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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Lavery v. Strathclyde Joint Police Board [2007] ScotCS CSIH_31 (10 May 2007) URL: https://www.bailii.org/scot/cases/ScotCS/2007/CSIH_31.html Cite as: [2007] CSIH 31, [2007] ScotCS CSIH_31 |
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord OsborneLord MacfadyenLord Kingarth |
[2007] CSIH 31XA63/06 OPINION OF THE COURT delivered by LORD OSBORNE in APPEAL from the Sheriffdom of
Glasgow and Strathkelvin at in the cause HUGH MARTIN LAVERY Pursuer and Appellant; against STRATHCLYDE JOINT POLICE
BOARD Defenders and Respondents: _______ |
Act: Mitchell, Q.C., Bell; Balfour & Manson (Hughes Dowdall,
Glasgow) (Pursuer and Appellant)
Alt:
10 May 2007
The background
circumstances
1. The present proceedings
2. The relevant Regulations
[2] In order to
render comprehensible what follows, it is appropriate to narrate certain parts
of the Regulations, which have a bearing on the issues in this case. This we now do:
"PART A GENERAL PROVISIONS AND RETIREMENT ...
Regulation 12
Disablement
(1) A
reference in these Regulations to a person being permanently disabled is to be
taken as a reference to that person being disabled at the time when the
question arises for decision and to that disablement being at that time likely
to be permanent. ...
(2) Subject
to paragraph (3), disablement means inability, occasioned by infirmity of mind
or body, to perform the ordinary duties of a member of the force, ...
Regulation 20
Compulsory retirement on grounds of
disablement
Every regular policeman may be
required to retire on the date on which the police authority determine, having
given due consideration to all the circumstances, advice, guidance and
information available to them, that he ought to retire on the ground that he is
permanently disabled for the performance of his duty: ...
PART B PERSONAL AWARDS ...
Regulation 3
Policeman's ill-health award
(1) This
Regulation shall apply to a regular policeman who retires or has retired on the
ground that he is or was permanently disabled. ...
(2) A
regular policeman to whom this Regulation applies shall be entitled to an
ill-health award as hereinafter provided.
(3) In
the case of a policeman who is or was at the time of his retirement -
(a) entitled
to reckon at least two years' pensionable service, or
(b) disabled
as the result of an injury received in the execution of duty,
the award under paragraph (2) shall
be an ill-health pension calculated in accordance with (certain specified
provisions).
(4) In
the case of any other policeman the award under paragraph (2) shall be an
ill-health gratuity calculated in accordance with (certain specified
provisions).
Regulation 4
Policeman's injury award
(1) This
Regulation shall apply to a person who ceases or has ceased to be a member of a
police force and is permanently disabled as a result of an injury received
without his own default in the execution of his duty ...
(2) A
person to whom this Regulation applies shall be entitled to a gratuity and, in
addition, to an injury pension, in both cases calculated in accordance with
(certain specified provisions) ...
PART H APPEALS AND MEDICAL QUESTIONS
Regulation 1
Reference of medical questions
(1) Subject
as hereinafter provided, the question whether a person is entitled to any and,
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 for 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
police authority may decide to refer a question in paragraph (2) or, as the
case may be, (3) to a board of duly qualified medical practitioners instead of
to a single duly qualified medical practitioner, and in such a case references
in this regulation, ... to a medical practitioner shall be construed as if they
were references to such a board.
(5) The
decision of the selected medical practitioner on the question or questions
referred to him under this regulation shall be expressed in the form of a
report and shall, subject to regulations H2 and H3, be final.
Regulation 5
Appeal by a member of a home police
force
(1) Where
a member of a home police force, or a person claiming an award in respect of
such a member, is aggrieved by the refusal of the police authority to admit a
claim to receive as of right an award or a larger award than that granted ... he
may, subject to Regulation H7, appeal to the Crown Court and that court, after
enquiring into the case, may make such order in the matter as appears to it to
be just.
(2) In
the case of a member of a Scottish police force, paragraph (1) shall have
effect as if any reference to the Crown Court were a reference to the sheriff
having jurisdiction in the place where the person concerned last served as such
a member. ...
