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Cite as: [2007] CSIH 31, [2007] ScotCS CSIH_31

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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Osborne

Lord Macfadyen

Lord Kingarth

[2007] CSIH 31

XA63/06

OPINION OF THE COURT

delivered by LORD OSBORNE

APPEAL

from the Sheriffdom of Glasgow and Strathkelvin at Glasgow

in the cause

HUGH MARTIN LAVERY

Pursuer and Appellant;

against

STRATHCLYDE JOINT POLICE BOARD

Defenders and Respondents:

_______

Act: Mitchell, Q.C., Bell; Balfour & Manson (Hughes Dowdall, Glasgow) (Pursuer and Appellant)

Alt: Lake; Simpson & Marwick (Hennessy Bowie & Co., Glasgow) (Defenders and Respondents)

10 May 2007

The background circumstances

1. The present proceedings

[1] The appellant is a police constable with Strathclyde Police. The respondents are the police authority for Strathclyde Police under and in terms of the Police Pensions Regulations 1987 (S.I. 1987 No. 257), as amended, hereinafter referred to as "the Regulations". This is an appeal from the sheriff in Glasgow against an interlocutor dated 8 March 2006, pronounced in a summary application by the appellant to the sheriff under Regulation H5(2) of the Regulations.

2. The relevant Regulations

[2] In order to render comprehensible what follows, it is appropriate to narrate certain parts of the Regulations, which have a bearing on the issues in this case. This we now do:

"PART A GENERAL PROVISIONS AND RETIREMENT ...

Regulation 12

Disablement

(1) A reference in these Regulations to a person being permanently disabled is to be taken as a reference to that person being disabled at the time when the question arises for decision and to that disablement being at that time likely to be permanent. ...

(2) Subject to paragraph (3), disablement means inability, occasioned by infirmity of mind or body, to perform the ordinary duties of a member of the force, ...

Regulation 20

Compulsory retirement on grounds of disablement

Every regular policeman may be required to retire on the date on which the police authority determine, having given due consideration to all the circumstances, advice, guidance and information available to them, that he ought to retire on the ground that he is permanently disabled for the performance of his duty: ...

PART B PERSONAL AWARDS ...

Regulation 3

Policeman's ill-health award

(1) This Regulation shall apply to a regular policeman who retires or has retired on the ground that he is or was permanently disabled. ...

(2) A regular policeman to whom this Regulation applies shall be entitled to an ill-health award as hereinafter provided.

(3) In the case of a policeman who is or was at the time of his retirement -

(a) entitled to reckon at least two years' pensionable service, or

(b) disabled as the result of an injury received in the execution of duty,

the award under paragraph (2) shall be an ill-health pension calculated in accordance with (certain specified provisions).

(4) In the case of any other policeman the award under paragraph (2) shall be an ill-health gratuity calculated in accordance with (certain specified provisions).

Regulation 4

Policeman's injury award

(1) This Regulation shall apply to a person who ceases or has ceased to be a member of a police force and is permanently disabled as a result of an injury received without his own default in the execution of his duty ...

(2) A person to whom this Regulation applies shall be entitled to a gratuity and, in addition, to an injury pension, in both cases calculated in accordance with (certain specified provisions) ...

PART H APPEALS AND MEDICAL QUESTIONS

Regulation 1

Reference of medical questions

(1) Subject as hereinafter provided, the question whether a person is entitled to any and, if so, what awards under these Regulations shall be determined in the first instance by the police authority.

(2) Where the police authority are considering whether a person is permanently disabled, they shall refer for decision to a duly qualified medical practitioner selected by them the following questions -

(a) whether the person concerned is disabled;

(b) whether the disablement is likely to be permanent;

and, if they are further considering whether to grant an injury pension, shall so refer the following questions:

execution of duty, and

(d) the degree of the person's disablement;

and, if they are considering whether to revise an injury pension, shall so refer question (d) above.

...

(4) The police authority may decide to refer a question in paragraph (2) or, as the case may be, (3) to a board of duly qualified medical practitioners instead of to a single duly qualified medical practitioner, and in such a case references in this regulation, ... to a medical practitioner shall be construed as if they were references to such a board.

(5) The decision of the selected medical practitioner on the question or questions referred to him under this regulation shall be expressed in the form of a report and shall, subject to regulations H2 and H3, be final.

