West Midlands Fire and Rescue Authority, R (on the application of) v First Secretary of State in the Office of the Deputy Prime Minister & Ors [2008] EWHC 1458 (Admin)

Case No CO/4256/2006

[2008] EWHC 1458 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Friday, 23rd May 2008

Strand

London WC2A 2LL

B e f o r e:

MR JUSTICE BLAKE

Between

THE QUEEN ON THE APPLICATION OF WEST MIDLANDS FIRE AND RESCUE AUTHORITYClaimant

Between

FIRST SECRETARY OF STATE IN THE OFFICE OF THE DEPUTY PRIME MINISTERDefendant

STEVEN GODWARDInterested Party

Computer-Aided Transcript of the Stenograph Notes of

WordWave International Limited

A Merrill Communications Company

190 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

Mr N Wilcox (instructed by WMFRA) appeared for Claimant

Mr V Sachdeva (instructed by the Treasury Solicitor) appeared for Defendant

J U D G M E N T

[1]MR JUSTICE BLAKE: This is an application for judicial review of reasons given by the defendant, originally the Secretary of State for the Office of the Deputy Prime Minister, and now his successor who defends the claim, the Secretary of State for Communities and Local Government, dated 24th February 2006. Those reasons were given in explanation of an earlier decision of 5th February 2004 whereby he allowed an appeal by Mr Steven Godward from a decision of a Disciplinary Appeal Committee dated 31st January 2003 whereby they required him to resign on the grounds of gross misconduct.

[2]The factual background to this claim is as follows. Mr Godward (who I shall hereafter refer to as "the interested party") was at the material time a fire officer attached to Aston Fire Station, a fire station for the operation of which the claimants in this application are responsible. He was a fire officer of some 22 years' standing at the time of the events in dispute. On 13th November 2002, a national strike called by the Fire Brigades Union was due to begin. On that very day the interested party was suspended from duty as a result of what he was alleged to have said and done in preparation for that strike between 11th and 13th November.

[3]On 2nd December he was summarily dismissed by the chief fire officer for gross misconduct, using the procedure provided for by Regulation 6 of the Fire Services (Discipline) Regulations 1985, 1985 SI No.930. In summary, the chief fire officer summarily dismissed the interested party for three interconnected allegations of gross misconduct: first, inciting others to conduct unlawful secondary picketing at premises not his place of work where fire equipment was installed; second, inciting others to sabotage fire equipment; and third, unauthorised telephone calls to others to remove safety equipment from fire engines with the consequence that that equipment could not be used in the case of emergency.

[4]It is appropriate at this stage in the judgment to cite Regulation 6 from which it is plain that it is confined to gross misconduct of such a serious nature as to be capable of being punished only by dismissal. Regulation 6(1) provides:

"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"

[5]Some flavour of when regulation 6(1) is intended to be used is given by guidance issued by the Secretary of State pursuant to statute, though it is not guidance which has a particular quality to be followed by others under that statute. But nobody has suggested that the guidance in this respect does not accurately summarise both the common law relating to gross misconduct and the applicable circumstances when Regulation 6 could be used.

[6]The guidance at the material time is to be found in Fire Services Circular No.6 of 1985 promulgated on 12th July 1985 and Annex A, paragraph 2 to that guidance to be found at page 351 of the bundle reads as follows:

"Gross misconduct In cases of serious and blatant misconduct which is admitted, or where the evidence of guilt is clear, action under Regulation 6 for gross misconduct is appropriate. These are cases which could be said to strike at the 'root of the contract' or to show conduct such as to make the member's continued presence in the brigade unacceptable. They should be distinguished from other serious offences by the presence of two elements: they should clearly breach an essential element of discipline; and although proper investigation is required they should be open to no doubt that they were caught. Examples might be where a member of the brigade is caught red-handed stealing money from his colleagues or wilfully disobeys a direct and lawful order of substance on the fire ground in the presence of other members of the brigade. In such cases, the investigating officer should inform the member concerned of his position under the Discipline Regulations and, if he wishes to say anything at this stage, of his right to remain silent."

