Scottish Sheriff Court Decisions

B 110/08

Adam Scott Carruthers v Dumfries & Galloway Council

Act: Francis, instructed by Alexander George & Co, Solicitors, Banff

Alt: S P L Wolffe Q.C., instructed by Brendan Kearney, Solicitor, Dumfries

 

DUMFRIES: August 2009

The Sheriff, upon resuming consideration of the cause, Sustains the first and second pleas in law for the defenders, Repels the first plea in law for the pursuer as not insisted upon; Quoad ultra Repels the remaining pleas in law for the pursuer; Dismisses the action; Certifies the cause as suitable for the employment of Senior Counsel; Meantime, Reserves all questions of expenses and Appoints parties to be heard thereon at 10 a.m. on 3 September 2009 within the Sheriff Courthouse, Dumfries

 

 

 

 

Introduction

[1]          This is an appeal by the pursuer and appellant, Adam Carruthers ("the pursuer"). He was formerly a police officer (latterly an Inspector) with Dumfries and Galloway Constabulary. The defender and respondent is Dumfries & Galloway Council ("the defenders") which is, in respect of Dumfries & Galloway Constabulary, the Police Authority for the purposes of the Police (Scotland) Act 1967 ("the Police Authority"). The functions of the Police Authority are exercised by the Police, Fire and Public Protection Committee of the defenders ("the Committee"). The appeal is against the Committee's decision to reduce the pursuer's entitlement to a police pension by 65%. It is made by summary application in terms of the Police Pensions Regulations 1987 ("the 1987 Regulations"). It called before me for debate on both parties' preliminary pleas. Only those of the defenders were insisted upon. The pursuer was content that his preliminary pleas be reserved and that a proof before answer be fixed I heard argument over three days. Both parties were represented by counsel.

The Factual Background

[2]          On 16 May 2001, at the High Court of Justiciary, the pursuer was convicted of two offences of indecent assault, two offences of indecent assault and rape and one offence of the use of threats. All were committed while he was on police duty. He was sentenced to twelve years' imprisonment. That was later reduced on appeal to eleven years.

[3]          Because of his police service the pursuer is entitled to a pension which the defenders are responsible for paying. He is presently 47 years of age and any pension will be payable at age 60. In the event of his death a reduced pension is payable to his widow and, in certain circumstances, to his children. For the purposes of this application, the figures involved do not really matter but, when he reaches the age of 60 the pursuer would be entitled to an annual pension based on figures of £17,404.42 or a reduced pension of £13,053.32 with a lump sum of £56,564.24. All these figures would be increased in line with the Retail Prices Index since 31 December 1999.

[4]          Police Pensions are, for the main, regulated by the 1987 Regulations. Regulation K 5 provides for the forfeiture of pension in certain circumstances. It is in the following terms:

(4) Subject to paragraph (5), a police authority responsible for payment to a member of a police force of a pension to which this Regulation applies may determine that the pension be forfeited, in whole or in part and permanently or temporarily as they may specify, if the grantee has been convicted of an offence committed in connection with his service as a member of a police force which is certified by the Secretary of State either to have been gravely injurious to the interests of the State or to be liable to lead to serious loss of confidence in the public service."

Certification is now by the Scottish Ministers. Regulation K 5(5) has no relevance to the issue raised in this application.

[5]          On 28 June 2002 the Committee met. It had before it a Report on the pursuer's case from the Deputy Chief Constable and a further Report from the Head of Legal Services for the defenders. In the latter Report paragraph 1.1 states the reasons for the Report in the following terms:

"1.1 Members are asked to seek certification from the Scottish Ministers that the offences committed by Adam Carruthers, a former Police Officer, committed in connection with his service as a member of the Police Force, have been gravely injurious to the interests of the state or to be liable to lead to serious loss of confidence in the public service."

[6]          The Report narrates the background to the offending and the powers of the Committee regarding forfeiture of the pension. It explains limitations to that power and the need to obtain certification from the Scottish Ministers before the Committee could consider forfeiture. At paragraph 4.1 it recommends:

"Members are asked to agree that the offences committed by Adam Carruthers have been gravely injurious to the interests of the state or to be liable to lead to serious loss of confidence in the public service, and accordingly to seek certification from the Scottish Ministers in that regard."

[7]          The Minute of the meeting was not produced but its decision is narrated in the following terms at paragraph 2.3 in a Report by Alex Haswell, the defenders' Group Manager, Corporate Support and Governance, dated 7 March 2008 ("Mr. Haswell's Report"):

"2.3 The Police Authority at its meeting on 28 June 2002 considered Adam Carruthers' convictions and concluded that the offence committed had met the criteria set out in Regulation K 5(4) i.e. that they were liable to lead to a serious loss of confidence in the public service."

[8]          Following the meeting on 22 June 2002 the defenders wrote to the Scottish Ministers seeking certification from them that the pursuer's case met the appropriate provisions of Regulation K 5(4). On 10 January 2005 the Scottish Public Pensions Agency wrote to the defenders intimating the decision of the Scottish Ministers and enclosing a Certificate in the following terms:

"Having considered all the evidence submitted for my consideration, I hereby certify that under Regulation K5(4) of the Police Pensions Regulations 1987 that the offences to which former Inspector Carruthers was convicted of and sentenced to imprisonment for are liable to lead to serious loss of confidence in the public service."

The certificate was dated 7 December 2005 and signed by Tavish Scott, a member of the Scottish Executive. The letter narrated that, in reaching his decision, the Minister had taken account of all the circumstances leading up to the offences and convictions, the trial judge's sentencing remarks, the sentence imposed by the court and that the case was widely reported. The letter expanded on each of these matters. It went on to draw the attention of the Police Authority to an amendment made to the 1987 Regulations in 2004 in relation to dependents' pension benefit and to a decision of the English Courts (Banfield v Cambridgeshire Police Authority, an unreported decision of Judge Norman Jones at Leeds in 2002) that any forfeiture should not exceed 65% - the non-forfeited portion representing a police officer's own pension contributions. It was suggested that this decision, which had been followed up by a circular from the Home Office to Police Authorities in England, though not binding, was legally persuasive. The letter concluded:

"I shall be grateful if you would inform me in due course of Dumfries and Galloway's police authority's decision as to whether Mr. Carruthers' pension was forfeited and, if so, the determination as to the extent of the forfeiture."

[9]          The matter was next considered by the Committee on 18 March 2008. Mr. Haswell's Report was before it. Prior to that, on 12 March 2008, the Clerk to the Police Authority had written to solicitors acting for the pursuer inviting any final written submissions which they might wish to make on his behalf. They enclosed a copy of Mr. Haswell's Report. That Report is six pages in length. It refers to three Appendices, the first of which is the letter from the Scottish Public Pensions Agency and the Certificate signed by Tavish Scott. The first page of the Report contains a summary in a text box which includes the narration of the decision of the meeting on 28 June 2002. Under paragraph 4 (again in a separate text box) it states:

"Members are asked to consider whether a case has been made for forfeiture of Adam Carruthers' pension and if so what level of forfeiture should apply."

[10]      Although the terms of this Report are incorporated in the Record there is no need to narrate all that the Report contains. However, certain passages were founded upon and are worth noting. At paragraph 5 three stages to forfeiture are set out. The first is the identification by the Police Authority of a case where a pensioner has committed an offence in connection with his/her service as a member of the police force. It is pointed out that forfeiture will not always be appropriate because such an offence has been committed. In appropriate cases application to Scottish Ministers should be made but that is stated to be "without prejudice to the final decision by the police authority on whether to forfeit a pension". The second stage is stated to be the consideration of the matter by Scottish Ministers and the factors they will take into account in deciding whether to issue a certificate. The third stage is described as follows:

"5.2.6 The third stage follows the issue of a certificate. This is the decision by the police authority whether or not the pension should be forfeited and the determination of the extent of the forfeiture, in terms of the proportion to be forfeited and the period over which the forfeiture is to take place."

[11]      There then follows a description of the valuation of the pursuer's pension, and the general background about the offences and the procedure which had been followed to that point. The options available to the Committee are set out at paragraph 9 as follows:

"9. Options Available

Members can consider as follows:

In all of the circumstances not to require a forfeiture of Adam Carruthers' Police Pension.

In the circumstances of his case to require a forfeiture of Adam Carruthers' pension and thereafter to determine what proportion of the pension to be forfeited and the period over which forfeiture is to take place

If members determine that a case has been made for forfeiture of Adam Carruthers' pension then this can be set at 5%; 10%; 20%; 25% and 35% recognising the case law that has set the maximum forfeiture as being 65%. Additionally Members may be minded to protect and assure dependent's [sic] benefits."

Reference is also made to submissions made to the Committee on behalf of the pursuer.

[12]      The decision of the Committee at their meeting on 18 March 2008 was to forfeit the pursuer's pension to the extent of 65% but that any pension for his widow or dependent children would be unaffected. That decision is expressed in paragraph 18 of the Minute of the meeting as follows:

 

 

"NOTED

18.1 all of the circumstances surrounding the application by the Dumfries and Galloway Police Authority for the Certificate in terms of Regulation K5(4) of the Police Pensions Regulations 1987 in relation to the former Police Officer concerned:

18.2 the fact that the Certificate had been granted and the reasons why it had been granted;

18.3 the representations made on behalf of the former Police officer;

18.4 the relevant provisions of the Police Pensions regulations 1987;

18.5 the powers of the Police Authority in relation to the forfeiture of the former Police Officer's pension

18.6 the position of dependents should any forfeiture take place ; and

AGREED

18.7 having regard to the gravity of the offences committed by the former Police Officer and the fact that Scottish Ministers had issued a Certificate that the offences were liable to lead to a serious loss of confidence in the public service, that the former Police Officer's pension should be forfeited; and

18.8 having considered, firstly, the level of forfeiture and the fact that provision could be made in relation to dependent benefit entitlement and, secondly, the gravity of the offences committed by the former Police Officer the sentence imposed by the High Court of Justiciary and the publicity and media coverage at the time of the court case that the former Police Officer's pension should be reduced in accordance with Regulation K5(4) of the Police Pensions Regulations 1987 by 65% on a permanent basis."

That decision was communicated to the pursuer in a letter dated 20 March 2008.

