Hare v Marcar & Anor [2006] EWHC 82 (Admin)

[2006] EWHC 82 (Admin)Case No CO/10117/2005IN THE HIGH COURT OF JUSTICEQUEENS BENCH DIVISONADMINISTRATIVE COURTVenue Royal Courts of Justice, Strand, London, WC2A 2LLDate 26 January 2006
Before
THE HONOURABLE MR JUSTICE SILBER
Between
ANTHONY CONNAL HAREAppellant
The Appellant in Person for in personSamantha Broadfoot (instructed by The Standards Board for England) for the RespondentNigel Giffin QC (instructed by Bedford Council) for IntervenersHearing Hearing date: 16 January 2006JUDGMENT

I. Introduction

[1]Anthony Connal Hare ("the appellant") appeals under section 79(15) of the Local Government Act 2000 ("the Act") against a decision made on 11 November 2005 ("the decision") of a Case Tribunal ("the Tribunal") drawn from the Adjudication Panel for England suspending the appellant from being a local councillor for a period of 6 months from the date of the decision. The appellant is an elected independent member of Bedford Borough Council ("the Council"), who are the Interveners on this appeal.[2]The Tribunal had upheld the conclusion of the respondent who was the Ethical Standards Officer ("the ESO") appointed to deal with this case. He had concluded that the appellant had breached paragraph 2(b) of the Code of Conduct in his letter of 19 January 2004 by failing to treat officers with respect but it did not uphold any other complaint against the appellant. No challenge is made to any findings of the Tribunal other than the suspension order.

II. The Legislative Background of the Act

[3]The Standards Board exercises jurisdiction under Part 3 of the Act, which has the following material features – (a)There is an obligation on local authorities to adopt a code of conduct ("the Code"), incorporating the mandatory provisions of a Model Code of Conduct promulgated by the Secretary of State, which their elected members must undertake to observe: ss 50-52. In this instance, the Council's Code was in terms identical to the Model; (b)A complaint of breach of the Code may be made to the Standards Board, which will decide whether to refer it to one of its ethical standards officers ("ESOs") for investigation: s 58; (c)After his investigation, the ESO is empoweredamong other disposals to refer the matter to the President of the Adjudication Panel established under s 75, for adjudication by a Case Tribunal: s 59. The function of the Case Tribunal under s 79 is to decide whether there has been a failure to comply with the Code, and (if so) whether the nature of the failure is such that the councillor should be suspended or disqualified, or whether there should be no such sanction but simply a formal notice of the failure. The local authority must give effect to any such sanction imposed by the Case Tribunal; (d)Suspension may be either by way of a full suspension from acting in any way as a councillor, or may be partial (e.g. suspension from membership of a particular committee): ss 79(4)(a), 83(7). The maximum period of suspension is 1 year, or the unexpired remainder of the individual's term of office if shorter: s 79(5). Disqualification as a councillor is for a maximum of 5 years: s 79(6).

III. The Background to the Complaint

[4]Three complaints were made in the course of 2004 against the appellant. One was made jointly by the leaders of the Council's Labour and Conservative groups while a second was brought by an Independent councillor, and the third was brought by the Council's statutory monitoring officer, Mr Gough. The ESO reported on 24 June 2005, that the appellant had breached the Code and he duly referred the matter for adjudication by a Case Tribunal. The Case Tribunal heard evidence and it made its oral findings of fact on 7 October 2005, on which date it also heard submissions and gave its decision as to whether the facts found amounted to breaches of the Code. On 11 November 2005, the Tribunal reconvened to hear submissions as to penalty. On the same date, the Tribunal issued its decision. Full reasons for the decision dated 25 November 2005 were issued on 28 November 2005.[5]The complaint leading to the suspension arose from a dispute between the Council and a local resident, Mrs Barnett, who was claiming that by adverse possession, she had gained the title to certain land of which the Council was the registered owner. The Council intended to sell the land, claiming that it, and not Mrs Barnett, was the owner. The dispute was dealt with under the Land Registry's arbitration scheme, by which the Council's case succeeded at a hearing held in April 2004. Originally Mrs Barnett had solicitors acting for her, but they ceased to act and in May 2003 the appellant advised the Council that he was then representing Mrs Barnett, although he does not have any legal qualification. It appears that Mrs Barnett paid the appellant for his services. The appellant said that he would be representing Mrs Barnett in a private capacity and not in his capacity as a councillor. The behaviour which led to the order for the appellant's suspension occurred while he was acting in that capacity. It is therefore necessary to explain the dispute between the Council officers and the appellant, who was acting for Mrs Barnett.[6]In the course of the dispute, the appellant sought to make use of what had been said about the land in a report to the Council's Executive concerning its proposed sale. On Mrs Barnett's behalf, he claimed that what had been said in that report was inconsistent with the case that the Council was then advancing in response to the adverse possession claim. The Council contended that this claim was simply wrong, but that is immaterial for present purposes. The problem was that the relevant report (which also dealt with matters such as the price that the Council expected to receive for the land) was marked as being not for publication because it contained "exempt information", and it had been considered during a part of the meeting, which was not open to the public. The Council was continuing to treat the report as confidential, and the appellant had only been able to obtain access to it in his capacity as a councillor. It was therefore a matter of concern to Council officers that the appellant, acting in a private capacity as Mrs Barnett's representative, was apparently making use of the Council's confidential information obtained by him in his capacity as a councillor.[7]Although the ESO took the view that the appellant's use of the confidential report involved breaches of the Code in various respects, the Case Tribunal ultimately took a different view, apparently on the basis that any information actually used by the appellant had sufficiently entered the public domain by the relevant time so that it was no longer confidential. However, the Case Tribunal also held that officers were "very rightly concerned" about the potential for a breach of confidence and that their concerns at the time were "amply justified". That is the background to the appellant's breach of the Code which the Tribunal held to have occurred.[8]The breach of the Code consisted of the appellant's response, in a letter dated 19 January 2004, to a letter dated 14 January 2004 which was sent to him by Mr Tim Fordham, a lawyer employed by the Council. Mr Fordham wrote a reasonable letter to the appellantsetting out the references which the appellant had made to the confidential report and saying that the information in it remained confidential, but contending that the appellant appeared to be using it to strengthen Mrs Barnett's bargaining position. Mr Fordham drew attention to the relevant provisions of the Code, and asked for confirmation from the appellant that he would not further use or communicate any information obtained in confidence. Mr Fordham also suggested that, in the light of his use of confidential information to date, the appellant might wish to consider whether it was appropriate for him to continue to act in the case.[9]The appellant's response was to write a letteraddressed to Mr Fordham of 14 January 2004, which did not engage with the issue of confidentiality, but which made very serious accusations against Council officers and which ultimately led to the finding that the appellant had acted in breach of the Code and the suspension order, which is under challenge on this appeal. The letter of 14 January 2004 sent by the appellant stated with emphasis added that:
"Further to your slovenly letter of 14 January 2004, signed by you as acceptable. I do not recall attending the meeting on 4 September 2002, and did not retain the agenda or reports. The minutes are scant as regards the said land and apart from the matter regarding homelessness doubt that I would have remained, had indeed I attended for long. I certainly do not recall that Executive meeting where the subject of Land at Mill Land was discussed, and anyway I had no interest whatever in that matter at that time. Your reference to s3 (a) of the Code of Conduct is interesting. From the correspondence in this matter it is entirely clear I was unaware of the content of that specific Executive report until about August 2003. The content of that report seriously questions the veracity of the letter (particularly at 2.3 & 3) written by Heather Rigby to the Land Registry dated 30 June 2003, which is long after the said Executive meeting and is deliberately contrary to it's decision, the "
Joyce" report, and council policy. It appears she and other officers have been peddling a deliberate lie to dupe and/or to gain unfair advantageagainst an elderly widow lady. I am legally duty bound to ensure such conduct, unfair advantage and lie, is brought to light, or negated. Clearly your letter, is seen by me, and doubtless by others, as justifying and defending, and fully intending to cover up such conduct and lie. A further matter, if, which is denied, the council has continued to maintain the land as a wildlife woodland habitat, together with the maintenance regime, incurring the obvious "investment" in time, cost, and social capital; who made the decision, without any reference to members, to "write off and dispose" of such valued amenity/asset. In addition, and with that knowledge, who then agreed to waste further funds fending off the claim by Mrs Barnett with a "defence" known to found on invention and falsehood. What does equity say about "clean hands"? To embark on a matter to deliberately mislead the Land Registry, and it would also appear Mr Jones of Counsel, and maintaining such deception, and to deliberately mislead members (04.09.02), without any attempt whatsoever to correct that, is entirely wrong, and I would respectfully suggest you look to your own conduct before attempting to corner me……"[10]The Case Tribunal found that the appellant's conduct in writing this letter constituted a breach of paragraph 2(b) of the Code, which states that:
"A member must treat others with respect."
[11]The sanction of 6 months' suspension was imposed by the Tribunal after having heard submissions from the appellant and a representative of the ESO in response to this breach in the light of the additional aggravating factors referred to in the Case Tribunal's decision which I set out in full in paragraph 20 below.

