QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF INDEPENDENT POLICE COMPLAINTS COMMISSION||Claimant|
|ASSISTANT COMMISSIONER HAYMAN||Defendant|
|POLICE CONSTABLE BANNISTER||Second Interested Party|
|MR CAMPBELL||Third Interested Party|
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Mr Paul Ozin appeared on behalf of the Defendant
Mr Kevin Baumber appeared on behalf of the Second Interested Party
Mr M Westgate appeared on behalf of the Third Interested Party
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" ..... given integrity is non-negotiable, we saw very little integrity with respect to these breaches and frankly we did not believe his account ..... "
" ..... against the background of PC Bannister's exemplary professional character ..... speaks of an obvious miscarriage given the higher standard of proof which should have been applied by virtue of the seriousness of the charge and sanction imposed (requirement to resign)."
"3.8.1 In deciding matters of fact the burden of proof lies with the presenting officer and the misconduct hearing/tribunal must apply the standard of proof required in civil cases, that is, the balance of probabilities. As a starting-point, conduct will be proved on the balance of probabilities if the adjudicator is convinced by the evidence that it is more likely or probable that something occurred than that it did not occur. However relevant case law makes it clear that the degree of proof required increases with the gravity of what is alleged and its potential consequences. It therefore follows that, where an allegation is likely to ruin an officer's reputation, to deprive them of their livelihood or seriously damage their career prospects, a hearing/tribunal should be satisfied to a high degree of probability that what is alleged has been proved."
"I am fully aware that the standard of proof to be applied in relation to proving misconduct charges is that they be proved on the balance of probability. However I am also aware that there is a sliding scale where the degree of proof increases with the gravity of what is alleged and its potential consequences."
"Burden of Proof
Counsel has quite rightly highlighted the burden required for a dismissal or a requirement to resign. In short, we are at the criminal burden, of 'beyond reasonable doubt'. Given the degree of proof required, I think it is reasonable for me to question whether that has actually been reached in this case. I will now highlight where I feel that the commentary of the hearing fails to provide convincing arguments that their consideration of the evidence met the high threshold."
Assistant Commissioner Hayman referred again to the burden of proof later on in paragraph 3:
" ..... On the basis of that point I have serious doubts as to the amount of attention that was taken to test the evidence against that higher threshold of 'beyond reasonable doubt.'"
"The balance of probability standard means when a court is satisfied that an event occurred if the court considers that on the evidence the occurrence of the event was more likely than not. In assessing the probabilities the court will have in mind as a fact, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred ..... the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability."
Examples were given.
"Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation. Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof applied is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probability and deciding whether on balance the event occurred."
"My Lords, I would invite your Lordships fully to approve these alterations. I think the time has come to say, once and for all, that there is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not. I do not intend to disprove any of the cases in what I call the first category, but I agree with the observation of Lord Steyn ..... that clarity would be greatly enhanced if the court said simply that although the proceedings were civil the nature of the particular issue involved made it appropriate to apply the criminal standard.
15 I wish to lay some stress upon the words I have italicised [an extract from Lord Nicholls' speech in In re H]. Lord Nicholls was not laying down a rule of law. There is only one rule of law, namely that the occurrence of the fact in issue must be proved to have been more probable than not. Common sense not law requires that in deciding this question, regard should be had, to whatever extent appropriate, to inherent probabilities."
"It is recognised by these statements that a possible source of confusion was the failure to bear in mind with sufficient clarity the fact that in some contexts the court or tribunal has to look at the facts more critically or more anxiously than in others before it can be satisfied to the requisite standard. The standard itself is however finite and unvaried ..... The seriousness of the allegation requires no elaboration. A tribunal of fact will look closely into the facts grounding an allegation before it before accepting that it has been established. The seriousness of consequences is another facet of the same proposition. If it is alleged that the bank manager has committed a minor peculation that could entail very serious consequences for his career, so making it the less likely that he would risk doing such a thing. These are all matters of ordinary experience requiring the application of good sense on the part of those who have to decide such issues. They do not require a different standard of proof or especially cogent standard of evidence, merely appropriately careful consideration by the tribunal before it is satisfied of the matter which has to be established."
"Whatever the outcome of the judicial review proceedings, Greater Manchester Police do not intend to revisit Constable Bannister's appointment to this force."
It goes on to state:
" ..... [he] has not come to the notice of the Professional Standards Branch of that force in respect of complaints received from members of the public or any other form of misconduct."
R U L I N G