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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Heath v Commissioner Of Police For Metropolis  EWCA Civ 493 (20 July 2004)
Cite as:  EWCA Civ 493
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
THE HONOURABLE MR JUSTICE RIMER
Strand, London, WC2A 2LL
B e f o r e :
THE RIGHT HONOURABLE LORD JUSTICE NEUBERGER
THE HONOURABLE MR JUSTICE HOLMAN
| DIANE HEATH
|- and -
|COMMISSIONER OF POLICE FOR THE METROPOLIS
Mr John Hand QC and Mr Oliver Segal (instructed by Directorate of Legal Services) for the Respondent
Hearing date : 8th March 2004
Crown Copyright ©
Lord Justice Auld :
i) the extent of the immunity to categories of claim other than in defamation;
ii) whether proceedings before a Police Disciplinary Board constituted under the Police (Discipline) Regulations 1985 are judicial or quasi - judicial proceedings in respect of which its members are entitled to immunity from action; and
iii) whether the doctrine of absolute privilege governing judicial or quasi-judicial proceedings prohibits claims to an Employment Tribunal of alleged unlawful acts of discrimination committed in the course of such disciplinary proceedings.
Underlying all those issues is the question where the balance should fall between the public policy interest of protection of the integrity of judicial or quasi-judicial proceedings on which the long-established common law immunity is based and the need to provide effective protection to citizens against unlawful discrimination, a need now under-written by European Convention of Human Rights ("ECHR") and Strasbourg jurisprudence and also by EU legislation.
"25. we approach the present case on the basis that the essential features of the disciplinary hearing rendered it closely analogous to a judicial proceeding before a court of justice. There were admittedly some differences, but we do not regard them (either singly or collectively) as requiring us to conclude that the hearing was performing a merely administrative function, being one which would not enjoy absolute immunity for what was said and done at it. We consider that the Employment Tribunal were correct in their conclusion that the disciplinary hearing enjoyed the same absolute immunity as do proceedings before a court of justice. We find no error of law in their conclusion."
"26. Miss Heath's complaint about the disciplinary hearing is not so much as to what was said at it, but as to (i) the exclusively male constitution of the Board and (ii) as to what was not said at it, in particular the failure of the Board to control counsel's questions of her in cross-examination. If, however, the proceedings enjoyed absolute immunity, that immunity extended even to complaints built on foundations such as this. The immunity attaches not just to defamatory statements made in the proceedings, it attaches to all forms of action 'sought to be derived from what was said or done in the course of judicial proceedings ' (per Sellers LJ in Marrinan v. Vibart and another  3 All ER 380, 383B). Diplock LJ said the same at 385C. Mr Sethi [counsel for Miss Heath] made the point that the Sex Discrimination Act 1975 says nothing to the effect that tribunals will enjoy any such immunity in respect of claims brought under that Act in relation to the manner in which they conduct their hearings. We regard that argument as carrying no weight. The rule is a longstanding one of public policy which applies in respect of all actions sought to be founded on the alleged acts or omissions of the participants in proceedings to which the rule applies, and Parliament can be taken to have been aware of it when enacting the 1975 Act."
"28. In our view, the Employment Tribunal's conclusion [about Article 8] was right. Miss Heath had made a serious allegation against the inspector which, if well founded, could have had extreme consequences for him. They resulted in the contemplation of criminal proceedings, the making of a disciplinary investigation and, ultimately, the holding of a disciplinary hearing on a charge. Conviction could result in a serious penalty, perhaps the ruin of the inspector's career. The fact that Miss Heath made the complaints did not prove that they were well founded. The inspector was entitled to defend himself against the charge, and the proper conduct of his defence entitled him to test Miss Heath's evidence in cross-examination. If he were not to be at liberty to do so, he would be deprived of a fair hearing. It was probably inevitable that the cross-examination would have to deal with the alleged assaults themselves. Of course, we recognise that such cross-examination would be a sensitive matter, and that it would be likely to be upsetting to Miss Heath. We recognise also that a Board conducting such a hearing should be careful to ensure that any such cross-examination is conducted fairly and within proper bounds, although any control of it necessarily involves a difficult balancing exercise between the according of due respect to the sensitivities of the complainant and the right of the accused fully to test the case against him. Even if there was any question here of Miss Heath's article 8.1 rights being engaged, we agree with the Employment Tribunal that her rights were qualified by disciplinary hearing's obligation to accord full respect to the inspector's right to a fair hearing. Quite apart from this, we anyway cannot see how a consideration of Miss Heath's alleged article 8 rights was relevant. The Employment Tribunal had no jurisdiction to hear a claim based on any alleged breach of those, or any other, human rights. The only claim before it was one based on alleged discrimination under the 1975 Act. For reasons given, we regard the Commissioner as enjoying an absolute immunity from that claim. ".
