Case No: C/2001/0531
Neutral Citation Number: [2001] EWCA Civ 2016
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MR. JUSTICE COLLINS
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Thursday 20th December 2001
B e f o r e :

LORD JUSTICE SCHIEMANN
LORD JUSTICE CLARKE
and 
MR.  JUSTICE WALL

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	SECRETARY OF STATE FOR THE HOME DEPARTMENT	Appellant	
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	RAVIDEEP SINGH BHOTI	Respondent	

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
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Sarah MOORE (instructed by Treasury Solicitor for the Appellant)
Michael BROMLEY-MARTIN (instructed by Venters Reynolds for the Respondent)
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Judgment
As Approved by the Court

Crown Copyright ©

LORD JUSTICE SCHIEMANN: 
1.	Before the court is an appeal by the Secretary of State for the Home Department from a judgement of Collins J. who had quashed a decision of the Secretary of State and sent the matter back for the Secretary of State to reconsider and reach a new decision, which however could be to the same effect if the Secretary of State thought it right. The respondent did not then press for any other relief nor has he before this court.
2.	That decision concerned P.C. Bhoti. That officer had driven a car and become involved in a minor traffic accident. He was breathalysed and was found to be over the prescribed limit. He was prosecuted for that offence but not for any driving offence. He admitted his guilt before the magistrates, was fined £300 and was disqualified for one year. What gives rise to the present appeal is not the decision of the magistrates but the punishment awarded in the subsequent disciplinary proceedings taken against  Mr. Bhoti, namely, that he be required to resign.
3.	What happened was as follows. There appears not to have been a dispute on the facts at any stage and no oral evidence was given. The procedure was governed by the Police (Discipline) Regulations 1985. He appeared before a disciplinary board and the punishment awarded was that he be required to resign. He appealed to the Commissioner and that appeal was dismissed. He then appealed to the Secretary of State who, as he was required to do under section 37 and the 5th Schedule of the Police Act 1964,  appointed a tribunal to consider his appeal and report to him. This the tribunal did and recommended that the appeal be allowed and that for the punishment of Requirement to Resign there be substituted a Reprimand. However the Secretary of State did not accept that recommendation. He dismissed the appeal. Thereupon Mr Bhoti brought judicial review proceedings. Collins J quashed the decision of the Secretary of State. The Secretary of State now appeals to this court. 
4.	Although at the end of the day the issues are simple, in order to explain why Collins J. quashed the decision of the Secretary of State it is useful to set out the relevant parts of the report by the tribunal, the decision which has been quashed and the judgement of Collins J..
5.   The Tribunal’s Report
“1.	On the 22nd October 1998 the appellant appeared at Ealing Magistrates’ Court and pleaded guilty to the offence of driving having consumed excess alcohol.  He was fined £300, disqualified from driving for 1 year and ordered to pay £59 costs.  On the 8th December 1998 he appeared before the full Board for a disciplinary hearing.  He admitted an offence contrary to Discipline Code 16, that he had been convicted of a criminal offence.  The punishment determined was that the appellant be required to Resign forthwith.  The decision of the Board was appealed and the hearing of that appeal took place on the 25 May 1999 before Assistant Commissioner Johnston.  The Appeal was dismissed.  This Tribunal has been appointed by the Home Secretary to consider an appeal against the punishment imposed.  We met to consider the appeal on the 12th October 1999.
2.	Neither party to this appeal requests an oral hearing in this case.  The Tribunal does not consider that an oral hearing is required.  We have, therefore, proceeded to consider the appeal based on the  written material before us.
GROUNDS OF APPEAL AND RESPONSE
3.	The appellant submits that the punishment was manifestly excessive in view of the circumstances surrounding the original criminal offence; that it was unfair and inappropriate in the light of the evidence of good character; that the original Board had failed properly to appreciate the true circumstances.
4.	The respondent disputed each of the Grounds of Appeal.
FACTS
5.	The appellant had attended a social function on the evening of the 15 July 1998.  We accept that it was his intention to spend that night at a section house and not to drive.  We are told that he had a  reservation for that night at the section house and this has not been contradicted by any other evidence.  It appears that there was some unpleasantness of a racist nature at the social function.  The appellant was distressed both by abuse directed towards him and also by the failure of other officers present to offer any assistance to him.
