England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT (AT MANCHESTER)

		Manchester Civil Justice Centre, 1 Bridge Street West, Manchester M60 9DJ
		19 May 2015

His Honour Judge Stephen Davies:

Introduction

1. The claimant to this judicial review is seeking to quash a decision made by an investigator conducting a police misconduct meeting to find "not proven" a charge against a police constable that he breached the police equality and diversity professional standard in the course of his investigation into and decision in relation to a road traffic accident.
2. Permission was granted by HHJ Pelling, QC, sitting as a High Court Judge, on 7 November 2014, on 2 grounds:

(1) That the reasons given for dismissing the charge were arguably inadequate.

(2) That on the basis of the reasons given the decision was arguably irrational

3. The case was argued by Ms Annand for the claimant and Mr Sigee for the defendant, for whose helpful and focussed written and oral submissions I am most grateful.

Summary of the facts

4. The claimant is the sister of the late Daniel Ayers, who was the victim of an incident of dangerous driving on 13 October 2010. He was crossing Prescot Road, Liverpool when he was struck by a car being driven dangerously, on the wrong side of the road and at speed, by another man, Ali Farahani, who subsequently pleaded guilty to dangerous driving and received a sentence of 10 months imprisonment. It is common ground that Mr Ayers was intoxicated through alcohol at the time of the accident, and that he was suffering from a condition of alcohol dependency. It is also common ground that although Mr Ayers died some days after the accident, the immediate cause of his death was a pre-existing condition, connected to his alcohol dependency, and that no causative link can be established between his death and the injuries which he suffered in the accident which were, nonetheless, serious.
5. The claimant has been concerned from a very early stage that: (a) the initial investigating officer, PC Simon Lewis, failed to undertake a sufficiently thorough initial investigation and subsequently wrongly recommended in his report dated 18 October 2010 that no further action be taken against Mr Farahani; (b) this was caused by prejudice against Mr Ayers as someone who was drunk at the time of the accident and an alcohol dependent. Subsequently, as a result of her pressure, a more detailed investigation was undertaken into the accident by the Merseyside Police Road Policing Investigation Unit, which recommended the criminal prosecution against Mr Farahani which duly ensued.
6. Following Mr Farahani's conviction and sentence the claimant made a complaint to the Merseyside Police in relation to the conduct of PC Lewis. Two of the grounds of complaint were that:

(1) PC Lewis failed to conduct a full and proper investigation into the collision.

(2) PC Lewis' behaviour on the day of the collision and subsequently was discriminatory.

7. The complaints were investigated and determined by a Detective Sergeant Ashley in a written decision dated 26 March 2012. In summary: (i) the first complaint was upheld, but it was concluded that this was not a misconduct issue, and should more appropriately be dealt with as a performance issue; (ii) the second complaint was rejected.
8. The claimant, as she was entitled, appealed that decision to the Independent Police Complaints Commission (IPCC). Its decision dated 19 November 2012 was that there was a case to answer in relation to misconduct as regards the first complaint and that the second complaint had not been adequately addressed. It directed that a further investigation be undertaken, with PC Lewis being interviewed and regard being had to a number of salient features and recommendations identified in the report.
9. The complaints were duly re-investigated and re-determined by a Detective Inspector Creer in a written decision dated 8 July 2013, which nonetheless reached the same conclusions as the original decision.
10. The claimant, being dissatisfied with the second investigation and determination, appealed again to the IPCC. In its decision dated 2 April 2014 the IPCC upheld the appeal on the basis that PC Lewis' evidence had not been not robustly challenged or analysed. It directed that disciplinary proceedings be brought against PC Lewis.
11. The defendant appointed a Chief Inspector Davies to conduct the misconduct investigation, and he held a misconduct meeting on 2 July 2014.
12. The charges were formulated as follows:

"Breach 1

Equality and Diversity

Mr Ayers is alcohol dependant and it is alleged that you knew this and allowed your prejudices to influence your decision making and investigation strategy when dealing with the collision, which resulted in a poor investigation by you.

Breach 2

Duties and Responsibilities

You conducted a below standard investigation into the circumstances of the collision and offences committed by the driver. You then filed the report recommending NFA^[1] be taken against the driver whilst indicating Mr Ayers had suffered minor injuries only without establishing the true nature of his injuries."

