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Cite as: [2011] EWHC 546 (Admin)

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		[2011] EWHC 546 (Admin))
		Case No: CO/10069/2010

IN THE HIGH COURT OF JUSTICE
QUEENS BENCHDIVISION
ADMINISTRATIVE COURT

The Court House
Oxford Row
Leeds LS1 3BG

15th March 2011

B e f o r e :

His Honour Judge Behrens
sitting as a Judge of the High Court in Leeds
____________________

	In the matter of an application for Judicial Review The Queen on the application of REBECCA FRENCH	Claimant
	- and -
	THE CHIEF CONSTABLE OF WEST YORKSHIRE POLICE	Defendant

____________________

Paul Greaney QC and Samuel Green (instructed by Russell Jones & Walker) for the Claimant
Mark Ley-Morgan (instructed by Office of the Force Solicitor) for the Defendant

Hearing dates: 12 January 2011, 17th February 2011
____________________

HTML VERSION OF JUDGMENT
____________________

Judge Behrens :

Introduction

On three separate occasions during 2009 and 2010 P C French (a police constable with the West Yorkshire police force) faced misconduct proceedings brought under the Police (Conduct) Regulations 2008:

1. On 24^th August 2009 a misconduct meeting took place concerning the drunken behaviour of P C French on 28^th October 2008. The allegation was admitted. P C French was given a final written warning for a period of 18 months.

2. On 17^th December 2009 a misconduct hearing took place concerning the failure of P C French to attend court on 19^th June 2009 and give evidence on behalf of the prosecution in relation to a driving offence. At the outset of the hearing it was submitted on behalf of P C French that there was no jurisdiction to conduct a misconduct hearing. The correct procedure was by way of a misconduct meeting. The submission was rejected with the result that the misconduct hearing continued. The Misconduct Panel consisted of three members including an independent member Mr Michael Fox. The allegation was admitted by P C French. After hearing mitigation including evidence of good performance the Panel decided not to dismiss P C French but to extend the final warning by a further 18 months.

3. On 25^th August 2010 a misconduct hearing took place concerning the behaviour of P C French on the night of 4^th/5^th March 2010. It was alleged that during a night out in Wakefield she socialised with a man (Richard Hanks) charged with a drugs offence in respect of which she was the officer in the case. She became drunk, provided information to Richard Hanks about the case against him and behaved in a sexually inappropriate way. It will be necessary to set out the history of the misconduct proceedings in some detail later in this judgment. For present purposes it is sufficient to state that P C French's defence was that her drink had been spiked by some form of drug and that her behaviour was, therefore involuntary. The Misconduct Panel consisted of three members including the same independent member Mr Fox. P C French was not made aware that Mr Fox was a Member of the Panel until the day of the hearing. During the course of the hearing, in circumstances which will be set out in more detail later in this judgment, a report from a forensic scientist – Dr Perry – was introduced in evidence. The report contained an analysis of a hair sample which had been provided by P C French in May 2010. Faced with this report and the presence of Mr Fox an application was made for an adjournment on behalf of P C French. The application was refused and the hearing continued. After evidence was called on behalf of the presenting party no evidence was called on behalf of P C French. The allegations were found proved and she was summarily dismissed without notice.
The misconduct hearings have given rise to two claims for judicial review.The first claim arises out of the misconduct hearing on 17^th December 2009. It is said that this hearing should have proceeded by way of a misconduct meeting rather than a misconduct hearing. This raises a question of law arising out of the Regulations as applied to the dates when relevant events occurred. In particular it turns on whether there was a final written warning in force on the date of the assessment of P C French's conduct. The point is potentially of importance because the disciplinary action following a misconduct hearing is potentially more severe than that which follows a misconduct meeting. Furthermore the procedure for a misconduct meeting is different from the procedure at a misconduct hearing. On 14^th April 2010 I refused permission to P C French to apply for judicial review on consideration of the papers. On 24^th May 2010 permission was granted by Judge Kaye QC at the renewal hearing.
The second claim arises out of the misconduct hearing on 25^th August 2010. It is said that the panel ought to have granted the application for an adjournment. The presence of Mr Fox on the panel offended the rule against bias. Alternatively no reasonable tribunal would have refused an adjournment to P C French who was faced with the expert report on the day of the hearing.
The first claim was listed before Judge Grenfell on 22^nd September 2010. By that time of course P C French had been summarily dismissed and the first claim had become somewhat academic. Judge Grenfell was informed of the intention to issue proceedings in respect of the second claim. He made an order listing both applications for a substantive hearing with a combined time estimate of 1 day. Thus he in effect granted permission for the second claim before it had been issued. He directed that the second claim be heard before the first.
Both applicationscame before the court on 12^th January 2011. Regrettably the time estimate proved wholly inadequate. It took the whole of the first day for Mr Greaney QC to open the case on Claim 2. The hearing resumed on 15^th February 2011. By that time P C French had obtained her own expert evidence and three statements from Mr Brown were before the Court. The argument on both claims was concluded and judgment was reserved.

The Regulations
In the course of his opening Mr Greaney QC took me through the regulations in some detail. In my view it is possible to summarise them:
Regulation 3 is concerned with interpretation. There is a definition of disciplinary action. It includes in order of seriousness a written warning, a final written warning, an extension to a final written warning, dismissal with notice and dismissal without notice.
Misconduct means a breach of the Standards of Professional Behaviour. Gross misconduct means a breach of the Standards of Professional Behaviour which is so serious that dismissal would be justified.
So far as relevant to this case there are two forms of misconduct proceedings – a misconduct meeting and a misconduct hearing. At a misconduct meeting the officer concerned may be dealt with by disciplinary action up to and including dismissal. At a misconduct meeting the officer may be dealt with by disciplinary action up to and including a final written warning. It thus appears that a misconduct meeting has no power to extend a final written warning as this is defined as more serious than the grant of the final written warning. If, therefore, P C French is correct and the hearing on 17^th December 2009 should have been a misconduct meeting there was no power to extend the final written warning she received on 24^th August 2009.
Part 3 of the Regulations is concerned with investigations. Under regulation 12(1) the appropriate authority must assess whether the alleged conduct if proved would amount to misconduct or gross misconduct. Under regulation 12(3) if the appropriate authority decides that it would amount to misconduct it must decide whether the matter should be investigated and if so whether the potential misconduct proceedings would be a misconduct hearing or a misconduct meeting. Under regulation 12(4) if the appropriate authority determines that the conduct if proved would amount to gross misconduct it must be investigated.
Regulation 12(5) is relevant to the first claim and provides:

