London Fire and Emergency Planning Authority, R (on the application of) v The Secretary of State for Communities and Local Government [2007] EWHC 1176 (Admin)

[2007] EWHC 1176 (Admin)

Case No CO/3936/2006

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

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

Date 18/05/2007

Before

THE HONOURABLE MR JUSTICE STANLEY BURNTON

THE QUEEN on the application of

Between

LONDON FIRE AND EMERGENCY PLANNING AUTHORITYClaimant

THE SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTDefendant

ANDREW MICHAEL SLATER (2)Interested Parties

Michael Supperstone QC, James Cornwell (instructed by Davina Fiore, Head of Legal & Democratic Services) for Claimant

Robin Tam QC and Caroline Neenan (Instructed by the Treasury Solicitor) for Defendant

Nicholas Toms (instructed by Thompsons Solicitors) for Interested Parties

Hearing Hearing dates: 19, 20 April 2007

Judgment

Stanley Burnton J:

[1]In these proceedings, the Claimant, the London Fire and Emergency Planning Authority (“the Authority”), seeks judicial review of the decisions of the Defendant dated 24 February 2006 to allow the disciplinary appeals of the Interested Parties, Paul John Williams (“Mr Williams”) and Andrew Michael Slater (“Mr Slater”) against its disciplinary awards of dismissal. Mr Williams and Mr Slater were fire fighters employed by the Authority. Both were dismissed by the Authority following serious breaches of the Authority’s rules on outside employment. The Secretary of State did not interfere with the findings that the Interested Parties had committed disciplinary offences, but he reduced the sanctions to a reduction in rank from Sub-Officer to Firefighter in the case of Mr Williams and to 3 months’ stoppage of pay and a final warning in the case of Mr Slater.

The facts

(a) Background and employment terms

[2]The Authority’s responsibilities include, in addition to the fighting of fires and dealing with other emergencies, the discharge of extensive statutory powers and duties to enter into and to inspect business and other premises to ensure that they comply with fire safety legislation. The Authority also has statutory powers and duties to enforce fire safety legislation, if necessary through criminal prosecution.

[3]Mr Williams and Mr Slater joined the then London Fire and Civil Defence Authority as Firefighters in 1986. Mr Williams was promoted to Sub-Officer in 2000. At the times of their offences Mr Williams was a fire safety inspecting officer with the Hillingdon Borough Fire Safety Team and Mr Slater was stationed at G40 Hayes Fire Station (Red Watch), having had experience in fire safety. Prior to the incidents that were the subject of the disciplinary proceedings both officers had clean disciplinary records.

[4]As a fire safety inspecting officer Mr Williams’ duties included carrying out inspections of premises under the Fire Precautions Act 1971 and the Fire Precautions (Workplace) Regulations 1997, identifying any contraventions of the legislation, serving enforcement notices, setting compliance deadlines, carrying out follow-up inspections, and considering and advising on whether enforcement proceedings should be pursued (including prosecutions in the Magistrates’ Court).

[5]Both Mr Williams and Mr Slater were appointed under appointment letters which stated: Your appointment is subject to the provisions set out from time to time in the Staff Code, the Standing Orders and Regulations and Rules of the Authority in force from time to time, in the Scheme of Conditions of Service of the National Joint Council for Local Authorities’ Fire Brigades, as applied to operational members of the Brigade...; and in any local agreements ... as notified to you including Brigade Orders and Pay and Conditions Circulars and other Brigade instructions from time to time in force. Certain aspects of your employment, in particular the provisions relating to ... discipline, are subject to regulations made by the Secretary of State for Home Affairs. The current provisions are contained in... the Fire Services (Discipline) Regulations 1985...

[6]The letter particularly drew attention to several provisions, including under “Private work”: The Authority’s requirements relating to private work are set out in the Scheme of Conditions of Service and NJC for Local Authorities’ Fire Brigades (paragraph 8(1) of section IX) and the Pay and Conditions Circular on Outside Employment. Under these provisions, staff on the shift or day duty system are not permitted to undertake outside employment (including self employment) for hire or gain or carry on any trade or business without the express permission of the Chief Fire Officer.

[7]The National Joint Council for Local Authorities’ Fire Brigades Scheme of Conditions of Service provides at paragraph 8:

“Prohibition on outside employment A whole time member of a brigade shall not hold any other office or employment for gain or reward or carry on any trade or business without the express permission of the fire authority which may be subject to any restrictions or conditions it thinks fit.”

[8]Secondary employment among the Authority’s employees is governed by a Personnel Note entitled “Outside Employment” (“the Note”), which is a mandatory instruction. The “Key Point Summary” states: Authority’s requirements The Authority requires that efficiency and performance of official duties shall not be impaired by outside employment. It must be able to rebut allegations that its integrity is being impaired or that the activities of its staff are prejudicial to the Brigade’s reputation. Staff must not therefore undertake activities which;• may lead to suspicion of undue favour or improper influence being exercised through contracts, or any kind of consent, permission, license etc. which the public seek from the Authority or any activity which may bring the Authority into disrepute. … Undertaking outside employment without permission Undertaking outside employment without permission or breaching the conditions will be regarded as a serious breach of disciplineand any action under the discipline regulations could lead to dismissal for a first offence. Authority’s requirements

• may lead to suspicion of undue favour or improper influence being exercised through contracts, or any kind of consent, permission, license etc. which the public seek from the Authority or any activity which may bring the Authority into disrepute. Undertaking outside employment without permission Undertaking outside employment without permission or breaching the conditions will be regarded as a serious breach of disciplineand any action under the discipline regulations could lead to dismissal for a first offence.

Authority’s requirements

[9]The Note also provides: 1.3 The Authority must also be in a position to rebut with confidence any allegation that the integrity of its administration is being impaired because of the leisure time activities of its employees or that such activities are prejudicial to the reputation of the Brigade. Members must not therefore undertake activities which might lead to suspicion of undue favour being granted or undue or improper influence being exercised in relation to contracts or any kind of consent, permission, license etc which members of the public seek from the Authority or any activity which may bring the Authority or Brigade into disrepute. 2.2 The undertaking of outside employment without permission will be regarded as a serious breach of discipline and render members liable to action under the Fire Services (Discipline) Regulations. Whilst each case will be considered on its facts, employees who fail to obtain permission and/or breach the conditions upon which permission is granted should be quite clear that, in doing so, they risk being dismissed from the Authority’s employ for a first offence. 2.12 Outside employment on work which may be subject to the Authority’s statutory supervision or consent is not permitted. 2.13 No member of the Brigade is to undertake paid or unpaid employment, or carry on any trade or business for any person, firm or company ... who the member knows or believes is:• applying [or applies on a periodic basis] to the Authority for a statutory consent, permission, discretionary licence or any other purpose [e.g. for a petroleum licence, grant of or exemption from fire certificate requirements]; 2.16 Outside employment must not be undertaken for any person (other than an employee), firm or company with whom a member deals in the course of official duty. (b). Mr Williams’ and Mr Slater’s breaches of their terms of employment

[10]Mr Williams’ and Mr Slater’s disciplinary offences arose out of their activities on behalf of Safesmart Limited (“Safesmart”), a company carrying on business as a fire safety consultancy. It was incorporated on 8 February 2002. On 19 February 2002 Mr Williams and Mr Slater became shareholders in, and directors of, the company. It commenced trading on 1 April 2002. Mr Williams was described in its literature as its “Managing Director” and Mr Slater as its “Operations Director”. There was a third director, M E Williams. Each of the directors had 25 of the 75 issued shares. Mr Williams signed off the directors’ report and annual accounts for the accounting periods to 31 March 2003 and 31 March 2004. Safesmart’s primary activity was the carrying out of fire safety inspections, but it also provided fire safety instruction and fire safety equipment to businesses. Its literature described it as “run by current Fire Officers”.

