Murphy v The Ethical Standards Officer of the Standards Board for England [2004] EWHC 2377 (Admin)

Case No CO/2947/2004[2004] EWHC 2377 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday, 28 October 2004
Before
THE HONOURABLE MR JUSTICE KEITH
Between
Brendan MurphyAppellantThe Ethical Standards Officer of the Standards Board for EnglandRespondent
(Transcript of the Handed Down Judgment ofSmith Bernal WordWave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
The Appellant in person for in personMs Katherine Olley (instructed by the Standards Board for England) for the Respondent
Judgment

Introduction

[1]The appellant, Cllr. Brendan Murphy, is a member of Macclesfield Borough Council (“the Council”). He was found by a case tribunal to have acted in breach of the Council’s Code of Conduct. He was suspended from acting as a member of the Council for a period of one year. He now appeals against both the findings of breach and the length of his suspension. Cllr. Murphy represented himself on the hearing of the appeal, and I wish to pay tribute to the moderation and courtesy with which he presented his case. All references in this judgment to sections of an Act are to sections of the Local Government Act 2000, unless otherwise stated.

The facts

[2]The facts are not in dispute. A complaint was received by the Local Government Ombudsman that Cllr. Murphy had wrongly participated in the proceedings of the Council’s Planning Committee when it refused planning permission for a large scale development. It was alleged that Cllr. Murphy had publicly declared his opposition to the proposed development previously. Indeed, he was alleged to have been in the vanguard of putting together alternative proposals for the development of the site in his capacity as Chairman of the Council’s Amenities and Recreation Committee. It was alleged that by participating in the proceedings he had improperly influenced the Committee’s decision. Having investigated the complaint, the Ombudsman issued a report on 22 July 2002. The report contained, in paras. 32 and 33, the following conclusions:
“Whatever Councillor [Murphy] may say about not having formed a final view on the merits of the application, I have no doubt that he was forcefully putting forward alternative proposals and must have been seen as being opposed to the [company’s] proposals. I am persuaded that Councillor [Murphy] entered the planning meeting with his mind already made up although I accept that he put forward sound planning reasons for the rejection of the applications at the meeting rather than seeking to promote his alternative plans. There is no evidence that Councillor [Murphy] had a pecuniary interest in his ……. proposals, but I conclude that the public, knowing all the facts, would be likely to consider that he had a non pecuniary interest which he should have declared ….. I therefore consider that Councillor [Murphy] should have declared an interest and not taken part in the Planning Committee’s proceedings ….. ”
The Ombudsman considered that the application for planning permission would probably have been refused anyway even if Cllr. Murphy had not participated in the proceedings. So although she found that maladministration had occurred, she could not conclude that any injustice had resulted. No other councillor was named in the report.[3]Cllr. Murphy’s response was to submit to the Council’s Chief Executive a motion for consideration at the next meeting of the Council on 29 August 2002. The motion read:
“This Council regrets the conclusion reached by the Ombudsman and requests the Standards Committee to consider the ethical and public policy issues arising from this matter.”
The Mayor ruled the motion out of order, but since the Council’s Monitoring Officer was required, by sections 5(2) and 5(3)(b) of the Local Government and Housing Act 1989, to prepare a report to the Council on the findings of the Ombudsman and send it to every member of the Council, the Monitoring Officer’s report was placed on the agenda for consideration at the Council’s meeting on 29 August 2002. Cllr. Murphy was informed of that by the Chief Executive in an e-mail on 12 August 2002. The e-mail continued:
“I would further advise that it is the view of the Monitoring Officer and myself, that, as you are specifically named in the report of the Ombudsman, you have a personal and prejudicialinterest in the matter. Consequentionally in order to comply with your obligations under the ‘Code of Conduct For Members’ you are required to declare this at Council and withdraw from the meeting for this Item.”
This advice was repeated to Cllr. Murphy on 28 or 29 August 2002 by the Council’s Deputy Monitoring Officer.[4]Despite this advice, Cllr. Murphy did not withdraw from the meeting of the Council on 29 August 2002 when it considered the Monitoring Officer’s report on the Ombudsman’s report. Indeed, he spoke on the issue although he abstained from voting on the proposal (which was carried) that the Monitoring Officer’s report be noted. The report notified members that the Ombudsman’s report would be considered by the Council’s Standards Committee. I shall return to what was said at the meeting in greater detail in due course.[5]Cllr. Murphy’s presence and conduct at the meeting on 29 August 2002 when the Monitoring Officer’s report was considered was drawn to the attention of the Standards Board for England (“the Board”) by another councillor who was present. He wrote to the Board on 2 September 2002. It was alleged that Cllr. Murphy had failed to comply with the Council’s Code of Conduct in that, although he had had a “personal and prejudicial interest” in the issue on the agenda, he had failed to declare the existence or nature of that interest, he had failed to withdraw from the meeting, and by speaking on the issue he had improperly sought to influence the Council’s decision on the issue.[6]That allegation had been made to the Board pursuant to section 58(1). Pursuant to section 58(2), the Board referred the case to one of its ethical standards officers. He concluded that Cllr. Murphy had failed to comply with the Council’s Code of Conduct. Pursuant to section 59(4), he decided that the matters which he had investigated should be referred to the President of the Adjudication Panel for England (“the Panel”) for adjudication by a case tribunal falling within section 76(1). The hearing before the Case Tribunal took place on 17 May 2004. As I have said, the Case Tribunal found that Cllr. Murphy had failed to comply with the Council’s Code of Conduct, and he was suspended from acting as a member of the Council for a period of one year. His current appeal to the High Court is pursuant to section 79(15).