That paragraph of the guidance then continues with the procedure contemplated under Regulation 6 and concludes with these words:

"Such cases will be exceptional and it must be stressed that although the circumstances of the case permit swifter decision than in the normal run of cases, no necessary element of investigation or representation should be omitted."

[7]It has been common ground in these proceedings that when any decision taken at any level of the hierarchy is called upon to consider a case of gross misconduct justifying summary dismissal, the standard of proof is the civil standard, but, as explained in well known authority, it is the civil standard in its flexible nature. As Lord Nicholls pointed out in Re H (minors)(Sex Abuse: Standard of Proof)

[1996] AC 563

"When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability."

[8]It is perhaps understandable against the factual background so far indicated why a flagrant and undisputed attempt to sabotage the fire vehicles and equipment maintained by the claimants for use to defend the public against fire or other emergency and kept in reserve during the strike might be said to constitute gross misconduct. However, in the absence of any findings of attempted sabotage, it may be much less clear how picketing or making telephone calls to other stations could be said to be misconduct at all, or misconduct of such seriousness as to justify summary dismissal, unless of course it was alleged that the purpose was to prevent, by unlawful means, the claimants from using their equipment when they needed to.

[9]It is to be noted that by contrast with the Regulation 6 summary procedure, most cases of disciplinary proceedings against fire officers use the procedure provided for in Regulation 8 of the Regulations quoted. It is not necessary to spell out Regulation 8 in this judgment. It is sufficient to note that that rule provides for full preliminary investigation, a report, formulation of specific charges, and a full hearing before any decision is taken on whether any charge is proved, if so, what, and what the appropriate sanction should be for any charge proved.

[10]In the case of either disciplinary sanction imposed by Regulation 6 or under Regulation 8, there is an appeal to the Disciplinary Appeal Committee by the individual, and that is provided for by Regulation 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, if it thinks fit, and with the consent of both parties, decide the appeal without a re-hearing. (5) The Disciplinary Tribunal may allow the appeal, confirm the award to 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."

[11]The Committee is so called by Regulation 13 and it is required to give a notice in writing of its decisions. It is clear that the hearing before the Committee is a rehearing, and in this particular case it may be said to have been the only hearing of all the evidence relating to the three allegations which had resulted in the initial decision of 2nd December.

[12]Essentially, the evidence that was heard by the Appeal Committee in the present case relates to three allegations on two specific dates. On 11th November 2002 it is said that whilst the interested party was present at a meeting of the members of the Fire Brigades Union who were about to take industrial action, where some 50 or so persons were present, he was vociferous in calling for unlawful secondary picturing of premises that were not his place of employment or the place of employment of others who were intending to go on strike. Further, when the mood of the meeting did not support that suggestion, as an alternative he suggested sabotaging the vehicles.

[13]The second head of evidence related to 13th November and telephone calls that were made -- and admittedly made -- by the interested party to others. The way in which the Committee proceeded to hear the evidence was in slightly unusual form for a disciplinary hearing in a discipline service, but they took as evidence in-chief the transcripts of interviews or witness statements given by persons shortly after the events in question which had led to the original summary decision of the chief fire officer. Thus, the evidence in respect of the 11th November against the interested party consisted of the evidence of more senior officers, Station Officer Smith and Under-Station Officer Hodgetts.

[14]In order to explain the subsequent reasons and approach of this evidence, it is necessary to set out a short passage of the evidence relating to the events of the 11th November. Mr Hodgetts says in his initial statement that the interested party suggested that everybody should go and picket Thornbridge Avenue as a secondary picket which Tony Nutting (I interpose he was the branch officer of the Trade Union concerned) said "obviously we could not do because it was not within the law and then Steve said 'You know, perhaps we ought to sabotage the trucks and put sugar in the tanks'." Mr Smith in his witness statement made a very similar statement, and in particular that the same person who had suggested putting sugar in the tanks and sabotaging the equipment was the person who had suggested secondary picketing. Indeed, the sabotage was meant to be an alternative to the rejected proposal of secondary picketing. He identified that person as the interested party.

