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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Sharples v Halford & Ors [1991] UKEAT 80_91_0410 (4 October 1991)
URL: http://www.bailii.org/uk/cases/UKEAT/1991/80_91_0410.html
Cite as: [1991] UKEAT 80_91_410, [1991] UKEAT 80_91_0410
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EAT/128/91, EAT/129/91
At the Tribunal On: 4 June 1991, 5 June 1991,
26 June 1991, 27 June 1991, 28 August 1991,
29 August 1991, 30 August 1991
Before
THE HONOURABLE MR JUSTICE WOOD MC (P)
MISS C HOLROYD
MR R J LEWIS
(2) NORTHAMPTONSHIRE POLICE AUTHORITY (3) SIR PHILIP MYERS, OBE, QPM, DL (4) SECRETARY OF STATE FOR THE HOME DEPARTMENT
Transcript of Proceedings
JUDGMENT
Revised
APPEARANCES
For the Appellant MR JOHN HAND QC
Mr Graham Morrow
(of Counsel)
Messrs Weightman Rutherfords
Richmond House
1 Rumford Place
LIVERPOOL L3 9QW
For the 1st Respondents MR E TABACHNIK QC
Miss D Rose
(of Counsel)
Mrs Elizabeth F C Whitehouse
Principal Legal Officer
Equal Opportunities Commission
Overseas House
Quay Street
MANCHESTER M3 3HN
For the 2nd Respondents No attendance for or on behalf of the 2nd Respondents
For the 3rd & 4th Respondents Mr Martyn Bennett
(of Counsel)
The Treasury Solicitor
Queen Anne's Chambers
28 Broadway
LONDON SWl H9JS
MR JUSTICE WOOD (PRESIDENT) These are three Interlocutory Appeals - more are to follow. The Applicant, an Assistant Chief Constable of the Merseyside Police alleges sex discrimination against four respondents. The first is the Northamptonshire Police Authority; the second is Sir Philip Myers, Her Majesty's Inspector of Constabulary; the third is the Secretary of State for the Home Department and the fourth, Mr James Sharples, the Chief Constable of Merseyside. All parties are represented by counsel and in some cases by leading counsel. It is a matter of serious consequence to all the parties involved. Feelings run high and it may be thought that reputations are at stake.
The Appeals have been argued before us over seven days. We have been asked to deal with the issues raised upon the state of the pleadings as they are now before us, which are somewhat different from that existing at the time of the Decisions of the Industrial Tribunal. Thus, we may take a somewhat different view from the learned Chairman and the members of the Industrial Tribunal.
Before turning to the particular facts of these appeals we wish to express some views upon what we regard as a rapidly changing scene in some cases before Industrial Tribunals. Procedure is within the discretion of each Tribunal Chairman. We do not seek to direct; we only seek to make suggestions based upon our own experiences.
Many cases seem to us to be heavier and more complicated than at the time when Tribunals were first established. This is more so in those cases where issues of discrimination or equal pay are raised. The tendency in those cases, necessarily, must be towards a greater formalism than was within the original intention of those who established Industrial Tribunals. This must be so for a number of reasons, amongst which is the need to identify issues in order to obviate the criticism so often made by respondents that wild or extensive allegations are initiated in the hope that at some stage evidence will emerge which may tend to establish a case.
Balanced against this must be the constant reminder that it is often extremely difficult for an applicant with a genuine case to prove discrimination and that in many instances the necessary evidence is in the possession of the respondent. It is for this reason that the questionnaires or interrogatory procedures have been established. However, when the evidence is closed and the primary facts have been found, in most cases it will be a question of inferences to be drawn and it is for the applicant to prove his or her case.
Although we stress that under the existing Industrial Tribunal Rules the procedure is within the discretion of each individual Chairman, nevertheless we would suggest that all interlocutory stages of a particular case are kept within the tight control of an individual Chairman; until the substantive hearing starts we see no reason to involve the lay members for two reasons, the first is that the interlocutory issues will almost always fall within a purely legal concept and within the expertise of lawyers experienced over the years in litigation. Secondly, because the ability of a legal Chairman to sit early or late at short notice will help to save time and cost. Moreover the "industrial jury" are probably best brought in when the case is ready for trial.
Thus, in these complicated cases the time has arrived when, in order to do justice - that which in all the circumstances is fair, just and reasonable between the parties - a more formal approach to pleadings and procedure may be thought desirable. The Industrial Tribunal Rules refer to the County Court practice and we would suggest that the principles followed in the County Court, which are in fact very similar to those in the High Court, should be fairly closely followed in this type of case. We do not refer to the vast number of short cases which are handled with admirable despatch.
The first stage is to establish the issues to be tried. Although interrogatories would normally follow at a much later stage, in discrimination cases the questionnaires are presented and answered at an early stage and this must clearly be the correct approach. Once the questionnaires have been answered, the next stage must surely be to deal with requests for particulars and general discovery bearing in mind the principles of the true purpose of particulars. The purpose of particulars is not for the production of evidence. It is to give notice of the case to be presented. Where questions of discovery are raised between the parties it seems to us essential that those triable issues must have been clearly defined before the first important question of "relevance" can be decided. Questionnaires will already have been served and answered and unless the triable issues are clear at that stage the submission will constantly be raised that further discovery is a "fishing expedition". It also seems to us that unless express agreement has been given prior to consideration of an issue, it is extremely unlikely that interlocutory matters in such cases can be decided without a hearing inter partes. We have come across cases where requests for oral hearings have been refused. This seems to the members of this Court to be a denial of natural justice. One or more hearings at which directions can be discussed and ordered may often prove helpful.
The interlocutory bundle of documents now before us exceeds 400 pages. Despite the assistance of counsel we have found it impossible to identify the detailed progress of these proceedings to date. We would have hoped to see a number of written applications followed perhaps by letters written in agreement or opposition as to the whole or part of such applications; followed by an order (preferably signed by the learned Chairman), together with the Reasons, if a party has asked for them with a mind to appeal. This simple process would be clear for each interlocutory issue. In order the more easily to keep control of these heavy and difficult cases there would probably be a time limit for compliance with each order, followed, if justice so demanded, by an extension of time and a "final" order with an ultimate sanction of "striking out". If time limits are too stringent they can hinder rather than help the smooth running of a case. Before an Industrial Tribunal the threat of "striking out" is very real because of the extensive powers given by the Industrial Tribunal Rules and the grave problems facing an appellant against such a discretionary decision.
In the present case the simple and logical steps are conspicuous by their absence. Mr Hand has quite properly censured the whole process. We agree with him.
How has this come about?
The Originating Application is dated 4th June 1990. It was followed a few days later by questionnaires to each of the four respondents. By the end of June the Notices of Appearance had been entered. By the end of July answers to the questionnaires had been given by each respondent. During August supplementary questions were asked. Some interlocutory issues were raised concerning the supplementary questions. In October lists of documents from all parties were filed. There were claims to privilege. During November letters passed between some of the parties concerning further documents.
At a hearing on 30th November 1990 before the learned Chairman sitting alone, Mr Hand raised issues of public interest immunity. Those issues were never finally heard. Secondly, he suggested for the learned Chairman's consideration whether, in the somewhat unusual situation where the identity of comparators was known, together with the fact that each was a senior serving police officer, consideration should be given to separate representation for them.
On 19th December Mr Hand made two applications to the full Tribunal. The first concerned the admissibility of some evidence. The second was for an adjournment from the date of 7th January 1991 already fixed. A number of matters remained outstanding including public interest immunity and as the case could not be ready for trial by the date fixed such application seems to us to have been reasonable. This was refused. It was decided to start the substantive hearing on 7th January and to cope with all outstanding matters and any further interlocutory issues that might arise - "at a run". This decision lies at the root of the subsequent wholly chaotic procedure in this case. It must have been clear that a great deal of work was going to be necessary before this case could be considered ready for trial.
