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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Latimer, Re Judicial Review [2007] ScotCS CSOH_99 (13 June 2007)
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Cite as: [2007] CSOH 99, [2007] ScotCS CSOH_99

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OUTER HOUSE, COURT OF SESSION

 

[2007] CSOH 99

 

P3098/06

 

 

 

 

 

 

 

 

 

 

 

OPINION OF LORD EMSLIE

 

in the Petition of

 

IAN J LATIMER, Chief Constable, Northern Constabulary

 

Petitioner;

 

for

 

Judicial Review of a decision of a Police Appeals Tribunal dated 8 September 2006

 

 

 

ญญญญญญญญญญญญญญญญญ________________

 

 

 

Petitioner: Peoples, Q.C.; Ledingham Chalmers

Respondent: Woolman, Q.C., Grant-Hutchison; Balfour & Manson

 

13 June 2007

 

 

Introduction

[1] In this petition for judicial review, the Chief Constable of the Northern Constabulary seeks reduction of a disciplinary appeal decision by a Police Appeals Tribunal ("the Tribunal") dated 8 September 2006, coupled with a remit for rehearing by a freshly constituted Tribunal. Only the respondent police officer, John Smith ("Mr Smith"), has lodged Answers as an interested party, although formal service of the petition was also effected on the Northern Joint Police Board and on the Tribunal itself. It is a matter of agreement, however, that Mr Smith is the proper contradictor in this dispute, and that it can properly be considered and determined in the absence of these other potential parties.

[2] Under Regulation 6 of the Police (Conduct) (Scotland) Regulations 1996, a misconduct hearing was first convened on 16 March 2006 to consider Mr Smith's conviction at Dingwall Sheriff Court of a drink-driving offence committed on 7 July 2005. The decision of the chairman of the hearing was to the effect that the circumstances of the offence were so grave, and Mr Smith's actions so irresponsible, that the conviction "...(had) the potential to seriously undermine the trust and public confidence in the Service". The only appropriate penalty was therefore a requirement for Mr Smith to resign from the Force as an alternative to dismissal. On appeal to the petitioner under Regulation 20 of the 1996 Regulations this decision was upheld, and it was at this point that Mr Smith pursued a further appeal to the Tribunal under section 30 of the Police (Scotland) Act 1967. The Tribunal's conclusion, after hearing argument, was that compulsory resignation was too harsh a penalty in what they described as the special circumstances of the case, and that a monetary fine should be imposed instead.

[3] According to the petitioner the Tribunal had erred in law in deciding to substitute a lesser penalty for Mr Smith's admitted misconduct, and in particular had failed to state proper and adequate reasons for its decision. For his part, Mr Smith maintained that the Tribunal had committed no error of law, and that the Court should therefore refuse the prayer of the petition.

[4] Before me, the parties were substantially in agreement as to the law on the nature and scope of the Tribunal's statutory duty to give reasons for its decision under Rule 16(6)(b) of the Police Appeals Tribunals (Scotland) Rules 1996. In the words of the Lord President (Emslie) in Wordie Property Co Ltd v Secretary of State for Scotland 1984 S.L.T.345, at p.348,

"...all that requires to be said is that in order to comply with the statutory duty imposed upon him the Secretary of State must give proper and adequate reasons for his decision which deal with the substantial questions in issue in an intelligible way. The decision must, in short, leave the informed reader and the court in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it".

This approach, which was acknowledged to be of wide general application, was consistent with the views expressed by the Inner House in the earlier case of Albyn Properties Ltd v Knox 1977 S.C.108, and had been cited with judicial approval on many occasions since 1984. It was thus ultimately a matter of impression for this Court whether the Tribunal's stated reasons should be held adequate, dealing with the substantial questions in issue in an intelligible way, or whether the informed reader and the Court were left in real and substantial doubt as to the basis on which the decision was reached. Beyond that, parties were agreed that although the usual grounds for judicial review were available in the present context, including inter alia any failure on the part of the Tribunal to take account of relevant and material considerations, such a failure could not necessarily be inferred from the mere fact that the decision contained no express reference to individual pieces of evidence.

