Sanders v Kingston [2005] EWHC 1145 (Admin)

Case No CO/4731/2004

[2005] EWHC 1145 (Admin)

IN THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT

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

Tuesday, 7 June 2005

Before

MR JUSTICE WILKIE

Between

Neville Buckle SandersAppellant

Steven KingstonRespondent

Charles Bear QC and Joanne Clement (instructed by Woodfine Leeds Smith) for Appellant

Kieron Beal (instructed by the Solicitor for Standards Board for England) for the Respondent

Judgment

Date 2005-06-07

[1]This is a statutory appeal by Mr Sanders a former local councillor and leader of Peterborough City Council (“the Council”) pursuant to section 79(15) of the Local Government Act 2000 (“the 2000 Act”) against the decision of a Case Tribunal (“the Case Tribunal”) dated 7 September 2004. Part 3 of the 2000 Act creates a system whereby local authorities are required to adopt codes of conduct for their members, and complaints of breaches of that code can be investigated and adjudicated upon by statutory bodies. The respondent is an Ethical Standards Officer appointed by the Standards Board for England under the 2000 Act and, in effect, was the prosecutor of the case against the appellant before the Case Tribunal.

[2]The Case Tribunal held that the appellant had failed to comply with paragraphs 2(b) and 4 of the Council’s Code of Conduct by, respectively, not treating others with respect and by conduct which could reasonably be regarded as bringing his office or authority into disrepute. The Case Tribunal disqualified the appellant from being, or becoming, a member of the Council or of any other local authority for a period of two years from the date of its decision.

[3]This appeal is brought on a number of grounds, however, the main ground concerns the interface between the system of adjudication upon complaints about the conduct of a local councillor and the fundamental right of free speech enshrined in

Article 10 of the European Convention

of Human Rights and given direct effect in English law by the Human Rights Act 1998. The statutory framework The 2000 Act

The statutory framework

[4]Part III of the 2000 Act concerns conduct of Local Government members and employees. Chapter 1 of that part concerns conduct of members. Section 49 is entitled “Principles governing conduct of members of relevant authorities”. Sub-section (1) provides:- “The Secretary of State may by order specify the principles which are to govern the conduct of members and co-opted members of relevant authorities in England and police authorities in Wales”. Other provisions of section 49 require consultation and define “relevant authority” as including the Council. The Secretary of State exercised his power under sub-section (1) by the Relevant Authorities (General Principles) Order 2001 SI/1401.

[5]Section 50 is entitled “Model Code of Conduct”. Sub-section (1) provides:

“The Secretary of State may by order issue a model code as regards the conduct which is expected of members and co-opted members of relevant authorities in England, … ”

The Council is such an authority.

[6]Sub-section (4) provides that a model code of conduct must be consistent with principles issued pursuant to section 49 and may include provisions which are mandatory. The section also provides for consultation. The Secretary of State has exercised his powers under sub-section (1) by making the “Local Authorities Model Code of Conduct (England) Order 2001 SI 2001 3575.

[7]Section 51 is entitled “Duty of Relevant Authorities to Adopt Codes of Conduct.” Sub-section (1) provides:

“It is the duty of a relevant authority before the end of the period of six months beginning with the day on which the first order under section 50 which applies to them is made to pass a resolution adopting a code as regards the conduct which is expected of members and co-opted members of the authority….”

Further provisions of section 51 require that the Code of Conduct adopted by the local authority must incorporate any mandatory provisions of the Model Code of Conduct which, for the time, being apply to that local authority.

[8]Section 52 is entitled “Duty to comply with Code of Conduct”. Sub-section (1) provides:

“A person who is a member or co-opted member of a relevant authority at a time when the authority adopt a code of conduct under section 51 for the first time (a) must, before the end of the period of two months beginning with the date on which the code of conduct is adopted, give to the authority a written undertaking that in performing his functions he will observe the authority’s code of conduct for the time being under section 51,…”

Failure to do so means that the person ceases to be a member of the local authority. There are other provisions which require new members of a local authority to undertake to observe the authorities code of conduct as a requirement of them taking up their position.

[9]The General Principles Order referred to above includes, insofar as is relevant, the following paragraphs:

“ Respect for others 7. Members should promote equality by not discriminating unlawfully against any person, and by treating people with respect, regardless of their race, age, religion, gender, sexual orientation or disability. They should respect the impartiality and integrity of the authority’s statutory officers and its other employees. Leadership 10. Members should promote and support these principles by leadership and by example and should act in a way that secures or preserves public confidence.”

Leadership

[10]The Model Code of Conduct Order referred to above contains certain mandatory provisions which are set out in Schedule 1 to the order

[11]The mandatory provisions include the following terms:

“ Scope 1(1) A member must observe the authority’s code of conduct whenever he – (a) conducts the business of the authority; (b) conducts the business of the authority to which he has been elected or; (c ) (acts as a representative of the authority, and reference to a members official capacity shall be construed accordingly… General obligations 2. A member must …(b) treat others with respect;… 4. A member must not in his official capacity, or in any other circumstance, conduct himself in a manner which could reasonably be regarded as bringing his office or authority into disrepute.”

General obligations

…(b) treat others with respect;…

[12]It is common ground that the Model Code of Conduct was the one which applied to the Council and that it adopted its own code of conduct which reflected these mandatory provisions.

[13]Chapter 2 of Part III of the 2000 Act concerns investigations. Section 57 establishes a Standards Board for England. This Board must appoint employees known as Ethical Standards Officers and may issue guidance in matters relating to the conduct of members and co-opted members of local authorities.

[14]Section 58 provides that a person may make a written allegation to the Standards Board for England that a member of a relevant authority has failed or may have failed to comply with the authority’s code of conduct. The Standards Board may decide that such complaint should be investigated and if so it must refer it to one of its ethical standards officers. The investigation of such cases is part of the functions of ethical standards officers (section 59). The purpose of that investigation is to determine which of a number of findings is appropriate (section 59(3)). Those possible findings include:

“ (d) That the matters which are the subject of the investigation should be referred to the President of the Adjudication Panel for England for adjudication by a tribunal falling within section 76(1).”

[15]Ethical Standards Officers have certain powers which they exercise in the course of their investigations. Section 62(2) provides:

“An Ethical Standards Officer ….may (a) make such enquiries of any person as he thinks necessary for the purpose of conducting such investigation, (b) require any person to give him such information or explanation as he thinks necessary for the purpose of conducting such an investigation, and (c) if he thinks necessary, require any person to attend before him in person for the purpose of making enquiries of that person or requiring that person to give any information or explanation.”

Sub-section (9) provides:

“….no person may be compelled for the purposes of an investigation under section 59 to give any evidence or to produce any document which he could not be compelled to give or produce in civil proceedings before the High Court.”

Sub-section 10 provides that a person who without reasonable excuse fails to comply with any such requirement is guilty of a summary offence.

[16]Chapter 4 of part III concerns adjudications. Section 75 establishes adjudication panels of persons eligible for membership of Case Tribunals. Members of the panels are appointed by the Lord Chancellor (3). The President and deputy President of the adjudication panel are responsible for training the members of the panel and issuing guidance on how panels are to reach decisions (9). One such piece of Guidance which has been issued concerns the approach to be taken by Case Tribunals when determining the sanctions to be applied to a person who has been found to be in breach of his obligations under a code of conduct. I return to this below.

