Adam Scott Carruthers V. Dumfries And Galloway Council
| Jurisdiction | Scotland |
| Judge | Sheriff K.A. Ross |
| Court | Sheriff Court |
| Date | 18 August 2009 |
| Published date | 19 August 2009 |
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...
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