Gray v The Police Appeals Tribunal [2016] EWHC 1239 (Admin)

[2016] EWHC 1239 (Admin)Case No CO/3276/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Birmingham Civil and Family Justice Centre, 33 Bull Street, Birmingham, B4 6DSDate 29 July 2016
Before
THE HON MR JUSTICE COULSON
Between
Trevor GrayClaimantThe Police Appeals TribunalDefendantThe Chief Constable of NottinghamshireInterested Party
Mr Steven Crossley (instructed by Rebian Solicitors) for ClaimantMr John Beggs QC and Ms Cecily White (instructed by East Midlands Police Legal Services Unit) for Interested Party for The Defendant did not appear and was not representedHearing Hearing date: 25 May 2016
Judgment ApprovedThe Hon. Mr Justice Coulson:
[1]INTRODUCTION This application for judicial review raises a short but important question of res judicata and its application to two sets of police disciplinary proceedings. It arises out of a long and rather troubling story.[2]In May 2012, the claimant was tried and convicted of sexual assault, attempted rape and anal rape. In September 2012, following a special case hearing conducted by the then Temporary Chief Constable of Nottinghamshire (“TCC”), Mr Christopher Eyre The current Chief Constable is the Interested Party (“IP”). In order to differentiate between them, I have adopted the acronym “TCC” to describe Mr Eyre, because that is used in the contemporaneous documents. Unhappily, in this case the IP is making fundamental criticisms of his predecessor’s conduct. , the claimant was dismissed for gross misconduct. In July 2013, the claimant’s conviction was quashed by the Court of Appeal and, at the subsequent retrial in 2014, he was acquitted of all charges.[3]The claimant had commenced an appeal against the TCC’s findings of misconduct before his retrial. Following his acquittal, in March 2014, the claimant’s grounds of appeal were perfected. The appeal was not opposed by the IP and, in April, the defendant tribunal reviewed the case, allowed the appeal, set aside the TCC’s decision, did not remit the matter to be decided again, and reinstated the claimant. However, a few days later, without any prior warning, a second set of misconduct proceedings, relating to exactly the same events, were commenced on behalf of the IP.[4]In August 2014, at the second misconduct hearing, the panel rejected the submission that it did not have jurisdiction to consider the misconduct charges. They were upheld. The claimant was again dismissed from the police. The claimant appealed against that decision but his appeal was refused by the defendant on 27 May 2015. He now applies for judicial review of that decision pursuant to the leave of McGowan J, dated 20 November 2015.[5]The principal issue between the parties arises out of the defendant’s decisions in April 2014 to allow the claimant’s appeal, and not to remit the misconduct proceedings for re-hearing. It is those decisions which are said to give rise to the res judicata.[6]I set out the relevant facts in Section 2 below. I summarise the law on res judicata in Section 3 below. I set out the issues in Section 4 below. I then deal, in Sections 5 and 6 respectively, with the arguments about the status and effect of the TCC’s decision of September 2012, and the defendant’s decisions of April 2014, dealing under each heading with the subsequent rulings on those matters of the Panel and the defendant. There is a short summary of my views as to the overall merits in Section 7 below and a similar short summary of my conclusions at Section 8 below. I am very grateful to both counsel for their helpful written and oral submissions. I repeat the assurance I gave the parties at the end of the hearing that the bulk of this judgment was prepared by the end of May, and apologise that any involvement in a lengthy commercial case has prevented its final completion until now.[2]THE RELEVANT FACTS[7]The claimant spent the evening of 23 July 2011 out with N, a female friend. They went back to her house. N said she did not feel well and went to bed. The claimant left the address but returned shortly afterwards in the early hours of 24 July. Thereafter there was no dispute that sexual activity, including anal intercourse, took place. The claimant said that it was all consensual; N said that it was not. The claimant was subsequently charged with sexual assault, attempted rape, and anal rape.[8]On 30 May 2012, at Derby Crown Court, the claimant was convicted of those three offences. He was sentenced to 8 years’ imprisonment.[9]The Police (Conduct) Regulations 2008 (“the Regulations”), govern the relevant misconduct proceedings. Part 4 (Regs 19-40) of the Regulations is concerned with ‘Misconduct Proceedings’ generally, whilst Part 5 (Regs 41-57) sets out the ‘Fast Track Procedure for Special Cases’. Pursuant to a notice sent and received after his conviction, the claimant was told that there would be a Special Case Hearing, pursuant to Regulation 43(2) (Part 5), at Nottingham Prison on Thursday 20 September 2012. The misconduct hearing would be chaired by the TCC.[10]In the notice, the particulars of misconduct were divided into two separate alleged breaches. The first breach concerned the alleged facts of what had happened at N’s house in the early hours of 24 July 2011. The second breach relied on the claimant’s convictions for the three offences.[11]The Special Case Hearing took place on the allotted day at Nottingham Prison. The solicitor presenting the case on behalf of the appropriate authority said that it was open to the TCC “to find or not find all or any part of the facts set out in that Notice as proven this afternoon”. In reply, the claimant’s representative told the TCC that:
“Trevor [the claimant] fully realises today that this Hearing is a formality and that having been found guilty at Court and convicted and been given a Prison sentence that there could be no other option available to the Force than to dismiss him, as I say, he has been found guilty of a serious criminal offence and he has received a custodial sentence. Trevor has always denied the allegations, he continues to do so, and he has registered an appeal which has been filed and that will take its course.”
