England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		27/03/2012

MR JUSTICE MITING:

Facts and procedural history

1. PC Adam McLean is now 51. He became a Special Constable in 1992 and a Police Constable with Hampshire Constabulary in 1996. Between 2000 and 2008 a number of complaints were made about his conduct by female police officers and one female member of staff. On 16^th August 2000 Inspector Cooper spoke to PC McLean about an allegation made by WPC Creese-Smith that he had made advances towards her and tried to kiss her. He warned PC McLean that if he had tried to do so his conduct was unacceptable and must not be repeated. On 8^th November 2002 PC McLean accepted a written warning in the following terms:

"Between 1^st July 2000 and 15^th 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.

2. A further incident in 2001, not reported at the time, was said by PC Jackson to have occurred. After an uneventful late shift duty with PC McLean, he arrived at her home at about half past midnight and, having said that he was attracted to her, approached her with arms outstretched. She told him in blunt terms to leave immediately, which he did. She reported the incident to PC Playscott.
3. Three police officers and one member of staff, PCs Mellish, Hodge and Quick and Ms Rachel Davies said that at different times between the end of 2004 and 2008, PC McLean had sent inappropriate text messages to them or made enquiries about their personal life which they were not willing to discuss. None of them treated his conduct as of great moment.
4. A probationer officer, PC Dove made a more serious complaint about PC McLean's conduct in November 2005. He drove her out into the New Forest after midnight, switched off the engine and told her that he did not sleep with his wife and that they had separate bedrooms. She was shocked and told acting Police Sergeant Pentelow that she would not crew with him again.
5. Two police officers made complaints about his conduct in 2008. PC Hands, who had joined the constabulary on 10^th December 2007, complained of his behaviour on the first day on which they went on patrol together in July 2008. He said to her that if he were fifteen years younger and more good looking, he would ask her out and asked her to have lunch with him. She told him that it offended her and asked him to stop. On the second occasion on which she went on patrol with him, he started talking about "people doing things in the back of police cars and getting caught" and "I wouldn't say no to you". Later, when she complained of being tired, he said that if she wanted to go to sleep, she could "and I wouldn't do anything to you". His comments made her feel uncomfortable and uneasy. PC Hartgill, who had joined Hampshire Constabulary on 18^th February 2008, complained of two incidents in October 2008, while she was on patrol with PC McLean. He had told her that he had had good experiences with probationers or student officers: the last one he had, had wanted "to get it on in the back of the police car", an offer which he had declined. On another, he asked her out to lunch. She thought his conduct was "creepy", but did nothing about it until she had heard about PC Hands's complaints.
6. These complaints gave rise to an investigation, conducted between 7^th August and 12^th October 2009 by Detective Sergeant James. She obtained statements from or about the police constables and member of staff referred to in paragraphs 2-5 and from four other police officers who made no complaint about PC McLean's conduct towards them. She interviewed him on 15^th September 2009. He said that he had no recollection of any incident involving PC Jackson. He denied making suggestive remarks to PC Hands, but accepted that he had said that if she was tired, she could go to sleep in the back of the police car. He denied making the comments reported by PC Hartgill. DS James reported that, in her view there was a case to answer in respect of gross misconduct. That prompted a notice of referral to misconduct proceedings under regulation 21 of the Police (Conduct) Regulations 2008 SI 2008 No. 2864, issued on 13^th November 2009. The notice cited, as details of the misconduct alleged, the complaints of PCs Hands, Hartgill and Jackson and, without naming them, of the other police constables and member of staff in general terms. As required by regulation 21, the individuals who were to conduct the misconduct hearing, including the chairman, Assistant Chief Constable Dann, were identified in the notice. The hearing was to take place on 23^rd December 2009. In the event, for reasons connected with PC McLean's medical condition, it did not take place until 30^th and 31^st March 2010.
7. PC McLean did not accept that his conduct amounted to gross misconduct. Accordingly, Regulation 22(1) and (2)(c) required him to give written notice to the Chief Constable within 14 days of 13^th November 2009 or within such extended period as was allowed to him by ACC Dann, of the allegations which he disputed and his account of the relevant events and any arguments on points of law he wished to be considered. Regulation 22(4) required both the Chief Constable and PC McLean to "supply to the other a list of proposed witnesses" including brief details of the evidence that each witness was able to adduce, within three working days of the giving of the notice required by Regulation 22(2)(c). On 4^th February 2010 ACC Dann confirmed the hearing dates as 30^th and 31^st March 2010. On 19^th March 2010, the written notice required by Regulation 22(2)(iii) was given by PC McLean. It set out his detailed response to the witness statements of PCs Hands, Hartgill and Jackson. In relation to PCs Hands and Hartgill, he repeated the answers which he had given in interview. In relation to PC Jackson, for the first time, he gave a detailed answer: that he had been invited to her home for a cup of tea and a chat, but had not made advances towards her or been chased out of her home. He said that the behaviour which had given rise to the written warning was caused by the consequences of a serious assault on him in 2000. He stated that statements from other female officers not wishing to pursue charges or which were hearsay were inadmissible and irrelevant.
8. In a document which I have not seen, the Chief Constable stated that he did not intend to call any witnesses (his intention was noted by ACC Dann in the email referred to below). PC McLean did not supply a list of proposed witnesses within the time prescribed by Regulation 22(4). Counsel then acting for him had, on 30^th November 2009 when successfully seeking an adjournment of the hearing, sent a fax message which was forwarded to the Chief Constable in which she stated that "all proposed witnesses remain contentious and as such will be required to give live evidence". By an email sent on 24^th March 2010, ACC Dann dealt uncontroversially with the claim in PC McLean's regulation 22 statement that some of the evidence was hearsay. No issue turns on that. He also dealt with PC McLean's counsel's statement in her fax message of 30^th November 2009 that all witnesses would be required to give live evidence,

"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 15^th 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."

9. That prompted an immediate response from Counsel for PC McLean, by a document headed "Addendum to response pursuant to Regulation 22…". Under the heading "Witness requirements" she stated that the following witnesses were required to be called to give live evidence: PCs Hands, Hartgill, Jackson, Mellish, Dove, Hodge, Quick, Laura Smith and Russell Smith, PS Wood and Ms Davies. She set out her reasons for requiring them to give evidence:

"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.

10. The issue was raised on the first day of the misconduct hearing. ACC Dann made it clear that the panel had not pre-judged any issues or accepted that the witness statements relied on by the Chief Constable were true and accurate. He directed that oral evidence should be given by PC Jackson and PS Playscott, but reiterated his decision that none of the other witnesses should be called, for the reasons which he had given in his email. PC Jackson and PS Playscott gave oral evidence in the traditional manner and were cross-examined upon it. PC Jackson impressed the panel as "an extremely credible witness" and, in the event, they accepted her account of what had occurred at her home in 2001 as true and accurate. They rejected the conflicting account, also given in oral evidence, of PC McLean.
11. Given the emphasis placed on the need to hear oral evidence about the critical incidents of alleged misconduct, the evidence in chief of PC McLean took a surprising course. It was almost entirely devoted to his family circumstances and medical condition. All that he said about the incidents alleged was that he adopted his Regulation 22 notice and addendum and denied inappropriate sexual behaviour, advances and "wording" in relation to PCs Hands and Hartgill. He was briefly cross-examined about the allegations made by PC Hands and more extensively about those made by PC Jackson. Apart from that, he was asked briefly about PCs Merryweather, Dye and Hodge and about inconsistencies in his account of his relationship with PC Smith, in respect of which no allegation of misconduct was made. He was not asked at all about the allegations made by PCs Dove and Hartgill.
12. With one exception, the panel found the allegations of gross misconduct proved and imposed the sanction of dismissal without notice. The panel noted that in relation to the allegations made by PCs Hands, Hartgill and Creese-Smith, PC McLean offered no more than a bare denial. It found no evidence that PCs Hands and Hartgill had colluded to fabricate or embellish their evidence. It noted that PC McLean had offered no evidence to rebut the allegations of PCs Mellish, Dove and Hodge and of Ms Davies. It made the following findings:

"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 1^st July 2000 and 15^th 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.

13. PC McLean appealed to the Police Appeals Tribunal on a number of grounds. The panel uncontentiously rejected some of them and determined that others did not need to be decided, in the light of its conclusion on the principal issue, which gives rise to this claim: the decision of ACC Dann not to require witnesses other than PC Jackson and PS Playscott to be called. The Tribunal decided that PC McLean had made it clear that he required the witnesses to be called. It concluded that the decision to refuse to have PCs Hands and Hartgill called was unreasonable and resulted in unfairness which could have materially affected the finding and the outcome. It found that refusal to be the more difficult to comprehend, given the decision to hear evidence from PC Jackson, whose evidence was not capable of forming part of the alleged misconduct under the 2008 regulations and was only admitted to demonstrate a pattern of behaviour. The Tribunal noted that the panel had found her to be a credible witness and had expressly relied on her general demeanour and consistency when so finding. The Tribunal did not consider it necessary to reach a final decision on whether or not any witness other than PCs Hands and Hartgill should have been called. They decided that it had no power to hear evidence from PCs Hands and Hartgill. Accordingly, the determinative issue in the appeal was whether the unfair decision not to allow PCs Hands and Hartgill to be called, so that their evidence could be tested by cross-examination and so that the panel could observe their demeanour was "an unfairness which could materially have affected the finding". They decided that the test was not whether the exercise by the chairman of what they described as "discretion" under Regulation 23(3) was Wednesbury unreasonable, but whether there was unfairness which could materially have affected the finding. It decided that there was and that the chairman's reason for not requiring them to be called failed to give consideration to the importance of judging the demeanour of witnesses "who may be lying, mistaken or have misinterpreted events". In summary, the panel could not "rationally decide to prefer one witness's evidence over that of another without hearing the evidence of each witness", words taken from the judgment of HH Judge Pelling QC in Gannon v. The Chief Constable of Merseyside Police [2009] EWHC 2133 (Admin).
14. The Chief Constable of Hampshire Constabulary challenges the Tribunal's decision on a number of grounds. It is common ground that, in determining this challenge, I must apply a Wednesbury test to the decision of the Tribunal.

Statutory framework

15. The decisions taken in this case were made under the Police (Conduct) Regulations 2008, section 85(2) of the Police Act 1996 and the Police Appeals Tribunals Rules 2008 SI 2008 No. 2863. The 2008 regulations and rules replaced the Police (Conduct) Regulations 2004 SI 2004 No. 645 and the Police Appeals Tribunal Rules 1999 SI 1999 No. 818. It is common ground that the intention of the Secretary of State, approved by the negative resolution procedure by Parliament, was to speed up and simplify police disciplinary procedures and to eliminate the need for formal misconduct hearings except in cases in which dismissal was a possible sanction – those in which it was alleged that the officer had been guilty of gross misconduct or of further misconduct after receiving a final written warning. Special provision was made for senior police officers with which it is unnecessary for me to deal. The new scheme replaced one in which no sanction, from caution to dismissal, could be imposed on a police officer without a hearing. The hearings were conducted like an old fashioned criminal trial, with all witnesses being called to give oral evidence, unless their evidence was agreed. Appeals to the Police Appeals Tribunal were by way of re-hearing. Oral evidence on both sides was given and the tribunal substituted its own decision for that of the disciplinary panel, exercising its power to do so under section 85(2) of the Police Act 1996:

"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".