6.	The appellant claims that he had drunk approximately 4 pints of lager during the course of the evening.  It was put forward on his behalf that he was unaware that he was over the prescribed limit for driving.  On the information before us, it is not clear whether he gave thought to whether he was above the prescribed limit for driving and concluded that he was not or whether he simply didn’t apply his mind to that issue.  Nevertheless, we found no sufficient evidence that he deliberately drove at a time when he appreciated he was possibly over the prescribed limit.
7.	A minor accident occurred between the appellant’s car and another vehicle.  The issue as to the cause of this accident has never been resolved and we are not asked by either side to try and resolve it.  In these circumstances, we  cannot reach any conclusion as to who was responsible for the accident.  It therefore follows that we cannot conclude that the amount of alcohol consumed by the appellant contributed in any way to this accident.  On the evidence before us, the accident may not have been his fault at all.  In any event, the consequence of the accident was very minor damage to the other vehicle.
8.	The two drivers stopped to exchange particulars and passing police officers stopped to investigate.  Both drivers were breathalysed, the appellant failing the test and the other driver passing it.
9.	The appellant behaved properly and appropriately throughout the breath testing procedure and his subsequent arrest.  Police Sergeant Boustead noted that he was “totally calm, polite, co-operative, lucid of thought, and clear in speech”.  The breath test reading relied upon in the prosecution of the appellant was 58 micrograms of alcohol in 100 millilitres of breath.  It therefore exceeded the prescribed limit by 23 micrograms.

BACKGROUND
10.	We have been supplied with a great deal of useful material about the appellant’s background and history.  Although he has not been a police officer for a great length of time, it is apparent to us that the overall assessment of him as “enthusiastic, reliable and hard working” is a wholly appropriate one.  During his 7 years in the police force he has impressed a variety of colleagues with his good qualities.  Without expanding on the detail contained in the written statements of the six police sergeants who provided references for the appellant, he is undoubtedly an officer with a great many excellent qualities, making him a valuable member of the police force.  In addition to his general good qualities, he also has the asset of being able to assist in liaison and investigation concerning an ethnic minority group.  In particular, he is bilingual and therefore can provide assistance in that way.
11.	Chief Superintendent Kelleher gave evidence before the Board and supported the written character evidence of Superintendent Joley.  These senior officers clearly both thought extremely well of the appellant.
12.	Unknown to the appellant’s colleagues, the appellant had sought assistance from a Consultant Clinical Psychologist in 1996.  He had been complaining of symptoms of depression, low mood, tearfulness, irritability and increase use of alcohol following the break-up of a relationship with a girlfriend.  There had apparently been a previous similar episode of depression etc.  some time previously.  We were supplied with a report from John Spector, Consultant Clinical Psychologist, who concluded that the appellant had been making excellent progress since seeking the assistance of a psychologist, although these proceedings had caused a setback.
13.	We noted that the appellant had shown the insight into his own personal difficulties to seek help and that this was not something done merely in the aftermath of the arrest for the drink driving offence.  We also note that the appellant had successfully concealed his personal difficulties from colleagues and had not allowed it to affect his work.  It is clear from the assessment of his colleagues that his personal problems did not result in poor performance at work.  We regard this as being to his credit.
EVENTS SINCE ARREST
14.	We found the appellant’s conduct in the aftermath of his arrest to be entirely to his credit.  Not only did he conduct himself with decorum on the night in question, he continued with his duties in an entirely proper and conscientious way and did not seek to avoid his responsibilities by taking, for example, sick leave.
CONCLUSIONS
15.	We found that the appellant had been experiencing considerable personal difficulties at the time that this offence occurred.  He had tried to deal with these and had the courage to seek assistance from a psychologist.  It was obvious that he was under stress at the time of the incident and that this was exacerbated by the unpleasantness that had taken place that evening and which had led him to leave the social function.  We also concluded that he had not deliberately flouted the law, but had failed properly to apply his mind to the consequences of his decision not to spend the night at the section house, as he had originally planned.
