COMMISSIONER OF POLICE v STUNT [2001] EWCA Civ 265

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM MR JUSTICE GRIGSON

[2001] EWCA Civ 265

Case No Case No: C/2000/2242

Venue Royal Courts of Justice, Strand, London, WC2A 2LL, Friday 23 February 2001

Between

COMMISSIONER OF POLICEAppellant

STUNTRespondent

Before

The Master of the Rolls

Lord Justice Simon Brown

Lord Justice Longmore

Miss E. Slade QC & Mr T. Pitt-Payne (instructed by Mr D. Hamilton Solicitor for the Metropolitan Police, London SW1H 0BG) for the Appellant

Mr G. Millar QC & Mr M. Ford (instructed by Messrs Haslam & Payne, Solicitors, of London SW1H 9DL) for the Respondent

Date 23 February 2001

LORD JUSTICE SIMON BROWN:

Mr

[1]Stunt is a former police officer who was medically retired from the Metropolitan Police Service in 1996 after some twenty-eight years in the force. Under regulation B4 of the Police Pensions Regulations 1987 (the Regulations) a police officer who ceases to be a member of a police force becomes entitled to a gratuity and an injury pension if he is "permanently disabled as a result of an injury received without his own default in the execution of his duty". Was Mr Stunt so entitled? That is the question.

[2]"Injury" is defined by schedule A to the Regulations to include "any injury or disease, whether of body or of mind". Regulation A11 defines injury received in the execution of duty as follows:

"(1) A reference in these Regulations to an injury received in the execution of duty by a member of a police force means an injury received in the execution of that person's duty as a constable ... (2) For the purposes of these Regulations an injury shall be treated as received by a person in the execution of his duty as a constable if - (a) the member concerned received the injury while on duty or while on a journey necessary to enable him to report for duty or return home after duty, or (b) he would not have received the injury had he not been known to be a constable, or (c) the police authority are of the opinion that the preceding condition may be satisfied and that the injury should be treated as one received as aforesaid."

[3]Regulation A11(4) provides that:

"For the purposes of these Regulations an injury shall be treated as received without the default of the member concerned unless the injury is wholly or mainly due to his own serious and culpable negligence or misconduct."

[4]Mr Stunt retired as a result of a permanently disabling psychiatric injury suffered in reaction to an internal police investigation. The critical question raised on this appeal is whether such an injury is "an injury received in the execution of that person's duty as a constable" within regulation A11(1) and/or an injury received "while on duty" within regulation A11(2)(a).

[5]That question was answered 'no' by both Dr Colthart, the medical practitioner selected by the police authority who first had to consider this case under regulation H1(2)(c), and, on Mr Stunt's appeal against that decision, by Dr Mallett, the independent medical referee appointed by the Secretary of State to decide the appeal under regulation H2(2).

[6]The question, however, was answered 'yes' by Grigson J on 4 May 2000 on Mr Stunt's judicial review challenge to Dr Mallett's decision. As usual in these police pension cases, Dr Mallet has taken no part in the proceedings. Instead the Commissioner of Police for the Metropolis has appeared as a person affected and it is he who now appeals against the Judge's order quashing Dr Mallet's decision.

[7]The point raised is said by both parties to be an important one. It is also a novel one; that, indeed, was recognised by the Judge below who himself granted permission to appeal.

[8]With that brief introduction let me turn at once to the factual background which can be summarised very shortly.

[9]On 9 July 1993 Mr Stunt was on duty outside the Palace of Westminster when an altercation occurred between him and a Mr Marcus, the headmaster of St. Bede's School, Redhill, who was visiting the House of Commons that day with a mixed party of students from St Bede's and from Tanzania. Whether Mr Stunt gratuitously insulted Mr Marcus or the other way round was hotly disputed but what is undisputed is that Mr Stunt arrested Mr Marcus for an offence under s.4 of the Public Order Act 1986; that shortly afterwards, upon the intervention of a police sergeant, Mr Marcus was "de-arrested", and that Mr Marcus then made a strong formal complaint against Mr Stunt. As the Judge below concisely put it, Mr Marcus "was supported to a greater or lesser extent by members of his party who were present, and by some of the good and the great who were not. PC Stunt's account was supported by a fellow officer."

[10]On 27 July 1993 Mr Stunt was served by DCI Whelan with a written notification of the complaint pursuant to regulation 7 of the Police (Discipline) Regulations 1985.

[11]On 19 August 1993 the complaint was referred to the Police Complaints Authority who approved the appointment of DCI Whelan as the investigating officer and agreed to supervise the investigation.

[12]On 24 August 1993 DCI Whelan interviewed Mr Stunt after first telling him that he did not have to answer any questions and could leave at any time.

[13]Following that interview it was decided that no criminal proceedings would be taken but that a charge would be brought against Mr Stunt under the police Discipline Code that he had arrested Mr Marcus without good and sufficient cause.

[14]In November 1993 Mr Stunt began a period of sick leave complaining of the mental stress to which he had been subjected by reason of the investigation. He never subsequently returned to police service and the papers relating to the proposed disciplinary hearing were never in the event served upon him.

[15]On 30 June 1994 Mr Stunt was examined by Dr Colthart and told that no further disciplinary action would be taken. On 4 August 1994 Dr Colthart certified that Mr Stunt was permanently disabled by depression but that his condition was "not the result of any injury received in the execution of duty as a member of the police force". On appeal Mr Stunt was examined on 27 November 1996 by Dr Mallett, a consultant psychiatrist, acting as the medical referee. Dr Mallett's report of 5 December 1996 includes these passages:

"The events leading up to retirement consisted of what he described as malicious allegation against him while he was working in the House of Parliament. He was made subject of an internal investigation by the police, felt betrayed by his colleagues and treated like a criminal. He felt a mixture of anger, frustration and hopelessness at fighting against a seemingly implacable system." "

Opinion: Mr Stunt suffered a severe depressive illness following proceedings brought against him [in 1993] and to some extent he is suffering from the after effects of this. ... The disablement is not strictly speaking the result of an injury received in the execution of Mr Stunt's duty but does arrive [sic] as a result of his reaction to the internal proceedings brought against him ... "

[16]In a supplemental report dated 8 January 1999, Dr Mallett said this:

"Mr Stunt's problems arise from both the fact that he feels it was a 'terrible wrong' that the investigation took place at all, mainly because he felt he conducted himself appropriately and this should have been clear to anyone taking an unbiased view of the situation and in addition, he feels he has a genuine grievance about the way in which the investigation was conducted once it started. He formed a strong impression that conclusions were drawn before the investigation even started, that the investigating officers had made up their mind and that this view is backed-up by the fact that he was strongly encouraged by the Investigation Team to plead guilty to the allegations and that they even spoke to his daughter at one point to encourage her to try and persuade him to change his mind."

The modern Authorities

[17]Although, as stated, the particular point raised here is a novel one, there have been a number of previous unreported first instance decisions concerning the pension entitlement of police officers retired on grounds of stress-related depressive illness: R v Caldbeck-Meenan, ex parte Clerk to Cleveland Police Authority , (Macpherson J, 22 July 1994), R v Court and Bronks, ex parte Derbyshire Police Authority (McCowan LJ and Gage J,11 October 1994), R v Fagin and Travers ex parte Mountstephen (Brooke J, 26 April 1996), Sussex Police Authority v Pickering (Brooke J, 10 May 1996), R v Merseyside Police Authority, ex parte Yates (Latham J, 19 February 1999), and R v Kellam, ex parte South Wales Police Authority and Milton (Richards J, 2 July 1999). In the last of these cases, Kellam, Richards J valuably analysed all the earlier authorities (including two Divisional Court decisions in the 1940's on appeal from Quarter Sessions under the Police Pensions Act 1921 with regard to disabling physical conditions - Garvin v Police Authority for City of London

[1944] 1 KB358

, and Police Authority for Huddersfield v Watson

[1947] 1 KB342

) and expressed his conclusions upon the present Regulations as follows:(1) Regulation A11(2) does not purport to contain, nor should it be read as containing, an exhaustive definition of the circumstances in which an injury may be received in the execution of a person's duty as a constable. Thus in principle a case may fall within Regulation A11(1) and thereby qualify for an award even if it does not fall within Regulation A11(2). Leaving aside for one moment the applicant's contention in the present case, I doubt whether the point is of great practical significance, since a person who receives an injury 'in the execution of [his] duty' (in the basic meaning of that expression) is likely generally to receive it 'while on duty' within the meaning of Regulation A11(2)(a): the latter extends beyond the former but also encompasses the generality of cases falling within the former. (A full exposition would require reference to the additional deeming provisions of Regulation A11(3)-(6), but I have not thought it necessary to deal with them in this judgment since they do not appear to me to affect the overall position.)

