IN RE EVANS (A.P.)
Lord Chancellor
Lord Fraser of Tullybelton
Lord Roskill
Lord Bridge of Harwich
Lord Brightman
Lord Hailsham of St. Marylebone
My Lords,
The analysis of the facts and argument contained in the speech of my noble
and learned friend, Lord Brightman, which I have read in draft, relieve me of
much of the labour in this case, and enable me to reduce the few observations
I wish to make to reasonably concise proportions. I desire, however, to say
at the outset that I agree with every word which is about to fall from my
noble and learned friend as to the treatment to which this young respondent
has been subjected by the appellant. Like my noble and learned friend, I do
not doubt the appellant’s good faith, but in the result, partly as the result of
muddle, partly as the result of a false view of the law, and partly as the result
of a disregard of the elementary principles of natural justice, I regard the
treatment meted out to this young man as little short of outrageous.
Briefly, the proceedings originated in an application by the respondent for
judicial review under R.S.C. Or. 53 of a decision by the appellant (then Chief
Constable of the Police Force of North Wales) whereby in November 1978
he had given the respondent, at that time a probationary constable, the option
of resignation from office or dismissal on a month’s notice under Regulation 16
of the relevant Regulations. In the event, the respondent had chosen resig-
nation, but had sought relief under R.S.C. Or. 53 on the basis that he had been
treated unfairly and in a manner contrary to natural justice.
The first observation I wish to make is by way of criticism of some remarks
of the learned Master of the Rolls which seem to me capable of an erroneous
construction of the purpose of the remedy by way of judicial review under
R.S.C. Or. 53. This remedy, vastly increased in extent, and rendered, over a
long period in recent years, of infinitely more convenient access than that
provided by the old prerogative writs and actions for a declaration, is intended
to protect the individual against the abuse of power by a wide range of authori-
ties, judicial, quasi judicial, and, as would originally have been thought when
I first practised at the Bar, administrative. It is not intended to take away
from those authorities the powers and discretions properly vested in them by
law and to substitute the courts as the bodies making the decisions. It is
intended to see that the relevant authorities use their powers in a proper
manner.
Since the range of authorities, and the circumstances of the use of their
power, are almost infinitely various, it is of course unwise to lay down rules
for the application of the remedy which appear to be of universal validity in
every type of case. But it is important to remember in every case that the
purpose of the remedies is to ensure that the individual is given fair treatment
by the authority to which he has been subjected and that it is no part of that
purpose to substitute the opinion of the judiciary or of individual judges for
that of the authority constituted by law to decide the matters in question.
The function of the court is to see that lawful authority is not abused by unfair
treatment and not to attempt itself the task entrusted to that authority by the
law. There are passages in the judgment of the learned Master of the Rolls
(and perhaps in the other judgments of the Court of Appeal) in the instant
case and quoted by my noble and learned friend which might be read as giving
the courts carte blanche to review the decision of the authority on the basis
of what the courts themselves consider fair and reasonable on the merits.
I am not sure whether the Master of the Rolls really intended his remarks to be
construed in such a way as to permit the court to examine, as for instance in
2
the present case, the reasoning of the subordinate authority with a view to
substituting its own opinion. If so, I do not think this is a correct statement
of principle. The purpose of judicial review is to ensure that the individual
receives fair treatment, and not to ensure that the authority, after according
fair treatment, reaches on a matter which it is authorised or enjoined by law to
decide for itself a conclusion which is correct in the eyes of the court.
In the instant case I have no doubt that the respondent was not treated
fairly by the appellant. In the first place by his own affidavit the appellant
establishes that he asked himself the wrong question, and, once this has been
established, for the purposes of judicial review, that by itself is surely enough
to vitiate an impugned decision which is not otherwise self-evidently justified.
The relevant Regulation enjoined the appellant to consider whether the
respondent was ” fitted physically or mentally to perform the duties of his
” office ” or was likely to ” become an efficient or well-conducted constable ”
before dispensing with his services. In his affidavit the appellant claimed
that this Regulation ” gives me an absolute discretion to dispense with a
” probationer’s services “. In my opinion the discretion, although wide,
is not absolute. The Chief Constable should have directed his mind to the
criteria laid down in the Regulation in accordance with the appropriate
principles of natural justice. He did not do so, and I think it only too likely
that it was precisely the belief that his discretion was absolute which led to
the cavalier treatment to which, in the event, the respondent was subjected.
To this treatment I now come. Once it is established as was conceded
here, that the office held by the appellant was of the third class enumerated by
Lord Reid in Ridge v. Baldwin [1964] AC 40 at p.66, it becomes clear, quoting
Lord Reid (ibid), that there is ” an unbroken line of authority to the effect
” that an officer cannot lawfully be dismissed without first telling him what is
” alleged against him and hearing his defence or explanation “. I regard this
rule as fundamental in cases of this kind when deprivation of office is in ques-
tion. I agree with the appellant’s affidavit that ” a formal hearing ” may well
be unnecessary if by that is meant an oral hearing in every case held before the
Chief Constable himself. But this does not dispense a Chief Constable from
observing the rule laid down by Lord Reid. It may well be also that part or
all of the enquiry on the facts may be delegated to a subordinate official, as
was done here by the appellant to the Deputy Chief Constable, though, where
this is done, the ultimate decision must not be delegated, and in my view,
common prudence should dictate that the report by the delegated officer, in
this case the Deputy Chief Constable, or at least its substance, should be shown
to the officer the subject of review and an opportunity afforded him to comment
on it before the final decision is taken by the Chief Constable himself. This
was not done here. Moreover, where there has been delegation, the delegated
enquiry itself must be conducted in accordance with Lord Reid’s rule, and,
where it is not, the ultimate decision, even if not delegated, will almost
certainly be vitiated.
