Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2010] CSOH 166
P367/10	OPINION OF LORD BANNATYNE in the Petition of NORMA GRAHAM, CHIEF CONSTABLE, FIFE CONSTABULARY Petitioner; for Judicial Review of a decision of the Police Appeals Tribunal intimated to the petitioner on 26 March 2010 ­­­­­­­­­­­­­­­­­________________

Petitioner: Carmichael, Q.C., et Wallace; HBJ Gately Wareing (Scotland) LLP

Respondent: Dewar, QC; Balfour + Manson LLP

15 December 2010

The subject of proceedings
[1] In this petition the Chief Constable of Fife Constabulary ("the petitioner") seeks judicial review of a decision of the Police Appeals Tribunal ("the Tribunal") intimated to the petitioner on 26 March 2010. That decision allowed an additional ground of appeal to be argued by Constable William Crawford ("the respondent") in his appeal under section 30 of the Police (Scotland) Act 1967 ("the Act") against a decision of the petitioner under Regulation 20 of the Police (Conduct) (Scotland) Regulations 1996 and secondly to allow the respondent to lead evidence from himself and his wife.

The factual background to the challenged decision
[2] That the respondent, a police officer with Fife Constabulary, appeared before a misconduct hearing in December 2004 in respect of three charges of conducting himself in an oppressive or improper manner contrary to the said Regulations. The misconduct hearing found only the third charge proved, namely:

"On 22 or 23 February 2001 at 154 Townhill Road, Dunfermline, Fife you did lay on top of C.J.J., care of Fife Constabulary, while she was asleep, insert your penis into her vagina and have sexual intercourse, all of which was against her will and unsolicited by said C.J.J. and in so doing conducted yourself in an oppressive or improper manner, contrary to Police (Conduct) (Scotland) Regulations 1996, schedule 1, paragraph 1(h)".

The respondent was dismissed from Fife Constabulary with immediate effect.

[3] The respondent then appealed to the petitioner's predecessor in office, Peter Wilson, who refused the appeal.

[4] The respondent then appealed to the Tribunal on twelve separate grounds. In advance of the hearing, the respondent added a further ground of appeal. The thirteen grounds of appeal were then reduced to two amended grounds of appeal, namely:

"1. The Chairman misdirected himself as to the standard of proof required before finding the allegation proven when he said simply that the balance of probabilities was enough.

2. The account of events given by the complainer was so improbable that no Chairman properly instructed as to the standard of proof required for such an allegation would have found it proved."

By a majority and on the casting vote of the Chairman, the Tribunal allowed the appeal and ordered the reinstatement of the respondent. The date of that decision was 19 March 2006.

[5] The petitioner's predecessor in office then petitioned this Court to judicially review the Tribunal decision. That petition called on 26 May 2006 when first orders were made including interim suspension of the decision of the Tribunal. This Court subsequently found that the Tribunal had erred in substituting its own opinion of the evidence for that of the misconduct hearing and reduced the said decision. The Court remitted the case for a fresh hearing before a differently constituted Tribunal.

[6] The Tribunal fixed a hearing to take place on 19 and 20 April 2010. In advance of the hearing, however, the Tribunal allowed the respondent to add an additional ground of appeal, namely:

"The Chairman of the misconduct hearing erred by failing to comment in his decision on the credibility and reliability of both William Crawford and Rhona Crawford. Accordingly, it is proposed to lead evidence from both witnesses before the Police Appeals Tribunal so that a proper approach to the evidence can be taken with the assistance, if possible, of productions which have been lodged and referred to at the misconduct hearing but which were not available at the last Police Appeal Tribunal".

This decision was intimated on the petitioner by a letter from the Assistant to the Registrar to the Tribunal dated 26 March 2010. At said date the Tribunal provided no reasons for its decision. The petitioner had already objected to the addition of a ground of appeal.

The grounds of challenge of the Tribunal's decision
[7] The grounds of challenge to the Tribunal's decision, which are elaborated in detail in the petition are that the Tribunal in allowing the new ground of appeal to be argued by the respondent erred in law et separatim acted unreasonably. Further by allowing the evidence of the respondent and his wife to be led erred in law et separatim acted unreasonably.

The relevant statutory provisions
[8] Section 30 of the Act provides:

"(1) A constable who is dismissed, required to resign or reduced in rank by a decision taken in proceedings under Regulations made in accordance with subsection (2A) of section 26 of this Act may appeal to a Police Appeals Tribunal against the decision except where he has a right of appeal to some other person; and in that case he may appeal to such a Tribunal from any decision of that other person as a result of which he is dismissed, required to resign or reduced in rank".