(2) When considering a case of mental stress or psychiatric illness amounting to an injury and said to have arisen over a period of time (as opposed to e.g. post-traumatic stress syndrome said to arise out of a single event), it will probably be impossible in practice to draw any clear distinction between Regulation A11(1) and Regulation A11(2)(a). It makes no difference in any event whether one looks at the matter in terms of the one rather than the other. The test to be applied is the same. That is why one finds the authorities either failing to distinguish clearly between the two provisions or applying in the context of the one a test developed in the context of the other.

(3) The test remains that set out in Garvin and summarised in Police Authority for Huddersfield as being whether the person's injury 'is directly and causally connected with his service as a police officer'. It is a test formulated originally in the context of a physical disease contracted over a period of time, but aptly and repeatedly applied in the corresponding context of a psychiatric condition arising over a period of time. One can readily see why that test is applicable as much under Regulation A11(2)(a) as under Regulation A11(1). When considering such a psychiatric condition, which cannot be attributed to a single identifiable event or moment of time, it is plainly necessary to find a causal connection with service as a police officer in order to establish that the injury has been received 'while on duty' rather than while off duty, just as it is necessary to find such a causal connection in order to establish that the injury has been received 'in the execution of ... duty'.

(4) The test of causation is not to be applied in a legalistic way. The concept is relatively straightforward, as Latham J observed in Bradley [this was an analagous case of a fireman ] , and falls to be applied by medical rather than legal experts. In particular, in my view the reference to a 'direct' causal link does not mean that fine distinctions may be drawn btween 'direct' and 'indirect' causes of the injury. The reference derives from the statement in Garvin that the injury was the 'direct result of, and, therefore, suffered in, the execution of duty'. That language was used, as it seems to me, as a means of emphasising the existence of a substantial causal connection between the injury and the person's service as a police officer. The point was to distinguish such a situation, which qualified for an award, from the case where the receipt of an injury and service as a police officer were entirely coincidental rather than connected circumstances which did not qualify for an award.

(5) The causal connection must be with the person's service as a police officer, not simply with his being a police officer (the exception in Regulation A11(2)(b) is immaterial to the kind of situation under consideration in the present case). That is inherent in the reference to 'duty' in Regulation A11(1) and Regulation A11(2)(a). At the same time, however, 'duty' is not to be given a narrow meaning. It relates not just to operational police duties but to all aspects of the officer's work - to the officer's 'work circumstances', as it was put in Fagin . I have referred in general terms to the person's service as a police officer because it seems to me to be an appropriate way of covering the point, but the precise expression used is unimportant. In any event it is sufficient in my view to find a causal connection with events experienced by the officer at work, whether inside or outside the police station or police headquarters, and including such matters as things said or done to him by colleagues at work. In so far as the applicant contended for an even greater degree of connection with a person's performance of his functions as a police officer, I reject the contention.

(6) It is sufficient for there to be a causal connection with service as a police officer. It is not necessary to establish that work circumstances are the sole cause of the injury. Mental stress and psychiatric illnesses may arise out of a combination of work circumstances and external factors (most obviously, domestic circumstances). What matters is that the work circumstances have a causative role. The work circumstances and domestic circumstances may be so closely linked as to make it inappropriate to compartmentalise them, as in R v Court & Bronks , where the so-called 'private matters' were held to be intimately connected with the officer's 'public duty'. But I do not read the authorities as laying down any more general rule against compartmentalisation. On the other hand, where compartmentalisation is possible (i.e in the absence of an intimate connection between the private matters and the public duty), I do not read the authorities as laying down any rule that the existence of a causal connection with the private matters is fatal to a claim. Provided that there is also a causal connection with the public duty, the test is satisfied.

