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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Heath v Commissioner Of Police For The Metropolis [2003] UKEAT 454_02_1205 (12 May 2003) URL: http://www.bailii.org/uk/cases/UKEAT/2003/454_02_1205.html Cite as: [2003] UKEAT 454_2_1205, [2003] UKEAT 454_02_1205

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APPEARANCES

 

For the Appellant	MR M SETHI (of Counsel) Instructed By: Messrs Underwoods Solicitors 83/85 Marlowes Hemel Hempstead Hertfordshire HP1 1LF
For the Respondent	MR O SEGAL (of Counsel) Instructed By: Metropolitan Police Service Directorate of Legal Services New Scotland Yard Broadway London SW1H 0BG


 


THE HONOURABLE MR JUSTICE RIMER:

1. This is an appeal against a decision of an employment tribunal sitting at London Central on 25 January 2002 and chaired by Mr B. Buckley. The tribunal's extended reasons were sent to the parties on 12 March 2002. The appeal raises the question of the extent to which a disciplinary hearing held under the Police (Discipline) Regulations 1985 is a quasi-judicial proceeding such as to entitle the Board conducting it to immunity from suit in relation to the manner in which they did so.
2. The appellant is Miss Diane Heath, who was represented before the tribunal and us by Mr Mohinderpal Sethi. The respondent is the Commissioner of Police for the Metropolis ("the Commissioner"), who was represented before the tribunal and us by Mr Oliver Segal.
3. Miss Heath is employed by the Commissioner as a Station Reception Officer. In 1999, she was serving as a civilian member of staff at Hornsey Police Station in London. She complains that on a number of occasions in March 1999 she was the victim of sexual assaults by an inspector at that Station. On 15 April 1999, she presented a complaint to the employment tribunal, alleging unlawful sex discrimination by reason of the inspector's alleged acts. She joined the Commissioner as the sole respondent and relied on sections 6(2)(b) and 41(1) of the Sex Discrimination Act 1975.
4. By his IT3, the Commissioner neither admitted nor denied the allegations against the inspector. He simply asked for the proceedings to be stayed pending the outcome of a proposed investigation into the complaints and any subsequent disciplinary hearings and appeals. He said that, after that, he would seek the tribunal's leave to amend his IT3 to make such admissions or denials of Miss Heath's allegations as were appropriate.
5. Miss Heath's application was so stayed. For a time there was a prospect that a prosecution might be brought against the inspector, but in about mid-1999 the Crown Prosecution Service decided against it. The inspector was then charged under the police disciplinary code and the employment tribunal proceedings remained stayed pending their outcome.
6. The disciplinary hearing against the inspector on charges of indecent assault on Miss Heath took place on 13 March 2001. The hearing was governed by the Police (Discipline) Regulations 1985. In accordance with Schedule 3 to the Regulations, a disciplinary Board consisting of three commanders was appointed to hear the charges. The inspector was represented by counsel. Miss Heath gave evidence and was cross-examined.
7. On 5 June 2001, Miss Heath presented a second complaint to the employment tribunal, again joining the Commissioner as respondent. This time her complaint was that the Board had subjected her to sexual harassment in their conduct of that hearing. She alleges that she felt intimidated by the fact that it consisted of three men. She says that her union representative, Julie Spark, pleaded with the Board to be allowed to sit at the back of the court and to give Miss Heath female support. She complains that, whilst being cross-examined by the inspector's counsel, he asked her to demonstrate how the inspector had fondled her right breast, a demonstration requiring her to open her jacket. She complains that, at the time, the inspector was grinning at her only feet away and that the Board members raised no objection to counsel's request. She says she felt intimidated and humiliated "by the lack of knowledge and compassion the board members displayed." We were provided with a transcript of the part of the cross-examination of which Miss Heath complains, and the relevant exchange occupies seven lines.
8. In December 2001, Miss Heath's second complaint to the employment tribunal was also stayed, this time until after the decision of the Court of Appeal on the appeal against the decision of the Employment Appeal Tribunal in Chief Constable of Bedfordshire Police v. Liversidge [2002] IRLR 15. The Court of Appeal has since given its decision, and it is reported at [2002] ICR 1135. However, this stay did not apply to the determination of a preliminary issue which had been ordered on 1 August 2001. That issue was as to:

"Whether the disciplinary hearing attended by [Miss Heath] on 13 March 2001 constituted judicial proceedings in respect of which members of the Tribunal [meaning the disciplinary Board] and the Respondents are immune from proceedings in the Employment Tribunal."