16.	We do not consider that the alcohol level was merely marginally over the prescribed limit.  Nevertheless, we do not regard it as a particularly high reading.  From the experience of members of the Tribunal, the reading appears roughly consistent with the period during which the appellant claims to have been drinking and with the amount of alcohol the appellant claims to have drunk.  It is not, therefore, a case of somebody drinking excessive amounts of alcohol.
17.	We find the appellant to be somebody who is an obvious asset to the police force.  He is clearly dedicated to his work and has always displayed a great commitment to his responsibilities.  Whilst each member of the Tribunal has grave reservations about ever allowing an officer to continue in the force after a conviction for an offence of this nature, we have nevertheless concluded that there are exceptional reasons in this case for so allowing this appellant.  We were greatly impressed with his excellent qualities and his dedication to his duties.  The added asset of the being of real assistance in cases involving an ethnic minority had only a small bearing on our decision.  We regard this as an isolated incident and one which is unlikely to ever be repeated.
18.	In all the circumstances it is our unanimous conclusion that this appeal ought to be allowed.  It is our recommendation that the punishment of Requirement to Resign be substituted by a Reprimand.”
5.	The Secretary of State’s Decision
“3.	The Secretary of State considered all the facts of the case, the points raised in Mr. Bhoti’s grounds of appeal and in the Commissioner’s response.  He has also carefully considered the report of the tribunal but, for the reasons given below, has decided not to accept the tribunal’s recommendation.
4.	With regard to the circumstances surrounding the commission of the criminal offence, the Secretary of State notes that it was Mr. Bhoti’s intention to drink alcohol at the function and to stay at a section house so he would not need to drive home.  Instead of this, Mr. Bhoti decided to drive home.  The Secretary of State takes the view that there was no compelling need for Mr. Bhoti to drive.  That he had made arrangements to stay in a section house indicates that Mr. Bhoti did not intend deliberately to flout the law but equally it shows that he was clearly conscious of the risks and, for whatever reason, took a chance.
5.	The Secretary of State has considered the factors put forward to explain Mr. Bhoti’s decision to drive.  He accepts that the racial abuse to which Mr. Bhoti was subjected must have been extremely unpleasant.  However, he does not consider this to have been a compelling reason for Mr. Bhoti to drive when he had been drinking.  He notes that Mr. Bhoti left the function later and not immediately after the abuse.  He also notes that Mr. Bhoti  had further time to reflect on his actions in the twenty minutes it took him to walk to the car.  The Secretary of State does not consider therefore that Mr. Bhoti’s decision to drive was made in the heat of the moment.
6.	The Secretary of State takes a different view from the tribunal on the issue of Mr. Bhoti’s awareness of his being over the limit.  He notes that Mr. Bhoti drank approximately four pints of lager.  The Secretary of State finds it inconceivable that an experienced officer would not appreciate that four pints of lager was highly likely to take him over the prescribed limit.  He also finds it inconceivable that a police officer might not “apply his mind” to this issue.  The Secretary of State notes that Mr. Bhoti was more than 1 ½ times over the legal limit.  He does not consider this to be marginally over the limit.
7.	The Secretary of State has taken account of the fact that Mr. Bhoti was involved in an accident on his way home.  He notes that the collision resulted  in very minor damage and no personal injury.  Whilst he accepts that there was no attribution of responsibility for the accident he does not take the same view as the tribunal that the alcohol consumed may have played no part in the accident.
8.	The Secretary of State has taken account of all the mitigation, including Mr. Bhoti’s record of service, the glowing character references given by senior officers and Mr. Bhoti’s attitude at the time of the incident and later.  However, he does not consider these or the circumstances surrounding the offence to be sufficiently exceptional to outweigh the seriousness of Mr. Bhoti’s conduct.  He takes the view that drink./driving is a serious offence, particularly when committed by a police officer who is well aware of, and responsible for, upholding the  law and he does not consider the punishment imposed to be excessive, unfair or inappropriate.  In the light of this, the Secretary of State has decided to dismiss the appeal.  A copy of the Order determining the appeal is enclosed.”