(7) It may be that what I have said about the sufficiency of a causal connection with service as a police officer should be qualified by a reference to a substantial causal connection. The requirement of substantiality does not appear to feature in the authorities (subject to my observation about the significance of the reference to a direct causal connection). But that is unsurprising, since there does not seem to have been any real suggestion that the causes in issue were anything other than substantial causes. Similarly in the present case I do not think that anything turns in practice on the issue of substantiality. I therefore think it unnecessary to say any more about the point for the purposes of the case." The judgment below

[18]Not surprisingly those conclusions provided the starting point for both sides' arguments before the Judge below. I need read only the following paragraphs from Grigson J's judgment:

"28. Mr Pitt-Payne, on behalf of the Metropolitan Police Commissioner, submits that the complaints procedure, which caused the applicant's illness, was not an incident of the applicant fulfilling his duty as a constable. It arises from his status as a constable, and he relies upon [paragraph 5 of Richards J's conclusions]. 29. He submits that the complaints procedure results from the status of the officer as a police officer and is not as a result of the execution of his duty as such. 30. He goes on to submit the officer's role in that procedure is, in any event, largely and, indeed, may be wholly passive. He submits that the complaints procedure is one step removed from the action in this case, the arrest of Mr Marcus, which led to the complaints procedure being instigated and consequently is too remote. 31. I respectfully agree with the judgment of Richards J where he says, ' 'duty' is not to be given a narrow meaning', nor is the test of causation to be applied in a legalistic way. 32. In my judgment, the duties of a police officer include the duty of submitting to the complaints procedure. Whilst an officer may choose not to cooperate with an investigation under the complaints procedure, he is bound to submit to it. To refuse to do so would be incompatible with his duty as a constable and that his role may be passive is, in my judgment, wholly irrelevant. 33. I find some support for my view in the remarks made by Latham J in R v Merseyside Police Authority ex parte Yates . It is true that those remarks were obiter but, as I say, they provide some support for the view that I take. What Latham J said was this: 'Again, if he is correct, that injury was sustained as a result of the disciplinary proceedings against him. The applicant was obliged as part of his duties as a police officer to subject himself to such proceedings.'"

[19]The Judge then turned to deal with another of the Commissioner's arguments (which is not now pursued) - an argument that there are good policy reasons for not allowing an injury award in a case like this where, because the disciplinary process is not completed, it is difficult to decide whether the injury was received "without [the officer's] own default" for the purposes of regulations B4 and A11(4) - and continued:

"39. It is common ground that the decision of the referee is a mixed decision of law and fact; that Mr Stunt's injury was caused by the investigation of the complaint is plainly a decision as to fact and undisputed. Whether the submission of the applicant to the complaints procedure falls within the definition of 'execution of his duty' depends on the proper interpretation of those words. ... In my judgment Dr Mallett's interpretation was wrong and the application must be allowed."

The appellant's arguments

[20]On appeal to this Court, Miss Slade QC for the Commissioner advances two arguments. First and principally she submits that the approach to all these cases should be governed by the strict language of the Regulations rather than by the gloss which has come to be put upon them down the years. This is the first time these Regulations have been considered by the Court of Appeal. Now is the opportunity, submits Miss Slade, to stem the tide and correct the mistakes of the past. Richards J's analysis and conclusions in Kellam involve, she argues, an altogether too benevolent construction of these provisions.

[21]Failing that, Miss Slade advances the much narrower contention that, even assuming the correctness of the past decisions, there is no sufficient factual foundation upon which to impugn Dr Mallett's judgment on the central issue. Whatever may have been the position in the earlier cases, the stress suffered by Mr Stunt was not caused by his continuing at work as a police officer but rather by his concern and resentment at the allegations made. Nor, as the Judge below held, did his mere submission to the complaints procedure of itself constitute the execution of his duty.

[22]Let me consider these arguments in turn. The wider argument

[23]Both sides accept that regulation A11(2) operates as a deeming provision extending the basic meaning in regulation A11(1) to certain cases in which an officer could not otherwise be said to be executing his duty as a constable. Typically it would apply in cases where, for example, during an eight hour spell of duty (see regulation 26(2) of the Police Regulations 1987 - now regulation 24(3) of the Police Regulations 1995 - as to an officer's normal daily period of duty) any officer suffers injury, perhaps in the police canteen during the forty-five minute interval allowed for refreshment; or during his journey to or from work; or (under regulation A11(2)(b)) when an off-duty officer is subject to a revenge or other such malicious attack (or, under regulation A11(2)(c), when the police authority at least think that might be so). Equally, both sides accept that an officer may qualify for an award under regulation A11(1) but not under regulation A11(2): where, for example, he is off duty but required by virtue of his office of constable to preserve the Queen's peace or to protect a person under attack or to arrest an assailant (see paragraph 204 of Halsburys Laws, 4th edition, volume 36(1)) and is injured whilst doing so.