a) violate a claimant's rights to a fair trial and to respect for his or her private rights under respectively Articles 6 and 8 read with 14 ECHR and, as such would be contrary to the court's duty as a public body, pursuant to section 6 of the Human Rights Act 1998; and
b) undermine the principle of effective judicial protection given to a claimant by Article 6 of the Equal Treatment Directive.
1 The width of the absolute immunity rule
i) although all or almost all the reported cases on this species of absolute immunity have been defamation cases, there is nothing in any of them to suggest that the rule is to be given broad application so as to bestow the immunity in respect of things said in judicial proceedings where the complaint is for something other than defamation, for example, as here, in respect of the conduct of the proceedings themselves;
ii) the public policy basis for the rule, namely a necessity for a balance in favour of the public interest in the fair and efficient administration of justice by the protection of witnesses in respect of their evidence in courts recognised by law with that of providing a remedy to the citizen to protect his good name, does not operate so as to give absolute freedom from suit in relation to unlawful discriminatory conduct in the course of police disciplinary proceedings;
iii) such conduct cannot be said to be necessary to elicit the whole truth in such proceedings, as is the freedom of a witness to speak in court uninhibited by the threat of a possible claim for defamation arising out of something said in evidence;
iv) on the contrary, if the rationale for absolute immunity in defamation suits is to reassure those engaged in litigation that they can speak freely without fear of later forensic attack for what they have said, it is equally, if not more, in the public interest not to deter those with complaints of unlawful discrimination from pursuing their legislative right to bring them;
v) the common law rule of absolute immunity should, therefore, be read subject to and limited by the 1975 Act, in particular section 17, which provides that a chief officer of police is to be treated as the employer of the constables in his force (here, the members of the Police Disciplinary Board) and hence as vicariously responsible for their conduct in that office; and
vi) there is no express provision in the 1975 Act excluding an Employment Tribunal's jurisdiction to hear such a claim, and where the draftsman wished to exclude an act that would otherwise have been within the Tribunal's jurisdiction, he so provided; see Part V, which governs general exceptions from Parts II to IV, or, for example, a provision comparable to section 41 of the Race Relations Act 1976, which excludes acts of discrimination which would otherwise be within Parts II to IV of the Act; see e.g. Hampson v DES  ICR 511, HL, at 520-521.
"How far absolute privilege extends in naval and military matters is by no means settled. To transfer it by analogy to the Police Officers who are parties to this action, so as to protect the defamatory statements declared upon involves a double extension of the decided cases. The truth is that an indefeasible immunity for defamation is given only where upon clear grounds of public policy a remedy must be denied to private injury because complete freedom from suit appears indispensable to the effective performance of judicial, legislative or official functions. The presumption is against such a privilege and its extension is not favoured (Royal Aquarium and Summer and Winter Garden Society Ltd v Parkinson). Its application should end where its necessity ceases to be evident."
But, as Mr John Hand QC, counsel for the Commissioner, pointed out, the claimed "extension" of privilege in relation to naval and military matters in that case was a quite different immunity from that, in play here, one of absolute immunity in suit for things said or done in judicial proceedings. It is also to be noted that, in rejecting such extension, the Court identified the public policy interest giving rise to the breadth of the latter.