Regulation 5

Appeal by a member of a home police force

(1) Where a member of a home police force, or a person claiming an award in respect of such a member, is aggrieved by the refusal of the police authority to admit a claim to receive as of right an award or a larger award than that granted ... he may, subject to Regulation H7, appeal to the Crown Court and that court, after enquiring into the case, may make such order in the matter as appears to it to be just.

(2) In the case of a member of a Scottish police force, paragraph (1) shall have effect as if any reference to the Crown Court were a reference to the sheriff having jurisdiction in the place where the person concerned last served as such a member. ...

Regulation 7

Limitations on appeals

(1) An appeal shall not lie under Regulation H5 ... against anything done by a police authority in the exercise of a power conferred by these Regulations which is expressly declared thereby to be a power which they are to exercise in their discretion. ... ".

3. The parties' averments

[3] The appellant avers that he is a constable with Strathclyde Police, who has been absent from duty due to ill-health since 22 June 2002. He claims to be permanently disabled from performing the ordinary duties of a police officer as the result of an injury received, without his own default, in the execution of his duty. In particular he claims that he suffers from post-traumatic stress disorder and a severe depressive disorder. He claims to be entitled to ill-health and injury awards under and in terms of Regulations B3 and B4 of the Regulations.

[4] In response to those averments the respondents aver that the appellant is currently the subject of formal disciplinary proceedings in relation to his conduct as a police officer. The award of an ill-health pension can only be made to a serving police officer whose employment has been terminated as a result of his ill-health. If a police officer resigns or is dismissed as a consequence of disciplinary proceedings against him, his pension entitlement is significantly reduced.

[5] In response to those averments of the respondents, the appellant goes on to aver that the appellant is unfit, due to the severity of the condition condescended upon, to give proper instructions for the conduct of any disciplinary proceedings. In any event, no properly conducted tribunal would be likely in the circumstances to find the appellant guilty of misconduct. The complaint to which the respondents refer relates to an incident in Wishaw Police Office on 8 September 2001. The appellant is alleged to have assaulted a prisoner by kicking him on the face. The appellant avers that on 8 April 2004 at Hamilton Sheriff Court he was acquitted of a criminal charge of assault relating to the incident after the complainer had failed to identify him as the perpetrator. The appellant also avers that the agreed evidence of the police casualty surgeon was that the injury sustained by the complainer was inconsistent with his account of the alleged assault. The only other police officer involved in the incident refutes the complainer's allegation. No disciplinary proceedings have been taken against him.

[6] In relation to the appellant's averments concerning the alleged basis of the disciplinary proceedings, the respondents admit the matter to which the disciplinary proceedings relate; they admit the appellant's acquittal of a criminal charge and that no other police officer has been the subject of disciplinary proceedings in respect of the same incident. They then aver that a notice was served on the appellant on 19 November 2002 advising that misconduct proceedings might be taken against him in relation to said incident. An investigation form was served on the appellant on 24 June 2004. The respondents aver that, after investigation, it was resolved that misconduct proceedings be taken against the appellant. They were aware that the appellant had been on long term sick leave with a head injury following upon a road traffic accident. Before serving the appropriate documentation, they wished to ascertain his fitness to receive and understand the papers, attend the misconduct hearing, and instruct his defence. Accordingly they aver that they requested their Occupational Health Department to carry out an examination for these purposes. However, the appointment made was cancelled by the appellant's agents. A further appointment was again cancelled by the appellant's agents. Thereafter the respondents were advised that the appellant was unable to cope with disciplinary procedures at the time. It is averred that the respondents wrote to the appellant's agents on 11 January 2005 to enquire if the appellant would agree to the misconduct hearing proceeding in his absence. They were advised that the appellant was not fit to attend for examination, attend any hearing, or give instructions in respect of the hearing. Further attempts were made to have the appellant attend for examination in relation to his fitness for misconduct proceedings, but they were advised by the pursuer's agents that the appellant's health precluded him from attending for such purposes. Further attempts to arrange an examination of the appellant for those purposes were unsuccessful.

