QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE CHIEF CONSTABLE OF HAMPSHIRE CONSTABULARY
|- and -
|POLICE APPEALS TRIBUNAL
|- and –
|MR ADAM McCLEAN
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Official Shorthand Writers to the Court)
(instructed by CHIEF CONSTABLE OF HAMPSHIRE CONSTABULARY)
for the CLAIMANT
MISS CAROLINE BOLTON
(instructed by POLICE APPEALS TRIBUNAL LEGAL SERVICES)
for the DEFENDANT
MR MARTIN WESTGATE QC
(instructed by RUSSELL JONES & WALKER SOLICITORS ) for the INTERESTED PARTY
Hearing dates: 21st March 2012
Crown Copyright ©
MR JUSTICE MITING:
Facts and procedural history
"Between 1st July 2000 and 15th May 2002 you treated a number of female colleagues with a lack of dignity and respect making inappropriate comments, some of which were with sexual innuendo, in breach of the code of conduct expected of you as a police officer".
The officers concerned were PCs Playscott, Dye, Merryweather, Hall and Slater. He made partial and qualified admissions in relation to their allegations, summarised by the investigating officer, DCI Stewart: that on a number of occasions he had made inappropriate sexual remarks at his place of work to various officers.
"That request has not been elaborated upon or expressly repeated within or following the Reg 22 response and therefore it is unclear if it is still the officer's position. In any event, the decision whether to require the attendance of any witnesses at the hearing is one for the Chair (Reg23(3)). The test is whether he reasonably believes it is necessary for the witness to do so in the interest of justice.
- Guidance note 2.160 [a reference to the Home Office guidance referred to below] states, "Generally speaking misconduct meetings and hearings will be conducted without witnesses". I have carefully considered whether it is necessary in the interest of justice to call any of the witnesses. I do not see, nor have I been presented with any compelling reason to do so. During interview on 15th September 2009 PC McLean was presented an opportunity to comment on various officers' accounts. In the Regulation 22 response he does not dispute the contact with some of the female officer, only disputes their versions of what occurred.
- I do not see any reason why any of these officers would change their account of what occurred. To that end I will not be seeking the attendance at the misconduct hearing of those officers contained with the papers served."
"In the interest of justice and fairness, the above witnesses are required in order that the defence can not only cross-examine and challenge their evidence, but as stated in the Regulation 22 response, certain parts of their evidence have been stated as a result of either a misunderstanding or having misconstrued what PC McLean has stated.
This can only be clarified by calling such witnesses live and providing the defence with the opportunity to challenge their evidence, as much of such evidence is contentious. In addition, it would appear that some of the witnesses have stated matters out of context and such issues require clarification and may be resolved in favour of PC McLean".
She went on to express her concern that, by not requiring the officers to attend, it appeared that their statements had been accepted without challenge or enquiry. She went on to state that if the panel determined that the previous warnings were relevant and admissible, the officers who were the subject of the allegations were also required to be called as well.
"The incident with PC Jackson in 2001 at her home address occurred as she described it
PC McLean made inappropriate comments of a sexual nature towards PC Hands as she has described.
We accept the evidence of PC Hartgill but do not feel it contains evidence of overt inappropriate behaviour.
An incident occurred in 2000 at PC Creese-Smith's home in which PC McLean made an improper advance towards her.
Between 1st July 2000 and 15th May 2002, PC McLean treated a number of female colleagues, namely PS Playscott, PC Dye, PC Hall, PC Merryweather and PC Slater with a lack of dignity and respect, making inappropriate comments, some of which were with sexual innuendo.
PC McLean has also made inappropriate comments and/or sent inappropriate texts and/or behaved inappropriately towards PC Mellish, PC Dove and PC Hodge as these officers have described in their statements."
It also took note of the verbal and written warnings, of the fact that the behaviour had extended over a period of approximately 8 years and in a number of cases occurred when PC McLean was in a position of authority and responsibility as a tutor constable.
"A Police Appeals Tribunal may on the determination of an appeal under this section, make an order dealing with the appellant in any way in which he could have been dealt with by the person who made the decision appealed against".
