England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		13 July 2017

1. MR JUSTICE SUPPERSTONE: The Chief Constable of Sussex Police challenges the decision of the Police Appeals Tribunal of 21 September 2016 to reinstate Mr Deans-Cane as a police constable with Sussex Police, thereby overturning a finding of a misconduct panel that he should be dismissed for gross misconduct.
2. On the night of 17 February 2014, police officers were called to the home of Miss Clare Cruttenden in St Leonards-on-Sea, East Sussex, after her son made an emergency call for help. On arrival, police officers found Miss Cruttenden lying on the floor with her mouth, hands and feet bound with grey, sticky gaffer tape. The matter was initially treated as an aggravated burglary.
3. Shortly after midnight on 18 February, DC Deans-Cane arrived at the house. As a result of recent and previous involvement with Miss Cruttenden, he assumed that she had faked the event. She had made numerous allegations in the past, some of which at least were believed to be false. The way in which DC Deans-Cane behaved resulted in a complaint from both Miss Cruttenden and her father. Sadly, two days later on 20 February, she took her own life.
4. The complaints and subsequent investigation proceeded regardless. The matter was referred to the Independent Police Complaints Commission to investigate. They directed that a supervised investigation should take place. The investigating officer concluded that DC Deans-Cane had a case to answer in relation to gross misconduct, and PS Tritton, the senior officer at the incident, also had a case to answer.
5. DC Deans-Cane faced three allegations of gross misconduct: that on 17/18 February 2014:

(1) whilst dealing with a vulnerable victim he implied that she was lying, and, based on preconceptions, failed to take her allegation of crime seriously. In doing so, he failed to follow basic steps of investigation and victim care, and was accordingly in breach of the Standards of Professional Behaviour with regard to duties and responsibilities;

(2) he engaged in a heated row with Miss Cruttenden, acting in an oppressive and negligent manner. He resorted to shouting at her in the presence of her child, and his behaviour was accordingly in breach of the Standards of Professional Behaviour with regard to Authority, Respect and Courtesy;

(3) he questioned Miss Cruttenden's son, aged 11, without an appropriate adult being present, and his behaviour as such was in breach of the Standards of Professional Behaviour with regard to Duties and Responsibilities.

6. At the hearing on 8 May 2015 before a misconduct panel chaired by Assistant Chief Constable Barry, DC Deans-Cane responded to the allegations as follows:

(1) He admitted the first allegation and that it amounted to gross misconduct, subject to three riders: that (a) Miss Cruttenden was not vulnerable; (b) his failures were not only based on preconceptions; and (c) that he had not failed to follow the basic steps of investigation;

(2) He admitted the second allegation and that it amounted to gross misconduct, subject to two riders, that: (a) he did not as a matter of fact shout at Miss Cruttenden; and (b) his conduct was not negligent.

(3) He admitted the particulars of the third allegation, but contended it amounted to misconduct, not gross misconduct.

7. The panel made the following findings in relation to the disputed riders:

(1) In respect of the first allegation, the panel rejected the submission that Miss Cruttenden was not vulnerable. It also rejected the rider that he had not failed to follow the basic steps of investigation. However, it accepted that his approach was not based just on preconceptions but also upon findings at the scene;

(2) In relation to the second allegation, the panel accepted that he had not shouted, but rejected the rider suggesting that there was no negligence in his dealings with Miss Cruttenden;

(3) The panel accepted that the third allegation amounted to one of misconduct simpliciter.

8. PS Tritton faced two allegations of gross misconduct:

(1) that on 17/18 February 2014 he attended Miss Cruttenden's address to supervise the response to a crime involving a vulnerable victim. Having been briefed by officers in attendance, he assumed the allegation had been fabricated and failed to ensure the matter was appropriately investigated, in breach of the Standards of Professional Behaviour - Duties and Responsibilities.

(2) as the senior officer present he failed to intervene when DC Deans-Cane was verbally oppressive and negligent in his dealings with Miss Cruttenden in breach of the Standards of Professional Behaviour - Challenging and Reporting Improper Conduct.

9. At the conclusion of the hearing the panel gave its judgment and subsequently handed down a written version of the judgment. In the written determination in relation to the first allegation the chair of the panel said:

"The panel felt it was understandable that you assumed the allegation was false. However, it was your subsequent treatment of Clare Cruttenden, known to you as a vulnerable person, which the panel felt was the key element of allegation 1. Your behaviour to her was fundamentally at odds with the victim focused principles and the Police Service's requirement to treat people fairly and according to their needs. This behaviour fell well short of the standards of the behaviour expected from the Police. Clare Cruttenden clearly had emotional and mental health vulnerabilities which you acknowledged you were aware of. Despite this you took a bullish, assertive, confrontational stance with her which was grossly inappropriate."

10. In relation to the second allegation, the chair of the panel said:

"The body worn video and your evidence and admissions in the hearing make it clear that you did engage in a heated row with Clare Cruttenden. The panel felt this was oppressive and neglectful of the victim's needs as a result of her vulnerabilities which you acknowledged. The panel accepted you did not shout, however your demeanour was wholly inappropriate and breached the standards of behaviours expected by a large degree."