[5] It is convenient at this stage to summarise the salient factual evidence pertaining to Mr Smith's offence, and also the history of the disciplinary procedures which culminated in the Tribunal's decision. As regards the former, there was documentary material available at all stages to inter alia the following effect:-

(i) From about 2000 onwards, Mr Smith had intermittent problems with alcohol abuse. These came to the notice of his superiors and attracted public comment, thereby gradually calling into question his fitness to serve within the small community at Kyle of Lochalsh where he was then stationed.

(ii) In consequence Mr Smith was transferred to Dingwall with effect from about April 2003. When seen by occupational health professionals in both July 2002 and August 2003, he was reported as acknowledging that his job was at risk from continued alcohol abuse, and that the Dingwall transfer was his last chance.

(iii) In mid-2005, with the assistance of his superiors at Dingwall, arrangements were made for Mr Smith to receive appropriate advice at Raigmore Hospital, Inverness. An initial appointment was made for 1.45pm on 7 July 2005, and in anticipation of that appointment Mr Smith was released early from his nightshift. Some of the relevant records and statements suggested a release time of 3.00am, but according to the duty sergeant's contemporaneous notes, and also Mr Smith's own reported statement when he arrived for the appointment at Raigmore, it was not until about 4.00am that he went off shift.

(iv) Before going to bed, Mr Smith on his own account consumed a quantity of alcohol which he described on arrival at Raigmore as '...about 3/4 of a bottle of wine'. According to him, he took no more drink when he awoke. He then drove his car the 15/16 miles from Dingwall to Inverness, waving to colleagues whom he passed on the way, and arrived at Raigmore at around 2.10pm, some 25 minutes late for his appointment.

(v) According to the registered nurse who then saw him in the Occupational Health Unit, Mr Smith was smelling of alcohol together with some very strong antiseptic such as mouthwash. From the outset his manner and appearance attracted attention. His eyes were glazed and bloodshot, his complexion flushed and his responses vague, and he seemed unable to answer questions quickly. The nurse was so concerned that she immediately questioned his fitness to drive, receiving responses along the lines (a) that he was fine and knew how much he could drink and safely drive, and (ii) that he intended to drive home after the appointment. After first stating that his last drink had been 3 months previously, he then mentioned the 3/4 bottle of wine which he had consumed after coming off nightshift at 4.00am. The nurse then informed Mr Smith that in her judgement he was not fit to drive home, and asked him to hand over his car keys. Initially this request met with some resistance, but eventually the keys were 'rather reluctantly' handed over after the nurse threatened to inform Mr Smith's superiors.

(vi) According to another member of the hospital staff from whom the nurse sought assistance, Mr Smith's eyes were 'a bit bloodshot', and the whole room smelt strongly of alcohol, aftershave and antiseptic. Mr Smith seemed quite slow to respond to questions, as if he was not concentrating, and only handed over his car keys after several requests.

(vii) At this stage the nurse telephoned Mr Smith's superiors to advise them that in her opinion he would not be fit for nightshift work that evening.

(viii) After talking of going home for a meal and some tea, Mr Smith instead went to the Fluke Bar, Inverness, after leaving the hospital. There he consumed, in rapid succession, one half pint of Stella Artois beer and five double whiskies. Having thereafter been collected by his partner in her car, he fell asleep on the way home, and was still asleep in the passenger seat when approached by colleagues from the Road Traffic Department in connection with suspected drink-driving. He failed a roadside breath test, and later at Dingwall Police Office was found to have an alcohol reading of 128mgs of alcohol in 100mls of breath. When asked to confirm who had driven the car to Raigmore Hospital earlier in the day, he replied 'It doesn't matter: ...me'.

(ix) Mr Smith was subsequently charged with a contravention of section 5(1)(a) of the Road Traffic Act 1988, and on granting him bail pending trial the sheriff imposed a special condition that he must not drive a motor vehicle. In due course, following certain negotiations, Mr Smith on 13 October 2005 pled guilty to a reduced offence involving an alcohol reading of 69mgs of alcohol in 100mls of breath (very nearly double the legal limit for driving of 35).