Regulation 7
Limitations on appeals
(1) An
appeal shall not lie under Regulation H5 ... against anything done by a police
authority in the exercise of a power conferred by these Regulations which is
expressly declared thereby to be a power which they are to exercise in their
discretion. ... ".
3. The parties' averments
[3] The appellant
avers that he is a constable with Strathclyde Police, who has been absent from
duty due to ill-health since
[4] In response
to those averments the respondents aver that the appellant is currently the
subject of formal disciplinary proceedings in relation to his conduct as a
police officer. The award of an
ill-health pension can only be made to a serving police officer whose employment
has been terminated as a result of his ill-health. If a police officer resigns or is dismissed
as a consequence of disciplinary proceedings against him, his pension
entitlement is significantly reduced.
[5] In response
to those averments of the respondents, the appellant goes on to aver that the
appellant is unfit, due to the severity of the condition condescended upon, to
give proper instructions for the conduct of any disciplinary proceedings. In any event, no properly conducted tribunal
would be likely in the circumstances to find the appellant guilty of
misconduct. The complaint to which the
respondents refer relates to an incident in Wishaw Police Office on
[6] In relation
to the appellant's averments concerning the alleged basis of the disciplinary
proceedings, the respondents admit the matter to which the disciplinary
proceedings relate; they admit the
appellant's acquittal of a criminal charge and that no other police officer has
been the subject of disciplinary proceedings in respect of the same
incident. They then aver that a notice
was served on the appellant on
[7] The
respondents aver that the appellant has declined and continues to decline to
attend for such examination. By his
actions he has prevented the respondents from progressing the disciplinary
proceedings which they intend to bring against him for serious misconduct. They aver that the appellant is capable of
instructing solicitors. Further, it is
averred that he had attended medical examinations by psychiatrists in the past
and was willing to attend for medical examination by a consultant psychiatrist
in connection with his application for a pension. The respondents aver that there is no good
reason for his failure to attend for medical examination by a consultant
psychiatrist regarding his fitness to face the misconduct proceedings. An adverse finding at the misconduct
proceedings would lead to a range of penalties, including dismissal, a
requirement on the pursuer to resign, and a reduction of the pursuer's
rank. Any of these consequences would
have a material effect on the amount of the appellant's pension. In the event that an award of pension is made
in advance of the resolution of the disciplinary proceedings, it would be open
to the appellant to resign from the police thereafter and thereby avoid the
consequences of the alleged misconduct being established. It is claimed that the allegations against
the appellant would amount to serious misconduct and that there exists a prima facie case against him. The respondents aver that there are no timescales
or time limits applying to them in relation to their operation of the
Regulations. It is reasonable and just
for them to defer any action in relation to the appellant's application for a
pension until the resolution of the misconduct proceedings. It is in the public interest that they should
do so and that no decision be taken on the appellant's pension until serious
misconduct proceedings have been resolved.
[8] The appellant
avers that, by letter dated
[9] In response
the respondents aver that the Regulations do not give the police authority any
discretion to retire or not to retire an officer after that officer has been
determined to be permanently disabled by a qualified medical practitioner. The decision of the medical practitioner on
such a matter is final. The respondents
have no power to overturn that decision for any reason, including a subsequent
finding of misconduct. The respondents
aver that the Regulations do not require them to refer the matter to a
qualified medical practitioner at any specific time. It is their practice not to make such a
reference unless and until disciplinary proceedings have been completed. It would be unreasonable for them to make a
decision regarding the pension entitlement of an officer at a time when there
are outstanding proceedings against the officer which, if they were upheld,
would materially affect the basis of the pension and the amount of the
pension. It would be unreasonable and
contrary to the public interest for a police officer to avoid the consequences
of misconduct by insisting upon a decision prior to the conclusion of
disciplinary proceedings against him.
[10] Against that
background of averments, the appellant made his summary application to the
sheriff seeking two remedies. First, he
craved the court to ordain the respondents to refer for decision to a duly
qualified medical practitioner the questions set in Regulation H1(2)(a) to (d)
of the Regulations in respect of the appellant's claims. Second, the appellant sought an order
ordaining the respondents to admit his claims for an ill-health award and an
injury award under and in terms of Regulations B3 and B4 of the Regulations.
