R v Chief Constable of the Merseyside Police, ex parte Merrill
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE WOOLF,SIR DENYS BUCKLEY |
| Judgment Date | 17 May 1989 |
| Judgment citation (vLex) | [1989] EWCA Civ J0517-4 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 89/0503 |
| Date | 17 May 1989 |
[1989] EWCA Civ J0517-4
The Master of the Rolls
(Lord Donaldson)
Lord Justice Woolf
Sir Denys Buckley
89/0503
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
Royal Courts of Justice
MR. JOHN SAMUELS Q.C. and MR. C. PUGH (instructed By Messrs. Russell Jones & Walker) appeared for the Applicant (plaintiff).
MR. BRIAN LEVESON Q.C., MR. SEAN DUNCAN and MISS S. HAGER (instructed By The Head Of Legal And Administration Police Support Services, Merseyside Police Authority) appeared for the Respondent.
The applicant, a Detective Constable in the Merseyside Force, sought judicial review of the refusal by his Chief Constable to discontinue an inquiry into a disciplinary offenco alleged to have been committed by him. As in the leading case of The Queen v. Chief Constable of the Merseyside Police, ex parte Calveley [1986] 1 Q.B. 424, the issue turned upon an alleged failure to serve a formal notice of the complaint within the time contemplated by Regulation 7 of the Police (Discipline) Regulations 1977 and 1985, which are in identical terms. However, unlike the position in Calveley's case, it was thought by all concerned to be appropriate to deal with this aspect by preliminary decision and to adjourn further hearing of the complaint in order to enable Detective Constable Merrill to apply for judicial review.
Leave to apply was granted, but upon the conclusion of the substantive hearing a Divisional Court (Glidewell L.J. and French J.) dismissed the application. Detective Constable Merrill has appealed to this court. That appeal has two aspects. The first affects Detective Constable Merrill alone—is he entitled to relief? The second is of more general importance—is this an appropriate procedure for rectifying alleged errors of this nature occurring in the course of police disciplinary proceedings?
Regulation 7 is in the following terms:
"7. 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 -
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(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
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(b) warning him that if he makes such a statement it may be used in any subsequent disciplinary proceedings."
The meaning of the words "the matter" in the Regulations was the subject of some argument and, as an aid to construction, we were referred to Regulation 6 which uses the same words. In the 1977 Regulations, Regulation 6(1) provided that:
"Where a report, allegation or complaint is received from which it appears that an offence may have been committed by a member of a police force (hereinafter referred to as 'the member subject to investigation'), the matter shall be referred to an investigating officer who shall cause it to be investigated" unless, in certain specified circumstances, the chief officer concerned decides that disciplinary proceedings need not be taken.
The format of Regulation 6 in the 1985 Regulations is slightly different, but insofar as regard can be had to it as an aid to construction, its effect is the same.
I refer to both sets of Regulations because the 1985 Regulations took effect in replacement of the 1977 Regulations after the complaint was made and before the Regulation 7 notice was given, but nothing turns upon which Regulations fall to be applied at any particular time.
The factual background and chronology, which in the main I take from the judgment of Glidewell L.J., was as follows:
28th August 1984
Shortly before midnight Detective Constable Merrill with two other police officers, Mutch and Johnston, all of them in plain clothes, were in an unmarked police car in Parliament Street, Liverpool. They saw another car containing three young men, Evans, who was driving, Fell and Burnham, which drew along the unmarked police car at traffic lights.
Merrill's evidence was that, as he was getting out of the car to speak to the three young men, they drove off and a chase ensued. Merrill alleged that Evans drove at an excessive speed and recklessly, apparently racing two other cars. Finally, the car that Evans was driving was stopped. Merrill told all three that he was arresting them on suspicion of stealing the car they were in. There was then a violent struggle, at the end of which the three young men were arrested by the three officers and, with the assistance of others, taken to Admiral Street Police Station, where they arrived at about 12.20 a.m.