16. A significant feature of the new scheme is the different provision made for determining allegations of gross misconduct (defined in regulation 3(1) as a breach of the Standards of Professional Behaviour so serious that dismissal would be justified), or misconduct following upon a final written warning, and misconduct. Both are to be dealt with by "misconduct proceedings", but only the former by a misconduct hearing. Misconduct which could be dealt with by disciplinary action up to and including a final written warning is to be dealt with by a "misconduct meeting" or by taking management action against the officer concerned. A misconduct hearing must be conducted by a panel of three persons - two senior police officers and an independent member from a list held by the Police Authority. A misconduct meeting must be conducted by an officer at least one rank higher than the officer concerned: regulation 25. The route of appeal is also different: from a misconduct hearing, it is to the Police Appeals Tribunal: rule 4(2)(a) of the 2008 rules; from a misconduct meeting, it is to an officer of at least one rank higher than the person who conducted the meeting: regulation 37(4) of the 2008 regulations. There is no further right of appeal to the Police Appeals Tribunal.
17. The Secretary of State might have provided for different procedural rules for misconduct meetings and misconduct hearings, but she did not. The proceedings for referral to a meeting or hearing and the procedure to be followed by the officer concerned are common to both and are contained in regulations 21 and 22. So is the provision for witnesses, which is contained in regulation 23:

"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."

18. Guidance was given by the Home Office, effective from 1^st December 2008, to coincide with the coming into force of the 2008 regulations and rules. Chapter 2 dealt with "Police Officer Misconduct Procedures" and annex C dealt with Police Appeals Tribunals. In the introductory paragraphs, the guidance is said to have been issued by the Secretary of State "in accordance with the provisions of section 87(1) of the Police Act 1996". That had an apparent consequence. Section 87, in its current form provides:

"(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."

19. Paragraphs 2.160 to 2.162 gave guidance to those conducting misconduct meetings and hearings:

"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 24^th March 2010.

20. Before turning to the critical question – the construction of regulation 23(3), it is necessary to consider the status of this guidance. Contrary to what is cited in the introduction, it is not statutory guidance. Section 87 of the Police Act 1996 only permits the Secretary of State to give 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)" and to the Independent Police Complaints Commission concerning the discharge of its functions under those regulations in relation to disciplinary proceedings. Section 50(2)(e) enables regulations to be made by the Secretary of State with respect to "(e) The conduct efficiency and effectiveness of members of police forces and the maintenance of discipline". This provision is included in a list of matters with respect to which regulations may be made under the general heading in section 50(1) "as to the government, administration and conditions of service of police forces". Specific matters include ranks, qualifications, probationary service, voluntary retirement, suspension, the maintenance of personal records, duties, hours of duty, leave, pay and allowances and the issue of police clothing and equipment. Disciplinary proceedings are dealt with under section 50(3):

"(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.

21. The Secretary of State is entitled to issue guidance about anything of her choosing; but the guidance can only have statutory force if authorised by legislation. Section 87(1) and (1ZA) is the only relevant statutory provision authorising guidance which imposes upon the person to whom the guidance is given an obligation to have regard to it. On a natural reading of section 87 and of section 50, the Secretary of State did not have power to issue guidance with that effect to those charged with conducting misconduct meetings or hearings. Authority to give guidance under section 50(3) would have been required to achieve that end. In the event, the relevant guidance does little more than set out, almost word for word, the binding requirements of regulations 22 and 23 of the Police (Conduct) Regulations 2008; but the first sentence of paragraph 2.160 is too emphatic and may be misleading. I have mentioned it principally because it is the first of a number of unsatisfactory features of the statutory and non-statutory framework under which misconduct hearings and appeals take place. If they are to be rectified, the opportunity may also be taken to put what is non-statutory guidance on a statutory footing or to make it clear that it is non-statutory guidance.
22. The drafting of regulation 23(3) is clumsy but, on analysis, clear. The starting point is that witnesses other than the officer concerned, shall not give evidence at a misconduct meeting or a misconduct hearing unless the chairman makes a decision to the contrary. The only ground upon which that decision can be made is "that it is necessary for the witness to do so in the interests of justice". If a person conducting a misconduct meeting or the chairman of a misconduct hearing concludes that it is necessary in the interests of justice for the witness to give evidence, he must decide to order that person to attend if he is a police officer or to be given notice that his attendance is necessary if not. It is not an exercise of discretion but of judgment. The reference to reasonable belief serves two purposes: to emphasise that the decision contains a substantial objective element and is not just dependent upon the opinion of the decision maker; and there is some room for a reasonable difference of belief between different decision-makers. Provided that the belief is one which could reasonably be held by a reasonable decision-maker, it will not be open to effective challenge on appeal to the Police Appeals Tribunal. What regulation 23(3) does not do is to define or even indicate the circumstances in which the reasonable decision-maker should conclude that the interests of justice require the witness to be called. For that, he must turn to the general law. Extensive citation is not necessary. I agree with and respectfully adopt the words of Toulson J in Dr. SS v Knowsley NHS Primary Care Trust [2006] EWHC 26 (Admin) (in which the decision to call witnesses was vested in the chairman of the disciplinary panel) at paragraph 98:

"…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 [2011] 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.

23. The grounds on which an appeal may be brought to the Police Appeals Tribunal are set out in rule 4(4) of the Police Appeals Tribunal Rules 2008,

"(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."

24. The rules contain no provision which identifies the basis upon which the Tribunal should allow or dismiss an appeal, beyond that set out in rule 22(1):

"(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.

25. It is common ground that the ground of appeal under rule 4(4)(a) gives rise to a right of review only: the task of the Tribunal is to determine whether a finding of gross misconduct or as to the sanction imposed was reasonable or unreasonable. The Tribunal must dismiss an appeal on that ground if satisfied that the finding of gross misconduct and/or the sanction imposed were reasonably open to a reasonable panel – the test is a Wednesbury test shorn of technicality. The ground of appeal under rule (4)(4)(b) involves a primary judgment which it is for the Tribunal to make: could the evidence have materially affected the finding or sanction? Mr. Bassett for the Chief Constable submits that the power of the Tribunal under rule 4(4)(c) is one of review on Wednesbury grounds. I do not accept that as a general prosposition: it is for the Tribunal to decide for itself, whether the Conduct Regulations were breached and, if not, whether there was other unfairness; and in each case whether the breach or unfairness could have materially affected the finding or sanction. However, when the issue is whether or not the chairman's decision under regulation 23(3) was reasonable, it is required to conduct a review. It is not their judgment of what the interests of justice required, but their judgment of the reasonableness or otherwise of the chairman's decision as to what the interests of justice required, which is determinative. It is unlikely that the application of this test will produce a different answer in many cases; but it is the test to be applied. If the Tribunal concludes that the chairman's decision was unreasonable, it will necessarily conclude that there has been a breach of regulation 23(3). Once it has done so, it cannot then conclude that the same error has caused "other unfairness", words which denote unfairness other than a breach of the regulations.
26. When the Tribunal decides that the finding or sanction was unreasonable, section 85(2) gives it ample power to put matters right: an unreasonable finding of gross misconduct or that a sanction of dismissal is merited cannot justify dismissal. The panel can achieve the right result by exercising the same power as that vested in the disciplinary panel and quashing the finding or reducing the sanction. A successful appeal under either of paragraphs 4(4)(b) or (c) creates greater problems. In both cases, the ground of appeal is that the new evidence or breach of procedure/unfairness could have materially affected the finding or sanction. If it so concludes, it is required by rule 22 to say so. The natural and expected consequence of determining that a ground of appeal has been made out is that the appeal must be allowed. If it is, the powers of the Tribunal are confined to those contained in section 85(2). It has no power to quash the finding of a disciplinary panel and remit the case to that panel or to a differently constituted panel to re-determine it in the light of new evidence and/or by applying procedures correctly and fairly. Mr. Bassett and Miss Bolton for the Tribunal, submit that the only outcome available to the Tribunal in those circumstances is to quash the finding or sanction as appropriate and order the re-instatement of the officer concerned. I am troubled by this outcome, but can see no way to avoid it. Unless the rules give to the Tribunal an effective power to re-determine the case itself and, if necessary, to ensure that it has the material necessary to do so, including live witness evidence, it will be obliged to allow an appeal because the finding of gross misconduct or decision on sanction could have been materially affected even when it is satisfied that the outcome probably ought not have been different. It cannot be in the public interest that a police officer who should be dismissed has to be reinstated because of procedural errors in the misconduct hearing. Either a clear power for the Tribunal to re-determine the question itself or a power to remit is required to avoid that result.
27. I have considered whether or not, in a case such as this, in which the error identified is a decision that witnesses should not be called, the Tribunal could call the witnesses itself and make its own decision. Mr. Westgate QC for PC McLean submitted faintly that the appellant could call the witnesses under rule 9(4)(c) and (5):

"(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)…"

28. I have considered whether or not rules 14(3) and 16(1) might permit the Tribunal to call the witnesses itself. Rule 14(3) replicates regulation 23(3):

"(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.