[7] The respondents aver that the appellant has declined and continues to decline to attend for such examination. By his actions he has prevented the respondents from progressing the disciplinary proceedings which they intend to bring against him for serious misconduct. They aver that the appellant is capable of instructing solicitors. Further, it is averred that he had attended medical examinations by psychiatrists in the past and was willing to attend for medical examination by a consultant psychiatrist in connection with his application for a pension. The respondents aver that there is no good reason for his failure to attend for medical examination by a consultant psychiatrist regarding his fitness to face the misconduct proceedings. An adverse finding at the misconduct proceedings would lead to a range of penalties, including dismissal, a requirement on the pursuer to resign, and a reduction of the pursuer's rank. Any of these consequences would have a material effect on the amount of the appellant's pension. In the event that an award of pension is made in advance of the resolution of the disciplinary proceedings, it would be open to the appellant to resign from the police thereafter and thereby avoid the consequences of the alleged misconduct being established. It is claimed that the allegations against the appellant would amount to serious misconduct and that there exists a prima facie case against him. The respondents aver that there are no timescales or time limits applying to them in relation to their operation of the Regulations. It is reasonable and just for them to defer any action in relation to the appellant's application for a pension until the resolution of the misconduct proceedings. It is in the public interest that they should do so and that no decision be taken on the appellant's pension until serious misconduct proceedings have been resolved.

[8] The appellant avers that, by letter dated 6 December 2004, his agents called upon the respondents to admit his claims for ill-health and injury awards. Relevant medical reports were exhibited. The appellant avers that the respondents refused to admit his claim or to refer the questions specified in Regulation H1(2)(a) to (d) for a decision to a duly qualified medical practitioner. It is said that in these circumstances the application to the sheriff was necessary.

[9] In response the respondents aver that the Regulations do not give the police authority any discretion to retire or not to retire an officer after that officer has been determined to be permanently disabled by a qualified medical practitioner. The decision of the medical practitioner on such a matter is final. The respondents have no power to overturn that decision for any reason, including a subsequent finding of misconduct. The respondents aver that the Regulations do not require them to refer the matter to a qualified medical practitioner at any specific time. It is their practice not to make such a reference unless and until disciplinary proceedings have been completed. It would be unreasonable for them to make a decision regarding the pension entitlement of an officer at a time when there are outstanding proceedings against the officer which, if they were upheld, would materially affect the basis of the pension and the amount of the pension. It would be unreasonable and contrary to the public interest for a police officer to avoid the consequences of misconduct by insisting upon a decision prior to the conclusion of disciplinary proceedings against him.

[10] Against that background of averments, the appellant made his summary application to the sheriff seeking two remedies. First, he craved the court to ordain the respondents to refer for decision to a duly qualified medical practitioner the questions set in Regulation H1(2)(a) to (d) of the Regulations in respect of the appellant's claims. Second, the appellant sought an order ordaining the respondents to admit his claims for an ill-health award and an injury award under and in terms of Regulations B3 and B4 of the Regulations.

4. The decision of the sheriff

[11] In his note associated with his interlocutor of 8 March 2006 the sheriff states that when the appellant's application called before him for proof, he was informed that parties would conduct the matter by way of submissions only and did not intend to lead evidence. He was also informed that, at that stage, the parties were concerned only with the first crave of the summary application. Thereafter the sheriff narrated the submissions made before him.

[12] Finally, at pages 32 and 33 of the appeal print, the sheriff's decision is expressed. There he says:

" In my view the full submissions and arguments by counsel for the pursuer are based on the assumption that the defenders have refused to refer this matter to a qualified medical practitioner ... The defenders state there is no refusal to refer and admit the claim but they admit deferral for various reasons.

It seems to me that before I can apply my mind as to whether a referral is mandatory I must be satisfied that there has been a refusal to refer the defender (sic) to a medical practitioner. The pursuer asks me to rely on the circumstances narrated on Record and suggests that this can be nothing other than a refusal. I do not agree with counsel's assumption and cannot adopt this position. The defender on the other hand states that I should hear the facts first before determining whether there is a delay or a refusal and I agree with this proposition. Any order I make requires to be just and I take the view I would require to hear evidence. The terms of Regulation H5 relating to appeals deal only with a refusal. I accordingly have to decide whether a deferral is a refusal in the present circumstances and that involves consideration of whether there is a discretion to defer and whether such a discretion is reasonable under the circumstances.

It seems to me that I cannot on the basis of the submissions made make a finding that there has been a refusal to refer. I cannot make this assumption without hearing the evidence since the defenders deny refusal. The leap to such a conclusion without hearing evidence is too great in my view. This, as far as I am concerned, is the initial starting point from which I would require to then consider both parties' submissions afresh ... For the reasons already narrated I refused to grant the terms of crave 1."

