(1) Paul Carter (2) Paul Dugdale (3) Iain Goulding (4) Stephen Hodgson (5) Stuart Jardine (6) John Robson (7) Robert Stafford (8) Duncan Watson (9) John Whittle v the Chief Constable of the Cumbria Police
| Jurisdiction | England & Wales |
| Judge | Mr Justice Tugendhat,MR JUSTICE TUGENDHAT |
| Judgment Date | 15 May 2008 |
| Neutral Citation | [2008] EWHC 1072 (QB) |
| Docket Number | Case No: 6MA 90613 |
| Court | Queen's Bench Division |
| Date | 15 May 2008 |
[2008] EWHC 1072 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand,
London, WC2A 2LL
Before : Mr Justice Tugendhat
Case No: 6MA 90613
Charles Apthorp (instructed by Andrew Dobson) for the Defendant
Gavin Millar QC (instructed by Russell Jones & Walker) for the Claimants
Hearing dates: 8 May 2008
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The nine claimants in these proceedings were in 2000 (and all except the fifth, seventh and ninth claimants still are) serving police officers of the Cumbria Constabulary at Headquarters CID, either in the Special Branch (“SB”) or Force Crime Squad (“FCS”).
The claim they bring against their Chief Constable, the Defendant, arises out of the abandonment or dismissal in April and June 2003 of various charges made against the claimants in proceedings pursuant to the Police (Conduct) Regulations 1999 SI 1999 No 730 (“the PCR”). It is alleged that there was misfeasance in public office by named officers for whose conduct the Defendant is alleged to be vicariously liable. The named officers are Assistant Chief Constable Twigg, Chief Inspector Harrison and Assistant Chief Constable Crompton.
In other words, the claimants' case in the action is that the misconduct proceedings were unlawfully brought. And in the application before me the Defendant's case is that these misfeasance proceedings should be struck out and disposed of summarily.
The first basis upon which the claim is put is that it was unlawful to continue the investigation without evidence. The unlawful acts alleged are the service under Reg 9 of notices of investigation without evidence, and the continuance of the Operation Pool investigation past the point where the investigating team had tried and failed to find any evidence of the alleged private use of police vehicles.
The second basis upon which the claim in misfeasance in public office is put is that it was unlawful to refer of the cases to a hearing pursuant to Reg 11 without there being evidence of misuse of police vehicles.
As to the allegations in relation to the expenses, the alleged misfeasance is the decision to refer those allegations to a hearing in circumstances which are alleged to disclose an inconsistency of treatment, in that numerous other officers had engaged in the same practice as that which is the subject of the charges.
OPERATION POOL
These proceedings arise out of an investigation internal to Cumbria Constabulary known as Operation Pool. It related to the use of unmarked police vehicles by the claimants to travel to and from their homes. Operation Pool commenced in June 2000. On 17 October 2000 Assistant Chief Constable Twigg signed a total of 21 notices of investigation under the PCR Reg 9 against all the claimants except the sixth claimant, relating to alleged private use of police vehicles. On 8 May 2001 a similar notice was served on the sixth claimant. Also in May 2001 further notices under Reg 9 relating to expense claims were served on the third and fifth claimants.
Initially consideration was given to a possible prosecution of the claimants. But on 5 September 2001 the Crown Prosecution Service (“CPS”) advised that criminal proceedings should not be instituted either in relation to alleged misuse of police vehicles or the expense claims.
In April 2001 ACC Twigg had been promoted to Deputy Chief Constable and she was replaced as Assistant Chief Constable by ACC Crompton. Until 20 September 2001 DCC Twigg had been the supervising officer and on that date she was replaced in that capacity by ACC Crompton.
The claimants allege that between 20 September and 21 November 2001 a decision was taken by ACC Crompton that the cases against the claimants that had been the subject of the various Reg 9 notices be referred to a hearing before a misconduct panel pursuant to Reg 11.
