Independent Police Complaints Commission, R (on the application of) v Chief Constable of West Mercia & Ors [2007] EWHC 1035 (Admin)

[2007] EWHC 1035 (Admin)

Case No CO/3844/2006

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 4 May 2007

Before

MR JUSTICE KEITH

Between

R (on the application of the Independent Police Complaints Commission)Claimant

The Chief Constable of West MerciaDefendant

PC David WaltonInterested Party

(Transcript of the Handed Down Judgment of

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Mr Jeremy Johnson (instructed by Julia Chittenden, Legal Services Directorate, Independent Police Complaints Commission) for Claimant

Mr John McGuinness QC and Mr Brian Dean (instructed by Russell Jones & Walker) for Interested Party

Hearing Hearing date: 30 March 2007

Judgment

Introduction

[1]The claimant, the Independent Police Complaints Commission (“the Commission”), directed the defendant, the Chief Constable of West Mercia, to bring disciplinary proceedings against the interested party, PC David Walton. However, when those proceedings were brought, the panel of officers appointed by the Chief Constable to hear the case decided that the proceedings should be stayed. In this claim for judicial review, the Commission challenges that decision. The Chief Constable has not taken any part in these proceedings, the opposition to the claim having come from PC Walton.

The facts giving rise to the disciplinary proceedings

[2]On 3 April 2003, PC Walton decided to arrest Robert Hall in Shrewsbury city centre for being drunk and disorderly. In order to effect that arrest, PC Walton took Mr Hall to the ground. When he did so, Mr Hall’s head struck the pavement. He was handcuffed and taken to Shrewsbury Police Station. While there, he was examined by the force medical examiner, who certified that Mr Hall was fit to be detained. He was checked at regular intervals, but on one of those checks he could not be roused. It is now known that when he struck his head on the pavement, he suffered internal bleeding. He was taken to hospital where he later died. The cause of death was extradural haemorrhage and blunt-force head injury.

[3]An investigation into the circumstances of Mr Hall’s arrest was carried out under the supervision of the Commission and its predecessor, the Police Complaints Authority. Concerns had been expressed in some quarters about the nature and extent of the force used by PC Walton. The findings of the investigation were sent to the Crown Prosecution Service. They decided that criminal proceedings were not to be brought.

[4]In due course, an inquest took place into Mr Hall’s death. Since there was reason to believe that Mr Hall’s death had “resulted from an injury caused by a police officer in the purported execution of his duty”, the coroner was required by section 8(3)(b) of the Coroners Act 1988 (“the 1988 Act”) to summon a jury. Their verdict had to be certified by them in an inquisition which, among other things, had to set out “how, when and where the deceased came by his death”: see section 11(5)(b)(ii) of the 1988 Act. However, the extent to which they had to address how Mr Hall had died was affected by the need for the inquest to satisfy the UK’s obligation under

Art. 2 of the European Convention on Human Rights

to provide what the European Commission has called “a mechanism whereby the circumstances of a deprivation of life by the agents of a state may receive public and independent scrutiny”. If an inquest is to be the mechanism by which this obligation is to be discharged – as it was in Mr Hall’s case – the inquest had to “culminate in an expression, however brief, of the jury’s conclusion on the disputed factual issues at the heart of the case”: see R (Middleton) v West Somerset Coroner

[2004] 2 AC 182

at [20].

[5]The effect of that, as Middleton went on to explain at [36], is that the traditional short form of verdict may not be appropriate in some cases. An expanded verdict may be necessary. That can be done by asking the jury to provide a narrative form of verdict in which their factual conclusions are briefly summarised. Alternatively, it can be done by asking the jury to answer factual questions put to them by the coroner. But as Middleton went on to confirm at [37], however the jury’s verdict was conveyed, there was to be no infringement of rule 42 of the Coroners Rules 1984, which prohibited any verdict from being framed in such a way as to appear to determine any question of criminal liability on the part of a named person, or any question of civil liability.

