Bhoti, R (on the application of) v Secretary of State for the Home Department

Where the Secretary of State departs from a tribunal’s factual conclusion on a disciplinary appeal, he must be satisfied to the criminal standard that the disputed aggravating fact is established. A conclusion that a fact is more likely than not is insufficient. The decision must be judged by the reasons expressed in the decision letter, read fairly as a whole. Later explanations cannot ordinarily cure the legal error through ex post facto justification. A Secretary of State may reverse a tribunal on questions of fact, but only lawfully and on an adequate evidential basis.

The claimant, a former police constable, challenged a fresh decision by the Secretary of State under section 37 of the Police Act 1964. The Secretary of State had upheld the requirement that the claimant resign following a drink-driving disciplinary offence, despite a tribunal’s recommendation that his case was exceptional.

Following an earlier judicial review and Court of Appeal decision, the Secretary of State reconsidered the matter. He concluded that it was more than likely that the claimant knew he might be over the legal limit when he drove. The central issue was whether that standard of proof lawfully permitted him to depart from the tribunal’s factual conclusion.

1. The claim was allowed. The decision of 13 May 2002 was quashed.
2. The Court of Appeal’s earlier decision in the same litigation established that, before departing from the tribunal on a disputed fact adverse to the claimant, the Secretary of State had to be sure that the fact was established. The observations concerning the standard of proof were necessary to the decision and were not obiter.
3. The Secretary of State was entitled to consider the evidence that the claimant had anticipated drinking, arranged accommodation so that he would not drive, and had time to cool off before reaching his car. That evidence could support a conclusion that he appreciated the risk of being over the limit.
4. However, the words “more than likely” meant more likely than not. They did not demonstrate the required degree of certainty. The decision letter had to be assessed by the words used in it, read fairly as a whole. The explanatory letter and affidavit could not supply an impermissible ex post facto justification.
5. The Secretary of State had power to reverse the tribunal on questions of fact and was not required to remit the matter for further evidence. His error lay in applying the wrong standard of proof to a crucial fact. That error removed any good reason for differing from the tribunal.
6. The court made clear that it was not appropriate to order the Secretary of State to allow the appeal. The decision remained one for him, although the lapse of time and the repeated failure to reach a lawful decision were relevant considerations. The claimant was awarded costs, subject to assessment, and permission to appeal was refused.

The judgment records that Collins J’s earlier decision was affirmed by the Court of Appeal on grounds that were not precisely the same. The matter was remitted to the Secretary of State, who made the fresh decision challenged in this claim.