Heath v Commissioner of Police of the Metropolis
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CARNWATH |
| Judgment Date | 20 July 2004 |
| Neutral Citation | [2004] EWCA Civ 493,[2004] EWCA Civ 943 |
| Docket Number | Case No: A1/2003/1296,C3/2004/0366 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 July 2004 |
[2004] EWCA Civ 493
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
CHANCERY DIVISION
(MR JUSTICE EVANS-LOMBE)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Carnwath
C3/2004/0366
MR E McNICHOLAS (instructed by Barney & Co of Stevenage) appeared on behalf of the Appellant The Respondent was not represented and did not attend
This is a renewed application for permission to appeal against a decision of Mr Justice Evans—Lombe. It is a second appeal, and Lord Justice Chadwick refused permission on the basis that he was not persuaded there was any important point of practice or any other compelling reason for the court to hear the case.
The facts are set out in the judgment below. The question, in short, is whether a partnership which, in the context of VAT law, is a taxable person can effectively procure a position whereby one of the two partners disposes of her interest in land which is partnership property without involving at the same time a disposal by the partnership itself. The understanding of the facts of the case is not really assisted by the form of the transfer in this case. It referred to the transfer being by the two partners, Mr and Mrs Darlow, to the two transferees who were Mr Darlow and his second wife as tenants in common; but then, as an additional provision, there was a statement that the interest transferred was exclusively to be that of Mrs Darlow.
The judge thought that they conflicted and that was certainly my initial impression. Although Mrs Darlow can clearly assign her interest in the partnership, the ability to assign a piece of property which is partnership property is less clear. However Mr McNicholas has persuaded me this is a point which is open to argument. If it is, it does raise an issue of potential general application, both in relation to the dealings in land by partnerships and also in the specific context of Schedule 10 paragraph 8 of the VAT Act 1994.
There is an additional point made which Mr McNicholas says the judge did not deal with. That is his complaint that the tribunal rejected the evidence of Mr Darlow that his payment was purely a capital injection into Fengate and was not related to the disposal of his interest in the land. The tribunal clearly thought that that was a very surprising suggestion in the light of the co-incidence of timing and other matters. However Mr McNicholas says that the point was not raised by way of challenge in cross-examination of Mr Darlow. He says further that that particular point, which has a direct impact on the amount subject to VAT, was raised before the judge and was not dealt with by him.
I would not regard that point on its own as justifying a second appeal. But, having granted permission on the first point, I would not exclude that from the ambit of the appeal.
Order: Application allowed with a time estimate of one day to be heard by three Lords Justices or two Lords Justices and one High Court judge.
[2004] EWCA Civ 943
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
THE HONOURABLE MR JUSTICE RIMER
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Right Honourable Lord Justice Auld
The Right Honourable Lord Justice Neuberger and
The Honourable Mr Justice Holman
Case No: A1/2003/1296
EAT/0454/02/TM
Miss Cherie Booth QC and Mr Mohinderpal Sethi (instructed by Mr Marc Jones, Underwoods/Turbervilles) for the Appellant acting Pro Bono
Mr John Hand QC and Mr Oliver Segal (instructed by Directorate of Legal Services) for the Respondent
This is an appeal by Miss Diane Heath against a decision of the Employment Appeal Tribunal on 22 nd May 2003 upholding a decision of an Employment Tribunal on 12 th March 2002 that it had no jurisdiction to hear her complaint of unlawful sex discrimination against the respondent, the Metropolitan Police Commissioner, under sections 6(2) (b) and 41(1) of the Sex Discrimination Act 1975, since, as it related to alleged conduct by police members of a Disciplinary Board in the conduct of a quasi judicial proceeding, namely a disciplinary hearing under the Police (Discipline) Regulations 1985 ( SI 1985/518), it entitled the Commissioner to immunity from action.
