R v. SUSSEX POLICE AUTHORITY ex parte STEWART [2000] EWCA Civ 101

EWCA-Civ
R v. SUSSEX POLICE AUTHORITY ex parte STEWART
[2000] EWCA Civ 101 · 2000-04-04
[7]A candidate for appointment to a police force - ... (4) must be certified by a registered medical practitioner approved by the police authority to be in good health, of sound constitution and fitted both physically and mentally to perform the duties of his office." The Police (Women)(Consolidation) Regulations 1948 provided:
"2(2) The numbers shall be sufficient to provide women for the carrying out of such of the duties mentioned in the First Schedule to these Regulations as may be assigned to women members of the force by the chief officer of police with the approval of the police authority."
The First Schedule read:
"DUTIES WHICH MAY BE ASSIGNED TO WOMEN MEMBERS OF A POLICE FORCE Patrol duty. Duties in connection with women and children reported missing, found ill, injured, destitute, or homeless, and those who have been the victims of sexual offences, or are in amoral surroundings. Taking statements from women and children in cases of sexual offences. Duties in connection with the conveyance of women and children to or from hospitals, poor-law institutions, police stations, prisons, remand homes, and approved schools. Watching female prisoners or women who have attempted suicide detained in hospitals, etc. Attendance on women and children in court. Searching and attending female prisoners. Clerical work. Plain clothes duty and detective work."
Regulation 3 provided:
"3. A candidate for appointment as a woman member of a police force ... (3) must be certified as a registered medical practitioner approved by the police authority to be in good health, of sound constitution and fitted both physically and mentally to perform the duties of her office."
The following year, by the Police (Women)(Consolidation) (Amendment) Regulations 1949, the First Schedule to the 1948 Regulations was omitted and no limitations were thereafter imposed on the duties which could be assigned to women police officers. For three more years, however, women officers remained unable to be promoted beyond the rank of Inspector, until the 1949 Regulations were in turn replaced by the Police Regulations 1952 which drew no material distinction between male and female officers. That history seems to me to explain very clearly why, in its first manifestation in the 1948 Regulations, Regulation A12(2) of the Pension Regulations referred to "the ordinary duties of a male or female member of the force, as the case may be": their respective duties were then different. Why, however, those words should have remained in the Regulations since 1949 is less clear; it seems likely to have been an oversight. Certainly no one suggests that disablement now means anything different for a woman police officer than a male police officer and thus the central question for the court is what are the ordinary duties of a police officer of either sex. The Appellant's argument In addressing this question, Mr Millar for the appellant points out that every member of the police force of whatever rank is a constable, and he invites our attention to various passages in volume 36(1) of Halsbury's Laws (4th edition, reissue of 1999), including the following:
"201. The common law constable. The history of the police is the history of the office of constable and, notwithstanding that present day police forces are the creation of statute and that the police have numerous statutory powers and duties, in essence a police force is neither more nor less than a number of individual constables, whose status derives from the common law, organised together in the interests of efficiency." "204. The status of the police constable. A member of a police force, of whatever rank, when carrying out his duties as a constable acts as an officer of the Crown and a public servant. His powers, whether conferred by common law or statute, are exercised by him by virtue of his office ... ."
