R (Chief Constable of Avon and Somerset Constabulary) v Police Appeals Tribunal
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE COLLINS |
| Judgment Date | 02 February 2004 |
| Neutral Citation | [2004] EWHC 220 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 02 February 2004 |
| Docket Number | CO/3455/2003 |
[2004] EWHC 220 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2
Mr Justice Collins
CO/3455/2003
MISS A STUDD (instructed by Force Solicitor, Avon & Somerset) appeared on behalf of the CLAIMANT
MR M FORD (instructed by Russell Jones & Walker) appeared on behalf of the DEFENDANT
Monday, 2nd February 2004
The claimant in this case, the Chief Constable of Avon & Somerset, seeks judicial review of a decision of the Police Appeals Tribunal whereby it allowed an appeal by Police Constable Hopes against a decision which had been confirmed by the Chief Constable that he should be required to resign from the force. The Tribunal substituted what amounts to a financial penalty in lieu.
The claim is based upon two broad grounds: first, that the test applicable by the Tribunal in reaching its conclusion is one of review of the decision below, and as a result it is only if the Tribunal takes the view that the decision was unreasonable that it should allow the appeal; and, secondly, that the test, which is the appropriate test, was not applied properly in the circumstances of this case. It is said that in any event no reasonable tribunal could have decided other than that the penalty of requirement to resign was the appropriate penalty.
The charges laid against Police Constable Hopes numbered five altogether, although they substantially arose from the association that he had had with a particular informant (one I think related to a different informant, but essentially they related to relationships with informants). There were three charges, numbered 3, 4 and 5, which alleged that in early 2001 PC Hopes had disobeyed various provisions in the procedural guide on informants and so had acted contrary to his duties. The failures to abide by the guide were admitted, although it was said, and indeed there was, as I understand it, evidence to support this, that the information obtained was valuable information in connection with ongoing investigations into the commission of crime. The view was taken that those three charges were not of sufficient gravity to merit a separate penalty from those imposed upon the first two charges. So it is sensible to concentrate, as did the Tribunal (and there is no issue taken about this), upon the first two charges.
The first charge alleged that on a day unknown between 16th January 2001 and 17th April 2001 PC Hopes was not open and truthful in his dealings and failed to discharge his duties with integrity in that he made an entry in his pocket notebook, B42742, purporting to contemporaneously evidence a meeting that he had had with x (that is to say the relevant informant) on 16th January 2001, and the completion of an appropriate form, 78D, when in fact he made the entry in a book that had already been completed and related to events in 2000 rather than 2001.
The obligation in dealing with informants is to fill in various forms and to make entries in the notebook, for the obvious reason that it is essential that proper contemporaneous records are kept of any dealings with an informant. Obviously, if the matter were to go to court it is necessary that there can be no come back and it be shown that all dealings with the informant were in accordance with the relevant procedure.
PC Hopes filled out the form described as a Restricted Intelligence Report. This gives the details of the relevant information which had been obtained from the informant. It refers to the informant, it also gives a pocket book reference as B42742. Unfortunately, the notebook B42742 was a notebook which related to January 2000 and not to January 2001, and the entry was made in a different ink to the entries on either side. It was thus obvious that the entry had been made in a wrong notebook and it had been made, it seems, ex post facto in order to comply with the requirement to do so.
This was clearly something which should not have happened. The explanation given was difficult to ascertain, largely because the claimant himself indicated that because of the lapse of time he really could not do more than note that it was use of a wrong notebook by an error, but he could not remember the full circumstances as to how it came about that he was apparently entering the matter after he should have done. Whether it was a question of simply forgetting and trying to pretend that he had not forgotten, or whether it was something more sinister, is impossible to ascertain.
The second charge asserted that between 16th March 2001 and 23rd March 2001, without good and sufficient cause, PC Hopes disobeyed the order of 15th March from a detective inspector, who told him that he was not to make contact with x and that if x rang he was to make an excuse and not talk to him again, but that in breach of that order he spoke to x on 19th March and 22nd March and failed to bring it to the attention of the superior officer when he asked if there had been any further contact.
The reason for that was apparently that x had, until 1999, been a registered informant. He had then, for reasons which were not fully explained to PC Hopes, been de-registered, and since 1999 PC Hopes should not have used him as an informant. Charges 3, 4 and 5 show that he did continue so to use him. But there had been a double murder and it was believed that x had some knowledge of the victims of that murder and thus any contact with him might jeopardise the investigation into those murders. Accordingly, it was that the detective inspector, who was presumably a senior officer involved in the investigation of those murders, had instructed PC Hopes not to have any contact with x and had told him that if x got in touch he should make his excuses and not talk to him.
On 18th and 19th March it is clear that x was trying to get in touch with PC Hopes. There were four calls, three of them on the 19th between 3.30 in the afternoon and 5.15. Each of them lasted for some 24 or 25 seconds, which was consistent with an answer machine at PC Hope's address, and it seems, quite clearly, from those timings that indeed an answer machine was answering. Then at 5.15 there is a two second call from x's mobile to PC Hope's mobile. That is followed two minutes later by a three minute and 55 second call from PC Hopes on his mobile to x on x's mobile.
The explanation that was given by PC Hopes for that was that he was endeavouring to tell x that he should not contact him, but was trying to do this in such a way that x did not become anxious about the reasons, and, as an experienced police officer who had been a detective constable, it is possible to understand why PC Hopes formed the view that it was undesirable that x should be put on inquiry as to whether he, x, was being investigated and that he should try to explain why contact should not continue between x and himself in such a way as did not make x suspicious about what was going on. In any event, that was the explanation why he called back and why he spoke for some three minutes and 55 seconds.
Three days later, on the 22nd, it seems that x telephoned PC Hopes again. This time there was a conversation lasting some ten and three quarter minutes. Again, PC Hopes' explanation for this was that he was explaining that he should not contact x again, and it took a long time because it was necessary to explain it in a sensitive fashion.
The detective inspector apparently asked PC Hopes the following day, that is on 23rd March, whether there had been any contact. It would appear that PC Hopes was less than frank because he did indicate that there had been contact from x, but not that he had phoned x back; indeed, he said he had not. He did not explain the length of the calls.
It is not altogether surprising in those circumstances that when the fact of the calls was discovered a somewhat suspicious view was taken of it by those responsible.
In any event, the misconduct hearing took place. The Tribunal, presided over by an assistant chief constable, found that the first two charges should result in a requirement to resign. It gave its reasons. What it said, so far as material, was that it had paid particular regard to the importance placed by legislation and police policy on the correct handling of informants —they are not now called informants but, I gather, "covert human intelligence sources", which comes to the same thing. It was said that PC Hopes was an experienced officer with considerable detective experience, and "all evidence of [his] character points to a hard working officer who is seen as very experienced and knowledgeable in many areas of operational police work". He had admitted to a series of actions directly in breach of force policy on the handling of informants, he continued to contact x and obtained information, and he had not documented contacts correctly or had falsified documentation —that relates presumably to charge number 1. They went on:
"4. These are serious breaches of the force policy which can be regarded as reckless, bearing in mind PC Hopes' record of experience in this area of work, the fact that he knew about [x]'s criminal history and some of his criminal associations, as well as knowing that he was deemed unsuitable to be registered by the Police Service.
5. Finally, we consider the contact that PC Hopes made with [x] after being ordered by [the detective inspector] not to contact him is a serious breach of regulations. We also consider the lie made by PC Hopes...
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