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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 >> Bennion, R (on the application of) v Merseyside Police  EWCA Civ 638 (4 May 2001)
Cite as:  ICR 136,  EWCA Civ 638,  Po LR 134,  IRLR 442,  ACD 93
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
(Mr Justice Toulson)
Strand, London, WC2A 2LL
Friday 4th May 2001
B e f o r e :
LORD JUSTICE JUDGE
LADY JUSTICE HALE
|- and -
|THE CHIEF CONSTABLE OF MERSEYSIDE POLICE
ex parte CAROL ANN BENNION
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
(instructed by the solicitor to the Chief Constable, Merseyside Police) appeared on behalf of the Appellant.
James Pickup Esq, QC
(instructed by Messrs Russell, Jones & Walker) appeared on behalf of the Respondent
Crown Copyright ©
LORD JUSTICE JUDGE:
"I have named Superintendent Rooney as respondent at this stage but I will be prepared to withdraw against him if the Chief Constable does not rely upon the defence contained in Section 41(3) of the Sex Discrimination Act 1975."
"to institute a disciplinary investigation into the Applicant's (and other officers') actions arising out of that same importation of motor vehicles into the United Kingdom........ At the date of service of this notice of appearance it had not been determined whether the Applicant or any officers who are the subject of the discipline investigation shall be required to attend a formal disciplinary hearing or not. ...... The police enquiries and the separate discipline enquiries into the importation of motor vehicles are continuing."
a) Mrs Bennion had declared that she had checked the information given in a DVLA application for a first licence and that to the best of her knowledge it was correct, when it had not been completed, or contained information which she knew or ought to have known was false;
b) She failed to inform the police or the DVLA of the receipt of a registration document which asserted that the registered keeper was Amanda Parker, when she (Mrs Bennion) understood that the car had been imported or registered in her name.
c) She failed to inform the police or the DVLA that she had received a registration document relating to another, second, car of which she was said to be the registered keeper, when in truth she had no knowledge of the car.
d) She failed to inform the police who were investigating the activities of Phillip Collins in connection with an alleged criminal importation of vehicles of her knowledge of Collins' activities.
"satisfied that from about October 1997 she had been aware of police enquiries into the activities of the car dealer. [He] was satisfied that she had not directly or indirectly reported her dealings with the dealer to the officers conducting the enquiries, and ... considered that it had been her duty to do so".
"... A charge against a member of a police force shall be heard
(a) by the chief officer concerned ...
except where a case has been remitted under Regulation 14."
"Remission of cases.
14.1 The case of a member of a police force charged with an offence
(a) shall, in the circumstances mentioned in paragraph 2, or
(b) may, in the circumstances mentioned in paragraph 7, be remitted by the chief officer concerned to another chief officer who, at his request, has agreed to act in the matter.
14.2 A case shall be so remitted if
(a) subject to paragraph 3, the chief officer concerned is interested in the case otherwise than in his capacity as such; or ...
14.7 A case not falling within paragraph 2 may be remitted by the chief officer concerned ... if, either before, or during the hearing, the chief officer concerned considers remission appropriate and directs that the function of determining whether the accused has committed an offence against discipline should be determined by another chief officer."
"You in your capacity as Chief Constable and now the respondent to those proceedings (before the Employment Tribunal) even though one can see that you may not have known about them or if, certainly not the details of them, that it is the factual situation now that you as Chief Constable are the respondent to all of those proceedings. The 1998 applications would have been brought against the previous Chief Constable of course, but you had the misfortune to take over all his liability. ... It would appear to the applicant that it would be inappropriate for the respondent in one set of proceedings to be the arbiter in the other."
"Is there something specifically that I have done in my capacity as Chief Constable to trigger this application?"
"That is important to me, do you understand that's important for me to understand in considering this submission?"
"Please understand, no ..."
"You are obviously entitled to balance the various features in the case provided as I indicated you are satisfied there is not a real danger of bias, then you are entitled to reflect the timing, the interests of the various parties, and other considerations as seen to you to be appropriate and material. ... Ultimately, having satisfied that first question as to the real danger of bias, it is entirely a matter within your discretion, balancing all the features. ..."
"I sit as an individual, I sit as not only Chief Constable but actually Norman Bettison, the Chief Constable of Merseyside Police".
Basing himself on the material drawn to his attention, he said that he had no personal involvement in the case, either in relation to the disciplinary matters, or to the matters which were the subject of the proceedings before the Industrial Tribunal. He was conscious that
"I am not as far as I know, named individually, either as an individual or in the office of the chief constable as being involved in victimising Carol Bennion".
He concluded that a reasonable observer would not be driven " ...to say there was a real danger of bias or that it was unfair of that man to adjudicate in these proceedings".
"... the Chief Constable did not determine any matter which is itself an issue in the employment proceedings. The disciplinary proceedings and the employment proceedings are separate causes and involve separate issues, (although) on the aspect ... whether the applicant was investigated for the disciplinary matters in a harsh manner, there may have been some commonality of evidence."
"... in the final analysis it does seem to me that where the judge (or person in the position of a judge) is himself not merely involved in, but is the head of an organisation being sued by the person whom he is called on to judge, and the outcome of the proceedings before him may have a material bearing on the outcome of the action brought by the person whom he is judging against the organisation of which he is head, the first limb of the judicial impartiality principle is brought into play."
"The court must constantly bear in mind that it is to the decision maker, not the court, that Parliament has entrusted not only the making of the decision but also the choice as to how the decision is made."
LADY JUSTICE HALE:
LORD JUSTICE HENRY: