Case No: CO/3770/2000
Neutral Citation Number: [2001] EWHC Admin 262
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Monday 9th April 2001

B e f o r e :

THE HONOURABLE MR JUSTICE SCOTT BAKER
- - - - - - - - - - - - - - - - - - - - -

	THE QUEEN (on the application of JOHN MORGAN)		Claimant	
	- and -		
	CHIEF CONSTABLE OF SOUTH WALES	Defendant	

- - - - - - - - - - - - - - - - - - - - -
(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)
- - - - - - - - - - - - - - - - - - - - -

Mr Tim Eicke (instructed by Russell, Jones and Walker for the Claimant)
Mr Nicholas Ainley (instructed by D.G. Madge LLB. Force Solicitor, South Wales Police for the Defendant)

- - - - - - - - - - - - - - - - - - - - -

Judgment
As Approved by the Court

Crown Copyright ©

 Mr Justice: Scott Baker

1.	The Claimant is a police inspector in the South Wales Constabulary. He seeks judicial review of the decision of 14 July 2000 to withdraw his qualification for promotion (“his white ticket”). He had held this status since 10 February 1998. The decision letter from the Chief Constable said:
“I have thoroughly read the attached papers, paying particular attention to the reports from Chief Superintendent Toms and Superintendent Jones
 I note the comments of Chief Superintendent Toms which are supportive. However, I have now been fully briefed on Inspector Morgan’s involvement in police actions subsequent to the City Road incident. Poor supervision of this matter by Inspector Morgan raises questions about his judgment and his ability to assume a more senior position in the organisation. I conclude that the seriousness of this lack of judgment outweighs the comments of Chief Superintendent Toms. I therefore do not have confidence in Inspector Morgan’s judgment, sufficient to promote him to the rank of Chief Inspector. On the basis of the evidence before me his qualification for promotion through the assessment process is withdrawn.”

2.	The background to the white ticket is this. In October 1997 the Claimant responded to a notice in Force Weekly Orders inviting inspectors to apply for positions of Chief Inspector. About 100 officers were eligible and about 60 applied. All those were invited to participate in stage one of the process and about 48 did. This involved a two part written examination. One part involved preparing a business plan for running a Division; the other an exercise dealing with a serious public order incident and deploying officers from all over the force. About half the candidates failed and the other half proceeded to stage two. This involved a series of exercises conducted at an R.A.F base over half a day. The candidates were given four exercises to test management skills and ability. The Claimant came top in two and did well in the other two. He and about fifteen others proceeded to stage three which involved an interview lasting about forty minutes. The result was that the Claimant and seven others were given a white ticket on 10 February 1998. The letter said:
“As a result of your application for promotion to the rank of Chief Inspector, I am pleased to inform you that you have been successful.
Your successful status is not time limited, and subject to your continued satisfactory performance and a health check, you will be promoted in due course.”

3.	Most of the other officers who were selected for promotion at the same time were promoted within six months. The latest was promoted within about eleven months.
4.	In the meantime on 19 August 1997 an incident had taken place which became  known as the “City Road incident”.  It involved violence between youths of different races. The Claimant was not directly involved in the City Road incident. Although he was in charge of the Cathays Police sector in Cardiff, he was neither on duty nor even in Cathays at the time. He was, however, involved in subsequent events which lead, in February 1998, to complaints being made against officers at the scene. The Defendant launched an enquiry into these complaints which was supervised by the Police Complaints Authority.
6.	During the investigation the Claimant was served, on 7 August 1998, with a written notice of an allegation and/or complaint being investigated against him under Regulation 7 of the Police (Discipline) Regulations 1985. It alleged that he failed to ensure the investigation into the incident was carried out thoroughly and expeditiously. His response was:
“I totally refute this allegation and fail to understand why it is being bought in the first place.”

7.	The recommendation of the Police Complaints Authority, as far as the complaint was concerned, was that he should be the subject of a strongly worded admonishment. This was administered by Assistant Chief Constable Lewis on 1st March 2000. It would have been administered earlier but for the Claimant’s protracted absence from duty on sick leave.
8.	On 29 October 1999 Chief Superintendent Toms, the Claimant’s line manager, wrote to Mr Lewis: 
“The recent complaint investigation involving Inspector Morgan in itself taught the officer a salutary lesson in the benefit of having awareness for the wider aspect of operational incidents. His failings highlighted by the investigating officers report arise, I believe, from carelessness on his part as opposed to deliberate neglect. Whilst Inspector Morgan failed to recognise the clear symptom of a racist incident, for which he was responsible in terms of management, I do not believe that this detracts from his overall ability.”

