Neutral Citation Number: [2008] EWHC 1072 (QB)
Case No: 6MA 90613
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 15/05/2008
Before : 

MR JUSTICE TUGENDHAT
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Between :
	(1)	PAUL CARTER
(2)	PAUL DUGDALE
(3)	IAIN GOULDING
(4)	STEPHEN HODGSON
(5)	STUART JARDINE
(6)	JOHN ROBSON
(7)	ROBERT STAFFORD
(8)	DUNCAN WATSON
(9)	JOHN WHITTLE	Claimant	
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	THE CHIEF CONSTABLE OF THE CUMBRIA POLICE	Defendant	
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Charles Apthorp (instructed by Andrew Dobson) for the Defendant
Gavin Millar QC (instructed by Russell Jones & Walker) for the Claimants

Hearing dates: 8 May 2008
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Judgment

Mr Justice Tugendhat  : 

1.	The nine claimants in these proceedings were in 2000 (and all except the fifth, seventh and ninth claimants still are) serving police officers of the Cumbria Constabulary at Headquarters CID, either in the Special Branch (“SB”) or Force Crime Squad (“FCS”).  
2.	The claim they bring against their Chief Constable, the Defendant, arises out of the abandonment or dismissal in April and June 2003 of various charges made against the claimants in proceedings pursuant to the Police (Conduct) Regulations 1999 SI 1999 No 730 (“the PCR”).  It is alleged that there was misfeasance in public office by named officers for whose conduct the Defendant is alleged to be vicariously liable.  The named officers are Assistant Chief Constable Twigg, Chief Inspector Harrison and Assistant Chief Constable Crompton.
3.	In other words, the claimants’ case in the action is that the misconduct proceedings were unlawfully brought. And in the application before me the Defendant’s case is that these misfeasance proceedings should be struck out and disposed of summarily.
4.	The first basis upon which the claim is put is that it was unlawful to continue the investigation without evidence.  The unlawful acts alleged are the service under Reg 9 of notices of investigation without evidence, and the continuance of the Operation Pool investigation past the point where the investigating team had tried and failed to find any evidence of the alleged private use of police vehicles.  
5.	The second basis upon which the claim in misfeasance in public office is put is that it was unlawful to refer of the cases to a hearing pursuant to Reg 11 without there being evidence of misuse of police vehicles.  
6.	As to the allegations in relation to the expenses, the alleged misfeasance is the decision to refer those allegations to a hearing in circumstances which are alleged to disclose an inconsistency of treatment, in that numerous other officers had engaged in the same practice as that which is the subject of the charges.
OPERATION POOL
7.	These proceedings arise out of an investigation internal to Cumbria Constabulary known as Operation Pool.  It related to the use of unmarked police vehicles by the claimants to travel to and from their homes.  Operation Pool commenced in June 2000.  On 17 October 2000 Assistant Chief Constable Twigg signed a total of 21 notices of investigation under the PCR Reg 9 against all the claimants except the sixth claimant, relating to alleged private use of police vehicles.  On 8 May 2001 a similar notice was served on the sixth claimant.  Also in May 2001 further notices under Reg 9 relating to expense claims were served on the third and fifth claimants. 
8.	Initially consideration was given to a possible prosecution of the claimants. But on 5 September 2001 the Crown Prosecution Service (“CPS”) advised that criminal proceedings should not be instituted either in relation to alleged misuse of police vehicles or the expense claims.  
9.	In April 2001 ACC Twigg had been promoted to Deputy Chief Constable and she was replaced as Assistant Chief Constable by ACC Crompton.  Until 20 September 2001 DCC Twigg had been the supervising officer and on that date she was replaced in that capacity by ACC Crompton.  
10.	The claimants allege that between 20 September and 21 November 2001 a decision was taken by ACC Crompton that the cases against the claimants that had been the subject of the various Reg 9 notices be referred to a hearing before a misconduct panel pursuant to Reg 11.  
11.	A hearing commenced on 23 April 2003.  By that time the claimants had been served with a total of 104 misconduct charges, of which 98 fell into two groups.  The first group, consisting of 65 charges, related to private use of police vehicles.  Each claimant was subject to one or more of these charges.  An example of a charge (all of which are in substantially similar form) reads as follows (this is a charge against the third claimant):
“Being a member of the Cumbria Constabulary, you failed, without good and sufficient cause, to obey a lawful written order, namely paragraph 1.1(e) of Force Order 21/99, in that on 8th February 2000 you used a vehicle owned by the Cumbria Constabulary, namely [the make and registration number are given] for your own private use and not whilst you were conducting official force business”.
