Mullaney, R (on the application of) v The Adjudication Panel for England [2009] EWHC 72 (Admin)

[2009] EWHC 72 (Admin)Case No 5468/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Date: Double-click to add Judgment date
Before
THE HONOURABLE MR JUSTICE CHARLES
Between
(R) MULLANEYClaimantTHE ADJUDICATION PANEL FOR ENGLANDDefendant(3) SAFDAR ZAMANInterested Parties
The Claimant in person for in personMiss Samantha Broadfoot (instructed by Solicitors for Standards Board for England) for the Ethical Standards OfficerHearing Hearing date: 22 November 2008
Judgment

Charles J :

[1]This is a claim for judicial review by the Claimant, Mr Mullaney, of a decision on appeal by an appeals tribunal appointed by the Defendant, the APE. It was set down for a “rolled up” hearing by Cranston J. As is often the case in such circumstances I heard full argument from those present rather than separate arguments first on permission and then on the substance of the review.

Representation

[2]The Claimant who is a councillor on the Birmingham City Council appeared in person and was assisted by an MP (Mr. Hemming - who has clearly had a long standing interest in this case and has assisted the Claimant at its earlier stages).[3]The ESO (through the Standards Board) was represented by counsel and solicitors who filed helpful bundles and a helpful skeleton argument.[4]The Defendant (the APE) did not appear but there is a letter in the papers from its President responding to the claim as then presented. At the end of the hearing I directed that the APE was to be given the opportunity of making submissions on a point relating to the sanction imposed by the Appeals Tribunal of the APE and remedy on judicial review. I also gave directions to check that the Defendant and the named interested parties, other than the Ethical Standards Officer, the ESO, had been properly notified, and if not whether they wanted to make any submissions. This resulted in a further response from the President of the APE and comments from the BCC Standards Committee for which I am grateful. I accept that Mr Zaman and his solicitors were contacted and no response has been received from them.[5]I also gave permission for the Claimant and the ESO to make further written submissions if so advised on the points relating to sanction, the law of trespass and generally. They have done this but in doing so did not ask for a further oral hearing. Unfortunately, and through no fault of the parties, I did not receive all the additional submissions and comments until the last day of the Christmas term.

Preliminary points

[6]The claim relates to the end of a decision making process under provisions of the Local Government Act 2000 (the 2000 Act) concerning the conduct of local government members and employees.[7]In very broad outline: i) The decision making chain was an investigation and report by the ESO, a hearing before the BCC Standards Committee (the Standards Committee) followed by an appeal to an appeals tribunal of the APE (the Appeals Tribunal). The hearing before the Standards Committee was an oral hearing and the appeal, at the election of the Claimant, was dealt with on paper. ii) The matter under investigation was an incident on 2 March 2007 and ensuing events when the Claimant, with others, was responsible for taking a video at, and of, a building known as the Former Moseley Tram Offices owned by Mr Zaman and then publishing that video.[8]The Appeals Tribunal upheld the decision of the Standards Committee which was that the Claimant was acting in his official capacity and had breached paragraph 2(b) of the relevant Code by failing to treat Mr Zaman with respect, but altered the sanction imposed by the Standards Committee by removing the opportunity for the Clamant to avoid suspension by apologising in terms agreed by its Chairman.[9]The Claimant challenges the conclusion of the Appeals Tribunal on breach and if, that challenge fails, on sanction. Relevant Statutory and Other Provisions The 2000 Act

