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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McAdam v Wood For Judicial Review [2001] ScotCS 247 (1 November 2001) URL: http://www.bailii.org/scot/cases/ScotCS/2001/247.html Cite as: [2001] ScotCS 247

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[1] The petitioner is a police officer holding the rank of Inspector with Lothian and Borders Police. The respondent is an Assistant Chief Constable with the same force. On 27 November 1998 the petitioner received from Ian Thomas, a Chief Inspector with Lothian and Borders Police, a copy of an investigation form alleging in general terms that the petitioner had treated a colleague in an oppressive manner. The form served was of the type referred to in reg. 5(7) of the Police (Conduct)(Scotland) Regulations 1996 (S.I.1642) (hereinafter referred to as "the Regulations") which came into force on 1 August 1996. On 26 January 1999 the petitioner received from Chief Inspector Thomas a copy of a further such investigation form stating that he had treated five other colleagues in a similar fashion. These allegations are referred to hereafter as "the Portobello allegations". It is clear from the nature of these complaints that they are essentially disciplinary in character and would not be the subject of any criminal proceedings. Following his receipt of these two forms, the petitioner received no further notice or communication in respect of these allegations until 7 February 2001, when he received a misconduct form in terms of reg. 6(4) indicating that he should appear before a misconduct hearing. This form was served following a decision by the respondent made on 15 January 2001. It is against that decision that the present review has been taken by the petitioner. In general terms, the petitioner claims that the delay in proceeding with these complaints between 26 January 1999 and 7 February was caused by the respondent, and was an illegal exercise of his powers. The reason given for the delay by the respondent is that on 9 February 1999 the petitioner was suspended from duty under reg. 22(1) in connection with further and separate allegations against him, which were of a criminal nature and which are hereafter referred to as "the West End allegations", as the petitioner was working in a police station there at the material time. At the time of the petitioner's suspension he was warned by the respondent that there might be action taken against him on the Portobello allegations irrespective of the outcome of the West End allegations. The West End investigations were, according to the respondent, intimated to the Procurator Fiscal, who was also made aware of the Portobello investigation. After extensive enquiries a report relating to the West End inquiry was submitted to the Procurator Fiscal on or about 14 February 2000. Thereafter, in December 2000 the respondent was advised by the Procurator Fiscal that no criminal proceedings would be taken against the petitioner in respect of those matters. The respondent further indicates in his pleadings that the decision to delay the enquiry into the Portobello allegations was based on advice from the Procurator Fiscal, who was concerned about the level of publicity that such an enquiry might have on any criminal proceedings against the petitioner. Further the respondent believed that he was acting in a spirit of fairness to the petitioner by delaying the investigation into the disciplinary matters pending the outcome of an investigation which could have produced criminal charges, and that in doing so he was acting in accordance with the normal practice in other police forces. The petitioner subsequently received a warning from his superiors in respect of the West End allegations.

[2] The pleadings in the present case are still being adjusted. However, both parties indicated that they were anxious that the petitioner's second plea-in-law, which is a preliminary plea, should be settled at this stage. This plea is to the effect that the respondent's decision to delay the progress of the investigations into the Portobello allegations pending the outcome of the West End allegations was outwith the powers conferred upon the respondent in terms of the Regulations, and that accordingly the decision dated 15 January 2001 requiring the petitioner to attend a misconduct hearing was invalid and should be suspended. It was agreed that the first plea-in-law for the petitioner should be repelled at this stage and that consideration of the third and fourth pleas-in-law should be deferred meantime.

[3] The basis of the petitioner's claim rests upon the proper construction of the relevant provisions of the Regulations. Reg. 4 provides:-

Schedule 1 paragraph 1(h) refers to

Reg. 5 provides for preliminary investigation procedures, which in general terms reflect what happened in the present case. In particular, reg. 5(7) provides:-

Reg. 6 is concerned with the requirement to appear before a misconduct hearing, and the relevant parts are as follows:-

[4] Reg. 7 is concerned with misconduct which amounts to an alleged criminal offence. The relevant parts of this regulation are -

