REGINA v THE CHIEF CONSTABLE OF MERSEYSIDE POLICE ex parte CAROL ANN BENNION [2001] EWCA Civ 638

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
(Mr Justice Toulson)
[2001] EWCA Civ 638Case No Case No: C/2000/2549Venue Royal Courts of Justice, Strand, London, WC2A 2LL, Friday 4th May 2001
Between
REGINATHE CHIEF CONSTABLE OF MERSEYSIDE POLICE ex parte CAROL ANN BENNIONAppellant
Before
Lord Justice HenryLord Justice JudgeLady Justice HaleDavid Pannick Esq, QC & Mrs Judith Beale(instructed by the solicitor to the Chief Constable, Merseyside Police) appeared on behalf of the Appellant.James Pickup Esq, QC(instructed by Messrs Russell, Jones & Walker) appeared on behalf of the RespondentDate 4 May 2001

LORD JUSTICE JUDGE:

This

[1]is an appeal by the Chief Constable of the Merseyside Police, Norman Bettison, against the decision of Toulson J. on 29 April 2000, quashing the findings of guilt made against an officer in his force, Carol Ann Bennion, on 7 January 2000 in disciplinary proceedings conducted by him.[2]In April 1997 Mrs Bennion was serving as a Chief Inspector in the Merseyside Police. She was posted to Southport as Area Operations Manager. Her Area Commander was Superintendent Rooney. Mrs Bennion alleged that she was the victim of systematic sex discrimination by him. In summary he belittled and intimidated her in a protracted course of discriminatory conduct.[3]In March 1998 Mrs Bennion formally complained in writing. In the course of investigating her complaint, Assistant Chief Constable Stephenson, of the same force, interviewed her in the presence of other officers, including a member of the Police Federation who was protecting her interests. The Assistant Chief Constable concluded that both Mrs Bennion and Superintendent Rooney should be transferred, she to another Area, he to Police Headquarters. As she was dissatisfied with his decision, Mrs Bennion asked for her case to be referred to the Chief Constable, Sir James Sharples. On 6th April he confirmed the decision.[4]In the meantime, in September 1997 Mrs Bennion had bought a Mazda car from a dealer in Southport named Collins. Her links with Collins were to lead to the disciplinary proceedings with which this appeal is concerned. On 7th May 1998, while she and her husband (who was then also a serving Chief Inspector in the same force) were attending a police conference in Bournemouth, she received a telephone call from the force Professional Standards Department. She was required to return immediately to Merseyside. She alleged, in effect, that she was forced to return by a threat of arrest for fraud. On her return she was served with a Regulation 7 Notice, and interviewed in connection with her suspected involvement with Collins, in a scheme for unlawful importation of cars into the United Kingdom, and with making false declarations. A further five officers were said to be similarly involved.[5]On 17th May, Mrs Bennion lodged her first complaint to the Employment Tribunal, Liverpool, for "sex discrimination and victimisation" against the Chief Constable of the Merseyside Police and Superintendent Rooney. At that stage her application was directed at the Superintendent personally, as well as the Assistant Chief Constable, and the entire process which had taken place on 7th May. This application did however state:
"I have named Superintendent Rooney as respondent at this stage but I will be prepared to withdraw against him if the Chief Constable does not rely upon the defence contained in Section 41(3) of the Sex Discrimination Act 1975."
[6]That observation recognised that the Chief Constable might very well be suggesting that he had taken all reasonably practicable steps to prevent the officers in his force from committing the acts of discrimination and victimisation of which she was complaining. What appears plain from the application was that no allegation was being made personally against the Chief Constable.[7]On 16th June notices of appearance were entered by Superintendent Rooney and the Chief Constable in his capacity as the officer responsible for the Merseyside force. The first focus of his response was the primary allegation of sex discrimination and victimisation. Further and better particulars were sought. However the Chief Constable went on to point out that in relation to the allegations based on events on 7 May it had been determined:
"to institute a disciplinary investigation into the Applicant's (and other officers') actions arising out of that same importation of motor vehicles into the United Kingdom........ At the date of service of this notice of appearance it had not been determined whether the Applicant or any officers who are the subject of the discipline investigation shall be required to attend a formal disciplinary hearing or not. ...... The police enquiries and the separate discipline enquiries into the importation of motor vehicles are continuing."