11. In relation to the third allegation, the chair of the panel said:

"You admitted this action was wholly inappropriate against policy and procedure."

12. The judgment continued in relation to "mitigation/rationale" as follows:

"The panel felt you lacked personal insight and were unable to explain your behaviour or how you would address avoiding a recurrence. The panel recognised your contrition and early acceptance of guilt. Your character evidence and service history failed to demonstrate compelling mitigation, in that the service history and divisional reference does not suggest a record of outstanding professional service, further there is no character evidence to convince the panel that the behaviour alleged is unlikely to reoccur. When this is taken alongside the admission that you 'saw red', 'lost my temper', 'can't explain it', the panel did not have confidence in retaining you as an officer within Sussex Police. To do so presents a risk to the public from how you deal with them, and presents a risk to the organisation of reduced public confidence. Whilst this was a single incident of gross misconduct the panel felt there were aggravating factors such as: knowledge of Clare Cruttenden's vulnerability, prolonged duration of the oppressive behaviour, the offensive nature of the comments made, overt focus on breaking her will, all set in a family environment and witnessed by her child and mother. On this basis the panel felt that the conduct was so inherently grave so as to be inconsistent with you continuing to be a Police Officer. The sanction is therefore dismissal without notice."

13. Having considered the allegations in relation to PS Tritton, the riders argued on his behalf and having conducted a similar exercise of examining the gravity of the misconduct and relevant mitigation, the panel imposed in his case a sanction of a final written warning.
14. Mr Deans-Cane appealed against the sanction of dismissal without notice to the Police Appeals Tribunal. Pursuant to rule 11 of the Police Appeals Tribunal Rules 2012, a PAT chairman, Mr Mukhtar Hussain QC, considered the appeal on paper and concluded that it had no real prospect of success and there was no other compelling reason for it to proceed further. That decision was the subject of a judicial review challenge.
15. Permission to apply for judicial review was granted by Mr Nicholas Lavender QC (as he then was) on 3 March 2016 on the basis that it was arguable that new evidence in the form of a psychiatric report from Professor Peckitt fell within the scope of rule 4(4)(b) of the 2012 Rules, being evidence which could not reasonably have been considered at the original hearing and which could have materially affected the finding or decision on disciplinary action.
16. Subsequently, the judicial review proceedings were compromised by consent. The terms of the consent order included a term that:

"It is agreed that the Report of Professor Peckitt will be admitted at the new PAT hearing."

17. The written determination of the PAT, dated 26 September 2016, summarises four grounds of appeal advanced on Mr Deans-Cane's behalf:

(1) That the panel's decision was unreasonable due to the disparity between the disciplinary action imposed on PS Tritton and that imposed on him (rule 4(4)(a));

(2) That the decision was unreasonable due to the inaccurate assessment of the evidence regarding character and personal insight (rule 4(4)(a));

(3) That the decision was in breach of the Performance Regulations in view of the panel's requirement that the appellant convince them that his conduct was unlikely to recur (rule 4(4)(c)); and

(4) That the evidence of Professor Peckitt could have materially affected the decision on disciplinary action (rule 4(4)(b)).

18. The Tribunal addressed each ground in turn. As for the first (disparity), the Tribunal considered the panel had failed adequately to articulate why the two sanctions imposed were different "with reference to rank, length of service, character (both professional and personal), each officer's role in the incident and aggravating and mitigating factors (relevant to the incident and individuals)". The Tribunal considered that the absence of such reasoning rendered the decision of the panel unreasonable.
19. As for the second (character evidence and personal insight), the Tribunal referred to Mr Deans-Cane's evidence before the panel as to how he would prevent a recurrence. The panel did not say that they considered this evidence but had rejected it; they said he was unable to explain. The Tribunal considered this to be an inaccurate assessment of the evidence which rendered the decision of the panel unreasonable.
20. As to ground 3 (character evidence and a requirement to convince), the Tribunal rejected this ground of appeal.
21. As for ground 4 (Professor Peckitt's report), the Tribunal considered that Professor Peckitt's opinion on the provocation faced by Mr Deans-Cane to be clearly capable of amounting to a mitigating feature and the Tribunal therefore considered that this is evidence which could have materially affected the outcome (paragraph 9).
22. At paragraph 10 of the determination, the Tribunal states:

"Having concluded that the decision was unreasonable, and taking into account the length of proceedings and the Appellant's wish that the matter be determined today, the Tribunal has decided to substitute its own decision on outcome."

23. The remainder of the Tribunal's analysis needs to be set out in full:

"11. The Tribunal considers that this is an exceptionally difficult case and has considered the options very carefully.

12. The Respondent noted that the video speaks for itself and the Tribunal agrees that its contents are disturbing. The aggravating features noted by the Panel are all valid: the Appellant knew that Ms Cruttenden was vulnerable, the oppressive behaviour was prolonged, it was in a family environment and witnessed by family, and the tone and nature of the comments were oppressive. The Tribunal notes that, as the Appellant has accepted, the standards fell far below those expected.

