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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Merseyside Police Authority, R (on the application of) v Gidlow & Anor [2004] EWHC 2807 (Admin) (08 December 2004) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2004/2807.html Cite as: [2004] EWHC 2807 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		8th December 2004

Mr Justice Stanley Burnton:

Introduction

1. In these proceedings, the Merseyside Police Authority seeks judicial review of the decision dated the 30 December 2003 of the Defendant, Dr Gidlow, the medical referee appointed for the purposes of, and acting under, regulation H2 of the Police Pensions Regulations 1987. The question to be determined by Dr Gidlow was an apparently but deceptively simple one, namely whether Mr Godfrey Reilly-Cooper's admitted diagnosed adjustment disorder or mixed anxiety/depression was "an injury received in the execution of his duty as a police constable" within the meaning of regulation A11. He answered that question in the affirmative. The Police Authority contends that in doing so he erred in law.
2. The consequence of Dr Gidlow's decision is that Mr Reilly-Cooper is entitled to an injury award. The Police Authority contends that he is not so entitled.
3. As is usual in cases such as the present, the defendant medical referee did not appear and was not represented. The issue before the court is one between the Police Authority and Mr Reilly-Cooper.

The relevant provisions of the Police Pensions Regulations 1987

4. Regulations A11, A12, A13 and B4 are as follows:

Injury received in the execution of duty

A11.-(1) A reference in these Regulations to an injury received in the execution of duty by a member of a police force means an injury received in the execution of that person's duty as a constable and, where the person concerned is an auxiliary policeman, during a period of active service as such.

(2) For the purposes of these Regulations an injury shall be treated as received by a person in the execution of his duty as a constable if-

(a) the member concerned received the injury while on duty or while on a journey necessary to enable him to report for duty or return home after duty, or

(b) he would not have received the injury had he not been known to be a constable, or

(c) the police authority are of the opinion that the preceding condition may be satisfied and that the injury should be treated as one received as aforesaid.

(3) …

(4) For the purposes of these Regulations an injury shall be treated as received without the default of the member concerned unless the injury is wholly or mainly due to his own serious and culpable negligence or misconduct.

Disablement

A12.-(1) A reference in these Regulations to a person being permanently disabled is to be taken as a reference to that person being disabled at the time when the question arises for decision and to that disablement being at that time likely to be permanent.

(2) Subject to paragraph (3), disablement means inability, occasioned by infirmity of mind or body, to perform the ordinary duties of a male or female member of the force, as the case may be, except that, in relation to a child or the widower of a member of a police force, it means inability, occasioned as aforesaid, to earn a living.

…

Disablement, death or treatment in hospital the result of an injury

A13. For the purposes of these Regulations disablement or death or treatment at a hospital shall be deemed to be the result of an injury if the injury has caused or substantially contributed to the disablement or death or the condition for which treatment is being received.

…

Policeman's injury award

B4.-(1) This Regulation shall apply to a person who ceases or has ceased to be a member of a police force and is permanently disabled as a result of an injury received without his own default in the execution of his duty (in Part V of Schedule B referred to as the "relevant injury").

(2) A person to whom this Regulation applies shall be entitled to a gratuity and, in addition, to an injury pension, in both cases calculated in accordance with Part V of Schedule B; but payment of an injury pension shall be subject to the provisions of paragraph 5 of the said Part V and, where the person concerned ceased to serve before becoming disabled, no payment shall be made on account of the pension in respect of any period before he became disabled.

5. Part H of the Regulations is as follows:

Appeals and Medical Questions

Reference of medical questions

H1.-(1) Subject as hereinafter provided, the question whether a person is entitled to any and, if so, what awards under these Regulations shall be determined in the first instance by the police authority.

(2) Where the police authority are considering whether a person is permanently disabled, they shall refer for decision to a duly qualified medical practitioner selected by them the following questions-

(a) whether the person concerned is disabled;

(b) whether the disablement is likely to be permanent;

and, if they are further considering whether to grant an injury pension, shall so refer the following questions:-

(c) whether the disablement is the result of an injury received in the execution of duty, and

(d) the degree of the person's disablement;

and, if they are considering whether to revise an injury pension, shall so refer question (d) above.

(3) A police authority, if they are considering the exercise of their powers under Regulation K3 (reduction of pension in case of default), shall refer for decision to a duly qualified medical practitioner selected by them the question whether the person concerned has brought about or substantially contributed to the disablement by his own default.

(4) The decision of the selected medical practitioner on the questions referred to him under this Regulation shall be expressed in the form of a certificate and shall, subject to Regulations H2 and H3, be final.

Appeal to medical referee

H2.-(1) Where a person has been informed of the determination of the police authority on any question which involves the reference of questions under Regulation H1 to a selected medical practitioner, he shall, if, within 14 days after being so informed or such further period as the police authority may allow, he applies to the police authority for a copy of the certificate of the selected medical practitioner, be supplied with such a copy.

(2) If the person concerned is dissatisfied with the decision of the selected medical practitioner as set out in his certificate, he may, within 14 days after being supplied with the certificate or such longer period as the police authority may allow, and subject to and in accordance with the provisions of Schedule H, give notice to the police authority that he appeals against the said decision, and the police authority shall notify the Secretary of State accordingly, and the Secretary of State shall appoint an independent person or persons (hereafter in these Regulations referred to as the "medical referee") to decide the appeal.

(3) The decision of the medical referee shall, if he disagrees with any part of the certificate of the selected medical practitioner, be expressed in the form of a certificate of his decision on any of the questions referred to the selected medical practitioner on which he disagrees with the latter's decision, and the decision of the medical referee shall, subject to the provisions of Regulation H3, be final.

The facts

6. Mr Reilly-Cooper is aged 50. He joined the police service on 2 January 1980 as a constable and was promoted to sergeant in about 1989.
7. In June 1997, Mr Reilly-Cooper was transferred to A block at the Wirral district control centre. As part of his duties, in November 1997 he carried out an interim performance review on the work of a civilian communications officer (a "CCO"). His assessment of her work was negative. He conducted a further performance review of her work in December 1997. It was again negative.
8. In February 1998 the CCO submitted a grievance against Mr Reilly-Cooper, suggesting that he had bullied, harassed and humiliated her. In the course of the grievance procedure, she was asked if she knew why Mr Reilly-Cooper should treat her differently from other staff. She alleged that there had been an incident in 1996 when Mr Reilly-Cooper had inappropriately touched her thigh. She had spoken to him about it then, and the incident had not been repeated. She had not made a formal complaint, because she considered that it was unnecessary, and the incident did not form part of the grievance she had raised in relation to her performance reviews.
9. In April 1998, the allegation of inappropriate behaviour in 1996 was brought to Mr Reilly-Cooper's attention. He took great exception to it.
10. The grievance was resolved by the transfer of the CCO to a section where the she would not be supervised by Mr Reilly-Cooper. The alleged 1996 incident, not being part of the grievance, was not investigated. In any event, it was not the function of the grievance procedure to establish or to apportion guilt or blame: its object was the resolution of problems between staff. However, Mr Reilly-Cooper was anxious that the allegation of inappropriate behaviour on his part had not been investigated and resolved.
11. Between December 1998 and February 1999, Mr Reilly-Cooper was signed off work as a result of the stress he felt over the issue of the alleged 1996 incident. He resumed working on 25 February 1999.
12. In March 1999 new shift patterns were about to be introduced by the Merseyside Police. The CCO raised the possibility that as a result she would again come into contact with Mr Reilly Cooper. She was concerned that this would undermine the resolution of her grievance. As a result, in April 1999 Mr Reilly-Cooper was informed that, in order to comply with the grievance resolution, he would not be working in the same office as the CCO, and that, since he had only a further 6 months to serve in the Wirral district control centre, it had been decided to move him to a new post. Mr Reilly-Cooper inferred that he was considered at fault over the substance of the grievance, and found this distressing.
13. In May 1999, Mr Reilly-Cooper again began a period of sickness absence due to anxiety. He also commenced his own grievance procedure. He thought that the decision to transfer him from his post implied that he had been guilty of the alleged inappropriate behaviour.
14. Mr Reilly-Cooper brought proceedings in the Employment Tribunal against the Merseyside Police alleging sex discrimination. Those proceedings were determined in favour of the Police Authority on 22 March 2000.
15. In April 2000, Mr Reilly-Cooper returned to work on reduced hours. He subsequently began the process of seeking medical retirement.
16. On 28 February 2001, Dr N J Cooling, the selected medical practitioner, reported that in his opinion Mr Reilly-Cooper did not meet the criteria of being permanently disabled required for medical retirement. However, on appeal, on 11 February 2002, Dr R N Chitty reported that Mr Reilly-Cooper was permanently disabled. In consequence, on 1 April 2002, due to "depression/anxiety" Mr Reilly-Cooper retired on ill health grounds pursuant to regulation A 20 of the 1987 Regulations. He applied for an injury award.
17. Pursuant to regulation H1(2) of the 1987 Regulations, the Police Authority referred to Dr R W Jones the question whether Mr Reilly-Cooper's disablement was the result of an injury "received in the execution of duty". On 28 May 2002, Dr Jones reported and certified that Mr Reilly-Cooper's disablement was not the result of an injury received in the execution of duty. He gave as the reasons for his opinion the following:

"(a) Mr Reilly-Cooper's Mixed Anxiety and Depressive Disorder appears to have been both precipitated and part caused by external events. These events relate to an accusation of sexual assault by a female civilian police employee. This accusation was made against Mr Reilly-Cooper and Mr Reilly-Cooper has consistently and persistently denied any wrongdoing whatsoever. Mr Reilly-Cooper states that his employers did not investigate the accusation in a satisfactory manner and furthermore that thereafter his dealings with his former employers, namely Merseyside Police, have been badly handled by his former employers.

(b) Whatever the rights and wrongs of the situation, my understanding is that the precipitating/causational stress is associated with his being a Police Officer and not his service as a Police Officer. The stress was incurred by the original (I understand unsubstantiated) allegation and thereafter by employment related issues.

I understand that such circumstances are not regarded as 'an injury received in the execution of duty.'"

18. Mr Reilly-Cooper appealed against this decision pursuant to regulation H2. The Police Authority's case was summarised in a letter dated 12 November 2003 of the Assistant Chief Constable. It set out the relevant provisions of the Regulations, referred to the authorities, set out in the history of the case uncontroversially, and under the heading "Conclusion" stated:

"38. Mr Reilly-Cooper became deeply upset about the way in which a grievance submitted by a member of his staff was handled. He was very concerned by the suggestion of inappropriately touching (the CCO's) thigh, although this never formed part of the grievance. His feelings about the matter, and his view that there was poor handling of the issues by management led to him taking lengthy periods of absence due to stress and eventually led to his medical retirement.

39. Mr Reilly-Cooper further lost faith in the organisation, when the desired outcome he required from his own grievance was not met, and it would appear that his sense of bitterness developed further. His desired outcome was:-

40. Financial compensation for the perceived mismanagement of the issues. ACC Baxter made it clear to him that financial compensation was not possible, and totally outside the remit of grievance resolution.

41. A change in the decision to move him from the District Control Centre. Mr Baxter explained the logic behind the decision, which surrounded Terms and Conditions of employment, and the Force tenure policy.

42. Mr Reilly-Cooper states that he felt worried about the suggestion that he touched (the CCO's) thigh and concerned about it becoming public knowledge. At the same time, he demanded a full investigation. A formal investigation would undoubtedly have led to the issue becoming generally known.

43. Mr Reilly-Cooper is now suggesting that his poor mental state is due to an injury received in the execution of his duties as a constable, and this is the issue now to be addressed. He says that his stress arose from the way in which the Force handled (the CCO's) grievance, his own grievance and from the decision to move him. Can Mr Reilly-Cooper's stress and anxiety be deemed to have resulted from the execution of his duty?

44. In the Stunt case, it was decided that an officer's reaction to the discipline process would not found an injury on duty award, because his psychiatric injury resulted from his simply being a police officer and obliged to submit to discipline and not from his service as a police officer.

45. I would suggest that Mr Reilly-Cooper's situation is very similar to that in the Stunt case, and therefore he is not eligible for injury award."

19. Mr Reilly-Cooper's solicitors, in their letter to Dr Gidlow dated 21 November 2003, summarised his case as follows:

"In short our client is suffering from Mixed Anxiety / Depressive Disorder caused by the treatment he received from senior management following a complaint made against him by a female support staff worker whom he was responsible for supervising. Our client is clear that it was not the actual complaint, but the way this was handled and the treatment he received that have caused his condition. It is our submission that in the circumstances are client is entitled to receive an injury award."

20. Mr Reilly-Cooper's appeal was heard by Dr Gidlow, who is a consultant occupational physician, on 8 December 2003. He upheld the appeal and certified that Mr Reilly-Cooper's injury was received in the execution of duty. His report dated 29 December 2003 is lengthy. He set out the history given by Mr Reilly-Cooper of his conflict with the CCO and of the grievance procedure. The sections of his report headed "Opinion" and "Decision" are set out as an appendix to this judgment. I have numbered the paragraphs for ease of reference.

The submissions of the Police Authority and Mr Reilly-Cooper

21. Both parties accepted the exegesis of the applicable provisions of the Regulations in R (South Wales Police Authority) v Kellam [2000] ICR 632 and R (Stunt) v Mallett [2001] EWCA Civ 265, [2001] ICR 989.
22. On behalf of the Police Authority, Mr Bassett submitted:

(a) The medical referee had erred in law in distinguishing between the grievance procedure in which Mr Reilly-Cooper had been involved and the disciplinary proceedings considered in Stunt.

(b) Stunt decided that an injury suffered in the course of or in connection with the disciplinary proceedings or the disciplinary process is not suffered "in the execution of duty".

(c) The medical referee wrongly equated the requirement that the injury be received "in the execution of duty" with "whilst on duty".

(d) The medical referee took into account irrelevant matters, namely, the lack of justification for the complaint by the CCO of inappropriate behaviour on the part of Mr Reilly-Cooper, and the insensitivity of the handling of the grievance procedure and its aftermath.

23. On behalf of Mr O'Reilly-Cooper, Mr Westgate submitted:

(a) The medical referee was right to distinguish between disciplinary proceedings and the grievance procedure. Disciplinary proceedings are a statutory procedure and can properly be described as applied to a police officer because of his status. They are a separate statutory process, and do not form part of the working conditions of the officer. Grievance proceedings, on the other hand, form part of officer's conditions of service. Exposure to grievance proceedings is part of the execution of duty in the broad sense used in Kellam.

(b) Whether an injury was suffered "in the execution of duty" depends not solely on whether disciplinary action or a grievance procedure is involved, but on the facts as a whole.

(c) There are important factual differences between disciplinary action and the grievance procedure. In particular, the grievance procedure is more likely to involve the active participation of the police officer whose injury is in question, and operational decisions (such as re-arranging working conditions, as occurred in the present case).

(d) The medical referee did not in fact confuse "execution of duty" with "whilst on duty".

Discussion

(a) The role of the medical referee

24. The questions defined in paragraphs (a), (b) and (d) of regulation H1(2) are medical questions that are appropriately referred for decision by a doctor. In many cases, the question defined in paragraph (c) will be a wholly medical question, as in cases where the issue is whether the disablement was caused by a particular injury or injuries, and there is no dispute as to whether that injury or those injuries were suffered in the execution of duty. However, there are cases where the disablement and its cause are not in issue, and the only question is a legal question, namely whether the injury was "received in the execution of duty" within the meaning of the Regulations. As the report of Dr Gidlow in the present case shows, the only issue of substance remitted to him was this legal question.
25. Where the injury in question is a physical injury, suffered on a specific occasion, the question whether the injury was received in the execution of duty may be relatively straightforward. However, as the authorities show, when the injury is psychological, and suffered over a period of time, the question may be far more difficult to answer. The present is such a case.
26. Where the question, or one of the questions, to be decided the medical referee is the legal question referred to above, it is important that he appreciates the limitations of his role. Where the history of the case includes allegations of inappropriate behaviour or misconduct on the part of the appellant, it is not normally part of his function to decide whether those allegations are well founded or not. Thus, questions of the application of regulation A11(4) are not for the medical referee to determine. Similarly, it is not part of his function to decide whether or not an allegation of inappropriate behaviour on the part of the appellant has been handled well or badly, or whether there was any insensitivity on the part of the authority or a failure of communication within the authority. That these are not matters for decision by the referee is highlighted by the fact that he does not receive evidence from the complainant of such inappropriate behaviour or from the officers involved in the grievance procedure. In the present case, the referee came to his decision solely on the basis of his interview and medical examination of Mr Reilly-Cooper and the submissions and documents provided to him by the Police Authority and Mr Reilly-Cooper's solicitors. Yet Dr Gidlow did decide those extraneous matters, as can be seen in paragraph 3 of the appendix to this judgment, presumably because he considered his decision on them to be relevant to the question he had to decide.
27. Mr Westgate accepted that it is not normally part of the functions of a medical referee to make findings of the kind referred to above. He submitted that these findings were irrelevant to the referee's conclusion in the present case. Mr Bassett submitted that the inference to be drawn from the referee's making these findings and including them in his report is that he considered them to be relevant to his decision.

(b) The general approach

28. Where the injury is physical, the question whether an injury was received in the execution of the officer's duty will normally be simply answered by reference to regulation A11(2)(a). Where, however, the injury is psychological, and "received" over a period of time, the question is more difficult. Anxiety over a demotion, for example, may be caused by an event occurring while on duty, but is likely to be suffered while off duty as much as on duty. Regulation A13 may not be of assistance in such a case, since the question is not whether the disablement has been caused or substantially contributed to by the injury but whether the injury was suffered in the execution of duty.
29. It is difficulties of this kind that were addressed by the Court in Kellam and Stunt, to which I now turn.

Kellam and Stunt

30. In Kellam, the police officer alleged that he suffered from anxiety and depression caused by his having been victimised for a number of years by colleagues at work as a result of his wife's (also a police officer) complaint of colleagues' misconduct. Richards J. upheld the award of the medical referee that the officer's injury had been "received in the execution of duty". He reviewed the authorities and summarised their effect and his interpretation of the Regulations under paragraphs (1) to (7) at [2000] ICR 644 to 646. For present purposes, it is sufficient to cite paragraph (5) and (6):

"(5) The causal connection must be with the person's service as a police officer, not simply with his being a police officer (the exception in regulation A11(2)(b) is immaterial to the kind of situation under consideration in the present case). That is inherent in the reference to "duty" in regulation A11(1) and regulation A11(2)(a). At the same time, however, "duty" is not to be given a narrow meaning. It relates not just to operational police duties but to all aspects of the officer's work - to the officer's "work circumstances," as it was put in R v Fagin, Ex parte Mountstephen (unreported), 26 April 1996. I have referred in general terms to the person's service as a police officer because it seems to me to be an appropriate way of covering the point, but the precise expression used is unimportant. In any event it is sufficient in my view to find a causal connection with events experienced by the officer at work, whether inside or outside the police station or police headquarters, and including such matters as things said or done to him by colleagues at work. In so far as the applicant contended for an even greater degree of connection with a person's performance of his functions as a police officer, I reject the contention.

(6) It is sufficient for there to be a causal connection with service as a police officer. It is not necessary to establish that work circumstances are the sole cause of the injury. Mental stress and psychiatric illnesses may arise out of a combination of work circumstances and external factors (most obviously, domestic circumstances). What matters is that the work circumstances have a causative role. The work circumstances and domestic circumstances may be so closely linked as to make it inappropriate to compartmentalise them, …

(7) It may be that what I have said about the sufficiency of a causal connection with service as a police officer should be qualified by a reference to a substantial causal connection. The requirement of substantiality does not appear to feature in the authorities (subject to my observation about the significance of the reference to a direct causal connection). …"

31. The medical referee in Kellam ascribed the officer's depressive illness "to emotional stress which had four causes: (1) his wife's stillbirth of their baby, (2) his wife's treatment by the police force, (3) his perception of the attitude of his colleagues after his wife won her case against the chief constable, and (4) the investigation of his neighbours' complaint against him". Allowing the officer's appeal, the medical referee said: "These all interacted with each other and all substantially contributed to the disablement. The last three in my opinion resulted from his being a police officer."
32. Richards J, having stated his conclusions upon the proper construction and application of the Regulations, applied them to the case before him at p 646:

"[Dr Kellam's] statement that three of the four causes of Mr Milton's emotional stress 'resulted from his being a police officer' must be read in context and is not to be taken literally: it meant that the stress caused by those matters resulted from circumstances which Mr Milton encountered as a serving police officer ... They are all to be seen as related to Mr Milton's service as a police officer — to his work circumstances. That is more obviously true of factors 2 and 3 than it is of factor 4, but I consider it to apply even in the case of factor 4 ... [Dr Kellam] did not base his decision on the mere fact of Mr Milton being a police officer at the material time. He understood the nature of Mr Milton's case, which was plainly directed to the effect on Mr Milton of events at work over a lengthy period."

33. The facts of Stunt bear some similarity to the present. Mr Stunt had been accused of misconduct while on duty in July 1993. On 27 July 1993, he was served with a written notification of the complaint pursuant to the Police (Discipline) Regulations 1985. An investigating officer was appointed to supervise the investigation of the complaint. On 24 August 1993, Mr Stunt was interviewed by the investigating officer. It was decided that a charge would be brought against him under the Police Discipline Code. It appears that Mr Stunt continued to serve as a police officer until November 1993, when he began a period of sick leave, complaining of the mental stress to which he had been subjected by reason of the investigation. He never returned to police service. The medical referee's original report included the following passage:

"The events leading up to retirement consisted of what he described as malicious allegation against him while he was working in the Houses of Parliament. He was made subject of an internal investigation by the police, felt betrayed by his colleagues and treated like a criminal. He felt a mixture of anger, frustration and hopelessness at fighting against a seemingly implacable system."