[12]Notwithstanding the reference to the outstanding appeal, the TCC concluded that both breaches had been proved and dismissed the claimant from the police. On 24 September 2012, he provided written reasons. As to the first breach, he said:
“The compelling evidence from N’s interviews; the clear evidence from DS Gray and N that he had been asked to leave her house; the clear evidence from text communications that, having left, he regarded her as ‘harsh’ for asking him to leave; the physical evidence and admission of DS Gray’s subsequent forced entry to 17, Bailey Drive; the evidence of early complaint of non-consensual sexual activity by N; and the consistent corroborative evidence from J and S; collectively satisfied me that on balance of probabilities all of the above facts were without N’s consent. I therefore found this breach proven.”
The TCC then referred to the convictions at the Derby Crown Court and found that the second breach had also been proved. He went on to conclude that both breaches amounted to gross misconduct and he recorded the dismissal of the claimant with immediate effect, for each breach.[13]On 2 July 2013, the claimant’s appeal against his convictions was allowed by the Court of Appeal (Criminal Division). The convictions were quashed and he was ordered to be retried.[14]On 6 December 2013, prior to the retrial, the claimant sought to appeal the TCC’s findings of gross misconduct. The detailed Grounds of Appeal relied on the quashing of the claimant’s previous convictions, but other points were taken about the involvement and conduct of the TCC.[15]The Court of Appeal had quashed the claimant’s convictions because of the fresh evidence of M, a taxi driver who had collected the claimant from N’s house the morning after the alleged offences, and who recalled their intimate and affectionate parting. That evidence was also deployed at the claimant’s retrial at Birmingham Crown Court. On 3 February 2014, the claimant was acquitted on all counts.[16]The fact of the acquittal was then added to the claimant’s perfected Grounds of Appeal against the findings of misconduct. In response to those perfected Grounds, Mr David Ring, a senior solicitor with the East Midlands Police Legal Services (and acting for the IP), wrote to the defendant in late March 2014, in these terms:
“The Respondent accepts for the purposes of these proceedings only that, with the Court proceedings being concluded in the Appellant’s favour, the basis for his dismissal through the ‘fast track’ process has ceased to apply. Accordingly, the Respondent writes to indicate that, upon this limited basis, it does not resist the Appeal and invites the Tribunal Chair to determine the Appeal on the papers and formally reinstate the Appellant as a police officer.”
[17]The defendant ruled on the claimant’s appeal in two separate documents. The first was a Review, pursuant to Rule 11(2) of the Police Appeals Tribunal Rules 2012 (“the Rules”) by Ms Joanna Greenberg QC (as she then was), the chairman of the defendant, and dated 3 April 2014. Thereafter, on 9 April, the defendant made an order pursuant to section 85 of the Police Act 1996. This order was signed by Ms Greenberg and two other members of the defendant tribunal.[18]The relevant parts of the Review set out the background facts and concluded that, in ordinary circumstances, the claimant was entitled to have a hearing of his appeal. However, the Review went on:
“16. In the unusual circumstances that have arisen in this case, before making this Rule 11 decision, the other members of the Appeals Tribunal have been consulted. The conclusion reached is that the appeal against the finding of gross misconduct should be allowed under Rule 4(4)(b) [fresh evidence] and that it is unnecessary for there to be an oral hearing. There is no doubt, as recognised by the respondent, that the events subsequent to the Fast Track hearing make the allowing of the appeal the only decision to be made. There is clearly evidence which was not available or known about at the time of the hearing which, therefore, could not reasonably have been considered at the original hearing. There can be no doubt that it is evidence which could have materially affected the finding or decision on disciplinary actions. 17. In addition, given the acquittal and taking into account the view expressed by the respondent, this is not a case which should be remitted for a rehearing under Rule 2(2)(d) and Rule 22(2) of the Police Appeals Tribunals Rules 2012. 18. In making the decision that the appeal would be allowed, the Appeals Tribunals concluded that the appellant should be reinstated in the Nottinghamshire Police Force in the rank of Sargeant... 19. The appellant is invited to consider and consent to the appeal proceeding without an oral hearing and to inform the P and CC at the earliest opportunity of his decision. it must be in his best interests, as well as that of the Force, that this appeal is concluded as soon as possible.”
[19]The order of the defendant dated 9 April allowed the appeal against the finding of gross misconduct “on the ground that there is evidence that could not reasonably have been considered at the original hearing which could have materially affected the finding”. The order went on to say expressly:
“WE DO NOT remit the matter to be decided again under Rule 22(2) of the Police Appeals Tribunal Rules 2012.”
[20]Just two days later, on 11 April 2014, the appropriate authority, acting on behalf of the IP, issued a notice to the claimant pursuant to Regulation 21 of the Regulations notifying him of a fresh referral of misconduct proceedings. There was no prior warning that this was about to happen. Neither have I been provided with any evidence or any explanation as to why the IP had made no reference to this, even as a possibility, in its earlier communications with the claimant and the defendant tribunal.[21]The allegations of misconduct were precisely the same as those which had formed the first breach in the original notice (paragraph 10 above), and therefore precisely the same as those which had been rejected by a jury just two months earlier by the Crown Court in Birmingham. Again, there is no evidence before me as to why, despite the claimant’s acquittal, the IP was keen to pursue him for what would become the fourth occasion on which these allegations would be ventilated (twice in criminal proceedings and now twice in misconduct proceedings).[22]The hearing of this second set of misconduct proceedings took place before a Panel appointed pursuant to the Regulations between 18 and 22 August 2014. Early in that hearing, the Panel gave an oral ruling on the submissions advanced at the outset on behalf of the claimant relating to res judicata. The note of the ex tempore ruling of the Panel states:
“The Panel has given consideration into the matter of whether or not the fast track hearing of 20 September 2012 was a final decision on the merits of the case…however, in relation to this point, the Panel accepts legal advice that it is not necessary for us at this time to form a judgment on that particular point. This is because it is in our judgment that the finding of the PAT tribunal of 3 April 2014 supersedes that consideration. The Panel accepts our legal advice that no subsisting determination on the merits on the issues in this case was made by the PAT tribunal on that occasion, which means that at this time now there is no subsisting determination on the merits on the facts in this case. We have also considered the relevance of the fact that the PAT did not remit the matter to be decided by a fresh disciplinary panel. We consider that this is not directly relevant as the institution of police disciplinary proceeding is a matter solely for the appropriate authority. For these reasons, the Panel’s decision is that res judicata does not apply and, on two points. The decision of the PAT in rescinding the first decision means that it no longer subsists and the PAT did not then itself make final decisions on the merits of the case.”
[23]The Panel then went on to consider the evidence. Gross misconduct was found to have been proved and the claimant was once again dismissed without notice.[24]The claimant appealed the Panel’s ruling, and the findings of misconduct, to the defendant. There was an oral hearing at which the status and effect of the defendant’s own rulings of April 2014 (paragraphs 17-19 above) was one of the principal topics. In a subsequent written ruling, prepared by Mr Mukhtar Hussain QC and dated 27 May 2015, the defendant dismissed the appeal. That is the decision which is the subject of this judicial review application.[25]The relevant parts of the defendant’s decision of 27 May 2015 were as follows:
“26. On the evidence before us, we are satisfied that the Panel did not take into account any irrelevant matter nor failed to take into account all relevant matters when reaching their decision. We agree with the Panel and reject the appellant’s submission that the issues raised before them had already been considered on merit and a final decision reached. Whilst we have reservations as to the decision of the TCC [of September 2014] being unlawful, we accept the submissions made on behalf of the Respondent and are satisfied that his decision on this issue was clearly without jurisdiction. It is clear that Part 5 procedure did not apply. The appellant was denying the charge and there was clear dispute as to the facts that could only be resolved after hearing witnesses which could only be done under Part 4 procedure. Furthermore we are also satisfied that there had been no final decision on merit on this issue. The Special Case Hearing was held in prison…the hearing itself lasted a very short time. We therefore consider that there has been no final decision on merits on this issue…”
[3]THE LAW ON RES JUDICATA[26]I summarise the law relating to res judicata by reference to the particular principles noted below.[27]Finality is fundamental to the rule of law. Legal certainty means the element of security that results from legal decisions becoming final and legal rules coming into force. Legal certainty is important because it smoothes the way for social and commercial interaction: see paragraphs 20 and 22 of the judgment of Arden LJ in JSC Aeroflot-Russian Airlines v Berezovsky and Another [2014] EWCA Civ. 20.[28]The six constituents of cause of action estoppel are set out in paragraph 34 of the judgment of Lord Clarke in R(on the application of Coke-Wallis) v Institute of Chartered Accountants [2011] UKSC 1. They are:(i) The decision, whether domestic or foreign, was judicial in the relevant sense;(ii) It was in fact pronounced;(iii) The tribunal had jurisdiction over the parties and the subject matter;(iv) The decision was – (a) final; (b) on the merits;(v) It determined a question raised in the later litigation; and(vi) The parties are the same or their privies, or the earlier decision was in rem.[29]These constituents apply to the findings of tribunals in disciplinary proceedings, such as the defendant in the present case: see paragraph 29 of Coke-Wallis. In that case, the first set of disciplinary proceedings had relied on an existing criminal conviction, but the misconduct complaint was dismissed by the tribunal because the conviction was in a foreign jurisdiction and was therefore not caught by the relevant regulations. A second complaint, which relied on the same facts giving rise to that conviction, but not the conviction itself, was upheld by the tribunal, but the Supreme Court concluded that this second decision was caught by the principle of res judicata and it was quashed.[30]It is important to note that, in order for the first decision to be classified as a decision “on the merits”, it does not require there to be an express consideration by the court or tribunal of each of the issues raised. Thus, in Workington Harbour and Dock Board v Trade Indemnity Co Ltd (No. 2) [1938] 2 All ER 101, the plaintiff employer made a claim on a bond following alleged defaults on the part of the defendant contractor. In the first proceedings, the employer relied on an engineer’s certificate which identified and quantified each of the contractor’s defaults. This was because, pursuant to the contract, that certificate was final and binding. However, the first proceedings were dismissed on the basis that the engineer’s certificate was defective and could not therefore be relied on. The second set of proceedings relied on precisely the same set of alleged breaches on the part of the contractor, but this time without relying on the defective certificate. The second set of proceedings was dismissed on the grounds of res judicata because the same underlying issues arose in each case, even though the first action had failed because of the (entirely separate) problems with the certificate.[31]Mr Beggs QC, on behalf of the IP, suggested that Workington Harbour was some way removed from the sort of disciplinary tribunal case with which this court is concerned. I disagree; not only are the principles of general application, and not only is the leading judgment given by Lord Atkin, but I also note that express reference to and reliance upon Workington Harbour was made by Lord Dyson in his short judgment in Coke-Wallis, a case with many close similarities to this one. In particular Lord Dyson said:
“64. In the present case, the first complaint alleged a breach of bye-law 4(1)(a), namely that the appellant had committed an act or default likely to bring discredit on himself, the Institute or the profession of accountancy by failing to comply with the direction issued on 18 December 2002. The Institute sought to prove this breach by relying on the conviction of 16 September 2003. The second complaint alleged the same breach of the same bye-law, but this time the Institute sought to prove the breach without recourse to the conviction. The first and second complaints were closely analogous to the first and second actions in the Workington case. The plaintiff in that case and the Institute in the present case both sought to prove on the second occasion by different means what they had failed to prove on the first. The Institute's two complaints were the same, just as both proceedings issued by the plaintiff in Workington were in respect of the same cause of action. The principle of res judicata is a bar to the second complaint as it was a bar to the second action in Workington.”