He concluded:
“Overall I am satisfied that Inspector Morgan possesses all the necessary qualities that make him a suitable candidate for promotion for the rank of Chief Inspector.”

9.	On 2 November 1999 there was a meeting between Mr Lewis and the Claimant at which the Claimant was informed his promotable grade was being withdrawn and that he would be subject to close supervision for one year. However, Mr Lewis telephoned him soon afterwards to say he had made a mistake and that the Chief Constable confirmed that he would retain his promotable grade but would be subject to close supervision for one year before promotion would be considered. This was confirmed in a letter of 11 November. That letter included the passage:
“Given the recommendation from the Police Complaints Authority that, as senior inspector at Cathays at the time of the incident, you receive suitable advice in respect of your failure to supervise the investigation adequately, the Chief Constable questioned whether you should retain your promotable grade. The issue was fully discussed and the Chief Constable agreed that a report should be called for from your divisional commander and that he would then take a decision on the matter.

A report was then submitted to myself outlining the issues to which was attached a performance report from Chief Superintendent Toms. The Chief Constable replied to these reports on the afternoon on 2 November, appending his comments to my report. In his response, the Chief Constable indicated that he “does not feel able to assess (him) as suitable for consideration for promotion at this time.” He called for a further report in twelve months.”
10.	The letter continued:
“Immediately after our meeting, however, I had an opportunity to discuss your situation again with the Chief Constable and he made it clear that, whilst promotion was not appropriate over the next twelve months, he would be agreeable to you retaining the promotable grade subject to close supervision and continued satisfactory performance. He asked for a further report in twelve months.”

11.	The Police Complaints Authority report was in general treated by the Defendant as confidential, but that part of it that related specifically to the Claimant was made available to him together with the accompanying summary of the investigating officer Superintendent Jones dated 23 May 2000. It is unnecessary for present purposes to describe in detail the circumstances that lead to the Claimant’s admonishments. Broadly, he became too immersed in part of the incident and took a different view from another inspector, Farrer, who was the Minorities and Racial Incidents Unit inspector. The Claimant’s management of the investigation was clouded by prima facie evidence that one of his officers had been violently assaulted and that a letter of apology had been received from the person responsible. He had failed to deal with the investigation sufficiently thoroughly and speedily. In mitigation he had said when interviewed that he still believed matters had been dealt with correctly but with hindsight perhaps things could have been progressed more quickly and efficiently than they were.
12.	On 31 May 2000 Inspector Toms wrote again to Mr Lewis saying the Claimant had made excellent progress, that he had done good community work and that he was senior investigating officer on a protracted fraud enquiry. He concluded by saying that he had all the necessary qualities and attributes to make him suitable for promotion to chief inspector. The Chief Constable decided to withdraw the Claimant’s promotable grade because he concluded that his lack of judgment, evidenced by his handling of the aftermath of the City Road incident, outweighed the positive reports by his line manager. He decided he did not have the confidence in the claimant’s judgment to promote him to chief inspector. 