[6]The inquest into Mr Hall’s death was on any view a most thorough investigation of the circumstances in which he died. It addressed not only the nature and extent of the force used to subdue Mr Hill, but also the nature and professionalism of the way he was looked after by custody officers at Shrewsbury Police Station. In all, the inquest lasted 14 days from 24 January to 17 February 2005. 55 witnesses gave oral evidence, and the statements of a further 21 witnesses were read to the jury. The presenting officer was later to inform the panel of officers hearing the disciplinary proceedings against PC Walton that there was no criticism of “the quality of the factual investigation made by the coroner during the inquest in any way”.

[7]The jury was asked to answer a series of factual questions put to them by the coroner. The questions, together with the answers the jury gave, were as follows:

“(1) When was the fatal injury suffered by Mr Hall sustained? At time of arrest. (2) (a) Was the force used to effect the arrest reasonable? Yes. (b) Was it then justified to take Mr Hall to Shrewsbury Police Station and not call an ambulance? Yes. (3) The medical opinion is clear that at some time prior to 20.29 hrs on 3 April 2003 Mr Hall’s condition became irretrievable. Can you say at what time prior to 20.29 hrs that was? No. (4) Whilst in custody at Shrewsbury Police Station, prior to such time as you consider his condition became irretrievable, was appropriate action taken by custody staff as to: (a) assessing and reviewing Mr Hall’s care, No. (b) seeking medical attention? No.”

No.”

The disciplinary proceedings

[8]PC Walton’s conduct was referred to the Police Complaints Authority on the day of Mr Hall’s death. The statutory regime in place at the time under the Police Act 1996 (“the 1996 Act”) was to apply to any subsequent disciplinary proceedings brought against PC Walton, notwithstanding the subsequent repeal by the Police Reform Act 2002 of the part of the 1996 Act which dealt with disciplinary proceedings against police officers. That is the effect of Art. 2 of the Independent Police Complaints Commission (Transitional Provisions) Order 2004.

[9]PC Walton is a member of the West Mercia Constabulary. After considering the views expressed by the jury, the Chief Constable of West Mercia decided not to bring disciplinary proceedings against PC Walton. The Commission took the view that disciplinary proceedings should be brought against him, and pursuant to section 76(1) of the 1996 Act it recommended that such disciplinary proceedings be brought. The Chief Constable expressed his unwillingness to do so, and the Commission therefore exercised its powers under section 76(3) of the 1996 Act and directed him to do so.

[10]The disciplinary proceedings were governed by the Police (Conduct) Regulations 1999. Reg. 18 provided that they were to be heard by a panel of three senior officers appointed by the Chief Constable. Reg. 23(2) required the panel “to review the facts of the case and decide whether or not the conduct of the [officer] 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”. The “appropriate standard” was the standard set out in the Code of Conduct contained in Schedule 1 to the Regulations. Para. 4 of the Code of Conduct provided that officers “must never knowingly use more force than is reasonable”, and para. 5 provided that they “should be conscientious and diligent in the performance of their duties”.

[11]The disciplinary charges which PC Walton faced were as follows:

“(A) Charge 1 – Use of force and abuse of authority. Being a member of the West Mercia Constabulary on the 3rd of April 2003 in Shrewsbury you knowingly used more force than was reasonable when you took Robert Hall to the ground in an uncontrolled manner and thereby caused his head to hit the ground with considerable force. (b) Charge 2 – Performance of duties. Being a member of the West Mercia Constabulary on the 3rd of April 2003 in Shrewsbury you were not conscientious and diligent in the performance of your duties in that you knew or should reasonably have suspected that Mr Hall had struck his head on the ground during his arrest by you but you failed to: (1) call an ambulance (2) arrange for police transport to take Mr Hall to hospital (3) inform the custody officer at Shrewsbury Police Station that Mr Hall had or may have hit his head on the ground during his arrest.”

Charge 1 plainly reflected para. 4 of the Code of Conduct, and charge 2 mirrored para. 5. (3) inform the custody officer at Shrewsbury Police Station that Mr Hall had or may have hit his head on the ground during his arrest.”