Relevant Statutory and Other Provisions

[10]The relevant part is Part III. From the terms of the Act, and its legislative history, it is plain that the purpose and public interest that underlies Part III of the 2000 Act is to promote and uphold proper standards in public life (see for example Livingstone v APE [2006] EWHC 2533 Admin at paragraph 34 and Sanders v Kingston [2005] EWHC 1145 (Admin) at paragraph 84).[11]Section 49 is entitled "Principles governing conduct of members of relevant authorities" and by subsection (1) provides that:
“ The Secretary of State may by order specify the principles which are to govern the conduct of members and co-opted members of relevant authorities in England ----- ”
. Birmingham City Council is a relevant authority and the Secretary of State exercised this power by the Relevant Authorities (General Principles) Order 2001 (S1/1401) (the General Principles Order).[12]Section 50 is entitled “Model Code of Conduct” and by subsection (1) provides that:
“ The Secretary of State may by order issue a model code as regards the conduct which is expected of members and co-opted members of relevant authorities in England ------ ”
. Again Birmingham City Council is a relevant authority. Subsection (4) provides that a model code of conduct must be consistent with principles issued pursuant to section 49 and may include provisions which are mandatory. The Local Authorities Model Code of Conduct (England) Order 2001 (SI / 3575) (the Model Code of Conduct Order) was made under s. 50(1).[13]Section 51 is entitled "Duty of Relevant Authorities to Adopt Codes of Conduct" and by subsection (1) provides that:
"It is the duty of a relevant authority before the end of the period of six months beginning with the day on which the first order under section 50 which applies to them is made to pass a resolution adopting a code as regards the conduct which is expected of members and co-opted members of the authority"
. Further provisions of section 51 require that the Code of Conduct adopted by the local authority must incorporate any mandatory provisions of the Model Code of Conduct which, for the time being, applies to that local authority.[14]Section 52 is entitled "Duty to Comply with the Code of Conduct" and by subsection (1) provides that:
"a person who is a member or co-opted member of a relevant authority at a time when the authority adopt a code of conduct under section 51 for the time being (a) must, before the end of the period of two months beginning with the date on which the code of conduct is adopted, give to the authority a written undertaking that in performing his functions he will observe the authority's code of conduct for the time being under section 51 ----- "
. Failure to give this undertaking means that the person ceases to be a member of the local authority. There are other provisions which require new members of a local authority to undertake to observe the authority’s code of conduct as a requirement of them taking up their position.[15]The General Principles Order contains the following provisions:
“ 2. Honesty and Integrity Members should not place themselves in situations where their honesty and integrity may be questioned, should not behave improperly and should on all occasions avoid the appearance of such behaviour. 7. Respect for others Members should promote equality by not discriminating unlawfully against any person, and by treating people with respect, regardless of their race, age, religion, gender, sexual orientation or disability. They should respect the impartiality and integrity of the authority’s statutory officers and its other employees. 8. Duty to Uphold the Law Members should uphold the law and, on all occasions, act in accordance with the trust that the public is entitled to place in them. 10. Leadership Members should promote and support these principles by leadership and by example and should act in a way that secures or preserves public confidence.”
[16]The mandatory provisions set out in Schedule 1 to the Model Code of Conduct Order, and thus also the relevant Code of Conduct of the Council in this case, include and provide (with my emphasis to highlight provisions that are central to this case) as follows: “ 1.(1) A member must observe this Code of Conduct whenever s/he - (a) conducts the business of the authority; (b) conducts the business of the office to which s/he has been elected or appointed; or (c) acts as a representative of the authority, and references to a member’s official capacity shall be construed accordingly.(2) This Code of Conduct shall not, apart from paragraphs 4 and 5(a) below, have effect in relation to the activities of a member undertaken other than in an official capacity. 2. A member must: (b) treat others with respect. 4. A member must not in his official capacity, or any other circumstance, conduct himself in a manner which could reasonably be regarded as bringing his office or the authority into disrepute.” (a) conducts the business of the authority; (b) conducts the business of the office to which s/he has been elected or appointed; or (c) acts as a representative of the authority, and references to a member’s official capacity shall be construed accordingly. (2) This Code of Conduct shall not, apart from paragraphs 4 and 5(a) below, have effect in relation to the activities of a member undertaken other than in an official capacity. (b) treat others with respect.[17]These provisions (with others) set the framework to promote and uphold relevant conduct. As will appear later crucial questions in this case are whether the Claimant was acting in his official capacity and whether in doing so he treated others with respect.[18]I turn now to the provisions relating to the investigation of complaints and the imposition of sanctions contained in Chapter 2 of Part III of the 2002 Act.[19]Section 57 establishes the Standards Board for England, the SBE. The Board must appoint employees known as Ethical Standards Officers, ESOs, and issue guidance in matters relating to the conduct of members and co-opted members of local authorities.[20]Section 58 provides that a person may make a written allegation to the SBE that a member of a relevant authority has failed, or may have failed, to comply with the authority's code of conduct. If the SBE decides that such complaint should be investigated it must refer it to one of its ESOs for investigation. The purpose of such an investigation is to determine which of a number of findings is appropriate. Possible findings are set out in section 59(4) and the finding made in this case, was: “ (4)(c) that the matters which are the subject of the investigation should be referred to the monitoring officer of the relevant authority concerned”.[21]Section 64 is entitled: "Reports etc" and provides in subsection (2) that: “(2) Where an ethical standards officer determines in relation to any case that a finding under section 59(4)(c) is appropriate he must:(a) produce a report on the outcome of his investigation,(b) subject to subsection (4)(b), refer the matters which are the subject of the investigation to the monitoring officer of the relevant authority concerned, and(c) send a copy of the report to the monitoring officer, and the standards committee, of the relevant authority concerned” (a) produce a report on the outcome of his investigation, (b) subject to subsection (4)(b), refer the matters which are the subject of the investigation to the monitoring officer of the relevant authority concerned, and (c) send a copy of the report to the monitoring officer, and the standards committee, of the relevant authority concerned”[22]Section 66 is entitled: "References to monitoring officers" and provides by subsection (1) that the Secretary of State may by regulations make provision in relation to the way in which any matters referred to the monitoring officer of a relevant authority under section 60(2) or 64(2) are to be dealt with. Subsection (2) provides what provisions may be included in such regulations in connection, with amongst other things: “(2)(d) enabling a standards committee of a relevant authority, following its consideration of any such report or recommendations, [from an ESO] to take any action prescribed by the regulations (including action against any member or co-opted member (or former member or co-opted member) of the authority who is the subject of any such report or recommendation).”[23]Section 66(4)(c) expressly provides that a provision which is made by virtue of subsection (2)(d) may include provisions conferring a right of appeal on a member or co-opted member (or former member or co-opted member) of a relevant authority in respect of any action taken against him.[24]The relevant regulations have recently been changed. Those in force at the relevant times were the Local Authorities (Code of Conduct) (Local Determination) Regulations 2003/1483. They contain the following provisions (with my emphasis): “5. Matters referred to a Monitoring Officer by an Ethical Standards Officer(1) Where a matter is referred to a monitoring officer of an authority under section 64(2) ----- he shall (a) send a copy of any report received from the ethical standards officer who has referred the matter to any member who is the subject of such a report; and (b) arrange for the standards committee of that authority to meet to consider that report 6. Hearings by standards committees (1) Where (a) a monitoring officer refers to a standards committee of an authority (i) a report received from an ethical standards officer under section 64(2) -----, or (ii) a report prepared by the monitoring officer in accordance with regulation 5(7)(b) and which concerns a finding of failure ------------ (b) ----------------- the standards committee shall convene to conduct a hearing in relation to the allegation that the member failed to comply with the code of conduct of the authority concerned or, as the case may be, of any other authority concerned.(3) A standards committee may, subject to the provisions of paragraph (2), conduct a hearing using such procedures as it considers appropriate in the circumstances. 7. Findings of standards committees (1) Following a hearing pursuant to regulation 6(1), the standards committee shall make one of the following findings: (c) that the member who was the subject of the hearing had failed to comply with the code of conduct of the authority concerned ---------- and that a sanction under paragraph (2) or (3) should be imposed (3) If a standards committee makes a finding under paragraph (1)(c) in respect of a member who is a member of an authority in respect of which that standard committee exercises any functions under Part III of the Act, it shall impose any one of, or any combination of, the following sanctions (i) censure of that member, (ii) restriction for a period of up to a maximum of three months of that member’s access to the premises of the authority and that member’s use of the resources of the authority, provided that any such restrictions imposed upon the member (aa) are reasonable and proportionate to the nature of the breach; and (bb) do not actually restrict the member's ability to perform his functions as a member; (iii) partial suspension of that member for a period of up to a maximum of three months; (iv) suspension of that member for a period up to a maximum of three months; (v) a requirement that the member submit a written apology in a form specified by the standards committee; (vi) a requirement that that member undertake training as specified by the standards committee; (vii) a requirement that that member undertake conciliation as specified by the standards committee; (viii) partial suspension of that member for a period up to a maximum of three months or until such time as he submits a written apology in a form specified by the standards committee; (ix) partial suspension of that member for a period up to a maximum of three months or until such time as he undertakes such training or conciliation as the standards committee may specify; (x) suspension of that member for a period up to a maximum of three months or until such time as he submits a written apology in a form specified by the standards committee; (xi) suspension of that member for a period up to a maximum of three months or until such time as he undertakes such training or conciliation as the standards committee may specify. (5) A standards committee may direct that a sanction imposed under any of subparagraphs (ii) to (xi) of paragraph (3) shall commence on such date, within a period of six months after the imposition of that sanction, as the committee may specify in their direction. 9. Notice of appeals (1) Where a standards committee of an authority makes a finding under regulation 7(1) the member who is the subject of that finding may, by way of notice in writing given to the President of the Adjudication Panel seek permission to appeal. (2) Such notice requesting permission to appeal must be received by the President of the Adjudication Panel within 21 days of the member's receipt of notification of a finding made under regulation 7(1) and must specify (a) the reasons for the appeal; and (b) whether or not that member consents to the appeal being conducted by way of written submissions. 10. Conduct of appeals (1) Where permission for an appeal to proceed has been given pursuant to regulation 9 the person sending notice of that decision shall refer the matter to a tribunal (referred to as an "appeals tribunal") which shall conduct an appeal in accordance with this part. (2) Where a member does not indicate his consent to an appeal being conducted by written representations in accordance with regulation 9(2)(b) an appeals tribunal shall conduct an appeal hearing.(4) Where a member indicates his consent to an appeal being conducted by written representations in accordance with regulation 9(2)(b), an appeals tribunal may either (a) conduct an appeal hearing; or (b) conduct the appeal by way of written representations as the appeals tribunal shall see fit. 11. Composition of appeals tribunals (1) An appeals tribunal shall consist of not less than three members appointed by the President of the Adjudication Panel (or in his absence the deputy president) from the members of the Adjudication Panel.(5) An appeals tribunal shall conduct an appeal using such procedures as it considers appropriate in the circumstances. 13. Outcome of appeals (1) An appeals tribunal which conducts an appeal under this Part must uphold or dismiss that finding or, if it so decides, part of the finding of a standards committee made under regulation 7(1). (2) Where an appeals tribunal upholds the finding, or part of a finding, or the standards committee made under regulation 7(1), it may (a) approve any penalty imposed by that committee; (b) require that committee to impose a penalty under regulation 7(2) or (3); or (c) require that committee to impose a different penalty under regulation 7(2) or (3) from that already imposed.(6) A standards committee must comply with any decision of an appeals tribunal of which it is given notice under this regulation.” (a) send a copy of any report received from the ethical standards officer who has referred the matter to any member who is the subject of such a report; and (b) arrange for the standards committee of that authority to meet to consider that report (a) a monitoring officer refers to a standards committee of an authority (i) a report received from an ethical standards officer under section 64 (2) -----, or (ii) a report prepared by the monitoring officer in accordance with regulation 5(7)(b) and which concerns a finding of failure ------------ (b) ----------------- (c) that the member who was the subject of the hearing had failed to comply with the code of conduct of the authority concerned ---------- and that a sanction under paragraph (2) or (3) should be imposed (i) censure of that member, (ii) restriction for a period of up to a maximum of three months of that member’s access to the premises of the authority and that member’s use of the resources of the authority, provided that any such restrictions imposed upon the member (aa) are reasonable and proportionate to the nature of the breach; and (bb) do not actually restrict the member's ability to perform his functions as a member; (iii) partial suspension of that member for a period of up to a maximum of three months; (iv) suspension of that member for a period up to a maximum of three months; (v) a requirement that the member submit a written apology in a form specified by the standards committee; (vi) a requirement that that member undertake training as specified by the standards committee; (vii) a requirement that that member undertake conciliation as specified by the standards committee; (viii) partial suspension of that member for a period up to a maximum of three months or until such time as he submits a written apology in a form specified by the standards committee; (ix) partial suspension of that member for a period up to a maximum of three months or until such time as he undertakes such training or conciliation as the standards committee may specify; (x) suspension of that member for a period up to a maximum of three months or until such time as he submits a written apology in a form specified by the standards committee; (xi) suspension of that member for a period up to a maximum of three months or until such time as he undertakes such training or conciliation as the standards committee may specify. (a) the reasons for the appeal; and (b) whether or not that member consents to the appeal being conducted by way of written submissions. (a) conduct an appeal hearing; or (b) conduct the appeal by way of written representations (a) approve any penalty imposed by that committee; (b) require that committee to impose a penalty under regulation 7(2) or (3); or (c) require that committee to impose a different penalty under regulation 7(2) or (3) from that already imposed.[25]It is common ground that the decision of an appeals tribunal can be challenged by way of judicial review and that the correct defendant in any such challenge is the APE.[26]Section 79(15) of the 2000 Act provides a statutory appeal to the High Court. This does not apply here but did apply in the Livingstone and Sanders cases. The existence of this statutory appeal means that provisions of the relevant code and the legislation may fall for consideration by the High Court in two different types of proceedings.[27]A statutory right of appeal arises when matters fall for investigation under s. 76 (for example when an ESO has made a recommendation under s. 59(4)(d), see s. 64(3)). That investigation and decision is by a case tribunal and it has the power to order disqualification of a member (see s. 79(4)).