[17]Section 76 provides for Case Tribunals to conduct adjudications. They must comprise not less than three members of the panel. There is, in addition, provision preventing any member of the adjudication panel sitting on a Case Tribunal to adjudicate on a matter relating to a member of a relevant authority if, within the period of five years, that panel member had been a member or an officer of that authority or otherwise connected with it (7).

[18]The adjudication hearing is one in which the person the subject of the adjudication has a right to attend and a right to be legally represented. The panel may also be empowered to require persons to attend to give evidence and to produce documents and to administer oaths.

[19]Section 79 provides for decisions of case tribunals. Sub-section (1) provides:

“A case tribunal which adjudicates on any matter must decide whether or not any person to which that matter relates has failed to comply with the code of conduct of the relevant authority concerned.”

Sub-section (3) provides:

“Where a case tribunal decides that a person has failed to comply with the code of conduct of the relevant authority concerned, it must decide whether the nature of the failure is such that the person should be suspended or disqualified in accordance with sub-section (4).”

The remaining provisions of section 79 make detailed provision for, amongst other things, what is meant by and what the consequences are of suspension and disqualification. In short a person may be suspended or partially suspended which means that, although remaining a member of the authority they may take no part either at all, or in particular ways, in the affairs of that authority. A period of suspension may last for no more that one year or, if shorter, the unexpired remainder of the persons term of office. By way of contrast a disqualification operates to cause the person’s membership of the authority to cease. He may not be a member of any other authority nor may he seek membership of that authority or any other authority for the duration of the disqualification. The maximum period of disqualification is 5 years. Whether or not the adjudication panel decides to impose any sanction it must give due notice to the relevant authority of its finding that the person has failed to comply with the code of conduct, specifying the details of that failure and, in the event that any sanction is imposed, proving the detail of that sanction. The relevant authority is obliged to give effect to the decision of the tribunal to impose any sanction.

[20]Section 79(15) provides:

“Where a case tribunal decides under this section that a person had failed to comply with the code of conduct of the relevant authority concerned, that person may appeal to the High Court against that decision, or any other decision under this section which relates to him.”

[21]Section 83 is an interpretation section which gives further details as to what is meant by suspension and partial suspension.

The Human Rights legislation

[22]Section 1 of the Human Rights Act 1998 identifies the rights under the European Convention of Human Rights which have effect for the purposes of that act. They include Articles 6 and 10 of the ECHR. Section 3(1) of the 1998 Act provides that so far as it is possible to do so…..subordinate legislation must be read and given effect in a way which is compatible with the convention rights.

[23]Section 6 of the 1998 Act provides as follows:

“(1) It is unlawful for a public authority to act in a way which is incompatible with a convention right. Subsection (2) Disapplies the section in certain very limited circumstances concerning primary legislation. This does not apply to the present case as the matters raised by the appellant concern subordinate legislation. Sub-section (3) provides: “In this section public authority includes – (a) a court or tribunal Section 7 provides: (1) A person who claims that a public authority has acted in a way which is made unlawful by section 6(1) may – (b) rely on the convention right or rights concerned in any legal proceedings…” “In this section public authority includes – (a) a court or tribunal (1) A person who claims that a public authority has acted in a way which is made unlawful by section 6(1) may – (b) rely on the convention right or rights concerned in any legal proceedings…”

[24]

Article 6 of the ECHR

provides:

“(1) In the determination of his civil rights and obligations…everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…”

Article 10 of the ECHR

provides:

“(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers…. (2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of…the protection of the reputation or rights of others, …”

Local government legislation

[25]An issue has arisen which I may have to consider concerning the powers of, respectively, Carrickfergus Borough Council (“Carrickfergus”) and the Council to act in certain circumstances.

[26]The relevant powers of Carrickfergus are contained in section 115 of the Local Government Act (Northern Ireland) 1972. It provides as follows:

“(1) Subject to sub-sections (2) and (5), a council may make any payment for any purpose which in its opinion is in the interests of, and will bring direct benefit to – (c) the inhabitants of its district or any part of its district…”

[27]The Council’s relevant powers are contained in section 2 of the Local Government Act 2000. Insofar as is relevant it provides as follows:

“(1) Every local authority(sic) are to have power to do anything which they consider is likely to achieve any one or more of the following objects - … (b) the promotion or improvement of the social well being of their area,… (2) The power under sub-section (1) may be exercised in relation to or for the benefit of – (a) the whole or any part of the local authorities area, or (b) all or any persons resident or present in a local authorities area. (4) The power under sub-section (1) includes power for a local authority to – (a) incur expenditure… (c) enter into arrangements or agreements with any person, (d) co-operate with or facilitate or coordinate the activities of, any person. (5) The power under sub-section (1) includes power for a local authority to do anything in relation to, or for the benefit of, any person or area situated outside their area if they consider that it is likely to achieve any one or more of the objects in that sub-section.”

The facts

[28]The appellant has for many years been a member of the Council. Until the events the subject of this appeal he was a member of the Conservative Party. On 18 July 2001 he was elected Leader of the Council. On 30 January 2002 the Council adopted a code of conduct which included the mandatory model code provisions paragraphs 2(b) and 4.

[29]In July 2001 Paul Cochrane a soldier with the Royal Irish Regiment, aged 18, shot himself at the barracks in Holywood. He left three suicide notes saying he suffered abuse at the army base.

[30]According to the Belfast Telegraph report on the matter his father has since lobbied tirelessly in a bid to change the way in which the Army handles internal investigations. It is well known that there have been a number of similar incidents, most notably at Deepcut Barracks in England, which have similarly given rise to demands for and a campaign to support, an independent inquiry into such matters.

[31]In April 2003 Carrickfergus, within whose area the Cochrane family resides, passed a resolution recording their serious concern at Paul Cochrane’s unexplained death and the high number of similar deaths amongst Army personnel over recent years. The resolution apparently requested the Town Clerk and Chief Executive to write to the Secretary of State for Defence requesting a full and independent inquiry into these deaths. It also asked the Chief Executive to seek the support of other local authorities in the United Kingdom. This resulted in a letter sent to Chief Executives of all UK local authorities asking them to bring the letter to members’ attention. The letter refers only to “unexplained death” and makes no specific reference to an apparent suicide or its linkage to the Deepcut incidents. Accordingly, in my judgment, the letter sent by the Town Clerk and Chief Executive was open to misinterpretation.

[32]The Council’s Chief Executive passed the letter to the appellant as leader of the Council for him to deal with pursuant to matters delegated to him. He apparently construed the letter as not referring to these particular personal tragedies but rather to have arisen in respect of “the Troubles”. His unreflective and immediate response was to write in handwriting on a copy of the letter and return it to the Carrickfergus Chief Executive. The comments he wrote were as follows:

“ Members of the Armed Forces DO get killed be it accident or design – THAT is what they are paid for.”

He then signed the comment and identified himself as Leader.

[33]On 5 June 2003 the Carrickfergus Chief Executive wrote to the appellant a private and confidential letter. He enclosed a copy of the original letter with the hand written comments on it. He asked the appellant to identify himself as the writer of the comment as he had been asked by councillors to write further to the author of the comment.

