The QUEEN on the APPLICATION of The CHIEF CONSTABLE of the WEST MIDLANDS POLICE v BIRMINGHAM JUSTICES [2002] EWHC 1087 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

DIVISIONAL COURT

[2002] EWHC 1087 (Admin)

Case No Case No: CO/5340/2001

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Between

The QUEEN on the APPLICATION of The CHIEF CONSTABLE of the WEST MIDLANDS POLICEClaimant

BIRMINGHAM JUSTICESDefendant

PHIDEL GONZALES NATHANIEL POOL ANTHONY DOLAN LINTON MILLARD JERMAINE REID

InterestedParties

Before

Lord Justice Sedley

Mr Justice Poole

Mr J Beer (instructed by John Kilbey, Force Solicitor) for the Claimant

Mr R Howat (instructed by Glaisyers) for the Third Interested Party

Hearing dates : Wednesday, 8 MAY 2002

Date 30 May 2002

Lord Justice Sedley:

At

[1]the outset of the hearing of five applications for anti-social behaviour orders (ASBOs) on 1 October 2001, an unannounced submission was made to District Judge Cadbury that the proceedings were null and void because of fundamental irregularities of procedure. The District Judge reserved his decision and two days later upheld the submission. In consequence proceedings against five persons, set for seven days’ trial after a series of pre-trial reviews, were aborted.

[2]The material provisions for obtaining ASBOs are in the following subsections of section 1 of the Crime and Disorder Act 1998:

“(1) an application for an order under this section may be made by a relevant authority if it appears to the authority that the following conditions are fulfilled with respect to any person aged 10 or over, namely – (a) that the person has acted, since the commencement date, in an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself; and (b) that such an order is necessary to protect persons in the local government area in which the harassment, alarm or distress was caused or was likely to be caused from further anti-social acts by him; and in this section “relevant authority” means the council for the local government area or any chief officer of police any part of whose police area lies within that area. (2) a relevant authority shall not make such an application without consulting each other relevant authority. ……………………………………………………………….. (4) if, on such application, it is proved that the conditions mentioned in subsection (1) are fulfilled, the magistrates’ court may make an order under this section (an “anti-social behaviour order”) which prohibits the defendant from doing anything described in the order.”

[3]The Chief Constable of the West Midlands Police, who is a relevant authority for these purposes, on 24 July 2000 issued an internal memorandum authorising “all OCU [operational command unit] Commanders, their Operations and Crime Managers, Operational Departmental Heads and their Deputies to apply for Anti-Social Behaviour Orders… under sections (1) and (2) of the Crime and Disorder Act 1998 , and to exercise all ancillary powers in connection with those applications until such authority is terminated by me”.

[4]It was accepted by the District Judge, and is not contested by Mr Howat, who has appeared on this application for one of the interested parties, that the functions of the Chief Constable under subsections (1) and (2) are delegable. What we have to decide is to whom they are delegable. But it can be said at once that the memorandum is not a prescribed means of delegation, and that the particular delegations spelt out in the one we have quoted are not necessarily exhaustive of the Chief Constable’s powers. Whether they go wider depends upon the proper interpretation of the statute.

[5]The District Judge accepted the defence submission that the power to make an application under subsection (1) could not lawfully be delegated to an officer lower than the rank of superintendent, and that consultation under subsection (2) must be carried out by an officer of no lower rank. In the present group of cases the first of these had in fact happened: the application to the court had been made by Superintendent Ellis. But the second had not: such consultation as had occurred (and I will return to this) had been conducted by Sergeant Higgins.

[6]If, but only if, the District Judge was right so far, it will become necessary to decide whether the proceedings were in consequence void. At the conclusion of argument, however, we indicated to the parties that we did not need to hear argument on this question because we had concluded that the District Judge was in error in finding the procedural irregularity which he did. There remains, as I shall indicate, an outstanding question of fact as to Sergeant Higgins’ actual authority; but unless and until that question is decided against the Chief Constable the difficult argument about the importance of the statutory purpose and the relative gravity of the breach cannot arise.

[7]I therefore turn to the issue of delegation. Although the Chief Constable’s power to delegate his functions under section 1 of the Crime and Disorder Act 1998 is not contested it is important to see why he has this power, for to do so sheds light on the extent of the power.

[8]The reason why a power of delegation may be spelt out of legislation conferring functions on a public official in virtue of his or her office were classically described by Lord Greene MR in Carltona Ltd v. Commissioners of Works

[1943] 2 All ER 560

. A power to requisition property was given by the Defence Regulations to any “competent authority”, an expression which included the Commissioners of Works. By statute, the post of First Commissioner of Works was held by the Minister of Works. The Minister’s power had been exercised in the case before the court by an assistant secretary. Lord Greene considered that there was no substance in the argument that the decision was therefore not, as in law it had to be, the decision of The First Commissioner. “In the administration of government in this country the functions which are given to ministers…are functions so multifarious that no minister could ever attend to them. To take the example of the present case no doubt there have been thousands of requisitions in this country by individual ministries. It cannot be supposed that this regulation meant that, in each case, the minister in person should direct his mind to the matter. The duties imposed on ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department. Public business could not be carried on if that were not the case. Constitutionally, a decision of such an official is, of course, the decision of the minister. The minister is responsible. It is he who must answer before Parliament for anything that his officials have done under his authority, and, if for an important matter he selected an official of such junior standing that he could not be expected competently to perform the work, the minister would have to answer to Parliament.”