(5) At any time before the start of misconduct proceedings, the appropriate authority may revise its assessment of the conduct under paragraph (1) if it considers it appropriate to do so.
It is not necessary to set out the detailed regulations dealing with investigations. It is sufficient to note that under regulation 15 written notice of the investigation must be given to the officer and under regulation 18 the investigator is required to submit a written report on his investigation to the appropriate authority.
Part 4 of the Regulations is concerned with Misconduct Proceedings. Whether the proceedings are referred to a misconduct meeting or a misconduct hearing is determined by regulation 19. Under regulation 19(1) the appropriate authority, on receipt of the investigator's report, must determine whether the officer has a case to answer in respect of misconduct or gross misconduct. If there is a case to answer the allocation as between a misconduct meeting and a misconduct hearing is determined by regulations 19(4), 19(5) and 19(9).

(4) Where the appropriate authority determines that there is a case to answer in respect of gross misconduct, it shall, subject to regulation 9(3) and paragraph (2), refer the case to a misconduct hearing.

(5) Where the appropriate authority determines that there is a case to answer in respect of misconduct, it may--

(a) subject to regulation 9(3) and paragraph (2), refer the case to misconduct proceedings; or

(b) …

(9) Where the appropriate authority determines under paragraph (5) to refer the case to misconduct proceedings--

(a) where the officer concerned had a final written warning in force at the date of the assessment of conduct under regulation 12(1) of these Regulations or regulation 14A of the Complaints Regulations (as the case may be), those proceedings shall be a misconduct hearing;

(b)……

(c) in all other cases those proceedings shall be a misconduct meeting.
In summary if there is an assessment of gross misconduct or the officer had a final written warning in force at the date of the assessment the proceedings are a misconduct hearing. Otherwise they are a misconduct meeting. However, as will be recalled there is power to vary the assessment under regulation 12(5). It is the interaction of these provisions which gives rise to Claim 1.
Regulations 21 to 34 deal in detail with the procedure leading up to and during the misconduct proceedings. It is not necessary to set out the provisions in detail. A number, however, were drawn to my attention by Mr Greaney QCand are relevant:
Under regulation 25(4) a misconduct hearing is conducted by a panel of three persons; one of the persons (the independent member) is selected by the appropriate authority from a list of candidates maintained by the police authority.
Under regulation 21 where a case is referred to misconduct proceedings written notice of a number of matters must be served on the officer as soon as practicable. Under regulation 21(2) these include the identities of the panel once they have been determined. The officer then has 3 days to object to any person. If the objection is upheld the person is replaced.
Regulations 21, 22, 23 and 28 contain detailed provisions about the provision of documents, the filing of a defence/ admission by the officer, and the attendance of witnesses at the hearing.
Regulation 34 deals with the procedure at the hearing I was referred to regulations 34(3) and (4) (which deal with adjournments), 34(9) (which deals with late admission of documents), 34(13) and 34(14) (which deal with the findings and the burden of proof):

(3) Subject to paragraph (4), the person conducting or chairing the misconduct proceedings may from time to time adjourn the proceedings if it appears to him to be necessary or expedient to do so.

(4) The misconduct proceedings shall not, except in exceptional circumstances, be adjourned solely to allow the complainant or any witness or interested person to attend.

(9) The person conducting or chairing the misconduct proceedings may allow any document to be considered at those proceedings notwithstanding that a copy of it has not been supplied--

(a) by the officer concerned to the appropriate authority in accordance with regulation 22(3); or

(b) to the officer concerned in accordance with regulation 21(1).

(13) The person or persons conducting the misconduct proceedings shall review the facts of the case and decide whether the conduct of the officer concerned amounts--

(a) in the case of a misconduct meeting, to misconduct or not; or

(b) in the case of a misconduct hearing, to misconduct, gross misconduct or neither.

(14) The person or persons conducting the misconduct proceedings shall not find that the conduct of the officer concerned amounts to misconduct or gross misconduct unless--

(a) he is or they are satisfied on the balance of probabilities that this is the case; or

(b) the officer concerned admits it is the case.

The first misconduct proceedings
These proceedings arose out an incident on 28^th October 2008. Following the misconduct meeting on 24^th August 2009 a document entitled "Decision Rationale" was prepared by Inspector Mackay who conducted the meeting. It includes the following:

On 28^th October 2008, while off duty and under the influence of alcohol you attended Wood Street police Station where you conducted yourself in a manner which was disrespectful to your on duty colleagues about whom you made derogatory comments.

The outcome you will be made subject of a Final Written Warning …

In addition to this a member of the public had their liberty taken from them as a direct result of your actions and due to your unprofessionalism they remained in police custody overnight. You allowed yourself on that night to become intoxicated through alcohol but this can neither be accepted as mitigation or excuse for your actions.

The taking of a person's liberty must be treated with the utmost seriousness … Your actions I feel left the Force open considerable reputational damage which could still lead to financial punitive measures.
There is no complaint about any of the procedure involved in the first misconduct meeting and it is not necessary to consider the chronology in any detail. It is apparent that the conduct was not assessed as gross misconduct.

The second misconduct proceedings
On 19^th June 2009 (that is to say prior to the first misconduct meeting on 24^th August 2009) P C French failed to attend Pontefract Magistrates Court in order to give evidence on behalf of the prosecution in relation to a driving offence.
On 30^th June 2009 a severity assessment was made under regulation 12(1). The conduct was assessed as misconduct rather than gross misconduct.
On 22^nd July 2009 P C French was served with the regulation 15 notice which duly noted the assessment of misconduct.
On 13^th October 2009 Detective Superintendent Angela Williams made a further severity assessment of gross misconduct. Her reasons included:

The conduct is such that misconduct proceedings are merited and, given that you have a live final written warning recorded in respect of previous conduct, neither a written warning nor a final written warning can now be given in respect of the conduct outlined in this notice. It is considered that the full range of powers should be available including the extension of the existing final written warning. As a consequence of the revised assessment, the issue can only be determined at a misconduct hearing.
The revised security assessment was served on P C French on 26^th October 2009.
It is not clear when the misconduct proceedings started or when P C French was served with the regulation 21 documents. On 23^rd November 2009 P C French served the regulation 22 reply. In it she accepted that her conduct amounted to misconduct but not to gross misconduct. She acknowledged she should have attended court on the day in question. She put forward detailed mitigation both in respect of her failure to attend court and also in respect of her domestic circumstances.
On 4^th December 2009 Acting Detective Superintendent Bennett made a further severity assessment of misconduct. He went on to assert that the form of the misconduct proceedings had been reconsidered and that in the light of the final written warning and regulation 19(9)(a) the form of proceedings would be a misconduct hearing.
As already noted the misconduct hearing took place on 17^th December 2009. Mr Fox was the independent member of the panel. Mr Green, Counsel for P C French, submitted that there was no jurisdiction to deal with the matter as there ought to have been a misconduct meeting under regulation 19(9)(c). The submission was rejected. The panel accordingly found the allegation proved and went on to consider sanction. They were provided with evidence of good performance and heard evidence from both PC French and PS Coupland. The panel felt that the appropriate sanction was an 18 month extension to the final written warning. Six reasons were given. The panel accepted that both instances of misconduct were out of character; there was evidence of good performance; P C French had exceptional personal difficulties at the time of the incidents, had shown genuine remorse and had apologised.
There was some debate as to what documents were before the Panel. In particular Mr Greaney QC submitted that the Decision Rationale prepared by Inspector Mackay following the first misconduct meeting must have been before the panel. Thus Mr Fox would have been aware that a member of the public had been locked up overnight as a result of P C French's actions. This is not accepted by the Chief Constable. He relies on the evidence of Brian Exley, a Senior Caseworker in the Professional Standards Department of the West Yorkshire Police. At the end of the hearing the papers from the Panel are collected and placed in an envelope which is placed on the case papers and filed. Mr Exley retrieved the case papers and looked at the papers in the envelope. He confirms that Decision Rationale was not there. There is in addition a transcript of the hearing on 17^th December 2009. There is no reference in the transcript to the Decision Rationale or to the involvement of a member of the public although (at page 28 of the transcript) Mr Green referred to P C French making an allegation of assault.

The third misconduct proceedings

The incident
On 21^st August 2009 Richard Hanks was arrested in relation to a number of drugs offences. P C French interviewed him and was the officer in the case. On 26^th October 2009 she charged him with possession and cultivation of cannabis. The case then proceeded through the Courts
At a Plea and Case Management Hearing in February 2010 at the Crown Court it was alleged that some of the evidence in the case had been destroyed. An order was made for this to be investigated and P C French was given the job of dealing with the matter.
On 4^th March 2010 P C French went on a night out in Wakefield with friends. Her conduct that evening and the next morning gave rise to the third misconduct proceedings. Details of the conduct are set out in the Regulation 21 Statement subsequently served on her. In summary it is alleged:

1. She met Richard Hanks knowing him to be awaiting trial for drugs offences

2. She went with Richard Hanks from Buzz to The Bank (where he was the Manager). During that time she behaved in a sexually inappropriate manner

3. Whilst at the Bank she:

1) Became very drunk

2) Behaved in a sexually inappropriate manner both towards Richard Hanks and another man

3) Told Richard Hanks that she had been disciplined for being drunk

4) Discussed Richard Hanks's criminal case with him

5) Was sick on the floor of an office

6) Falsely accused Richard Hanks of spiking her drink

7) Rang PC Gelderd's mobile phone so that he was concerned about her safety and rang the police.

4. Her association with Richard Hanks led to a decision that the CPS should offer no evidence against Richard Hanks.

The investigations
In the morning of 5^th March 2010 P C French was seen by PS Roper and a force medical examiner (FME).PS Roper's minute sheet records his view that at 8.15 P C French appears dazed and confused as though under the influence of drink or drugs. The FME expressed the view that "she may be suffering the effects of being administered one of three "date rape" drugs." On the same day a criminal investigation was commenced into a possible criminal offence of administering a drug with intent to commit an indictable offence. It was led by Inspector Sullivan a Divisional Officer at Wakefield. Samples of blood and hair were taken from P C French for the purpose of the investigation.
On 7^th March 2010 Richard Hanks was interviewed in relation to the incident. He denied spiking P C French's drink and made a number of allegations against her. In the light of these allegations a misconduct and a criminal investigation was commenced against P C French. It was led by Detective Inspector Hall. On 10^th March 2010 a regulation 15 notice alleging gross misconduct was served on P C French. At the end of March 2010 the drugs charges against Richard Hanks were discontinued.
The samples of blood and hair provided by P C French were submitted to the Forensic Science Laboratory in Wetherby. In the last week of April 2010 Inspector Sullivan received a call from Dr Perry. Dr Perry informed him that the sample was insufficient to carry out the full range of tests and asked him to obtain a second hair sample.
On 6^th May 2010 Dr Perry provided her first report. The blood sample had been analysed for alcohol and a number of common drugs of abuse and medications of abuse. Dr Perry's conclusions were to a large extent, unfavourable to P C French. In summary Dr Perry concluded:

1. The tests for the drugs of abuse, medications and sedative drugs (including Rohypnol) were all negative. The sample had not been analysed for the sedative drugs GHB and GBL because they are eliminated from the blood within 4-6 hours and the blood sample had been taken after this period. Dr Perry could not exclude the possibility that P C French could have been given a low therapeutic dose of certain other drugs including Rohypnol

2. By her calculation, at 4.00 am on 5^th March 2010 P C French would have had a blood alcohol level of between 135 and 265 mgs%. On the assumption that P C French eliminated alcohol at the most common elimination rate the level would have been around 205 mgs% which signified marked or heavy drunkenness.
On 14^th May 2010 P C French was formally interviewed under caution in respect of the incident on 4^th/5^th March 2010.
On 19^th May 2010 P C French provided Inspector Sullivan with a further sample of hair. Inspector Sullivan delivered this to the Forensic Science Laboratory in Wetherby on 9^th June 2010.
On 18^th June 2010 P C French was informed that she would face misconduct proceedings and the regulation 21 notice was served on her. The notice informed her of the date of the hearing but did not inform her that Mr Fox would be a member of the panel.
On 24^th June 2010 Dr Perry contacted Inspector Sullivan and informed him that insufficient hair had been provided and requested a further sample. Inspector Sullivan duly asked P C French for a third sample but she declined to give one. She did however state she would review the decision following legal advice.
On 10^th July 2010 Inspector Sullivan sent P C French an e-mail informing her that he had instructed the Forensic Science Service to carry out the tests on the samples already provided.
In fact however Inspector Sullivan decided not to do so. Instead on 16^th July 2010 he carried out a review of the evidence and concluded that there was insufficient evidence to pursue a successful prosecution against any individual. He therefore closed the investigation and wrote to P C French informing her of his decision.
During the course of his submissions Mr Greaney QC took me to correspondence between P C French's solicitors – Mr Cameron of Russell Jones & Walker and the West Yorkshire Police between 12^th July 2010 and the date of the hearing on 25^th August 2010. It is not necessary to lengthen this judgment by setting out the correspondence in detail. In summary:

1. In a long letter dated 12^th July 2010 Mr Cameron raised a number of points about the forthcoming hearing. Amongst the points was a query as whether the hair sample supplied by P C French on 19^th May 2010 was sufficient. This was said to be needed as a matter of urgency to enable her to consider properly the request for the further hair sample.

2. There were further letters from Mr Cameron dated 14^th July 2010, 26^th July 2010 and 4^th August 2010 which (amongst other points raised) chased a reply to the letter of 12^th July 2010.

3. On 6^th August 2010 Mrs Walker (on behalf of the Defendant) replied to many of the points that were raised but did not deal with the query about the hair sample. She did however make the point that the criminal investigation by Inspector Sullivan had concluded.

4. On 10^th August 2010 Mr Cameron queried this response. He referred to the 10^th July 2010 e-mail and asked if the tests were concluded. He stated that he would have to consider instructing an expert to conduct the tests on behalf of P C French.

5. On 17^th August 2010 Mr Cameron wrote to the Chairman of the Misconduct Panel asking for an adjournment of the hearing. In effect he asserted that the forensic enquiries were essential and that it would not be possible to complete them before 25^th August 2010.

6. On 19^th August 2010 Mrs Walker replied to the effect that the application for an adjournment would be dealt with as a preliminary issue on 25^th August 2010.
Meanwhile on 13^th July 2010 P C French served the Rule 22 response to the misconduct proceedings. In summary she admitted that she was in Wakefield town centre with two friends on 4^th March 2010. She asserted that she had no doubt that whilst she was in the Buzz bar her drink(s) was spiked. From that point on her conduct was involuntary and she has very little memory of events thereafter. She goes on to deal and dispute allegations made by Richard Hanks in the course of his police interview.
In fact Dr Perry had taken steps to have the sample of hair provided by P C French on 19^th May 2010 subjected to analysis by a laboratory in Strasbourg, France ^[1]. 3 sections of 3 cms in length were tested for some listed sedative drugs and the use of cannabis. There was insufficient sample to test for the other common drugs of abuse which can affect behaviour such as amphetamines, ecstasy or cocaine.
All tests were negative. Tests for cannabinoids were also negative. Eight sections – each of 1 cm in length were tested for GHB. The test showed a relatively constant level of GHB between 14 and 27.3 ng/mg. On 10^th August 2010 Dr Perry prepared a witness statement which commented on these results. In summary:

1. GHB is a naturally occurring compound that can be detected in low levels in bodily samples including hair. The normal or endogenous levels in hair have generally been shown to vary between 0.5 and 12 ng/mg.

2. Thus the results in P C French's hair sample are higher than those normally seen. However they are relatively consistent and this could suggest that they are endogenous. Alternatively they could suggest that P C French had taken or been administered GHB or a related compound on a regular basis over the several months prior to sampling.

3. Although a wide range of sedative drugs were covered in the tests, the results do not preclude the possibility that P C French had ingested another drug not included in the tests.
It is not clear what happened to this witness statement. Certainly neither side had seen it when the hearing commenced on 25^th August 2010.

The hearing.
The parties attended for the hearing on 25^th August 2010. Both sides were represented by Counsel, Ms Cranidge on behalf of the Chief Constable and Mr Ley-Morgan on behalf of the Chief Constable. At the outset Ms Cranidge applied for an adjournment on two grounds; to allow the hair samples taken on 5^th March and 19^th May 2010 to be analysed. Sketchy and possibly inaccurate information had reached P C French's advisors that the laboratory in Strasbourg had in fact analysed. Secondly further investigation was required in relation to the enquiries contained in the correspondence. One of the points made by Ms Cranidge was the need to interview the FME who examined P C French on the morning of 5^th March 2010. Following discussion between the parties Mr Ley-Morgan supported the application. One of the witnesses (Mr Rowley) was unable to attend and there was no statement from the FME.
After a retirement of some 25 minutes the Panel refused the application to adjourn. It was reminded of regulation 34 in relation to adjournments and took the view that Mr Rowley was not central to the case and his absence did not amount to an exceptional reason within regulation 34(4). It sought clarification on the question of the FME and the analysis of the hair sample. In the result it adjourned the case till the afternoon.
Contact was made with Inspector Sullivan. He was asked to make enquiries with Forensic Science Services. He did so and it was only at this point that he discovered that the hair had been analysed and Dr Perry had produced a report. A copy of the report was immediately obtained and provided to the parties and the Panel.
Enquiries regarding the FME revealed that he had been on holiday in Italy for the previous 4 weeks and was not due back until 30^th August 2010. Thus no statement could be obtained.
The hearing reconvened after lunch. The Panel was updated as to the position regarding the evidence. Ms Cranidge then renewed the application that the hearing be adjourned. There were three grounds for the application. First she needed advice from a toxicologist to consider the conclusions of Dr Perry. She argued that Mr Cameron had been making enquiries since 12^th July 2010 as to the testing of the hair sample. Without her own expert P C French would be forced into the position of having to accept Dr Perry's conclusions. She also said that as the hair had been analysed no further testing was necessary. Second, she submitted that the evidence of the FME was still important. Third, she objected to the presence of Mr Fox on the panel on the basis that he was on the Panel of the second misconduct proceedings. She pointed out that the regulation 21 documents did not include the name of Mr Fox. In her submissions there would be an appearance of bias if Mr Fox continued to sit.
After a short retirement the Panel refused the adjournment. Brief reasons were given at the time but the panel agreed to supply detailed written reasons at a later date. The hearing accordingly proceeded. Three witnesses gave evidence, Richard Hanks, Mrs Collins and P C Gelderd. P C French elected not to give evidence. Ms Cranidge explained that this was because of the refusal of the adjournment to enable her to obtain a report from her own expert or a statement from the FME.
After an adjournment the Panel found the case against P C French proved. They found Richard Hanks credible and that on balance that there was no evidence that any drug was administered that could have been responsible for her behaviour as described. Accordingly they did not accept that her behaviour was as a result of involuntary action. As a result she was dismissed without notice.
The Panel provided full written reasons for the refusal of the adjournment. In relation to Mr Fox the Panel reminded itself of the relevant Home Office Guidance at paragraphs 2.155, 2.156 and 2.157. It noted that it was regrettable that the objection had been made on the day of the hearing but that this was not the fault of Ms Cranidge or P C French.
The relevant part of the decision reads:

In determining the application the Panel have not discussed any of the details of the previous hearing on which Mr Fox sat. Mr Fox has, however, indicated that the fact that he sat on a previous hearing will not prevent him from making an objective an impartial assessment of the facts of this case. We further note that Mr Fox is an experienced panel member.

Accordingly the Panel does not find there is any compelling reason why Mr Fox should not continue to sit on this panel.
With regard to the application to adjourn to instruct a toxicologist to comment on Dr Perry's report the Panel summarised the events that occurred on the morning of the hearing and summarised her report. It gave two reasons for refusing to adjourn:

1. The tests performed on the hair sample had not enabled Dr Perry to state categorically whether or not P C French took a sedative or date rape drug on the night of 4^th/5^th March 2010. Further consideration of Dr Perry's report by another expert could not conclusively determine the central issue (namely 'Did P C French take a sedative or date rape drug on the night of 4^th/5^th March 2010?)'

2. In the light of this together with the fact that the Panel would hear witness evidence from people who saw and spoke to P C French on the night, together with the toxicology tests on the blood sample it would neither be fair or in accordance with the principles of natural justice to delay the proceedings by adjourning the proceedings.
The Panel also stated that they were refusing the application to adjourn in order to obtain further evidence from the FME because the view that he had expressed was, at its highest, a preliminary one given before any toxicology tests had been performed.

Post Hearing Events
As already noted judicial review proceedings in respect of Claim 2 were commenced on 23 September 2010 shortly after the hearing before Judge Grenfell. Both claims were listed before me on 12^th January 2011. At that time no further expert evidence was available. Mr Ley-Morgan was critical of this in his skeleton argument. Mr Greaney QC indicated that attempts had been made to get expert evidence. . As a result of this I directed that a timetable of those efforts be filed. On 18^th January 2011 Mr Cook on behalf of P C French filed a witness statement exhibiting a detailed timetable of the efforts that had been made from 13^th August 2010 to obtain expert evidence on behalf of P C French. In the events that have happened it is not necessary for me to go into that timetable in any detail.
A further sample of P C French's hair has been analysed and I have the benefit of 3 reports dated 10^th, 15^th and 17^th February 2011 from Richard Brown, a forensic scientist employed by Keith Borer Consultants all of which have been admitted without objection from Mr Ley-Morgan.
In his first report Mr Brown discusses the analysis of a further hair sample of P C French submitted on 12^th January 2011 to the same laboratory as carried out the analysis of the first sample. That sample was also divided into 8 sections and analysed for the presence of GHB. Assuming an average rate of growth of hair this corresponded to a period from the beginning of May 2010 (some 2 months after the incident) and the end of December 2010. The results were very different from the analysis of the first (May 2010) sample. As already noted the May 2010 results were between 14 and 27.3 ng/mg with the higher results at the end furthest from the root, whereas the January 2010 sample gave almost constant results of between 0.28 and 0.35 ng/mg.
In his first report Mr Brown reaches the following conclusions:-

(a) The results from the samples taken in May 2010 and January 2011 were very different and in that regard the findings are unusual.

(b) There is no clear analytical evidence to show that the claimant was administered GHB or any other compound around the relevant time.

(c) The results of the sample taken in May 2010 are not what one would expect had the claimant consumed GHB on the evening in question having not been a regular user of that drug.

(d) As a single, relatively low dose, of GHB may not have been detectable in the hair sample covering this period (especially in the presence of high background levels), the possibility that the claimant could have ingested the drug on the night in question remains.
Inhis second report Mr Brown discusses a number of possibilities for the differences in the two samples. In particular he says:-

"Other possibilities for the difference include the following: incorrect samples being analysed, the results being misreported or different methods being used for the two samples. However, I would consider these possibilities to be remote given the same laboratory was used for the two analyses."
He also comments on the fact that a higher reading was found towards the distal end of the hair rather than the root (as would normally be expected) and remarks that as the hair was not tied it is possible that the results were reported the wrong way round.
He concludes his second report with the following:

"Regardless of any potential errors, the results do not provide analytical evidence that Ms French had taken or been exposed to exogenous GHB on the night in question as in these cases a "spike" is normally seen in the data. However, it is important to consider that one-off doses of this drug may not be detectable in the analyses conducted, especially if endogenous levels are as high as originally indicated.

Overall, the findings do not assist in determining whether or not Ms French has been exposed to exogenous GH and therefore this remains a possibility."
In his third report Mr Brown comments on the analysis carried out by Mr Ley-Morgan of his first two reports. It is not, in my view, necessary to comment on it.

Mr Fox

The Law
There is a difference between Counsel as to the relevant law in relation to this issue. Mr Greaney QC contends that the law relating to bias and apparent bias is the law that falls to be applied. He referred me to Porter v. Magill [2002] 2 AC 357 and Lawal v. Northern Spirit [2003] ICR 856 and submitted that the relevant test for apparent bias was

"…whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased."
He also submitted that Mr Fox's views on the question were of little if any value. Mr Ley-Morgan accepted that if this was to be treated as a "bias case" then the test was correctly set out by Mr Greaney QC.
Mr Ley-Morgan contends this is not a case of apparent bias but a case where a member of the Panel was possibly in possession of prejudicial material. He referred me to the judgment of Carnwath LJ in R. v. The Professional Conduct Committee of the General Medical Council ex part Mahfouz [2004] EWCA Civ 233:

"31. …The basic principle is that the proceedings should be not only fair, but seen to be fair…But there is no need to make a mystery of the mental processes involved. In many cases, where the impartiality of the tribunal itself is not in doubt, there is no practical distinction between the different ways of looking at the same matter.