13. However, the Tribunal notes that the evidence from Professor Peckitt indicates that [Ms] Cruttenden suffered from a 'complex and devastating personality disorder' and her disorder drove her to 'extreme and abnormal behaviour' in her interactions. Professor Peckitt noted that the Appellant was placed in 'exceptionally difficult position'.

14. The Tribunal notes that there is nothing in the Appellant's character references which would tend to suggest that this misconduct would recur, and accepts, from the evidence given, that he understands and is willing to address his behaviour.

15. Whilst another's misconduct cannot justify the Appellant's misconduct, the Tribunal does accept that had Sgt Tritton performed his own duties to the standard expected, the situation would not have escalated in the way it did."

24. Under the heading "Conclusion", paragraph 16 of the determination states:

"The Tribunal therefore exceptionally substitutes the decision to dismiss without notice for a final written warning, the terms to be set by Sussex Police."

25. The Chief Constable seeks to quash the PAT's decision on five grounds: first, failure to apply the correct legal test. No reasonable PAT could have imposed a sanction other than dismissal for an officer guilty of such egregious breaches of the Standards of Professional Behaviour towards a vulnerable female. Second, the PAT applied the incorrect approach to sanction. They failed to have any regard to the case law or the principle that the purpose of professional disciplinary proceedings is to uphold public confidence in and reputation of the profession in question. Third, the PAT's decisions on disparity, character evidence, mitigation and insight were irrational. Fourth, the PAT's decision that Professor Peckitt's report could have materially affected the outcome to the extent that the panel's decision was unreasonable was irrational. Further, the decision not to remit to a freshly constituted panel for reconsideration was irrational.
26. In considering this challenge to the decision of the PAT, I start by reminding myself of the observations of Holroyde J in R (on the application of Williams) v Police Appeals Tribunal and Commissioner of Police [2016] EWHC 2708 (Admin) at paragraph 62:

"It is common ground that in this claim for judicial review I must, in effect, carry out a review of a review, and must therefore consider not just the decision of the PAT but also the decision of the panel. The question for the PAT was not what sanction they would have imposed had they formed the panel, but whether the panel's decision as to outcome was unreasonable. The question for me is whether the decision of the PAT was vitiated by error of law, or was so far outside the range of decisions legitimately open to the PAT as to be unlawful."

27. As for what is meant by the word "unreasonable" in rule 4(4)(a) of the then Appeal Rules 2008, Wyn Williams J in R (on the application of Chief Constable Wiltshire Police) v Police Appeals Tribunal and Anor [2012] EWHC 3288 (Admin) at paragraph 32 referred to a number of authorities including the decision of Beatson J, as he then was, in R (on the application of Chief Constable of the Derbyshire Constabulary) v Police Appeals Tribunal [2012] EWHC 2280 (Admin), where Beatson J expressed the view that the issue of whether a finding or sanction was unreasonable should be determined by asking the question whether the panel in question had made a finding or imposed a sanction which was within the range of reasonable findings or sanctions upon the material before it. Wyn Williams J observed that Beatson J clearly considered his view was consistent with the views expressed in the earlier decisions of Collins J in Montgomery and in R (on the application of the Chief Constable of Durham) v Police Appeals Tribunal and Anor [2012] EWHC 2733 (Admin) at paragraphs 7 and 10 per Moses LJ, with whom Hickinbottom J, as he then was, agreed.
28. I agree that this is the test to be applied. I bear in mind that the primary purpose of professional misconduct proceedings is not punitive but the preservation of public confidence in and the reputation of the profession in question. In R (on the application of Green) v Police Complaints Authority [2004] UKHL 6, Lord Carswell stated at paragraph 78:

"Public confidence in the police is a factor of great importance in the maintenance of law and order in the manner which we regard as appropriate in our polity. If citizens feel that if improper behaviour on the part of police officers is left unchecked and they are not held accountable for it in a suitable manner, that confidence will be eroded."