Apart from his self misdirection on the scope of his discretion, in the present
case the appellant clearly admitted in his affidavit that he had taken into account
matters concerning the domestic life of the respondent, some of which, if
properly put to the respondent, might perhaps, after his explanation had been
given and heard, have influenced the decision as to whether the respondent
was likely to become an efficient or well-conducted constable. But some of
the allegations were plainly erroneous and none, whether erroneous or other-
wise, was ever put to the respondent at all in connexion with the relevant
enquiry, whether at the delegated hearing or otherwise. Moreover, it was
conceded by the appellant’s counsel that, at the time of the extremely brief
interview at which the decision was made by the appellant, the appellant had
already made up his mind to dispense with the respondent’s services on the
basis of the report made to him by the Deputy Chief Constable, and the
respondent was given no chance to say anything by way of denial of the facts
alleged in the report or in mitigation of them.
As an example of the extreme danger of proceeding in this way, it must be
observed, that, as one of the two clinching matters which seem to have in-
fluenced him, the appellant says in his affidavit: ” Further, it became known
3
” (sic) to Senior Officers that the applicant and his wife had lived a ‘ hippy ‘
” type lifestyle at Tyddyn Mynyddig Farm, Bangor “. This had never been
put to the respondent at all, and had the appellant or his deputy to whom he
delegated the enquiry taken the trouble to ask the respondent about it, he
would have discovered at once that this allegedly clinching allegation was
palpably untrue, and simply the result of a mistaken address. It was, in
short, an utterly incorrect statement relied upon precisely owing to the failure
of natural justice of which complaint is made.
There is room for greater controversy regarding the other matter supposedly
clinching. There was a finding by the deputy who conducted the enquiry
that the respondent had ” deliberately flouted ” the conditions of tenancy at
his council house by keeping dogs in excess of the number permitted by the
council and that this exhibited an attitude to authority improper in a member
of the police force. This matter had indeed been put to the respondent in
some form, but there is a conflict of evidence relating to the interview, of which
only the respondent’s version is on oath. Without seeking to resolve this
conflict, I am of the opinion that natural justice required that it should have
been put precisely to the respondent that exact compliance with the conditions
of tenancy within the extended time permitted by the council, which at the time
of the interview had not yet expired, would probably be a condition of his
continuance in office as a probationary constable. It is clear that this was not
done and it is fair to the respondent to say that he deposed on oath that, had
it been put in this way, ” I would have disposed of the dogs “. Without
going into this conclusively, I must express doubt whether, on a fair view of
the evidence, the appellant, had he applied his mind at all to the correct criteria,
or to the evidence available to him in his file, or had he given the respondent
a chance to speak, could possibly have come to the conclusion that the facts
relating to this aspect of the matter betrayed an attitude to authority incon-
sistent with the view that he could at the conclusion of his probationary period
become an efficient or well-conducted constable, or that the respondent was in
any sense deliberately flouting authority. However this may be, the decision of
the appellant was, it seems to me, vitiated beyond repair partly by the fact
that the appellant does not appear to have directed his mind to the correct
criteria laid down in the Regulations, and partly by the fact that he certainly
took into account matters which were never put to the respondent in connexion
with the relevant enquiry, one of which, and not the least important, had it
been put, would have been immediately exposed as nonsense.
Like my noble and learned friend, I find much more difficulty in deciding
the order which it is appropriate for the House to make in a case such as the
present. In Ridge v. Baldwin (supra), a majority of the House, in not dis-
similar circumstances, granted a declaration that the decision of the Chief
Constable was ” void “. This was the language adopted by the Court of
Appeal in the instant case. Personally, I find difficulty in applying the language
of ” void ” and ” voidable ” (appropriate enough in situations of contract or
of alleged nullity of marriage) to administrative decisions which give rise to
practical and legal consequences which cannot be reversed. Under pressure,
which I have considered to be inappropriate and unfair, the respondent,
nearly four years ago, was compelled to resign as an alternative to dismissal
from office. That was in November 1978. He was then a probationary
constable with ten months of service to run. I am inclined to think that
his decision, though made under duress, to pursue the option of resignation
did put an end to the tenure of his office as constable. If so, a declaration
simply to declare void the decision of the appellant to offer the respondent
a Hobson’s choice between resignation and dismissal is a mere brutum fulmen
without practical consequences. This may be illustrated by asking a number
of quasi rhetorical questions. If the decision was ” void “, has the respondent
been a constable in the police force in North Wales in the intervening four
years and what has happened to the ten months of uncompleted probationary
service? Since the only decision removing him from office was the decision
now impugned has he now become an established constable? Has he acquired
pension rights? Is he entitled to back pay? The respondent has moved
house. We are told that he has found other, though less rewarding, employ-
ment in the Civil Service. Can we simply put the clock back as if nothing
4
has taken place? Presumably the respondent has lost much of his training
and experience. If he returned, and if he is still a probationary constable,
he would still be subject to Regulation 16 and the possibility, after a fair
enquiry, of dismissal on a month’s notice. It might well be thought that
after what has happened it might be considered by the new Chief Constable
that the respondent could not become an efficient constable or at least not
without further training. His counsel said that, if reinstated, he would apply
for a transfer to another force. But what possible guarantee have we that
another force would now have him, or that the transfer would be in the public
interest if it did ? These would be matters for the relevant authority. The
respondent has not sought damages, which, in my view, might well have
proved substantial, and, though the appellant stated to us that he would be
prepared to pay compensation if the appeal went against him on the merits,
even in the face of this, through his counsel, the respondent firmly stated that
he was not interested in money and simply wanted ” reinstatement ” whatever
that might mean. This problem did not arise in Ridge v. Baldwin where the
Chief Constable did not seek reinstatement, and was content with a declaration
and his pension rights.
Are we then to leave the respondent wholly without remedy without spelling
out the consequences ? In that case, the order of the Court of Appeal stands
and the decision of the Chief Constable is declared ” void ” without spelling
out what this means. It would be possible, of course, simply to quash the
decision of the appellant as in the old writ of certiorari. But this, too, would
leave the parties without a clue as to their present position or any direction
as to their future conduct. But what the respondent wishes is reinstatement.
