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Court highlights legislative lacuna which meant that a Police Appeals Tribunal (PAT) had no power to remit the case or re-determine the issue, leaving them with no other option but to reinstate the officer.
There had been a number of complaints about PC McLean of inappropriate sexual conduct towards a number of his female colleagues over a period of approximately eight years. It was alleged that his behaviour amounted to gross misconduct, although the notice of referral did not name any individual complainants. PC McLean disputed the allegation and the matter was to go to a hearing. The Chief Constable of Hampshire (CC) stated that he did not intend to call any witnesses, a decision challenged by Counsel for PC McLean who stated in a fax that ‘all proposed witnesses remain contentious and as such will be required to give live evidence’.
The Chairman of the hearing panel upheld the decision of the CC, pursuant to reg.23 (3) of the Police (Conduct) Regulations 2008 which states that:
‘(3) No witness shall give evidence at misconduct proceedings unless the person conducting or chairing those proceedings reasonably believes that it is necessary for the witness to do so in the interests of justice….’
In his response he quoted from section 2.160 of the Home Office guidance issued under the Police Act 1996 s.87(1), that ‘generally speaking misconduct meetings and hearings will be conducted without witnesses’.
On the first day of the hearing, the Chairman directed that only two officers should give oral evidence but that no other witnesses were required. The panel found PC McLean guilty of gross misconduct and dismissed him.
The matter went before the PAT; they concluded that the decision to refuse to have certain live witnesses called was unreasonable and resulted in unfairness which could have materially affected the finding and the outcome. The CC challenged the PAT’s decision on a number of grounds which resulted in the Court considering a number of issues.
It was held that:
a) Contrary to what is cited in the introduction, the Home Office guidance is not statutory guidance; the Secretary of State is entitled to issue guidance about anything of her choosing but it will only have statutory force if authorised by legislation. In any event, the guidance was almost identical to the wording of the binding requirements of reg. 22 and 23. of the 2008 Regulations.
b) The drafting of reg. 23(3) is ‘clumsy but, on analysis, clear’. The starting point is that witnesses, other than the officer concerned, shall not give evidence at a misconduct meeting or hearing unless the Chairman decides to the contrary. The only ground upon which that decision can be made is that it is necessary for the witness to do so in the interests of justice. It was held that this was not an exercise of discretion but of judgement. The reference to ‘reasonable belief’ serves to emphasise that the decision contains a substantial objective element, is not just dependent upon the opinion of the decision maker and that there is some room for a reasonable difference of belief. It was held that ‘provided that the belief is one which could reasonably be held by a reasonable decision-maker, it will not be open to effective challenge on appeal to the Police Appeals Tribunal’. Given that the regulation does not further define the circumstances in which the interest of justice would indicate attendance of witnesses, the decision maker must look to case law. Mitting J adopted the words of Toulson J in Dr.SS v Knowsley NHS PCT  EWHC 26 (Admin):
‘Where there is an important point of primary fact on which there is a dispute between the witness and the doctor, and the point turns vitally on the word of one against the other it [is] hard to see how it would not add materially to the decision making process for the panel to hear and see the witness at first hand’.
He went on to say that ‘in a case such as this, in which critical incidents were witnessed by only two people…and there was a possibility of misunderstanding or exaggeration, the interests of justice will ordinarily require that both witnesses to the event are heard’. It was further noted, with analogous reference to Bonhoeffer v General Medical Council  EWHC 1585 (Admin), that the seriousness of the consequences for the officer concerned was relevant. It would be unlikely, it was said, that where dismissal of the officer is a consequence, that it would not be in the interest of justice to hear from the complainant. One exception that was noted was where evidence was cogently supported by unchallengeable evidence, for example CCTV footage or voluntary admissions.
c) The appropriate test for an appeal to the PAT under rule 4(4) of the Police Appeals Tribunal Rules 2008 (PATR) in such a case is for the Tribunal to decide for itself whether the Conduct Regulations were breached and, if not, whether there was other unfairness with could have materially affected the finding or sanction. It was held that ‘It is not their judgement of what the interests of justice required, but their judgement of the reasonableness or otherwise of the chairman’s decision as to what the interests of justice required, which is determinative’.
d) Where a tribunal decides that a finding or sanction was unreasonable, section 85(2) of the Police Act 1996 allows it to exercise the same power as that vested in the disciplinary panel and quash the findings or reduce the sanction. However, where the appeal is under rule 4(4)(b) (that there is ‘evidence that could not have reasonably …been considered at the original hearing which could have materially affected the finding or decision on disciplinary action’) or (c) (that there was breach of Conduct Regulation procedures, or other unfairness) it is more problematic. This is because it has no power to quash the finding and remit the case to the Panel. In addition to that the Tribunal could not simply hear the evidence on appeal under rule 9(5). It was submitted on behalf of the Tribunal that the only outcome available to the Tribunal in those circumstances would be to quash the finding or sanction and order the reinstatement of the officer concerned. Mitting J stated that he was:
'troubled by this outcome but can see no way to avoid it….Unless the rules give to the Tribunal an effective power to re-determine the case itself and, if necessary, to ensure that it has the material necessary to do so, including live witness evidence, it will be obliged to allow an appeal because the finding of gross misconduct or decision on sanction could have been materially affected even when it is satisfied that the outcome probably ought not have been different'.
It was made clear that it was not in the public interest for reinstatement to happen purely on account of procedural errors in the hearing; either a clear power for the Tribunal to re-determine the question itself or a power to remit it was required to avoid that result.
The decision of the PAT was therefore not open to successful challenge on Wednesbury grounds.
The need to fill the legislative lacuna in this particular area of the law is clearly expressed in this case; until that occurs, extra care must be taken to avoid any procedural errors that may result in no other option but the reinstatement of the officer in question. Careful consideration must be given to the calling of witnesses in cases involving a clear dispute of facts.
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