13. The charges were presented by DI Creer at the misconduct meeting. PC Lewis was present and represented by a Police Federation representative, and gave evidence. The claimant and her mother were permitted to attend the meeting as observers. At the conclusion of the meeting CI Davies rose shortly and then returned to announce his decision, which was that charge 1 was found not proven but charge 2 was found proven, with the sanction applied being a written warning.
14. CI Davies subsequently provided a document entitled "written decision of misconduct meeting and notification of entitlement to appeal". As relevant it read as follows:

"Breach 1 – Case not proven

Equality and Diversity

I considered your previous history of dealing with persons involved in collisions who were under the influence of alcohol. I could find no evidence that you treated Mr Ayers any differently than any other collision victim due to his intoxication.

Breach 2 – Case proven

Duties and Responsibilities

Your behaviour displayed a disregard of the policy and procedures expected of a roads policing officer, one of whose primary roles is the investigation of road traffic collisions and the prosecution of offenders.

In reaching this determination I take into account the fact that the collision investigation was subsequently revisited as a result of Mr Ayers passing away 11 days after the collision without being released from hospital post collision. RPU officers then obtained all the available evidence; the offender was prosecuted and subsequently received a prison sentence for his crime.

You appear to have demonstrated insufficient focus on witnesses, particularly the injured person who was interviewed while under the influence of alcohol and a decision to recommend NFA was taken without considering evidence that became available a very short time after the collision.

Your decision to take no further action jeopardised the subsequent court trial and placed the reputation of Merseyside Police at risk.

I have considered your training record and length of service within the roads policing unit and feel that this illustrates that you knew the standards expected of you but chose not to investigate at the appropriate level.

There are no mitigating circumstances that I have been made aware.

All of the factors taken into consideration I issue a written warning in this matter."

15. On 14 September 2014 the claimant wrote setting out the details of her proposed claim for judicial review. It does not appear that she had received a copy of the written decision by this stage, and was not legally represented. The letter amounted to a wholesale criticism of the process and the decision
16. The defendant's reply dated 19 September 2014 rejected these criticisms.
17. After the claim had been issued and after permission had been given, and at the same time as it submitted its detailed grounds of defence, the defendant also produced a witness statement from CI Davies, made on 8 December 2014, which included evidence as to his reasons. The claimant through Ms Annand objected to this evidence as to reasons being admitted and I will deal with that issue, which is of some importance to this case, at the appropriate time in this judgment.

The Police (Conduct) Regulations 2008

18. The Regulations are made under the Police Act 1996 and set out the applicable procedure for misconduct investigations, proceedings and appeals. In short, and as relevant to this case:

(1) The starting point is the investigation process, which is what was undertaken by DS Ashley and DI Creer in March 2012 and July 2013 respectively. Its purpose is to gather evidence to establish the facts and circumstances of the alleged misconduct and to assist the chief officer to decide whether there is a case to answer [reg. 14]. It ends with the submission of a written report [reg. 18].

(2) The misconduct proceedings take the form of a misconduct meeting^[2] [reg. 19], to be undertaken by a member of the police appointed to conduct the process under [reg. 25]. The complainant is allowed to attend as an observer [reg. 31]. The appointed person is to decide the procedure to be adopted, in accordance with but subject to [reg. 34].

(3) The function of the appointed person, pursuant to [reg. 34(13) - (14)], is to review the facts of the case and decide on the balance of probabilities whether or not the conduct of the officer concerned amounts to misconduct. If so, the available sanctions are limited to: (a) management advice; (b) a written warning; (c) a final written warning.

(4) The officer is to be informed of the finding and any disciplinary action imposed as soon as practicable "and in any event shall be provided with written notice of these matters and a summary of the reasons before the end of 5 working days beginning with the first working day after the conclusion of the misconduct proceedings" [reg. 36]. There is no express provision for the complainant to receive written notice as well.

(5) A record of the misconduct proceedings is to be taken, and the officer is entitled to a copy on request [reg. 37].

(6) The officer has a right of appeal under [reg. 38] on the basis: (i) that the finding was unreasonable; or (ii) of fresh evidence; or (iii) of serious and material breach of procedures or unfairness. There is no equivalent right of appeal conferred on anyone else.

(7) The Schedule to the Regulations contains a list of standards of professional behaviour. As relevant to this case they include:

"Equality and Diversity

Police officers act with fairness and impartiality. They do not discriminate unlawfully or unfairly.

Duties and Responsibilities

Police officers are diligent in the exercise of their duties and responsibilities."