[15]It is striking that there was reference in those statements to Mr Nutting. It was alleged by Smith and Hodgetts there was a difference of opinion between Mr Nutting and the interested party as to the tactics of the strike. However, by the time of the disciplinary hearing, Mr Nutting was called on behalf of the interested party to give evidence on this question. His evidence on this question can be summarised when he was cross-examined by the presenting officer on behalf of the claimant authority:

"GILES POWELL: In summary your evidence is this, is it not? A) There was no suggestion by him on secondary picketing . . . FF NUTTING: Yes, Steve Godward, yes. GILES POWELL: The only inference in relation to that may or may not have arisen was as a result of a discussion about posing with kit which someone, I think in fact you, said it might amount to secondary picketing. There was a concern rather than a proposal by him. Is that right? FF NUTTING: Definitely, yes."

Then in respect of the allegation of sabotage of fire appliances, it was put that the evidence of Mr Nutting was that someone shouted such a suggestion but certainly not Mr Godward. He said:

"I wouldn't say they shouted it because I heard the words 'sugar in the tanks' and it wasn't Steve's voice [that is to say the interested party]."

So by cross-examination it was apparent that Mr Nutting strongly supported the interested party denying either that he was inciting others to unlawful secondary picketing or was connected with incitement to sabotage vehicles.

[16]It is further relevant to note that on 10th January 2003, the same Mr Nutting as branch secretary, wrote to the General Secretary of the Fire Brigades Union expressing the concern of its members with the summary dismissal decision that had previously been made in respect of the interested party, and in the course of a two and a half page letter he wrote this:

"One of the reasons given for Bro. Godward's dismissal from the West Midlands is as a result of a mere suggestion made by Bro. Godward made at a Fire Brigades Union meeting on 11th November 2002 at Aston Fire Station, Birmingham during a divisional mass meeting to discuss the coming industrial action concerning union activities prior or during the strike warranted his dismissal even though the meeting rejected the proposal after a debate."

It seems that the appellate committee had regard to that letter when they reached their rather brief conclusions on this part of the matter.

[17]The written reasons of the Disciplinary Committee in respect of the events of 11th November are contained in their formal letter of 5th February 2003, although in due course it will be necessary to go back to examine more fully the procedure by which this decision was reached. Under a heading "Findings of fact", the Appeal Committee says:

"In relation to the allegations made regarding the events of 11th November 2002, the Committee, by majority, found as a fact that you had attended the Fire Brigade Union (FBU) meeting at Aston Fire Station on that date, and at that meeting you had proposed illegal picketing. In reaching their conclusions on these matters of fact the, the Committee preferred the evidence of ADO Smith and Sub-Officer Hodgetts. The Committee also preferred the evidence of Mr T Nutting, Regional Secretary of the FBU as to the events and comments that took place at that meeting. This evidence was reinforced by the comments made in the letter from Mr Nutting to Mr A Gilchrist dated 10th January 2003. In relation to the charge of sabotage by putting sugar in fuel tanks, the Committee found unanimously as a fact that although there was evidence that the comments in question were made, there was, on the balance of probabilities, insufficient evidence to establish by whom they were made."

[18]There are some puzzles about that piece of reasoning. If the Committee accepted the evidence of Mr Nutting, both as to the absence of any incitement to sabotage and any absence of incitement by Mr Godward to incite secondary picketing, it is difficult to see how they could have accepted the evidence of Smith and Hodgetts. If the Committee did not accept the evidence of Smith and Hodgetts as to sabotage, it is difficult to see how they could be satisfied on the same evidence of incitement to picketing since Smith and Hodgetts were clear that it was the same person, whoever it was, who made both suggestions. The puzzle is increased, since there is no indication in the Committee's reasons of precisely what they mean by secondary picketing and what precise conduct they concluded Mr Godward was inciting others to conduct. That puzzle is further increased when it is recognised that Mr Nutting accepted that Mr Godward had suggested going along to the premises in question for a photo opportunity in uniform, but a mere photo opportunity or publicity shot, as indeed a peaceful demonstration even if it could be said to be that, would not amount to any breach of the law and would not in itself constitute secondary picketing.