Guidance on sanction

[28]Such guidance has been issued by the SBE and under the heading “Deciding a Penalty” it provides as follows: “ When deciding a penalty, the Standards Committee should make sure that it is reasonable and in proportion to the member's behaviour. Before deciding what penalty to set, the Standards Committee should consider the following questions, along with any other relevant circumstances.• What was the member's intention? Did the member know that he or she was failing to follow the Code of Conduct?• Did the member get advice from officers before the incident? Was that advice acted on in good faith?• -------------------• How serious was the incident?• Does the member accept he or she was at fault?• Did the member apologise to the relevant people? --------------------------- Suspension may be appropriate to more serious cases, such as those involving:• bullying officers;• trying to gain an advantage or disadvantage for themselves or others; or• dishonesty or breaches of trust. -------------------------- There may be other factors, specific to the local environment, that the Standards Committee may also consider relevant when deciding what penalty to set.

Suspension may be appropriate to more serious cases, such as those involving:

[29]Similar guidance is cited in paragraph 86 of the judgment of Wilkie J in the Sanders case.

The Human Rights legislation

[30]Section 3(1) of the Human Right Act 1998 provides that so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with Convention rights, and section 6 (with some limited exceptions) provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right, and these, of course, include Articles 6 and 10 of the ECHR.[31]Article 6 provides that in the determination of his civil rights and obligations everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.[32]Article 10 provides:
“(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and receive and impart information and ideas without interference by public authority and regardless of frontiers ------ (2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interest of ----------- the protection of the reputation or rights of others ---------- ”

The events that were the subject of the complaint and investigation

[33]These are set out in a full and clear report by the ESO. It is apparent from that account that there is little room for dispute as to the facts.[34]Importantly the Standards Committee unanimously concluded that there were no disputes of fact, found the ESO’s findings of fact as duly proven and accepted the same as its own findings of fact. Its members also saw the video that was taken (and a transcript of it is in the papers before the court).[35]Given this finding of the Standards Committee, and the issues involved, I consider that the most relevant parts of the report of the ESO recording the relevant events, and thus those findings, should be available in full (rather than in summary) to anyone reading this judgment and I have therefore set them out in Part 1 to the Schedule hereto.[36]So the issue became whether, on those findings of fact, what occurred constituted a breach or breaches of the Code.[37]The allegations were that both Councillors (i.e. the Claimant and Councillor Hendricks) had acted in breach of paragraphs 2(b) and 4 of the Code.

