Scottish Court of Session Decisions

[3] In February 2001 a misconduct form in connection with the Portobello Inquiry was served upon the petitioner in terms of the 1996 Regulations and a misconduct hearing was set for 12 March 2001 in order to deal with these allegations. The petitioner raised proceedings in which he sought judicial review of the decision to hold that misconduct hearing and interim interdict in order to prevent the misconduct hearing taking place in the meantime. The petitioner was reinstated on 29 May 2001. In connection with the West End Inquiry, on 29 May 2001 the petitioner received a warning in terms of Regulation 6(6) of the 1996 Regulations but was not required to attend a misconduct hearing. The petitioner amended his petition for judicial review and he also challenged the decision to issue the warning under Regulation 6(6). On 4 November 2002 the petitioner retired from the police force and the petition for judicial review was dismissed. The present petition for judicial review arises from the procedures followed in order to determine the level of police pension to which the petitioner was entitled.

[4] Provision for pensions for police officers is made by the Police Pensions Act 1976 ("the 1976 Act") and the Police Pensions Regulations 1987 (S.I. 1987 No. 257) ("the 1987 Regulations) made thereunder. Section 1(2) of the 1976 Act requires regulations to be made to provide for the payment of pensions in a number of circumstances. These include officers who retire early "by reason of infirmity of mind or body" (section 1(2)(b)); and officers who retire by reason of injury received in the execution of their duty (section 1(2)(c)).

[5] Regulation B1 of the 1987 Regulations provides for the payment of the "ordinary pension" to a policeman who retires after completing at least 25 years' pensionable service. Regulation B3 provides for an "ill-health award" which is available to "a regular policeman who retires or has retired on the ground that he is or was permanently disabled". Regulation B4, which provides for the payment of an "injury award", includes the following provisions:

An injury award is more generous than an ill-health award. Whether a policeman is entitled to an injury award in addition to an ill-health award depends on whether the policeman's permanent disablement is as "a result of an injury received without his own default in the execution of his duty".

[6] In schedule A certain of the expressions used in the 1987 Regulations are defined. "Injury" includes any injury or disease, whether of body or mind. "Injury received in the execution of duty" has the meaning assigned to it by Regulation A11 and "the result of an injury" is to be construed in accordance with Regulation A13.

Regulation A11 provides inter alia:

Regulation A12 includes the following provisions:

Regulation A13 provides:

[7] The arrangements and procedures for determining entitlement to these awards are set out in Part H of the 1987 Regulations which is headed "Appeals and Medical Questions". Regulation H1 provides:

Regulation H2 provides:

[8] Schedule H provides for the procedure to be followed in an appeal before the medical referee:

Procedure under the Regulations

[9] On 4 November 2002, Dr D G Jones, a consultant occupational physician acting as a duly qualified medical practitioner under and in terms of Regulation H(1)(2) of the 1987 Regulations, decided that the petitioner was suffering from anxiety and depressive symptoms and that as a result of that medical condition, he was permanently disabled from performing the ordinary duties of a member of the police force. Dr Jones issued a certificate of permanent disability in respect of the petitioner on that date. This entitled the petitioner to an ill-health award under regulation B3. Dr Jones certified that the medical condition which gave rise to the petitioner's medical retirement was "not the result of any injury received in the execution of duty as a member of the police force". The effect of that finding was that the petitioner was not entitled to a "injury award" in terms of Regulation B4 of the 1987 Regulations.

[11] The first respondent also considered the question of the relations between the petitioner and Acting Superintendent Bright. The first respondent rejected the suggestion that the conduct of Acting Superintendent Bright amounted to bullying.

[12] In the final paragraph of his determination (paragraph 21.5), the first respondent concluded that on the balance of probabilities he did not find that the petitioner's permanent disablement was the result of an injury received in the execution of police duties.

[13] The effect of that finding was that the petitioner had failed in his appeal against the decision of Dr Jones that he was not entitled to an injury award. The petitioner raised this petition. The first respondent did not lodge answers but a letter written by his solicitors to the Deputy Principal Clerk of Session was placed before me. The relevant parts of the letter are in the following terms:

[14] I begin by considering the plea taken by the second respondents that the petitioner is barred by mora, taciturnity and acquiescence from bringing the matter before the court.

[15] The first respondent issued his decision on 8 June 2003. The petition was served on the second petitioners on 15 December 2003. Miss Swanson pointed out that the petitioner did not challenge the first respondent's decision nor intimate his dissatisfaction with the decision prior to service of the petition. She submitted that the delay was unreasonable for a number of reasons. The petitioner was a sophisticated user of legal services and had access to legal advice. He was familiar with the process of judicial review. He had previously raised another judicial review against the second respondents. He had been represented during these proceedings. He had been represented at the appeal before the first respondent. During the period between June and November 2003 he had been in correspondence with the respondents on other matters. He had immediately appealed against the decision of the duly qualified medical practitioner to refuse the injury award. No cogent reasons had been given for the delay other than vague explanations relating to funding and seeking legal advice. It was reasonable for the second respondents to infer from his silence that he acquiesced in the decision of the medical referee.

