BARRISTER
In the matter of applications by John William Alexander Stewart for Judicial Review.
Judicial Review Police officer Member of lawful association Activities associated with membership Parades Creation of impression of partiality Finding of breach of discipline Whether such finding unreasonable.
Status of European Convention on Human Rights in British law Right to manifest religion Validity of restriction on private life.
Tribunal Judicial notice Whether members of tribunal permitted to use personal knowledge and experience of issues before it.
In the High Court of Justice in Northern Ireland (before Lord Justice Carswell) judgment delivered 12 January 1996.
IN the execution of their duties, police officers need to retain public trust in their fairness and even handedness. In order to do so, it may be necessary for them to refrain from perfectly lawful activities in which the general body of citizens is free to engage.
Accordingly, it was not unreasonable for the Secretary of State for Northern Ireland to dismiss the applicant's appeals against findings that, by taking a prominent and public part in demon rations by the Orange Order and the Apprentice Boys of Derry, he was acting in such a way as was likely to give rise to the impression among members of the public that his capability to impartially discharge his duties might be interfered with.
In deciding such questions, tribunals are entitled to bring to bear on the issues before them their own knowledge and experience of the society in which they operate.
Lord Justice Carswell so held in dismissing applications for judicial review of the Secretary of State's refusal to overturn findings of guilt on disciplinary charges.
Royal Ulster Constabulary Regulations (NI) 1984, Schedule 2 paragraph 2, provides as follows:
"A member shall at all times abstain from any activity which is likely to interfere with the impartial discharge of his duties or which is likely to give rise to the impression amongst members of the public that it may so interfere and in particular a member shall not take any active part in politics."
Peter Smith QC and Mark Horner BL for the applicant Ronald Weatherup QC and Bernard McCloskey BL for the respondents.
LORD JUSTICE CARSWELL said that the applicant, a serving member of the Royal Ulster Constabulary, had applied for judicial review of the dismissal by the Secretary of State for Northern Ireland of his appeals against findings of guilt on disciplinary charges. The charges had alleged that the applicant's activities in connection with the Orange Order and the Apprentice Boys of Derry, although entirely lawful, were likely to give rise to the impress ion among members of the public that they might interfere with the impartial discharge of his duties.
The applicant had been a member of the Orange Order and the Apprentice Boys for a number of years. On 15 December 1988, he had taken part in an Apprentice Boys parade in Limavady. At one stage he had set light to an effigy, band a photograph of this had appeared in a newspaper. On 12, July 1989 the applicant had taken part in an Orange parade in Londonderry, and on 16 December he had taken part in an Apprentice Boys parade, also in Londonderry.
Lord Justice Carswell said that by Regulation 7 of the Royal Ulster Constabulary Regulations (NI) 1984, police officers, in order to maintain their option for even handedness, had to accept certain restrictions on their private lives. By Schedule 2 paragraph 1 of the Regulations, officers were obliged to abstain from any activity which was likely to interfere with, or give the impression among members of the public of interfering with the impartial discharge of their, duties. Engaging in such activity, without good and sufficient cause would constitute an offence of disobedience to orders.
Lord Justice Carswell said that the restriction on private life contained in Schedule 2 paragraph 1 of the Regulations was in the same terms as the restriction in force in England. That restriction had been considered by the House of Lords in Champion v Chief Constable of Gwent [1990] All ER 116. At page 120b, Lord Griffiths had said.
"The purpose of para 1 of Sch 2 is clear enough. Its object is to prevent a police officer doing anything which affects his impartiality or his appearance of impartiality. Impartiality means favouring neither one side nor the other but dealing with people, fairly and even handedly. The paragraph takes its colour from the particular prohibition on taking any active part in politics which is an overtly partisan activity in which one favours one side to the exclusion of the other. It is activities that are likely to be seen in a similar light that are aimed at, activities that identify those taking part with a particular interest or point of view in a way which will, or may be thought to, make it difficult for them to deal fairly with those with whom they disagree".
As a result of his participation in the parades, the applicant, had appeared before disciplinary tribunals. He had been found guilty of the disciplinary offences and reprimanded.
The applicant had appealed to the Chief Constable. The appeals had been dismissed and the reprimands affirmed. The applicant had appealed to the Secretary of State. He had dismissed the appeals.
At every stage of the proceedings it had been conceded by the Chief Constable and accepted by the tribunals that, it was only the applicant's activities in connection with his membership of the Orange Order and Apprentice Boys, and not his membership per se, which had been in breach of the restriction on private life.