Just before the Christmas break, on 21st December, solicitors for the Applicants applied to the Industrial Tribunal for further particulars from the fourth Respondent.
On 3rd January 1991 the Industrial Tribunal made an order that the fourth Respondent provide the particulars sought by the Applicant in that letter of 21st December.
A copy of this letter had not been sent to the fourth Respondent's solicitors.
The fourth Respondent had not been asked to make representation.
The fourth Respondent had not been offered a hearing as the rules of natural justice suggest might have been reasonable.
The order gave 6 days (including a weekend) within which to comply.
The order was what would in ordinary litigation procedure have been described as a "final order". It contained the following note,
"If you are a respondent failure to comply with this order may result in the whole or part of your notice of appearance being struck out before or at the hearing, or you may be debarred from defending altogether.
The Tribunal has power to vary or set aside this order but can only do so for good cause ..."
A second order was issued on 3rd January ordering the fourth Respondent on or before the 7th January 1991 to submit to the learned Chairman copies of the reports upon the Merseyside Police of HM Inspector of Constabulary (HMI reports) for the years 1984 to date - "such reports to be seen only by the Chairman and to be kept in secure custody". These were part of the documentation for which Mr Hand had indicated that he wished to make submissions based upon public interest immunity. The time limit under this order was 7th January and it was also a "final order".
On 4th January a further order was issued relating to the ACPO (Association of Chief Police Officers) files in connection with which a similar submission would be made, these were to be produced by 9th January.
In neither case had the Respondent been heard.
On 7th January 1991 the substantive hearing started. Miss Beale for the Applicant - we neither intend nor make any criticism of her - forthwith made an application for extensive further and better particulars against the fourth Respondent. There was no written application and Mr Hand, taken by surprise, had to deal with them as best he might. The hearing lasted some 2 days and was then adjourned to 11th. At that hearing Affidavits in support of the claim for public interest immunity privilege on behalf of the second, third and fourth Respondents were before the Industrial Tribunal. On this occasion the 4 senior police officers were represented by senior and junior counsel.
Between 7th and 16th January a number of letters were exchanged and further orders made against the Respondents. On 16th the decision of the Industrial Tribunal was sent to the parties dismissing the claim to "class" privilege (the hearing of the 11th). By this time the fourth Respondent was out of time for production to the Industrial Tribunal of the "privileged" documents and liable to be struck out.
As we shall emphasise later the order for production should not have been made in a "class case" until the opportunity to appeal had been given, but in view of the final order documents within the "privileged" files were disclosed to the Industrial Tribunal and the matter was thereafter dealt with, as best the fourth Respondent's legal advisers could manage, as if the claim was a "contents" claim. Mr Hand has told us that upon reflection, this was a mistake and that an appeal should have been launched at once, but we sympathise with the problems facing him in the light of these draconian orders made without an opportunity to address the Industrial Tribunal.
On 29th January Reasons were given for the decision from the hearing of 7th and 8th January. On 12th February 1991 Reasons were given in respect of the hearing of 21st and 22nd January and on 4th March Reasons were given for a decision in connection with the third appeal.
On 29th January a letter was sent to the Industrial Tribunal indicating that the Respondents would appeal and in due course during February and March Notices of Appeal were filed with this Court.
The outline of the history of these proceedings given above can give no real impression of the chaotic state of this case and our function in these appeals is not only to seek out and deal with the substance of the appeals but also within our powers under Paragraph 21 of the 11th Schedule of the 1978 Act to seek to give further directions for the orderly preparation of this case for trial.
In the present case the "casus belli", as Mr Hand describes it, was that the Applicant was not shortlisted in her application for the vacant post of Deputy Chief Constable of Northamptonshire. A man was appointed to this post. Her allegation is that this was a case of direct discrimination (S.1(1)(a) of the Sex Discrimination Act 1976) and she cites the various respondents. The reason why she was not shortlisted is because the existing practice is that no candidate should be considered for the post of Deputy Chief or Chief Constable unless he or she is supported by the Home Office, the Inspector of Constabulary and the Chief Constable of the Applicant's Force. None of these supported her for the Northamptonshire post nor was she supported in previous applications she had made. She alleges that in failing to support her candidature for Northamptonshire the second, third and fourth respondents discriminated against her in that they refused or failed so to do on the ground of her sex and that they would have supported her but for the fact that she was a woman, an allegation of direct discrimination. For the purposes of comparison she cites three senior officers, Messrs A, H, and M.
Not as a substantive complaint but as evidence supporting her main case - corroborative evidence - the Applicant alleges, first, that the second and third Respondents failed to support her applications for promotion to Deputy Chief Constable on the following occasions
"PARTICULARS OF APPLICATIONS
ForceAppliedRejected
Greater Manchester Police16.1.8729.4.87
Lancashire ConstabularyMay 1987 9.6.87
Merseyside PoliceJanuary 198817.2.88
Durham ConstabularyMarch 1988 7.4.88
Merseyside PoliceMarch 1989 8.5.89
Thames Valley PoliceJune 198914.7.89
First RespondentFebruary 1990 5.3.90
Cheshire ConstabularyApril 199017.5.90"
She also relies secondly upon the last three occasions as against the fourth respondent, the Chief Constable. In addition and thirdly against that fourth Respondent she claims that he has failed to allow her to have operational experience deemed desirable for further promotion by failing to appoint her to operational posts on two occasions namely in August 1989 and in January 1990. Finally, as against that Respondent she makes a broad and general allegation that over the whole of her period of service at Merseyside since May 1983 she has been treated by him less favourably than he has treated her three comparators in the evaluation of her performance, in the assessment of her character and in considering her suitability for promotion. He did so, she alleges, because she is a woman - an allegation of direct discrimination. She has chosen as her comparators for this last general allegation the same three senior police officers. One or more of these men are also cited as comparators in respect of her other claims.
By way of remedy she claims declarations and compensation against all the Respondents. As against the second, third and fourth Respondents she further seeks a recommendation that they prepare reports upon her suitability for the rank of Deputy Chief Constable without regard to her sex, for the purpose of further applications she may make for appointment to that rank; and yet further against the fourth Respondent a recommendation that he allocate her to an operational command within six months. How it is possible for an Industrial Tribunal to be in a position to make such recommendations will no doubt be the subject of argument if that stage of these proceedings is in fact reached.
In answer to the substantive allegation made, Mr Sharples seeks to support the criticisms and reasoning for deciding not to support her candidature. Although he was only confirmed in his present position in June 1989, he relies upon the substantial history covering the potential and behaviour of the Applicant over a period of time, during part of which he was Deputy Chief Constable.
In looking to the pleadings themselves a number of comments can be made. As we have already said the Originating Application is dated 31st May 1990 and the Notices of Appearance are completed by 28th June 1990. It is only by the end of May 1991 that full particulars have been given of the Notice of Appearance and although particulars of the Originating Application had been requested in January of this year they had not yet been given until after this appeal had started. Thus, initially we have found it difficult properly and fully to analyse the matters at issue between the parties. Some discovery has been given, but there exist a number of outstanding matters. There may have been orders for particulars with time-limits, if so, we are unaware of them. Where difficult questions over discovery are likely to arise it may be thought wise, on most occasions, if pleadings are closed before any specific discovery is ordered.
The first appeal raises the issue of Public Interest Immunity in respect of two classes of documents. It is raised both on a "class" and seemingly, although as we now understand the position erroneously, on a "contents" basis. The first class relates to the Association of Chief Police Officers (ACPO) files and the second to Police Disciplinary Files.
