Injustice anywhere is a threat to justice everywhere. ~Martin Luther King, Jr.
British justice, the sense of fair play and the British Police Service have been the envy of the world. It is somewhat ironic that injured Police officers who have lost their police careers have to fight to be treated fairly, and be treated in keeping with the scope and intentions of the Regulations, which are there to compensate them for their injury and consequent loss of earning capacity.
The fight over the 15 years has culminated in over 22 High Court Judicial reviews and 43 Pension Ombudsman decisions regarding maladministration of Police Injury Awards. British Justice still lives within our Courts and arbiters. It is of little surprise that the decisions overwhelmingly remedy the injustices former injured officers have endured.
The rules of natural justice
The rules of Natural Justice require all trials and hearings to be rooted in fairness . Following the case of Re HK (an infant) (1967) the phrase “act fairly” was established making it incumbent on all decision makers to act fairly. There are two parts to the rule:
- Audi alteram partem – “hear the other side” or “let the other side be heard as well.”
- Nemo judex in res sua – “no one should be a judge in his own cause” – A pecuniary interest in the outcome of the decision gives rise to automatic disqualification. Also known as the rule against bias.
Following on from our blog “The Judicial Fallacy” we need to explain that the term judex (simply translated as judge) within Nemo judex in res sua extends beyond judges to all statutory decision makers. This, just in case some SMPs and Mr Wirz start to believe their own hype that they are judges.
Notwithstanding copious direction from the Courts, some scheme managers and SMPs have shown themselves unable, or perhaps unwilling, to apply the Regulations. It is because of this entrenched mindset we at IODPA thought it would be of benefit for decision makers to be educated in respect of their responsibilities.
Whilst the Home Office guidance 46/2004 has been deemed unlawful and withdrawn following the High Court decisions in Laws and Simpson it demonstrates how the Audi alteram parterm rule can apply.
Some Police Pensions Authorities (Chief Constables), HR, and SMPs fervidly embraced the unlawful aspects of this guidance and some still do. Despite a legion of in-house lawyers and CIPD qualified HR personnel, no one thought that guidance is unnecessary if the Regulations are followed. Guidance only becomes a thing if the intention is to bend the rules. Just as Al Qaeda’s Management of Savagery is a manual for how to wage war by creating religious resentment and violence, guidance has historically been used to square a circle, to give excuses to override Holy text and provide bureaucrats a means to blindly follow orders.
The law is the form of the Police Injury Benefit Regulations and case law. This simplicity had to be spelled out in the Simpson case ruling that PPAs can’t usurp the law through guidance !!! Luckily, it wasn’t all 43 Police Pension authorities that wandered, zombie like, into the trap.
So with the advent of the Home Office guidance and a stroke of a pen many pensioners were dropped to Band 1. The decision makers’ minds were closed, the poor pensioners weren’t allowed to make representation or even have their voices heard… Audi alteram partem. This struck to the heart of fairness, our Courts and Judges world renowned for their sense of justice did not allow this dreadful state of affairs to triumph.
We at IODPA have raised previously concerns about guidance emanating from the National Attendance Management Forum. (Now re-branded as the National Well-Being and Engagement Forum – NWEF). We regard it as yet another crude attempt to usurp the Police Injury Benefit Regulations and case law. We regard the NAMF guidance as a resurrection of the unlawful Home Office guidance. The NAMF guidance does not operate in a vacuum: understanding the context in which it operates is necessary. Re-branded, but with the same people at the helm, NWEF still holds regular meetings, but the fact that not all 43 forces subscribe to this forum or attend its meetings should tell the organisers something.
During NWEF events Nicholas Wirz tells the force Solicitors, FMAs, SMPs and HR minions that a pensioners doctor’s opinion cannot be relied on.