12.	Force Order 21/99 provided, so far as material, that :
“… force policy states that all police owned vehicles are only to be used whilst conducting official force business. On no account must any force vehicle be used privately …”
13.	The second group, consisting of 33 charges, related to expenses.  There were 22 charges against the third claimant and eleven against the fifth claimant.  An example of a charge (all of which are in substantially similar form) reads as follows (this is a charge against the third claimant):
“Being a member of the Cumbria Constabulary, you failed, without good and sufficient cause, to obey a lawful written order, namely paragraph 6 of the Notes on Completion of Form T9, in that on 25th April 2000 you submitted a claim for mileage allowance in respect of a journey of 150 miles from Barrow in Furness to Preston and from Preston to Barrow in Furness on 15th February 2000 when this was a journey out of the County of Cumbria”.
14.	In addition there were two charges against the fifth claimant arising out of his conduct during the investigation and four charges against the third claimant arising out of the submission of a particular expenses claim form.  
15.	On 24 April 2003 the presenting side withdrew the 33 charges against the third and fifth claimant in relation to expenses.  On 29 May 2003, at the close of the case against the claimants, submissions were made to the panel.  On 3 June 2003 the panel dismissed all of the remaining 51 charges.  
16.	On 3 June 2003 ACC Smith explained the course that the Panel had adopted in relation to the charges relevant to these proceedings in the following terms:
“[The Home Office Guidance on PCR] does not say that we are bound by criminal case law. It does not mention Galbraith, nor indeed half-time submissions; it does not even refer to the notional position of the close of the presenting side’s case.
We have asked the question: do we find, at any stage, that there is an evidential basis on which the hearing should or should not continue in relation to an issue of conduct.  Let us be very clear what happened at the end of last week.  We heard and read a submission of no case to answer on behalf of all the officers, and we reflected the agreement of both sides by agreeing to apply the Galbraith principles.  We chose to do so in order to facilitate our responsibilities to conduct a hearing in accordance with the principles of natural justice and fairness.  We chose to do so, but we are not bound to do so…
The hearing will end with this judgment, with no further action in connection with any of the allegations against any of the officers…
In relation to vehicle usage, it has been suggested that our starting point is to examine each occasion of use; we disagree.  Whether a camera or sighting proves or suggests use of a police vehicle is secondary.  We know police officers use police vehicles to and from home on occasions. Where is the evidence that officers used vehicles for private use?  For this allegation to be backed by any evidence, however tenuous, it must be shown that there was an instruction which the officers were disobeying.  Such instructions as there were related to avoiding private use and only for operational purposes; it does not explain the difference between private and justified, nor between operational and unjustified.  What was the approved level of authorisation?  What was the manner of authorisation, was it written, was it oral?  What could have substantiated these allegations – someone appearing before us to say “these officers knew because I told them” or “because of this specific instruction”?  No one has … The failure of the force to bring absolute clarity to force orders and instructions in the face of concerns which were the cornerstone of Operation Pool is a matter which fatally undermines all allegations of misuse…
To some extent it must be said that officers have contributed, either by omission or actions, to the predicament they have now found themselves in.
In relation to vehicle usage and documentation as a general point, the Panel are satisfied through the evidence presented that at the very least there were significant sensitivities within Cumbria Constabulary regarding the private use of police vehicles.  All of the officers should have been acutely aware of this, especially in respect of their vulnerability to accusations as a result of the demanding and secretive nature of some of their duties.  It would not have been unreasonable, therefore, in the opinion of the Panel, for all officers always to record specific reasons as to the exact purpose to which police-owned or hired vehicles were being put when officers themselves are otherwise off duty.
There may have been direction by supervisors for officers to use vehicles on occasions for strategic deployment.  Even assuming, in the absence of evidence to the contrary, that the use of vehicles was always genuine, the officer’s failure to maintain records in pocket notebooks, or elsewhere, has contributed to their predicaments.
Notwithstanding the above, the duty and responsibility of supervisory officers to document their decisions in respect of use of vehicles cannot be overstated.  In this case [the first and fifth claimants], as principal officers responsible for the directing of police operation on the part of crime squad and Special Branch, could have and should have kept specific documentations for the usage on their own parts and that  of the officers for whom they had a responsibility.

[The first claimant] may now produce Operation Albert as a source of defence relating to allegations against him for private use of police vehicles. Policy log entries commencing 11 July 2000 in respect of this operation clearly indicate the decision-making process linked to possible necessity for the use of a vehicle off duty by [the first claimant] and his team, yet it was not produced until the time of the hearing. Maybe if [the first claimant] disclosed this earlier he would not have been standing accused today.
General recording practices have been poor.  Standardised use of pocket notebook is an issue, not just for the individuals accused in this case but to the force as a whole.  It must now be clear that if officers did legitimately use police vehicles for police purposes, the simple recording of usage in pocket notebooks could have gone a long way to rebutting suggestions that vehicles were being improperly used…
The Panel note the generally high degree of co-operation [the third claimant] gave to Operation Pool during the course of his interviews.  Pressure of work was identified as a reason for administrative failures of this officer, which the Panel acknowledge is a genuine possibility in the case of [the third claimant].  The officer may be regarded as an outstanding hardworking and committed DCI but attention to detail around administrative responsibilities should have been more strictly complied with.  