[5] In submission, counsel for the petitioner argued that it was clear from the foregoing circumstances that by choosing to delay the investigation into the Portobello allegations, the respondent had in effect been acting ultra vires of his powers in terms of the regulations. There never had been any suggestion that these allegations could form the basis of a criminal offence. Accordingly the circumstances covered by reg. 7 do not arise in considering the Portobello investigation. In terms of reg. 6(2) the power given to the respondent is specific and is to the effect that except where he decides to delay taking a decision in terms of reg. 7, he shall after due consideration decide whether or not the constable should be required to appear before a misconduct hearing. Accordingly, by giving the respondent the power to delay the proceedings in reg. 7, reg. 6 should be construed as excluding any interpretation that might imply a general power to delay proceedings in terms of that regulation. Reference was made to the maxim "expressio unius exclusio alteris". Further, reg. 5(7) requires the investigating officer in effect to prepare an investigation form and send a copy of that to the constable, again subject to reg. 7. Accordingly, it was submitted that the regulations clearly make specific provision for delay only in cases of alleged criminal conduct. The general terms of the regulations are otherwise mandatory. The reason for excluding enquiry into allegations of criminal conduct from the general requirement not to admit delay was obvious; the power to delay investigations into alleged criminal behaviour may depend upon whether the Procurator Fiscal intends to instigate proceedings or not. All other forms of investigation should be dealt with as expeditiously as possible. The respondent in the present case clearly delayed the investigation into the Portobello incidents for about two years (from January 1999 until service of the misconduct hearing requirement on 7 February 2001). The respondent's explanation for the delay, to the effect that the investigation into the West End allegations required that the Portobello investigations be suspended in the interests of fairness to the petitioner and in accordance with normal practice and the advice of the Procurator Fiscal, may have been in itself a reasonable decision but it was not one empowered by the regulations. The power given in reg. 15 to adjourn proceedings once they had commenced was likewise irrelevant, and the respondent's averments that the petitioner took no steps to accelerate the progress of the Portobello investigation merely reversed the onus of proof in an unacceptable manner. Counsel also referred to the report from the Inspector of Constabulary which is produced by the respondent and which suggests that there was no reason to deal with allegations of misconduct before criminal investigations were complete, and again submitted that this was irrelevant to the present case. In the circumstances the respondent purported to exercise a power to delay the investigation of the Portobello incidents over a protracted period. While he may have thought this reasonable, he had no express power to act in this way, nor was there any implied power to this effect in the regulations. The regulations are designed to protect the subject of the complaint by providing for an expeditious enquiry.

[6] In response, the respondent's counsel submitted firstly that the respondent was entitled to act as he did, and secondly that even if he was wrong in acting in the way he did, it did not necessarily follow that the whole process of the investigation into the Portobello allegations should be suspended. Counsel for the respondent specifically accepted all the dates described by the petitioner in his pleadings and narrative, and also the fact that a delay had occurred. As far as the question of construction was concerned, counsel for the respondent argued that the general features of the scheme in the regulations are concerned with what the Assistant Chief Constable can or cannot do. It was important to note that these regulations apply to all complaints, from the trivial to the serious, and from all kinds of sources. There may therefore be other interests than just those of the petitioner and the respondent in a case such as the present; there was the public interest to see that such allegations were resolved and the interests of the complainers whose rights in this matter could not be ignored. It is therefore necessary to look at the overall scheme and to ask if all parties have received fair treatment. The regulations avoid rigidity and refrain from imposing any kind of timescale. Even if there is no power to delay that does not mean to say that the respondent cannot not thereafter come to a decision following a delay. The petitioner's construction might force the respondent to call a misconduct hearing in every case, which might prove unfair to someone in the petitioner's position. Further, counsel submitted that there may be an implicit power to delay by reference to other parts of the regulations such as reg. 15, or reg. 10(7) which allows an Assistant Chief Constable to discharge a misconduct hearing; because the power of delay is particularly allowed in the circumstances described in reg. 7, that does not necessarily mean that delay is implicitly not allowed in terms of the rest of the regulations. The power to delay in reg. 7 may have been given specifically to avoid prejudice by giving priority to criminal proceedings. All public bodies of this kind must act fairly (Wiseman v Borneman [1971] AC 297), so the respondent must be governed by considerations of fairness in considering how to proceed with the investigation into these allegations. To take a rigid and unreasonable approach to the regulations might compel the respondent to act unfairly (see Glasgow Corporation v Flint 1960 S.C. 108 at 119). There was no express exclusion of delay in respect of misconduct hearings in the regulations.

