O'Leary, R (On The Application Of) v Merseyside Police [2001] EWHC Admin 7 (09 February 2001)

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1. The claimant is a serving police officer with the Merseyside Police. He joined the force in 1985 and later became a CID officer. On 17 June 1993 in disciplinary proceedings he received a reprimand for using unnecessary violence towards a prisoner. That punishment was routinely expunged from his personal record three years later on 17 June 1996. On 16 December 1997 in later disciplinary proceedings he was found guilty of a charge of criminal conduct. This followed a conviction in South West Lancashire Magistrates Court on 5 August 1997 of an offence of persistently making use of the public telecommunication system for the purpose of causing annoyance, inconvenience or needless anxiety to another. He received a caution for that disciplinary offence and, in the course of things, that would not be recorded on his personal record. In April 1998 he was arrested and suspended from duty in connection with an allegation involving the misuse of a credit card. However, in November 1998 he was notified that no further action was to be taken in respect of that allegation. In December 1998 he was interviewed under caution in the course of another criminal investigation concerning an allegation of defrauding insurance companies to obtain cheaper car insurance. However, in February 1999 the Crown Prosecution Service decided not to proceed in relation to that matter. His suspension, which had begun in April 1998, was lifted but he was posted to uniform duties rather than the CID. These are all matters of history which preceded the circumstances which immediately gave rise to the present application. I next turn to those circumstances.

2. On 28 May 1999 further disciplinary charges were brought against the claimant. One alleged that in October 1997 he had obtained a discount on the purchase of a Ford motor car by falsely representing that he was the grand-son of a person who was a retired employee of Ford. A second alleged that he had received insurance monies following the theft of his motor car but had failed to account to a finance company in relation to them. On 3 June 1999 a third charge was laid, namely that he had made a false claim for motoring expenses in May 1995. In due course the claimant was served with papers for a disciplinary hearing to be held before the Chief Constable on 10 April 2000. Although there had originally been three charges, only two were put to him at the hearing and one of those was withdrawn. He pleaded guilty to the remaining charge being the one which concerned the discount on the purchase of the Ford motor car. His plea of guilty was the subject of a written basis of plea signed by Counsel. That document is in the following terms:

"Greg O'Leary went to Skyway Ford to buy a car. The salesman said that if he knew of anyone who worked at Fords he could get a discount voucher. The salesman reminded him of a person they both knew at Fords and asked him to get a voucher. The salesman instructed Mr. O'Leary to insert his details as purchaser and to insert `grandson' being the relationship between their mutual friend and the former employee of Ford. When Mr. O'Leary filled in the form and inserted the word `grandson' he did so on instructions without turning his mind at all to the matter. He did not consider the matter and was therefore not acting dishonestly. In hindsight Mr. O'Leary accepts that he should have read the form more carefully."

The plea having been accepted on that basis, Chief Inspector Walker then gave the Chief Constable evidence of antecedents. This included reference to the criminal conduct comprising the conviction at South West Lancashire Magistrates Court but no reference was made to the earlier disciplinary finding which was properly considered as "spent". The antecedents also included a considerable amount of positive information which drew attention to creditable aspects of the claimant's police service and his personal circumstances. Reference was made to the previous period of suspension, its lifting and the subsequent, then still current, return to uniform duties.

3. Having heard the material evidence, the Chief Constable expressed his decision in the following terms:

"I hope that any such behaviour and ill judgment is a thing of the past. On the basis of that hope and on the basis of a very positive antecedent history......you will retain your job. I reprimand you for the charge of discreditable conduct admitted by you today in an agreed statement of facts. Unless the presenting officer is aware of any other impediment I remove any restriction on your deployment as of today......not retrospectively I remove that restriction as of now. It is now for your Area Commander to decide on your future employment and deployment and I intend to make these closing remarks, call it if you like on the basis of instinct.....You are a young man with a chequered disciplinary history, but with at least sixteen years of police service ahead of you, you have three young and very dependant children, and on the basis of what I have heard this morning will need to be able to rely on you for many many years. Rely on your financial support, rely on you as a role model, rely on you to be there and to be provided. Today is the first day, it is a trite thing to say, of the rest of your life and your career. Continue to act in a way that shows how much you value your job, your career and your profession as a police officer........Thank you very much you are free to go now."