Relevant legal principles

19. This is a case where the Regulations impose a specific obligation on the decision maker to provide a summary of the reasons for the finding. Although the decision maker is only obliged to provide that summary to the officer, it is not suggested by the defendant that this means that a complainant is not also entitled to a summary of the reasons. Even if the Regulations do not impose an express obligation to provide reasons to a complainant, I am satisfied that there is a co-extensive duty at common law to provide a summary of the reasons to the complainant, who plainly has a legitimate interest in knowing why a particular finding has been made against a police officer on his or her complaint.
20. It is not suggested in this case that the obligation to provide a summary of the reasons is significantly different from a simple obligation to provide the reasons. I note that the authors of Judicial Review Principles and Procedure (OUP, 1^st edition, 2013)^[3] address this point at [10.48] and suggest that whether or not there is a difference will depend upon the context. This emphasis on the context in which the decision is taken is consistent with the approach adopted more generally when considering the adequacy of reasons required for a particular decision. In that regard, the authors refer at [10.36] to the well-known observations of Lord Brown in the case of South Bucks DC v Porter (No 2) [2004] UKHL 33, at [36], to which I have been referred. The authors summarise the position at [10.35] in these terms

"Reasons will be adequate if they deal with the substantial points that have been raised and enable the reader to know what conclusion the decision maker has reached on the principal controversial issues, so as to enable an individual to discern whether there has been an error of reasoning that renders a decision susceptible to challenge. In general terms, provided the reasons given satisfy these three criteria, they may be briefly stated and there is no requirement for the decision maker to detail every factor that has been taken into account or all the thinking that lies behind the decision."

21. I agree with and adopt this analysis, which in the context of disciplinary cases seems to me to be consistent with the approach of Leveson LJ in Southall v GMC [2010] EWCA Civ 407 at [49-56], to which I was also referred.
22. In this case the adequacy of the reasons is in my view to be addressed with particular reference to the following factors relevant to police misconduct meetings:

(1) The reasons are required to enable an officer to know why he or she has been found to have committed misconduct and why a particular sanction has been imposed, with a view to considering whether or not to exercise the right of appeal.

(2) The reasons are to be provided by someone who is not legally qualified, but who is a senior police officer, doubtless with expertise of conducting misconduct meeting, within a relatively short period of 5 working days from the end of the misconduct meeting.

(3) As in any professional disciplinary matter, the detail of the reasons required will depend on the complexity of the issues under consideration (see Southall above).

23. I have also been referred to authority in relation to the circumstances in which the court will be prepared to admit subsequent evidence of reasons.
24. I have been referred to R v Westminster City Council ex p Ermakov [1996] 2 All ER 302, CA. That was a case where the relevant statute required the decision maker to give reasons at the same time as communicating the decision, and where the defendant sought in the judicial review proceedings to adduce entirely new reasons, which were at odds with those previously given at the time. At p.315 Hutchison LJ said, in that context, that the court could, and in appropriate cases should, admit evidence to elucidate or, exceptionally, to correct or add to the reasons, but should be very cautious about doing so. He added that the function of such evidence should generally be elucidation not fundamental alteration, confirmation not contradiction, and should not be such as to indicate that the real reasons were wholly different from the stated reasons.
25. I have also been referred to the observations of Stanley Burnton J (as he then was) in R (Nash) v Chelsea College of Art and Design [2001] EWHC 538 (Admin) in which, having reviewed the authorities, he concluded as follows:

"34. In my judgment, the following propositions appear from the above authorities:

(i) Where there is a statutory duty to give reasons as part of the notification of the decision, so that (as Law J put it in Northamptonshire County Council ex p D) "the adequacy of the reasons is itself made a condition of the legality of the decision", only in exceptional circumstances if at all will the Court accept subsequent evidence of the reasons.^[4]

(ii) In other cases, the Court will be cautious about accepting late reasons. The relevant considerations include the following, which to a significant degree overlap:

(a) Whether the new reasons are consistent with the original reasons.

(b) Whether it is clear that the new reasons are indeed the original reasons of the whole committee.

(c) Whether there is a real risk that the later reasons have been composed subsequently in order to support the tribunal's decision, or are a retrospective justification of the original decision. This consideration is really an aspect of (b).

(d) The delay before the later reasons were put forward.