[24]Against that background, clear so far as it goes, the appellant submits that the Regulations fall to be construed as follows: 1. Regulation 11(2)(a) should be regarded as adopting an essentially temporal approach and. therefore, as covering an injury only if(a) one can identify the precise time when that injury was suffered, and

(b) the officer was at that time on duty (or, of course, travelling to or from work, or attacked because of being an officer). It will accordingly never apply in the case of a developing illness, whether mental or physical. 2. Regulation 11(1), by contrast, involves an essentially causal test and requires that the injury was caused by the execution of the officer's duty. In applying that test, moreover, it must be recognised that "execution" is an active word. Let me quote from the appellant's skeleton argument:

"The officer must have been doing something that constitutes the execution of duty, and the injury must have been received as a result of carrying out his duty. In some cases the injury will have been received as a result of what the officer himself has done in the execution of his duty (as in the Garvin case). In other cases it will be received as a result of what someone else has done to the officer in the course of the officer's execution of duty (e.g. the officer has been shot by a man he has been trying to arrest)."

[25]Miss Slade's central quarrel with Richards J's analysis in Kellam is his repeated substitution of the word "service" (or "work circumstances") for the statutory phrase "execution of duty". Provided, of course, those terms are used in an identical sense (as clearly they were in Police Authority for Huddersfield when the word "service" was first used), no harm is done. But, submits Miss Slade, it is evident from the later cases that this is not so. If it were, it could not allow recovery for general stress-related depressive illness which involves no action on the part of the officer in the execution of his duty but merely stresses encountered (and then sometimes only partly) whilst the officer is at work.

[26]On this construction of the Regulations, as I understand it, an officer who attends a road accident or other disaster and as a result later suffers post-traumatic stress disorder would recover under regulation 11(1) (albeit not under regulation 11(2)(a) because the temporal test would not be satisfied), because he actively attended the road accident. Not so, however, the officer who, as in several of the decided cases, simply broke down under the cumulative stresses of the job.

[27]It is necessary at this point to indicate something more of the history of these Regulations, starting with the Police Pensions Act 1921 under which Garvin and Police Authority for Huddersfield were decided. By s.2(1)(c) of that Act an officer was entitled to an award if "incapacitated for the performance of his duty by infirmity of mind or body occasioned by an injury received in the execution of his duty without his own default". Under the interpretation section it was provided:

"33. For the purposes of this Act - ... (2) Any injury suffered by a member of a police force: (a) whilst on duty or whilst on a journey necessary to enable him to report for duty or to return home after duty; or (b) whilst not on duty in the performance of some act which is within the scope of a constable's ordinary duties; or (c) in consequence of some act performed in the execution of his duty; or (d) whilst acting as a fireman ... shall be deemed to have been suffered in the execution of his duty ..."

[28]Garvin concerned a police officer who had contracted tuberculosis after serving in wartime conditions which made him liable to the disease. Humphreys J in the Divisional Court said this:

"That the words 'in the execution of his duty' are to receive a benevolent interpretation is clear when reference is made to s.33, the interpretation section. ... By sub-section 2 of that section, injury suffered by a member of a police force is deemed to have been suffered in the execution of his duty if so suffered whilst on a journey to or from duty or in consequence of some act performed in the execution of his duty. A pensionable injury, therefore, if I may use that term, may be suffered at a time when the man is not actually on duty. There must, undoubtedly, be some degree of causal relation between the injury and the duty. It would not be sufficient for the claimant to say: 'I was a serving policeman when I contracted tuberculosis'. ... but where it is shown that the conditions of service during the critical period were such as to cause unusual mental and bodily strain which, acting on a frame ordinarily healthy but at the time enfeebled by long hours of duty, frequent wettings and such matters, rendered it more liable than usual to such infection, I think the injury might be described as being the direct result of, and, therefore, suffered in, the execution of duty."