The Council’s Code of Conduct

[7]The Council’s Code of Conduct for Members (“the Code”) was adopted by the Council under section 51(1). Para. 5.1.3.1 of the Code relates to personal interests of Members. It provides (so far as is material):
“A Member must regard himself/herself as having a personal interest in any matter ….. if a decision upon it might reasonably be regarded as affecting to a greater extent than other Council Tax payers, ratepayers or inhabitants of the Authority’s area, the well-being or financial position of himself/herself …..”
The obligation of a member to disclose any personal interest is contained in para. 5.1.3.3. It provides:
“A Member with a personal interest in a matter who attends a meeting of the Authority at which the matter is considered must disclose to that meeting the existence and nature of that interest at the commencement of that consideration or when the interest becomes apparent.”
What constitutes a prejudicial interest is addressed in para. 5.1.3.5. It provides (so far as is material):
“….. a Member with a personal interest in a matter also has a prejudicial interest in that matter if the interest is one which a member of the public with knowledge of the relevant facts would reasonably regard as so significant that it is likely to prejudice the Member’s judgement of the public interest.”
The obligation of a member not to participate in decisions in which he has a prejudicial interest is covered by para. 5.1.3.8, which provides (so far as is material):
“….. a Member with a prejudicial interest in any matter must:- (a) withdraw from the room or chamber where a meeting is being held whenever it becomes apparent that the matter is being considered at that meeting, ….. and (c) not seek improperly to influence a decision about that matter.”
The paragraphs which the Case Tribunal found Cllr. Murphy to have failed to comply with were paras. 5.1.3.3, 5.1.3.8(a) and 5.1.3.8(c). (a) withdraw from the room or chamber where a meeting is being held whenever it becomes apparent that the matter is being considered at that meeting, ….. and (c) not seek improperly to influence a decision about that matter.”[8]Each of these provisions of the Code are taken from the model code issued by the Secretary of State. The Board has issued a publication entitled “The Case Review” which gives advice and guidance on how the provisions of the model code should be interpreted. It will be necessary to refer to a particular passage in the Case Review later in this judgment.

