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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

29 MAY 2013

Baker v Police Appeals Tribunal [2013] EWHC 718 (Admin); (2013) PLLR 065

Police - discipline - proceedings - power to make orders - section 85 Police Act 1996 - Police Appeals Tribunals Rules 2008 - functus officio - discretion as to whether to quash order - exercise of discretion

Where the Police Appeals Tribunal had made an order it lacked the power to make, it was not appropriate for the court to refuse to quash the order simply to allow a potential injustice to be rectified.

27 March 2013

Administrative Court

Leggatt J

(1)        The Claimant (B) had been dismissed from his employee police force following disciplinary procedures. He was subsequently reinstated and the defendant Police Appeals Tribunal (PAT) ordered that his pay be backdated to the date of his dismissal. It then came to light that B had been in other employment during the period of his dismissal. PAT issued an amended order requiring B's earnings from this period to be taken into account in any backdated payment.

(2)        B sought judicial review of the amended order, claiming that it was outside PAT's powers to make such an order. PAT accepted that it had acted functus officio in making the amended order, but argued that the court should exercise its discretion by not quashing the order, as to quash it would result in an injustice.

(3)        Leggatt J held: That the PAT had no power to amend its original order and that the Police Appeals Tribunal Rules 2008 gave no such power either expressly or impliedly [12] - [13].

(4)        That the discretion available to the court in deciding whether or not to grant a public law remedy was nevertheless subject to principle, and that to refuse to grant a remedy which would otherwise be due required strong reason (R v Stafford Justices, ex p Stafford Corp [1940] 2 KB 33 and R v HM Coroner for Inner London South District, ex p Douglas-Williams considered). Although a decision made by a tribunal acting outside its powers was a nullity, this alone was not sufficient as people may still treat the action as valid if it is not declared otherwise. Cases in which the courts had declined to quash an unlawful decision could be divided into four main, but not exhaustive, categories: where the claim has not been properly pursued or the claimant's conduct is problematic; where granting the remedy would cause substantial prejudice to the rights of third parties; where the error of law was not material to the decision; and where granting the remedy would serve no practical purpose. The present case did not fall into any of these categories. Nor did the possibility of the original order being invalid justify refusing the remedy. The fundamental requirement of the rule of law that decision-makers act within the powers conferred on them would be undermined if the court, and the principle of legal certainty, were to accept as a proper reason for not quashing a decision that injustice would occur or that the result the decision-maker sought was the right one [22] - [23], [26] - [33], [34], [40] - [42].

(5)        That quashing the order would not necessarily guarantee the avoidance of injustice, as B could foreseeably rely on the amended order in a private law claim for arrears due to him [44] - [48].

Application successful, order quashed

Key paragraphs

[1] - Introduction.

[2] - [8] - The Tribunal proceedings.

[9] - [14] - The lack of jurisdiction.

[15] - [17] - Mr Baker's case.

[18] - [21] - The Tribunal's arguments.

[22] - [23] - The width of the court's discretion.

[24] - [27] - The effect of illegality.

[28] - [33] - Permissible reasons.

[34] - [43] - Impermissible reasons.

[44] - [50] - A claim for arrears of pay.

[51] - Conclusion.

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