[19]For there to be conduct capable of being misconduct at all, or misconduct which might even be said to be capable of being so serious to give rise to a gross misconduct to entitle the summary dismissal procedure to be engaged, something very much more substantial would have needed to be proven, including, in my judgment, intent to use seriously unlawful means to prevent the authority from mobilising its equipment. The fact of the matter is that the Committee were given no assistance by the presenting officer as to what his case was in this respect or what it was suggested the unlawful aspect of the picketing was to consist of. Indeed, the court has been referred to the transcript of the closing remarks of the presenting officer when he said that it was not necessary to engage in what the definition of picketing was, thereby cutting across a point being made on behalf of Mr Godward that peaceful and reasonable assembly was a right that he and any other citizen obeying the law of the land would have wherever it was taking place, and unlawful secondary picketing would be something much more specific that would require definition.

[20]Further, it seems extraordinary that the Committee should refer to the letter that Mr Nutting had written in which he outlined the allegations that were made and the use to which it was thought that they were being put in the disciplinary hearing as somehow supporting the evidence of Mr Smith and Mr Hodgetts and ignoring Mr Nutting's own evidence which made it plain that there was nothing that the interested party was recommending or saying that was of a sort that could be an incitement to unlawful behaviour. No doubt any branch secretary aware of the consequences of unlawful action in an industrial dispute is very cautious to ensure that his members do not fall on the wrong side of the law.

[21]The other allegation that was investigated by the Tribunal was the making of unlawful telephone calls two days later on 13th November. As the hearing in this court addressed, it was apparent that it was the evidence and the reasoning in respect of this issue that has become the heart of the challenge. To introduce the evidential basis of the submissions which will be described shortly, it is perhaps appropriate to go first to the Appeal Committee's findings of fact on this issue and briefly indicate the underlying evidence. They said:

"In relation to the allegations made regarding the events of 13th November the Committee, by majority, found the following facts -- (a) you made the telephone calls in question; (b) the contents of the telephone calls as described in the notification sheet dated 2nd December 2002 were correct; (c) you did not make the calls with the knowledge or consent of either Sub-Officer Hodgetts (Watch Commander) or and Assistant Divisional Officer Smith. In reaching these conclusions the Committee, by majority, firstly relied upon the written evidence that was not contested in relation to points (a) and (b) above, and secondly they preferred the written and oral evidence of Sub-Officer Hodgetts and Assistant Divisional Officer Smith to that of yourself in relation to the issue of knowledge and consent."

Those findings concerned evidence that in a number of respects was not disputed, and the one area of dispute will be shortly identified.

[22]Station Officer Hodgetts said in his original statement that on the day of the strike at his station, Aston Fire Station, he considered the question of the fate of equipment that might be left unsecured in the fire station while the strike was in action and decided to remove it from the fire vehicles themselves and to secrete them elsewhere in the station to prevent them being removed or damaged by sabotage or stolen. He raised the notion with Station Officer Smith and an instruction was issued. It is apparent that that initial instruction became well known to others in the station. What then happened on the same day is that the interested party made telephone calls to responsible officers in other fire stations in the region, and the Committee had, as part of the presenting officer's case, the contents of those calls as deposed to by a sequence of officers.

[23]A sufficient flavour of what was alleged can be obtained from the following extracts. Station Officer Simpson of Handsworth Fire Station said in his statement that he received a telephone call and I will quote that exchange:

"Q. What items of equipment did FF Godward advise you to remove from the appliances at Handsworth? A. Hose, hose reel branches, main branches, BA sets and BA face masks. Q. What reason did he give? A. He said they were doing it at Aston and that we should consider it. He said it concerned health and safety until return of work. He said that other stations were doing it. He said the items of equipment could be placed in a safe place until the return to work. He said he was just letting me know. Q. Did he say that he had the approval of either his sub or his station commander? A. No he didn't."

Similar statements are made by Sub-Officer Mills of the Perry Barr Fire Station, who said that they were removing kit at Aston so that it would be safe and in place when Green Watch came back on duty, and Station Officer Baker of the same fire station who said that Mr Godward had said that the watch at Aston had decided to do that and they should consider doing it.