6.	The Judgment below
“34.	However if … the Secretary of State decides that he will not follow the recommendation of a Tribunal he must have good reason for so doing.  It is of course right as a matter of law that the decision is the decision of the Secretary of State.  If one looks at it in isolation it may be that one can say that this is a decision which cannot be regarded as irrational.  But that is not the end of the story.  It seems to me that one must take account of the recommendation because, at the very least, the Secretary of State is required to take it into account and that must mean that he must take it properly into account.  He is not, in my judgment, entitled simply to say:  ‘I do not like it.  I do not agree with it.  I am not going to follow it.’  He has to have in such circumstances some reason for failing to follow it.  If it transpires that his reasons are inadequate, or do not stand up to scrutiny, that may indicate that his subsequent decision is one which cannot stand.  Accordingly, it is necessary to see what reasons he does give for not following the recommendation.  Those reasons are to be found in the decision letter of 14th March.
36.	Mr Bromley-Martin … submits that in stating that there was no compelling need for Mr Bhoti to drive the Secretary of State was applying altogether too high a test. …
37.	It seems to me that the Secretary of State was perfectly entitled to approach this case in [sic] taking account as one factor which he had to consider in assessing the seriousness of the offence, that there was no compelling need to drive.  That is clearly correct.  There was no compelling need.  This was not a case, therefore, which even began to approach special reasons and that was undoubtedly a matter that the Secretary of State was properly entitled to take into account.  His conclusion in the last sentence that this showed that Mr. Bhoti did not intend deliberately to flout the law is, of course, an important factor as well because that goes perhaps the other way and shows some mitigation for what in the end happened, making it clear that this was something that arose unexpectedly and was not something which was anticipated by Mr. Bhoti when he started his evening at the social event.
38.	Equally, it is quite fair for the Secretary of State to say that Mr. Bhoti was conscious of the risks.  He obviously was.  He thought that he was going to be drinking more than was appropriate, if he was to drive a motor car, and for whatever reason took a chance.  Again, I do not think Mr. Bromley-Martin could or indeed seeks to criticise that as a conclusion reached by the secretary of State.  Accordingly, in my view, there is nothing in that complaint.
40.	The Secretary of State has already accepted, and indeed the Tribunal makes clear, that the claimant decided to drive as a result of an unpleasant incident which occurred at the social function.  The Tribunal went on to refer to his depression and his consultation with a clinical psychologist some time before that.  The Tribunal goes on to indicate that he was under stress at the time of the incident and that was exacerbated by the unpleasantness.  Accordingly, his state of mind was not normal.  That must be the only conclusion to be reached from those findings at the time he decided to drive his car.  True that he did, as is recorded, take 20 minutes to walk to his car.  It is said that that meant that he did not drive, as it were, on the spur of the moment and in the heat of the incident which occurred.  That may be so, but nevertheless it does not detract from the facts as found by the Tribunal.  It has not been disputed by the Secretary of State that he was in a stressed state and so not in a normal state of mind.  That is my gloss, but it seems to me inevitably to follow.
41.	Accordingly, one is not dealing with someone who is thinking entirely rationally of the consequences of his actions.  It seems to me in those circumstances that it is quite unreasonable to find that it was inconceivable that he would not appreciate that four pints of lager was highly likely to take him over the prescribed limit and, equally, it is unreasonable to find it inconceivable that he might not as a police officer have applied his mind to the issue in question.
42.	Mr. Bromley-Martin further submits that if one looks at those two sentences what the Secretary of State must be saying to himself is this:  ‘It is inconceivable that he might not apply his mind to this issue.  Therefore, he must have applied his mind to the issue.   If he had applied his mind to the issue it would be inconceivable that he did not appreciate that four pints of lager was highly likely to take him over the prescribed limit.’  I agree.  As it seems to me, what the Secretary of State is saying to himself is that he  must have realised when he drove that he was highly likely to be over the limit.  In those circumstances, it follows that he is saying, in effect, that Mr. Bhoti deliberately chose to drive his motor car knowing that it was highly likely that he was over the limit.  That, of course, is not only contrary to the findings of the Tribunal, but in my view is adopting far too harsh a view of the likely state of mind and thought processes of this particular individual, bearing in mind that unchallenged findings of the Tribunal about the stress under which he was operating at the time, exacerbated by the unpleasant incident that occurred at the social function.
44.	Accordingly, at the very least, the Secretary of State must have approached his decision on the basis that the consumption of alcohol may have played a part in the accident that occurred and, thus, may have substantially impaired the driving ability of the claimant at the material time.