[16] Mrs Swanson accepted that delay in itself was not sufficient to found a plea of mora. She recognised that there had to be prejudice. That could take a number of forms and detriment to good administration was sufficient. She submitted that there would be prejudice to the second respondents resulting in detriment to their good administration if the pursuer was successful. She referred to the evidence in relation to budgeting. The second respondents required to submit detailed financial plans to the Local Authority by mid-December each year. Any spending arising after that date required to be treated as an unbudgeted overspend. Police pensions were not separately funded. Payment of police pensions was made from funds available for operational policing. Were the first respondent's decision now to be reversed, any payment to the petitioner would have an impact upon the funds available for other aspects of the second respondents' operations, including for example, recruitment. There was no formal contingency fund for matters of this kind.

[17] In support of these propositions Mrs Swanson referred to the following cases: Hanlon v Traffic Commissioner 1988 SLT 802; Uprichard v Fife Council 200 SCLR 949; Regina v Dairy Tribunal, ex parte Caswell [1990] 2 AC 737; Kwik Save Stores Ltd v The Secretary of State for Scotland 1999 SLT 193; Atherton v Strathclyde Regional Council 1995 SLT 557; and Reside v North Ayrshire Council 2001 SLT 6.

[19] Mr Clancy submitted that the period of delay in the present case was not particularly long. Six months was shorter than in many cases where the plea of mora had been repelled. The petitioner had been actively pursuing the question of judicial review. He had asked the Scottish Police Federation to fund a judicial review. They had refused and he had then appealed against that decision. The Federation made a final determination on funding on or about 10 September 2003. On the following day counsel was instructed to advise on the prospects of success of a judicial review of the first respondent's decision. A consultation with counsel took place on 28 October 2003. At the request of counsel, further documentation in the form of medical notes was obtained and sent to counsel. A petition was drafted. On 21 November 2003 the petitioner met with his agents and confirmed his instructions to proceed with the petition. Edinburgh agents were instructed on 25 November 2003 and a first order was granted on 5 December 2003. There was nothing in the chronology of the case that indicated acquiescence. It was common knowledge among senior officers in the Lothian and Borders Police that the petitioner was looking to the Police Federation to fund his judicial review. Superintendent Justice, the head of the Complaints Unit, knew all about the petitioner seeking Federation support for his petition. In particular, Superintendent Justice knew that in September, the Federation had refused to fund the petitioner's case. There had been a discussion between Superintendent Justice and Superintendent Copeland, as to whether the petitioner would proceed with his judicial review without Federation funding. In the course of that discussion, Superintendent Copeland advised Superintendent Justice that they could not assume that the petitioner would not proceed simply because he had been refused funding. Superintendent Justice had taken an active part in the proceedings before the medical referee. Deputy Chief Constable Wood was also aware of the situation. It would be reasonable for the second respondents to infer that the petitioner was pursuing a remedy by way of judicial review.

[21] Mr Clancy submitted that the second respondents had failed to demonstrate that there was material prejudice to them. He submitted that it was very unlikely that any kind of material prejudice could be demonstrated. There was the possibility of an annual payment of £6,000. In the context of a budget involving tens of millions of pounds, that was a drop in the bucket. There was a large degree of uncertainty in the provision of pensions.

[22] Mr Clancy referred to Hanlon v Traffic Commissioner 1988 SLT 802; King v East Ayrshire Council 1998 SC 182; and Devine v McPherson 2002 SLT 213.

[23] Delay in raising a petition for judicial review may lead to an inference of acquiescence in the decision against which the application is directed. A general statement to this effect is to be found in King v East Ayrshire Council 1998 SC 182 at p. 188G:

[24] While recognising that general principle, it is also clear from the authorities that each case must be considered in the light of its own circumstances. The need for finality may be greater in one context than in another. The length of any delay before implications of acquiescence arise will be variable depending on the circumstances. (Hanlon v Traffic Commissioner 1988 SLT 802; Reside v North Ayrshire Council 2001 SLT 6).

