Patrick George Baker v Police Appeals Tribunal
| Jurisdiction | England & Wales |
| Judge | Mr Justice Leggatt |
| Judgment Date | 27 March 2013 |
| Neutral Citation | [2013] EWHC 718 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 March 2013 |
| Docket Number | Case No: CO/9418/2011 |
[2013] EWHC 718 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Leggatt
Case No: CO/9418/2011
Ms Alexandra Felix (instructed by Russell Jones & Walker) for the Claimant
Mr John Bassett (instructed by East Sussex CC) for the Defendant
Hearing date: 5 March 2013
Introduction
On this claim for judicial review the claimant (Mr Baker) asks the court to quash an order made by the Police Appeals Tribunal (the Tribunal). In response to the claim, the Tribunal has conceded that it did not have power to make the order in question. The Tribunal has nevertheless argued that the court should decline to quash the order as a matter of discretion on the ground that to do so would result in injustice. These are the reasons for my decision to reject the Tribunal's argument and grant the relief sought.
The Tribunal Proceedings
On 13 October 2010 Mr Baker, a constable in the Sussex Constabulary, was found guilty of gross misconduct and was dismissed without notice.
Mr Baker appealed to the Tribunal against both the finding of misconduct and the disciplinary action of dismissal. By an Order dated 24 March 2011 (the "Original Order"), the Tribunal dismissed Mr Baker's appeal against the finding of gross misconduct but allowed his appeal against the disciplinary action of dismissal, substituting for dismissal the disciplinary action of a final written warning. The Original Order further stated:
"AND WE direct that [Mr Baker] shall be reinstated in the Sussex Constabulary in the rank of constable. The effect of this Order is that for the purposes of pay [Mr Baker] shall be deemed to have served continuously in that rank from the 13 th October 2010."
The Original Order was sent to Mr Baker by email on 28 March 2011. On 9 April 2011 the Tribunal issued a "Statement of Determination of Appeal" giving the reasons for its decision.
Later that month, the Professional Standards Department of Sussex Police informed the Tribunal that, between the date of his dismissal and the hearing of his appeal on 24 March 2011, Mr Baker had been employed outside the police service. At the time when the appeal was heard and the Original Order was made, neither the Sussex Police nor the Tribunal had been aware of that fact.
The Tribunal invited further written representations on the question of whether it could, at that stage, make an order which provided for the amount of back pay restored to Mr Baker to be reduced to take account of his earnings from his other employment during the period between his dismissal and reinstatement. After considering such representations, the Tribunal decided that it had the power to amend its Original Order in this way and that it would be just to do so.
The Tribunal accordingly issued an "Amended Order" dated 30 June 2011. The Amended Order was in the same terms as the Original Order except that the paragraph dealing with reinstatement now provided as follows:
"AND WE direct that [Mr Baker] shall be reinstated in the Sussex Constabulary in the rank of constable. The effect of this Order is that [Mr Baker] shall be deemed to have served continuously in that rank from the 13 th October 2010 save that, for the purposes of pay, only such sum shall be restored to him as is equal to the difference between his lost police service pay and his earned income from other sources between the 13 th October 2010 and his reinstatement and as will place him in the same financial position in which he would have been had he not been dismissed."
The Amended Order was sent to the parties on 4 July 2011 along with an Addendum to the Tribunal's Statement of Determination of Appeal. This Addendum made it clear that, had the Tribunal been aware of the true financial circumstances at the time of the appeal hearing, it would not have made an order restoring the whole of Mr Baker's lost police pay, and explained that the purpose of the amendment was to reflect the Tribunal's intention that Mr Baker should be placed in the same financial position and not in a better financial position than if he had not been dismissed.
Lack of Jurisdiction
On this claim for judicial review Mr Baker contends, and the Tribunal has accepted, that at the time when it made the Amended Order the Tribunal was functus officio.
