Sharples v Halford and Others
| Jurisdiction | England & Wales |
| Judge | THE PRESIDENT,LORD JUSTICE RALPH GIBSON,LORD JUSTICE BUTLER-SLOSS |
| Judgment Date | 17 March 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J0317-6 |
| Docket Number | 92/0297 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 March 1992 |
[1992] EWCA Civ J0317-6
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
The President
(Sir Stephen Brown)
Lord Justice Ralph Gibson
Lord Justice Butler-Sloss
92/0297
MR JOHN HAND, Q.C., and MR GRAHAM MORROW, instructed by Messrs Weightman Rutherfords (Liverpool), appeared for the Appellant (Appellant).
MISS BEVERLEY LANG, instructed by Messrs Vareena Jones, appeared for the First Respondent (First Respondent).
MR EDWIN GLASGOW, Q.C., and MR MARTYN BENNETT, instructed by the Treasury Solicitor, appeared for the Third and Fourth Respondents (Third and Fourth Respondents).
The court has formally before it an appeal from the decision of the Employment Appeal Tribunal set out in a judgment delivered on 4th October 1991 together with a cross-appeal. These arise out of interlocutory applications made by the first respondent, Alison Monica Halford, for discovery and inspection of documents in the course of her application to an Industrial Tribunal for declarations and compensation arising out of alleged discrimination pursuant to the Sex Discrimination Act 1975.
The first respondent to these appeals is an Assistant Chief Constable of the Merseyside Police Force. She claims that the appellant, the Chief Constable of Merseyside, the Northamptonshire Police Authority, H.M. Inspector of Constabulary and the Secretary of State for the Home Department have unlawfully discriminated against her contrary to the provisions of the Sex Discrimination Act 1975 by refusing to appoint, approve or recommend her for promotion to the post of Deputy Chief Constable. By her originating application of 4th June 1990 she alleges that in or about February 1990 she applied for appointment as Deputy Chief Constable of the Northamptonshire Police Force. She was not called for interview, and subsequently a man was appointed to the post. She alleges that she was treated less favourably than the man who was subsequently appointed and also than other male short listed candidates on the ground of her sex. In support of her claim, she lists eight appointments for which she applied unsuccessfully between January 1987 and April 1990. She claims against each of the respondents to her application before the Industrial Tribunal declarations that the respondents and each of them has unlawfully discriminated against her, and against each of them she claims compensation. The allegations are contested by all the respondents. The Northamptonshire Police Authority contends that it did not approve her application because it was not approved by the Secretary of State. The Secretary of State in his turn contends that he has refused to approve any of the first respondent's applications for the rank of Deputy Chief Constable in reliance upon the professional advice which he received from the Inspector of Constabulary. The Inspector of Constabulary for his part contends that his decision was made in reliance upon information which he received from the appellant, that is to say the Chief Constable of Merseyside. The Chief Constable of Merseyside states that he did not recommend her for promotion because of defects of character and judgment which he alleges have an adverse effect on the performance of her duties and her relationships with colleagues.
Miss Halford also seeks a recommendation as against the Inspector of Constabulary, the Secretary of State, and the Chief Constable of Merseyside that they prepare reports upon her suitability for the rank of Deputy Chief Constable without regard to her sex for the purpose of further applications which she may make for appointment to that rank, and further against the Chief Constable of Merseyside that he should allocate her to an operational command within six months. Her application to the Industrial Tribunal is resisted by each of the respondents and her allegations of unlawful discrimination are strongly denied. In accordance with the procedure of the Industrial Tribunal questionnaires were delivered by the applicant Miss Halford to each of the respondents and were duly answered by them. A number of interlocutory issues were subsequently raised. The President of the Employment Appeal Tribunal complained "that the interlocutory bundle of documents now before us exceeds 400 pages". He continued: "Despite the assistance of counsel we have found it impossible to identify the detailed progress of these proceedings to date". He said:
"We would have hoped to see a number of written applications followed perhaps by letters written in agreement or opposition to the whole or part of such applications followed by an order (preferably signed by the learned Chairman) together with the reasons, if a party was asked for them with a mind to appeal. This simple process would be clear for each interlocutory issue. In the present case the simple and logical steps are conspicuous by their absence."
The appeal now before this court is solely concerned with the issue of public interest immunity. This plea was raised in the interlocutory stages of the application before the Industrial Tribunal by counsel for the Chief Constable of Merseyside. It was in due course supported by the other respondents to the application. It was raised on a "class" basis in respect of three categories of documents. First, files relating to the Association of Chief Police Officers, secondly to the police complaints and disciplinary files of the Merseyside Police Force and thirdly to Her Majesty's Inspectors' reports. The Industrial Tribunal considered the plea of public interest immunity during the course of the substantive hearing which had been ordered to commence on 7th January 1991 notwithstanding the fact that the interlocutory issues had not been heard and determined. In a decision sent to the parties on 16th January 1991 the Tribunal rejected the claim for class public interest immunity in respect of what were referred to as the ACPO files and the police complaints and discipline files. It directed that it ought first to see the H.M.I. reports in order to consider their relevance. The respondents to the application appealed to the Employment Appeal Tribunal. The hearing before the Employment Appeal Tribunal concerned a number of issues in addition to the matters which are now the subject of the appeal to this court. The hearing lasted seven days. So far as the relevant issues are concerned, the decision of the Employment Appeal Tribunal is summarised by the learned President, Mr Justice Wood, at page 22 of the judgment of the Employment Appeal Tribunal. At letter E he said:
"To summarise therefore we decide that the HMI reports and the disciplinary files are privileged and that the positive vetting documentation and the documents relating to the private lives of the Chief Police Officers [ACPO files] are also privileged but that we would be minded to look at the personal police records of those police officers to see whether they in fact could be treated as a separate class of which production should be ordered for our inspection."
The Chief Constable of Merseyside, with the leave of the Employment Appeal Tribunal, appealed against so much of the decision of the Employment Appeal Tribunal as directed that, without prejudice to any of the parties' right to appeal the judgment of the Employment Appeal Tribunal, the ACPO files relating to the three chief police officers, apart from files relating to positive vetting into their private lives, be produced for inspection by the Employment Appeal Tribunal. The grounds of the appeal were stated to be that the Employment Appeal Tribunal was wrong in law in deciding that such files as a whole were not (a) subject to public interest immunity (b) as "a class" privileged. Miss Halford issued a respondent's notice indicating her intention to appeal against the order of the Employment Appeal Tribunal which had set aside the decision of the Industrial Tribunal relating both to the ACPO files and to the complaints and discipline files, contending that the contents of the files was both relevant and necessary to the fair disposal of the proceedings. She further gave notice of appeal against the order of the Employment Appeal Tribunal which had set aside the order made by the Industrial Tribunal ordering the Chief Constable of Merseyside to submit to the chairman of the Industrial Tribunal for his decision as to possible disclosure copies of the H.M.I. reports on the Merseyside police for the years 1984 to date. Although the Inspector of Constabulary and the Secretary of State had each served a respondent's notice stating their intention to appeal against the finding of the Employment Appeal Tribunal that the ACPO files (except the positive vetting files) were not subject to public interest immunity privilege as a class, and ordering that parts of the files should be produced to them for the purpose of inspecting them, the issues relating both to the H.M.I. reports and the ACPO files have since been the subject of an accommodation between the parties and they no longer feature in this appeal as a live issue. On 26th February 1992 the Assistant Treasury Solicitor, acting on behalf of the third and fourth respondents to the appeal, that is to say the Inspector of Constabulary and the Secretary of State, wrote to the Registrar of Civil Appeals in the following terms:
"The only matter on appeal in which the Third and Fourth Respondents had a direct interest was the question of disclosure of...
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