There is no cross appeal, but it must be within the power of your Lordships’
House to vary the order of the Court of Appeal. My own belief is that this
would have been pre-eminently a case which would have been dealt with most
effectively either by re-engagement perhaps on a fresh term, which the appellant
does not offer, or by substantial monetary compensation for which the respon-
dent does not ask. Your Lordships’ House is therefore put in a position in
which it is compelled to make an order within the limits of the powers given
the court by R.S.C. Or. 53 which must in any circumstances be less than
satisfactory. I must confess to surprise, and, even to some degree of indig-
nation, that, despite the offer of compensation should the tide of argument go
against him, the appellant gave no instructions to counsel to tender to the
respondent the smallest expression of regret at the really extraordinary treat-
ment meted out to him or even the most qualified offer of re-engagement in
the face of the respondent’s persistent desire to rejoin the force (described in
much greater detail and with great restraint by my noble and learned friend).
As it is, the order of the Court of Appeal cannot stand unaltered, and the best
that your Lordships’ House can properly do for the respondent is the course
proposed by my noble and learned friend with which I now concur. Happily,
the Appeal Committee, as a condition of giving leave to appeal, directed that
the appellant bear the respondent’s costs of the appeal in any event.
Lord Fraser of Tullybelton
My Lords,
I have had the advantage of reading in draft the speech of my noble and
learned friend, Lord Brightman, and I agree with it.
I wish to emphasize that the only matter which I am deciding is that the
process by which the Chief Constable reached his decision in this case was
unfair in respect that the respondent was never told the reasons why his dis-
missal was being considered, and that he was given no opportunity of making
an explanation about the matters of complaint against him. I am far from
saying that, if the procedure had been fair, the Chief Constable would not
have been entitled to reach the decision that he did. Whether the decision
itself was fair and reasonable is not a matter that can be raised in the present
proceedings, but, having regard to the criticisms of the Chief Constable’s
decision made by the Court of Appeal, I think it is only right to say that if
5
he had decided, after hearing the respondent’s explanations, that the respon-
dent’s conduct in marrying a woman who had been living in the same house
as him on the footing that she was his aunt showed that he was not likely
to become a well conducted constable, I very much doubt whether the decision
could have been said to be unreasonable.
I agree that the two declarations proposed by Lord Brightman should be
made.
Lord Roskill
My Lords,
I have had the advantage of reading in draft the speech prepared by my
noble and learned friend, Lord Brightman, with which I agree and I too
would dismiss the appeal.
Lord Bridge of Harwich
My Lords,,
The facts of this most unhappy case are fully set out in the speech of my
noble and learned friend, Lord Brightman. There are only certain aspects
of the case on which I wish to comment.
The Chief Constable’s decision to force the resignation of the respondent
was vitiated both by his erroneous assumption that he had an absolute dis-
cretion and by his total failure to observe the rules of natural justice. The
matters considered fell into two categories, first the respondent’s private life
and domestic circumstances, secondly his keeping four dogs in the council
house rented for his occupation by the police authority. In the first category
because the Chief Constable gave the respondent no opportunity to refute the
allegations against him, he acted on false information. If the truth had been
established, the only matters for consideration under this head would have
been that the respondent was married to a lady some fourteen years older than
himself whom he had previously treated as an aunt, because she had for some
years lived as man and wife, although not married, with the respondent’s
uncle by whom she had four children. For my part, I should regard these
matters as irrelevant to the question whether the respondent was likely to
become an efficient or well-conducted constable.
With regard to the dogs, I do not dissent from the view that a chief officer
of police who is contemplating dispensing with the services of a probationer
constable under Regulation 16 of the Police Regulations 1971 may delegate to
a suitable subordinate the investigation of a specific complaint with a view to
giving the constable a fair opportunity to meet the allegations made against
him. But in the case of such delegation certain conditions should be observed.
First the delegate should make clear to the constable the precise nature of the
complaint and that he, the delegate, is acting on behalf of the chief officer of
police to hear whatever the constable wishes to say about it. Secondly, the
delegate should make a full report to the chief officer of what the constable
has said. Thirdly, the chief officer should himself show the report to the
constable and invite any comment on it before reaching any decision under
Regulation 16.
The evidence as to what happened with regard to the respondent’s dogs is
the least satisfactory part of this case. The memorandum of 6th November
1978 of the Deputy Chief Constable exhibited to the affidavit of the Chief
Constable contains matter which has never been verified by an affidavit of the
Deputy Chief Constable, although much of it is flatly contradicted by the
affidavit of the respondent. Of the three conditions I have referred to above
as necessary to the investigation of a complaint by a delegate of the chief
6
officer of police, it is doubtful if the first two were observed. It is certain
that the third was not. On the probabilities, it is hard to believe that the
respondent, whose dedicated enthusiasm for a police career has never been
doubted, if faced with the stark alternatives of removing three of his dogs
from his council house or being dismissed from the force, would have chosen
the latter.
My Lords, I agree with my noble and learned friends, the Lord Chancellor
and Lord Brightman, that the most difficult problem posed by this appeal is
to decide what remedy is appropriate and further that the form of declaration
made by the Court of Appeal is unsatisfactory in that its practical consequences
are uncertain. So far as it lies within our power, we should, above all, make
clear to the parties what their respective rights and obligations are in conse-
quence of any order to be pronounced. There is no doubt in my mind that
the respondent has suffered a grievous wrong. It should not be beyond the
power of the courts to provide a suitable remedy. The respondent has
throughout disclaimed any interest in monetary compensation. What he seeks
is reinstatement. This could only be secured by an order of mandamus
requiring the present Chief Constable of the North Wales Police to reinstate
him as a probationer constable who has already completed fourteen months
of his probationer service. I have no doubt your Lordships have power to
make such an order and was at one time strongly inclined to think that it
should be made. I know now that none of your Lordships favour such an
order and it would therefore be an empty gesture for me to express a formal
dissent on the point. But, that apart, I appreciate the weight of the objections
to it. Great practical problems would arise in relation to his training and per-
haps other matters from the fact that his service has been interrupted for nearly
four years. Moreover, human nature being what it is, if the North Wales
Police Force had the respondent forced upon them by order of your Lordships’
House as the culmination of this lengthy litigation, there would be an obvious
danger that an undercurrent of ill-feeling would affect his future relations with
his superiors in the force.