The Background to the Appeal

[13]      Regulation H5 of the 1987 Regulations provides a right of appeal against any decision by a Police Authority to forfeit a police pension. It is in the following terms:

"(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 or, by a decision of the police authority as to whether a refusal to accept medical treatment is reasonable for the purposes of regulation A12(1A), or by the forfeiture under Regulation K5 by the police authority of any award granted to or in respect of such a member, 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."

(3) The provisions of section 5(1) and (5) of the Police Pensions Act 1948 (appeals), as they have effect under section 12(2) of the Police Pensions Act 1976, shall not apply in relation to an award under these Regulations."

It is in terms of this Regulation that the present appeal is made.

[14]      The pursuer's position on Record, reflected to some extent in his craves and pleas in law, was that the decision of the Committee should be quashed and that the defenders should be ordained to reinstate the pursuer's entitlement to his pension as if there had been no forfeiture; or to such lesser extent as seemed proper. That was supported by the pursuer's preliminary plea that the defenders' averments were irrelevant and that decree de plano should be granted. However, at the commencement of the debate the second crave was amended to remove reference to the reinstatement of the pension to any lesser extent than as if there had been no forfeiture. And, at the end of the day, no argument was presented by counsel for the pursuer in support of the preliminary plea. I was invited by counsel for the defenders to repel it. Counsel for the pursuer indicated that this would not be of consent but seemed to accept that it was the only possible consequence of the plea not being insisted upon or argued. In these circumstances the first plea in law for the pursuer falls to be repelled. All that was sought by the pursuer was a proof of his averments in order that the decision could be quashed and the matter remitted back to the Committee for decision.

[15]      The position of the defenders was unequivocal. The averments of the pursuer were irrelevant. Even if he proved all he averred he was not entitled to have the decision of the Committee quashed and remitted back.

[16]      The challenge by the pursuer to the decision was based on several grounds. First, it was averred that the pension was his property in terms of Article 1 of Protocol 1 ("P 1.1") to the European Convention for the Protection of Human Rights ("the Convention"). The decision of the Committee had deprived him of that property in circumstances which contravened his rights in terms of P 1.1. Second, again in the context of P 1.1, it was averred that the decision to forfeit was disproportionate to any end which that might serve. Third, again in the context of P 1.1, the decision had not balanced the rights of the pursuer with any end which the decision to forfeit might legitimately serve in the public interest. It was disproportionate and would expose the pursuer and his family to hardship and distress. Fourth, in reaching their decision, the Committee had had regard to irrelevant matter (the publicity and media coverage surrounding the trial). Fifth, the Committee had failed to give adequate reasons for having determined the extent of the forfeiture. Sixth, the decision of the Committee was vitiated for want of objective impartiality. Article 6(1) of the Convention had been breached. There had not been a fair and impartial hearing. Seventh, Regulation K 5(4) of the 1987 Regulations discriminated against the pursuer contrary to Article 14 of the Convention.

[17]      At the conclusion of the debate, counsel for the pursuer indicated that he no longer insisted on the fourth or the seventh grounds to which I have referred. In these circumstances it is not necessary for me to deal with such argument as I heard on the relevance of the averments in Articles Seven and Eleven of the pursuer's pleadings; and any challenge based on them is irrelevant and must fail. I will now deal, in turn, with the relevance of each of the other grounds of challenge to the decision of the Committee. Before doing so I will discuss two general matters on which I was addressed and which counsel for both parties submitted informed the approach to be taken in considering the remaining grounds on which the pursuer's challenge was based.

The Nature of the Committee's Discretion and the Scope of the Appeal

Submissions by the Parties

[18]      Counsel for the defenders submitted that the Certificate issued by the Scottish Ministers in terms of Regulation K 5(4) was a prerequisite of any decision by the Committee to forfeit the pursuer's pension. She described it as a "gateway". That allowed the Committee to exercise the discretion provided for in Regulation K 5(4). A question arose as to the nature of that discretion. There were two possible approaches. It might be a double discretion; firstly whether to forfeit or not and secondly whether to forfeit in whole or in part or permanently or temporarily. Or it was a single discretion - which of the choices as to in whole or in part or permanently or temporarily should be exercised. The latter presupposed that, following the issue of the certificate, forfeiture was to take place. The Scottish Ministers had determined that public confidence had been lost and the only discretion open to the Committee was how much of the pension should be forfeited and for how long. In some ways it was surprising that counsel presented her submission in the alternative. That rather cut across the case pled for the defenders. In Answer 10 it is averred;

"The effect of due certification is to enable, but not to require, the relative police authority to consider forfeiture in respect of the individual concerned."

and

"As is apparent from the Report, the correct question was posed. Reference is made to Part 4 of the Report. As is apparent from the Report, there was no fetter on the discretion of the exercise of the wide discretion vested in the Defenders. Indeed, the first option outlined for the relevant Committee, in paragraph 9.1 of the Report, was one of no forfeiture."

I have already set out the terms of Part 4 and paragraph 9.1 of Mr. Haswell's Report. It is difficult to reconcile these averments with counsel's submission that no discretion whether to forfeit existed.

[19]      The issue of the certificate had not been challenged. So, it was submitted, the area of discretion open to the committee was more limited; as was the scope of any appeal. It related only to the lawfulness of any decision. The court did not have the power to substitute its own view. It was accepted, however, that an appeal existed and so the position fell to be contrasted with decisions in terms of Part H of the 1987 Regulations relating to medical grounds where such decisions were final and no appeal from the decision of the Police Authority were possible.

[20]      Whether the discretion was single or double, the scope of the appeal was to open up for consideration the lawfulness of the decision. It did not allow the court to enter into the merits of the decision to the extent of itself exercising the discretion given to the Police Authority by Regulation K 5(4). It did not allow the court to examine and make a decision based on the personal circumstances of the pursuer and his family (as the pursuer attempted to do in the averments in Article 6 of the Condescendence). Counsel referred to the provisions of Part H of the 1987 Regulations which deal with medical questions where decisions were final and there was no appeal; and also to Regulation H 7(1) which did not allow any appeal against anything done by a Police Authority in the exercise of a power conferred by the Regulations "which is expressly declared thereby to be a power which they are to exercise in their discretion". She pointed to the power in terms of Regulation K 5(9) as an example of that. That provides that the Police Authority may apply to the benefit of the dependent of any pensioner any amount of the pension which has been forfeited. It was the provision used by the Police Authority to decide that any pension for his widow or dependent children would be unaffected. All this was suggestive of a closing down of the appeal and its scope. It was accepted that any discretion in terms of Regulation K 5(4) was not express and so did not fall within the provisions of Regulation H 7(1). Counsel referred to Lavery v Strathclyde Joint Police Board 2007 SC 509. She submitted that this decision did not point to an appeal on the merits of any discretionary decision under the 1987 Regulations but whether the mechanical requirements of the Regulations had been satisfied by the Police Authority.

[21]      Counsel for the pursuer submitted that it was common ground between the parties that the precise nature of the appeal was not clear from the Regulations and was not established by any authority. The discretion in Regulation K 5(4) could not be described as a mandatory discretion to forfeit leaving only the extent of the forfeiture to the Police Authority. The first reference to "may" in the Regulation was clearly discretionary and not mandatory. It was not in the context where it affected the right of a particular class. He referred to Witchelo v The Secretary of State for the Home Department [1997] EWCA 1213 which he submitted was supportive of a two stage discretion. Counsel submitted that if the appeal concerned only the lawfulness of the decision then at least the facts relating to lawfulness could be the subject of factual enquiry at any appeal (as appeared to have happened in Witchelo). But, he submitted, enquiry at appeal might be wider than that and this was illustrated by Stefan v General Medical Defenders [1999] 1 WLR 1293.

 

Discussion and Decision

[22]      In my opinion the language of Regulation K (4) is clear; and gives the Police Authority a discretion either to forfeit or not to forfeit the pursuer's pension. The alternative interpretation, advanced by counsel for the defenders, is that the Police Authority must forfeit some portion of the pension for some period of time. That interpretation would sit more comfortably with the use of the word "shall" instead of "may". Neither of the cases to which I was referred (Lavery and Witchelo) is authority for the restricted interpretation. There is no reason to construe the Regulation in that way. In my opinion such an interpretation is mistaken. Certainly, the exercise of discretion is qualified. It only arises if an offence is committed in connection with service and if that offence is certified by the Scottish Ministers in the way the Regulation provides. That points to a restriction on whether the discretion may be exercised rather than on the manner in which it may be exercised.

[23]      Nor do I think that discussion of whether the discretion is a staged one is very helpful. There are certainly various aspects to the discretion which the Police Authority may exercise. It may forfeit the pension in whole or in part or permanently or temporarily. Regulation K 5(5) extends that to permit the Police Authority to distinguish between the secured and unsecured portions of the pension - those based on the pursuer's own contributions and those based on the contributions of the Police Authority. But there is also a restriction on the permanent forfeiture of the secured portion. Then, there are the related provisions of Regulation K 5(9) which permit the Police Authority to apply any forfeited amount of the pension to the pursuer's dependents. So, clearly, in making any decision about forfeiture the Police Authority will balance these different elements in differing combinations in different cases to arrive at the level and length of forfeiture which they feel is appropriate and justified by the individual circumstances of each case. It is a multi-faceted discretion which they should approach in its totality. It may be convenient to do so in stages, or look at each of the elements separately. But it is the decision which they take, with any of its elements, which requires, in the event of challenge, to be justified.

[24]      In the present case, the approach suggested by counsel for the defenders of a limited discretion was, very wisely, not adopted by Mr. Haswell when he advised the Police Authority. He did not fall into the error which guided the submissions of counsel for the defenders. He set out clearly, and correctly in my view, that they had to decide whether to forfeit the pension at all, and if so what proportion of the pension and for how long. In my opinion, if he had adopted what was suggested by counsel for the defender in the course of the debate and had advised the Police Authority that, following the issue of the Certificate by the Scottish Ministers, they were bound to forfeit the pension to some extent or for some period there would have been a danger that the Police Authority would have been led into error and produced, perhaps, a decision which might more easily have been the subject of successful challenge.