[24]It is plain from all those statements that this conversation that he had with a number of different fire officers were all about moving equipment, putting it in a safe place to prevent loss or vandalism, and that did indeed reflect the very reasons why Station Officer Smith was minded to make such an instruction at Aston and did make it, although it is apparent from his witness statement that he was then phoned by other fire officers and decided after further consideration of the matter to revoke it. It is said that Station Officer Smith had a particular concern at Aston, namely that there was no central locking to safely secure his equipment and it may be that other stations did not have the same problem, but at no point throughout the hearing of his case was it suggested to Mr Godward that he was aware that Aston was in a unique position as far as security of equipment was concerned. He explained when challenged in his evidence that his intention was exactly as he had indicated in the conversations recorded.

[25]The issue of dispute was whether Mr Godward was doing this off his own back, having heard that this was the order of his station officer in respect of Aston Fire Station or whether he was doing it on the instructions or under the express authority of his station commander. On that issue the Committee preferred the evidence of the station officer.

[26]Again, it is conceivable that making an unauthorised call with the intention of getting equipment to go missing to be unusable in the event of emergency and to prevent the fire vehicles from performing their function during the course of the strike might be accepted to be conduct capable of affecting the fundamental relations in the case, and therefore gross misconduct, but the suggestion of malicious intention was never made clear in either the charge, the hearing or the findings of the appellate committee. Indeed, such a finding would be contrary to all the evidence of the station officers who received the calls as to what was actually said, and it seems extremely difficult to contemplate how the calls could have achieved a form of sabotage of these vehicles, since they were made to responsible station officers and at least Station Officer Smith thought that any removal of equipment from the vehicles would be only temporary and readily rectifiable in the event of an emergency. This was because as long as the station officer knew where the equipment was it could be readily restored in seconds to a vehicle if it was called out to respond to an emergency. There seems to be no evidence that the calls were made to other people with the intention that this equipment be secreted and not be available in the event of an emergency.

[27]That was a brief summary of the essential parts of the rival evidence. As already indicated, although the Committee did not find that the charge of incitement to sabotage on 11th November was made out, they concluded that the other two allegations -- incitement to picketing and making unauthorised phone calls with the consequences that such material might not be available in an emergency -- were made out and were misconduct.

[28]The matter then proceeded to the Secretary of State. By Regulation 15(1) there is a right of appeal by the accused person to the Secretary of State where the Appeal Committee has confirmed a disciplinary award other than the most minor ones of reprimand, fines and matters of that sort. There is procedure for the written notice and grounds of appeal to be lodged, then Regulation 16 comes into play. Under Regulation 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. The Secretary of State has power under Regulation 17 to remit the matter for further consideration by the Disciplinary Appeal Tribunal, and under Regulation 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. Matters for written notice of the decision are provided for.

[29]What happened in this case was that the interested party appealed to the Secretary of State under Regulation 15, setting out full grounds for so doing, complaining about the decision of the Committee. The Secretary of State, having considered the matter, decided that he did not need to hold a fresh inquiry or require someone on his behalf to enquire into the matters de novo and that with the full transcripts available of the oral evidence heard by the Committee, the witness statements that formed the evidence in-chief of all material witnesses and the Committee's own reasoning and conclusions that he had, he did not need to repeat that process but could take that data as the basis for his consideration of the appeal. As indicated in outlining the brief facts at the beginning of this judgment, in 2004 he concluded that the appeal should be allowed and that the sanction of dismissal or being required to resign was not appropriate.

[30]That decision was then challenged by the claimant authority for want of sufficient reasons and after permission to bring judicial review had been brought it was agreed that further reasons would be given. The further reasons were given on 24th February 2006. Those reasons in turn have sought to be challenged by judicial review by the claimants. The application for permission came before Collins J, who concluded that there was no basis to challenge the decision of the Secretary of State not to order a 16(1) inquiry. It was a little unclear as to whether he refused or merely discouraged a challenge to the reasons why he did not order such inquiry, but in my judgment the two necessarily go hand in hand and any such challenge has, in any event, not been pursued. Essentially, the challenge that is made today to the Secretary of State's reasons is one of pure rationality, namely that no reasonable Secretary of State, properly directing himself, could have allowed the appeal for the reasons he has given in his decision letter.