I am reluctantly driven to the conclusion that the best service we can render
to the respondent—and indeed this is the least we should do—is to make clear
to the North Wales Police Force or indeed to any other police force he may
now seek to join that he emerges from this litigation with his reputation wholly
untarnished, that nothing has ever been proved against him to show that he is
unlikely to become an efficient and well-conducted constable, but that, on the
contrary, all the formal reports on his work and training during the period of
his service in 1977 and 1978 were highly favourable to him.
As regards the formal disposal of the appeal I concur in the order proposed
by my noble and learned friend, Lord Brightman.
Lord Brightman
My Lords,
The issue in this case is whether the Chief Constable of North Wales Police
acted lawfully when he forced a probationer constable to resign his office;
and, if not, what remedies can properly be granted to the aggrieved constable.
The matter first came before a Divisional Court of the Queen’s Bench
Division. It was heard by Mr. Justice Woolf. He came to the conclusion
that the decision reached by the Chief Constable did not accord with the
standards of fairness that should have been observed, but that no relief should
be granted except in regard to costs. The constable appealed in order to
obtain substantive relief. The Chief Constable cross-appealed. The Court
of Appeal confirmed the conclusion of the Divisional Court but added a
declaration that the Chief Constable’s decision to require the constable to
resign or be dismissed was void. The Chief Constable now appeals to your
Lordships’ House.
7
My Lords, I will narrate the story as briefly as I can, but some detail is
inevitable. In the summer of 1977 the respondent, Mr. Michael John Evans,
applied to join the North Wales Police. He had an unfortunate upbringing,
His father, who had been in the Royal Navy, died when he was five years old.
His mother suffered from ill health and was unable to look after him. In
consequence, he was brought up in an orphanage until he was sixteen. In
May 1971, when he was about nineteen, he had a serious motor cycle accident.
He received a considerable sum of money as compensation. He was in
hospital for almost a year. While there, he was visited and befriended by Miss
Margaret Farey. She was a lady who had been living with his uncle for a
number of years. There were four children of the liaison. The respondent
believed that his uncle and Miss Farey were married. She called herself Mrs.
Evans and he referred to her as his aunt. At about this time, Miss Farey and
the respondent’s uncle parted company. After the respondent left hospital
he stayed for a while with his grandmother, and later with Miss Farey. He
came to know that she was unmarried but he continued to refer to her as his
aunt.
The respondent went out to work. He was first employed as a chauffeur.
He then spent a year as an operating theatre technician in a hospital. This
was followed by a spell of unemployment. In the autumn of 1976 he accepted
an offer of a place at the University College of North Wales, Bangor, beginning
in the autumn of 1976. He first lived in lodgings, but later secured the tenancy
of a house on a farm hear Bangor, where Miss Farey and her two younger
children joined him.
The respondent’s first year at the university was not a success. He did not
achieve the requisite academic standard and he left. He applied to join the
North Wales Police. He was interviewed in July 1977 by Police Sergeant
Morris. The Police Sergeant recorded the following in his suitability report:
” The address where the applicant resides is a house on Tyddyn
” Mynyddig Farm some two miles from Bangor, which his aunt rents
” from the owner of the farm. It is a comfortable home, clean and well
” cared for … For the past twelve months he has resided with his aunt,
” Mrs. Margaret Evans, at the farm, and it appears that she has been the
” one person in his life who has cared for him, and encouraged him in
” his studies”.
A fortnight later he was interviewed by Superintendent Ellis. Finally he had a
brief interview with the Chief Constable, the appellant, and was accepted into
the force. He was duly sworn into the office of constable on 31st August and
became a probationary member of the police force for a period of two years
pursuant to Regulation 15(2) of the Police Regulations 1971. He was then
just under 25 years of age.
On 5th September he began his initial course of training at the Police Training
Centre at Cwmbran. It lasted for two months. He obtained a good report.
The Commandant of the centre described him as ” a very good prospect with
” all the attributes to develop into a reliable and competent police officer”.
He then spent a month on the beat at Holyhead attached to a tutor constable.
He was given a satisfactory report. During this period he gave formal
notice to his Divisional Chief Superintendent of his intention to be married to
” Miss Margaret Farey of Tyddyn Mynddig Farm ” and requested police
accommodation. Within a week the Deputy Chief Constable allocated
accommodation to him at Llangefni, and changed his station from Holyhead
to Llangefni. The accommodation provided was a house belonging to the
local council. On 26th January the respondent gave the Divisional Chief
Superintendent formal notification of his marriage. This showed that his
wife was 14 years older than he.
On 31st January 1978 Police Sergeant Roberts, of the Llangefni Police
Station made a report to the Divisional Chief Superintendent. He said that
as a result of various observations and various rumours spread about the
police station, he had decided to make some discreet inquiries about the
8
respondent and his wife. It is a long report. It is sufficient to pick out
these items:
-
-
-
A year previously a police officer visiting the Evans’ household about
the absence from school of one of the children, had been introduced to the
respondent as the stepson of Mrs. Evans. -
Police Sergeant Morris, who had made the suitability report, had been
led to believe that Mrs. Evans was the respondent’s aunt. -
The respondent’s council house was untidy, poorly carpeted and
furnished. -
Despite the poor state of the house, the respondent had just bought
a large car and he also owned an almost new Honda motor cycle; and
there were four or five dogs in the house. -
It was also within the police sergeant’s knowledge that the respondent’s
referees (in the plural) described him as plausible and possibly dishonest.
-
-
Inspector Yates added a footnote to the report:
(6) Prior to their marriage, the respondent and Mrs. Evans resided at a
hippy commune at Tyddyn Mynyddig; it was believed that Mrs. Evans
was the sister of the respondent’s mother (and therefore within the prohibited
degree of relationship); and there was no proof that Mrs. Evans was divorced
from her previous husband (thus also indicating bigamy).
On 3rd February this report was forwarded by the Divisional Chief Superin-
tendent to the Deputy Chief Constable. On 8th February the Divisional
Chief Superintendent added fuel to the fire. Current information, he said,
suggested that in the past the respondent had had several (query severe)
financial difficulties; he was said to be plausible; and he had a medical history
of chronic leg injuries.
