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15 July, 2019

BD v Scottish Police Authority [2019] CSOH 53

Case comment by Michael Way, Advocate

Lord Woolman rejects police officer’s claim that refusing him medical retirement, while misconduct proceedings were ongoing against him, was irrational

Facts

The petitioner was a serving police constable of over 25 years’ service. He became signed off from work in April 2017 with various medical problems, including hyperthyroidism, which causes his hormone levels to fluctuate and includes symptoms of agitation, anxiety and depression.

In 2017, the petitioner received a summary conviction for sexual assault, stemming from incidents in late 2016. A £500 fine was imposed. The petitioner’s name was placed on the Sex Offenders’ Register.

In May 2018 the petitioner applied for retirement on the grounds of permanent disablement. The SPA refused this request and recommended redeployment within the police service. The petitioner took steps to challenge the decision, but the SPA withdrew the decision and undertook to retake it.

In August 2018 the decision under challenge in these proceedings was made. The SPA refused the application because there were live misconduct proceedings pending against him. It was the Interim Chief Officer’s view that, “on public policy grounds police officers should not be granted medical discharges whilst there are live misconduct proceedings against them, as he concluded that there could be a loss of public confidence in the service if police officers were seen to be evading misconduct proceedings by exiting the service on medical discharges before those proceedings had concluded.”

Subsequently, medical opinions concluded that the petitioner was mentally unfit to take part in disciplinary proceedings. Disciplinary proceedings are currently suspended.

Issues

In analysing the decision, the Court identified 3 key issues:

  1. Did the SPA take into account irrelevant material?
  2. Was the decision irrational?
  3. Did the SPA fetter its discretion?

Decision

The Lord Ordinary dismissed the petition (at [38]). His reasoning on the issues was as follows.

Issue 1 – Did the SPA take into account irrelevant material?

This issue is considered at [22]-[24]. The Lord Ordinary disagreed with the petitioner’s contention that the SPA erred by assessing the misconduct as serious, ignoring the compassionate circumstances, and implying that the petitioner was trying to evade the disciplinary proceedings. On the contrary, the existence of misconduct proceedings was a relevant and important factor (at [24]).

Issue 2 – Was the decision irrational?

The petitioner advanced several grounds which led inevitably to the conclusion that the decision was irrational. The first group were dealt with at [27]-[28]:

(A) The petitioner’s mental condition renders him unable to face proceedings.

(B) He should not be required to remain in the police service when he will never be able to fulfil his duties.

(C) His career and pension entitlement should not be left indefinitely in limbo.

(D) There was no question of evasion on the part of the petitioner, who is in wretched condition and does not have the mental capacity to exercise a conscious choice in this matter.

The Lord Ordinary considered that these factors were based on the subsequent medical evidence and were not properly before the decision-maker.

The petitioner advanced a further argument. Police officers can only be stripped of their pension, when in receipt of it, for a very serious criminal conviction or a conviction certified by the Secretary of State as “gravely injurious to the interests of the State” or liable to lead to a serious loss of confidence in the public service (at [29]).

The petitioner argued that if he had retired immediately after committing the offences, he would have kept his pension. The offending was at the lower end of the spectrum of seriousness. It would be inequitable if, by pleading not guilty and standing trial, he risked losing his full pension rights.

The Lord Ordinary considered this to be a “powerful argument, persuasively presented” (at {31]). However, his Lordship did not consider that it met the test of irrationality: “a sensible person could have arrived at the same decision” (at [32]).

Issue 3 – Did the SPA fetter is discretion?

This issue turned on whether the SPA had adopted a blanket approach of refusing to grant a medical discharge to any officer while disciplinary proceedings were outstanding. The decision letter stated that it had given “careful consideration of all the circumstances” but then relied on a public policy decision (at [34]).

The Lord Ordinary considered that there was “no foundation for holding that the SPA did not consider all the circumstances of the petitioner’s case” but simply that the SPA considered “public policy as tipping the balance” (at [36]).

Analysis

Despite the powerful and persuasive submissions advanced by senior counsel for the petitioner, and the likely harsh consequences that will follow the petition’s refusal, the Lord Ordinary concluded that the decision was within the range of reasonable responses from the decision maker.

This decision reinforces the difficulty that can arise when challenging administrative decision-making on the grounds of irrationality. It is not enough simply that the decision is harsh or is one that the Court might disagree with; the absurdity has to leap off the page.

Representation

Ampersand’s Craig Sandison QC appeared as senior counsel for the petitioner.

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