[12]The disciplinary hearing took place in private. A preliminary point was taken on behalf of PC Walton when the hearing began. The skeleton argument which contained the submission on the point described the point in its heading as “a submission to dismiss this case as an abuse of process”. It was argued on PC Walton’s behalf that the issues which the disciplinary proceedings had to address were the same as those which the jury had determined at the inquest in favour of PC Walton. Although the nature of the proceedings were different – the inquest having been inquisitorial in nature and the disciplinary proceedings accusatorial – the evidence relied upon by the Commission was that which had been considered by the jury. PC Walton had in effect been “exonerated” for misconduct by the jury at the inquest at which the standard of proof had been lower than that which was to apply to the disciplinary proceedings. In these circumstances, it was contended that a further hearing addressing the same issues which the jury at the inquest had considered would be “(a) an abuse of process, (b) a violation of the rules of natural justice, (c) capable of undermining the integrity of the inquest proceedings, and (d) a waste of public money.”

[13]The panel went along with this argument. By its decision promulgated on 7 March 2006, it specifically expressed its agreement “with the application that these proceedings should be stayed as an abuse of process”. It concluded that in the particular circumstances of the case the disciplinary proceedings constituted an abuse of process. Its reasoning is contained in the concluding paragraphs of its decision:

“The panel reached the conclusion that, in general, the principle existed that police disciplinary tribunals could hear matters previously dealt with to some extent by a coroner’s inquest. In particular, this would be the case where the tribunal would address different issues, new evidence, different standards of proof or the need to consider appropriate sanction. However, in the light of Middleton, the panel also accepts that apparent breaches of rule 42 of the Coroners Rules are more likely to justifiably occur in the coroner’s pursuit of a verdict. In the exception, this will involve questions being raised and answered which are similar or identical in law and fact to those that a disciplinary tribunal would seek to address. In such exceptional cases, the panel is satisfied that it could be considered an abuse of process to hear in disciplinary tribunal essentially the same facts and argument as permitted in the coroner’s court to determine essentially the same question. Indeed, it could well be considered contrary to the public interest and would bring the administration of justice into disrepute. The panel are conscious of the principle quoted in the Archbold section submitted to it that, ‘the jurisdiction to stay proceedings on the basis of abuse of process is to be exercised with the greatest caution’. We do, however, find in this case that it falls within the exceptions we have outlined. Both parties before us have agreed that the inquest was thorough and have not challenged in any way the procedures, direction and verdict within the court. Indeed, there was agreement that the charges laid against PC Walton are essentially covered by the questions posed to the jury in the inquest. The panel are aware of the IPCC’s direction to hear this matter at tribunal and are conscious of their responsibilities. Their decision has not been influenced by this direction to hold a hearing, nor indeed by any rationale the IPCC had in coming to their own conclusions.”

That is the decision being challenged on this claim for judicial review.

Comparing the inquest and the disciplinary proceedings

[14]At least one of the key factual premises on which the panel proceeded was correct. The panel was indeed considering “essentially the same question” as the inquest had addressed. The first charge related to question 2(a) which the jury had to answer, and the first two features of the second charge related to question 2(b). It is true that the third feature of the second charge – namely whether PC Walton should have informed the custody officer at Shrewsbury Police Station that Mr Hall had, or may have, hit his head on the ground during the arrest – did not relate to any of the questions which the jury had to answer. After all, question 4 related to whether appropriate action had been taken by “custody staff”, not by PC Walton. But the panel noted that there had been “agreement between the parties that [that] should not affect the overarching decision of the panel”. Neither Mr Jeremy Johnson for the Commission nor Mr John McGuinness QC for PC Walton suggested that the panel had not been right to express it in that way. Indeed, the presenting officer accepted that “the matters covered by the charges against PC Walton were, to all intents and purposes, identical to the matters covered by two of the questions, namely 2(a) and 2(b), that were asked of the inquest jury”.