We shall have to refer also to Her Majesty's Inspectors (HMI) Reports. They form the subject of an order against the fourth Respondent. He only has summaries of such reports which he has produced. Mr Tabachnik has seen them and will be able to consider those summaries in detail. The original reports are in the custody of the Home Secretary. Against him no order has been made and we are therefore unable to deal with that issue - even by use of our powers under Paragraph 21 of Schedule 11 of the 1978 Act. However, we have been asked to give our views obiter upon a "class" claim in respect of those reports and in an attempt to help clarify these interlocutory procedures we will do so.
The second appeal relates to an order for particulars.
The third appeal relates to the question whether a Tribunal member should continue to hear this case because to do so might indicate that justice might not be seen to be done. A form of bias; we will deal with that matter quite separately.
To return to the first appeal - it must not be thought that in raising the issue the Respondents are seeking to do other than to carry out the duty cast upon them. This duty is made clear in the recent decision of the Court of Appeal on this topic. MAKANJUOLA v. THE COMMISSIONER OF POLICE FOR THE METROPOLIS AND ANR (The Times, 31st March 1989).
We shall need to return to this case later but for present purposes we would cite from the passage of the judgment of Bingham LJ where he says,
"Where a litigant asserts that documents are immune from production or disclosure on public interest grounds he is not (if the claim is well founded) claiming a right but observing a duty. Public interest immunity is not a trump card vouchsafed to certain privileged players to play when and as they wish. It is an exclusionary rule, imposed on parties in certain circumstances, even where it is to their disadvantage in the litigation. This does not mean that in any case where a party holds a document in a class prima facie immune he is bound to persist in an assertion of immunity even where it is held that, on any weighing of the public interest, in withholding the document against the public interest in disclosure for the purpose of furthering the administration of justice, there is a clear balance in favour of the latter. But it does, I think, mean:
(1) that public interest immunity cannot in any ordinary sense be waived, since, although one can waive rights, one cannot waive duties;
(2) that, where a litigant holds documents in a class prima facie immune, he should (save perhaps in a very exceptional case) assert that the documents are immune and decline to disclose them, since the ultimate judge of where the balance of public interest lies is not him but the court; and
(3) that, where a document is, or is held to be, in an immune class, it may not be used for any purpose whatever in the proceedings to which the immunity applies, and certainly cannot (for instance) be used for purposes of cross-examination."
The most succinct and convenient way of setting out an outline of the principles involved is by a long citation from the judgment of Ackner LJ in CAMPBELL v. THAMESIDE COUNCIL [1982] 3 WLR at p.81
"Despite the apparent conflict in the able submissions addressed to us, the basic principles which we must apply in the resolution of this dispute do not seem to me to be much in issue. These are:
1. The Exclusion of relevant evidence always calls for clear justification. All relevant documents, whether or not confidential, are subject to disclosure unless upon some recognised ground, including the public interest, their non-disclosure is permissible.
2. Since it has been accepted in this court that the documents for which the respondent seeks discovery are relevant to the contemplated litigation, there is a heavy burden upon the appellants to justify withholding them from disclosure: see in particular Conway v. Rimmer[1968] AC 910 and Reg v. Lewes Justice, Ex parte Secretary of State for the Home Department [1973] AC 388, 400H, per Lord Reid.
3. The fact that information has been communicated by one person to another in confidence is not, of itself, a sufficient ground for protection from disclosure in a court of law, either the nature of the information or the identity of the informant if either of these matters would assist the court to ascertain facts which are relevant to an issue upon which it is adjudicating: Alfred Crompton Amusement Machines Ltd v. Customs and Excise Commissioners (No.2) [1974] AC 405, 433-434. The private promise of confidentiality must yield to the general public interest, that in the administration of justice truth will out, unless by reason of the character of the information or the relationship of the recipient of the information to the informant a more important public interest is served by protecting the information or identity of the informant from disclosure in a court of law: per Lord Diplock, D v. National Society for the Prevention of Cruelty to Children [1978] AC 171, 218B. Immunity from disclosure was permitted in that case because the House of Lords recognised the special position of the NSPCC in the enforcement process of the provisions of the Children and Young Persons Act 1969, a position which the House saw as comparable with that of a prosecuting authority in criminal proceedings. It applied the rationale of the rule as it applies to police informers, that if their identity was liable to be disclosed in a court of law, this source of information would dry up and the police would be hindered in their duty of detecting and preventing crime.
4. Documents in respect of which a claim is made for immunity from disclosure come under a rough but accepted categorisation known as a "class" claim or a "contents" claim. The distinction between them is that with a "class" claim it is immaterial whether the disclosure of the particular contents of particular documents would be injurious to the public interest - the point being that it is the maintenance of the immunity of the "class" from disclosure in litigation that is important. In the "contents" claim, the protection is claimed for particular "contents" in a particular document. A claim remains a "class" even though something may be known about the documents; it remains a "class" even if part of documents are revealed and part disclosed: per Lord Wilberforce in Burmah Oil Co Ltd v. Governor and Company of the Bank of England [1980] AC 1090, 1111.
5. The proper approach where there is a question of public interest immunity is a weighing, on balance, of the two public interests, that of the nation or the public service in non-disclosure and that of justice in the production of the documents. Both in "class" objection and the "contents" objection the courts retain the residual power to inspect and to order disclosure Burmah Oil case [1980] AC 1090, 1134, per Lord Keith of Kinkel; pp. 1143-1144, per Lord Scarman.
6. A judge conducting the balancing exercise needs to know whether the documents in question are of much or little weight in the litigation, whether their absence will result in a complete or partial denial of justice to one or other of the parties or perhaps to both, and what is the importance of the particular litigation to the parties and the public. All these are matters which should be considered if the court is to decide where the public interest lies: per Lord Pearce in Conway v. Rimmer [1968] AC 910, 987, quoted by Lord Edmund-Davies in the Burmah Oil case [1980] AC 1990, 1129, Lord Edmund-Davies commented that a judge may well feel that he cannot profitably embark on such a balancing exercise without himself seeing the disputed documents and cited in support of that view the observations of Lord Reid and Lord Upjohn in Conway v. Rimmer [1968] AC 910, 953, 995".
To these principles we would add that the power to inspect should be used with extreme care and in any event should not in a 'class' case be exercised prior to giving the defendant or respondent an opportunity to appeal. In general it seems that this power is to be used when the certificate or objection raised is insufficiently detailed or explicit, see
AIR CANADA [1983] 2 AC at p.412 C-E, 419 G-H, 436 C-D
BURMAH at p.117 per Lord Wilberforce
CONWAY v. RIMMER at p.953D per Lord Reid.
NEILSON v. LAUGHARNE [1981] 1QB, 736, 748 per Lord Denning
Before considering the issue of public interest immunity, we must first consider the issues in this case upon the ordinary principles of discovery - RSC Order 24, Rule 15 and CCP Order 14.
Thus, the first question is relevance to the issues raised in the case.
The second question concerns the use of the word "necessary". CCP Order 14, Rule 8 reads -
"(1) On hearing of an application under rules 1, 2, 5 or 5A, the court, if satisfied that the discovery, disclosure, production or supply sought is not necessary, or not necessary at that stage of the action or matter, may dismiss or adjourn the application and shall in any case refuse to make an order if and so far as it is of opinion that discovery, disclosure, production or supply, as the case may be, is not necessary either for disposing fairly of the action or matter or for saving costs."
If the answer to both these questions is in the affirmative and not otherwise does the question of public interest immunity arise.