[34]The appellant did not grace this letter with a formal reply but rather wrote the following comment on it and returned it.:

“PCC was elected to look after the local affairs of Peterborough, NOT indulge in matters relating to the armed forces. Many things happen in Ireland that defy common sense BUT that is a matter for the IRISH people not PCC.”

[35]On 11 June 2003 the Carrickfergus Chief Executive wrote further to the appellant. He thanked him for confirming that he was the author of the original note. He again referred to the matter as “the number of unexplained deaths” without making clear the nature of the matter concerned. He then says:

“ Members of council take the view that such an important matter should be the concern of all responsible public representatives as it relates to men and women who have embarked on a career in which they are dedicated to serving the entire nation. It is also a matter that could suddenly become one of local interest for any of us if the incidence of such deaths remains unchecked. Members were aghast to note your comment that service personnel are paid to be killed so you will understand that they may now ask me to check whether your views are representative of the Conservative Party as a whole.”

[36]Thus far the matter had been conducted as an official, though private, exchange between the Chief Executive of Carrickfergus and the appellant as Leader of the Council. Matters then developed, however, and it became what may be termed a political or media event. The trigger for this was the leaking by an unidentified member of Carrickfergus of the original letter with hand written response to the Belfast Telegraph.

[37]A journalist on the Belfast Telegraph Mr McCambridge telephoned the appellant on 11th June and it is not in dispute that a heated conversation then ensued. Mr McCambridge wrote that conversation up as part of an article which appeared in the Belfast Telegraph on 12 June. In that article Mr McCambridge attributed to the appellant comments which are both foul mouthed, potentially racist and personally abusive. It appears that, at least to some extent, the appellant remained under the misapprehension that the “unexplained deaths” the concern of Carrickfergus arose from the Troubles and not from the way in which young recruits were being treated in training camps. There was a sharp dispute between Mr McCambridge and the appellant as to the accuracy of Mr Cambridges’s recollection of what the appellant had said. However the appellant did accept that in the course of the conversation he had been offensive and had on one occasion used a mild expletive.

[38]Other media outlets got wind of this story and, according to the appellant, bombarded him with telephone enquiries. It is certainly not in dispute that on 12 June he was interviewed on the telephone by an Ulster TV reporter David Morgan. In the course of that interview he appears to have stood by the words that had been reported in the Belfast Telegraph. He denied that any of the comments attributed to him could properly be construed as racist. In a further interview on BBC Northern Ireland’s News Line programme on 12 June he was interviewed by Donna Traynor. In the course of that interview he said as follows:

“I believe in my heart of hearts that Paul Cochrane’s family owe me an abject apology for the amount of time that I have spent on this particular cause because it is absolutely nothing to do with me. I do not know why, I do not know when, I do not know how their son was either killed or committed suicide. The circumstances are not within my power to investigate. And I take very very serious offence to being asked to interfere in the affairs of state in Northern Ireland as indeed I would take offence if the people of Northern Ireland interfered in the affairs of state of the city of Peterborough. I do not believe the Cochrane family have cause to be insulted or if I thought they had cause to feel insulted or indeed I had insulted the Cochrane family, I would be only too pleased to apologise. You’ve killed hundreds of my friends. You’ve killed people in Peterborough. You’ve caused distress to hundreds of families in England. Now that one of your own has committed suicide – I presume in your own country – yet it suddenly becomes an Englishman’s fault. …When do I get my apology from the Cochrane family and when will the English people get an apology from the people of Northern Ireland for killing so many of our soldiers over the past 25 years? I think you should all hang your heads deeply in shame for involving the English people in your own quarrel. ”

[39]Unsurprisingly the journalists concerned sought comments from various interested parties. Mr Cochrane is reported in the Belfast Telegraph to have described the appellant’s comments as “very insulting”. He said:

“This is obviously a very ignorant man who is ill informed. Just because he is a councillor does not mean he knows what he is talking about…Mr Sanders comments are beneath contempt in my eyes. Perhaps if he had had to deal with the grief we have lived with he would see it differently.”

An independent Carrickfergus councillor, Mr Hamilton, was reported as having said that the members of the council had been left stunned when they received Mr Sander’s reply. He described it as “disgraceful” and would be in contact with Peterborough City Council to demand an apology. The Conservative Party was approached. A spokesman for Central Office is reported as having said:

“None of what Mr Sanders said reflects the view of our party. Far from this the Conservative party values Northern Ireland as part of the UK and will continue to do so.”

Mr Quentin Davies MP then shadow spokesman on Northern Ireland described his reaction to what Mr Sanders had said as “one of horror, of disgust and a feeling of contempt for anybody who could have said such things”. He then indicated that the party was investigating the matter and with the agreement of the party chairman, Theresa May MP, they had agreed to have an urgent report over the next few days on the facts and the Board of the Conservative party would be considering the matter and taking the necessary decisions. When asked what he would like to say to the people of Carrickfergus and the parents of the dead soldier Mr Davies said:

“I am appalled about that. I am trying to make arrangements to call on the family when I am next in Northern Ireland on Monday and Tuesday and hope it will be possible to be able to speak to them direct. But of course the words are insulting to our soldiers as a whole and indeed to the people of Northern Ireland as a whole… ”

[40]In the same Ulster TV programme the Mayor of Carrickfergus Councillor Ferguson said:

“I think it was a scribbled note on official correspondence from Carrickfergus Borough Council that was treated with disdain. The gentleman that answered it - absolute shock to think that anyone with any standing in the Council could correspond with another Council in that manner.”

[41]On 13 June the parent of another young soldier who had apparently committed suicide in Army barracks wrote to the Council expressing his “absolute disgust” at the remarks of the appellant describing him as a bigot and demanding that he be removed from public office. On 16 June another person, a resident of Peterborough, wrote to the Council’s executive complaining of the impact of the appellant’s remarks on community relations within Peterborough within the Irish community. The author of the letter asked what the Council was going to do about its Leader who had insulted the family of the young soldier, the Irish community in Peterborough and Peterborough as a whole. He believed that he should make a formal apology to the Irish community and the family.

[42]On 13 June the Peterborough Evening Telegraph picked up the story. The appellant is recorded as saying that he made “no apology” for his strong views. He is quoted as saying as follows:

“ I think it is an absolute cheek when one of their own commits suicide they come to me and ask me and our Council for support. I want an apology from Northern Ireland for hundreds of British policemen and soldiers they have killed.”

It records Quentin Davies as having said:

“The man has insulted not only this family and soldiers in Northern Ireland but the people there too.”

It also referred to the response of Sir Brian Mawhinney MP for North West Cambridgeshire who said:

“These remarks don’t reflect the views of Peterborough, the Conservative party or me as the local MP. I speak with some authority because I am one of those Northern Irish people about whom he is being so critical.”

[43]On 16 June the appellant wrote a further letter to Carrickfergus. Far from being an apology or expression of regret he maintained his position and accused Carrickfergus of raising a political and media storm for political reasons, inferentially suggesting that part of the problem of Northern Ireland was lack of effort on the part of the Northern Irish and taking the point that it was no part of local authority business to join “spurious” lobbying. He accused the local government officials of being involved in political activity and wrote as follows:

“My hallmark is plain speaking. The electorate acknowledge my lower deck language and refusal to be influenced by blackmail, favours, friends, or enemies by installing the first PCC Conservative administration since 1979.”