[15]However, it is questionable whether the panel was being asked to determine the issues which the charges raised on the same evidence which was presented at the inquest. The presenting officer expressly acknowledged that there would be “no new evidence”, but that meant that there would be no evidence on a topic which had not been considered at the inquest and that there would not be any new witnesses. It did not mean that such witnesses who were to be called at the disciplinary hearing would give precisely the same evidence. As Simon Brown LJ (as he then was) said in R (Redgrave) v Commissioner of Police of the Metropolis

[2003] 1 WLR 1136

at [38] when comparing disciplinary proceedings with criminal proceedings: “… the material before the [disciplinary] tribunal is likely to be different, in part because different rules of evidence are likely to apply and in part because judicial discretions may well be differently exercised – generally, less strictly in the disciplinary context where at least the accused’s liberty is not at stake. It may also be that on occasions … witnesses will be readier to give evidence at disciplinary hearings held in private than in the full glare of open court proceedings.” (Italics supplied) The words italicised are inappropriate when contrasting disciplinary proceedings with an inquest, but the judicial discretions may well be applied differently by a panel of police officers compared with a coroner who is usually legally qualified.

[16]Moreover, in two respects there were important differences between the task of the jury at the inquest in evaluating the evidence and that of the disciplinary panel. First, the disciplinary proceedings were adversarial in character. PC Walton faced charges, which the presenting officer had to prove. The burden of proof was therefore on the presenting officer. No such burden applied to the inquest, which was inquisitorial in nature. A classic modern statement about the inquisitorial process, albeit in the context of inquiries, is that of Sir Richard Scott V-C in “Procedures at Inquiries: the duty to be fair” (1995) 111 LQR 596 at pp.598-9:

“In an inquisitorial inquiry there are no litigants. There are simply witnesses who have, or may have, knowledge of some of the matters under investigation. The witnesses have no ‘case’ to promote. It is true that they may have an interest in protecting their reputations, and an interest in answering as cogently and comprehensively as possible allegations made against them. But they have no ‘case’ in the adversarial sense. Similarly, there is no ‘case’ against any witnesses. There may be damaging factual evidence given by others which disparages the witness. In these events the witness may need an opportunity to give his own evidence in refutation. But still he is not answering a case against himself in the adversarial sense. He is simply a witness giving his own evidence in circumstances in which he has a personal interest in being believed.”

[17]Secondly, the standard of proof was different – at least that was what the panel was told. In his skeleton argument in support of the application that the case against PC Walton should be dismissed as an abuse of process, PC Walton’s counsel submitted that, although the “standard” of proof for both sets of proceedings was the civil standard, a higher “degree” of proof was required at the disciplinary proceedings because of the potential consequences of an adverse finding to PC Walton, including his dismissal from the police force. That was said to be the effect of para. 3.81 of the Home Office Guidance on the conduct of police disciplinary hearings, which provided at the time as follows:

“In deciding matters of fact the burden of proof lies with the presenting officer and the misconduct hearing/tribunal must apply the standard of proof required in civil cases, that is, the balance of probabilities. As a starting-point, conduct will be proved on the balance of probabilities if the adjudicator is convinced by the evidence that it is more likely or probable that something occurred than that it did not occur. However, relevant case law makes it clear that the degree of proof required increases with the gravity of what is alleged and its potential consequences. It therefore follows that, where an allegation is likely to ruin an officer’s reputation, deprive them of their livelihood or seriously damage their career prospects, a hearing/tribunal should be satisfied to a high degree of probability that what is alleged has been proved.”

The presiding officer expressly agreed with that submission.

[18]It was undoubtedly correct that the standard of proof at the inquest was proof on the balance of probabilities. Indeed, the coroner expressly told the jury that their “conclusions should be reached on the balance of probability, that is more likely than not”. But the distinction between the standard of proof and the degree of proof which the guidance drew is highly questionable, and it is noteworthy that the guidance has recently been changed. Para. 3.81 of the guidance now provides:

“In deciding matters of fact the burden of proof lies with the presenting officer and the misconduct hearing/tribunal must apply the standard of proof required in civil cases, that is, the balance of probabilities. Conduct will be proved on the balance of probabilities if the adjudicator is satisfied by the evidence that it is more likely than not that the conduct occurred. The more serious the allegation of misconduct that is made or the more serious the consequences for the individual which flow from a finding against them, the more persuasive (cogent) the evidence will need to be in order to meet that standard.”

Having said that, the parties’ counsel and the panel cannot be blamed for proceeding on the basis of the guidance as it was at the time.

Another aspect of the Home Office guidance

[19]There is some assistance in the Home Office guidance about when previous proceedings might make it inappropriate for disciplinary proceedings to go ahead. Para. 3.40 of the guidance at the time provided as follows:

“Where criminal proceedings have taken place for an offence arising out of the matter under investigation and those proceedings have resulted in the acquittal of an officer, that determination will be relevant to a decision on whether to discipline the officer: (a) where the conduct under investigation is in substance the same as the criminal charge so determined, and where the alleged failure is serious and the likely sanction serious such that it would be reasonable to look for proof to a high degree of probability (see paragraph 3.81), it will normally be unfair to institute disciplinary proceedings; or (b) where the conduct under investigation is not in substance the same as the criminal charge so determined, it may nevertheless be unfair to proceed where a matter essential to the proof of the misconduct was in issue in criminal proceedings and had been resolved in the officer’s favour.”

However, this guidance has recently been changed. Para. 3.40 now provides, excluding that part of it which deals with the effect of delay:

“A previous acquittal in criminal proceedings in respect of an allegation which is the subject of disciplinary proceedings is a relevant factor which should be taken into account in deciding whether to continue with those proceedings. Relevant factors in deciding whether to proceed with disciplinary proceedings include the following, non-exhaustive list: (a) Whether the allegation is in substance the same as that which was determined during criminal proceedings. (b) Whether the acquittal was a result of a substantive decision on the merits of the charge (whether by the judge or jury) after the hearing of evidence. (c) Whether significant further evidence is available to the tribunal, either because it was excluded from consideration in criminal proceedings or because it has become available since. Each case will fall to be determined on its merits and an overly-prescriptive formula should not be adopted.”

This guidance relates, of course, to officers who have been acquitted in criminal proceedings. There is no guidance relating to officers who have been “exonerated” at an inquest. That may be because the effect of rule 42 of the Coroners Rules was that the jury’s verdict at an inquest was to have no impact on the criminal or civil liability of the officer concerned. (a) where the conduct under investigation is in substance the same as the criminal charge so determined, and where the alleged failure is serious and the likely sanction serious such that it would be reasonable to look for proof to a high degree of probability (see paragraph 3.81), it will normally be unfair to institute disciplinary proceedings; or (b) where the conduct under investigation is not in substance the same as the criminal charge so determined, it may nevertheless be unfair to proceed where a matter essential to the proof of the misconduct was in issue in criminal proceedings and had been resolved in the officer’s favour.” (a) Whether the allegation is in substance the same as that which was determined during criminal proceedings. (b) Whether the acquittal was a result of a substantive decision on the merits of the charge (whether by the judge or jury) after the hearing of evidence. (c) Whether significant further evidence is available to the tribunal, either because it was excluded from consideration in criminal proceedings or because it has become available since.

Staying proceedings as an abuse of process

[20]The power to stay proceedings as an abuse of process is one which the law has long recognised. It was described by Lord Diplock in Hunter v Chief Constable of the West Midlands Police

[1982] AC 529

at p.536B-C as an “… inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people.” The jurisdiction is one which must be exercised with the greatest of caution, as the panel itself recognised, but Lord Diplock articulated the two instances in which it might be appropriate to stay proceedings as an abuse of process. The first is where the proceedings would be “manifestly unfair to a party to the litigation”. The second is where the proceedings would “bring the administration of justice into disrepute among right-thinking people”.