[32]For completeness, I should note that the fact that the criminal proceedings resulted in an acquittal in the present case does not of itself give rise to res judicata: see R (Redgrave) v Commissioner of Police of the Metropolis [2003] EWCA Civ. 4. Neither does the fact of an acquittal in the criminal courts make the subsequent pursuit of disciplinary proceedings inherently unfair, although in certain circumstances it may do so: see Ashraf v General Dental Council [2014] EWHC 2618 (Admin).[4]THE ISSUES[33]The principal issue between the parties concerns the defendant’s Review and order of April 2014 and, in particular, whether the decisions to allow the appeal and not to remit the matter to be decided again, gave rise to res judicata, thus rendering the second set of disciplinary proceedings a nullity.Although both sides also made written submissions about the TCC’s decision in September 2012, Mr Crossley accepted (on behalf of the claimant) that, other than by way of background, it was irrelevant to his case. But it was an integral part of the IP’s case before me that his predecessor’s decision was not final and not a decision on the merits; more importantly, the IP also argued that the decision was, at least in part, unlawful and a nullity. As I understood it, these submissions were made to assist the IP’s case that, for that reason alone, the defendant’s decision of 9 April 2014 was itself a nullity.[34]In those circumstances, I deal first with the TCC’s decision of September 2012 before going on to deal with the defendant’s decision of April 2014. In each case, I consider the underlying position and then consider what the defendant said about those issues in the decision of 27 May 2015 (paragraphs 24 and 25 above).[5]THE TCC’S DECISION OF SEPTEMBER 2012 5.1. The Relevant Regulations[35]The relevant parts of the Regulations are as follows: (a) Regulation 3(2)(c) defined “special conditions” as being where:
“(i) there is sufficient evidence in the form of written statements, or other documents, without the need for further evidence, whether written or oral, to establish on the balance of probabilities that the conduct of the officer concerned constitutes gross misconduct; and (ii) it is in the public interest for the officer concerned to cease to be a police officer without delay.” (b) The Regulations envisage an initial investigation and a subsequent report of that investigation. Pursuant to Regulation 18(3): “If at any time during his investigation the investigator believes that the appropriate authority would, on consideration of the matter, be likely to determine that the special conditions are satisfied, he shall, whether or not the investigation is complete, submit to the appropriate authority – (a) a statement of his belief and the grounds for it; and (b) a written report on his investigation on that point.”
It is this provision which, if satisfied, would trigger a ‘fast track’ procedure under Part 5. (c) As noted above, Part 4, entitled ‘Misconduct Proceedings’ applies where the special conditions are not satisfied. Regulations 19-40 set out the detailed Regulations governing such misconduct proceedings. (d) Part 5 (Regulation 41-57) deals with the fast track procedure for special cases, where the special conditions are satisfied. These Regulations include:
“Referral of case to special case hearing 41.—(1) On receipt of a statement submitted by the investigator under regulation 18(3), the appropriate authority shall determine whether the special conditions are satisfied. (2) In a case where special case proceedings have been delayed by virtue of regulation 9(3), as soon as practicable after the appropriate authority considers that such proceedings would no longer prejudice any criminal proceedings, it shall make a further determination as to whether the special conditions are satisfied. (3) In a case where disciplinary proceedings have been delayed by virtue of regulation 9(3), the appropriate authority may, as soon as practicable after it considers that such proceedings would no longer prejudice any criminal proceedings, determine whether the special conditions are satisfied. (4) Where the appropriate authority determines that the special conditions are satisfied, unless it considers that the circumstances are such as to make it inappropriate to do so, it shall certify the case as a special case and, subject to regulation 9(3) and paragraph (2), refer it to a special case hearing. Remission of case 42.—(1) Subject to paragraph (4), at any time after the case has been referred to a special case hearing but before the beginning of that hearing the appropriate authority may direct that the case be dealt with under Part 4 if it considers that the special conditions are no longer satisfied… Notice of referral to special case hearing 43.—(1) Where a case is certified as a special case and referred to a special case hearing, the appropriate authority shall as soon as practicable give the officer concerned written notice of these matters and shall supply him with a copy of— (a) the certificate issued under regulation 41(4); (b) any statement he may have made to the investigator during the course of the investigation; and (c) subject to the harm test— (i) the investigator’s report or such parts of that report as relate to him (together with any document attached to or referred to in that report as relates to him); and (ii) any other relevant document gathered during the course of the investigation. 54.—(1) Subject to these Regulations, the person conducting or chairing the special case hearing shall determine the procedure. (2) The special case hearing shall not proceed unless the officer concerned has been notified of the effect of regulation 7(1) to (3) in relation to a special case hearing. (3) Subject to paragraph (4), the person conducting or chairing the special case hearing may from time to time adjourn the hearing if it appears to him to be necessary or expedient to do so. (4) The special case hearing shall not, except in exceptional circumstances, be adjourned solely to allow the complainant or any interested person to attend. (5) No witnesses other than the officer concerned shall give evidence at the special case hearing. … (13) The person or persons conducting the special case hearing shall review the facts of the case and decide whether or not the conduct of the officer concerned amounts to gross misconduct. (14) The person or persons conducting the special case hearing shall not find that the conduct of the officer concerned amounts to gross misconduct unless— (a) he is or they are satisfied on the balance of probabilities that this is the case; or (b) the officer concerned admits it is the case.”
