Mind how you go
Date: 04 June 2009
Authors: Dr Nicholas Dobson
Issue: Vol 159, Issue 7372
Categories: Features, Public, Judicial review
How far can a councillor go to promote his own perception of the public interest? Does this extend to trespassing onto another's land, filming proprietor and premises and then placing the film on the Internet? No, according to Mr Justice Charles in the Administrative Court in February who, on the facts, upheld a decision of the Adjudication Panel Appeal Tribunal that the councillor's behaviour breached the Code of Conduct (the Code) whilst remitting the issue of sanction to a differently constituted Appeals Tribunal (R (Mullaney) v The Adjudication Panel for England [2009] EWHC 72 (Admin), [2009] All ER (D) 102 (Feb)).
Mr Sfadar Zaman, a member of the public, alleged that the claimant (Councillor Martin Mullaney, a Birmingham City councillor) trespassed on his land and a building owned by Mr Zaman, filmed him and the building and then made the film available on the Internet.
The claimant and a fellow councillor (Ernie Hendricks) had been concerned about the state of the building and agreed that they would enter onto Mr Zaman's land and building to film inside it. The claimant considered he was entitled to enter part of the land over which a constituent (Keith Marsden the proprietor/tenant of an adjacent indoor skateboard park) who was accompanying the claimant had a right of way (although the claimant admitted that he did deviate from that path). The video-making proceeded with the claimant and Keith Marsden speaking to the camera which Ernie Hendricks was holding. Keith Marsden highlighted various concerns about the site including that it was an “eyesore” and “full of rats and pigeons and sewage”. Mr Zaman arrived and reached for the camera and a scuffle ensued as Mr Zaman tried to remove the camera from Councillor Hendricks in the course of which Mr Zaman's hand was slightly injured.
Complaint
Following a complaint from Mr Zaman, the Standards Committee of Birmingham City Council found that the claimant had been acting in his official capacity and failed to treat Mr Zaman with respect. As to sanction, the committee concluded that:
(i) the claimant be censured;
(ii) his offer to withdraw the video from the Internet be accepted and he must do so forthwith;
(iii) the claimant be suspended for a month unless he gives a written apology to Mr Zaman in a format to be agreed by the Committee Chairman; and
(iv) the claimant must publish his written apology on his website for a period of one month.
The claimant appealed to an Appeals Tribunal of the Adjudication Panel (the Tribunal) which (among other things) found that the claimant had been acting in his official capacity and had breached the relevant provision of the Code by failing to treat Mr Zaman with respect. The sanction imposed by the Standards Committee was altered by removing the opportunity for the claimant to avoid suspension by apologising in terms agreed by its chairman. The claimant challenged these conclusions on breach and if that failed on sanction.
The view of the Divisional Court
Charles J considered the approach at public law. Since the statutory decision maker was the Appeals Tribunal, the “grounds for review are therefore only public law grounds concerning decisions of a body to whom Parliament has given the task of applying the relevant legislation and Code”. He indicated that the bases for challenge at public law are well known and include “error of law, irrationality, procedural (and other) unfairness and in some cases a failure to give adequate reasons”.
Charles J identified the following two relevant triggers needing to be construed and applied in the relevant test: (i)whether the claimant was acting in his official capacity; and (ii) whether he failed to show respect.
In his view, since both tests are set using ordinary English words that can have a range of meaning depending on their context, they can “be said to be 'chameleon' phrases or words”. He cited Mr Justice Wilkie in Sanders v Kingston [2005] EWHC 1145 (Admin), [2005] All ER (D) 12 (Jun) in connection with the term “with respect”: “That is a concept, particularly when it describes the conduct of an official to others, which is perfectly capable of being applied by a reasonable person considering a course of conduct so as to enable that person to know what they are doing, or about to do, would or would not comply with the Code in that way.”
The court stated the classic position on the proper ambit of judicial review, ie that the function of the court is “to review the decisions of statutory decision makers applying public law principles”. Because in this case both statutory decision makers (ie the Standards Board and the Adjudication Panel) comprise persons identified by Parliament “because of their experience knowledge and position to apply the relevant Code”, therefore “absent an error of law the court is to pay considerable respect to the decision of what is an informed domestic tribunal”.
In the circumstances, Charles J considered that he should not be limited to expressing his views on whether the decision maker had applied the correct approach and reached a rational conclusion on the issues of whether the claimant was acting in an official capacity and had treated others with respect but would go on to express his view on whether as a matter of construction and application those decisions were right. (Charles J was considering the role of the Court on an appeal under what was at the material time s 79(15) of the Local Government Act 2000 but is now s 78B. These provide that where an English case tribunal decides that a person has failed to comply with the code of conduct of the relevant authority concerned, that person may appeal to the High Court against that decision, or any other decision made by the tribunal which relates to him.) He also noted that the Standards Committee and the Appeals Tribunal had to act with procedural fairness and give adequate reasons. As he pointed out, a foundation of procedural fairness is that the parties have a proper and fair opportunity to deal with the issues and therefore the case against them. However, the requirements of fairness will vary with the circumstances of each case.
Official capacity
As to official capacity, ie where the councillor “conducts the business of the office to which s/he has been elected or appointed” these were “ordinary descriptive English words”. However, their application is inevitably fact sensitive and so whether or not a person is so acting will inevitably call for informed judgment by reference to the facts of a given case. In the court's view, it could not be said that the tribunal nor the Standards Committee erred in law since they both applied the relevant language of the Code in its context. Charles J therefore agreed with the tribunal and that: “…the taking and publication of the video was a continuum of steps taken in respect of the property by the claimant on behalf of a constituent as (and identifying himself as) a Councillor by making 'Councillor Enquiries', his membership of the Planning Committee, his legitimate and keen interest in the building as a Councillor (who is interested in planning matters) and his identification of himself as a Councillor on the video and in its publication”.
