R (Bennion) v Chief Constable of Merseyside
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE JUDGE,LADY JUSTICE HALE,LORD JUSTICE HENRY |
| Judgment Date | 04 May 2001 |
| Neutral Citation | [2001] EWCA Civ 638 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C/2000/2549 |
| Date | 04 May 2001 |
[2001] EWCA Civ 638
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
(Mr Justice Toulson)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Henry
Lord Justice Judge and
lady Justice Hale
Case No: C/2000/2549
David Pannick Esq, QC & Mrs Judith Beale (instructed by the solicitor to the Chief Constable, Merseyside Police) appeared on behalf of the Appellant.
James Pickup Esq, QC (instructed by Messrs Russell, Jones & Walker) appeared on behalf of the Respondent
This is an appeal by the Chief Constable of the Merseyside Police, Norman Bettison, against the decision of Toulson J. on 29 April 2000, quashing the findings of guilt made against an officer in his force, Carol Ann Bennion, on 7 January 2000 in disciplinary proceedings conducted by him.
In April 1997 Mrs Bennion was serving as a Chief Inspector in the Merseyside Police. She was posted to Southport as Area Operations Manager. Her Area Commander was Superintendent Rooney. Mrs Bennion alleged that she was the victim of systematic sex discrimination by him. In summary he belittled and intimidated her in a protracted course of discriminatory conduct.
In March 1998 Mrs Bennion formally complained in writing. In the course of investigating her complaint, Assistant Chief Constable Stephenson, of the same force, interviewed her in the presence of other officers, including a member of the Police Federation who was protecting her interests. The Assistant Chief Constable concluded that both Mrs Bennion and Superintendent Rooney should be transferred, she to another Area, he to Police Headquarters. As she was dissatisfied with his decision, Mrs Bennion asked for her case to be referred to the Chief Constable, Sir James Sharples. On 6th April he confirmed the decision.
In the meantime, in September 1997 Mrs Bennion had bought a Mazda car from a dealer in Southport named Collins. Her links with Collins were to lead to the disciplinary proceedings with which this appeal is concerned. On 7th May 1998, while she and her husband (who was then also a serving Chief Inspector in the same force) were attending a police conference in Bournemouth, she received a telephone call from the force Professional Standards Department. She was required to return immediately to Merseyside. She alleged, in effect, that she was forced to return by a threat of arrest for fraud. On her return she was served with a Regulation 7 Notice, and interviewed in connection with her suspected involvement with Collins, in a scheme for unlawful importation of cars into the United Kingdom, and with making false declarations. A further five officers were said to be similarly involved.
On 17th May, Mrs Bennion lodged her first complaint to the Employment Tribunal, Liverpool, for "sex discrimination and victimisation" against the Chief Constable of the Merseyside Police and Superintendent Rooney. At that stage her application was directed at the Superintendent personally, as well as the Assistant Chief Constable, and the entire process which had taken place on 7th May. This application did however state:
"I have named Superintendent Rooney as respondent at this stage but I will be prepared to withdraw against him if the Chief Constable does not rely upon the defence contained in Section 41(3) of the Sex Discrimination Act 1975."
That observation recognised that the Chief Constable might very well be suggesting that he had taken all reasonably practicable steps to prevent the officers in his force from committing the acts of discrimination and victimisation of which she was complaining. What appears plain from the application was that no allegation was being made personally against the Chief Constable.
On 16th June notices of appearance were entered by Superintendent Rooney and the Chief Constable in his capacity as the officer responsible for the Merseyside force. The first focus of his response was the primary allegation of sex discrimination and victimisation. Further and better particulars were sought. However the Chief Constable went on to point out that in relation to the allegations based on events on 7 May it had been determined:
"to institute a disciplinary investigation into the Applicant's (and other officers') actions arising out of that same importation of motor vehicles into the United Kingdom At the date of service of this notice of appearance it had not been determined whether the Applicant or any officers who are the subject of the discipline investigation shall be required to attend a formal disciplinary hearing or not. The police enquiries and the separate discipline enquiries into the importation of motor vehicles are continuing."
