Heath v Commissioner Of Police For Metropolis

Absolute immunity for judicial or quasi-judicial proceedings is a true immunity protecting the integrity of the process. It covers acts and omissions in the ordinary course of proceedings, whatever the cause of action, subject to established exceptions. A police disciplinary board is judicial for this purpose where, viewed overall, its legal status, issues, procedures and powers closely resemble those of a court. The immunity is not displaced by the Sex Discrimination Act 1975, Articles 6 or 8 ECHR, or the Equal Treatment Directive. The majority treated a complaint about the all-male board as inseparable from the hearing. Neuberger LJ dissented on that distinct issue.

The appellant, a civilian station reception officer, complained of sexual assaults by a police inspector. Her first Employment Tribunal complaint against the Commissioner was stayed while criminal and disciplinary proceedings were considered. After the disciplinary hearing, she made a second complaint alleging that the all-male board intimidated her, denied her female support and permitted humiliating cross-examination.

The Employment Tribunal held on a preliminary issue that it had no jurisdiction because the Commissioner was protected by absolute immunity. The Employment Appeal Tribunal upheld that decision. The appeal concerned the scope of the immunity, the judicial character of the disciplinary hearing, domestic and European law, and whether the board’s composition was a separate discriminatory act.

The majority, comprising Auld LJ and Holman J, dismissed the appeal in its entirety.

1. The common-law immunity is not confined to defamation. It protects anything said, done or omitted by participants in judicial proceedings, whatever the form of action, because its purpose is to protect the integrity and effectiveness of the judicial process. The recognised exceptions include malicious prosecution, perjury and contempt of court.
2. Whether a tribunal is judicial for this purpose is a fact-and-degree assessment based on overall impression. Relevant considerations are whether it is recognised by law, whether the issue is akin to a civil or criminal issue, whether the procedure is court-like, and whether the outcome binds or persuasively determines civil rights. No individual feature is conclusive.
3. The Police Disciplinary Board satisfied those considerations. It was established under the Police (Discipline) Regulations 1985. The disciplinary charge was closely analogous to a civil or criminal issue. The procedure included disclosure, representation, oral evidence, cross-examination, admissibility rulings, a record, adjournments and the criminal standard of proof. Its powers included dismissal, reduction in rank or pay and fines. The absence of a public hearing, sworn evidence, compulsory process or complete independence did not prevent the proceedings being judicial or quasi-judicial.
4. The immunity applied to claims under the Sex Discrimination Act 1975. The Act contained no special removal of the established common-law rule, and Parliament could be taken to have legislated against that background. The rule was also a legitimate, necessary and proportionate limitation under Article 6 ECHR, if Article 6.1 was engaged, and was justified under Article 8.2 by the need to protect the accused officer’s fair hearing and the integrity of the disciplinary process. The Equal Treatment Directive did not displace a generally applicable immunity satisfying the principles of equivalence and effectiveness.

Auld LJ and Holman J held that the complaint about the all-male composition was part of the complaint about the conduct of the hearing and could not circumvent the immunity. Neuberger LJ agreed concerning the cross-examination and support allegations, but dissented on the composition issue. He considered that a discrete challenge to the Commissioner’s anterior selection of an all-male board could proceed, limited to the selection and not the hearing’s details.

• Court of Appeal (Civil Division) dismissed the appeal, with Neuberger LJ dissenting only on whether a discrete complaint about selection of the all-male board was immune.
• Employment Appeal Tribunal upheld the Employment Tribunal’s preliminary decision that the claim was barred by absolute immunity.
• Employment Tribunal held that it had no jurisdiction to hear the discrimination complaint concerning conduct during the police disciplinary hearing.