The proceedings before and conclusions of the Standards Committee

[38]The ESO was represented by counsel before the Standards Committee who dealt with the complaint’s against both Councillors at the same hearing. Both attended, as did Mr Hemming MP.[39]The Standards Committee record, amongst other things, that: i) Councillor Hendricks maintained that he was at the site as “a campaigning councillor” and that although he took a secondary role he took equal responsibility over the issues. He wanted the public to see what Councillors’ do, and ii) Councillor Mullaney’s final submission admitted to trespass on public interest grounds and using video to force Council officers to do something. The video got the response and retrospective planning applications (sic) made and works done by Mr Zaman. No public money was used in making the video and he believed he had saved an historical building.[40]So there was a difference of position between the two Councillors on the question whether they were acting in their official capacity. And it is recorded that the Claimant’s position was that he admitted trespass on public interest grounds.[41]Also, as is not disputed and is partly recorded by the Standards Committee: i) Councillor Mullaney had been on the site an hour before the video and had then gained access to, and thus trespassed on, the site through the gap in the hoarding, ii) he had then contacted Councillor Hendricks and Mr Marsden to make the video to “name and shame”, and iii) the unedited video, which gave Mr Zaman’s address and accused him of acting illegally (the parts edited out) was published and seen by Mr Zaman.[42]I pause to comment that it is plain that on this earlier visit Councillor Mullaney trespassed onto the land (without any prior discussion with Mr Marsden as to use of his right of way and thus any thought that by standing on it, with Mr Marsden’s permission, he would not be trespassing) and that his intention was to trespass again and not just remain on the right of way, this time armed with a video camera to “name and shame” with a view to getting something done about the building. His stance was that he was acting on public interest grounds.[43]It is also apparent that it was only by chance that Mr Zaman happened to witness the second trespass, and the film making, and thus became involved. A video, report or publication that gave Mr Zaman an opportunity to comment, or to set out his arguments and position, was never intended and did not occur.[44]Councillor Mullaney’s essential justification for this general approach, and the disregard of Mr Zaman’s property rights by the commission of a trespass that it included, was, and is, that he was acting in the public interest, that what he did and said was fair comment, and he also relies of Article 10.[45]He also maintained, and maintains, that in so acting he was not acting in his “official capacity” (the trigger for paragraph 2(b)) and, as I understand it not in his “official capacity or any other circumstance” (the trigger for paragraph 4) and therefore that the relevant paragraphs of the Code do not apply.[46]I should also set out two other passages from the record of the proceedings before the Standards Committee because they were relied on in argument, they are:
“ The Chairman and the Monitoring Officer confirmed that the issues were not about Mr Zaman, or the state of his building, but about the conduct of the two Councillors, and the Committee’s role was limited to determining that issue and it would not get sidetracked into irrelevant considerations. After Standards Committee deliberations, in private (11:45 to 12:10) the Chairman confirmed that the Standards Committee accepted the arguments put forward by Councillors (sic) Martin Mullaney as to the history and state of the site. There was, therefore, no need to call Mr Marsden.”
[47]The first citation records and reflects an approach taken by the Standards Committee. The second citation means that in taking that approach (and more generally) the Standards Committee (as it so expressly records) was proceeding on the basis that the history relating to, and the description of the state of, the site advanced by the Claimant was correct. This was an approach (or assumption) in favour of the Claimant because it meant that it accepted that the underlying state of affairs that prompted the Claimant to act as he did was accurate. It is inherent in this approach that the Standards Committee also proceeded on the basis that the Claimant believed his account to be true and accurate and had reasonable grounds for this state of mind. So the Standards Committee proceeded on the basis that the matters relied on by the Claimant to found his assertion that what he was doing was in the public interest were correct.[48]In my judgment this means that the Claimant (and Councillor Hendricks) could not have been in a better position if the underlying issues and history relating to the state of the building, planning and disputes between Mr Zaman and his neighbours and others (including the Claimant if they had occurred) and Mr Marsden’s views and position had been investigated. If they had insisted on any of those issues being aired before the Standards Committee they would have been refusing to take “yes for an answer”.[49]The Standards Committee unanimously concluded that Councillors Mullaney and Hendricks were acting in their official capacity and had breached paragraph 2(b).[50]By a majority it concluded that the Councillors had not breached paragraph 4 because the office of Councillor had not been brought into disrepute by their actions. So the issue covered in the Livingstone case relating to the meaning and extent of acting in “any other circumstance” (part of the trigger in paragraph 4), and its relationship to the performance by a councillor of his functions, is not an issue in this judicial review and I am only concerned with the narrower trigger to paragraph 2(b) namely “official capacity” (as defined).[51]On sanction, the only submission made on behalf of the ESO was that motive was relevant. The two Councillors submitted and highlighted that they had acted in the public interest and had no objection to removal of the YouTube video from the internet.[52]The Standards Committee indicated that the offer of withdrawal of the video from the internet was accepted and that it was minded to suspend both Councillors unless they undertook to give formal written apologies to Mr Zaman in the format agreed with the Chairman of the Committee. The record of the Standards Committee states that the Claimant was prepared to give such an undertaking but that Councillor Hendricks was not. After that exchange relating to sanction the Standards Committee, in accordance with a submission by counsel for the ESO, considered its decision in private and after so doing concluded that: i) Both councillors should be censored. ii) The offer to withdraw the video from the internet be accepted and the Claimant was ordered to do this forthwith. iii) By a majority decision that the Councillors be suspended for a period of one month unless each of them give a written apology to Mr Zaman in a format to be agreed by the Chairman of the Committee within 14 days of the written decisions (with reasons) being provided to the parties. iv) The Claimant was to publish his written apology – once finalised – on his website for a period of one month.

Overview of the Standards Committee’s approach and conclusions

[53]There were three Councillors and one Parish Councillor on the Standards Committee and five other members (including the Chairman).[54]As I have pointed out it approached the issues of breach and sanction on the basis that the views of the Claimant as to the state and history of the building were accurate and genuinely held, and that he was genuinely of the view that what he did was in the public interest. The questions it posed itself related to(a) the trigger of “official capacity”,(b) respect to others (paragraph 2(b)),(c) disrepute (paragraph 4)) and(d) sanction. In doing so it clearly had in mind not only the public interest grounds advanced by the Claimant to justify his actions but also the purpose and public interest underlying the Code to promote and uphold proper standards in public life.[55]There is no complaint that the Standards Committee did not have relevant guidance drawn to its attention. As mentioned earlier, the SBE guidance as to sanction that I have cited from is in similar terms to that set out in the Sanders case (which was brought to the attention of the Standards Committee) and its attention was directed to SBE Guidance on what constitutes disrepute.[56]The highest sanction open to the Standards Committee was 3 months suspension. This limit and its finding that there was no breach of paragraph 4 (disrepute) must to my mind have been an important factor in its underlying reasoning to afford the two Councillors the opportunity it gave to them to avoid suspension by apologising.[57]In my view that approach to sanction properly reflects(a) the range of sanctions available,(b) the rejection of the case put under paragraph 4 (disrepute),(c) the finding relating to lack of respect (paragraph 2),(d) the underlying purpose of the code and the public interest it seeks to promote and(e) the guidance on sanction.[58]I also note that procedurally the Standards Committee adopted a three stage approach to sanction. Firstly it heard submissions on it (as I understand it from the record after the decision on breach had been made and notified to the parties), it then indicated what it was minded to do and then finalised its decision in the light of the responses to that indication.