(e) The circumstances in which the later reasons were put forward. In particular, reasons put forward after the commencement of proceedings must be treated especially carefully. Conversely, reasons put forward during correspondence in which the parties are seeking to elucidate the decision should be approached more tolerantly.

35. To these I add two further considerations. The first is based on general principles of administrative law. The degree of scrutiny and caution to be applied by the Court to subsequent reasons should depend on the subject matter of the administrative decision in question. Where important human rights are concerned, as in asylum cases, anxious scrutiny is required; where the subject matter is less important, the Court may be less demanding, and readier to accept subsequent reasons.

36. Secondly, the Court should bear in mind the qualifications and experience of the persons involved. It is one thing to require comprehensiveness and clarity from lawyers and those who regularly sit on administrative tribunals; it is another to require those qualities of occasional non-lawyer tribunal chairmen and members."

26. I gratefully adopt and seek to apply those principles to this case, being one where the Regulations impose a duty to give reasons within a short time of, but not necessarily contemporaneous with the decision. I have also had regard to the helpful checklist of relevant factors set out at [10.62] of Judicial Review Principles and Procedure.

Charge 1

27. Charge 1 refers to prejudice against Mr Ayers as someone who was alcohol dependent. The equality and diversity professional standard does not attempt to specify the protected characteristics to which it applies by reference to the Equality Act 2010 or its forerunner, the Disability Discrimination Act 1995. It is well known that alcohol dependence in itself is not a disability under those Acts, even though a relevant impairment caused by alcohol dependence may be. It would appear that the professional standard might in principle be breached by discrimination not only against someone with alcohol dependence, but also by someone who was simply drunk on the particular occasion in question (an example might be an inadequate investigation of a sexual assault allegation due to the police officer's prejudice against the complainant as someone who was affected by drink at the time of the incident).
28. However the charge which PC Lewis had to face was a charge that he discriminated against Mr Ayers on the basis that he knew him to be alcohol dependent, not just that he knew him to have been intoxicated at the time of the accident, and that therefore was the charge which CI Davies had to determine.

The decision

29. It is apparent that charge 1 involves a consideration of four separate elements, namely that: (1) Mr Ayers was alcohol dependent; (2) PC Lewis knew that Mr Ayers was alcohol dependent; (3) PC Lewis allowed his prejudice against Mr Ayers as an alcohol dependent person to influence his decision making and investigation strategy when dealing with the collision; (4) so as to result in a poor investigation by PC Lewis.
30. There was never any issue about the first element, because it was never disputed that Mr Ayers was indeed alcohol dependent. In relation to the fourth element, CI Davies' finding in relation to charge 2 demonstrated that he was satisfied that PC Lewis had indeed conducted a poor investigation. However that left elements two and three to be determined.
31. In relation to the second element, PC Lewis had denied that he was made aware that Mr Ayers was alcohol dependent (as opposed to someone who happened to be drunk at the time of the accident) until he was informed by the claimant of this in the first telephone conversation he had with her some 7 days after the accident. It is abundantly clear however from the complaint and the material generated during the prior investigations and appeals that this was vigorously disputed by the claimant. Despite the existence of this as a live dispute, it was not addressed in terms in the decision. Nor was it addressed in the pre-action response, nor in the summary grounds of defence. It was only in the witness statement of CI Davies, made on 8 December 2014 and accompanying the detailed grounds of defence, that it was first said by CI Davies, in [12] that:

"I found no evidence which indicated that Constable Lewis was aware that Mr Ayers was an alcoholic. There was no indication that Constable Lewis had previously met Mr Ayers or knew anything about him …"

32. Although there is no evidence that CI Davies was provided with a copy of the complaint, it is apparent from his witness statement that he was provided with a copy of the initial decision, which summarises the complaints made, and makes it clear that the complaint about prejudice was that PC Lewis's perception of Mr Ayers as alcohol dependent caused him to conclude that the cause of the accident was Mr Ayers walking out into the road whilst drunk, as opposed to dangerous driving by Mr Farahani, with the result that he failed to conduct a proper investigation and recommended that no further action be taken.
33. It is also apparent from the initial decision that there was indeed some evidence which tended to suggest that PC Lewis was aware, prior to the decision on 18 October 2010 to recommend that no further action be taken, that Mr Ayers was alcohol dependent. In particular:

(1) The evidence that PC Lewis had said that he was told on the day of the accident that Mr Ayers had a bottle of vodka with him and was intoxicated, and the evidence that PC Lewis had seen and spoken to Mr Ayers on the same day and had observed that he was intoxicated.

