R v Hampshire County Council, ex parte Ellerton
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE O'CONNOR,LORD JUSTICE MAY,LORD JUSTICE SLADE |
| Judgment Date | 20 December 1984 |
| Judgment citation (vLex) | [1984] EWCA Civ J1220-8 |
| Docket Number | 84/0515 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 December 1984 |
[1984] EWCA Civ J1220-8
Lord Justice O'Connor
Lord Justice May
and
Lord Justice Slade
84/0515
QBDF 31/84.
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR. JUSTICE McCULLOUGH)
Royal Courts of Justice.
MR. A. SCRIVENER Q.C. and MR. A. BANO (instructed by Messrs. Robin Thompson & Partners, London, WC1) appeared on behalf of the Appellant.
MR. R. REID Q.C. and MR. J. GIBBONS (instructed by R. A. Leyland, Esq., County Secretary and Solicitor, Winchester, Hampshire) appeared on behalf of the Respondents.
The appellant is a Divisional Officer in the Hampshire Fire Brigade. On 18th April, 1983 he was before the Chief Fire Officer on six disciplinary charges. He was found guilty of two charges arising out of the use of a Fire Brigade vehicle to move a load of tree cuttings from his house to the local authority dump. He was acquitted of the other four charges. The penalty imposed was £40 stoppage of pay. The appellant appealed to the Fire Authority, that is the Hampshire County Council, by virtue of Regulation 8(5) of the Fire Services (Discipline) Regulations 1948. The appeal is a re-hearing Regulation 9.
The appeal was heard by an appeal panel of the Fire Authority composed of five councillors on 1st September, 1983. The appeal was dismissed and the punishment increased to £100 stoppage of pay. The facts giving rise to this appeal were set out in four paragraphs by McCullough J.:
"The hearing of Mr. Ellerton's appeal was to take place before a panel of five members of the Hampshire County Council acting on behalf of the County Council as the Fire Authority. The Chief Fire Officer was to be represented by Mr. A.L. Webb, Assistant County Secretary of Hampshire County Council. He would present the case against Mr. Ellerton. Mr. Ellerton was to conduct his own defence with the assistance of Mr. T. Garland acting as the accused's friend. Mr. J.L. Edgell, Personnel Services Manager of the Manpower Services Unit of the Hampshire County Council, was to act as clerk to the panel.
"On 19th August, 1983 Mr. Webb wrote to each of the five members of the panel. A copy of his letter was sent to Mr. Ellerton. This set out, inter alia, the procedure which Mr. Webb suggested the panel might care to adopt. He said: 'The issue open to the members will be to decide whether or not the charges as alleged have been made out and in the absence of any authority within the Regulations "'themselves members may care to adopt the civil proceedings onus of proof, namely, the balance of probabilities.' The applicant took the view that this set the standard too low and that proof beyond reasonable doubt was appropriate.
"The proceedings were opened by Mr. Edgell confirming that the hearing would proceed in accordance with the procedure laid down in Mr. Webb's letter. Mr. Garland submitted that the charges should be proved beyond all reasonable doubt rather than on the balance of probabilities. In support he referred to a passage at page 137 of the Manual of Fire Service Law by (as he then was) Mr. Peter Pain, published in 1951, which read: 'In deciding the question of guilt, the tribunal should bear in mind that the accused is to be treated as innocent, unless the evidence shows him to have been guilty beyond all reasonable doubt.' He referred also to guidance to the same effect in some Fire Service College Training Notes.
"Mr. Webb made submissions in accordance with his letter. After the panel had taken advice from Mr. Edgell it decided 'that it was appropriate for the case to be decided on the balance of probabilities, as was customary in employment tribunals of this nature.'"
The learned judge held that the civil standard of proof was the right standard for this domestic tribunal, and refused judicial review. The appellant appeals to this court. Mr. Scrivener for the appellant has submitted that the judge was wrong to hold as he did and that in disciplinary proceedings in the Fire Service the criminal standard of proof should be used. He submitted that the Fire Service is a disciplined force with a statutory code of discipline drafted in the language of the criminal law and that the criminal standard of proof was appropriate.