[21]It has been said that it is unnecessary to characterise the first of these two instances – the manifest unfairness to a party to the litigation if the proceedings were to continue – as “abuse of process” when those proceedings are disciplinary proceedings. Thus, in R. v Chief Constable of Merseyside Police ex p. Merrill

[1989] 1 WLR 1077

, Lord Donaldson of Lymington MR said at p.1085F-G:

“The Chief Constable had no need to concern himself with ‘abuse of process’. As a judicial tribunal, he had a discretionary power to dismiss the charge without hearing the full evidence if he was satisfied that, whatever the evidence might reveal, it would be unfair to proceed further. ‘Unfairness’ in this context is a general concept which comprehends prejudice to the accused, but can also extend to a significant departure from the intended and prescribed framework of disciplinary proceedings or a combination of both.”

At the end of the day, though, whether unfairness in this context is a free-standing concept or an example of abuse of power does not really matter. These are only labels after all. The fact is that in appropriate circumstances it is open to a tribunal – whether a panel hearing disciplinary proceedings or some other form of judicial tribunal – to stay the proceedings if manifest unfairness to a party to the litigation would result if the proceedings were to continue.

[22]The circumstances in which the second of the two instances which Lord Diplock said might justify the stay of proceedings on the ground of abuse of process – the need to avoid bringing the administration of justice into disrepute – are very varied. The Hunter case was an example of one particular circumstance. As Lord Diplock said at p.541B:

“The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made.”

The proper way, said Lord Diplock, to attack the decision in the previous proceedings was by pursuing an appeal against it. An important gloss was placed on that by the Divisional Court in R v Belmarsh Magistrates’ Court ex p. Watts

[1999] 2 Cr. App. R. 188

. At pp.197E and 197G-198A, Buxton LJ expressed the view that the ground of abuse which Lord Diplock had had in mind in that passage was “… based on the effect of the second set of proceedings, rather than on the intention with which those proceedings are brought … the second set of proceedings must be in fact and effect, and not merely in intention, a challenge to the finding in the first proceedings.”

The panel’s reasoning

[23]Mr McGuinness argued that the panel decided to stay the proceedings because it believed that it would be manifestly unfair to PC Walton for them to continue. They thought that it was manifestly unfair to require him to undergo disciplinary proceedings in respect of the very misconduct for which he had been “exonerated” on evidence which would at the very least be very similar to that called at the inquest following a full investigation by a jury applying a standard of proof which was lower than that which applied to the disciplinary proceedings. I do not agree that that was the panel’s process of reasoning. There is no hint at all in the reasons the panel gave of any thinking on those lines. On the contrary, the panel thought that what would be contrary to the public interest would be a disciplinary hearing having to determine “essentially the same question” as was decided at the inquest on “essentially the same facts and arguments”. The panel noted that this would only apply in an exceptional case, but I read the panel as having concluded that this was an exceptional case in which proceeding with the disciplinary process would bring the administration of justice into disrepute.

[24]The panel did not spell out how the administration of justice would be brought into disrepute by the disciplinary hearing addressing the same issues as were decided at the inquest on the same evidence, but they must be treated as having accepted the submission made to them by PC Walton’s counsel. In essence, that was that the issues which the disciplinary proceedings raised had already been decided. If the disciplinary hearing went ahead, and the charges against PC Walton were found to be proved, two different bodies would have arrived at diametrically conflicting decisions on the same issues on the same evidence. Such an outcome was to be avoided if at all possible.

The consequences of the panel’s approach

[25]Lord Diplock’s observations in Hunter were not cited to the panel, but what must be treated as the panel’s reasons for regarding the disciplinary proceedings as an abuse of process mirrored exactly the abuse of process which Hunter itself exemplified. Accusing PC Walton of using more force than was reasonable was in effect a collateral attack on the jury’s finding that the force he had used was reasonable. Accordingly, the critical question is whether the panel had a duty to stay the proceedings on that basis. I express the issue in that way because Lord Diplock at p.536D expressly disavowed the word “discretion”, and concentrated on the circumstances in which the court had a “duty” to exercise what he described as a “salutary power” to stay proceedings on the ground of abuse of process.