(2) The evidence that on 19 October 2010 PC Lewis had told both another officer and the claimant that the reason Mr Ayers was in hospital intensive care was because of "other medical issues" which, it appears, could only have been a reference to his alcohol dependence.

(3) The evidence that PC Lewis had been told by another officer on the day after the accident that the officer had been told by the medical staff, later on the day of the accident, that Mr Ayers had been coughing up blood due to his alcohol dependence. Indeed the initial decision letter records PC Lewis stating that at this point he was "still not formally aware" (emphasis added) that Mr Ayers was alcohol dependent.

34. It follows in my judgment that it was simply not correct for CI Davies to have reached the conclusion, as he says he did in his witness statement [12], that "I found no evidence which indicated that Constable Lewis was aware that Mr Ayers was an alcoholic". There plainly was evidence which indicated precisely that; the issue which CI Davies had to decide was whether or not to accept that evidence, having regard to the totality of the evidence and the submissions before him.
35. Unfortunately, not only did CI Davies not even refer to this as an issue for him to determine, or state in his decision that he had determined it, and which way he had determined it, but even in his witness statement he failed to explain the grounds on which he had reached that conclusion. Moreover, it is a conclusion which is at least arguably at odds with the actual reasons given for the decision since, if that had been CI Davies's decision then logically it would not have been necessary for him to go on to consider whether PC Lewis treated Mr Ayers differently as a result of his alcohol dependence.
36. As I have already noted, the court must proceed with caution before accepting this late reason. There are a number of features mentioned in Nash which apply here, namely: (a) it is a case where the Regulations impose a duty to provide a summary of the reasons within a short time after the notification of the decision; (b) the new reason has been put forward after the commencement of the proceedings, indeed after permission was granted, without having previously been referred to at all; (c) there is no evidence to indicate that this reason was one of the original reasons relied upon by CI Davies at the time, so that there is a real risk that it has been composed subsequently; (d) it is far from clear that this reason is consistent with the reasons given by CI Davies in the decision. Even making due allowance for CI Davies being a serving police officer rather than a legally qualified full time tribunal, given that this was such a fundamental element of the charge, and given that it was plainly in issue, it is extremely surprising that it was not included in the original reasons if CI Davies had genuinely decided this issue and relied upon that as a part of his decision making process.
37. In my judgment it would not be appropriate in the circumstances to accept this late reason.
38. So far as element 3 is concerned, CI Davies began by stating that he had "considered [PC Lewis'] previous history of dealing with persons involved in collisions who were under the influence of alcohol". That is criticised on a number of grounds. It is said that the history is a reference to two previous instances where PC Lewis said that he had investigated accidents where the victim was intoxicated. It is said that this proves nothing without a comparison of how PC Lewis investigated accidents where the victim was not intoxicated. It is also said that in the absence of a finding to the effect that his investigation of those two previous accidents was satisfactory and not coloured by prejudice this proves nothing. It is also said that it is irrelevant, because it relates only to PC Lewis' general practice, as opposed to what he did in this particular case.
39. I reject these criticisms. In my view this statement was perfectly justifiable in itself. In my judgment CI Davies was entitled to be satisfied that the evidence put forward by PC Lewis about these two previous instances demonstrated an absence of a generalised unwillingness to conduct proper investigations and make proper decisions in relation to accidents involving victims who were intoxicated or alcohol dependent. I do however accept the claimant's point that it was not and could not of itself be determinative of the charge, relating as it did to what happened in this particular case.
40. So far as that is concerned, the only reason given was that CI Davies "could find no evidence that [PC Lewis] treated Mr Ayers any differently than any other collision victim due to his intoxication".
41. It seems to me that the use of the opening words - "I could find no evidence …" - betrays what would appear to have been a serious error in CI Davies' approach. In the circumstances of this case the real question for CI Davies was to determine, in the light of the totality of the available evidence and the submissions, whether or not an inference could properly be drawn on the balance of probabilities that PC Lewis' investigation and decision was adversely influenced by prejudice against Mr Ayers as someone with alcohol dependence.
42. The point was made very well in the first appeal decision (at p.8):

"Allegations of discrimination require a wider approach during investigation as it is usually difficult to find direct evidence of the alleged offence if the allegation is about someone's attitude; unless that approach is directly evidenced through something as blatant as prejudicial abusive language for instance, consideration must be given to comparative evidence and considering whether or not the actions taken were reasonable and appropriate. If the actions do not on the face of it appear reasonable, why were they not reasonable? Is there a mitigating factor? Can the person subject to complaint provide a suitable rationale for what they have done?"