[7] Secondly, the respondent's counsel argued that even if there was some kind of time schedule imported into the regulations, the consequences of that could not be to free the respondent from his responsibility to complete the process of investigating the allegations by the complainers. The petitioner can submit that the delay has caused him prejudice, and that can be considered either in the hearing or in any appeal process that might follow. Any failure by an authority to perform its statutory duty does not relieve that authority of the obligation to carry out their statutory duties (London and Clydesdale Estates Ltd. v Aberdeen District Council 1980 S.C. 1 per Lord Fraser of Tullybelton at p.38 and Lord Keith of Kinkel at pp.42 - 44). Accordingly even if there was a delay which was prohibited by the regulations the consequence should not be that the whole process is suspended. The petitioner's second preliminary plea should be rejected at this stage.

[8] Having considered these competing submissions I have come to the conclusion that the question of construction of these regulations is straightforward. The whole tenor of the regulations is general in character. No timetable is given at any point. I have no doubt that what happened between January 1999 and February 2001 can properly be described as a delay. Further, I have no doubt that the character of that delay is of the same kind as described in reg. 7(1)(b)(iii). It seems clear from the character of the regulations that the precise extent of the delay of the sort contemplated by reg. 7 is immaterial. The question is whether the respondent's delay in respect of and in terms of reg. 6 is something which is necessarily excluded by a proper construction of the regulations, and in particular reg. 6(2). I have come to the conclusion that it is not.

[9] It is true that the only specific permission to allow delay granted to the Assistant Chef Constable is in terms of reg. 7(1)(b)(iii). It is also true that specific reference to this particular exception is made in regs. 5(7) and 6(1). However there is no qualification of the duty imposed on the Assistant Chief Constable to come to a decision as to whether or not the constable should be required to appear before a misconduct hearing in terms of reg. 6(2). There is in particular no time limit included in either reg. 6(2) or 6(4). It would therefore be necessary to imply such a qualification into reg. 6(2), if the petitioner's submission were correct. The need for this implication is not obvious, particularly as other parts of this procedure are qualified by requirements on the Assistant Chief Constable to do certain things within a specific time frame other than that given in terms of reg. (7)(1)(b)(iii). For example, in reg. 5(7) the Assistant Chief Constable must do certain things "as soon as practicable after being appointed;" this refers to the way in which he must discharge his preliminary duties in a misconduct hearing of the sort presently under review. Again, in reg. 6(3) the Assistant Chief Constable must, if he decides not to require the constable to appear before a misconduct hearing, give him a written notice of his decision "as soon as possible." I would therefore be particularly reluctant to imply any kind of temporal qualification into reg. 6(2) where there are explicit and various qualifications in other parts of the same procedure. The petitioner did not suggest what specific duty was incumbent on the respondent as to when he should carry out his obligations under regulation 6(4). I do not think it is sufficient to argue that merely because delay is allowed by a particular reference to one aspect of this procedure, it is excluded by inference from all other parts of the procedure on pain of vitiating the whole process. I am confirmed in that view in general terms by the argument that, in the absence of such specific directions in the regulations, the respondent can claim to be motivated by interests of fairness. Further, I am of the view that the petitioner does have the opportunity to have any prejudicial impact of delay taken into consideration in his case. As indicated in the respondent's submissions, any tribunal is under a duty to act fairly and reasonably, and in my view a misconduct hearing would therefore require to take full account of any prejudicial effect of the delay that is established by the petitioner in the course of the hearing.

[10] I am less confident about the respondent's secondary submission that if such a delay was found to be in contravention of the regulations, then the whole process should not be suspended because of the respondent's duties to other parties. The case of London and Clydeside v Aberdeen District Council is I think restricted to the premise that an authority cannot escape from its statutory responsibilities by ignoring the statutory time limits imposed upon it. Here the situation is somewhat different; had he failed in his statutory duties, the respondent might have had to accept the consequences of his failure to observe the regulations in respect of the claims of others. It is not clear that the only way in which the complainers or the public interest can be satisfied is through this misconduct process. If the regulations had intended that there should not be a delay in processing the misconduct report, and that it had been shown that this was an absolute precondition of further progress, then I do not see that this particular misconduct hearing could have proceeded further.

[11] In all the circumstances I will repel the second plea-in-law for the petitioner at this stage.