[8]The Chief Constable suggested that it would be inappropriate for him to deal with the allegations made by the applicant about events on 7th May. Proceedings before the Employment Tribunal were therefore stayed.[9]On 4th November Mrs Bennion's grounds of complaint were amended, in effect, by the further and better particulars sought by the Chief Constable. The proceedings against him in relation to her complaints of discrimination and victimisation, and the investigation of the disciplinary complaint against her, and the decision to transfer her to serve elsewhere, were all said to arise because he was "the person responsible for the acts and omissions of and as 'employer' of (Superintendent Rooney) pursuant to the provisions of s17 and 41 of the Sex Discrimination Act 1975". Although it was then alleged that the Chief Constable had "wrongly supported" the decision to transfer her, this complaint never resurfaced. There was an additional complaint that the Chief Constable's decision to undertake a complaint in relation to a number of "alleged disciplinary offences" of which she was informed on 22nd September by Superintendent Kerry, amounted to "victimisation". Although probable, it is not absolutely clear that this allegation was identical to the allegations on which a further, and subsequent application was made to the Employment Tribunal on 9th December.[10]On 14th November, Mr Norman Bettison took office following his appointment as Chief Constable of Merseyside. He had never before served in the Merseyside Police.[11]On 20th November Mrs Bennion was informed that criminal proceedings arising from the matters investigated on 7th May would not be brought against her, but she was also told that disciplinary proceedings remained under consideration.[12]On 9th December, as noted earlier, she made a further complaint to the Employment Tribunal, which was based on alleged victimisation arising from a notice of alleged disciplinary offences which arose in relation to claims made by her of earlier examination successes. In March 1999 Mrs Bennion was informed that no formal disciplinary action would be taken in connection with these matters. She was advised about her position, and the advice was recorded in the Area Discipline book.[13]Two days later, on 12th March, Mrs Bennion was notified that she would be charged with disciplinary offences arising from her dealings with Collins, and on 12th April she was served with the appropriate discipline form and the statements to be relied on. There were four allegations, the first of discreditable conduct, and the remaining three of neglect of duty. All arose out of her alleged dealings with Collins. Summarising them as briefly as possible the allegations were that: a) Mrs Bennion had declared that she had checked the information given in a DVLA application for a first licence and that to the best of her knowledge it was correct, when it had not been completed, or contained information which she knew or ought to have known was false; b) She failed to inform the police or the DVLA of the receipt of a registration document which asserted that the registered keeper was Amanda Parker, when she (Mrs Bennion) understood that the car had been imported or registered in her name. c) She failed to inform the police or the DVLA that she had received a registration document relating to another, second, car of which she was said to be the registered keeper, when in truth she had no knowledge of the car. d) She failed to inform the police who were investigating the activities of Phillip Collins in connection with an alleged criminal importation of vehicles of her knowledge of Collins' activities.[14]On 15th June Mrs Bennion made a further application to the Employment Tribunal. She alleged that the prosecution of these disciplinary charges, as well as the decision to give her formal advice and record it in the discipline book, all amounted to victimisation.[15]On 30th September there was a preliminary hearing of the disciplinary proceedings before the Chief Constable. It is the decision reached on this occasion, that the disciplinary proceedings should not be remitted for the decision of a Chief Officer of Police from a different force, that is the subject of these proceedings for judicial review. Before dealing with the hearing in detail, I should complete the narrative.[16]The hearing of the disciplinary proceedings was due to take place a fortnight or so later, but was postponed at Mrs Bennion's request. Instead it took place on 6th and 7th January 2000. The Chief Constable found the third and fourth charges proved, and dismissed the first two charges. On the third charge Mrs Bennion was fined one day's pay. On the fourth charge, Mrs Bennion was reduced to the rank of Inspector. The Chief Constable took a much more serious view of this charge because he was "satisfied that from about October 1997 she had been aware of police enquiries into the activities of the car dealer. [He] was satisfied that she had not directly or indirectly reported her dealings with the dealer to the officers conducting the enquiries, and ... considered that it had been her duty to do so".