When faced with issues of public interest immunity we ask ourselves the following questions in the following order:-
1.Is the class of documents - regarded as a class - of such standing, importance and sensitivity that in balancing the two public interests namely the proper administration of justice and the proper and secure functioning of some public or quasi public body, the weight to be given is so strongly in favour of the latter that there can be no question of disclosure? This is only likely to be so on rare occasions.
2.If the position is not abundantly obvious and perhaps where the details and reasoning of the Affidavit or other evidence supporting the claim are insufficiently cogent, then in considering the question further it may be legitimate for a Judge to "peep" at a particular document for two purposes:-
(a) To decide whether that document is within the class - "properly in that file", and/or
(b) to decide the importance of that document to the issue. The document is examined as a whole - the type of document - and not as to the details of its contents, which would only be relevant to a "contents" claim. This would only arise where it is common ground that the document is disclosable but the public interest immunity claim is made as to part of its contents.
We remind ourselves that we are first of all considering a 'class' case. Thus, the issue of privilege in the present case will be applicable to any other form of litigation in which those files may be said to be relevant.
Finally, issues of confidentiality alone cannot be the subject of public interest immunity and NASSE` and later cases deal with the sort of considerations relevant when trying to preserve the confidentiality of information about those who are not party to the case. As between the immediate parties to a case it is difficult to see how confidentiality will become an issue and it is not a basis for claiming privilege.
We are considering three classes of documents - the ACPO file; the HMI Reports; and the Police Disciplinary File.
It is a truism that every case must depend upon its own facts and in the present case one of the most important factors so far as discovery is concerned is that the background is the functioning of a police force. The relevant employment was that within the Police Force.
This is a disciplined body with all that is implied by that expression. The public need to have confidence in the Police and the members of the Force need to have confidence in their superior officers and in a fair administration. It is surely no secret that there are elements in our society who seek to undermine the effectiveness of the Police by fair means or foul. As Mr Bennett has submitted once disclosure is made on discovery there is no guarantee - we used that word advisedly - that any part of the documentation will not find its way into the public domain. This background is emphasised in the speeches of CONWAY v. RIMMER (supra) per Lord Reid p.953F; Lord Morris p.952F; Lord Upjohn p.995D
ACPO Files
The ACPO files are those which are kept by the Police Authority upon each individual chief officer. There is a duty to keep them. A file will contain much which is confidential and much which could be of interest to the criminal community. For instance, in any future attempt to blackmail through knowledge of personal detail. Moreover there is a part of every chief officer's file to which not even he or she is entitled to have access.
The importance of the ACPO files is best emphasised from the affidavit of Mr Brian Hayes who is the Chief Constable of the Surrey Police and the First Vice President of the Association of Chief Police Officers. The President of that body was on leave at the time.
He deposes as follows -
"2.As the First Vice President of ACPO (a body which endeavours amongst other things to achieve the greatest possible degree of consistency in the way in which individual police forces treat matters of national importance), I can say on behalf of that body that it would not he considered to be in the public interest for the particular documents mentioned in paragraph 1 above nor the classes of documents to which they belong to be disclosed. That is also my view in my capacity as a Chief Constable.
3.PERSONAL FILES
Under Regulation 19 of the Police Regulations 1987, it is the duty of the Chief Officer of Police to cause a personal record of each Officer to be kept and it is the right of the Officer concerned to inspect such personal record. I understand that in the Merseyside Policy up to the rank of Superintendent the officer now has the right to see staff appraisals which may be made upon him or her. Further such Officers are entitled to see their computerised personal data sheets. Such officers have no right to see any other documents kept on them. In the case of Chief Officers, the documents which are kept in relation to them include their appraisals (from the rank of Constable to Superintendent), as well as documents relating to that Chief Officer's personal and professional life. Such documents may refer to past and present criminal investigations, strengths and weaknesses of that officer, analyses of decisions which that Officer has or has not taken in particular situations and the most personal details of that officer's private life. It will include medical information, recommendations for any honours, and documents relating to their security vetting. It will also include references which have been given in relation to those Officers.
4. ...
5.I share the concern of the Fourth Respondent as to the effect which public disclosure of such material might have on the free exchange of views between and about Chief Police Officers, and as to the fact that details of the personal files can form the basis for a public debate as to the fitness of particular officers, as to the merits of decisions made and as to the command structure of the police force in question.
6.I also share the concern of the Fourth Respondent that if information in relation to Chief Officers is made known to them or others in the course of any proceedings, then this could have an adverse affect upon their individual careers. It might undermine their self confidence or the confidence of others in them. It might prevent them from applying for other senior appointments if such information formed part of a public debate.
7.In my view it is essential that public confidence in the police and its senior officers be maintained. It is equally essential that Police Officers generally have confidence in their superiors; otherwise morale will be adversely affected. I believe that, as a class, these documents ought never to be disclosed."
We also understand from submissions made that the ACPO files may disclose the source of information about an officer both in his professional and his private life. During submissions an ilustration was given of the sensitivity of information of any kind relevant to an officer who was, had been or who might be involved in the Intelligence aspects of policing.
HMI Reports
These reports are made by Her Majesty's Inspector of Constabulary to the Home Secretary. Until 1990 they were always considered confidential in the sense of being secret, but recently there has been a change of policy and these annual reports are now laid before Parliament. A report may be some 100 pages long and is provided to the Police Authority. Sir John Woodcock, HM Chief Inspector of Constabulary, says this in his Affidavit,
"These reports are provided to police authority. The 1990 report will be the first such report to be a public document. It has not yet been published. The contents of the unpublished reports deal with the efficiency of various aspects of policing and it is not in the public interest for the strengths and weaknesses to be known, particularly by certain sections of the public."
By the provisions of Ss.28 and 38(2) and (4) of the Police Act 1964 the Inspectors have a duty to report. We were told by Mr Bennett that a particularly sensitive area of any of these reports would be that in which recommendation was made or decisions indicated of where police resources should be most used in the immediate future. This information would be of the greatest interest to organised crime.
Police Disciplinary Files
Disciplinary proceedings within the Police can form part of either or both of the following and the documents maintained in disciplinary files can be relevant to and can refer to both. The procedures could be said to be interlocking and overlapping, as indeed is the documentation.
The first type of procedure - the statutory procedure - takes place before the Police Complaints Authority under the provisions of Ss.83 -100 of the Police and Criminal Evidence Act 1984. These replace some provisions of the Police Acts 1964 and 1976.
The second - the internal procedure - takes place under the provisions of the Police (Discipline) Regulations 1985.
The Discipline Files will include statements made in the course of enquiries under either or both procedures; reports to the Director of Public Prosecutions and Crown Prosecutions Service and communication between those services and the Police; letters from the public, not in statutory form; notes of investigating officers; memoranda from Police Officers; attendance notes on telephone conversations with the public and other comments and advice. In referring to the public, it should be noticed that informers provide an important part of information reaching the police. Misinformation can seek to mislead and to undermine confidence.
The Industrial Tribunal relied upon the case of SCIENCE RESEARCH COUNCIL v. NASSE` and LEYLAND CARS (BL CARS LTD) v. VYAS [1979] ICR 921. These two cases concerned discovery where allegations of discrimination had been made in a selection process. The documents in dispute were confidential personal records of those with whom each of the applicants wished to draw a comparison. The objection to production was on the ground of confidentiality. In the Court of Appeal Leyland raised a new ground - that of Public Interest Immunity. Only Leyland took that point before the House of Lords and the SCIENCE RESEARCH COUNCIL the other Respondent argued against it.
So far as it is relevant for our present purposes the House of Lords decided two things - first, "There is no principle of public interest immunity, as that expression was developed from CONWAY v. RIMMER [1968] AC 910, protecting such confidential documents as those with which these appeals are concerned." Secondly, "There is no principle in English law by which documents are protected from discovery by reason of confidentiality alone."