"was extremely relieved that the matter had been finalised, jubilant that the Chief had placed no restrictions on his employment, and ready to rebuild his police career."

4. Superintendent Bridson is the head of the Professional Standards Department in the Merseyside Police. On 19 April 2000 he wrote to the Chief Constable's staff officer about the claimant. He described the communication as a report "prepared to highlight discipline issues....and to bring to attention my contention of his unsuitability for certain deployments" Superintendent Bridson then recounted the reprimand of 1993 for unnecessary violence, observing that it had been expunged in 1996; the caution of December 1997 in relation to the finding of criminal conduct arising out of the telephone calls; and the disciplinary proceedings which had culminated in the hearing of 10 April 2000. Superintendent Bridson expressed his concerns in the following way:

"This discipline conviction is disclosable following the decision of R v. Edwards [1991] 1 WLR 207and will be expunged from O'Leary's record after three years free of any further punishment other than a caution. Constable O'Leary's discipline convictions, and it is stressed the first of these is spent for disclosure following conviction purposes, are diverse. They encompass unlawful assault on a prisoner, criminal conduct by misuse of the public telephone system to annoy, inconvenience or cause anxiety to a member of the public during which confidential information obtained as a police officer was disclosed and fraudulent misrepresentation to gain financial advantageous, which in my contention amounts to a breach of integrity.

Superintendent Bridson related that the Crown Prosecution Service, whilst advising against the institution of criminal proceedings, had opined that there had been a prima facie case of dishonesty. He added:

The Superintendent then explained how he and other senior officers had transferred the claimant away from detective duties to uniform duties "thus ensuring that in the light of his impaired integrity, he received maximum supervision". He concluded:

"I consider that Constable O'Leary's most recent discipline conviction further impugns his already tarnished integrity. Viewed in conjunction with his disciplinary convictions for the use of unnecessary violence, together with his willingness to annoy selected individuals and disclose confidential information to them, he is, I believe, a threat to the good name of the Merseyside Police. I therefore highlight that Constable O'Leary should only be deployed on duties where he is subject to the maximum supervision and where he does not have access to information of a confidential or sensitive nature."

When this report was placed before the Chief Constable, he came to a decision which he addressed to Assistant Chief Constable Hogan-Howe in the following terms:

"I agree with conclusions. Given that his disciplinary antecedent is disclosable in future cases which might be jeopardised, this supercedes my comments in the hearing that his posting should be unrestricted. He should be seen and informed accordingly. Would you deal personally please."

5. On 18 May 2000 Assistant Chief Constable Hogan-Howe wrote to Superintendent Hester, the claimant's Area Commander, referring to Superintendent Bridson's report and adding:

"Can you therefore review the officer's posting and ensure that we minimise the opportunity for him:

Until he received that letter, Superintendents Hester's intention had been to post the claimant to the Crime Management Unit under the direct supervision of a Detective Sergeant where he could work as a uniform constable investigating beat crimes. However, that was no longer to be. On 26 June, Assistant Chief Constable Hogan-Howe, accompanied by Superintendent Hester, met with the claimant and his representative. Following that meeting, on 30 June 2000 Assistant Chief Constable Hogan-Howe wrote to the claimant stating:

"This report is to confirm my decision regarding the restrictions of your duties, namely that in view of the disciplinary process, Superintendent Hester should ensure that your role minimises the opportunity

The Assistant Chief Constable then proceeded to explain this turn of events as follows:

"I have also obtained a transcript of the hearing. The Chief Constable clearly says that he removes any restriction upon your deployment. Subsequent to the hearing, the Professional Standards Department asked the Chief Constable to review that conclusion. It was decided that as your disciplinary antecedents are disclosable, then your posting should be restricted. I have imposed the restriction which you have now been advised."