[25]      As to the scope of the appeal, the language of Regulation H 5(2) is wide - "[the sheriff], after enquiring into the case, may make such order in the matter as appears to be just". The reference to enquiry might, at first glance, suggest that this was a hearing de novo. That would be an unusual form of appeal from an administrative body which has been accorded a statutory discretion. It was clear, from the submission which he made, that counsel for the pursuer did not go as far as that. And, indeed, the pursuer, in his averments and in the submission made on his behalf, accepted that, if the appeal succeeded, the proper course would be to remit back to the Police Authority for reconsideration. That might be with or without direction. I do not think that Stefan is of much assistance on the issue of the scope of the appeal. It was an appeal to the Judicial Committee of the Privy Defenders against a decision of the Health Committee of the General Medical Council to suspend a doctor's registration. It was concerned, principally, with the obligation to give reasons. It was held that such an obligation existed and that the reasons given by the committee of the General Health Council were inadequate. For present purposes its principal significance may be that the matter was remitted back for re-consideration.

[26]      I agree with counsel for the pursuer that factual enquiry may have a place in appeals under Regulation H 5. Lavery is an example of that; as is Witchelo. And that may or may not have been the case in Banfield. Unfortunately, although Banfield is referred to in the letter from the Scottish Public Pensions Agency, neither party had been able to find a copy of the decision. My own researches with the Combined Courts Centre at Leeds indicated that a copy of any decision had probably not been retained. But the common element in all these cases is that factual enquiry related to whether a prerequisite for the exercise of the Police Authority's discretion had been established. In Lavery, that was whether there had been a refusal by the Police Authority to refer certain medical questions to a qualified medical practitioner in terms of Regulation H 1(2). In Witchelo it was whether the offence referred to in Regulation K 5(4) had been committed in connection with the appellant's service. The issue in Banfield is less clear but seems to have been what was, in percentage terms, the actuarial value of the secured portion of the appellant's pension. That would inevitably affect the level of any forfeiture which the Police Authority might decide to apply. None of these factual enquiries concerned the merits of the Police Authority's decision. There is nothing in Regulation H 5(2) which suggests that this is what it is intended the court should do.

[27]      Counsel for the pursuer suggested, in the most tentative of terms, that if fact finding at appeal was appropriate regarding the unlawfulness of any decision (in the sense of its competence or otherwise in the absence of some prerequisite) then there was the possibility of a general evidential appeal on the merits. It was in that context that the averments about hardship to the pursuer and his family were made. I have no doubt that these averments are irrelevant. They come in the context of averments that the Committee's decision letter reflected no balancing of the pursuer's fundamental rights and failed to give reasons. It is not averred that the Committee failed to have regard to them or take them into account. It is not averred that the Committee gave them insufficient weight. The details of any representations made on behalf of the pursuer and his family are not averred. So, whether these included what is averred about hardship is not known. What the pursuer seeks to do is to lead evidence about matters which he had placed before the Committee and, in their decision, they say they took into account; or, perhaps, matters which were not drawn to the attention of the Committee when he was invited to make representations to them. There is nothing in the language or context of Regulation H 5(2) which suggests that this is the purpose of any appeal, or is competent. None of the cases cited is authority for the proposition that it is competent.

[28]      It seems to me that while evidence may be led in the context of an appeal under Regulation H 5(2) in relation to facts which must necessarily exist before a Police Authority may exercise its discretion in terms of Regulation K 5(4), the leading of such evidence about factual material which the Police Authority may or may not take into account in the exercise of that discretion is not contemplated by the nature of an appeal in terms of Regulation H 5(2).

The P 1.1 Challenge

[29]      The pursuer avers in Statement 4 that his pension was member contributory and accordingly property in terms of P 1.1. The term used in P 1.1 is "possessions" but, for present purposes, the difference in terminology is unimportant. It is averred that forfeiture served no legitimate aim in the public interest. The decision of the defenders identified no circumstance to serve any such aim nor did it determine whether forfeiture was commensurate with any such interest. The decision was disproportionate to any end which its imposition might serve. It was inept as a means of affecting any serious loss of public confidence arising from the pursuer's conduct. The decision did not reflect any balancing of the rights of the pursuer and any end which forfeiture might legitimately serve in the public interest. It was disproportionate. These averments sought to attack both the decision reached by the Committee and the reasons which they gave for that decision. The latter aspect appeared to be a discreet reasons challenge based on an infringement of Convention rights in addition to the more conventional common law challenge on the basis which was advanced in later Statements of the Condescendence. The Committee's decision thus fell to be vitiated and quashed.

[30]      P 1.1 is in the following terms:

"Every natural or legal person is entitled to the peaceful possession of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."

 

Submissions by the Parties

[31]      Counsel for the defenders submitted that these averments were irrelevant. Firstly the non-contributory portion of the pension was not a possession of the pursuer such as to engage P 1.1. Whether something was a possession in terms of P 1.1 was always a matter of the particular and not the abstract. The correct approach was to consider if there was a legitimate expectation to continue to enjoy whatever there was a right to. Most of the cases dealt with licences and demonstrated that just because someone possessed a licence did not necessarily engage P 1.1. In the present case the issue related to the non-contributory element of the pension. The contributory element could be classified as deferred remuneration and so earned by the fruits of one's own labour; properly a possession. The non-contributory element arose through the Regulations and not through contract. To the extent that the pursuer had any expectation of a pension because of the Regulations that expectation was not unqualified. There was no absolute right to it. Any expectation was subject to certain contingencies. Obviously surviving to draw the pension was one. Another was that the pursuer did not do anything by way of his conduct which exposed that element to forfeiture in terms of the Regulations. These must be viewed as a totality. To realise the expectation of a pension one had to behave properly with no conduct which gave rise to forfeiture. In support of these propositions counsel referred to Pudas v Sweden (1988) 10 EHRR 56, Icskon and Others v United Kingdom (1994) 18 EHRR CD 133 and Gudmunsson v Iceland (1996) 21 EHRR CD 89. The application of these principles by the United Kingdom courts was demonstrated by reference to R (Royden) v Metropolitan Borough of Wirral [2003] BLGR 290 and R (Malik) v Waltham Forest Primary Care Trust [2007] 1 WLR 2092. The possible future enjoyment of the non-contributory element of the pension was subject to contingencies including the risk of forfeiture. Accordingly it was not a possession in any relevant sense for the purposes of P.1.1. The Article was not engaged and no issue of proportionality could arise.

[32]      Secondly, esto P 1.1 was engaged, the forfeiture by the Committee did not infringe any right which it accorded. No issue of proportionality could arise. The margin of appreciation accorded to a State was not the same as the exercise of discretion by a decision taker (Jacobsson v Sweden (1989 12 EHRR 56, Tre Traktorer v Sweden (1991) 13 EHRR 309 and Fredin v Sweden (No. 1) (1991) 13 EHRR 784). The approach taken by the domestic courts was the same. If a legislative scheme was not challenged as not being in accord with the Convention, or the provisions of the Human Rights Act 1998, then no issue of proportionality would usually arise (R (Fisher) v English Nature [2005] 1 WLR 147 and Security Industry Authority v Stewart [2009] 1 WLR 466).

[33]      Thirdly, if P 1.1 was engaged, the relevant question was whether any right under it had been infringed and not whether the reasoning process of the decision maker (where that was an administrative body such as the defenders) was adequate (R (SB) v Governors of Denbigh High School [2007] 1 AC 100 and Belfast City Council v Miss Behavin' Ltd [2007] 1WLR 1420.

[34]      Applying these principles to the pursuer's averments, counsel submitted that each of the cases set out in Statements 4 to 6 of the Condescendence in relation to the engagement of P 1.1, the inadequacy of the reasons given by the Committee in relation to any infringement of any Convention rights and proportionality were all irrelevant. That must be the case if P1.1 was not engaged. If the pension was not a possession then the decision of the Committee could not deprive the pursuer of it. If it were a possession then a challenge based on the reasons given for the decision was not a relevant one if there were no averments which could establish that the right to peaceful possession accorded by P 1.1 had been infringed. The averments which related to that were irrelevant.

[35]      All that then remained were the averments which sought to establish that the Committee's decision was not proportionate. To plead a relevant case on proportionality in the context of a statutory scheme where a decision was exercised by the decision taker applying that scheme would require very unusual facts. These were absent in the present case. In Statement 4 it was said that the forfeiture was retrospective. It was not; rather it was prospective. The entitlement to the pension had not yet vested in the pursuer and would not do so until he was 60. The decision simply exercised a discretionary power allowed to the Police Authority under the Regulations. It was within their ambit and so proportionate. That was particularly so because there was no forfeiture of the secured portion and any entitlement of the pursuer's wife and children was left intact. If, for example, there had been forfeiture to the extent of 100% with no application of benefits to dependents that could have been described as unusual and might have provided an argument that the decision was not proportionate.

[36]      In Statement 5 the same arguments applied. There was no "possession" and so no possible infringement of any P 1.1 right. The averments which sought to challenge the reasons were irrelevant. Statement 6 (leaving aside the averments based on hardship which were irrelevant for the reasons already discussed) was based almost solely on the reasons given by the Committee.

[37]      Counsel for the defenders commenced his submission by observing that the appeal was made in terms of Regulation H 5. The issue of whether the offences committed by the pursuer were liable to lead to a serious loss of confidence in the public service was beyond the scope of the appeal. The Committee was required to accept the conduct as described in the ministerial certificate and the likely effect of that conduct (loss of public confidence). The conclusion in the certificate might, because it was footed in matters of fact, be so much a matter of policy that it was even beyond review by the Court of Session. But, if forfeiture of the pension were to be viewed as a financial penalty when the pursuer had been convicted and served a prison sentence, it might be arguable, elsewhere that in this court, that such an arrangement could never serve any legitimate public aim. It was accepted however that there had been no challenge to the ministerial certificate and none was possible in the present appeal.

[38]      Assuming the validity of the Regulations, the validity of the ministerial certificate and compliance with procedure within Convention norms, the question was whether the Committee had found anything which enabled them to decide to forfeit the pursuer's pension. The defenders had submitted that the public end to be served by forfeiture was within the margin of appreciation and so there was no need to find proportionality in the individual decision. But, if it were the case that no primary purpose or public interest could be inferred from the Regulation (no criteria for the exercise of the decision were stipulated), then it was not clear what the Committee required to have in view when making its decision. It was "a possible view" that the scheme of the Regulations was to devolve the finding of that which was consistent with the serving of the end in the public interest to the lowest possible level of decision making.