IV. Procedural Matters

[12]An expedited hearing of this appeal was directed by Ouseley J when he refused an application by the appellant to stay his suspension pending the appeal.[13]An application by the Council to intervene was made by letter dated 22 December 2005, when it was thought that neither the Adjudication Panel nor the Standards Board was likely to be represented at the hearing. On 9 January 2006 Cox J ordered that the application should be referred to the Judge hearing the appeal but Collins J granted permission for the Council to intervene on the basis that it would neither ask for nor be ordered to pay any costs in relation to this appeal.[14]The appellant has appeared in person and has presented his case with care and courtesy. The respondent has been represented by Miss Samantha Broadfoot while Mr Nigel Giffin QC has appeared for the Council. I am grateful to all of them for their helpful submissions. The appellant also sent me a letter dated 19 January setting out further submissions, which I have taken into consideration.[15]The appellant seeks to challenge the sentence imposed on him both on the basis it was excessive and because of procedural reasons. I deal with each of those matters in turn starting with the procedural challenge.

V. The Procedural Challenge

[16]The appellant makes a number of complaints about the way in which Mr David Abrahams, who is an employed barrister within the SBE' s legal department, conducted himself while acting on behalf of the Ethical Standards Officer at the Tribunal hearings.[17]I have the benefit of a witness statement from him together with an unofficial transcript of the proceedings dealing with penalties to be imposed on the appellant and which had been prepared by a member of the staff at the Standards Board, who had listened to a copy of the tape recording of the hearing provided by the Adjudication Panel for England. A copy of it was provided to the appellant, who has not objected either to its use or to its contents. In those circumstances, I accepted Miss Broadfoot's contention that she was entitled to rely on the transcript in answer to the allegations made by the appellant.[18]The first complaint made by the appellant was that it was wrong or inappropriate for Mr Abrahams to make submissions on sanction and so it becomes necessary to ascertain precisely what he said. What Mr Abrahams did was to direct the attention of the Panel to the Guidance before saying that it was not for him as the ESO "to suggest a particular penalty although our practice is to highlight matters that are either of mitigating or aggravating effect and to draw your attention to any paragraphs in the guidelines which seem particularly relevant"[19]Mr. Abrahams then drew the attention of the Tribunal to these matters and to the decision of Sullivan J in Neville Sanders v Steven Kingston [2003] EWHC 213 (Admin).[20]Mr Abrahams suggested that the failure of the appellant to apologise to Mr Fordham was an aggravating factor and a matter of serious concern because it suggested that there was a risk of further breaches by the appellant of the Code because if the appellant "genuinely accepted that [his] letter was unacceptable he would have taken steps to put right the damage". He also drew the attention of the tribunal to the fact that in the Sanders case Sullivan J was critical of an observation made by the tribunal in that case to the effect that a single disrespectful letter was so serious it alone merited a substantial period of disqualification. Mr. Abrahams said that the relevance of that remark "to this particular case is I suspect obvious" and that comment was clearly helpful to the appellant.[21]He submitted that the appellant's conduct in sending this letter of 14 January 2004 was not an inadvertent breach. Mr Abrahams acknowledged that the possibility of future breaches was a relevant factor for the Tribunal, and as I will explain in paragraph 27 below, this is correct. He also commented on the written submissions of the appellant and he characterised a letter of 19 January 2004 as "an extremely serious example of disrespectful conduct".