6. The job to which the Claimant was then deployed was that of "Sponsorship Officer". It is his case that this post was created specifically for him to meet the present circumstances and does not carry a job description. His place of work is the Resourse Library at St. Ann Street Police Station where all other officers have access and he is without a telephone extension. His contention is that this is a "non job".

7. In these proceedings, the claimant seeks, with permission, to challenge the decision to restrict his deployment as indicated in the report from Assistant Chief Constable Hogan-Howe dated 30 June 2000.

8. The grounds upon which the application is made are (1) that the redeployment of the claimant on the basis of that decision amounted to an abuse of discretion and was contrary to the legitimate expectation of the claimant; and, alternatively, (2) that the way in which the Chief Constable's original decision was "superceded" without the claimant being afforded an opportunity to make further representations was procedurally unfair. Before turning to these two grounds, it is necessary for me to refer to some of the provisions of the Police (Discipline) Regulations 1985.

9. The disciplinary hearing before the Chief Constable which took place on 10 April 2000 was a hearing pursuant to regulation 13(1). The proceedings are essentially adversarial (regulation 18) and in some circumstances, including the present case, both the presenting officer and the accused may be represented by counsel and solicitors. A verbatim record of the proceedings is maintained and, where appropriate, a transcript is produced. At the conclusion of the hearing, the Chief Constable must either dismiss a charge or find it proved, either by the admission of the accused or by proof beyond reasonable doubt (regulation 23). Punishment is covered by regulation 24, the material parts of which read as follows:

"(1).....where a charge is found to be proved one of the following punishments shall be imposed, namely:

(2) Subject to paragraphs (3) and (4), the punishment shall be imposed by the officer conducting the hearing.

(6) Where the question of the punishment to be imposed or recommended is being considered by the officer conducting a hearing......

(a) he shall have regard to the accused's record of police service as shown on his personal record and may receive evidence from any witness whose evidence would, in his opinion, assist him in determining the question, and

(b) the accused or his representative shall be afforded an opportunity to make oral or, if he thinks fit, written representations as respects the question or to adduce evidence relevant thereto.

(7) Any proceedings at which such evidence as is referred to in paragraph (6) (a) or (b) or such oral representations as are referred to in paragraph 6 (b) is given or are made shall be treated for the purpose of regulation 18 (10) [verbatim record and transcript] as proceedings at the hearing.

(8) As soon as possible after the decision to impose a punishment has been taken that decision shall be recorded on the discipline form and notified in writing to the accused."

10. On behalf of the claimant, Mr. Millar QC made a number of submissions in relation to this ground. First, the punishment lawfully imposed by the Chief Constable at the conclusion of the disciplinary hearing was that of reprimand. Secondly, the imposition of restrictions upon deployment is not one of the permissible range of punishments prescribed by regulation 24 and the imposition of a punishment which is not one of those prescribed is unlawful: Murray and others v. Chief Constable of the Royal Ulster Constabulary (unreported), 23 June 1987). When the restrictions were imposed they were, in effect, an unlawful punishment. Thirdly, in his remarks in the course of imposing the reprimand on 10 April, the Chief Constable chose to give the claimant certain assurances, namely (a) that he was removing any restriction upon his deployment "as of today"; (b) that it would be for his Area Commander to decide upon his future deployment following the removal of the restrictions; and (c), by implication from his final comments, the slate was effectively being wiped clean as far as deployment was concerned. Fourthly, future deployment, whilst free of prior restrictions, would fall within section 10 of the Police Act 1996, that is to say under the direction and control of the Chief Constable but subject to lawful delegation to other officers including the Area Commander. Fifthly, although the claimant had no right to expect that he would immediately be returned to the CID duties from which he had been absent for two years, he was entitled to expect that no prior restrictions would be placed upon the rebuilding of his career. Sixthly, it was not for the Professional Standards Department to seek a review of the Chief Constable's decision after the disciplinary proceedings had been completed. Seventhly, it was wrong for the Chief Constable to cause his previous decision to be "superceded" in a way which effectively altered the punishment so that it included restrictions which, in any event, fell outside the range of punishments permitted by regulation 24. Eighthly, these errors were compounded when Assistant Chief Constable Hogan-Howe went further than the Chief Constable in the formulation of the restrictions when he expressly limited the potential for the Claimant to be called as a police witness.