9. By their careful extended reasons, the employment tribunal explained why they were satisfied that the function of the disciplinary hearing was to arrive at a judicial, and not an administrative, determination and that it followed that the Board and the Commissioner enjoyed absolute immunity from actions complaining about the conduct of the hearing. The result was that they dismissed Miss Heath's application. She now appeals to this appeal tribunal against that decision.
10. We refer first to the 1985 Regulations. Where a complaint is made against a member of the police force ("the member"), regulation 6 requires an investigation to be made. Regulation 7 requires the member to be notified of the investigation, and told that he is not obliged to (but may) make a statement about the complaint, and warned that if he does it may be used in subsequent disciplinary hearings. Once the investigation is concluded, the chief officer concerned decides whether the member is to be charged with an offence. If he is, the offence is entered on a discipline form so that the member will know its precise nature (regulation 8). If a guilty finding could result in the member being dismissed, required to resign or to suffer a reduction in rank, he is entitled to elect to be legally represented at the hearing (regulation 12). As the member against whom Miss Heath made her complaint was an inspector, regulation 13 and Schedule 3 required the hearing to be conducted by a disciplinary board of three appointed by the Commissioner.
11. Regulation 18 deals with the procedure at the hearing. The member (referred to in this regulation as "the accused") is required to attend it. The hearing is in private, with a discretion in the officer conducting the hearing (meaning, in the present case, the Board) to allow other members of the police authority and any solicitor to attend the hearing, if the accused has no objection. Unless the case is one which, under section 102 of the Police and Criminal Evidence Act 1984, may be presented by counsel or a solicitor, it must be presented by a member of a police force, not being either the original investigating officer or the chief officer concerned. The accused may present his own case, or may be represented by a police officer or by counsel or a solicitor. Where he is represented by counsel or a solicitor, the Board may itself be assisted by counsel or a solicitor. Questions of the admissibility of evidence are determined by the Board. A verbatim record of the proceedings is taken. If the charge is found proved, and the accused contemplates an appeal, he is entitled to a transcript.
12. Regulation 19 deals with the use which may be made of written statements at the hearing. Put shortly, written evidence can be adduced by agreement, but otherwise can only be admitted if the witness is available for cross-examination. Regulation 20 empowers the Board to adjourn the hearing from time to time. Regulation 21 deals with the case in which the accused does not attend the hearing.
13. Regulation 22 deals with the attendance of the complainant at the hearing. The Board may allow her to attend while witnesses are examined or cross-examined, and may allow her to be accompanied by "a personal friend or relative who is not to be called as a witness at the hearing." This is subject to the proviso that, if the complainant is to be a witness, she may not be present until after she has given evidence. Where the accused gives evidence, and after any cross-examination by the presenting officer, the Board may put questions to him that the complainant requests, or may permit her to put the questions herself.
14. Regulation 23 applies the criminal standard of proof to the proceedings. Regulation 24 deals with punishment. This includes dismissal from the force, compulsory resignation, reduction in rank, reduction in pay, a fine, a reprimand and a caution. Subject to certain exceptions explained in regulation 23, the punishment is imposed by the Board or other officer conducting the hearing. In certain circumstances, it may fall to others to impose the punishment following a recommendation by the Board or other such officer. Regulation 26 deals with internal appeals.
15. We were referred to a good deal of authority, but will limit our own references. A convenient starting point is the general statement made by Lord Esher MR in Royal Aquarium and Summer and Winter Garden Society, Limited v. Parkinson [1892] 1 QB 431, at 442:

"It is true that, in respect of statements made in the course of proceedings before a Court of justice, whether by judge, or counsel, or witnesses, there is an absolute immunity from liability to an action. The ground of that rule is public policy. It is applicable to all kinds of Courts of justice; but the doctrine has been carried further; and it seems that this immunity applies wherever there is an authorized inquiry which, though not before a Court of justice, is before a tribunal which has similar attributes. In the case of Dawkins v. Lord Rokeby LR 7 HL 744 the doctrine was extended to a military Court of inquiry. It was so extended on the ground that the case was one of an authorized inquiry before a tribunal acting judicially, that is to say, in a manner as nearly as possible similar to that in which a Court of justice acts in respect of an inquiry before it. This doctrine has never been extended further than to Courts of justice and tribunals acting in a manner similar to that in which such Courts act."