The general rule is that in criminal cases the criminal standard of proof beyond reasonable doubt is required, while in civil cases the civil standard of proof on the balance of probabilities is sufficient. Sometimes the same facts can give rise to criminal and civil liability. For example, in Hornal v. Neuberger (1957) 1 Q.B. 247, the defendant falsely represented that goods sold had been factory reconditioned. He could have been charged with the criminal offence of obtaining money by false pretences, in which event the prosecution would have had to prove that he had made the representation beyond reasonable doubt, whereas in the civil action for fraud the Court of Appeal held that proof on the balance of probabilities was sufficient. Denning L.J. (as he then was) said at page 258:
"The judge reviewed all the cases and held rightly that the standard of proof depends on the nature of the issue. The more serious the allegation the higher the degree of probability that is required: but it need not, in a civil case, reach the very high standard required by the criminal law." Hornal was approved by the House of Lords in Blyth v. Blyth (1966) A.C. 643.
More recently the question of the standard of proof was considered by the House of Lords in R. v. Secretary of State for the Home Department, Ex parte Khawaja (1984) A.C. 74. It is as well to remember the context in which this matter fell for decision. Where a person detained as an illegal immigrant seeks judicial review of the decision of the Secretary of State it is for the applicant to make a prima facie case; thereafter the burden shifts for: "In cases where the exercise of executive discretion interferes with liberty or property rights the burden of justifying the legality of the decision is upon the executive", per Lord Scarman quoting Lord Atkin at page 112. Paragraph (3) of the headnote reads:
"That on an application for judicial review of an order detaining a person as an illegal entrant it was for the executive to prove to the satisfaction of the court on the balance of probabilities the facts "relied on by the immigration officer as justifying his conclusion that the applicant was an illegal entrant". Lord Scarman considered the question of standard of proof, and reviewed the cases at pages 112–14. Three other members of the House expressly agreed with him on this topic. I need only quote two passages from his speech which give valuable guidance on how to approach the problem. He said at page 112:
"I have come to the conclusion that the choice between the two standards is not one of any great moment. It is largely a matter of words. There is no need to import into this branch of the civil law the formula used for the guidance of juries in criminal cases. The civil standard as interpreted and applied by the civil courts will meet the ends of justice." At page 114 he concluded by saying:
"Accordingly, it is enough to say that, where the burden lies on the executive to justify the exercise of a power of detention, the facts relied on as justification must be proved to the satisfaction of the court. A preponderance of probability suffices: but the degree of probability must be such that the court is satisfied. The strictness of the criminal formula is unnecessary to enable justice to be done: and its lack of flexibility in a jurisdiction where the technicalities of the law of evidence must not be allowed to become the master of the court could be a positive disadvantage inhibiting the efficacy of the developing safeguard of judicial review in the field of public law." Although the House of Lords were considering the burden and standard of proof in the proceedings for judicial review, it follows of necessity that the immigration officer in making up his mind to detain a person as an illegal immigrant should use the same standard in assessing the evidence available to him.
If the flexibility of the civil standard is desirable in cases of judicial review, then a fortiori it is desirable in proceedings before domestic tribunals, particularly those deciding disputes arising out of a person's employment.
I have no doubt that proceedings under the provisions of the Fire Services (Discipline) Regulations 1948 are not criminal proceedings. The disciplinary tribunal and the Fire Authority are domestic tribunals, and in the absence of any express provision in the Act or Regulations prima facie the civil standard of proof is appropriate. Mr. Scrivener recognised this, but advanced two reasons for saying that we should declare that offences under these Regulations must be proved beyond reasonable doubt.
Firstly, he submitted that this statutory code is couched in the language of the criminal law for the Regulations talk about "offences", "the accused", "charges", "punishments", and that this language used in relation to a disciplined force is enough to take proof of "offences" out of the civil standard into the criminal. I cannot accept this submission. It is only necessary to look at the Schedule to the Regulations which sets out the "Code of Offences against Discipline". As the offences may lead to dismissal, reduction in rank, stoppage of pay, reprimand or caution, one would expect them to be of varying degrees of seriousness. There is a long list of offences, none of which are necessarily criminal,...
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