[11]On 13 February 2002, Mr Williams applied to his line manager Assistant Divisional Officer (“ADO”) Eammon Brady for permission to undertake outside employment. For that purpose he submitted an application in the Authority’s standard form. He stated that the type of work he sought permission for would be self-employed, and it was described as “Management Systems and Building Control Consultancy” (although it was understood by ADO Brady that this would be fire safety consultancy). Mr Williams did not give Safesmart’s name on the form. Mr Williams signed the declaration that he would abide by the Note. ADO Brady recommended that permission be granted on the proviso that:

“... Agreement is given on the basis that work is not undertaken in this field in the LFEPA area. This would obviate the possibility of ‘improper influence or favour’.”

Permission was granted to Mr Williams subject to that proviso. Mr Slater did not seek permission to engage in outside work.

The statutory provisions relating to disciplinary proceedings

[12]Discipline in the fire service was at the material time governed by the Fire Services (Discipline) Regulations 1985 (“the Regulations”), made under section 17 of the Fire Services Act 1947 (“the 1947 Act”). Regulation 4 provides that: A member of a fire brigade commits an offence against discipline ... if he commits an offence set out in the discipline code in the Schedule hereto. The Schedule includes the following offences: 1. Disobedience to orders, which offence is committed where a member of the fire brigade disobeys or, without reasonable cause, fails to carry out, any lawful order, whether in writing or not. ... 9. Corrupt or improper practice, which offence is committed where a member of a fire brigade improperly uses, or attempts so to use, his position as a member of the fire brigade for his own advantage or for the private advantage of some other person. ...

The Schedule includes the following offences:

[13]Regulation 5 makes provision for the investigation of alleged offences by an investigating officer. Regulation 6, headed “Summary dismissal”, so far as relevant, is as follows: 6.- (1) Where from a preliminary investigation of the report or allegation, which shall include giving the member an opportunity to explain his conduct and hearing his explanation, if any, the investigating officer is of the opinion that- (a) commission of the offence by that member is established; and (b) the offence is of so serious a nature as to be capable of being punished only by dismissal; and (c) that no further investigation of the matter is called for, he shall report accordingly to the chief officer or, in the case of a principle officer, the fire authority, who may dismiss the member forthwith: Provided that no member may be dismissed under the Regulation unless he has been given the opportunity, either personally or through another member of a brigade, to explain his conduct to the chief officer or, as the case may be, the fire authority. (a) commission of the offence by that member is established; and (b) the offence is of so serious a nature as to be capable of being punished only by dismissal; and

[14]Regulation 8 provides for the formulation of charges in cases where there has been an investigation, other than a preliminary investigation under regulation 6, and the investigating officer has decided that charges should be brought.

[15]Hearings and internal appeals are the subject of Part 3 of the Regulations. Regulation 9(1) is as follows: 9. – (1) Save as provided in paragraphs (2) and (3), where a member of a fire brigade has been charged with an offence under Regulation 8(3), the case shall be heard, as the chief officer may determine, by- (a) the chief officer, or (b) the disciplinary tribunal of the fire authority, that is to say, a committee of the fire authority designated as such by the authority or sub-committee of such a committee.

[16]At the conclusion of a disciplinary hearing the disciplinary body must find the charge either proved or dismiss the case (regulation 10(1)), and, if the charge is found proved, it must impose one of the disciplinary awards set out in regulation 11 (regulation 10(2)). Regulation 11, so far as is material, was as follows: Disciplinary awards 11.- (1)Subject to paragraph (2), where a charge is found to be proved one of the following disciplinary awards shall be imposed, namely –(a) dismissal;

(b) requirement to resign from the brigade at the date when the award takes effect or such later dates as may be specified in the award

(c) reduction in rank (d)stoppage of pay or, in the case of a retained fireman, retaining fee; (e) a reprimand; (f) a caution; and separate awards shall be imposed for separate offences. (2) An officer nominated to conduct a hearing under Regulation 9 (3) shall not impose an award other than those set out in paragraph (1) (e) and (f). (3) Where a member has been required to resign from the brigade and he has not resigned at the date specified in the award he shall be deemed to have been dismissed on that date. (4) A stoppage of pay or retaining fee in respect of any one offence shall not continue after the expiration of 13 weeks from the date on which the award takes effect; and the amount of any stoppages (whether in respect of one or more offences) shall not exceed in the aggregate, in any pay or fee period, one-seventh of the pay or fee of the member for that period as determined in relation to his rank. … (7) A disciplinary award imposed under paragraphs (a) to

(d) of paragraph (1) shall not take effect until- (a) it has been confirmed on appeal under Regulation 12 or 13, or (b) the period for submitting notice of the appeal under Regulation 12 or 13 has expired.” Disciplinary awards (d)stoppage of pay or, in the case of a retained fireman, retaining fee;

Disciplinary awards

[17]Regulations 12 and 13 were as follows:

“Appeal to disciplinary tribunal 12. – (1) Where the case has been heard by the chief officer in the first instance or on remission under Regulation 9(6) and an award other than a reprimand or caution has been imposed, or where the chief officer has dismissed a member of a brigade under Regulation 6, the accused may, within 7 days of being notified that such an award has been imposed, submit to the chief officer written notice of appeal. (2) An appeal under this Regulation shall be heard by the disciplinary tribunal of the fire authority. (3) Subject to paragraph (4) any such appeal shall be by way of a re-hearing. (4) Where the appeal is against the award alone and a transcript of the original hearing is available the disciplinary tribunal may allow the appeal without a re-hearing. (5) The disciplinary tribunal may allow the appeal, confirm the award or vary the award by the imposition of some other award. (6) Where the disciplinary tribunal allows the appeal or varies the award under paragraph (5) its decision shall be substituted for the decision appealed against and any award which it imposes shall take effect from the date of the appeal decision or such later date as may be specified in the award. (7) The decision of the disciplinary tribunal shall as soon as possible after it has been taken be notified in writing to the accused. Appeal committee. 13.-(1) Where the case has been heard by the disciplinary tribunal in the first instance or on remission under Regulation 9 (5), and an award other than a reprimand or caution imposed, or where a fire authority has dismissed a principle officer under regulation 6, the member concerned may within 7 days of being notified that such an award has been imposed submit to the disciplinary tribunal written notice of appeal. (2) An appeal under the Regulation shall be heard by a committee of the fire authority (hereinafter in these Regulation referred to as “the appeal committee”) none of whose members shall be members of the disciplinary tribunal. (3) Paragraphs (3), (4), (5), (6) and (7) of Regulation 12 shall apply to an appeal under paragraph (1) as they apply to an appeal under paragraph (1) of that Regulations.”

