The Commissioner of Police of the Metropolis, R (on the application of) v Police Appeals Tribunal & Anor [2011] EWHC 3421 (Admin)

Case No CO/4248/2011

[2011] EWHC 3421 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

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

Date 16/12/2011

Before

FRANCES PATTERSON QC

Between

THE QUEEN ON THE APPLICATION OF THE COMMISSIONER OF POLICE OF THE METROPOLISClaimant

John Bassett (instructed by Directorate of Legal Services, New Scotland Yard) for Claimant

Anesta Weekes QC (instructed by Reynolds Dawson & Co) for Interested Party

Hearing Hearing dates: 10 th November 2011

Judgment

FRANCES PATTERSON QC :

This is a renewed application to bring judicial review proceedings against a decision of the Police Appeals Tribunal made on or about the 7 th of February 2011. The Police Appeals Tribunal did not appear and were not represented at the hearing. At the hearing due to the issues involved it was agreed that the matter would proceed as a rolled up hearing. for reasons which I set out below I grant permission and consider the rest of the issues as if at a full hearing. The other matter upon which both parties were agreed and which it is worthwhile recording at the outset is that they each felt that it was impossible for the current chair of the Police Appeals Tribunal to continue in that role on the hearing of Mr Peart’s appeal.

Procedural

The claim was filed on the 10 th of May 2011. That is three days outside the three month back stop period within which judicial review proceedings are to be brought against a decision of the 7 th of February 2011. There was therefore an initial application to extend time by the Claimant. The interested party took no point on delay. Although the Chair gave his instructions to administrative staff of the Police Appeals Tribunal on the 7 th of February, they did not inform the parties of the decision until the 16 th of February. On that day an e-mail as sent which conveyed the ruling that the appeal of Mr Peart was best disposed of by hearing before a full tribunal. Reasons for decision were disseminated to the parties in a further e-mail dated the 21 st of March 2011. Seven weeks later judicial review proceedings were commenced. Under rule 11(5) of the Police Appeals Tribunal Rules 2008 a Chair is obliged to give notice in writing of his determination upon an initial review as to whether the appeal should be dismissed. The decision made was that the matter should proceed to a full hearing by the Tribunal. That notification was communicated to the parties on the 16 th of February 2011. In my judgment it is from when the parties are notified in writing, pursuant to rule 11(5), that time for judicial review runs. In the circumstances there is no need to seek an extension of time. In any event given that no prejudice is alleged and no point taken on time I would have extended the time within which to bring judicial review proceedings if required to do so.

Background

Mr Peart has been a serving police officer. On the 6 th of December 2008 he was on duty and summoned to an incident on Regent Street in the centre of London. Officers including Mr Peart were involved in chasing and apprehending a suspect. As part of that exercise it was alleged that the Interested Party struck the suspect with a baton several times using unnecessary force. It was alleged also that he made no accurate record of the incident in his notebook.

On the 17 th of September 2009 Mr Peart was convicted of common assault at South Western Magistrates Court arising out of the 6 th of December 2008 incident. On the 24 th of September Mr Peart appealed to the Crown Court against his conviction.

On the 25 th of November 2009 Mr Peart was given notice that an allegation against him of gross misconduct arising out of the incident of the 6 th of December 2008 would be referred to a misconduct hearing under regulation 21 and 22 of the Police Conduct Regulations 2008. On the 10 th of December 2009 an application to adjourn the misconduct hearing was sought so as to defer that hearing until after the Crown Court appeal. That application was refused. The conduct hearing with witnesses took place on the 7 th of January 2010. The panel made a finding of gross misconduct and dismissed Mr Peart from the Police Service without notice. Mr Peart gave notice of appeal against both the finding and the sanction under rule 4 of the Police Appeal Tribunal Rules.

On the 29 th of January 2010 Mr Peart’s appeal against conviction was allowed at Kingston Crown Court. Mr Peart then filed additional grounds of appeal against the findings of the conduct panel on the 30 th of March and amended grounds of appeal on the 3 rd of July 2010.