" when a police officer comes to court to give evidence he has the benefit of an absolute immunity. This immunity, which is to be regarded as necessary in the interests of the administration of justice and is granted to him as a matter of public policy, is shared by all witnesses in regard to the evidence which they give when they are in the witness box. It extends to anything said or done by them in the ordinary course of any proceeding in a court of justice. The same immunity is given to the parties, their advocates, jurors and the judge. They are all immune from any action that may be brought against them on the ground that things said or done by them in the ordinary course of the proceedings were said or done falsely and maliciously and without reasonable cause. . The immunity extends also to claims made against witnesses for things said or done by them in the ordinary course of such proceedings on the ground of negligence."
In the second, Arthur J S Hall v Simons  1 AC 615, where the issue was whether the time had come to remove the immunity of advocates from suit, Lord Hobhouse of Woodborough identified the broad public interest policy behind the rule at 740G-H:
"A feature of the trial is that in the public interest all those directly taking part are given civil immunity for their participation. The relevant sanction is either being held in contempt of court or being prosecuted under the criminal law. Thus the court, judge and jury, and the witnesses including expert witnesses are granted civil immunity. This is not just privilege for the purposes of the law of defamation but is a true immunity: Roy v Prior  AC 470, especially per Lord Morris, at pp 477-478. This rule exists in the interests of the trial process, i.e. in the public interest. "
See also per Lord Steyn at 679B-C and per Lord Hoffmann at 697B-698H.
2 - Whether proceedings before a police disciplinary tribunal are sufficiently "judicial" to be protected by the rule the "similarity question"
"an authorised inquiry which, though not before a court of justice, is before a tribunal which has similar attributes [namely] acting in a manner as nearly as possible similar to that in which a court of justice acts in respect of an inquiry before it."
And Lord Atkin in O'Connor v Waldron referred in the same context, and in confirmation of Lord Esher's proposition, to a tribunal that:
"has similar attributes to a court of justice or acts in a manner similar to that in which such courts act".
"No single touchstone emerges from the cases; but this is not surprising for the rule of law is one which involves the balancing of conflicting public policies, one general: that the law should provide a remedy to the citizen whose good name and reputation is traduced by malicious falsehoods uttered by another; the other particular: that witnesses before tribunals recognised by law should, in the words of the answer of the judges in Dawkins v. Lord Rokeby, LR 7 HL, 744,753 'give their testimony free from any fear of being harassed by an action on an allegation, whether true or false, that they acted from malice'."
" (1) Is there anything in the language in which the function is conferred or in the general context in which it is exercised which suggests that a hearing is contemplated before a decision is reached? (2) Does the decision or order directly or indirectly affect the rights and obligations persons? (3) Is the adversary process involved? (4) Is there an obligation to apply substantive rules to many individual cases rather then, for example, the obligation to implement social and economic policy in a broad sense? These are all factors to be weighed and evaluated, no one of which is necessarily determinative.
In more general terms, one must have regard to the subject matter of the power, the nature of the issue to be decided, and the importance of the determination upon those affected thereby. The more important the issue and the more serious the sanctions, the stronger the claim that the power be subject in its exercise to judicial or quasi-judicial process. The existence of something in the nature of a lis inter partes and the presence of procedures, functions and happenings approximating [to] those of a court add weight to (3). But, again, the absence of procedural rules analogous to those of courts will not be fatal to the presence of a duty to act judicially".
"In deciding whether a particular tribunal is of such a kind as to attract absolute privilege for witnesses when they give testimony before it, your Lordships are engaged in the task of balancing against one another public interests which conflict. In such a task legal technicalities have at most a minor part to play."
1 - Tribunal recognised by law
2- nature of issue akin to civil or criminal issue in the courts
"... Lord Diplock said that the inquiry Mr Kissen [the commissioner in Trapp v Mackie] was required to conduct was in the nature of an issue between the education authority and the dismissed teacher, and so was akin to the type of issues which daily arise in civil suits in courts of justice. Mr Sethi submitted that the issue before the disciplinary hearing in the present case was of a quite different nature. He said that all that the disciplinary hearing was doing was exercising an administrative function concerned with an internal industrial relations question as to the alleged misconduct of an officer. We cannot agree with that. In our view, the issue before the disciplinary hearing in the present case was closely analogous to the type of issue which arises in courts of justice. It was in the nature of the trial, under a procedure recognised by law, of a disciplinary charge, conviction on which could result in the visitation on the accused of one of a range of punishments, from dismissal to a caution. Alternatively, it could be regarded as akin to a criminal proceeding. Either way, its nature was, we consider, capable of resulting in the proceedings enjoying absolute privilege."
