England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ADMINISTRATIVE COURT
Mr Justice Mitting
[2015] EWHC 3358 (Admin)

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/12/2016

Lady Justice Rafferty:

1. The Appellant appeals a decision of Mitting J on 29 July 2015 allowing the First Respondent's application for judicial review of a decision of the Police Appeals Tribunal ("PAT") which had allowed an appeal by the Appellant against a decision of a disciplinary panel ("the panel") finding him guilty of gross misconduct and dismissing him. The First Respondent cross-appeals, challenging Mitting J's decision to remit the finding on sanction. No procedural step or cited authority was controversial nor was the statutory framework in issue.
2. This judgment reflects the Master of the Rolls' view that when a decision is on the facts the judgment should be brief, avoiding recitation of the uncontroversial, unnecessary citation, rehearsed argument and detail which adds nothing.
3. Squire, a police constable of 28 years' service, had no previous findings or disciplinary allegations relating to sexual harassment or bullying. He was promoted to Detective Inspector on 2nd April 2012. 
4. On 10th May 2013 Mrs Jaimie Evans a police staff member complained that Squire had conducted himself towards her in an inappropriate and sexually motivated manner. The central allegation was that he had bullied or harassed her. Of the particulars the most serious was that he pulled her towards him so their groins touched through clothing. Thereafter the gist was that he pestered her.
5. The panel in the teeth of objection admitted hearsay statements of DC Payne, a witness to be called. She claimed DS Roxburgh told her Squire had made an inappropriate comment/gesture to her; that Kerry Neal said Squire was "pervy" and a "dirty old lech" staring at her legs; and that DS Wise said Jo Nash complained to him of an inappropriate comment.
6. Squire submitted this was unfairly prejudicial. Roxburgh, Neal and Wise were to be called and in statements none repeated or supported the comments attributed.
7. The panel admitted the evidence, declaring any unfairness could be addressed by cross-examination.  The panel additionally heard evidence of various other incidents ("the ancillary incidents"), as to which, in the event, it made no mention in its decision.
8. The panel explained its view of the witnesses:  

"…[Ms Evans] gave her evidence in a direct manner with no uncertainty and no hesitation.  She did not alter her evidence over the course of some seven hours of questioning.  Her account of the salient features of each incident was cogent, credible and consistent throughout.  She appeared to us to be someone who was doing her best to help us…..We did not find DI Squire to be a convincing witness.  He gave answers to questions that were guarded and short.  His answers frequently appeared to us to be the product of an analysis of the allegations rather than his simply recounting the facts as he remembered them…in general terms, we prefer her evidence to his…..DI Squire's conduct during cross examination sadly did not mirror the comments made in either his PDR's or testimonials, his answers were vague and obtuse (sic) and we believe that this was deliberate…"

9. On 14th May 2014 finding Squire guilty of gross misconduct it said as to the hearsay evidence: 

"The evidence relied upon …included hearsay…. We ruled that that evidence was admissible despite it being hearsay. However when the witnesses came to give-oral evidence, none of that evidence was supported by the officers who were mentioned as having made the comments. In the circumstances we did not consider it to be fair to DI Squire for us to place any reliance on any evidence of that type."

10. Grounds advanced to the PAT complained that the panel exhibited bias, wrongly refused to exclude hearsay in the statement of DC Payne, could not reasonably be satisfied that allegation 1 was proved or amounted to gross misconduct, and the sanction was unreasonable. 
11. An appeal to the PAT may on these facts rely on PAT Rules 2012. Rule 4(4)(a) contemplates a finding or disciplinary action being unreasonable, Rule 4(4)(c) that a breach of procedures or other unfairness could have materially affected the finding. If a ground is upheld under rule 4(4)(c) the PAT can remit for a rehearing but not if it is allowed under rule 4(4)(a). 
12. The PAT allowed the appeal and gave written reasons on 10th April 2015. It concluded the panel's acceptance of Mrs Evans' evidence was unreasonable and that it ought not to have admitted DC Payne's hearsay. The PAT could not be satisfied that the panel had put those matters out of its mind. There was an appearance of bias. 
13. Its reasoning was that:

"…most of the makers of the statements were not only available but gave evidence before the panel. It follows that the hearsay element of DC Payne's statement relating to the Roxborough, Neal, Wise comments was inadmissible, at least until those witnesses had given evidence….Central to our decision is our finding that the panel wrongly admitted hearsay evidence of a prejudicial nature.  Having done so, the panel went on to assess the credibility of the two main protagonists, DI Squire and Mrs Evans and found against the Appellant on allegations where it was only Mrs Evans' word against DI Squire's"

14. And later:

"...[there was] ....a real possibility or danger that the panel was biased and that a fair-minded and informed observer would have so concluded or perceived it to be……..the panel, having decided to admit hearsay evidence, misdirected itself, thus making its decision as to its finding unreasonable."

15. Mitting J accepted that the evidence of DC Payne ought not to have been admitted at least until the other witnesses had given evidence. He concluded the PAT was not entitled to find apparent bias in view of the terms of the panel's decision. He said:

"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 Jaimie 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 that no matters:

"…could reasonably lead the [PAT] to have concluded that the core evidence of Jaimie Evans was undermined, let alone so undermined that the panel was bound either to disbelieve it or to treat it as unreliable."

