Update on pension forfeiture appeals

Report: 4
Date: 18 July 2011
By: Chief Executive

Summary

To report provides an update to members on the outcomes of two separate pension forfeiture appeals by two former Metropolitan Police officers. The Authority was the Respondent in these appeals.

A. Recommendations

That members

1. Note and discuss the decisions of the courts in respect of two pension forfeiture appeals which were heard separately.

B. Supporting information

Appeal 1

1. On 17 June 2011, former Detective Constable Lester Oakley appealed to the Central Criminal Court against a decision of the Professional Standards Cases Sub-Committee (“the Sub-Committee”) to forfeit 50% of his pension permanently. The court dismissed his appeal for the reasons cited in the judgment (see Appendix 1).

Appeal 2

2. On 20 June 2011, former Detective Sergeant John Gallagher too appealed against a decision of the Sub-Committee to forfeit 25% of his pension permanently. His appeal was allowed in full. The judgment is pending and once received, it will be circulated to members at its meeting in September 2011.

3. The facts which led to the forfeiture of Mr Gallagher’s pension are that he was convicted of Misconduct in a Public Office for misusing his corporate Amex card. The latter is provided to police officers for strict use in respect of expenses legitimately incurred in the course of their duties. In essence, he used the card to fund his drink problem and to provide for his daughter who had a drug addiction.

4. At the appeal hearing, it was common ground between the parties that the central issue in this appeal hinged on the proportionality of the decision of the Sub-Committee to forfeit. In addressing this issue, the court referred to the Home Office criteria considered by members in reaching their decision and was mindful of the essence of pension forfeiture, namely to restore public confidence in the police service.

5. In handing down his judgment, the court considered that public confidence was restored in this case as a consequence of the rigorous controls put in place to stop further misuse of Amex cards by police officers. Furthermore, although the court was agreed that there was a betrayal of trust for financial gain, it however felt that this was an offence that could have been committed by any employee in any other organisation and therefore he did not consider that the offence affected core policing.

6. More importantly though the court noted that Mr Gallagher went on to commit his offence against a background of personal problems, namely his daughter’s addiction to drugs and her involvement in prostitution and his own drinking problems as a consequence of pressures both at work and home. These were substantial mitigating circumstances which worked in Mr Gallagher’s favour.

7. Whilst mitigation at the time of the commission of the offence is important, this case also reinforces the requirement of decision makers to take into account post the offence mitigation. Mr Gallagher has members of the family who are financially dependent on him and any forfeiture would also have impacted on them.

8. The court also noted that if forfeiture was applied at 25%, Mr Gallagher’s pension would be reduced by about £6k per annum. This the learned judge considered disproportionate in relation to the offence that he had committed.

9. Against that background, the court felt that it would be just to allow the appeal in full.

C. OTHER ORGANISATIONAL AND COMMUNITY IMPLICATIONS

Equality and Diversity Impact

C. Other organisational and community implications

Equality and Diversity Impact

There are no direct equality and diversity issues arising from this report.

Met Forward

The content of this report has the potential to impact adversely on the following strands of Met Forward:

•  Met Connect – confidence in the Metropolitan Police Service
•  Met Standards – holding the Commissioner to account

Financial Implications

1. Since the Authority won appeal 1, it was awarded its full costs of £4,800, inclusive of VAT, which were counsel’s fees.

2. As the Authority lost appeal 2, a costs order was made against it, to be assessed if not agreed. The Authority agreed to settle on £13,244, inclusive of VAT. Furthermore, the fees of the Authority’s counsel were £7,200, inclusive of VAT. In total, the cost of this appeal to the Authority was £20,444.

Legal Implications

1. These appeals were made pursuant to Regulation H5 of the Police Pensions Regulations 1987, as amended. An appeal against a decision of the Sub- Committee lies to the Crown Court although the proceedings are by nature civil.

2. Although decisions of lower courts are not binding on the Sub-Committee and although cases will have to be decided on their own facts, members should be slow to depart from past decisions of the courts unless there are good reasons for doing so.

Environmental Implications

There are no environmental implications arising from this report.

Risk Implications

There are no risk implications arising from this report.

D. Background papers

• Appendix 1: Judgment in the appeal of former DEC Lester Oakley

E. Contact details

Report authors: Kalyanee Mendelsohn, MPA.

For more information contact:

MPA general: 020 7202 0202
Media enquiries: 020 7202 0217/18

Send an e-mail linking to this page

Feedback