Parish councillor’s challenge to sexual assault finding rejected by High Court
Local Government, Public Law and Judicial Review
The High Court has refused a parish councillor permission to apply for a judicial review of a decision to sanction him for sexually assaulting a fellow councillor.
Cllr Christopher Horne was a member of Batchworth Community Council in Hertfordshire. Following a complaint by a colleague on the Council, Three Rivers District Council commissioned an external investigation.
The investigation concluded that Cllr Horne had made unwanted physical contact of a sexual nature with the complainant on two occasions within 24 hours: once at a pub immediately following a Council meeting; and the second time at the Council offices in the presence of the Clerk.
The investigators concluded, however, that the incident at the pub took place when Cllr Horne was not acting in his official capacity and therefore that the Council’s Code of Conduct was not engaged. The incident at the Council offices did engage the Code because Cllr Horne had met with the complainant there to discuss business of the Council.
While Cllr Horne did engage with the investigators, he refused to co-operate with their investigation, meaning that the report was finalised without the investigators having spoken with him. He was given a number of opportunities to provide a statement, and extensions of time in which to do so, but in the end, the Monitoring Officer decided that the matter needed to progress and so the report was finalised.
A panel was appointed to consider the report. Although he was later to complain of bias and procedural unfairness, Cllr Horne did not ask for any of the panel members to recuse themselves, did not challenge the procedure followed at the hearing and did not seek to ask any questions of the investigators.
He did, however, submit an extraordinary written statement in his defence which ignorantly asserted an absolute right to cause offence under Article 10 of the European Convention of Human Rights and contained a number of extremely derogatory comments about the complainant.
The panel accepted the recommendation of the investigators and found that Cllr Horne had breached the Code by failing to treat his colleague with respect. Reflecting the very limited effect of the sanctions available to them under the new standards regime, they recommended formally censuring Cllr Horne and inviting him to attend a training session on equality and respectful behaviour.
As it turned out, none of these sanctions was actually applied because Cllr Horne sought to challenge the decision in the High Court and he subsequently stood down at the local elections in May. Permission was refused on the papers in May and Cllr Horne applied to renew at an oral hearing.
Michael Fordham QC, sitting as a Deputy High Court Judge, refused permission on 3 September 2019, finding that there was no arguable error of law in the decision.
The Judge held that the Council’s Code of Conduct – based on the template provided by the National Association of Local Councils – was in accordance with section 27 of the Localism Act 2011 and that the panel had not misdirected themselves in their use of the phrase “official capacity”. He rejected Cllr Horne’s argument that a member was only acting in their official capacity at meetings of the Council or where specifically authorised to act on behalf of the Council.
The Council were awarded £4,000 in costs.
Matt Lewin, of Cornerstone Barristers’ Public Law team, represented Three Rivers District Council.
Earlier this year, Matt represented Devon County Council (with James Findlay QC) in their successful defence of another challenge by a councillor to a sexual harassment finding.
He is regularly instructed to carry out investigations into complaints about councillors and advises Monitoring Officers on a variety of standards and governance issues.