R v Deputy Chief Constable of the North Wales Constabulary, ex parte Hughes
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RALPH GIBSON,LORD JUSTICE NICHOLLS,LORD JUSTICE NEILL |
| Judgment Date | 24 July 1990 |
| Judgment citation (vLex) | [1990] EWCA Civ J0724-7 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 July 1990 |
| Docket Number | 90/0753 |
[1990] EWCA Civ J0724-7
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)
(MR. JUSTICE MACPHERSON)
Royal Courts of Justice.
Lord Justice Neill
Lord Justice Ralph Gibson
Lord Justice Nicholls
90/0753
MR. R. HENDERSON Q.C. and MR. P. HAVERS (instructed by Messrs. Russell Jones & Walker) appeared on behalf of the (Applicant) Appellant.
MR. E. TABACHNIK Q.C. and MR. D. JANNER (instructed by the Solicitor to the Chief Constable, North Wales Police) appeared on behalf of the (Respondent) Respondent.
This is an application for judicial review made with the leave of this court and reserved for hearing by this court. It raises questions as to the construction of provisions in the Police (Discipline) Regulations 1985—"the Discipline Regulations"—and in particular those dealing with the suspension of a police officer against whom an allegation has been made of a disciplinary or a criminal offence. This court has heard the initial application because, when leave was granted, an early decision was necessary. It is not normal for the substantive application to be heard by the Court of Appeal upon the grant of leave: see the practice directions [1982] 1 W.L.R. 1375; [1990] 1 W.L.R. 51.
The applicant is Anthony Hughes, a suspended member of the North wales Police Force. The respondent is Mr. Robert Eric Evans, the Deputy Chief Constable of North Wales.
The application was directed, at the commencement of the hearing, to three decisions of the respondent, each a refusal and each concerned with the applicant's requests to be permitted to attend meetings of the Police Federation. The first two decisions, those of 5th January and 26th January 1990, have no continuing effect because the meetings in question have taken place; but our conclusions upon the validity of those decisions will require the resolution of issues of law which are of public importance.
The third decision was, at the commencement of the hearing, of continuing effect. By it, on 19th February 1990, the respondent refused to approve the attendance of the applicant at the annual conference of the Police Federation on 22nd to 24th May 1990. The applicant was seeking an order of this court which would require the respondent at least to permit his attendance at the conference. On the second day of the hearing, on 17th May 1990, all issues with reference to the third decision disappeared from the case. The applicant seeks no order with reference to that decision and the parties are agreed that there should be no order as to costs of that issue. The court was informed that the agreement between the parties was to the effect that if the applicant should go to the joint central conference of the Police Federation, making no claim in respect of expenses or allowances arising from such attendance, the respondent accepted that the applicant would not be liable to disciplinary proceedings or any adverse consequences by reason of such attendance.
The making of the decisions.
The account of the facts can be shortened because, with reference to the first two decisions, the allegation that they were unreasonable on the facts has been abandoned by the applicant.
On 23rd August 1989 the applicant received an "initial notice of allegation" under regulation 7 of the Discipline Regulations, to the effect that allegations had been made relating to his conduct when speaking to, or otherwise approaching, certain female members of staff, both police officers and civilian employees, and that inquiries were being made into those allegations.
On 11th December 1989 the applicant was interviewed with reference to the allegations and, in accordance with regulation 7 of the Discipline Regulations, there was served upon him a form giving particulars of seven allegations which were said to have occurred between 14th July 1989 and 5th August 1989 in which two women were named, one a civilian employee and the other a woman police constable. On 18th December, upon the instructions of the respondent, the applicant was suspended under regulation 27.1 of the Discipline Regulations.
It is necessary to set out (with emphasis added to the relevant words) that part of the regulations in full:
"27.1 Where a report, allegation or complaint is received from which it appears that a member of a police force may have committed a disciplinary or criminal offence, the chief officer concerned may suspend that member from membership of the force and from his office of constable, whether or not the matter has been investigated."