4. The decision of the sheriff
[11] In his note
associated with his interlocutor of
[12] Finally, at
pages 32 and 33 of the appeal print, the sheriff's decision is expressed. There he says:
" In
my view the full submissions and arguments by counsel for the pursuer are based
on the assumption that the defenders have refused to refer this matter to a
qualified medical practitioner ... The defenders state there is no refusal to
refer and admit the claim but they admit deferral for various reasons.
It
seems to me that before I can apply my mind as to whether a referral is
mandatory I must be satisfied that there has been a refusal to refer the
defender (sic) to a medical
practitioner. The pursuer asks me to
rely on the circumstances narrated on Record and suggests that this can be
nothing other than a refusal. I do not
agree with counsel's assumption and cannot adopt this position. The defender on the other hand states that I
should hear the facts first before determining whether there is a delay or a refusal
and I agree with this proposition. Any
order I make requires to be just and I take the view I would require to hear
evidence. The terms of Regulation H5
relating to appeals deal only with a refusal.
I accordingly have to decide whether a deferral is a refusal in the
present circumstances and that involves consideration of whether there is a
discretion to defer and whether such a discretion is reasonable under the
circumstances.
It
seems to me that I cannot on the basis of the submissions made make a finding
that there has been a refusal to refer.
I cannot make this assumption without hearing the evidence since the
defenders deny refusal. The leap to such
a conclusion without hearing evidence is too great in my view. This, as far as I am concerned, is the
initial starting point from which I would require to then consider both
parties' submissions afresh ... For the reasons already narrated I refused to
grant the terms of crave 1."
Submissions of the
appellant
[13] When this
matter came before us, senior counsel for the appellant drew our attention to
the various parts of the Regulations which he conceived were of relevance to
the issues in this case, some of which we have already quoted. He observed in relation to Regulation A20
that the Regulations appeared to afford the initiative in relation to
retirement to the police authority;
there was no provision in the Regulations for police officers themselves
to initiate that. It might be that there
was a lacuna in that regard. In this connection he drew attention to
[14] In the present
case, the appellant had suffered a road traffic accident in June 2002. For a period of time thereafter, initially,
he had been on full pay, latterly he had been on half pay, until the end of
July 2004, when payment ceased. Looking
at the terms of Regulation H1, the only way in which an officer who was unfit
and believed that he was permanently disabled could progress matters was by
means of a reference under Regulation H1(2).
The appellant's submission was that if an applicant averred that he was
permanently disabled, the police authority were obliged to "consider"
that. Hence they would be "considering
whether a person is permanently disabled", with the result that they came under
an obligation to make a reference in terms of Regulation H1(2). However, in this case, the respondents
purported to be applying a policy of their own in view of the outstanding
disciplinary proceedings. Their position
appeared to be that the requirement to refer was being deferred. The language of Regulation H5, which referred
to a "refusal of the police authority to admit a claim" embraced a refusal on
their part to refer in terms of Regulation H1(2). In this connection senior counsel relied on
[15] At this point
in his submissions senior counsel referred to the documentation relevant to the
appellant's position. Numbers 17/40 to
44 of process were correspondence relating to the desired referral. The respondents' position was disclosed in
the letter, dated
[16] In answer to a
question by the court, senior counsel submitted that it was not open to the
police authority to say that they were not "considering whether a person is
permanently disabled" because disciplinary proceedings were in being, on
account of the provisions of Regulation H1.
In any event, it was plain from the letter of the respondents dated
[17] Senior counsel
went on to examine in detail the pleadings of the parties and the sheriff's
judgment, to which we have already referred.
In ordering a proof, it was submitted that the sheriff had erred in
law. Regulation H5, which referred to
the "refusal of the police authority to admit a claim" covered the situation
which had occurred here. The reality was
that the respondents had taken a decision not to make a referral; that amounted to a refusal in terms of
Regulation H5(1). The remedy sought in
the first crave of the initial writ should be granted.