[524]General functions of constables. The primary function of the constable remains, as in the 17th century, the preservation of the Queen's peace. From this general function stems a number of particular duties additional to those conferred by statute and including those mentioned below. The first duty of a constable is always to prevent the commission of a crime. If a constable reasonably apprehends that the action of any person may result in a breach of the peace it is his duty to prevent that action. ... It is a constable's general duty to protect life and property. The general function of controlling traffic on the roads is derived from this duty. ... Every member of a police force must carry out all lawful orders and at all times punctually and promptly perform all appointed duties and attend to all matters within the scope of his office as a constable." Turning then to the words in Regulation A12(2) "the ordinary duties of a ... member of the force", Mr Millar submits that the word "the" must mean all the duties, not merely some of them; that "ordinary" means customary, usual or normal; that the word "a" denotes the typical (male or female) holder of the office of constable; and that a constable's duties are those described in Halsbury, his or her "first duty" being "always to prevent the commission of a crime." A constable cannot perform his or her ordinary duties, submits Mr Millar, unless he or she can at least run, walk reasonable distances (i.e. patrol), stand for reasonable periods, and exercise reasonable physical force appropriate to his or her size and sex in exercising powers of arrest, restraint and retention in custody. And, as Inspector Prout makes plain, that certainly was how the respondents' own divisional commanders had earlier understood and applied the Regulations. Moreover, submits Mr Millar, not only is that the natural construction of the Regulation, but it also achieves the most sensible result. The key Regulation here, as between Regulations A20 and K1(2), is Regulation A20: there are far more occasions when a police authority may wish to retire a police officer on medical grounds than wish an officer to rejoin the force (or at any rate to terminate their pension) on the ground that their (thought to be permanent) disability has ceased. Far better, submits Mr Millar, that the Regulations be construed so as to give the police authority a wider, rather than narrower, discretion under Regulation A20. Indeed, if the respondents' argument be right, there will be very few cases in which they could ever retire anyone on the grounds of physical disability: if, as Miss O'Rourke argues, "an officer cannot be held to be disabled if able to perform duties which are the characteristic duties of some other police officer or a group or category of police officers", and if the force retains, as the respondents do, officers disabled to the extent even of being in a wheel chair, then the limited scope of Regulation A20 is self-evident. The Respondents' argument Somewhat paradoxically, as it appears, Miss O'Rourke contends for a narrow construction to be given to Regulation A20. Generally speaking, she tells us, police officers wants to be able to say that they are permanently disabled so as to be retired from the force with a pension - often (as in the case of this appellant) then taking alternative employment outside. Police authorities for their part are not troubled at the prospect of being unable to retire physically unfit officers. As Inspector Prout states, there are many officers unfit for operational (or at any rate confrontational) duties and, as a matter of practical reality it will almost always be possible to assign unfit officers to desk jobs or other physically undemanding duties. As for the construction of Regulation A12(2), Miss O'Rourke submits that there are many members of the force whose ordinary duties involve no greater physical fitness than that required to drive to work and sit at an office desk (which is what this appellant would be asked to do and, indeed, already does). The question, submits Miss O'Rourke, is "whether the police officer is able to perform full-time police work taking into account the variety of police work available in a 21st century modern police force". The purpose of the Regulations, she says, is "to pay pensions to those who need them and not to those who can continue to serve [or, I am sure she would add, those who can resume serving] as police officers". Conclusions Persuasively though the judgment below reads, I for my part have come to the contrary conclusion. It seems to me perfectly clear that when these Regulations were first drafted in 1948 "the ordinary duties" (respectively of a male and female police officer) to which (the predecessor of) Regulation 12A(2) referred were the self-same "duties of his [her] office" which, under the other 1948 Regulations, officers had to be "fitted both physically and mentally to perform". The Regulation, I have no doubt, is talking about the duties of the office of constable and, as the 1999 re-issue of Halsbury's laws states, these in law remain as they were in the 17th century, the first of them being to prevent of the commission of a crime. It is, of course, true that the prevention of crime is much assisted by technical advances and that, as the years have passed, the amount of police work able to be undertaken by those substantially less than 100% physically fit has greatly increased. A job in IT, for example, requires little in the way of running, walking or standing. But is that a sound basis for construing the Regulations as Miss O'Rourke invites us to do? In my judgment it is not. In the first place, I find her approach difficult to reconcile with the language of Regulation A12(2). Given that several police