[22]In my view, there is nothing wrong with the stance Mr Abrahams adopted especially as he made fair and even-handed points, which were worthy of consideration by the Tribunal and very significantly they were to be followed by detailed submissions of the appellant, who could and did then respond and put his side of the case which is what he did. Thus I am unable to accept the appellant's first criticism of Mr. Abrahams[23]Second, it is said by the appellant that Mr Abrahams did not explain that the Sanders case concerned matters other than a single letter. What Mr Abrahams did say was that "the letter combined with misconduct at the interview would have merited a period of suspension of up to six months". Thus there is no merit in that point especially as the Chairman of the Tribunal said that he understood Mr Abraham to be saying to the Tribunal that the Judge in Sanders "did not agree .with the proposition …. that it would be appropriate to disqualify on the back ofjust one letter". I do not consider that Mr Abrahams acted incorrectly in the way in which he dealt with the Sanders case, which he quite properly drew to the attention of the Tribunal and the Chairman's comments show that it was properly understood by him.[24]The appellant made a number of other criticisms of Mr Abrahams' behaviour. I do not consider that there was any merit in any of them. Indeed it is of great importance that the appellant was able to address the Tribunal after Mr. Abrahams had finished and he could then answer and seek to rebut each or any of Mr. Abrahams' points.[25]The appellant also explained about the failure of the tribunal to delay the start of the suspension so that the appellant could appeal but I do not consider that there is any merit in that point because the tribunal were quite entitled to conclude that an immediate suspension was required for the appellant's breach of the code. It is interesting to note that Ouseley J refused to stay the suspension pending appeal. VI. The Substantive Challenge[26]The appellant contends that he should not have been suspended or, if he had been suspended, the period of suspension should have been for a shorter period than six months. It is appropriate to bring together at this stage some of the applicable principles which, are relevant to the determination of this appeal and which take into account the Guidance given by the Adjudication Panel for England ("the Guidance") as well as judicial decisions.[27]The relevant principles are that:(a) any action on which a Case Tribunal decides where a respondent has been found to have failed to comply with the Code of Conduct "will be directed towards upholding and improving the Standards of Conduct expected of Members of the various bodies to which the Codes of Conduct apply. Thus, the action will be designed both to discourage or prevent the particular respondent from any future non-compliance but also to discourage similar action by others" (Paragraph 5 of the Guidance).(b) "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" (paragraph 9 of the Guidance). (c ) "Factors which may lead to [suspension] include (a) concern that the respondent's actions have brought the body on which he or she serves, or the public service generally into disrepute [and] (b) concern as to the likelihood of further failures to comply with the Code of Conduct by the respondent .."(Paragraph 10 of the Guidance). (d). "Circumstances [where it might be appropriate not to impose disqualification, suspension or partial suspension] include ...an inadvertent failure to abide by the Code of Conduct [and] an acceptance that despite the lack of suspension or partial suspension, there is not likely to be any further failure to comply on the part of the respondent" (Paragraph 13 of the Guidance). (e) Courts "15…should not interfere with the penalty imposed by the Tribunal unless [it is] satisfied there has been some error of principle or that the penalty is 'plainly wrong'. When considering whether [a court is] so satisfied [the court] must pay due deference to the Tribunal's expertise in matters relating to Local Government" (per Sullivan J in Neville Sanders v Steven Kingston [2005] EWHC 2132 Admin )[28]The appellant challenges the penalty and he points out correctly that nine complaints were originally made against him that only one of those was upheld and that this complaint related to a single letter, which was not copied to anybody else. He said that he now regrets what was said in the letter of 19 January 2004. The appellant pointed out that this was the first complaint against him after he had been a Councillor for six years The appellant explained that he felt bitterly aggrieved that the Council had in his view acted inconsistently by stating on the one hand that the land in question "is maintained as a wildlife habitat" or for similar purposes while on the other hand it was seeking to sell the land for commercial purposes. There were, however, a number of serious aggravating features in relation to the appellant's conduct according to the Tribunal.[29]The reasoning of the Tribunal was expressed in this way in paragraph 4.3 of its Decision where it stated that:
"4.3.1 The Case Tribunal had the benefit of detailed submissions from the respondent. However at no stage has he apologised to Mr Fordham for his accusations and his apology to Mrs Rigby was expressed in conditional terms if he had caused offence. There was no recognition of the appropriate nature of his language or the gravity of his allegations. Mr Abrahams [who appeared for the ESO ] helpfully drew the Tribunal's attention to the High Court cases relating to Mr Sanders and the dicta of Mr Justice Sullivan in the case concerning the appropriateness of disqualification. The Tribunal considered the terms of the guidance provided by the President and in particular paragraphs 10.2-suspension being appropriate where there was a risk of further breach and 13.2 a decision not to impose a penalty if there is little likelihood of a future failure. 4.3.2. The Tribunal considered that the failure to apologise was a significant aggravating feature and that, together with the lack of understanding of the gravity of his allegations was a matter of deep concern. Given the gravity of the allegations of an essentially criminal nature against professional staff in senior positions of trust in a major public body a reprimand would be wholly inadequate. The lack of understanding and insight shown by the Respondent caused the Case Tribunal serious concern that this conduct was likely to be repeated. 4.3.3. Accordingly the Case Tribunal concluded that a significant period of suspension was the appropriate sanction in these circumstances and determined that a suspension from the service of the Council for a period of 6 months from the date of hearing was appropriate. The decision of the Tribunal was unanimous"
. VII. The Substantive Challenges[30]The appellant seeks to challenge the order for his suspension by pointing out first that in the Sanders case, Sullivan J said: "4.5. Having regard to the Guidance, I consider that a short period of suspension for a maximum of six months would have been the appropriate response to the Appellant's conduct in the interview and in writing the letter. For that letter alone a reprimand would probably have sufficed…".[31]In determining the penalty in all these cases, the penalty to be imposed has to take account of all the circumstances and these vary greatly from case to case. Nevertheless, it is important that there should be some consistency between penalties imposed in different cases by the Tribunal and so it is a worthwhile exercise to compare the appellant's case with that of Councillor Sanders. In my view, there are very substantial differences between the conduct of Councillor Sanders and that of the appellant. First, the worst that Councillor Sanders did in his letter was to make reference to officers having adopted "bully boy methods" in relation to an investigation of a possible benefit fraud. As Sullivan J explained in that case about that letter: "in terms of unfairness, unreasonableness and its bullying tone it is well towards the lower end of the spectrum of abusive letters not infrequently received by council officials who were merely attempting to carry out their public duties…..On no rational basis could it be said that this letter was amongst the worst of its kind"[33].[32]Although the letter in that case was culpable, it is not in the same category as the repeated allegations made by the appellant in his letter of 19 January 2004 to the effect that officers of the Council, who were professional lawyers, had sought deliberately to lie and to mislead a number of people including the Land Registry, which was acting in a judicial capacity, as well as covering up these lies.[33]The accusations made by the appellant in that letter were that:(i) Ms Heather Rigby, a principal conveyancer and other unnamed officers, were guilty of "peddling a deliberate lie to dupe/or to gain unfair advantage against an elderly widow lady";(ii) Mr Fordham, by his letter was guilty of "justifying and defending, and fully intending to cover up such conduct and lie";(iii) Officers of the council were guilty of mounting a defence to Mrs Barnett's claim which was "known to be found on invention and falsehood" and of deliberately misleading the Land Registry, and members of the Council without any attempt whatsoever to correct it.