NOTES OF CASES
| DOI | http://doi.org/10.1111/j.1468-2230.1962.tb00691.x |
| Published date | 01 July 1962 |
| Date | 01 July 1962 |
NOTES
OF
CASES
THE BEIGETON
CONSPIRACY
CASE
AND
ADMINISTBATIVE
LAW
THE case of
Ridge
V.
Baldwin
is remarkable not
so
much for the
decision itself as for the number of intriguing problems which
emerge from the judgments-problems which have been glossed
over or ignored too often in the past.
The plaintiff, when Chief Constable of Brighton, had been
charged with two subordinate officers with a conspiracy
to
obstruct
the course of justice. The other officers were convicted; the
plaintiff was acquitted, but in the course of sentencing the other
accused the trial judge commented adversely
on
the plaintiff’s
conduct, and in discharging him expressed the view that the
Brighton Police Force needed a new leader. On the following day
the watch committee met and summarily dismissed the plaintiff; he
was not given notice of any charges against him and had
no
opportunity to appear before the committee. Some days later the
plaintiff’s solicitor was permitted to address the committee
on
his
behalf. The committee, with three dissentients, adhered to its
previous decision. The plaintiff then appealed to the Home Secre-
tary
‘(
without prejudice to the validity of the decision of the watch
committee
’’
and reserving the right to contend that the procedure
there followed was bad.
His
appeal having been dismissed, the
plaintiff brought an action against members of the committee
claiming a declaration that his dismissal was void and damages for
wrongful dismissal.
Streatfeild
J.
held that the defendants retained a power under
section
191
(4)
of the Municipal Corporations Act,
1882,
to dismiss
a police omcer who was unfit for the discharge of his duties, and
that the plaintiff had clearly demonstrated his. unfitness; that they
were obliged to exercise their power in conformity with natural
justice, and that they had
so
acted inasmuch as the plaintiff
was
well aware of the case against him and had already been heard (to
his
detriment) in evidence at the Old Bailey; and that in any event
by appealing to the Home Secretary, whose decision was expressed
by statute to
be
hal,
he had waived
his
right to impugn the
decision of the committee in the courts.
In
afRrming Streatfeild
J.’s
decision the members of the Court
of Appeal departed significantly from his analysis in two respects.
They held that
no
judicial duty was cast upon the defendants; but
Holroyd Pearce
L.J.
and Davies
L.J.
were of the opinion that had
such a duty existed
it
would not have been properly discharged by
the procedure adopted.
1
[l96l]
2
W.L.R.
1064;
[la611
2
All
E.R.
629
(Streatfeild
J.)
(noted
by
(3.
Ganz
[lMl]
Public
Low
341); [1962]
2
W.L.R.
716; [lM3] 1
All
E.R.
834
(C.A.).
455
436
THE
MODERN
LAW
REVIEW
VOL.
25
On
the question whether the defendants were required to act
judicially,
it
is submitted that Streatfeild
J.’s
view is to be pre-
ferred. To him the decisive factor was the seriousness
of
the
consequences of the committee’s decision for
an
officer in the
plaintiff’s position; to the Court of Appeal the decisive factor was
the absence of language qualifying the committee’s discretion or
otherwise indicative of
a
duty to hear before determining. The
new orthodoxy thus prevailed, but at the price of extending the
application of
Nakkuda
Ali
v.
Jayaratne’
to
a
situation in which
a good deal more than the withdrawal of a privilege was at stake.
Reappraisal
will
still be possible if the case goes to the House
of
Lords.
For the vast majority of police disciplinary charges
a
hearing is prescribed by statutory regulations, and it is difacult to
think of any compelling consideration of public policy which
requires the residuary power of dismissal under the
1882
Act to be
exercisable
ex
pork
Whether the subsequent hearing granted by the watch commit-
tee after it had made its original decision would have constituted
adequate compliance
with
a duty to observe natural justice is
a
matter
on
which opinions may reasonably differ. But assuming
that
it
would not, the plaintift might have begun proceedings in the
courts there and then with a
fair
prospect of success.
His
claim
would not have been barred by
his
omission to exhaust the statu-
tory
remedies open to
himYa
and
it
is indeed doubtful whether
appeal to a higher statutory tribunal is ever the appropriate course
for one who has been condemned unheard. Nevertheless, having
elected to appeal to the Home Secretary he found the road to the
courts
barred against him.’ At first sight this seems surprising,
particularly in the light of the fact that he had expressly reserved
his
right
to
challenge the validity of the procedure adopted by the
committee. And some of the reasons given in the judgments
for
treating the administrative appeal as excluding judicial redress are,
with respect, by
no
means persuasive.