[17]On 2nd February the stay of proceedings before the Employment Tribunal was lifted. The hearing was fixed for 3 July 2000. A few days later another application was made to the Tribunal by Mrs Bennion. Her allegations, essentially, were that she had further victimised by the conduct of and decision reached by the Chief Constable in the disciplinary proceedings, and in effect, constituted an appeal against that decision. In due course however all the proceedings before the Employment Tribunal were withdrawn.[18]On 23 March, an appeal under the Police (Appeal) Rules was made by Mrs Bennion to the Secretary of State against the decision of the Chief Constable not to disqualify himself and remit the charges, as well as his findings of fact, and sentence.[19]On 5 April the present application for judicial review was started. Permission was granted on 8 June. Toulson J rejected grounds of objection taken by the Chief Constable, first, that, an alternative remedy was already available to Mrs Bennion under the Police (Appeal) Rules, and, second, that the application for judicial review of a decision reached on 30 September 1999 was well out of time. The submissions were plainly not without merit, and led Toulson J to express "considerable disquiet" at the course which had been followed, and the protracted nature of the proceedings. In the result however his decisions on these grounds of objection did not form the basis of any appeal to this court, presumably because there was no reasonable basis to justify the court interfering with the careful exercise of his judicial discretion.[20]With that lengthy narrative of the relevant background I must now return to the hearing on 30 September 1999. The issue before the Chief Constable, and now indeed before us, arises under the Police (Discipline) Regulations 1985.[21]Regulation 13.1 provides:
"... A charge against a member of a police force shall be heard (a) by the chief officer concerned ... except where a case has been remitted under Regulation 14."
[22]Regulation 14 provides:
"Remission of cases. 14.1 The case of a member of a police force charged with an offence (a) shall, in the circumstances mentioned in paragraph 2, or (b) may, in the circumstances mentioned in paragraph 7, be remitted by the chief officer concerned to another chief officer who, at his request, has agreed to act in the matter. 14.2 A case shall be so remitted if (a) subject to paragraph 3, the chief officer concerned is interested in the case otherwise than in his capacity as such; or ... 14.7 A case not falling within paragraph 2 may be remitted by the chief officer concerned ... if, either before, or during the hearing, the chief officer concerned considers remission appropriate and directs that the function of determining whether the accused has committed an offence against discipline should be determined by another chief officer."
[23]Police disciplinary proceedings plainly involve a quasi-judicial process. They must be conducted fairly. And it is expressly provided that the Chief Constable must disqualify himself, notwithstanding the obligation imposed by Regulation 13.1, if he has any interest in the outcome of the proceedings which does not arise from his office, and the responsibilities vested in him as Chief Constable.[24]As the essential issue in the present proceedings arises from events which took place at the hearing on 30th September, a fairly detailed analysis is required. The submission made on behalf of Mrs Bennion to Mr Bettison was that he should exercise his power under Regulation 14.7 to remit the matter to another Chief Constable for decision. It was not suggested to him, nor indeed before Toulson J, that the situation confronting him fell within the ambit of Regulation 14.2, when remission would have been obligatory. The Chief Constable was assured by all those appearing before him that they were agreed on this point. The argument on behalf of Mrs Bennion can be summarised and illustrated by the submissions to the Chief Constable. "You in your capacity as Chief Constable and now the respondent to those proceedings (before the Employment Tribunal) even though one can see that you may not have known about them or if, certainly not the details of them, that it is the factual situation now that you as Chief Constable are the respondent to all of those proceedings. The 1998 applications would have been brought against the previous Chief Constable of course, but you had the misfortune to take over all his liability. ... It would appear to the applicant that it would be inappropriate for the respondent in one set of proceedings to be the arbiter in the other."[25]Attention was drawn to R v Gough , and it was contended that the test to be applied to the hearing before the Chief Constable was identical to that which would apply to a court. Attention was further drawn to the fact that two other officers were charged in the same proceedings who were anxious for the Chief Constable to be retained as the arbiter.[26]The Chief Constable asked the direct question:
"Is there something specifically that I have done in my capacity as Chief Constable to trigger this application?"
[27]Counsel for Mrs Bennion assured him:
"No, not as a person."
The Chief Constable underlined his concern, by saying:
"That is important to me, do you understand that's important for me to understand in considering this submission?"
[28]Counsel responded:
"Please understand, no ..."