3 procedure akin to that in civil or criminal courts
" the procedure required to be adopted at the disciplinary hearing was , in its essentials, akin to those adopted by courts of justice in trying civil or criminal cases. There were some differences, in that the evidence was not given under oath, nor were witness compellable. But the essential similarity with the procedure adopted by the courts of justice is clear."
4 outcome a binding determination of civil rights of the parties
3 - The balance of competing public policies
"It may be that the various categories of absolute privilege are all properly to be seen as grounded in necessity, and not on broader grounds of public policy. Whether or not that is so, the general rule is that the extension of absolute privilege is 'viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated.' Certainly, absolute privilege should not be extended to statements which are said to be analogous to statements in judicial proceedings unless there is demonstrated some necessity of the kind that dictates that judicial proceedings are absolutely privileged."
The issue in Mann v O'Neill and one of the issues in Taylor was, as I have said, whether the absolute immunity rule extended to out-of-court statements, and it was in that context that Lord Hoffmann in Taylor went on to say, at 21D-E:
"Thus the test is a strict one; necessity must be shown, but the decision on whether immunity is necessary for the administration of justice must have regard to the cases in which immunity has been held necessary in the past, so as to form part of a coherent principle." [my emphasis]
See also per Lord Hutton at 220A-C.
i) Miss Heath's complaints are not directed to the preliminary investigation or findings of the Board, so they cannot be described as a collateral challenge to its findings so as to offend the principles of res judicata and certainty in litigation. Even if they were, Miss Booth suggested, prompted by the reasoning of their Lordships in Hall v Simons, that the principles of res judicata, issue estoppel and abuse of process and courts' procedural ability to strike out unsustainable claims would be sufficient to put a stop to claims that would bring the administration of justice into disrepute.
ii) Miss Heath is seeking to exercise a "free-standing" right conferred by domestic legislation implementing European Union Directives to complain, not about the Inspector whom she had accused before the Board of sexual assaults, but about the conduct of the members of the Board. In short, what she is seeking is a review of the conduct of her employer towards her complaint of sexual harassment.
iii) It is commonplace for Employment Tribunals to investigate the adequacy of internal disciplinary procedures, both in dismissal and in discrimination cases. And it has never been suggested that such scrutiny has undermined such internal administration of justice.
iv) The absolute immunity rule cannot be deployed to prevent disciplinary action by the Department of Constitutional Affairs against a judge or by the Bar Council or the Law Society against an advocate for misconduct such as sex discrimination in the course of a hearing.
"(o) We are satisfied that there is absolute immunity attaching to the proceedings in a police disciplinary hearing in the same manner as would attach to proceedings in a court of justice. In this regard we see no distinction between statements made in the course of proceedings not being actionable for defamation as a matter of public policy and a principle based equally on public policy that a complaint of discrimination should not be permissible in respect of the conduct of such proceedings, whether in respect of the composition of the disciplinary panel itself or anything done or said in the performance of the functions by those taking part in such proceedings, where it can properly be said that the alleged acts or omissions are within their particular function.
(p) Clearly the law as to judicial privilege has developed over time. It was originally intended no doubt for the protection of judges sitting in recognised courts of justice established as such. The object being that judges might exercise their functions free from fear that they might be called to account for any words spoken as judges. It is also clear that the doctrine has been extended to tribunals which exercise functions equivalent to those of an established court of justice.
"(q) In the course of its development the doctrine of judicial privilege and/or immunity was developed with particular regard to actions for defamation. The statutory torts of discrimination did not exist when the doctrine was originally propounded, however the doctrine must be taken to apply equally to claims of discrimination as they apply to claims of defamation. These considerations are that immunity is necessary in order that the proceedings may be conducted in a manner which will achieve its purpose of ascertaining the truth, and a just result without fear that those taking part in the proceedings might be subjected to legal action for things said or done in the course thereof."