32. For my part, I would prefer to avoid the use of the terms "bias" or "apparent bias" (with their overtones of possible impropriety) in a case like this. Such expressions are best reserved for cases where the impartiality or apparent impartiality of the tribunal has been put in question, whether by its own conduct or by the disclosure of a possible apparent connection with one of the parties. In such cases, it is obvious that little weight can be attached to the subjective view of the very tribunal whose impartiality has been put in doubt.

33. In a case such as the present, as I have indicated, I find the analysis in Montgomerya more helpful starting point, than authorities on apparent bias. With respect to the Privy Council in Subramaniam, the issue is not bias in the normal sense, but the prejudicial effect of inadmissible material on an otherwise impartial tribunal. It is perhaps significant that in Porter v MagillLord Hope's leading judgment made no reference to his own leading judgment in Montgomery, which in turn made no reference to the previous leading House of Lords case on bias (R v Gough). At the end of the day, of course, the underlying question is the same: whether the proceedings were fair and seen to be fair. But there is an important difference. Bias or apparent bias on the part of the tribunal cannot be corrected. On the other hand, as was emphasised in Montgomery, knowledge of prejudicial material need not be fatal; its effects must be considered in the context of the proceedings as a whole, including the likely impact of the oral evidence and the legal advice available.
Mr Ley-Morgan also cited other passages from Mahfouz. In paragraph 22 he set out the common law test in a case of prejudicial publicity:

"The common law test, which is applied where pre-trial publicity is relied upon in support of a plea of oppression, is whether the risk of prejudice is so grave that no direction by a trial judge however careful could reasonably be expected to remove it…"
In paragraphs 28 and 29 he explained the significance of his view when being considered by the GMC:

28. The relevance of Subramanian to my mind is the emphasis it lays on the particular features of the GMC procedures, and also as an illustration of the kind of factors which will be relevant in considering whether PCC proceedings are irretrievably poisoned by disclosure of previous decisions. Of particular importance are the experience of the committee, and the availability of independent legal advice to ensure that irrelevant matters do not play any part in their deliberations….

29. These matters had to be looked at by the Committee, not just subjectively, but also putting themselves in the shoes of the hypothetical "fair-minded observer". However, in a case such as the present, where the fairness and impartiality of the Committee is not in question, it is difficult to see much practical difference between the two approaches. The factors, which would lead reasonable Committee members to satisfy themselves that subjectively they would be able to try the case fairly, would generally be the same as those which would lead a fair-minded observer to the same conclusion."
In my view Mr Ley-Morgan's submissions are to be preferred and I propose to deal with the matter on the basis of the test in Mahfouz.

Discussion and conclusions
Mr Ley-Morgan makes the point that Mr Fox was a relatively experienced member of the Panel. He is one of three people on the police authority list. He became an independent member in April 2004; he had sat on six panels prior to 25^th August 2010. He had undergone training in 2004 and 2008.
Mr Greaney QC's complaint is that if the Decision Rationale document for the first hearing was before the Panel on 17^th December 2009 Mr Fox would have learned details of the first offence which would have made it unfair for him to sit on the panel on 25^th August 2010. In particular he would have known that another member of the public was involved and spent a night in custody as a result of the actions of P C French.
Mr Ley-Morgan seeks to answer this in a number of ways. First he relies on the evidence of Mr Exley that the Decision Rationale was not before the Panel on 17^th December 2009. He makes the additional point that if it had been a copy would have been supplied to P C French's legal advisors. Second he draws attention to the fact that on 17^th December 2009 the Panel heard and accepted substantial mitigation on behalf of P C French. It accepted that both incidents were out of character as justifying a finding of exceptional circumstances. Third he carried out a careful analysis of precisely what the whole Panel knew on 17^th December 2009 in respect of the incident on 24^th August 2008. He compared this with what the whole Panel knew on 25^th August 2010 from the charge (which referred expressly to P C French having been disciplined for being drunk) and to the witness statement of Richard Hanks which contained a similar reference. Fourth he drew my attention to the fact that the crucial issue was whether P C French's drink was spiked. Fifth he made the point that the Panel sat with a legal adviser. Accordingly he concluded that as Mr Fox's impartiality had not been challenged there was no reason for the court to conclude that Mr Fox's view is wrong.
In his submissions Mr Greaney QC accepted that he could not challenge Mr Fox's decision to continue unless he could persuade me that the Decision Rationale Document was before the tribunal on 17^th December 2009. He made a number of points designed to persuade me to infer that the Decision Rationale was in fact before the Panel. Amongst these was the fact on page 28 of the Transcript Mr Green referred to the fact that P C French initially went to the police to seek help as a result of an assault on her.
I unhesitatingly prefer the submissions of Mr Ley-Morgan on this issue. I do not accept that the Decision Rationale was before the Panel on 17^th December 2009. There is no direct evidence that it was. Such evidence as there is points to the fact that it was not before the panel. None of the lawyers concerned have produced positive evidence from their files that it was before the Panel. There may have been any number of reasons why Mr Green made the remark he did in mitigation. He had, after all, taken instructions from P C French. To my mind it provides no clue one way or the other as to whether the Decision Rationale was before the Panel.
Even if it was I am satisfied that Mr Fox and the Panel were entitled to conclude that the proceedings were not only fair but could be seen to be fair. The issue to be decided related to the question of spiking P C French's drink. It was totally different from the issue in relation to the first hearing. Much of the material from the Decision Rationale was in any event contained in material before the Panel on 25^th August 2010. When one takes into account the mitigation which was accepted on 17^th December 2009 I do not think that the additional knowledge that a member of the public was kept in custody overnight on 24^th August 2008 means that a fair minded observer would not regard it as fair for Mr Fox to continue.
I accordingly reject this part of the claim.

Further Expert evidence and the FME

The Law
There is no dispute as to the relevant law. Both sides agreed that guidance can be obtained from the judgment of the Divisional Court in CPS v Picton[2006] EWHC 1108. It is plain from the judgment of Keene LJ that the relevant question for the Divisional Court was whether the decision to refuse the adjournment was Wednesbury unreasonable.
Adapting the question in that case to this case:

"Could a reasonable panel, properly directed as to the law, and in the circumstances of this case have properly refused to grant the adjournment requested on behalf of P C French?"
In the course of his judgment Jack J summarised a number of principles to be extracted from the authorities:

(a) A decision whether to adjourn is a decision within the discretion of the trial court. An appellate court will interfere only if very clear grounds for doing so are shown.