[6] Turning to the history of the disciplinary proceedings which were instituted against Mr Smith, it was conceded from the outset that his conviction for a drink-driving offence constituted misconduct within the scope of Regulation 4 (incorporating Schedule 1) of the Police (Conduct) (Scotland) Regulations 1996. Efforts were, however, made on Mr Smith's behalf to advance mitigating circumstances sufficient to allow him to retain his job and to justify one of the lesser penalty options set forth in Regulation 18. In light of the evidence and submissions tendered on 16 March 2006, the chairman of the misconduct hearing took account of the nature and seriousness of the allegation, the background circumstances, the effect on public confidence in the Police Service, and the effect of any disposal on Mr Smith and his family. He concluded inter alia as follows:-

"Road safety is a key element of our policing objectives in an area where there is widespread community concern regarding the conduct of drivers on our roads. Your actions and your criminal conviction have the potential to seriously undermine the trust and public confidence in the Service. As an experienced police officer with a particular interest in roads policing, you must have been aware of the potential seriousness of driving whilst unfit to do so through alcohol and you must be held to account. Although you suffer from an alcohol-related illness, it is not an excuse for your conduct.

The gravity of the misconduct admitted is such that, even after considering your service history and the mitigating circumstances, I consider a severe...disposal is reasonable, appropriate and necessary.

The offence admitted is of a grave nature and your actions were completely irresponsible".

[7] Mr Smith then appealed to the petitioner who, after hearing submissions, affirmed the decision of the misconduct hearing. In so doing, he stated inter alia (in paragraphs 1 and 2) that the conviction of a police officer of a criminal offence was a matter of very serious concern, with Mr Smith's drink-driving offence involving nearly double the prescribed level of alcohol per 100mls of breath. In paragraph 3 the petitioner considered the particular offence to be aggravated by the following features:-

"The driving offence took place around lunchtime in a built-up area, namely Dingwall. The offence came to light at about 14.10 hours having been reported by a member of the Occupational Health Service at Raigmore Hospital, Inverness, who described Mr Smith as smelling strongly of a mixture of alcohol and mouthwash. I noted additionally that he was described as being hesitant and vague with bloodshot and glazed eyes and flushed complexion".

In paragraph 5, the petitioner went on to record inter alia that, despite being challenged about the amount of alcohol that he had taken and giving conflicting accounts, Mr Smith stated that he intended to drive after his consultation with the Occupational Health Service, that he was reluctant to hand over his car keys; and that after leaving Raigmore he apparently went to nearby licensed premises where, on a balance of probabilities, he consumed 5 double whiskies and a half pint of Stella lager despite being due on duty that evening at 2300 hours. Subject to certain favourable and/or mitigating circumstances set out in paragraphs 8 and 10, paragraph 9 went on to note that Mr Smith's career had not been without incident. "Previous issues" were said to be set out in the transcript of the misconduct hearing, with particular reference being made to earlier misconduct hearings in November 2002 and January 2004. In paragraphs 11 to 16 inclusive, the petitioner then went on to express the view that dismissal or a requirement to resign was reasonably to be expected by all police officers convicted of drink-driving offences. In the petitioner's judgement there was nowadays an increased public intolerance towards drink-driving offences, and this had led to the stepping-up of police efforts to combat such offences. These included the Northern Constabulary's well-publicised policy on drink-drivers and participation in a campaign specifically focused in that connection during 2005.

[8] Against that background, the petitioner considered that to allow an officer of the Northern Constabulary to remain in service after having been convicted of drink-driving could undermine, not only the Force's road safety campaign, but also the work of other Scottish Police Forces and ACPOS. In addition, the petitioner concluded that retention within the Force of convicted officers was liable to undermine the respect and goodwill of the community which were crucial to the successful policing of the Highlands and Islands, to attract undesirable media attention, and to impact adversely on morale and discipline within the Force itself. While it is true to say that the petitioner addressed and commented on a number of other factors in reaching his decision, the points itemised above were the primary grounds on which that decision was based. Like the chairman of the misconduct hearing, the petitioner took the view that Mr Smith's actions exposing himself to the risk of conviction were culpable, and that there were no exceptional circumstances to justify a lesser penalty than the one imposed.