16. The question raised by the appeal is whether the proceedings of the disciplinary hearing inquiring into the charge against the inspector were proceedings of a tribunal enjoying the like absolute privilege as is enjoyed by proceedings before a court of justice. We consider the best guide to the resolution of that question to be the decision of the House of Lords in Trapp v. Mackie [1979] 1 WLR 377. This arose out of the dismissal of Dr Trapp from his post as a headmaster. He petitioned the Secretary of State for an inquiry into the reasons for his dismissal. The Secretary of State appointed Mr Kissen QC to hold the inquiry, and Mr Mackie gave evidence to the inquiry. Dr Trapp then sued Mr Mackie for giving what he alleged was maliciously false evidence. His claim was rejected on the basis that, when giving his evidence, Mr Mackie was entitled to absolute privilege, and the House of Lords affirmed that decision. In his speech, Lord Diplock pointed out, at 378, that it had been established from the earliest times that "absolute privilege attaches to words spoken or written in the course of giving evidence in proceedings in a court of justice …." It was a "rule of law, based on public policy …." He said, at 379, that the like privilege extends to "evidence given before tribunals which, although not courts of justice, nevertheless act in a manner similar to that in which courts of justice act, ..." which was established in Dawkins v. Lord Rokeby (1875) LR 7 HL 744. Lord Diplock then said that:

"The kind of tribunal in which the evidence of witnesses is entitled to absolute privilege was described by Lord Atkin in O'Connor v. Waldron [1935] AC 76, 81, as a tribunal which 'has similar attributes to a court of justice or acts in a manner similar to that in which such courts act.' That the 'or' in this phrase is not intended to be disjunctive is apparent from the fact that Lord Atkin was confirming the accuracy of the law as it had been stated by Lord Esher MR in Royal Aquarium and Summer and Winter Garden Society Ltd v. Parkinson [1892] 1 QB 431, 442. Lord Esher, having spoken of 'an authorised inquiry which, though not before a court of justice, is before a tribunal which has similar attributes', went on to explain that what he meant by similar attributes was 'acting … in a manner as nearly as possible similar to that in which a court of justice acts in respect of an inquiry before it.'"

17. Lord Diplock then explained that the reported authorities provided examples falling on one or other side of the relevant line, which in the O'Connor case Lord Atkin said was "not capable of very precise limitation". Lord Diplock said, at 379, that:

"No single touchstone emerges from the cases; but this is not surprising for the rule of law is one which involves the balancing of conflicting public policies, one general: that the law should provide a remedy to the citizen whose good name and reputation is traduced by malicious falsehoods uttered by another; the other particular: that witnesses before tribunals recognised by law should, in the words of the judges in Dawkins v. Lord Rokeby, LR 7 HL 744,753 'give their testimony free from any fear of being harassed by an action on an allegation, whether true or false, that they acted from malice.'"

18. Lord Diplock then identified four matters which needed to be considered when deciding on which side of the relevant line any particular case might fall. The first was that, for absolute privilege to be applicable, the tribunal must be one recognised by law. The privilege does not apply to purely domestic tribunals. There is no issue about that in this case. The hearing was constituted under the Police (Discipline) Regulations 1985 (SI 1985/518), which were in the nature of subordinate legislation enacted under the Police Act 1964 and the Police and Criminal Evidence Act 1984.
19. The second matter is the nature of the question into which the tribunal is required to inquire. Lord Diplock said that the inquiry Mr Kissen was required to conduct was in the nature of issue between the education authority and the dismissed teacher, and so was akin to the type of issues which daily arise in civil suits in courts of justice. Mr Sethi submitted that the issue before the disciplinary hearing in the present case was of a quite different nature. He said that all that the disciplinary hearing was doing was exercising an administrative function concerned with an internal industrial relations question as to the alleged misconduct of an officer. We cannot agree with that. In our view, the issue before the disciplinary hearing in the present case was closely analogous to the type of issue which arises in courts of justice. It was in the nature of the trial, under a procedure recognised by law, of a disciplinary charge, conviction on which could result in the visitation on the accused of one of a range of punishments, from dismissal to a caution. Alternatively, it could be regarded as akin to a criminal proceeding. Either way, its nature was, we consider, capable of resulting in the proceedings enjoying absolute privilege.
20. The third matter is the procedure adopted by the tribunal. Lord Diplock examined the procedure available to and adopted by Mr Kissen and concluded that it was indistinguishable from that followed by a court of justice trying a civil case. In the present case, we consider that procedure required to be adopted at the disciplinary hearing was also, in its essentials, akin to those adopted by courts of justice in trying civil or criminal cases. There were some differences, in that the evidence was not given under oath, nor were witnesses compellable. But the essential similarity with the procedure adopted by courts of justice is clear.
21. The fourth matter is the legal consequence of the conclusion reached by the tribunal as a result of the inquiry. In the Trapp case, Lord Diplock explained that the consequences of the conclusion reached by Mr Kissen as a result of his inquiry differed from the consequences of a decision of a court. That was because, whereas the latter is (subject to any appeal) binding and authoritative in its own right, Mr Kissen's function was to report to the Secretary of State who had appointed him; and it was then for the Secretary of State to form his own opinion as to whether he accepted the opinion expressed in the report, and to act accordingly. Once he had done so, however, the issue between the teacher and the education authority was finally determined.
22. That particular feature of the procedure in the Trapp case could be said to distinguish it from the legal consequences of a decision by a court of justice. Nevertheless, the House of Lords held that the inquiry fell on the side of the dividing line that entitled the proceedings before Mr Kissen to absolute privilege. In the present case, the consequences of a decision of the disciplinary tribunal were either rather closer to those of a decision of a court of justice, or else were not relevantly distinguishable from the situation in the Trapp case: punishments could be imposed either directly by the Board or other officer conducting the hearing, or else on their recommendation. Either way the decision was finally binding on the accused subject only to any appeal.
23. At page 383, Lord Diplock listed the features of the Trapp case which, collectively, pointed up the similarity between the inquiry Mr Kissen was conducting and the procedure of a court of justice. He listed ten of them. We do not propose to list those which apply equally to this case, but will refer to those which do not, namely (1) that the Kissen inquiry was held in public, (2) that witnesses were compellable, (3) that evidence was given under oath, and (4) that the Secretary of State could order either party at the inquiry to pay the other's costs of it. Lord Diplock then went on to add this cautionary observation, namely:

"My Lords, I am far from suggesting either that the presence of any one of those characteristics taken in isolation would suffice to attract absolute privilege for witnesses in respect of testimony given by them before a tribunal or that the absence of any one of these characteristics would be fatal to the existence of such absolute privilege. …I would therefore content myself by saying that the cumulative effect of the ten characteristics that I have listed are more than enough to justify the contention of … Mr Mackie, that the tribunal … was 'acting in a manner as nearly as possible similar to that in which a court of justice acts in respect of an inquiry before it."

24. We do not consider that the fact that the four features we have listed above did not apply to the disciplinary hearing in the present case can have resulted in that hearing being deprived of absolute privilege. The hearing was held in private, but we do not regard this as a decisive feature. For decades prior to the advent of the Civil Procedure Rules 1998 courts used commonly to sit "in chambers", which were in practice regarded as private hearings, although that perception of their nature may perhaps have been misunderstood, as the Court of Appeal explained in Hodgson v. Imperial Tobacco Ltd and Others [1998] 1 WLR 1056. There can be no doubt that proceeding in chambers enjoyed the like absolute privilege as proceedings in open court, and nor can there be any doubt that a like privilege attaches to the proceedings of family courts which commonly conduct their proceedings in private. Nor in our view can it make a material difference that evidence at the hearing was not under oath. Both points are illustrated Dawkins v. Lord Rokeby LR 7 HL 744, in which it was held that absolute privilege applied to the evidence of a witness given to a military court of inquiry. In his speech in the Trapp case, Lord Fraser of Tullybelton pointed out (at 386) that the key feature in the Dawkins case was the fact that the witness was compellable, and that absolute privilege was enjoyed notwithstanding certain features which might be said to detract from the status of the court of inquiry, including (1) that it had no power to administer an oath, and (2) that it sat in private. Moreover, as Lord Fraser's speech also showed, nor is compellability an essential condition of absolute privilege. He said, at 386:

"In Slack v. Barr (1918) 1 SLT 133, Lord Anderson in the Outer House held that absolute privilege attached to the evidence given before an arbitration tribunal under the Munitions of War Act 1915. His decision was given on the assumption (though without deciding) that the tribunal did not have power to compel witnesses to attend. Further authority showing that absolute privilege may apply to proceedings before a tribunal which does not have power to compel the attendance of witnesses is to be found in the opinion of Sellers L.J. in Lincoln v. Daniels [1962] 1 QB 237, 250, referring to a disciplinary tribunal of benchers of one of the Inns of Court."

We add that Addis v. Crocker and Others [1961] 1 QB 11 provides further authority for the proposition that the fact that a tribunal may sit in private is not conclusive against absolute immunity attaching to its proceedings.

