England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		28 July 2008

1. MR JUSTICE MITTING: 0n 15 May 2004 PC Bannister, off-duty, became involved in a fracas in Old Street, London, EC1. In the course of the fracas two members of the public - Mr Campbell and Mr Wilcox - were arrested. Mr Campbell was arrested by PC Bannister. Mr Wilcox was arrested by another officer, apparently after PC Bannister had indicated he had committed an offence of assault against him. Both men were taken to a police station and detained for a number of hours. Each was released without charge.
2. Both complained about PC Bannister's conduct. Their complaints were investigated by an investigating officer of the Metropolitan Police Service who prepared a detailed, but undated, report some time later. It concluded that there was inadequate evidence of criminal offences on the part of PC Bannister or of disciplinary offences and recommended that no action be taken.
3. Mr Campbell complained to the Independent Police Complaints Commission ("IPCC") who directed that disciplinary proceedings take place against PC Bannister. The disciplinary proceedings came before a panel of three senior officers who heard the case over four days, from 5-8 June 2006. There were four charges of misconduct, each alleging either the use of force or the abuse of authority as described in paragraph 4 of Schedule 1 to the Police Conduct Regulations 2004. There was no charge of want of honesty and integrity under paragraph 1. The panel found three of the four charges proved and decided that PC Bannister should resign.
4. PC Bannister applied for a review of that decision, as was his right. The review was conducted on 25 August 2006 by Assistant Commissioner Hayman who found the three charges which had been found to be proved against him by the panel not to be proved, so quashing their decision.
5. The IPCC, supported by Mr Campbell but not by Mr Wilcox, challenged that decision in these judicial review proceedings. The basis of challenge is that Assistant Commissioner Hayman applied the wrong standard of proof in his review of the panel's decision.
6. First, I deal with the statutory framework. Section 50 (2) (e) of the Police Act 1996 permits the Secretary of State to make regulations for the conduct of efficiency and effectiveness of members of police forces and the maintenance of discipline. That is the section under which the 2004 Regulations were passed. Section 85 provides for a right of appeal by the police officer who is dismissed or required to resign to a Police Appeals Tribunal directly or, when, as here, a review is conducted by an assistant commissioner, after the review is conducted. Section 87 (1) permitted the Secretary of State to issue guidance to police officers concerning the discharge of their functions under regulations made under Section 50 "and they shall have regard to any such guidance in the discharge of their functions".
7. Regulation 27 (3) of the 2004 Regulations requires any police tribunal conducting a hearing not to find that the conduct of the officer concerned failed to meet the appropriate standard unless the conduct is admitted by him or "(b) proved by the person presenting the case on the balance of probabilities". There is no indication in the report of the disciplinary panel, which found three of the four allegations had been proved, that it misdirected itself as to the standard of proof. The principal issue in this review is whether or not Assistant Commissioner Hayman directed himself correctly as to the standard of proof in the conduct of his review.
8. The panel found that PC Bannister had wrongfully and unnecessarily arrested the two complainants. Furthermore, as he admitted, it found that he had kicked Mr Wilcox in the groin but, as he did not admit, did not do so in lawful, if anticipatory, self-defence. It is not necessary for me to set out any detail the facts found to be proved by the panel beyond that statement. It is necessary to refer to its reasoning in imposing the severe sanction of requiring PC Bannister to resign. It noted that he was a relatively junior officer. He had only just been confirmed in his rank. It noted, as they put it, "some impressive actions" were noted on his record. It found that he had displayed a lack of integrity or, as they put it, "deceit and abuse of his position" on the day of the incident, after it and at the hearing. As to his conduct at the hearing, they put it as bluntly as they could: "We were lied to." The reason for imposing the severe sanction is summed up in the words:

" ..... given integrity is non-negotiable, we saw very little integrity with respect to these breaches and frankly we did not believe his account ..... "

9. A possible criticism of the approach of the panel may therefore be that although it was notionally considering a code 4 disciplinary offence, it actually based its conclusion as to sanction on an uncharged want of honesty and integrity.
10. Assistant Commissioner Hayman had before him the report of the panel and submissions made in some detail by counsel who had represented PC Bannister at the panel hearing. Those representations included three paragraphs, of which paragraph 15 is typical, which referred to the standard of proof. Paragraph 15 reads:

" ..... 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)."

11. In making those submissions, counsel understandably founded himself on the Home Office guidance issued pursuant to Section 87 of the 1996 Act which, at the time, stated:

"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."

12. Assistant Commissioner Hayman certainly understood that guidance in accordance with its plain meaning because in a witness statement of January 2007 he observed (in paragraph 7):

"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."

13. In applying that guidance and that understanding of that guidance, Assistant Commissioner Hayman directed himself in his review decision in paragraph 3 as follows:

"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.'"

14. There can be no doubt what standard of proof Assistant Commissioner Hayman applied. He applied the criminal standard "beyond reasonable doubt". Mr Johnson, for the IPCC, submitted that in so doing he made a fundamental error of law.
15. It is not necessary for me to review the tortuous development of the law relating to the standard of proof in disciplinary proceedings with serious consequences because it is now stated, beyond possibility of argument, by the House of Lords in three seminal decisions. The first, which applied at the time and for many years before the Home Office guidance was issued, is In re H [1996] AC 563, per Lord Nicholls of Birkenhead (paragraph 506 D- H):

"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."

16. That the balance of probabilities test is a single test was reiterated by the House of Lords in In re B [2008] UKHL 35 and In re Doherty [2008] UKHL 33. In In re B, Lord Hoffmann put the matter with complete clarity. His reasoning was expressly approved by Lord Rodger and Lord Walker and forms part of the ratio of the case. At paragraph 13 it is stated:

"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."