[18]The right to appeal to the Secretary of State is the subject of Part 4 of the Regulations. Regulations 15 to 18 were as follows: Right of Appeal to Secretary of State 15.-(1) Where on appeal the disciplinary tribunal or the appeal committee has decided to impose or, as the case may be, confirm an award other than those specified in Regulation 11(1) (d), (e) or (f) the accused may appeal in writing to the Secretary of State within 14 days of receiving written notice of such a decision or such longer period as the Secretary of State may allow.

(2) A statement of the grounds of appeal shall be submitted by the accused with the notice of appeal within 50 days, or such longer period as the Secretary of State may allow in any particular case, of receiving written notice of the decision of the disciplinary tribunal or appeal committee, as the case may be.

(3) If the accused fails to submit written grounds of appeal within the period referred to in paragraph (2) the Secretary of State shall be entitled to treat the notice of appeal as having been withdrawn. Inquiries 16.-(1) The Secretary of State may in any case appoint one or more persons to hold an inquiry and report to him and shall do so where it appears to him that the case cannot properly be determined without hearing the evidence. (2) The Secretary of State may also appoint not more than 2 persons to act as assessors at the inquiry. Power to remit a case 17. The Secretary of State may at any time remit the case for further consideration by the disciplinary tribunal of the fire authority or the appeal committee, or, if an inquiry has been held, for further investigation by the persons appointed to hold the inquiry. Decisions of Secretary of State 18.-(1) The Secretary of State may allow the appeal, or dismiss the appeal or vary the award by the imposition of some other award appearing to him to be less severe. (2) If the Secretary of State allows the appeal or varies the award, his decision shall take effect by the way of substitution for the decision appealed against, and as from the date when the award took effect. (3) The decision of the Secretary of State shall as soon as possible after it has been taken be notified in writing to the appellant and the fire authority against whom the appeal is made.” Right of Appeal to Secretary of State Inquiries Power to remit a case

Decisions of Secretary of State

[19]There is non-statutory guidance on the Regulations, Guidance on the Fire Services (Discipline) Regulations 1985 (“the Guidance”) which sets out the agreed procedure for dealing with disciplinary matters in the fire service. Paragraph 4 of Annex A “Schedule of Offences: The Code of Discipline” concerns serious offences and states that “as a general rule... certain categories of offence could merit severe penalties even if only committed on one occasion”. The non-exhaustive examples given of such offences include:

“c. Any offence undermining the discipline of the brigade, for example disobedience to orders or insubordination.”

[20]Annex G to the Guidance concerns appeals to the Secretary of State. Paragraph 13 states that the Secretary of State may decide that an oral hearing of the case under inquiry is necessary or those appointed to conduct an inquiry may decide to hold an oral hearing. Subject to any directions by the Secretary of State, if there is an oral hearing, it should normally take the form of a full rehearing.

The disciplinary proceedings against Mr Williams and Mr Slater

[21]In January 2004 Mr Williams and Mr Slater were suspended from duty and notified of investigations into possible breach by Mr Williams of his permission for secondary employment and the possibility that Mr Slater was undertaking secondary employment without permission.

[22]On 22 July 2004 Mr Williams was charged with two offences. The first was Disobedience to Orders (“the Disobedience Charge”) in that he had “disobeyed, or without reasonable cause, failed to carry out a lawful order”. The particulars of this offence were, in summary, that he had for and/or on behalf of Safesmart, being a private company of which he was a nominated director:(a) on 12 September 2003 carried out a fire risk assessment at Adidas UK Limited, Uxbridge, the said premises being within the Authority’s area in contravention of the permissions granted to him under the Note; and/or

(b) on or about 15 August 2002 while on duty and carrying out a fire safety inspection under the 1971 Act at Skyglass Limited, Uxbridge, Middlesex, offered the managing director the services of Safesmart contrary to the Note, paragraph 2.16. Both the premises referred to in these charges were within the Authority’s area of responsibility.

[23]The second charge against Mr Williams was of Corrupt or Improper Practice (“the Corruption Charge”) in that he “used, or attempted to use, his position as a member of the fire brigade for his own private advantage or the private advantage of some other person”. The particulars of this offence were, in summary, that, for and/or on behalf of Safesmart, being a private company of which he was a nominated director, he had:(a) On 12 February 2003 while on duty and carrying out a fire safety inspection under the 1997 Regulations at New Wave Sportswear Limited, Middlesex, having instructed the managing director that a risk assessment for the premises was required, recommended the services of Safesmart for such purposes;

(b) On 27 May 2003 while on duty and carrying out a fire safety inspection under the 1997 Regulations at Church Road Surgery, Uxbridge, Middlesex, having advised that a risk assessment must be carried out, gave an employee a pamphlet and a business card advertising Safesmart for such purposes;

(c) On 5 June 2003 while on duty and carrying out a fire safety inspection under the 1997 Regulations at The Splendid Hotel Group, Pinner, Middlesex, having instructed the managing director’s personal assistant that a risk assessment for the premises was required, recommended the services of Safesmart for such purposes; and/or

(d) On 14 August 2002 while on duty and carrying out a fire safety inspection under the 1997 Regulations at Sethi Partnership Solicitors, Ruislip, Middlesex, offered the managing director the services of Safesmart to supply fire extinguishers and to carry out a fire risk assessment.

[24]On 5 August 2004 Mr Slater was charged with Disobedience to Orders in that he had “disobeyed or, without reasonable cause, failed to carry out a lawful written order”. The particulars of this offence were, in summary, that, for and/or on behalf of Safesmart, being a private limited company of which he was a nominated director, he had:(a) from approximately January 2003 undertaken outside work at Bishops Wood Hospital, Northwood, Middlesex, without permission contrary to the Note, paragraph 2.2;

(b) from approximately January 2003 undertaken outside employment at Bishops Wood Hospital on work which might be subject to the Authority’s statutory supervision or consent contrary to the Note, paragraph 2.12;

(c) on or around 3 March 2003 undertaken outside work at New Wave Sportswear Limited, Ruislip, Middlesex, without permission contrary to the Note, paragraph 2.2;

(d) on or around 3 March 2003 undertaken outside work at New Wave Sportswear Limited on work which might be subject to the Authority’s statutory supervision or consent contrary to the Note, paragraph 2.12;

(e) on or around 19 June 2003 undertaken outside work at The Splendid Hotel Group, Pinner, Middlesex, without permission contrary to the Note, paragraph 2.2;

(f) in two letters dated 19 June 2003 offered the services of Safesmart to The Splendid Hotel Group to carry out work which might be subject to the Authority’s statutory supervision or consent contrary to the Note, paragraph 2.12; and/or

(g) on or around 23 October 2002 undertaken outside employment at Sethi Partners Solicitors, Ruislip, Middlesex without permission contrary to the Note, paragraph 2.2.

[25]Mr Williams and Mr Slater denied the charges against them. A disciplinary hearing was conducted in relation to both officers by Assistant Commissioner (“AC”) Ron Dobson, exercising the functions of the Commissioner for Fire and Emergency Planning, on 7 October 2004. At the hearing Mr Slater changed his plea to guilty. Mr Williams continued to deny all charges. Having heard evidence from a number of witnesses on behalf of the Authority and Mr Williams and Mr Slater, AC Dobson concluded that both charges against Mr Williams and that against Mr Slater were proven. AC Dobson made disciplinary awards of dismissal in relation to both charges against Mr Williams and the charge against Mr Slater. Before determining the awards AC Dobson took into consideration the two officers’ service records.

[26]On 7 October 2004 Mr Williams and Mr Slater lodged appeals against AC Dobson’s decisions. Mr Williams’ appeal was heard by the Authority’s Disciplinary and Appeals Committee (“DAC”), consisting of Councillor Whelan, Councillor Morrison and Mr Hulme Cross, on 24 January and 28 February 2005. The appeal took the form of a rehearing. The DAC dismissed the appeal concluding:

“(i) having carefully reviewed the evidence and the submissions made by both sides, including the applicability of the civil standard of proof, the Committee are of the view that Sub Officer Williams’ pro-active involvement in the Safesmart business within the LFEPA area was a conflict of interest with his official duties in the fire service and therefore found Charge 1 of Disobedience to Orders and Charge 2 of Corrupt and Improper Practice proven; and (ii) having considered the mitigation advanced on behalf of Sub Officer Williams, the Committee however felt it of utmost importance to uphold the highest standards of professionalismwithin the London Fire Brigade ... Sub Officer Williams’ appeal is dismissed ...”

[27]The DAC upheld the awards of dismissal in relation to both charges. Mr Williams’ last day of service was 23 May 2005.

[28]Mr Slater’s appeal was heard by the DAC, consisting of Councillors Whelan, Morrison and Tandy, on 24 May 2005, and again took the form of a rehearing. Having heard evidence and submissions from Counsel on behalf of both Mr Slater and the Authority, the DAC dismissed the appeal and upheld the award of dismissal with his last day of service being 16 August 2005. They concluded:

“Having heard the facts of the case and given full consideration to the evidence in mitigation on behalf of Firefighter Slater, the character evidence given and his previous service record, the Committee were of the view that this was a very serious matter which required they uphold the highest standards in the fire service and, having regard to the provisions of paragraph 2.12 of Personnel Note PER:DO15:b2, it should have been abundantly clear to Firefighter Slater that outside employment which may be subject to the authority’s statutory supervision or consent is not permitted; and therefore, in accordance with Regulation 12(5) of the Fire Services (Discipline) Regulations 1985, Firefighter Slater’s appeal against the punishment of Dismissal awarded to him on 7 October 2004 in respect of the charge of Disobedience to Orders is not upheld. ..”

[29]Mr Williams appealed to the Defendant pursuant to regulation 15 of the Regulations against both the findings of guilt and the awards. The Authority submitted its written statement opposing the appeal. Mr Slater appealed to the Secretary of State on 14 June 2005 against the severity of his award. In his case too the Authority submitted a written statement opposing the appeal.

Other proceedings

[30]Two other officers were involved in Safesmart’s business, namely Station Officer Lalor and Firefighter Kim Harper. Mr Lalor was charged with disobedience to orders in that on 8 occasions he had carried out a fire risk assessment on behalf of that company in breach of the conditions under which he had been granted permission to undertake outside employment and had engaged in outside employment in work that might be subject to the Authority’s statutory supervision or consent contrary to the provisions of the Note. He admitted the charge. AC Hood imposed a punishment of stoppage of pay of £1200 and a warning that if found guilty again of a disciplinary offence he would be liable to be dismissed. Mr Harper was also charged with disobedience to orders: his charge related to only 2 incidents in which he had been involved in work on behalf of Safesmart that might be subject to the Authority’s supervision or consent and contrary to the provisions of the Note. He too admitted the charge. AC Hood imposed a stoppage of pay of £900 and a warning.

The Defendant’s decisions

(a) The decisions and the Secretary of State’s original reasons

[31]Mr Williams and Mr Slater’s appeals were considered by Mr Jim Fitzpatrick MP, then Parliamentary Under Secretary of State, on behalf of Her Majesty’s Principal Secretaries of State, without oral evidence.

[32]The Secretary of State’s decision on Mr Williams’ appeal was issued under cover of a letter dated 24 February 2006; curiously, the decision itself is undated. It (“the Williams Decision”) ordered “That the appeal is allowed and that a reduction in rank from Sub Officer to Firefighter is substituted as the disciplinary award.” The reasons were stated to be:

“The Secretary of State is satisfied that Mr Williams was guilty of the offences for which he was charged. However, given his record in the Fire Service and in the interests of justice, the Secretary of State considers that the award of dismissal was too harsh a penalty and that a reduction is [sic] rank from Sub Officer to Firefighter is a more appropriate disciplinary award.”

[33]On 24 February 2006 the Secretary of State also issued his decision (“the Slater Decision”) on Mr Slater’s appeal. He ordered:

“That the appeal is allowed and that a 3 months stoppage of pay and a final warning is substituted as the disciplinary award.”

The reasons were stated to be: The Secretary of State notes that Mr Slater has admitted the offence of Disobedience to Orders. However, given his Fire Service record and in the interests of justice, the Secretary of State considers that the award of dismissal was too harsh a penalty and that a 3 months stoppage of pay and a final warning is a more appropriate disciplinary award.”

The challenge to the Secretary of State’s decisions

[34]The Authority’s letter before claim is dated 29 March 2006. One of the grounds for challenging the Secretary of State’s decisions was that his reasons were insufficient. Neither that letter, nor the chasing letter of 4 May 2006, was answered. These proceedings were commenced on 10 May 2006, and the alleged insufficiency of the reasons given by the Secretary of State was again asserted. The Secretary of State’s acknowledgment of service is dated 31 May 2006. The Summary Grounds of Defence alleged that his reasons were adequate. On 2 August 2006, Miss Clare Montgomery QC, sitting as a Deputy High Court Judge, granted permission to apply for judicial review on two grounds only; she refused permission in relation to the alleged inadequacy of the Secretary of State’s reasons.

[35]The Authority requested reconsideration of the refusal of permission on the other grounds asserted by the Authority. On 1 December 2006, Charles J granted permission to apply for judicial review on those other grounds. During the course of argument, he mentioned the Secretary of State’s reference to “the interests of justice”; although there is no transcript of the argument, it is common ground that he described the phrase as uninformative and may have suggested that the Secretary of State might supplement or clarify it. He did not refer to this in his judgment.

