex p Graham, be very cautious about doing so. I have in mind cases where, for example, an error has been made in transcription or expression, or a word or words inadvertently omitted, or where the language used may be in some way lacking in clarity. These examples are not intended to be exhaustive, but rather to reflect my view that the function of such evidence should generally be elucidation not fundamental alteration, confirmation not contradiction. Certainly there seems to me to be no warrant for receiving and relying on as validating the decision evidence - as in this case - which indicates that the real reasons were wholly different from the stated reasons. It is not in my view permissible to say, merely because the applicant does not feel able to challenge the bona fides of the decision-maker's explanation as to the real reasons, that the applicant is therefore not prejudiced and the evidence as to the real reasons can be relied upon. This is because, first, I do not accept that it is necessarily the case that in that situation he is not prejudiced; and, secondly, because, in this class of case, I do not consider that it is necessary for the applicant to show prejudice before he can obtain relief. Section 64 requires a decision and at the same time reasons; and if no reasons (which is the reality of a case such as the present) or wholly deficient reasons are given, he is prima facie entitled to have the decision quashed as unlawful.

(3) There are, I consider, good policy reasons why this should be so. The cases emphasise that the purpose of reasons is to inform the parties why they have won or lost and enable them to assess whether they have any ground for challenging an adverse decision. To permit wholesale amendment or reversal of the stated reasons is inimical to this purpose. Moreover, not only does it encourage a sloppy approach by the decision-maker, but it gives rise to potential practical difficulties. In the present case it was not, but in many cases it might be, suggested that the alleged true reasons were in fact second thoughts designed to remedy an otherwise fatal error exposed by the judicial review proceedings. That would lead to applications to cross-examine and possibly for further discovery, both of which are, while permissible in judicial review proceedings, generally regarded as inappropriate. Hearings would be made longer and more expensive.

(4) While it is true, as Schiemann J recognised in Ex p Shield, that judicial review is a discretionary remedy and that relief may be refused in cases where, even though the ground of challenge is made good, it is clear that on reconsideration the decision would be the same, I agree with Rose J's comments in R v Northampton Borough Council, ex parte Carpenter (1992) 25 HLR 349 that, in cases where the reasons stated in the decision letter have been shown to be manifestly flawed, it should only be in very exceptional cases that relief should be refused on the strength of reasons adduced in evidence after the commencement of proceedings. Accordingly, efforts to secure a discretionary refusal of relief by introducing evidence of true reasons significantly different from the stated reasons are unlikely to succeed.

(5) Nothing I have said is intended to call in question the propriety of the kind of exchanges, sometimes leading to further exposition of the authority's reasons or even to an agreement on their part to reconsider the application, which frequently follow the initial notification of rejection. These are in no way to be discouraged, occurring, as they do, before, not after, the commencement of proceedings. They will often make proceedings unnecessary. They are in my judgment very different from what happened in this case.

I also wish to emphasise that all that I have said is with reference only to the provisions of s 64 of the 1985 Act."

"Certainly there seems to me to be no warrant for receiving and relying on as validating the decision evidence - as in this case - which indicates that the real reasons were wholly different from the stated reasons."

"(a) record in writing all its decisions; and

"...in a case where the challenge is made as to the adequacy of reasons and as to whether a decision should be upheld because the decision-maker appears not to have given weight to relevant considerations in the judgment, the authorities make it plain that except in exceptional cases the courts should not look at evidence of this kind."

"I do not consider this decision has any bearing on the case before me. This is not a case of substituting fresh reasons for reasons given earlier which were flawed. No reasons were given in this case when they should have been. They have now been provided, albeit belatedly."