The proceedings before and the conclusion of the Appeals Tribunal of the APE

[59]The proceedings were conducted on the basis of written submissions and on a basis equivalent to a statutory appeal to the High Court (see the Sanders case at paragraphs54 to 56). It was therefore a review of the decision of the Standards Committee and the potential for a wider approach on an appeal to an Appeals Tribunal was not the subject of argument before me.[60]The appeal related only to the Claimant. The finding of a breach of paragraph 2(b) was upheld by the Appeals Tribunal and it changed the sanction so as to no longer offer the option of an apology being given to avoid suspension, whilst noting that it considered that an apology was still appropriate.[61]The Appeals Tribunal gave detailed reasons for its conclusion upholding the finding both as to official capacity, and as to the failure to show respect but gave only limited reasons expressly directed to its conclusion on sanction. It also did not invite the parties to make submissions to it on the point that (or in the light of a view that) it might increase the sanction (by removing the option of apologising to avoid suspension) or by reference to its preliminary view that it would (or might) do so.[62]I set out the most relevant passages from the reasons given by the Appeals Tribunal in Part 2 of the Schedule hereto. In my view, as with the report of the ESO, these should be available in full (rather than in summary) to anyone reading this judgment. Those reasons are given under headings reflecting the issues raised by the parties.[63]These are full and clearly expressed reasons.

The approach at public law

[64]As was recognised by the Claimant it is important to recognise that Parliament has decided and provided that in the circumstances of this case the decision maker is the Appeals Tribunal.[65]The grounds for review are therefore only public law grounds concerning decisions of a body to whom Parliament has given the task of applying the relevant legislation and Code.[66]The bases for challenge at public law are well known. They include error of law, irrationality, procedural (and other) unfairness and in some cases a failure to give adequate reasons.[67]A good shorthand of a challenge based on error of law and alternatively irrationality can in my view be found in the judgment of Laws LJ in Huang v Home Secretary [2006] QB at paragraph 28 where he explains that judicial review can be founded on a failure to take into account all matters that by law the decision maker has an obligation to consider and only relevant considerations and, if the decision maker does that, on the grounds that the decision is irrational as being outside the range open to a reasonable decision maker taking the correct approach in law.[68]The first limb of those grounds, error of law includes the issue whether the decision maker has taken a proper approach in law to the relevant task and thus to the construction and application of tests that underlie the decisions to be made. The construction and application of provisions of primary and secondary legislation involve decisions being made as to the extent of the meaning and application of the words used in their context having regard to the relevant underlying statutory purposes and the effect of s. 3 of the Human Rights Act.[69]The second limb of those grounds is irrationality and as can be seen the test is a high one.[70]Here there are two relevant triggers in the relevant tests that need to be construed and applied namely: i) whether the Claimant was acting in his official capacity, and ii) whether he failed to show respect. Both tests are set using ordinary English words that can have a range of meaning depending on their context. They can therefore be said to be “chameleon” phrases or words. As Wilkie J says in the Sanders case at paragraph 61 in connection with the words "with respect":
“ That is a concept, particularly when it describes the conduct of an official to others, which is perfectly capable of being applied by a reasonable person considering a course of conduct so as to enable that person to know what they are doing, or about to do, would or would not comply with the Code in that way.”
[71]In my view the guidance given by Lord Mustill in his speech in R v Monopolies Commission exp S. Yorks Ltd [1993] 1 WLR 23 at 32B to 33A is relevant. There the relevant statutory words, which set the jurisdiction to intervene, were “a substantial part of the UK” and he says:
“ Accordingly I would prefer to state that the part must be "of such a size, character and importance as to make it worth consideration for the purposes of the Act." To this question an inquiry into proportionality will often be material but it will not lead directly to a conclusion. Applying this test to the present case one will ask first whether any misdirection is established, and secondly whether the decision can be overturned on the facts. ----------------- On the second question the parties are at odds as to the proper function of the courts. The respondents say that the two stages of the commission's enquiry involved wholly different tasks. Once the commission reached the stage of deciding on public interest and remedies it was exercising a broad judgment whose outcome could be overturned only on the ground of irrationality. The question of jurisdiction, by contrast, is a hard edged question. There is no room for legitimate disagreement. Either the commission had jurisdiction or it had not. The fact that it is quite hard to discover the meaning of section 64 (3) makes no difference. It does have a correct meaning, and one meaning alone: and once this is ascertained a correct application of it to the facts of the case will always yield the same answer. If the commission has reached a different answer it is wrong, and the court can and must intervene. I agree with this argument in part, but only in part. Once the criterion for a judgment has been properly understood, the fact that it was formerly part of a range of possible criteria from which it was difficult to choose and on which opinions might legitimately differ becomes a matter of history. The judgment now proceeds unequivocally on the basis of the criterion as ascertained. So far, no room for controversy. But this clear-cut approach cannot be applied to every case, for the criterion so established may itself be so imprecise that different decision-makers, each acting rationally, might reach differing conclusions when applying it to the facts of a given case. In such a case the court is entitled to substitute its own opinion for that of the person to whom the decision has been entrusted only if the decision is so aberrant that it cannot be classed as rational: Edwards v Bairstow [1956] AC 14. The present is such a case. Even after eliminating inappropriate senses of "substantial" one is still left with a meaning broad enough to call for the exercise of judgment rather than an exact quantitative measurement. Approaching the matter in this light I am quite satisfied that there is no ground for interference by the court, since the conclusion at which the commission arrived was well within the permissible field of judgment. Indeed I would go further, and say that in my opinion it was right. ”
[72]This reflects an important aspect of judicial review namely that the function of the court is to review the decisions of statutory decision makers applying public law principles. The statutory decision maker is often a person, or a group of persons, chosen because of their experience and knowledge. Here, that is the case and both statutory decision makers comprise persons identified by Parliament because of their experience, knowledge and position to apply the relevant Code. It follows that absent an error of law the court is to pay considerable respect to the decision of what is an informed domestic tribunal (see Salsbury v The Law Society The Times 15 January 2009, Bolton v The Law Society [1994] 1 WLR 512 and AH and Others (Sudan) v SSHD [2008] 1 AC 678 at paragraph 30, to which I was referred, and as to which in my view it was correctly accepted that what has to be shown is an error of law and not that it is quite clear that there is such an error).[73]As the court has a different appellant role under s. 79(15) of the 2000 Act, and conclusions in this case may become relevant in that different context I shall not limit myself to expressing my views on whether the decision maker has applied the correct approach and reached a rational conclusion on the issues of whether the Claimant was acting in his “official capacity” and treated others with respect. Rather I will go on to express my view on whether as a matter of construction and application those decisions were right.[74]The difference in the role of the court on an appeal under s. 79(15) and in judicial review is also relevant in the context of the relief the court can grant. It also needs to be remembered that the decision under attack is the decision of the Appeals Tribunal.[75]The Standards Committee and the Appeals Tribunal had to act with procedural fairness and give adequate reasons. The reasons given are read generously against the background known to the parties.[76]A foundation of procedural fairness is that the parties have a proper and fair opportunity to deal with the issues (and thus the case against them). What is required to meet that, and other aspects of fairness, will vary with the circumstances of each case and thus having regard to the relevant process, the matters it is dealing with and its history (see for example L v UK [2000] 2 FLR 322 at 327 C/D, there are many other examples). Official capacity – respect - error of law / irrationality Introduction