Evans said, correctly as it turned out, that the car was owned by his sister who allowed him to drive it, and accordingly no charges relating to the theft of the car were preferred. However, Detective Constable Merrill also alleged that Evans had been driving recklessly and warned him that he might be prosecuted for this offence.
29th August 1984
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(a) The three arrested youths were examined by a police surgeon in the early hours of the morning.
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(b) Evans' father, a retired Police Constable of the Merseyside Force, went to the Admiral Street Police Station and was seen by Detective Constables Merrill, Johnston and Mutch whilst his son was still there.
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(c) Detective Constable Merrill made a witness statement.
31st August 1984
Solicitors acting for Evans wrote to the Chief Constable giving details of their client's complaints. Suffice it to say that they alleged the use of wholly excessive force, including kicking Evans in the face and tearing his clothing, and the use of bad language. They gave notice that Evans would be claiming compensation for wrongful arrest, imprisonment, assault and distress. In another letter written on the same day on behalf of another of the arrested youths, the same solicitors alleged that the officers had been drinking on duty.
6th September 1984
Superintendent Larsen was appointed to investigate the complaint.
7th September 1984
The solicitors wrote requiring the police not to attempt to contact either the complainants or their families.
19th September 1984
Detective Constable Merrill made a second witness statement.
30th November 1984
Evans was committed to the Crown Court on a charge of reckless driving.
12th December 1984
A civil action was begun against the Chief Constable on behalf of the complainants Fell and Burnham.
2nd January 1985
Detective Constable Merrill attended Police Headquarters at Canning Place to be interviewed about the civil action being brought by the complainants Fell and Burnham.
17th January 1985
Superintendent Corrin was appointed to investigate the complaint in place of Superintendent Larsen.
18th-21st June 1985
Evans appeared before the Crown Court on a charge of reckless driving. The jury were unable to agree upon a verdict and a re-trial was ordered. Evidence for the defence was given by Evans' father and by the police surgeon.
September 1985
The civil action by Fell and Burnham was settled out of court.
21st-24th October 1985
Evans was re-tried and acquitted. Again, the evidence for the defence was given by Evans' father and by the police surgeon.
21st November 1985
A civil action was begun against the Chief Constable on behalf of Evans.
10th January 1986
The investigating officer interviewed Detective Constable Merrill and served a Regulation 7 notice.
January-August 1986
The investigation of the complaints against Detective Constable Merrill continued.
April 1986
Evans' civil action was settled out of court.
6th August 1986
A report was submitted to the Director of Public Prosecutions who on 22nd September 1986 recommended that no criminal proceedings be brought against Merrill or the other police officers involved.
23rd October 1986
The investigating officer's report was submitted to the Police Complaints Authority together with a recommendation from the Assistant Chief Constable that disciplinary proceedings be brought against Detective Constable Merrill.
22nd January 1987
The Police Complaints Authority agreed to the preferment of disciplinary proceedings against Detective Constable Merrill.
26th June 1987
A preliminary hearing took place before the Chief Constable limited to the preliminary point of whether there had been a breach of Regulation 7 and, if so, whether the proceedings should be dismissed at that stage.
THE HEARING
The Chief Constable did not lack legal assistance. Both the Presenting Officer, who is in effect the "Prosecutor", and Detective Constable Merrill were represented by counsel. In addition, the Chief Constable was advised by Mr. Hedley of counsel, who fulfilled the role of the Judge-Advocate at a Court Martial. With a view to assisting the Chief Constable in the approach which he should adopt, Mr. Hedley produced a document containing four questions in flow form as follows:
" PROPOSED APPROACH
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(1) Was the Regulation 7 notice served as soon as was practicable?
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(a) if yes, the Officer's submission fails;
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(b) if no, then
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(2) Has any prejudice been sustained by the officer as a result of the breach of Regulation 7?
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(a) if no, then there is no abuse of process;
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(b) if yes, then
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(3) What prejudice has in fact been sustained in this case? e.g.
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(a)...
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