The Police Appeal Tribunal (Scotland) Rules 1996 ("the Rules") so far as material to this judicial review are as follows:

"Rule 4(5) of the Rules provides:

'The appellant shall send the notice of appeal, together with the statement and documents referred to in paragraph (3), to the Registrar not later than 28 days after the date on which the disputed decision against which the appeal is made was given to or served upon the appellant'".

"Rule 6 of the Rules provides:

'Adjustment of statements
(1) Following receipt of the notice sent pursuant to rule 5(1), the Registrar shall send to each of the parties a notice informing the party that he may make adjustments to his statement of case by sending a note of any adjustments to the Registrar, and a copy thereof to the other party, not later than 21 days after the date on which the notice is sent.

(2) Either party may make adjustments to his statement of case at any time after the expiry of the period mentioned in paragraph (1) with the leave of the tribunal and subject to such terms as it thinks fit.

(3) In any case where the leave of the tribunal is given for the purpose of paragraph (2), the party shall send a note of the adjustments to the Registrar and a copy thereof to the other party".

"Rule 10(1) and (2) of the Rules provides:

'(1) For the purposes of requiring any person to attend a hearing fixed in accordance with rule 9 and to give evidence thereat, or to produce documents which relate to any matter in question at such a hearing, the provisions of subsections (4) and (5) of section 210 of the Local Government (Scotland) Act 1973 shall apply as if -

(a) references to a local inquiry were references to such a hearing;

(b) references to the person appointed to hold the inquiry, or to the person holding the inquiry, were references to the chairman of the tribunal; and

(c) the reference to "this section" in subsection (5) of section 210 were a reference to this rule.

(2) Subject to the following paragraph of this rule, the chairman of the tribunal may at any time exercise the powers conferred on him by paragraph (1) to require any person to attend to give evidence or to produce any books or other documents -

(a) on the application of a party; or

(b) where he is authorised to do so by the tribunal on its own motion'.

Rule 15(1) and (5) of the Rules provides:

'(1) Subject to the provisions of these Rules -

(a) the procedure at a hearing of an appeal shall be determined by the tribunal who shall have power to hear any new evidence or to re-hear the evidence given at the misconduct hearing or inefficiency hearing; and

.....

(5) At the hearing of the appeal the tribunal may, if it is satisfied that it just and reasonable to do so, permit a party to rely on grounds not stated in his statement of case, or any adjustment of it made in terms of rule 6, and to adduce any evidence not submitted with the statement".

Proceedings in Court since the raising of the present petition
[9] By interlocutor of Lady Stacey dated 9 April 2010, this Court suspended the decision of the Tribunal ad interim and ad interim interdicted the Tribunal from holding said hearing. By interlocutor of Lord Kinclaven dated 16 April 2010 the interim orders were recalled, for the limited purpose of permitting the Tribunal to provide reasons for their decision and to consider any questions arising under or in terms of Rule 15(5) of the Rules. The Tribunal held a hearing on 19 April 2010 and thereafter produced reasons for its decision by note dated 21 April 2010 (No. 6/21 of process).

The reasons of the Tribunal for the challenge decision
[10] The reasons given by the Tribunal in No. 6/21 of process for the challenged decision were:

"8. As indicated above the Appellant made application by way of letter from his solicitor dated 5^th October 2009 to have an additional ground of appeal received and considered by the Tribunal. The terms of the additional ground of appeal are set out in para.2 above. The Appellant's solicitor's letter was sent to the Registrar in response to her letter to parties dated 23^rd September 2009. The Tribunal, having considered the material set out in that letter at its meeting on 22^nd September 2009 was mindful that a considerable period of time had elapsed since the first hearing of the appeal before a Police Appeals Tribunal and that in the intervening period the decision of that Tribunal had been subjected to a successful application for judicial review. This Tribunal was therefore anxious to ensure that parties were content that the documents which set out the grounds of appeal and response thereto accurately reflected the issues which the parties wished to address before this Tribunal. It was for this reason that the Tribunal instructed the Registrar to write in terms of her letter of 23^rd September 2009.

9. The Tribunal considered the request contained in the Appellant's solicitor's letter of 5^th October 2009 and the Respondent's observations as contained in her letters of 7^th October and 23^rd November 2009 at its meeting on 22^nd December 2009. The Tribunal was well aware that the Respondent was objecting to the receipt of the additional ground of appeal on the basis that the Appellant, having amended his grounds of appeal, should not be permitted to do so again by adding an additional ground of appeal 'at this very late stage'. It should be observed that at the time of the Tribunal's meeting on 22^nd December 2009 no dates had been fixed for the hearing of the appeal. The lateness of the Appellant's application to have the additional ground of appeal received could not be judged having regard to a known date or dates for the hearing.