(b) ….

(c) Where an adjournment is sought by the prosecution, magistrates must consider both the interest of the defendant in getting the matter dealt with, and the interest of the public that criminal charges should be adjudicated upon, and the guilty convicted as well as the innocent acquitted. With a more serious charge the public interest that there be a trial will carry greater weight.

(d) Where an adjournment is sought by the accused, the magistrates must consider whether, if it is not granted, he will be able fully to present his defence and, if he will not be able to do so, the degree to which his ability to do so is compromised.

(e) In considering the competing interests of the parties the magistrates should examine the likely consequences of the proposed adjournment, in particular its likely length, and the need to decide the facts while recollections are fresh.

(f) The reason that the adjournment is required should be examined and, if it arises through the fault of the party asking for the adjournment, that is a factor against granting the adjournment, carrying weight in accordance with the gravity of the fault. If that party was not at fault, that may favour an adjournment. Likewise if the party opposing the adjournment has been at fault, that will favour an adjournment.
As already noted I was referred to regulation 34(3) and (4) which deal expressly with the power to adjourn.

Submissions and Discussion
In the course of his submissions on the first day of the hearing Mr Greaney QC made a number of points. First, he submitted that a crucial piece of evidence damaging P C French's defence was presented during the course of the hearing. This was a breach of regulation 21. Second the Court should conclude that this arose through fault on the part of the Chief Constable. In support of this he relies on the correspondence from Mr Cameron set out above. Third he criticised the Panel's statement that the expert evidence could not conclusively determine the central issue. It is not safe to conclude that the defence evidence could not have assisted P C French. Rather he submitted that P C French's defence was seriously compromised. Finally he pointed out that P C French did not give evidence as a result of the refusal of the adjournment.
In his detailed skeleton argument Mr Ley-Morgan was critical of P C French and/or her adviser's behaviour. He pointed out that she was subject to a live final warning. If she was found guilty of gross misconduct it was a virtual certainty that she would be dismissed. As her only defence was that her drink had been spiked she must have appreciated that she needed expert evidence to keep her job. In those circumstances her decision not to provide the third sample of hair was incomprehensible. He made the point that Mr Cameron did not query the first report and only suggested that he might get his own report when he believed that the second sample had not been sent for testing. He criticised Mr Cameron for not seeking to contact Inspector Sullivan directly. He made the point that in her application to adjourn Ms Cranidge expressly did not seek an adjournment to have a further hair sample tested. Rather she merely wanted to be advised by a toxicologist on Dr Perry's report. In fact no such report had been obtained by the date of the first hearing and thus the Court was not then in a position to know what such a report would have said.
He submitted that the Panel's conclusions both on Dr Perry's second report and the refusal of an adjournment were not unreasonable. It was reasonable to take the view that any comment on the report would not be conclusive on the crucial issue of whether P C French's drink was spiked. In those circumstances it was reasonable (or at least not unreasonable) to refuse the application for an adjournment.
I agree with Mr Greaney QC that Dr Perry's second report was an important piece of evidence and that it would have been better if P C French had sight of it before the hearing. It was important because it provided no support for the suggestion that GHB had been administered on the night of 4^th/5^th March 2010. It also eliminated a number of other drugs. Taken with the first report on the blood sample a large number of drugs were eliminated. The Panel were however also right to comment that the report did not exclude possible spiking. In my view P C French cannot complain about this because she refused to supply the third sample and because her solicitors took no steps to have another sample of hair tested when they knew that Inspector Sullivan had reported that the second sample was inadequate for complete tests to be carried out.
I do not accept, however, that the Chief Constable was "at fault" in not obtaining the second report earlier. There is no reason to doubt Inspector Sullivan's evidence that he was not aware of it until he contacted Dr Perry on the morning of the hearing. Thus I do not accept that there was a breach of regulation 21.
In the light of the reports of Mr Brown Mr Greaney QC submitted on the second day that Mr Brown could have assisted her defence. He relied on those passages in Mr Brown's reports which cast doubt on the accuracy of the May 2010 results. He also reminded me that the police failed to take a urine sample on the morning of 5^th March 2010. Such a sample might have provided evidence of GHB. He therefore submitted that it was arguable that P C French had been deprived of the opportunity of obtaining scientific evidence in support of her case and that it would accordingly have been an abuse of process for the disciplinary proceedings to continue. Indeed he submitted that if there were to be a further hearing it would be P C French's case that there could now be no fair trial.
I cannot accept these arguments which appear to me very far-fetched. First, Mr Brown agreed in all material respects with the views of Dr Perry. Second there was nothing to prevent P C French from obtaining her own expert evidence. She knew that she faced possible dismissal from a very short time after the incident on 4^th/5^th March; she had the benefit of representation. She must have appreciated that her defence depended on expert evidence. She refused to supply a further sample when it was asked for on 24^th June 2010. She was told that the second sample was inadequate. It is true that there was correspondence between the parties between 12^th July 2010 and the hearing on 25^th August 2010. None of this begins to persuade me that P C French had in some way been deprived of obtaining expert evidence in support of her defence.
In reality Mr Brown agrees with Dr Perry. Neither expert provides any support for the proposition that P C French's drink was spiked. Equally neither can exclude the possibility that it was. Thus the Panel's reasoning in refusing the adjournment was proved accurate.
I remind myself of the high hurdle that P C French has to surmount in this application. The decision to adjourn is essentially discretionary and this Court will only interfere if very clear grounds are shown. The decision must be shown to be unreasonable in the sense I have set out above.
The Panel were plainly entitled to approach the application to adjourn on the basis that it was put to them. They were entitled to rely on Ms Cranidge's statement that there was no intention to carry out further tests on P C French's hair. A number of persons were present and waiting to give direct evidence as to what happened on the evening of 4^th/5^th March 2010. Although the tests were negative as the Panel recognised they did not exclude the possibility that P C French's drink had been spiked. In those circumstances the Panel's view that "it would neither be fair or in accordance with the principles of natural justice to delay the proceedings by adjourning the proceedings" cannot be said to be so unreasonable that this Court is entitled to interfere.
Similarly the Panel's views on the FME are not open to challenge especially in the light of regulation 34(4).
Furthermore once the adjournment had been refused there can be no criticism of the conduct of the hearing or of the result. There is no reason to believe that the Panel were not aware that the burden of proof was on the presenting side. However, as Mr Ley-Morgan pointed out, the standard of proof was the civil standard. Furthermore there was no evidence at all that P C French's drink had been spiked other than her bare assertion. P C French, on advice, chose not to give evidence but as she could remember little of the events of the evening it is difficult to know what evidence she could have given. The Panel expressly accepted the evidence of Richard Hanks.
Accordingly I would dismiss this ground as well. It follows that the application for judicial review on the Second Claim must be dismissed