29. In Salter v The Chief Constable of Dorset [2012] EWCA Civ 1047, Maurice Kay LJ made at paragraph 21 what he considered to be the obvious point that the operational impropriety of a single officer tarnishes the reputation of his force and undermines public confidence in it.
30. These principles are reflected in the Home Office guidance, which also makes clear that the public have the right to expect that powers entrusted to police officers are used professionally, impartially and with integrity, irrespective of an individual's status.
31. In considering this challenge to the decision of the PAT, I propose first to consider the decision of the panel on the basis of the material before it, which involves consideration of grounds 1 to 3; then to consider whether the evidence of Professor Peckitt could or should have materially affected the disciplinary sanction imposed, which involves principally ground 4 but also again grounds 1 and 2; and finally, I will consider whether the decision not to remit to a freshly constituted panel for reconsideration was irrational (ground 5).
32. The Tribunal concluded that the decision of the panel was unreasonable on the basis of (1) the disparity between the disciplinary action imposed on PS Tritton and that imposed on Mr Deans-Cane; and (2) due to an inaccurate assessment of the evidence regarding character and personal insight. The evidence relating to these two matters overlap to a certain extent.
33. In approaching these issues, I have had well in mind that the PAT is a specialist appeal tribunal, but so is the panel an expert body. As for disparity and treatment, Mr Paul Ozin QC on behalf of Mr Deans-Cane invites me to stand back from the detail and ask, as he suggests the PAT plainly did, whether given PS Tritton's supervisory failures and seniority taken in the round, he and Mr Deans-Cane should have been dealt with along similar lines.
34. The panel were well aware that PS Tritton faced two charges, neither of which involved him acting in a direct and deliberately oppressive manner towards a vulnerable female. He was the senior officer and he failed to intervene in his supervisory capacity as he should have done. Both officers were involved in conduct that amounted to gross misconduct. But the panel was perfectly entitled, in my view, with knowledge of the particulars of the two cases, and having heard evidence from both of them, to assess that evidence and distinguish between the officers in terms of sanction.
35. Further and importantly, when considering the risk of recurrence of such conduct in the future, the panel was entitled on the evidence to find: (1) in the case of Mr Deans-Cane the character evidence did not convince it that the behaviour alleged is unlikely to reoccur and that he presented a risk to the public; whereas (2) in the case of PS Tritton it was convinced by the evidence which included strong and supportive character evidence which portrayed a degree of self-awareness and understanding of how to prevent a recurrence of his inappropriate conduct.
36. I have been referred to the character evidence put forward on behalf of both officers. It seems to me that the panel was entitled to take the view that PS Tritton's character evidence was particularly relevant to the issue of the risk of recurrence. In their oral reasons, the panel stated that they were convinced by the evidence of PS Tritton which portrayed a degree of self-awareness and understanding of how to prevent a recurrence of his inappropriate conduct. This contrasted with their conclusion that Mr Deans-Cane lacked personal insight and was unable to explain his behaviour or how he would address avoiding a recurrence despite his contrition and early acceptance of guilt which the panel recognised. Further, I accept the submission made by Mr Gerard Boyle QC on behalf of the Chief Constable that it does not follow from the fact that a different sanction was imposed in the two cases that the sanction imposed on Mr Deans-Cane was unreasonable. It could be (and I am not suggesting it was) that PS Tritton was fortunate to keep his job.
37. In its written determination, the panel said that it felt that Mr Deans-Cane lacked personal insight and was unable to explain his behaviour or how he would address avoiding recurrence. The Tribunal at paragraph 6 of its determination said that it was an inaccurate assessment of the evidence to say that Mr Deans-Cane was unable to explain how he would avoid a recurrence, and that this was an inaccurate assessment of the evidence which rendered the decision of the panel unreasonable.
38. Mr Ozin submitted that it was factually incorrect to say that Mr Deans-Cane was unable to explain himself. I reject this submission. First, it is, as I said, clear from the Tribunal's decision that it was focusing on Mr Deans-Cane's inability to explain how he would avoid a recurrence. He did in evidence give his explanation for his conduct, namely that he was frustrated, had a headache, wanted to obtain an admission from Miss Cruttenden that she was fabricating evidence and that he had another case to which he wished to return to investigate. However, in my view, the panel was perfectly entitled to conclude, in circumstances where he knew that Miss Cruttenden had mental health issues, had attempted to commit suicide a short while earlier and he had been told by a senior officer to treat the offence he was investigating as a robbery, that he lacked personal insight. Before the Panel he denied that she was vulnerable when plainly she was.
39. He was pressed by the panel to explain how he would avoid a recurrence of his conduct in the future, and, having heard his responses, the panel was entitled to conclude on the evidence that not only did he lack personal insight, but that by reason of that, they could not be satisfied that there would not be a recurrence of his conduct.
40. Mr Deans-Cane did admit, as the panel noted, that he "saw red", "lost my temper" and "can't explain it". To the panel, he did say that he did not know why he behaved as he did. On the evidence before it, the panel was entitled to find that he lacked personal insight and was unable to explain his behaviour or how he would address avoiding recurrence. That being so, having also assessed the character evidence, the panel was, in my view, entitled to conclude that it did not have confidence in retaining him as an officer within Sussex Police because of the risk that he presented to the public and to the organisation of reduced public confidence.
41. I note that in his oral evidence before the Tribunal, Professor Peckitt provided an explanation of why Mr Deans-Cane's level of insight had been misunderstood. He said:

"He really can't explain it because he doesn't fully understand the dynamics of the situation he was in and he's been interviewed not by somebody to help him reach a further level of insight."

That evidence of Professor Peckitt, in my view, supports the panel's conclusion on the evidence before it that Mr Deans-Cane did, when giving evidence to the panel, display a lack of personal insight.