The powers of the Tribunal derive from section 85 of the Police Act 1996. Schedule 6 to the Act, which has effect in relation to appeals by virtue of section 85(6), provides at paragraph 7(2):
"Where the effect of the order made by the police appeals tribunal is to reinstate the appellant in the force or in his rank, he shall … to such extent (if any) as may be determined by the order, for the purpose of pay, be deemed to have served in the force or in his rank continuously from the date of the original decision to the date of his reinstatement."
It is common ground that this provision would have given the Tribunal power, by its Original Order, to direct that on his reinstatement Mr Baker should receive in back pay only the difference between (a) the amount he would have earned had he served continuously in the force and (b) the amount he in fact earned from other sources between the date of his dismissal and the date of his reinstatement. However, the Tribunal did not make such a direction in its Original Order. Instead, the effect of the Original Order was that Mr Baker should receive the same sum in back pay as he would have received had he served continuously in the force, without any deduction to reflect his income from other sources.
The procedure for the determination of appeals to the Tribunal is governed by rules made under section 85 of the Act. The rules then in force were the Police Appeals Tribunals Rules 2008. Rule 22 states (in relevant part):
"(3) The chair shall prepare a written statement of the tribunal's determination of the appeal and of the reasons for the decision.
(4) As soon as reasonably practicable after the determination of the appeal the chair shall cause the appellant, the respondent and the police authority to be given a copy of such statement; but in any event, the appellant shall be given written notice of the decision of the tribunal before the end of 3 working days beginning with the first working day after the day on which the appeal is determined."
After it has given notice of its decision and issued a statement of its determination of the appeal and of the reasons for the decision in accordance with these provisions, nothing in the Rules (nor anywhere else) gives the Tribunal power to take any further action. In particular there is no express power, and it is accepted that none is to be implied, which would enable the Tribunal subsequently to change its decision.
It is for this reason that the Tribunal has conceded in these proceedings that after issuing the Original Order and Statement of Determination of Appeal it became functus officio and accordingly had no power to make the Amended Order.
Mr Baker's Case
On behalf of Mr Baker, Miss Felix did not seek to argue that there was any merit in a result which enabled Mr Baker to receive full back pay without giving credit for his earnings from other sources in the period between his dismissal and reinstatement. Nor did she suggest that the Tribunal would have made an order in terms which led to this result if it had known when it determined the appeal of the existence of such other earnings. Nevertheless, Miss Felix took her stand squarely on the fact that, as is now acknowledged, the Tribunal lacked jurisdiction to amend its Original Order. It followed, she submitted, that the Amended Order was a nullity and should be quashed.
Miss Felix accepted that in proceedings for judicial review the grant of remedies is discretionary but submitted that as a general principle a decision shown to have been made in excess of jurisdiction should be quashed. She cited a statement of Lord Hoffmann in Berkeley v Secretary of State for the Environment [2001] 2 AC 603 at 616F:
"It is exceptional even in domestic law for a court to exercise its discretion not to quash a decision which has been found ultra vires …"
To similar effect Lord Bingham said (at 608D) that:
"the discretion of the court to do other than quash the relevant order or action where such excessive exercise of power is shown is very narrow."
Miss Felix also cited R v General Medical Council, ex parte Toth [2000] 1 WLR 2209 at 2214C, where Lightman J said:
"The general principle is well established that, if an applicant establishes in judicial review proceedings that the decision which he challenges is bad in law, he should be granted relief, and most particularly an order quashing that decision, unless there are strong reasons in public policy for refusing relief or unless to quash the decision would occasion so great an injustice either to the respondent or to a third party as to require some other course to be taken."
Miss Felix submitted that there are no exceptional circumstances in this case which should inhibit the court from exercising its discretion to quash the Amended Order. Permitting the Amended Order to stand, she argued, would undermine, and effectively debunk, the principle of functus officio.
The Tribunal's Arguments
On behalf of the Tribunal, Mr Bassett submitted that this is a case in which, to avoid injustice, the court should exercise the discretion which it undoubtedly has to decline to grant a quashing order. He...
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