On 9th February the Deputy Chief Constable asked the Divisional Chief
Superintendent to interview the respondent with a view to resolving the various
issues which had recently come to notice. The respondent was summoned to
an interview. Superintendent Ellis attended with the Divisional Chief Superin-
tendent. The Divisional Chief Superintendent gave the respondent to believe
that the interview was concerned only with a discrepancy in the number of
children in the family, in order to ensure that the family would obtain the full
benefit of the pension arrangements.
According to the evidence, none of the various items—I am tempted to call
them smears—appeared to have been brought out into the open so as to
enable the respondent to put the record straight. The rumour that Mrs. Evans
was still the wife of the respondent’s uncle, and the alternative rumour that
Mrs. Evans was the sister of the respondent’s mother, were ultimately laid to
rest by an investigation conducted by New Scotland Yard at the request of the
Divisional Chief Superintendent. A report of his investigation was made on
19th July. As to the rest of the items:—
-
-
-
As regards the untidy and poorly equipped house the respondent and
his wife had only just moved in and there is uncontradicted evidence that
they had not had time to get their furniture out of store and carpets fitted. -
There is uncontradicted evidence that the respondent had suffered
from no financial difficulties. -
It was somewhat misleading to record that the respondent’s referees
(in the plural) had described him as plausible and possibly dishonest. The
truth was that one referee, the Dean of the Faculty of Science at the University
had concluded his letter as follows—
-
-
” I believe Evans to be reasonably intelligent and, on first acquaintance,
” he has an outgoing and fairly attractive personality. However, I should
” say that I doubt somewhat his plausibility. In some ways it is perhaps
” a minor matter but he tendered a number of excuses about his academic
9
” performance which I saw no reason to disbelieve. Quite by accident,
” as a result of an inquiry from his Local Education Authority, I came to
” discover that much of what he had said was in fact untrue. When
” subsequently tackled about this matter he still wished me to believe
” most of what he had previously told me. He therefore is either dis-
” honest with himself and/or is willing himself to believe a situation exists
” when it clearly does not. I am sorry to have to report on Evans in this
” way because I firmly believe he has had a difficult home environment
” in his earlier days and I think he is deserving of some help.”
-
-
-
The reference to the hippy commune was a most damaging error.
Inspector Yates had confused the farm where the respondent lived with
another locality where he had never been. -
The respondent’s leg injury had been fully disclosed in his medical
report and he had completely recovered from it.
-
-
In the meantime the respondent undertook phase 1. of the Headquarters
Training Course, a Traffic Course, an Administration Course and a C.I.D.
Course. All reports from those instructing him were good.
To go back in time for a moment: in January 1978 when the respondent’s
house had been allocated to him, the respondent had called at the Council’s
Housing Department to discover the Council’s attitude towards the keeping
of domestic pets. He had four dogs. He was told that as a rule pets were not
allowed, but that the Council took no notice unless there were complaints.
At a routine meeting with the Divisional Chief Superintendent a little later,
the respondent told him about the dogs. The Divisional Chief Superintendent
informed him that there was no problem as long as the dogs were kept under
control. In the autumn of 1978, acting on information that the respondent
had four dogs, a Health Inspector called at the house. He said that as a rule
only one dog was allowed, but it appeared that no actual complaint had been
made by anyone. The Health Inspector agreed that the dogs were well cared
for and said that the Health Department could have no complaint. However,
two days later a Council official called and told the respondent that he would
have to get rid of the dogs.
On 19th October Superintendent Jones of Caernarvon interviewed the
respondent as a result of what he had heard about the dogs. On the next
day the respondent made a written report to the Divisional Chief Superin-
tendent explaining his predicament. He referred to the interview with
Superintendent Jones and added that at this interview he had indicated that
he would try to find alternative accommodation, but the possibility of success
seemed remote. The respondent handed his memorandum to Superintendent
Jones who forwarded it to the Divisional Chief Superintendent with his own
covering letter. In his covering letter Superintendent Jones wrongly informed
the Divisional Chief Superintendent that prior to being moved to Llangefni
the respondent and his family were living in a hippy commune at Bangor, and
added that his wife continued to dress in the hippy fashion; and that all the
dogs were strays. The respondent denies that his wife dressed in hippy clothes,
and there is undisputed evidence that none of the dogs was a stray. Superin-
tendent Jones added that he had told the respondent that he had the alternative
of getting rid of three of the dogs or finding alternative accommodation.
On 20th October a routine assessment report was made on the respondent.
This followed the pattern of earlier reports; his appearance and bearing were
of high standard; in the performance of his duties he got through a great deal
of work; he accepted responsibility; was considerate and firm in his attitude
to the public; showed a great deal of interest; and was well liked and respected
by his colleagues. Sergeant Evans, who signed the assessment, considered
that he would do well in his career. Inspector Yates, who endorsed the
assessment, said the respondent showed a great deal of interest and enthusiasm,
and intended to establish a career for himself within the police force. It was
Inspector Yates who started the damaging canard about the hippy commune.
He did not repeat it. But unfortunately it had already been repeated by
Superintendent Jones.
10
On 23rd October the respondent visited the Senior Management Officer of
the Local Council to discuss the question of the dogs. In a letter of the same
day the Senior Management Officer wrote to the respondent requesting him to
find other accommodation for the animals within the next four weeks, i.e. by
the third week in November.
On 25th October the respondent reported to his Divisional Chief Superin-
tendent. He said that he had been given four weeks to leave the Council house.
That was not an accurate account of the Council’s letter, although it would
come to the same thing if he adhered to his expressed intention of not parting
with the dogs. The respondent said that he could see no prospect of finding
suitable alternative accommodation.
On 30th October the Divisional Chief Superintendent forwarded the memo-
randa of 19th, 20th and 25th October to the Deputy Chief Constable.
On 6th November the Deputy Chief Constable interviewed the respondent.
He was told that there were only two alternatives, that he ” should comply
” with the conditions of tenancy or that we should take other action by e.g.
