Richard Prior and Others v Commissioner of Police of the Metropolis
| Jurisdiction | England & Wales |
| Judge | Lady Justice Simler,King LJ,Bean LJ |
| Judgment Date | 19 January 2023 |
| Neutral Citation | [2023] EWCA Civ 32 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA/2021/003336 |
[2023] EWCA Civ 32
Lord Justice Bean
Lady Justice King
and
Lady Justice Simler
Case No: CA/2021/003336
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE KING'S BENCH DIVISION
Mr Justice Kerr
Royal Courts of Justice
Strand, London, WC2A 2LL
Elliot Gold and Jonathan Davies (instructed by Simons Muirhead Burton LLP) for the Appellants
Jason Beer KC and Jonathan Dixey (instructed by Weightmans LLP) for the Respondent
Hearing dates: 13 and 14 December 2022
Approved Judgment
This judgment was handed down remotely at 10.30am on 19 January 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
This is an appeal against part of an order dismissing the appellants' claims for certain allowances payable to police officers who are “held in reserve” within the meaning of a determination (Annex U) made by the Secretary of State for the Home Department (“the Secretary of State”) under regulation 34 of the Police Regulations 2003. After an 11 day trial, Kerr J held that the appellants were not “held in reserve” and so were not entitled to Away from Home allowance (“AFH allowance”) and Hardship allowance. Claims for overtime were also dismissed but there is no challenge to the decision in relation to unpaid overtime. The appeal concerns the payment of AFH and Hardship allowances. Since Hardship Allowance is only payable where AFH allowance is itself payable, no separate issue of principle arises as to the payment of that benefit on this appeal.
The appellants (some 397 in total) are specialist police officers, known as Royalty and Specialist Protection (“RASP”) officers, who serve with the Metropolitan Police Service. They serve as RASP officers on terms and conditions that have a statutory underpinning and hold the office of police constable at common law. They are trained and qualified in the use of weapons, including firearms. At trial there were two claimant groups: the “Prior” claimants composed mainly of Static Protection Officers, with one Close Protection Officer and one Aztec officer; and the “Fielding” claimants, all Close Protection Officers.
The respondent is the Chief Officer of Police responsible for the Metropolitan Police District (“the MPD”). In addition, since 3 July 2000 when section 96A was introduced into the Police Act 1996, the respondent has duties to provide certain national or international functions. Those national or international functions include the protection of prominent people of rank and importance, and their families and residences; individuals who could be vulnerable to unwelcome attention from those with malign intent, whether inside the MPD or not. Those protection functions were and are discharged, on a national and international basis, by the RASP officers.
The RASP command was created in July 2015 following a merger of two teams, “SO1” and “SO14”. The RASP officers all serve in the Metropolitan Police Service and do not have special terms and conditions of service. They have their own specific duties and are authorised to carry weapons. They take great pride in their work. Their earnings are among the highest received by officers in the Metropolitan Police Service and other forces. They are highly respected for their important work. The various differing roles and duties of the RASP officers whose appeals are pursued here, can be summarised shortly as follows:
a) Static Protection Officers (“SPO”): these officers are responsible for protection of the Royal Palaces and specified government buildings.
b) Close Protection Officers (“CPO”): these are mobile officers, who are responsible for the close protection of a principal.
c) Aztec officers: these officers support Static and/or Close Protection Officers in an intelligence gathering role.
Some of the evidence heard by the judge was confidential and heard in private for obvious reasons. In his publicly available judgment (cited as [2021] EWHC 2672 (QB), [2022] ICR 398) he addressed the parts of the evidence suitable for publication and the corresponding publishable parts of his reasoning and conclusions, as well as the submissions of the parties informing them. The material not suitable for publication is dealt with in a confidential annex. It is unnecessary to refer to the closed material or the confidential annex on this appeal.
I shall return to the detail of Kerr J's findings and conclusions when I address the grounds of appeal below. But in summary, so far as AFH allowance is concerned, this is provided for by paragraph 11 of Annex U. There are two relevant versions of paragraph 11, the second said by the Secretary of State (and accepted by the judge) to be doing no more than clarifying the earlier version. The first version was effective from 1 April 2012; the second was effective from 1 March 2015.
The 2012 version of Annex U, paragraph 11(b) (which is subject to an exception in paragraph 11(c)) provided that a member is “held in reserve” for these purposes if “serving away from his normal place of duty” and “required to stay in a particular specified place rather than be allowed to return home”. Kerr J held first, that whereas for ordinary officers based at a police station, the station is likely to be the normal place of duty, for all RASP officers, they have a normal place of duty which changes rapidly and frequently as they move around with their principals or in advance of them, or otherwise in the performance of their duties, with or without the principals. Secondly, the requirement to stay in a particular, specified place is fulfilled by a requirement to stay in close proximity to the next day's duty so that, for example, the specified place could be expressed as “any suitable accommodation within easy reach of the Tyne Bridge where next day's demonstration is due to take place”. On this analysis, the judge concluded that RASP officers are not “held in reserve” because they are not serving away from their normal place of duty even if they are accompanying a principal from one place to another, within this country or overseas. (There was an exception identified by the judge as a group of officers on “HRLI deployment” who are treated, pragmatically, as working away from the officer's normal place of duty because HRLI deployments are treated as optional and not compulsory. The judge was not asked to decide whether such deployments give rise to an entitlement to AFH allowance and did not therefore say any more about them).
The judge's conclusions for RASP officers meant that the exception in paragraph 11(c) for those otherwise qualifying as entitled to AFH allowance (because they are “held in reserve” but only by reason of carrying out “routine enquiries”) did not arise for decision in relation to the RASP officers in this case. However, he expressed the view that “routine enquiries” for these purposes means activity which forms part of the officer's role or normal duties.
There are four grounds of appeal for which permission was granted, as follows:
a) Ground one: the judge erred in construing the meaning of “normal place of duty” in paragraph 11 of Annex U as being a place of work in which the appellants worked, thereby conflating a normal place of duty with a temporary place of duty.
b) Ground two: if the judge was correct in holding that officers' “normal place of duty” could change rapidly and frequently, he was nevertheless wrong to find that the meaning of “normal place of duty” changed immediately rather than after a specified period by reference to whether the deployment to a location was genuinely temporary in nature and/or by reference to the officer's base.
c) Ground three: the judge erred in failing to hold that the appellants' duties fell outside the meaning of “routine enquiries” before 1 March 2015 and misconstrued the term to include routine duties.
d) Ground four: The judge erred in failing to hold that the appellants' duties fell outside the meaning of “routine enquiries” on or after 1 March 2015.
There is a Respondent's Notice that only arises if the appellants succeed on both limbs of their appeal, concerning normal place of duty and routine enquiries. There is no challenge to the judge's conclusion about the meaning of staying in a specified place. The Respondent's Notice concerns the meaning of a phrase introduced by amendment to Annex U paragraph 11(b) in the March 2015 version, namely “the need to be ready for immediate deployment”.
The parties have been represented before us, as they were before Kerr J, by Elliot Gold and Jonathan Davies for the appellants; and Jason Beer KC and Jonathan Dixey for the respondent. We are grateful to all counsel for the assistance they provided, both written and by way of oral submissions on this appeal.
Factual and Procedural Background
Kerr J dealt with the facts, including some of the developments in the law that formed an important part of the factual context at [25] to [99] of his judgment. I gratefully adopt his summary so far as relevant to the issues on this appeal.
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