11. To the extent that he was seeking to rely on the doctrine of legitimate expectation, Mr. Millar pointed to Regina v. North and East Devon Health Authority, ex parte Coughlan [2000] 2 WLR 622, in which Lord Woolf MR, giving the judgment of the Court of Appeal, formulated the principles applicable in cases where substantive legitimate expectation is in issue. He said (at p. 645):

"Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy.....the court has when necessary to determine whether there is a sufficient overriding interest to justify a departure from what has been previously promised."

Thus, Mr. Millar submitted, the assurances expressed by the Chief Constable on 10 April induced a legitimate expectation of a benefit - the removal of restrictions upon deployment - which was substantive and to frustrate it would be so unfair as to amount to an abuse of power, there being no overriding interest to justify a departure from the assurances.

12. On behalf of the Chief Constable, Mr. Warnock did not take issue with the propositions of law expounded by Mr. Millar. His primary submission was that, properly analysed, the restrictions imposed by the Chief Constable in his subsequent hand-written note and enlarged thereafter by Assistant Chief Constable Hogan-Howe did not amount to punishment arising out of the disciplinary proceedings but were operational decisions, properly made under section 10 of the 1996 Act. This, he submitted, was consistent with what the Chief Constable had said at the conclusion of the disciplinary hearing - that future deployment was a matter for the Area Commander. However, although future development was to be unfettered by any disciplinary sanction, it was appropriate to base the operational decision on full information and not just on what was properly before the Chief Constable in the disciplinary proceedings. Thus, for example, although the 1996 reprimand was not referred to in the disciplinary proceedings because it was "spent" for disciplinary purposes, it was open to those entrusted with the operational decision to take it into account. Superintendent Bridson's report of 19 April 2000 was a properly compiled contribution to the management process preceding an operational decision to deploy. In operational terms, the Claimant's disciplinary history makes him a potential liability. The response of the Chief Constable was not a review of a disciplinary punishment. The punishment - a reprimand - remained the same. Moreover, it was appropriate for Superintendent Bridson to raise the matter with the Chief Constable in view of what the Chief Constable had said on 10 April. All this, submitted Mr Warnock, had to be seen in the context of a suspension from duty which had run from April 1998 until February 1999 and a posting to uniform duties which operated from February 1999 until 10 April 2000, the original rationale of which had been unrelated to the disciplinary charge which was the subject of the final reprimand. Not even the claimant suggests that he has a right to be restored forthwith to the CID. There had to be an operational decision and the one that was made was a reasonable one in all the circumstances.

13. In my judgment there are problems in Mr Warnock's submissions, notwithstanding their attractive presentation. There is no doubt that Superintendent Bridson thought that the purport of his report of 19 April 2000 had been a request for a review of the removal of the restriction. Equally, the Chief Constable wrote in terms of his previous comments being "superceded". Whilst the imposition of fresh restrictions was not, indeed could not be, a lawful part of the disciplinary punishment in the strict sense, the reality was that, contrary to what the Chief Constable had said at the conclusion of the hearing, he was now sanctioning tighter restrictions that had existed in the simple posting to uniform duties. In operational terms, the claimant's position was being made worse so that, for example, one of the tasks which Superintendent Hester, the Area Commander, had had in mind for him - working as a uniform constable investigating beat crimes - was now beyond his reach. I do not agree that this can be justified on the basis that it is in the operational or management sphere rather than the disciplinary context. In the course of discharging his statutory responsibilities in disciplinary proceedings the Chief Constable made a clear representation which, on the basis of the principle expounded in Coughlan, gave rise to a legitimate expectation on the part of the claimant that his future deployment would be considered on the merits, free from any prior restriction. In my judgment, when the Chief Constable directed that that decision be "superceded", he unlawfully frustrated that legitimate expectation. I am not persuaded that the supercession can be justified or excused by characterising it as an operational rather than a disciplinary matter. The legitimate expectation arose out of representation that were made, no doubt with the best intentions and when they need not have been, by a person performing his statutory function in the course of disciplinary proceedings. The claimant was entitled to rely upon them and this first ground of challenge succeeds.