[44]On 25 June 2003 the Council passed a resolution totally disassociating itself from the appellant’s attributed statements, recording that considerable damage to the reputation of the City and Council had been done by those views, resolved to remove with immediate effect the appellant as leader of the Council and asked the Conservative majority group to nominate a new leader in his place. This resolution plainly had the support of at least some of the appellant’s Conservative Party colleagues. On Ulster TV on the same day one of them, Councillor David Thorpe, indicated his support for that resolution. Furthermore, on 1 July the Mayor of Peterborough wrote to the Mayor of Carrickfergus informing her that the appellant had been removed as leader of Peterborough and expressed his unreserved apology for any offence caused to the Cochrane family and also to the people of Carrickfergus and Northern Ireland.

[45]Meanwhile, on 13 and 16 June, two Peterborough councillors lodged formal complaints with the Standards Board for England. Pursuant to the statutory power referred to above, on 7 October, and following, the person conducting the investigation conducted several interviews. He interviewed Mr McCambridge twice and interviewed the appellant. In addition there was an interview with a Mr Thomas Gee who had been present for part of the time when the appellant was receiving a number of telephone calls from the media.

[46]On 8 January 2004 a draft report was sent to the appellant for his comments and on 15 January he responded. His letter of response concluded as follows:

“European law is supreme. HM Government cannot use the LGA 2000 to overturn the right to individual privacy or the right to freedom of speech. Similar consideration applies to human rights. Overwhelming public support for “Kilroy” has given a whole new meaning to freedom of speech.”

On 21 May 2004 the defendant concluded in his Report that the matter should be referred to an Adjudication Panel. That Report contained at paragraph 3.15 the following comment in answer to the last paragraph of the appellant’s letter of 15 January:

“In response to sight of a draft of this report Councillor Sanders states that he considers the investigation of his alleged comments contravenes his right to freedom of expression under Article 10 of the European Convention on Human Rights. It is unclear precisely what Councillor Sanders is complaining about in that context. It is my opinion that the Standards Boards procedures are fully in accord with all applicable provisions of the Human Rights Act 1998.”

On 27 May 2004 the APE wrote to the appellant inviting him to submit written representations on the ESO’s report using a proforma document. No such response was forthcoming. On 4 August the listing direction, prepared by the President of the Adjudication Panel for England, was sent to all the parties identifying the three stage procedure to be followed by the case tribunal. Attached to that document was a document entitled “Appendix to Listing Direction”. Part 2. – Findings set out in great detail an account of the facts both in dispute and not in dispute. This is a full and, in my judgment, an accurate account of the various factual matters and the various areas of dispute. Part 3 set out the ESO’s submissions as to disputed facts. The ESO sets out his view that:

“On the balance of probabilities the ESO concluded Councillor Sanders did swear and use strong language.”

He then set out his summary of the evidence for drawing that conclusion. Part 4 set out the submissions of each side as to whether the material facts disclose a failure to comply with the code of conduct. At paragraph 4.1 he set out, under seven numbered sub-paragraphs his attempt at extracting from the appellant’s various accounts what he might submit as his case. It is significant that he does not include within that set of submissions the contention of the appellant that Article 10 was engaged. In paragraph 4.2 he sets out his submissions separating out the appellant’s responses to Carrickfergus and to the media. The ESO’s position was that Councillor Sanders had failed to comply with the Council’s code of conduct in respect of the way he responded to the approach of Carrickfergus and in his subsequent comments to the media. Part 5 sought to give guidance to the Case Tribunal in connection with sanction. He set out in the sub-paragraphs his view of the seriousness of what Councillor Sanders had done. There is no reference in any of these sub-paragraphs to the guidance issued by the President of the Adjudication Panel for England on action to be taken by a case tribunal where a respondent has been found to have failed to comply with a code of conduct. Nor was there any statement to the effect that, by this time, there had been a council election and that Councillor Sanders had been re-elected as Ward Councillor. Those matters were, I am informed, known to the Case Tribunal. What they were unaware of was that, pursuant to the investigation referred to by senior national Conservative Party officials, the appellant had been expelled from the party by reason of these events and his unwillingness to resile from his public comments. Furthermore he had stood in that council election and been re-elected as an Independent. Nor was the case tribunal aware of the fact that, by reason of the particular electoral cycle, the appellant’s membership of the Council would expire in May 2006 and that the next election after that one would be May 2010.

[47]The hearing before the Case Tribunal took place on 7th September 2004. Mr McCambridge chose not to attend to give evidence orally. The appellant did choose to attend in order to make two preliminary submissions which, having been rejected by the Case Tribunal, he then departed and took no part in the hearing whether to give evidence, or to make submissions on his own behalf either as to their findings or, in the event of a finding of breach, as to sanction.

[48]The decision of the Case Tribunal first recorded their decision on the preliminary issues to which reference has already been made.

[49]Part 3 of the decision concerns the facts in dispute. They set out those facts in extenso and in large measure they are a repeat of the Appendix submitted by the ESO to the tribunal.

[50]Part 4 concerns submissions as to disputed facts and they there set out the ESO’s submissions which are in essence those which were contained in the earlier document. It records that Councillor Sanders made no submissions about the conflict of fact.

[51]Part 5 sets out their findings of fact. They indicate that, notwithstanding the fact that Councillor Sanders stated before leaving the tribunal that he disputed each and every fact, nonetheless many of the facts before the tribunal were beyond dispute. They recorded that the main issue in dispute was the detailed content of the telephone conversation between Councillor Sanders and Mr McCambridge. They then set out in paragraph 5.4 what Councillor Sanders accepted as far as that conversation was concerned. They state as follows:

“It is not disputed by Councillor Sanders in the written evidence before the case tribunal, that he used offensive language, indeed in his letter to the Chief Executive of Carrickfergus Borough Council dated 16 June 2003 he states “I rightly rose to anger, I parried offensive anti-Brit, Tory and government questions with equally offensive replies,” and again in his interview with Mr Richard Owen and Mr Mathew Richards, representatives of the Standards Board for England on 8 October 2003 “we were both being offensive we were mutually offensive.” “5.5 The case tribunal makes no findings in relation to the precise words used in that particular exchange on 11 June 2003. It is accepted and it is enough that Councillor Sanders used offensive language. 5.6 The case tribunal also accepts and finds the other facts set out above and in the appendix to listing direction.”

[52]Part 6 of the decision considers whether the material facts disclosed a failure to comply with the code of conduct. In paragraphs 6.1, 6.2 and 6.3 they repeat what the ESO had written in the appendix as to the submissions which he believed the appellant would wish to make together with the ESO’s own submissions. Having set out the contending submissions the decision of the case tribunal is set out as follows:

“6.4.1 The case tribunal finds that Councillor Sanders has breached paragraphs 2(b) and paragraphs 4 of Peterborough City Council code of conduct in that his correspondence with the Chief Executive of Carrickfergus Borough Council and his comments made during an interview with Mr McCambridge of the Belfast Telegraph and other media including the BBC was disrespectful and deeply offensive to any reasonable person, particularly to the Cochrane family, the family of the young soldier who committed suicide. 6.4.2 The case tribunal finds that Councillor Sanders behaviour did bring his office and authority into disrepute and indeed his own council felt this as evidenced by the Council’s resolution on 25 June 2003.”

