In Baker v Police Appeals Tribunal [2013] EWHC 718 (Admin) the Administrative Court refused to deprive an officer the benefit of a mistake made by the PAT when the PAT attempted to correct that mistake after it was “functus officio”.

Background

Mr Baker was a Police Constable in Sussex Police. He was dismissed at a misconduct hearing for gross misconduct. He appealed to the PAT. The PAT dismissed Mr Baker’s appeal against the finding of gross misconduct but allowed his appeal against the “outcome” of dismissal.

The PAT issued a standard Order in the circumstances, namely that Mr Baker be reinstated in the rank of Constable and that “The effect of this Order is that for the purposes of pay [Mr Baker] shall be deemed to have served continuously in that rank” from the date of his dismissal to the date of his reinstatement. The result was that Mr Baker would receive back-pay to restore him to the position that he would have been in had he not been dismissed.

But the PAT made a mistake. It did not ask Mr Baker or Sussex Police for submissions at the appeal hearing on whether Mr Baker should receive back pay. Had the PAT done so, it would have become apparent that Mr Baker had in fact been earning money in private employment since his dismissal.

When Sussex Police became aware the Mr Baker has been undertaking paid work, it informed the PAT. The PAT issued an “Amended Order” to the effect that Mr Baker should only receive back pay less his income earned from other sources between his dismissal and his reinstatement. The PAT sent the Amended Order to the parties with an Addendum explaining that, had it been aware of Mr Baker’s true financial circumstances at the time of hearing, it would not have made the order it did, since its intention was to put Mr Baker in the same, but not a better, financial position than if he had not been dismissed.

Mr Baker claimed judicial review of the PAT’s decision to issue an Amended Order, arguing that the PAT had no power to do so.

Functus Officio

The PAT accepted that it was “functus officio” at the time when it made the Amended Order. That is to say, the PAT no longer had any powers, including the power to vary its previous orders.

The PAT is a creature of statue in the sense its powers are derived exclusively from the Police Act 1996 (the Act under which the Police Appeals Tribunal Rules 2008 (and now 2012) find their statutory basis) .

Where the PAT orders that an officer be reinstated, it has the power to make orders dealing with back pay to that officer and a discretion as to the extent of that back pay: see Schedule 6, paragraph 7(2) to the Police Act 1996.

Had the PAT made the decision recorded in its Amended Order the first time around, there would have been no difficulty.

However, by the time the PAT made its Amended Order, its powers had come to an end. The final acts of the PAT are set out in rule 22 of the PAT Rules 2012 (the wording of which is slightly, but not materially, different to that in the PAT Rules 2008 that applied in this case):

“…

(5) The chair shall prepare a written statement of the tribunal’s determination of the appeal and of the reasons for the decision.

(6) As soon as reasonably practicable after the determination of the appeal the chair shall cause the appellant, the respondent and the local policing body to be given a copy of such statement; but, in any event, the appellant shall be given written notice of the decision of the tribunal before the end of 3 working days beginning with the first working day after the day on which the appeal is determined.

(7) Where the relevant decision arose from a complaint which was certified as subject to special requirements under paragraph 19B(1) of Schedule 3 to the 2002 Act, the relevant local policing body shall notify the complainant and any interested party of the decision of the tribunal.

(8) Where the appeal is a specified appeal, the relevant local policing body shall notify the IPCC of the decision of the tribunal.”

Once the PAT has taken these steps, it no longer has any powers with respect to the appeal that was before it.

Leggatt J found as follows:

“ [13] After it has given notice of its decision and issued a statement of its determination of the appeal and of the reasons for the decision in accordance with these provisions, nothing in the Rules (nor anywhere else) gives the Tribunal power to take any further action. In particular there is no express power, and it is accepted that none is to be implied, which would enable the Tribunal subsequently to change its decision.

[14] It is for this reason that the Tribunal has conceded in these proceedings that after issuing the Original Order and Statement of Determination of Appeal it became functus officio and accordingly had no power to make the Amended Order.”

Denying Mr Baker relief in any event?

The substantive argument in this case turned on whether, notwithstanding that the PAT’s decision was unlawful, the Administrative Court should decline to exercise its jurisdiction to make an order enabling Mr Baker to recover his full back pay without giving credit for his earning from other sources (i.e. that the PAT’s original Order should stand). The detail of that argument is of more interest to public lawyers than to those concerned with police law and, in summary, the Court found there was no reason to depart from the usual course of events following a finding that the decision under challenge was unlawful. The PAT’s Amended Order was therefore quashed as a nullity.

This result may seem surprising to some, since the PAT was plainly acting in good faith to correct an error but, as Leggatt J, explained:

“ [40] What is in my view clear is that the possibility that the Original Order was itself invalid cannot justify a refusal to quash the Tribunal’s second, admittedly void order. The fact that in making the Amended Order the Tribunal was seeking to achieve, by an unlawful means, a result which could possibly have been achieved by a lawful and proper means is no justification for allowing the Amended Order to remain in place.

[41] Nor can the fact that the Original Order has the unpalatable result of allowing Mr Baker to benefit from having stood dismissed be a legitimate reason for leaving the Amended Order undisturbed. It is a fundamental requirement of the rule of law – viewed as a safeguard against arbitrary power – that decision-makers act within the powers conferred on them by law and do not exceed those powers. That fundamental requirement would be subverted if it were to be accepted as a proper reason for refusing to quash an invalid decision of a tribunal that the invalid decision is one which the court thinks it would have been desirable or just for the tribunal to make had it been within its power to make it.

[42] In a case of the present kind, such an approach would also offend against the principle of legal certainty. It is in the public interest that there comes a point at which any adjudication is treated as final and the only way of challenging the outcome is to pursue any right of appeal or review by another court rather than by reverting to the adjudicator and asking it to change its decision. That important principle would be flouted if the court declined to quash an attempt by the original decision-maker to alter its decision after the point had passed at which the decision became final.”

Commentary

This case serves as a reminder that once a PAT has given the notice of its decision and statement of determination and reasons under rule 22 of the Police Appeal Tribunal Rules 2012 it has no power to take any further action whatsoever. This is so even where an obvious error or injustice comes to light, as it did in this.

The power to “correct” the decision of the PAT once it is functus officio lies not with the PAT, but with the Administrative Court. Where the PAT makes a decision on the basis of a material mistake of fact giving rise to unfairness, it is open to the aggrieved Chief Constable or officer concerned to seek judicial review of the PAT’s decision. The Court adverted to the possibility that Sussex Police could have judicially reviewed PAT’s original Order on this basis once it discovered that, unbeknown to the PAT, Mr Baker had been earning money from other sources while he was dismissed at paragraph [38].