The Council’s meeting on 29 August 2002

[9]In its decision, the Case Tribunal set out its findings as to what had been said at the Council’s meeting on 29 August 2002. Paras. 3.7.11-3.7.18 of the decision are the relevant ones. They read:
“3.7.11 Immediately prior to the discussion of the Local Government Ombudsman’s Report, at the meeting, Mr Parr, as Chief Executive, addressed the Council. He explained that he had been contacted by a number of Members who sought clarification on their position under the Member’s Code of Conduct, relating to that particular agenda item. Mr Parr explained that he had provided advice to a number of Members and it would be inappropriate to report, publicly, the advice that he had given to individuals. However, he did comment in general terms on the matter. 3.7.12 A copy of the notes used by the Chief Executive in his address, states- ‘HOWEVER To assist Members in their consideration of this matter it may be useful to provide a general statement at this point in the meeting – avoid doubt as mtg. progresses. (1) It is a matter for each member to satisfy themselves they are not in breach of the Members Code. (2) They should seek such advice, as they consider appropriate to help inform their judgement on their position. (3) There is an argument that a member named in an Ombudsman’s Report has a personal & prejudicial interest in the matter in which they are named AND should declare this & withdraw. However There are also considerations of Natural Justice & Human Rights where a member is named. It is for the member to balance these & decide on their personal position. It is the individual’s decision. The Code also places a duty on all members ‘if they believe another member has failed to comply with the Code’ ….. ‘as soon as reasonably practicable’ to make a written allegation to that effect to the S.B. for England. Members also need to be aware of Section 31A(5) L.G.A. 74 which states as follows:-’ ….. (at this point the section concerned was read out). He continued – ‘I have taken the advice of the M.O. & the D.M.O. on the interpretation of this section & share their opinion that the section prohibits - voting by any member named AND – the ability of a member named to propose/second a motion/amendment on the matter. It does not prohibit the named member from speaking on the matter.’ 3.7.13 Councillor Murphy responded to the Chief Executive’s address. Notes made at the meeting by the committee’s administrator, recorded his comments, as follows – ‘Councillor Murphy – “Thanks to the Chief Executive. I seek clarification. Section 31 refers to adverse reports. It refers to Eastleigh Borough Council. It says there had to be maladministration and injustice. There was no injustice so I can’t see Section 31(A) applies. When I looked at the Code of Conduct re. Prejudicial interest – if you don’t have a personal interest but do have a prejudicial interest it is not covered by the Code. I didn’t have a personal interest so therefore couldn’t have a prejudicial. 31(A) only applies to adverse reports and this was not adverse”.’ 3.7.14 The Chief Executive responded to Councillor Murphy’s observation by stating he was satisfied with the advice that he had given to the members of the Council, in his earlier address. 3.7.15 The meeting moved on to consider the Monitoring Officer’s Report under Section 5 of the Local Government and Housing Act 1989. 3.7.16 Notes recorded at the meeting show that the Mayor asked – “Councillor Murphy, in speaking are you satisfied you are not in breach of the Code of Conduct?”
The notes record that Councillor Murphy responded – “I am satisfied I am not in breach of the Code of Conduct but resent being asked the question in public as other Members have interests, having seen the Ombudsman’s report in advance.” 3.7.17 In the same notes it was recorded that Councillor Murphy continued by saying, “What the report (the Monitoring Officer’s report) does not say is that this Council rejects the report of the Ombudsman. I am not suggesting this. On a personal level the Ombudsman recognises that I had not made up my mind how I would vote. I could have sought Judicial Review but at a cost to myself. The Ombudsman must give reasons and there are none given in the report. It was only an alternative scheme. I could have changed my mind. I did say that I wanted to hear what the Chief Planning Officer had to say before making up my mind. The Ombudsman says there is no injustice. We know there was a meeting of Councillors before, called by the Leader.” 3.7.18 It was proposed and seconded in the meeting that the report should be noted. The motion was carried in a vote and it was recorded in the notes of the meeting that Councillor Murphy abstained from voting.” Section 31A(5) of the Local Government Act 1974 to which the Case Tribunal referred in para. 3.7.12 prevents a Councillor from voting on any question relating to an Ombudsman’s Report in which he has been named and criticised.[10]There can be no doubt that Cllr. Murphy received highly conflicting advice. On 12 August 2002 he had been told by Mr Parr that he had to withdraw from the meeting. However, at the meeting on 29 August 2002 Mr Parr merely said that there was “an argument” that a member in Cllr. Murphy’s position should withdraw from the meeting. Moreover, Mr Parr’s observation that there were considerations of natural justice and human rights to be considered when a member is named in an Ombudsman’s report could only have been a reference to the need for the member to have an appropriate forum in which to say what he wanted to say about the Ombudsman’s report. So when Mr Parr went on to say that it was for the member to balance these considerations and decide on his or her personal position, it was open to a member to think that there were circumstances in which that forum might be the meeting of the Council at which the report was to be discussed. Furthermore, the reference to section 31A(5) of the Local Government Act 1974 could well have led Cllr. Murphy to believe that, despite para. 5.1.3.8 of the Code, he was entitled to remain at the meeting and participate in the debate, provided that he did not vote on any resolution relating to the Ombudsman’s report.