The Chief Constable suggested that it would be inappropriate for him to deal with the allegations made by the applicant about events on 7th May. Proceedings before the Employment Tribunal were therefore stayed.
On 4th November Mrs Bennion's grounds of complaint were amended, in effect, by the further and better particulars sought by the Chief Constable. The proceedings against him in relation to her complaints of discrimination and victimisation, and the investigation of the disciplinary complaint against her, and the decision to transfer her to serve elsewhere, were all said to arise because he was "the person responsible for the acts and omissions of and as 'employer' of (Superintendent Rooney) pursuant to the provisions of s17 and 41 of the Sex Discrimination Act 1975". Although it was then alleged that the Chief Constable had "wrongly supported" the decision to transfer her, this complaint never resurfaced. There was an additional complaint that the Chief Constable's decision to undertake a complaint in relation to a number of "alleged disciplinary offences" of which she was informed on 22nd September by Superintendent Kerry, amounted to "victimisation". Although probable, it is not absolutely clear that this allegation was identical to the allegations on which a further, and subsequent application was made to the Employment Tribunal on 9th December.
On 14th November, Mr Norman Bettison took office following his appointment as Chief Constable of Merseyside. He had never before served in the Merseyside Police.
On 20th November Mrs Bennion was informed that criminal proceedings arising from the matters investigated on 7th May would not be brought against her, but she was also told that disciplinary proceedings remained under consideration.
On 9th December, as noted earlier, she made a further complaint to the Employment Tribunal, which was based on alleged victimisation arising from a notice of alleged disciplinary offences which arose in relation to claims made by her of earlier examination successes. In March 1999 Mrs Bennion was informed that no formal disciplinary action would be taken in connection with these matters. She was advised about her position, and the advice was recorded in the Area Discipline book.
Two days later, on 12th March, Mrs Bennion was notified that she would be charged with disciplinary offences arising from her dealings with Collins, and on 12th April she was served with the appropriate discipline form and the statements to be relied on. There were four allegations, the first of discreditable conduct, and the remaining three of neglect of duty. All arose out of her alleged dealings with Collins. Summarising them as briefly as possible the allegations were that:
a) Mrs Bennion had declared that she had checked the information given in a DVLA application for a first licence and that to the best of her knowledge it was correct, when it had not been completed, or contained information which she knew or ought to have known was false;
b) She failed to inform the police or the DVLA of the receipt of a registration document which asserted that the registered keeper was Amanda Parker, when she (Mrs Bennion) understood that the car had been imported or registered in her name.
c) She failed to inform the police or the DVLA that she had received a registration document relating to another, second, car of which she was said to be the registered keeper, when in truth she had no knowledge of the car.
d) She failed to inform the police who were investigating the activities of Phillip Collins in connection with an alleged criminal importation of vehicles of her knowledge of Collins' activities.
On 15th June Mrs Bennion made a further application to the Employment Tribunal. She alleged that the prosecution of these disciplinary charges, as well as the decision to give her formal advice and record it in the discipline book, all amounted to victimisation.
On 30th September there was a preliminary hearing of the disciplinary proceedings before the Chief Constable. It is the decision reached on this occasion, that the disciplinary proceedings should not be remitted for the decision of a Chief Officer of Police from a different force, that is the subject of these proceedings for judicial review. Before dealing with the hearing in detail, I should complete the narrative.
The hearing of the disciplinary proceedings was due to take place a fortnight or so later, but was postponed at Mrs Bennion's request. Instead it took place on 6th and 7th January 2000. The Chief Constable found the third and fourth charges proved, and dismissed the first two charges. On the third charge Mrs Bennion was fined one day's pay. On the fourth charge, Mrs Bennion was reduced to the rank of Inspector. The Chief Constable took a much more serious...
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