It
is surely inapt
to
charac-
tense the plaintiff’s conduct
as
a
“
waiver
”
of his rights.
Nor
is
it
satisfactory to find
so
much emphasis placed
on
the fact that
the Home Secretary’s decision
was
expressed to be
“
Anal.” Can
it
be
doubted that
if
the Home Secretary himself had broken the
rules
of
natural justice or had perpetrated
an
error
of
law on
the
face of
his
record the finality clause would have
been
disregarded
on
an application for certiorari to quash? Again, one is uncon-
vinced by the method of disposing of the plaintiff
’8
contention that
his appeal was a nullity. Three of the four learned judges held
2
[1961]
A.C.
66,
cited with
sp
roval
b
Holroyd Pearce
L.J.
at
[1961]
2
W.L.R.
746
and
by
Harman
E.J.
at
$4.
a
Semble
a
different rule
appliei
to non-etatutory domestic
tribunals:
White
V.
Kuzych
[I9511
A.C.
686;
though
the
ratio
decidendi
of
that case
aleo
lends
itaelf
to
a
narrow interpretation.
1
Doubly
barred,
in
view
of
the
finding
that
the watch committee was under
no
duty
to
afford
him
a
hearing.
Jar
lB@d
NOTES
OF
CASES
457
that if the original decision had been contrary to natural justice
it would have been merely voidable, not void, and that such a
defect could therefore have been (and would have been) cured by
waiver. But there are,
on
the one hand, numerous cases in which
decisions violating the
audi alteram
partem
rule have been said
(rightly or wrongly)
to
be invalid and declared to be void," and,
on the other hand, cases in which an applicant challenging a
decision tainted with authentic jurisdictional defects has been held
disentitled to discretionary relief by reason
of
his
own c0nduct.l
Analysis
of
this type of problem in terms of blurred conceptual
categories can hardly be conclusive.
An uninstructed layman might well apply
a
different yardstick
to the facts of the case. The plaintiff complains that he has not
been heard; but he
has
been heard, by the Home Secretary; surely
that is the end of the matter?
A
lawyer may reply that the
defendants are members of the watch committee and that it is their
decision, not the Home Secretary's decision, which is being
attacked; it may therefore be necessary to analyse the legal quality
of the committee's decision. But the lawyer will have to concede
that
it
may also be necessary to analyse the legal implications of
the plaintiff's subsequent conduct; and he
will
be hard put to it to
explain why he apparently relegates to the background what, on a
common-sense view, is the most relevant feature of the case. The
most relevant feature is not that the plaintiff was enabled
on
appeal
to complain of the conduct
of
the watch committee, but that he
was heard
de
novo
on
appeal. Would
it
not be more satisfactory
if
the courts were to focus their attention primarily on questions
such as the adequacy of the hearing
on
appeal and the powers of
the appellate tribunal, and
on
assessing the relative weights attribu-
table to the enforcement of high standards of administrative
con-
duct and the discouragement
of
recourse to the courts where
no
substantial injustice appears to have been done
?
It
is perhaps incongruous that the real issue between the
plaintiff and the committee was not before the courts, though it
was very much in the minds of the judges. By claiming a declara-
tion that his dismissal was void the plaintiff was seeking reinstate-
ment. Yet it was common ground that effective reinstatement at
6
Most recently
b
Lord Denning in
Annamunthodo
v.
Oilfields
Workers' Trade
Union
[1961]
1.C.
946
8t
966.
There
are also many dicta
to
the
contrary
effect. Contrast the approach followed
by
the High Court
of
Australia
in
Australian Workers'
Union
v.
Bowen
(No.
2)
(1848)
77
C.L.R.
601.
6
e.g.,
Annamunthodo's
case
(supra); Hoggard
v.
Worsbrough
U.D.C.
[196!2]
2
W.L.R.
676.
Qaaere
whether the dechrations granted in such cases
are
declaratory
of
existing legal relations
or
are constitutive
of
new legal relations.
de Smith,
Judicial
Reoietu
of
Adminirtratiae Action,
314-315.
*
In
Anmmunthodo's
case
(supra:
noted
by
R.
W.
Rideout
(1962)
25
M.L.R.
86),
where the material facts
were
similar in several respects to those
in
the
present cam, the Judicial Committee
of
the
Privy
Council proceeded on the
assumption that the denial
of
a
hearing in the first instance
was
an
injustice
80
fundemental that the fairness
of
the hearing on appeal should
be
disregarded.
VOL.
26
17
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