42. I agree with the observations of Holroyde J in Williams that personal mitigation can carry only limited weight when a disciplinary body is considering the appropriate sanction in a case involving dishonesty or lack of integrity, or, I would add, as in this case, issues of authority, respect and courtesy and the duties and responsibilities of police officers. Because of the importance of the public interest in maintaining public confidence in and respect for the police, the personal mitigation available to a defaulting police officer, however impressive, cannot carry the same weight as it might do in a different context.
43. Further and importantly, in concluding that the decision of the panel was unreasonable on grounds of (1) disparity, and (2) inaccurate assessment of the evidence regarding character and personal insight, the Tribunal failed to have regard to the numerous aggravating features in Mr Deans-Cane's case which the panel identified, or to the purpose of professional misconduct proceedings, namely the preservation of public confidence in the police. The Tribunal set out its conclusions as to the unreasonableness of the panel's decision in relation to disparity at paragraph 5 of the determination, and in relation to character evidence and personal insight at paragraph 6. At paragraph 10, having concluded that the decision of the panel was unreasonable, the Tribunal stated that it had decided to substitute its own decision on outcome. It is only then, when considering its options, that at paragraph 12 it refers to the aggravating features noted by the panel which it agrees "are all valid".
44. For all these reasons, I am left in no doubt that the Tribunal erred in finding that the sanction imposed by the panel was unreasonable. In my judgment, the panel imposed a sanction which was plainly within the range of reasonable sanctions upon the material before it. I note that the Tribunal at no point in its determination referred to this being the test.
45. The next question is whether the report of Professor Peckitt could have materially affected the outcome as to the sanction imposed. Professor Peckitt is a consultant forensic psychiatrist and forensic physician. He is in independent practice at East Anglian Forensic Services Ltd, which is a specialist forensic psychiatric consultancy. He was instructed by HM Senior Coroner for the County of East Sussex to consider the case history and records of evidence relating to the late Miss Cruttenden. He was specifically instructed to consider, inter alia, whether at or around the time of her death she was suffering from any mental illness, and if so what it might have been and how it might have affected her actions.
46. The report of Professor Peckitt runs to some 44 pages. The relevant parts of the Tribunal's determination dealing with the report are in paragraphs 9 and 13. The material parts of those paragraphs read as follows:

"9. He gave an opinion of the conditions suffered by Miss Cruttenden and how she sought to influence and affect those around her. Professor Peckitt gave an opinion on the provocation faced by the appellant. This is clearly capable of amounting to a mitigating feature and the Tribunal therefore considers that this is evidence which could have materially affected the outcome.

13. The Tribunal notes that the evidence from Professor Peckitt indicates that Miss Cruttenden suffered from a 'complex and devastating personality disorder' and her disorder drove her to 'extreme and abnormal behaviour' in her interactions. Professor Peckitt noted that the appellant was placed in an 'exceptionally difficult position'."

