Gill, R (on the application of) v Ethical Standards Officer

On a statutory appeal concerning disciplinary sanctions, the High Court may substitute an appropriate sanction where the tribunal’s decision is wrong and the statutory appeal provision does not expressly define the court’s powers. The court should avoid remittal where substitution is necessary to determine the matter efficiently. In fixing the sanction, the court may take account of the seriousness of the conduct, the appellant’s good faith, acceptance of error and the practical effect of the original decision. A sanction may be backdated to reflect a period during which the appellant was effectively out of office.

The claimant appealed to the Administrative Court against a disciplinary decision concerning her conduct as a councillor. The Ethical Standards Officer did not appear and withdrew opposition to the appeal. The court accepted that the tribunal’s findings did not justify the severity of the penalty imposed and considered whether it could substitute a different sanction under section 79(15) of the relevant Act. The central issues were the court’s remedial power and the appropriate sanction.

1. Power to substitute. The court accepted that the tribunal was wrong and that the available appellate powers included substitution, although section 79(15) merely provided for an appeal to the High Court without specifying the powers in detail. Remittal was unnecessary where the court could determine the proper outcome itself. The court relied on the approach in Murphy, where a suspension had been substituted.
2. Sanction. The conduct was sufficiently serious to warrant a sanction, but it was no more serious than the conduct in Murphy. The claimant had acted in good faith, recognised her error and had already been effectively out of action for about seven months. A three-month suspension was therefore appropriate and was backdated to the sixth week of December, the date of the hearing.
3. Costs. The court made an order for costs in principle, but allowed the defendant 14 days to make written representations on liability or amount, with seven days thereafter for the claimant’s observations. The issue was to be determined on the papers.

The judgment states that the claimant was the appellant, but does not identify the lower tribunal’s decision by citation. The High Court substituted a three-month backdated suspension for the more severe penalty imposed below.