” terminating his employment “. The Deputy Chief Constable added in his
memorandum of the interview, which he forwarded to the Chief Constable,
” it was very doubtful in my view whether people who deliberately flouted
” conditions of tenancy were suitable to be in the police service.” Your
Lordships may feel that an accusation of deliberately flouting the terms of the
tenancy is an extravagant description of the respondent’s conduct in the light
of the clear evidence that he began with a revocable permission to keep the
dogs and, though the permission was now revoked, he still had another fort-
night within which to comply with the Council’s requirements.
On 8th November the respondent was summoned to an interview with the
Chief Constable. He was told by the Chief Constable that ” I had made a
mistake in accepting him and gave him the opportunity to resign as an alter-
” native to formally dispensing with his services”. He was given no indication
of the reasons for his enforced resignation. The respondent in his affidavit
says this about the interview, and his account is not disputed:— ” I asked if
” I could have a reason for this action but he refused outright. I was not
” informed of what was alleged against me nor afforded any opportunity
” to be heard by way of defence or explanation. I asked for time to consider
” and he said that I must let him know by 10 a.m. the following morning.
” I was not given any document recording this decision.” As a result of the
Chief Constable’s threat, the respondent signed on 9th November a formal
letter of resignation.
At the time of his enforced resignation it should be observed that the re-
spondent still had a fortnight within which to comply with the Council’s
requirements: that all the routine reports on his suitability as a police constable
had been highly satisfactory, and likely, viewed in isolation, to lead to his
being confirmed in office; and that he was due in only three weeks’ time to attend
a routine interview with his Divisional Chief Superintendent pursuant to the
ordinary probationary procedure.
Within a week of his enforced resignation, the respondent applied to join
the Metropolitan Police. The Metropolitan Police, naturally enough, com-
municated with the North Wales Police. The Deputy Chief Constable replied
by letter in fairly innocuous terms. The Chief Constable of the North Wales
Police also spoke personally to the Assistant Commissioner of the Metro-
politan Police. Not surprisingly his application was rejected. It has no
particular importance except to demonstrate the respondent’s dedication to
police work, and the then practical impossibility of his regaining acceptance
into a police force.
My Lords, before I conclude this unhappy story, I must turn to the statutory
provision. Regulation 16 of the Police Regulations 1971, which I need not
quote verbatim, provides that during his period of probation in the force, the
11
services of a constable may be dispensed with at any time if the Chief Officer
of Police considers:
-
-
-
that he is not fitted, physically or mentally, to perform the duties of
his office, or -
that he is not likely to become an efficient constable, or
-
that he is not likely to become a well conducted constable.
-
-
It is plain from the wording of the regulation that the power of a Chief
Officer of Police to dispense with the services of a person accepted as a proba-
tioner constable is to be exercised, and exercised only, after due consideration
and determination of the specified questions. It is not a discretion that may
be exercised arbitrally and without accountability.
A year went by. The respondent tried unsuccessfully to pursue a remedy
before an Industrial Tribunal. He consulted solicitors and applied for legal
aid which took some time to arrange. On 23rd October 1979 his solicitors
wrote to the Chief Constable. They indicated that he would be seeking
judicial review of the decision to dispense with his services. They asked the
Chief Constable to reconsider his decision. They also requested disclosure
of various reports about him which the respondent knew, or suspected, were in
existence. This request was peremptorily refused in a letter despatched by the
Chief Constable two days later.
In early January 1980 the respondent filed the requisite statement and swore
the requisite affidavit in support of his application for leave to apply for
judicial review. At this time he was still unaware of the facts or supposed
facts which had led the Chief Constable to force his resignation. So far as
he was aware, there was only one matter over which any problem arose,
namely, his ownership of the dogs, of which the North Wales Police were
aware shortly after he took up accommodation at Llangefni. Leave was
given by a Divisional Court on 29th January. On the following day the
respondent issued a Notice of Motion seeking (1) an Order of Certiorari to
quash the Chief Constable’s decision of 8th November 1978, (2) an Order of
Mandamus directed to the Chief Constable requiring his reinstatement, and
(3) a declaration that the decision of the Chief Constable was illegal, ultra
vires and void. On 8th May 1980 the respondent obtained a consent order
for the discovery of the documents which he had requested six months earlier.
On 12th June 1980 the Chief Constable swore an affidavit in answer to the
respondent’s filed statement and affidavit. There are two important matters
revealed in the affidavit. First, the Chief Constable asserted that Regulation
16(1) gave him an absolute discretion to dispense with a probationer’s services.
Secondly, in deciding as he did, the Chief Constable was principally concerned
with three adverse factors—
-
-
-
The respondent had married a woman much older than himself; she
was the former mistress of his uncle; such a marriage might give rise to
some scandal, which would not be in the interests of the force. -
The respondent and his wife were keeping four or five dogs in a police/
council house, when there was a permitted limit of one dog. -
The respondent and his wife had lived a ” hippy ” life style at the
Bangor farm.
-
-
The second of these adverse factors was inaccurate, because the dogs were
initially kept in the house with the Council permission; and that permission
was still extant at the date of the Chief Constable’s decision. The third
adverse factor was the result of a complete misunderstanding and was devoid
of all substance.
The respondent swore an affidavit in reply on 15th January 1981. He
furnished his answers to all the criticisms of which he had by now become
aware and he convincingly disposed of the damaging statement about the
previous life style of himself and his wife. Furthermore, he deposed that if
he had realised that he had to choose between keeping his career and keeping
the dogs, the dogs would have gone. It is difficult to suppose otherwise.
12
The Chief Constable has never challenged the truth of the respondent’s
second affidavit.