Submissions of the appellant

[13] When this matter came before us, senior counsel for the appellant drew our attention to the various parts of the Regulations which he conceived were of relevance to the issues in this case, some of which we have already quoted. He observed in relation to Regulation A20 that the Regulations appeared to afford the initiative in relation to retirement to the police authority; there was no provision in the Regulations for police officers themselves to initiate that. It might be that there was a lacuna in that regard. In this connection he drew attention to Regina v Sussex Police Authority, ex parte Stewart [2000] ICR 1122, particularly to the judgment of Simon Brown L.J. at page 1132. The court held that Regulation A20 manifestly vested in the police authority a discretion whether or not to enforce retirement on grounds of disablement. A similar view had been expressed in Regina v Kent Police Authority [1971] 2 Q.B. 662 at pages 671 and 672. The position had been adopted before the sheriff that the police authority had no discretion after a medical certificate had been granted, which was erroneous. The position under Regulation H1(2) and (5) was that a reference would settle the issue of disablement; it would not, however, require the police authority to retire the officer on account of disablement.

[14] In the present case, the appellant had suffered a road traffic accident in June 2002. For a period of time thereafter, initially, he had been on full pay, latterly he had been on half pay, until the end of July 2004, when payment ceased. Looking at the terms of Regulation H1, the only way in which an officer who was unfit and believed that he was permanently disabled could progress matters was by means of a reference under Regulation H1(2). The appellant's submission was that if an applicant averred that he was permanently disabled, the police authority were obliged to "consider" that. Hence they would be "considering whether a person is permanently disabled", with the result that they came under an obligation to make a reference in terms of Regulation H1(2). However, in this case, the respondents purported to be applying a policy of their own in view of the outstanding disciplinary proceedings. Their position appeared to be that the requirement to refer was being deferred. The language of Regulation H5, which referred to a "refusal of the police authority to admit a claim" embraced a refusal on their part to refer in terms of Regulation H1(2). In this connection senior counsel relied on Regina, ex parte Sussex Police Authority v Beck and Hamlin [2003] EWHC 1361, which was an example of an appeal against a refusal to refer.

[15] At this point in his submissions senior counsel referred to the documentation relevant to the appellant's position. Numbers 17/40 to 44 of process were correspondence relating to the desired referral. The respondents' position was disclosed in the letter, dated 14 November 2003, 17/44 of process. The respondents indicated that there would be no referral where issues relating to disciplinary proceedings were being considered. However, senior counsel submitted that that position was inconsistent with Regulation H1(2). It was submitted that the authority had no power to follow the course which they were purporting to follow. Once the issue of permanent disablement had been raised, the police authority came under an obligation to make a reference. Of course, if a request was demonstrably frivolous or absurd, there would be no obligation to refer. Support for that position could be found in Regina v Merseyside Police Authority, ex parte Yates [1999] E.W.H.C. Admin. 157, particularly in paragraph 14.

[16] In answer to a question by the court, senior counsel submitted that it was not open to the police authority to say that they were not "considering whether a person is permanently disabled" because disciplinary proceedings were in being, on account of the provisions of Regulation H1. In any event, it was plain from the letter of the respondents dated 14 November 2003, 17/44 of process, that they were in fact considering whether the appellant was permanently disabled. In view of the fact that an impasse had developed on account of the unanimous medical opinion that the appellant was not fit to give instructions to his advisers in relation to disciplinary proceedings and of the respondents' attitude to the making of a referral, the appellant's only option had been to raise the present proceedings.

[17] Senior counsel went on to examine in detail the pleadings of the parties and the sheriff's judgment, to which we have already referred. In ordering a proof, it was submitted that the sheriff had erred in law. Regulation H5, which referred to the "refusal of the police authority to admit a claim" covered the situation which had occurred here. The reality was that the respondents had taken a decision not to make a referral; that amounted to a refusal in terms of Regulation H5(1). The remedy sought in the first crave of the initial writ should be granted.

The submissions of the respondents

[18] Counsel for the respondents advanced two main propositions: (1) in the present circumstances, the appellate jurisdiction created by Regulation H5 did not arise; and (2) in any event, the matters raised in the respondents' pleadings were such that, if they were found in fact, the sheriff would be entitled to conclude that the obligation to refer under Regulation H1(2) had not arisen, or that it was not just that the order sought should be made.

