CO/1870/97
Neutral Citation Number: [1998] EWHC QB 342
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST)

Royal Courts of Justice
 Strand
London WC2

Date: Thursday, 9th July 1998

B e f o r e:

MR JUSTICE COLLINS

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REGINA

‑v‑

CLEVELAND POLICE AUTHORITY

EX PARTE KEITH RODGER

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(Computer‑aided Transcript of the Stenograph Notes of
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MR G MILLAR (instructed by Messrs Russell Jones and Walker, London WC1X 8DH) appeared on behalf of the Applicant.

MR A MARRON QC and MR M O'NEILL (instructed by the legal services Cleveland Constabulary Police Headquarters, Middlesbrough TS8 9EH) appeared on behalf of the Respondent.
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J U D G M E N T

MR JUSTICE COLLINS: This is an application for judicial review brought by Keith Rodger, who at the material time was a serving police officer with the Cleveland Police Authority.  Since March 1996 he had been off work as a result of ill health and on 26th February 1997 he was required by the Chief Constable to retire on medical grounds.  On 3rd March he was served with a notice of medical retirement.
     At about that time it came to the notice of the relevant officers in the force that certain allegations were being made about this Applicant and, in particular, about a fellow officer.  Those allegations were such that in an ordinary course of events he would have been the subject of disciplinary proceedings.  Accordingly the Assistant Chief Constable wrote a letter on 18th March to the Applicant in these terms:
"Dear Mr Rodger,
 
Further to the recent correspondence forwarded to you concerning your proposed medical retirement under the requirements of the Police Pensions Regulations, I wish to notify you that in accordance with Regulation H1 and Home Office Circular 34/1996, I have decided to defer your retirement.
 
The Notice of Retirement dated 3rd March, 1997, is therefore withdrawn and you will not be allowed to retire at the present time. I will notify you of any change in circumstances in due course." 
On 27th March the relevant disciplinary notices were served.
     The notice of requirement, which had been given on 3rd  March, had set the last working day as 8th April 1997.  The first paragraph stated this:
"I have to inform you that on 26th February, 1997, it was ordered that you be retired from the Police Service on medical grounds.  Your last working day will be 8th April 1997." 
Then the various formal matters were referred to.
     Since the 8th or possibly 9th April 1997 (because for reasons which do not matter it seems an extra day has been given) the Applicant has remained a serving member of the police force, albeit he has not attended for duty and has, in the meantime been receiving full pay.  The disciplinary proceedings have not been pursued, I assume pending the decision on this application for judicial review.
     The question that is raised is whether the authority, through the Assistant Chief Constable, had the power to defer retirement by the letter of 18th March 1997.  It is submitted by Mr Millar, on behalf of the Applicant, that on their true construction the relevant regulations make it clear that there was no such power.  I should, therefore, refer to the relevant regulations, which are the Police Pension Regulations of 1987.  A20, which has a side note "Compulsory retirement on grounds of disablement", reads:
"Every regular policeman may be required to retire on the date on which the police authority determine that he ought to retire on the ground that he is permanently disabled for the performance of his duty:
  Provided that a retirement under this Regulation shall be void if, after the said date, on an appeal against the medical opinion on which the police authority acted in determining that he ought to retire, the medical referee decides that the appellant is not permanently disabled." 
To put the proviso and indeed A20 in context, so far as the medical side is concerned, one has to go to Regulation H1. H1, which is in part H headed:  "APPEALS AND MEDICAL QUESTIONS" and is under a side note "Reference of medical questions", reads, so far as material, as follows:
"(1) Subject as hereinafter provided, the question whether a person is entitled to any, if so, what, awards under these Regulations shall be determined in the first instance by the police authority.
 
(2) Where the police authority are considering whether a person is permanently disabled, they shall refer to a decision to a duly qualified medical practitioner selected by them the following questions:

    (a) whether the person concerned is disabled;
 
    (b) whether the disablement is likely to be
    permanent;
 
and, if they are further considering whether to grant an injury pension, shall so refer the following questions:
 
    (c) whether the disablement is the result of
    an injury received in the execution of duty,
    and
 
    (d) the degree of the person's disablement;
 
and, if they are considering whether to revise an injury pension, shall so refer question (d) above.
...
 
(4) The decision of the selected medical practitioner on the questions referred to him under this Regulation shall be expressed in the form of a certificate and shall, subject to Regulations H2 and H3, be final." 
H2 provides a right of appeal by the officer concerned to a medical referee.
     That explains the proviso to A20 because the police authority are enabled by A20 to act once they receive the certificate of the selected medical practitioner, which so  far as they are concerned is final.  Thus, if they receive such a certificate indicating that disablement is likely to be permanent, they cannot appeal against it and they cannot seek to impugn it.  Accordingly, they have then to consider the exercise of their powers under A20.  I will come back to whether there is a discretion whether to exercise those powers in due course.
     The only other regulation which I think I need refer to is A21 which is headed: "Effective date of retirement" and, so far as material, reads by paragraph 1:
"For the purposes of these Regulations‑
...
 