43. The decision specifically referred to evidence which in the IPCC's opinion could justify drawing an inference of discrimination and, as I have said, directed that there be a further investigation and identified 9 specified points to which regard to be had in that investigation.
44. I need mention only the first of those points, which was that the investigating officer should consider the IPCC Guidelines for dealing with allegations of discriminatory behaviour (Annex B Statutory Guidance). Although I was not specifically referred to this document, I have been able to consider it, and note that it is an extremely lengthy document providing detailed guidance as to how to deal with allegations of discriminatory behaviour. The guidance states [par. B194] that:

"In those instances where officers attend misconduct meetings or hearings under the new misconduct system, it is important that the person(s) conducting the meeting or hearing who hears the evidence fully understands the principles that are outlined here. Anyone who conducts meetings or hearings should receive these guidelines as part of any pre-hearing bundle to assist them in reaching a finding about allegations of discriminatory behaviour."

45. Regrettably, it does not appear from CI Davies' witness statement that he was provided with this statutory guidance, and there is no evidence that he was otherwise aware of it.
46. Nor does CI Davies state that he was provided with a copy of the first IPCC appeal decision. Regardless of whether or not he was, in my view it is quite clear that CI Davies should have followed the approach suggested by the IPCC in relation to misconduct charge 1.
47. In any event, it is clear from his witness statement that CI Davies was provided with a copy of the second IPCC appeal decision, from which he was, or should have been, aware that:

(1) The IPCC considered that the evidence in relation to the complaint had not been "robustly challenged and analysed".

(2) The IPCC considered that the explanations given by PC Lewis had not been "robustly challenged" and "simply accepted".

(3) The IPCC considered that what had to be determined was whether PC Lewis was aware of Mr Ayers' alcohol dependence at all stages of the investigation up to the point the report was submitted.

(4) The IPCC's approach was to consider whether or not PC Lewis had allowed prejudice to influence his decision making, in accordance with the approach identified above.

48. It is of course the case, as Ms Annand accepts, that CI Davies was not bound to follow the specific approach propounded by the IPCC, still less to follow its conclusions. However it is apparent that CI Davies was, or should have been, aware of the need in the circumstances of this case to consider the whole of the evidence, and not simply to accept PC Lewis' evidence uncritically, so as to reach a decision as to whether or not PC Lewis had allowed prejudice against Mr Ayers as an alcohol dependent person to influence his investigation and decision making.
49. It follows in my judgment that it was simply not properly open for CI Davies to have reached the conclusion he did on the stated basis that he "could find no evidence that you treated Mr Ayers any differently than any other collision victim due to his intoxication". It is apparent that there was evidence from which CI Davies could have drawn the inference that PC Lewis' approach to the investigation and decision to recommend no further action was affected by his knowledge that Mr Ayers was intoxicated at the time of the accident and was alcohol dependent. CI Davies' task was to review that evidence, having regard to the totality of the evidence and the submissions, and to decide whether or not that inference should be drawn. In failing to identify this as his task and to state his reasons for concluding as he did, in my view CI Davies failed, in the context of this particular case, including its history especially the circumstances in which and the basis on which the misconduct charges had come to be presented, to provide adequate reasons for his decision.
50. In his witness statement at [12] CI Davies explained his reasons as follows:

"There was no evidence that PC Lewis was prejudiced against Mr Ayers because he was an alcoholic. My belief was that, in the circumstances, PC Lewis had concluded that the accident was Mr Ayers' fault because he had been drinking and he failed to conduct proper and full enquiries as required. It seemed to me that he was lazy and had jumped to conclusions. Clearly his investigation fell well short of that expected of an officer of his experience. Unfortunately at the hearing PC Lewis was reluctant to accept his failures."