[19] In developing his first proposition, counsel made four subsidiary points. First, Regulation H5 was not engaged until there had been a "refusal of the police authority to admit a claim to receive as of right an award ... ". Second, there could be no claim to receive an award as of right and thus there could be no refusal of such until after a decision had been taken to retire the appellant on the ground of permanent disablement. Third, there had been no such decision. Fourth, it therefore followed that the jurisdiction of the sheriff had not yet arisen. Counsel agreed with the suggestion made by the court that, on the basis just submitted, the right of appeal under Regulation H5 was of a very limited nature. However, he emphasised that there was no other basis than Regulation H5 upon which the appellant could invoke the jurisdiction of the sheriff. The only course otherwise that might be available to the appellant would be that of judicial review. On the basis of this submission as to the competency of the present proceedings, this court ought to hold that the appellant's application to the sheriff was incompetent. While accepting that there was no plea-in-law apt to raise this point, counsel suggested that the court itself could take the point.

[20] Counsel went on to draw attention to the terms of the parties' pleadings. In particular, he drew attention to the terms of Condescendence 3, which referred to a letter, dated 6 December 2004, in which the appellant's agents had called upon the respondents to admit his claim for ill-health and injury awards. That letter had not been produced. However, before considering any entitlement there might be to pension, it was necessary to consider how service as a police constable could be ended. As to that, the terms of Regulation A20 were important. The police authority had a discretion as to whether or not to retire a person, notwithstanding that he or she was permanently disabled. In this connection he referred to Regina v Sussex Police Authority, ex parte Stewart. Counsel went on to examine the terms of Regulation H1 and H2(2A) and (2B); also the provisions of Regulation B3. It was submitted that the Regulations demonstrated that there was a precondition of retirement on a particular ground before any entitlement came into being. The matter of an "injury award" was dealt with in Regulation B4. That Regulation applied only to a person who "ceases or has ceased to be a member of a police force". Accordingly there could be no such entitlement on the part of a person who remained a constable.

[21] Thus, looking at the Regulations it became clear that the decision to retire a police officer on the basis of permanent disability was that of the police authority, although the procedure might be initiated by the police authority or by an individual officer. If the latter course were followed, the police authority had to decide if they were going to take the matter forward. If they were, Regulation H1 required a referral to a selected medical practitioner; if the individual was not happy about the outcome, the option provided by Regulation H2 was available. Thereafter, the matter reverted to the police authority, which was then faced with the question of whether to retire the individual on the grounds of permanent disability. If he was so retired, then and only then did an entitlement under Regulation B3 arise. If the individual were not retired that would be because he was not permanently disabled, or if he was, he was to be retained in the police force. The appeal mechanism under Regulation H5 was not created to review the exercise of any discretionary power; that was expressly declared in Regulation H7(1). Thus a decision taken under Regulation A20 could not be appealed under Regulation H5. Nevertheless, it was possible to see that the mechanism of appeal under Regulation H5 could have content in relation to the precise entitlement of an officer who had been retired.

[22] Counsel next proceeded to discuss certain of the authorities that had been cited. Regina v Kent Police Authority, ex parte Goden [1971] 2 Q.B. 662 was of no assistance, since it dealt with different Regulations. In Regina v Merseyside Police Authority, ex parte Yates, the position differed from that in the present case, since the police officer had in fact been retired on medical grounds. Accordingly his claim was of right. In that case there was a factual contingency, but not a discretionary exercise. In Regina v Sussex Police Authority, ex parte Beck and Hamlin, Hamlin was not a serving police officer. Accordingly, the case provided no assistance with the operation of Regulation H5. In Strathclyde Joint Police Board v McKinlay [2005] CSOH 14, the claimant was still a police officer. However, the proceedings were not an appeal under Regulation H5, but a judicial review. In all of these circumstances, if his first proposition was correct, counsel submitted that the sheriff had been correct in not granting an order in terms of the first crave of the initial writ, but he had erred in not dismissing the application, since he had no jurisdiction to entertain it in the circumstances.