Notwithstanding some of the fundamental errors on the parts of Operation Pool it has become clear to the Panel that, save for a couple of exceptions, there has been an unhelpful emphasis on the right to silence on this case.  Whilst on legal advice and unquestionably an officer’s right failed to provide explanations where they existed has prolonged the overall process.
As regards the process:  it may not have escaped notice that the Panel have felt some restriction throughout the hearing, and I feel it worth mentioning here in terms of the conduct of proceedings.  This conduct hearing is actually meant to be a collaborative exercise, but this whole case has been adversarial throughout.  The whistle-blower had a grievance against those he accused; the assistant chief constable was perceived to be in conflict with the superintendent; the SIO was seen as in opposition to the officers, who, in turn, had federation representatives and legal advisors who added to the tensions.
Operation Pool has created massive disruption and splitting into camps.  The proportionality of the investigation has been questionable; the covert surveillance was intrusive and divisive.  The officers perpetuated the adversarial element in some cases, with a “you prove it” mentality and the combative element has continued through disclosure to the hearing itself - a one-week hearing crammed into five weeks.
In week one I as the presiding officer said simply and naively, if vehicle usage was admitted but authorisation the issue – if only that could have been agreed then.  Instead we have had hours of debates about allegations which had already been dropped, detailed arguments that officers did not use a vehicle on a particular day, but that it would have been okay if they had; controversy about whether it was unfair to have been granted unlimited disclosure; and disagreement with the Panel that they did not require specific detail.  Was there a defence fear that we would find unfairly in favour of an officer?...”
17.	On 22 May 2003 the Panel had passed a written memorandum to the parties’ representatives which stated, amongst other things:
“… although we have seen copies of memos which prohibit ‘private use’ we have to have proof of whether the officers were, or were considered themselves to be on police business… The panel is interested in why the police vehicle was being used, apparently to drive to work. As experienced police officers the panel are not necessarily disturbed by police vehicles being used to go home or return to work – but want to know why. There is a danger that the fundamental issue could get lost in the detail of whether a police car arrived once, twice or more in a week …”
18.	As is apparent from his remarks, ACC Smith was not attempting to deliver a judgment or ruling such as would be delivered by a judge. The remarks are addressed to the parties and their representatives, who had been present for the six weeks that the proceedings had taken up. The remarks assume a knowledge of the case, and do not set out all the material that would be necessary for a person who had not been present fully to understand. This is not a criticism of the panel. It is a direction to myself and to the reader of this judgment as to how the remarks of the panel are to be approached.
19.	Mr Apthorp reminded me that there are features of the proceedings which distinguish them from a criminal prosecution. Some of these are referred to in the Panel’s remarks. Because the proceedings were not a prosecution, no action lies for malicious prosecution. This explains the claimants attempt to seek a remedy in damages by way of a claim in misfeasance in public office. He submitted that no such claim is maintainable in this case, and he cited Gregory v Portsmouth City Council [2000] 1 AC 419. 
20.	Mr Millar submitted that a claim in misfeasance is in principle available in relation to the bringing of groundless disciplinary proceedings. 
21.	However the main argument of Mr Apthorp was directed to what he submits are fatal flaws in the claimants’ case, assuming that a claim might in principle be available to them for misfeasance in public office. In the light of my conclusions on that argument the issue of whether misfeasance proceedings could be brought at all does not arise. 
THE COURSE OF THE PROCEEDINGS
22.	The Claim Form was issued on 31 May 2006.  At that time the claim was for damages, not only for the tort of misfeasance in public office, but also for the tort of negligence.  Particulars of Claim numbering 92 paragraphs were served on 28 September 2006.  A Defence was served on 21 March 2007.  
23.	An application by the Defendant to strike out the claim was issued in July 2007 and came before me sitting in Chester in October 2007.  Having heard some submissions, but without making a judgment, I ordered that the Defendant’s application be adjourned to give the claimants an opportunity to reconsider their pleading.  By the time the matter came before me, the claimants had abandoned the claim in negligence.  
24.	On 5 December 2007 an amended Particulars of Claim was served, settled, on this occasion by leading counsel.  It was an entirely new document served in substitution for the original Particulars of Claim.  On 15 January 2008 an amended Defence was served.  On 15 April 2008 the Defendant gave notice to restore the hearing of the application to strike out the claim.  This has come before me sitting in London.  
MISFEASANCE IN PUBLIC OFFICE
25.	For the purposes of the application before me there is no dispute as to the relevant law. It can be taken from the speech of Lord Steyn in Three Rivers District Council and Others v Governor and Company of the Bank of England  (No 3) [2003] 2 AC 1 at pp. 189-190.  Lord Steyn (with whom Lords Hope, Hobhouse and Millett agreed, see respectively pp. 197, 228 and 235) summarised the distinctive “ingredients of the tort” at p.191-196. The only ingredient in respect of which issues arise before me is the third, namely malice, and the allegation of malice is of the untargeted form. 