[36]On 26 January 2007, the Authority served Amended Grounds, clarifying its grounds of challenge. Prompted by Charles J’s remarks, on 31 January 2007 the Treasury Solicitor, on behalf of the Secretary of State, served what were described as “Reasons in SO Williams’ Appeal” and “Reasons in FF Slater’s Appeal”. The Reasons in Mr Williams’ Appeal purport to be original reasons. Paragraphs 4 to 6 are as follows:

“4. The Secretary of State notes that Mr Williams’ grounds of appeal against award contend that the dismissal is inappropriate. In particular, Mr Williams points to the LFB’s admission that the facts to which the charges relates are “relatively trivial incidents” and that no dishonesty is involved; ADO Brady’s failure to provide a properly reasoned assessment of his character; the fact that he has had no disciplinary sanctions in his 18 years’ service; that no warnings were given and that other firefighters charged with similar offences have not been dismissed. 5. The Secretary of State notes the LFEPA’s grounds of resisting the appeal. In particular, the LFEPA point to the following factors: dismissal was justified; the character evidence from ADO Brady was fair and accurate and largely unchallenged; Mr William’s previous record was taken into account; dismissal without warning was justified and there is no disparity in the sanctions applied to other employees. 6. The Secretary of State has given careful consideration to the appropriate sanction. In particular, the Secretary of State has had regard to the LFEPA’s position that dismissal was justified and should be upheld. The Secretary of State acknowledges the importance of maintaining standards in the fire service and maintaining public confidence. The Secretary of State notes the range of awards which are available and that dismissal is the ultimate sanction and is therefore appropriate in the most serious cases of misconduct. The Secretary of State considers that in the light of Mr Slater’s (sic) previous record of service that the award of dismissal was too harsh and disproportionate. It is considered that a reduction in rank from Sub Officer to Firefighter is a more appropriate disciplinary award. The Secretary of State notes the LFEPS’s submissions to the Disciplinary and Appeals Committee that the facts of the case are “relatively trivial in the sense that they aren’t of themselves going to cause any disquiet on the part of a member of the public to find that conversations like this went on”…The Secretary of State considers that the aims of maintaining standards and public confidence are adequately met by this award.”

[37]Paragraphs 4 to 6 of the Reasons in Mr Slater’s appeal are as follows:

“4. The Secretary of State notes that Mr Slater’s Grounds of Appeal contend that the award of dismissal is too severe and disproportionate to the admitted offence. In particular, Mr Slater points to his admission of the charge; his unblemished record in the fire service; that he did not conceal his involvement with Safesmart Limited; that he had received no financial gain; that he was aware of other firefighters charged with similar offences who have not been dismissed and the very positive character evidence given on his behalf by his line manager, Station Officer Dunster, and both supportive character evidence provided by ADO Brady and ADO Goodman-Brown. 5. The Secretary of State notes the LFEPA’s grounds of resisting the appeal. In particular, the LFEPA point to the following factors: the gravity of the offence; that ADO Goodwin-Brown’s evidence was that he was aware of Safesmart but that he did not know that Safesmart was carrying out work in the area of the London Fire Brigade; that whether the company was successful did not affect the gravity of the offence; that Mr Slater admitted the offences belatedly; that the offences are so serious that only dismissal could be justified; that a previous good record is not enough to avoid dismissal; the Mr Slater knew full well that he needed permission; that the Personnel Note contains a warning that employees are at risk of dismissal for a first offence; that there is no disparity in sanctions applied to other employees and that the character evidence was not enough. 6. The Secretary of State has given careful consideration to the appropriate sanction. In particular, the Secretary of State has had regard to the LFEPA’s position that dismissal was justified and should be upheld. The Secretary of State acknowledges the importance of maintaining standards in the fire service and maintaining public confidence. The Secretary of State notes the range of awards which are available and that dismissal is the ultimate sanction and is therefore appropriate in the most serious cases of misconduct. The Secretary of State considers that in the light of Mr Slater’s previously unblemished record of service since 1986 and the impressive character evidence given on his behalf that the award of dismissal was too harsh and disproportionate. It is considered that three months’ stoppage of pay and a final warning is a more appropriate disciplinary award. The Secretary of State considers that the aims of maintaining standards and public confidence are adequately met by this award.”

[38]Finally, on the eve of the hearing before me, the Secretary of State sought to adduce the witness statement of a Legal Adviser to the Department for Communities and Local Government. Mr Supperstone did not object to its admission, but sought permission to cross-examine the maker of the statement. I refused permission: for reasons which will be apparent, it did not seem to me that cross-examination was necessary fairly to determine the claim or to determine the issues between the parties. The Deputy Legal Adviser exhibited two submissions dated 29 December 2005 prepared for the Minister, one relating to Mr Slater’s case and one relating to Mr Williams’, setting out in some detail the factual background and the appellants’ and the Authority’s submissions. Both submissions stated that they took into account the recommendation of the case officer, the advice of the senior legal adviser to the Department and the views of HM Fire Service Inspectorate. The submission relating to Mr Slater’s appeal stated, under the heading “Consistency”:

“There is no disparity in the sanctions applied to other fire service employees. Both the Appellant and Sub Officer Williams, another director of the company, were the main players and both were dismissed from the fire service. Their offences were aggravated by the fact that they employed at least two other fire fighters who carried out work within the London area and without permission. The two fire fighters mentioned in the grounds of appeal were merely Safesmart employees who did what the Appellant and Sub Officer Williams directed them to do. Each was disciplined for disobedience offences but these were substantially less serious than the offences committed by fire fighter Slater… ”

[39]Both submissions recommended that both the appeals should be dismissed. It is clear that this was the unanimous recommendation of the officials concerned. However, the Minister rejected these recommendations. What happened is described in paragraphs 6 and 7 of the witness statement:

“6. On 10th January 2006, the Minister asked to discuss the cases of Mr Slater, Mr Williams and one other firefighter at a meeting which had already been arranged to take place on 12th January 2006 to discuss another case. In relation to Mr Williams, the Minister specifically wished to explore the issues of alternative punishment and final warning, inconsistent awards, whether there was gross misconduct, time lapses, and the possible motives of the ADO. The meeting took place with the Minister on 12th January 2006. I was present at that meeting. As far as I’m aware (and I have caused a search to be made) no minutes or notes of this meeting were made. This is not unusual; such meetings are often very short, and officials will note action points on their papers rather than preparing formal notes. Following discussion, the Minister rejected the recommendation which hds been in the cases of Mr Slater and Mr Williams and indicated that he was minded to allow both appeals against the awards which had been imposed. He also indicated the awards which he was minded to substitute for the originally-imposed awards. It is likely, based on my experience of such cases, that a short email from the Minister’s Private Secretary was sent commissioning an amended submission to reflect his decision at the meeting. 7. A second set of submissions was therefore prepared in accordance with the Minister’s instructions by the official who had prepared the first set of submissions, and who had been present at the meeting. The second submission in Mr Williams’ case dated 10th February 2006 is now produced and shown to me marked FLC3. The second submission is Mr Slater’s case dated 10th February 2006 is now produced and shown to me marked FLC4.”

[40]The second submission in the case of Mr Slater concluded:

“6. Following discussions at the meeting on 12 January, it was agreed that, although Mr Slater had admitted the offence of Disobedience to Orders, the award of dismissal was too harsh and that a 3 month stoppage of pay and a final warning would be more appropriate. 7. In view of the above, it is therefore, now our recommendation that the appeal be allowed subject to the amendment to the award as detailed in paragraph 4 above. An amended Order and reasons for the decision are attached. 8. You are invited to sign the Order.”

That relating to Mr Williams concluded:

“5. Following discussion at the meeting on 12 January, it was agreed that, although it was considered that Mr Williams was guilty of the offences for which he was charged, the award of dismissal in this case was harsh and that a reduction in rank from Sub Officer to Firefighter would be more appropriate. 6. In view of the above, it is, therefore, now our recommendation that the appeal be allowed subject to the amendment to the award as detailed in paragraph 3 above. An amended Order and reasons for the decision are attached. 7. You are invited to sign the Order.”

It can be seen that the formal decisions followed the text of these submissions.