[9] When the matter came on appeal before the Tribunal the "salient facts" were said to be largely uncontested, although Mr Smith's representative urged a degree of caution regarding the precise detail of the Raigmore staff members' evidence which, being only in documentary form, had never been effectively tested. Having heard submissions from both sides, the Tribunal by a majority of 3:1 determined that, in the whole circumstances, the penalty of resignation was excessive and that a fine (expressed in terms of increments of pay over a 12-month period) should be substituted. The minority member essentially agreed with the petitioner and with the chairman of the misconduct hearing, on the basis that the public expected police officers to uphold the law, which Mr Smith had not done; that Mr Smith should have appreciated that alcohol would still be in his blood; and that it would not be generally understood if Mr Smith did not lose his job, especially given the real concerns in the area as to the dangers of driving when under the influence of alcohol.

[10] The reasoning of the majority of the Tribunal, as set out at pages 8 and 9 of their written decision, was to inter alia the following effect:-

"...(All) members of the Tribunal readily acknowledge that a conviction for drink-driving is a serious offence. This is particularly so for a police officer. However, in the present case, the majority are of the view that there are a number of factors which point to a disposal of lesser gravity than loss of employment. The offence happened when Mr Smith was actively seeking assistance for his alcoholism. He was a patient seeking treatment at the time of the events which led to his conviction. He had taken alcohol some hours previously before he retired to bed. He stated through his representative that had he been aware that he was unfit to drive, he would not have done so. There is no good reason to doubt this. A contrast can be made with cases which involve a police officer driving in circumstances in which it is clear that it was reckless and culpable to do so.

"In reviewing the decisions of the chairman of the misconduct hearing and of the Chief Constable, the majority of the Tribunal considers that insufficient weight was attached to the background of the appellant's illness and his attempts to obtain treatment for it. It can reasonably be concluded that but for his malady the conviction would not have happened. Further, and importantly, the recent report from Mr Hassan includes long periods of abstinence in the past year, and continuing expert support being provided to Mr Smith.

"The Tribunal did not accept the view that the alcohol level was particularly high, having regard to readings commonly encountered. It is readily accepted that, as a generality, a drink-driving conviction raises concerns as to morale, efficiency and professional perception within the Force, and also as to public perception of the Force as a whole. However, the circumstances of each case must be fully considered and taken into account. The majority of the Tribunal is of the view that the particular circumstances of this case would be considered to be mitigating factors both by Mr Smith's colleagues and by the public as a whole. It would be wrong to reach conclusions on individual cases by reference only to general concerns about drink-driving convictions .... The determining factors are the full circumstances of each case, not any presumption flowing from the conviction itself. In saying this, the majority of the Tribunal does not intend to dilute the significance and seriousness of the offence itself, but wishes to stress that this should not divert one from a careful weighing of all the relevant factors when determining an appropriate outcome".

[11] The majority of the Tribunal then went on to question other aspects of the petitioner's decision, notably his apparent reliance on Home Office guidelines having no formal status in Scotland, and further stated inter alia as follows:-

"As to whether Mr Smith intended to drive after his appointment at the hospital, the Tribunal is prepared to accept that once his unfitness to drive was questioned, Mr Smith did not intend to return to his vehicle.....As to whether the Courts consider that loss of employment is a likely consequences of a drink-driving conviction, no doubt this is true when a driving licence is a condition of that employment. A driving licence is not a condition of service in the Police Force.

"In summary, in the view of the majority the circumstances here are special. The disposal appealed against was not proportionate if regard is had to all of the circumstances, untrammelled by application of the Home Office guidelines".