26.	The ingredients of the tort are as follows:
a)	The defendant must be a public officer;
b)	The conduct complained of, that is an act and/or an omission (in the sense of a decision not to act) must be in the exercise of public functions;
c)	Malice: The defendant’s state of mind must be one of two types, namely either:
i)	Targeted malice” i.e. the conduct is “specifically intended to injure a person or persons.  This type of case involves bad faith in the sense of the exercise of a public power for an improper or ulterior motive…”.
ii)	“untargeted malice”: i.e. the public officer acts knowing that he has no power to do the act complained of or with reckless indifference as to the lack of such power and that the act will probably injure the claimant.  “… it involves bad faith inasmuch as the public officer does not have an honest belief that his act is lawful…”
Thus the unifying element is “….conduct amounting to an abuse of power accompanies by subjective bad faith…”
(a)	
d)	The claimant must have a “sufficient interest to found a legal standing to sue” but there is no requirement of sufficient proximity between the claimant and the defendant [p. 193];
e)	Causation of damages/loss [p.194]
f)	Remoteness of damage: Where the malice is of the second type, see (c)(ii) above – The defendant must know that his/her conduct “would probably injure the plaintiff or person of a class of which the plaintiff was a member.”  
27.	In relation to untargeted malice, “lack of power” is used in the sense of public law unlawfulness. Lord Hobhouse said at p.230:
“This may arise from a  straightforward breach of the relevant statutory provisions or from acting in excess of the powers granted or for an improper purpose… the test is the same as or similar to that used in judicial review.
28.	As to the reckless form of untargeted malice, although damage is not an issue before me, the nature of the state of mind required can be taken from what Lord Hope said in relation to damage at p.252 [62]:
“Recklessness is demonstrated where it is shown that the public officer was aware of a serious risk of loss due to an act or omission on his part which was unlawful but chose deliberately to disregard that risk.  That is sufficient to establish that he did not have an honest belief in the lawfulness of the conduct which, to his knowledge gave rise to that risk.  Recklessness about the consequences, in the sense of not caring whether the consequences happen or not, will satisfy the test.  In this context there is no additional element of dishonesty or bad faith that requires to be satisfied….”
29.	Mr Apthorp referred to a number of cases in which these principles have been applied and the necessity of proving subjective recklessness has been emphasised: Stockwell v Society of Lloyd’s [2007] EWCA Civ 930 and London Borough of Southwark v Dennett [2007] EWCA Civ 1091. 
30.	In addition Mr Apthorp cites two passages from Thacker v. Crown Prosecution Service , The Times, 29 December 1997; Court of Appeal (Civil Division) Transcript No. 2149 of 1997, C.A. Judge LJ said:
“Prosecutors or employees of the Crown Prosecution Service are not immune from actions for malicious prosecution. Nevertheless it is essential that before such actions are … allowed to be pursued through the courts, anxious scrutiny should be made of them to ensure that the immunity against actions for negligence … is not circumvented by the pleading device of converting what is in reality no more than allegations of negligence into claims for malicious prosecution”.
31.	 Mr Apthorp also referred to the judgment of Chadwick LJ in that case, citing Glinksi v McIver [1962] AC 736 , in which Lord Radcliffe had said at p755:
“In my opinion it [the issue as to the defendant’s belief or lack of belief] does not arise unless there is some contested evidence bearing directly upon the defendant’s belief at the relevant date, apart from anything that could merely be inferred as to his belief from the strength or weakness of the case before him”.
32.	The tort of malicious prosecution differs from that of misfeasance in public office, but these citations are nevertheless apt in this case.
THE PCR
33.	There are a number of provisions of the PCR which are relevant to the decisions which are impugned by the claimants. It is alleged that the decisions made under Regulations 9 and 11 were made unlawfully. But to understand the case it is necessary to set out the following provisions of the PCR:
“7. Investigation procedure (1) … where a report, complaint or allegation is received by the chief officer which indicates that the conduct of a member of a police force did not meet the appropriate standard [which is defined as the standard set out in the Code of Conduct], the case may be referred by him to [a supervising officer] to supervise the investigation of the case…
8. Appointment of investigating officer (1) The supervising officer may appoint an investigating officer to investigate the case…
9 Notice of investigation The investigating officer shall as soon as is practicable (without prejudicing his or any other investigation of the matter) cause the member concerned to be given written notice – (a) that there is to be an investigation into the case; (b) of the nature of the report, complaint or allegation; (c) informing him that he is not obliged to say anything concerning the matter, but that he may, if he so desires, make a written or oral statement concerning the matter to the investigating officer … (d) informing him that if he makes such a statement it may be used in any subsequent proceedings under these Regulations…
10 Investigating officer’s report (1) At the end of the investigation the investigating officer shall submit a written report on the case to the supervising officer …
11 Procedure on receipt of investigating officer’s report  (1) … on receipt of the investigating officer’s report the supervising officer may refer the case to a hearing…
12 Withdrawal of case  (1) At any time before the beginning of the hearing the supervising officer may direct that the case be withdrawn …
23 Procedure at the hearing  (1) Subject to the provisions of these Regulations, the officers conducting the hearing shall determine their own procedure. 