Remission of case Notice of referral to special case hearing (a) the certificate issued under regulation 41(4); (b) any statement he may have made to the investigator during the course of the investigation; and (c) subject to the harm test— (i) the investigator’s report or such parts of that report as relate to him (together with any document attached to or referred to in that report as relates to him); and (ii) any other relevant document gathered during the course of the investigation. (a) he is or they are satisfied on the balance of probabilities that this is the case; or (b) the officer concerned admits it is the case.”

Notice of referral to special case hearing

[36]As noted in paragraphs 9-12 above, the TCC complied with these Regulations and initiated the fast track procedure. Notice was served and a hearing conducted in accordance with that procedure. Findings were made as set out in paragraph 12 above. 5.2. Was The TCC’s Decision Final and/or on the Merits?[37]Because of the way in which the arguments developed at the hearing, it is probably unnecessary for me to answer this question. But for completeness I hold that the TCC’s decision was a final decision, subject to any appeal (which was what subsequently happened). It was also plainly a decision on the merits because it dealt with both the first breach (the conduct underlying the rape allegations), and the second breach, (the convictions for those offences).[38]Moreover, it was not an accident that the first breach (the underlying conduct) was dealt with in the first set of disciplinary proceedings. It was an integral part of the notice. Moreover, the solicitor acting for the appropriate authority expressly told the TCC that it was open to him to reach findings as to the underlying conduct: see paragraph 11 above. 5.3. Was The TCC’s Decision Unlawful And A Nullity?[39]On behalf of the IP, Mr Beggs submitted that, insofar as the decision of September 2012 related to the convictions (the second breach), it was a lawful decision. However, he maintained that, to the extent that it purported to deal with the conduct underlying those convictions, the decision was unlawful and therefore a nullity. He advanced that argument in order to be able to submit that the consequential decision of the defendant of 9 April 2014 was also a nullity, because it was dealing with a decision that was, at least in part, itself unlawful.[40]Mr Beggs said that it was simply not open to the TCC to reach findings of fact in a case where the defence to the allegations concerned the alleged consent of N. In support of that submission he relied on the decision of HHJ Pelling QC in R (on the application of Peter Gannon) v The Chief Constable of Merseyside Police and Another [2009] EWHC 2133 (Admin). In that case

the judge said about the fast track proceedings under Part 5:

“12. It is plainly necessary that a disciplinary hearing should be fair not least because of the potentially grave consequences of such proceedings for someone in the position of the Claimant. Fairness requires that there be a hearing at which an accused officer has the opportunity to question the witnesses against him where he disputes the factual allegations made by those witnesses. However a Part 4 hearing is by its nature time consuming and expensive. Unnecessary delay in the disposal of proceedings against officers accused of gross misconduct is not in the public interest. The 2008 Regulations attempt to balance the need for fairness so far as the accused officer is concerned with the public interest in speedy disposal. The Fast Track procedure was created in order to provide a cheaper and quicker alternative where fairness could be achieved without the need for a Part 4 hearing. Where the material facts alleged to constitute gross misconduct are either admitted or are incapable of realistic dispute, then the focus of any hearing should be on whether the facts alleged or incapable of realistic dispute amount to gross misconduct and on any mitigation. It is only in relation to a case where there is no or no realistic dispute as to the facts alleged and/or there is no or no realistic dispute as to any factual evidence relevant to whether the factual allegations constitute gross misconduct that the Part 5 procedure will be fair. … 17. However, it is necessary to emphasise that aside from cases where the factual allegations are or the relevant evidence is admitted or not denied, the only circumstance when it will be appropriate to proceed under the Fast Track procedure is where the challenge to the factual allegations or evidence can properly be characterised as unrealistic. A challenge is not likely to be unrealistic in this sense where there is a conflict between witnesses concerning the critical factual allegations made against the officer. This is so because the person deciding the Regulation 42(1) application cannot rationally decide to prefer one witness's evidence over that of another without hearing the evidence of each witness and thus there is by definition insufficient evidence to establish on the balance of probabilities the factual allegation concerned. The only exceptions to this principle that are likely to arise in practice are either where the officer's challenge is inherently incredible or where there is compelling evidence that is inconsistent with the officer's challenge and which itself is incapable of credible challenge. Cases falling within the first of these categories are likely to be rare. Cases falling within the second category are likely to arise more frequently. CCTV film is a potential example of such evidence. Contemporary documentation is another.”