The decision of the Case Tribunal

[11]The conclusions of the Case Tribunal on whether there had been a failure by Cllr. Murphy to comply with the Code are to be found in para. 4.3 of its decision. It reads (so far as is material):
“4.3.1 The Case Tribunal has found that Councillor Murphy had a personal interest in the matters before the Council on the 29th August 2002. This is because his well being was affected more than that of others as he was named exclusively in the Ombudsman’s report. 4.3.2 ….. the Case Tribunal found that the fact of being named in the Ombudsman Report was a specific concern to Councillor Murphy, going beyond the concern that he might have felt if the Report had found maladministration without naming him. This brings the matter within the definition of a personal interest in Councillor Murphy’s case. By being exclusively named in the Ombudsman’s Report Councillor Murphy’s well being was affected more than others and he did have a personal interest in the issue. 4.3.3 The Case Tribunal, in reaching this decision, has considered carefully Councillor Murphy’s oral submissions regarding the term, ‘well-being’. The Case Tribunal has applied its every day meaning, that being a state of being well, healthy or contented, indeed anything that could affect the quality of a persons life. 4.3.4 The Case Tribunal has also found that as the Ombudsman’s Report had concluded that as a direct result of Councillor Murphy’s behaviour, maladministration had taken place, even though no injustice had occurred, Councillor Murphy’s interest would have been likely to prejudice his judgement of the public interest and therefore he also had a prejudicial interest in the matter before the Council on the 29th August 2002. 4.3.5 Further the Case Tribunal has found that by remaining and speaking at the Council meeting held on the 29th August 2002, Councillor Murphy sought to improperly influence a decision about the matter.”

The grounds of the appeal

[12]Since Cllr. Murphy is not a lawyer, his arguments have understandably not been quite as crisp as they might have been if he had been legally represented. But broadly speaking, he has four complaints:(i) The Case Tribunal erred in its approach to the phrase “well-being” in para. 5.1.3.1 of the Code.(ii) The Case Tribunal’s conclusion that Cllr. Murphy had a personal and prejudicial interest as prescribed by the Code was wrong.(iii) The findings of guilt infringe his human rights.(iv) The sanction of one year’s suspension from acting as a member of the Council was disproportionate to the breaches of the Code alleged against him. I shall deal with each of these grounds in turn.

(i) The phrase “well-being”