47. Reading those two paragraphs together, what they amount to is that the evidence indicates that Miss Cruttenden suffered from a personality disorder that drove her to extreme and abnormal behaviour that placed Mr Deans-Cane in an exceptionally difficult position. This amounted to provocation which, in the Tribunal's view, is "clearly capable of amounting to a mitigating feature". The Tribunal considered that this is evidence "which could have materially affected the outcome". However, nowhere does the Tribunal explain why it considers that this is evidence which could have materially affected the outcome, namely the sanction to be imposed.
48. Granting permission, Mr Martin Chamberlain QC, sitting as a deputy High Court judge, observed that it was arguable that the PAT failed to explain adequately why the precise nature of the condition suffered by Miss Cruttenden was such as to amount to a mitigating feature. In my judgment, the Tribunal did fail to provide this explanation. The Tribunal does not explain how Professor Peckitt's analysis of why Miss Cruttenden was behaving as she did should have materially affected Mr Deans-Cane's behaviour and his compliance with Standards of Professional Behaviour which govern how police officers should perform their duties. Police officers on a daily basis have to deal with members of the public with severe mental health problems, individuals significantly under the influence of alcohol or drugs, and persons who act violently. Regularly they are provoked but are required to act in a professional manner and with restraint.
49. What in my judgment the Tribunal has failed to do is properly to consider the impact of Professor Peckitt's analysis of Miss Cruttenden's personality disorder on the findings made by the panel as to the conduct of Mr Deans-Cane and the aggravating factors that the panel identified. I reject Mr Ozin's submission that the evidence of Professor Peckitt speaks for itself, or that the reasons for the Tribunal's decision can be inferred from the material, including the written submissions of counsel on Mr Deans-Cane's behalf, before it. In my judgment, the Tribunal erred in its treatment of Professor Peckitt's report. It did not adequately explain how the report could have materially affected the outcome.
50. Having reached the conclusions I have on grounds 1 to 4, I can deal with ground 5 shortly. The Tribunal acknowledged that it was "exceptionally" substituting the decision to dismiss without notice for a final written warning. There was, in my judgment, no proper basis for doing so. I have already referred to paragraph 10 of the Tribunal's decision where it is said that, having concluded that the decision of the panel was unreasonable, amongst other matters, it decided to substitute its own decision on outcome. Mr Ozin submits that cumulatively these conclusions added to the appropriateness of the Tribunal substituting its decision for that of the panel. However, having rejected the grounds of appeal against the panel's decision, I am led to the conclusion that it was not appropriate for the Tribunal to substitute its own decision. In my view, that decision was flawed for the reasons I have given. Accordingly, for the reasons I have given, the decision of the Tribunal will be quashed.
51. I will now consider with counsel the issue of relief.
52. Mr Boyle, there are various options.
53. MR BOYLE: Forgive me, my Lord.
54. MR JUSTICE SUPPERSTONE: No, not at all. I of course will give you an opportunity to take instructions, and similarly for Mr Ozin, when I have put to you what I think are the options; you may say there are other options. (1) I could decide the matter myself. It seems to me that would be inappropriate for me to do so. The panel and the PAT are specialist bodies, and I think it is a decision which should be taken by a specialist body when considering what the impact of this psychiatric report is on the findings that have been made and looking at the matter in the round. I do not think it is appropriate for me to take that decision. So having articulated it, I would put that option to one side.
55. The second option: it could go to another PAT. Again, my provisional view, and I express it this way, is that that would not be appropriate. The reason it would not be appropriate is because the PAT is an appeal body, but it does not seem to me that there is anything to go before an appeal body. The reason I say that is because the challenge to the decision of the panel has failed; therefore, the decision of the panel stands, and what has to be considered is not an appeal now from the decision of the panel, but again the impact of the fresh evidence.
56. That brings us to the third option, which it seems to me is in two parts: (1) if it does not go back to the PAT and it is not to be determined by me, it goes to a panel. (2) should it go to the original panel or a new panel? Pausing there, query whether it is practicable, three years after the hearing before the panel, or was it two years?
57. MR BOYLE: Two years.
58. MR JUSTICE SUPPERSTONE: Two years, whether the members of the panel are alive and well and still operating as members of that panel. Query whether there is an advantage in it going back to the panel after so long. But, on the other hand, if it is practicable, they made the findings of fact; there is going to be no further evidence; they are the ones who arguably should consider the impact of this fresh evidence on their original decision. Test it this way, and this is what I was really airing with you and Mr Ozin at one point, but then I appreciated it may be it was not the appropriate time to do so, and it is this: if this fresh evidence had come up a few weeks after the original decision, I would have thought, subject to any particular rule or procedure - and that brings into play the Home Office guidance and consideration of that - in the ordinary way this court would say "send it back to the original Tribunal for it to look at again in the light of the fresh evidence".
59. But here should it go to a new panel to consider, on the basis either (1) that it is not practicable for it to go to the original panel and/or (2) the Home Office guidance does not permit reconsideration by the original panel.
60. I would want to look quite carefully at the Home Office guidance if that be so, because I cannot quite understand at the moment the logic of it if one is dealing, as in this case, with fresh evidence and it going back to a panel whose decision has been upheld. But obviously I will hear from both of you on that.
61. Now, would it help if I rise for a few minutes, give you an opportunity to take instructions, have a word between you if you wish to, and collect your thoughts?
62. MR BOYLE: That would be sensible.
63. MR OZIN: Yes, please.
64. MR JUSTICE SUPPERSTONE: I will do that.
(A short adjournment)
65. MR JUSTICE SUPPERSTONE: Agreement or not?
66. MR BOYLE: I think so, my Lord, yes.
67. MR OZIN: My Lord, to a degree, but I will allow my learned friend to go first.
68. MR BOYLE: So far as the options are concerned, what we are agreed is remitting the matter to a panel.
69. MR JUSTICE SUPPERSTONE: Yes. It seems right to me.
70. MR BOYLE: Yes. It is practicable for the original panel to reconvene to hear the case. The Assistant Chief Constable is still the (Inaudible) Assistant Chief Constable; the senior officer in the panel is still (Inaudible) independent member still sits as a panel member from time to time. So they are in a position where they can be reconvened.
71. MR JUSTICE SUPPERSTONE: And they will have all the documentation to remind themselves of what was before them in their original decision.
72. MR BOYLE: They can be provided with the (Inaudible). The one practical issue, I suppose, is that, bearing in mind that you are quashing the decision of the Police Appeals Tribunal, the effect of that might be considered to be that the officer then stands dismissed. An officer who is no longer an officer cannot appear before a police misconduct panel pursuant to the Police (Conduct) Regulations because they only apply to those who are still police officers.
73. MR JUSTICE SUPPERSTONE: That does not make sense, does it?
74. MR BOYLE: Well, my learned friend and I have discussed this and one way around it, if we need to work a way around it, is for one of the terms of the order effectively to be (1) the decision is quashed, (2) to remit back to the original panel for a hearing, (3) the determination of the original panel dismissing the officer or the outcome of that panel is deemed not to take effect until the conclusion of the reconvened hearing, or words to that effect, my Lord.
75. MR JUSTICE SUPPERSTONE: Yes. That deeming provision would be giving retrospective effect, would it not?
76. MR BOYLE: Yes, it would, but it would enable the officer to appear before --
77. MR JUSTICE SUPPERSTONE: Yes. Quite frankly, if the parties are agreed and there is no objection and it should go back before the panel and can go before the original panel, then I would have thought one could find a way of doing it.
78. MR BOYLE: Yes. The one area where there is an element of disagreement between us is whether it ought to go back before the original panel or whether it should go back to a new panel, and I think my learned friend will take you to the Home Office guidance at tab 18.
79. MR JUSTICE SUPPERSTONE: Shall we have a look at it?
80. MR BOYLE: Tab 18, section 14, which is on page 117, and it is paragraph 14.2A. That concerns:

"Where the tribunal decides that the finding or outcome may be unsafe due to new evidence ... then the tribunal may set aside the relevant decision and remit the matter back to the force to be decided again in accordance with the relevant provisions of the Conduct Regulations ... Where the original decision was taken by a panel, the case will be reheard by a fresh panel which does not contain any of the members of the original panel."