These comments were subsequently approved by Burnett J (as he then was) in R (on the application of Evans) v Chief Constable of Sussex [2011] EWHC 2329 (Admin).[41]I do not accept the IP’s submission about his predecessor’s conduct for three different reasons.[42]First, I do not accept that a decision of this kind can be partly lawful and partly unlawful. No authority was provided in support of that proposition.[43]Secondly, I am troubled that a process conducted by the IP’s predecessor all the way through to a final hearing, with a subsequent Review and order by the defendant in April 2014 which were based on the underlying assumption that the TCC’s decision was lawful, should now be said, years later, to be in some way unlawful or a nullity. I am even more concerned that the argument is being advanced by the IP, whose office the TCC was filling at the relevant time. The police disciplinary process should not be taken so lightly that a Chief Constable can ask the court to nullify his predecessor’s actions, to the detriment of a party (in this case the claimant) who participated in the process in good faith throughout. Were it necessary to do so, and if (contrary to my view) the point about the TCC’s decision actually mattered, I would conclude that the IP is now estopped from running this argument.[44]Thirdly, whilst I accept that other Chief Constables might well have come to a different view about the application of Part 5 to this case, I do not accept the IP’s submission that his predecessor acted unlawfully in operating the fast track procedure in this case.[45]In my view, Mr Crossley is right to say that each case must turn on its own facts. Here, the facts could not be said to make the fast track procedure inapplicable in law. As HHJ Pelling QC pointed out, the fast track procedure will be appropriate where there is “compelling evidence that is inconsistent with the officer’s challenge”. That is obviously the conclusion that the TCC came to because he expressly referred to “the compelling evidence” against the claimant. It is not appropriate now for me to come to a different view. 5.4. Summary of My Views[46]Accordingly, I do not accept that the TCC’s decision was partially lawful. I do not accept the IP’s submission that his predecessor acted unlawfully four years ago. I consider that, in all the circumstances, it was not unreasonable for the TCC to conclude that this was a case which fell within one of the exceptions identified in Gannon. Thus, I find that the decision of the TCC was final and binding (unless, as it was, it was the subject of an appeal). 5.5. What The Panel Said[47]The Panel did not address this point, because they considered that it had been superseded by the defendant’s decision of April 2014 (paragraph 22 above). I respectfully agree with that conclusion (even if the Panel’s reasoning is rather unclear). More importantly, I consider that, to the extent that the Panel was indicating that this issue was irrelevant to the central issue of res judicata in this case, they were right to do so. What matters is the defendant’s decision of April 2014, not the earlier decision of the TCC. 5.6. What The Defendant Said[48]The defendant did address this issue (paragraph 25 above). The defendant did not accept the submission that the decision of the TCC was unlawful. For the reason that I have already given, I agree with that. In one sense, that is the end of this point.[49]However, I note for completeness that the defendant said that the decision was made “without jurisdiction”. This was not a submission that had been advanced on behalf of the IP and it is not advanced now. It is difficult to know how or why the defendant took upon itself to reach a finding on a point that was not argued. To the extent that the defendant considered that the Part 5 procedure did not apply, I have already set out my reasons above as to why I consider that to be wrong.[50]The other reasons put forward by the defendant in support of its conclusion about a lack of jurisdiction are untenable. The fact that the hearing took place in prison; the fact that the claimant had a police representative; and the fact that the hearing was of short duration: these are all completely irrelevant to the validity or otherwise of the decision of the TCC. They are all merely features of the fast track procedure. To be fair to Mr Beggs, he did not for a moment seek to support any of those findings, or that part of the defendant’s decision of 27 May 2015.[51]Accordingly, I consider that the defendant’s finding that the decision was not unlawful was correct, and since that is not challenged in these proceedings, it is binding. Of completeness, I should say that the finding that the TCC did not have jurisdiction (and the reasons given for that finding), was irrational. Having accepted that it could not say that the decision was unlawful (which it was right to do), it was wrong to raise the question of jurisdiction (which had not been argued), and to rely on such immaterial points as duration and location of the hearing to support its conclusion. 5.7. Why Does Any Of This Matter?[52]As I have already noted, in my view, none of this goes to the heart of the claimant’s application, because the decision of the TCC was and is ultimately irrelevant to his res judicata argument. As for the IP, to the extent that he sought to argue that the decision of the defendant in April 2014 was a nullity, because the original decision in the fast track proceedings was itself (at least in part) a nullity, I reject that submission for the reasons noted above.[53]Furthermore, even if I had found that the decision of the TCC was, at least in part, unlawful, that does not seem to me to have any effect on the decisions of the defendant of April 2014, particularly in circumstances where the IP accepts that the decision of the TCC was, at least in part, entirely lawful. Thus, even if I am wrong, and the TCC’s decision was, at least in part, unlawful, that does not alter my view that what matters for present purposes is the nature, scope and effect of the defendant’s decisions of April 2014.[6]THE DEFENDANT’S DECISIONS OF APRIL 2014 6.1. The Power To Remit[54]Although the Rules have been superseded by Rules dated 2012, for present purposes, there is no material difference between them. The 2008 Rules which are relevant for the present dispute are as follows: (a) Rule 4 is concerned with circumstances in which a police officer may appeal to a tribunal. Rule 4(4) provides as follows:
“(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… (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… (b) Rule 11 is concerned with the review of an appeal. The relevant parts provide as follows: “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.” (a) the appeal has no real prospect of success; and (b) there is no other compelling reason why the appeal should proceed. (c) Rule 22 is in the following terms: “(1) The tribunal shall determine whether the ground or grounds of appeal on which the appellant relies have been made out. (2) Where the tribunal determines that a ground of appeal under rule 4(4)(b) or (c) or rule 5(6)(b) or (c) has been made out, the tribunal may set aside the relevant decision and remit the matter to be decided again in accordance with the relevant provisions of the Conduct Regulations or the Performance Regulations (as the case may be). (3) Where the tribunal remits the matter under paragraph (2) and the relevant decision was the decision of a panel (“the original panel”), the matter shall be decided by a fresh panel which is constituted in accordance with the relevant provisions of the Conduct Regulations or the Performance Regulations (as the case may be) but does not contain any of the members of the original panel. (4) The determination of the tribunal shall be based on a simple majority but shall not indicate whether it was taken unanimously or by a majority. (5) The chair shall prepare a written statement of the tribunal's determination of the appeal and of the reasons for the decision.”