jobs do not require physical fitness and in that respect are just like jobs in ordinary civilian life, the very concept of "ordinary duties of a ... member of the force" becomes, on Miss O'Rourke's argument, meaningless: the Regulation could as well speak of unfitness for any ordinary job. For this reason, if for no other, there can to my mind be no question of applying the "ambulatory" or "always speaking" approach to the construction of these Regulations - see Cross on Statutory Interpretation, 3rd edition, at pp.51-52. As it seems to me, therefore, Mr Millar's arguments on construction are to be preferred: the hypothetical member of the force whose ordinary duties the Regulation must have in mind is the holder of the office of constable who may properly be required to discharge any of the essential functions of that office, including therefore operational duty. Secondly, I see no good reason why Mr Millar's construction should not be preferred as a matter of policy. I simply cannot accept Miss O'Rourke's submission that, on this approach, police officers are in a position to exploit the Regulations to their advantage. Regulation A20 manifestly vests in the police authority a discretion whether or not to enforce retirement on grounds of disablement. A combination of the words "may" and "ought" in the Regulation make plain that it is they who can compulsorily retire the officer, not he who can compel them to do so. So far, therefore, from police officers being able to exploit the Regulations, the construction I favour would allow the police authority to retain any officer they wish to retain and at the same time enable them to ensure that they have as many fully fit officers as the force requires, for example in times of emergency. Nor does it seem to me that police officers like this appellant are on this appraoch unfairly advantaged under Regulation K1(2). As Mr Millar observes, the exercise of this power by a police authority would, on Miss O'Rourke's construction, force an officer back to work on a restricted basis. Assume that an officer had joined the police force for an active, front-line life, and, having later suffered disablement and been retired compulsorily under Regulation A20, had then recovered sufficiently for the police authority to invite him back into the force to undertake non-operational work. Should he be required to accept such an invitation or lose his pension? It seems to me one thing to say that the police authority were not obliged to retire him in the first place; quite another to say that, having done so, he can then fairly be recalled for a life of restricted duties. Were he, of course, to make a full recovery, that would be another matter. Clearly then the police authority could use the Regulation K1(2) power. Be all that as it may, however, I have reached the clear conclusion that, within the meaning of these Regulations, a police officer's "ordinary duties" include operational duties and accordingly that the appellant remains disabled. It follows that the notice served upon her under Regulation K1(2) was invalid and that she is entitled both to remain retired from the force and to draw her pension. I would allow this appeal. LADY JUSTICE HALE: I agree. SIR CHRISTOPHER STAUGHTON: With either of the two interpretations of the Police Pension Regulations which have been put before us, there may be unfortunate consequences. Take first Miss Stewart's case, that "the ordinary duties of a ... female member of the force" require her to run, to walk reasonable distances, to stand for reasonable periods, and to exercise reasonable force appropriate to her size in exercising powers of arrest, restraint and retention in custody. If the officer fails in any one of those requirements, the police authority may require her to retire on the ground of permanent disablement. That seems to result in a degree of absurdity if the officer is and always has been in an occupation which does not require her to do any of those things. If on the other hand the Sussex Police Authority are right, they cannot require any policeman to retire under Regulation A 20 if he is able to undertake any job which any policeman carries out, such as a clerical job in an office. That would be the case even if the policeman were otherwise wholly disabled, and if there were no clerical job available. Again there is a degree of absurdity. It may be that in practice a police officer is seldom displeased if he is asked to retire on medical grounds, as he will receive a pension. It may also be that a police authority will not wish to retire on medical grounds a police officer who is capable of some job in the force, and that there is seldom if ever a shortage of clerical jobs. I do not know how likely it is that such a situation will arise, or how frequently. So I can only have regard to the possibility that it may. The right solution, for police authorities and for the Police Federation, may be to adopt some intermediate test. Samuel Butler, as I have remarked before, wrote "Extremes are alone logical, but they are always absurd; the mean is illogical, but an illogical mean is better than the sheer absurdity of an extreme". Perhaps the test should be whether the officer is disabled from discharging any duty of a kind which she has undertaken in the past. But it is not for me to rewrite the regulations. We must accept what we find in the regulations, and interpret them as best we can. The arguments of absurdity on either side cancel each other out. We are left with the ordinary meaning of the words used. On that basis I agree with Simon Brown LJ that this appeal should be allowed. The Authority's decision to issue a notice under Regulation K1(2) should be set aside.

Order

Appeal Allowed. © 2000 Crown Copyright

Cited in 8 later judgments