(2) The officers conducting the hearing shall review the facts of the case and decide whether or not the conduct of the member concerned met the appropriate standard and, if it did not, whether in all the circumstances it would be reasonable to impose any, and if so, which, sanction.
(3) The officers conducting the hearing shall not find that the conduct of the member concerned failed to meet the appropriate standard unless the conduct is …. (b) proved by the person presenting the case on the balance of probabilities to have failed to meet that standard
SCHEDULE 1 CODE OF CONDUCT
…
6 Lawful orders. The police service is a disciplined body. Unless there is good and sufficient cause to do otherwise, officers must obey all lawful orders …”
THE JURISDICTION TO STRIKE OUT OR GIVE SUMMARY JUDGMENT
34.	The application is made upon two bases, namely under CPR 3.4(2)(a) and CPR 24.2(a)(i). For the purposes of the former rule the court is obliged to treat the facts averred in the claim as true. However, so far as the latter rule is concerned, the question is whether upon the material before the court the claimant has any real prospect of succeeding in his claim: Marsh v Chief Constable of Lancashire [2003] EWCA Civ 284 para 2.
THE CLAIM
35.	The Amended Particulars of Claim (“APOC”), at para 10, cite Force Order 21/99 issued on 24 May 1999 (set out above).  It is then alleged that there were numerous occasions when SB and FCS officers were authorised to, and did, take unmarked police vehicles to their home addresses for operational reasons.  It is alleged that Superintendent Park and ACC Twigg had both authorised this, for example in connection with operations and investigations where immediate deployment of the vehicles might be required.  But no authorisation is pleaded that relates to any of the specific occasions referred to in any of the charges.
36.	It is alleged that from January 2001 Detective Inspector Harrison was the Investigating Officer in the investigation.  It is also alleged that he had prior to that date managed the investigation on behalf of another officer who was the Investigating Officer originally.  The allegations of knowledge which are material to the claim are pleaded in the amended Particulars of Claim as follows.
37.	At paragraph 16, it is alleged that at the outset of their involvement in the investigation, and as a result of their previous involvement in SB and FCS operations, both  ACC Twigg and DCI Harrison were well aware that the operational use/strategic deployment of police vehicles might involve SB/FCS driving them outside of normal working hours. 
38.	In para 19 it is alleged that during the covert phase of Operation Pool, during which six of the claimants were subject to surveillance, no steps were taken to establish that the use by those officers of particular police vehicles on particular occasions had been or was for private rather than police operational purposes. 
39.	In relation to the period following the service of the Reg 9 notices, that is from 17 October 2000, it is alleged that the operational records or logs of the claimants in question were located within the SB and FCS offices, that investigating officers under the supervision of ACC Twigg and the management of DCI Harrison were able to and did search those offices, and that:
“24. The said operational records/logs would have indicated whether the use of particular police vehicles by the recipients of the Reg 9 notices on the particular occasions being investigated was operational or private”.
40.	It is to be noted that there are no particulars of this plea. It is not pleaded that any particular operational record or log indicated that the use of a vehicle on any occasion referred to in a charge was operational, or private.
41.	In para 25 it is alleged that after 17 October 2000 “some of the supervisor [claimants] were interviewed … under criminal caution for taking the vehicles concerned without consent on the occasions in issue”.  It is pleaded that in certain interviews the officers concerned referred to unmarked police vehicles being taken to their home addresses for operational reasons and stated that their use of vehicles in this way “would have been authorised and for operational purposes” and that “this would be apparent from a cross reference between dates which misuse alleged and the relevant operational records”.  
42.	The interviewees referred to in the pleading are the first, third and fifth claimants. It is not pleaded that any of the other claimants said anything to that effect in interview. Nor is it alleged that any of the first, third or fifth claimants referred to any particular operational record or log as indicating that the use of a vehicle on any occasion referred to in a charge was operational, or private. The fullest response in interview that is pleaded is one by the third claimant, where he said:
“… you talk about my Office Schedule and …more than happy for you to take it and I offered it up. And you go away and research those dates and I can do that and I might be able to give you answers and reasonable answers around those dates”.
43.	In para 28 it is pleaded that 
“although the investigating team searched the SB/FCS offices… no evidence was ever produced or obtained by the investigating team to indicate that the use of particular police vehicles by the [claimants] on the occasions being investigated … was non-operational (ie private)”.  
