Gordon Mckinnon v The London Borough of Redbridge
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jackson,Lord Justice Christopher Clarke,Lord Justice Longmore |
| Judgment Date | 26 February 2014 |
| Neutral Citation | [2014] EWCA Civ 178 |
| Date | 26 February 2014 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2013/1770 |
[2014] EWCA Civ 178
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT TRIBUNAL
UKEAT049612
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Longmore
Lord Justice Jackson
and
Lord Justice Clarke
Case No: A2/2013/1770
Ms Ijeoma Omambala appeared pro bono for the Appellant
Mr Mathew Purchase (instructed by London Borough of Redbridge Legal Services) for the Respondent
This appeal is in seven parts, namely:
Part 1. Introduction,
Part 2. The regulation of parks in the London Borough of Redbridge,
Part 3. The disputes which arose within the Redbridge Parks Police Service,
Part 4. The appeal to the Court of Appeal,
Part 5. The office of constable,
Part 6. The position of constables in the Redbridge Parks Police Service,
Part 7. Executive summary and conclusion.
The issue in this appeal is whether a member of the Redbridge Parks Police Service is entitled to make a claim for unfair dismissal. The employment tribunal held that he is so entitled. The Employment Appeal Tribunal ("EAT") reversed that decision.
The claimant in the unfair dismissal proceedings and the appellant before this court is Mr Gary McKinnon ("Mr McKinnon"). The respondent in the unfair dismissal proceedings and respondent to the present appeal is the London Borough of Redbridge. I shall refer to the Council of the London Borough of Redbridge as "the LBR Council" or "the Council".
Another individual who features prominently in the narrative of events is Mr Harjit Dhinsa ("Mr Dhinsa"). Mr Dhinsa was another member of the Redbridge Parks Police Service, who sought to make a claim for unfair dismissal.
Section 15 (1) of the Open Spaces Act 1906 provides:
"(1) A local authority may, with reference to any open space or burial ground in or over which they have acquired any estate, interest, or control under this Act, make byelaws for the regulation thereof, and of the days and times of admission thereto, and for the preservation of order and prevention of nuisances therein, and may by such byelaws impose penalties recoverable summarily for the infringement thereof, and provide for the removal of any person infringing any byelaw by any officer of the local authority or police constable."
Section 77 of the Public Health Acts Amendment Act 1907 provides:
"Power to appoint officers.
The local authority may appoint officers for securing the observance of this Part of this Act, and of the regulations and byelaws made thereunder, and may procure such officers to be sworn in as constables for that purpose, but any such officer shall not act as a constable unless in uniform or provided with a warrant."
Section 1 of the Ministry of Housing and Local Government Provisional Order Confirmation (Greater London Parks and Open Spaces) Act 1967 provides that the order in Schedule 1 to that Act shall have full validity and force. The title of the order in Schedule 1 is "Greater London Provisional Order for Securing Uniformity in the Law applicable with respect to Parks and Open Spaces". I shall refer to that order as the "London Parks Order".
Article 18 of the London Parks Order provides:
"A local authority may procure officers appointed by them for securing the observance of the provisions of all enactments relating to open spaces under their control or management and of the byelaws and regulations made thereunder to be sworn in as constables for that purpose but any such officer shall not act as a constable unless in uniform or provided with a warrant:
Provided that nothing in this article shall be deemed to render applicable to any such officer the provisions of the Police Pensions Act 1921 or any other enactments relating to pensions, gratuities and allowances in respect of police services."
Section 200 of the Employment Rights Act 1996 provides:
"Police officers.
(1) Section 8 to 10, Part III, sections 43M, 45, 45A, 47, 47C, 50 to 57B and 61 to 63, Parts VII and VIII, sections 92 and 93 and, Part X (except sections 100, 103A and 134A and the other provisions of that Part so far as relating to the right not to be unfairly dismissed in a case where the dismissal is unfair by virtue of section 100 or 103A) do not apply to employment under a contract of employment in police service or to persons engaged in such employment.
(2) In subsection (1) "police service" means —
(a) service as a member of a constabulary maintained by virtue of an enactment, or
(b) subject to section 126 of the Criminal Justice and Public Order Act 1994 (prison staff not to be regarded as in police service), service in any other capacity by virtue of which a person has the powers or privileges of a constable."