"Opinion: Mr Stunt suffered a severe depressive illness following proceedings brought against him [in 1993] and to some extent he is suffering from the after effects of this ... The disablement is not strictly speaking the result of an injury received in the execution of Mr Stunt's duty but does arrive [sic] as a result of his reaction to the internal proceedings brought against him ..."

34. In a supplemental report dated 8 January 1999, the medical referee stated:

"Mr Stunt's problems arise from both the fact that he feels it was a 'terrible wrong' that the investigation took place at all, mainly because he felt he conducted himself appropriately and this should have been clear to anyone taking an unbiased view of the situation and in addition, he feels he has a genuine grievance about the way in which the investigation was conducted once it started. He formed a strong impression that conclusions were drawn before the investigation even started, that the investigating officers had made up their mind and that this view is backed-up by the fact that he was strongly encouraged by the investigation team to plead guilty to the allegations and that they even spoke to his daughter at one point to encourage her to try and persuade him to change his mind."

35. I have italicised parts of those extracts to highlight the similarities between Stunt and the present case.
36. The principal judgment was given by Simon Brown LJ, with whom Longmore LJ expressly agreed. He held that "execution" in the phrase "the execution of duty" in the Regulations means "the fulfilment or discharge of a function or office", and he had no doubt that "officers whose depressive illness develops from the accumulated stresses of their work qualify for an award": see paragraphs 32 and 33. As to the result in Kellam and earlier cases, he said:

"34. It follows that I would regard the series of cases concluding with Kellam [2000] ICR 632 to have been rightly decided provided only and always that the officer's ultimately disabling mental state had indeed been materially brought about by stresses suffered actually through being at work. In the majority of the decided cases this clearly was so; the significant part played by events at work was a consistent theme. In Kellam itself, however, that was by no means obvious.

…

37. Without for a moment suggesting that [Richards J] was wrong to have done so — and I have done scant justice to his careful reasoning in that factually complicated case—I would at least suggest that Kellam takes to their limits the principles which he himself had deduced from the earlier cases. It was, as it seems to me, critical to his final conclusion that most if not all of the various stresses had borne more heavily upon Police Constable Milton because of his actually being at work and mixing with other police officers at the time.

38. That, of course, is not the position in the present case which is why, as both sides agree, it raises novel considerations.

39. As is plain from paragraphs 32, 33 and 39 of his judgment (already quoted), Grigson J found for Mr Stunt below on the basis that a police officer's submission to the complaints procedure is required of him and is therefore in the execution of his duty. Since Mr Stunt's injury resulted from his reaction to the investigation of the complaint, it followed that it was received in the execution of his duty.

40. The first point to be made about this basis of decision is that it recognises the essential passivity of the officer's role in the disciplinary (or at any rate investigatory) process and that he is not obliged to co-operate: submission, which of course is unavoidable, is sufficient.

41. The second point to note is that the decision is reached quite independently of the circumstances initially giving rise to the complaint—here Mr Stunt's arrest of Mr Marcus. The fact that, justified or not, that arrest was undoubtedly made in the execution of Mr Stunt's duty is, Mr Millar fully accepts, nothing to the point: the complaint could just as well have been one of corruption, say of taking a bribe to overlook an offence, or perhaps of a failure to do his duty.

42. The decision, in short, depends upon the correctness of the view that simply because a police officer, by virtue of his office, is subject to a formal discipline code and procedure, with which he need not co-operate but which he cannot escape, any injury resulting from its operation is necessarily suffered in the execution of his duty.

43. In seeking to support this view, Mr Millar urges upon us a number of general considerations in favour of a benevolent construction of the Regulations. These include not least (a) the closely regulated nature of a police officer's service and the requirement that he perform a wide variety of tasks in many testing situations and locations, (b) a police officer's vulnerability by the very nature of his work to malicious allegations and ill-founded complaints, and (c) the fact that these Regulations form part of a contributory pension scheme.

44. I should note also Mr Millar's contention that an officer's duty, at any rate in a case like the present which, strictly analysed, involved a statutory investigation under Part IX of the Police and Criminal Evidence Act 1984 superimposed upon the police disciplinary proceedings, requires, subject always to privilege against self-incrimination, some degree of co-operation at least, if only the handing over of the officer's notebook (police property in any event). I confess to having found this argument not merely difficult to follow but in any event unpersuasive: there was no suggestion here that Mr Stunt was required actively to co-operate in this investigation or even that his, plainly voluntary, attendance for interview of itself contributed to his stress. Rather the contrary, his concern was that the investigation was taking place at all and that it appeared to have been pre-judged against him.

45. In short, I do not accept that the resolution of this issue is capable of being affected by a minute analysis of the particular role played by the officer in the overall disciplinary process. The critical question, I repeat, is whether the officer's mere subjection to the process of itself constitutes the execution of his duty. With regard to that bald question Mr Miller urges that the judge below was right.