44.	In para 30 it is alleged that 
“the omission or failure of the investigating team to obtain such evidence represented an obvious and fatal flaw in the investigation.  None of the misuse allegations … could ever have been made out as allegations of misconduct … without evidence indicating private rather than operational use on the occasion in issue”.  
45.	Accordingly it is pleaded under the heading “Unlawful Acts”:
33. In deciding:
a. to serve the Reg 9 notices without any evidence of private use by the claimants of force vehicles on the occasions in issue; alternatively
b. to continue the overt Pool investigation thereafter past the point where the investigation team had tried and failed to find any evidence of private use.  To disprove the [claimants’] explanation of authorised operational use;
ACC Twigg and/or CI Harrison acted in excess of their powers and abused their position as supervising/investigating officers under the PCR.  This was because without such evidence the allegations of misuse intimated in the Reg 9 notices could not be made out.  The only proper course in October 2000 alternatively at the later date was to discontinue the investigation”.
46.	There was further pleaded under the heading “Knowledge of/Reckless Indifference to Legality”:
“34 ACC Twigg and/or CI Harrison so acted knowing of or wilfully disregarding the unlawful nature of their actions.
35 The [claimants] will say that the need for evidence of private use was, in the circumstances, so obvious that they must have recognised it.  Consequently to pursue/continue the overt investigation without it was culpable and not simply negligent”.  
47.	In relation to the second basis for the allegation of misfeasance in public office (referring the cases to a hearing pursuant to Reg 11) corresponding allegations of unlawful acts and knowledge or reckless indifference to legality are made in relation to DCI Harrison and ACC Crompton.  Para 55 is in terms similar to para 34 of the APOC, save that it names Acting Superintendent Harrison and ACC Crompton.  There follows:
“56 The [claimants] will say that the need for evidence for private use was, in all the circumstances including the advice received from the CPS on 5 September 2001, was so obvious that they must have recognised it so that referring the misused cases without it was culpable and not simply negligent”.
48.	The CPS had in that letter identified, amongst other considerations pointing against criminal proceedings, a possible defence referred to as the “strategic deployment argument”, and the paucity of written evidence in relation to the fact that police vehicles were not to be used for transport by officers from their office to their homes.  The CPS also make reference to a question mark over an officer, whose allegations had triggered the initial investigations.  
49.	In relation to the expenses charges, it is pleaded:
“40. In the course of an interview under criminal caution on 3 May 2001 … it was put to [the third claimant] by (by now) Acting Superintendent Harrison that he had made a mileage expense claim stated to be for travel outside the force geographical borders … on a T9 form rather than a 16A form, contrary to an instruction at para 6 of the Notes on Completion printed on the back of the T9 form. In response [the third claimant] explained:
“… when I put that form in I was under the honest held belief that I was entitled to claim that mileage on that form … and that’s a common practice …
41. At all material times the practice of many other Cumbria Constabulary officers had been to submit out of county mileage expense claims on the T9 form. This was known to CI/Acting Supt Harrison…
49. ACC Crompton had himself on at least one occasion submitted an out of county mileage expense claim on a T9 form. CI/Acting Supt Harrison had on at least one occasion approved an out of county mileage expense claim submitted by another officer on a T9 form.
57. As to the referral of the T9 cases: the [claimants] will say that
a. the inconsistency of treatment must have been known to A/Supt Harrison and ACC Crompton, in particular as they also made or approved out of county mileage claims on T9 forms, yet they did not hand the decisions in relation to T9 cases to other uninterested police officers whilst disclosing their own similar practices:
b. instead they unfairly pursued the T9 cases against [the third claimant] and [the fifth claimant] alone, in order to try and bolster unsustainable cases against them on the vehicle misuse allegations”.
50.	There being no issue in relation to any of the other ingredients of the tort of misfeasance in public office, it is unnecessary for me to set out other parts of the pleading.
SUBMISSIONS FOR THE DEFENDANT
51.	Mr Apthorp submits that the pleas in paras 34 and 35 and 55 and 56, whilst in form allegations of knowledge or subjective recklessness, are in substance no more than pleas of objective recklessness or negligence. In each case the essential ingredient of malice is sought to be proved by inference solely from the weakness of the case. 
52.	Mr Apthorp submitted that in Dennett at para 22 May LJ had illustrated the difficulty of inferring subjective recklessness. On the facts of that case he had concluded:
“Subjective reckless indifference is a possibility but not a necessary inference. There are other possibilities of which the strain of overwork or incompetence are two.”
53.	Mr Apthorp submitted that the same alternative possibilities are equally available in the present case.
54.	As to the case in relation to Reg 9, Mr Apthorp submits that the claim is misconceived for a further reason. As Reg 9 makes clear, notices are to be served as soon as practicable, and the notice is required to state “that there is to be an investigation into the case”. It is not normally a notice that an investigation has already been carried out. It follows that the lack of evidence at the time the notice is served cannot of itself make the service of the notice unlawful.