[29]That decision was followed in Police Authority of Huddersfield v Watson

[1947] 1 KB 842

(where the officer, as a result of his war-time police service, had developed a duodenal ulcer) where, at page 845, Lord Goddard CJ said this:

"It seems to me that the ratio in Garvin's case is this, that if it is proved that the bodily condition from which the man is suffering, whether it be rheumatism, whether it be tuberculosis and, I would add, whether a duodenal ulcer, is directly and causally connected with his service as a police officer, then he has received an injury in the execution of his duty."

[30]Those two cases were speedily followed by the Police Pensions Act 1948 which clarified the legislation in two respects. First, by s.8, "injury" was expressly defined to include "disease", thus endorsing the Court's rejection in Garvin of the police authority's argument that tuberculosis was not an injury. (The present, yet wider, definition of injury - to include "any injury or disease, whether of body or of mind" - was first introduced in the Regulations made under Police Pensions Act 1976.)

[31]Secondly the 1948 Act and the Regulations which it authorised did away with the formula in s.33(2)(c) of the 1921 Act of injury being suffered "in consequence of some act performed in the execution of his duty" - a concept, submits Mr Millar QC for Mr Stunt, which had it survived might have lent support to the Commissioner's argument that execution involves action - and by s.1(2)(iii) substituted for it the basic notion (which remains) "of injury received in the execution of ... duty".

[32]Against that background, submits Mr Millar, and given the need where possible to construe legislation in a way which keeps pace with change, such as changing views on psychiatric illness, the Commissioner's arguments as to the true construction of regulation 11(1) can be seen to be altogether too rigid and restrictive. True it is that one definition of "execution" in the new Shorter Oxford English Dictionary is "the action or an act of executing a plan, purpose, command, law etc."; another, however, is "the fulfilment or discharge of a function or office" and this is the more apt meaning in the context of the execution of duty by a person holding the office of constable.

[33]These arguments are to my mind irresistible and I have not the least doubt that officers whose depressive illness develops from the accumulated stresses of their work qualify for an award. It is, indeed, worth noting that, on the Commissioner's argument, a police officer who contracts asbestosis through exposure to asbestos dust during his police service obtains no award: he does not qualify under regulation A11(2)(a) because the time at which he contracted it cannot sufficiently be identified; nor under regulation A11(1) because merely breathing in and out is not action in the execution of his duty. That cannot be right. Conclusion on the wider argument

[34]It follows that I would regard the series of cases concluding with Kellam to have been rightly decided provided only and always that the officer's ultimately disabling mental state had indeed been materially brought about by stresses suffered actually through being at work. In the majority of the decided cases this clearly was so; the significant part played by events at work was a consistent theme. In Kellam itself, however, that was by no means obvious. The medical referee there ascribed the officer's depressive illness "to emotional stress which had four causes:(1) the stillbirth,

(2) his wife's treatment by the police force,

(3) his perception of the attitude of his colleagues after his wife won her case against the Chief Constable, and

(4) the investigation of his neighbours' complaint against him". Allowing the officer's appeal, the medical referee said:

"These all interacted with each other and all substantially contributed to the disablement. The last three in my opinion resulted from his being a police officer."

[35]Richards J, having stated his conclusions upon the proper construction and application of the Regulations, applied those conclusions to the case before him as follows:

"[Dr Kellam's] statement that three of the four causes of Mr Milton's emotional stress 'resulted from his being a police officer' must be read in context and is not to be taken literally: it meant that the stress caused by those matters resulted from circumstances which Mr Milton encountered as a serving police officer. ... They are all to be seen as related to Mr Milton's service as a police officer - to his work circumstances. That is more obviously true of factors (2) and (3) than it is of factor (4), but I consider it to apply even in the case of factor (4). ... [Dr Kellam] did not base his decision on the mere fact of Mr Milton being a police officer at the material time. He understood the nature of Mr Milton's case, which was plainly directed to the effect on Mr Milton of events at work over a lengthy period."

[36]In the result he detected no misdirection in Dr Kellam's approach and rejected the challenge to his decision.