Conclusion on the narrower argument

46. Sympathetic though I am to police officers for the particular risk of disciplinary proceedings they run by the very nature of their office, I cannot for my part accept the view that if injury results from subjection to such proceedings it is to be regarded as received in the execution of duty. Rather it seems to me that such an injury is properly to be characterised as resulting from the officer's status as a constable —'simply [from] his being a police officer' to use the language of paragraph 5 of Richards J's conclusions in Kellam [2000] ICR 632, 645 when pointing up the crucial distinction. This view frankly admits of little elaboration. It really comes to this: however elastic the notion of execution of duty may be, in my judgment it cannot be stretched wide enough to encompass stress-related illness through exposure to disciplinary proceedings. That would lead to an interpretation of regulation A11 that the natural meaning of the words just cannot bear.

The applicant's alternative argument

47. There is one final argument I must briefly notice: Mr Miller's fall-back contention that Mr Stunt's illness should in any event be regarded as having been occasioned whilst he continued to undertake police duties between receiving notice of the complaint in July 1993 and departing on sick leave in November 1993. Throughout this period, argues Mr Millar, a significant part of the stress Mr Stunt was suffering from the worry of the disciplinary investigation occurred whilst he was at work so as to make him eligible for an award even if his submission to the disciplinary process was not in itself in the execution of his duty.

48. This argument too I would reject. It seems to me wholly unrealistic to suppose that the fact of being at work during the course of the investigation actually exacerbated the stress from which Mr Stunt was suffering; if anything one might suppose that his duties at work helped to take his mind off his worries. Why should the mere fact of his continuing at work whilst the stress deepened qualify him for an award? Such a claim is no stronger than had he during this period been developing a heart condition or other constitutional disability.

49. There is this consideration too: had Mr Stunt been suspended from duty during the investigation (as many officers are), clearly no such argument would have been available to him. It would be surprising and unsatisfactory if for the purposes of an injury award in circumstances like these a distinction fell to be drawn between those suspended from duty and those continuing at work. In my judgment it does not."

37. As I have already mentioned, Longmore LJ agreed with Simon Brown LJ. In addition, he referred to the passage from the medical referee's report set out at paragraph 33 of this judgment, and stated:

"54. This account, while referring to the fact that Mr Stunt felt betrayed by his colleagues and treated like a criminal, does not lead to the conclusion that the injury was caused by or received on police duty. It was the fact of the investigation and, to an extent, the manner in which it was conducted that gave rise to Mr Stunt's depression. That seems to me to make unassailable Dr Mallett's conclusion that his disablement 'is not strictly speaking the result of an injury received in the execution of Mr Stunt's duty but does arrive [sic] as a result of his reaction to the internal proceedings brought against him ...'"

38. Lord Phillips MR dealt with the issue quite shortly:

"56. A number of authorities were referred to Grigson J and to us where a similar issue arose. There is one common element in each case in which the injury was held to have been sustained "in the execution of duty". An event or events, conditions or circumstances impacted directly on the physical or mental condition of the claimant while he was carrying out his duties which caused or substantially contributed to physical or mental disablement. If this element cannot be demonstrated it does not seem to me that a claimant will be in a position to establish that he has received an injury in the execution of his duty. Mr Stunt was not in a position to demonstrate the existence of this essential element. For that reason Dr Mallett was correct to conclude that Mr Stunt's disablement was not the result of an injury received in the execution of his duty."

39. The similarities between Stunt and the present case are obvious. In both cases, the officer was the subject of a complaint. In both cases, he suffered anxiety as a result of that complaint. In both cases, the officer continued to work after the complaint had been made, during which time he was the subject of stress, until his illness led him to cease work. In both cases, while at work the officer felt betrayed because he had not been exculpated. In both cases, there was no finding of fault on the part of the officer in relation to the subject matter of the complaint. Why, therefore, should Mr Reilly-Cooper receive an illness award when Mr Stunt did not? The essential point derived from Stunt appears to me to be that an officer's psychological reaction to a complaint against him is not an injury received in the execution of his duty. The words must be given some meaning; as has been held in both Kellam and Stunt, they do not mean the same as "while on duty". The second point is this: that a psychological reaction to circumstances on duty is not necessarily suffered in the execution of (and perhaps not while on) duty.
40. What was said by Longmore LJ in Stunt at paragraph 54 applies equally to the present case. Similarly, if I take the words of Lord Phillips MR at paragraph 56, in the present case it is difficult to identify an "event or events, conditions or circumstances (that) impacted directly on the physical or mental condition of the claimant while he was carrying out his duties which caused or substantially contributed to physical or mental disablement".
41. Of course, one could equally ask why Mr O'Reilly-Cooper should not receive an award when Mr Milton, the officer whose case was considered in Kellam, did. My difficulty with this question is that the majority of the Court of Appeal in Stunt considered that Kellam "takes recovery under these Regulations to its furthest limits". It seems to me that it is therefore unsafe to apply the decision in Kellam to a case, such as the present, which has significant differences. In Kellam, the officer had suffered (or thought that he had suffered) victimisation during his work, i.e., while executing his duty. In the present case, the anxiety resulted from the Police Authority's perceived failure to vindicate the officer. As in Stunt, it would be unrealistic for the decision in the case to depend on the fact that the officer continued to work while suffering anxiety. His anxiety was not the result of his police work as such; it was the result of the allegation of inappropriate behaviour that had been made and his perception that it had not been adequately investigated.
42. I was also referred to the decision of McCombe J in Clinch v Dorset Police Authority [2003] EWHC 161 (Administrative) and that of the Court of Session in Lothian & Borders Police Board, an unreported decision given on 10 February 2004. In Clinch, McCombe J held that a psychiatric condition caused by a person's disappointment at repeated failures to obtain promotion is not an injury suffered in the execution of duty. It is to be noted that in a real sense in that case the disappointment was caused by work conditions. The decision highlights the distinction between an injury suffered in the execution of duty and one suffered by reason of service as a police officer. In the Lothian & Borders Police Board case, it was held that a psychiatric condition caused by participation in work assessments was suffered in the execution of duty. The work assessments were treated by the court as an integral and regular part of police service. I recognise that the distinction between stress in work assessments and stress resulting from a grievance procedure may be a fine one. Nonetheless, I do not think that this decision requires stress resulting from an officer's perception that an allegation against him has been upheld to be an injury suffered in the execution of duty.
43. Mr Westgate sought to distinguish the grievance procedure from the disciplinary proceedings considered in Stunt. While there are clear differences between the two procedures, they are not, in my judgement, relevant to the present issue. The fact that one is statutory and the other contractual, or at least non-statutory, does not appear to me to be relevant. It is similarly irrelevant that the disciplinary procedure may relate to the conduct of a police officer while off duty: in Stunt the complaint related to conduct on duty. It would be illogical if, other things being equal, an officer who is aggrieved by disciplinary proceedings is not entitled to an injury award, whereas an officer who is aggrieved by a grievance procedure is so entitled. The differences between the two procedures do not bear on the essential question whether the officer's injury was suffered in the execution of his duty. Moreover, it would be regrettable if an informal procedure, which if appropriately used may avoid recourse to unnecessary disciplinary proceedings (as to which see paragraphs 6.4.1 and 6.4.2 of the Police Authority's Grievance Resolution Policy), led to a different result from the disciplinary proceedings themselves, (and from the point of view of the police authority a more expensive result).
44. Thus, I see force in Mr Bassett's submission that the outcome would be irrational if the position is as follows:

(a) If there had been a disciplinary investigation and the allegation or inappropriate behaviour upheld, the officer would not merit an injury award by reason of regulation A11(4) of the 1987 Regulations ("the injury is wholly or mainly due to his own serious and culpable negligence or misconduct").

(b) If there had been a disciplinary investigation and the allegation rejected, the officer who suffered anxiety by reason of the making of the investigation would not be entitled to an award by reason of the decision in Stunt.

(c) However, in like circumstances, if there is only a grievance procedure, an injury award must be made.

45. I appreciate that in Stunt emphasis was placed by the Court of Appeal on the essentially passive role of the officer in the disciplinary process: see paragraph 40. However, in the present case the officer's illness does not relate to the part he played in the grievance procedure: it related to the perceived failure of the Police Authority to reject the allegation made against him.
46. However, I accept Mr Westgate's submission that the mere fact that an officer is involved in a grievance procedure, or a disciplinary procedure, does not of itself mean that his psychological injury is not suffered in the execution of his duty. The essential point in Stunt was that the officer's stress resulted from the allegation made and the existence of the disciplinary proceedings that did not vindicate him. In the present case, the stress arose from the fact of a grievance procedure that did not vindicate Mr Reilly-Cooper. I do not think that I can sensibly distinguish between the two.
47. Again, Mr Westgate may be correct in submitting that the grievance procedure is more likely than disciplinary proceedings to affect an officer's working conditions. However, Mr Reilly-Cooper's complaint was not that his working conditions had been affected, but that he felt that an allegation against him had been upheld.

The medical referee's report

48. In my judgment, the report of the medical referee in the present case discloses the following legal errors:

(a) In substance, in paragraph 5 he equated an injury suffered "whilst on duty" with one suffered "in the execution of duty".

(b) He placed reliance on the fact that Mr Reilly-Cooper's appraisal of the CCO was a "direct part of (his) job". His injury was not in any real sense the consequence of the appraisal.

(c) He considered that the fact that there was a disciplinary investigation in Stunt was of itself a sufficient distinction between that case and Mr Reilly-Cooper's.

(d) He considered, it would seem from paragraph 10, that a psychiatric condition resulting from resentment at an allegation made against Mr Reilly-Cooper and his perception that he had not been supported by senior officers meant that the condition was suffered in the execution of duty. Those factors do not distinguish this case from Stunt.

49. In these circumstances, it is unnecessary for me to decide whether I should have interfered with the decision of the medical referee by reason of the findings he made as to the lack of justification of the allegation made against Mr Reilly-Cooper and the merits of the grievance procedure as carried out by his senior officers, and the sympathy engendered by those findings evident in his report.

Disposition

50. For the above reasons, the appropriate order is to quash the decision of Dr Gidlow and to remit Mr Reilly-Cooper's appeal for hearing by a different medical referee. The Home Secretary may wish to consider whether the medical referee, in a case such as the present, should be a consultant psychiatrist or psychologist.
APPENDIX EXTRACT FROM THE REPORT OF THE MEDICAL REFEREE

Opinion

1. There seems to be adequate psychiatric and psychological evidence to support the fact that Mr Reilly-Cooper suffers from an adjustment disorder and this was the diagnosis when he retired from the Merseyside Constabulary on the grounds of ill health. As mentioned above, I considered him to be anxious but minimally depressed. I would suggest that someone with his personality type would consider that his reputation had been damaged by the above-mentioned course of events and that he would become anxious whenever the issue was resurrected. This was confirmed by his recent sleeplessness and worsening of his rosacea. The issue under dispute is therefore, simply whether the adjustment disorder arose "in the execution of his duty".

2. Firstly, apart from a short episode in 1994 which Reilly-Cooper claims was a 10-week sickness absence due to anxiety following "an issue with a superintendent (personality clash)" which was resolved in 1995, there is no other psychological or psychiatric history. Although divorced from his first wife, he claims that the divorce was "amicable" and that he still has regular contact with his children.