A Directions hearing took place on the 13 th of August 2010 at which the issue was whether Mr Peart could rely upon the amended grounds of appeal when they were out of time. In a reasoned decision dated the 24 th of August 2010 the Chair ruled that Mr Peart could not rely upon the amended grounds of appeal as there was no reasonable excuse for them being submitted out of time.

On the 22 nd of September 2010 Mr Peart issued judicial review proceedings of the Chair’s decision. On the 11 th of November 2010 at a renewed permission hearing Owen J dismissed the application on the basis that the decision of the Chair was properly and lawfully made.

On the 27 th of October 2010 solicitors acting for Mr Peart sent a full copy of the transcript of the appeal proceedings at Kingston Crown Court to the Police Appeals Tribunal and to solicitors for the Metropolitan Police Authority. The letter which accompanied the transcript said, “Counsel intends to make an application to the Police Appeals Tribunal to be allowed to refer to the transcript as part of the appeal.” In a further letter dated the 20 th of December 2010 in response to a query from solicitors acting for the Metropolitan Police Authority Mr Peart’s solicitors clarified that the submission of the transcript was in relation to Ground 1 of the appeal, namely, that a finding of gross misconduct on this quality of evidence was unreasonable.A copy of the covering letter to the Police Appeals Tribunal was sent to the Metropolitan Police Service.

On the 7 th of February 2011 the Chair, Gary Flather QC, made a determination under the Police Appeal Tribunal Rules 11 and 12 not to dismiss Mr Peart’s appeal and to refer it to a hearing. As set out that decision was communicated to the parties by e-mail on the 16 th of February with reasons following in a further e-mail of the 21 st of March 2011. The relevant part of the 21 st March e-mail reads:

“The Chair decided that this matter is best disposed of before a full tribunal upon the grounds that various evidence that was not available at the original hearing that could have materially affected its result and has set out his reasons as follows:

[6]On the 11th of April 2011 the Claimant sent a pre-action protocol letter to the Police Appeals Tribunal with a copy to Mr Peart as an Interested Party. In that letter the Claimant invited the Police Appeals Tribunal, “to rescind the determination/decisions made under the Police Appeals Tribunal Rules 11 and 12 on or about the 7th of February 2011 and communicated… on the 16th of February 2011; and to make a proper and lawful determination under rule 11 of the 2008 Rules based solely on the grounds advanced… under rules 4(4)(a) and 4(4)(c) of the 2008 Rules and, if appropriate, a proper and lawful determination under rule 12 of the 2008 Rules.” On the 9th of May 2011 the Police Appeal Tribunal responded as follows, “the Chairman has read the pre-action protocol letter for judicial review. Mr Peart has previously sent him a transcript of the Crown Court hearing in which the Appellant’s appeal against his criminal conviction was allowed. Whereas it is a more compelling document, the Chairman considers that the principle raised in the protocol letter is exactly the same whether it refers to the transcript of the Judge’s remarks, or a full transcript of the hearing. He accepts that in an attempt to be fair to the Appellant he made the order objected to, which he now recognises he had no jurisdiction to make under the Police Appeal Tribunal Rules 2008. In particular, he had purported to permit the Appellant to proceed on a ground of appeal under Rule 4(4)(b) when the Appellant does not and never has relied on it, and contradicted a previous approach he had taken on introducing transcript evidence, which had been approved from Mr Justice Owen. Accordingly the Police Appeals Tribunal through its Chairman, rescinds the determinations made under the Police Appeals Tribunal Rule 2008 as the protocol letter invites it to do, and in due course a determination under rule 11 will be made.” The following day judicial review proceedings were commenced. The Acknowledgment of Service filed by the Police Appeals Tribunal and dated the 23rd of May 2011 was accompanied by a purported determination under rule 11. In that document dated the 3rd of May 2011 but served with the Acknowledgement of Service the Chair, Gary Flather QC,

[7]“reluctantly withdrew his determination dated the 7th of February 2011 acknowledging that in law he had no option but to do so; and