…It is also not uncommon for that specialist to be provided with the incorrect legal test, in which case their conclusions need to be treated with caution.[…] This can often be the case with reports produced by a treating physician in support of their patient…
A common occurrence is for the treating physician to “fudge” the issue(SMP) DEVELOPMENT EVENT 31 JANUARY 2014 MR NICHOLAS WIRZ PRESENTATION
This is nothing more than a shameful attempt to uniformly denigrate good, honest, hardworking GPs who have witnessed the physical and mental health of their patients deteriorate, been involved in treatment plans and best placed to comment on the efficacy of them. These practitioners are always best placed to provide the definitive medical opinion.
However, Mr Wirz believes they are prone to provide false opinion. Really? So honest hard-working practitioners of medicine who are not paid by the PPA or the pensioner and who are bound by professional ethics are not to be relied on? What is it which drives Witz and his followers’ false belief that it is only the opinion of SMP’s which is sacrosanct or unbiased? That Wirz saw fit to make such a telling observation reveals that his mind is crammed full of both conscious and unconscious bias.
The SMPs are being paid for by the PPA and are being trained by Wirz. Anecdotal evidence and feedback we’ve had from members is that SMPs have quoted Home Office guidance as well as NAMF guidance. Well, if they are approaching the assessment with a closed mind then we would say that the pensioner will not be heard as the SMP has closed his/her mind to any other view than that of the NAMF guidance.
Now turning to the rule against bias nemo judex in res sua Lord Denning summarised this rule in Metropolitan Properties Ltd v Lannon  CA.
“The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: ‘The judge was biased’.”
The term judge incorporates decision makers such as SMP’s and PMAB members, just in case you missed it earlier decision makers and not Judges in the Judicial sense. So if we surveyed right-minded people, would they think that pensioners were not only treated fairly but seen to have been treated fairly?
We think not for the following reasons :-
NAMF training and guidance – So the delegates consist of FMAs, SMPs, PMAB members, force Solicitors and HR personnel. We’ve made it plain that the NAMF guidance has no basis in law, yet the principles incorporated within this document are being mis-sold as the lawful regulatory framework to SMPs. We also believe it is inappropriate for SMPs who are meant to act as independent decision makers to attend such events and then apply these principles. What if the Police Federation held such events and invited medical experts they instruct, how would you feel about that Mr Wirz?
The fact is not lost on us that HML, the company who manage the PMAB process, no longer attends NAMF meetings, why not? Has the penny dropped that such conduct is not acceptable ?
Some PMAB members far from being fair and open minded are in fact closed-minded acolytes of Mr Wirz and NAMF. Did they think that if HML just slipped out no-one would notice? Especially not the injured pensioners who have been experienced and trained investigators.
SMPs and the HR partnership – The late Dr Sampson and Mr Steven Mitchell from Nottinghamshire HR have jointly given presentations. We would invite you to have a look. Both are eager to convey how much money can be saved.
No onlooker would conclude that this appropriate. What if Dr Sampson hadn’t saved Nottinghamshire Police money, would he have lost his lucrative contract? Well we need to go to Avon and Somerset to show what happens when SMPs can’t be tamed.
The Avon and Somerset PCC’s Agenda – Mountstevens thinks those that have lost their Police careers and their health by putting themselves in harms way are a financial burden. She does not care about the moral or legal obligations enshrined in the Police Injury Benefit Regulations.
Don’t take our word for it, she has been caught out writing to the Policing minister, take a peek. The then Policing Minister (Damian Green) has pointed out the obligations of police pension scheme managers are enshrined in law, and gives his direct opinion that it is right there should be provision for police officers injured in the line of duty. His letter can easily be read as a coded message to scheme managers: don’t approach the administration of injury awards from the viewpoint of looking to save money.
Selection and Deselection –We at IODPA do not believe it coincidental that honest SMPs, such as the fair and just Dr Jo Judge (now retired Dyfed Powys FMA used briefly by Avon and Somerset) who have retained officers on Band 4, i.e. the most disabled and thus the most costly, are no longer engaged as SMPs by forces who want to reduce their financial commitments.
Those that can be enticed to adopt the PCC’s mantra are handsomely awarded such as FMA Dr Bullpitt as well as Dr Johnson SMP. Dr Bullpitt has also lobbied the GMC and Home Office to be exempted from GMC guidance. Really??