16. He is said to have erred in substituting his view for that of the PAT, failing to give due weight to its decision as an expert tribunal, giving undue weight to the self-declaration by the panel that it had not had regard to the evidence of DC Payne, and failing properly to consider Rule 4(4)(c).
17. The PAT said the evidence illustrated that wherever someone else was present Mrs Evans was either not supported or was contradicted. It felt that as to the ancillary incidents the panel ought to have stated that it had considered the point, explained how it had approached it and given its conclusions. Mitting J said the PAT's reasoning and conclusions did 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 Jaimie Evans told the truth.
18. As to remission the complaint is that if correct to find that the PAT had erred in law Mitting J ought to have remitted the decisions on whether the panel's findings on misconduct were unreasonable, and whether the misconduct were gross.

Discussion and conclusion

19. The PAT said:

"….the panel itself had admitted DC Payne's evidence in the knowledge that other witnesses' statements did not support her and in the almost certain expectation that the witnesses would not do so when they came to give evidence, as, indeed, was the case."

20. In their statements the proposed witnesses were silent as to the matters set out by DC Payne. As far as it goes, there is force in the PAT's observation. As the witness statements were silent, it was unlikely the topic(s) could be led in evidence in chief. For obvious tactical reasons those representing Squire were unlikely to cross-examine and risk introducing the material. However, what matters here is that when the hearing had progressed as I have set out, the panel explicitly disavowed reliance on DC Payne's hearsay evidence. Mitting J was correct to point out that the PAT could not go behind that disavowal absent a clear evidential basis to show it was wrong.   
21. It was common ground that the panel was entitled to admit hearsay evidence. That said, I also agree with Mitting J that the evidence of DC Payne should not have been admitted at least until the evidence of the other witnesses had been heard. Whilst the order of witnesses was a case management decision for the panel, with which any appellate tribunal will be slow to interfere, it would have been prudent to adopt a different approach, hearing the quoted witnesses first. If they or any of them failed to come up to proof on what DC Payne was capable of saying they said, the clearer, simpler, and more logical route would have been not to admit the hearsay evidence at all. The question, however, is what if any impact this case management decision had on the panel's decision. In my judgment, though the wiser course would have been a different order of witnesses, that the panel proceeded as it did does not impugn its ultimate analysis of the hearsay issue.
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.
23. 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.
24. Squire also argued that as to the ancillary incidents the panel ought to have made findings about whether Mrs Evans were reliable and/or truthful in relation to each, would then have found she was not, and thus have found she was not reliable and/or truthful where there was a conflict as to the material events. 
25. The PAT said: 

"...the panel ought to have stated in its findings that it had considered the point, gone on to explain how it had approached it and given its conclusions upon it."

26. Mitting J was unimpressed with this line of reasoning and said so, as I have quoted in paragraph 15 above.
27. I agree with Mitting J. The ancillary incidents were peripheral, their evidential value at best marginal.  It was evidence the panel could have relied upon at the margins, but had no duty to do so. A tribunal is not obliged to set out every point in evidence or argued.
28. The PAT was concerned that Mrs Evans was either not supported or was contradicted by other witnesses. Mitting J rightly concluded that none of these three incidents could reasonably have led the PAT to conclude that her evidence was undermined let alone so undermined that the panel was bound either to disbelieve or to treat her as unreliable. He noted this finding was linked to the erroneous finding on bias, and said:

"I am sorry to have to say that the reasoning of the Tribunal 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 Jaimie 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."

29. I agree and would dismiss this ground.    
30. Was Mitting J right not to remit a decision on whether the misconduct were gross?  This ground assumes he was right to quash the primary findings so that the question for the PAT would have been whether, applying rule 4(4)(a), it were unreasonable for the panel to find that the sexual harassment proved amounted to gross misconduct, defined as a breach of the Standards of Professional Behaviour so serious that dismissal would be justified.   
31. The panel relied on the misconduct being aggravated by his seniority, his abuse of position, that he was Mrs Evans's line manager and responsible for her welfare and that he left her, a junior colleague, in a position of uncertainty and fear for over a year.  
32. The proved behaviour entitled the panel to term the misconduct gross. This was an officer of supervisory rank with direct responsibility for Mrs Evans' pastoral care. Once the primary facts were found proved I struggle to follow on what basis the adjectival description can be described as inappropriate. I see no flaw in the conclusion of Mitting J on this point.
33. I would thus dismiss all the Appellant's grounds of appeal. Even though the PAT is a specialist appeal tribunal, like Mitting J I consider there was no basis for the PAT impugning the panel's findings, whether under rule 4(4)(a) or 4(4)(c). Instead, it is the decision of the PAT which is unsustainable.
34. I turn finally to the cross-appeal of the First Respondent, in which Mitting J is criticised for remitting sanction. He said: 

"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."

35. 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.
36. I would dismiss the cross-appeal.
37. Consequently, none of the conclusions of Mitting J in my view is impugned.

Lord Justice Floyd:

38. I agree.

Lord Justice Gross:

39. I also agree.