Mullaney, R (on the application of) v The Adjudication Panel for England

For the purposes of a local authority code of conduct, “official capacity” is determined by applying the statutory and code language to the facts. The inquiry is necessarily fact-sensitive. Matters such as the use of council stationery, a personal email address or personal funding may assist, but are not determinative.

“Treating others with respect” is likewise an ordinary, context-sensitive standard. A councillor may act in pursuit of a public interest and still breach the Code by failing to give proper weight to other public interests, including the protection of individuals’ rights and proper standards in public life. On judicial review, an informed statutory tribunal’s evaluative conclusion attracts considerable respect.

Procedural fairness required the appeal tribunal to alert the councillor that it was considering removing an opportunity to avoid suspension by apologising.

The claimant, a Birmingham city councillor, challenged by judicial review an appeal tribunal’s decision under the local government standards regime. The Standards Committee had found that he acted in his official capacity, breached paragraph 2(b) of the applicable Code by failing to treat another person with respect, and should be suspended for one month unless he provided an apology. The appeal tribunal upheld the breach finding but removed the opportunity to avoid suspension by apologising.

The claimant argued that his conduct was outside his official capacity, was justified by the public interest and freedom of expression, and that the process was procedurally unfair. The central issues were the meaning and application of “official capacity” and “treating others with respect”, the relevance of Article 10, the alleged defence of necessity to trespass, and the fairness of the altered sanction.

1. Judicial review. The statutory appeal tribunal was the decision-maker chosen by Parliament. The court’s role was therefore supervisory. It could intervene for error of law, irrationality, procedural unfairness or inadequate reasons, but an informed domestic tribunal’s fact-sensitive judgment deserved considerable respect. The principles in Huang v Home Secretary, [2006] QB, and R v Monopolies Commission, ex p South Yorkshire Area Health Authority, [1993] 1 WLR 23, were applied.
2. Official capacity. The phrase in paragraph 1(1) of Schedule 1 to the Model Code of Conduct Order consists of ordinary descriptive words. It requires an informed, fact-sensitive judgment about whether the councillor was conducting the business of the office to which he was elected. The Appeals Tribunal was entitled to consider why and in what circumstances the conduct occurred. The claimant’s involvement in council enquiries, planning matters, representation of a constituent, and identification as a councillor supported the conclusion that he acted officially.
3. Respect and public interest. The Code does not create a public-interest exception to the duty to treat others with respect. A councillor may act for one aspect of the public interest while breaching the Code by ignoring other relevant interests. The high-handed and one-sided filming and publication of the video, without giving the affected person an opportunity to respond, justified the finding of breach. The approach in Shaddock v Portsmouth City Council, APE 0374, 29 May 2007, was correctly applied.
4. Article 10 and trespass. The Code was compatible in principle with Article 10(2), although political expression attracted enhanced protection and restrictions had to remain necessary to maintain proper standards in public life. The claimant’s conduct was compatible with neither the proper construction of the Code nor those qualifications. There was no general public-interest defence to trespass. Even assuming the factual basis advanced for necessity, the danger was not imminent and reasonable alternatives existed to alert the authorities without trespassing or filming on the property.
5. Procedural fairness. The Standards Committee was entitled to proceed on assumptions favourable to the claimant and did not have to hear evidence that would add nothing material. The Appeals Tribunal could alter the sanction, including by increasing its practical effect. However, because the opportunity to apologise was an important element of the original sanction, fairness required the claimant to be specifically alerted that its removal was under consideration and given an opportunity to address that issue. Its failure to do so was an error of law.
6. Outcome and relief. The challenge to the breach finding was dismissed. The sanction decision was quashed to the extent necessary, and the issue of sanction was remitted to a differently constituted Appeals Tribunal. The court could not substitute its own sanction under judicial review.

The judgment does not describe an appeal from an earlier court decision. It concerns judicial review of an appeal tribunal decision within the local government standards procedure.