10. In considering whether to permit the additional ground of appeal to be received, the Tribunal had regard to its terms. In so doing the Tribunal also had regard to the terms of the existing grounds of appeal which both raised the issue of the appropriate standard of proof. It seemed to the Tribunal that, on a proper reading, the Appellant was seeking to suggest that there had been an error on the part of the Chairman of the Misconduct Hearing in failing to comment on his view as to the credibility and reliability of the Appellant and his wife, and that in light thereof, it was intended that the Appellant and his wife should give evidence in order to allow the Tribunal to reach a conclusion on their credibility and reliability. Rule 15(1)(a) of the Rules provides that subject to provisions of the Rules 'the procedure at a hearing of an appeal shall be determined by the Tribunal who shall have power to hear any new evidence or to re-hear the evidence given at the misconduct hearing....'. The Tribunal was accordingly satisfied that it had power to re-hear, in whole or in part, the evidence led at the Misconduct Hearing, and, by necessary implication, to arrive at a different view on credibility and reliability from that taken by the Chairman of the Misconduct Hearing. It therefore appeared to the Tribunal that through the additional ground of appeal, the Appellant was inviting the Tribunal to carry out an exercise which it was empowered to do.

(11) The Tribunal considered that its power to allow the additional ground of appeal to be received derived from Rule 6(2), the terms of which are set out in para.7 above. In terms of that paragraph the Tribunal is empowered to allow either party to adjust his statement of case outwith the adjustment period referred to in Rule 6(1). By contrast Rule 15(5) appeared, and appears, to the Tribunal to enable it to permit reliance on a new ground or grounds of appeal in the course of the hearing of the appeal. In exercising its discretion to allow the additional ground of appeal to be received, the Tribunal was mindful of the fact that the appeal before the earlier Police Appeal Tribunal took place under reference to the written record of proceedings before the Misconduct Hearing, and without any further oral evidence. The Tribunal noted however that the Respondent, in opposing receipt of the additional ground of appeal, did not rely on any anticipated prejudice she might suffer in the event that she was required to cross examine witnesses on events which occurred some nine years ago, nor did she assert that she could not properly prepare to meet the evidence of the Appellant and his wife. The Tribunal noted that it was open to the Respondent, if so advised, to make application to the Tribunal for an order requiring the attendance at the hearing of any witness. Reference is made to Rule 10(1) and (2).

12. For the foregoing reasons the Tribunal decided on 22^nd December 2009 to allow the additional ground of appeal proposed by the Appellant to be received."

Submissions for the petitioner
[11] The petitioner's primary position which senior counsel went on to develop was that having regard to their reasons the Tribunal had failed to take into account a number of relevant factors in reaching its decision.

[12] The first factor which it had not had regard to was the lateness of the new ground of appeal. On any view she submitted the new ground of appeal came at a very late stage. No reason had been put forward on behalf of the respondent as to why this ground had not been before the Tribunal at a much earlier stage. In fact an almost identical ground had been lodged on behalf of the respondent in 2006 in terms of his Note of Appeal 6/4 of process, ground 6 of which was in the following terms:

"The Chairman has not rejected the evidence of Constable Crawford nor his wife Rhona Crawford. Their evidence directly contradicted the evidence of the complainer in a number of material respects. The Chairman does not state in his decision that he disbelieves Constable Crawford or his wife Rhona Crawford. Accordingly, there is no rational basis upon which the Chairman chose to believe the evidence of the complainer on its own as against the evidence of the appellant as supported by his wife."

[13] However this ground of appeal was not insisted upon by the respondent. The Tribunal had, against that background, wholly failed to consider the lateness of the addition of the ground of appeal.

[14] Secondly, when considering the issue of the date at which the ground of appeal was sought to be added, the Tribunal had failed to consider the prejudice to the complainer in having to give evidence of a sexual nature on a second occasion. She submitted that this was the inevitable result of rehearing the respondent and his wife's evidence.

[15] Thirdly, she submitted that given the time gap since the incident, the foundation of the complaint was some 9 years ago and there was a substantial risk of prejudice to the petitioner as there could be difficulties in locating witnesses. Moreover, even if witnesses could be located their evidence, given the considerable gap in time, would be of questionable value. She thus submitted that the Tribunal had erred in the exercise of its discretion and acted unreasonably in a Wednesbury sense.

[16] Fourthly, the Tribunal in exercising its discretion had failed to consider whether the matter raised in the new ground of appeal had any merit. In failing to do so it had erred in law.