Thereafter their Lordships went on to consider how confidential reports and references could be dealt with in cases where comparisons were being made. It is a little difficult to see quite how Public Interest Immunity was relevant in the NASSE` case and the background facts are very different from those in the present case.
In an employment case the nature of the employment and the degree of sensitivity of the class of documents are matters upon which evidence must be available and we ask ourselves whether the evidence is clear and sufficiently detailed. We also consider the threat to the candour of those reporting if these classes of documents are disclosed and the likelihood of the source of information continuing if secrecy is not maintained. We also consider whether there is a duty, indeed a statutory duty, to prepare the documentation.
So far as the HMI Reports are concerned within the realms of control and direction of the police as the instrument of the public authorities against the whole gamut of crime and security in its widest sense, we consider these reports to rank with departmental reports as in BURMAH and AIR CANADA and we do not consider that the balancing exercise is required. The importance to public security is obvious. Now that these are to be made public no doubt sensitive aspects will be omitted, but heretofore we see no reason to doubt the basis on which the claim is put forward. We also have doubts about the strict relevance of these reports and whether their production is truly 'necessary'. There is however one aspect to which we will refer later.
In considering the disciplinary files we find ourselves bound by authority.
The evidence is clear that the disciplinary documentation whether under statute or internally is almost inextricably entwined and should be regarded as a whole. Authority has clearly decided that "class" privilege applies. Without examining each case in detail we derive our guidance from the following line of cases -
NEILSON v. LAUGHARNE [1981] 1 QB 736 - CA
HEHIR v. COMMISSIONER OF POLICE [1982] 1 WLR 715 - CA
PEACH v. COMMISSIONER OF POLICE [1986] 1 QB 1064 - CA
MAKANJOULA v. COMMISSIONER OF POLICE (The Times - 31st March 1989 - A full transcript was available to us)
In this latter case the documentation for which "class" privilege was claimed was
"(a) all the witnesses statements taken in the course of the S.49 investigation;
(b) transcripts of the evidence given at the hearings before the Police Disciplinary Tribunal and the Disciplinary Appeals Tribunal;
(c) the formal decisions of the Police Disciplinary Tribunal and the Home Secretary's formal decision on the appeal; and
(d) the Discipline Book kept by the Commissioner relating to the second defendant."
The Court of Appeal held that these documents were the subject of "class" privilege.
We were also referred to the case of R v. COMMISSIONER OF POLICE - ex parte Hart-Leverton (The Times, 8th February 1990 - a full transcript was available to us). This was a decision of the Divisional Court, Watkins LJ and Nolan J, and deals with disciplinary matters which were again held to be privileged. We have also been shown a transcript of a judgment of Master Rose given in Chambers in the case of DONOVAN v. COMMISSIONER OF POLICE - 1986 D863, with the reasoning of which we would respectfully agree.
It seems to us to be well established that this class of document is the subject of Public Interest Immunity Privilege.
We find the decision over the ACPO files the most difficult. We do not consider this case to be one where the classes of documents are so clearly the subject of public interest immunity that the balancing exercises are unnecessary and "the scales can remain in the cupboard". It seems to us clear that there is a balancing exercise to be carried out where they are concerned. The files may be of no sensitivity where the basic record of police service of an individual is concerned. The documents dealing with positive vetting must remain secret as indeed, in our view, should those documents which deal with the private lives of the individual. We would be minded therefore if this matter was not appealed to order production and ourselves to inspect those personal police records. It may be that the personal records of service include recommendations for promotion and assessments for suitability of promotion in which case it may not be contrary to the public interest for those to be disclosed. These are matters which we would consider. We would sever the basic police records from the remainder and constitute them as a separate class or file.
We are, however, unfortunately faced with the fact that production has already been ordered and indeed much of the documentation read by the lay members of the Industrial Tribunal, but we do not accept that this invalidates the claim to "class" privilege - see R v. COMMISSIONER OF POLICE, ex p Hart-Leverton (supra) and BURMAH per Lord Wilberforce p.1111G. During the hearing of this Interlocutory Appeal we directed that the relevant ACPO files should be placed in our custody and they have been sealed and held in safe custody ever since.
To summarise therefore we decide that the HMI reports and the disciplinary files are privileged and that the positive vetting documentation and the documents relating to the private lives of the Chief Police Officers are also privileged but that we would be minded to look at the personal police records of those police officers to see whether they in fact could be treated as a separate class of which production should be ordered for our inspection.
We turn to the actual reasoning of the Industrial Tribunal in each of these matters and remind ourselves that these are interlocutory appeals. Thus before we are entitled to interfere either the Tribunal must have erred in law or the decision in its discretion falls foul of the WEDNESBURY approach. We examined the principles in ADAMS v. WEST SUSSEX COUNTY COUNCIL [1990] ICR 546.
The first appeal - the claims for "class" privilege is against the judgment sent to the parties on 16th January 1991 and relates to the hearing of 11th January. A number of points are made.
First it is said that this Tribunal erred in deciding that because this was a discrimination case public interest immunity must be considered upon other than the established and accepted principles. This was, in our judgment, an error of law. Secondly, that almost total reliance was placed upon NASSE`. That was a case of confidentiality and public interest immunity played a very small part. Insofar as reliance was placed upon the speech of Lord Scarman, it must be noted that his views were somewhat different from those expressed in the other speeches. Thirdly, it is said that a quotation on page 2 of the decision is not a quotation. This may have been an error, but it must clearly be preferable to take the actual wording of the speeches. Paragraph 7 of the decision is also criticised. The first sentence reads, "The question of whether it is necessary for confidential documents to be diclosed is a matter for the tribunal, and to enable that decision to be made they must see them." This shows a misunderstanding of the true basis of public interest immunity and the law as we have understood it and referred to it in this judgment. The last main criticism is that the Affidavits giving the grounds upon which the "class" claims were made were only referred to so far as the HMI Reports were concerned and not in connection with the ACPO or the Disciplinary files. We agree with these submissions and would add that paragraph 10 indicates in our judgment an erroneous approach based upon confidentiality and NASSE`. No other authority is cited.
Looked at in the round or in detail, we are satisfied that the decision discloses errors of law.
The second appeal is against the decision or order sent to the parties on 12th February 1991 and relates to the hearings on 21st and 22nd January. This refers to particulars already given by the Fourth Respondent under Paragraphs (9), (10), (20), (21), (24), (26) and (30). The actual form of the order can be seen at pages 3 and 4 of the decision.
The first criticism made is that the order deals with documents not particulars. Secondly, that the further pleadings served during the currency of this appeal have largely provided any particulars needed; that the order as indicated is vague and imprecise; that much of the identifiable documentation is privileged. We agree with these general criticisms. It has also become apparent to us during the course of this appeal that very little indeed remains between the parties and that once inspection of documents has taken place this whole exercise may well be proved to have been unnecessary and expensive both in time and money.
In both these appeals decisions were reached before close of pleadings and inspection of documents. We are not satisfied that all the documents sought are "relevant" or "necessary", but could not ourselves reach a decision on this until this case has been put into some order.
How then should we deal with these two appeals? The orders in each case together with the two orders of 3rd June and that of 4th June 1991 must be set aside. We shall order that all parties swear affidavits of documents, but we wish to make it clear that in so far as we have held "class" privilege, there need be no reference to individual documents within those classes. Inspection of documents will follow. We would suggest that no further applications are made for particulars or specific or further discovery until after inspection, when if necessary, further applications can be made. We would have thought that the issues are now abundantly clear and that indeed the evidence on both sides has been substantially disclosed. We would welcome the assistance of counsel in drawing up the details of such an order.