25. Despite Mr Sethi's sustained argument to the contrary, we therefore approach the present case on the basis that the essential features of the disciplinary hearing rendered it closely analogous to a judicial proceeding before a court of justice. There were admittedly some differences, but we do not regard them (either singly or collectively) as requiring us to conclude that the hearing was performing a merely administrative function, being one which would not enjoy absolute immunity for what was said and done at it. We consider that the employment tribunal were correct in their conclusion that the disciplinary hearing enjoyed the same absolute immunity as do proceedings before a court of justice. We can find no error of law in their conclusion.

25. Of course, Miss Heath's complaint about the disciplinary hearing is not so much as to what was said at it, but as to (i) the exclusively male constitution of the Board and (ii) as to what was not said at it, in particular the failure of the Board to control counsel's questions of her in cross-examination. If, however, the proceedings enjoyed absolute immunity, that immunity extended even to complaints built on foundations such as this. The immunity attaches not just to defamatory statements made in the proceedings, it attaches to all forms of action "sought to be derived from what was said or done in the course of judicial proceedings …" (per Sellers LJ in Marrinan v. Vibart and another [1962] 3 All ER 380, at 383B). Diplock LJ said the same at 385C. Mr Sethi made the point that the Sex Discrimination Act 1975 says nothing to the effect that tribunals will enjoy any such immunity in respect of claims brought under that Act in relation to the manner in which they conduct their hearings. We regard that argument as carrying no weight. The rule is a longstanding one of public policy which applies in respect of all actions sought to be founded on the alleged acts or omissions of the participants in proceedings to which the rule applies, and Parliament can be taken to have been aware of it when enacting the 1975 Act.
26. Mr Sethi sought to rely on the Human Rights Act 1998, although we have had difficulty in identifying how it can assist Miss Heath. It was accepted that article 6 did not apply to the disciplinary hearing, and in any event article 6 could not have engaged Miss Heath's rights so much as the inspector's. Mr Sethi did, however, place reliance both before the employment tribunal and us on article 8. The argument was that the questions posed to Miss Heath about the alleged assault were concerned with her private life and so within article 8.1. The employment tribunal's answer to that was either that Miss Heath's article 8.1 rights were not engaged at all or, if they were, they were qualified by article 8.2. They said:

"The provisions of Article 8(2) envisage, however, that there may be circumstances as set out therein in which the right to respect for private life can be interfered with by a public authority acting in accordance with law. In the circumstances of this case, we doubt that respect for private life can be properly extended to cover her for being asked to demonstrate to the disciplinary Board how [Miss Heath] claimed she was indecently assaulted by the Inspector. However, in any event, if such a right of respect for private life does exist, it must be counter-balanced by reference to the matters set out in Article 8(2), which would include the right of the Inspector or his representative in the disciplinary hearing to test in cross-examination the evidence of alleged indecent assault being given by [Miss Heath]."

27. In our view, the employment tribunal's conclusion was right. Miss Heath had made a serious allegation against the inspector which, if well founded, could have had extreme consequences for him. They resulted in the contemplation of criminal proceedings, the making of a disciplinary investigation and, ultimately, the holding of a disciplinary hearing on a charge. Conviction could result in a serious penalty, perhaps the ruin of the inspector's career. The fact that Miss Heath made the complaints did not prove that they were well founded. The inspector was entitled to defend himself against the charge, and the proper conduct of his defence entitled him to test Miss Heath's evidence in cross-examination. If he were not to be at liberty to do so, he would be deprived of a fair hearing. It was probably inevitable that the cross-examination would have to deal with the alleged assaults themselves. Of course, we recognise that such cross-examination would be a sensitive matter, and that it would be likely to be upsetting to Miss Heath. We recognise also that a Board conducting such a hearing should be careful to ensure that any such cross-examination is conducted fairly and within proper bounds, although any control of it necessarily involves a difficult balancing exercise between the according of due respect to the sensitivities of the complainant and the right of the accused fully to test the case against him. Even if there was any question here of Miss Heath's article 8.1 rights being engaged, we agree with the employment tribunal that her rights were qualified by the disciplinary hearing's obligation to accord full respect to the inspector's right to a fair hearing. Quite apart from this, we anyway cannot see how a consideration of Miss Heath's alleged article 8 rights was relevant. The employment tribunal had no jurisdiction to hear a claim based on any alleged breach of those, or any other, human rights. The only claim before it was one based on alleged discrimination under the 1975 Act. For reasons given, we regard the Commissioner as enjoying an absolute immunity from that claim. Mr Sethi also sought to place reliance on article 14. We do not follow how Miss Heath can derive any assistance from that article.
28. In our view the decision of the employment tribunal was correct. We dismiss the appeal.