[17] In properly instructing itself on that issue the Tribunal should have had regard first to the Opinion of Lord Uist in the original judicial review. It had not done so and had so erred in law.

[18] She went on to submit that if it had considered Lord Uist's Opinion it would have seen that the point disclosed in the ground of appeal had no merit.

[19] In elaborating upon the foregoing submission, counsel referred in detail to the Opinion of Lord Uist No. 6/11 of process.

[20] Before Lord Uist one of the principal submissions on behalf of the petitioner had been that:

"It was clear from the misconduct hearing's findings that its determination was based on credibility and that it had accepted the evidence of the complainer as credible on material matters. The conflicts identified in the evidence were on matters that did not directly bear on whether the respondent had conducted himself in the manner alleged. The respondent's position was that the rape did not occur: if the complainer's version was accepted it followed that the respondent's version was not accepted."

(See paragraph 28 of Lord Uist's Opinion).

[21] Counsel's position was that in relation to said submission Lord Uist held at paragraph 73:

"The misconduct hearing explicitly said that, having listened to and watched the witnesses give evidence, it considered the account of the complainer to be credible. In my opinion the Tribunal's criticism of the misconduct hearing's decision on the facts can be described, in the words of Lord Simonds, as fundamentally unsound criticism. The misconduct hearing was not required to comment on every point of conflict in the evidence and engage in a close analysis of it. It cannot be inferred from the fact that it did not do so, that it had forgotten or ignored such evidence. I accept that there was no deficiency in the reasoning of the misconduct hearing. This is not a case in which it can be said that no conclusion is possible except that the misconduct hearing's decision is wrong and I am of the view that the Tribunal erred in law in describing the misconduct hearing's decision as plainly wrong."

[22] Counsel went on to submit that when a body is seeking to exercise its discretion in circumstances such as those facing the Tribunal then it is required to consider whether allowing the amended ground of appeal would assist in the just resolution of the matter before it. She submitted that having regard to the foregoing passages in the Opinion of Lord Uist allowing the new ground of appeal would not assist in the just resolution of the matter as it had no merit. The Tribunal had thus erred in law.

[23] Counsel in addition submitted that having regard to the original Misconduct Hearing's decision the same conclusion could be reached that the new ground had no merit.

[24] Lastly counsel referred me to Lau Liat Meng v Disciplinary Committee 1967 A.C.391. In that case the appellant had appeared before the Solicitors' Disciplinary Committee. The High Court on appeal accepted the findings of the Committee. The Privy Council held that although the findings of the Disciplinary Committee were not conclusive and the Supreme Court was not shut out, there was nothing to prevent the Supreme Court receiving the findings of the Committee and acting upon them if it thought fit; but that, on the other hand, the Supreme Court could hear the matter de novo where it was deemed proper, as, for example, where fresh evidence was found.

[25] Senior counsel took from that case that before new evidence could be heard it had to be considered by the Tribunal whether it was proper to hear new evidence. The Tribunal had not done this and had accordingly erred in law.

[26] For the foregoing reasons senior counsel submitted that I should grant the petition.

Submissions for the respondent
[27] Counsel's motion was that the petition should be refused and in particular the second plea-in-law for the respondent should be sustained.

[28] Counsel began his submissions by asking a rhetorical question: if the Tribunal had not allowed this ground of appeal what was this fresh hearing ordered by Lord Uist at paragraph 76 of his Opinion going to be about? He submitted that the answer to that was very difficult to see. Broadly it was his position that if the new ground of appeal were not allowed there could be no fresh hearing. The effect of Lord Uist's decision meant that the two grounds presently before the Tribunal could not be considered by them as they had both been rejected by Lord Uist.

[29] Counsel went on to concede that the way the matter had been dealt with by the Tribunal was somewhat odd in a procedural sense in that the Tribunal had met, made a decision about the new ground of appeal and then did not communicate it to parties. He accepted that that was clearly an oddity. However, his position was that so far as the present judicial review proceedings were concerned nothing flowed from that rather odd procedural background.

[30] He also accepted that the opening phase of the present judicial review proceedings had been somewhat odd. The proceedings were odd in that what had happened was that Lord Kinclaven had allowed the hearing before the Tribunal to go on but on a limited basis, namely: to obtain reasons for their decision allowing the new ground of appeal. This he suggested was somewhat odd in that the Tribunal in terms of their rules were not bound to give reasons for such a decision. However, he accepted that the decision of the Lord Ordinary had been made on a pragmatic basis.