[55]Accordingly, Rule 22(2) provides that where, as here, the tribunal determines that a ground of appeal under Rule 4(4)(b) (fresh evidence) has been made out, the tribunal may set the decision aside and remit the matter to be decided again in accordance with “the relevant provisions of the Conduct Regulations”. On any sensible construction of those words, the ‘relevant Regulations’ there referred to must encompass those in either Part 4 or Part 5 of the Regulations. There is no restriction or limitation in the Rule as to the power to remit.[56]Mr Beggs suggested that, because the original disciplinary hearing had been under the Part 5 fast track procedure, it was not open to or possible for the defendant to remit the case to be considered under the ordinary procedure set out in Part 4. He said there was no part of the Regulations or the Rules which allowed such remission. As already noted, that argument seems to me to be contrary to the wide words of Rule 22(2).[57]Furthermore, I accept Mr Crossley’s alternative argument that, even if the remission in the present case could only have been made by reference to the Part 5 fast track procedure in the first instance, it would then have been appropriate, pursuant to Regulation 42(1), to direct that the case should be dealt with under the ordinary misconduct procedure in Part 4. Since that direction would have been made “before the hearing” of the remitted proceedings, Regulation 42(1) would have applied.[58]Accordingly, I am satisfied that it was open to the defendant, had it wished to do so, to remit these proceedings for disposal under Part 4. I consider that this could have been done directly pursuant to Rule 22(2), or indirectly, by way of Regulation 42(1). I therefore reject the IP’s submission that there was no power to remit this case under the Rules or Regulations.[59]Finally on this topic, I am bound to note that, if Mr Beggs had been right, and there was no power to remit this case from the Part 5 to the Part 4 procedure, then the passages in the Review (paragraph 18 above) and the part of the order that expressly said there would be no remission (paragraph 19 above), were entirely redundant. That is because, by then, no-one would have considered that Part 5 remained applicable. The remitted referral could only have proceeded under Part 4. Given the careful wording used, and the knowledge and experience of the author, I am unable to accept that the passages in her Review and the relevant part of the order were redundant or based on any misunderstanding of the law or the facts. 6.2. Was The Decision Final And/Or On The Merits? (a) Final?[60]I am in no doubt that the defendant’s decision of 9 April 2014 was a final decision. Mr Beggs accepted that it was final, although he said that this was only to the extent that it related to the fast track procedure. He maintained that it was not, and was not intended to be, final in respect of any subsequent procedure under Part 4. His argument was that the fast track procedure in Part 5 was intended to deal with particular cases where police officers were convicted of serious crimes and it was necessary for them to be dismissed as soon as possible, to avoid an unnecessary burden on the public purse. He argued that the mere fact that, in this case, the fast track proceedings were resolved by the defendant’s order did not affect any future proceedings under Part 4.[61]For the reasons already noted in paragraphs 55-59 above, I do not accept that submission. Further, as I put to Mr Beggs during the course of argument, his proposition was akin to saying that, if a claimant has a claim in the County Court which is allocated to the fast track, and that claim is dismissed, it is open to the claimant subsequently to commence the same claim in the High Court, or even in the multi-track in the County Court. I consider that to be plainly wrong. What matters is not the process which is adopted to deal with the complaint, but whether or not the process gave rise to a final and binding decision.[62]It is clear that Parts 4 and 5 are alternative procedures. They are not cumulative. As noted in the Regulations (particularly Reg 42(1)), it is possible to go from the fast track procedure (Part 5) to the ordinary disciplinary process (Part 4), just as it is possible in the High Court to move between CPR Part 8 and CPR Part 7, or in the County Court between the multi-track and the fast track. But once there is a final decision, whatever the process, that is – or should be – the end of the matter.[63]Another way of approaching the same issue is to ask: Was there anything about the defendant’s order of 9 April 2014, or the Review on which it was based, which left open the possibility that, despite the setting aside of the Part 5 decision, and the decision not to remit, there might be a fresh set of Part 4 proceedings (based on precisely the same events) just around the corner? In my view, there is no part of either the Review or the order itself which suggested the possibility that, once the appeal had been allowed and the decision had been taken not to remit the matter for a further hearing, there would be a further round of disciplinary proceedings under Part 4.[64]Although in this context Mr Beggs relied on the letter from Mr Ring (paragraph 16 above), which itself was referred to in the Review at paragraph 17, I do not consider that it helps him. It is true that Mr Ring properly pointed out what he described as the ‘limited basis’ of the Part 5 process. But nowhere does he purport to reserve his rights to bring proceedings under Part 4 in the future. Nowhere does he say that this was even a possibility. I consider that the absence of such a reservation of position is not a mere technicality; it confirms the ordinary impression created by the documents as a whole that the order of 9 April 2014 was regarded as the end of the disciplinary process. It was a final decision. (b) On The Merits?[65]After careful consideration of the material, I have concluded that the decision of 9 April 2014, based as it was upon the Review of 3 April, was a final decision on the merits for the purposes of the application of the res judicata principle. There are three reasons for that conclusion.[66]First, it is plain that the claimant’s acquittal in the Crown Court was an important element of the Review: paragraph 17 makes that clear. It is a fair inference from that Review that, absent any indication to the contrary from the IP, the defendant thought that this was the end of the matter. The disciplinary proceedings were based on an alleged anal rape and two other serious sexual offences. The claimant had been acquitted of all those offences. What else was there to form the basis of a further set of misconduct proceedings?[67]Secondly, it is clear that the Review went beyond the mere fact of the acquittal, to look at the underlying merits. Paragraph 16 talked about “evidence which was not available or known about at the time of the hearing” and said that that evidence “could have materially affected the finding or decision on disciplinary action”. That was a reference to the evidence of M. That was therefore going beyond the simple question of the convictions, and dealing with the merits of the allegations themselves.[68]The reference to the evidence ‘affecting the finding or decision on the disciplinary action’ suggests that the Review had concluded that, if this evidence had been made available before, disciplinary action may never have been taken in the first place and that, even if it had, the finding of misconduct may not have been made. That is again a consideration of the merits of the case.[69]Thirdly, the order of 9 April 2014 stated that the defendant did not remit the matter to be decided again. In other words, no further decision on the merits was envisaged or required by the defendant because this was the end of the process. It would not be decided again.

