Judgement Date: 27 March 2013

High Court quash order of Police Appeals Tribunal on basis that their means of attempting to correct mistake was not within their jurisdiction

Background

In October 2010 Mr Baker, a police constable with the Sussex Constabulary, was found guilty of gross misconduct and was dismissed without notice. Mr Baker appealed to the Police Appeals Tribunal (PAT ) against both the finding of gross misconduct and his dismissal. On 24 March 2011 the PAT dismissed his appeal with regards to the finding of gross misconduct but allowed his appeal against dismissal, substituting it with a final written warning. The 23 March Order (the Original Order) also stated that Mr Baker was not only be reinstated but that for the purposes of pay, he should be deemed to have served continuously in that rank from 13 October 2010.

In April 2010, it came to light that Mr Baker had been employed outside the police service between the date of his dismissal and the hearing of his appeal. Neither the Sussex Police nor the PAT was aware of this at the time of the making of the Original Order.

In view of this development, the PAT invited further written submissions on the issue of whether it could make an order which meant that the amount of back pay was limited to take account of his earnings from his other employment. Having considered the representations, the PAT decided that it had the power to amend its Original Order in this way and that it would be just to do so. They issued an Amended Order dated 30 June 2011, which said that Mr Baker was to receive only such sum as to place him in the same financial position in which he would have been had he not been dismissed.

Judicial Review

It is argued on behalf of Mr Baker, and indeed it was conceded by the PAT, that the Tribunal did not have the jurisdiction to make the further Order and that it had been acting functus officio. It was argued that although in proceedings for judicial review the grant of remedies is discretionary, as a general principle a decision shown to have been made in excess of jurisdiction should be quashed (Berkeley v Secretary of State for the Environment [2001] 2 AC 603 and R v General Medical Council, ex parte Toth [2000] 1 WLR 2209 cited). In Toth it was said that if a decision is bad in law, relief should be granted ‘unless there are strong reasons in public policy for refusing relief or unless to quash the decision would occasion so great an injustice either to the respondent or to a third party as to require some other course to be taken’.

It was argued on behalf of the PAT that this was a case in which, to avoid injustice, the court should exercise its discretion to decline to grant a quashing order. It was pointed out that if allowed to remain, the result was that Mr Baker would be better off by reason of his gross misconduct and consequent dismissal. The intention of the Tribunal, it was argued, was clearly that Mr Baker should not suffer financial loss, but not that he should benefit.

Judgement

The Court considered the question of when, exceptionally, is it in principle right or in the interests of justice to refuse a remedy. The four main categories where relief has been refused were considered;

  1. Where the claim has not been properly pursued; i.e. the claimant acquiesced, they did not exhaust other remedies or abused the court’s process in some way.
  2. Where granting it would cause substantial prejudice to the rights of third parties
  3. Where the error of law made by the public authority was not material to its decision
  4. Where it would serve no practical purpose, for example if it would be pointless to quash the grant of a license which has already expired.

The present case was held not to fall within any of those categories. That was not in itself fatal; it was held that ‘it would be unsafe to suppose…that the permissible reasons for refusing to quash an invalid order are limited to those which I have identified or that the categories of such reasons are closed’. The question was therefore whether the reasons urged by the PAT for declining relief are proper reasons for the court to take into account.

It was held that the Tribunal had made two errors. The first was in not inviting Mr Baker and the PAT to make representations on the issue of back pay at the hearing in March 2011. Its second was rejecting Mr Baker’s submission that it did not have the power to make another Order and proceeding to do so. It was noted that if the Tribunal had recognised it was functus officio, Sussex Police may have then considered whether to apply for judicial review of the Original order, bearing in mind it is established law that a decision based on a material mistake of fact that gives rise to unfairness is a ground of judicial review.

It was held that neither the possibility that the Original Order was invalid due to the mistake, nor the fact that there was to be an ‘unpalatable result’ would justify a refusal to quash the second, admittedly void Amended Order; ‘it is a fundamental requirement of the rule of law – viewed as a safeguard against arbitrary power – that decision-makers act within the powers conferred on them by law and do not exceed those powers’ [41].

Further, it was said that to allow the Order would;

‘offend against the principle of legal certainty. It is in the public interest that there comes a point at which any adjudication is treated as final and the only way of challenging the outcome is to pursue any right of appeal or review by another court rather than by reverting to the adjudicator and asking it to change its decision. That important principle would be flouted if the court declined to quash an attempt by the original decision-maker to alter its decision after the point had passed at which the decision became final’ [42].

Practicalities

The Court went on to outline the practicalities of other means by which this issue could be resolved. It was noted that if Sussex Police refuse to restore to Mr Baker the full amount of the pay he would have got if he had not been dismissed, Mr Baker would have to bring a claim for the arrears. If, in answer to that claim, Sussex Police were to rely on the Amended Order, Mr Baker could point out that that Order had no legal effect. That point would be open to Mr Baker whether the decision is quashed or not.

Similarly, it is open to the Sussex Police to raise a defence to such a claim by Mr Baker that the Original Order is invalid because it resulted from a material mistake of fact giving rise to unfairness. Such an argument would, effectively, prevent Mr Baker from recovering the back pay awarded by the Original order.

Accordingly, the Amended Order of the Tribunal was quashed.

This case reminds public bodies to think twice about which legal avenue they pursue in order to correct ‘mistakes’ made during their decision making. The simple fact that the effect of a refusal to grant relief is ‘unpalatable’ does not mean relief should be granted.