Ordinary rule of expenses doesn’t apply

Sheriff Mackay’s comments mirror, in many respects, those expressed by Sheriff Principal Cox in Nicoll when he stated: “The chief constable cannot be said to be an independent and impartial public tribunal in these matters… He is the obvious official to take the initial decision and may be required to do so, certainly in the case of the revocation of a certificate, as a matter of urgency and on some occasions before he has been able to make as full an inquiry as he would have wished. He is also the obvious person to be given the task of issuing certificates to those he is satisfied meet the statutory criterion. It is obvious that he will carry out his duties as fairly and impartially as he can. But he is not independent of those who will often be supplying the information which he has to consider, e.g. members of his force and known informers. His decision is taken without hearing evidence in public. It is therefore necessary that an appeal on the merits should be conducted by a judge. If the chief constable, as I believe to be the case, does not himself constitute an independent and impartial tribunal to give weight to his decision just because it was he who made it would be giving weight to a tribunal to which it was not entitled and to that extent the appeal decision itself would be tainted. However, if weight is given by police witnesses to a particular piece of evidence for or against an applicant and is based upon police operational experience the evidence may carry similar weight with the sheriff. That is quite different from giving weight to the police decision as such. The correct approach in my view for a sheriff to adopt is to hear all the evidence which is led before him and to reach his own decision as to whether the certificate should be revoked. It is the sheriff who has to be satisfied… It is not enough for the sheriff to be satisfied that the chief constable was entitled to be satisfied…”

In Andrew Denton v Chief Constable, Dumfries & Galloway Constabulary, Sheriff Principal McInnes (at Dumfries, 7 February 2001, B61 & B62/00) in refusing the chief constable’s appeal noted how the sheriff at first instance had adopted the reasoning of Sheriff Principal Cox in Nicoll. It was argued unsuccessfully that the proper approach was to regard the appeal as one against the decision of the chief officer of police, and it was the merits of that decision that the sheriff required to consider on appeal. Sheriff Principal McInnes commented that the sheriff below appeared to have adopted the approach in Section 44(2) to consider the appeal “on the merits (and not by way of review)”, but considered that the sheriff below paid more attention to Nicoll than was justified or necessary. In his view, “the phrase in brackets has been added to make it clear that the court is not simply reviewing the decision of the chief constable as was formerly the practice. These merits must be determined in the light of such evidence and other material as are put before the court on appeal, whether or not that evidence or other material was available to the chief constable when he took his decision. The sheriff is required to come to a conclusion as to whether or not, in a case such as this, the certificates concerned should be revoked and allow or refuse the appeal accordingly.”

In Harry Evans v Chief Constable of Central Scotland Police, Sheriff Principal Nicholson (at Stirling, 9 May 2001, B434/00) in refusing the chief constable’s appeal, noted how the sheriff at first instance following the views expressed by Sheriff Principal Cox in Nicoll had dealt with the issues de novo and on their merits by reference to the evidence led before him, and not simply to consider whether the decision taken by the chief constable had been the one which a reasonable chief constable might have taken. That approach was not challenged in the course of the proceedings before the sheriff and it was not challenged on appeal. Given the terms of Section 44(2) and (3), Sheriff Principal Nicholson agreed that that was the correct approach for the sheriff to take, and accordingly he needed to say no more on that point.

Sheriff Principal Nicholson’s appeal judgment in Evans is however of interest in another important respect. He notes how paragraph 4 of Part III to Schedule 5 to the Firearms Act 1968, as amended by the 1997 Act, provides that the decision of the sheriff on appeal may be appealed only on a point of law. Part II of Schedule 5 contains somewhat similar provision in respect of appeals to the Crown Court in England and Wales but does not contain any provision to the effect that any further appeal is to be on a point of law only. In Evans, counsel for the chief constable invited the Sheriff Principal to give a liberal interpretation to the restriction and, in effect, to review the sheriff’s decision on its merits. Sheriff Principal Nicholson did not consider that it was open to him to take such a course. In his opinion, he would have been entitled, within the terms of the statutory restriction, to review the sheriff’s decision if he had been satisfied (which he was not) that he had misinterpreted the provision contained in Section 30C of the Act (revocation of shotgun certificate), and had therefore approached his consideration of the appeal by applying the wrong test. He did not consider, however, that he was entitled to carry out a review of the sheriff’s decision, with the possibility of substituting a decision of his own, when he could discern no error of law in the sheriff’s approach to the issues before him. In light of the differing provision for England and Wales in Part II of Schedule 5, the Sheriff Principal was disposed to conclude that such appeals proceed on a somewhat wider basis than that permitted in Scotland.