The applicant had applied for judicial review on 20 June 1994, and leave was granted on 22 June 1994. The applicant advanced three submissions first, that the Regulations were incompatible with article 9 of the European Convention on Human Rights, and should not be construed or applied in manner which was contrary to the requirements of that article secondly, that there was either no evidence or insufficient, evidence upon which a finding of, guilt could be based thirdly, that the decision of the Secretary of State was unreasonable in the Wednesbury sense.
Lord Justice Carswell said, that paragraph 1 of Article 9 of the European Convention on Human Rights provided inter alia for everyone to have "the right to manifest his religion." Paragraph 2 stated that this right was "subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of the public order, health or maorals, or for the protection of the rights and freedoms of others".
Lord Justice Carswell said that the status of the Convention in British domestic law was well established. Where there was uncertainty or ambiguity in a provision in a statute or regulation, the court in interpreting it should lean in favour of a construction which avoids conflict between domestic legislation and the obligations assumed by the Government in adhering to the Convention. Referring to the judgment of Lord Ackner in R v Secretary of State for the Home Department, ex parte Brind [1991] 1 AC 696, at 761-2, Lord Justice Carswell said that to go further would incorporate the Convention into domestic law by the back door. The Convention could not be a source of rights and obligations in domestic law.
Lord Justice Carswell said that the construction of the regulation appeared to be adequately clear. Counsel for the applicant had not invoked article 9 to aid interpretation of the regulation. Rather, he had invoked it in order to argue that the prohibition in the regulation should not be so applied as to infringe the freedom of manifestation of religion safeguarded by article 9 of the Convention. Lord Justice Carswell concluded that, while it was desirable that the conclusion reached by the domestic court was in harmony with the principles of the Convention and the jurisprudence of the European Court of Human Rights, the court was bound to interpret and apply domestic law as it found it.
Lord Justice Carswell turned to the applicant's submission that, there had been very little evidence of the character, objects and activities of the Orange Order or the Apprentice Boys, and that the several tribunals had been wrong to have recourse to judicial notice of these matters. Further, counsel for the applicant had argued that there had been no evidence at all concerning the likelihood that the applicant's activities would give rise to the impression among members of the public that they might interfere with the impartial discharge of his duties.
However, Lord Justice Carswell accepted the argument of counsel for the respondent that tribunals were entitled to bring to bear on the issues before them their own knowledge and experience of the society in which they operated, including their knowledge of the likely reaction to the applicant's activities of members of various groups in the community. A judicial tribunal was also entitled to resort to its own specialised knowledge of matters before it.
Turning to the facts of this case, Lord Justice Carswell said that the activities of the applicant were of such a nature that an ordinary citizen could form a judgment, with out more evidence than that which was adduced in each case, about the likely impression among members of the public to which they would give rise. All but two of the persons who had heard the cases had been senior serving police officers, who could be expected to have rather more experience and knowledge than the average citizen about the impression which different elements in our divided society would be, likely to gain from seeing or hearing of the activities of the applicant. Accordingly, the applicant's contention that there was no evidence or insufficient evidence against him on these charges was not well founded.
Lord Justice Carswell then dealt with the applicant's contention that the findings should be set aside as unreasonable in the Wednesbury sense, particularly in the light of the concession made that passive membership of the organisations would not be in breach of the regulations.
At this point, Lord Justice Carswell noted that it had never been suggested that the applicant was in fact anything less than properly impartial. It had not been argued that the applicant's activities were actually likely to interfere with the impartial discharge of his duties.
Nonetheless, Lord Justice Carswell said that police officers needed to retain public trust in their fairness and even handedness and in order to do so it might be necessary for them to refrain from perfectly lawful activities in which the general body of citizens was free to engage. The Secretary of State and the several tribunals had come to the conclusion that in the state of society in Northern Ireland it was likely that members of the public would form he impression that a member of the RUC who showed himself as being so committed to support for one section of the community could not be relied on to treat all sections impartially and give the same fair treatment to those whose views he personally opposed. Lord Justice Carswell said that, taken on its own, this conclusion was sustainable and not unreasonable in the Wednesbury sense.
The question was whether this conclusion was undermined by, the concession that passive membership of the Orange Order or the Apprentice Boys was not in breach of the Regulations. Lord Justice Carswell said that the logic of this argument had considerable strength However it was not necessary to consider it any further on the basis of the reasoning in the Champion v Chief Constable of Gwent case. Although lines might be difficult to draw, a sustainable distinction might be drawn between an officer's membership of the organisations, even if known to the public, and active and publicly prominent support, which may be said to show a stronger degree of commitment to them.
The Secretary of State's decisions could therefore not be set aside as unreasonable or based on incorrect considerations. The applications for judicial review would accordingly be dismissed.
Solicitors Edwards & Co (Belfast) for the applicant Crown Solicitor for the respondent.