[25] It has been recognised in the authorities that silence can constitute an implied intimation that one is offering no opposition to a course of events. The natural inference from silence in full knowledge of the facts of a particular case may be that the aggrieved party accepted the decision. (Hanlon)

[26] In the present case six months elapsed between the intimation of the decision of the medical referee and the service of the petition. The explanation offered for that delay was twofold. First, the petitioner had made an application for funding to the Police Federation, which took some time for consideration. The Federation refused the application and an unsuccessful appeal procedure ensued. That process would be expected to take some time. No explanation was offered as to why the petitioner did not advise the second respondents of his intentions. He could have done so. I do, however, infer that the second respondents were aware that the petitioner was exploring the question of funding for a judicial review. I draw that inference from the petitioner's averments as to the knowledge of senior officers, the answers for the second respondents, the submissions at the bar, and the evidence of Mr Thickett, the Director of Human Resources for the second respondents, that Chief Superintendent Justice, the Head of the Complaints Unit, was managing the opposition to the petitioner's appeal to the medical referee and was very familiar with the case.

[27] Second, the petitioner explained that there was further delay while he obtained legal advice. This seems to have been pursued at a rather leisurely pace, even after the decision with respect to funding had been made. I conclude that while the whole period of delay is not very satisfactorily explained, I cannot say that it is wholly unreasonable.

[28] It is clear from the authorities that certainty is an important ingredient in good administration of government (Kwik Save Stores Ltd v The Secretary of State for Scotland 1999 SLT 193). There is an interest in good administration independently of hardship, or of prejudice to the rights of third parties (Regina v Dairy Tribunal, ex parte Caswell [1990] 2 AC 737). As Lord Prosser pointed out in Reside at p. 9L,

[30] No other prejudice is averred or was advanced in the presentation of the second respondents' case. It was not suggested that there would be prejudice to third parties. The circumstances of the present case are quite different from the planning cases to which I was referred. In these cases (Devine v McPherson 2002 SLT 213; Uprichard v Fife Council 200 SCLR 949) certain features of planning consents were of significance. A planning consent takes immediate effect and the recipient of a consent may well be likely to proceed, with relative despatch, to organise his affairs on the basis of having such a consent. In Uprichard, for example, a period of 19 weeks elapsed between the grant of planning consent and the raising of the petition. The petitioner had delayed in the knowledge that significant operations were being undertaken by the developer on the faith of the grant of planning permission. A further relevant significant feature of planning consent is that the existence of permission for development on a particular site may have consequences or implications for third parties.

[32] For these reasons I repel the plea of mora advanced by the second respondents.

[33] The main thrust of the criticism of the first respondent made by Mr Clancy was that he had adopted a fundamentally wrong approach to his task. There was a secondary criticism that he had not properly addressed issues of fact. In the event this latter criticism did not feature to a great extent and the case really turns on whether the first respondent failed in his approach to his task. Mr Clancy took as his starting point the undisputed proposition that the petitioner was permanently disabled due to anxiety and depression. Following the approach set out in R v Kellam ex parte South Wales Police Authority 2000 ICR 632 the first respondent's first task was to identify the factors which caused or substantially contributed to that medical condition. Then he was to determine whether a particular factor or factors which made a contribution to the condition formed part of his service as a police officer (Kellam and Lothian and Borders Police Board v Ward 2004 SC 182). This would include an examination of whether such factors were part of his work circumstances in the sense that that phrase is used in R v Fagan ex parte Mountstephen 1996 COD 416, Kellam and Ward. Mr Clancy submitted that the first respondent had failed to carry out the exercise in this way. He had failed to apply the correct legal test. His consideration and determination of the appeal centred on and was dominated by the question of whether the incidents described by the petitioner as having occurred following his return to work on 29 May 2001 amounted to harassment or bullying (paragraphs 12.7 and 21.2). Most of the discussion in his decision was about issues of fact bearing on that question. In making that question the de quo of the appeal, the first respondent asked himself the wrong legal question and accordingly erred in law. The question of whether the petitioner was being bullied or harassed was not the appropriate question for the medical referee. What he had to do was to determine whether dealings with fellow officers had contributed to the petitioner's medical condition. If it did, the question of whether it amounted to harassment or bullying, was irrelevant. Mr Clancy suggested that paragraph 21.5 was very difficult to understand. There appeared to be a triple negative in the first sentence. The next sentence was confusing and indicated that the medical referee had not understood what was meant by work circumstances. The reference in paragraph 21.3 to the possibly that the petitioner "may misperceive awkward interactions as resentment, disdain or even hostility" could fall within work circumstances as interpreted in Ward. It was similar to Miss Ward's disappointment at her appraisal and marginalisation.

[35] The second criticism related to the way in which the first respondent had dealt with the resolution of factual material. He had a brief interview with the petitioner and Dr Jones. No evidence was led before the first respondent but a substantial amount of material was laid before him. A number of statements from persons who had knowledge of and involvement with conflict between the petitioner and other senior officers were included. The first respondent had stated at paragraph 21.1 that he was not qualified to make a judgement about veracity. Mr Clancy submitted that a medical referee was under a duty to resolve factual disputes between the parties, deciding for himself whether material evidence was truthful and/or accurate. His conclusion at paragraph 21.2 that on a balance of probabilities the incidents referred to by Mr McAdam did not amount to harassment or bullying was inconsistent with his observation that he was not qualified to make a judgement about veracity. At paragraph 20.6, he purported to resolve a factual dispute.