(b) a member of a police force required to retire under Regulation... A20 shall be deemed to retire on the date on which he is so required to retire and his last day of service shall be the immediately preceding day;" 
    I said that was the only other provision I need to refer to, perhaps I should just en passant refer to K5 because that deals with "Forfeiture of pension" and in narrow circumstances where an ex‑officer has committed a criminal offence of a particular kind then the pension can be forfeited.  I do not think I need to refer to the details of K5, but merely indicate that this is the position under it.
     The first question to determine is: what is the duty of the police authority under A20? It is to be noted that the word used is "may":
"Every regular policeman may be required to retire..."
The use of that word indicates that it is a power which is to be exercised and that there must be a degree of  discretion involved in it exercise.  How far does that discretion extend? I have been referred to a decision of Pill J, unreported, given on 15th April 1994, CO‑41‑94: R v Chief Constable of Northumbria Police and Clerk to the Northumbria Police Authority, ex parte Charlton.  That was a case involving a police Inspector in the Northumbria Police who was seeking judicial review of a similar decision to this, in the sense that it was an attempt by the authority to defer the disability retirement under what is now A20, pending disciplinary proceedings.
     There are some distinction as to fact between this case and that.  It appears that it was the Northumbria Police practice laid down in their standing orders that if they obtained a medical practitioner's certificate under Regulation H1, which indicated that there was a permanent disability, they would automatically serve an A20 notice. In the case of Mr Charlton the notice purported to give a provisional date as the last date on which he was to be a serving police officer.
     It appears, and it is not necessary to go into the facts in any detail, that it was known that the disciplinary proceedings were pending and that there was some collusion somewhere which led to the officer obtaining the medical certificate.  It is not suggested that the certificate was other than genuine, notwithstanding that the disciplinary proceedings were pending.  Someone took the view, it seems, that it was desirable to avoid a lengthy investigation for  formal disciplinary proceedings and possible dismissal.
     It is not entirely clear, from my reading of the judgment, whether it was accepted that the provisional date had, as it were, crystallised and that the last day had passed, albeit it was described as provisional.  It seems that a pay slip received by the Applicant in that case on 10th November 1993 indicated that he had retired as from 4th November 1993, which was the provisional date inserted in the notice.  However, it perhaps matters not because when he was told of the medical retirement he was also told by the Superintendant that the medical retirement was to be delayed until the present inquiry concerning himself had been finally resolved.  That is a reference clearly to the disciplinary proceedings.  Thus if he had been retired on 4th November that may simply have been because one part of the authority did not quite know what the other part was doing.  It may simply have been an error.  It clearly cannot be determinative because the circumstances of Charlton boil down to a service of what I will continue to call an "A20 notice", and it seems contemporaneously with that, or very shortly after it, an indication that it was to be deferred pending the disciplinary proceedings.
     Mr Millar, who appeared in that case too for the Applicant, submitted that there was no power to do that, and I assume may well have submitted that the discretion under A20 was a discretion that could only very narrowly be used and really only for the question of when rather than if  there should be a medical retirement.  At page 20 of the transcript, with which I have been provided, the learned judge says this:
"In my judgment, the two stages which Lord Denning contemplated..." 
(He is there referring to R v Kent Police Authority and Others, Ex Parte Godden [1971] 2 QB 663.  In a passage at 669E Lord Denning said this:
"I am clearly of opinion that the decisions leading to compulsory retirement are of a judicial character and must conform to the rules of natural justice.  They are, first, decision by the medical practitioner or on appeal by the medical referee, and, secondly, the inquiry by the police authority themselves.") 
To go back to the passage at 20F Pill J continues:
"Under the procedures they had in force, the decision by the police authority, following their laid down procedure, came immediately upon the issue of the medical certificate. 
 
If I am wrong in my construction of the events of 7th October and the letter served on that date, in my judgment, in the present circumstances as I have outlined them, the respondents still cannot treat the applicant as being employed by them.  The sequence of events was such that they cannot choose for the purpose which they indicate (namely, the purpose of continuing disciplinary action against him) to treat him as an employed person.
 