The parties' submissions
[12
] In submitting that the Tribunal had erred in law, and that their decision should be reduced, senior counsel for the petitioner began by drawing attention to the particular facts of the case and to the principal grounds on which the decisions of the misconduct hearing and the petitioner had been based. Special emphasis was laid on Mr Smith's previous employment history, on the factors which in combination might be thought to aggravate the offence in question, and on the acknowledged importance of maintaining public confidence in the Police Service as well as the continuing morale and discipline of its members. Against that background, it was submitted that the Tribunal's reasoning was inadequate as to (i) the basis on which Mr Smith's personal culpability for his actions had apparently been negated or diminished; and (ii) the basis on which the circumstances of the case were regarded as sufficiently special to elide the normal adverse impact of an officer's conviction both within the Force and among members of the public in general.

[13] While certain potentially mitigating factors had been mentioned, there was nothing to indicate the view (if any) which the Tribunal had taken of the multiple aggravating factors which had carried weight with the misconduct hearing and with the petitioner, and which had been repeated in submissions. In particular, no mention was made of Mr Smith's past employment history, nor of his stated awareness that his job was at risk unless his alcohol problem could be controlled. No mention was made of the extent to which Mr Smith was reportedly smelling of alcohol on arrival at Raigmore Hospital on the day in question, nor of his assertion that he knew how much he could safely drink before driving, nor of his initial untruth about past drinking, nor of his reluctance to give up his car keys when his fitness to drive was challenged, nor of his subsequent consumption of alcohol at a high rate shortly after leaving the hospital. Did the Tribunal accept or reject the evidence on these matters in particular? If they rejected it, on what basis did they do so? If they accepted it, what weight (if any) did they give it in relation to Mr Smith's culpability? On what basis did they conclude that, notwithstanding such evidence, Mr Smith's conduct could be contrasted with conduct which was clearly reckless and culpable? In the latter context, what sort of conduct did the Tribunal have in mind?

[14] On what basis, moreover, did the Tribunal conclude that there was "no good reason to doubt" Mr Smith's assertion that, had he been aware that he was unfit to drive, he would not have done so? On what basis were they "prepared to accept" that once his unfitness to drive was questioned Mr Smith did not intend to return to his vehicle? If they rejected the evidence as to his stated intention to drive home, or as to his reluctance to hand over his car keys to the nurse, it was incumbent on the Tribunal to explain why. In short, there were numerous factors in the evidence before the Tribunal which, if accepted, would have tended to aggravate Mr Smith's offence, and to contradict what was claimed to have been his state of mind at the material time. In the face of such evidence, it was not good enough for the Tribunal merely to assert that they accepted Mr Smith's claims, or that there was no good reason to doubt them, without clearly explaining how such conclusions were reached. Similarly, it was not good enough for the Tribunal, without explanation, to imply that in some way the circumstances of Mr Smith's driving were neither reckless nor culpable.

[15] Senior counsel for the petitioner also challenged the basis on which the Tribunal had apparently concluded that Mr Smith's conviction would, exceptionally, fail to have an adverse effect on "...morale, efficiency and professional perception within the Force, and also (on) public perception of the Force as a whole". Was the Tribunal saying that there would be no such adverse consequences, or that such consequences would arise but would be outweighed by other factors? If so, what were these other factors, and how did they outweigh normal expectations? On what basis did the Tribunal take the view "...that the particular circumstances of this case would be considered to be mitigating factors both by Mr Smith's colleagues and by the public as a whole"? Surely the long term nature of Mr Smith's problems, the fact that he was seeking assistance in that connection, or the fact that he had pled guilty to a breath-alcohol level of double the permitted limit could not, of themselves, be thought to have that effect. Once again, the decision of the majority of the Tribunal left the informed reader and the court in real and substantial doubt as to the basis on which it had been reached.

[16] In response, senior counsel for Mr Smith submitted that the Tribunal took all material considerations into account, and that proper and adequate reasons had been given. As was observed by Lord Clyde in Stefan v General Medical Council 1999 1 W.L.R.1293, at pp.1301 and 1304, the extent and substance of reasons must depend upon the circumstances. So long as they told the parties in broad terms why the decision was reached, they need not be elaborate nor lengthy, and there could clearly be circumstances where a quite minimal explanation would legitimately suffice. Against that background, it was important to remember that this was effectively a sentencing appeal before the Tribunal. The only real question was whether the previous outcome of the disciplinary proceedings was too harsh, bearing in mind that in the absence of tested oral evidence the key facts could only be considered on a broad basis. No doubt written evidence had been admitted without objection for the purposes of regulation 14(3) of the Police (Conduct) (Scotland) Regulations 1996, but in judging that evidence the Tribunal was entitled to be guided by the parties' respective submissions during the hearing before them.