[1]made a redetermination on the original grounds of appeal and additional grounds of appeal served before the 8th of April 2010 in which he held:a. that the decision of the misconduct panel not to adjourns the hearing to await the outcome of the appeal to the Crown Court was within the wide range of decision making that was reasonable in the exercise of a discretion in those circumstances;

b. that there was no evidence of apparent bias on the part of the misconduct panel and given the evidence and task before them together with the fact that the Chair feared that the conviction would play no part in their determination the decision was properly arrived at and made;

[2]As a result the Chair found that the misconduct panel’s finding and the disciplinary action it imposed to be reasonable. There were no compelling grounds for a hearing, and no legitimate grounds disclosed in the Appellant’s notice of appeal for a hearing under the 2008 Rules. As a result the appeal was to be dismissed but in accordance with rule 11(4) further representations were sought from the parties before making a final determination.”a. that the decision of the misconduct panel not to adjourns the hearing to await the outcome of the appeal to the Crown Court was within the wide range of decision making that was reasonable in the exercise of a discretion in those circumstances;

c. that there was no reasonable prospect of the Appeal Tribunal disagreeing with the panel’s assessment of the gravity of misconduct and therefore both the disciplinary action and sanction were reasonable. In the Interested Party’s Acknowledgment of Service served on the 14th of May 2011 the decision of the 3rd of May by the Police Appeals Tribunal was challenged on the basis that it was wholly inconsistent with the decision of the 7th of February 2011. It was also against the rules of natural justice and inherently unfair for the Chair of the Police Appeals Tribunal to rule that a hearing is required and then to proceed to dismiss the appeal without allowing a hearing to take place. On the 13th of July 2011 in a lengthy set of observations His Honour Judge Thornton QC sitting as a Judge of the High Court refused permission to bring judicial review proceedings. His decision was both on the basis that judicial review proceedings were misconceived and on the merits of the decision of the 3rd of May 2011. The decision of the 7th of February stood.

Legal Framework

[8]The background to the current proceedings is to be found in the relatively new system for dealing with police misconduct. The Police (Conduct) Regulations 2008 came into force on the 1st of December 2008. In short, their objective is to establish a more streamlined and speedy process for dealing with misconduct on the part of police officers. Determination of misconduct is expressly stated to be on the balance of probabilities. An appeal from a misconduct hearing is to the Police Appeals Tribunal and governed by the Police Appeals Tribunal Rules. The most relevant for current purposes are set out below:

“Circumstances in which a police officer may appeal to a tribunal 4.—(1) Subject to paragraph (3), a police officer to whom paragraph (2) applies may appeal to a tribunal in reliance on one or more of the grounds of appeal referred to in paragraph (4) against— (a)the finding referred to in paragraph (2)(a), (b) or (c) made under the Conduct Regulations; or (b) the disciplinary action, if any, imposed under the Conduct Regulations in consequence of that finding, or both. (2) This paragraph applies to— (a) an officer other than a senior officer against whom a finding of misconduct or gross misconduct has been made at a misconduct hearing; or (b) a senior officer against whom a finding of misconduct or gross misconduct has been made at a misconduct meeting or a misconduct hearing; or (c) an officer against whom a finding of gross misconduct has been made at a special case hearing. (3) A police officer may not appeal to a tribunal against the finding referred to in paragraph (2)(a), (b) or (c) where that finding was made following acceptance by the officer that his conduct amounted to misconduct or gross misconduct (as the case may be). (4) The grounds of appeal under this rule are— (a) that the finding or disciplinary action imposed was unreasonable; or (b) that there is evidence that could not reasonably have been considered at the original hearing which could have materially affected the finding or decision on disciplinary action; or (c)that there was a breach of the procedures set out in the Conduct Regulations, the Police (Complaints and Misconduct) Regulations 2004(1), Schedule 3 to the Police Reform Act 2002(2) or other unfairness which could have materially affected the finding or decision on disciplinary action.”