45.	The Regulations require that any allegation relied on to establish a disciplinary offence has to be proved against an officer.  That of course is limited, just as a  prosecution for a criminal offence is so limited, to establishing guilt.  Here guilt was admitted. And so that particular regulation did not directly apply.  Nonetheless, as it seems to me, by analogy with criminal processes, if a particular view of the offence is to be taken which is more adverse to an officer than that which he has prepared to admit, any aggravating circumstances must be proved.  The onus must be upon the respondent police force to establish those matters, just as would occur in the criminal field in a Newton hearing.
46.	Now here the claimant’s case was, first, that the alcohol played no part in the accident; and secondly, this point is also relevant to the matter I have just dealt with, that his state of mind was such that he did not appreciate that he was highly likely to be over the prescribed limit.  If it was going to be held against him that alcohol played a part in the accident, it seems to me that that is a matter which ought to have been established by some evidence stated before the relevant disciplinary bodies.  It was not.
47.	The Tribunal records, as I have already indicated, that they were not asked by either side to try to resolve the issue as to the cause of the accident.  In those circumstances, as it seems to me, it was wrong for the Secretary of State to have regard to the fact, as he would have it, that the alcohol may have played a part in the accident, because that obviously would be an aggravation of the circumstances of the offence.
48.	Accordingly, as it seems to me, in carrying out the balancing exercise that he had to carry out the Secretary of State has placed far too much weight in the scales against this claimant.  I appreciate of course that as a general proposition the Secretary of State as decision-maker must decide what weight to attach to any particular item.  That is true.  But if he is putting into the scales matters which ought not to be there at all, as has happened in my judgment here, then the decision that is finally reached is one which is clearly flawed on classic Wednesbury grounds.  Although it is described as irrationality, for my part I have always regarded that to be something of a misnomer when one is considering, as here, having regard to immaterial considerations, which is what effectively he has done.  He has had regard to matters which he ought not to have regard to and that has, in my judgment, quite plainly tainted the decision which was ultimately reached.”
Discussion.
7.	Ms Sarah Moore had two main submissions. The first was that Collins J was wrong in what he said should be the approach of the Secretary of State to a case where the tribunal had made a recommendation that an appeal be allowed. The second was that the judge was in error in criticising the approach of the Secretary of State to the question of alcohol and the accident. I propose to deal with the second matter first because it is the easier point.
8.	The Tribunal in paragraph 7 of its report states that it was unable to reach a conclusion as to who was responsible for the accident and therefore could not conclude that alcohol contributed in any way to this accident. The Tribunal therefore concluded that alcohol may have played no part in the accident. As I read paragraph 7 of the Secretary of State’s decision he expressly disagrees with the tribunal. That being so,  and this disagreement being (according to paragraph 3 of his decision letter) one of the reasons why he decided not to accept the tribunal’s recommendation, my reading of the letter is that the Secretary of State concluded that alcohol did play a part in the accident. 
9.	If that is a correct reading of the Secretary of State’s letter then the Secretary of State fell into error. As appears from the unchallenged assertion in paragraph 6 of Mr Bhoti’s solicitor’s affidavit cited in paragraph 22 below, at no time had it been contended by anyone that alcohol had contributed to the accident. It would be grossly unfair and also not be based on any evidence to conclude that alcohol had contributed to the accident. This was I think accepted by Ms Moore. 
10.	In my judgement, even if this is merely a possible reading of the letter the Mr Bhoti is entitled to have the decision quashed so that the Secretary of State may clarify his thinking process.
11.	Ms Moore contended however that a proper reading of the decision letter should lead the court to the conclusion that all that the Secretary of State was saying was that alcohol may have contributed to the accident and that this was an incontrovertible proposition. I would accept that it is an incontrovertible proposition. However, even if one accepts, which I do not, that this is the correct reading of the letter,  and one further accepts, which I would, that the Secretary of State was entitled to come to the conclusion that alcohol may have contributed towards the accident, I consider that the Secretary of State, at any event in the circumstances of this case, still was not entitled to hold that against Mr Bhoti.