[37]Without for a moment suggesting that he was wrong to have done so - and I have done scant justice to his careful reasoning in that factually complicated case - I would at least suggest that Kellam takes to their limits the principles which he himself had deduced from the earlier cases. It was, as it seems to me, critical to his final conclusion that most if not all of the various stresses had born more heavily upon PC Milton because of his actually being at work and mixing with other police officers at the time.

[38]That, of course, is not the position in the present case which is why, as both sides agree, it raises novel considerations. I turn, therefore, to Miss Slade's narrower argument which can be dealt with rather more briefly. The narrower argument

[39]As is plain from paragraphs 32, 33 and 39 of his judgment (already quoted), Grigson J found for Mr Stunt below on the basis that a police officer's submission to the complaints procedure is required of him and is therefore in the execution of his duty. Since Mr Stunt's injury resulted from his reaction to the investigation of the complaint, it followed that it was received in the execution of his duty.

[40]The first point to be made about this basis of decision is that it recognises the essential passivity of the officer's role in the disciplinary (or at any rate investigatory) process and that he is not obliged to cooperate: submission, which of course is unavoidable, is sufficient.

[41]The second point to note is that the decision is reached quite independently of the circumstances initially giving rise to the complaint - here Mr Stunt's arrest of Mr Marcus. The fact that, justified or not, that arrest was undoubtedly made in the execution of Mr Stunt's duty is, Mr Millar fully accepts, nothing to the point: the complaint could just as well have been one of corruption, say of taking a bribe to overlook an offence, or perhaps of a failure to do his duty.

[42]The decision, in short, depends upon the correctness of the view that simply because a police officer, by virtue of his office, is subject to a formal discipline code and procedure, with which he need not cooperate but which he cannot escape, any injury resulting from its operation is necessarily suffered in the execution of his duty.

[43]In seeking to support this view, Mr Millar urges upon us a number of general considerations in favour of a benevolent construction of the Regulations. These include not least(a) the closely regulated nature of a police officer's service and the requirement that he perform a wide variety of tasks in many testing situations and locations,

(b) a police officer's vulnerability by the very nature of his work to malicious allegations and ill-founded complaints, and

[44]I should note also Mr Millar's contention that an officer's duty, at any rate in a case like the present which, strictly analysed, involved a statutory investigation under Part IX of PACE superimposed upon the police disciplinary proceedings, requires, subject always to privilege against self-incrimination, some degree of cooperation at least, if only the handing over of the officer's notebook (police property in any event). I confess to having found this argument not merely difficult to follow but in any event unpersuasive: there was no suggestion here that Mr Stunt was required actively to cooperate in this investigation or even that his, plainly voluntary, attendance for interview of itself contributed to his stress. Rather the contrary, his concern was that the investigation was taking place at all and that it appeared to have been pre-judged against him.

[45]In short, I do not accept that the resolution of this issue is capable of being affected by a minute analysis of the particular role played by the officer in the overall disciplinary process. The critical question, I repeat, is whether the officer's mere subjection to the process of itself constitutes the execution of his duty. With regard to that bald question Mr Miller urges that the Judge below was right. Conclusion on the narrower argument

[46]Sympathetic though I am to police officers for the particular risk of disciplinary proceedings they run by the very nature of their office, I cannot for my part accept the view that if injury results from subjection to such proceedings it is to be regarded as received in the execution of duty. Rather it seems to me that such an injury is properly to be characterised as resulting from the officer's status as a constable - "simply [from] his being a police officer" to use the language of paragraph 5 of Richards J's conclusions in Kellam when pointing up the crucial distinction. This view frankly admits of little elaboration. It really comes to this: however elastic the notion of execution of duty may be, in my judgment it cannot be stretched wide enough to encompass stress-related illness through exposure to disciplinary proceedings. That would lead to an interpretation of Regulation A11 that the natural meaning of the words just cannot bear. The respondent's alternative argument

[47]There is one final argument I must briefly notice: Mr Millar's fall-back contention that Mr Stunt's illness should in any event be regarded as having been occasioned whilst he continued to undertake police duties between receiving notice of the complaint in July 1993 and departing on sick leave in November 1993. Throughout this period, argues Mr Millar, a significant part of the stress Mr Stunt was suffering from the worry of the disciplinary investigation occurred whilst he was at work so as to make him eligible for an award even if his submission to the disciplinary process was not in itself in the execution of his duty.