Dr Bullpitt’s devious wish to remove the protections of GMC guidance for a hand-picked and specially chosen disabled few, just because they are members of the public in receipt of injury awards, is of serious concern. It goes against equality law, human rights legislation and codes of conduct. All professions are subject to regulation be it Police Officers through the Conduct Regulations, Solicitors via the Solicitors Regulatory authority, even Judges and MP’s are not exempt, that’s what you expect in a fair minded democracy, no one is above oversight. Yet Dr Bullpitt wants this exemption… why ?
So would the right-minded think police pensioners are treated fairly ? We think not.
The rule against bias compels decision makers to leave aside prejudices and preconceptions In the case of R v Bingham Justices ex p Jowitt (1974) QBD a magistrate said
“My principle in such cases has always been to believe the evidence of the police officer.”
We believe this is no difference to SMPs approaching their duties under the influence of NAMF guidance, for example dismissing the pensioner’s specialist’s or GP’s opinion.
The test of apparent bias has developed through case law. In R v Barnsley Licensing Justices, Ex p Barnsley and District Licensed Victuallers’ Association , Devlin LJ recognised:
“Bias is or may be an unconscious thing and a man may honestly say that he was not actually biased and did not allow his interest to affect his mind, although, nevertheless, he may have allowed it unconsciously to do so”.
Lord Denning MR, in Metropolitan Properties Co (FGC) Ltd v Lannon  recognised:
“The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand . . . “
In R v Sussex Justices Ex parte McCarthy (1924) KBD the Defendant appeared before the justices on a charge of dangerous driving, the clerk to the court was acting in parallel civil proceedings for the other party. This case led to the celebrated maxim:
“it [… ] is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”
During the inquest of “The Marchioness” disaster, the coroner was heard to have described some of the victims relatives in attendance as “unhinged” and “mentally unwell” indicating the presence of unconscious bias. A different coroner was required to resume the decision making process R v Inner West London Coroner ex parte Dallaglio (1994) “The Marchioness.”
We know through anecdotal evidence and having seen the SMP reports first hand of such bias. Comments such as ill-health retirement being a tactic purely in pursuance of a favourable exit packages, physical injuries being psychosomatic and ignoring specialist medical evidence are not uncommon. Dr Nightingale and Dr Willy Cheng are particularly adept at this malevolent projection. Dr Cheng goes the extra mile and repeats these attacks in PMAB hearings seemingly without challenge.
In R v Gough , Lord Goff formulated the test for apparent bias in the following terms:
“the simple fact that bias is such an insidious thing that, even though a person may in good faith believe that he was acting impartially, his mind may unconsciously be affected by bias . . .”.
The accepted test for apparent bias is from Porter v Magill  HL, para 103:
“whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”.
We at IODPA have been asked to demystify some of the hocus-pocus which some police pension authorities rely on. We hope that by showing how, through the resurrection in the form of NAMF guidance, erroneous Home Office guidance 46/2004 has, brought about a fresh wave of pension maladministration. Lazy, incompetent, HR managers with only scant knowledge of the Regulations, and no familiarity with the basic concepts of justice within the law, as have been briefly set out here, are tempted to turn to the chocolate teapot uselessness of guidance issued by people who seem to be incapable of freeing themselves of the most pernicious forms of bias.
We hope that this whistle-stop tour through the law will help in the demystification. The Chief architect of the NAMF guidance, Mr Wirz, is a lawyer (albeit not a very good one) and he more than most will come to realise that it is through the protections which the law provides to the victims of malpractice, we will continue to forcibly remind him and the NAMF acolytes of their shortcomings.
Mr Wirz we would like to remind you of another legal maxim:
“The law is a shield and not a sword”.
Whilst you wrongly quote and twist law to use it as a sword against police pensioners we will use the law as a shield. Natural Justice underpins Judicial Review and at present count it’s the Police Pensioners who are winning countless Judicial Reviews. Does that not tell you something, Mr Wirz?
We will continue to educate and enlighten police pensioners to their rights and point out your wrongs, in right is might!