[53]Paragraph 7 sets out the ESO’s submissions as to the action to be taken, again reproduced from the appendix. They record that the respondent had not made any submissions on that matter. Paragraph 7.3 sets out the Case Tribunal’s decision in this respect. They set out in a number of paragraphs their conclusion that the conduct found was very serious. They describe his comments as “remarkably insensitive and must have been deeply offensive and upsetting to the Cochrane family”. They also record that Councillor Sanders’s conduct was such that the Council on 25 June 2003 totally disassociated itself from his statements and removed him as leader. They also took account of the fact that at no time had Councillor Sanders sought to mitigate his breach or to apologise for his behaviour but that rather had continued to stand by his comments. In those circumstances the Case Tribunal decided to disqualify him for a period of two years from being a member of the Council or of any other relevant authority.

The scope of this appeal

[54]On this issue I have had cited to me a number of relevant authorities namely Ghosh v General Medical Council

(2001) UKPC 29

, Preiss v General Dental Council

(2001) UKPC 36

, Gupta v General Medical Council (2001) UK PC 61 and EI Dupont Nemours and Co v ST Dupont (2003) EWCA Civ1368.

[55]The starting point of the court’s jurisdiction is a combination of section 79(15) of the 2000 Act, which places no explicit limits on the scope of the appeal, and Rule 52.11 of the CPR which provides as follows:

“ (1) Every appeal will be limited to a review of the decision of the lower court unless…(b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing. (2) Unless it orders otherwise the appeal court will not receive (a) oral evidence; or (b) evidence which was not before the lower court. (3) The appeal court will allow an appeal where the decision of the lower court was – (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court. (4) The appeal court may draw any inference of fact which it considers justified on the evidence.”

In the case of Du Pont Lord Justice May addressed the distinction between an appeal, a review and an appeal by way of re-hearing. In paragraph 94 he says as follows:

“As the terms of Rule 52.11(1) make clear, subject to exceptions, every appeal is limited to a review of the decision of the lower court. A review here is not to be equated with judicial review. It is closely akin to, although not conceptually identical with, the scope of an appeal to the Court of Appeal under the former rules of the Supreme Court. The review will engage the merits of the appeal. It will accord appropriate respect to the decision of the lower court. Appropriate respect will be tempered by the nature of the lower court and its decision making process. There will also be a spectrum of appropriate respect depending on the nature of the decision of the lower court which is challenged. At one end of the spectrum will be decisions of primary fact reached after an evaluation of oral evidence where credibility is an issue and purely discretionary decisions. Further along the spectrum will be multi factorial decisions often dependent on inferences and an analysis of documentary material. Rule 52.11(4) expressly empowers the court to draw inferences….”

In paragraph 97 he says as follows:

“But the court will not normally interfere with the exercise of a discretion unless the decision of the lower court was reached on wrong principles or was otherwise plainly wrong. And this can be done on a hearing by way of review.”

[56]In my judgment the approach thus described is the appropriate approach. I am not exercising a purely supervisory function. I am permitted to engage with the merits. In doing so, however, I must pay due deference to the role of the tribunal in particular where it is a specialist tribunal selected for its expertise and trained to the task.

Matters other than Article 10

[57]At the heart of this appeal lies the significance of Article 10. A number of other points have, however, been taken by the appellant and I address them before turning to Article 10.

The quality of the decision

[58]Mr Béar has attacked the quality of the decision of the Case Tribunal. He accepts that the decision sets out in full the issues of fact and also their findings of fact. It also sets out in full the contending submissions on whether the findings of fact amounted to a breach by the appellant of the code of conduct. He says, however, that the conclusions of the case tribunal set out in paragraph6.4.1 and

6.4.2 are so spare that they do not demonstrate that any proper process of reasoning has been undertaken. In particular he says that there is no specific finding as to which elements of Councillor Sanders conduct has been found to amount to a breach of the code of conduct. Nor he says do they specify what he said to Mr McCambridge save that he used offensive language.

[59]In my judgment Mr Bear’s criticism is not well founded. It is clear that the case divided itself into two elements. The first concerned his official exchanges as leader of Peterborough with the Chief Executive of Carrickfergus. The case tribunal concluded that in his correspondence with that officer he was disrespectful and deeply offensive to any reasonable person and that his conduct brought his office and authority into disrepute. The second matter concerned his comments to the Belfast Telegraph and other media outlets. It is clear that the case tribunal viewed his comments in the round and did not separate them out into constituent elements e.g., personal abuse to the Cochrane family, disparaging remarks about the Northern Irish generally, statements of resentment about the sacrifice made by English soldiers during the troubles. They decided the case on the basis favourable to the appellant that in his conversation with Mr McCambridge he went no further than he had admitted ie that he had used offensive language. It is clear that their approach and their process of reasoning was to take the comments to the media in the round and not to compartmentalise them. In my judgment they were entitled to do so. It was legitimate to have regard to the overall effect of what they found he had said. As a statement of their decision and as evidence of their reasoning, in my judgment their decision reveals to the reader that this is the approach they have taken. In my judgment the decision itself cannot be faulted in terms of its form or its adequacy as revealing the Tribunal’s thought processes.

Is the code of conduct too uncertain to permit of a lawful decision?

[60]Mr Béar attacked paragraphs 2(b) and 4 of the model code of conduct and the code of conduct adopted by Peterborough as insufficiently precise so as to enable a person to foresee when they may be in breach of it. He contended that it followed that they failed to be a restriction on Article 10 rights which could properly be described as being prescribed by law. He cited the case of Hashman v United Kingdom

(2000) 30 EHRR 241

in support of this contention. That was a case in which the decision in question was to bind the claimants over to keep the peace and to be of good behaviour. They complained that the finding that they had behaved in a manner “contra bonas mores” and a binding over order constituted an interference with the exercise of their Article 10 right which was not “prescribed by law.” Their complaint was upheld. At paragraph 38 the court stated as follows:

“Conduct contra bonas mores is defined as behaviour which is wrong rather than right in the judgment of the majority of contemporary citizens. It cannot agree with the government that this definition has the same objective element as “conduct likely to cause annoyance” which was at issue in the case of Chorherr. The court considers that the question of whether conduct is “likely to cause annoyance” is a question which goes to the very heart of the nature of the conduct proscribed: it is conduct whose likely consequences is the annoyance of others…conduct which is “wrong rather than right in the judgment of contemporary citizens” by contrast is conduct which is not described at all but merely expressed to be “wrong” in the opinion of a majority of citizens.”

The court therefore concluded that the order did not comply with the requirement of Article 10(2) that it be prescribed by law.

[61]In my judgment the same criticism cannot properly be made of the phrases in the model code of conduct. Each of them is specific in describing the nature of the conduct or its consequence. In one case it is a failure to treat others “with respect”. That is a concept, particularly where it describes the conduct of an official to others, which is perfectly capable of being applied by a reasonable person considering a course of conduct so as to enable that person to know whether what they are doing, or are about to do, would or would not comply with the code in that way. The other paragraph in the code, which prohibits conduct which could reasonably be regarded as bringing his office or authority into disrepute, adopts a concept which is well known in a number of different contexts as a method of identifying a level of conduct which is expected of persons holding certain positions or being members of certain bodies. Once again it describes clearly the consequence or potential consequence of conduct which is prohibited in such a way as to enable a reasonable person to predict whether or not his actions or proposed actions would or would not be in breach of the provision. I therefore reject the contention of Mr Béar that these paragraphs fail to be sufficiently precise so as to amount to a restriction “prescribed by law.”