[13]Cllr. Murphy argued that the aim of para. 5.1.3.1 of the Code was to stop Councillors misusing their position in order to promote an interest which was clear, substantial and significant. To hold otherwise, Cllr. Murphy said, would result in a councillor being treated as having a personal interest in anything in which he might get pleasure or might cause him displeasure, provided that the pleasure or displeasure which the councillor would get would be greater than the pleasure or displeasure which other local people would get.[14]In my opinion, it would be unwise to try to encapsulate the meaning of the term “well-being” into a single phrase or sentence. The scope of the term “well-being” is to be defined by the context in which it is to be applied. This is well illustrated by what the Case Review says about it at p. 79:
“The use of the term ‘wellbeing’ is a good example of the very broad drafting of [the relevant] paragraph …..‘Wellbeing’ can be described as a condition of contentedness, healthiness, and happiness. Anything that could be said to affect a person’s quality of life, either positively or negatively, is likely to affect their wellbeing. It is not restricted to matters affecting a person’s financial position. The range of personal interests is, accordingly, likely to be very broad.”
I agree with that. Someone can have a sense of well-being without having benefited in a material or financial way. Otherwise, there would have been no need to include the words “or financial position” in para. 5.1.3.1 of the Code. The true aim of para. 5.1.3.1 of the Code was simply to prevent councillors from misusing their position for their own personal interests.[15]The context of the present case is that of a councillor who was criticised in a report prepared by the Ombudsman. His reputation is tarnished. It would be entirely natural for the councillor to want to salvage his reputation by getting his Council to express dissatisfaction with the report. The councillor would be likely to have had a strong sense of satisfaction about the restoration of his reputation locally if the Council had expressed dissatisfaction with it. In that sense, it is likely that the councillor’s sense of well-being would have been enhanced. That, at least, is what an informed outsider would think, which is the standpoint which para. 5.1.3.1 of the Code contemplates (“might reasonably be regarded as”).[16]Cllr. Murphy told me that he was not unduly troubled by the Ombudsman’s Report. In local politics, you become pretty thick-skinned. The criticism of him in the Report was water off a duck’s back. Bearing in mind that the recommendation in the Monitoring Officer’s report was simply that the Ombudsman’s report be noted, and that the only issue which the Council’s Standards Committee was to address was “whether or not further advice needs to be given to Councillors to prevent a recurrence of this situation”, Cllr. Murphy had nothing to worry about. His well-being was not going to be affected by the Ombudsman’s report in any way. However, that would not have been a relevant consideration for the Case Tribunal. The question for the Case Tribunal was whether a decision on the topic might reasonably be regarded as affecting Cllr. Murphy’s well-being. On that issue, the Case Tribunal’s decision is entirely understandable. (ii). Personal and prejudicial interest[17]Cllr. Murphy pointed out that there are three elements in the question which the Case Tribunal had to ask under para. 5.1.3.1 of the Code when it considered whether he had to have regarded himself as having a personal interest in the Ombudsman’s report. Would the Council’s decision on the report(1) be reasonably regarded as(2) affecting his well-being(3) more than it affected other local people? Cllr. Murphy also pointed out that there were two elements in the question which the Case Tribunal had to ask under para. 5.1.3.5 of the Code when it considered whether he had a prejudicial interest in the Ombudsman’s report. Would a member of the public (1) with knowledge of the relevant facts (2) reasonably regard his interest in the report as so significant that it was likely to prejudice his judgment of the public interest? Cllr. Murphy contended that the Case Tribunal failed to consider any of these five elements, but that even if it did, its ultimate conclusion that he had a personal and prejudicial interest was flawed.[18]In my opinion, the Case Tribunal considered all five elements in paras. 5.1.3.1 and 5.1.3.5 of the Code. Even a cursory reading of paras. 4.3.1. and 4.3.2 of the Case Tribunal’s decision shows that the Case Tribunal found that(a) Cllr. Murphy’s well-being was affected by the criticism of him in the Ombudsman’s report in which he alone had been named and criticised, and(b) he was affected more than other local people by that criticism because it was aimed at him. And para. 4.3.4 of the Case Tribunal’s decision shows that the Case Tribunal found that Cllr. Murphy’s interest in the Ombudsman’s report was likely to prejudice his judgment of the public interest. It is true that the Case Tribunal did not say that it looked at the question of his interest from the standpoint of the member of the public with knowledge of the relevant facts for the purpose of determining whether Cllr. Murphy had a personal interest in the Ombudsman’s report and whether he had a prejudicial interest in it. But the Case Tribunal knew the relevant facts, and was the embodiment of the informed member of the public. If the Case Tribunal concluded that he had a personal and prejudicial interest in the Ombudsman’s report, it would inevitably have found that that was what an informed member of the public would have thought.