[26]Mr Johnson advanced three reasons for asserting that the panel did not have a duty to stay the disciplinary proceedings against PC Walton on the basis of an abuse of process of the kind the panel was considering. The first was that the disciplinary proceedings could not have amounted to a collateral attack on the decision which could have been challenged by way of appeal. There was no appeal from the decision reached by the jury. That is perfectly correct, but the decision reached by the jury could nevertheless have been challenged by way of judicial review. It is true that judicial review is a limited remedy, and that the decision reached by the jury could not have been challenged on the basis, for example, that it was contrary to the weight of the evidence. But exactly the same could be said of the decision in Hunter on which the new proceedings are said to amount to a collateral attack. The case concerned the six members or supporters of the IRA who had been convicted of the murder of 21 people who had died following explosions in public houses in the centre of Birmingham. At their trial, they had alleged that statements in which they had confessed to their part in planting the bombs had been extracted as a result of violence and threats by the police. Following a voir dire, the trial judge had ruled that the confessions had been made voluntarily. In subsequent civil proceedings, the men sought damages from the police for the assaults which they claimed they had been subjected to in reliance on new evidence which was said to cast doubt on the voluntariness of their confessions. To the extent that the civil proceedings were stayed because the way to challenge either the trial judge’s ruling on the voir dire or the jury’s verdicts of guilty was by an appeal, such an appeal was itself a limited remedy: although an appeal in those days would be allowed if the conviction was unsafe or unsatisfactory, a contention that the verdict of guilty was contrary to the weight of the evidence would not of itself justify characterising the verdict as unsafe or unsatisfactory.

[27]However, the other two reasons advanced by Mr Johnson are much more compelling. First, he submitted that the coroner’s court could not have been a court of competent jurisdiction for determining whether PC Walton’s conduct had failed to meet the appropriate standard required by the Code of Conduct. The inquisitorial nature of coroners’ proceedings means that any finding made by the coroner or the jury does not bind any person affected by it: see, for example, Jervis on Coroners, 12th ed., para. 20-02. I agree with that submission. Rule 42 of the Coroners Rules is a paradigm example of the application of that principle. Even if the actual questions asked of the jury appeared to determine whether PC Walton had committed a disciplinary offence, that was the product of the way the questions were drafted. The fact remains that the jury’s verdict could not be treated as having determined whether PC Walton had committed a disciplinary offence, and PC Walton could not be said to have been “exonerated” in that sense.

[28]Secondly, although Mr Johnson was at pains not to be seen as suggesting that the issues had not been adequately explored at the inquest, it remained the case that the Commission had not been a party to the coroner’s proceedings, and Mr Hall’s family had not been represented at the inquest. I regard that as very significant. The absence of representation for the Commission or Mr Hall’s family at the inquest meant that, although the proceedings had been inquisitorial in nature with the coroner taking the lead in eliciting PC Walton’s account of what had happened, PC Walton’s version of events would not have been probed and tested in the way it would have been by the presenting officer in the disciplinary proceedings.

[29]For these reasons, I have concluded that the disciplinary panel was not under any duty to stay the disciplinary proceedings on the basis upon which it purported to do so. I have reached that decision despite, rather than because of, the case of Redgrave, which Mr Johnson submitted was determinative of the claim. In that case, a magistrates’ court inquiring into an alleged offence as examining justices had discharged a police officer charged with conspiring to pervert the course of justice on the ground that there was insufficient evidence for a trial by jury. The police officer was subsequently charged with a disciplinary offence of discreditable conduct. The conduct of the police officer which was said to constitute the criminal offence was the same as that which constituted the discreditable conduct, save that in the disciplinary proceedings an intention or tendency to pervert the course of justice, let alone a conspiracy to do so, did not have to be proved. The Court of Appeal upheld the decision of the disciplinary panel that the discharge of the police officer by the magistrates’ court was no bar to the disciplinary proceedings.