29. The only means by which problems of the kind identified above can be resolved is for the rules to be amended, either to give to the Tribunal the power to conduct a re-hearing in cases in which new evidence is admitted and/or in which there was a breach of procedure or other unfairness which could materially have affected the finding or sanction or to permit it to remit the case to the disciplinary panel to determine it in accordance with its directions.
30. Finally, the Home Office might wish to reconsider the guidance purportedly given under section 87(1) in respect of appeals to the Police Appeals Tribunal in Annex C to the Home Office Guidance effective from 1^st December 2008. It has no statutory force, despite the claim to opposite effect in the introduction, as Collins J pointed out in paragraph 24 of his decision in Chief Constable of Avon and Somerset v. Police Appeals Tribunal [2004] EWHC 220 (Admin). If the rules are to be amended, the opportunity might also be taken to amend the introduction to the guidance.

The Tribunal's decision

31. I agree with the Tribunal's decision, but not with every word of its reasoning. It determined that the ground of appeal under rule 4(4)(c) was made out because ACC Dann's decision not to call PCs Hands and Hartgill gave rise to an unfairness which could have materially affected the finding of gross misconduct. It should have addressed the anterior question: whether his decision was in breach of rule 23(3). For the reasons which the panel gave, ACC Dann's decision was in breach of rule 23(3). His reason for refusing to allow the witnesses to be called was that he did not "see any reason why these officers should change their account of what occurred". That was an inadequate reason for excluding their live evidence. As the Tribunal explained, because PCs Hands and Hartgill and PC McLean were the only witnesses to the incidents which founded two of the three specific allegations of misconduct set out in the regulation 21 notice, it was not reasonable to believe that the interests of justice did not require that they be called. Had the Tribunal addressed the issue in that way, it would undoubtedly have reached that conclusion. Having done so, it would not have needed to go on to consider, and could not properly have found, "other unfairness": the unfairness lay in the breach of regulation 23(3).
32. Mr. Bassett submits that, nothwithstanding that the first part of the ground of appeal under rule 4(4)(c) is made out, the second part is not. There were so many complaints by female police officers, over such a long period, as to part, validated by the accepted written warning, that the outcome could not have been different, whatever view the Tribunal might have formed about the oral evidence. I cannot accept that submission. Where the essence of the ground of appeal is that the interests of justice required live evidence to be given by the witnesses, because that might reveal misunderstanding or exaggeration, so that the conduct of PC McLean in relation to them was not in breach of the Standards of Professional Behaviour expected of police officer, that would inevitably have led to the remainder of the case being reconsidered. If that had been the view of the panel, the chairman would have had to have considered whether or not to call the other police officers, in particular PC Dove, who had made the allegations against PC McLean to which general reference was made in the regulation 21 notice. Once the Tribunal had decided that ACC Dann's belief that the interests of justice did not require the witnesses to be called was unreasonable for reasons which it gave, it is logically impermissible to conclude that calling them could have made no difference.
33. The Tribunal was persuaded, correctly, for the reasons stated above, that the evidence of the witnesses could not be given on appeal under rule 9(5). Accordingly, it was driven to the conclusion that it had no power to hear their evidence. Having so decided, it concluded that, "the only solution is to allow this appeal without the issue of whether the appellant had behaved in a way which amounted to gross misconduct, misconduct or neither being resolved by hearing evidence and making an informed decision".
34. It was right to do so, for the reasons explained above. Its decision is not open to successful challenge on Wednesbury grounds.