"23(1) As soon as practicable after any list of proposed witnesses has been –
a) agreed under regulation 22(5); or
b) where there is no agreement under regulation 22(4), supplied under regulation 22(4).
The appropriate authority shall supply that list to the person conducting or chairing the misconduct proceedings.
(2) The person conducting or chairing the misconduct proceedings shall –
a) consider the list or lists of proposed witnesses; and
b) subject to paragraph (3), determine which, if any, witnesses should attend the misconduct proceedings.
(3) No witness shall give evidence at misconduct proceedings unless the person conducting or chairing those proceedings reasonably believes that it is necessary for the witness to do so in the interests of justice, in which case he shall –
a) where the witness is a police officer, cause that person to be ordered to attend the misconduct proceedings'
b) in any other case, cause the witness to be given notice that his attendance is necessary and of the date, time and place of the proceedings."
"(1) The Secretary of State may issue relevant guidance to –
a) local policing bodies,
b) chief officers of police,
c) other members of police forces,
d) special constables and,
e) members of the civilian staff of a police force…
(1ZA) "Relevant guidance" is guidance as to the discharge of functions under regulations under section 50 or 51 in relation to the matters mentioned in section 50(2)(e) or 51(2)(ba)
(1A) The Secretary of State may also issue guidance to the Independent Police Complaints Commission concerning the discharge of its functions under any regulations under section 50 or 51 in relation to disciplinary proceedings…
(3) It shall be the duty of every person to whom any guidance under this section is issued to have regard to that guidance in discharging the functions to which the guidance relates.
(4) A failure by a person to whom guidance under this section is issued to have regard to the guidance shall be admissible in evidence in any disciplinary proceedings or on any appeal from a decision taken in any such proceedings.
(5) In this section "disciplinary proceedings" means any proceedings under any regulations under section 50 or 51 that are identified as disciplinary proceedings by those regulations."
The introduction to the guidance stated that,
"Those who are responsible for administering procedures described in this guidance are reminded that they are required to take its provisions fully into account when discharging their functions. Whilst it is not necessary to follow its terms exactly in all cases, the guidance should not be departed from without good reason."
"2.160 Generally speaking misconduct meetings and hearings will be conducted without witnesses. A witness will only be required to attend a misconduct meeting/hearing if the person conducting or chairing the meeting/hearing reasonably believes his or her attendance is necessary to resolve disputed issues in that case…
2.161 The appropriate authority and the officer concerned shall inform each other of any witnesses they wish to attend including brief details of the evidence that person can provide and their addresses. They should attempt to agree which witness(es) are necessary to deal with the issue(s) in dispute.
2.162 The appropriate authority shall supply the person(s) conducting the proceedings with a list of the witnesses agreed between the parties or where there is no agreement, the lists provided by both the officer and the appropriate authority. The person conducting a misconduct meeting or the chair of a misconduct hearing will decide whether to allow such witnesses. The person conducting or chairing the misconduct proceedings may also decide that a witness other than one on such lists should be required to attend (if their attendance is considered necessary)."
It was the first sentence of this advice which ACC Dann cited in his email of 24th March 2010.
"(3) Without prejudice to the powers conferred by this section, regulations under this section shall –
a) establish, or
b) make provision for the establishment of,
procedures for the taking of disciplinary proceedings in respect of the conduct, efficiency and effectiveness of members of police forces, including procedures for cases in which such persons may be dealt with by dismissal".
Section 51(2)(ba) makes similar provision to that contained in section 50(2)(e) for special constables.
"…Where there is an important point of primary fact on which there is a dispute between the witness and the doctor, and the point turns vitally on the word of one against the other (rather than, for example, on conclusions to be drawn from clinical records), it is hard to see in the ordinary nature of things how it would not add materially to the decision-making process for the panel to hear and see the witness at first hand".