14. I can deal with the second ground of challenge more briefly. The complaint is made that it was procedurally unfair for the Chief Constable to accede to Superintendent Bridson's request without first affording the claimant an opportunity to see and respond to the Superintendent's report of 19 April. Mr. Millar submitted that the prejudice occasioned by this omission became manifest. The Superintendent won the Chief Constable's change of mind by the provision of material which was partially but significantly inaccurate. It was not the case that the misuse of the public telecommunication system in 1996 had involved the disclosure of confidential information obtained as a police officer and nor was it the case that the charge to which the claimant had pleaded guilty at the disciplinary hearing on 10 April had involved fraudulent misrepresentation. That had been made abundantly clear by the agreed basis of plea.

15. Mr. Warnock's answer to these submissions was that the claimant was not entitled to see or make representations upon Superintendent Bridson's report because it did not form part of the disciplinary process. However, even if what transpired between Superintendent Bridson, the Chief Constable and Assistant Chief Constable Hogan-Howe can be seen as removed from the disciplinary process, the fact remains that the claimant, having had a benefit bestowed upon him by the Chief Constable - the removal restriction - following a hearing, then had it taken away from him, upon the instruction of the Chief Constable, following undisclosed and partially inaccurate information. It is improbable that it would have been taken away from him without the change of mind on the part of the Chief Constable. When Superintendent Bridson and Superintendent Hester met with the claimant and his representative on 29 June 2000 Superintendent Bridson learned for the first time of the written basis of plea which had been agreed on 10 April. He agreed to look into it before taking the matter any further. He did so but for four days later he confirmed the decision regarding the restriction. However, there is no evidence that, before doing so, he referred the matter back to the Chief Constable, correcting the inaccuracies contained in his report.

16. In the particular circumstances of this case, I consider that there was procedural unfairness in procuring a change of mind on the part of the Chief Constable on the basis of a report that was not disclosed to the claimant. The Chief Constable, having come to a decision at the end of a fair hearing, then proceeded to alter a part of it to the detriment of the claimant on the basis of a report which contained errors and in relation to which the claimant was not given the opportunity to make a representation. Again, I do not think that this can be justified by seeking to identify the report as an operational rather than a disciplinary matter. It was too closely connected with the disciplinary hearing. It is of course possible that the Chief Constable had well in mind that the disciplinary offence had been treated as not having involved dishonestly but that possibility is not enough to rescue what took place from actual and apparent unfairness. In my judgment, this second ground of challenge also succeeds.

17. It follows from what I have said that this application for judicial review is granted. In remedial terms, that will require a quashing order in relation to the restrictions. It will still be necessary for operational decisions to be taken as regards the deployment of the claimant. They will not be easy and, as has been conceded on his behalf, it is not expected that he will be returned forthwith to CID duties. It is for others to decide upon that deployment in the light of all the circumstances.

18. At the conclusion of the hearing it was agreed between Counsel that costs should follow the event, each side accepting the appropriateness of the figures set out in their respective schedules. Accordingly there will be an order for costs in favour of the claimant, summarily assessed as per his schedule.

19. It is appropriate for me to record that, whilst the papers in this case refer to something of a sub-plot - an allegation by the claimant that his superiors are pursuing a vendetta against him because of his activities as a prominent member of the Police Federation at a local level - this allegation played no part in the hearing before me and I have formed no view about it, one way or the other.

	GREGORY PATRICK O'LEARY	Claimant
	- and -
	THE CHIEF CONSTABLE OF THE MERSEYSIDE POLICE	Defendant

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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> O'Leary, R (On The Application Of) v Merseyside Police [2001] EWHC Admin 7 (09 February 2001) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2001/7.html Cite as: [2001] EWHC Admin 7

England and Wales High Court (Administrative Court) Decisions