Heath v Commissioner of Police for the Metropolis

Absolute immunity for judicial or quasi-judicial proceedings is not confined to defamation. It ordinarily bars collateral claims based on acts or omissions in the proceedings, including discrimination claims, because it protects the integrity of the judicial process. A body is judicial for this purpose by its overall similarity to court proceedings, considering statutory recognition, the nature of the issue, procedure and legal consequences. No single feature is decisive. A police disciplinary board met that standard. Neither domestic discrimination law, Convention access rights nor the Equal Treatment Directive displaced the immunity. On the majority view, the all-male constitution of the board could not be recast on these facts as a freestanding discrimination claim against the appointing employer.

The appellant, a civilian station reception officer, alleged sexual assaults by a police inspector. She brought a complaint against the Commissioner under the Sex Discrimination Act 1975. After a police disciplinary hearing under the Police (Discipline) Regulations 1985, she made a further complaint alleging that the disciplinary board had discriminated against her through its all-male composition, its treatment of her request for female support and its failure to control intrusive cross-examination.

The Employment Tribunal held that it had no jurisdiction because the proceedings attracted absolute judicial or quasi-judicial immunity. The Employment Appeal Tribunal upheld that decision on 12 May 2003. The appeal concerned the scope of the immunity, the judicial character of the disciplinary hearing, its compatibility with human-rights protections and the Equal Treatment Directive, and whether the immunity covered the alleged discriminatory conduct.

Disposition. The Court of Appeal dismissed the appeal. Auld LJ gave the leading judgment and Holman J agreed. Neuberger LJ disagreed only in relation to the complaint about the all-male composition of the board, but agreed that the appeal should be dismissed overall.

1. Scope of immunity. The common-law immunity protects the integrity of the judicial process. It is not confined to defamation and generally applies to claims based on anything said or done in judicial or quasi-judicial proceedings, whatever the form of action. The recognised exceptions include malicious prosecution, perjury and contempt. The issue was therefore whether the discrimination claim was excluded from an existing immunity, not whether immunity had to be extended to a new form of claim. The reasoning was consistent with Marrinan v Vibart [1963] 1 QB 502, Darker v Chief Constable of the West Midlands [2001] 1 AC 435 and Arthur J S Hall v Simons [2002] 1 AC 615.
2. Judicial character. Applying the flexible, fact-and-degree approach in Trapp v Mackie [1979] 1 WLR 377, the relevant considerations were statutory recognition, an issue akin to civil or criminal proceedings, court-like procedure and binding consequences for civil rights. The Police Disciplinary Board satisfied the overall test. Its statutory procedure provided disclosure, representation, oral evidence, cross-examination, admissibility rulings, records, adjournments and the criminal burden and standard of proof. Its powers included findings of guilt and penalties such as dismissal, reduction in rank or pay and fines. Private hearings, the absence of oaths and the lack of compulsion of witnesses did not alter the overall character.
3. Domestic law and Convention rights. The silence of the Sex Discrimination Act 1975 did not remove a longstanding common-law immunity. Even if the immunity operated as a procedural restriction engaging Article 6, it pursued a legitimate aim and was necessary and proportionate to protect the administration of justice. If Article 8 was engaged, the same conclusion followed from the need to protect the inspector’s fair hearing and the rights of others.
4. European Union law. The Equal Treatment Directive required effective judicial protection, but did not disapply fundamental procedural rules of general application. The principles of equivalence and effectiveness did not require the core judicial immunity to yield to a discrimination claim.
5. Composition of the board. The majority treated the all-male composition as part of the complaint about the conduct and context of the hearing, not a separate freestanding act capable of circumventing immunity through vicarious liability. Any challenge to the constitution should have been raised through the disciplinary or appellate process. Costs followed the event.

1. Court of Appeal (Civil Division) — [2004] EWCA Civ 943. Appeal dismissed and the Employment Appeal Tribunal’s decision upheld.
2. Employment Appeal Tribunal — On 12 May 2003, upheld the Employment Tribunal’s preliminary decision that the claim was barred by absolute immunity.
3. Employment Tribunal — On 12 March 2002, held that it had no jurisdiction to hear the complaint because it concerned conduct in a police disciplinary hearing.