51. In the same way as above, Ms Annand objected to my admitting this evidence as well.
52. Should I admit this evidence? I have found this a more difficult question than in relation to the first part of [12]. However after consideration I have come to the firm conclusion that I should not, for the following reasons:
53. First, under [reg. 36(1)] CI Davies was obliged to provide a summary of reasons not later than 5 working days after the hearing. That would have meant providing the summary by 9 July 2014 at the latest. To allow CI Davies to provide further reasons by a witness statement not made until 8 December 2014 would represent a significant extension of that specified timetable.
54. Second, the additional reasoning in the witness statement did not emerge until after the claim had been issued and permission had been granted. In that regard it should be noted that:

(1) The submission of the pre-action letter did not result in these further reasons being provided. To the contrary the defendant's solicitor stated in the pre-action response that:

"(4) The evidence was insufficient to prove, on the balance of probability, the required standard of proof at misconduct meetings, that Constable Lewis' failure to properly investigate the accident was a result of any prejudice towards Mr Ayers because he was alcohol dependent. Although it is not entirely clear why Constable Lewis' investigations were incomplete, it is possible to surmise that his failings were an error of judgment, resulting from the fact that because he was aware that Mr Ayers had been drinking and had walked into the road, he presumed the accident was entirely his fault."

If the defendant's solicitor had at this stage already obtained a clear statement from CI Davies that this was his reasoning, no doubt that is what the letter would have said. Instead the letter reads as if this is the author, the deputy force solicitor, surmising as to the possible explanation.

(2) The defendant's summary grounds of defence, in [9], contained a statement to similar effect. Again, the clear implication is that no clear statement of the additional reasoning had been obtained from CI Davies at this point either.

(3) The additional reasoning only emerged once HHJ Pelling QC had given permission on the ground that the reasons given were arguably inadequate.

55. Third, in my view the additional reasons go significantly beyond correction, clarification or even elucidation. Thus they provide, for the first time, an articulation as to an inference apparently drawn by CI Davies from the facts relevant to the question as to whether PC Lewis' substandard investigation and decision was due to prejudice or some other reason.
56. The claimant went further and submitted that these additional reasons are inconsistent with the reasons actually given. Thus Ms Annand submitted in her skeleton argument [33] that this additional reasoning was an attempt to draw a distinction between prejudicial treatment on the grounds of alcohol dependence and on the grounds of intoxication, when this was not a distinction which was drawn by CI Davies in his decision. I agree. In the additional reasons CI Davies says that PC Lewis lazily jumped to the conclusion that the accident was Mr Ayers' fault because he had been drinking, and then appears to indicate that there was a causal connection between this and his failure to conduct a full investigation. This is arguably inconsistent with the stated reason that he could find no evidence that PC Lewis treated Mr Ayers any differently due to his intoxication, because in fact it now appears from the additional reasons that the reason he did undertake a substandard investigation was connected with Mr Ayers' intoxication.
57. Ms Annand also submitted that this was a distinction without a difference, in that the professional standard would be breached regardless of which ground caused the prejudicial treatment. I do not accept this. The charge which PC Lewis faced was one of prejudicial treatment caused by his knowledge of Mr Ayers' alcohol dependence. It would not have been permissible for CI Davies to have found that PC Lewis guilty of prejudicial treatment caused by his knowledge that Mr Ayers was intoxicated at the time of the accident. There is a significant difference.
58. Considering some of the other potentially relevant factors suggested by Auburn at al to be relevant at [10.62]:

(1) I cannot safely conclude that these additional reasons are indeed those which CI Davies had in his mind at the time the decision was taken, and I am driven to conclude that there is a real risk of retrospective justification.

(2) The subject matter of the decision is obviously important, not only to the claimant as the complainant and PC Lewis as the object of the misconduct meeting, but also in the wider public interest, given that it involves an allegation of discrimination against a serving police officer. Whilst one can, and Mr Sigee did, envisage other cases which might on one view be regarded as even more important, I do not think that this case can properly be regarded as unimportant.

(3) Whilst I assume that CI Davies has no legal qualifications, I have no knowledge of his experience. I am entitled to assume however that he was, or should have been, chosen to conduct this misconduct meeting on the basis of his experience in police misconduct matters generally and discrimination allegations in particular, especially having regard to the sorry history of this whole saga, and the fact that the charge in question was only brought against PC Lewis at the insistence of the IPCC. Thus those receiving the summary of reasons might reasonably have expected it to be comprehensive and clear at the time of delivery.

(4) There is no excuse proffered, nor is one reasonably discernible, for the failure to provide this reasoning in the original decision.

