Scottish Court of Session Decisions

"...all that requires to be said is that in order to comply with the statutory duty imposed upon him the Secretary of State must give proper and adequate reasons for his decision which deal with the substantial questions in issue in an intelligible way. The decision must, in short, leave the informed reader and the court in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it".

This approach, which was acknowledged to be of wide general application, was consistent with the views expressed by the Inner House in the earlier case of Albyn Properties Ltd v Knox 1977 S.C.108, and had been cited with judicial approval on many occasions since 1984. It was thus ultimately a matter of impression for this Court whether the Tribunal's stated reasons should be held adequate, dealing with the substantial questions in issue in an intelligible way, or whether the informed reader and the Court were left in real and substantial doubt as to the basis on which the decision was reached. Beyond that, parties were agreed that although the usual grounds for judicial review were available in the present context, including inter alia any failure on the part of the Tribunal to take account of relevant and material considerations, such a failure could not necessarily be inferred from the mere fact that the decision contained no express reference to individual pieces of evidence.

(i) From about 2000 onwards, Mr Smith had intermittent problems with alcohol abuse. These came to the notice of his superiors and attracted public comment, thereby gradually calling into question his fitness to serve within the small community at Kyle of Lochalsh where he was then stationed.

(ii) In consequence Mr Smith was transferred to Dingwall with effect from about April 2003. When seen by occupational health professionals in both July 2002 and August 2003, he was reported as acknowledging that his job was at risk from continued alcohol abuse, and that the Dingwall transfer was his last chance.

(iii) In mid-2005, with the assistance of his superiors at Dingwall, arrangements were made for Mr Smith to receive appropriate advice at Raigmore Hospital, Inverness. An initial appointment was made for 1.45pm on 7 July 2005, and in anticipation of that appointment Mr Smith was released early from his nightshift. Some of the relevant records and statements suggested a release time of 3.00am, but according to the duty sergeant's contemporaneous notes, and also Mr Smith's own reported statement when he arrived for the appointment at Raigmore, it was not until about 4.00am that he went off shift.

(iv) Before going to bed, Mr Smith on his own account consumed a quantity of alcohol which he described on arrival at Raigmore as '...about 3/4 of a bottle of wine'. According to him, he took no more drink when he awoke. He then drove his car the 15/16 miles from Dingwall to Inverness, waving to colleagues whom he passed on the way, and arrived at Raigmore at around 2.10pm, some 25 minutes late for his appointment.

(v) According to the registered nurse who then saw him in the Occupational Health Unit, Mr Smith was smelling of alcohol together with some very strong antiseptic such as mouthwash. From the outset his manner and appearance attracted attention. His eyes were glazed and bloodshot, his complexion flushed and his responses vague, and he seemed unable to answer questions quickly. The nurse was so concerned that she immediately questioned his fitness to drive, receiving responses along the lines (a) that he was fine and knew how much he could drink and safely drive, and (ii) that he intended to drive home after the appointment. After first stating that his last drink had been 3 months previously, he then mentioned the 3/4 bottle of wine which he had consumed after coming off nightshift at 4.00am. The nurse then informed Mr Smith that in her judgement he was not fit to drive home, and asked him to hand over his car keys. Initially this request met with some resistance, but eventually the keys were 'rather reluctantly' handed over after the nurse threatened to inform Mr Smith's superiors.

(vi) According to another member of the hospital staff from whom the nurse sought assistance, Mr Smith's eyes were 'a bit bloodshot', and the whole room smelt strongly of alcohol, aftershave and antiseptic. Mr Smith seemed quite slow to respond to questions, as if he was not concentrating, and only handed over his car keys after several requests.

(vii) At this stage the nurse telephoned Mr Smith's superiors to advise them that in her opinion he would not be fit for nightshift work that evening.

(viii) After talking of going home for a meal and some tea, Mr Smith instead went to the Fluke Bar, Inverness, after leaving the hospital. There he consumed, in rapid succession, one half pint of Stella Artois beer and five double whiskies. Having thereafter been collected by his partner in her car, he fell asleep on the way home, and was still asleep in the passenger seat when approached by colleagues from the Road Traffic Department in connection with suspected drink-driving. He failed a roadside breath test, and later at Dingwall Police Office was found to have an alcohol reading of 128mgs of alcohol in 100mls of breath. When asked to confirm who had driven the car to Raigmore Hospital earlier in the day, he replied 'It doesn't matter: ...me'.

(ix) Mr Smith was subsequently charged with a contravention of section 5(1)(a) of the Road Traffic Act 1988, and on granting him bail pending trial the sheriff imposed a special condition that he must not drive a motor vehicle. In due course, following certain negotiations, Mr Smith on 13 October 2005 pled guilty to a reduced offence involving an alcohol reading of 69mgs of alcohol in 100mls of breath (very nearly double the legal limit for driving of 35).