Respect
The claimant had argued that he was acting on public interest grounds and also raised issues of procedural fairness. But while a defence of necessity to trespass does exist, as noted in Southwark Borough Council v Williams [1971] 1 Ch 734, [1971] 2 All ER 175: “The law regards with the deepest suspicion any remedies of self-help, and permits those remedies to be resorted to only in very special circumstances. The reason for such circumspection is clear — necessity can very easily become simply a mask for anarchy.”
In the instant case Charles J noted that “subject to the defence of necessity there was an actionable trespass (albeit for a short period of time)”.
Public interest
On the matter of public interest, the court took the view that the claimant in his actions and attempts to justify them had ignored or failed to give any proper weight to other aspects of the public interest. Charles J noted that Parliament had recognised by statute that there is a public interest in councillors maintaining defined standards in performing the business of the office to which they have been elected. A balance had therefore to be struck between the various relevant aspects of the public interest in all the relevant circumstances of the case.
The court therefore considered that the conclusion of the tribunal could not be said to fall outside the range of reasonable conclusions and it therefore did not err in law. Charles J particularly referred to the “highhanded and one-sided approach and conduct of the claimant” in respect of each of the four aspects of conduct addressed by the tribunal.
These were: the trespass onto Mr Zaman's land; the tenor and content of the video; failure to edit or qualify the content of the video once additional information came to light and failure to agree not to publish or destroy the video.
Freedom of expression
Charles J agreed with Collins J in Livingstone v Adjudication Panel for England [2006] LGR 799 and Sanders v Kingston that whilst the Code satisfies Art 10 it is important that the restraints should not extend beyond what is necessary to maintain proper standards in public life and also that political expression attracts a higher level of protection. The court nevertheless found that notwithstanding the public interest grounds relied on by the claimant, on a proper application of the Code, having regard to its underlying purpose and the aspects of the public interest it supports, the claimant broke it.
Art 6 & procedural irregularity
Charles J noted that in broad terms the matters relied on by the claimant to establish the defence of necessity to the trespass in question are that he had unsuccessfully been trying for two years to get the council's planning department to act. This was given his view that the building was unsafe, that criminal offences based on breaches of planning and health and safety laws had been committed and that Mr Zaman had acted in a highhanded manner in ignoring such laws and the interests of his neighbours and the community.
However, the court's view was that (no matter how sincerely the views were held) it could not be said that a reasonable person could sensibly have concluded that there was no alternative to the act of trespass either to bring the matters complained of to the attention of the relevant authorities or to avert a danger. Charles J considered that there were many ways in which a reasonable person could have brought the situation as perceived to the attention of the relevant authorities without trespassing. In addition, even if the claimant had an arguable defence of necessity to trespass, the claimant's high-handed and one-sided approach to the publication of the video would warrant the finding of breach of the Code for failure to show respect.
Re-election of the claimant
Charles J thought that the re-election issue was irrelevant since it could not be known what effect if any the issues in question had on voters. In addition, the primary and secondary legislation relating to the Code envisages that the electorate might be deprived of the services of a councillor they have chosen. While the facts and circumstances of Mullaney are of course different (other considerations apart, there was no complaint in Mullaney that the Standards Committee did not have relevant guidance drawn to its attention, whereas in Sanders it was common ground that the Case Tribunal was not referred to the relevant guidance on the circumstances in which disqualification, suspension and partial suspension may be appropriate following a finding of breach of the code of conduct), this does differ somewhat from the approach of Wilkie J in Sanders v Kingston. There Wilkie J had said: “It is a very serious thing indeed for a non elected body, such as the Case Tribunal, to disqualify from membership of a council a person who has been elected to that body by the electorate after the events complained of. In effect the case tribunal is overriding the wishes of the electorate. Whilst it cannot be said that this would never be an appropriate course for the case tribunal to take it, in my judgment, where the matter complained of was, by inference, put before the electorate as an issue and they have delivered their verdict through the ballot box it cannot be right to override that verdict.”
However, in Sanders the original sanction had been disqualification for two years whereas in Mullaney the tribunal had imposed one month's suspension (which as noted directly below was remitted for reconsideration).
Sanction
As indicated, the ingredients of the basic requirement of procedural fairness (that a person has a fair opportunity to address the issues and the case against him) will vary having regard to the circumstances. Consequently, Charles J took the view that the failure by the tribunal to alert the claimant that it was considering the removal of the opportunity to avoid a suspension was procedurally unfair and therefore an error of law.
In the circumstances the court upheld the decision below on breach of the Code but remitted the issue of sanction to a differently constituted Appeals Tribunal.
Serving the public?
The fact that councillors are elected to serve the public does not inevitably mean that all their actions will do so. As the case made clear there are different aspects of the public interest including those in councillors maintaining defined standards in discharging their elected office. So even if the defence of necessity to trespass had been established the high-handed approach of the claimant meant that he had not struck the right balance between the different facets of public interest in the case.
Another way of expressing this is the need for proper and proportionate use of public power and the avoidance of abuse of power. As Lord Bingham noted in a different context in Porter v Magill [2001] UKHL 67, [2002] 1 All ER 465: “…public powers are conferred as if upon trust that those who exercise powers in a manner inconsistent with the public purpose for which the powers were conferred betray that trust and so misconduct themselves”. A core purpose of the statutory conduct regime is to increase public trust in local government by putting in place a framework to govern the behaviour that the public can reasonably expect from those it elects to represent it. This will inevitably place limits on actions undertaken with a view to promoting other aspects of perceived public interest.
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