17. Lord Hoffmann's formulation accepts that there are civil proceedings in which the criminal standard, or something very like it, applies - for example, football banning orders which involve infringement of a Treaty right of freedom of movement (cf Goff v Chief Constable of Derbyshire [2002] QB 1213) - but where in civil proceedings the standard of proof is the balance of probabilities a single standard applies. The possibility that, as a matter of common sense, a limited degree of flexibility in application remains was accepted by Lord Carswell in In re Doherty at paragraphs 27 and 28, but in terms which effectively strip it of legal content.
18. Lord Carswell approved observations of Lord Justice Richards in R (On application of N) v Medical Health Review Tribunal [2005] EWCA Civ 1605, in which he had observed at paragraph 62 that there was flexibility in the application of the standard and that - pursuant to that flexibility - the seriousness of consequences of a finding could be taken into account. He expressed approval of those observations but added a qualification which he described as small but which, on my understanding of his words, effectively stripped it of legal consequence. In paragraph 28 he observed:

"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."

19. In that last sentence Lord Carswell, in my opinion, laid down the true proposition of law.
20. Of course in disciplinary proceedings the tribunal must look with the greatest care at accusations which potentially give rise to serious consequences. But in determining whether or not they occurred, it applies a single unvarying standard, the balance of probabilities. If satisfied it is more likely than not that the facts occurred, then it must find them proved and draw appropriate conclusions as to sanction.
21. As is apparent from the parts of the decision to which I have referred, Assistant Commissioner Hayman did not apply that test to the review which he conducted. In so doing, he misdirected himself. His decision cannot stand. It is not clear from his reasoning that if he had applied the correct standard he would have reached the same conclusion. He had other criticisms of the reporting of the panel which may or may not be justified. It is unnecessary for me to make any further comment about that. But his decision that the panel's decision should be quashed because, applying the criminal standard of proof, its conclusions could not stand, cannot itself stand.
22. I am not urged to quash, and I would not in any event quash, Assistant Commissioner Hayman's decision and simply reinstate the decision of the panel. What I should do - consequent upon my ruling - has been a matter of some concern to me. PC Bannister is no longer an officer with the Metropolitan Police Service but with the Greater Manchester Police. A detective superintendent of that force has produced a witness statement of 11 January 2008 in which the following is stated:

"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."

23. Taken together with what the panel acknowledge to be "superlative actions", those observations make it tempting simply to declare that Assistant Commissioner Hayman applied the wrong test and leave it at that.
24. But Mr Johnson for the Commission, supported by Mr Westgate for Mr Campbell, rightly point out that disciplinary findings potentially have a consequence not just for the individual officer concerned but also for the public and for members of the public who may come into contact with him. A finding that PC Bannister wrongfully arrested two members of the public and assaulted one of them without good cause may be relevant in any criminal proceedings for offences said to be committed against PC Bannister in the future. They would certainly be required to be disclosed. There is also a public interest in the upholding of proper findings of disciplinary offences by police officers.
25. Accordingly, and despite the lapse of time since these events occurred and since the disciplinary proceedings took place, I am persuaded on balance that it is right not merely to declare that Assistant Commissioner Hayman applied the wrong test but to quash his decision and to remit it to the Commissioner of Police for the Metropolis for him to appoint another Assistant Commissioner to take the decision afresh.
26. I say nothing about any decision to which that Assistant Commissioner may come. It is entirely a matter for him what conclusion he reaches applying the proper standard of proof.
27. In so doing, I preserve PC Bannister's right to have the matter properly reviewed and I also preserve his right of appeal to the Police Appeals Tribunal if the Assistant Commissioner reaches a decision which he wishes to challenge.
28. For the reasons given I therefore quash the decision of the Assistant Commissioner and remit the matter for the decision to be re-taken.
29. MR JOHNSON: In those circumstances I seek an order that the defendant pay the claimant's costs of proceedings.
30. MR JUSTICE MITTING: Do you resist that, Mr Ozin?
31. MR OZIN: I do have some observations on the issue of costs.
32. MR JUSTICE MITTING: Are they going to take a long time?
33. MR OZIN: No, they are not. They are in two easy steps. First, it follows from your Lordship's judgment that you conclude that the defendant was entitled to follow the Home Office guidance although the guidance happened to be wrong. The second is, as I understand it, the decisive point in your judgment today turns on the clarification affected by the recently decided House of Lords' cases, namely B and Doherty. They were decided on 11 June 2008. My friend's skeleton argument dated 24 June 2008 did not refer to them. Therefore you are entitled to take the view that the claim was launched, and consistent with, without considering those authorities. They were referred to by the defendant and the third interested party. It would be my submission in those circumstances it would be open to you to conclude that the justice of the matter would be properly met by allowing costs to lie where they presently fall.
34. MR JUSTICE MITTING: Does anyone else have any representations about costs? No.

R U L I N G

35. MR JUSTICE MITTING: I order that the defendant pay the claimant's costs to be the subject of detailed assessment if not agreed. The defendant has - notwithstanding the clarity of the law as it now stands - sought to maintain a plainly erroneous decision. My sympathy lies with Mr Hayman who was, after all, only following Home Office guidance. Having said that, the defendant has lost and the normal consequence must follow.
36. MR WESTGATE: I seek detailed assessment.
37. MR JUSTICE MITTING: Public funding assessment of Mr Campbell's costs.
38. MR WESTGATE: Yes.
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