[9]Although the Carltona case is frequently cited as a source of the “alter ego” doctrine, it can be seen that Lord Greene’s reasoning is not predicated on this. It is predicated on the proposition that the departmental head is responsible for things done under his authority. The relevance of the alter ego doctrine is that Crown servants were at that time taken in law to hold their positions by grace and not by contract, so that the minister was first among equals, not an employer with servants or a principal with agents. His implied power to delegate functions depended, therefore, on two things: the conferment of a power in terms which implicitly permitted their delegation and the existence of persons to whom he could delegate them without parting with ultimate responsibility.

[10]A Chief Constable similarly is not the employer of the officers under his or her command but is legally answerable for them. The Carltona principle appears to apply readily in such a situation, with two well-established qualifications. One is that some functions are such that they cannot, consistently with the statutory purpose, be delegated at all: see R v. Chief Constable of Greater Manchester, ex parte Lainton (C.A. 28 March 2000, unreported), paragraph 28. The other is that delegation has to be to somebody suitable. As Carltona demonstrates, who is suitable is primarily for the office-holder to decide. Today, however, it is clear that an improper delegation will be a matter for the courts, at least where the discharge of a statutory office is in issue.

[11]Mr Beer, for the Chief Constable, has been hesitant to rely squarely on Carltona because of the decision of this court in Nelms v. Roe

[1970] 1 WLR 4

. Here the information against a driver had been signed on behalf of the Metropolitan Police Commissioner, in whom the statutory power vested, by a police inspector on the authority of his superintendent. There had been no express delegation of power to either. The Divisional Court held that there was an implied delegation and sub-delegation of authority, preferring this route to the Carltona route which had also been argued. Lord Parker CJ said:

“In the present case Mr Farquharson urged that exactly the same principles ought to be applied to the Commissioner of Metropolitan Police as apply in the case of Ministers. It has always been a principle in this country that, a Minister being responsible to Parliament for the acts of officers of his department and having to act through others, an act done by the proper officer of his department is the act of the Minister; the proper responsible officials are the alter ago of the minister. And accordingly no question of delegation arises. That principle is very well known; the case which is always quoted in connection with that is Carltona v. Works Commissioners [1943] 2 All ER 560… I feel grave difficulties in extending that well-known principle to a case such as this, to the Commissioner of the Metropolitan Police. It is not, I think sufficient to say that it is a principle which it applicable when ever it is difficult or impractical for a person to act for himself, in other words when ever he has to act through others the principle applies. I see grave difficulties in going that far, and, as it seems to me, superintendent Williams was, by reason of his position, not the alter ego of the Commissioner but merely had implied delegated authority, by reason of his position, from the Commissioner.”

Lord Parker went on to deal with and to reject the consequent argument, that the further delegation from superintendent to inspector was contrary to legal principle, holding that the commissioner had impliedly delegated not only the power but a power to delegate it.

[12]With all possible respect, I do not consider that we are required to adopt this reasoning. As has been seen, the Carltona principle, which binds this court, does not depend upon on the peculiar status of civil servants as the alter ego of their minister. It is sufficiently ample to allow a Chief Constable to discharge functions of the kind we are concerned with through an officer for whom he or she is answerable. To fall back instead on implied delegation and sub-delegation is capable of appearing to be a ratification by the court of an accomplished fact and to beg the question of power to delegate.

[13]There are other functions imposed upon individuals in virtue of their office which may not be delegable at all: for example the function of a health and safety inspector under section 38 of the Health and Safety at Work Act 1974. In R (WH Smith Ltd) v. Croydon Justices DC, 6 November 2000, unreported, Elias J said at paragraph 15:

“…where the power to take certain steps is given to an officer appointed pursuant to statute then it is only going to be in a very exceptional case that the courts will imply a power to delegate in the absence of any express provision.”

He cited in support, as other courts have done, this passage from De Smith, Woolf and Jowell, Judicial Review of Administrative Action (5 th edition) p66:

“Where the exercise of a discretionary power is entrusted to a named officer – e.g. a chief officer of police, a medical officer of health or an inspector – another officer cannot exercise his powers in his stead unless express statutory provision has been made for the appointment of a deputy or unless in the circumstances the administrative convenience of allowing a deputy or other subordinate to act as an authorised agent very clearly outweighs the desirability of maintaining the principle that the officer designated by statute should act personally.”

The Carltona decision is not cited in this section of that work. It is separately treated (at page 369 ff) in an exposition of the alter ego principle.