Expenses

As he is acting judicially, the sheriff may award expenses against any party to the appeal. In Nicoll, Sheriff McInnes’ judgment records there was a debate as to whether expenses should follow success or whether there should be a finding of no expenses due to or by either party. Although not so recorded in his judgment, in many ways it was a return to an argument presented – albeit unsuccessfully then – to Sheriff McInnes at Perth in Jackson v Chief Constable, Tayside Police 1993 SCLR 160 where the chief constable’s solicitor argued that the appeal should be refused, with no expenses being awarded even if it were allowed. It was argued that the chief constable should not have to meet the expenses of the applicant, where his role was to oppose the appeal in what was believed to be the public interest. In the event, the appeal in Jackson was refused, with no award of expenses in favour of either party.

While Sheriff McInnes held that Nicoll was not the case in which to determine a general rule, he did record that the chief constable in a matter of this kind is exercising a statutory function on behalf of the public as a whole. If that function is exercised in a manner which is improper or plainly unreasonable, Sheriff McInnes stated he would be of the view that an award of expenses against the chief constable would be appropriate. Similarly, if an appeal was without merit and had no real prospect of success, he did not see why a chief constable should not be entitled to recover the expenses to which the public would otherwise be put. In the particular circumstances of Nicoll, Sheriff McInnes felt it would be inappropriate to say that expenses must follow success.

In his judgment in Lambie, Sheriff McInnes again considered the question of expenses in a firearms appeal. There, he awarded expenses following success to the appellant. In argument, the solicitor to the chief constable advised that in firearms appeals no local court had so far awarded expenses to either party, while courts elsewhere had followed the usual rule that expense should follow success. Sheriff McInnes’ attention was drawn to the opinion of May LJ in Chief Constable of Derbyshire v Goodman and Newton, unreported 2 April 1998, where it had been stated that where a police authority was performing a statutory licensing function, generally speaking a cost order adverse to such an authority would not be made unless there was some good reason for doing so, which was more than the fact that the other party to the contest had succeeded. Such an order might be made in circumstances such as where the authority had not acted in good faith or had run a case which was without foundation or born of malice or some improper motive.

Sheriff McInnes’ attention seems not to have been drawn to a later unreported judgment of 9 November 1998 in R v Merthyr Tydfil Crown Court ex parte The Chief Constable, Dyfed Powys Police, where Lightman J (having referred to Chief Constable of Derbyshire) stated that where the police have a public duty to afford protection to the public, such as in firearms licensing, and if they have relevant information which goes to the fitness of an applicant, then it is in the public interest, and in pursuance of their public duty, that they make their position clear. So long as they act responsibly in accordance with that duty, then no adverse order for costs can be made against them. It is not a simple case of costs following the event: it must be clear that the police have acted otherwise than in good faith or have acted utterly unreasonably before they are exposed to an order for costs.

Jamieson, in “Summary Applications” (at para 25-04) cites Chief Constable of Derbyshire, but not ex parte, Chief Constable, Dyfed Powys Police.

In Stewart, Sheriff Mackay found no expenses due to or by either party stating: “As to expenses I agree with the respondent’s solicitor that where the respondent is discharging a public duty such as this and where it is legitimate that he should ensure there is a full airing of all evidence in public then it is not appropriate to penalise him in expenses. This is not a situation where the ordinary rule of expenses following success should be applied. If some serious criticism of the respondent’s approach to the matter was to be made then the situation regarding expenses might well be different but that is plainly not the case here. Accordingly in my view the appropriate award, which I have made, is to find no expenses due to or by either party.” Then, in Paterson, Sheriff Mackay again found no expenses due to or by either party stating: “So far as expenses are concerned, since the respondent was clearly discharging a public function in circumstances where he had proper grounds for his decision at the time, it would not be appropriate to award expenses against him even though the appeal has succeeded.”

In Denton, Sheriff Principal McInnes stated: “Appeals in matters of this kind now require the judicial determination of the merits of the appeal. The court may hear evidence. Such appeals are not now dealt with as an administrative matter. In these circumstances the court may make an award of expenses in favour of the successful party.” In Evans, Sheriff Principal Nicholson stated: “I would not disagree with the course adopted by the sheriff at first instance”. There, Sheriff Pyle had stated: “While I am not greatly influenced by what Sheriff Principal Cox [in Nicoll] stated was a convention (or at least so he was advised), I do recognise that the respondent’s actings were reasonable ones in the public interest. I have reached the view that it is appropriate to make a finding of no expenses due to or by either party”.

G Ian McPherson is Head of Legal Services at Strathclyde Police