The motion came before Mr. Justice Woolf on 23rd March 1981. The
learned judge found in favour of the respondent to the extent that he held
that the proper approach to this type of case was that the Chief Constable was
bound to act fairly in the course of exercising his statutory discretion under
Regulation 16; and that the decision which was reached did not accord with
the standards of fairness because the respondent was not given an opportunity
to answer the accusations which led the Chief Constable to the conclusion
which he reached. However, the learned judge declined to grant any relief
except in costs. His reasoning was this. The court could give no remedy
now which would enable the respondent to serve the period which would have
remained if his engagement had not been terminated, because the two year
probationary period was long since expired. Even if that period had not
ended, the court would not in the normal way make an Order of Mandamus
requiring a Chief Constable to re-engage a constable. The only order which
could be made would be one which would have required the Chief Constable
to reconsider his decision of 8th November. There was no purpose to be
served by such an order now that the probationary period had expired. To
put the matter shortly, an Order of Mandamus would be contrary to all
precedent and an Order of Certiorari would be academic. He could not make
a Declaratory Order that the respondent was still a probationary constable,
nor could he make a declaration that the Chief Constable’s decision was
wrong. All that could be declared would be that the decision had been
reached irregularly, and such a declaration would serve no purpose.
Mr Lords, I must address myself later to the question of remedy. All that
I would say at this moment is that it would, to my mind, be regrettable if a
litigant who establishes that he has been legally wronged and particularly in
so important a matter as the pursuit of his chosen profession, has to be sent
away from a court of justice empty handed save for an order for the recoupment
of the expense to which he has been put in establishing a barren victory.
The respondent appealed. By his notice of appeal, he sought an Order of
Certiorari, an Order of Mandamus and a declaration in the terms set out in
his application for leave to apply for judicial review. The Chief Constable
cross-appealed. He attacked the findings of the learned judge. He claimed
not only that the decision was fairly reached, but also that the respondent’s
office was held during pleasure so that, on established principles, he had no
right to be heard before dismissal.
Before I turn to the judgments in the Court of Appeal, I would make certain
observations on the law as I understand it. I turn first to the decision of this
House in Ridge v. Baldwin (1964) AC 40 where I find useful guidance on the
proper approach to this type of case. As was pointed out by Lord Reid
(page 64 et seq.) The application of principles of natural justice to a variety
of different situations is likely to lead to varying definitions of those principles.
For example, ” what a minister ought to do in considering objections to a
” scheme may be very different from what a watch committee ought to do in
” considering whether to dismiss a Chief Constable.” So cases of dismissal
need to be considered on their own. Lord Reid divided these into three
categories. First, dismissal of a servant by his master. Here no relevant
question arises as to whether the master has heard the servant in his defence
unless, presumably, the principle of audi alteram partem has been made a
term of the contract. The question is whether the facts emerging at the trial
prove a breach of contract. If so, damages are payable for the breach.
Secondly, dismissal from an office held during pleasure. ” It has always
” been held, I think rightly, that such an officer has no right to be heard before
” he is dismissed, and the reason is clear. As the person having the power
” of dismissal need not have anything against the officer, he need not give
” any reason.” (Per Lord Reid, at page 65). Thirdly, dismissal from an
office where there must be something against the office holder to warrant his
dismissal. ” There I find an unbroken line of authority to the effect that an
” officer cannot lawfully be dismissed without first telling him what is alleged
13
” against him and hearing his defence or explanation.” (Per Lord Reid,
at page 66.)
I turn secondly to the proper purpose of the remedy of judicial review,
what it is and what it is not. In my opinion the law was correctly stated in
the speech of Lord Evershed (at page 96). His was a dissenting judgment
but the dissent was not concerned with this point. Lord Evershed referred to
” a danger of usurpation of power on the part of the courts . . . under the
” pretext of having regard to the principles of natural justice.” He added
” I do observe again that it is not the decision as such which is liable to review;
” it is only the circumstances in which the decision was reached, and particularly
” in such a case as the present the need for giving to the party dismissed an
” opportunity for putting his case.” Judicial review is concerned, not with
the decision, but with the decision-making process. Unless that restriction
on the power of the court is observed, the court will in my view, under the
guise of preventing the abuse of power, be itself guilty of usurping power.
I leave these preliminary observations in order to consider the judgments
in the Court of Appeal. It was accepted by each member of the court that
the case fell within the third of Lord Reid’s categories; that the respondent
was entitled to a fair hearing; and that he had not had one. However the
learned Master of the Rolls added this:
” I go further. Not only must he be given a fair hearing, but the
” decision itself must be fair and reasonable. That is the protection
” afforded to every servant who is employed under a contract of service.
” He is protected against unfair dismissal. No less protection should
” be afforded to a probationer constable.”
The learned Master of the Rolls then concluded by saying that,
” It is my opinion that the Chief Constable was not justified in dispensing
” with the services of Constable Evans or in requiring him to resign.”
Lord Justice Shaw and Lord Justice Ackner concurred.
In his submissions to this House, counsel for the appellant submitted that
the Chief Constable took into account all the matters which appeared on the
respondent’s file; that he was entitled to rely on the accuracy of the reports
of his officers; and that he was not bound to put every adverse point to the
respondent.
My Lords, for my part I emphatically reject the approach of the Chief
Constable to his duties under Regulation 16. He made the fundamental
mistake, as appears from his affidavit, of assuming that he had an absolute
discretion to discharge the respondent under Regulation 16, a right to dismiss
him at pleasure. That was not his right. His mistake coloured and indeed
tainted the decision-making process. His discretion to discharge was a
qualified one, exercisable only if he considered that the respondent was not
fitted to perform the duties of the office or was not likely to become an efficient
constable or a well conducted constable. It is implicit in Regulation 16 that
there must be a fair consideration of the constable’s fitness to perform his
duties and a fair consideration of the likelihood of his becoming an efficient
and well conducted constable. The legality of the choice given to the re-
spondent to resign or be discharged must be judged by the same criteria as
applied to the legality of discharge without the alternative of resignation;
for clearly the Chief Constable could not use an invalid threat of discharge
to compel resignation, as that would be an abuse of power.
As I have indicated, the Chief Constable forced the respondent’s discharge
on account of three adverse factors which he believed to exist: the allegedly
undesirable marital circumstances, the alleged hippy life style and the alleged
flouting of authority. It was the duty of the Chief Constable to deal fairly
with the respondent in relation to the adverse factors upon which he was
proposing to act. The Chief Constable failed in his performance of that duty
because these supposedly adverse factors were never put to the respondent.
