Merricks v Nott-Bower
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE HARMAN,LORD JUSTICE SALMON |
| Judgment Date | 30 January 1964 |
| Judgment citation (vLex) | [1964] EWCA Civ J0130-3 |
| Docket Number | 1963 M No. 1355. |
| Date | 30 January 1964 |
| Court | Court of Appeal |
[1964] EWCA Civ J0130-3
In The Supreme Court of Judicature
Court of Appeal
The Master of the Rolls (Lord Denning)
Lord Justice Harman and
Lord Justice Salmon
MR G. R. SWANWICK Q. C., and MR S. M. NOAKES (instructed by The Solicitor, Metropolitan Folico) appeared on behalf of the Appellants (Defendants).
MR DESMOND ACKNER Q. C., and MR BRIAN NEILL (instructed by Messrs James and Charles Dodd, Solicitors, London) appeared on behalf of the Respondents (Plaintiffs).
THE HON. J. R. CUMMING-BRUCE (instructed by The Treasury Solicitor) appeared on behalf of The Secretary of State for the Home Department).
In this case two serving Police officers seek to bring an action at law against the present Commissioner of Police, his predeoessor and a previous Assistant Commissioner of Police. The Defendants seek to strike out the Statement of Claim as being untenable.
The two Plaintiffs are Superintendent Merricks and Chief Inspector Clark, who at one time were the two Chief Officers of the Peckham Sub-Division of the Metropolitan Police.
Early in 1957 there was some uneasiness about street bookmaking in Peckham, It was said that street bookmakers were allowed to operate openly; and although some men vrere brought to Court, they were not the real operators but only "stooges" put up by arrangement. In consequence, those in authority at New Scotland Yard caused a private observation to be kept by a person who was unconnected with the Peckham Sub-Division. They appointee an Inspector Fleming to investigate the position at Peckham, without telling Superintendent Merrlcka or Chief Inspeotpr Clark anythingsabout it.
Inspector Fleming made observations between 15th February, 1957; and, 7th March, 1957; and, following thereon, he made a report including eight written statements which, if true, tended to show that bookmakers in the Peckham Division were able to operate openly and in a manner which called in question the integrity and efficiency of the local Police.
On the 28th April, 1957, be Assistant Commissioner of Police, Sir Alexander Robertson, made a Report to the Commissioner of Police which is said to contain these words: "The investigation has shown that Superintendent Merricks has neither the detrmlnation nor the experience to deal with this type of problem, and, during his absence, Chief Inspector Clark has not shown much drive In dealing with the same problem. I therefore recommend that they be transferred."
Then, on the 29th April, the Assistant Commissioner is said to haye eummoned Superintendent Merricks and Chief Inspectordissatisfied with the position, and that as from the 1st May, 1957" — that Is, on two days' notloe — they would be transferred, Superintendent Merricks was to go to Leyton and Chief Inspector Clark to Kensington. Chief Inspeotor Clark says In an Affidavit that he protested. He said that this sudden transfer would cast the gravest reflection upon their Integrity, but that he was told: "Well, that's Just too bad.9 He said there was no doubt that the transfer was In the nature of a punishment, and the Assistant Commissioner said: "You may tflke that as you like.0 So the transfers took place. On the?rd May, 1957, Inspector Fleming was commended in the Police records for his outstanding work.
Over two years later, in December, 1959, on an entirely different matter, Inspector Fleming was found guilty of misconduct. It was concemod with the prosecution of a bookmaker. He was reduced to the rank of Sergeant. Moreover, he gave false evidence in the case of Mack v. Fleming. It is reported in 1961 2 Queen's Bench Division, page 366. In view of those reflections opon Inspector Flemlngs integrity, Superintendent Merricks and Chief Inspector Clark in 1962 asked for a reconsideration of tholr case. It was refused.
Such being the history of the case, Superintendent Merricks and Chief Inspector Clark, on the 11th April, 1963 - that is, Just within six weeks from their transfer - brought this aotion in the Queen's Bench Division against Sir John Nott-Bower, the Commissioner in 1957 who was responsible for the transfer, but who retired in 1958J against Sir Joseph Simpson who was then, in 1957, Deputy Commissioner and is now the Commissioner, and against Sir Alexander Robertson, who was then the Assistant Commissioner, and who has now retired. They brought this action and delivered a Statement of Claim. Application is now made by the Defendants to strike out the Statement of Claim on the ground that it discloses no reasonable cause of aotion and is frivolous and vexatious.