13.	The Claimant’s first ground of complaint is that withdrawal of his white ticket on 14 July 2000 was either a disciplinary sanction following his conduct in the City Road incident or was something akin to it. My attention was drawn to the Police (Discipline) Regulations 1985 and in particular to Regulation 12 (legal representation), Regulation 23 (findings) and Regulation 24 (punishment). Regulation 24 sets out a comprehensive range of punishments namely dismissal, resignation, reduction in rank, fine, reprimand and caution. Notably, admonishment is not among them; nor is advice. The Claimant was not, however, as a matter of fact proceeded against under these regulations. Nevertheless, it is submitted what happened was that in all but name he was required to meet a disciplinary charge and natural justice required that he should have had a fair hearing. The Police Complaints Authority report suggests that an offence was committed and, it is submitted, what the Chief Constable did was to punish him. The Chief Constable withdrew his ability to prove himself for promotion; he would have to go through the assessment process again. Normally promotion inevitably follows receipt of a white ticket, but absent a white ticket he cannot be promoted.
14.	I was referred to a number of authorities. In Murray and others v Chief Constable R.U.C. (1987) (unreported) Northern Ireland High Court 1986 No.81. Sgt Murray had to answer complaints about his conduct in a public house. There was a disciplinary hearing before the Chief Constable under the relevant police regulations. He was found guilty of the charge and reprimanded. There was no complaint about that, but the Chief Constable said that Murray and three other officers had put their heads together to tell lies. He said he would consult the personal files of each of them and their positions and consider any moves he thought necessary. He said any hopes they had of future promotion had been put on hold; it was time for changes. That was how they put it. The Chief Constable’s version was that they couldn’t continue to serve in the same area or in their present roles and that they would be transferred and revert to uniform. Higgins J. concluded that the Chief Constable regarded their transfer and change of duties as punishment which was unlawful if imposed otherwise and under disciplinary procedures.
15.	In my judgment Murray is clearly distinguishable as the Chief Constable’s decision in the present case was made on the ground that his concerns about the Claimant’s judgment, highlighted by the Police Complaints Authority, report overrode the other positive factors in favour of promotion. In no way could the withdrawal of his white ticket be properly construed as a punishment. The problem for the Chief Constable was whether the Claimant was up to the post of chief inspector. It was his job to run an efficient and competent police force and once he had reached a conclusion that the Claimant was not suitable for promotion there was no purpose in leaving his name on the list of those with a white ticket.
16.	R v The Constable of the Merseyside Police ex parte O`Leary (unreported) was decided my Maurice Kay J on 9 February 2001. In that case a police officer with a disciplinary history was reprimanded by his Chief Constable for an admitted charge of discreditable conduct. No restrictions were placed on his employment and he felt he was able to rebuild his police career. Subsequently, the superintendent in charge of professional standards drew attention to potential problems arising from his impaired integrity. The Chief Constable then changed his mind and agreed that his posting should not be unrestricted. Instead of being posted to work as an uniform constable investigating beat crimes he was given the job “sponsorship officer” which, he contended, was a “non job”.  Maurice Kay J said at Paragraph 13
“Whilst the imposition of fresh restrictions was not, indeed could not be, a lawful part of the disciplinary punishment in the strict sense, the reality was that contrary to what the chief constable had said at the conclusion of the hearing he was now sanctioning tighter restrictions than had existed and the simple posting to uniformed duties. In operational terms, the Claimant’s position was being made worse…………I do not agree that this can be justified on the basis that it is in the operational or management sphere rather than in the disciplinary context”