He was given no opportunity to offer one word of explanation. Your
14
Lordships will not doubt the honesty of the Chief Constable and that he
reached a decision which he truly believed was in the interests of the North
Wales Police on the information that had been laid before him. But the
inescapable fact is that he misunderstood the extent of his discretion and the
nature of his duty under Regulation 16. The decision-making process was
therefore defective.
There is however a wider point than the injustice of the decision-making
process of the Chief Constable. With profound respect to the Court of Appeal,
I dissent from the view that ” Not only must [the probationer constable] be
” given a fair hearing, but the decision itself must be fair and reasonable “.
If that statement of the law passed into authority without comment, it would
in my opinion transform, and wrongly transform, the remedy of judicial
review. Judicial review, as the words imply, is not an appeal from a decision,
but a review of the manner in which the decision was made. The statement
of law which I have quoted implies that the court sits in judgment not only
on the correctness of the decision-making process but also on the correctness
of the decision itself. In his printed case counsel for the appellant made this
submission: ” Where Parliament has entrusted to an administrative authority
” the duty of making a decision which affects the rights of an individual,
” the court’s supervisory function on a judicial review of that decision is
” limited. The court cannot be expected to possess knowledge of the reasons
” of policy which lie behind the administrative decision nor is it desirable that
” evidence should be called before the court of the implications of such policy.
” It follows that the court ought not to attempt to weigh the merits of the
” particular decision but should confine its function to a consideration of
” the manner in which the decision was reached.” When the sole issue raised
on an application for judicial review is whether the rules of natural justice
have been observed, these propositions are unexceptionable. Other con-
siderations arise when an administrative decision is attacked on the ground
that it is vitiated by self-misdirection, by taking account of irrelevant or
neglecting to take account of relevant factors, or is so manifestly unreasonable
that no reasonable authority, entrusted with the power in question, could
reasonably have made such a decision. See the well known judgment of
Lord Greene M.R. in Associated Provincial Picture Houses Ltd. v. Wednesbury
Corporation [1948] 1 KB 223.
I agree entirely with the Court of Appeal, and indeed with the Divisional
Court, that the respondent did not have the fair hearing to which he was
entitled. I differ only from the Court of Appeal on the extent of the Court’s
supervisory jurisdiction.
I turn now to the question of remedies. The Court of Appeal granted the
respondent a declaration that the decision requiring the respondent to resign
or be dismissed was void. I feel some misgivings about a declaration in that
form, because it is not clear to me what consequences flow from it. Whatever
remedy may be granted by the Court in this case, I think it is highly desirable
that the North Wales Police and the respondent should be in no doubt how,
under the Order, they will stand in relation to each other.
The conclusion reached by the Divisional Court, the Court of Appeal and
by this House, if your Lordships are in agreement with me, is that the Chief
Constable acted unlawfully and in breach of his duty under Regulation 16 in
threatening to dispense with the respondent’s services unless he resigned from
the North Wales Police and in thus causing him to resign. That having been
established, the respondent is, in my view, entitled at least to a declaration to
that effect. But the matter cannot be satisfactorily left there. One must
know what are the consequences that flow from the breach of duty.
One possibility would be to add to that declaration an Order of Mandamus.
The respondent has one desire and one desire only, namely, to be reinstated in
the police force. This would be secured if an Order of Mandamus were to
issue, directed to the Chief Constable now in office, requiring him, for example,
to restore the respondent to the office of probationer constable as held by him
on 8th November 1978.
15
An alternative to an Order of Mandamus would be a declaration affirming
that, by reason of such unlawfully induced resignation, the respondent thereby
became entitled to the same rights and remedies, not including re-instatement,
as he would have had if the appellant had unlawfully dispensed with his services
under Regulation 16(1). Such a declaration would clarify the status of the
respondent vis-a-vis the North Wales Police, and would leave him free to
pursue such remedies, short of re-instatement, as may be open to him. I have
in mind that under Order 53 Rule 7 an applicant for judicial review may claim
damages if they are sought in the filed statement and if damages could have
been awarded in an action brought for the purpose. I have not, however,
addressed my mind to the question whether it is still open to the respondent
to apply to amend his filed statement by adding a claim to damages.
It is possible that the respondent would not wish, nor indeed would have
any incentive, to pursue a claim for damages. Counsel for the appellant,
acting on instructions, told your Lordships that if the decision of your Lordships’
House went in favour of the respondent it would be the intention of the North
Wales Police to offer him monetary compensation. I trust that the compen-
sation which the Chief Constable has in mind to offer would be on a generous
scale, and amply reflect the fact that the respondent has been unlawfully deprived
of his profession as a consequence of the wrongful procedures of the Chief
Constable’s predecessor in office.
I feel that the choice of remedy is a difficult one. It is a matter of discretion.
From the point of view of the respondent who has been wronged in a matter
so vital to his life, an Order of Mandamus is the only satisfactory remedy.
I have been much tempted to suggest to your Lordships that it would in the
circumstances be a remedy proper to be granted. But it is unusual, in a case
such as the present, for the court to make an Order of Mandamus, and I think
that in practice it might border on usurpation of the powers of the Chief
Constable, which is to be avoided. With some reluctance and hesitation, I
feel that the respondent will have to content himself with the less satisfactory
declaration that I have outlined.
So far as I am aware, it would be open to the respondent to apply in the
ordinary way to re-join the North Wales Police as a new entrant. If the
respondent does make such an application, I for my part express the hope that
the North Wales Police will give very serious consideration to it. If an
objective assessment of his accomplishments and character were made, the
North Wales Police might come to the conclusion that a person so dedicated to
the profession is police material which ought not lightly to be discarded.
They might feel that his re-acceptance would go some way towards remedying
the wrong which he has suffered as well as benefiting the force itself. This
would be a happy solution, if it could properly be brought about; it would give
the respondent the chance which he merits; and the way that I have expressed
myself avoids any usurpation of the power of the Chief Constable, because a
decision to accept or reject must lie with him.
My Lords, I would dismiss the appeal but vary the Order of the Court of
Appeal by substituting the declarations which I have outlined for that which
is contained in the Order of the Court of Appeal.
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