"There are some classes of case in which the adequacy of the reasons is itself made a condition of the legality of the decision. In such instances, later evidence giving a proper explanation of the reasons by definition cannot cure the legal defect which would arise if the original reasons were inadequate. But this is not such a case, and Mr Clayton does not contend the contrary. It seems to me with respect that the passage from Hutchison LJ's judgment [in Ex parte Ermakov] which I have cited, and also Latham J's reasoning [in S v Special Educational Needs Tribunal and the City of Westminster [1995] 1 WLR 1627], give a resounding and salutary warning against a particular danger that may arise where originally faulty reasons are sought to be cured by later evidence. It consists in the risk that the later material, albeit put forward in perfect good faith, in truth offers an ex post facto justification for the decision which in substance travels beyond, and may differ from, the actual reasons entertained by the decision-maker at the time. It is, I think, important to notice that the Lord Justice was dealing with a case (as he stated in the second numbered paragraph which I have set out) where 'the real reasons were wholly different from the stated reasons'. I would emphasise also his deprecation (in para 3) of the 'wholesale amendment or reversal of the ...reasons'. I accept, however, that even where the court is confident that the later evidence represents the actual reasons given at the time, it will not automatically receive the later material. Whether it will do so will be a matter for the court's discretion case by case. Broadly speaking, the court will have in mind the great importance to be attached to the giving of legally sufficient reasons at the time they are supposed to be given. As Hutchison LJ said (in para 3), 'The purpose of reasons is to inform the parties why they have won or lost and enable them to assess whether they have any ground for challenging an adverse decision'. At the same time, in a case where the court is entirely satisfied, despite an original defect in the reasons given, that the public body in question has arrived at a perfectly proper decision amply justified (so far as any public law tests are concerned) [by] reasons by which it was entitled to entertain and which it did entertain at the time, it may be slow to strike down the decision on the basis only that the later explanation should have been given when the decision was communicated. I recognise that Hutchison LJ (in the opening sentences in para 2) draws a distinction between elucidation on the one hand and correction or addition on the other. But I think with respect it is clear that he was concerned with the class of case where the later material exhibits a significant or indeed fundamental shift of ground from the reasons given at the time."

"Having to give reasons concentrates the mind wonderfully."

"34. In my judgment, the following propositions appear from the above authorities:

"The delay between hearing [before the trial judge] and appeal will normally be too long to make a remission to the trial judge for further reasons a desirable course."

"The consequences of a failure to comply with a requirement to give reasons depend very much on statutory context and the particular circumstances of the case. The authorities cited by counsel cover a range of different situations. In evaluating them it is also important to bear in mind that there has been, as it seems to me, a tendency in recent years to adopt a stricter approach to the requirement to give reasons and to be readier to quash a decision for failure to give reasons and less ready to allow a deficiency of reasons to be cured by the provision of reasons or supplemental reasons at a later stage... Although these and the other cases to which I have been referred provide general guidance, they do not lay down a principle that is determinative of the present case. There is no substitute for a careful examination of the particular statutory context and the precise nature of the requirement to state reasons in each case."

"39. Mr McCracken submits that an irresistible inference arises from the requirement to give reasons following an EIA decision that at the time the decision is taken those reasons must be openly discussed and formulated in public. Whenever there is a legislative requirement for reasons, he argues, there are necessarily twin objects to be served. One is to enable those aggrieved by the decision to challenge it if its reasoning can be seen to be deficient. The other is to improve the quality of decision-making. Often, of course, that will be so. But to contend that it is invariably so seems to me extravagant: The requirement for 'the main reasons and considerations on which the decision is based' to be made available to the public - after, it should be noted, the decision 'has been taken' - was first introduced by the amending Directive 97/11/EC in 1997. To suggest that there then suddenly arose a duty upon planning committees to discuss their detailed reasoning in public I find absurd. As Mr Straker points out, an EIA planning application can on occasion be decided by a council officer under his delegated powers when, of course, there would be no public hearing at all. In any event it seems to be plain that the particular requirement for reasons imposed upon planning authorities here was to inform the public retrospectively of the basis for the decision rather than to dictate the course or even quality of the decision making process itself."