[31] Counsel then turned to the core of his submissions. He stated that the critical question was this: whether the Tribunal was entitled to do what it did within the scope of its powers and discretion. He stressed that there was no dispute that the Tribunal had power to do what it did. He therefore submitted that the sole question before me was whether the Tribunal had exercised its discretion properly. It was his position that in the Wednesbury unreasonable sense there was no question of the Tribunal having exercised its discretion in an illegal manner. It was his position that the Tribunal had not exercised its discretion in such a manner that no reasonable Tribunal properly instructing itself as to fact and law would have done so in the same way. It was his position that they had not failed to have regard to any material factor.

[32] He submitted that in examining the decision of the Tribunal the starting point was the rules which governed the conduct of the Tribunal. In particular it was his position that regard had to be had to the terms of Rule 15 of the rules. He submitted that the powers given to the Tribunal at 15(1) and (5) were very wide in their nature. Given the powers contained therein it was his submission that the case of Meng to which counsel for the petitioner had referred was of little or no assistance as in that case there was no provision in similar terms to 15(1). In those circumstances all that the Privy Council was saying was that in the absence of such a power you can only have a rehearing in a proper case. Those were not the factual circumstances in the present case.

[33] He accepted the Tribunal had to exercise its powers in terms of Rule 15 in a sensible way. However, given the width of the powers granted to the Tribunal in terms of that particular rule, it was his position very difficult to argue that the Tribunal had reached a decision which no reasonable Tribunal properly instructing itself could have arrived at.

[34] Counsel submitted that Rule 15(5) widened even further the power of the Tribunal as set out in 15(1) giving the Tribunal a wide power to allow adjustment of the case even at the hearing itself.

[35] His principal point in summary was this: clearly the Tribunal had wide powers therefore unless it had plainly gone outwith its jurisdiction the Court ought not to interfere with its decision.

[36] Turning to the specific points relied upon by counsel for the petitioner he submitted first that the Tribunal had clearly had regard to the issue of the lateness of the lodging of the new ground of appeal. Looking to their whole reasons they had had regard to this issue. In particular they had had regard to the question of whether the proximity of the hearing would cause any prejudice to the petitioner in having to reply to the new ground of appeal before the date of the hearing.

[37] He also drew the Court's attention to the fact that when the new ground of appeal was lodged the petitioner was given an opportunity to comment but did so on a very limited basis and in particular did not do so on the basis of the grounds set out now in the petition. He made this submission under reference to 6/16 of process.

[38] He pointed to the fact that there was no mention in the letter from the petitioner that what this would entail would be a rape complainer requiring to give evidence some 9 years after the event. He submitted that how in those circumstances could it be said that the Tribunal had gone wrong in law by not looking at that matter given that it was not raised by the petitioner. He submitted that the petitioner's argument under this head was unstateable. In any event he argued that the allowing of the new ground of appeal did not of necessity result in the need for the complainer to give evidence again.

[39] He went on to submit that if a rape victim were required to give evidence again this could for some people be extremely traumatic. However, for others, it could be less so and in the circumstances of this case the Tribunal had no information before it upon which to consider this issue.

[40] As regards the general issue of prejudice to the petitioner of allowing the new ground of appeal he pointed to the fact that 6/16 of process did not set out any prejudice which would arise on the allowance of the new ground. He therefore stated how could the Tribunal be said to have gone wrong in its consideration of the particular issue of prejudice.

[41] Lastly, turning to the question of what merit there was in the new ground of appeal, he urged that care should be taken when drawing from Lord Uist's Opinion a conclusion that the new ground of appeal was without merit.

[42] The first issue Lord Uist was dealing with was the standard of proof, which was not of any relevance to the new ground of appeal.

[43] The second issue was whether it was appropriate for the Tribunal to analyse the evidence on paper and come to the view that the misconduct hearing had gone plainly wrong. In paragraph 73 Lord Uist held that the Tribunal was not entitled to come to the view that the Misconduct Hearing was plainly wrong. In so holding he was not dealing with credibility and reliability issues.

[44] Counsel pointed to the following passage in Lord Uist's Opinion at paragraph 73:

"What the Tribunal has done in this case is to have succumbed to the same temptation as the Inner House did in Thomson v Kvaerner Govan Limited and Simmons v British Steel PLC of retrying the case on the printed evidence. It substituted its own opinion of the evidence for that of the misconduct hearing. It does not seem to me to have had regard to what Lord Du Parcq said in Thomas v Thomas at page 57 about 'the undesirability of deciding a case on the written Record against the view of the judge who heard the witnesses'".