[39]      The need for the ministerial certificate and what it certified (in Regulation K 5(4)) was a condition precedent of the Committee considering and making a decision at all. When the Committee came to make its decision the ministerial certificate and what it certified did not weigh in what the Committee was enjoined to do. There must be something else. It followed that the Committee required to have regard to some material consideration in deciding whether to forfeit. The reasons given by the Committee would not do. It had not behaved rationally in approaching the task. It had taken account of two things - the certificate and the seriousness of the offending. Both were "givens" where there was a certificate. (Counsel seemed to say that this line of argument was, perhaps, more apposite to a common law challenge based on reasons.)

[40]      If the decision to forfeit represented a punishment only, then why was more than the punishment of imprisonment required. If it was to assuage public scandal (as in Witchelo) that pensions should be paid to delinquent criminal police officers it was not explained by the Committee how their decision would do that. If it was to make good public confidence it was not explained how the decision would do that. The restoring of public confidence was not expressed as a purpose in Regulation K 5(4). If it was implicit, then the decision needed to be based on some factual material and reasoning bearing upon it. This argument, counsel submitted, went to more than the manner in which the decision was taken, which he accepted could not form a proper ground of challenge, but the substance of the decision.

[41]      Counsel submitted that the interpretation that Regulation K 5(4) meant that the determination of what was in the public interest should be decided at the lowest level of discretion was supported by section 3(1) of the 1998 Act. Legislation had to be read and given effect to in a way which was compatible with Convention rights. Without the factual material and reasoning referred to, the decision was not a properly reasoned decision which addressed what required to be addressed to be a lawful decision. What was not sufficient was a decision letter which referred only to the ministerial certificate and what it certified and based forfeiture on that. To do so would not be materially different from the first stage of the test in the Regulation applied by the Scottish Ministers when they issued the certificate.

[42]      As to the engagement of P 1.1, counsel referred to Stec v United Kingdom (2005) 41 EHRR SE18. That held that legislation providing for the payment as of right of a welfare benefit, whether conditional or not on the prior payment of contributions, must be regarded as generating a proprietary interest falling within the ambit of P 1.1 for persons satisfying the requirements of such legislation. Even if the defenders were able to distinguish the circumstances of the pursuer's entitlement to his pension as resting on his position as an office holder that was sufficiently analogous to what was referred to in Stec to accord the status of a possession to a non-contributory pension in an employer/employee relationship. To seek to distinguish between these was arbitrary and without any sensible policy objective (Stec paragraph 36). So, the pursuer was entitled to a proof of whether or not his pension entitlement was a possession in terms of P 1.1.

[43]      The principles in the European jurisprudence as to when the interest which a pursuer sought to protect was a "possession" within the meaning of P 1.1 were set out in Kopecky v Slovakia (2005) 41 EHRR 43 at paragraph 35. While it was stated there that P 1.1 did not guarantee the right to acquire property, and the defender's argument was that the defender's right to his pension only emerged when it was in payment and so was not property when the forfeiture decision was made, counsel submitted that the expectation of an office holder to receive his pension was sufficiently analogous to a right under a contract of employment as to constitute a possession in terms of P 1.1. Any attempt to draw the distinction which the defenders sought would be difficult to justify in the real world. The conditionality of the pursuer's pension was resolutive; until it was taken away he had the expectation of it. That expectation existed at the point when the Committee made its decision. When they entered into their discretion the pursuer had a qualified expectation of his pension. On this basis counsel argued that the pursuer had relevantly averred that his expectation of a pension was a possession in terms of P 1.1 and that "this may be a case which should see the light of day". He added that he took no issue with the nature of a legitimate expectation as discussed in the cases referred to by counsel for the defenders and referred to Gratzinger and Gratzingera v Czech Republic (Admissibility) (2002) EHRR (CD 202), Gudmunsson and Witchelo.

[44]      Azinas v Cyprus 56679/00 EHCR (20 June 2002) was said by counsel to be "pretty close to home" in relation to whether the pursuer's expectation of a pension was a possession in terms of P 1.1, albeit he accepted that that it related to a pension which was part of a non-contributory scheme and was footed on contractual principles. He advanced it by way of analogy. He referred particularly to the remarks of the Court at paragraph 44 where it was said:

"Whilst the imposition of the sanction [of forfeiture] may be said to be aimed at protecting the public and safeguarding its trust in the integrity of the administration, in the Court's view, the retrospective forfeiture of the individual's pension cannot be said to serve any commensurate purpose."

The same could be said in the present case.

[45]      Counsel submitted that enough had been averred to allow inquiry into whether the pursuer's expectation of a pension was a possession in terms of P 1.1, and whether its forfeiture by the Committee was a breach of any rights enjoyed by the pursuer in terms of P 1.1. The matter of forfeiture was left entirely to the discretion of the Committee once the ministerial certificate had been granted. No criteria were stipulated in Regulation K 5(4). It was for the Committee to take into account the considerations which counsel had earlier discussed and apply them to the sorts of reasons earlier discussed. But there was no indication in their reasons as to what end their decision achieved. Even if some end or purpose could be assumed there were no facts found which went beyond the seriousness of the offences and the issue of the ministerial certificate. There was no balancing of the factors to indicate why the forfeiture of the pension was justified.

[46]      Counsel then referred to Angloram Trans (UK) Limited [2004] EWCA Civ (998 (unreported, 30 July 2004) and Bryan Haulage Ltd v Vehicle Inspectorate (No. 2) [Appeal 217/2002] Transport Tribunal (12 June 2003). He submitted that these cases demonstrated that more that a statement of the terms of the statutory scheme had to be stated by a tribunal as a reason for its decision.

[47]      Counsel for the defenders responded that Stec was not in point and gave no support for the argument that P 1.1 was engaged. It concerned article 14 where the test of engagement was different and the threshold lower. In any event it concerned state benefits and was distinguishable. So too were the other cases referred to. Counsel observed that counsel for the pursuer had not addressed, or even referred to, (R (SB) v Governors of Denbigh High School or Belfast City Council v Miss Behavin' Ltd which, she submitted, were insurmountable obstacles to the relevance of any case based on P 1.1.

Discussion and Decision

[48]      The principles which apply in relation to any claim based on a violation of a Convention right in terms of P 1.1 are summarised at paragraph 35 of the judgment in Kopecky as follows:

"(b) Article 1 of Protocol No. 1 does not guarantee the right to acquire property;

(c) An applicant can allege a violation of Art. 1 of Protocol No. 1 only in so far as the impugned decisions related to his "possessions" within the meaning of this provision. "Possessions" can be either "existing possessions" or assets, including claims, in respect of which the applicant can argue that he or she has at least a "legitimate expectation" of obtaining effective enjoyment of a property right. By way of contrast, the hope of recognition of a property right which it has been impossible to exercise effectively cannot be considered a "possession" within the meaning of Art. 1 of Protocol No. 1, nor can a conditional claim which lapses as a result of the non-fulfillment of the condition."

These principles have been applied in several of the cases which were cited in the course of argument. But before they can be applied in the present case, or the relevance of the cases in which they have been applied can be considered, it is necessary to examine what is the nature of the rights which the pursuer claims constitute "possessions" in terms of P 1.1. Unfortunately that was not really addressed or properly analysed in the arguments presented by either counsel.

[49]      The pursuer was a police officer until he was dismissed from the service on 19 April 2002. Section 1 of the Police Pensions Act 1976 provides that regulations shall make provision for pensions to be paid in respect of members of police forces "whether of right or otherwise" (section 1(1)(a)) and payment, subject to the regulations, of pensions for persons who cease to be members of police forces. In terms of Regulation B 1 of the 1987 Regulations the pursuer was entitled to a pension. It is in the following terms:

"(5) Subject to the provisions of these Regulations, a regular policeman to whom this Regulation applies shall be entitled to an ordinary pension of an amount calculated in accordance with Part I of Schedule B, subject however to Parts VII and VIII of that Schedule; but, in the case of a person entitled to reckon less than 30 years' pensionable service, no payments shall be made on account of the pension in respect of the period (if any) after his retirement and before he has attained the age of 50 years or, if he sooner becomes permanently disabled and he is not ineligible under regulations G7 (eligibility for pension awards payable on the ground of permanent disablement) and G8 (appeals against decisions on eligibility for pension awards payable on the ground of permanent disablement) for a pension award payable on the ground of permanent disablement, before he becomes so disabled."

The qualifications which apply to this entitlement are complicated and set out in various parts of the 1987 Regulations. It is not necessary to review them in detail. In essence these provide for a normal retirement age of 60 for officers such as the pursuer but allow retirement, on a pension, at lower ages in certain circumstances. The important aspect to note is that the pursuer, though entitled to a pension, would not normally have been entitled to payment of such a pension in any circumstances, save perhaps disability or illness or on medical grounds, until he reached the age of 50. At the time the Committee made its decision to forfeit his pension the pursuer was 39 years of age. He is currently 46 years of age. The Report by Mr. Haswell (paragraph 7) sets out how any pension payable to the pursuer is calculated and when that would be payable (at age 60).

[50]      In terms of the way in which "possessions" is defined in Kopecky, it may be difficult to classify whatever rights the pursuer has to his pension as "existing possessions". More properly what he seems to have is a claim "in respect of which [he] has a legitimate expectation of obtaining effective enjoyment of a property right". It is difficult to see that what he has is merely "the hope of recognition of a property right which it has been impossible to exercise effectively". It must be more than that. But, because of the possibility of forfeiture which Regulation K 5(4) allows, it might be described as a conditional claim which might lapse as a result of the non-fulfillment of the condition; the condition being either that he did nothing which might provide grounds for forfeiture in terms of Regulation K 5(4) or that there was no forfeiture in terms of that Regulation. If it can be classified as such a conditional claim then, in terms of the definition in Kopecky, it is not a "possession" if the condition, whatever that is, is not fulfilled.