"26. The rule is a longstanding one of public policy which applies in respect all actions sought to be founded on the alleged acts or omissions of the participants in proceedings to which the rule applies, and Parliament can be taken to have been aware of it when enacting the 1975 Act."
4 - Human Rights
"35. It would be inconceivable that Article 6.1 should describe in detail the procedural guarantees afforded to parties in a pending lawsuit and should not first protect that which alone makes it in fact possible to benefit from such guarantees, that is, access to a court. The fair, public and expeditious characteristics of judicial proceedings are of no value at all if there are no judicial proceedings.
36. the right of access constitutes an element which is inherent in the right stated by Article 6.1 [which] secures the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way the Article embodies the 'right to a court', of which the right of access, that is the right to institute proceedings before the courts in civil matters, constitutes one aspect only In sum, the whole makes up the right to a fair hearing. "
"Under this test the only disputes excluded from Article 6.1 are those which are raised by public servants 'whose duties typify the specific activities of the public service in so far as the latter is acting as the depository of public authority responsible for protecting the general interests of the State or other public authorities "
The Court referred to individuals in the public-service sector who 'wield a portion of the State's sovereign power' as being those whose disputes are likely to fall outside the ambit of Article 6.1."
"The detailed reasoning of the European Court in [its jurisprudence] does not provide us with much by way of guidance as to how the dividing line between those two concepts is to be identified. It is not possible to find a clear ratio in these decisions which will lead to the right result in every case. So it is better to have regard instead to the underlying principles. One can at least say that there is a plain and obvious difference in principle between a procedural bar which impairs or restricts the enjoyment or enforcement of a right on the one hand and a substantive bar which prevents an alleged right from ever coming into existence at all. What article 6.1 seeks to do is to protect the individual against anything which restricts or impairs his access to the courts for the determination of a civil right whose existence is at least arguable. But the precise scope and content of the individual's civil rights is a matter for each state party to determine. These are the broad Convention principles. They are likely to provide the best guide as to the side of the line on which any given case lies."
"24. The Court recalls its constant case-law to the effect that Article 6.1 does not itself guarantee any particular content for 'civil rights and obligations' in the substantive law of the Contracting States. It extends only to contestations (disputes) over 'civil rights and obligations' which can be said, at least on arguable rounds, to be recognised under domestic law .
"25. Whether a person has an actionable domestic claim may depend not only on the content, properly speaking, of the relevant civil right as defined under national law but also on the existence of procedural bars preventing or limiting the possibilities of bringing potential claims to court. In the latter kind of case Article 6.1 may be applicable. Certainly the Convention enforcement bodies may not create by way of interpretation of Article 6.1 a substantive civil right which has no legal basis in the State concerned. However, it would not be consistent with the rule of law in a democratic society or with the basic principle underlying Article 6.1 namely that civil claims must be capable of being submitted to a judge for adjudication if, for example, a State could, without restraint or control by the Convention enforcement bodies, remove from the jurisdiction of the courts a whole range of civil claims or confer immunities from civil liability on large groups or categories of persons.
26. Section 6 of the Sex Discrimination Act 1975 creates a statutory right which arises, inter alia, when an employer refuses to employ a woman on grounds of sex discrimination or by reason of the fact that she has already taken proceedings under the 1975 Act. Thus, the proceedings which the applicant intended to pursue were for damages for a cause of action well known to English law. The Court does not accept the Government's plea that because of the operation of State immunity she did not have a substantive right under domestic law. It notes that an action against a State is not barred in limine:" if the defendant State does not choose to claim immunity, the action will proceed to a hearing and judgment,
The Court is, therefore, satisfied that the grant of immunity is to be seen not as qualifying a substantive right but as a procedural bar, preventing the applicant from bringing her claim before the Industrial Tribunal ."
"This ruling must be understood in the context that the applicant had an express statutory right to compensation for victimisation and discrimination under the Sex Discrimination Act 1975 a right very closely allied to that which she had already successfully exercised against the same employer. Far from being indistinguishable from the present, this case is in my opinion categorically different."