The submissions of the
respondents
[18] Counsel for
the respondents advanced two main propositions:
(1) in the present circumstances, the appellate jurisdiction created by
Regulation H5 did not arise; and (2) in
any event, the matters raised in the respondents' pleadings were such that, if
they were found in fact, the sheriff would be entitled to conclude that the
obligation to refer under Regulation H1(2) had not arisen, or that it was not
just that the order sought should be made.
[19] In developing
his first proposition, counsel made four subsidiary points. First, Regulation H5 was not engaged until
there had been a "refusal of the police authority to admit a claim to receive
as of right an award ... ". Second, there
could be no claim to receive an award as of right and thus there could be no
refusal of such until after a decision had been taken to retire the appellant
on the ground of permanent disablement.
Third, there had been no such decision.
Fourth, it therefore followed that the jurisdiction of the sheriff had
not yet arisen. Counsel agreed with the
suggestion made by the court that, on the basis just submitted, the right of
appeal under Regulation H5 was of a very limited nature. However, he emphasised that there was no
other basis than Regulation H5 upon which the appellant could invoke the jurisdiction
of the sheriff. The only course
otherwise that might be available to the appellant would be that of judicial
review. On the basis of this submission
as to the competency of the present proceedings, this court ought to hold that
the appellant's application to the sheriff was incompetent. While accepting that there was no plea-in-law
apt to raise this point, counsel suggested that the court itself could take the
point.
[20] Counsel went
on to draw attention to the terms of the parties' pleadings. In particular, he drew attention to the terms
of Condescendence 3, which referred to a letter, dated
[21] Thus, looking
at the Regulations it became clear that the decision to retire a police officer
on the basis of permanent disability was that of the police authority, although
the procedure might be initiated by the police authority or by an individual
officer. If the latter course were followed,
the police authority had to decide if they were going to take the matter
forward. If they were, Regulation H1
required a referral to a selected medical practitioner; if the individual was not happy about the
outcome, the option provided by Regulation H2 was available. Thereafter, the matter reverted to the police
authority, which was then faced with the question of whether to retire the
individual on the grounds of permanent disability. If he was so retired, then and only then did
an entitlement under Regulation B3 arise.
If the individual were not retired that would be because he was not
permanently disabled, or if he was, he was to be retained in the police
force. The appeal mechanism under
Regulation H5 was not created to review the exercise of any discretionary
power; that was expressly declared in
Regulation H7(1). Thus a decision taken
under Regulation A20 could not be appealed under Regulation H5. Nevertheless, it was possible to see that the
mechanism of appeal under Regulation H5 could have content in relation to the
precise entitlement of an officer who had been retired.
[22] Counsel next
proceeded to discuss certain of the authorities that had been cited.
[24] Focussing upon
the obligation to refer under Regulation H1(2) that arose where the police
authority was "considering whether a person is permanently disabled", unless
there was some reason for not doing so, the police authority would be exposed
to judicial review if it declined to make a referral.
[25] It was
pertinent to consider what was the effect of the making of a referral. Plainly expense would be incurred. If there was a determination that the officer
was permanently disabled and if he was not retired on that basis, the officer
would be able to resign with the appropriate certificate. He could then obtain the benefit provided by
Regulation B4(2), that is to say a gratuity and an injury pension. He would lose the benefit of Regulation B3. So a certificate of permanent disability
would be a ticket to resignation and the avoidance of disciplinary
proceedings. That was an important
factor affecting the public interest.
[26] In the course
of the discussion of the case there had emerged the question of whether there
was any consideration under Regulation H1(2).
Even if it were assumed that the respondents had commenced consideration
of whether the appellant was permanently disabled, he still had to show that it
was just that there should be a referral.
It was not just nor was it in the public interest that the appellant
should be put in a position whereby he could avoid disciplinary proceedings by
resigning. Thus, upon the hypothesis on
which the second proposition proceeded, the sheriff was quite correct to order
that evidence should be heard relating to the matters dealt with in Regulation
H1(2), with a view to his determining what was just in the circumstances. On this basis the present appeal should be
refused. Either a proof before answer
should be allowed, or the case remitted to the sheriff to conduct a procedural
hearing as to future procedure, which would involve a proof.