[48]This argument too I would reject. It seems to me wholly unrealistic to suppose that the fact of being at work during the course of the investigation actually exacerbated the stress from which Mr Stunt was suffering; if anything one might suppose that his duties at work helped to take his mind off his worries. Why should the mere fact of his continuing at work whilst the stress deepened qualify him for an award? Such a claim is no stronger than had he during this period been developing a heart condition or other constitutional disability.

[49]There is this consideration too: had Mr Stunt been suspended from duty during the investigation (as many officers are), clearly no such argument would have been available to him. It would be surprising and unsatisfactory if for the purposes of an injury award in circumstances like these a distinction fell to be drawn between those suspended from duty and those continuing at work. In my judgment it does not. Result

[50]It follows from all this that I find myself unable to agree with the Judge below (and, equally, with the obiter dictum in Yates from which he drew support). Kellam in my judgment takes recovery under these Regulations to its furthest limits. I would hold that an award is not payable to an officer disabled, as Mr Stunt was, through his reaction to disciplinary proceedings. I would accordingly allow the Commissioner's appeal, set aside the order below and reinstate Dr Mallett's decision on the Regulation H2(2) appeal. LORD JUSTICE LONGMORE:

[51]I agree. For my part, I do not think it can be said with any plausibility that Dr Mallett misdirected himself in law.

[52]The notes of guidance in relation to Medical Appeals which are issued by the Police Policy Directorate and given to medical referees say among other things in paragraph 12:- "Injury received in the execution of duty is a difficult area, but to all intents and purposes the question for you (viz the medical referee) is whether the injury was caused by or received on police duty as opposed to domestic or other circumstances not related to police duty."

[53]There is no reason to criticise this guidance or to suppose that the medical referee, Dr Mallett, did not follow that guidance. He set out the essential facts as follows:- "The events leading up to his retirement consisted of what he described as malicious allegation against him while he was working in the House of Parliament. He was made subject of an internal investigation by the police, felt betrayed by his colleagues and treated like a criminal. He felt a mixture of anger, frustration and hopelessness at fighting against a seemingly implacable system. He quickly became very depressed and at times suicidal to the extent that he would wander off to visit local canal and stand by the water thinking about jumping in. His sleep deteriorated as did his appetite. He was not able to enjoy anything. Since the resolution of a case against him, he has felt considerably better, but during that time had two admissions to Ealing Hospital, one to the Secure Unit under the Mental Health Act where he was closely observed and started on anti-depressants which he is still taking (trazodone 150mg a day)."

[54]This account, while referring to the fact that Mr Stunt felt betrayed by his colleagues and treated like a criminal, does not lead to the conclusion that the injury was caused by or received on police duty. It was the fact of the investigation and, to an extent, the manner in which it was conducted that gave rise to Mr Stunt's depression. That seems to me to make unassailable Dr Mallett's conclusion that his disablement:

"is not strictly speaking the result of an injury received in the execution of Mr Stunt's duty but does arrive (sic) as a result of his reaction to the internal proceedings brought against him."

THE MASTER OF THE ROLLS:

[55]Section 1 of the Police Pensions Act 1976 and the Regulations made thereunder draw a distinction between "persons who cease to be members of the police force by reason of infirmity of mind or body" and the narrower category of "persons who cease to be a member of a police force by reason of injury received in the execution of their duty". The issue in this appeal is whether, applying the correct test of law to the undisputed facts, Mr Stunt's psychiatric injury was received "in the execution of his duty".

[56]A number of authorities were referred to Grigson J and to us where a similar issue arose. There is one common element in each case in which the injury was held to have been sustained "in the execution of duty". An event or events, conditions or circumstances impacted directly on the physical or mental condition of the claimant while he was carrying out his duties which caused or substantially contributed to physical or mental disablement. If this element cannot be demonstrated it does not seem to me that a claimant will be in a position to establish that he has received an injury in the execution of his duty. Mr Stunt was not in a position to demonstrate the existence of this essential element. For that reason Dr Mallett was correct to conclude that Mr Stunt's disablement was not the result of an injury received in the execution of his duty. I too would allow this appeal.

ORDER

Appeals allowed with costs. Leave to appeal to the House of Lords refused. (Order does not form part of approved Judgment)

Cited in 11 later judgments

and 2 more of the most senior