81. Now, of course this is guidance, Home Office guidance, to the conduct provisions. It is not in any way binding, it does not have statutory force and it is not of course binding on your Lordship.
82. MR JUSTICE SUPPERSTONE: Two points: (1) it relates to the operation of the PAT rules and a decision of the Tribunal; (2) it is in circumstances where the Tribunal decides the finding or outcome may be "unsafe due to new evidence". That is not this case.
83. MR BOYLE: No. So it may not be of much assistance, but I will let my learned friend address you on it.
84. MR JUSTICE SUPPERSTONE: Yes, certainly.
85. MR BOYLE: We would recommend it simply goes back before the original panel.
86. MR JUSTICE SUPPERSTONE: Yes, thank you very much.
87. Yes, Mr Ozin?
88. MR OZIN: My Lord, my learned friend is quite right: that is the sticking point. I am just trying to ask myself whether -- well, the last point is one that we have properly factored in. On the face of it, the Home Office guidance would appear to apply to this position and, although in the Avon and Somerset case Collins J held that it was not in fact binding, he did say in broad terms it was good stuff, and, subject to that one error that he identified, close regard should be had to it.
89. MR JUSTICE SUPPERSTONE: Yes.
90. MR OZIN: Consequently, it sets up a reasonable expectation, which I have to say in this instance, at the risk of speaking frankly, coincides exactly with the anxieties that my client has.
91. MR JUSTICE SUPPERSTONE: Was there anything said by Collins J in the Avon case that you want to refer me to?
92. MR OZIN: My Lord, just the proposition that the Home Office guidance is subject to the one correction that he made.
93. MR JUSTICE SUPPERSTONE: But was the Avon case a case where there was new evidence and it was going back because the outcome may be unsafe due to the new evidence?
94. MR OZIN: From recollection I do not think so. Would your Lordship give me a moment?
95. MR JUSTICE SUPPERSTONE: It is tab 12, is it not?
96. MR OZIN: Yes. It was a case where the Police Appeals Tribunal substituted a financial penalty for a requirement to resign in integrity allegations.
97. MR JUSTICE SUPPERSTONE: Where does he deal with this issue?
98. MR OZIN: I think in fact unusually it is in the discussion that follows the handing down of the judgment. Paragraph 54 onwards in particular, paragraph 57:

"All the rest I suspect is very sensible and in accordance, and no-one has suggested it is other than in accordance, with the law."

99. 59:

"If the Secretary of State gives guidance, and it is perfectly appropriate for him to do so, he has to get the law right. Provided he gets the law right, no problem. In this particular regard I have formed the view that he got the law wrong, and it is as simple as that."

Then Miss Studd rightly asks what is its status. Paragraph 61:

"All I have said is that it will have regard to the guidance if the guidance is not wrong in law."