3. Secondly, the present condition arises from an allegation made by a civilian member of staff following an interview with Reilly-Cooper. It is clear that the interview was robust as Reilly-Cooper is clear that he "does not suffer fools" but insists that this was part of his success within the Force as this was why he was sent to troubleshoot underperforming units. Following the interview and her subsequent period of sickness absence, (the CCO) raises the issue of an inappropriate action by Reilly-Cooper 18 months previously, her alleged rejection of his advances and his subsequent intention to "get his own back". I can find no evidence to substantiate (the CCO's) allegations. Full study of the evidence presented to me appears to show that there have been several occasions on which the issue has not been handled as well as could have been expected and it is understandable that this could have caused continued stress and frustration to Reilly-Cooper. In particular,

The issue was raised with colleagues by (the CCO's) partner (also a police officer)

There seems to have been at least a suggestion of credibility added to the allegation by the report from Superintendent Shannon, (She [the CCO] is allegedly, the victim of sexual harassment).

Reilly-Cooper was told he would have to move as it was not possible, under her terms and conditions of service, for (the CCO) to be moved. This may well be true but added to the sense of injustice.

It would appear to be insensitive that a move suggested to Custody Sergeant in an area where a female officer had previously made an allegation of sexual harassment against another sergeant. In fairness, this move was immediately blocked by Superintendent Shannon.

Failure of communication led to Reilly-Cooper being denied the opportunity of a meeting with the Chief Constable.

4. I have read the Court judgments submitted by both sides as being potentially relevant to this case. It may be an oversight, that the Police Authority did not supply a transcript of R v Kellam although it is mentioned in other cases supplied. I believe that this case is of fundamental importance in the case of Reilly-Cooper's appeal. Studying each case and its relevance to this appeal:

1. Commissioner of Police and Stunt. Here, an injury was not received in the execution of duty as it was the result of a disciplinary procedure. There was never any disciplinary issue with Reilly-Cooper.

2. Hubie v The Chief Constable of Humberside Police. Here an injury arises as the result of anticipation of undertaking a task or duty which he never performed. This is clearly not the case with Reilly-Cooper.

3. Clinch v Dorset Police Authority. Here the injury resulted from failure to achieve promotion. This is clearly not the case with Reilly-Cooper.

4. R v Kellam. Here an injury received in the execution of duty was awarded as a result of victimisation following his support for his wife (also a police officer) as a result of her "whistle blowing" concerning malpractice in a specialist child abuse unit.

5. In the case of Reilly-Cooper, there would appear to be a direct causation between the injury (adjustment disorder or mixed anxiety-depression) and his duty as a police officer. My reasoning in coming to this conclusion is that the allegation made by (the CCO) came as a result of an appraisal carried out on her by Reilly-Cooper. This appraisal surely must be a direct part of Reilly-Cooper's job. As a result of the appraisal, and (the CCO's) dissatisfaction with the outcome and the subsequent absence for stress, we have the situation where (the CCO) alleges that Reilly-Cooper was trying to get his own back on her following her rejection of his alleged advances. Reilly-Cooper believes that the investigation carried out (NOT as part of any disciplinary procedure) failed to exonerate him and, at least partially in the report from Shannon supports the allegation. I believe that all these events occurred during his duty as a police officer and not just because he was a police officer at the time. Here, I believe I am supported by Reg v Court where "whilst on duty" appears to cover all events occurring during the time spent on duty, including conversations and interviews with colleagues and superior officers and the receipt and scrutiny of documents such as performance appraisals (and I would add, reports from superior officers).

6. In the judgment by Richards in the Kellam case he states:

An injury received "in the execution of duty" is likely generally to be received "whilst on duty".

There should be a casual connection between the injury and the person's service as a police officer.

It is sufficient in my view to find a casual connection with events experienced by the officer at work, whether inside or outside the police station or police headquarters, including such matters as things said or done to him by colleagues at work.

The stress resulted from circumstances encountered as a serving police officer.

7. I do not believe that the decisions in the Stunt case change the applicability of the comments made in the Kellam case to the present case under consideration.

8. The submission from the Merseyside Police Authority was that the case was not that of a disciplinary procedure but an internal investigation into a complaint made by (the CCO). The grievance was initially only for "bullying" and the sexual connotations were only added later.

9. Mr Reilly-Cooper submits that there was always a perception of his guilt – both from colleagues as a result of the remarks made by (the CCO's) partner to colleagues, and the report from Superintendent Shannon. There was never any disciplinary procedure and he believes that the issue has never been satisfactorily resolved. He does not feel that he over-reacted – to have acted in any other way would have made his job very difficult. Superintendent Shannon never defended his statement that (the CCO) was "allegedly the victim of sexual harassment" as he was "unavailable" at the tribunal for sexual discrimination - Reilly-Cooper v Chief Constable of Merseyside.

Decision

10. Mr Reilly-Cooper appeared to be a straightforward and honest individual who was capable of dealing with the normal stresses of life, including divorce. However, he does appear to have a somewhat rigid personality and a marked sense of injustice in the outcome of his case. He feels that his resentment at the allegations made against him was not supported by his senior officers and it is this lack of support, and indeed perhaps implicit acceptance of the allegations, which led to the medical conditions for which he was retired form the Force.

11. Having considered all the evidence supplied to me and provided at the appeal, I believe that there is no other conclusion which can be drawn than that the injury was received in the execution of duty. I therefore uphold Mr Reilly-Cooper's appeal.