[45] He submitted that the above was the second issue with which Lord Uist was dealing. His decision therefore did not bear on the issue which the respondent now wished to raise in the new ground of appeal. What is now sought to be raised in the new ground of appeal is the failure of the Disciplinary Tribunal to comment on the credibility and reliability of the respondent and his wife. That matter was not dealt with by Lord Uist.

[46] It was his position that Lord Uist's comments in paragraph 73 had to be seen in the context of the argument before him. Counsel said that the danger in the petitioner's position was this: counsel for the petitioner was seeking to argue from comments made by Lord Uist that he would have made the same comments in the light of different arguments, upon which he was not addressed. He submitted that the Court was not entitled to take this approach as it was wholly without validity.

[47] Further, and in any event, it was his argument that the comments of Lord Uist and the general findings of the Misconduct Hearing were not of sufficient weight that they would have allowed the Tribunal to come to the decision that there was no content in the ground of appeal at a procedural stage.

[48] As regards whether this ground of appeal could have been advanced earlier counsel accepted that ground of appeal 6 which had been earlier abandoned was very similar to the one which was now sought to be added. He accepted that this ground of appeal could have been put in at an earlier stage, however, it had to be borne in mind that different legal advisers might take different views as to the arguability of a particular ground.

[49] For all of the above reasons he submitted that the Court should refuse the petition.

Discussion
[50] There is no suggestion in this case that the Tribunal did not have power to make the challenged decision. It should in addition be noted at the outset that the decision of the Tribunal was not challenged on the basis that the petitioner had not been given an opportunity to make representations to the Tribunal as to whether the new ground of appeal should be allowed and there had thus been a breach of natural justice. Rather the challenge to that decision is that it was Wednesbury unreasonable in the sense that no reasonable Tribunal properly instructing itself could have arrived at the decision which the Tribunal did and further that the Tribunal had failed to take account of certain material factors.

[51] I do not find the decision of the Privy Council in Meng to be any assistance in considering the matters before me. As referred to by senior counsel for the respondent the Privy Council was dealing with a situation where the Supreme Court did not have an express power to hear the matter de novo and the Privy Council were against that background seeking to lay down the circumstances in which it could hear the matter de novo. The statutory scheme which the Privy Council was considering was entirely different from that which governs the Tribunal. Therefore the guidance which the Court gave in that case is not applicable to the factual circumstances before me.

[52] The first argument I turn to which was advanced by counsel for the petitioner was that the Tribunal had failed to take into account the issue of the lateness of the lodging of the new ground of appeal and that the decision which they had arrived at was having regard to the lateness unreasonable. In my view there is no merit in this submission.

[53] In the section of the note in which the Tribunal set out their reasons at paragraph 8 it is stated:

"The Tribunal, having considered the material set out in that letter at its meeting on 22 September 2009, was mindful that a considerable period of time had elapsed since the first hearing of the appeal before a Police Appeal Tribunal and that in the intervening period the decision of that Tribunal had been subjected to a successful application for judicial review."

[54] So from the outset the Tribunal had in mind the issue of lapse of time and consequent delay.

[55] At paragraph 9 it specifically recognises that the basis upon which the allowance of the new ground of appeal was opposed by the petitioner was the very late stage at which it was sought to be lodged.

[56] At paragraph 11 the Tribunal turns to explain how it thereafter exercised its discretion in light of the issue of the late stage at which the new ground of appeal had been lodged.

[57] It appears to me that in exercising its discretion in relation to this decision the Tribunal were carrying out a task similar to one familiar to any Court, namely: where a Court is being asked to receive a Minute of Amendment at a late stage. The factors which a Court would take into account when approaching such a task would I believe be the type of factors which the Tribunal should have had regard to and borne in mind when considering its decision as to whether to allow the new ground of appeal. The Court in such a situation would have regard to two aspects arising from delay: (1) has any prejudice arisen to the party opposing the Minute of Amendment from the passage of time between the event founding the action, e.g. the date of accident in a reparation action and the date of intimation of the Minute. (2) Has any prejudice been caused to that party arising from the proximity of the hearing to the date of intimation.

[58] Applying those considerations to the circumstances before me the questions for the Tribunal would be: first, has the delay since the foundation incident some nine years ago caused prejudice to the petitioner in the sense that she would not now be able to properly prepare and present her case in response to the new ground of appeal. The Tribunal at paragraph 11 has considered this issue. It deals with it as follows:

"The Tribunal noted however, that the respondent, in opposing receipt of the additional grounds of appeal, did not rely on any anticipated prejudice she might suffer in the event that she was required to cross examine witnesses on events which occurred some 9 years ago, nor did she assert that she could not properly prepare to meet the evidence of the appellant and his wife".