[41]Paragraphs 10 and 11 of the witness statement are as follows:

“10. I was informed by the Treasury Solicitor that at the hearing on 1st December 2006 of a renewed application for permission to apply for judicial review in these proceedings, Mr Justice Charles strongly indicated that it would assist the Court if the Secretary of State were to clarify her reasoning and to explain what had been meant by the words “in the interest of justice” which appeared in the Secretary of State’s reasons for the decision. 11. As I had been present during the decision-making process, as explained above, I provided clarification to the Treasury Solicitor. I have seen a copy of the “Expanded Reasons” provided to the Authority on 31st January 2007, which was the product of my assistance. Those documents sought to set out the thought process underpinning the decisions at the time of the decision, and to explain what had been meant by “in the interests of justice”

. As no notes or minutes were made of the meeting of 12th January 2006, this clarification of the reasons is based upon my recollection of what was said at the meeting. The Expanded Reasons were not a development of those original reasons, not did they seek to bring in reasons in addition to those considered at the time. They were a direct response to Mr Justice Charles’s request, and would not have been provided had he not so requested.”

The Authority’s grounds for judicial review

[42]The Authority contends that the Secretary of State’s decisions to allow the appeals of Mr Williams and Mr Slater were unlawful on the following grounds:(a) Ground 1: in respect of the Williams Decision, while accepting that Mr Williams was guilty of both the Disobedience and Corruption Offences, the Defendant failed to make separate awards as required by reg.11(1) of the Regulations.

(b) Ground 2: in respect of both the Williams and Slater Decisions, the Defendant misdirected herself in law by concluding that dismissal was too harsh a penalty not reasonably open to the DAC for proven gross misconduct destroying the Authority’s trust and confidence in them and thereby amounting to a fundamental breach of the employment contract entitling the Authority to terminate their contracts. The Defendant thereby ignored a fundamental principle of employment contract law.

(c) Ground 3: in respect of both the Williams and the Slater Decisions, having accepted the guilt of both officers as charged, the Defendant failed to take into consideration a relevant matter, namely that the seriousness of Mr Williams and Mr Slater’s offences meant that the Authority’s trust and confidence in the officers had irredeemably broken down by reason of their commercial activities, which were in conflict with the statutory role of the Authority and the terms of their contracts of employment.

(d) Ground 4: in respect of both the Williams and Slater Decisions, the reasons given by the Defendant for substituting lesser awards in place of dismissal were insufficient to justify the conclusion that dismissal was too harsh a penalty and reveal that the Defendant had no and/or no adequate reasons for this conclusion.

(e) Ground 5: in respect of both the Williams and Slater Decisions, the Defendant reached a conclusion that no reasonable decision-maker could have reached that dismissal was too harsh a penalty given the seriousness of the offences and the acceptance that both officers were guilty as charged.

(f) Ground 6: in respect of the Slater Decision, the Defendant ordered a three months’ stoppage of pay without specifying the proportion of the pay that was to be stopped and therefore without having regard to the limitation under regulation 11(4) of the Regulations that any pay award must not exceed one-seventh of the pay for a pay period.

[43]However, the Authority raised a more general and important point as to the nature of the Secretary of State’s role on an appeal under Part 4 of the Regulations, and since its determination is basic to the determination of these proceedings it seems to me to be sensible to consider it first.

The nature of the Secretary of State’s jurisdiction

[44]The Authority contends that the jurisdiction of the Secretary of State under the Regulations is one of review: his function is to determine whether the decision of the Authority was one it could properly make. Provided its decision is one it could properly have made, he cannot allow an appeal.

[45]I cannot accept this submission. The wording of the regulation is clear. The Secretary of State has an appellate jurisdiction. In exercising it, he is entitled to decide whether or not the decision of the Authority was appropriate in all the circumstances of the case. If he disagrees with its decision, he is entitled to allow the appeal. He decides, as it is put by Mr Supperstone, de novo. That this is so is confirmed by his express power to hold an inquiry, which can receive evidence and may reach different conclusions on the evidence before it from the decision reached by the appeal committee on the evidence before it (since otherwise there is no point in holding the inquiry). His decision where an inquiry is held must be an original rather than a review decision. Yet the nature of the jurisdiction of the Secretary of State cannot be different when he holds an inquiry from that when he finds it unnecessary to do so and makes his decision on the basis of the evidence that was before the appeal committee. Where the Secretary of State makes his decision on the basis of written evidence only, as in the case of Mr Williams and Mr Slater, his ability to interfere with findings on disputed fact is limited. But that limitation arises not from the nature of his jurisdiction but from the nature of the material he has to consider in exercising that jurisdiction.

[46]As Mr Tam pointed out, where Parliament has chosen to confer a review jurisdiction, it has done so expressly: see, e.g., section 70 of the Anti-terrorism, Crime and Security Act 2001, and section 60 of the Freedom of Information Act 2000. Similarly, CPR Part 52.11(1) provides: Every appeal will be limited to a review of the decision of the lower court unless – (a) a practice direction makes different provision for a particular category of appeal; … The italics are mine. An appeal under the CPR of course differs from an appeal to the Secretary of State under the Regulations: in the case of the CPR, the appeal is from a court or tribunal which is itself independent of the parties to the dispute; in the case of the Regulations, it is from a decision made by a party to the dispute. It seems to me that the fact that the Secretary of State is independent of the Authority points to a full jurisdiction on appeal rather than a restricted jurisdiction.

[47]As Mr Toms pointed out, the Authority has not been entirely consistent in formulating its case under this head. It has asserted that the jurisdiction of the Secretary of State is to be exercised on the principles applicable in judicial review, but also that he can interfere with an Authority's decision only if it is outside the range of reasonable responses open to the fire authority. For the latter test, it has relied on the judgment of Mummery LJ in Foley v Post Office and HSBC Bank v Madden

[2000] 1 ICR 1283

[2000] IRLR 827

. However, in Foley Mummery LJ made it clear that the range of reasonable responses test is different from the perversity (i.e. Wednesbury unreasonableness) test.

[48]Mr Supperstone relied on the principle that the court will not make an order for the specific performance of a contract of employment, particularly where the necessary relationship of trust and confidence between employer and employee has broken down. But the Secretary of State does not make an order for specific performance. In theory, a fire authority might refuse to take back a fire officer whose appeal against dismissal had been allowed by the Secretary of State. If it were to do so, its action would amount to his dismissal. In any ensuing proceedings, the Court may well not make an order of specific performance; but the officer would be entitled to damages for wrongful and unfair dismissal.

[49]I agree with Mr Tam that it is unhelpful to consider the relationship between fire officers and their employer authorities on a purely contractual basis. The Regulations modify what would otherwise be the contractual relationship by imposing appellate procedures on the decisions which must be observed by the authority. There is nothing in the Regulations to indicate that strictly contractual considerations are the only considerations that the Secretary of State may consider in determining an appeal. Doubtless, a repudiatory breach of his contract of employment by a fire officer is a necessary condition for dismissal; but just as an employer is not obliged to accept a repudiation and terminate the contract of employment, so there may be good reason in an appropriate case for the Secretary of State to conclude that dismissal is an unnecessary sanction.

[50]I therefore respectfully agree entirely with what was said by Elias J at paragraph 42 of his judgment in R (Dunbar and others) v Hampshire Fire and Rescue Service

[2004] EWHC 431 (Admin)

, in which fire officers obtained judicial review of the refusal of their employer to reinstate them after their successful appeal to the Secretary of State:

“… I accept that the employers have acted in good faith. They are deeply troubled at the thought of taking back employees whom they consider have had a pernicious influence on the service, but the statutory provisions give the last word on that to the Secretary of State and he has taken a different view. Had they wished to challenge that view they could only have done so by taking proceedings for judicial review, assuming that there was some proper legal basis for doing so, but they have not done that. It follows that, however difficult it may be, they must loyally accept the ruling of the Secretary of State and give effect to it. Mr Jones accepts that this means that the claimants are entitled to such back pay as is due to them and in the case of Mr Ross, the third claimant, he is entitled to have his service record amended.”

[51]I can now turn to consider the grounds for judicial review relied upon by the Authority. It is convenient to consider first those that turn on the provisions of the Regulations, i.e., grounds 1 and 6. Grounds 1 and 6: the Secretary of State failed to make a separate award in relation to each of the offences which Mr Williams was found to have committed; and, in respect of the Slater Decision, the Defendant ordered a three months’ stoppage of pay without specifying the proportion of the pay that was to be stopped and therefore without having regard to the limitation under regulation 11(4) of the Regulations that any pay award must not exceed one-seventh of the pay for a pay period.

[52]The issue here is essentially whether the restrictions on awards in Part 3 of the Regulations, i.e. those applying to awards made by a chief officer or by a disciplinary tribunal or by an appeal committee of the Authority, apply equally to awards made by the Secretary of State on appeal to him under Part 4.

[53]As has been seen, regulation 11(1) requires separate awards to be made for separate offences. For this reason, the decisions made within the Authority in relation to Mr Williams comprised two awards, one in respect of the charge of disobedience to orders and one in respect of his corrupt or improper practice. The decision made by the Secretary of State comprised one award only.

[54]Mr Tam submitted that the limitations on awards in Part 3 were not repeated in Part 4 and were not expressed to apply to Part 4, and therefore did not apply to awards made by the Secretary of State.

[55]I do not accept this submission. The award referred to in regulation 15 which is the subject of appeal to the Secretary of State has been made under Part 3 and must comply with its requirements. It must be an award relating to a single offence. The Secretary of State may vary the award under regulation 18, but it remains an award in relation to a single offence. If he imposes an award appearing to him to be less severe, it is substituted for the original award. I cannot see how he could substitute an award that could not have been made by the Authority in the first place. I also cannot see how the requirement of regulation 18(1) that a substituted award must be less severe than the original award can work on Mr Tam’s construction of the Regulations. In my judgment, therefore, the single award made on Mr Williams’ appeal does not comply with the requirements of the Regulations.

[56]However, I would not on this account have quashed the Secretary of State’s decision on Mr Williams’ appeal. It is clear that he realised that he was dealing with more than one offences, and there is no reason to think that his decision would have differed in substance if he had made two awards having the same effect. In the exercise of my discretion, therefore, I should have refused a quashing order on this ground.

[57]The defect in Mr Slater’s award is even more obvious. On Mr Tam’s case, there are no constraints on the award the Secretary of State may make when he allows an appeal against a sanction imposed by a Fire Authority, other than that it must be less severe than the original. He may substitute for the Authority’s award one it could not have made, and which is not one of those listed in regulation 11. In my judgment that is improbable and wrong.

[58]It is common ground that if the Secretary of State’s award must be one authorised by regulation 11, and in particular regulation 11(4), his award in the case of Mr Slater was unlawful. It was an award of 3 months’ stoppage of pay, whereas the maximum stoppage was one of one-seventh of his pay for that period. On any basis his award as to the reduced penalty falls to be quashed. However, in my judgment, his award falls to be quashed in its entirety for the reasons I give below.

Ground 4: did the Secretary of State given adequate and lawful reasons for his decisions?

[59]There are three subsidiary issues I have to consider under this head:(a) Were the Secretary of State’s original reasons adequate?

(b) If not, should the expanded reasons be taken into account by the Court?

[60]Mr Tam and Mr Toms submitted that the Secretary of State’s original reasons were adequate; that in any event the expanded reasons should be taken into account and were adequate and showed that the appeal decisions were lawful.

[61]It is common ground that in making a decision on an appeal under Part 4 of the Regulations the Secretary of State is under a duty to give reasons. I have held that the power of the Secretary of State under Part 4 of the Regulations is not confined to a review of the Authority’s decision, but is the wider power of a true appeal. The wider power carries with it the duty to give reasons appropriate to a true appeal, and these may be more extensive reasons for his decisions, particularly when he disagrees with the decision appealed against.

[62]Mr Tam and Mr Toms submitted that the original decisions were adequately reasoned. They stressed that the question whether a sanction is too harsh or appropriate is a question of degree, and it may be difficult for a decision-maker to say any more than that a particular sanction is too harsh or excessive. I was referred to the well-known judgment of the Privy Council in Stefan v General Medical Council

[1999] 1 WLR 1293

at 1301:

“What will suffice to constitute the reasons is a matter distinct from the obligation to give reasons, and there can clearly be circumstances where a quite minimal explanation will legitimately suffice.”

[63]Nonetheless, the Secretary of State’s original reasons were in my judgment inadequate. Where an employer fire authority has, at two instances, decided that disciplinary offences should lead to dismissal, good reason is required to overrule their decision, and the Authority is entitled to know why the Secretary of State disagreed with it, just as a fire officer whose appeal is dismissed is entitled to know why. Moreover, in my judgment the offences in question were very serious indeed. They involved the exploitation by Mr Williams and Mr Slater of their positions as fire officers for their private gain. In addition, they involved Station Officer Lalor and Firefighter Kim Harper in the affairs of Safesmart, as was pointed out in the original submission to the Secretary of State relating to Mr Slater’s appeal (see paragraph 38 above). This was a serious aggravating factor. Mr Williams’ and Mr Slater’s offences were sufficiently serious as to require an explanation as to why dismissal was inappropriate.

[64]The original reasons give only the vaguest clue to the Secretary of State’s reason. Was it that the Secretary of State did not consider the offences to be sufficiently serious as ever to justify dismissal? If they did justify dismissal, what was it in the record of the appellants, referred to in both decisions, that led to a different conclusion? Did the Secretary of State consider, for example, the involvement by the appellants of two other officers in the business of Safesmart? Did he think that was not an aggravating factor? Did he consider its implications for the maintenance of discipline and honesty in the Fire Service? These questions are left unanswered. The invocation of “the interests of justice” is wholly uninformative, no more than a formula suggestive of the absence or concealment of specific reasons. It is evident from the reduction in the sanctions itself that the Secretary of State thought dismissal was too harsh, and for him to state that a sanction is too harsh is, or certainly should be, a statement of the obvious. Why the penalty was too harsh is unexplained. Was it perhaps because the other two officers had not been dismissed (the argued disparity of sanctions being a matter referred to in the original submission relating to Mr Slater’s appeal)? The Authority was left entirely in the dark. That more informative reasons could have been given is demonstrated by the original submission to the Minister.