[17] The starting point for the majority of the Tribunal was an acceptance that a conviction for drink-driving was a serious offence, particularly for a police officer. However, they then went on to identify factors which in their view favoured a less severe disposal in the particular circumstances of the case. All of this was readily intelligible to the informed reader. There was here no conveyancing document to be minutely examined. The only question was whether, in broad terms, the basis of the decision was adequately conveyed to the reader. For instance, Mr Smith's statements as to his state of mind at the relevant time had been consistent from the outset, and it would have been open to the presenting officer to challenge or disprove them if he chose. It was not clear what view the chairman of the misconduct hearing had taken on such matters because his ruling contained contradictory statements. The important thing was not to scrutinise the Tribunal's decision too closely, but to judge it in the context of the submissions made and the absence of oral evidence. In senior counsel's submission, the Tribunal had been entitled to say that there was no good reason to doubt Mr Smith's claimed state of mind, since this had never really been in dispute before them.

[18] More generally, this court should be careful not to impose an undue burden on decision-makers by setting too high a standard for the duty to give reasons. It was not incumbent on the Tribunal in this case to rehearse the detail of the Raigmore staff members' statements or the extent to which these were either accepted or rejected. This was, after all, the final level of appeal, and the court should only quash the decision if it could be said that the Tribunal had manifestly gone wrong. Sentencing appeals generally were conducted on a broad basis, and on ex parte statements without the need for any proof in mitigation. The concern was simply to achieve an appropriate disposal on the basis of the important factual background.

[19] On the question of culpability, this was acknowledged by the Tribunal from the outset, so it would be wrong to hold that they had somehow reached the opposite conclusion. In the passage at page 8 of their decision, the Tribunal had merely been evaluating the level of culpability, and had contrasted other cases in which culpability might have been clearer such as that of an officer driving straight after "tumbling out of a nightclub". In all the circumstances, it was neither necessary nor appropriate for the Tribunal to go further as senior counsel for the petitioner had suggested.

[20] As regards the Tribunal's reasoning on the adverse impact of police officers being convicted of criminal offences, it was again important for this court to refrain from imposing too high a test. Not all of the factors relied on by the petitioner had been clearly focused in the submissions before the Tribunal, although it was acknowledged that many had been the subject of reliance in one or both of the decisions appealed against. No one had, however, relied at any stage on Mr Smith's apparent acceptance that he was on his last chance after being transferred to Dingwall. In the end, according to senior counsel, it was largely a matter of impression whether the tests in Wordie and Stefan were satisfied. In his submission they were, with all material issues being addressed and satisfactorily explained.

Discussion

[21] In approaching this matter I am conscious of the limited role of the court in review proceedings of this kind. An application to the court's supervisory jurisdiction is neither an appeal nor a re-hearing. The court cannot enter into any question as to whether the Tribunal's conclusions on the evidence before them were right or wrong, nor can it interfere with any decision except where the petitioner demonstrates an established ground for review such as, for instance, failure to give proper and adequate reasons in contravention of a statutory duty to do so.

[22] Against that background, it seems to me that the competing arguments here are fairly finally balanced. Although the Tribunal's determination was relatively brief and succinct, they were essentially dealing with a sentencing appeal where identification of the main issues depended, in part, on the competing submissions before them and, in part, on the terms of the decisions appealed against. A broad approach was quite legitimate in that context. In addition the prima facie assumption must, I think, be that all of the available evidence was considered and taken into account.