"Road safety is a key element of our policing objectives in an area where there is widespread community concern regarding the conduct of drivers on our roads. Your actions and your criminal conviction have the potential to seriously undermine the trust and public confidence in the Service. As an experienced police officer with a particular interest in roads policing, you must have been aware of the potential seriousness of driving whilst unfit to do so through alcohol and you must be held to account. Although you suffer from an alcohol-related illness, it is not an excuse for your conduct.

The gravity of the misconduct admitted is such that, even after considering your service history and the mitigating circumstances, I consider a severe...disposal is reasonable, appropriate and necessary.

The offence admitted is of a grave nature and your actions were completely irresponsible".

"The driving offence took place around lunchtime in a built-up area, namely Dingwall. The offence came to light at about 14.10 hours having been reported by a member of the Occupational Health Service at Raigmore Hospital, Inverness, who described Mr Smith as smelling strongly of a mixture of alcohol and mouthwash. I noted additionally that he was described as being hesitant and vague with bloodshot and glazed eyes and flushed complexion".

In paragraph 5, the petitioner went on to record inter alia that, despite being challenged about the amount of alcohol that he had taken and giving conflicting accounts, Mr Smith stated that he intended to drive after his consultation with the Occupational Health Service, that he was reluctant to hand over his car keys; and that after leaving Raigmore he apparently went to nearby licensed premises where, on a balance of probabilities, he consumed 5 double whiskies and a half pint of Stella lager despite being due on duty that evening at 2300 hours. Subject to certain favourable and/or mitigating circumstances set out in paragraphs 8 and 10, paragraph 9 went on to note that Mr Smith's career had not been without incident. "Previous issues" were said to be set out in the transcript of the misconduct hearing, with particular reference being made to earlier misconduct hearings in November 2002 and January 2004. In paragraphs 11 to 16 inclusive, the petitioner then went on to express the view that dismissal or a requirement to resign was reasonably to be expected by all police officers convicted of drink-driving offences. In the petitioner's judgement there was nowadays an increased public intolerance towards drink-driving offences, and this had led to the stepping-up of police efforts to combat such offences. These included the Northern Constabulary's well-publicised policy on drink-drivers and participation in a campaign specifically focused in that connection during 2005.

"...(All) members of the Tribunal readily acknowledge that a conviction for drink-driving is a serious offence. This is particularly so for a police officer. However, in the present case, the majority are of the view that there are a number of factors which point to a disposal of lesser gravity than loss of employment. The offence happened when Mr Smith was actively seeking assistance for his alcoholism. He was a patient seeking treatment at the time of the events which led to his conviction. He had taken alcohol some hours previously before he retired to bed. He stated through his representative that had he been aware that he was unfit to drive, he would not have done so. There is no good reason to doubt this. A contrast can be made with cases which involve a police officer driving in circumstances in which it is clear that it was reckless and culpable to do so.

"In reviewing the decisions of the chairman of the misconduct hearing and of the Chief Constable, the majority of the Tribunal considers that insufficient weight was attached to the background of the appellant's illness and his attempts to obtain treatment for it. It can reasonably be concluded that but for his malady the conviction would not have happened. Further, and importantly, the recent report from Mr Hassan includes long periods of abstinence in the past year, and continuing expert support being provided to Mr Smith.

"The Tribunal did not accept the view that the alcohol level was particularly high, having regard to readings commonly encountered. It is readily accepted that, as a generality, a drink-driving conviction raises concerns as to morale, efficiency and professional perception within the Force, and also as to public perception of the Force as a whole. However, the circumstances of each case must be fully considered and taken into account. The majority of the Tribunal is of the view that the particular circumstances of this case would be considered to be mitigating factors both by Mr Smith's colleagues and by the public as a whole. It would be wrong to reach conclusions on individual cases by reference only to general concerns about drink-driving convictions .... The determining factors are the full circumstances of each case, not any presumption flowing from the conviction itself. In saying this, the majority of the Tribunal does not intend to dilute the significance and seriousness of the offence itself, but wishes to stress that this should not divert one from a careful weighing of all the relevant factors when determining an appropriate outcome".

"As to whether Mr Smith intended to drive after his appointment at the hospital, the Tribunal is prepared to accept that once his unfitness to drive was questioned, Mr Smith did not intend to return to his vehicle.....As to whether the Courts consider that loss of employment is a likely consequences of a drink-driving conviction, no doubt this is true when a driving licence is a condition of that employment. A driving licence is not a condition of service in the Police Force.

"In summary, in the view of the majority the circumstances here are special. The disposal appealed against was not proportionate if regard is had to all of the circumstances, untrammelled by application of the Home Office guidelines".

Discussion