(5) In terms of the overall justice of the case, whilst it would on any view be unfortunate if the consequence of refusing to admit these reasons would be that the decision would have to be quashed and a new misconduct meeting convened, that is no one's fault but those for whom the defendant is responsible. Moreover, since PC Lewis, although served as an interested party, has played no part in this case, there are no grounds upon which I can infer any particular prejudice to him above and beyond the inevitable prejudice in having to face a further misconduct meeting. Finally, since there was a further, more severe, sanction available to CI Davies than that which he imposed, it cannot be said that it would be a waste of time to require PC Lewis to face the charge again, leaving to one side the complainant's interest and the wider public interest.

59. In conclusion, so far as ground 1 is concerned, I am satisfied that the reasons provided in the original decision were wholly inadequate. I am also satisfied that I should not admit the additional reasons put forwards by CI Davies in his witness statement.
60. Finally, I am satisfied that in those circumstances the only proper remedy to grant is to quash the decision and to direct that the charge in question proceed for fresh determination by a different investigator. This is not a case where it would be proper to consider remitting the case back to CI Davies for further reasons to be provided, still less of granting only declaratory relief, let alone no relief at all. That is because it seems to me that the flaws in the reasons provided are so significant that I cannot be satisfied that this is a case where CI Davies undertook the exercise properly, and only went wrong in his recording of his reasons for reaching the decision. There is a very real concern, not in any way assuaged by his witness statement, that at the time he made the decision he did not consider, let alone make a decision, on the second element (PC Lewis' knowledge of Mr Ayers' alcohol dependence), nor did he conduct a proper analysis of the facts relevant to the third element and decide whether or not they justified drawing the inference that the substandard investigation was caused, in whole or in part, by negative assumptions made by PC Lewis about Mr Ayers as an alcohol dependent person. In the circumstances of this case, where I have refused to admit the further reasons advanced by CI Davies in these proceedings, I am satisfied that fairness requires a new person to be appointed to undertake the further misconduct meeting.

Ground 2 – irrationality

61. I can deal with this relatively shortly, having already addressed various aspects relevant to my decision under ground 1 above.
62. It is important to being by noting, as do the leading textbooks, that there is a significant difference between: (a) a finding of irrationality on the basis that, having regard to all of the circumstances of the case, the decision is one which no reasonable decision maker, acting reasonably, could reach; and (b) a finding of irrationality on the more limited basis that the decision is irrational by reference to the reasons put forwards to justify it.
63. In short, I am not satisfied that I could properly made a finding of irrationality on the wider basis. It seems to me that this is not a case where there is only one obviously right answer. In my view it is not possible for me to say that it would simply not be open to a reasonable tribunal, making reasonable findings on the available evidence, and drawing reasonable inferences from those findings, to conclude that the charge had not been proven. These are matters for the new tribunal to resolve, not for this court to decide.
64. I am however satisfied that on the basis of the reasons given the decision is irrational, for essentially the same reasons already given, that is to say that it does not engage with or decide the question of PC Lewis' knowledge of Mr Ayers' alcohol dependence, nor does it engage with or decide the question of whether an inference can properly be drawn from the facts as found that the substandard investigation and decision was caused by prejudice against Mr Ayers as a man suffering from alcohol dependence. All that one can discern from the reasons is firstly that CI Davies was satisfied that PC Lewis was not generally prejudiced against drunken victims of road traffic accidents, which is relevant but nowhere near decisive, and secondly that CI Davies concluded that there was no evidence that PC Lewis treated Mr Ayers any differently due to his intoxication, when that was a finding which was inconsistent with his reasons in relation to charge 2, and when there was no finding which showed that he had considered and made a rational decision as to whether or not he should draw an inference that the substandard investigation was caused by discrimination or some other reason.
65. Accordingly, I am satisfied that the claim succeeds on ground 2 as well and that the decision should be quashed and the charge remitted to a new investigator on that ground as well.

Conclusion

66. The claim for judicial review succeeds. The parties have since production of the draft judgment agreed an order, and I will make an order in those agreed terms.

Note 1    NFA = no further action    [Back]

Note 2    Different provisions apply in relation to gross misconduct allegations, but I am not concerned with these.    [Back]

Note 3    Auburn, Moffett and Sharland    [Back]

Note 4    The authors of Judicial Review Principles and Procedure (above) note at [10.57] that in a subsequent decision Stanley Burnton J accepted that this statement was too restrictive, in failing to reflect the general rule, as stated in Ermakov, permitting the admission of evidence that merely elucidates original written reasons.     [Back]