[51]      The facts in Kopecky are quite different to those in the present case. They related to the recovery of the value of coins confiscated by the previous Slovakian regime and whether the claimant had satisfied certain requirements of the domestic law which allowed that recovery. It was held that P 1.1 did not apply to the circumstances of the case. Beyond the important recapitulation of the general Convention principles to be applied in determining if P 1.1 is engaged (quoted above), the case is of limited assistance.

[52]      Gudmunsson related to a taxi licence which had been withdrawn under regulations which introduced an age limit for taxi drivers and which led to the withdrawal of the applicant's licence. These had not been in force when the applicant became a taxi driver. It was held that, until these regulations came into force, the applicant had a legitimate expectation to continue to drive taxis regardless of his age and that the facts at issue fell within P1.1. The case failed for other reasons. But, significantly, the judgment of the Commission stated:

"It follows, in the Commission's opinion, that a licence-holder cannot be considered to have a reasonable and legitimate expectation to continue his activities if the conditions attached to his licence are not fulfilled or if the licence is withdrawn in accordance with the provisions of the law which were in force when the licence was issued."

In the present case, of course, the Regulations which governed the pursuer's pension, in force when he commenced to serve as a police officer, allowed the forfeiture of his pension where the offences for which he had been convicted were certified as liable to lead to serious loss of confidence in the public service.

[53]      Gudmunsson was applied in Royden v Metropolitan Borough of Wirral which related to a challenge to a decision to remove a pre-existing limit on the number of licensed taxis in Wirral. The decision was made in terms of an Act of 1847 which allowed the licensing authority to determine the number of licences. It was said to be an unlawful interference with the claimant's property rights under P 1.1 (he was the holder of a taxi licence which, on sale or transfer, attracted a substantial premium value because of the limited number of such licences which had been granted). Sir Christopher Bellamy QC (sitting as a Deputy High Court Judge) had "some difficulty in accepting that an authorisation granted by the State under public law to carry out a particular activity is, in itself, "property" or a "possession" within the meaning of Article 1 of the First Protocol" (paragraph 127). More significantly, for present purposes, he concluded (paragraph 143) that, as anyone acquiring a licence did so on the implied understanding that any restriction on their number might be removed, any "property" in the licence was inherently subject to the possibility of such a change occurring. There could be no interference with any property since the possibility of the restriction being removed was intrinsic to the "property" itself.

[54]      Malik v Waltham Forest Primary Care Trust concerned a doctor who had been suspended from a list of those able to perform services for an NHS Trust. He claimed that suspension was unlawful and an interference with his rights in terms of P 1.1. Future loss of income which he might suffer was a possession. The Court of Appeal held that an individual's monetary loss of future livelihood could not on its own constitute a possession. Auld LJ said, at paragraph 21:

"It is well established, and appears to have been common ground before Collins J, that [P 1.1] protects a right to existing, that is to vested possessions, but not a future right to receive possessions; see Marckx v Belgium 919790 2 EHRR 330, para 50. More precisely, in the context of the issues raised in this case, the Court of Appeal, in R (Countryside Alliance) v Attorney General [2007] QB 305, have upheld the reasoning of the Divisional Court [2006] EuLR 178, paras 169-174, that a person's livelihood in the sense of a right to future income, as distinct from a vested right to it or some separate element of goodwill, cannot amount to a possession within [P 1.1].

In the present case the pursuer's pension may not be quite the same as the livelihood of a doctor or other employee but what he has in relation to it can fairly be described as a right to future income. It is not in payment. And there is no entitlement to payment at all until he is sixty. Even if the pension were in payment it might well be argued that it is a right to each payment (whether monthly or whatever) as it falls due and that any right he has will always be to future income.

[55]      Stec is a case which concerned "pensions". But it is quickly apparent that it is truly about state benefits, some of which may described as "pensions"; or, rather, having some of the features of pensions such as contributions by those potentially eligible. The real issue in the case related to the application of Article 14 taken in conjunction with P 1.1 and whether the conditions applied to entitlement to certain benefits were discriminatory. It held that, so far as state benefits were concerned, it mattered not whether they were contributory or non-contributory. Both were to be regarded as possessions in terms of P 1.1 (paragraphs 46-55). But these paragraphs make it clear that the decision relates to welfare benefits provided by States. The case does not, in my opinion, assist in determining whether the pursuer's pension is a possession in terms of P 1.1.

[56]      The case which is closest to the circumstances in the present case is Azinas. That involved a public employee in Cyprus. He was dismissed following a discipline hearing because of a conviction for dishonesty for which he had served a term of imprisonment. In the circumstance in which he was dismissed the provisions of Cypriot law meant that he automatically forfeited all his retirement benefits including his pension. That was a non-contributory scheme where pensions were paid from the Consolidated Fund. There was no "right" to a pension but the State was "liable" to pay pensions in certain circumstances. These circumstances would have existed for the applicant but for the circumstances of his dismissal. He submitted that the pension was an integral part of his employment contract. He had contributed to it in the sense of having given years of service and paid his taxes. In its decision (paragraph 32) the Court noted that the right to a pension is not, as such, guaranteed by the Convention but that such a right, which is based on employment, can in certain circumstances be assimilated to a property right. After referring to entitlement to social benefits and the effects of contributions to these (the discussion is of little help as it predates the elimination of any distinction between contributory and non-contributory social welfare benefits in Stec) the Court (in paragraph 34) states in relation to such assimilation:

"This may also be the situation where an employer, as in the present case, has given a more general undertaking to pay a pension on conditions which can be considered to be part of the employment contract (No. 12264/86, Sture Stigson v Sweden, European Commission of Human rights, decision of 13 July 1998, unpublished). Having regard to the relevant Provisions of the Pension Law, Cap. 311, in particular Section 6(f), the Court notes that the applicant, when entering the public service in Cyprus, acquired a right which constituted a possession within the meaning of Article 1 of Protocol 1. This conclusion is reinforced by the revised version of the Public Service Law No. 33/67, which now provides that a pension will be paid to the wife and children of a dismissed public servant, as though he had died on the date of his dismissal."

The Court (paragraph 45) concluded that the effect of the automatic forfeiture provision of the relevant legislation "as it was applied to the applicant, upset to his detriment the balance which must be struck between the protection of the individual's right of property and public interest requirements." There is no discussion in Azinas about legitimate expectation in light of the statutory provision for automatic forfeiture of pension if the applicant were dismissed because of his conviction; nor was there any consideration as to whether the applicant's conduct and consequential dismissal could be regarded as a possibility which rendered his claim to a pension conditional. Significantly (paragraph 44), in characterising the consequences of the legislation "as it was in force at the material time" as "particularly harsh because the applicant and his family were deprived of any means of subsistence", the Court noted that subsequent amendments meant that pensions could be paid to dependents on the assumption that a public servant had died on the date of his dismissal.

[57]      Counsel for the defenders sought to argue that the position of the pursuer differed from the applicant in Azinas because he was the holder of an office and not an employee. That argument was presented in the context the pursuer's case based on Article 14. In the end of the day the Article 14 argument was not insisted upon. I did not understand counsel for the pursuer to disagree that the pursuer, as a police officer, was the holder of an office. While it is true that the legal status of the pursuer may differ from that of an employee I do not think that is important when considering whether he had any legitimate expectation of a pension. He is in no different a position from an employee whose expectation may be based on contract. There may be conditions attached to the circumstances in which he may expect to enjoy his pension but he was serving as an officer to whom the 1987 Regulations applied, in consequence of which he would receive a pension awarded in terms of these regulations unless that was forfeited. So, in my opinion, there is no reason, inherent in the pursuer's status as an office holder rather than an employee, which would prevent his legitimate expectation of a pension being treated as a possession in terms of P 1.1 if it fits the definition of such a possession in Kopecky.

[58]      It seems to me that there are two major obstacles in treating the pension which the 1987 Regulations make the Police Authority liable to pay to the pursuer as a possession in terms of P 1.1. The first is that he has no present or vested right to it. It is future income which, in terms of Malik, although the circumstances are different, cannot amount to a possession in terms of P 1.1. Secondly, even if that were not so, and Malik only applies in the circumstances of income derived from the exercise of a profession, it is clear that any claim which the pursuer might have to payment of a pension is conditional. If it is forfeited it cannot be paid (Regulation K 5(6) - "To the extent to which a pension is forfeited under this Regulation, the police authority shall be discharged of any actual or contingent liability in respect thereof"). It is therefore conditional on there being no forfeiture. Any "property" in the pension is inherently subject to the possibility of such a change occurring. The pursuer entered into the police service and became subject to the 1987 Regulations which would enable payment of a pension to him subject to the explicit provision in the Regulations that his pension might be forfeited if he was convicted of an offence which was certified as liable to lead to loss of confidence in the public service. Payment of the pension was inherently subject to the possibility of such certification if he committed such an offence. For these reasons any claim, in the sense of a legitimate expectation that he would be paid a pension, is a conditional claim which has lapsed as a result of the non-fulfillment of the condition that his pension was not forfeited. He has no "possession" in terms of P 1.1.

[59]      There remains the difficulty of reconciling the decision in Azinas with that conclusion. This is not easy. It has to be said that Kopecky is a later decision (2004) and one of the Grand Chamber. Azinas was decided in 2002 and is a decision of a Chamber. There is no discussion of legitimate expectation in Azinas; nor is there any discussion of whether the applicant's claim could be regarded as conditional. In these circumstances I will apply the principles recapitulated in Kopecky. (Interestingly (as noted in Reed and Murdoch: A Guide to Human rights Law in Scotland paragraph 8.03, footnote 16) Mr. Azinas' case was ultimately declared inadmissible before a Grand Chamber (Application no. 56679/00 ECHR (28 April 2004)). The matter was decided on the issue of non-exhaustion of domestic remedies and the substantive issue of the engagement of P 1.1 was not examined. But there was a concurring Opinion by three of the judges in which the view was expressed that the applicant had no "legitimate expectation" of receiving a pension and that P 1.1 was not engaged.)

