R v Chief Constable of the Merseyside Police, ex parte Calveley
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE MAY,LORD JUSTICE GLIDEWELL |
| Judgment Date | 27 November 1985 |
| Judgment citation (vLex) | [1985] EWCA Civ J1127-1 |
| Docket Number | 85/0767 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 November 1985 |
and
[1985] EWCA Civ J1127-1
The Master of the Rolls
(Sir John Donaldson)
Lord Justice May
and
Lord Justice Glidewell
85/0767
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (DIVISIONAL COURT)
(LLOYD LJ and MACPHERSON J)
Royal Courts of Justice.
MR. J. SAMUELS, Q.C. and MR. R. PERCIVAL (instructed by Messrs. Russell Jones & Walker) appeared on behalf of the Appellants.
MR. R.J.D. LIVESEY, Q.C. and MR. J.F. APPLETON (instructed by C.K. Wilson, Esq.) appeared on behalf of the Respondents.
The appellants are five police officers. They have been found guilty of disciplinary offences by the Chief Constable of Merseyside and dismissed the force or required to retire. They are entitled to appeal, and are appealing, to the Secretary of State. However, they submit that an alternative, and more appropriate, remedy is open to them, namely judicial review of the decision by the Chief Constable to hear and adjudicate upon the charges.
The Divisional Court (Lloyd L.J. and MacPherson J.) held that although judicial review might be the appropriate remedy after the appeal had been heard and determined by the Secretary of State, the appellants were premature in their application. In reaching this conclusion, the court, as it was entitled to do, was proceeding of its own motion in the sense that this was not a contention advanced on behalf of either party.
The essential basis of the appellants' application can be briefly stated. The incident which gave rise to the disciplinary charges occurred in the early hours of the 21st June, 1981. There was a disturbance in the street and two of the five appellants were involved. They called for assistance by radio and were reinforced by the three other appellants. The five police officers then arrested five men and took them to the police station. Later in the day three of the prisoners made formal complaints concerning the conduct of the police officers concerned, alleging that there had been a largely unprovoked attack by the officers.
On the 30th June, 1981 an investigating officer was appointed, but it was not until some two and a half years later, at the end of November and the beginning of December 1983, that the appellants were officially informed of the fact that complaints had been made or that they were being investigated. The basis of the appellants' claim for relief by way of judicial review is that this failure to inform them constituted a breach of regulation 7 of the Police (Discipline) Regulations 1977 and so seriously prejudiced their ability to defend themselves against the disciplinary charges as to amount to a denial of natural justice.
Regulation 7 provides that:
"The investigating officer shall, as soon as is practicable (without prejudicing his or any other investigation of the matter), in writing inform the member subject to investigation of the report, allegation or complaint and give him a written notice—
(a) informing him that he is not obliged to say anything concerning the matter, but that he may, if he so desires, make a written or oral statement concerning the matter to the investigating officer or to the chief officer concerned, and
(b) warning him that if he makes such a statement it may be used in any subsequent disciplinary proceedings."
Having adverted to the essence of the problem, it is convenient to set out the full chronology of events:
21st June,1981
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(i) At about 1.40 a.m. five men were arrested by the appellants and later charged with being drunk and disorderly.
-
(ii) Later during the day three of these men formally complained of the conduct of the arresting officers. All alleged that they were assaulted in the van whilst being taken to the police station and one alleged that he was also the subject of an unprovoked assault before being arrested. The girlfriend of one of the men also complained, but almost immediately withdrew the complaint.
30th June, 1981
The Deputy Chief Constable appointed a Detective Superintendent as investigating officer. However, the investigation was suspended pending the completion of the criminal proceedings against the arrested men.
20th July, 1981
Two of the appellants prepared and signed witness statements against the five men.
30th September, 1981
The remaining three appellants did likewise.
22nd–23rd December, 1981
The five arrested men were tried and acquitted by Magistrates.