"33. The right of access to court is not, however, absolute, but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention's requirements rests with the court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6.1 if it does not pursue a legitimate aim and if there is no reasonable relationship of proportionality between the means employed and the aim sought to be achieved. "
The Court went on to consider the aim of the grant of sovereign immunity to a State, which it found to be a "legitimate aim of complying with international law to promote comity and good relations between States through the respect of another State's sovereignty" (para 34). It then assessed whether the restriction was proportionate and concluded, on the facts and its international context, that it was (paras 35-37)
5 - The Equal Treatment Directive
"1. Application of the principle of equal treatment with regard to working conditions, including the conditions governing dismissal, means that men and women shall be guaranteed the same conditions without discrimination on grounds of sex.
2. To this end, Member States shall take the measures necessary to ensure that:
(a) any laws, regulations and administrative provisions contrary to the principle of equal treatment shall be abolished;
(c) those laws, regulations and administrative provisions contrary to the principle of equal treatment when the concern for protection which originally inspired them is no longer well founded shall be revised; and that where similar provisions are included in collective agreements labour and management shall be requested to undertake the desired revision." 
" introduce into their national legal systems such measures as are necessary to enable all persons who consider themselves wronged by failure to apply to them the principle of equal treatment to pursue their claims by judicial process after possible recourse to other competent authorities."
"The requirement of judicial control stipulated by that article reflects a general principle of law which underlies the constitutional traditions common to the member states. That principle is also laid down in articles 6 and 13 [ECHR]. As the European Parliament, Council and Commission recognised in their joint declaration of 5 April 1977 (Official Journal 1977 No C 103, p.1) and as the court has since recognised in its decisions, the principles on which that Convention is based must be taken into consideration in Community law.
19 By virtue of article 6 of [the] Directive, interpreted in the light of the general principle stated above, all persons have the right to obtain an effective remedy in a competent court against measures which they consider to be contrary the principle of equal treatment for men and women laid down in the Directive. It is for the member states to ensure effective judicial control as regards compliance with applicable provisions of Community law and of national legislation intended to give effect to the rights for which the Directive provides. "
See also Coote, at paras 21, 22 and 24.
"may have the effect of dissuading applicants from asserting their rights. Such a consequence would not represent real and effective judicial protection and would have no really dissuasive effect on the employer, as required by the Directive."
"[i]n the absence of relevant Community rules, it is for the national legal order of each Member State to designate the competent courts and to lay down the procedural rules for proceedings designed to ensure the protection of the rights which individuals acquire through the direct effect of Community law, provided that such rules are not less favourable than those governing similar domestic actions (principle of equivalence) and are not framed in such a way as to render impossible in practice the exercise of rights conferred by Community law (principle of effectiveness). ".
Lord Justice Neuberger:
i) Miss Heath had felt intimidated because the membership of the Police Disciplinary Board ("the Board") was entirely male;
ii) Her union representative, who was a woman, had to plead with the Board to attend the hearing, in order to give Miss Heath female support;
iii) Without objection from the Board, the Inspector's male barrister asked her questions which were of such a nature that they were embarrassing, in a sexually related way, for her to answer.
"[The] immunity extends to anything said or done by [all witnesses] in the ordinary course of any proceedings in a court of justice. The same immunity is given to the parties, their advocates, jurors and the judge. They are all immune from any action that may be brought against them on the ground that things said or done by them in the ordinary course of the proceedings was said or done falsely or maliciously and without reasonable cause."
"The policy of this rule is to encourage persons who take part in court proceedings to express themselves freely. The interests of justice require that they should not feel inhibited by the thought that they might be sued for something they say."
"founded on the public policy which seeks to encourage freedom of speech in court so that the court will have full information about the issues of the case. For these reasons they prevent legal actions based on what is said in court."
Mr Justice Holman:
Note 1 This Directive is to be replaced in 2005 by transposition of Directive 2002/73 of the European Parliament and of the Council of 23rd September 2002 [Back] Note 2 to be revoked by Article 1.4 of Directive 2002/73 [Back]
Note 1 This Directive is to be replaced in 2005 by transposition of Directive 2002/73 of the European Parliament and of the Council of 23rd September 2002 [Back]
Note 2 to be revoked by Article 1.4 of Directive 2002/73 [Back]