12.	The Police Discipline Regulations have the flavour of the criminal law. They refer to “charges”, “offences”, “the accused”, “punishment” and “disciplinary conviction”.   Regulation 23 provides:-
“(1)	The officer conducting the hearing of a charge shall, at its conclusion, dismiss the charge or find it proved.
     (2)	A charge shall not be found proved unless it is –
	(a)	admitted by the accused; or
(b)	proved by the officer presenting the case to the officer conducting the hearing beyond reasonable doubt.”
13.	They provide for warnings to be given to the member subject to an investigation that he is not obliged to say anything. Parliament clearly regarded the regime which they impose with its possible penalties including a fine as being sufficiently similar to the criminal law to require the criminal burden of proof to be satisfied before  penalties are imposed.
14.	Ms  Moore, criticising the judge’s reasoning in paragraph 45 of his judgement, submits that although the criminal burden applies before a man can be found to have committed a disciplinary offence, when it comes to deciding on penalty the civil burden applies. 
15.	The argument before us proceeded on the basis that the root question was whether the civil or criminal standard was appropriate. For my part I consider that the judge was right and that Parliament intended that the criminal burden should apply throughout. I would add to the citation of R v Newton 77 Cr App R. 13 a citation of R v Kerrigan (1993) 14 CR App R(S)179. If the presenting officer wishes to draw to the attention of the tribunal any fact in aggravation then he must either persuade the member subject to investigation to admit this aggravating fact or he must prove it to the criminal standard. 
16.	Any other approach seems illogical even in a disciplinary rather than strictly criminal context. Suppose a P.C. is charged with stealing paper from the office in which he works, a criminal offence. He admits to stealing one sheet. The presenting officer in the disciplinary proceedings submits that the P.C. has stolen thousands of sheets. Though technically the same offence under the discipline code, the one may be regarded as venial and not justifying dismissal, the other as serious and as justifying dismissal. In my judgement the criminal burden of proof applies to whatever fact it  is that has to be proved to justify the assertion that the offence is aggravated by that fact. 
17.	But in my judgement it is clear in the present case that, whether one applies the civil or the criminal burden, it has not been shown that alcohol in fact contributed to the accident. Ms Moore, as I understood her, was inclined to concede as much.
18.	By contrast, in my judgement it is clear in the present case that the presenting officer has proved both to the civil and to the criminal standard the fact that alcohol may have contributed to the accident. The crucial question is whether the mere fact that alcohol may have contributed to the accident is enough to be regarded as a crucial factor in aggravation – by which I mean a factor by reason of which a greater rather than a lesser punishment is imposed.
19.	Ms Moore did not address us on that specific point. She sought to side-step it by submitting that it had not been shown that the decision to impose the punishment of a requirement to resign could not have been reached quite apart from the accident factor. I accept that submission as it stands but do not regard it as justifying the allowing of the appeal. While I would incline to the view that it was open to the Secretary of State to reach the view on the material before him that a requirement to resign would have been a legally permissible decision for him to take quite apart from the accident factor, the fact is that in the instant case the Secretary of State gave it as one of the reasons which motivated his decision. That being so, the fact that he might have reached the same conclusion without it is not to the point.
20.	So one is left with the potentially difficult question whether the mere fact that alcohol may have contributed to the accident can be a crucial factor in aggravation. For my part, I would not wish, in the absence of more argument than we have received,  to lay down a general rule that it can never be justifiable to regard the fact that something may have happened as a crucial factor in aggravation. It could not be so in a criminal context and it may be that the present case is so close to the criminal context as to be indistinguishable. On the other hand, in a purely employment context it would I apprehend be acceptable to dismiss say a child-minder upon the basis that, one occasion of hitting the child’s head having been admitted by him or her, it is possible that damage has been done to the child’s physical or mental well being although this has not been proved. It may be that, when dealing with the police force, for the proper functioning of which public perceptions are so vital, the disciplining authority, faced with an admitted or proved offence, is entitled to bear in mind, when considering whether the member under investigation should remain in the police force, reasonable public perceptions of what may well have happened. I would prefer not to come to any settled conclusions on that matter and I see no need to.