Official capacity – respect - error of law / irrationality

[77]The Appeals Tribunal proceeded on the basis urged by the Claimant that a narrow approach should be taken to the extent of “official capacity” and thus the Code. If that approach is based on anything other than Article 10 I express no view on it. I accept that in construing and applying the Code, Article 10, and in particular the impact of the Code on the ability of Councillors to hold and impart views on a variety of topics including their views on matters of public interest and political opinion, needs to be considered. I also recognise that those who seek and obtain election as Councillors are likely to have a history of interest in such matters and to hold and wish to express views on them.[78]The question therefore arises against that background, which supports a narrow approach to the application of the Code and thus the trigger to its application, whether Councillors are acting in a personal or political capacity in contrast to their “official capacity” (as defined).[79]I acknowledge that there would be advantage in certainty as to where the line is to be drawn between these activities and thus as to when the Code applies and when it does not. But to do that the language of the Code would have to be explained and thus added to, paraphrased or qualified and it seems to me that given that it uses ordinary English words (and is based on ordinary English words used in the statute, namely “in performing his functions” see s. 52(2)) this would be inappropriate and would potentially lead to the error being made of applying guidance as to the application of a test as if it was itself such a test.[80]It has been pointed out in a number of areas that this should not be done. For example in the South Yorks case at 29C and 31H to 32A) Lord Mustill says:
“ The courts have repeatedly warned against the dangers of taking an inherently imprecise word, and by redefining it thrusting on it a spurious degree of precision. I will try to avoid such an error. ----------- The parties could reasonably expect that since the test for which the respondent's contend has been rejected another would be proposed in its place. I am reluctant to go far in this direction because it would substitute non statutory words for the words of the Act which the commission is obliged to apply, and partly because it is impossible to frame a definition which would not unduly fetter the judgment of the commission in some future situation not now foreseen. -----------------” and In re Sevenoaks [1991] Ch 164 at 176F, in respect of guidance given by judges as to the test set down by s. 6 of the Company Directors Disqualification Act 1986 (the CDDA) namely whether the person’s conduct as a director “makes him unfit to be concerned in the management of a company”, Dillon LJ said: “Such statements may be helpful in identifying particular circumstances in which a person would clearly be unfit. But there seems to have been a tendency, which I deplore, on the part of the Bar, and possibly on behalf of the official receiver’s department, to treat the statements as judicial paraphrases of the words of the statute, which fall to be construed as a matter of law in lieu of the words of the statute. The result is to obscure that the true position to be tried is a question of fact – what used to be pejoratively described in the Chancery Division as a “jury question” ”
[81]The Code defines “official capacity” and it is clearly therefore the definition that is determinative rather than the view of anyone on what actions are carried out in an official capacity as a free standing description.[82]The most relevant part of the definition here is:
“conducts the business of the office to which s/he has been elected or appointed”
. These are ordinary descriptive English words. Their application is inevitably fact sensitive and so whether or not a person is so acting inevitably calls for informed judgment by reference to the facts of a given case. This also means that there is the potential for two decision makers, both taking the correct approach, to reach different decisions. In the context of judicial review this brings into play, or reinforces the points that if the statutory decision makers have taken the correct approach in law their experience and knowledge as the persons chosen to be the decision makers is relevant to the irrationality argument (and indeed to arguments that they are wrong).[83]The same approach applies to the construction and application of treating others with respect (see again the citation from paragraph 61 of the judgment of Wilkie J in the Sanders case).

Official capacity

[84]To my mind it cannot be said that the Appeals Tribunal (or the Standards Committee) erred in law in the approach taken to the construction and application of the test. They both applied the relevant language of the Code in its context.[85]Turning to arguments advanced: i) I do not agree that paragraph 2 of the Code only covers actions that a Councillor could not do if he was not a Councillor as was submitted, or to turn that from the negative that paragraph 2 only covers actions that can be performed by a Councillor because he is a Councillor. ii) To my mind that is too restrictive both as a matter of language, and having regard to the purpose of the Code to promote and uphold proper standards in public life. iii) It was asserted that in respect of a letter signed by a Councillor, in which he referred to himself as a Councillor, it would be significant, if not determinative, whether the letter was written on Council notepaper or, in the same terms, on other paper, because only a Councillor could properly use the Council’s notepaper. In my judgment albeit that such a distinction can be made, and the point that a letter was written on Council notepaper would provide support for the view that it was written in conducting the business of the office to which the Councillor was elected, it should not be determinative. The same can be said of the use of a personal email address or the funding of a particular activity. iv) Rather in my view more important factors are the reasons why, the circumstances in which and the reasons for which the communication was made, or the action was taken. This is the approach taken by both the Standards Committee and the Appeals Tribunal. To my mind that is clearly correct and it is also supported by dicta in the Livingstone case at paragraph 29 where Collins J says:
“------- official capacity will include anything done in dealing with staff, when representing the Council, in dealing with constituents’ problems and so on ------- ”
[86]Further, in my judgment it cannot be said that the conclusion reached is outside the range of reasonable conclusions of this informed Tribunal.[87]I would go further and indicate that for the reasons it gives the conclusion of the Appeals Tribunal (and thus of the Standards Committee) is right and in my view plainly right.[88]I add that this reasoning demonstrates why further definition or explanation of the concept would be inappropriate and unhelpful. What is required is a fact sensitive application of the descriptive words that define the concept in the Code. This is the approach taken by the Appeals Tribunal (and the Standards Committee).[89]I agree with and adopt the reasoning of the Appeals Committee (set out in Part 2 of the Schedule hereto) it merits reading in full but in my view magnetic or core factors in it, which found my view that the Appeals Committee is plainly right, are that the taking and publication of the video was a continuum of steps taken in respect of the property by the Claimant on behalf of a constituent as (and identifying himself as) a Councillor by making “Councillor Enquiries”, his membership of the Planning Committee, his legitimate and keen interest in the building as a Councillor (who is interested in planning matters) and his identification of himself as a Councillor on the video and in its publication.