[27] At this point
in the debate before us, senior counsel for the appellant observed that he had
had no notice of the competency point raised in his first proposition by
counsel for the respondents. He said that
he was not prepared to provide an immediate response to that proposition. Accordingly, he sought an adjournment. That the court granted.
Further submissions on
behalf of the appellant as to competency
[28] After the
adjournment, senior counsel for the appellant made two submissions on the issue
of competence. First, he contended that
this court should not entertain the submission on competency. Secondly, he submitted that the objection
taken to the proceedings under Regulation H5 by the respondents was
misconceived and should be rejected. It
had been said that the words "as of right" in Regulation H5(1) meant that there
was no access to the
[29] Senior counsel
submitted that there was no merit in the reliance placed on the words "as of
right" in Regulation H5(1). No authority
had been cited to support the respondents' submissions. However,
[30] Looking at the
matter differently, if the respondents' view of Regulation H5(1) were correct,
it was difficult to see what controversial issues might remain for
determination by the sheriff under the Regulation. More generally, it was apparent that the
purpose of the unified scheme in the Regulations was to provide a convenient
and simple appeal to the court.
[31] In this
connection senior counsel submitted that Spriggs
v West Midlands Police (
Reply on behalf of the
respondents
[32] Counsel for
the respondents, in reply, said that it ought to be recognised that there were
two means of review of decision-making by a police authority: first, an application under Regulation H5,
and second, an application for judicial review.
It was understandable that there should be two such procedures. They involved the application of different
tests in different circumstances. The
Regulation H5 application was something which operated where a benefit was
payable as of right in respect of which the sheriff might adjudicate. That view did not deprive a
Regulation H5 appeal of all content.
For example, under Regulation B3 several factual issues could arise,
which might require a factual determination by a sheriff, such as the existence
of two years pensionable service.
Furthermore, the means of calculation provided for in Schedule B Part 3
of the Regulations would be a fertile ground for dispute. Regulation H7 was of some significance, since
it made clear that the appeal under Regulation H5 could not relate to anything
done by a police authority in the exercise of a power expressly declared to be
discretionary. Judicial review would be
available in relation to such decision-making.
[33]
The decision
[34] We deal first
with the issue of competency raised by the first submission of counsel for the
respondents, to the effect that an appeal under Regulation H5 was not available
in circumstances where the member of a police force has not been retired on the
ground of permanent disability. We
consider that the resolution of this issue must depend upon the language used
in Regulation H5. In that connection it
is to be noted, first of all, that the Regulation refers to an "appeal by a
member of a home police force". Regulation
H5(1) speaks of a situation
"Where a member of a home police
force ... is aggrieved by the refusal of the police authority to admit a claim to
receive as of right an award ... ".
If it had been the intention of the legislators that this
right of appeal should be available only to someone who had been retired from a
police force, we do not consider that the language used by them would have been
appropriate. Since the legislators speak
of the appeal as being available to "a member of a home police force", we
consider that to be a strong indication that the position contended for by the
respondents is unsound.
[35] Furthermore it
is to be noted that the Regulation speaks of "the refusal of the police
authority to admit a claim to receive as of right an award". What is in contemplation appears to us to be
an appeal in relation to a decision by a police authority in relation to a
"claim". A claim may or may not be
well-founded, but, if it is but a claim, it cannot be said prior to final
determination of it whether there exists a right to receive an award or
not. Thus, again, we consider that that
feature of the language used in the Regulation tends to support the view
advanced by the appellant in this appeal.
[36]
[37] It was
suggested by senior counsel for the appellant that, if the interpretation put
by the respondents on Regulation H5 were correct, that would deprive the right
of appeal to the sheriff of any significant content. For the reasons advanced by counsel for the
respondents, we do not agree with that submission. Even if the respondents' general submission
were correct, we can envisage that a range of factual issues might nevertheless
be available to be the subject of decision by the sheriff. Accordingly, that part of the argument before
us does not appear to be of much assistance.