The “Article 6” point

[62]This point concerns the fact that, pursuant to the statutory regime, a person may be required to submit himself to interview on pain of criminal sanction. Mr Béar says that the use of comments made in such an interview as evidence could amount to a breach of the obligation under Article 6 in respect of a fair trial. He cites the decision of the Court of Appeal in Official Receiver v Stern and another

(2000) 1WLR 2230

in support of his contention. In particular he relies on the following passage in the judgment of the Court of Appeal, in the judgment of Lord Justice Henry:- “In our judgment Sir Richard Scott VC was plainly right to reject the submission that use in disqualification proceedings of statements obtained under section 235 must necessarily involve a breach of Article 6(1). The issue of fair trial is one that must be considered in the round, having regard to all relevant factors. The relevant factors include but are not limited to….(iii) that in this field as in most other fields, it is generally best for issues of fairness or unfairness to be decided by the trial judge, either at a pre-trial review or in the course of the trial….He was right not to attempt to anticipate those decisions.”

[63]Thus the fact that in connection with these proceedings there was a statement taken from the appellant pursuant to a power which had compulsion as a backstop could amount to unfairness in the trial. Mr Béar acknowledged that the use by the Case Tribunal of the interview conducted with Mr Owen is sparse. In my judgment none of the Case Tribunal’s use of it disclosed any material which was not otherwise available in statements made by Councillor Sanders on other occasions, in the course of radio interviews or in his letter dated 16 June 2003, and none of them remotely caused the Case Tribunal hearing to constitute an unfair trial.

The statutory context

[64]Mr Béar contends that an important matter which the case tribunal did not have regard to was the statutory context in which Councillor Sanders had his exchange with Carrickfergus. Mr Bear contends that Carrickfergus had neither the vires to pass the resolution that it did nor to seek the support of others for a public inquiry into the unexplained death of Paul Cochrane. He also contends that the Council did not have the vires to lend support to that campaign. I have identified the different statutory powers available respectively to local authorities in Northern Ireland and in England and Wales. I have had cited to me two authorities which do no more that confirm the fact that a local authority must act within its powers, however wide they may be, and does not have carte blanche to pass whatever resolution it wishes. In my judgment it is not necessary for me to decide whether or not either Carrickfergus or the Council would or would not have the vires to take the steps in question. I accept, for the purposes of this appeal, however, that Councillor Sanders was of the view that there was a question mark whether the Council had any vires and was certainly of the view that if it had it would be wholly inappropriate for it to take the action requested. I also accept that he inferred that Carrickfergus may not have had the vires either and he was greatly concerned that an official such as the Chief Executive of Carickfergus appeared to be descending into the political arena as a result of the concluding comment contained in the letter of 11 June.

The Article 10 point

[65]Mr Béar’s principal contention is that the Case Tribunal failed to have regard to the fact that Article 10 was engaged. They were being invited to consider taking steps to penalise the appellant for exercising his right to freedom of expression. The way he puts it is that penalising Councillor Sanders for what he said, either to Carrickfergus or to the media, constitutes an interference with his freedom of expression. It may only be justified if it falls within Article 10(2). He therefore says that, before the Case Tribunal, as a public authority, could lawfully penalise him it had first to consider whether by so doing they would be acting within the limits of Article 10(2).

[66]He says that, notwithstanding the explicit raising of the matter by the appellant, the Case Tribunal failed to have regard to this issue at all and, in so doing, they were misled by the peremptory dismissal of the issue by the ESO in his report.

[67]Mr Beal disputes that Article 10 is in play at all. He says that the nature of what Councillor Sanders did was to engage in gratuitous and offensive abuse and it cannot be dignified by the description of a statement which attracts the attention of Article 10.

[68]In my judgment Mr Bear is right, at least to this extent, that Article 10 was engaged. It was an error for the ESO to discount it entirely and for the Case Tribunal to fail to consider it at all. That, however, does not take the case very far and it is necessary to look at the nature of the expression indulged in by Councillor Sanders in order to see whether the interference with it by virtue of this process is lawful pursuant to Article 10(2).

[69]Mr Béar has referred to a series of cases in which the importance of political freedom of expression has been emphasised. In Lingens v Austria the following was said in paragraph 41:

“ In this connection the court has to recall that freedom of expression…constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self fulfilment. Subject to paragraph 2, it is applicable not only to “information or ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broad mindedness without which there is no democratic society…More generally freedom of political debate is at the very core of the concept of a democratic society which prevails throughout the convention…In such cases the requirements of such protection have to be weighed in relation to the interests of open discussion of political issues. ”

In R v Central Independent Television plc

(1994) Fam 192

Lord Justice Hoffman said as follows at page 203:

“Publication may cause needless pain, distress and damage to individuals or harm to other aspects of the public interest. But a freedom which is restricted to what judges think to be responsible or in the public interest is no freedom. Freedom means the right to publish things which government and judges, however well motivated, think should not be published. It means the right to say things which “right thinking people” regard as dangerous or irresponsible. This freedom is subject only to clearly defined exceptions laid down by common law or statute….It cannot be too strongly emphasised that outside the established exceptions, there is no question of balancing freedom of speech against other interests. It is a trump card which always wins.”

In Jerusalem v Austria

(2003) 37 EHRR 25

at paragraph 36 the court said as follows:

“In this respect the court recalls that while freedom of expression is important for everybody, it is especially so for an elected representative of the people. He or she represents the electorate, draws attention to its pre-occupations and defends its interests. Accordingly, interference with the freedom of expression of an opposition member of parliament, like the applicant, call for the closest scrutiny on the part of the court. As regards the position of the IPM and the VPM, the applicant’s opponents in the injunction proceedings, the government submitted that the associations were private bodies and could not, for the purposes of Article 10, be compared with politicians. The court recalls that the limits of acceptable criticism are wider with regard to politicians acting in their public capacity than in relation to private individuals, as the former inevitably and knowingly lay themselves to close scrutiny of word and deed both by journalists and the public at large. Politicians must display a greater degree of tolerance, especially where they themselves make public statements that are susceptible to criticism. However, private individuals or associations lay themselves open to scrutiny when they enter the arena of public debate…In the present case the court observes that the IPM and the DPM were associations active in a field of public concern namely drug policy. They participated in public discussions on this matter and, as the government conceded, co-operated with a political party. Since the associations were active in this manner in the public domain, they ought to have shown a higher degree of tolerance to criticism when opponents considered their aims as well as to the means employed in that debate.”

In the case of Reynolds v Times Newspapers Ltd

(2001) 2 AC 127

Lord Nichols of Birkenhead said at page 200 D the following:

“My starting point is freedom of expression. The high importance of freedom to impart and receive information and ideas has been stated so often and so eloquently that this point calls for no elaboration in this case. At a pragmatic level, freedom to disseminate and receive information on political matters is essential to the proper functioning of the system of parliamentary democracy cherished in this country. This freedom enables those who elect representatives to parliament to make an informed choice, regarding individuals as well as policies, and those elected to make informed decisions….To be justified, any curtailment of freedom of expression must be convincing established by a compelling countervailing consideration, and the means employed must be proportionate to the end sought to be achieved.”