(c) Summary of My Views

[70]Accordingly, I consider that, as at 9 April 2014, it was a reasonable and common sense inference that, as far as both the claimant and the defendant were concerned, that was the end of the disciplinary proceedings (under whichever track) against the claimant. This was because there had been a final and binding decision on the merits. Even if that was not the IP’s view at the time (and there is no evidence about that either way) the IP had not expressed that view in any document available to either the claimant or the defendant, and had not attempted to reserve his position on that issue.[71]In my view, the authorities noted above make plain that the decisions of the defendant in April 2014 were final and binding. They were akin to the rejection of the first claim in Workington and the rejection of the first disciplinary claim in Coke-Wallis. Thus the second set of disciplinary proceedings against the claimant was a reflection of the same complaint which had already been decided by the defendant. The principle of res judicata was a bar to the second complaint, just as it was a bar to the second claim in Workington and the second complaint in Coke-Wallis. Paragraph 64 of the judgment of Lord Dyson in the latter case (set out at paragraph 31 above) is directly applicable here. 6.3. What The Panel Said[72]The Panel said that, although they had considered the relevance of the fact that the defendant did not remit the matter, they concluded that that was not directly relevant because the institution of police disciplinary proceedings was a matter solely for the appropriate authority.[73]In my view, Mr Crossley was right to say that this finding ignores completely the final and binding nature of the defendant’s order of 9 April 2014. That order was binding on both the claimant and the IP. Although the IP was, for this purpose, an independent prosecuting authority, it was not open to the IP to ignore the order and commence fresh proceedings, just as it is not open to the CPS to ignore the quashing of a defendant’s conviction and to commence fresh proceedings when the Court of Appeal has not indicated that such a course is appropriate.[74]The Panel’s decision did not address anywhere the point that the defendant’s order of 9 April 2014 was final and binding. The decision was therefore fundamentally flawed. 6.4. What The Defendant Said[75]It is agreed by the parties that the defendant was addressed on this critical issue in the written and oral submissions at the hearing in 2015. However, the written decision of 27 May 2015 does not refer to it at all. That would appear to be a complete abdication of responsibility. It was clearly the central issue in respect of the res judicata argument, and the failure to address it was inexplicable. Mr Beggs, in his realistic and pragmatic submissions, did not argue to the contrary.[76]Thus, the decision which I am asked to consider does not address the critical issue raised by the claimant. On that ground alone, the application for judicial review must succeed.[7]THE MERITS[77]On one view, it could be said that my conclusions thus far put this case in the same unsatisfactory category as Coke-Wallis, where Lord Collins expressed his frustration that a procedural error by the disciplinary tribunal first time round meant that a convicted criminal could still be a chartered accountant. I have obviously been concerned that the potential effect of my decision is that a man found by the Panel to have raped N is still able to be a police officer.[78]I have not been addressed on the underlying merits because they are not directly relevant to the issues before me. I have also noted that, as a matter of principle, the mere fact that a person is acquitted in the Crown Court does not of itself prevent the institution of disciplinary proceedings.[79]But I would make two points which, in my view, provide a stark contrast with Coke-Wallis. First, the disciplinary proceedings had been started at a time when the claimant was convicted of these serious offences. There was a direct link between the two. The claimant was, however, subsequently acquitted, which might suggest (given the link) that there was thereafter nothing left for the disciplinary proceedings to bite on. In any event, unlike in Coke-Wallis, the claimant is not a convicted criminal; he has instead been acquitted of any criminal charge. Lord Collins’ concern therefore does not arise here.[80]Secondly, I have been critical of both the Panel’s decision of August 2014 and the defendant’s decision of May 2015. Sadly, I regard them both as being well below the standard I would have expected in such important disciplinary proceedings. I regret that, having read through the analysis of the evidence and the decision-making process of both tribunals, I am not satisfied that the errors which they made were confined to those issues directly relevant to the submissions before this court. I would be unhappy if, all other issues aside, the claimant’s dismissal from the police was justified on the basis of either of the sub-standard decisions of the Panel in August 2014 or the defendant in May 2015.[81]I would also wish to make a procedural suggestion. At the outset of the second set of disciplinary proceedings, the claimant took the res judicata point fair and square. That issue should therefore have been considered by the Panel, on its own, well in advance of any hearing on the facts. It was a clear preliminary issue. A procedure should have been put in place for this issue to be dealt with first. It was inappropriate for it to be dealt with simply as part of the overall hearing. That has caused delay and has created a situation in which this court is being asked to address an issue of principle after serious findings of fact had been made by the Panel at a full hearing which, on my analysis, should never have been embarked upon. A more modern approach to case management was, and is, required.[8]CONCLUSIONS[82]For all those reasons, I quash the decision of the defendant dated 27 May 2015. Subject to any argument when this Judgment is handed down, I would propose to grant the claimant the relief sought.