17.	 He then went on to decide the case on the basis that when the Chief Constable directed that his original decision be superceded he unlawfully frustrated the Claimant’s legitimate expectation according to the principle expounded in R v North and East Devon Health Authority ex parte Coughlan [2000] 1 W.L.R. 622.
18.	Again, in my judgment, O`Leary is clearly distinguishable on the facts. Like Murray, it was not a case involving a decision not to promote. The decision not to promote cannot be categorised as a disciplinary measure.
19.	In my judgment the Chief Constable cannot be said to have acted precipitately. This is clear from the letter of 11 November 1999. Furthermore, the decision under challenge in the present case is one of a kind with which the courts should in my judgment only in the most exceptional circumstances, if ever, interfere. It is quite erroneous to look at the decision as one relating to discipline; it was a question of suitability for promotion. I am quite unpersuaded by the first limb of Mr Eicke’s argument. The removal of the Claimant’s white ticket was neither a disciplinary sanction nor anything akin to it. The Chief Constable did not act in a procedurally unfair way and he was not required to follow the procedure laid down within the Police (Discipline) Regulations.
20.	In McInnes v Onslow Fane [1978] 1 W.L.R. 1520 the plaintiff had been refused a boxer’s manager’s licence by the British Boxing Board of Control. He sought a declaration that in refusing his licence the board had acted in breach of natural justice and unfairly in that they had failed to inform him of the case against him so he could answer it and had failed to grant him oral hearing. Megarry V-C held that although there was no contract between the parties and the case was not governed by any statute, the court was nevertheless entitled to intervene to enforce the appropriate requirements of natural justice and fairness. However, the case was not one involving forfeiture of existing rights or deprivation of an existing position and nor had the plaintiff a legitimate expectation that his application for a manager’s licence would succeed. In the circumstances the Board was under a duty to reach an honest conclusion without bias and not in pursuance of any capricious policy. As there was no suggestion that the Board had failed in this regard the court ought not to interfere. Megarry V-C said that without making any clear or exhaustive classification there were three types of case. First the forfeiture cases where the decision takes away some existing right or position; second the application cases where the decision merely refuses to grant the applicant the right or position he seeks and third an intermediate category, the expectation cases, which differ from the application cases only in that the applicant has some legitimate expectation from what has already happened that his application will be granted.
21.	I shall deal in a moment with the question of legitimate expectation, but as to the other categories the reality of this case is that it is an application case rather than a forfeiture case. I appreciate the Claimant says his white ticket was taken away and that he has been deprived of an important advantage, but the truth is that it is the Chief Constable’s decision not to promote him that lies at the heart of the matter. I agree with Mr Ainley, for the Chief Constable that once promotion has been turned down white ticket status has no function to fulfil.
22.	The alternative way which the Claimant puts his case is that he had a substantive legitimate expectation that his promotable status would not be withdrawn as a result of the Police Complaints Authority investigation into the City Road incident and that the question of his promotion would be revisited twelve months later. He relies in particular on the following:
i)	The statement in the letter 10 February 1998 when he was given his white ticket that the status was not limited in time.
ii)	The statement in the letter of 11 November 1989 that whilst promotion was not appropriate in the next twelve months he would retain his promotable grade subject to close supervision and continued satisfactory performance
iii)	Nothing was said or happened thereafter to contradict his expectation.
iv)	There was no suggestion that his continued performance was not satisfactory. Indeed Chief Superintendent Toms pointed out on 30 May 2000 that he had made excellent progress.
23.	In Coughlan the Court of Appeal pointed out at 645A that where there is a dispute about a claimant’s legitimate expectation it has to be determined by the court and this can involve a detailed examination of the precise terms of a promise or representation made, the circumstances in which it was made and the nature of statutory or other discretion. It was said there were at least three possible outcomes.
i)	The court may decide that the public authority is only required to bear in mind its previous policy or other representation, giving it the weight it thinks it right, but no more, before deciding whether to change course. Here the court is confined to reviewing the decision on Wednesbury grounds (Associated Picture Houses Limited v Wednesbury Corporation [1948] 1K.B.223).
ii)	Or the court may decide that the promise or practice induces a legitimate expectation of, for example, being consulted before a particular decision is taken. Here, the court itself will require the opportunity for consultation to be given unless there is an overriding reason to resile from it, in which case the court will itself judge the adequacy of the reason advanced for a change of policy, taking into account what fairness requires.
iii)	Or the court may consider that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural. Here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here once the legitimacy of the expectation is established, the court will have the task of weighing the requirement of fairness against any overriding interest relied upon for the change of policy.  