[59] In my view the said approach to that aspect of the issue of delay cannot properly be the subject of criticism. The Tribunal has considered the issue and noted that it has no basis upon which it could conclude that there was any material prejudice to the petitioner which has arisen due to this gap of about 9 years.

[60] The Tribunal has to look at the issue of prejudice arising from that gap in time in terms of the submissions made to it. There was submitted to it on behalf of the petitioner a very general and inspecific argument based on delay. In those circumstances I judge that the Tribunal was entitled to say that given that no specific prejudice had been put forward by the petitioner that this factor did not weigh materially in the balance against exercising its discretion in favour of the respondent.

[61] It is not for the Tribunal to look outwith the scope of the submissions made to it on behalf of the petitioner when considering whether to exercise its discretion. The Tribunal accordingly did not fail to consider a material factor and further could not be said to have exercised its discretion in light of that factor in a way which no reasonable Tribunal would have done.

[62] The second question for the Tribunal arising from the issue of delay would be this: has the proximity of the lodging of the new ground of appeal to the date of the hearing resulted in the petitioner not being able to prepare in time to properly answer the new ground.

[63] This is again a matter which the Tribunal specifically considers. It does so at paragraph 9 of its decision and it deals with the matter in the following way:

"The lateness of the appellant's application to have the additional ground of appeal received could not be judged having regard to a known date or dates for the hearing".

[64] The Tribunal therefore cannot be said to have failed to have regard to this factor. Further in my view the way that it has dealt with the issue cannot be said to be Wednesbury unreasonable. In my view the Tribunal's response to that issue is within the range of responses open to the reasonable Tribunal. It cannot be judged unreasonable for the Tribunal to say where the date of the hearing is not fixed that no prejudice arises on the petitioner's part from an inability to prepare due to the proximity of the lodging of the ground of appeal to the date of the hearing. The lack of a date for the hearing clearly negatives any possible prejudice arising from a proximity argument on the foregoing basis.

[65] I can identify no error in law in the way that the Tribunal has dealt with this second issue arising from the lateness of the lodging of the ground of appeal.

[66] A separate point was put forward by counsel for the petitioner which related to the failure of the Tribunal to consider the lack of reasons put forward by the respondent for the lateness of the new ground of appeal being lodged. It was also put forward that in particular regard had to be had to the context in which this new ground of appeal had been lodged, namely: where a very similar ground had been abandoned at an earlier stage. The issue of the previous similar ground being abandoned is specifically raised in the letter from the petitioner 6/16 of process..

[67] The Tribunal in my judgment for the reasons which I have already outlined above made it clear that in reaching its decision it was very much conscious of the issue of delay but in addition was aware that this was the sole ground of opposition put forward on behalf of the petitioner. For the reasons I have already stated the Tribunal in its decision has given detailed and relevant reasons as to why it has rejected the petitioner's argument based on delay.

[68] It is clear on looking to its whole decision that it is aware of the whole procedural and factual background to the matter (see paragraphs 1-4 of 6/21).

[69] Having fully considered the background of delay in the light of the specific grounds of opposition (which do not raise the issue of lack of reasons for the lateness of the new ground of appeal as being a basis for not allowing it and only raise the issue of the similarity of the new ground of appeal to the old ground of appeal), I again conclude that the Tribunal's decision cannot be faulted.

[70] First, the lack of reasons put forward on behalf of the respondent in explanation of the delay was not a basis put forward on behalf of the petitioner for opposing the allowing of the ground of appeal. The Tribunal therefore did not have to have regard to that point. However, even if it had been a ground of opposition before it and in addition taking account of the new ground's similarity to the previously abandoned ground, that would not have been a factor of such overwhelming weight to render the decision of the Tribunal Wednesbury unreasonable given its views on the critical issue of whether any prejudice to the petitioner was caused by allowing the new ground to be lodged late.

[71] Over and above these points the appellant's counsel argued the failure by the Tribunal to have regard to the problems which could be experienced by a rape victim giving evidence on a second occasion was a material error of law. In my judgment there is no substance in this argument.

[72] I note again that the above argument does not form part of the grounds of opposition which the petitioner put before the Tribunal. I would restate my view that when exercising its discretion it is for the Tribunal to weigh up the factors which are before it not for it to look for factors upon which no party is relying and to seek to make its decision therefore on a basis which it was not asked to consider. To have followed that course would in my view have clearly been an error in law. Thus for the primary reason that the matter was not before them I believe there is no merit in the petitioner's said argument.