The First Claim
In the light of my decision on the Second Claim the First Claim is academic. P C French's summary dismissal will stand whether or not the second misconduct proceedings should have been a misconduct meeting rather than a misconduct hearing. The only relevance of the First Claim is as to the question of costs.
It will be recalled that the issue in the First Claim is whether the second misconduct proceedings should have been dealt with by a misconduct meeting rather than a misconduct hearing. It will also be recalled that following a misconduct meeting there is no power to award any penalty more severe than a final warning. As P C French was already subject to a final warning on 17^th December 2009 this was a penalty of limited practical effect.
It will also be recalled that the assessment under regulation 12(1) on 30^th June 2009 was that the conduct was misconduct rather than gross misconduct. Such an assessment would normally lead to a misconduct meeting. This is clear from regulation 19(9)(c). The exception to this is contained in regulation 19(9)(a) which applies:

where the officer concerned had a final written warning in force at the date of the assessment of conduct under regulation 12(1) of these Regulations
It is, however, clear that P C French did not have a final written warning in force on 30^th June 2009. The final written warning was awarded on 24^th August 2009. It follows that at least up to 13^th October 2009 P C French's misconduct was to be dealt with at a misconduct meeting.
It will be recalled that on 13^th October 2009 Det Sup Williams purported to reassess the conduct as "gross misconduct". There is, of course, power to vary an assessment at any time under regulation 12(5). If this assessment had remained it would have been dealt with at a misconduct hearing. This, however, has nothing to do with regulation 19(9)(a). It is because of regulation 19(4) which so provides.
However in this case the reasoning of Det Sup Williams was plainly bad. I have set out her reasoning and shall not repeat it. As Mr Ley-Morgan accepted P C French's conduct had not changed. The reasoning related to the penalty and not the conduct itself. Mr Ley-Morgan sought to argue that it would have been open to Det Sup Williams vary the assessment by keeping the conduct as misconduct but varying the mode of hearing. In support of this he referred me to Paragraph 2.51 of the Home Office Guidance which he submitted supported the view that the mode of hearing was part of the assessment. I do not accept this submission. It is, to my mind, plain that the assessment under regulation 12(1) or (5) is an assessment of the conduct. The mode of hearing is a consequence of the assessment not part of it. Unless, therefore, Det Sup Williams (as she purported to do on 13^th October 2009) varied the assessment to "gross misconduct" there was in my view no variation of the assessment.
The mistake made by Det Sup Williams was plainly recognised by Det Sup Bennett on 4^th December 2009 because he varied the severity assessment back to misconduct. As Mr Ley-Morgan recognised he was plainly right to do so. He, however, went on to assert that regulation 19(9)(a) applied with the result that the matter would be dealt with by a misconduct hearing.
If he is right and the Panel on 17^th December 2009 held that he was right P C French has been severely prejudiced by the mistaken assessment of Det Sup Williams. It is only because she wrongly purported to assess the conduct as gross misconduct that he was able to vary the assessment at a date when a final warning was in force.
Mr Green, however, in a detailed and thoroughly researched skeleton argument submits that he is wrong. He submits that regulation 19(9)(a) is perfectly clear. It refers specifically to the date of the assessment of conduct under regulation 12(1). He draws to my attention that one date is referred to and one assessment. This must he submits refer to the initial assessment – that is to say the assessment on 30^th June 2009. The fact that there are later assessments does not affect this. The later assessments are made under regulation 12(5) and are not the assessment referred to in regulation 19(9)(a).
Mr Ley-Morgan submits that Mr Green's interpretation cannot be what Parliament intended. It gives rise to bizarre results depending on the date when a final warning was given. In his skeleton argument he gives examples of situations where such results could occur. I am not going to lengthen this judgment by setting out the examples.
Mr Ley-Morgan accordingly submits that the words the date of the assessment of conduct under regulation 12(1) should be interpreted to include any revised assessment under regulation 12(5).
Mr Green does not dispute that the natural meaning of regulation 19(9)(a) is capable of giving rise to anomalies and he does not dispute the examples given by Mr Ley-Morgan. However he contends that Mr Ley-Morgan's construction can also give rise to anomalies. Indeed this case may be thought to be one. The words are clear and there is not reason not to interpret them according to their tenor. If it had been the intention of Parliament that an officer should face a misconduct hearing if was subject to a final warning at any time prior to the actual hearing it would have been easy so to provide. Parliament has chosen the date of the regulation 12(1) assessment as the cut off date. There is no reason not to adhere to it.
When these papers were initially before me I was seduced by the attractiveness of Mr Ley-Morgan's argument and I refused permission on paper. Largely for the reasons given by Mr Green I have changed my mind. In my view regulation 19(9)(a) is clear and there is no reason to import the words sought by Mr Ley-Morgan. Either construction is capable of giving rise to anomalies. In those circumstances I see no reason not to construe regulation 19(9)(a) in accordance with its ordinary meaning. The assessment referred to is the initial assessment. Any later assessment is an assessment under regulation 12(5) and not the assessment under regulation 12(1) referred to in regulation 19(9)(a).
It follows if it had not been academic I would have granted relief to P C French in respect of the First Claim. As it is academic (save for costs) it will be dismissed but the Defendant will pay the costs.

Conclusion
For the reasons given above both claims will be dismissed.
I cannot leave this case without acknowledging with thanks the very considerable assistance I have had from all three Counsel in this case. The skeletons were detailed and of the highest quality. I was also assisted by the helpful and clear oral submissions.

Note 1 This is because the Forensic Science Service does not currently carry out hair testing and thus all such testing is carried out in France. [Back]