(iv) These accusations were apparently directed towards Mr Fordham (at least), since they were followed by an invitation to "look to your own conduct".[34]A second difference between the two cases is that there was a good deal of mitigation in Councillor Sanders' case because he wrote the letter at a time when he was under considerable pressure from other events and he had recently returned from hospital after having suffered a heart attack. The appellant does not have similar mitigation.[35]Finally although Councillor Sanders was held to have acted in what he genuinely believed to be in the best interest of the constituent for whom he was representing as his Ward Councillor, the appellant in this case was not acting in that capacity but instead he was engaged in earning money representing someone. .[36]The appellant raises a number of issues and the more cogent were that:(a) he saw Ms Rigby three weeks after the letter of 19 January 2004 had been sent and she did not complain. This does not lessen the seriousness of his conduct in making extremely serious and unjustified allegations for which he had not apologised. He has expressed regret for the contents of the letter of 19 January 2004 but that is not the same thing as apologising soon after writing the letter, which he did not do;(b) his constituents will suffer by his suspension especially as his fellow councillor for his Ward has some conflicts of interest which preclude him from becoming involved in some matters concerning their constituents. The Guidance makes clear that the crucial factor when considering the punishment for a council member who behaves as the appellant did, is to impose penalties "directed towards upholding and improving the Standards of Conduct expected of Members;(c) the Tribunal misdirected itself as to the gravity of the appellant's conduct but the allegations made by the appellant against senior named officials were exceedingly serious, such as stating, for example that "officers have been peddling a deliberate lie to dupe and/or to gain unfair advantage against an elderly widow lady". In my opinion, it is not easy to envisage many more serious allegations against Council officials than those allegations contained in the letter of 19 January 2004;(d) the Tribunal erred in attaching importance to the risk of the appellant failing to comply with the Code in future. It must not be forgotten that the Tribunal had the opportunity of hearing the appellant when he appeared before them and as fact-finders, they were entitled to reach a decision based on their evaluation of the appellant, whose submissions they heard over a substantial period of time. They were also entitled to take into account his failure to apologise properly to the people referred to in the letter of 19 January 2004. The Tribunal was entitled to reach the conclusion it did on this issue.[37]The rationale of the Tribunal's justification for the imposition of a term of 6 months suspension was their conclusion that it:
"considered that the failure to apologise was a significant aggravating feature and that, together with the lack of understanding of the gravity of his allegations was a matter of deep concern. Given the gravity of the allegations of an essentially criminal nature against professional staff in senior positions of trust in a major body a reprimand would be wholly inadequate. The lack of understanding and insight shown by the Respondent caused the Case Tribunal serious concern that this conduct was likely to be repeated"
VIII. Conclusion 38.In my opinion, there were serious aggravating features in this case namely, first "allegations of an essentially criminal nature against professional staff in senior positions of trust ina major body", second the failure of the appellant to apologise , third the view of the Tribunal as the fact finders, who had seen and heard the appellant that "the lack of understanding and insight shown by the [appellant] caused the Case Tribunal serious concern that this conduct was likely to be repeated". The Tribunal had the expert knowledge to determine how this conduct should be punished in the light of the terms of the Guidance. In my view, the appellant falls a long way short of showing that the order of disqualification of 6 months imposed on him was "plainly wrong". Thus notwithstanding the detailed and sustained submissions of the appellant, this appeal must be dismissed.