[9]Provision for service of notice of appeal and provision for the exchange of documents are made together with stipulations as to relevant timescales under rules 6, 8 and 9. Rule 10 deals with extensions of time. Rule 11 deals with review of the appeal. That reads:

“Review of appeal 11.—(1) Upon receipt of the documents mentioned in rule 9(4) and (8), the chair shall determine whether the appeal should be dismissed under paragraph (2). (2) An appeal shall be dismissed under this paragraph if the chair considers that— (a) the appeal has no real prospect of success; and (b) there is no other compelling reason why the appeal should proceed. (3) If the chair considers that the appeal should be dismissed under paragraph (2), before making his determination, he shall give the appellant and the respondent notice in writing of his view together with the reasons for that view. (4) The appellant and the respondent may make written representations in response to the chair before the end of 10 working days beginning with the first working day after the day of receipt of such notification; and the chair shall consider any such representations before making his determination. (5) The chair shall give the appellant, the respondent and the relevant police authority notice in writing of his determination. (6) Where the chair determines that the appeal should be dismissed under paragraph (2)— (a) the notification under paragraph (5) shall include the reasons for the determination; and (b) the appeal shall be dismissed.”

[10]Rule 12 deals with the determination of an appeal. That provides:

“Determination of an appeal 12.—(1) Where an appeal has not been dismissed under rule 11, the chair shall determine whether the appeal should be dealt with at a hearing. (2) The chair may determine that the appeal shall be dealt with without a hearing, but only if the appellant has so consented. (3) Where the appeal is to be dealt with at a hearing, rules 13 to 21 shall apply and the chair shall give the appellant and the respondent his name and contact address.”

Discussion

[11]It is apparent from the background set out above that appeal proceedings have developed in a highly unusual way. The Claimant accepts that generally the Administrative Court would not consider such a judicial review application but contends that circumstances here are exceptional. The Claimant mounts three grounds of challenge:-

[1]that in the February 2011 the Chair directed that there should be a hearing on a ground not advanced by the Interested Party, namely under rule 4(4)(b).

[2]that the full transcript of the Crown Court hearing was inadmissible and for the Chair to take it into account contradicted his ruling of the 27th of August 2020. The Claimant was also unaware that a full transcript had been submitted thinking that the reference to a transcript was to the Crown Court Judge’s remarks upon allowing the appeal.

[3]The intention of rule 11 of the Police Appeal Tribunal rules was to sift unmeritorious challenges so as to avoid the time and expense of preparing for such appeals. There was nothing in the rules that permitted a challenge to a rule 11 determination so that it was wrong to argue that the Claimant should have brought a preliminary hearing within the Tribunal against the February decision. The Interested Party submits that the proceedings are inappropriately brought, that it is quite possible for the Police Appeals Tribunal to deal with all matters, that the Chair was quite entitled to make the February rule 11 determination albeit it is accepted that the wording is not correct and that the purported redetermination of the 3rd of May should be quashed.

Appropriateness of judicial review

[12]The Police Appeal Tribunal Rules are clearly intended as a comprehensive code on how to deal with Appeals from Police Misconduct hearings. The rules provide for submission and exchange of documents, lay down timescales within which steps are to be taken and provide for the proceeding at a hearing if one is ordered. It is incumbent upon the Chair once all the required documents under rules 6 and 9 have been submitted in accordance with the timeframe allowed and in the absence of any extension of time to conduct a review under rule 11. That is a necessary step as part of the process of appeal laid out in the rules. If the appeal is dismissed for the reasons set out in rule 11(2) and having been through the steps set out in rule 11(6) that is the final determination. There is then no further appeal. Any error of law to such a decision would be susceptible to challenge in the courts on conventional public law grounds.

[13]The February 2011 decision by the Chair though, was that the matter should proceed to a hearing. That was a decision to which the Chair was lawfully entitled to come under the rules as a result of carrying out a review of the case provided that he did so lawfully. Mr Peart had put in his notice of appeal under rule 4(4)(a), that the finding or disciplinary action imposed was unreasonable, and subsequently added rule 4(4)(c), that there was some unfairness which could have materially affected the finding or decision on disciplinary action. Subsequent correspondence, in particular the letter of the 20th of December 2010, made it clear that the full transcript of the Crown Court proceedings was submitted in support of Mr Peart’s rule 4(4)(a) appeal. At no stage did Mr Peart rely on rule 4(4)(b).