So we have to turn to the claim, which has been supplemented by Affidavits. we have to see whether It discloses anarguable case. If there Is nothing to argue about, there is no point In letting the case go on. The gist of the complaint of the Plaintiffs is this: These transfers, they say, were made as a means of punishing them for an offence: and they ought not to have been punished without being given a hearing. The Statement of Claim ie not very dear, but the allegation is sufficiently etated In one sub-paragraph which says that "the transfers were disciplinary measures consequent on the out investigation carried and the roport made by Inspector leming", to which the Plaintiffs would add that "from the report of Inspector Fleming it would appear that the Plaintiffs might have oommltted an offence against the Police Regulations." The Plaintiffs then refer to the Police Act and the Regulations made thereunder. They say that If, as here, a report is received by the Commissioner which points to a disciplinary offence having been committed, then the disciplinary machinery puiflt be invoked - unless the Commissioner decides' that there is no substance in the report or no need for disciplinary measures. The disciplinary machinery is contained in a cude nhich sets out exactly what is to be done, An investigation has to bo made by an investigating officer. If the investigation shows that there is ground for preferring a charge against a Police officer, he must be given notice of it, and he must be given a hearing. If he is found guilty, there is a prescribed range of punishment, such as dismissal, reduction In rank, a fine, a reprimand, or a caution. But the range of punishment does not include transfer from one place to another. There is no power to transfer by way of punishment.
In the light of these Regulations, the Plaintiffs say that the power of transfer is only to be used as part of the administrative machinery of the Force - so as to ensure efficiency. It cannot be need as a means of punishment. In their cases, they any, the power of transfer was misused and abused. It WPS used as a disciplinary measure to punish them -and by misusing it in this way, those In authority were able to by-pass all the disciplinarymachinery eo carefully set up to ensure a fair hearing. They were condemned and tarnished, they say, without being heard.
Such being the case made, I am not prepared to say that, it is unarguable. It is v. well-known principle of our law that any powers conferred by Statute or Resjulation on an executive or administrative authority tenet be exercised in good faith for take purpose for – which they are granted. 'They must not be misused or abused by being applied to an ulterior yarpose. Whether that principle applied here or not, I do not say: All I do say is that if the Plaintiffs allege, as they do, that this was a nisuse of the power of transfer – that it was used, not for the purpose of good administration and efficiency but for the motive of punishment - they have an arguable case which they are entitled to have tried by the Courts.
Accepting that view, what is the relief claimed? All that is claimed la series of declarations, all of them to the effect that the transfer was made without regard to the Regulations and without regard to the prineiplesof natural Justice. It is asked: That use can such declarations be at this stage, when the transfer took plnce 6£ years ago? What good does it do now? There can be no question of rc-opening the transfers. Theae officers have been serving in those other Dl-risions all this time. They cannot be transferred back to Peckham.
On this point we have been referred to a number of cases which show how greatly the power to grant a declaration has been widened in recent years. If a real question is involved, vHlah is not merely theoretical, and upon which the Court's decision gives practical guidance, then the Court in Its discretion can grant a declaration. A good instance is the recent case on the football transfer system decided by Mr Justice Wilberforce, Easthem v. Newcastle United Football club (1963 All England Reports at page 139). Mr Acknor said that in this particular case the declaration might be of some use in removing a slur which was cast against these men by the transfer. He also put iton the wider ground of the public Interest that the power to transfer can only be used in the Interests of administrative efficiency anrt not as a form of punishment. He said that It would be valuable for the Court so to declare.
Again on this oolnt, but without determining the matter, It seems to me that there Is an arguable case that a declaration might serve some useful purpose. We cannot at this stage spy that the claim shoold be rejected out of hand.
The remaining matter Is quite separate. It Is a claim for libel. In the Statement of Claim there Is an allegation that Sir Alexander Robertson falsely and maliciously wrote and published of these two officers the Report which I have already read. The Prayer includes a claim for damages for libel on account of that...
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