R v Secretary of State for the Home Department, ex parte Thornton
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PURCHAS,LORD JUSTICE RALPH GIBSON,LORD JUSTICE NICHOLLS |
| Judgment Date | 19 February 1986 |
| Judgment citation (vLex) | [1986] EWCA Civ J0219-10 |
| Date | 19 February 1986 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 86/0167 |
[1986] EWCA Civ J0219-10
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr. Justice Woolf)
Royal Courts of Justice
Lord Justice Purchas
Lord Justice Ralph Gibson
and
Lord Justice Nicholls
86/0167
MR. JOHN SAMUELS, QC. and MR. CHARLES PUGH (instructed by Messrs Russell Jones & Walker) appeared on behalf of the Appellant/Applicant.
MR. ROGER TER HAAR (instructed by the Treasury Solicitor) appeared on behalf of the Respondent/Respondent.
This is an appeal against the dismissal on 2nd July 1985 by Mr. Justice Woolf (as he then was) of an application for an Order of Certiorari made by Andrew Paul Thornton to review a decision of the Secretary of State for the Home Department in connection with certain police disciplinary proceedings. The history can be shortly stated. The appellant was a serving police officer and, therefore, subject to the Police (Discipline) Regulations 1977 ("the Regulations"). On 26th January 1983 he pleaded guilty to an offence under s.5(2) of the Criminal Law Act 1967 (causing wasteful employment of the police by knowingly making a false report tending to show that an offence of theft had been committed). The appellant on 26th July 1982 had reported falsely that certain monies had been stolen from his police locker. His mitigation which related his offence to effects on him of injuries sustained whilst on duty found favour with the magistrates, who granted to the appellant a conditional discharge for two years. On leaving the court he was charged with committing an offence against discipline contrary to Reg. 5 and para. 15 of Schedule 2 of the Regulations.
The charge was heard in accordance with the Regulations by his Chief Constable on 7th February 1983. The appellant pleaded not guilty. The only evidence led in support of the charge was given by Superintendent Murdoch. This was to the effect that he was present at the magistrates court on 26th July 1982 when the appellant pleaded guilty. The appellant's defence rested upon s.13 of the Powers of the Criminal Courts Act 1973 ("the 1973 Act") to which it will be necessary to refer in some detail subsequently. The appellant was found guilty.
Acting under the provisions of Reg. 22(1)(b) the Chief Constable required the appellant to resign from the Force as an alternative to dismissal. The appellant appealed to the Secretary of State who dismissed the appeal on 13th February 1984. By Notice of Motion dated 18th June 1985 the appellant applied for leave to issue a Notice of Motion for an Order of Certiorari to quash the order of the Secretary of State. Leave was granted by Mr. Justice Taylor on 14th June 1984.
Reg.5 of the Regulations provides:
"5. A member of a police force commits an offence against discipline if he commits an offence set out in the Discipline Code contained in Schedule 2."
The Discipline Code sets out in 16 paragraphs various breaches of the code. The relevant paragraph is:
"15. Criminal conduct, which offence is committed where a member of a police force has been found guilty by a court of law of a criminal offence."
It is necessary also to refer to certain statutory provisions which, for the sake of convenience, I set out here. The 1973 Act provides:
"2(1) Where a court….. is of opinion that having regard to the circumstances, including the nature of the offence and the character of the offender, it is expedient to do so, the court may, instead of sentencing him, make a probation order…..".
…..
"7(1) Where a court by or before which a person is convicted of an offence (not being an offence the sentence for which is fixed by law) is of opinion, having regard to the circumstances including the nature of the offence and the character of the offender, that it is inexpedient to inflict punishment and that a probation order is not appropriate, the court may make an order discharging him absolutely, or, if the court things fit, discharging him subject to the condition that he commits no offence during such period, not exceeding three years from the date of the order, as may be specified therein."
…..
"13(1) Subject to subsection (2) below, a conviction of an offence for which an order is made under this Part of this Act placing the offender on probation or discharging him absolutely or conditionally shall be deemed not to be a conviction for any purpose other than the purposes of the proceedings in which the order is made and of any subsequent proceedings which may be taken against the offender under the preceding provisions of this Act.