[29]The Chief Constable then heard from the presenting officer who reminded him that as chief officer he had "... a right and duty to deal with the disciplinary matters ..." in his own force.[30]The Chief Constable examined Regulation 14.7. He recognised that the issue which arose concerned "the fairness of the proceedings", with a discretion to be exercised. He was told "You are obviously entitled to balance the various features in the case provided as I indicated you are satisfied there is not a real danger of bias, then you are entitled to reflect the timing, the interests of the various parties, and other considerations as seen to you to be appropriate and material. ... Ultimately, having satisfied that first question as to the real danger of bias, it is entirely a matter within your discretion, balancing all the features. ..."[31]The Chief Constable rejected the application to remit. He gave a short judgment. He concluded that there was "... no real danger of bias ...", adding that he needed to address " ... the question of reasonableness and fairness which might be judged by others looking at the adjudication ...". He then analysed the timetable. Mrs Bennion was aware of the disciplinary issues under investigation since early May 1998. He himself had become Chief Constable in November 1998, so that no one could suggest he was in any way "... involved in the instigation of those disciplinary proceedings ...". He recognised his position as a defendant in litigation, potentially liable vicariously on behalf of the force, and then directed himself that when he sat as the disciplinary authority for the force, "I sit as an individual, I sit as not only Chief Constable but actually Norman Bettison, the Chief Constable of Merseyside Police". Basing himself on the material drawn to his attention, he said that he had no personal involvement in the case, either in relation to the disciplinary matters, or to the matters which were the subject of the proceedings before the Industrial Tribunal. He was conscious that "I am not as far as I know, named individually, either as an individual or in the office of the chief constable as being involved in victimising Carol Bennion". He concluded that a reasonable observer would not be driven " ...to say there was a real danger of bias or that it was unfair of that man to adjudicate in these proceedings".[32]When the application for judicial review was heard before Toulson J, he made it clear that on the arguments presented to the Chief Constable, and the advice he had been given, his decision was entirely supportable. He expressly said that he made "... no personal criticism of the Chief Constable ...". The case had been differently argued on behalf of Mrs Bennion before him, and his judgment reflected arguments which had never been advanced to the Chief Constable.[33]Toulson J stated:
"... the Chief Constable did not determine any matter which is itself an issue in the employment proceedings. The disciplinary proceedings and the employment proceedings are separate causes and involve separate issues, (although) on the aspect ... whether the applicant was investigated for the disciplinary matters in a harsh manner, there may have been some commonality of evidence."
[34]He recognised that the Chief Constable's financial exposure personally was "... less than minimal: it is nil".[35]He reflected whether the outcome of the disciplinary proceedings might bear on the outcome of the employment proceedings. He considered, first, that it might affect the approach to Mrs Bennion's "general credibility". Second, he thought that if the disciplinary proceedings had resulted in an acquittal, then this would have helped support her argument before the Employment Tribunal that she had been victimised. I disagree with this particular formulation. In the disciplinary proceedings the standard of proof was the criminal standard. However deployed forensically, strictly speaking, Mrs Bennion's acquittal proved nothing positive to assist her case that she had been subjected to sex discrimination and victimisation. Of greater possible concern would be that a finding of guilt could properly be deployed to undermine her credibility at the Tribunal hearing, a different approach to the same credibility issue considered by Toulson J.[36]As Toulson J himself said, his decision was by no means straightforward and, despite his express conclusion that there was no real risk of the Chief Constable being biased, he decided:
"... in the final analysis it does seem to me that where the judge (or person in the position of a judge) is himself not merely involved in, but is the head of an organisation being sued by the person whom he is called on to judge, and the outcome of the proceedings before him may have a material bearing on the outcome of the action brought by the person whom he is judging against the organisation of which he is head, the first limb of the judicial impartiality principle is brought into play."
[37]Accordingly he quashed the Chief Constables decision in the disciplinary proceedings.[38]The Chief Constable appeals against this decision. Mrs Bennion seeks to uphold it, both for the reasons given by Toulson J, and on the further basis, rejected by him, that there was a real risk of bias. The issue, briefly summarised, is whether the Chief Constable could properly adjudicate in the disciplinary charges brought against an officer in his force when he was the respondent in Employment Tribunal proceedings brought by that officer.[39]Basing himself on the finding that the Chief Constable had no personal interest in the outcome of the disciplinary proceedings, Mr David Pannick QC submitted that Toulson J had not sufficiently focused on the statutory scheme which governed disciplinary proceedings against police officers. The Chief Constable was obliged to determine them, and entrusted with the arrangements for the fair conduct of the hearing, and subject to rights of appeal, the responsibility for adjudication. He reminded us of the principle expressed in R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531 at 561, where Lord Mustill said:
"The court must constantly bear in mind that it is to the decision maker, not the court, that Parliament has entrusted not only the making of the decision but also the choice as to how the decision is made."