[60]      Even if it were the case that the pursuer's pension was a possession in terms of P 1.1 as he avers, he would require to aver more if he is to succeed in his claim that any right in terms of P 1.1 has been infringed by the forfeiture of his pension. The structure of P 1.1 is analysed in Tre Traktorer v Aktiebolag Sweden at paragraph 54 and repeated in Jacobssen v Sweden (No. 1) at paragraph 53 and Fredin v Sweden at paragraph 41. That structure makes it clear that even if there is a possession which a person is entitled to enjoy he may be deprived of it "in the public interest and subject to the conditions provided for and by law". In the present case the domestic law (Regulation K 5(4)) provides that the pursuer's pension may be forfeited in certain circumstances. The extent of that forfeiture has been restricted by Banfield. The pursuer has not challenged the compatibility of Regulation K 5(4), as applied by the courts, with the Convention. States are allowed a wide margin of appreciation in determining the circumstances in which deprivation is appropriate (Fredin paragraph 51). Regulation K 5(4) makes it clear that forfeiture may only follow conviction for offences which are liable to lead to a serious loss of confidence in the public service. It was not suggested by the pursuer that maintenance of such confidence was an aim which was illegitimate or that forfeiture of the pension was a disproportionate measure to effect that aim. The challenge is to the decision of the Committee and not to the legal basis on which any decision is based. In these circumstances I respectfully agree with the observations of Lightman J in Fisher v English Nature where, at paragraph 46 he says:

"I should add that if the legal merits of any complaint did need to be examined in any more detail, under article 1 a fair balance must be struck between the general interest and the interest of any property owner. But in considering questions of proportionality under article 1 the European Court of Human Rights has made it plain that states enjoy a wide "margin of appreciation" in this area relating to the control of the use of land in the public interest for environmental reasons, and that the controls prescribed or interferences involved must be without any reasonable foundation if the court is to regard them as disproportionate: Fredin v Sweden (1991) 13 EHRR 784. It is well established that a reasonable relationship of proportionality under article 1 does not import a test of strict necessity (as Mr. Holgate has argued). The fact that there may be other even better methods of achieving the same ends does not necessarily mean that any particular measure is disproportionate under article 1: see James v United Kingdom (1986) 8 EHRR 123 and Tre Traktörer AB v Sweden (1989) 13 EHRR 309. That "margin of appreciation" is properly reflected domestically in the respect that is due: (a) to the choices that the legislature is entitled to make in this area (for which it is democratically accountable); and (b) to any judgment made by English Nature as a specialist regulator, expert in the matters of nature conservation: cf Holder v Law Society [2003] 1 WLR 1059. As Forbes J stated in the Aggregate case [2003] Env LR 83, the legislation and decision fall well within the areas of respect to be accorded to the legislature and English Nature."

While not specifically approved, that view found favour in the Court of Appeal, reported [2005] 1 WLR 147, where Auld LJ said (at paragraph 147):

"The judge was of the view that the issue of proportionality only arose if the scheme itself was not 1998 Act compliant. That was his short answer to the proportionality point. I do not necessarily disagree with him, but equally do not need to go that far."

[61]      The same reasoning applies in the present case. Parliament has decided that pensions should be paid to police officers but payment should be subject to certain conditions. One of these is that, in the public interest, such pensions may be forfeited if police officers are convicted of offences which are liable to lead to a serious loss of confidence in the public service. That is the balance which Parliament has decided should be struck between any right or entitlement which a police officer has to be paid a pension and the public interest that police officers should not, in connection with their service, commit offences which damage public confidence. Such legislation falls well within the areas of respect to be accorded to the legislature.

[62]      But the power to forfeit which Regulation K 5(4) allows is not the end of the matter. Unlike Azinas, commission of an offence does not lead automatically to forfeiture. It is not simply a consequence of the application of legislation to the fact of dismissal. Two distinct discretionary decisions are necessary before forfeiture can take place. Firstly the Scottish Ministers must certify that the offence is liable to lead to a serious loss of confidence in the public service. Then the Police Authority must decide to forfeit the pension (and how much and for how long and whether forfeiture is to affect pensions for dependents). In addition, any offence must be committed "in connection with [an officer's] service as a member of a police force". Although the letter from the Scottish Public Pensions Agency states that the Minister was satisfied that "there is a connection between the offences for which Mr. Carruthers was convicted and his service as a member of the Dumfries and Galloway Police" it seems to me that this is properly a factual matter for the Police Authority to satisfy themselves about. No doubt, correctly, the Minister would be reluctant to issue any certificate unless he was satisfied that was so. But the wording of the Regulation points clearly to the decision being one for the Police Authority. And Witchelo is supportive of that interpretation. There the issue was whether the police authority had erred in finding that the offence had been committed in connection with the appellant's service as a police officer. That aspect of the decision is not the subject of challenge in the present case. In Witchelo, of course, there had been an attempt to challenge the validity of the certificate granted by the Secretary of State. There has been no such challenge in the present case and so it is, as counsel for the defenders described it, a "given" that Mr. Carruthers' offences are liable to lead to a serious loss of confidence in the public service.

[63]      A significant feature of Regulation K 5(4) is that the determination of one of the prerequisites for the exercise of the Committee's discretion is not a fact to be determined by them but a fact to be determined by the Scottish Ministers. In any attack on the Committee's decision in these proceedings that is beyond challenge. And the other prerequisite - the connection between the offences and service - is not challenged. So what is challenged is the pure exercise of the discretion accorded to the Committee by the Regulation. The scope of any such challenge in terms of P 1.1 is narrow. That is demonstrated in R v Governors of Denbigh High School which concerned a challenge to the lawfulness of a decision of school governors to exclude a girl from school because she had failed to adhere to the school's policy on the wearing of uniforms. The school had promulgated regulations about uniforms in terms of statutory authority allowing them to do so. The decision to exclude was challenged as an infringement of the girl's rights in terms of Article 9(1) of the Convention and Article 2 of the First Protocol to the Convention. The scope of any challenge to the school's decision was discussed by Lord Hoffman at paragraphs 63-64 where he said:

"63 In applying the Convention rights which have been reproduced as part of domestic law by the Human Rights Act 1998, the concept of the margin of appreciation has, as such, no application. It is for the courts of the United Kingdom to decide how the area of judgment allowed by that margin should be distributed between the legislative, executive and judicial branches of government. As Lord Hope of Craighead said in R V Director of Public Prosecutions, Ex p Kebekine [2000] 2 AC 326, 380-381: "The doctrine of the "margin of appreciation" is a familiar part of the jurisprudence of the European Court of Human Rights. The European court has acknowledged that, by reason of their direct and continuous contact with the vital forces of their countries, the national authorities are in principle better placed to evaluate local needs and conditions than an international court ... This technique is not available to the national courts when they are considering Convention issues arising within their own countries. But in the hands of the national courts also the Convention should be seen as an expression of fundamental principles rather than as a set of mere rules. The questions which the courts will have to decide in the application of these principles will involve questions of balance between competing interests and issues of proportionality. In this area difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society. In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention."

64 In my opinion a domestic court should accept the decision of Parliament to allow individual schools to make their own decisions about uniforms. The decision does not have to be made at a national level and national differences between Turkey and the United Kingdom are irrelevant. In applying the principles of Sahin v Turkey the justification must be sought at the local level and it is there that an area of judgment, comparable to the margin of appreciation, must be allowed to the school."

[64]      In Belfast City Council v Miss Behavin' Ltd the issue was the decision of a local authority to refuse an application to use premises as a sex shop. That was challenged in terms of Article 10 and P 1.1. At paragraph 16 Lord Hoffman described the decision making process in the following terms:

"This is an area of social control which the Strasbourg court has always accorded a wide margin of appreciation to member states, which in terms of the domestic constitution translates into the broad power of judgment entrusted to local authorities by the legislature. If the local authority exercises that power rationally and in accordance with the purposes of the statute, it would require very unusual facts for it to amount to a disproportionate restriction on Convention rights."

[65]      Both cases also make it clear that, in any challenge to a discretionary decision based on infringement of Convention rights, the question which is important is whether the right has been infringed and not the reasoning process of the decision maker (Lord Bingham of Cornhill in Governors of Denbigh High School at paragraph 29 and Lord Hoffman in Belfast City Council at paragraphs 13-15). The pursuer's averments based on P 1.1 relate to the reasoning process. In Statement 4 it is averred that the decision to forfeit "served no et separatim no commensurate purpose. No primary facts consistent with its so doing are found. At 5.2.3 of the Report it is expressly recognized that forfeiture is "an additional penalty". As such no legitimate end is served thereby." It is also averred that "the decision identified no et separatim no material circumstances apt to serve any legitimate aim in the public interest. No attempt is made to determine whether forfeiture to the stipulated extent was commensurate with any such interest." The same theme is repeated in Statements 5, 6 and 9. It seems to me that this is to attempt to found on the alleged failure of the Committee, as a decision maker, to take the sort of approach for a decision maker such as the Committee which was disapproved by Lord Hoffman in Belfast City Council at paragraph 13:

"13 This approach seems to me not only contrary to the reasoning in the recent decision of this House in R (SB) v Governors of Denbigh High School [2007] 1 AC 100 but quite impractical. What was the council supposed to have said? "We have thought very seriously about your Convention rights but we think that the appropriate number of sex shops in the locality is nil"? Or: "Taking into account article 10 and article 1 of the First Protocol and doing the best we can, we think that the appropriate number is nil"? Would it have been sufficient to say that they had taken Convention rights into account, or would they have had to specify the right ones? A construction of the 1998 Act which requires ordinary citizens in local government to produce such formulaic incantations would make it ridiculous. Either the refusal infringed the applicant's Convention rights or it did not. If it did, no display of human rights learning by the Belfast City Council would have made the decision lawful. If it did not, it would not matter if the councillors had never heard of article 10 or the First Protocol .

These averments are, as counsel for the defenders submitted, an attempt to dress up a common law challenge based on reasons as a Convention argument. As such they are irrelevant.

[66]      In summary, the pursuer's pleadings do not reveal any relevant challenge to the decision of the Committee based on P 1.1. The pension is not a possession in terms of the Article. Even if it were, any interference with it or deprivation of it which results in forfeiture in the public interest (as determined by Parliament) and is provided for by law. No convention right can be infringed by the exercise of the Committee's discretion in applying Regulation K 5(4) if the Regulation is compatible with the terms of the Convention and no attempt is made to challenge that.