This was the approach of the Police Appeals Tribunal, which I have summarised above. I agree with their approach. In a case, such as this, in which critical incidents were witnessed by only two people – the complainant police officer and PC McLean – and there was a possibility of misunderstanding or exaggeration, the interests of justice will ordinarily require that both witnesses to the event are heard. The seriousness of the consequences for the officer concerned are a relevant factor: see, by analogy, the consequences for the medical practitioner in Bonhoeffer v. General Medical Council  EWHC 1585 (Admin) at paragraph 108(viii), per Stadlen J. Where the consequence for the police officer concerned may be dismissal, it is unlikely that the chairman could reasonably hold the belief that it was in the interests of justice that the complainant should not be called. I wish, however, to emphasis two points: those observations do not apply in circumstances in which the evidence of the complainant is cogently supported by unchallengeable evidence – for example, CCTV footage or voluntary admissions made by the officer concerned; and there will rarely, if ever, be a need to call witnesses about events which are not central to the allegations of misconduct.
The statutory framework – appeals to the Police Appeals Tribunal.
"(4) The grounds of appeal under this rule are –
a) that the finding or disciplinary action imposed was unreasonable; or
b) that there is evidence that could not have reasonably considered at the original hearing which could have materially affected the finding or decision on disciplinary action; or
c) that there was a breach of the procedures set out in the Conduct Regulations [The Police (Conduct) Regulations 2008]…or other unfairness which could have materially affected the finding or decision on disciplinary action."
"(1) The Tribunal shall determine whether the ground or grounds of appeal on which the appellant relies have been made out."
The only statement about the Tribunal's powers of decision is contained in section 85(2) of the Police Act 1996:
"(2) A Police Appeals Tribunal may on the determination of an appeal under this section, make an order dealing with the appellant in any way in which he could have been dealt with by the person who made the decision appealed against."
That provision was logical and sufficient when, as under the 1999 rules, the Tribunal conducted a re-hearing and made its own decision on all aspects of the case – facts, law and sanction. It is not an adequate power for a Tribunal whose powers are, or include, those of review of the decision under appeal.
"(4) The appellant shall supply the following documents to the relevant police authority…
(c) Where the appellant is permitted to adduce witness evidence –
(i) a list of any proposed witnesses;
(ii) a witness statement from each proposed witness;…
(5) For the purposes of paragraph (4)(c) –
a) an appellant is only permitted to adduce witness evidence where he is relying on the ground of appeal set out in rule 4(4)(b)…"
This submission is untenable. Such evidence can only be adduced if the evidence "could not reasonably have been considered at the original hearing". The ground of appeal under paragraph 4(4)(c) is that the belief that it was not in the interests of justice that the witnesses should be called was unreasonable. If that ground is made out, the live evidence of the witnesses could and should "reasonably have been considered at the original hearing". Further, the evidence contained in the witness statements which PC McLean would be required to serve could not materially have affected the finding or sanction: it supported both. Nor could the problem be solved by the Chief Constable calling the witnesses: he is only permitted to do so under rule 9(9)(a) "Where the appellant is relying on the ground of appeal set in rule 4(4)(b)…"
"(3) No witness shall give evidence at the hearing unless the chair reasonably believes that it is necessary for the witness to do so, in which case the chair shall –
a) where the witness is a police officer, cause that person to be ordered to attend the hearing; and
b) in any other case, cause the witness be given notice that his attendance is necessary and of the date, time and place of the hearing".
That power does not exclude the right of the Tribunal to call a witness for itself, but it immediately follows rule 14(2) which makes it clear that the power of the chairman of the Tribunal to determine which witnesses are called only applies when the appellant is relying on the ground of appeal set out in rule 4(4)(b) and either he or the Chief Constable have proposed witnesses under rule 9. Rule 16(1) gives to the Tribunal a power to determine the procedure at a hearing, but, it is subject to the rules,
"(i) Subject to these rules, the procedure at a hearing shall be determined by a Tribunal."
It is possible that, exceptionally, the Tribunal might use that power to permit itself to call a witness or witnesses. The circumstances in which that might occur are likely to be few and no purpose would be served by my attempting to speculate when they might arise. Even if the Tribunal has that power, it is unlikely to be able properly to exercise it in circumstances such as those in this case. Where the interests of justice require that witnesses on both sides are called about the incidents which give rise to the findings of gross misconduct, it is self-evident that the Tribunal would have to hear both sides before it could determine where the truth lay. It would have to conduct a re-hearing, as it used to do under the 1999 rules. The 2008 rules have been passed to substitute a different scheme for determining appeals. They cannot legitimately be used to revert to the old procedure.
The Tribunal's decision