[40]This was precisely such a case. The Chief Constable was vested with a statutory responsibility to hear the disciplinary proceedings in his capacity as Chief Constable, with the discretion to remit the case. The proceedings were linked in the sense that although the Chief Constable was not the object of any personal complaint, he was formally joined as the respondent in the employment proceedings in accordance with s17 of the Sex Discrimination Act 1975. He was, as Mr Pannick emphasised, expressly told by counsel for Mrs Bennion that he had no personal interest in the outcome. Given the limited nature of the link between the two sets of proceedings, and the assurance that he had no personal interest in the outcome of the disciplinary proceedings, there was no justification for interfering with his decision.[41]Mr James Pickup QC robustly argued that in every case where a police officer is proceeding against his Chief Constable in the Employment Tribunal, whenever the outcome in the disciplinary proceedings would have any bearing on the proceedings before the Tribunal the Chief Constable must disqualify himself from adjudicating. Otherwise, the Chief Constable would be sitting as a judge in his own cause, and inevitably, even if subconsciously, aware that the good name of his force would be affected by the proceedings before the Tribunal. He pointed out that a disqualifying interest extended well beyond a pecuniary or proprietorial interest, emphasising the principle formulated by Lord Campbell in Dimes v Proprietors of Grand Junction Canal [1852] 3 HL Cas 793-794, recently considered and endorsed in R v Gough [1993] AC 646 , R v Bow Street Metropolitan Stipendiary Magistrate ex Pinochet Ugarte (No 2) [2000] AC 19, and Locabail (UK) Limited v Bayfield Properties Limited [2000] QB 451 . When seeking to identify the precise nature of the Chief Constable's interest in the outcome of the disciplinary proceedings before him, Mr Pickup suggested that as head of the Merseyside Police Force, the Chief Constable would appreciate that any findings in the disciplinary proceedings which were favourable to Mrs Bennion would improve her prospects of success before the Employment Tribunal.[42]Mr Pickup argued that in any event, Toulson J was wrong to conclude that there was no danger of bias. This, in summary, was a case when the Chief Constable should automatically have disqualified himself on the basis that, objectively speaking, there was a real possibility of bias, apparent to any independent and reasonable observer.[43]The essential thread of Mr Pickup's submission was that it treated the operational responsibilities of the Chief Constable in relation to disciplinary proceedings as if it were analogous to, if not identical with the obligations of a judge conducting a trial (civil or criminal) involving an individual with whom the judge personally is involved in separate litigation. If we assume, for example, that a judge found that he was due to adjudicate in a dispute in which one of the parties was also involved in personal litigation against him, the judge would undoubtedly and immediately disqualify himself. In one sense the Chief Constable here was in the same position. He was acting as the judge in disciplinary proceedings brought against an officer under his command, who had herself brought proceedings against the force for which and other officers for whom the Chief Constable was vicariously responsible, and in which the Chief Constable was identified as the respondent. So he was simultaneously involved in two sets of proceedings, in one of which he was named as a defendant, and in the other of which he was adjudicating on the conduct of the officer who made the allegations which had led to his involvement as a defendant.[44]The essential question therefore is whether the position of the Chief Constable can be distinguished from that of the hypothetical judge described in my example. The immediate difference stems from the operational responsibilities of the office of Chief Constable. Notwithstanding his general interest in the outcome of every disciplinary hearing, Regulation 13.1 is unequivocal. It is normally appropriate, and thought to be in the best interests of the Force as a whole, for the Chief Constable to adjudicate in disciplinary matters. No such assumptions or operational considerations apply to the judge. Ignoring the court's control over the proceedings, the judge has no disciplinary function over the litigants. By contrast, the Chief Constable always has an interest (in its general sense) in the outcome of every set of disciplinary proceedings brought against any one of his officers. When the judge gives judgment, his interest and involvement with the litigants comes to an end. He has no further "interest" at all. Sitting as an adjudicator in disciplinary proceedings, the Chief Constable has a direct and continuing involvement in the consequences of his decisions in a way in which