[14]For my part I can see good reason to differentiate, where Parliament has conferred powers on the holder of a named office, between those offices which are the apex of an organisation itself composed of office-holders or otherwise hierarchically structured, and those offices designated by Parliament because of the personal qualifications of the individual holder. Thus, of the three examples given by De Smith, Woolf and Jowell, one can readily infer that when Parliament confers functions on a chief officer of police, all but the most important are likely to be delegable; whereas the likelihood is that powers conferred on a medical officer of health or on a statutory inspector, each professionally qualified as an individual, are to be exercised by the office-holder alone. This, with respect, seems to me a better legal test than overriding administrative convenience, although it may produce similar outcomes..

[15]Such being the basis on which the Chief Constable is able lawfully to delegate, is his exercise of the power constricted to the extent held by District

Judge Cadbury? He concluded:

“Having considered the principle of delegation and the practicalities involved I am firmly of the view that the Commander of the particular OCU where the anti-social behaviour order is sought is the proper and appropriate agent for the Chief Constable in relation to section 1 Crime and Disorder Act, or his operations and crime managers, or operational department head of at least the rank of superintendent.”

To this Mr Howat is prepared, in deference to the inclusion of “deputies” in the memorandum, to add officers acting up in the rank of superintendent, but no more.

[16]No doubt an officer of the rank or status described in the memorandum is a proper and appropriate agent; but to hold that such an officer is the proper and appropriate agent is not to interpret but to legislate. The question for a court is not how it considers that the Chief Constable should be exercising his power of delegation; it is whether the Chief Constable has exercised it within permissible limits. For my part I can see nothing in the legislation which enables the court to set a limit of such specificity as that set by the District Judge. Mr Howat is of course right when he points out that both consulting about ASBOs and deciding whether to apply for them, when they may be directed at any person from the age of 10 upwards, is a problematical and sensitive task. But it is for the Chief Constable to decide who is best suited to do it on his behalf; and it is not for the court to second-guess him unless his choice is irrational or otherwise beyond his powers.

[17]The District

Judge went on to hold:

“By reference to the principles of delegation, the practicalities involved (including the number of anti-social behaviour order applications) and the clear wording of section 1 Crime and Disorder Act, I conclude that it must be a person of the same rank who carries out the duties under section 1(2) as section 1(1) and it must be the commander of the OCU or at the very least a person no lower than the rank of superintendent.”

The last part of this holding follows from the District Judge’s previous conclusion. Its nub, however, is that the functions of consultation and application must be carried out at the same level of the police hierarchy.

[18]Here too, I regret that I can see no foundation for such a decision. It is not and could not be contended that the same individual must do both things; and there are many reasons – resources, availability, skills, contacts, experience, knowledge and so forth – which may result in the choice of one officer rather than another for one of the statutory tasks. Once it is clear that the chief constable is not constrained as to the rank to which he may delegate either task, there is no logical reason why they cannot be properly carried out at different levels.

[19]Subject to the final problem to which I now turn, it was therefore open to the Chief Constable to delegate or devolve to any officer or officers judged suitable by him the respective functions set out in subsections (1) and (2). No question of sub-delegation from the Superintendent to the Sergeant arose, and the District Judge’s ancillary finding to the contrary was not justified. The residual problem, however, is this: the District

Judge held:

“... whether there was any consultation at all is open to doubt but I deal with this issue assuming that there was consultation and that it was carried out by Sergeant Higgins on behalf of the ‘relevant authority’.”

[20]So far as counsel have been able to ascertain, Superintendent Ellis, who gave evidence to the District Judge, was not able to vouch for Sergeant Higgins’ authorisation to consult on behalf of the Chief Constable under subsection (2). Sergeant Higgins was not available to give evidence.

[21]The argument therefore remains open, notwithstanding the conclusions reached above, that if no consultation has taken place, or if it has been conducted by somebody who lacks due authority on behalf of the Chief Constable, the resultant process is (as Mr Howat would say) void or (as Mr Beer would say) challengeable on grounds of unfairness. It is thus conceivable that further fact findings may bring back to life the final issue which, in the light of our conclusions, we have not had to address in this Court.

[22]On this application for judicial review, however, the single appropriate order is that the decision of the District Judge to dismiss the five applications be quashed and that he be directed to continue the hearing.

[23]Two further remarks are perhaps in place. One is that, as Mr Beer has indicated, the lapse of time which has now occurred since the applications were made may call for a fresh decision, in the light of the current situation, as to whether each of the cases should be proceeded with. The other is this: while consultation is a prerequisite of an application, the judgment which matters is that of the Magistrates’ Court on the evidence before it. We have been told that early applications under this legislation became bogged down in protracted hearings about the consultation process and the decision to apply to the Court. That is clearly not what Parliament intends. On the other hand, the present case demonstrates the legitimacy in certain instances of questioning the anterior procedure in order to establish that the application has been properly brought before the Court. Lawyers have a responsibility to observe this distinction with care, and courts need to ensure that they do so. Mr

Justice Poole:

[24]I agree.