Respect

[90]It is here that the Claimant’s arguments that he was acting on public interest ground and in the public interest and what he did and said were fair comment are of most relevance. This is an argument based on principle and was understandably the main theme or plank underlying his arguments before the Standards Committee and the Appeals Tribunal.[91]Before me both orally, and in his later written submissions, the Claimant added arguments relating to the law of trespass and the fairness of the procedure. I shall return to these arguments.[92]The further research carried out after the hearing confirms(a) that there is no “public interest” defence to trespass (see Monsanto v Tilly & Othrs [2000] Env. L. R. 313 in the judgment of Pill LJ under the heading “defence of public interest”, and(b) that there is defence of necessity to trespass. As to the latter a citation in the Monsanto case in paragraph 33 of the judgment of Edmund Davies LJ in Southwark Borough Council v Williams [1971] 1 Ch 734 shows that, as he says:
“ But when and how far is the plea of necessity available to one who is prima facie guilty of tort? Well, one thing emerges with clarity from the decisions, and that is that the law regards with the deepest suspicion any remedies of self-help, and permits those remedies to be resorted to only in very special circumstances. The reason for such circumspection is clear - necessity can very easily become simply a mask for anarchy.”
Cases where the defence is raised will however be fact specific and require an application of the principles and approach set in earlier authority. I shall return to the Claimant’s arguments relating to the defence of necessity later and their linkage with his arguments on procedural unfairness.[93]There was also an argument that the Claimant did not trespass, or did so for only a very limited time, because the video could and was in part without any trespass taken from the right of way with Mr Marsden’s permission. Given his recorded acceptance before the Standards Committee that he admitted “trespass on public interest grounds” to my mind the Claimant’s continued attempts to assert that for this reason he did not trespass in making the video (after as I have pointed out his earlier trespass) do him little credit. In any event, and whatever the force of the point that Mr Marsden could give permission for the right of way to be used for taking the video, it is clear that subject to the defence of necessity there was an actionable trespass (albeit for a short period of time).[94]To my mind at the heart of the Claimant’s position is the point that he was in his view acting on public interest grounds to get something done about the state of the building. But in his actions and his attempts to justify them on such grounds and in thus in the public interest he has ignored, or failed to give any proper weight to, other aspects of the public interest.[95]In many, if not most cases, in which issues of public interest arise there is more that one aspect of the public interest that arises for consideration. Here it is perhaps axiomatic that when a councillor is acting in his official capacity those actions will, or will often be, founded on an aspect of the public interest. But Parliament has recognised by statute that there is a public interest in Councillors maintaining defined standards in performing the business of the office to which they have been elected. It follows that the statute, and the Code, envisage that there can be a breach of the Code by a Councillor in performing the business of his office in furtherance of a public interest, and thus on public interest grounds, that something be done. Tunnel vision on, or justification simply by reason of, that public interest is therefore inappropriate and a balance has to be struck between the various relevant aspects of the public interest in all the relevant circumstances of the case.[96]The concept of “treating others with respect” is one that allows the balance to be performed, as does “bringing his office into disrepute” used in paragraph 4 of the Code.[97]The Appeals Tribunal (and the Standards Committee) had regard to the approach of the Adjudication Panel in Shaddock v Portsmouth City Council APE 0374, 29 May 2007. In my judgment that is an approach which correctly applies the ordinary English words used to the situation in question and accords with the approach in law I have described earlier, and with my endorsement of the comment of Wilkie J in Sanders on the concept of treating others with respect.[98]It follows that in my judgment the Appeals Tribunal did not err in law in its approach to and application of paragraph 2 of the Code.[99]As in the case of the conclusion relating to “official capacity” in my judgment in respect of the conclusion reached by the Appeals Tribunal on “respect”: i) For the reasons it gives in my judgment it cannot be said that the conclusion reached is outside the range of reasonable conclusions of this informed Tribunal. ii) I would go further and indicate that for the reasons it gives the conclusion of the Appeals Tribunal (and thus of the Standards Committee) is right, and in my view plainly right. iii) I add that this reasoning demonstrates why further definition or explanation of the concept would be inappropriate and unhelpful. What is required is a fact sensitive application of the descriptive words in the Code that define the concept.[100]As to point (ii), again the reasons merit reading in full but in my view the magnetic or core factors within it that found my view that the Appeals Tribunal is plainly right are the highhanded and one sided approach and conduct of the Claimant, in respect of each of the four aspects of his conduct reflected in the headings used by the Appeals Tribunal in giving its reasons, and thus when taking the video and then publishing it without giving Mr Zaman an opportunity to put forward his point of view. I add that it seems to me that those factors are likely to have been part of the reasoning for the minority view of the members of the Standards Committee that there was also a breach of paragraph 4 of the Code.

Article 10

[101]I agree with Collins J in Livingstone at paragraph 34 and Wilkie J in Sanders (accepting the stance there of the Councillor) that in principle the Code satisfies Article 10(2). Also as so indicated I agree that it is important that the restraints should not extend beyond what is necessary to maintain proper standards in public life and that political expression attracts a higher level of protection.[102]I accept that those qualifications or approaches considered alone, and with regard to Article 10 and s. 3 of the Human Rights Act 1998, are relevant to the approach to be taken to determining whether there has been a breach of the Code on its proper construction and application. But in my judgment in this case they, and thus Article 10, do not found an argument of error of law because the approach taken to determining whether there was a breach of the Code accords with them.[103]Applying that approach, in my view it was correctly determined that, notwithstanding the public interest grounds relied on by the Claimant, on a proper application of the Code, having regard to its underlying purpose and the aspects of the public interest it supports, the Claimant broke it.

Article 6 and procedural irregularity

[104]The absence at the time of the hearing before me and the hearings before both the Appeals Tribunal and the Standards Committee of any reference to the authorities relating to the defence of necessity to the tort of trespass is a clear indication that this defence (as opposed to the assertion and acceptance by the Claimant that there was a trespass on public interest grounds) was not raised before the Standards Committee and the Appeals Tribunal at all, or with any precision.[105]There is therefore considerable force in the point that it cannot be said that the Standards Committee or the Appeals Tribunal erred in not considering it, or in making decisions relating to procedure that were unfair in the light of this defence at law or that the Standards Committee erred in law or acted unfairly in stopping the Claimant from using this defence (which he was not then advancing at all or with any clarity) by refusing to hear evidence from Mr Marsden, and/or others, and/or as to the state of the building.[106]However I will examine these points.[107]In broad terms the matters relied on by the Claimant to establish the defence of necessity to the trespass are that he had been trying without success for two years to get the Planning Department to act, the building was unsafe, criminal offences based on breaches of planning and health and safety laws had been committed, and Mr Zaman had and was acting in a highhanded manner in ignoring such laws and the interests of his neighbours and the community.[108]I shall proceed on the basis that those assertions are correct, although I note that in respect of the safety of the building that approach may be favourable to the Claimant because of the actions and views of the Building Control Officer in April 2007 recorded I paragraphs 4.43 & 44 of the report of the ESO (see Part 1 of the Schedule hereto).[109]This approach accords with that taken by the Standards Committee to the points advanced by the Claimant concerning the state of the site and its history.[110]In my view on that approach, which is one that assumes the existence of (and thus accepts) the factual bases for the defence of necessity to trespass advanced by the Claimant, that defence is not established.[111]On those assumptions in favour of the Claimant: i) there are a number of distinctions that can be made from the facts of the Monsanto case (and other examples given in argument e.g. entry onto premises used for making, storing or distributing drugs) and each case must be decided applying the principles set out in Monsanto, but ii) in my view an intention to get the appropriate authorities to act in the reasonably near rather than the immediate future is not envisaged in the earlier cases as a basis for the defence, but if that is wrong iii) in my view it cannot be said that a reasonable person could sensibly have concluded that there was no alternative to the act of trespass either to bring the matters complained of to the attention of the relevant authorities, or to avert a danger, however sincerely that person held the view that those authorities should act and that there was a danger (see paragraphs 33 and 34 of Monsanto).[112]So far as there was a danger, or a continuing commission of an offence, the situation had existed for some time. The situation did not equate to an entry to prevent either the commission of a serious offence which was then being, or was about to be committed, or an imminent and serious danger. There are many ways in which a reasonable person could have brought the situation as the Claimant saw it to the attention of the relevant authorities without trespassing and with (or without) publicity. I reject the contention that there was any reasonable need to video the state of the building, and thus to trespass for that purpose, even if that part of the video adds to its dramatic effect in the eyes of its makers, or any of its viewers.[113]Put shortly in my view if (which he did not) the Claimant when he acted, or before the Standards Committee or the Appeals Tribunal had relied, or sought to rely, on the defence of necessity to trespass (as opposed to acting in the public interest and fair comment) he would have been wrong.[114]Further even if he had a defence, or an arguable defence, of necessity to trespass, and it can be said that it can be encompassed in his views at the time for justifying his actions based on the public interest grounds he was advancing, his highhanded and one sided approach to the publication of the video remain and it seems to me that they warrant the finding that he acted in breach of paragraph 2 of the Code even if there was a defence, or an arguable defence, to a civil claim of trespass, had it been brought.[115]In large part his additional submissions that it was unfair of the Standards Committee not to hear evidence from Mr Marsden, and /or others including planning officers, and/or as to the state of the building, are based on the point that he was thus deprived of the opportunity to demonstrate that he had a defence to trespass. As he did not, in that context such evidence would have added nothing.[116]I turn to consider these complaints of unfairness in the context of his public interest and fair comment arguments which were before the Standards Committee and the Appeals Tribunal.[117]As I have explained the approach of the Standards Committee was one that rendered it unnecessary for any of that evidence to be given and examined. In my judgment that relates to all aspects of the history and state of the building and thus the views of Mr Marsden and his, and the Claimant’s, views concerning the actions and approach of Mr Zaman. I repeat that if the Claimant had refused to accept that approach he would in effect have been refusing to take “yes” for an answer.[118]Put another way in my judgment on the approach and assumptions in favour of the Claimant taken by the Standards Committee, and the Appeals Tribunal, they were justified in concluding, and were correct to conclude, that the highhanded behaviour of the Claimant was not justified by highhanded behaviour of Mr Zaman.[119]As to the point raised in his additional written submissions relating to other video footage that the Standards Committee did not view there was correspondence before the hearing disputing its relevance, its relevance does not seem to have been explained or pressed at the hearing, this point does not seem to have been raised on the appeal and in my view a film to show that work had been commenced without erecting hoardings putting persons visitors to Mr Marsden’s premises at risk was of no material relevance to add to the assumptions made by the Standards Committee, and the Claimant’s stance, that he was entitled to act as he did towards Mr Zaman because he believed that Mr Zaman had disregarded and did not care about planning law and building regulations.[120]In my view the Appeals Tribunal were entitled to incorporate into its reasoning, although the Standards Committee did not, the undisputed fact (recorded in paragraph 4.37 of the ESO’s report) that the Claimant had sent the video to a journalist. The Appeals Tribunal is not confined to the reasoning of the Standards Committee.[121]I agree with the reasons given by the Appeals Tribunal its rejection of the Article 6 and fairness points raised before them.