the judge does not. For example, if it were alleged that three or four of the officers under his command had abused their authority, or indulged in racially discriminatory behaviour, his finding that they had done so reflects adversely on the force under his command. No one suggests that the Chief Constable should not adjudicate. Indeed it is his duty to do so. It is confidently expected that his decision will be made fairly and objectively, and that he will not be inhibited from making a finding adverse to the officers by the thought that he may be identified as a defendant, vicariously liable for their conduct in any civil proceedings for damages subsequently brought by the victim. What is more, if he acquits the officers in such circumstances, the complainant is not precluded from pursuing civil proceedings. In the same way, the Chief Constable's findings in the present case, even if potentially relevant in the sense I have indicated, would not have prevented the Employment Tribunal from considering Mrs Bennion's complaints afresh and independently, and if appropriate, concluding that she had indeed been victimised as alleged.[45]These considerations lead me to the conclusion that care must be taken not to assume that requirements which would be understood to apply to any judge, inexorably apply to a Chief Constable conducting disciplinary proceedings in accordance with his operational responsibilities.[46]Carried to its logical conclusion, the principle of automatic disqualification for which Mr Pickup contended in cases like these would involve a rewriting of the terms of Regulation 14.2. It would also identify a new category of automatic disqualification, a process which was, to put it no higher, discouraged by Lord Woolf in his speech in R v Gough , [1993] AC 646 , at 673, and the Court of Appeal in Locabail (UK) Limited [2000] QB 451 at 475. Indeed if Mr Pickup were right, the principle that disciplinary proceedings should be determined by the Chief Constable could be rapidly circumvented by any of his police officers who for any reason wished to avoid adjudication by him. An application to the Employment Tribunal would inevitably be followed, and have to be followed, by the remission of the disciplinary proceedings elsewhere, or the guarantee of such remission. That is not what the regulations provide: rather the Chief Constable is, to use Lord Mustill's word, "entrusted" with deciding whether such proceedings should lead to remission of the individual disciplinary hearing, which, unless it falls within the ambit of Regulation 14.2, must depend on the circumstances of the individual case.[47]In the present case, although Mrs Bennion linked the disciplinary allegations against her with her proceedings before the Employment Tribunal for discrimination and victimisation, the reality is that the disciplinary issues were concerned with her dealings and involvement with Collins, and unconnected with the victimisation and discrimination she allegedly suffered after her posting to Southport. Without ignoring the substantial claims that each stage in the disciplinary investigation, and indeed the hearing itself, added to her complaints of victimisation, the factual issues before the Chief Constable were limited to his adjudication whether the allegations of misconduct in relation to Collins were or were not established. His interest in the proceedings before the Employment Tribunal was nominal, or titular, rather than personal. Although he would rightly be interested in the outcome of the allegations about discrimination and victimisation which, if established, would raise serious questions about the attitude and conduct of officers under his command towards a female officer, and require him to consider whether disciplinary proceedings against them would be appropriate, his involvement as a defendant in the proceedings by Mrs Bennion did not arise from any allegations against him, and even if successful, would not have had any adverse consequences whatever for him personally. He had no disqualifying personal interest arising from his involvement, in his different capacities, in either set of proceedings. Toulson J rightly agreed with the Chief Constable that there was no real danger of bias. In the absence of any such danger, and absent too, any principle of automatic disqualification in cases such as these, the question for decision is whether it was established in judicial review proceedings that the Chief Constable's decision in relation to his powers under Regulation 14.7 was wrong. In my judgment, after carefully considering the material shown and contentions advanced to him, (and his observations on 30 September demonstrated that he treated the application that he should remit the hearing with meticulous circumspection) the Chief Constable was entitled to reject the application that he should remit disciplinary proceedings.[48]For these reasons, in my judgment this appeal should be allowed.