24th February, 1982
The Deputy Chief Constable instructed the investigating officer to continue to defer his investigation, pending clarification of the complainants' declared intention to pursue a civil claim against the police rather than to use the statutory complaints procedure.
June 1982
Routine destruction of divisional incident reports, including radio messages and logs relating to the 21st June, 1981.
April/May 1983
In response to inquiries, the police were told that the solicitors acting for the complainants in the civil proceedings had no instructions and would not object to their clients being interviewed.
June 1983
Routine destruction of parade states showing what other officers were on duty on the 21st June, 1981.
August/November 1983
The investigating officer interviewed the complainants and other witnesses.
28th November—12th December, 1983
The appellants were interviewed by investigating officer and served with regulation 7 notices.
6th January, 1984
The investigating officer reported to the Deputy Chief Constable.
9th January—3rd April, 1984
Consultations with the Director of Public Prosecutions and the Police Complaints Board.
26th April, 1984
Disciplinary forms specifying the charges were served on the appellants.
25th-26th September, 1984
Disciplinary hearing before the Chief Constable.
Under the relevant regulations, a police officer facing disciplinary charges may conduct his case at the hearing either in person or by a police officer selected by him. All the appellants elected to be represented by a Sergeant Ashton. He took a preliminary objection to the hearing of the charges, submitting that compliance with regulation 7 was mandatory. This submission is not, I think, well founded. The issue of whether it was mandatory or directory was considered fully in Reg. v. Secretary of State for the Home Department, ex parte Miller (4th May, 1983) and a divisional court consisting of Lord Justice Robert Goff and Mr. Justice Glidewell held that it was directory, basing · their decision, inter alia, on a decision of this court ( Kilduff v. Wilson & ors. [1939] 1 All E.R. 429). Suffice it to say that the submission was expressly disavowed by Mr. John Samuels, Q.C., appearing on behalf of the appellants. In fairness to Sergeant Ashton, I should make it clear that he is not to be, and has never been, criticised for making the submission.
However, Sergeant Ashton also, in effect, submitted that, even assuming that the regulation was directory, the delay in these cases had been so considerable that the appellants had been irremedially prejudiced. In particular he took the following points. (1) The interval between the receipt of the complaints and the moment when the appellants were informed of their nature and given an opportunity of making a statement was of the order of two years and five months. (2) The passage of time would have dulled their recollection of the events in question and would have made it difficult or impossible to trace witnesses. (3) The divisional incident reports, radio logs and parade states had been destroyed meanwhile and a sight of these might have assisted the appellants by refreshing their memories, corroborating their evidence or putting them on to the track of potential witnesses. (4) Since the incident, changes had occurred in the street lighting and hedges at the scene.
In reply it was submitted that the regulation 7 notices had been given "as soon as is practicable". The basis of this submission was that the notices could not be served before all the evidence had been acquired and considered by the investigating officer. The delay in reaching this point was unavoidable in the light of the criminal proceedings against the complainants and the anticipated civil actions by them which prevented the investigation proceeding meanwhile.
The Chief Constable ruled on this submission, saying, "I don't think that anything should be frustrated by documentary delay, which was certainly out of the hands of the Investigating Authority in any event, because of the vagaries of both civil and criminal justice systems. So on that alone, with all good honesty of purpose, I think that this discipline hearing must pursue." Evidence concerning the charges was then given by various witnesses including the appellants and the charges were found proved.
Although the Chief Constable's ruling is not over elaborate, I think that he must be taken to have been saying that the notices were indeed served as soon as was practicable. Certainly this is what was maintained before the Divisional Court, where it met with some scepticism. The contention was rightly abandoned before us, it being accepted that the notices could have been given soon after the conclusion of the criminal proceedings or about 18 months before they were in fact given.
For my part I regard regulation 7 as providing an essential protection for police officers facing disciplinary charges and think that, save in the rare case...
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