[14]Both in the e-mail of the 16th of February when the Chair gave his ruling that the appeal was best disposed of by a full hearing and in the e-mail of the 21st of March when further reasons were given for that decision it was set out expressly that the basis for the decision was that, “there is evidence that was not available at the original hearing that could have materially affected its result.” The Chair made no express reference to rule 4(4)(b) but the words used on each occasion follow the wording of that rule. The reference to evidence was a reference to the full transcript of the proceedings at Kingston Crown Court which the Chair ruled was to be added to the papers before the Tribunal and upon which both counsel were to be given the opportunity to make submissions. It is clear from both e-mails and put beyond any doubt in the response to the pre-action protocol letter and the subsequent purported redetermination that the Chair made his determination as to how the appeal was to proceed under rule 4(4)(b) which was not and had never been relied upon by Mr Peart. Further, in each of the e-mails of the 16th of February and 21st of March the Chair failed to engage with the grounds that were relied upon by Mr Peart.

[15]The transcript from the Crown Court could have been admissible as part of the Interested Party’s case under either or both of the grounds relied upon as a supporting document under rule 9(4) subject only to obtaining an extension of time for its submission. The Interested Party himself was arguing that it should be taken into account as part of his ground (a) appeal only but the Chair failed to deal with that. He admitted the transcript on the erroneous basis of a ground 4(4)(b) appeal which was not before him.

[16]If the appeal is not dismissed under rule 11 and proceeds the ultimate determination is governed by rule 22 which provides, “The Tribunal shall determine whether the ground or grounds of appeal on which the Appellant relies have been made out.”

[17]Clarity as to the grounds relied upon is thus of the utmost importance to the final determination of the appeal.

[18]The decision made that the appeal was to proceed to a full hearing was one that the Chair could lawfully make albeit not in reliance on the ground that he did. Likewise, it was within his discretion to admit the full transcript to the Crown Court proceedings but again, not on the basis that he did.

[19]It is submitted by the Claimant, in relation to the transcript, that to admit it would be inconsistent with the Chair’s ruling on the 27th of August 2010 and the judgment of Owen J on the 17th of November 2010. I do not accept that submission as the August ruling did not relate to a full transcript of the proceedings in the Crown Court which may warrant different considerations to that given to the Judge’s remarks upon allowing the appeal.

[20]It is right, as Mr Bassett submits, that there is no provision in the rules to deal with circumstances that arose in the current case. He contends that the case of R on the application of Redgrave against the Commissioner of Police for the Metropolis 2003 [EWCA Civ 04] is authority for the Administrative Court entertaining a judicial review application after a preliminary hearing. The case of Redgrave was indeed a challenge to a decision of the Police Disciplinary Board at a preliminary hearing on two bases, 1, delay and 2, the application of res judicata and the issue of double jeopardy in the issue of disciplinary proceedings. But that was a case brought before the new streamlined system of appeals was introduced through the Police Appeals Tribunal Rules 2008. It is thus not directly applicable to the current proceedings.

[21]Under the 2008 Rules there is a two-stage sift process. First, under rule 11 there is a consideration on the documents as to whether the appeal should be dismissed. Second, under rule 12 if the appeal is not to be dismissed there is a determination as to how the appeal shall be proceed, that is with or without a hearing. The procedure and oral evidence at the hearing is, under rule 16, determined by the Tribunal subject to the rules. There is nothing there or elsewhere in the rules that prohibits a hearing on a preliminary issue whether at the substantive hearing or in advance of that as a result of a further summons for directions which could determine the basis upon which the substantive hearing was to proceed and documents to be relied upon. That approach would be in keeping with the objective of the rules to introduce a streamlined and more rigorous appeal procedure. It is consistent too with the approach taken in August 2010 when a summons for direction was heard in the instant case. It also has the distinct advantage of avoiding satellite litigation in the courts and delay in ongoing proceedings as there is in the current case. At present the Chair has deferred a final determination of the purported redetermination under rule 11 pending the outcome of these judicial review proceedings.