[23] Counsel went on to elaborate his second main proposition. In doing so he made four separate points. First, the jurisdiction of the sheriff under Regulation H5 arose where there was a "refusal of the police authority to admit a claim to receive as of right an award". Second, what the sheriff could do in exercise of his jurisdiction was to "make such order in the matter as appears to (him) to be just". Third, there was no obligation on the police authority to refer the matter to a medical practitioner such that the non-referral could be deemed to be a "refusal of the police authority to admit a claim to receive as of right an award". Fourth, the background circumstances here were such that the sheriff would have been entitled to conclude, after proof, that it would not have been just to require the respondents to make a referral under Regulation H1(2). That was based upon the refusal of the pursuer to submit himself to medical examination in relation to other proceedings, that is to say the disciplinary proceedings pending against him, arising out of the allegation that he had assaulted a handcuffed prisoner by kicking him in the face.

[24] Focussing upon the obligation to refer under Regulation H1(2) that arose where the police authority was "considering whether a person is permanently disabled", unless there was some reason for not doing so, the police authority would be exposed to judicial review if it declined to make a referral.

[25] It was pertinent to consider what was the effect of the making of a referral. Plainly expense would be incurred. If there was a determination that the officer was permanently disabled and if he was not retired on that basis, the officer would be able to resign with the appropriate certificate. He could then obtain the benefit provided by Regulation B4(2), that is to say a gratuity and an injury pension. He would lose the benefit of Regulation B3. So a certificate of permanent disability would be a ticket to resignation and the avoidance of disciplinary proceedings. That was an important factor affecting the public interest.

[26] In the course of the discussion of the case there had emerged the question of whether there was any consideration under Regulation H1(2). Even if it were assumed that the respondents had commenced consideration of whether the appellant was permanently disabled, he still had to show that it was just that there should be a referral. It was not just nor was it in the public interest that the appellant should be put in a position whereby he could avoid disciplinary proceedings by resigning. Thus, upon the hypothesis on which the second proposition proceeded, the sheriff was quite correct to order that evidence should be heard relating to the matters dealt with in Regulation H1(2), with a view to his determining what was just in the circumstances. On this basis the present appeal should be refused. Either a proof before answer should be allowed, or the case remitted to the sheriff to conduct a procedural hearing as to future procedure, which would involve a proof.

[27] At this point in the debate before us, senior counsel for the appellant observed that he had had no notice of the competency point raised in his first proposition by counsel for the respondents. He said that he was not prepared to provide an immediate response to that proposition. Accordingly, he sought an adjournment. That the court granted.

Further submissions on behalf of the appellant as to competency

[28] After the adjournment, senior counsel for the appellant made two submissions on the issue of competence. First, he contended that this court should not entertain the submission on competency. Secondly, he submitted that the objection taken to the proceedings under Regulation H5 by the respondents was misconceived and should be rejected. It had been said that the words "as of right" in Regulation H5(1) meant that there was no access to the Sheriff Court until a claim as of right had been refused. Further, it had been said that there was no right to an award until a decision had been taken to retire the officer concerned on grounds of permanent disability. Because there had been no decision to retire the appellant, therefore, it was contended, the sheriff had no jurisdiction. Any decision to which a police officer objected might be reviewable by judicial review, but not under Regulation H5.

[29] Senior counsel submitted that there was no merit in the reliance placed on the words "as of right" in Regulation H5(1). No authority had been cited to support the respondents' submissions. However, Regina v Merseyside Police Authority, ex parte Yates was of some assistance. That case had involved an application for judicial review. It had concerned a supplementary claim made after retirement. Latham J. had declined to grant judicial review because of the submission of the police authority concerning the rights of appeal under Regulation H5(1), as appeared from paragraph 11 of his judgment. He there referred to the "wide powers given to the Crown Court under Regulation H5(1)" which provided "an effective remedy for the applicant in this case". It was evident from paragraph 14 of the judgment that Latham J. considered that issues arising from Regulation H1(2) could be ventilated in an appeal under Regulation H5(1). So, the words relied upon in Regulation H5(1) by counsel for the respondents did not have the significance that he had contended for. Putting the matter in another way, a claim to receive an ill-health award under Regulation B3 or an injury award under Regulation B4 would be a claim to receive an award as of right. Furthermore, if the claim were not admitted the claimant would be an aggrieved person. He would thus be able to avail himself of the Regulation H5(1) appeal.

[30] Looking at the matter differently, if the respondents' view of Regulation H5(1) were correct, it was difficult to see what controversial issues might remain for determination by the sheriff under the Regulation. More generally, it was apparent that the purpose of the unified scheme in the Regulations was to provide a convenient and simple appeal to the court.