24.	Mr Eicke argues that this case falls into the third category and that no overriding interest has been advanced to justify frustrating the expectation. Mr Ainley, on the other hand, submits that no legitimate expectation was ever created. All that happened was that in November 1999 the Claimant was told he was not going to be promoted during the following twelve months. The Chief Constable in reality had not made up his mind. He was, in fairness to the Claimant, not going to make a precipitate decision. At some stage, however, he was going to have to make a decision and that is what he did, on the basis of the complete information he then had, the following July. He could only promote those officers in whom he had confidence. It is to be noted that it is not the decision not to promote that is challenged but the decision to remove his white ticket. The Claimant, was in my judgment, fairly treated. He was told of the allegations arising out of the City Road incident and given an opportunity to answer them. He agreed with hindsight he might have approached the matter differently. There was no procedural unfairness. Mr Eicke argues that removal of the white ticket was a step too far. There was taken away something which he had earned. I do not agree. The Chief Constable is entitled to decide who is to be promoted and who not. It is not suggested that he Chief Constable acted other than in good faith. Removal of the white ticket, so it seems to me, is the logical consequence of the decision not to promote.
25.	Although I have considerable sympathy for the situation in which the Claimant finds himself, because he has obviously many good quantities as a policeman, there are no grounds on which the Administrative Court can interfere with the Chief Constable’s decision. This application for judicial review therefore fails.
*********************
MR JUSTICE SCOTT BAKER:  For the reasons given in the judgment that has been handed down, this application fails.
MR POWELL:  My Lord, there are only two matters. My Lord, I apologise that the first time I had an opportunity to read the judgment was this morning. My Lord, I have noted a minor typo at paragraph 16.
MR JUSTICE SCOTT BAKER:  I am sure there is more than one, because they are very difficult to spot.
MR POWELL:  My Lord, it is the only one.  I know my learned friend sent a fax on Friday correcting two.
MR JUSTICE SCOTT BAKER:  I did not see that.
MR EICKE:  My Lord, they have been ‑‑ I checked the handed‑down version this morning.  They have been incorporated.  It was a missing "o" in the word "too", and it was a missing "t" in the word "the".
MR JUSTICE SCOTT BAKER:  Thank you.
MR POWELL:  My Lord, mine is equally minor.  It is at paragraph 16, and it is the second line.  My Lord, I think the word should be "by Morris Kay" as opposed to "my Morris Kay".
MR JUSTICE SCOTT BAKER:  Which line?
MR POWELL:  My Lord ‑‑
MR JUSTICE SCOTT BAKER:  Oh, "by", you are quite right.  Yes, thank you.
MR POWELL:  My Lord, that only leaves the other issue, which is that of costs.  As far as I am concerned, my Lord, I would invite you to make an order that the claimant pay the defendant's costs, to be assessed if not agreed.
MR JUSTICE SCOTT BAKER:  Yes.  It is a Police Federation Case, is it not?
MR EICKE:  Yes, my Lord, it is, and I cannot resist that order.
MR JUSTICE SCOTT BAKER:  I shall make that order then.
MR POWELL:  I am most grateful.
MR EICKE:  My Lord, I have, in a sense, one, possibly two, applications.  The first is an application for permission to appeal, the reason being in a sense twofold.  One is that in our respectful submission ‑‑
MR JUSTICE SCOTT BAKER:  The judgment is wrong.
MR EICKE:  Your judgment is certainly at odds, in our submission, with the judgment in O'Leary, in the sense that both decisions were operational decisions which hampered the police officers' further career movements, and both were justified in a sense on that basis.  But the judgments came to different conclusions, and in our respectful submission that creates a certain difficulty which we would seek the permission to have the Court of  Appeal clarify.
MR JUSTICE SCOTT BAKER:  Yes.
MR EICKE:  The second issue relates to the legitimate expectation point, which your Lordship picks up at the end of the judgment, dealing with the three categories laid down by the House of Lords in Coughlan.
MR JUSTICE SCOTT BAKER:  Yes, Court of Appeal.
MR EICKE:  The Court of Appeal.  I aplogise. Your Lordship, in your judgment, dismissed my primary submission that this was a case that fell into the third category, if I can call it that.
MR JUSTICE SCOTT BAKER:  Yes.
MR EICKE:  And went on to find that it fell into the first category, if any, but in my respectful submission did not deal with what I seem to recall was put as a secondary submission, that, if anything, it fell into the second category, namely that there was a legitimate expectation that there would be consultation.
      In my respectful submission, this is even more important in light of the fact that, contrary to the implication, if one reads your judgment, the claimant never saw the report from the Police Complaints Authority until he came to this court.
MR JUSTICE SCOTT BAKER:  Yes.
MR EICKE:  He never actually had sight of the results of  the investigation and the impact that would have on his career until after he brought proceedings in this case. Therefore, in our respectful submission, the very basic tenets of fairness would have required more than he was given.
      It is on those two bases, in my respectful submission, that we would ask for permission to appeal.
MR POWELL:  My Lord, I cannot resist it, but, my Lord, you have had the benefit of Mr Ainley's submissions, and I do not think I would do justice to that to try to reiterate what he has said.
MR JUSTICE SCOTT BAKER:  No, I do not think this is a proper case for granting leave to appeal.
MR EICKE:  I am grateful, my Lord.  Then that makes this a two‑application matter.
      The second application I would then have is to ask for an extension of the 14‑day time limit to consider whether to renew to the Court of Appeal, on the basis that Easter is coming up, and because this is a Police Federation Case, there is ‑‑ obviously, we would want to talk to the clients first and consider it in detail, rather than our having to rush off and burden the Court of Appeal with a case that may, in the end, not actually come to them.
      We would ask for 14 days on top of the 14 days, so  to renew within 28 days rather than the usual 14.
MR POWELL:  My Lord, I have no instructions in relation to this.  My Lord, I am very much in your Lordship's hands, but I can see the force of what my learned friend is saying.
MR JUSTICE SCOTT BAKER:  I would think it reasonable to extend the time for the lodging of this appeal to 28 days, rather than the usual 14, in light of Easter.
MR EICKE:  I am grateful, my Lord.