[22]In my judgment and consistent with the new appeal regime, if there is a challenge to a decision under rule 11 or 12 which is capable of correction by the Police Appeals Tribunal that should be the first port of call. Ordinarily, therefore, judicial review proceedings will not be appropriate as a means of challenging interim or procedural decisions under the Police Appeals Tribunal Rules. I appreciate that there has already been an earlier judicial review hearing in this case relating to the decision of the 27th of August 2010 but for whatever reason whether that was an appropriate course of action does not appear to have been raised and certainly was not determined in that process. In the circumstances, I do not regard that case as establishing any precedent as to the appropriateness of judicial review proceedings on appeals relating to interim or procedural rulings under the Police Appeals Tribunals Rules. It follows that in the ordinary run of such cases judicial review proceedings are not appropriate.

[23]Exceptionally, here matters have developed outside the ordinary run of such cases beyond the original rule 11 and rule 12 determinations to the extent that there is now a purported redetermination under rule 11 in May 2011 which is of an entirely opposite effect to that in February which the Police Appeals Tribunal through its Chair has declared that it has rescinded. There was no consideration as to whether the Chair had power to act in that way and there has been no rescission of the Rule 12 determination. The position was understandably described by HH Judge Thornton QC as a procedural imbroglio. In these exceptional circumstances I turn to consider the impugned decisions made.

February decisions

[24]I have set out the decisions and their background above. The Chair determined that the appeal should proceed to a hearing before a full panel upon the ground that there is evidence that was not available at the original hearing that could have materially affected its result. To determine the onward progression of an appeal on a ground not relied upon was in error. It is also an error which Mr Peart, the Interested Party, accepts. He argues that it is capable of correction at the final hearing. In the current circumstances with the purported redetermination of the 3rd of May I am unable to accept that submission. In my judgment the Chair made a fundamental error because of the nature of the task that the Tribunal has to embark upon under rule 22, namely, whether the grounds of appeal on which the Appellant relied had been made out. As a result of the Chair’s decision there was no ground before the Tribunal which the Appellant relied upon and yet an oral hearing was ordered. There is an inherent contradiction within the decision. Further, it is apparent from the response to the pre-action protocol letter and the subsequent purported redetermination in May that in February the Chair did not engage with the grounds of appeal upon which the Appellant relied and address his mind to whether, when properly considered, the grounds relied upon would or would not have given rise to a dismissal of Mr Peart’s appeal as required under rule 11. It follows that the Chair misdirected himself and/or misunderstood the nature of the exercise that he had to carry out under rule 11. The February determinations are quashed. .

Transcript

[25]The Chair ordered that the transcript be added to the document and invited counsel to make submissions upon it. That decision falls as part of the February decision but as part of the overall context there is no reason why the parties cannot at some future time, make submissions about its admissibility to the Tribunal. It is clear from the terms of the letter of the 27th of October 2010 that a full transcript of the Crown Court proceedings was forwarded by solicitors for the Interested Party to the Metropolitan Police Authority.

May Decisions

[26]On the 3rd of May 2011 the Chair purported to make a provisional redetermination in accordance with rule 11(3) in which he held that under the grounds of appeal relied upon the Interested Party had no real prospect of success and nor was there any other compelling reason why the appeal should proceed. He invited both parties to make representations under rule 11(4)

[27]However, before making his provisional redetermination the Chair did not invite further submissions from the parties, convene a hearing or contact them at all. At not time did he set out the basis upon which he thought he was acting lawfully in acting as he sought to do. Rather, he appears to have reacted to the pre-action protocol letter sent by the Claimant alleging that the Chair’s decision was unlawful. As the Interested Party had been preparing for a full hearing since the 16th of February in reliance on the earlier decisions under Rules 11 and 12, for the Chair to change his stance so radically without providing any opportunity for Mr Peart to make representations was fundamentally unfair to the Interested Party and in breach of the rules of natural justice. At the very least he should have been given the opportunity to make submissions to the Chair on the contents of the pre-action protocol letter and how matters should proceed including importantly whether the Chair had the power to rescind his earlier decision at all with or without any submissions from Mr Peart.

[28]It follows that both the decisions of February and May are quashed. I invite submissions from the parties as to the terms of the final order. I express the hope that matters will proceed in future in this case as envisaged by the Police Appeals Tribunal Rules.