This passage was cited with approval by Lord Steyn in the case of McCartin Turkington Breen (a firm) v Times Newspapers Ltd

(2001) 2 AC 277

at page 297 G.

[70]Mr Beal sought to rely on R (pro life) v BBC

(2003) UKHL 23

in support of his contention that where, as here, a statutory body was tasked with taking decisions which intrinsically impinged on freedom of expression then as long as they did that lawfully Article 10 could not be invoked. In my judgment that case is not authority for such a wide ranging proposition because as was made clear by Lord Hoffman in his speech at paragraph 55 the primary right protected by Article 10 is the right of every citizen not to be prevented from expressing his opinions. He has the right to receive and impart information and ideas without interference by public authority. However in that case that primary right was not engaged. What was in issue was whether the claimant in that case could be given access to use a TV channel as to which there is no intrinsic right.

[71]He also relied on the case of Ahmed and others v UK 29 EHRR 1. That was a case which concerned a prohibition on certain limited categories of local government official being permitted to be candidates in elections. Mr Beal is entitled to rely on this authority as authority for the proposition that even such a fundamental restriction on freedom of speech may be lawful provided the Article 10(2) limitations exist. In that case the court at paragraph 53 emphasised that the local government system of the UK has long resided on a bond of trust between elected members and a permanent core of local government officers who both advise them on policy and assume responsibility for the implementation of policies adopted. That relationship of trust stems from the right of council members to expect that there being assisted in their functions by officers who are politically neutral and whose loyalty is to the council as a whole. Members of the public also have a right to expect that the members whom they voted into office will discharge their mandate in accordance with the commitments they made during an electoral campaign and that the pursuit of that mandate will not founder on the political opposition of their members own advisors.

[72]In my judgment the questions that I must answer are as follows: 1. Was the Case Tribunal entitled as a matter of fact to conclude that Councillor Sanders conduct was in breach of paragraph 2(b) and/or paragraph 4 of the Code of Conduct? 2. If so, was the finding in itself or the imposition of a sanction prima facie a breach of Article 10? 3. If so, was the restriction involved one which was justified by reason of the requirements of Article 10(2)?

[73]As for the first question I am in no doubt that the Case Tribunal was fully entitled to find that Councillor Sander’s conduct was in breach both of paragraphs 2(b) and 4.

[74]In connection with his correspondence with Carrickfergus he was plainly acting in his official capacity. He was a leader of a council corresponding with the Chief Executive of another council concerning a request which had been made in perfectly civil terms. It called for a response which paid due respect to the author of the request and its terms. It got an off the cuff, unreflective, hand written, response which, the Case Tribunal was entitled to find, showed a complete lack of respect for either the author of the request or the request itself. Furthermore they were entitled to conclude, as I would have done, that his second hand written response compounded that lack of respect and that his third response, whilst in small part reflecting understandable surprise at the Carrickfergus Chief Executive making what appears to have been a party political point, was little more than an ill tempered rant showing no respect to Carrickfergus, its members or officers. They were also entitled to conclude, as I would have done, that for a leader of a council to respond in this way on no less than three occasions was such as could not but result in a reasonable person considering that the reputation of Peterborough with Carrickfergus would be significantly damaged and thereby satisfy the requirements of paragraph 4.

[75]As for his comments to the media, on his own case he made offensive comments to Mr McCambridge. They included the use of a mild expletive. The Case Tribunal were entitled to conclude, as I would have done, that his comment to the BBC was highly disrespectful and offensive to the Cochrane family and to the Irish people as a whole. Furthermore, its mode of expression, though not containing any expletives, was so offensive and lacking in any reflective content that they were entitled to conclude, as I would have done, that it was such as would cause the reputation of Peterborough to suffer in the mind of a reasonable onlooker. Accordingly, in my judgment the case tribunal were entitled on the facts to conclude that Councillor Sanders had broken the code of conduct in these two respects.

Would such a conclusion and/or the imposition of a sanction constitute breach of Article 10?

[76]On a superficial level it is obvious that to penalise Councillor Sanders because of what he has said or written does constitute a breach of Article 10(1). That, however, is not the gist of Mr Béar’s complaint. What he says is that in considering whether such infringement is justified pursuant to Article 10(2) Councillor Sanders was entitled to the extremely high level of protection which the authorities demonstrate must be given to political expression because of its fundamental importance for the maintenance of a democratic society. In my judgment Mr Beal is correct when he argues that each of the forms of expression engaged in by Councillor Sanders falls short of being the expression of a political view attracting that high level of protection. However my conclusion is not quite for the reasons given by him.

[77]Mr Beal essentially argues that what a councillor says in the course of the discharge of his office can never amount to political expression. He says that a Councillor is entitled to the additional protection given to political expression only when he is acting as a politician rather than in his official capacity as member of a council. He says that when he is acting in that capacity the statutory scheme holds sway without exception. In my judgment that is not the correct distinction. As Mr Béar points out, members of councils are politicians and their actions as such are often political actions. An obvious example is when they are speaking in council meetings where robust political debate may reflect lack of respect for political opponents or may result in views being expressed which many might regard as offensive. It cannot be the case, in my judgment, that the sole source of obligation in that context is the code of conduct unmediated by consideration of Article 10.

[78]In my judgment the reason that Mr Beal is right in his contentions is that there was nothing in what Councillor Sanders wrote to Carrickfergus which amounts to a political expression of views at all. Similarly, looked at as a whole, there was nothing in what the Case Tribunal found that Councillor Sanders said to the Belfast Telegraph or, more importantly, to the BBC which could properly be described as political expression of views.

[79]As for the former, what he wrote on those three occasions was written as leader of the council responding to a request from Carrickfergus. In my judgment it amounts to little more than an expression of personal anger at his time being wasted by Carrickfergus’s request. It does not contain anything which could be dignified with the description of a political opinion or the importation of information.

[80]Similarly what he said to the BBC, in my judgment, amounts to no more than a personal attack upon the family of Paul Cochrane and the people of Northern Ireland. It is little more than vulgar abuse.

[81]I accept, of course, that there is a political position which opposes the call for a public inquiry into the unexplained deaths of soldiers in training camps. Furthermore, the families of such unfortunate young people, who engage in such campaigning, are not immune from political criticism or from the view contrary to theirs being expressed, perhaps even forcibly. Similarly there is a political position which is a reflection of resentment and war weariness which criticises the two contending sides in Northern Ireland for being “the cause” of the deaths of many British soldiers and which calls for the disengagement of the British from Northern Ireland leaving the contending factions to sort out their own problems. I have no doubt that these political opinions can be expressed in forceful and perhaps on occasions in offensive terms. The overwhelming impression, however, of Councillor Sander’s correspondence and his broadcast utterances is that they are the ill tempered response of a person who thought that he should not be being troubled by the request of Carrickfergus and who has chosen to express his annoyance in personal and abusive terms directed, in the main to Carrickfergus council and to the Cochrane family, as a by product to the Irish people and, to an even more insignificant degree, reflecting at all on the question of the Troubles. In my judgment, therefore, Councillor Sanders’s statements do not attract the high degree of protection to which the expression of political opinion is fully entitled. Accordingly, whilst I agree that Article 10 is engaged, that the decision of the Case Tribunal prima facie infringes it, and that the Case Tribunal was wrong not to consider Article 10 I shall engage with the merits and consider whether Article 10 (2) applies. I shall do so on the footing that Councillor Sanders letters and statements do not attract the high level of protection given to expressions of political views. Was such interference with his Article 10(1) rights as there was justified in terms of Article 10(2)?