The re-election of the Claimant with an increased majority

[122]In my judgment this is irrelevant. It cannot be known what effect, if any, the issues that are the subject of these proceedings hadon voters. Also the primary and secondary legislation relating to the Code envisages that the electorate might be deprived of the services of a Councillor they have chosen.

Sanction

[123]I raised points on this that were not raised by the Claimant. They were whether it had been procedurally fair for the Appeals Tribunal to remove the opportunity of avoiding suspension by giving an apology, and a lack of adequate reasons for this conclusion.[124]It is clear that the relevant powers and procedure enable and envisage that the Appeals Tribunal can change the sanction and that this includes an ability to increase the sanction.[125]It is thus the case that it can be said with force that both sides knew that the powers of the Appeals Tribunal were not limited to downward revision of the sanction and therefore had an opportunity to make submissions on this in their written submissions. Indeed as submissions were made by the Claimant that the sanction was excessive and appropriate for more serious cases referred to in the Standards Board guidance, he did direct his attention to sanction if the other aspects of his appeal failed and he could have added reasons why (as he was implicitly arguing) there should be no increase in the sanction either as a result of an extension of the period of suspension or the removal of the option of apologising.[126]As I have already mentioned, what is or is not required to meet the basic requirement of procedural fairness that a person needs to have a fair opportunity to address the issues and the case against him, will vary having regard to the circumstances.[127]I accept that in many cases applying this appeal process, and in other situations (e.g. an increase in sentence on appeal to a Crown Court) procedural fairness would not require an appellate body to raise the possibility of it increasing the sanction or to give a “minded to” indication. But the issue is whether this should have been done in the particular circumstances of this case by the Appeals Tribunal, who can regulate its procedure and was dealing with the appeal on written submissions in which none of the parties expressly addressed the possibility of the sanction being increased.[128]Albeit that I understand why, and agree that, there was a serious breach of the Code in my view: i) as stated earlier, the approach of the Standards Committee to sanction properly reflects(a) the range of sanctions available,(b) the rejection of the case put under paragraph 4 (disrepute),(c) the finding relating to lack of respect (paragraph 2),(d) the underlying purpose of the Code and the public interest it seeks to promote and(e) the guidance on sanction, and ii) a consideration of these points triggers the thought process and conclusion that (a) the opportunity to apologise was an important element of the sanction imposed by the Standards Committee, (b) the inclusion of such an opportunity is an important element of the consideration of any sanction to be imposed in this case by the Appeals Tribunal, and (c) if that opportunity is to be removed factors for that departure over and above an assertion that there was a serious breach should be considered (e.g. those mentioned in subparagraph (i) above) and reasons given for that removal, and iii) that thought process founds the conclusion that fairness required that the Claimant be specifically alerted to this possibility by the Appeals Tribunal so that he could address it in addition to the points made that suspension is too severe a sanction.[129]So, although I am very conscious that these were my points and it was not something that the Claimant identified as being procedurally unfair, in my view the failure by the Appeal Tribunal to alert the Claimant that it was considering the removal of the opportunity to avoid a suspension was procedurally unfair and thus an error of law.[130]I add that in my view a further factor supporting this conclusion is the procedural approach taken by the Standards Committee to sanction.[131]The lack of adequate reasons is not in reality a separate point because it flows for my underlying thought process. If the opportunity to specifically address all relevant factors concerning the removal of the opportunity to apologise had been given it would have been reflected in the reasons given.[132]I have now seen the letter of apology proposed by the Standards Committee. I do not agree with the Claimant that it is humiliating. Rather it seems to me that in a summary form it particularises the underlying reasons why it has been concluded that the Claimant acted in breach of the Code, whereas the alternative that the Claimant has informed me he would be prepared to sign if, as is the case I dismiss his application, is in more general terms. Councillor Hendricks did not apologise and was suspended for one month.[133]But unless I could conclude that any Appeals Tribunal properly directing itself would be bound to reach a particular view on whether an opportunity to apologise should be given, and on the terms of that apology (or who is to set them), I cannot decide and substitute an alternative sanction to that imposed by the Appeals Tribunal.[134]This limitation on the relief I can grant flows from the point that this is a challenge by way of judicial review and not a statutory appeal.[135]The appeal to the Appeals Tribunal was heard on written submissions and therefore in my view there is no practical difficulty in me upholding the decision on breach of the Code and remitting only the issue of sanction to a differently constituted Appeals Tribunal.

Cited in 3 later judgments