[19]Were these findings ones which it was reasonably open to the Case Tribunal to reach? Apart from arguing in this context as well for his interpretation of the words “well-being”, Cllr. Murphy took two points. First, he contended that his interest in the Ombudsman’s report was no greater than other Councillors who had either supported or opposed the development. I disagree. He was named and criticised; they were not. He had put together an alternative proposal for the development of the site; they had not. And even if his interest in the Ombudsman’s report was no greater than theirs, it remained greater than that of other local people. Secondly, Cllr. Murphy contended that the relevant facts which the informed member of the public should be assumed to have had were the facts underlying the Ombudsman’s report. Again, I disagree. The relevant facts were those which could readily be regarded as so significant as to be likely to affect Cllr. Murphy’s judgment of what the Council’s response to the Ombudsman’s report should be. In these circumstances, the relevant facts were what the Ombudsman’s report revealed. (iii). The infringement of Cllr. Murphy’s human rights[20]Cllr. Murphy originally alleged a breach of five articles of the European Convention on Human Rights: Arts. 6, 8, 9, 10 and 14. Arts. 9 and 14 are no longer relied upon. Nor does Cllr. Murphy allege that the delay between the complaint to the Board (2 September 2002) and the reference of the complaint by the Ethical Standards Officer to the Panel (4 February 2004) resulted in him being denied a fair hearing by the Case Tribunal: Cllr. Murphy accepts that there was no issue of disputed fact to be decided by the Case Tribunal, let alone one which depended on the recollection of witnesses.[21]Art. 6. Two witnesses were called on behalf of the Ethical Standards Officer at the hearing before the Case Tribunal: the Council’s Chief Executive and its Deputy Monitoring Officer. They both gave evidence on oath. Cllr. Murphy complained that he was not permitted to give evidence on oath. There is nothing in this complaint. The two witnesses called on behalf of the Ethical Standards Officer were called on his behalf because Cllr. Murphy had not confirmed that he did not dispute the primary facts set out in para. 2.1 of the Appendix to the Listing Direction – though it transpired at the hearing before the Case Tribunal that Cllr. Murphy did not dispute those primary facts. What he disputed was the conclusion to be drawn from those primary facts, namely that he had a personal and prejudicial interest in the Ombudsman’s report. As for the claim that he was not permitted to give evidence on oath, he himself admits that he did not ask to give evidence. He says that he was expecting to be asked whether he wanted to give evidence, but when he was not asked that, he just let the matter go. In any event, he did not need to give evidence since he was not disputing the primary facts. All he needed to do was to make submissions, and that is what he did.[22]Cllr. Murphy also complained that he was not permitted to call witnesses to give evidence on his behalf. A number of people, he said, had agreed to give evidence on his behalf, subject to their availability on the day of the hearing. They included two former mayors of Macclesfield and three councillors (who would have given their opinion as to whether Cllr. Murphy had a personal and prejudicial interest in the Ombudsman’s report), five members of the public (who would have given their opinion as to whether they would have regarded his interest in the Ombudsman’s report as so significant that it was likely to prejudice his judgment of the public interest) and someone with professional expertise on gauging the views of members of the public. Again, there is nothing in this complaint. On 4 and 12 March 2004, Cllr. Murphy had notified the Panel of his wish to call these witnesses to give evidence. That was brought to the attention of the President of the Panel. He wrote to Cllr. Murphy on 20 April 2004 in these terms:
“So far as I could see from your e-mail of 4 March the ….. witnesses you were seeking to call were not likely to be in a position to give factual evidence relevant to ….. whether or not there was a failure to follow the provisions of the Code of Conduct. You will need to make an application direct to the Case Tribunal if you wish to call such evidence.”