[73] Moreover, although I accept that many victims of rape may find it extremely difficult to give evidence on a second occasion in my view counsel for the respondent was correct in submitting that it cannot be said that every victim of such an assault would be so affected. Thus before the Tribunal could have had proper regard to such a factor it would have had to have been addressed specifically within the grounds of opposition on the effect that the giving of this evidence would have had on this complainer, i.e. it would have had to have formed part of the grounds of opposition that this particular complainer would have been adversely affected by the giving of such evidence on a second occasion. No such submissions were made within the grounds of opposition on behalf of the petitioner.

[74] For the foregoing reasons I do not find that the Tribunal's failure to consider the issue of the effect upon the complainer giving evidence on a second occasion amounted to an error of law. I do not believe that this was a factor which in the whole circumstances they properly had to have regard to. In my view their decision is not rendered unreasonable by their failing to have had regard to that factor.

[75] Further there is some force in the respondent's argument that the Tribunal's decision does not of itself result inevitably in the complainer having to give evidence again. There is a record of her evidence upon which the petitioner could if she so wished rely.

[76] Lastly counsel for the petitioner argued that the Tribunal had erred in holding that there was an arguable point within the new ground of appeal.

[77] In looking at the issue of whether to allow the new ground of appeal it must be a question for the Tribunal to consider: whether it is in the interests of justice that it should be allowed? This in my view is a fundamental question for the Tribunal, which unlike prejudice to the petitioner must be considered by the Tribunal even if not raised as an issue in the grounds of opposition. As part of that consideration the merits of the new ground required to be had regard to. This must be the case in that it cannot be argued that it is in the interests of justice to allow a new ground of appeal to be added if there is clearly no merit in that ground of appeal. However, at a procedural hearing the test for the Tribunal when considering whether the merits of the new ground of appeal justified it being allowed to be received would in my opinion be a low one, namely: does the new ground raise an arguable point of law.

[78] The new ground of appeal is predicated on the following basis:

"The Chairman of the Misconduct Hearing erred by failing to comment in its decision on the credibility and reliability of both William Crawford and Rona Crawford".

[79] Counsel for the petitioner's argument in summary was that that point had already been dealt with by Lord Uist and rejected thus the new ground was not arguable.

[80] In my view there is substance in this argument put forward by counsel for the petitioner.

[81] At paragraph 20 of his Opinion when dealing with the reasons why the original Tribunal overturned the Misconduct Hearing he notes that those reasons included:

"The complainer had been contradicted on essential details by the respondent's wife Mrs Rona Crawford and the Misconduct hearing had given no reasons for rejecting Mrs Crawford's evidence. The cross examination of Mrs Crawford on behalf of the petitioner was brief, extending to only three pages of the transcript, and there was no challenge to the credibility and reliability of where evidence conflicted with that of the complainer. The majority then proceeded to analyse at paras.34-46 the specific complaints. They also pointed out that the Misconduct Hearing did not discuss the respondent's evidence in any detail and that only by implication could one infer that they found him to be an incredible witness".

[82] Thus it is clear that the matters which the respondent now wishes to raise in terms of his new ground of appeal namely: the failure of the misconduct hearing to specifically comment on the credibility and reliability of the respondent and Mrs Crawford were specific matters which were among others being considered by Lord Uist in his Opinion.

[83] Thus when in his opinion Lord Uist said as follows he can be taken to have had in mind the failure to comment on the credibility and reliability of both the respondent and his wife:

"The misconduct hearing was not required to comment on every point of conflict in the evidence and engage in close analysis of it. It cannot be inferred from the fact that it did not do so that it had forgotten or ignored such evidence. I accept that there was no deficiency in the reasoning of the misconduct hearing".

(see paragraph 73).

[84] Thus it appears to me that the point which the respondent now wishes to argue before the Tribunal in terms of his new ground of appeal is a matter which has previously been considered and been rejected as being without merit.

[85] In my view, against that background, any Tribunal properly directing itself as to the law and applying their minds to the matter could not have reached the conclusion that there was: (first) a stateable point of law raised by the new ground of appeal and (second) that it was in the interests of justice to allow the new ground of appeal to be received. No reasonable Tribunal would therefore have allowed the new ground of appeal to be received. In my judgement this was a clear error in law on the part of the Tribunal. In my view their decision accordingly is not sound in law.

Decision
[86] As I am satisfied for the reasons given above, that the Tribunal has erred in law. I reduce the decision of the Tribunal intimated to the petitioner on 6 March 2010. The case will be put out by order to hear argument as to what further steps should be taken procedurally arising from my decision this being a matter parties wished to further address me upon and in relation to the issue of expenses.