LADY JUSTICE HALE:

[49]I have not found this an easy case. There is a real sense of discomfort about the sequence of events here. A woman officer alleges a prolonged and systematic course of discriminatory conduct by her senior officer. The response of senior management is to transfer them both, thus giving the impression, at the very least, that it is not taking the matter seriously and regards them as equally to blame. She protests. Shortly after this, and in what she sees as a humiliating manner, an investigation of possible criminal and disciplinary offences by her is begun. Nevertheless, she proceeds to make her complaints of discrimination and victimisation. The Force response is to obtain a stay of those complaints because of the investigation. At that stage, the only overlap between them relates to the events of 7th May, when she was hurriedly recalled for interview. There is no connection between the underlying complaints of discrimination and the matters under investigation. Five months later, she is informed that she is not to be prosecuted, and not until nine months later is she informed that disciplinary proceedings are to be brought. In the meantime she has also complained that the disciplinary proceedings are themselves victimisation, but the discrimination proceedings remain stayed. As these have now been withdrawn, although we know that she was found guilty of a breach of discipline thought to be sufficiently serious to merit demotion, we shall never know what an Employment Tribunal would have made of her complaints. In particular, we shall never know whether the Tribunal would have reached the conclusion that she had been treated less favourably than others would have been treated in relation to the disciplinary allegations because she had launched the sex discrimination claim. But the existence of the investigation and of the disciplinary proceedings put her at a disadvantage by delaying her original complaints and to that extent put the Force at an advantage. An outcome in the disciplinary proceedings favourable to her would not, as Judge LJ has explained, be of much if any advantage to her in the discrimination proceedings; but an outcome unfavourable to her would be of some advantage to the Force.[50]In those circumstances, it is scarcely surprising that Toulson J reached the conclusion that the Chief Constable should not have heard the disciplinary proceedings. This sense of discomfort could have been avoided had he referred them to the Chief Constable of another Force. But that is a different issue from whether he was indeed "judge in his own cause". The rules of natural justice have to be applied in a way which is appropriate to the particular decision making process in question: what is appropriate for a court or independent tribunal cannot be appropriate for an internal disciplinary enquiry. The Chief Constable is personally responsible for the good order and discipline of his Force. He is also responsible, on the analogy of an employer, for taking such steps as are reasonably practicable to prevent those in his Force from engaging in sex (or other prohibited) discrimination or victimisation. He should, in my view, regard each of these as important aspects of his overall responsibility for the maintenance of proper standards of behaviour in those under his command. But unless he has a personal involvement or other interest in a particular case which is closer than this, he cannot be regarded as automatically disqualified from discharging his duty to deal with the matter. Nor, in the particular circumstances of this case, was there a real danger of actual bias. It follows that the appeal should be allowed.

LORD JUSTICE HENRY:

[51]I also agree with the judgment of Lord Justice Judge, and add some words of my own as we are differing from the judgment of Toulson J below.[52]All police forces maintained under section 2 of the Police Act, 1996 are under the direction of their Chief Constable, who is appointed by the police authority responsible for maintaining the force subject to the approval of the Secretary of State (see sections 10 and 11 of that Act).[53]At the time of these events, any disciplinary charge against a member of the police force was heard by the Chief Constable concerned, except when the case was remitted by him (see Regulations 13 and 14 of the Police (Discipline) Regulations, 1985 SI 1985/518).[54]Examination of those regulations shows what is expected of the role of the Chief Constable in disciplinary proceedings (the Regulations are to be found in paragraphs 21 and 22 of Judge LJ's judgment).[55]First, the Chief Constable is entrusted with the duty of hearing all disciplinary cases except those that are remitted under Regulation 14 (see Regulation 13).[56]Second, he shall remit where he has a personal interest in the case (Regulation 14(2)).[57]Third, he need not remit where his interest in the case is only in his capacity as Chief Constable, but may, if he considers it "appropriate" (Regulation 14(2) and 14(7)).[58]Fourth, he has a wide discretion to remit when (if either before or during a hearing) he considers that remission to another chief officer is "appropriate" (Regulation 14(7)).[59]The first and third categories show that he is not in the same position as a judge. Nor is he in the position of a private law employer: The framework of his duties and responsibilities provide a public law framework, reflecting the statutory basis of his responsibility for the conduct of the men and women under his control. Here he was properly directed as to the law, and his decision to sit was both transparent and scrupulous.

ORDER

Appeal allowed; respondent to pay appellant's costs in the agreed amounts of £22,132 (in the Court of Appeal) and £6,383.90 (at first instance). (Order does not form part of approved Judgment)

Cited in 1 later judgment