[82]I have already concluded that the provisions of the code of conduct were “prescribed by law”.

[83]The question is whether they were “necessary in a democratic society for the protection of the rights of others”. This calls for the following questions to be asked:(a) was the legislative objective behind these provisions sufficiently important to justify limiting freedom of speech?

(b) were the measures adopted rationally connected to the legislative objective? and

(c) were the means used to impair the right or freedom of speech no more than is necessary to accomplish the legislative objective? (see R (Daly) v Secretary of State for the Home Department

(2001) 2 AC 532

[84]As Mr Beal has pointed out, the adoption by Parliament of the statement of principles and establishment of a code of conduct arose from the publication by Lord Nolan of the third report of the Committee of Standards in Public Life in July 1997 (CM 3701-1). This report called for a new start based on an ethical framework the effect of which would be a radical change in the ethical framework within which local government operated. It was stated that it was important that local authorities themselves should adopt their own codes of conduct but had to be with a degree of consistency across local authorities and an assurance that certain minimum standards would be attained by any individual code. The government in response introduced into Part III of the Local Government Bill clauses relating to the conduct of local government members and employees. The purpose of the legislation was to encourage and impose certain minimum standards of behaviour in respect of local government. No challenge is made by Councillor Sanders to the scheme. It is, therefore, implicit that he accepts that the system whereby members are obliged to undertake that they will comply with the code of conduct and will be subject to the jurisdiction of the Case Tribunal in the event that they are not satisfies, in principle, the three conditions for a lawful interference with free speech in a democratic society. I have concluded that the words and writing of the appellant amounted to no more than expressions of personal anger and personal abuse and did not constitute political expression which attracts the higher level of protection. In those circumstances, in my judgment the finding by the Case Tribunal that the appellant had breached the code of conduct and its notification of that finding to his local authority constitute an interference with freedom of expression but one which was lawful pursuant to Article 10(2).

[85]I recognise that, were this machinery to be used against a member of a local authority who did give expression to political opinions of an offensive nature or expressed political opinions in an offensive way, then there might be circumstances in which the Case Tribunal could not find a breach of the code of conduct without involving itself in an unlawful infringement of the rights protected by Article 10. However, as a matter of fact, this is not such a case.

Was the sanction imposed wrong?

[86]It was common ground that the Case Tribunal was not referred to the relevant guidance on the circumstances in which, respectively, disqualification, suspension and partial suspension may be appropriate following a finding of breach of the code of conduct. As for disqualification it says as follows:

“6. Disqualification is the most severe of the options open to the case tribunal. Factors which may lead to this option include one or more of the following: 6.1 The respondent having deliberately sought personal gain (for either himself or some other person) at the public expense by exploiting his membership of the body subject to the code of conduct. 6.2 Repeated breaches of the code of conduct by the respondent. 6.3 Misusing power within the authority or use of public funds for political gain. There may be other factors not listed above which also merit disqualification. Nor will disqualification always be appropriate even if the listed factors are present. 7. In deciding the length of any disqualification the case tribunal will not usually take into account the electoral cycle of the particular body. 8. The case tribunal is not likely to disqualify a respondent for less than one year.”

As for suspension it says as follows:

“9. Suspension is appropriate where the circumstances are not so serious as to merit disqualification but sufficiently grave to reassure the public and impress upon the respondent the severity of the matter and the need to avoid repetition. 10. Factors which may lead to this option include: 10.1 Concern that the respondent’s actions have brought the body on which he or she serves, or the public service generally into disrepute. 10.2 Concern as to the likelihood of further failures to comply with the code of conduct by the respondent. (if there were such failures to comply after a period of suspension then it is highly likely that a future case tribunal faced with a reference about that further breach will opt to disqualify the respondent.) Partial suspension 11. This option might be appropriate where there is a concern that the respondent is judged to have difficulty in understanding or accepting the limitation placed on his or her actions by the code of conduct in relation to a particular matter or area of activity but the difficulty does not affect the respondent’s ability to act properly in relation to other matters….”

Partial suspension

[87]In my judgment it was the plainest possible error on the part of the ESO not to draw the Case Tribunal’s attention to this important statement of guidance. Had he done so they would have to have considered that the types of conduct which they found against Councillor Sanders did not fall within that which would, at first blush, call for a disqualification but fall within the type of conduct which would attract either a suspension or a partial suspension, in particular the latter, because the breaches complained of occurred when Councillor Sanders was performing the role of Leader of the Council acting under delegated powers. Not having done so when they should have, this court is entitled to engage with the merits and consider the sanction having regard to that guidance.

[88]The guidance indicates that the Case Tribunal will not usually take into account the electoral cycle of the particular body. There were, in my judgment, exceptional circumstances, of which the Case Tribunal was unaware, which made the electoral cycle of great importance in this case. In my judgment it is clear that the election at which Councillor Sanders was re-elected could not by any means have been a routine matter. On the contrary it is, I infer, obvious that the circumstances of his re-election were highly unusual. These events blew up in June 2003. Councillor Sanders was the leader of the Council and a high profile local politician. These events gained significant local notoriety, in particular in the Peterborough Evening Telegraph. As a result of these events national Conservative Party political figures were forced to make statements, the Council passed a resolution removing Councillor Sanders as leader, and he was expelled from membership of the Conservative Party in a manner sufficiently high profile as to warrant a two page article on the BBC News website for 3 December 2003. Furthermore, it is clear from the letter of 16 June and from what he said as reported on the website that he regards plain speaking as part of his political stock in trade. He was re-elected at the council election for his ward a few months later as an Independent. It must, as a matter of inference, be the case that the electorate were aware of his peculiar personal position and recent history when casting their votes and re-electing him as Councillor. The Case Tribunal was unaware of all of this, save that in fact Councillor Sanders had been re elected to the Council in May 2004, when it took its decision to disqualify Councillor Sanders as a council member.

[89]In the light of these two defects in the process by which the Case Tribunal reached its decision on sanction, I will engage with the merits and consider whether in the light of these matters the decision of the Case Tribunal was wrong. In my judgment it was. It is a very serious thing indeed for a non elected body, such as the Case Tribunal, to disqualify from membership of a council a person who has been elected to that body by the electorate after the events complained of. In effect the case tribunal is overriding the wishes of the electorate. Whilst it cannot be said that this would never be an appropriate course for the case tribunal to take it, in my judgment, where the matter complained of was, by inference, put before the electorate as an issue and they have delivered their verdict through the ballot box it cannot be right to override that verdict. Accordingly, in my judgment the decision to disqualify Councillor Sanders was wrong. An appropriate and proportionate sanction would have been one of suspension of Councillor Sanders from the role in which the breaches of the code of conduct occurred. Accordingly, I uphold the appeal to the extent that I substitute a partial suspension for a period of one year from 7th September 2004, from holding the position of the role of leader of the council upon Councillor Sanders in place of the decision of the Case Tribunal disqualifying him for a period of two years from that date.

Conclusion

[90]I dismiss the appeal against the finding that Councillor Sanders was in breach of the code of conduct but I uphold his appeal against the sanction by imposing a partial suspension upon him of one year from 7th September 2004, from holding the office of leader of the Council.