(3) Without prejudice to the preceding provisions of this section, the conviction of an offender who is placed on probation or discharged absolutely or conditionally under this part of this Act shall in any event be disregarded for the purposes of any enactment or instrument which imposes any disqualifications or disability upon convicted persons, or authorises or requires the imposition of any such disqualification or disability.
(5) In this section 'enactment' includes an enactment contained in a local Act and 'instrument' means an instrument having effect by virtue of an Act."
And the Police Act 1976 ("the Act of 1976)") provides:
"11(1) Where a member of a police force has been acquitted or convicted of a criminal offence he shall not be liable to be charged with any offence aginst discipline which is in substance the same as the offence of which he has been acquitted or convicted.
(2) Subsection (1) above shall not be construed as applying to a charge in respect of an offence against discipline which consists of having been found guilty of a criminal offence."
The exercise presented by this appeal is one purely of construction. Mr. Samuels submitted for the appellant that the effect of s.l3(l) and (3) of the 1973 Act is that the imposition of a conditional discharge is not to be deemed to be a conviction for the purposes of the Regulations and that, therefore, there has been no breach of para.15 of Schedule 2.
He further submitted that the learned judge was in error in holding that subsection (3) qualified subsection (1) of s.13 of the 1973 Act and that, therefore, the applicant had failed to establish that process under the Regulations did come within subsection (3), he lost the protection of s.13 of the 1973 Act. Mr. Samuels submitted that R.22(1) (a) and (b) which effectively achieved the dismissal of the officer concerned from the police force "authorised the imposition of a disqualification". In support of his construction of s.13 of the 1973 Act Mr. Samuels relied, with considerable force, on the opening words of subsection (3), namely "without prejudice to the preceding provisions of this section" as indicating that the draftsman did not in any way wish to detract from the generality of subsection (1). Without the protection of s.13 of the 1973 Act, Mr. Samuels conceded that the appellant was liable to be charged under Reg.15 by reason of s.11(2) of the 1976 Act.
Having recognised the practical unlikelihood of a dismissed officer being re-engaged the learned judge dealt with the s.13 argument at page 6G of the transcript:
"However, I do not regard that as the end of the issue which is before me to be determined. I take the view that section 13(1) has to be read together with subsection (3). Section 13(3) deals with a specific situation in general and, in my view, if the applicants are to succeed in their contentions before the court, they have to bring themselves within the provisions of subsection (3). It is not sufficient for the applicant to rely upon the general words of subsection (1) since subsection (3) would otherwise be superfluous."
It is clear that the Regulations are an "enactment or instrument" within the meaning of S.13(5) of the 1973 Act. However, the learned judge concluded, in my judgment correctly, that the effect of the various courses open to the authority under Reg.22, including dismissal or resignation as an alternative to dismissal did not for the purposes of subsection (3) authorise or require the imposition of a disqualification or disability, in the following passage:
"However, it is my conclusion that the words of section 13(3) pre-suppose a situation where a person if the action is taken, is prevented as a matter of law from acting in a particular capacity or performing a particular function.' That does not cover a situation where a police officer, although dismissed from the police force, is not as a matter of law prevented from being engaged as a policeman. He is not disqualified or under a disability in that sense."
The learned judge fairly drew the distinction between the statutory disqualification or disabilities exemplified in s.173 of the Representation of the People Act 1983 and other legislation to which reference was made during argument.
Mr. Ter Haar, who appeared for the respondents, supported the learned judge's construction of s.13 of the 1973 Act; but in addition relied upon a contention set out in his respondent's notice. This was that contrary to the learned judge's view the words "finding of guilt" to be found in s.11(2) of the 1976 Act and Reg. 15 were distinguishable from the meaning of the word "conviction" in s.13 of the 1973 Act.
It is now necessary to consider s.11 of the 1976 Act. The appellant's argument is that subsection (2) only applied where the member of the police force has been "convicted" of a criminal offence and that the use of the words "having been found guilty of a criminal offence" instead of "conviction" is of no significance. Mr....
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