[31]This is a case where there is no right of appeal by the claimant authority from the decision of the Secretary of State to this court, so any challenge is confined to illegality and irrationality on public law principles and that is the challenge that the claimants seek to make out. They do so by reference to the reasoning, and where the Secretary of State departed from the appellate committee it is submitted that it was irrational for him to do so and that he would inevitably have either had to much more fully explain his decision or to have adopted a different procedure altogether if he was going to reach a conclusion that that differed from the Committee.

[32]I make it plain that my conclusion on this matter is that there are no conceivable grounds for criticising the reasoning for the decision of the Secretary of State in this case. Indeed, the more that I have been helped by counsel to look at the decision below, the more astonishing it appears to me to be and I rather doubt at the end of the day that the Secretary of State would have been immune from challenge if he had not reversed the decisions in the way done. That of course is much further than a defendant needs to go in defending this case from challenge, and it is that fact and that alone that I will focus upon in the remaining parts of this judgment.

[33]As already noted, once the Committee had rejected the charge of sabotage on 11th November it is debatable whether anything left could be capable of amounting to gross misconduct, but quite clearly, in my judgment, the finding as to gross misconduct by incitement to picketing was unstable for three reasons already identified. First, it was entirely based upon the evidence of two witnesses who said the same thing was said by the man who mentioned the sabotage, as to which the Committee was not satisfied. Secondly, it was not based upon any identification as to what the picketing was and what conduct was alleged to be unlawful. Thirdly, it was said to be supported by Mr Nutting, whose evidence entirely supported the applicant. The Committee's decisions are simply incomprehensible and were unsustainable for the reasons which they gave. In fairness to the claimants, they did recognise that much that was said or done by the Committee seemed to be somewhat surprising or inadequate.

[34]It is perfectly possible to conclude that once 50 per cent of the reasons given by the Committee for upholding by a majority the conclusion that gross misconduct had gone, the rest of their decision, for that reason alone, would become unsustainable. It is simply quite possible that the Committee concluded that gross misconduct was a matter to be drawn from the conduct proven against the interested party as a whole. That is reflected in the events at the end of the hearing of the evidence on 17th January. What happened was, having concluded all the oral evidence on behalf of the presenting officer and the interested party, and having heard the closing submissions from the advocates for the prosecuting authority and the interested party, the Committee had the benefit of a legal advisor who indicated that she would be advising on the law but did not indicate what legal advice she would give. The Committee adjourned. They then returned and the Chair of the Committee, Counsellor Harper, said this:

"After a long deliberation we have come to a decision. May I say before I give that decision, these decisions are done on a majority basis. On the first count of secondary picketing we found as charged. On sugar in the tank and sabotage, evidence not proven. On the other one as stated in the phone, as stated in item 24, therefore we have made the decision that the discipline punishment we're going to ask is you be required to resign from the date when the board takes effect, that is from today."

That in summary terms -- there may be some slight defects with the transcript -- means that the Committee immediately upheld the punishment of requirement to resign, having found two charges proved without hearing any evidence or submissions in mitigation. They would correct that gross error of law later but they reached the same conclusion on 31st January.

[35]On that occasion a different legal advisor gave the decision and here, after hearing submissions in mitigation, the legal advisor returned and identified the charges as proven and then gave an oral narrative very much in the same terms as the written reasons to which reference had already been made and then continued:

"It is the finding of the Tribunal by a majority decision that both collectively and individually these proven incidents give rise to a fundamental breach of contract entitling them to summarily dismiss Mr Godward."

She then handed over to the Chair's decision on sanction. So expressly, therefore, a finding on secondary picketing might have been very much influential to the overall conclusion irrespective of the precise findings on the telephone matter.

[36]In my judgment, this was not a case where the Secretary of State was seeking to depart from clear findings of fact by a Tribunal in respect of conduct that constituted, on any view, gross misconduct. This is not a case for the Secretary of State seeking to substitute his view on the primary evidence for the Tribunal who had the benefit of hearing the witness without giving any reason for doing so. The Secretary of State explained that he agreed with the Tribunal's conclusions in respect of the sabotage charge and no criticism was made of that conclusion. He also explained in his detailed reasons why he concluded that he did not agree with the Appeal Committee's conclusions about the picketing charge and the elements of the Secretary of State's reasons have already been reflected in the elements of my judgment upon this issue based upon it.