[23] In the end, however, notwithstanding the factors listed in the preceding paragraph, I am unable to affirm the adequacy of the Tribunal's stated reasons on key aspects of this case. In particular, there is no explanation of the basis on which the majority concluded that "...there (was) no good reason to doubt...." Mr Smith's assertion that had he known he was unfit to drive, he would not have done so. Nor is there any explanation of the basis on which the majority bore to accept the submission that "...once his unfitness to drive was questioned, Mr Smith did not intend to return to his vehicle". In the face of the multiple strands of evidence narrated at paragraph 5 above, from which very different inferences might have been drawn (and were in fact drawn in the decisions under appeal), it was surely incumbent on the Tribunal to make at least some reference to such matters and to explain what (if anything) they made of them. Did the majority accept or reject the relevant evidence? If they rejected it, on what basis did they do so? If they accepted it, by what route did they then proceed to reach inconsistent conclusions? In my judgement these are important unanswered questions, bearing in mind (i) that a fairly substantial body of evidence was involved, (ii) that the relevant conclusions appear to have played a material part in the Tribunal's overall decision, and (iii) that on a consideration of the same evidence the misconduct hearing and the petitioner both reached a different view.

[24] Similarly, I am persuaded that the Tribunal's reasoning can be faulted on the issue of Mr Smith's culpability in general. On what grounds did the majority seek to contrast the present case with "...cases which involve a police officer driving in circumstances in which it is clear that it was reckless and culpable to do so"? In drawing a distinction here, what kind of circumstances did they have in mind as inferring clear recklessness and culpability? If they considered that in driving his car with a breath-alcohol level of nearly twice the legal limit Mr Smith was not culpable or reckless, or at least clearly so, by what route or reasoning did they reach that conclusion? Since this again involved a significant departure from the approach which commended itself to the misconduct hearing and to the petitioner, I consider that it called for more than mere assertion in the face of a body of evidence capable of supporting an inference that Mr Smith drove his car, and intended to drive it again, when he must have known or suspected that his fitness to drive was impaired. Even assuming, in the Tribunal's favour, that they did not simply leave such evidence out of account, I am unable to accept that they stated proper and adequate reasons for the conclusion which they reached.

[25] Furthermore, I am unable to discern the basis on which the Tribunal concluded that "...the particular circumstances of this case would be considered to be mitigating factors both by Mr Smith's colleagues and by the public as a whole", or that these circumstances were sufficiently special to elide normal concerns as to morale, efficiency and discipline within the Force or as to the attitude of the public. Even discounting the difficulties to which I have already adverted regarding Mr Smith's state of mind and culpability, it is not easy to see how the positive factors relied on by the Tribunal were seen as taking this case into a special or exceptional category. Why was Mr Smith's intermittent treatment for alcoholism regarded as more than a neutral factor? What was the perceived significance of Mr Smith having retired to bed for some hours between drinking and driving? And what was thought to be the mitigatory value of driving with a breath-alcohol level of very nearly twice the permitted limit, bearing in mind the public safety implications of such conduct?

[26] In the result, I conclude that the Tribunal's reasoning fails to satisfy the requirements set out in Wordie and other cases, and leaves the informed reader and the court in real and substantial doubt as to the basis on which key conclusions were reached. In the preceding paragraphs I have dealt individually with the three main criticisms which were levelled at the Tribunal's decision by senior counsel for the petitioner, but in the end it seems to me that the real sources of difficulty are the two associated issues of Mr Smith's state of mind and his culpability in general. The Tribunal's judgement as to the likely impact of Mr Smith's conviction both within and outwith the Force would not, I think, necessarily have been open to successful challenge on its own. However, since I regard that issue as inextricably linked with the other two, it is in my view challengeable along similar lines.

[27] In reaching these conclusions I am not, of course, expressing any view as to whether the Tribunal's decision on the appropriate penalty was right or wrong, justified or unjustified. For all I know, the Tribunal may well have been entitled to conclude that the whole circumstances of the case warranted a penalty less severe than the enforced termination of Mr Smith's employment. The problem, in my view, is simply that the stated reasons leave too many critical questions unanswered.

Disposal
[28
] For the foregoing reasons I shall sustain the petitioner's second plea-in-law, repel the third plea-in-law for the respondent Mr Smith, grant decree of reduction of the decision of the Tribunal dated 8 September 2006, and remit Mr Smith's appeal for rehearing before a freshly constituted Tribunal.


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