Clive Allard and Others v The Chief Constable of Devon & Cornwall Constabulary
| Jurisdiction | England & Wales |
| Judge | Lord Justice Patten,Lady Justice Gloster,Lord Justice Longmore |
| Judgment Date | 03 February 2015 |
| Neutral Citation | [2015] EWCA Civ 42 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B2/2013/3158 |
| Date | 03 February 2015 |
[2015] EWCA Civ 42
Lord Justice Longmore
Lord Justice Patten
and
Lady Justice Gloster
Case No: B2/2013/3158
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
His Honour Judge Simon Carr
1UD01686
Royal Courts of Justice
Strand, London, WC2A 2LL
Jeremy Johnson QC and Dijen Basu (instructed by the Devon & Cornwall Constabulary) for the Appellant
Martin Westgate QC and Sadie Crapper (instructed by Pattinson & Brewer) for the Respondents
Hearing date: 10 December 2014
The claimants in these proceedings are retired police officers who were assigned to be the handlers of what are referred to as covert human intelligence sources ("CHISs"). The CHISs were individuals (often criminals themselves) who acted as police informants. In order to manage this information they were assigned an officer of the rank of sergeant or constable who acted as their handler and to whom they would refer as their first point of contact.
Police officers are not employees but office holders whose terms and conditions are prescribed by statute. Their deployment and hours of duty are a matter ultimately for the Chief Constable to determine but their terms and conditions of service are set out in determinations made by the Home Secretary pursuant to regulations made under s.50(1) of the Police Act 1996.
Officers who served as handlers of the CHISs were required to work relatively standard tours of duty lasting from 8am to 4pm each day from Monday to Friday but excluding public holidays. There were not rostered for duty at weekends. But although the CHISs were encouraged to confine any contact with their handlers to normal working hours within their regular tours of duty, there were frequent occasions where, either of necessity or simply due to their chaotic lifestyle or lack of organisation, a CHIS would try to make contact outside those hours.
Sometimes the message from the CHIS would be trivial such as a simple request to change the time of a pre-arranged meeting. But on other occasions the information would be much more important such as a tip-off about an imminent crime or disturbance which would lead to an immediate response by the police. Many of the contacts ranged in terms of importance and urgency between these two extremes.
For most of the period to which this claim relates the Devon and Cornwall Constabulary operated an automated telephone system known as InvisiLink. It was purchased to enable the Force to route calls from CHISs to other handlers when required. Each of the CHISs was given a separate designated number to ring when they wished to contact their handlers. When this number was dialled the InvisiLink recognised the CHISs contact details and sent a text message to the handler's mobile telephone advising that the CHIS was attempting to make contact. If the handler decided to contact the CHIS he would dial a telephone number which would connect him to the CHIS via the InvisiLink system which would register that contact was being made. If, however, the handler did not respond to the text message within 15 minutes the system would send a text to another handler and so on until action was eventually taken to make contact with the CHIS.
Officers who acted as handlers were not subject to restrictions when not on duty. They were not required to stay at home or to be available to take a call at any time. They were free, for example, to go to the cinema or theatre and to attend other social engagements. It would not therefore always be possible for a CHIS to make contact with his handler outside normal working hours and the InvisiLink system was designed to compensate for this by calling on other handlers to respond in the absence of the designated handler. The system did, however, depend upon handlers who were available to take calls and receive a text taking action to respond. The judge found that officers in this position were required to deal with the calls as and when they came in and were not at liberty simply to ignore a text which they received.
The interposition of the InvisiLink system between the CHISs and their handlers meant that no handler received a direct call from the CHIS. But the information provided by the system to the handler was no more than that the CHIS wished to make contact. The reasons for the call and therefore its importance and urgency remained unknown until contact was actually made.
Each of the handlers was supervised by a CHIS controller (usually a police inspector) and his deputy. The evidence is that handlers were originally required to obtain authorisation from the controller before responding to the text by telephoning the CHIS. But, in order to manage the volume of calls, a system was later put in place under which handlers had authority to contact the CHIS briefly in order to discover the reason for the call. They were then required to contact the controller for authorisation to speak to the CHIS further. If the conversation between the CHIS and the handler contained information which necessitated further action, this was directed by the controller who decided what kind of response was necessary.
The claim in which this appeal arises is one to recover overtime pay which the claimants say is due to them in respect of the time which they spent dealing with CHISs outside their normal tours of duty. Although the details of each claim differ in relation to the time spent, the seriousness of the calls and their frequency, certain legal issues are common to all of the claims.
Regulations have been made under s.50(1) of the Police Act 1996 governing conditions of service involving pay and allowances. For the periods in question, these are the Police Regulations 2003 ("the 2003 Regulations"). Regulation 25 of the 2003 Regulations provides:
"25.—Overtime
(1) Subject to the provisions of this regulation, the Secretary of State shall determine the circumstances and manner in which a member of a police force shall be compensated in respect of time—
(a) for which he remains on duty after his tour of duty ends, or
(b) for which he is recalled between two tours of duty, or
(c) which forms part of a tour of duty which he is required to begin earlier than the rostered time without due notice and on a day when he has already completed his normal daily period of duty;
and such time is referred to in these Regulations as "overtime".
(2) For the purposes of this regulation—
"due notice" means notice given at least 8 hours before the revised starting time of the rostered tour of duty in question;
"normal daily period of duty" shall be construed in accordance with regulation 22;
"recall" does not include a warning to be in readiness for duty if required; and …"
The Secretary of State's determination under regulation 25 in respect of overtime (which had effect from 1 April 2007) states (so far as material):
" ANNEX G Regulation 25
OVERTIME
1) a) Subject to the provisions of Regulation 25 and this Determination, a member of a police force of the rank of constable or sergeant shall be compensated in respect of time:
i) for which he remains on duty after his tour of duty (or in the case of a member working in accordance with variable shift arrangements, a rostered shift) ends; or
ii) for which he is recalled between two tours of duty (or in the case of a member working variable shift arrangements, rostered shifts); or
iii) which forms part of a tour (or in the case of a member working variable shift arrangements, a rostered shift) which he is required to begin earlier than the rostered time without due notice and on a day when he has already completed his normal daily period of duty (or in the case of a member working variable shift arrangements, a rostered shift);
and such time is referred to in this determination as "overtime".
…
d) Subject to paragraphs (e) and (g), a full-time member of a police force of the rank of constable or sergeant shall be granted an allowance in respect of each week at the rate of a twenty-fourth of a day's pay for each completed period of 15 minutes of overtime worked by him on any occasion during that week, except that on each of the first four occasions on which overtime in respect of which the member was not informed as mentioned in paragraph (g) is worked during a week 30 minutes of the overtime worked is to be disregarded. …
g) For the purposes of paragraphs (d) and (f), no account shall be taken of any period of less than 30 minutes of overtime worked on any occasion other than a period of 15 minutes of overtime in respect of which the member was informed at the commencement of his tour of duty that he would be required to remain on duty after his tour of duty ended.
h) In computing any period of overtime for the purpose of this determination:
i) where the member of a police force of the rank of constable or sergeant is engaged in casual escort duty, account shall be taken only of:
(1) time during which he is in charge of the person under escort;
(2) such other time as is necessarily spent in travelling to or from the place where the member is to take charge of, or hand over, the person under escort, as the case may be; and
(3) any other time that may be allowed by the chief officer, so however, that, if the member is so engaged overnight and has proper sleeping accommodation, whether in a train or otherwise, the chief officer may exclude such period not exceeding eight hours, during which...
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