55.	As to the referral of the matter to a hearing, Mr Apthorp also refers to the Defence, to which is appended the advice of junior counsel and a Policy note. He accepts that the fact that an officer accepts Advice from counsel does not conclusively demonstrate that he believed he was acting lawfully. But he submits that the terms of the advice demonstrate that the claimants have a high hurdle to surmount in this case.
56.	The Policy note records the decision made by A/DCC Crompton on 21 November 2001. The decision included that counsel’s Advice was broadly accepted, and that those officers indicated in the advice were to face disciplinary charges. Decisions were also made to pursue difference courses of action in relation to other officers, including no further action in one case. 
57.	The Advice of counsel demonstrates that some documents had been considered. For example, in relation to the seventh claimant, para 3.6.4 refers to seven occasions between 19 November 1999 and 21 July 2000 when vouchers “tend to suggest” that he drew fuel for police vehicles and:
“on some occasions he drew the fuel before his pocket book shows him as being on duty. On other occasions it shows him as drawing such fuel after the time when his pocket books shows him as being off duty…”
58.	Mr Apthorp submits that the pleading in para 24 of APOC is not correct. The documents do not indicate whether the use in question in each charge was operational or private. This point is referred to by the Panel in their remarks.
59.	Further Mr Apthorp submits that in their remarks set out above the Panel do not identify the flaw in the cases against the claimants which is said in the APOC to be so obvious as to support the inference that the named officers knew of or wilfully disregarded the unlawful nature of their actions in serving the Reg 9 notices and referring the cases to a hearing under reg 11. Rather it is the lack of clarity in the instructions which is the focus of the Panel’s attention.
60.	Mr Apthorp submits that there has been a six week hearing involving all proper disclosure, and the case cannot proceed on the footing that further disclosure might provide support for the claimants’ cases which is at present lacking.
61.	Finally, Mr Apthorp submits that in the circumstances of this case it is not open to the claimants to submit that knowledge or subjective recklessness are the only possible inferences to be drawn as to the states of mind of those said to be the makers of the impugned decision. He points to the fact that not only was negligence an alternative case advanced originally in this action, but it was also the only basis for the criticisms the claimants put in writing through their solicitors in an 80 page submission dated 27 May 2004 addressed to those reviewing the investigation and hearing of the charges against the claimants.
SUBMISSIONS FOR THE CLAIMANTS
62.	Mr Millar submits that the point that this is in substance a claim based only on objective recklessness or negligence is not one to be taken at this stage. He submits that the pleas are of knowledge or subjective recklessness, and whether they are made out must be decided on the evidence not the pleadings. He refers to Three Rivers at p250 para 56.
63.	He submits that the inference of recklessness is supported by the Defendant’s inability to explain why the investigation was pursued to a hearing without the necessary evidence of private usage and when others were making the same T9 claims. The named officers responsible for the impugned decisions had been alerted to the defence both by some of the claimants in interview and by the CPS, so carelessness is not an explanation.
64.	Mr Millar submits that the advice of counsel does not absolve the holder of a public office from liability of he makes a decision knowing it to be unlawful, or with subjective recklessness. This is not in dispute.
65.	Mr Millar further submits that the claimants are entitled to see not just counsel’s advice but other documents, including the instructions to counsel, and that there has been only partial disclosure in relation to the advice received. 
DISCUSSION
66.	In my judgment I should have in mind in this case the words of Judge LJ cited above, as adapted to the tort of misfeasance in public office. It is essential that before this action for misfeasance is allowed to be pursued through the courts, anxious scrutiny should be made of it to ensure that the Defendant’s immunity against actions for negligence is not circumvented by the pleading device of converting what is in reality no more than allegations of negligence into claims for misfeasance in public office. 
67.	As Chadwick LJ said in Marsh v Chief Constable of Lancashire [2003] EWCA Civ 284 para 57, allegations of misfeasance in public office are amongst the most serious – short of conscious dishonesty – that can be made against police officers, or any public official. 
68.	An allegation of bad faith must be properly particularised. As Megaw LJ said in Cannock Chase DC v Kelly [1978] 1 WLR 1, at p6:
“… bad faith, or, as it is sometimes put, "lack of good faith," means dishonesty: not necessarily for a financial motive, but still dishonesty. It always involves a grave charge. It must not be treated as a synonym for an honest, though mistaken, taking into consideration of a factor which is in law irrelevant. If a charge of bad faith is made against a local authority, they are entitled, just as is an individual against whom such a charge is made, to have it properly particularised. If it has not been pleaded, it may not be asserted at the hearing. If it has been pleaded but not properly particularised, the pleading may be struck out.”