[30]The important point is that the principle which was claimed should result in the stay of the disciplinary proceedings was the rule against double jeopardy. The Court of Appeal held that the rule against double jeopardy should not apply to disciplinary tribunals – even when the standard of proof is the same as in the proceedings which are claimed to give rise to the double jeopardy. The rationale was two-fold: the character and purpose of the two sets of proceedings were entirely different, and the material before the tribunal was likely to be different for the reasons given in the passage of Simon Brown LJ’s judgment cited at [15] above. If the character and purpose of the disciplinary proceedings were entirely different from the criminal proceedings in Redgrave, all the more so when the disciplinary proceedings are compared with the inquest in the present case.

[31]But the present case is not about double jeopardy. That is not the principle which has ever been invoked, and Mr McGuinness expressly disavowed any reliance upon it. Redgrave is therefore of little assistance to the present case, which is all about abuse of process. Abuse of process had never been raised before the disciplinary panel in Redgrave, but even if it had been, it would have been of no avail to the police officer because the disciplinary charge he was facing was not the same or substantially the same as the criminal charge from which he had been discharged at the committal hearing: see the judgment of Simon Brown LJ at [45]. Accordingly, Redgrave tells us nothing about what the Court of Appeal’s view would have been about disciplinary proceedings challenged on the ground of abuse of process when the disciplinary charge was to all intents and purposes the same as that which was not proceeded with because of the refusal by examining justices to commit the accused for trial.

[32]One final point should be made. Mr McGuinness argued that the doctrine of abuse of process enunciated by Lord Diplock in Hunter only applies where the litigants in the later proceedings are the same as those in the earlier proceedings. He therefore contended that the doctrine did not apply to the disciplinary proceedings which PC Walton faced since the Commission had not been a litigant in the coroner’s court. The flaw in this argument is that the doctrine of abuse of process as explained in Hunter is not limited to cases where the parties are the same in both sets of proceedings. As Sir Andrew Morritt V-C said in Secretary of State for Trade and Industry v Bairstow

[2004] Ch. 1

at [38]:

“If the parties to the later civil proceedings were not parties to or privies of those who were parties to the earlier proceedings then it will only be an abuse of the process of the court to challenge the factual findings and conclusions of the judge or jury in the earlier action if (i) it would be manifestly unfair to a party to the later proceedings that the same issues should be relitigated or (ii) to permit such relitigation would bring the administration of justice into disrepute.”

Conclusion

[33]For these reasons, I quash the decision of the disciplinary panel that the disciplinary proceedings be stayed as an abuse of process, and I order the disciplinary panel (or any fresh disciplinary panel which the Chief Constable may choose to appoint) to hear and determine the disciplinary charges which PC Walton faces. That is, of course, subject to PC Walton’s right to argue that the disciplinary proceedings should nevertheless be stayed on the ground that their continuance would be manifestly unfair to him – though if PC Walton’s advisers were to argue that on his behalf, the panel would have to take into account three important points made in this judgment:(a) the answers the jury gave at the inquest cannot be treated as having “exonerated” PC Walton because of the effect of rule 42 of the Coroners Rules,

(b) the evidence will not be exactly the same because the witnesses would not be giving precisely the same evidence, and

(c) PC Walton was unlikely to have been subjected at the inquest to the kind of questioning which he is likely to be exposed to in the disciplinary proceedings.

[34]As I said to the parties at the conclusion of the hearing, I do not wish to put them to the expense of having to attend court when this judgment is handed down. At present, I see no reason why costs should not follow the event, and I order PC Walton to pay the Commission’s costs of this claim for judicial review which I summarily assess at £4,860.40, though if PC Walton wishes to argue that a different order as to costs should be made, his solicitors should notify my clerk of that within 14 days of the handing down of this judgment, and I will decide what the appropriate order for costs should be without a hearing on the basis of such written representations as are made. If PC Walton wishes to apply for permission to appeal, his solicitors should notify my clerk of that within 7 days of the handing down of this judgment, and I will consider that as well without a hearing. However, any appellant’s notice will still have to be filed within 21 days of the handing down of this judgment.