The validity in law of the decision to suspend the applicant has not been questioned in these proceedings. The truth of the allegations, however, which led to the suspension and which the applicant has at all times disputed, has not yet been determined in disciplinary proceedings. The court has been told that it has been decided that there will be no prosecution for any criminal offence.
The first decision.
On 2nd January the applicant by letter requested the respondent to allow his attendance at police headquarters on 10th and 17th January to attend the statutory meetings set for those dates. On 5th January the respondent by letter refused the request. The text of the letter, which is relevant to the submissions which have been made, was as follows:
"I acknowledge receipt of your [letter] dated 2nd January 1990. I am unable to accede to your request to be permitted to attend the Police Federation meetings on 10th and 17th January 1990. Regulation 27 of the Discipline Regulations clearly states that an officer is suspended from membership of the force and from his office as constable."
That letter is the basis of the primary submission for the applicant to the effect that the respondent apparently misunderstood the effect in law of suspension under regulation 27 in that he plainly thought that it meant what it appears to say. Further, since he had a discretion to permit the applicant to attend the Police Federation meetings, he misdirected himself in thinking that the terms of regulation 27 rendered him unable to accede to the request.
Next, Mr. Henderson has submitted that, although the respondent has by affidavit sought to explain that he had at the time also considered whether it would be right to accede to the applicant's request but had concluded that it would not be, the court should refuse to admit the evidence. The respondent set out in his affidavits the matters which led him to conclude that it would not be right to grant the request. Mr. Henderson has argued that the court should refuse to look at the reasons given in the affidavits and should look only at the letter of 5th January because of a principle said to be found in the decisions in R. v. Licensing Authority, ex parte Barrett [1949] 2 K.B. 17, Div. Crt. Ward v. Shell Mex [1951] 2 All E.R. 904, Stretfield J; and R. v. Knightsbridge Crown Court, ex parte International Sporting Club [1982] 1 Q.B. 304, Div. Crt. I will say now that, for reasons explained later in this judgment, the principles stated in those cases could not, in my judgment, justify the exclusion by the court of the respondent's evidence as to the reasons for his decision.
Returning to the history of this matter, the first meeting took place on 10th January 1990—that was a quarterly meeting of the Constables' Branch Board. On 15th January 1990 the applicant applied for leave to apply for judicial review in respect of the refusal relating to the meetings of 10th and 17th January. It must be noted that those meetings were to take place on police premises and it is common ground that the respondent could lawfully refuse to give permission to the applicant to enter police premises. It has not been argued that, by reason of his continued effective membership of the force, and thereby of the Police Federation, he can assert some sufficient right or interest to enter police premises without the consent of the chief officer in order to attend a Police Federation meeting. The relief sought by the applicant included the quashing of the decisions and an injunction restraining the respondent from refusing the applicant permission to attend the meeting of the Police Federation to be held at police headquarters on 17th January 1990.
The main ground of the application was stated then as it has in substance remained, namely that the true effect of regulation 27 is to suspend the officer in question from the rights and duties flowing from his membership of the police force and from his office as constable and not from his membership of the force and from his office of constable.
On 16th January 1990 Mr. Justice Macpherson refused leave. The application was renewed to this court on the same day and leave was granted. Upon the usual undertaking as to damages, and upon certain conditions, the respondent was restrained from refusing the applicant permission to attend the meeting of the Police Federation to the held at police headquarters on 17th January 1990 or from refusing the applicant access to the headquarters for the purposes of attending the meeting. The substantive application was, as I have said, retained to this court because it was necessary for it to be heard as soon as possible.
The second decision.
On 19th January by his solicitor the applicant requested permission to attend on 31st January at police headquarters the meeting of the branch delegates for the Police Federation annual conference. The applicant had been elected as a...
To continue reading
Request your trial