A hearing commenced on 23 April 2003. By that time the claimants had been served with a total of 104 misconduct charges, of which 98 fell into two groups. The first group, consisting of 65 charges, related to private use of police vehicles. Each claimant was subject to one or more of these charges. An example of a charge (all of which are in substantially similar form) reads as follows (this is a charge against the third claimant):
“Being a member of the Cumbria Constabulary, you failed, without good and sufficient cause, to obey a lawful written order, namely paragraph 1.1(e) of Force Order 21/99, in that on 8 th February 2000 you used a vehicle owned by the Cumbria Constabulary, namely [the make and registration number are given] for your own private use and not whilst you were conducting official force business”.
Force Order 21/99 provided, so far as material, that:
“… force policy states that all police owned vehicles are only to be used whilst conducting official force business. On no account must any force vehicle be used privately …”
The second group, consisting of 33 charges, related to expenses. There were 22 charges against the third claimant and eleven against the fifth claimant. An example of a charge (all of which are in substantially similar form) reads as follows (this is a charge against the third claimant):
“Being a member of the Cumbria Constabulary, you failed, without good and sufficient cause, to obey a lawful written order, namely paragraph 6 of the Notes on Completion of Form T9, in that on 25 th April 2000 you submitted a claim for mileage allowance in respect of a journey of 150 miles from Barrow in Furness to Preston and from Preston to Barrow in Furness on 15 th February 2000 when this was a journey out of the County of Cumbria”.
In addition there were two charges against the fifth claimant arising out of his conduct during the investigation and four charges against the third claimant arising out of the submission of a particular expenses claim form.
On 24 April 2003 the presenting side withdrew the 33 charges against the third and fifth claimant in relation to expenses. On 29 May 2003, at the close of the case against the claimants, submissions were made to the panel. On 3 June 2003 the panel dismissed all of the remaining 51 charges.
On 3 June 2003 ACC Smith explained the course that the Panel had adopted in relation to the charges relevant to these proceedings in the following terms:
“[The Home Office Guidance on PCR] does not say that we are bound by criminal case law. It does not mention Galbraith, nor indeed half-time submissions; it does not even refer to the notional position of the close of the presenting side's case.
We have asked the question: do we find, at any stage, that there is an evidential basis on which the hearing should or should not continue in relation to an issue of conduct. Let us be very clear what happened at the end of last week. We heard and read a submission of no case to answer on behalf of all the officers, and we reflected the agreement of both sides by agreeing to apply the Galbraith principles. We chose to do so in order to facilitate our responsibilities to conduct a hearing in accordance with the principles of natural justice and fairness. We chose to do so, but we are not bound to do so…
The hearing will end with this judgment, with no further action in connection with any of the allegations against any of the officers…
In relation to vehicle usage, it has been suggested that our starting point is to examine each occasion of use; we disagree. Whether a camera or sighting proves or suggests use of a police vehicle is secondary. We know police officers use police vehicles to and from home on occasions. Where is the evidence that officers used vehicles for private use? For this allegation to be backed by any evidence, however tenuous, it must be shown that there was an instruction which the officers were disobeying. Such instructions as there were related to avoiding private use and only for operational purposes; it does not explain the difference between private and justified, nor between operational and unjustified. What was the approved level of authorisation? What was the manner of authorisation, was it written, was it oral? What could have substantiated these allegations – someone appearing before us to say “these officers knew because I told them” or “because of this specific instruction”? No one has … The failure of the force to bring absolute clarity to force orders and instructions in the face of concerns which were the cornerstone of Operation Pool is a matter which fatally undermines all allegations of misuse…
To some extent it must be said that officers have contributed, either by omission or actions, to the predicament they have now found themselves in.
In relation to vehicle usage and documentation as a general point, the Panel are satisfied through the evidence presented that at the very least there were significant sensitivities within Cumbria Constabulary regarding the private use of police vehicles. All of the officers should have been acutely aware of this, especially in respect of their vulnerability to accusations as a result of the demanding and secretive nature of some of their duties. It would not have been unreasonable, therefore, in the opinion of the Panel, for all officers always to record specific reasons as to the exact purpose to which police-owned or hired vehicles were being put when officers themselves are otherwise off duty.
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