[37]As indicated earlier, the claimant's case really hinges upon what the Secretary of State said about the telephone matters. For that purpose, I will read the Secretary of State's reasons:

"For the purpose of his decision, the Secretary of State is prepared to accept that Mr Godward made the telephone calls without authority. That could be regarded as an act of misconduct. However, in the Secretary of State's judgment, it could not be regarded as an act of misconduct which would justify termination of the contract. There is no evidence that this was a wilful or deliberate disregard of authority. An isolated instance of acting without authority would not justify summary termination. The Appeal Committee made no findings about the reason why Mr Godward acted as he did. The Secretary of State considers that, if Mr Godward had suggested that the equipment be stored away for the purposes of putting it beyond use and with the aim that the industrial action should be enhanced by rendering fire appliances useless, that would have been a repudiatory breach. Such conduct would have put lives at risk and would have been wholly inconsistent with the functions of a fire fighter. However, all the evidence is that this was not Mr Godward's aim. On the contrary, he acted as he did to protect and preserve the equipment. It is common ground there was a discussion at Aston Fire Station about putting equipment in storage separate from the fire appliances in order to protect it and to prevent theft or damage. Aston planned to put this idea into action. Mr Godward became aware of this plan and telephoned other fire stations to suggest that they might wish to consider pursuing a similar course in order to safeguard the equipment. It is quite clear from all the evidence that this was his aim. In particular, the officers at other stations who received the telephone calls stated that Mr Godward suggested that equipment should be locked away in order to keep it safe and free from interference. Moreover, according to the transcript (tape 7, p.12) counsel for the Fire Authority said to Mr Godward that 'nobody alleged that this particular incident on the 13th [the date of the telephone calls] was sabotage'. In the light of the evidence, it seems to the Secretary of State that counsel was wholly correct to put the matter to Mr Godward in that way. The Secretary of State notes that the Appeal Committee did not make any finding on the question whether, if the equipment was stored elsewhere, this would, as the charge suggested, have put the fire appliances beyond use. The Secretary of State does not accept on the evidence that this would have been the effect. No doubt it would have taken time to retrieve the equipment from where it was stored. But that would be an inevitable consequence of the decision to store it elsewhere for safe-keeping. There was no suggestion that, by following the same plan at Aston, fire appliances would have been put beyond use."

Those are accurate reflections of the evidence. The reasoning process relating to the undisputed evidence to the concept of gross misconduct is impeccable, and in any event the Secretary of State would be reviewing, at the highest, the basis of an allegation that he made those phone calls without authority and nothing more.

[38]The core of the claimant's case as deployed against that reasoned decision today eventually reduced to the proposition that because the Committee had preferred the evidence of Smith and Hodgetts on the question of whether they had required or authorised the interested party to make those calls, they must therefore have rejected his evidence on that question, therefore they must have found him to be dishonest and lying, and the only conceivable reason that they could have found that he would have been lying and dishonest is because his intentions must have been opposite to what he was telling the officers he telephoned they were, but must have been to render the equipment unusable. Therefore this was in truth a finding of intention to render the equipment unusable in breach of a fundamental employment obligation.

[39]That edifice of hypothesis has no evidential foundation. There was no finding of dishonesty by the Tribunal, expressed or inferred. It would not be appropriate to make a finding of dishonesty lightly. It would require express adjudication. Dishonesty was in fact not the basis upon which this charge was brought and, for the reasons which I have attempted to give earlier when considering the evidence itself, it is still very difficult to see how the telephone calls could possibly have had the effect contended for, given the terms in which they were made and the persons to whom they were made. In the making of the calls there is not only no evidence of the ulterior intention but the content seem to be inconsistent with it.