No such application was made to the Case Tribunal. Cllr. Murphy said that he was not prepared to bring the witnesses to the hearing on the off-chance that they might be permitted to give evidence. Since they were not there, he did not request their evidence be heard. But (a) he could have got statements from them and submitted the statements as their evidence, or (b) he could have requested the Case Tribunal to hear the evidence and then ask for an adjournment if the Case Tribunal decided that their evidence was relevant to any issue which it had to decide. He took neither course. In any event, I doubt very much whether the evidence which he wished to call would have helped. Whether Cllr. Murphy had a personal and prejudicial interest in the Ombudsman’s report was a judgment which the Case Tribunal had to make on the primary facts. The Case Tribunal would not have been helped by the views of others as to what that judgment should be.[23]Finally, Cllr. Murphy complained about the lack of impartiality of the membership of the Case Tribunal. The Chairman of the Case Tribunal was a solicitor with a London Borough. The other two members were a retired local government officer and a retired civil servant. Cllr. Murphy disavowed any suggestion that the members of the Case Tribunal were anything other than persons of undoubted integrity. But he argued that their background and profile were such that they were likely to share the Ethical Standards Officer’s interpretation of the Code and his belief that Cllr. Murphy had had a personal and prejudicial interest in the Ombudsman’s report. I disagree. This is a specialist tribunal, and its members are appointed by the Lord Chancellor. Their knowledge of the workings of local government particularly qualifies them to make judgments of the kind called for in Cllr. Murphy’s case. It did not mean that they were likely to approach that task with an unconscious tendency to adopt the views which the Ethical Standards Officer was advancing.[24]These arguments could equally well have been deployed as allegations of procedural irregularity, rather than as components of an argument that Cllr. Murphy had been denied a fair hearing as required by Art. 6. As allegations of procedural irregularity, they fail as well. A number of other allegations of infringement of “due process”, or procedural irregularity or infringement of Art. 6 were made in Cllr. Murphy’s skeleton argument, but these were not pursued before me, and there is no need for me to mention them further.[25]Art. 8. Cllr. Murphy claimed that his right to respect for his private life was infringed because the Case Tribunal sought “to gauge [his] feelings as an indicator of innocence or guilt”. What he meant by that was that the determination of whether he had a personal interest in the Ombudsman’s report was dependent on whether the Council’s decision on the Ombudsman’s report would affect his well-being. And to determine that, it was necessary to explore his private feelings about the Ombudsman’s report. I disagree. His private feelings were not relevant. What was relevant was whether a decision on the Ombudsman’s report might reasonably be regarded as affecting his well-being. That is another matter entirely. That could not have amounted to prying into his private life in such a way as to engage Art. 8.[26]Art. 10. Cllr. Murphy’s argument is that if the Code prevented him from speaking about the Ombudsman’s report at the meeting of the Council on 29 August 2002, his right to freedom of expression was infringed. I disagree. The exercise of one’s right to freedom of expression is expressly subject to such conditions as are necessary in a democratic society and for the protection of the rights of others. There is an obvious need to protect the reputation of local authorities as one of the democratic elements of society. In that connection, there is a need to maintain public trust and confidence in the decision-making process of local authorities. The provisions of the Code which are engaged in the present case are plainly intended to ensure that that trust and confidence is not misplaced. They must, of course, go no further than is necessary for the achievement of that purpose, but it cannot seriously be gainsaid that the decision-making process of local authorities, and public confidence in it, would be substantially undermined if councillors who have an interest in the outcome of the process could remain at a meeting at which the topic in which they have an interest is to be discussed and could influence the Council’s decision on the topic by speaking at the meeting on it.[27]I can see how a possible infringement of Art. 10 might arise if what amounts to an interest of such a kind as to prevent a councillor from speaking on the topic is defined too widely. But I do not think that the definition of a councillor’s personal or prejudicial interest is drawn too widely in the Code. In any event, it is important to remember that Cllr. Murphy was only prevented from talking about the Ombudsman’s report at a meeting of the Council. There was nothing to prevent him from talking about it on any other occasion, or from circulating his views on the Ombudsman’s report to his constituents and to the other Members of the Council. (iv). The sanction[28]Cllr. Murphy argued that the sanction of a suspension for one year from acting as a member of the Council is disproportionate to the breaches of the Code found against him, “out of keeping with the de facto tariff”, and “unfairly denies [his] constituents their right to proper democratic representation”.