Coghlan & Ors v Manchester Police & Anor

Non-statutory guidance may identify matters so obviously material to a statutory decision that the decision-maker must consider them. If the decision-maker departs from such guidance, clear reasons must be given. In deciding whether to lift a police officer’s suspension before disciplinary proceedings are complete, the decision-maker must consider the potential public interest in maintaining public confidence and preventing retirement from avoiding disciplinary action. Other matters, including the likely duration and cost of suspension and the progress and apparent seriousness of an investigation, may also be considered. Failure to address the relevant public-interest consideration renders the decision unlawful, although a different lawful outcome may remain open after proper consideration.

The claimants sought judicial review of the decision to lift Chief Inspector Kenneth Caldwell’s suspension before completion of an investigation arising from the collapse of a murder trial. A trial judge had made serious findings concerning the deliberate withholding of evidence and had referred the matter for possible criminal and disciplinary investigation. Greater Manchester Police later lifted the suspension after dealing with other matters, enabling Mr Caldwell to retire before the investigation was completed.

The central issues were whether Home Office guidance on suspension and retirement was statutory guidance, whether the decision-maker had lawfully considered the public interest in continuing disciplinary proceedings, and whether consultation with the Police Complaints Authority was required.

1. The claim succeeded. The court declared unlawful the decision of the Chief Constable of Greater Manchester Police on 20 October 2003 to lift Chief Inspector Caldwell’s suspension.
2. The guidance in paragraphs 3.18 and 3.20 of the Home Office guidance was not issued under section 87 of the Police Act 1996. Section 87 was confined to guidance concerning functions under regulations made under section 50(2)(e), whereas suspension and voluntary retirement were separately addressed under section 50(2)(d) and (f). The guidance was therefore non-statutory, but its legal effect was governed by ordinary administrative-law principles.
3. Applying Re Findlay [1985] AC 318 and R (Khatun) v Newham LDC [2004] EWCA Civ 55, the court held that the guidance identified matters so obviously material to the decision that they had to be considered. A decision-maker departing from the guidance had to give clear reasons.
4. The decision-maker was required to consider the positive public interest in maintaining public confidence by requiring disciplinary proceedings to continue, notwithstanding the officer’s wish to retire. The evidence contained no indication that this issue had been considered, or that any decision to depart from the guidance had been accompanied by reasons.
5. The decision-maker was nevertheless entitled to consider the likely length and cost of continued suspension, the completion of other investigations, and preliminary information about the remaining investigation. Such information was entitled to little weight where informal, unreasoned and obtained at an early stage. A lawful decision to lift the suspension remained possible after proper consideration.
6. Consultation with the Police Complaints Authority was not required at that stage. Its statutory functions arose principally after completion of the investigation and submission of a report. The claimants were awarded two-thirds of their costs, with detailed assessment of their publicly funded costs, and permission to appeal was refused.

Permission to apply for judicial review was granted by Mr Justice Owen on 20 May 2004. The claim was determined at first instance by the Administrative Court. No appeal decision is stated in the judgment.