91.
51
Just as Henry cannot use the benefit of hindsight to justify his decision, so I cannot use hindsight to criticize his actions regarding Insp. MacLennan which I do not. Henry's actions must be judged solely on the basis of the facts and knowledge existing at the time. It was perfectly true that with David Lau's absence, a trial or disciplinary inquiry would have been impossible. Yet this was the only way in which any doubts relating to the allegation could be resolved. It was also true that termination of MacLennan's contract on the basis of any doubts which the Police might have regarding the truth of the allegation against him, would be an injustice without giving MacLennan his day in court or disciplinary tribunal. Mr. Henry, therefore, was faced with a dilemma. That he sought to resolve this dilemma by giving way to "policy" considerations was, in my view, an error of judgment. It must be absolutely right that the Commissioner should not tolerate any but the highest standards of conduct among his men. But the dictates of natural justice should also be given due weight. In the case of MacLennan, I am afraid, for one moment, it was not.
92.
My final opinion of Mr. Henry's decision is that whilst properly motivated, he committed an administrative error, or an error of judgment.
93.
94.
The next phase was the reinstatement.
General Purdon is in my view both honest and fair-minded. He had reached a decision to recommend reinstatement quite uninfluenced by outside interests or the Governor's telephone call. I have no doubt that he reached an independent decision. His decision was supported by his two assistants at the time, Blackburn and Over. All three of them had misgivings about the termination long before they received notification of the appeal, but as the decision was made by the Acting Commissioner of Police, they not unnaturally did nothing until the appeal was lodged.
95.
I have no doubt that Mr. Rowlands too is honest and fair-minded. The Civil Service had acted on the recommendation of the head of the Police (as is normal in any administration). But, upon review, Rowlands saw that the decision was, for reasons he has given in evidence, unfair. He could not be certain whether he reached this decision before the call from the Governor but it was certainly before he received Mrs. Elliott's letter to the Governor as it only reached him when the memorandum cancelling the termination was about to be dispatched to the Police.
96. I am satisfied, therefore, the decision to reinstate was made independently by responsible and competent persons in the Police and the Civil Service and was not, as MacLennan told his friends, as a result of the Governor's "intervention".
97. There has been widespread public rumour that MacLennan was "dismissed" as a result of a high powered Police "frame-up". The rumour is that he had investigated senior Police Officers while he was working in the Special Branch and one or more of these officers now wanted to get rid of him. Such rumour is compounded by speculation in some quarters as to the homosexuality or otherwise of Henry himself.
98. Having exhaustively heard evidence covering all relevant aspects and having extensively made enquiries covering all aspects that
may conceivably appear to be relevant (and indeed some have proved irrelevant after thorough probing), I have come to the firm conclusion that there can be no possible case for a "frame-up”. I have no hesitation in dismissing the rumour described in the preceding paragraph.
99.
First of all, I am satisfied that the allegations made by David Lau were true. They came to the notice of the Police some three weeks afterwards under somewhat fortuitous circumstances. There was and is not the remotest link between David Lau and the Police. There is no basis for any suggestion that the Police had fabricated the incident in order to terminate MacLennan's contract.
100.
Could it then be suggested that, even though the allegation was genuine, it was improperly used by some high ranking Policeman to get rid of MacLennan because of the knowledge he obtained while in Special Branch? I am equally satisfied that there is no basis for this suggestion.
101.
Inspector MacLennan joined the Special Branch Vetting Section on 11 March 1977. He resigned and left the Force on 12 July 1977. On 20 December 1977, he applied to rejoin the Force and was accepted. If there is any force in the allegation MacLennan would never have been accepted back into the Force. I am also satisfied on the evidence of Mr. G. W. Roper, the then Section Head of the Special Branch Vetting Section, that MacLennan never investigated any homosexuals while in Special Branch. The Special Branch merely collated intelligence and did not conduct investigations. MacLennan was in the Vetting Section from 11 March to 16 May 1977 and was then transferred to another post in the Special Branch to serve out his remaining period before leaving on 12 July 1977. For a few days during the Easter week, MacLennan was allowed access to files on people suspected or rumoured to be homosexuals. He would have seen Henry's name on a carding sheet but the contents in that file, which consisted of unsubstantiated rumours and allegations, had already been transferred to another file by that time. The file had been seen by at least 14 people before MacLennan and there is never any suggestion that any of these has been victimized. More importantly, there is no evidence that MacLennan told anybody about this carding sheet until AFTER his contract was terminated.