[37] Miss Swanson referred me to the Opinion of Lord Reed in the unreported case of Lothian and Borders Police v Robert McDonald (14 October 2004) in which he took the view, distinguishing Ward, that the phrase "execution of duty" should be given a narrower interpretation reflecting the aim of the legislation and the natural meaning of the words (see paragraph 99-101).

[38] Miss Swanson submitted that the medical referee did not need to decide on the veracity of the petitioner's account and had no duty to resolve factual disputes. The medical referee should look at the account given by the petitioner pro veritate and decide whether these were minor incidents and so forth.

[39] I am satisfied that I can have regard to the letter written by the solicitors acting for the first respondent. While its terms could not possibly be conclusive and I arrive at my conclusion on the basis of the pleadings, the evidence which I heard and the submissions made before me, I consider that I am entitled to note the terms of the letter. I am fortified in that view by the approach adopted by Lord Eassie in Grubb v Jones 2003 SLT 1101.

In addition, as was pointed out by Lord Hamilton in Phillips v Strathclyde Joint Police Board 2002 SLT 1271 at p. 1274 C-D, it is not necessary that the work circumstances are the sole cause of the injury.

[41] In Ward at page 219F the court held that while neither disciplinary proceedings nor unsuccessful promotion could be regarded as directly concerned with a person's service as a police officer, an appraisal process could be:

[43] Under the heading "The Alleged Harassment Incidents", the first respondent identified a number of complaints which the petitioner had made. He noted that the petitioner was disappointed that on return to work he was not given the jobs that he would have most liked. He noted the complaints of the petitioner in relation to the duties which he was given on his return to work. The first respondent concluded that the incidents described were minor and, even when taken together, would not amount to harassment, even taking into account that Mr MacAdam might be vulnerable and sensitised because of the stressful preceding years.

[44] At paragraph 19.3, the first respondent said this: "Despite his claims, I think Mr MacAdam was perhaps still affected by the disciplinary proceedings and their sequelae". He noted that Dr Jones had recognised that Mr MacAdam was stressed at work but that Jones had decided that this was apparently related mostly to the West End and Portobello inquiries and sequelae and did not amount to injury in the course of his duties as a police officer. The first respondent also considered that the petitioner had generated some of the stress in that he himself had decided to expose himself to Court proceedings in the early petition.

He went on in paragraph 2.15 to say:

I find the terms of paragraph 21.5 extremely difficult to understand. Even Mrs Swanson had difficulty in analysing what it was that the first respondent was saying in this part of his determination. It is on any view a critical paragraph since it purports to contain the concluded view of the first respondent. I am unable to accept the submission of Mrs Swanson that when the determination is read as a whole it can be interpreted as following a correct approach and coming to a correct decision. It seems to me that the first respondent has followed a fundamentally flawed approach and that that has fatally damaged his conclusion. By setting himself the task of deciding whether the conduct complained of amounted to harassment and bullying the first respondent introduced an unnecessary and irrelevant hurdle for which there is no basis in the statutory scheme. The result was that he applied the wrong legal test. Having recognised that the petitioner was suffering from a particular medical condition which constituted permanent disablement for the purpose of regulation B3 of the 1987 Regulations, the first respondent should have gone on to identify the factors which caused or substantially contributed to that medical condition. He should then have determined whether a particular factor or factors which caused, or substantially contributed to, the condition formed part of his service as a police officer (Ward and the cases referred to therein).

[46] Having come to this conclusion I consider that it would not be proper for me to say anything further about the merits of the petitioner's case. The proper course in my view is for me to order reduction of the decision of the first respondent and to order that the appeal be heard again by a different medical referee. This is of course without prejudice to the conclusion at which that medical referee may arrive. It would be premature to form a view as to whether the tests set out in the authorities are met in the petitioner's case. That will be for the new medical referee to decide and nothing said in this opinion should be interpreted as encouraging a view one way or another in the making of that decision. In addition, while it does seem to me that in an appropriate case a medical referee might well have to resolve issues of fact it is not necessary to form a concluded view as to whether the first respondent misdirected himself by failing to address issues of credibility in his determination. If the proper approach is followed such issues might not arise at all.

[47] For the reasons set out above I shall order reduction of the decision of the first respondent. I shall order that the appeal against the decision of the duly qualified medical practitioner, Dr Jones, be heard again by a different medical referee. I shall reserve the question of expenses meantime.