In my judgment, there is some discretion in the police authority.  There is a discretion as to date.  The first letter refers to the date of termination as 'provisional'. Sensibly, in my view, the exact date is not to be stated until detailed enquiries about entitlement to pay and other matters have been made, and there is a discretion as to that date.  However, I cannot hold that it is within the powers conferred by the existence of that discretion that the respondents are able indefinitely to put off that date; and particularly when the reason they seek to do so is nothing to do with pay and the detail of the working out of allowances, but is to do with the fact that they wish to pursue disciplinary procedures." 
     Mr Millar, if I correctly followed his submissions, suggested that in that passage Pill J was expressing the scope of a discretion under A20.  I do not read the passage in that way.  It seems to me that what he was there saying was geared to the circumstances of that case.  If he was not and if he intended the matter to go wider, I must respectfully disagree with his approach.  Indeed I have my doubts as to whether there is a discretion as to date.  It seems to me that if it is to exercise its discretion under A20 the language suggests that the authority has to fix a date.
     It is for the police authority to work out before it serves the notice the date which is the appropriate date and to include it in the notice under A20.  That is after all what A20, on the face of it, says.  It seems to me that the natural reading of A20 is that there is a discretion in the police authority whether to make use of it at all.  It has the medical certificate.  That gives it the power to use A20 because a combination of A20 and H1 makes that clear.  It must then decide whether it will and if it does what should be the relevant date that is put in the notice.
     It is perfectly proper for it to have regard to other matters such as, for example, whether a police officer who may be permanently disabled from carrying out his normal duties, can be found light duties.  If the officer has been injured on duty, or incapacitated on duty, I have no doubt forces do from time to time decide that it is perfectly  proper for them to decide that they will not retire him, albeit he is permanently disabled from doing the whole of his duties.
     Another possibility is the existence of disciplinary proceedings.  Obviously the nature of those proceedings will have to be considered and if they are relatively trivial matter it would seem quite wrong that the discretion should be exercised against retirement on grounds of disablement. If, on the other hand, they are serious, and they might well lead, if established, to a penalty of dismissal, the authority will have to decide whether on balance it is better to permit the officer to remain suspended on full pay or to discharge him on grounds of disablement.  In this respect, as we know, questions of public interest may come into the picture.  I am quite satisfied that the discretion under A20 is, as the regulation quite clearly, in my judgment, indicates, a discretion whether to exercise and if so, when.  Thus the set of automatic approach adopted in the Northumbria case was in my view wrong.
     However, it is not right to put in an A20 notice anything other than a fixed date for retirement.  After all, as Mr Millar has submitted, in my judgment rightly, one of the purposes of A20 is to let the officer know where he stands and part of that is to let him know when he is due to retire from the force so that he can make any necessary arrangements for what he does during his retirement. Mr Millar gave the example that he might want to take  employment of some sort and may commit himself to an agreement which starts, or needs to start, on a particular date.  He may want to buy himself a place where he can live in retirement.  Again that is something which will no doubt be dependent upon knowing when it is that he is due to retire.  Everything, in my judgment, points to the need to be certain as to the date once a decision is made that A20 is going to be used.
     Because the discretion exists, Mr Marron submits that it is open to the authority to re‑exercise that discretion if new information comes to light.  It was not Mr Marron's submission that the information has to be determinative, but I think it must be potentially determinative information. He accepts, inevitably I think, that if the information comes to light after the date that the officer has retired, nothing can be done.  But he submits that so long as the officer remains in the force, it is proper that the matter should be able to be reconsidered.  Mr Marron says, rightly, that there is nothing in the regulations which suggests that the decision under A20 is to be final, such as there is in relation to the medical practitioner's certificate under H1.
     Mr Millar's primary submission is, as I have said, that the discretion under A20 is narrower and that effectively once the medical practitioner's certificate exists that is the time at which the A20 proceedings must be brought into being.  I have already indicated that I do not accept that.  However, Mr Millar goes on to submit that if he is wrong about that, if there is a discretion in relation to the exercise of A20 powers, once those powers are exercised then they are irrevocable.  He submits that the existence of the proviso in A20, A21(1)(b), and to a degree K5, all point in that direction.  Parliament has thought it necessary to make it clear in A20 that the retirement under A20 shall be void if an appeal to the medical referee decides that the Appellant is not permanently disabled.  Equally A21(1)(b) deems the retirement to be on the date on which the officer is required to retire and that suggests that the matter is indeed fixed once and for all at the service of the A20 notice.
     There is inevitably a degree of artificially because the line has to be drawn somewhere.  If this information had come to light on, or after, 10th April Mr Marron accepts that there is nothing that could have been done about it. The effect of Mr Millar's submissions is that that is the position if it comes to light on or after the 26th February, when the decision was made.
     In my judgment the scheme of the regulations is such that Mr Millar's argument must be preferred.  It seems to me that it would have been open to Parliament to have made it plain that after ‑ acquired information of the sort that is referred to in this case can be a ground for reopening the matter.  Parliament has not so decided and the proviso to A20 and A21(1)(b) do indeed point in the direction of  finality.  The officer will want to make his dispositions on the basis of what he is told and prima facie it would be quite wrong, in my judgment, to enable the matter to be left in the air.
     Mr Millar has drawn my attention to a passage in Wade at page 261 which deals with revocable and irrevocable action.  There is, he submits, a class of case where legal rights have been determined administratively and the subject of the determination is entitled to know where he stands. At the top of page 262 we see this:
"But if in a particular case it has to determine the amount of compensation or to fix the pension of an employee, there are equally clear reasons for imposing finality.  Citizens whose legal rights are determined administratively are entitled to know where they stand." 
    There is a passage further on where in dealing with Tribunals the point is made that there may be a power to set aside judgments obtained by fraud, to correct accidental mistakes or to review a decision where facts subsequently discovered have revealed a miscarriage of justice.  That applies if at all to Tribunals.  It is somewhat tentatively set forward and is not dealing with the sort of situation that we have here.  There is no question of any miscarriage of justice.  It may be that on one view the Applicant is fortunate.
     Equally, as I have said, it boils down to the question as to where one has to draw the line.  I am quite clear that the line is to be drawn at the decision.
MR MILLAR: My Lord, I am sure the matter can be disposed of by a declaration, as per point 1 at page 1 in the bundle in  the notice of application, to the effect:
 