[38] It might be
thought that if the appellant's contentions in this regard were correct it
would follow that a sheriff could review a decision taken by a police authority
under Regulation A20 on whether or not to require a police officer to retire on
the ground that he was permanently disabled for the performance of his
duty. We do not consider that that view
is sound, on account of the qualification of the sheriff's powers to be found
in Regulation H7. It appears to us that
a decision as to retirement under Regulation A20 would patently be the exercise
of discretion by the police authority. In
all of these circumstances we reject the respondents' submission that the
appeal to the sheriff in the present case was incompetent.
[39] We turn now to
consider what might be described as the merits of the present appeal. The appellant's position was that in the
admitted circumstances of this case the sheriff had been bound to grant the
order sought in the first crave of the initial writ, that is to say, an order
ordaining the respondents to refer for decision to a duly qualified medical
practitioner the questions set out in Regulation H1(2)(a) to (d). It appears to us that the validity of the appellant's
contention must depend upon the view that the respondents were and are
"considering whether a person is permanently disabled", in particular, whether
the appellant is permanently disabled. If
that were the position, then the respondents would be under an obligation to
refer in terms of Regulation H1(2).
However, in the state of affairs revealed in the averments of the
appellant and the respondents, it appears to us that there is an issue of fact
in relation to that matter. While the
appellant has contended to the respondents that he is permanently disabled, the
respondents' position is that that issue is not, for good reason, currently
being considered by them, standing that there exist pending disciplinary
proceedings against the appellant. Only,
if and when those proceedings are determined, would it be appropriate,
depending on the circumstances, for the respondents then to consider whether he
was permanently disabled in the context of Regulation H1(1). Looking at the matter in another way and, in
particular, in relation to the provisions of Regulation H5(1), it appears to us
that there is an issue of fact in relation to whether the respondents have
refused to admit the appellant's claim to receive as of right an award.
[40] Against this
background, we have reached the conclusion that the decision taken by the
sheriff that evidence should be heard upon the matters which are the subject of
averment in the pleadings is sound. In
our view there is nothing in the Regulations which would preclude an
investigation into the factual issues which we have outlined. Indeed, we consider that the appeal to the
sheriff cannot properly be determined without a factual investigation. In particular, we are of the view that there
is nothing in the Regulations which makes it necessary to conclude that the
respondents are "considering whether a person is permanently disabled" in terms
of Regulation H1(2) simply because, as in this case, the appellant has contended
that that is the case. Furthermore,
there is nothing in the Regulations that leads to the conclusion that, in the
particular circumstances of this case, as revealed in the averments of the
respondents, they have refused to admit the appellant's claim in terms of
Regulation H5(1). In all these
circumstances, we shall refuse the appeal.
[41] It is right to
record that we were not impressed by the respondents' argument based upon the
words the " ... court, after enquiring into the case, may make such order in the
matter as appears to it to be just", appearing in Regulation H5(1). It appears to us that the sheriff, in an
appeal under Regulation H5, must proceed upon a proper interpretation of the
Regulations, if he is to make an order that is just in such an appeal. If the proper interpretation of the
Regulations was as contended for by the appellant, it would be appropriate for
the sheriff to give effect to that interpretation, regardless of whether the
consequences of doing so had the effect of undermining any policy adopted by
the respondents in relation to the timing of the determination of disciplinary
proceedings. Thus, in our view, the
words relied on do not assist the respondents;
essentially the issues raised here concern the proper interpretation of
the Regulations.
[42] It remains
only to record that we consider that the sheriff's interlocutor of
"The defenders having refused to
refer the questions in Regulation H1(2)(a) to (d) of the Regulations for
decision to a duly qualified medical practitioner they should be ordained to do
so as first craved."
In view of the fact that, as the sheriff held and as we have
held, an inquiry into the facts, including whether there has been a refusal in
terms of Regulation H5(1), is necessary, we consider that that plea should have
been left standing. Accordingly, we
shall allow the appeal to the extent of correcting the sheriff's interlocutor
by deleting from it the reference to the repelling in hoc statu of plea-in-law 1 for the pursuer. We consider that it would then be appropriate
for the case to be remitted to the sheriff to proceed in the manner
contemplated by him, that is to say, the hearing of evidence in a proof.