Heesom v Public Services Ombudsman for Wales

On an appeal from a case tribunal of the Adjudication Panel for Wales, the applicable standard of proof is the civil standard. The appellate court must decide whether the tribunal was wrong, while giving appropriate deference to its findings of fact, evaluative judgments and specialist expertise.

Political expression receives enhanced protection under article 10. That protection extends broadly to criticism of public administration, but it does not protect deliberately false statements, threats, bullying or conduct intended to undermine public servants. Restrictions may be justified to protect both officers’ rights and interests and the public interest in effective administration.

Repeated and serious misconduct towards council officers may justify disqualification. However, the sanction must be the minimum proportionate measure.

The appellant, a long-serving Welsh county councillor, appealed under section 79(15) of the Local Government Act 2000 against findings and sanction imposed by a case tribunal of the Adjudication Panel for Wales.

The tribunal found 14 breaches of the applicable members’ codes of conduct, involving disrespectful, bullying and threatening conduct towards council officers, interference with housing allocation and appointment processes, and conduct bringing the office or council into disrepute. It disqualified the appellant for two years and six months.

The appeal raised the standard of proof, the relationship between political expression and article 10, the proper appellate approach, and the proportionality of the sanction.

1. Appeal and standard of proof. The appeal was governed by CPR rule 52.11(3)(a), under which the tribunal’s decision could be overturned only if wrong. The proceedings were civil and disciplinary. The civil standard, namely the balance of probabilities, applied. The seriousness of the possible consequences did not justify importing the criminal standard.
2. Appellate approach. The court could review law and fact, but had to give due deference to the specialist tribunal, particularly on credibility, primary facts, inferences and evaluative judgments. The greater the tribunal’s evidential and specialist advantage, the more reluctant the appellate court should be to interfere.
3. Article 10 and political expression. Political expression includes criticism of public administration and the performance of public duties. Its protection is enhanced at every level of politics, including local government. The protection extends to robust, provocative and exaggerated expression, subject to the requirements of article 10(2). Civil servants are entitled to criticism, but the acceptable limits are narrower than for elected politicians because effective administration depends on public confidence and a mutual bond of trust between councillors and officers.
4. Bullying and threats. Bullying requires an intention to undermine the person concerned and an adverse effect such as intimidation, upset or detriment to confidence, capability or health. A finding of breach may be justified where a councillor deliberately threatens, intimidates or personally undermines an officer, particularly where the conduct interferes with operational functions or established procedures.
5. Application to the incidents. The tribunal’s findings were upheld except for the two breaches arising from the meeting with Ms Evans and the breach concerning the statement directed at Mr Longland. The tribunal had wrongly found bullying without finding an intention to intimidate or undermine Ms Evans. It had also wrongly treated the appointment-process conduct as outside political expression, although the findings of breach concerning Ms Carney remained justified. The finding concerning Mr Longland was incompatible with article 10 in the circumstances.
6. Sanction. The objectives of sanctions were maintaining standards in public life, good administration and public confidence in local democracy. Re-election was relevant but not determinative. The tribunal was entitled to conclude that the repeated and serious misconduct justified disqualification, and that suspension would be inadequate. However, two years and six months was manifestly excessive. The proper sanction, after quashing three breaches, was disqualification for 18 months.

Adjudication Panel for Wales case tribunal: found 14 breaches of the applicable codes of conduct and imposed disqualification for two years and six months, published in 2013.

High Court (Administrative Court): appeal allowed in part. Three breach findings were quashed. The remaining findings were upheld. The disqualification was quashed and replaced by disqualification for 18 months from 19 July 2013.