"... the Applicant was lawfully retired from the Cleveland Constabulary on 8th April 1987 pursuant to Regulation 20 of the Police Pension Regulations 1987;"
 
MR JUSTICE COLLINS: Yes, any observations?
 
MR MARRON: My Lord, no.
 
MR JUSTICE COLLINS: That seems appropriate.
 
MR MARRON: My Lord, yes it does.
 
MR JUSTICE COLLINS: Presumably you have to accept that costs follow the event?
 
MR MARRON: I do.  Because of the general ramifications of this particular matter would your Lordship entertain an application for leave to appeal?
 
MR JUSTICE COLLINS: Mr Millar?
 
MR MILLAR: I cannot pretend that it is not important to have a clear legal authority on what age something is about and if that is the basis of the application there is some force in that.  It is a matter for your Lordship whether you feel this is a case where you ought to seek leave from the Court of Appeal or whether you feel, on the basis of what you have heard, that it is important enough.  I suppose the only argument against it is that had the case turned on the argument between him and I as to whether there is a discretion under A20 as to whether you retire, there would have been rather more force in saying that this case should go further.  It turns in fact on the construction of A20 and A21 and its significance.
 
MR JUSTICE COLLINS: That is the part of the‑‑‑
 
MR MILLAR: Its significance is in relation to the odd case that falls between that time gap and the decision and the retirement.  Its practical importance on the ratio of your Lordship's decision.
 
MR JUSTICE COLLINS: I think on reflection I indicated, in my judgment, the decision as to the service.  I think actually thinking about it again it must be the decision and not the service of it.  It must be the decision.
 
MR MILLAR: You only did that right at the very end.
 
MR JUSTICE COLLINS: I shall amend the transcript when I get to it and indicate that it was the decision.
 
 MR MILLAR: Therefore I say my learned friend really has what he wants on that point.  I have lost on that.  That is not the ratio of decision.  On the other points we say that the arguments of construction are overwhelmingly in our favour. It will be a rare case that falls within that, in any event.
 
MR JUSTICE COLLINS: Yes, you want to add‑‑‑‑
 
MR MARRON: Just the observation you made, the proposed amendment, and seek to fortify the application for leave to appeal.  It is an important matter.  The general ramifications throughout the country‑‑‑‑
 
MR JUSTICE COLLINS: I equally understand that, on the other hand I have reached a very clear conclusion indeed and that is something that I think I am entitled to take into account.
 
MR MARRON: My Lord I would not wish to trespass at all on the content of your judgment, but you have mentioned that the position could be clarified somewhat by the efforts of Parliament.  The prospect of that occurring are remote, to say the least, and accordingly we would no doubt all benefit from an established authority on ‑‑‑‑
 
MR JUSTICE COLLINS: You mean my decision is not an established authority?
 
MR MARRON: My Lord, it certainly is that but, my Lord, a higher decision.  It is, in fact, imperative that this is clear.
 
MR JUSTICE COLLINS: It is clear.  No, I think I am afraid that you will have to persuade the Court of Appeal that you have a good arguable point that I am wrong.
 
MR MARRON: My Lord, so be it.  Thank you.