[29]The last point can be disposed of quickly. Section 79(4) gives the Case Tribunal the power to suspend a councillor who has failed to comply with his Council’s Code of Conduct. The effect of suspension is, I assume, to prevent a councillor from participating in the affairs of the Council or acting as a councillor for the period of his suspension. Parliament must therefore have concluded that the partial and temporary disenfranchisement of the councillor’s constituents in his ward was the necessary price to pay for the need to maintain public trust and confidence in the local democratic process. Thinking on these lines appears in a slightly different context in the judgment of Simon Brown LJ (as he then was) in R (Richardson) v North Yorkshire County Council [2004] 1 WLR 1920 at [72].[30]The present case is an unusual one. The usual case in which a councillor acts in breach of the model code by virtue of a personal and prejudicial interest which he has in a topic under discussion is when a councillor participates in a planning decision in which he has an interest. Normally that interest will not be known, and the seriousness of the case will be that the councillor concealed his interest. This case is completely different. Everyone at the meeting of the Council on 29 August 2002 knew of Cllr. Murphy’s interest in the Ombudsman’s report. It must have been a hot topic in Macclesfield. The critical question was the technical one whether the nature of his interest in the Ombudsman’s report amounted to a personal and prejudicial interest. There is no reflection of that important consideration in para. 5.1 of the Case Tribunal’s decision, in which the Case Tribunal explained the reasons why it thought that Cllr. Murphy’s suspension had to be for a year.[31]The Case Tribunal correctly noted the unequivocal advice that Cllr. Murphy had received from the Chief Executive and the Deputy Monitoring Officer that he would be obliged to withdraw from the meeting when the Ombudsman’s report was to be discussed, but it also noted an important mitigating feature. In paras. 5.1.4 and 5.1.5, it said:
“The Case Tribunal however does have some sympathy with Cllr. Murphy’s position, that a person who is specifically and exclusively named in a report to be considered at a council meeting, should also have the right to make representations on their own behalf. This view was also expressed by Mr Abrahams of the Legal Department of the Standards Board in his conversation with Mr Dudfield, the Deputy Monitoring Officer. Cllr. Murphy was not given any advice on how such representations could be made without breaching the Code of Conduct even though officers had been given some advice about this. Indeed the information given to all Members at the start of the council meeting on the 29th August, as to their rights, may have been confusing to Cllr. Murphy.”
I agree with these observations for the reasons given in para. 10 above, save that, if anything, they are an understatement of the position.[32]I was helpfully provided by Ms Katherine Olley for the Ethical Standards Officer with a sheaf of decisions of the Case Tribunal to see if there was a “tariff” for cases of this kind. The statutory regime is too recent for a clear practice to have emerged, and in this area the cases are too fact-sensitive for them to be any real guide for this unusual case. I am extremely hesitant to interfere with the sanction which a specialised tribunal thinks appropriate, but I have concluded that the Case Tribunal could not have given sufficient weight to the unusual feature of this case, namely that Cllr. Murphy’s interest in the Ombudsman’s report was known to everyone, or to the conflicting and confusing advice he received. These facts, coupled with the mitigating features which the Case Tribunal expressly recognised (in particular, his long public service and the evidence that no-one had called Cllr. Murphy’s integrity into question) leads me to conclude that, although this was a case for suspension, Cllr. Murphy should only have been suspended from acting as a member of the Council for four months.

Conclusion

[33]For these reasons, Cllr. Murphy’s appeal against the findings of the Case Tribunal that he acted in breach of paras. 5.1.3.3, 5.1.3.8(a) and 5.1.3.8(c) of the Council’s Code of Conduct is dismissed, but his appeal against his suspension for one year is allowed. That suspension must be quashed, and substituted for it will be a suspension for four months. I do not wish to put the parties to the expense of having to attend court when this judgment is handed down. If an appropriate order for costs cannot be agreed, the parties should submit their representations on the topic to me within 14 days of the handing down of this judgment. I will then decide what order to make as to costs without a hearing. 38. MR JUSTICE KEITH: For the reasons set out in the judgment handed down this morning, Councillor Murphy's appeal against the findings of the Case Tribunal, that he failed to comply with various paragraphs of the council's code of conduct, is dismissed, but his appeal against his suspension from acting as a member of the Council for one year is allowed. That suspension is quashed and substituted for it will be a suspension for 4 months. In paragraph 33 of my judgment I deal with the issue of costs in such a way as made it unnecessary for the parties to attend on the handing down of this judgment.

Cited in 1 later judgment