Knowledge and approval - When is a will suspicious?
Squire v Thames Valley Police & Anor (R. on the Application of)  EWCA Civ 1315
Background to the case
Detective Inspector Michael Squire (“MS”) was a police constable with Thames Valley Police. He had over 28 years of service. In May 2013, a disciplinary panel (the “Panel”), which was convened by the Chief Constable of Thames Valley Police (“CC”) under regulation 19 of the Police (Conduct) Regulations 2012, found, inter alia, several allegations against MS proven regarding “inappropriate and sexually motivated” behaviour towards a Mrs Jamie Evans (“JE”), a civilian investigator employed by Thames Valley Police. The allegations amounted to gross misconduct.
MS appealed to the Police Appeals Tribunal (the “PAT”) regarding the Panel’s findings. His appeal, which was made under regulation 4 of the Police Appeals Tribunals Rules 2012 (the “PAT Rules 2012”), was predicated primarily on the Panel’s decision to admit the hearsay evidence of a Detective Constable Payne (“DC Payne”) during the disciplinary hearing.
Regulation 22 of the PAT Rules 2012 permits the PAT to remit a decision to a disciplinary panel when it allows an appeal on one of the grounds identified in regulation 4(4)(c) of the aforementioned regulations. Section 85(2) of the Police Act 1996 empowers the PAT on the determination of an appeal to “make an order dealing with the appellant in any way in which he could have been dealt with by the person who made the decision appealed against”.
In the present case, the PAT allowed MS’s appeal and it concluded, in a lengthy written determination, that the Panel ought not to have admitted DC Payne’s hearsay evidence. The PAT concluded that the Panel had, as a consequence of accepting DC Payne’s hearsay evidence, allowed itself unconsciously to be influenced, or perhaps to be perceived to have been influenced, by the evidence of DC Payne, and so to have reached a biased conclusion. The PAT therefore overturned the Panel’s finding of gross misconduct – and so necessarily the sanction of immediate dismissal – leaving only the sanction of “management advice” to stand with respect to one of the other findings made by the Panel.
The legal proceedings
The CC challenged the PAT’s conclusion and reasoning by way of a claim for judicial review. MS joined the proceedings as an interested party. The claim was heard before Mr Justice Mitting.
Mitting J quashed the PAT’s decision to overturn the Panel’s finding of gross misconduct. He accepted that the evidence of DC Payne ought not to have been admitted at least until the other witnesses had given evidence. However, he concluded the PAT was not entitled to find apparent bias in view of the terms of the Panel’s decision. He said (at para. 20 of his judgment):
“These were not conclusions the [PAT] was entitled to reach ….. The panel was a professional or semi-professional panel. It made it clear beyond doubt that it had put DC Payne's evidence, except that about the complaints made to her by Jamie Evans, entirely out of account when assessing the strength of the case against DI Squire. In the absence of evidence to show that it did not do so, its reasoning is to be accepted, as the Tribunal itself recognised…..There was no such evidence, other, perhaps, than the [PAT]'s reasoning about the three incidents. It is only if that reasoning must be accepted that the [PAT]'s conclusion on this issue might be capable of being sustained. It cannot be”.
As to unreasonableness, he found (at para. 24 of his judgment) that no matters:
“…could reasonably lead the [PAT] to have concluded that the core evidence of Jamie Evans was undermined, let alone so undermined that the panel was bound either to disbelieve it or to treat it as unreliable”.
Mitting J concluded (at para. 26) by stating:
“I am sorry to have to say that the reasoning of the [PAT] was flimsy and illogical. Its conclusion is unsustainable and cannot stand. Its reasoning and conclusions do not begin to undermine the clearly stated and well reasoned conclusion of the panel that in her core account about the most serious of the allegations Jamie Evans told the truth. On that basis, there was no room for the finding that the proceedings before the panel were unfair, or that their approach to their task or their conclusion were unreasonable”.
He remitted the finding on sanction to the PAT. He noted that (at para. 29):
“…DI Squire appealed against the sanction of immediate dismissal. For obvious reasons, the appeal tribunal made no finding on that submission. It should now do so. Accordingly I remit the appeal to the same panel, if possible, for it to consider the appeal against sanction”.
MS appealed against Mitting J’s quashing order. Separately, the CC cross-appealed, challenging Mitting J’s decision to remit to the PAT the finding on sanction. The appeals were heard in the Court of Appeal (before Lady Justice Rafferty DBE, Lord Justice Gross and Lord Justice Floyd). In Rafferty LJ’s judgment (with whom Floyd and Gross LJJ agreed) it states as follows at para. 22:
“I am puzzled by what led the PAT, in a surprisingly long 82 page judgment, to find bias established. As Mitting J pointed out there existed no facts from which to conclude it. The approach of the panel had nothing to do with bias. It addressed the admissibility of hearsay. Whether right or wrong its route to a conclusion simply provides no basis for a fair minded independent observer concluding there was a danger or risk of bias. I am at a loss to understand why the PAT considered bias had any part to play in its considerations and I reject that Ground”.
She went on (at para. 23) to say:
“A separate question is whether the introduction of the hearsay evidence involved procedural unfairness. In my view, it did not. The panel was alive to and addressed the danger, and explained that it put the hearsay evidence out of its mind”.
On the issue of remitting the sanction, she concluded (at para. 35) by stating that:
“The submission of the First Respondent was that it was wrong for Mitting J to remit sanction, because there was nothing to remit. The inevitable sanction was dismissal. I am not persuaded. While dismissal may well be a very likely, perhaps the most likely, outcome on the facts of the present case, it is not necessarily the inevitable outcome. In any event, the decision is for the PAT and (for obvious reasons) it has as yet made none in this regard”.
Rafferty LJ thus dismissed both the appellant and the cross-appellant’s appeals.
At its most basic level, the proceedings concerning MS remind disciplinary panels that, as a general rule, hearsay evidence is admissible in disciplinary proceedings. More generally, the case serves as an illustration of the care which appellate tribunals must take in overturning the findings of tribunals of first instance. In MS’s case, the PAT appeared to treat the Panel’s admission of hearsay evidence as rendering all its connected subsequent findings as inherently flawed. No logical explanation was offered by the PAT as to why the Panel’s findings were faulty following its acceptance of DC Payne’s hearsay evidence.
The Administrative Court and the Court of Appeal both commented on the Panel’s case management. Both agreed that it had been unwise for the Panel to have admitted DC Payne’s evidence before hearing the evidence of the other relevant witnesses. Procedural unfairness is a ground for appeal with respect to most disciplinary proceedings and (ultimately) for judicial review. Disciplinary hearing case managers and the panels themselves should be alert to the importance of providing for, as far as it is possible, fair proceedings, notwithstanding the general admissibility of hearsay evidence.
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