This case however has an unusual feature in that the Applicant was herself responsible for the Department in the Merseyside Force dealing with discipline and is therefore familiar with the contents of the Discipline Files. It seems to us therefore that in an attempt to assist her it may be possible for her to identify any particular document or documents and thereafter for such documents to be given individual consideration by the Respondents to see whether they could not be disclosed. We readily understand the problems in such a course - not least that of waiver, but we offer it as a suggestion.
We also understand that the only part of the HMI Reports which the Applicant seeks is that referring to the Department for which she was responsible. Here again in order to help her, consideration might be given to our comment above.
In neither case however would we suggest that any step be taken until the pleadings are declared closed and normal discovery and inspection has taken place. Until that time "relevance" and "necessity" under the Rules will not be sufficiently discernible.
The Third Appeal arises in circumstances which we hope and believe are unusual and exceptional. This, like the others, is an interlocutory appeal against the refusal by the Industrial Tribunal to replace one of its members, a Mr Drayton, at the request of Mr Hand appearing for the Chief Constable of Merseyside.
It arises from the decision sent to the parties on 4th March 1991 and relates to the hearing on 7th January of that year. An oral decision had been given on that day. We turn first to see what guidance there is in authority for the position and function of lay members of Tribunals. The position of a judge sitting as an arbitrator under the Workman's Compensation legislation was considered in REYNOLDS c. ASSOCIATED TIN PLATE CO LTD [1948] 2 All ER 140 by a strong Court of Appeal Lord Green MR and Cohen and Asquith LJJ. The view taken was that a judge was entitled to use his local knowledge - "that which everyone in the district would have known" - and to apply it to the evidence, but that it was the evidence which was needed and by inference that that was not something which the judge could supply.
The position of a doctor sitting as a magistrate was considered in WETHERALL v. HARRISON [1976] 1 QB 773. That was clearly a case of a "judge" of fact applying his professional experience to his findings of fact and his assessment of the evidence.
Neither of these cases suggest that the judge of fact should seek his own evidence. Within this jurisdiction there is further assistance. The first case is DUGDALE AND ORS v. KRAFT FOODS LTD [1977] ICR 48. For our present purposes it is sufficient to quote from the judgment of the court given by the learned President, Mr Justice Phillips at p.54F where he says -
"It is necessary to note this one final matter. At the end of paragraph 10 of the reasons the industrial tribunal say:
"In this matter, as in many other aspects of our decision, our unanimous view is reinforced by the invaluable shop floor experience of our lady member who works in a similar food manufacturing industry to that of the [employers]."
It is suggested that this indicates a wrong approach, and that the decision is based on evidence improperly obtained. The members of industrial tribunals are appointed because of their special knowledge and experience, and we have no doubt that they are entitled to draw upon it in playing their part in assisting the tribunal as a whole to reach a decision. The main use which they will make of this knowledge and experience is for the purpose of explaining and understanding the evidence which they hear. Certainly, they are entitled to use their knowledge and experience to fill gaps in the evidence about matters which will be obvious to them but which might be obscure to a layman. More difficult is the case where evidence is given which is contrary to their knowledge and experience. If such an occasion arises, we think that they ought to draw to the attention of the witnesses the experience which seems to them to suggest that the evidence given is wrong, and ought not to prefer their own knowledge or experience without giving the witnesses an opportunity to deal with it. Provided that this opportunity is given there seems to us to be no reason why they should not draw on their own knowledge and experience in this way also. But it is highly desirable that in any case where particular use is made by an industrial tribunal of the knowledge or experience of one or more of their members in reaching their decision this fact should be stated, and that particulars of the matter taken into account should be fully disclosed."
That case fell to be considered and applied in HAMMINGTON v. BERKER SPORT CRAFT LTD [1980] ICR 248. That division of this Court was presided over by Mr Justice Talbot. This Court considered all the three cases to which we have referred and before turning to them said this at p.250D,
"We would like to make it clear at the outside that the knowledge, experience and expertise of a member of an industrial tribunal is plainly something which should play its part in the assessment of the evidence and in its interpretation. This is in part why the members are appointed; but there are limits."
After considering those authorities the judgment continues,
"The essence, therefore, of the use of such specialised knowledge and information and experience is that it is to be used, as can be seen from all these authorities, for the purpose of weighing up and assessing the evidence and if necessary interpreting it. What must not be done is using that knowledge to substitute for the evidence given in court that derive from that knowledge; nor must it be used for producing some factor of evidence which is not evidence before the court with which the parties have not had an opportunity of dealing".
This in our judgment is the true ratio of HAMMINGTON.
This Court also gave guidance in HAMMINGTON of the way in which specialised knowledge should be handled. At p.253E it says -
"The essence of the employee's case was that he had not succeeded, though his endeavours had been fairly substantial. In obtaining work anything like commensurate with that which he had been employed in when working for the company. The industrial tribunal found, as we have indicated, that they did not accept that £5,000 was the most he could expect to earn in the immediate future.
It seems to us beyond doubt that in order to make that finding the industrial tribunal must have paid attention to the expert knowledge of facts which were held by Mr Apter. If that were the case not only was it necessary to indicate, as was properly done here, that Mr Apter was a specialist in this field and therefore had good knowledge of this particular branch of industry; but it was necessary to go further than that, according to the authorities, and to have brought the facts to the attention of the employee, or, in this particular case, his counsel, so that if they were facts relied upon then counsel could have dealt with them, or if necessary, as is submitted in this case, if unable to deal with them, he could have asked for an adjournment. It was not put to counsel in that way."
The primary function of a lay member of the Industrial Tribunal is to find facts having listened to any direction in law given by the learned Chairman and to reach a decision. It is at that stage that their industrial experience may be of assistance to them and to the learned Chairman. They have often been referred to as "the industrial jury" and it is clear that their primary function is as jurors, finding the facts. This they must do upon the evidence and on many occasions this Court has been asked to consider the evidence before an Industrial Tribunal and to consider whether there was evidence upon which the findings of fact could be made. If jurors or lay members make investigations of their own it is impossible for either party to know precisely what questions were asked or what information was given or the precise circumstances of the experience or "evidence" obtained by that juror or lay member. It is most important that only the evidence before the Tribunal should be the basis of findings of fact.
Unlike Industrial Tribunals where in most interlocutory matters a Chairman is entitled and usually does sit alone, the President of the Employment Appeal Tribunal has no power to do so when hearing an interlocutory appeal. There are very many cases where it would be extremely useful to be able so to do as the issues are short and mainly purely legal. However in this appeal I have been greatly assisted by and indebted to the lay members for their assistance and advice. Miss Holroyd has been and is a member of Industrial Tribunals for England and Wales and has served in the Eastern Region for some 17 years; she has been a member of this Court since 1986; Mr Lewis has been a member of this Court since 1984; each has therefore sat here with a number of former Presidents and Judges.
The background facts are as follows. The full Tribunal sat on 19th December 1990. The members were Mrs Butler and Mr Drayton. By that date a substantial amount of documentation was already in existence including the questionnaires and some answers.
On Saturday 5th January 1991 Mr Hand was in consultation with his client, when information was forthcoming that Mr Drayton had since 1986 been employed in the Personnel Department of the Greater Manchester Police Force as an Equal Opportunities Officer. Subsequently, but before the hearing of the substantive case started on 7th January, information was received by Mr Hand that at some time earlier - uncertain, but after the case had started - Mr Drayton had interviewed the Deputy Chief Constable and an Assistant Chief Constable of the Greater Manchester Force.