21.	In the present case, I would dismiss this appeal on the following basis. It appears from the Decision Letter that the Secretary of State regarded as a crucial factor in aggravation either the fact that or the possibility that alcohol contributed to the accident.  Mr Bhoti’s solicitor in an unchallenged part of his affidavit states in paragraph 6:
“In the case of the applicant, Ravi Bhoti, it was never contended before the Magistrates’ or the Discipline Board that his driving in any way contributed to the accident which occurred, on the basis that that driving was particularly reprehensible or it was considered that the minor accident arose as a result of the influence of alcohol.”

23.	It is in my judgement unfair, in the context of the present case, then to require Mr Bhoti to resign because of the accident. To put it no higher, this is what may have happened.
24.	It is therefore unnecessary to decide whether or not the Secretary of State’s approach to the recommendations of the tribunal was correct. However, since the matter is returning to the Secretary of State it may be helpful if I state my opinion. 
25.	There is no doubt that the Secretary of State is entitled to come to a conclusion which differs from that of the Tribunal : : R v Secretary of State for the Home Department ex parte Barr   7 Admin LR 157 C.A..
26.	There is no doubt that he is required to give reasons for his decision : Police Act 1964, Schedule 5 para 4(1). The law as to the quality and detail of the reasons which need to be given is copious and very fact specific. Given that Parliament has expressly required the Secretary of State to appoint a tribunal to report to him I consider that it is incumbent on the Secretary of State to indicate in relation to matters of fact found by the tribunal whether he agrees or disagrees with their findings and if so why or whether he does not regard a particular finding as being of any ultimate significance. So far as the appropriate punishment is concerned, I consider that he is required to set out the considerations which cause him to differ from the tribunal. The degree of detail will be very fact specific.
27.	In the present case I incline to the view that some of the wording used by the judge may indicate an impermissible straying on his part into the decision making territory of the Secretary of State. I refer to his comments in paragraph 40-42 of his judgement in relation to the mental processes of Mr Bhoti when he decided to drive. However I would endorse the judge’s view expressed in paragraph 34 that if the Secretary of State decides that he will not follow the recommendation of the tribunal he must have good reasons for so doing. 
28.	I have already indicated why in the present case, judging by the wording of the Decision Letter,  I regard the way the decision was apparently reached as unfair and therefore unlawful. I do not think that any useful purpose would be served by any further examination of the minutiae of the wording.
29.	In conclusion I ought to mention that in the Judicial Review proceedings various statistics were produced by the Home Office which indicate that not all officers who are caught driving with an excess of  alcohol in their blood are as severely disciplined as Mr Bhoti was. Mr Bromley-Martin would put the matter significantly higher and he developed his able argument in court. There does seem room for the view that the person compiling those statistics had not him/ or herself fully appreciated their impact. It may be that the decision taker also did not have the full and correct figures in mind.
30.	The potential significance of this is simply that amongst the many burdens which fall on the Secretary of State is that he must as a matter of good administration and general fairness try and treat like cases alike. This is a notoriously difficult exercise with which judges in the criminal field are very familiar. He will no doubt, when the matter is returned to him, bear this consideration in mind.
31.	Decision. This appeal is dismissed.
Lord Justice Clarke:
32.	I agree with Schiemann LJ that the appeal should be dismissed.  With one or two small reservations expressed below, I also agree with his reasoning.
33.	Like Schiemann LJ, I too agree with the judge that, given that by regulation 23 Parliament has provided that the criminal standard of proof should apply to the question whether “the charge” is proved, the reasoning in R v Newton (1983) 77 Cr App Rep 13 and R v Kerrigan (1993) 14 Cr App Rep (S) 179 leads to the conclusion that, where the presenting officer (or the Secretary of State) wishes to impose a penalty on a factual basis other than that put forward by the officer charged, save in cases where the officer’s case is fanciful, the relevant facts must be proved to the criminal standard of proof.
34.	On the facts here it was not proved that the accident was caused or contributed to by the amount of alcohol consumed by Mr Bhoti.  In these circumstances, it was not, in my opinion, open to the Secretary of State to proceed on the basis that it was.  However, for my part, I do not think that he did.  I agree with Schiemann LJ that it may be that, read strictly grammatically, the passage in the Secretary of State’s decision letter in which he expressly states that he does not take the same view as the tribunal “that the alcohol consumed may have played no part in the accident” means that he was concluding that alcohol did play a part in the accident.  However, I am not persuaded that that is what he meant, if only because there was no evidence to that effect.  I certainly agree that, if he did mean that, the decision is flawed in law because no reasonable Secretary of State could have reached that conclusion.