69.	In my judgment, while the plea in paras 34 and 55 do allege the knowledge of illegality or subjective recklessness, the only particulars in support of those pleas are in paras 35 and 56. But those particulars do not support the substantive plea. To say that the alleged defect in the presenting side’s case was so obvious that the officer’s in question must have recognised it is not in my judgment a sufficient particular in the circumstance of this case. 
70.	I am concerned only with the allegations in APOC. For the purpose of this application, I must assume that the claimants’ allegations in this action that the case of the presenting side in the misconduct proceedings was fatally flawed from the very start. So nothing in this judgment should be taken as a finding by me that the alleged errors on the part of those presenting the case in Operation Pool were in any way unlawful. 
71.	I accept Mr Apthorp’s submission that, assuming the errors to be unlawful, subjective reckless indifference on the part of the named officers is not arguably the only possible explanation that may be inferred. Other possibilities include pressure of work (referred to by the Panel in relation to the criticisms they made of the third claimant) and incompetence or errors of judgment.
72.	I also accept Mr Apthorp’s submission that the lack of evidence at the time a Reg 9 notice is served cannot of itself (given the terms of Reg 9) make the service of the notice unlawful.
73.	Accordingly I would strike out the plea on this ground.
74.	In case I am wrong about that, I go on to consider whether, if it were not struck out, the plea would have a real prospect of success.
75.	Mr Millar points to the memorandum of the Panel cited in para 17 above, and to ACC Smith’s remarks where he says: “Where is the evidence that officers used vehicles for private use?”
76.	But the weakness of the presenting side’s case upon which ACC Smith focuses is the lack of clarity in the instructions, which failed to explain what was operational and what was not in the context of police officers taking police vehicles home. It was not the flaw alleged in APOC to be fatal that is the focus of attention. ACC Smith said:
“The failure of the force to bring absolute clarity to force orders and instructions in the face of concerns which were the cornerstone of Operation Pool is a matter which fatally undermines all allegations of misuse…”
77.	Moreover, the point made in para 24 of APOC, cited in para 39 above, is difficult to reconcile with what ACC Smith said about the poor record keeping of the officers. He repeatedly criticised the absence of records which should have been kept by the claimants, going so far as to say that:
“To some extent it must be said that officers have contributed, either by omission or actions, to the predicament they have now found themselves in.
In relation to vehicle usage and documentation as a general point, the Panel are satisfied through the evidence presented that at the very least there were significant sensitivities within Cumbria Constabulary regarding the private use of police vehicles.  All of the officers should have been acutely aware of this, especially in respect of their vulnerability to accusations as a result of the demanding and secretive nature of some of their duties.  It would not have been unreasonable, therefore, in the opinion of the Panel, for all officers always to record specific reasons as to the exact purpose to which police-owned or hired vehicles were being put when officers themselves are otherwise off duty.”
78.	The first and fifth claimants are singled out for particular criticism in failing to direct that proper documentation was kept. And while the third claimant is commended for his co-operation, the other claimants are criticised for their “you prove it mentality” and for “unhelpful emphasis on the right to silence”. And the first claimant is criticised for not producing the Opertion Albert documents until the hearing.
79.	In these circumstances, I see no real prospect of the claimants succeeding in establishing that the named officers would have seen from the operational records or logs that on the particular occasions when vehicles were being investigated whether they were being used for private or for operational purposes. So far from directing the investigators attention to records that would show the true position, the Panel complained that the claimants were not even admitting that they had used the vehicles on the dates in question. Counsel in his Advice at para 3.2.2 had remarked that “No officer unequivocally admits in interview that the fuel vouchers shown to them bear their signatures”. He advised on the need to prove that by expert evidence.
80.	Given that the investigators were faced with a response from the claimants as adversarial as that, I see no real prospect of the claimants proving that the named officers who made the impugned decisions were subjectively reckless in wilfully disregarding a fatal flaw in their case. It is significant that the advanced was not an allegation of a crime, to be tried in a criminal court, but an allegation of disobedience to orders to be heard in the very different legal context of the PCR.
81.	The arguments of counsel before me were substantially focussed on the vehicle use charges, and little was said about the expenses charges. 
82.	In my judgment there are no particulars to support the assertion at para 57(b) of APOC that the named officers “pursued the T9 cases against [the third claimant] and [the fifth claimant] alone, in order to try and bolster unsustainable cases against them on the vehicle misuse allegations”. Nor are there any particulars to identify the “many other Cumbria Constabulary officers” who allegedly submitted out of county claims on T9 form. 
83.	Whatever the weaknesses of the expense charges, I see no real prospect of the claimants succeeding in showing that they were unlawful on the basis of unfair discrimination, and that the charges were pursued with knowledge that they were unlawful, or with subjective recklessness.
84.	Accordingly, the applications to strike out the claim, and for summary judgment for the defendant, succeed.