On the morning of 7th January Mr Hand raised with the Tribunal the desirability of Mr Drayton continuing to sit. Apart from the fact that the information had only very recently been in his hands, this was clearly a matter appropriately raised at the first opportunity and before the substantive hearing had started.
We have agreed notes of what took place.
As background to his argument Mr Hand pointed out to us the fact, which would have been known to the Industrial Tribunal, that it was clear that the Applicant was going to seek to adduce voluminous "expert" evidence that there was general widespread sexual discrimination in Police Forces throughout this country and that it was therefore more likely that she had been the subject of sexual discrimination.
In his initial submissions to the Tribunal Mr Hand raised a number of matters:- 1. A surprisingly large number of Chief Police Officers whose names would be mentioned during the case and at least one of whom would be giving evidence, had served in senior posts with the Greater Manchester Force. He identified them by name and their importance in the case.
2.Their reputations and other facts known about them would almost certainly be known by Mr Drayton.
3.Mr Drayton had obtained the interviews to which we have already referred for the purpose of the present case and not in the ordinary course of his duties.
4.There was therefore a clear danger that Mr Drayton in considering the case might apply his own knowledge obtained in the interviews rather than relying upon the evidence given at the hearing before the Tribunal.
The agreed note shows that Mr Hand's submission ended by emphasising that it was made "with no intention of being discourteous".
The Tribunal retired and on its return Mr Drayton stated that he had not discussed any matter relating to this case with anyone; that it was his integrity which was "on the line"; and that the application was "an affront to his integrity". He expressed the view that in order to ensure there is fairness in the system he believed that the background history was relevant.
As a matter of comment, it seems to us that this latter statement indicates that he was seeking information relevant to the present case.
Mrs Butler expressed her view that Mr Drayton "can do the case".
The learned Chairman is noted as saying the following:-
"The fact that an application such as this was made does not take me by surprise. I considered the matter very carefully before embarking upon the proceedings. This is a very special type of case. I felt that it would be useful to have someone on the panel with a background of special knowledge. I support the contention that knowledge of the general nature is not uncommon. These enquiries were made on a neutral basis. It was a matter of seeking general information. It did not relate to any of the individuals. I take the view that the case can proceed."
Mr Hand then addressed the Tribunal further and a passage from the Notes give the gist of his argument -
"But the issue is whether there is a reasonable suspicion of bias, not a malevolent partiality. The question is whether the case is going to be decided in such a way that both parties can say we are entirely satisfied that the matter has been determined on the evidence and not on extraneous matter. The matter is worse because there is now an element of resentment that this application has been made. That follows from what was said and how it was said."
The Industrial Tribunal maintained its decision.
Before us Mr Hand makes a number of points which now appear from a reading of the agreed notes and summarises his submissions thus:-
(a)The Applicant's primary case is that Mr Sharples had discriminated against her by not approving her for a number of posts - in particular the Northampton post. Others were approved including the present Deputy Chief Constable at Manchester, who was interviewed by Mr Drayton.
(b)Mr Drayton may have a view on the reputation or activities of many police officers involved in this case - some of whom had been approved for promotion when the Applicant had not.
(c)The same comment may be made of one officer who is a witness and was preferred to the Applicant for an operational post.
(d)Unlike any of the cases cited to us this application and objection is made at the start of the substantive case and Mr Hand submits that the stricter test of bias may not necessarily be the correct one. That situation might well have arisen in the case of R v. NAILSWORTH LICENCING JJ ex parte BIRD [1953] 1 WLR 146. In that case a member of the Licencing panel had signed a petition and the court used the word "undesirable" of her having sat. The basis of the decision was that the objection was not made at the time and Mr Hand points out and submits that had the objection been made at the start of the case it is almost certain that Mrs Alice Waine would not have sat nor have wished to sit. Our attention was drawn to a recital of the facts where it says, "By an Affidavit Mrs Alice Waine admitted signing the petition some weeks before the hearing, but stated that when she signed it she did not expect to sit on the Bench to hear the application; that she was asked to sit at short notice and was not told that licencing matters were to be considered: and that she did not remember having signed the petition until objection was taken after the decision had been announced." As we will indicate later we are inclined to agree with this submission.
(e)The selection of Mr Drayton by the Chairman was an exceptional, unusual and undesirable step.
(f)Unknown to the parties Mr Drayton had been selected not because he was from an ethnic minority as might have been the case if this was a racial discrimination case, but because of his "specialist" knowledge. This case does not involve special knowledge. In this case the fact that he is an equal opportunities officer and secondly that he is employed by the Manchester Police constitutes specialised knowledge - such a background is one which is open to objection.
(g)It is unusual to pick a member for a Tribunal because of his type of employment. There are two panels of members of Industrial Tribunals - one from each side of industry. These are the source from which the two lay members are drawn and whereas it may be thought to be desirable where possible to have a woman member where sex discrimination is involved and a member of an ethnic minority in cases of racial discrimination, that is as far as any deliberate selection should go. The wider the choice the better.
(h)This was not a "special" case save in its complexity and weight.
(i)Lastly, Mr Hand asks us to view with concern the statement made by the learned Chairman taken together with the fact that the matter was not raised with the parties at the first hearing on 19th December 1990 and the question asked whether in the circumstances any objection was raised.
Mr Tabachnik submitted -
(a)that a member of a Tribunal should not be disqualified simply on the basis that a party had "no confidence" in that member. He quoted AUTOMOBILE PROPRIETARY LTD v. HEALEY [1979] ICR 809;
(b)that it was a power to be exercised sparingly and only for a cogent reason;
(c)that the mere fact that Mr Drayton had since 1986 been employed as an equal opportunities officer by the Manchester Force was not of itself sufficient to ask him to step down;
(d)that if a member were to step down merely because he knew someone who might be called as a witness, it would make it exceptionally difficult to constitute tribunals;
(e)that the fact that Mr Drayton may have been employed by the Manchester Police Force at the same time as many senior police officers involved in this case, was not a sufficient connection to make his continued presence undesirable although he conceded that it was "unwise" or "ill-advised" or "undesirable" or "unfortunate" that Mr Drayton had carried out his interviews;
(f)that before deciding whether Mr Drayton should step down one would need to know the content of each interview and the precise involvement of each officer concerned;
(g)that if later during the hearing Mr Drayton intended to rely upon information which he had obtained from his own enquiries rather than or in addition to the evidence in the case, then that matter could be raised in accordance with the procedures suggested in such cases as HAMMINGTON;
(h)Lastly he submitted that there was no risk that Mr Drayton could feel antagonistic to the Respondents as his reaction to Mr Hand's first submission was natural in view of the robust way in which that submission had been made. We have heard Mr Hand's advocacy - he refers to his own style as "measured" and we accept that adjective.
It is common ground between both sides that the proper approach to the issue of bias is that justice must not only be done but must be manifestly seen to be done. There must be no appearance of bias. The test is a question of mixed fact and law; would the reasonable and disinterested observer present at the hearing, not being a party or associated with a party to the proceedings, but knowing the issues, reasonably gain the impression of bias? The reasonable and disinterested lay observer has been likened in other aspects of the law to "the man on the Clapham omnibus" or the "officious bystander".
Mr Hand, as we have observed, submits that when considering at the start of proceedings whether a member should continue to sit, the use of the word "bias" is perhaps not entirely appropriate, although the notion expressed above must form the basis of the correct approach.
We agree and would rephrase the question thus - Could the reasonable and disinterested observer present at the hearing, not being a party or associated with a party to the proceedings but knowing the issues, reasonably take the view upon the facts and circumstances unfolding before him that continued presence of the member was undesirable in that a party could reasonably feel that injustice might occur during the hearing.