The appeal raises three main issues:
i) the extent of the immunity to categories of claim other than in defamation;
ii) whether proceedings before a Police Disciplinary Board constituted under the Police (Discipline) Regulations 1985 are judicial or quasi—judicial proceedings in respect of which its members are entitled to immunity from action; and
iii) whether the doctrine of absolute privilege governing judicial or quasi-judicial proceedings prohibits claims to an Employment Tribunal of alleged unlawful acts of discrimination committed in the course of such disciplinary proceedings.
Underlying all those issues is the question where the balance should fall between the public policy interest of protection of the integrity of judicial or quasi-judicial proceedings on which the long-established common law immunity is based and the need to provide effective protection to citizens against unlawful discrimination, a need now under-written by European Convention of Human Rights ("ECHR") and Strasbourg jurisprudence and also by EU legislation.
The facts
At the material time, Miss Heath was employed as a station reception officer, in a civilian capacity, at Hornsey Police Station in London. She complained that on a number of occasions in March 1999 a police inspector at the Station sexually assaulted her. On 15 th April 1999 she made a formal complaint to an Employment Tribunal against the Commissioner, alleging that those assaults constituted unlawful sex discrimination under section 1(1) (a), 6(2) (b) and 41(1) of the 1975 Act. However, the hearing of her complaint was stayed pending consideration of a prosecution of the Inspector in respect of those allegations (a consideration that led to a decision by the Crown Prosecution Service not to prosecute) and, second, the outcome of police disciplinary proceedings against him in respect of them.
On 13 th March 2001 there was an internal police disciplinary hearing into her allegations of sexual assaults, which was convened under the 1985 Regulations. It was conducted by a Board, consisting of three male commanders in the Metropolitan Police. Miss Heath gave evidence in support of her allegations in response to questions by a male advocate instructed to prosecute the charges, and she was cross-examined by a male counsel, instructed on behalf of the Inspector. The Inspector also gave evidence.
On 5 th June 2001 Miss Heath made a second complaint to an Employment Tribunal complaining that the members of the Police Disciplinary Board who had presided at the hearing on 13 th March 2001 had, in their conduct of it, sexually discriminated against her. She claimed: 1) that she had felt intimidated because the membership of the Board was entirely male; 2) that her union representative, a woman, had to plead with the Board to allow her to sit at the back of the hearing room so as to give her female support; and 3) that the Inspector's male barrister, in asking her in cross-examination to demonstrate (while she was in close proximity to the Inspector concerned) how the Inspector had sexually assaulted her, humiliated her by asking her to open her jacket and squeeze her right breast with her left hand—without any objection from the Board members.
The Employment Tribunal directed a preliminary hearing to determine whether the police disciplinary hearing on 13 th March 2001 was a judicial proceeding in respect of which members of the Police Disciplinary Board and the Commissioner had an absolute immunity in respect of complaints of unlawful sex discrimination under the 1975 Act from proceedings before it, the Employment Tribunal.
The Employment Tribunal, in a reserved decision, with extended reasons, of 12 th March 2002, held that there was such immunity, for the following reasons: 1) there is an absolute privilege in relation to things spoken or done in the course of judicial proceedings so that, for example, an action for defamation will not lie in respect of them; 2) the reason for the privilege is the public interest in ensuring that proceedings before a court may be conducted without fear of collateral attack; 3) proceedings before a Police Disciplinary Board under the 1985 Regulations are judicial (or at least quasi-judicial) proceedings; 4) the same public policy interest in protecting the integrity of judicial proceedings applies to complaints of unlawful discrimination; and 6), in the circumstances, it was doubtful whether Miss Heath could rely on the barrister's cross-examination of her as a breach of her right to respect for her privacy under Article 8 of the European Convention of Human Rights ("the Convention"), but even if it could engage that right, it would be counter-balanced by the Inspector's interest in having his accuser's evidence tested in cross-examination before the police Disciplinary Board.
The Employment Appeal Tribunal, in its judgment of 12 th May 2003, upheld the decision of the Employment Tribunal, both on the...
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