The Challenge at Common Law

[67]      The issue then becomes whether the decision is irrational or unreasonable in terms of domestic law. That, in general terms, is whether, applying the traditional grounds for the judicial review of a discretionary administrative decision (and the appeal in the present case is really akin to that) it is irrational or unreasonable in the sense of Associated Picture Houses v Wednesbury Corporation [1948] 1 KB 223. Wednesbury was referred to by counsel for both parties. So, the relevant questions are likely to be whether relevant factors were taken into account, whether no irrelevant factors were considered and whether the decision was perverse, or procedurally unfair, or erroneous in point of law. The pursuer had averred (Statement 7) that irrelevant matter was taken into account ("the publicity and media coverage surrounding the trial"). That challenge was not insisted upon. That left two common law challenges in terms of domestic law.

(a) Failure to give reasons

[68]      This is to be found principally in Article 8 although, as already discussed, it is also to be found in Articles 4, 5 and 6 which could be interpreted as setting up a challenge at common law on reasons as well as the apparent challenge based on P 1.1. They are that the Committee failed to identify the relevance of publicity and media coverage surrounding the trial to their determination of the extent of the forfeiture; that it failed to identify the relevance which the sentence imposed on the pursuer had to its determination of the extent of forfeiture; and that it failed to give any intelligible reasons for the extent of the forfeiture.

 

Submissions by the Parties

[69]      Counsel for the defenders first of all submitted that there was no statutory duty imposed by the Regulations to give reasons for any decision in terms of Regulation K 5(4). That was, she said, not surprising if her earlier submission that the Regulation accorded the Committee no discretion not to forfeit the pension to some extent was sound. For the reasons I have already given I do not accept that submission which, in my opinion, is mistaken in law. But it is certainly true that the Regulations make no provision for the giving of reasons. Counsel then submitted that there was no common law duty on the Committee to give reasons for its decision. The letter sent to the pursuer was no more than the communication of the substance of the decision to the pursuer and that was all that was required. In any event, if there was a common law duty to give reasons the letter sent to the pursuer on 20 March 2008 (Production No. 5/2/4) was sufficient to discharge any such duty. In considering what reasons would be appropriate the context of the decision was important. In a planning enquiry, with witnesses and an adversarial setting, detailed reasons might be expected. That might be contrasted with a licencing authority where short reasons would usually suffice. The test as to whether reasons for a decision were adequate was whether they left the informed reader in no real and substantial doubt as to what the reasons for the decision were and what were the material considerations which were taken into account in reaching it (Wordie Property Co. Ltd v Secretary of State for Scotland 1984 SLT 345). The terms of the letter of 20 March 2008 passed that test. It described the process of staged discretion which the Committee had taken; that there should be forfeiture and the level of that forfeiture. It described the factors taken into account by the Committee. It might be possible to describe the terms of the letter as "shorthand" but that was all that was required. All the matters taken into consideration by the Committee were listed. There were no relevant averments that could establish that the informed reader would have been left in real and substantial doubt as to what the reasons for the decision were and what were the material considerations which were taken into account in reaching it.

[70]      In relation to any common law obligation on the Committee to give reasons for its decision, counsel for the pursuer submitted that there was such an obligation and referred to Stefan which he said applied to the circumstances of the present case. If there was an obligation to give reasons those given were inadequate. The description of the decision to forfeit in the letter of 20 March 2008 was simply a narrative of the taking of the decision; not why it was taken. It was difficult to be sure that a decision had been taken and discretion exercised on that rather than applying discretion only to how much should be forfeited. The reasons did not really go beyond the existence of the ministerial certificate and the gravity of the offences per se. There required to be more (Bryan Haulage Ltd v Vehicle Inspectorate (No. 2) - for example whether an additional penalty was required or whether the public would feel better about the public service if the pension were forfeited. Reference was also made to Wordie.

[71]      Counsel for the defenders responded that Stefan was not authority for a general common law duty to state reasons. That was also to be seen in Hasan v The Secretary of State for Trade and Industry [2008] EWCA Civ 1312. If there was no general duty then there was no reason why there should be one in the circumstances of the present case. Even if reasons were required the issue for the Committee was a narrow one and little would be required than was in the decision letter (Stefan at paragraph 1304). The reasons given were adequate. The certificate by the Scottish Ministers was not only a threshold for the decision but a factor the Committee could take into account. That and the gravity of the offences were sufficient. The giving of reasons was a matter of fairness to determine any ground of appeal.

Discussion and Decision

[72]      The Regulations do not impose any obligation to give reasons for any decision in terms of Regulation K 5(4). But that decision is subject to appeal. It is clear from Lord Clyde's judgment in Stefan (pages 1300-1301) that there is no general duty, universally imposed on all decision-makers, to give reasons for administrative decisions but that there are exceptions where the giving of reasons will be required as a matter of fairness and openness. These may exist in the particular circumstances of a particular case or there may be classes of case where the duty may exist in all cases of that class. Lord Clyde explains that such classes may be defined by factors relating to the particular character or quality of the decisions, as where they appear aberrant, or to factors relating to the particular character or particular jurisdiction of a decision-making body, as where it is concerned with matters of special importance, such as personal liberty. He observes that where, in the past, the duty to give reasons may have been the exception it may now be becoming he norm. He had earlier referred to "an increased recognition of the duty upon decision-makers of many kinds to give reasons". He also refers to the possible effect of the Human Rights Act 1998 which "will require closer attention to be paid to the duty to give reasons, at least in relation to those cases where a person's civil rights and obligations were being determined". In Stefan the Judicial Committee declined to re-appraise the position regarding the giving of reasons in light of the 1998 Act; as did the Court of Appeal in Hasan.

[73]      Importantly, Lord Clyde distinguished the obligation to state reasons from "the separate but related matter of the substance of those reasons"; and went on to say "What will suffice to constitute the reasons is a matter distinct from the obligation to give reasons, and there will clearly be circumstances where a quite minimal explanation will legitimately suffice". So, the questions in the present case are whether, in its particular circumstances, the Committee was under a duty to give reasons and, if so, were these adequate.

[74]      I do not agree with the submission by counsel for the defenders that there was no duty on the Committee to give reasons for its decision. The decision was open to appeal under the Regulations. In Stefan there was also a right of appeal and that was treated by Lord Clyde (page 1301) as a consideration that there was a duty to give reasons:

"In the first place there is the consideration that the decision was one which was open to appeal under the statute. The appeal was only on a ground of law but, as has already been mentioned, the existence of such a provision points to the view that as a matter of fairness in deciding whether there are grounds for appeal, and as matter of assistance in the presentation and determination of any appeal, the reasons for the decision should be given."

[75]      Certain of the other considerations which led the Judicial Committee in Stefan to conclude that there was a duty to give reasons are absent in the present case. For example the function of the General Medical Council in suspending a doctor from practice may be more akin to a judicial function than the decision of the Committee in the present case but, that in itself does not exclude the possibility that reasons may require to be given (Lord Clyde at page 1302). What is significant, I think, is the considerable importance of the decision to the pursuer. He stood to lose a valuable pension entitlement. That was bound to cause him some hardship, certainly in his later years. As in Stefan the importance of the issue may not closely equate with the importance of personal liberty but it was a matter of very real significance in the eyes of the pursuer and deserves to be protected. It seems to me that the combination of these two considerations points to a duty on the Committee to give reasons for its decision in the circumstances of the pursuer's case. It is not necessary to decide if all such decisions by a Police Authority would constitute a class of cases where such a duty would exist but it is difficult to see circumstances in which, where forfeiture of pension was the decision, such a duty would not exist.

[76]      Of course, in any event, reasons were given by the Committee. The next question is whether they were adequate. In Wordie Lord Emslie (at page 348) said:

"So far as para. 11(1) is concerned all that requires to be said is that in order to comply with the statutory duty imposed upon him the Secretary of State must give proper and adequate reasons for his decision which deal with the substantial questions in an intelligible way. The decision must, in short, leave the informed reader and the court in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it."

[77]      The paragraph of the Town and Country Planning Appeals (Inquiries Procedure) (Scotland) Rules 1964 referred to states no more than that the decision and the reasons therefor are to be notified in writing. So that seems to be no more than the common law obligation. Parties did not suggest that the test in Wordie did not apply equally to the common law obligation although, with the qualification, referred to in Stefan, that the extent of the reasons given would vary according to the nature of the body taking the decision and the decision itself.

[78]      In relation to the decision of the Committee the "informed reader" would be someone who had access to the material before the Committee when it made its decision. And the reasons for the decision would be read in that context. (The pursuer and those advising him were, of course, in that position.) The letter of 20 March 2008 clearly states the decision of the Committee. It also makes clear that the decision was taken in two stages and was followed by the decision about benefits for dependents. It narrates that Mr. Haswell's Report and the documents supporting it were taken into consideration; as were the representations made by the pursuer. Copies of the Report and documents had been made available to the pursuer and those advising him. It says that the decision was taken on the basis of the gravity of the offences and on the basis that the Scottish Ministers had issued a certificate that the offences were liable to lead to a serious loss of confidence in the public service. The latter is very important in my opinion. It is an unchallenged fact. While it has been described as the "gateway" to the Committee's discretion it can also be interpreted as the most important reason why the Committee might decide to forfeit. It articulates the public damage done by the pursuer's conduct. The Regulation permits recognition of that damage by the forfeiture of his pension or part of it.

[79]      It seems to me that, because of its central importance to whether or not forfeiture should be considered at all, the determination of whether that reason exists has been removed from the Committee by Parliament so that an objective view in the national or wider public interest may be taken rather than rely on a possible narrow view formed by the Committee and unduly influenced by local factors or local opinion.

[80]      The background to the issue of the certificate, and the considerations which Ministers took into account, are narrated in the letter from the Scottish Public Pensions Agency and the informed reader would assume that the Committee were aware of that and took it into account. A copy of that had been made available to the pursuer and those advising him. With that degree of information it cannot be said that the informed reader would have been left in any real and substantial doubt as to the reasons for the decision of the Committee that the pursuer's pension should be forfeited or to the material considerations which lay behind that decision.