[65]Should the Court, therefore, take the expanded reasons into account? In my judgment in Nash v Chelsea College of Art and Design

[2001] EWHC Admin 538

, I sought to summarise, at paragraphs 34 to 36, the principles applicable to such questions. My summary was not comprehensive, as has been pointed out by Silber J in R (Leung) v Imperial College

[2002] EWHC 1358 (Admin)

, and in Ashworth Hospital Authority v Mental Health Review Tribunal

[2001] EWHC Admin 901

at paragraph 56 I myself accepted that paragraph 34(i) of my judgment in that case is too widely expressed, in that it fails to reflect the general rule, as stated in Ermakov, permitting the admission of evidence that merely elucidates original written reasons.

[66]In my judgment, in so far as they justify the original decisions, the Court should not accept the expanded reasons. They were produced a year after the decisions were taken, without the benefit of any contemporaneous record of the reasons given at the meeting of 12 January 2006 for rejecting the original recommendation, and well after the Authority had formulated its challenge to the original reasons. I do not question the honesty of the maker of the belated witness statement, but it seems to me that in these circumstances the Court cannot and should not be assured that the reasons put forward in the expanded reasons were in fact the reasons and, what is equally important, that they represent a comprehensive summary of the salient reasons for the Secretary of State’s decision to reject the unanimous recommendations of his officials and to allow the appeals.

[67]However, the position is otherwise if the expanded reasons disclose a defect in the decision which is not apparent in the original reasons. In such a case, there is no reason for the court to be concerned that the expanded reasons are significantly incomplete, since the disclosed defect will lead to the quashing of the decision.

[68]It is for these reasons that I concluded that it was unnecessary to permit the maker of the witness statement to be cross-examined.

[69]In fact, in the case of Mr Slater, the expanded reasons scarcely add, if at all, to the original brief reasons. They are longer because they summarise what was taken into account, rather than the reasons for the Secretary of State’s decision. Their inadequacy is demonstrated by the witness statement to which I have referred, from which it appears that at the meeting of 12 January 2006 there was discussion of “the issues of alternative punishment and final warning, inconsistent awards, whether there was gross misconduct, time lapses, and the possible motives of the ADO”. The expanded reasons do not address the issue of inconsistent awards (presumably a reference to the awards in the cases of Station Officer Lalor and Firefighter Kim Harper) and do not state whether or not the Secretary of State considered there had been inconsistency; nor do they expressly give the Secretary of State’s conclusion as to whether there had been gross misconduct (although that may be implicit in the reliance on Mr Slater’s work record as saving him from dismissal), and do not give the reasons for that conclusion; they say nothing about time lapses or why the alternative punishment was selected. In so far as there was discussion and decision as to alternative awards, as has been seen they were defective.

[70]As I have held, the award made by the Secretary of State on Mr Slater’s appeal was not one that was within his powers. It exceeded the financial penalty that could be imposed. It follows that the Secretary of State made his award on the basis of a mistaken view of “the range of awards which are available”. Similarly, his view that “three months’ stoppage of pay and a final warning is a more appropriate disciplinary award” and “that the aims of maintaining standards and public confidence are adequately met by this award” were flawed, indeed mistaken. These errors also throw doubt on his statement that “dismissal is the ultimate sanction and is therefore appropriate in the most serious cases of misconduct”. In my judgment, the question for the Secretary of State was not whether Mr Slater’s offence was one of the “most serious cases of misconduct”, but whether it merited or required dismissal. To say that a penalty is appropriate only in the most serious cases of misconduct (and I think that the Secretary of State’s reasons must be read as meaning that) is a little like suggesting that a sentence of life imprisonment is appropriate only in cases of multiple murder.

[71]It seems to me that the defects in the Secretary of State’s expanded reasons in the appeal of Mr Slater are equally applicable to the original reasons. But there is a further reason that the Secretary of State’s decision in relation to Mr Slater is flawed. It results from his decision on Mr Williams’ appeal.

[72]The penultimate sentence in the expanded reasons relating to Mr Williams’ appeal indicate that one of the matters taken into account by the Secretary of State was that the Authority’s case had been that the facts of the case are “relatively trivial in the sense that they aren’t of themselves going to cause any disquiet on the part of a member of the public to find that conversations like this went on”. That was a misunderstanding of the Authority’s case. The passage cited is from the transcript of the hearing of Mr Williams’ appeal by the Disciplinary and Appeals Committee of the Authority. Counsel for the Authority, Mr Holmes Milner, was making submissions as to the standard of proof to be applied by the Committee to the issues as to the disputed conversations between Mr Williams and members of the public. He was not suggesting that the offences alleged against Mr Williams were trivial: immediately after the passage cited, he said:

“Now it’s right to say that the four categories of corrupt practice amount to serious allegations and allegations which we say amply justify dismissal if proven.”

And a little later he said that “they amount to a very serious misconduct”.

[73]Mr Tam submitted that the sentence to which I have referred in paragraph 6 of the expanded reasons was not a reason for the decision, but a correcting amplification of the incomplete quotation from the Committee transcript that had been relied upon by Mr Williams and referred to in paragraph 4. I reject this submission. Paragraph 6 contains the reasons for the decision to reduce the severity of the award, and the sentence in question follows, and purports to justify, the statement that dismissal was “too harsh and disproportionate”.

[74]It follows that the decision on Mr Williams appeal was based on a misunderstanding of the Authority’s case. Put otherwise, the Secretary of State took into account an irrelevant, but apparently important, consideration. His decision was flawed and must be quashed.

[75]This conclusion affects the lawfulness of the decision in relation to Mr Slater. The Minister considered both decisions together, at the meeting of 12 January 2006, and in any event the substantial identity of wording of the original decisions and reasons and that of the expanded reasons (including the mistaken reference to Mr Slater’s record of service in the expanded reasons in Mr Williams’ appeal) demonstrate their interdependence. It is common ground that Mr Williams’ offences were more serious than Mr Slater’s offence. If the Secretary of State concluded that dismissal was “too harsh and disproportionate” in the case of Mr Williams, he could not rationally have decided otherwise in the case of Mr Slater. Both decisions are affected by the error in the Williams decision. For this reason too I would quash the decision on Mr Slater’s appeal.

[76]Lastly, in my judgment the expanded reasons given for allowing Mr Williams’ appeal were inadequate, for the reasons I have given in relation to Mr Slater’s appeal.

The remaining grounds of appeal

[77]I would not have quashed the Secretary of State’s decisions on the ground of perversity (Ground 5). The Authority’s case as presented below was that dismissal was a justified award, but not that it was an inevitable award. Whether, if the Authority’s case below had been that dismissal was inevitable, the Secretary of State could reasonably have taken a different view is a question I do not have to decide. It is clear that the Secretary of State did not find that awards of dismissal had not been reasonably open to the Authority: he did not purport to exercise a review function. It follows that the Authority has not established Ground 2. As to Ground 3, again I do not find in the decision of the DAC an express finding that the Authority’s trust and confidence in Messrs Williams and Slater had irretrievably broken down, although that is perhaps implicit in the disciplinary action taken against them.

Conclusion

[78]For the reasons set out above, the awards made by the Secretary of State will be quashed; both Mr Williams and Mr Slater’s appeals will be remitted to her to determine afresh in the light of my judgment.