[31] In this connection senior counsel submitted that Spriggs v West Midlands Police (16 September 1999) (unreported; A19990190) was of assistance. The case, decided in Birmingham Crown Court concerned a police sergeant who applied for early retirement. However, the issues were taken before the Crown Court in terms of Regulation H5. That state of affairs militated against the respondents' contention on competency. In Scotland the implication of this case was that an appeal might be made to the sheriff in a situation where a police officer had not retired. Finally, senior counsel drew our attention to Johnstone v Fife Council (B260/04) (11 February 2005; unreported). The pursuer was the applicant in a summary application under Regulation H5. The applicant remained a police constable at the time of the application. The reasoning of the sheriff at pages 8 and 9 militated against the view contended for by counsel for the respondent in this case. In that case the sheriff granted a decree in terms of the first crave of the initial writ and ordained the defenders to refer for decision to a duly qualified medical practitioner selected by them the questions (a) to (d), in terms of Regulation H1(2) of the Regulations. That case supported the remedy sought by the appellant in this case. In all these circumstances, the court should reject the respondents submission on competency.

Reply on behalf of the respondents

[32] Counsel for the respondents, in reply, said that it ought to be recognised that there were two means of review of decision-making by a police authority: first, an application under Regulation H5, and second, an application for judicial review. It was understandable that there should be two such procedures. They involved the application of different tests in different circumstances. The Regulation H5 application was something which operated where a benefit was payable as of right in respect of which the sheriff might adjudicate. That view did not deprive a Regulation H5 appeal of all content. For example, under Regulation B3 several factual issues could arise, which might require a factual determination by a sheriff, such as the existence of two years pensionable service. Furthermore, the means of calculation provided for in Schedule B Part 3 of the Regulations would be a fertile ground for dispute. Regulation H7 was of some significance, since it made clear that the appeal under Regulation H5 could not relate to anything done by a police authority in the exercise of a power expressly declared to be discretionary. Judicial review would be available in relation to such decision-making.

[33] Regina v Merseyside Police Authority, ex parte Yates was a case where the police officer involved had been retired because of permanent disability. Thus the discretionary exercise involved under Regulation A20 had already been undertaken. The issue sought to be determined did not involve the consequences of a discretionary decision. It was in that context that the observations of Latham J. in paragraph 14 had to be seen. In Spriggs v West Midlands Police, no competency issue was argued. Accordingly, the decision was not of assistance. As regards Johnstone v Fife Council again, the point of competency under Regulation H5 was not raised. What was raised was whether there was an obligation to refer. That case might be relevant, but only to the second issue involved in the present appeal.

The decision

[34] We deal first with the issue of competency raised by the first submission of counsel for the respondents, to the effect that an appeal under Regulation H5 was not available in circumstances where the member of a police force has not been retired on the ground of permanent disability. We consider that the resolution of this issue must depend upon the language used in Regulation H5. In that connection it is to be noted, first of all, that the Regulation refers to an "appeal by a member of a home police force". Regulation H5(1) speaks of a situation

"Where a member of a home police force ... is aggrieved by the refusal of the police authority to admit a claim to receive as of right an award ... ".

If it had been the intention of the legislators that this right of appeal should be available only to someone who had been retired from a police force, we do not consider that the language used by them would have been appropriate. Since the legislators speak of the appeal as being available to "a member of a home police force", we consider that to be a strong indication that the position contended for by the respondents is unsound.

[35] Furthermore it is to be noted that the Regulation speaks of "the refusal of the police authority to admit a claim to receive as of right an award". What is in contemplation appears to us to be an appeal in relation to a decision by a police authority in relation to a "claim". A claim may or may not be well-founded, but, if it is but a claim, it cannot be said prior to final determination of it whether there exists a right to receive an award or not. Thus, again, we consider that that feature of the language used in the Regulation tends to support the view advanced by the appellant in this appeal.

[36] Regina v Merseyside Police Authority, ex parte Yates appears to us to be of some assistance in the present context. While it has to be recognised that that decision was one made in an application for judicial review and that the applicant was a police sergeant who had been retired on medical grounds, nevertheless the observations of Latham J. in paragraphs 11 to 14 of his judgment appear to us to support a liberal interpretation of Regulation H5 which he described as "intended to provide for a self-contained code as to appeal". He went on to describe the Regulation as furnishing "wide powers". We should say that we do not find anything said in Spriggs v West Midlands Police or Johnstone v Fife Council as of particular assistance in this context, since the competency issue raised in this case was not expressly ventilated in these cases.