[81]      Turning to the decision to forfeit to the extent of 65% the same considerations apply. Again the factors taken into account are narrated - the gravity of the offences, the sentence imposed, the comments of the trial judge and the publicity and media surrounding the trial. The informed reader would readily understand that all these were directly related to the serious loss of confidence in the public service which had already been identified as one of the reasons for forfeiture and affected directly the level of that forfeiture. The restraints on the Committee as to the maximum level of forfeiture are clearly set out in both the letter form the Scottish Public Pensions Agency and in Mr. Haswell's Report. It cannot be said that any real or substantial doubt could exist as to why 65% was chosen.

[82]      The apparent quest in the pursuer's averments in Statement 8 for reasons beyond serious loss of confidence in the public service is, in my view, mistaken. That is the primary reason to exercise the discretion to forfeit. It may in itself be sufficient (it is not necessary to decide if that is so). It may, of course, be overcome by other considerations which apply in the circumstances of any particular case. Here the Committee has articulated reasons other than such a loss of confidence; none of which are averred to be irrelevant (or at least their irrelevance was not pressed at debate). And it has taken into account other factors about the circumstances of the pursuer.

[83]      For all these reasons the pursuer's challenge based on reasons, focused in pleas in law 5 and 6, is irrelevant.

(b) Want of Objective Impartiality

[84]      The averments in relation to this ground of challenge are to be found in Article 10. In essence what is averred is that, at its meeting on 28 June 2002, the Committee had "concluded" that the offences committed by the pursuer met the criteria set out in Regulation K 5(4) (they were liable to lead to a serious loss of confidence in the public service). That conclusion was reported to the Committee in the Report prepared by Mr. Haswell for its meeting on 20 March 2008 (Production No. 5/2/1). That the offences were certified by the Scottish Ministers as liable to lead to a serious loss of public confidence in the public service was one of the reasons given by the Committee for its decision to forfeit the pension. Because of the view formed at the meeting on 28 June 2008 it is averred that "fears might reasonably have been entertained by one in the position of the Pursuer and Respondent that the Committee was not impartial". Accordingly there had been no fair and public hearing by an independent and impartial tribunal established by law. The right of the pursuer to that in terms of Article 6(1) of the Convention had been infringed.

 

Submissions by the Parties

[85]      Counsel for the defender submitted that the averments did not set out a relevant case of bias or apparent bias. The appropriate legal test for determining an issue of apparent bias was set out in Porter v McGill [2002] 2 AC 357. It was "whether the fair minded and informed observer, having considered the relevant facts, would conclude that there was a real possibility that the tribunal was biased" (Lord Hope of Craighead at paragraph 103). The references in Mr. Haswell's Report to any conclusion reached at the meeting on 28 June 2002 had to be read as a whole and in the context of the whole Report. That conclusion had to be seen in the context of what the Committee was doing on 28 June 2002. It was going through a process of seeking ministerial certification before its discretion in terms of Regulation K 5(4) could be exercised. Mr. Haswell's Report set out several options for the Committee. It was not suggestive of a Committee which approached the issue with a closed mind.

[86]      Counsel for the pursuer accepted that the test for apparent bias was essentially the same, whether considered in terms of domestic law or the jurisprudence developed by the European cases. That is hardly surprising as Porter v McGill contains a comprehensive analysis of and reference to the decisions of the European Court of Human Rights in this area before reformulating the test already developed in R v Gough [1993] AC 646. But counsel submitted that the European jurisprudence laid stress on the standpoint of the victim - the person who was complaining against the decision. In that connection he referred to De Cubber v Belgium (1985) 7 EHRR 236, Delacourt v Belgium (1979-80) 1 EHRR 355 and Hauschildt v Denmark (1990) 12 EHRR 266. Each of these cases was concerned with the involvement of the same judge or judges at various levels of court at which a case was dealt with (or, in the case of Delacourt v Belgium, the presence of a member of the Procureur Général's department at the deliberations of the Court of Cassation). Counsel accepted that the Police Authority might not be regarded as the same sort of judicial tribunal which was illustrated in these cases. His point was that the test had to be applied with the standpoint of the pursuer in mind.

[87]      As to the facts averred it was the word "concluded", in the references to the Committee's meeting on 28 June 2002, which counsel laid emphasis on. The suggestion was that this apparent conclusion indicated to the reasonable observer that the Committee approached the decision about forfeiture with a closed mind. Counsel said that was all the more the case if the discretion was limited to how much and how long forfeiture should be but it applied equally to a two stage discretion - whether to forfeit as well. The reference to "concluded" was more than an infelicity of language. It indicated that the Committee was minded to forfeit the pension and to that end had applied for the certificate which it required before it could do so. The laying out of options and the description of a two stage process in Mr. Haswell's Report did not alter that. The fact that advice was given to the Committee did not mean that it was taken. Even if it had been taken that could not alter the earlier perception that a decision had already been made.

[88]      In response counsel for the defenders referred to Sengupta v Holmes 2002 EWCA Civ 1104. This demonstrated that there was no difference between any objective test of impartiality as articulated in the cases to which counsel for the pursuer had referred and the test and the concept of the fair-minded and informed observer.

Discussion and Decision

[89]      In deciding whether a tribunal or decision taker is biased or gives the appearance of bias (and so fails to meet the requirement of impartiality set out in Article 6(1)) the task of a court of first instance is to apply the domestic law of Scotland which is binding on it. That is to be found in the series of cases which culminates in Porter v McGill and has been affirmed in later cases (cf. Lawal v Northern Spirit Ltd [2004] 1 All ER 187). References to European cases may be necessary if these post date the binding expression of the domestic law and suggest that it may not reflect the current jurisprudence of the European Court of Human Rights. In these circumstances the court of first instance will still require to apply the binding domestic law even if that decision provides the platform for an appeal; or, perhaps, make a reference to a superior court if that is appropriate. But what is not helpful, and, it seems to me, is not necessary, is the citing of European cases to which the superior court has been referred and which it has taken into account (in terms of section 2 of the Human Rights Act 1998) in reaching the decision which is binding on the court of first instance. Each of the cases referred to by counsel for the pursuer was cited, considered or referred to in Porter v McGill. Each pre-dated Porter v McGill by several years. None had any apparent relevance to the facts of the instant case. Of course, it may be helpful to refer to earlier cases, European or domestic, if they demonstrate an application of the principle to be applied in similar factual circumstances. That was not the case here. Nor was it suggested that any of these cases altered the test which Porter v McGill laid down. Counsel for the defender did not submit that the test in Porter v McGill was not the appropriate test to apply.

[90]      It seems to me that the averments for the pursuer on this aspect of his challenge are hopelessly irrelevant. If he is pleading a case of apparent bias then he should set out the circumstances in which such apparent bias is to be found. First of all he should aver the relevant test. He fails to do so. What he says is that "fears might reasonably have been entertained by one in the position of the Pursuer and Appellant that the Committee was not impartial". That does not echo, or even paraphrase, the test in Porter v McGill. If "one in the position of the Pursuer and Appellant" is the same as "the fair minded and informed observer, having considered the relevant facts" why not say so? If it is in some way different then it is not averred, and was never explained in submission, why the words chosen averred the test relevantly. In the same way it is not clear whether entertaining reasonable fears is the same as concluding that there was a real possibility that the Committee was biased and so not impartial.

[91]      Even if the test can be said to have been relevantly averred, the facts which are said to support it come nowhere near approaching what might satisfy that test. Here, context is important. This is a Committee charged with a statutory discretion; not a court or judicial tribunal. It cannot exercise that discretion without obtaining a ministerial certificate that the pursuer's offence had a certain quality. Clearly, there will be many offences committed by police officers which no one would imagine would lead to "a serious loss of confidence in the public service". But there will be others where that is either possible or probable or self evident. The Committee cannot avoid forming at least a preliminary view about such possibility or probability or self evidence before asking the Scottish Ministers to consider whether the appropriate certificate should be issued. The alternative would be that such a certificate was sought in the event of any offence committed by a police officer in connection with his service. That is neither sensible nor practical. I suppose that the précis of the Committee's conclusion on 28 June 2002 which is found in Mr. Haswell's Report might have been better expressed but I am not sure that it need have been. If the Committee had indeed concluded that the pursuer's offences were such as to be liable to lead to a serious loss of confidence in the public service they were doing no more than expressing a view that the prerequisite for the exercise of their discretion to forfeit the pension existed or might exist. But what the Regulations provide is that this is not a matter they can decide, whatever they might think. It is a decision for Ministers. As I observe above, there are probably very good policy reasons for that decision being taken by Ministers at a national level rather than by locally elected representatives. I cannot see that the fair minded observer, aware of those facts, would conclude that the decision to seek the certificate, based on that conclusion, raised a real possibility of bias.

[92]      And, of course, it is the decision to forfeit which the fair minded and informed observer is considering. The facts of which such an observer would be aware would also include the whole of the material before the Committee when making their decision to forfeit and the expression of the decision after it was made; and not only that part of Mr. Haswell's Report which reported the decision to seek certification from the Scottish Ministers - the whole process. Mr. Haswell's Report, both at Paragraph 4 (the summary of the recommendation) and Paragraph 9 (the options available to the Committee), makes it abundantly clear that the decisions to be taken are whether to forfeit as well as how much and for how long. Any observer would have regard to that. The letter which expresses the decision, and gives reasons for it, makes it clear that no decision on forfeiture had previously been taken even if a provisional view might have been formed on one of the reasons which lay behind the decision - that the offences were liable to lead to a serious loss of confidence in the public service. But that provisional view was in the context of seeking the certificate which was a prerequisite for any decision to be taken at all. For these reasons I conclude that the challenge based on apparent bias, and focussed in pleas in law 9 and 10, lacks relevance and falls to be dismissed.

 

Summary and Conclusion

[93]      For the reasons which I have given I find that each of the grounds of challenge by the pursuer to the decision of the Committee to forfeit his pension is irrelevant and would not succeed even if he were given the opportunity to prove them. As I noted earlier his plea to the relevance of the defenders averments was not argued or insisted upon. Accordingly I dismiss his action.

Expenses

[94]      I was asked to reserve the question of expenses and have done so. I have fixed a hearing for their determination. I have, however, certified the cause as suitable for the employment of senior counsel. In doing so I took into account the importance of the matter to the defenders and also the complication of the case including the extensive citation of authority, on each of the aspects of the pursuer's challenge.