[40]For all of those reasons, the challenge that is made to the rationality of the Secretary of State's conclusions is dismissed. There was a faint suggestion in the claimant's skeleton that, on any view, making a telephone call without authority -- which the Secretary of State was prepared to concede the evidence demonstrated -- could be some sort of misconduct that would require a sanction. However, that was not seriously advanced in the oral argument and I would reject any suggestion that that would now be appropriate to remit that issue to a fresh hearing. It is to be remembered that this is an appeal against gross misconduct and the sanction of dismissal or being required to resign for gross misconduct. Once the conduct ceases to be capable of being gross on the rational interpretation of the evidence and the legitimate role of fact-finding reserved for the Committee, that is the end of the matter. In any event, it would now be obviously oppressive to remit the matter some five and a half years after the events in question for consideration of some minor sanction, given all that has happened. In any event, for all those reasons this application is dismissed.

[41]MR SACHDEVA: My Lord, I have an application for costs.

[42]MR WILCOX: I do not resist the application. I have just been handed a summary assessment.

[43]MR SACHDEVA: My learned friend may want a few minutes to look at it. The very thought of going to detailed assessment, these proceedings having dragged on so long, and, my Lord, since you have a fairly good appreciation of what has gone on.

MR JUSTICE BLAKE: Is this costs arising since the previous decision?

[45]MR SACHDEVA: It is just since we were served with the claim in this case.

MR JUSTICE BLAKE: Right.

[47]MR SACHDEVA: You will see the total sum at the bottom of page 2, I think. I am in the court's hands on that. It is just that given the decisions have dragged on so very long there is an obvious temptation to end it today if that were at all possible. I would be quite happy for my learned friend to have some time to take instructions on the schedule. I have just handed to him. If we could have five minutes to do that now.

[48]MR WILCOX: I think there might be some difficulty. My instructing solicitor is actually back in up in the Midlands, rather than the people behind me from the authority. That does not mean necessarily we would want to go to a detailed assessment.

[49]MR SACHDEVA: There would just be more costs arising out of that.

MR JUSTICE BLAKE: Are you not to serve this the night before?

[51]MR SACHDEVA: Within 24 hours, but it says that just because it is not served within 24 hours does not mean it determines that --

MR JUSTICE BLAKE: Have you prepared a schedule of costs in case you won?

[53]MR SACHDEVA: One would expect them to have done so.

[54]MR WILCOX: My difficulty is that obviously it is a public authority. I do not want to sort of force them into a situation when the person really responsible for allowing it is not here.

[55]MR SACHDEVA: Perhaps my learned friend could hand me a copy of his schedule and we can negotiate it in due course.

MR JUSTICE BLAKE: I am a little reluctant to turn myself into a taxing officer at this hour.

[57]MR SACHDEVA: I do not know what my learned friend's objections are.

[58]MR JUSTICE BLAKE: Can I give you two suggestions. First, if your own costs are significantly greater that might well be an indication as to whether these are reasonable costs. Secondly, given the assistance which the court has certainly received -- and I am grateful to both counsel, but particularly for Mr Sachdeva's display of the guidance and the authorities and the helpful skeletons which has saved my time going to the heart of the case rather than getting lost in the factual background -- those seem to be within the ambit of reasoning. I think what I will propose to do is give you a few minutes and I will stay outside. Tell me how far you can get in agreeing the lot. If not, I will come back at 4 o'clock. I will further consider the matter now. (A short break)

MR JUSTICE BLAKE: You have had a chance to look at it?

[60]MR WILCOX: Yes. I have looked at it. We cannot resist that.

[61]MR JUSTICE BLAKE: Excellent. Thank you. You obviously got through it quicker than I did. I am still on the first page. Therefore, orders: the application is dismissed, the claimant to pay the defendant's costs which I summarily assess at £16,599.88 with VAT. Any other matters or applications arising today?

[62]MR WILCOX: My Lord, I ask for permission to appeal.

[63]MR JUSTICE BLAKE: Yes, and I am going to refuse you permission to appeal on the basis that there are no reasonable prospects of success, there is no issue of principle and it would be disproportionate in the circumstances of this case, particularly having regard to the employment interests of the interested party which are lurking around somewhere in this case for this matter to continue any further.

[64]MR WILCOX: Thank you, my Lord.