Both lay members emphasise that it has always been the practice in Industrial Tribunals and in this Court for disclosure to be made of any aspect of a member's connection with the case which if known might give rise to any suspicion that justice might not be seen to be done; and to which objection might be taken.
I would like to add my own weight to the view of the industrial members sitting with me, that when considering the desirability of a member standing down at the start of a case a rather less stringent test should be applied and unless the application is irresponsible, frivolous or wholly without content, it is infinitely preferable that an Industrial Tribunal should, where possible, be reconstituted so as to avoid any feeling of injustice. At that stage it is inevitable that one would be looking at potential problems which could arise and if there is a real possibility that they may do so, it is surely preferable that they should be avoided.
Miss Holroyd emphasises that before any sitting, a member of an Industrial Tribunal is expected to raise any aspect of the case on the pleadings which might in any way cause concern and, for instance, she would decline to sit where the respondent employer was a company in direct competition with her own employer. Secondly, there is no separate panel of lay members who sit on discrimination cases. In her experience, seminars for lay members are held about twice a year which the members are expected to attend and at which the Regional Chairman discusses current topics of employment law including discrimination issues. Discrimination law is always carefully explained by the presiding Chairman. Thirdly, she emphasises that Industrial Tribunals are generalist in their structure and members are asked to serve irrespective of the type of case involved, although it is thought advisable, where possible, for a woman or a member of the ethnic minority to sit on discrimination cases.
During argument Mr Lewis cited some instances which had arisen in this Court and emphasised that there has always been the tendency to give opportunity for objection whenever it is thought that it could properly be made. It might be said that we are too sensitive and perhaps too ready to make enquiries whether any objection is to be put forward. Personal knowledge, whether about the parties or the witnesses would, in his view, cause him to offer to stand down without hesitation.
We all feel that objection is far more likely to be raised in these difficult cases if members of Tribunals are specially selected rather than being appointed to sit on a random choice from the two panels. It is the familiarity and understanding of the principles of the law and practice in this particular field which is important and a parallel might perhaps be drawn with the family panels of magistrates. It is the tendency to restrict the choice that causes the problems.
We are aware that anxiety has been expressed by the Equal Opportunities Commission and the Commission for Racial Equality about the training of Judicial and lay members who sit in discrimination cases and it may well be desirable for increased emphasis to be placed upon the difficulties and complexities of discrimination law during seminars or Judicial Studies courses. However, unless a specific panel could be so large as virtually to include almost all the lay members in the region we deem it undesirable that there should be a small pool from which lay members hearing discrimination cases are chosen. The preference is clearly to increase the training and experience of lay members in all aspects of the jurisdiction rather than having separate panels. This must be the approach which is best calculated to maintain confidence in the total impartiality of Tribunals.
In its decision in paragraph 7 the Industrial Tribunal records part of the submission for the Applicant as follows,
"His final, and in our view, telling point was that it was perhaps unusual that it was the fourth respondent who was objection because the people to whom Mr Drayton had spoken were police officers and, if anybody was to complain, then it ought to be the applicant."
The core of the reasoning of the Industrial Tribunal is to be found in paragraph 8 where it says this -
"There needs, of course, to be the greatest possible assurance in the minds of everyone concerned, that justice will be done, but equally for a Member of a Tribunal to dis-entitle himself or herself from sitting on a Tribunal of this kind, because of an application such as the one now made, is not a step to be taken lightly or hastily. That has been emphasised more than once by the higher Courts. The Chairman made the point that the Tribunal started from the point, made by Mr Tabachnik, that in all the circumstances if there is to be a complaint then it could more properly or was more likely to come from the applicant. It had not done so. Mr Drayton had made it quite clear that any enquiries which he made were on an entirely impartial and impersonal basis and for the purpose of getting an appreciation of operational Policing. The enquiry was not made in relation to any particular individual and most certainly not the applicant in this case. That, so far as the Tribunal was concerned, disposed of what could have been seen as the cornerstone of the complaint. Faced with the criticism of what he had done, the Chairman felt that Mr Drayton had explained his position very clearly. Understandably, with some force, but that should not, the Chairman felt, be taken as resentment or antagonism on his part. The Tribunal did not see themselves as a jury in the ordinary sense, a suggestion which had been made by Mr Hand in the course of argument. It was not felt to be a good comparison. The way in which lay members are selected and appointed, because of their special knowledge and experience, puts them in a quite different position. The point was made that Mr Drayton had proceeded along the lines referred to in Harvey, on the basis that he wished to add to his existing specialist knowledge. The Chairman gave an assurance that if, in practice, any difficulty did arise then the guidance afforded in the case of Hammington v. Berker Sportcraft Limited would, of course, be followed. So far as the question of any personal knowledge of anyone who might be called as a witness in the proceedings was concerned it was, the Chairman felt, entirely clear that that only amounted to contact in working relationships and that in no sense was there any close social or personal relationship of any kind. The Tribunal returned to the question of what would the reasonable observer think, faced with the information which the Tribunal now had. Would he be concerned Mr Drayton would not do justice to one or other of the parties? The concluded view of the Tribunal is that that would not be so. The decision of the Tribunal was that the Tribunal as constituted should proceed with the hearing of the case."
We are quite unable with respect, to understand the importance or indeed the relevance of what is considered to be the most important point by this Tribunal nor indeed, despite the valiant attempts by Mr Tabachnik, do we see that it has any relevance whatsoever in a case where this problem arises. Either side could make the objection. The Tribunal clearly directed itself solely on a passage from Harvey's "Industrial Relations and Employment Law" and did not themselves, so far as we understand it, refer to any authority. This was confirmed by counsel. Had the Tribunal referred to those authorities to which we have referred and directed themselves in accordance with those authorities, it seems to us unlikely that they would have reached the decision which they did. Their approach was, in our judgment, flawed and amounted to an error of law. However, if we are driven to an application of the WEDNESBURY rules we take the view that this decision was plainly wrong.
Applying the approach of the disinterested and impartial layman the two industrial members sitting with me express the view that the procedures which have come to light in the present case are wholly unacceptable.
We find ourselves unable to accept Mr Tabachnik's submissions and will deal with some of them specifically. If there is to be a general case made of sex discrimination in police forces, it seems to us that Mr Drayton in his appointment is bound to be affected by any decision in this case. If at a later stage during the case Mr Drayton were to wish to rely upon some information obtained by him and this seems to us quite a possibility, then it is difficult to see how a direct conflict of evidence between him and a witness could be resolved. "You said this" - "I did not". This is not a question of experience, it is a matter of getting information. Where is this to stop? How can one decide the contents of each interview? Who is to decide? How is that information to be transmitted to the parties? Is Mr Drayton to be called as a witness? Moreover, in the light of what appears from the agreed notes of the hearing of 7th January, it would only be human nature if Mr Drayton now felt some antagonism towards the Respondents. In particular we disagree with the suggestion that the procedures which we have suggested will cause any problems in constituting Tribunals.
We prefer the arguments of Mr Hand.
It is clear that Mr Drayton should not continue to sit. However, the lay members go further taking the view that in looking at the whole picture it will be in the best interest of justice if a new Tribunal were constituted. The appropriate documentation could be prepared and exchanged well in advance of proceedings and no member would have seen documents which perhaps should best have remained unseen.
This Tribunal is agreed that there is no criticism of Mrs Butler and no appeal so far as the learned Chairman is concerned, but the views of the lay members are clear and it may be that the learned Regional Chairman will wish to consider this whole matter and to discuss it with the present Chairman.
This appeal will therefore be allowed and the direction will be given that Mr Drayton should not continue to sit as a member of this Tribunal. We will be grateful for the assistance of counsel as to the form of order.
Leave to appeal.