35.	However I think that the Secretary of State simply meant that alcohol may have played a part in the accident.  It seems to me to be clear from paragraph 7 of the decision letter that the Secretary of State regarded that conclusion as a relevant factor in reaching his conclusion that he should not accept the recommendation of the tribunal but that Mr Bhoti should be dismissed.  In my judgment that was not in law a relevant factor to take into account.  
36.	I can see that, as Schiemann LJ has observed, the position may be different in a wholly employment context, but this is not such a case under the regulations as they apply to these proceedings.  I understand that they have changed since and I say nothing as to the effect of any new regulations.  But, once it is held that, if the Secretary of State is to take account of a fact not accepted by the officer concerned, it must be established to the criminal standard, it is not open to him to take account of a fact which may have happened.  He must be sure that it happened.  Thus, here, the accident was not relevant unless the Secretary of State could be sure that it was caused or contributed to by the amount of alcohol consumed by Mr Bhoti.  He could not be so satisfied.
37.	In short I entirely agree with the reasoning of the judge in this regard and would dismiss the appeal on this basis.  I say nothing about the remainder of the case, since the matter will no doubt now be reconsidered by the Secretary of State, who will no doubt have regard to all relevant material now available.  In this respect, like Schiemann LJ, I feel sure that he will wish to ensure that decisions in this class of case are reasonably consistent and thus to take account of all the information now available.
Mr. Justice Wall: -
38.	1.	I have had the opportunity of reading the judgments of Schiemann and Clarke LJJ in draft, and agree that this appeal should be dismissed.

39.	2.	Like my Lords, I take the view that the decision letter of 14 March 2000 is capable of being attacked in only one respect, namely paragraph 7 which Schiemann LJ has set out at paragraph 6 of his judgment, and which I will not repeat.  This is, however, in my judgment, a critical part of the case.  
40.	3.	Had there been no accident, the Respondent would not have been breathalysed, and found to be over the limit. In some of the cases we were shown as comparators, damage or injury caused by officers in accidents whilst driving over the limit had, rightly , been regarded as an aggravating factor. Here, the Tribunal clearly regarded the absence of any evidence as to who was responsible for the minor accident which had occurred, and their consequential inability to conclude that the amount of alcohol consumed by the Respondent had contributed in any way to the accident, as important mitigating factors in the reasoning process which led to the conclusion they expressed in paragraph 17, that there were exceptional reasons in the Respondent’s case for allowing him to remain in the police force notwithstanding his conviction for drink driving. 
41.	4.	The Home Secretary is, of course, entitled to disagree with and reject the Tribunal’s recommendation. But if he is to do so, he must give good reasons.  In my judgment, his reasons for disagreeing with this aspect of the Tribunal’s assessment are not sound. For my part, I tend to agree with Clarke LJ that what the Home Secretary was saying was that alcohol may have played a part in the accident. That, in my view is the meaning if one removes the double negative and reads the sentence as “he takes the view that the alcohol  consumed may have played a part in the accident”.

42.	5.	Whichever way the sentence is read, however, the result is in my judgment, the same. On an important aspect of the case, the Home Secretary was taking into account against the Respondent something about which there was no evidence, and which therefore had plainly not been established  on the criminal  burden of proof.  Furthermore, as Schiemann LJ points out in paragraph 22 of his judgment, with its citation of an extract from the affidavit sworn by the Respondent’s solicitor,  at no stage had the case against the Respondent been conducted on the basis that the accident arose as a result of the influence of alcohol. It follows that by relying on the assertion that alcohol may have played a part in the accident, the Home Secretary  was, in my judgment, acting unfairly and taking into account something which he should not have taken into account. I therefore find myself in agreement with paragraphs 44 to 47 of the judgment of Collins J which Schiemann LJ has cited and in agreement with Schiemann and Clarke LJJ that the appeal should be dismissed. 

Order: Appeal dismissed with costs
(Order does not form part of the approved judgment)