100. MR JUSTICE SUPPERSTONE: But which part of the guidance is being referred to there?
101. MR OZIN: My Lord, I think it is the bit that my learned friend took you to about the definition of unreasonableness, where it was said that the guidance had misstated the position.
102. MR JUSTICE SUPPERSTONE: Right. But is he considering here referral back to the panel, as opposed to --
103. MR OZIN: My Lord, he is not, no. The point that it goes to is the regard that ought to be had to the guidance, unless it is wrong in law. And it is not wrong in law; it is setting up a reasonable and legitimate expectation that if you have a panel that has found against you --
104. MR JUSTICE SUPPERSTONE: But that is a different point.
105. MR OZIN: Yes.
106. MR JUSTICE SUPPERSTONE: That is a different point. I mean, the 4.2A point only bites where there is a decision of the Tribunal, and we are not concerned with that situation. I have found the decision of the Tribunal should be quashed and it is a question of what I now do, what the Administrative Court now does, in terms of anything hereafter.
107. MR OZIN: Yes.
108. MR JUSTICE SUPPERSTONE: Anything you want to say about fairness, Mr Ozin?
109. MR OZIN: Well, my Lord, it might be thought that there is a perception that the existing panel has formed such strong views on the evidence that they would be disinclined to shift from that position. I bear in mind that, of course, this claim was mounted on a basis which I think your Lordship has not upheld, which is that Professor Peckitt's report -- this is ground 4, the PAT decision -- Professor Peckitt's report could have materially affected the outcome to the extent that the panel's decision was unreasonable, was irrational.
110. MR JUSTICE SUPPERSTONE: Ground 4 of the appeal to the?
111. MR OZIN: Of the appeal to this court.
112. MR JUSTICE SUPPERSTONE: Of the challenge to this court, yes.
113. MR OZIN: Yes, because it is implicit, I would submit, in your Lordship's determination that the Peckitt report is material which is arguably capable of making a difference.
114. MR JUSTICE SUPPERSTONE: Yes.
115. MR OZIN: Consequently that entrenched position --
116. MR JUSTICE SUPPERSTONE: I do not understand there to be an argument to the contrary. I mean, (1) it is admissible and (2) it is arguably capable of making a difference.
117. MR OZIN: Perhaps as the argument develops.
118. MR JUSTICE SUPPERSTONE: It would not be admissible otherwise.
119. MR OZIN: Yes, well that was certainly the point that we sought to advance.
120. MR JUSTICE SUPPERSTONE: Yes. Thank you.
121. MR OZIN: So, my Lord, that, in my respectful submission, is capable of adding to that perception of unfairness, and whilst I accept the Home Office guidance is, as your Lordship rightly observes, dealing with a different scenario, nonetheless it reflects an expectation, your Lordship may think, that in these circumstances a fresh panel ought to be available.
122. MR JUSTICE SUPPERSTONE: Yes. Thank you very much.
123. The issue has arisen as to the body to which this case should now be remitted. It is agreed between the parties, and I also agree, that it should go back to a panel rather than to the PAT or that I should determine the matter myself. The only issue between the parties is whether it should go to the original panel or to a freshly constituted panel.
124. I have been referred to paragraph 14.2A of the Police Appeals Tribunal Rules 2012. That rule applies to a decision of the Tribunal, where the Tribunal decides the finding or an outcome may be unsafe due to new evidence. That is not the present case. I have decided that the decision of the Tribunal be quashed. That being so, the decision of the original panel is upheld, subject to consideration of the fresh evidence that the parties are agreed (1) is admissible and (2) is capable of having an impact upon the original decision.
125. There seems to me to be no reason whatsoever why the matter should not go back to the original panel. I understand it is practicable for it to do so. The original panel will be able to remind itself of the documentation before it and of its decision. There is no basis for thinking that the Tribunal will not consider the matter fairly and in accordance with procedure, as it should do so. There is no allegation that the decision of the panel was biased or prejudiced in any way, and in those circumstances I direct that the matter go back to the original panel for consideration of the fresh evidence. It goes without saying that the original panel will consider that evidence together with all the other evidence in the case.
126. If it is necessary to include in the order that I invite you to draw up a deeming provision in the terms that you indicated, then it seems to me that that would be most appropriate.
127. MR BOYLE: Thank you, my Lord. That just leaves the question of the costs in relation to these proceedings.
128. MR JUSTICE SUPPERSTONE: Yes. Well, Mr Ozin, it is a matter of principle that they are entitled to their costs, are they not?
129. MR OZIN: My Lord, yes.
130. MR JUSTICE SUPPERSTONE: Anything on quantum?
131. MR OZIN: It is going to get paid by Mr Deans-Cane and, although he is currently in work, he has not been working as a police officer for nine months. He is a man of modest means, as your Lordship will appreciate. He has had to foot the bill for representation today. I would invite your Lordship to take these matters into account.
132. I know that a schedule has been provided to those instructing me. I am afraid I have not seen it. There is one matter perhaps I might invite your Lordship to approach in this way: that it is possible that discussions between those instructing me and those who represent my learned friend will result in a reasonable accommodation which need not trouble your Lordship. One way of dealing with it would be to give us, say, 14 days to seek to come to an agreement, in the absence of which further written representations could be made to your Lordship.
133. MR JUSTICE SUPPERSTONE: Do you have any instructions? You say you have not received the schedule of costs; I received it this morning. It is £10,870 is the grand total. Are you saying you need to take instructions on the composition of that sum?
134. MR OZIN: No, but I have to say I have not seen it and therefore I have not had the opportunity of discussing it with those who instruct me or Mr Deans-Cane. I would observe this: that it does seem to be a matter for your Lordship's judgment but somewhat out of kilter with the usual going rate for a modest judicial review.
135. MR JUSTICE SUPPERSTONE: Have a look. Do you have a copy? (Handed).

Basically, it is solicitors £4,896, counsel you see the fees there, and court fees.

136. MR OZIN: Yes.
137. MR JUSTICE SUPPERSTONE: My first impression is there is nothing untoward about those figures.
138. MR OZIN: My Lord, I might observe, and one small point, which is my learned friend deserves congratulations for recently taking silk. I think in fact he was not in silk when he was originally instructed. That may have a bearing upon your Lordship's view.
139. MR JUSTICE SUPPERSTONE: I am not sure. Looking at those figures, I do not think so.
140. MR BOYLE: My Lord, so far as the figures are concerned, we were originally listed for attendance 2 1/2 hours, I think it was, 3 hours I think might have been the listing. We have obviously been here longer than that. My solicitor has added some further figures in relation to the additional time spent. So the total figure would be £11,207.50(?).
141. MR JUSTICE SUPPERSTONE: It is late now. One way we can do this is to say that you are entitled to your costs, and that is not resisted. As to quantum, either you reach an agreement or you make written submissions within an agreed timescale and I will determine the issue of costs.
142. MR BOYLE: Very well.
143. MR JUSTICE SUPPERSTONE: Are you content with that, Mr Ozin?
144. MR OZIN: My Lord, I am. Thank you very much.
145. MR JUSTICE SUPPERSTONE: We will proceed in that way. I will leave it to the two of you. I am sure you can agree the appropriate directions. Thank you both very much indeed.