[38] It might be thought that if the appellant's contentions in this regard were correct it would follow that a sheriff could review a decision taken by a police authority under Regulation A20 on whether or not to require a police officer to retire on the ground that he was permanently disabled for the performance of his duty. We do not consider that that view is sound, on account of the qualification of the sheriff's powers to be found in Regulation H7. It appears to us that a decision as to retirement under Regulation A20 would patently be the exercise of discretion by the police authority. In all of these circumstances we reject the respondents' submission that the appeal to the sheriff in the present case was incompetent.

[39] We turn now to consider what might be described as the merits of the present appeal. The appellant's position was that in the admitted circumstances of this case the sheriff had been bound to grant the order sought in the first crave of the initial writ, that is to say, an order ordaining the respondents to refer for decision to a duly qualified medical practitioner the questions set out in Regulation H1(2)(a) to (d). It appears to us that the validity of the appellant's contention must depend upon the view that the respondents were and are "considering whether a person is permanently disabled", in particular, whether the appellant is permanently disabled. If that were the position, then the respondents would be under an obligation to refer in terms of Regulation H1(2). However, in the state of affairs revealed in the averments of the appellant and the respondents, it appears to us that there is an issue of fact in relation to that matter. While the appellant has contended to the respondents that he is permanently disabled, the respondents' position is that that issue is not, for good reason, currently being considered by them, standing that there exist pending disciplinary proceedings against the appellant. Only, if and when those proceedings are determined, would it be appropriate, depending on the circumstances, for the respondents then to consider whether he was permanently disabled in the context of Regulation H1(1). Looking at the matter in another way and, in particular, in relation to the provisions of Regulation H5(1), it appears to us that there is an issue of fact in relation to whether the respondents have refused to admit the appellant's claim to receive as of right an award.

[40] Against this background, we have reached the conclusion that the decision taken by the sheriff that evidence should be heard upon the matters which are the subject of averment in the pleadings is sound. In our view there is nothing in the Regulations which would preclude an investigation into the factual issues which we have outlined. Indeed, we consider that the appeal to the sheriff cannot properly be determined without a factual investigation. In particular, we are of the view that there is nothing in the Regulations which makes it necessary to conclude that the respondents are "considering whether a person is permanently disabled" in terms of Regulation H1(2) simply because, as in this case, the appellant has contended that that is the case. Furthermore, there is nothing in the Regulations that leads to the conclusion that, in the particular circumstances of this case, as revealed in the averments of the respondents, they have refused to admit the appellant's claim in terms of Regulation H5(1). In all these circumstances, we shall refuse the appeal.

[41] It is right to record that we were not impressed by the respondents' argument based upon the words the " ... court, after enquiring into the case, may make such order in the matter as appears to it to be just", appearing in Regulation H5(1). It appears to us that the sheriff, in an appeal under Regulation H5, must proceed upon a proper interpretation of the Regulations, if he is to make an order that is just in such an appeal. If the proper interpretation of the Regulations was as contended for by the appellant, it would be appropriate for the sheriff to give effect to that interpretation, regardless of whether the consequences of doing so had the effect of undermining any policy adopted by the respondents in relation to the timing of the determination of disciplinary proceedings. Thus, in our view, the words relied on do not assist the respondents; essentially the issues raised here concern the proper interpretation of the Regulations.

[42] It remains only to record that we consider that the sheriff's interlocutor of 8 March 2006 erroneously repelled "in hoc statu" plea-in-law 1 for the pursuer. Plea-in-law 1 is in the following terms:

"The defenders having refused to refer the questions in Regulation H1(2)(a) to (d) of the Regulations for decision to a duly qualified medical practitioner they should be ordained to do so as first craved."

In view of the fact that, as the sheriff held and as we have held, an inquiry into the facts, including whether there has been a refusal in terms of Regulation H5(1), is necessary, we consider that that plea should have been left standing. Accordingly, we shall allow the appeal to the extent of correcting the sheriff's interlocutor by deleting from it the reference to the repelling in hoc statu of plea-in-law 1 for the pursuer. We consider that it would then be appropriate for the case to be remitted to the sheriff to proceed in the manner contemplated by him, that is to say, the hearing of evidence in a proof.