Since this judgment refers to a number of textbooks and authorities which were not cited in argument, we have allowed counsel to comment on the substance of the judgment, when they saw it in draft, if they so wished. In the event neither counsel wished to do so.
After these introductory remarks, I must now explain how parks in the London Borough of Redbridge have been regulated.
The London Borough of Redbridge is situated in north east London around the area of Ilford, Barkingside and Woodford. It is one of the greenest London boroughs. It contains many fine parks. These include Hainault Forest Country Park, Valentines Park and Claybury Park.
Pursuant to section 15 of the Open Spaces Act 1906 the LBR Council has made byelaws in order to ensure that the general public use and enjoy the parks in a responsible manner. Some of the byelaws protect wildlife. Some regulate recreations, for example specifying where people can ride horses or play sports. Some byelaws forbid anti-social behaviour.
Part 8 of the byelaws provides:
"47. No person shall obstruct:
(a) any officer of the Council in the proper execution of his duties;
(b) any person carrying out an act which is necessary to the proper execution of any contract with the Council; or
(c) any other person in the proper use of the ground, or behave so as to give reasonable grounds for annoyance to other persons in the ground.
….
49. Any person offending against any of these byelaws may be removed from the ground by an officer of the Council or a constable.
50. Any person offending against any of these byelaws shall be liable on summary conviction to a fine not exceeding level 2 on the standard scale."
There is a substantial overlap with the general criminal law. Any breach of a byelaw constitutes a criminal offence, which may be dealt with by the magistrates' court. Most criminal offences are also breaches of the byelaws. For example, throwing stones at people is a breach of byelaw 12 and, if successful, also constitutes a breach of the Offences against the Persons Act 1861. Indeed almost any criminal offence committed within the curtilage of a park would constitute a breach of the second limb of byelaw 47 (c). In summary, therefore, every breach of a byelaw is a criminal offence and almost every criminal offence committed inside one of the parks is a breach of the byelaws.
It is possible to think of ingenious exceptions. For example, as Christopher Clarke LJ pointed out in argument, if two people sit on a park bench and quietly hatch a conspiracy, they may be committing a serious offence. They would not, however, be contravening the byelaws.
In May 2006 the LBR Council established the Redbridge Parks Police Service. The purpose of the Parks Police was to patrol the parks and open spaces of Redbridge and to ensure that all visitors complied with the byelaws. In establishing the Redbridge Parks Police Service the Council was exercising its powers under section 77 of the Public Health Acts Amendment Act 1907 and article 18 of the London Parks Order. I have set out these statutory provisions in Part 1 above.
The Redbridge Parks Police Service comprised thirteen officers. They were organised as follows. There were two teams of five constables who patrolled the parks and open spaces. One sergeant was in charge of each team. The two sergeants reported to Mr John Boylin, who was the chief officer.
All thirteen members of the Redbridge Parks Police Service were employees of the Council. Accordingly they were issued with job descriptions. They were, however, employees with a special status. They were appointed as constables pursuant to section 77 of the Public Health Acts Amendment Act 1907 and article 18 of the London Parks Order. As required by those provisions, each of the thirteen constables made a declaration before a justice of the peace.
The statutory provisions did not require any particular form of words. The form of declaration which the Council drafted and which each constable faithfully read out in front of a justice of the peace was as follows:
"I ……….. of London Borough of Redbridge do solemnly and sincerely declare that:
I will well and truly serve the Queen in the office of Constable in the said London Borough in pursuance of Section 77 of the Public Health Amendment Act 1907 and Article 18 of the Ministry of Housing and Local Government Provisional Order Confirmation (Greater London Parks and Open Spaces) Act 1967 with fairness, integrity, diligence and impartiality, upholding fundamental human rights and according equal respect to all people; and that I will to the best of my power secure the observance of the provisions of all enactments relating to parks and open spaces under the control or management of the said London Borough of Redbridge and of the byelaws and regulations...
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Wandsworth London Borough Council v Vining and Others
...on the point handed down after the decision of the employment tribunal but before that of the EAT. On 7 June 2013, in London Borough of Redbridge v Dhinsa and McKinnon [2014] EWCA Civ 178, [2014] ICR 834 (" Redbridge") this court decided that members of local authority park police forces ar......