EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Eassie Lord Mackay of Drumadoon Lord Osborne	[2012] CSIH 71 P367/10 OPINION OF THE COURT delivered by LORD MACKAY OF DRUMADOON in the petition of NORMA GRAHAM, THE CHIEF CONSTABLE, FIFE CONSTABULARY Petitioner and Respondent; against WILLIAM CRAWFORD Respondent and Reclaimer: for Judicial Review of a decision of the Police Appeals Tribunal intimated to the Petitioner and Respondent on 26 March 2010 ______________

Act: Carmichael QC, Wallace; HBJ Gateley Wareing (for the Petitioner and Respondent)

Alt: Dewar QC; Balfour and Manson LLP (for Reclaimer and Respondent)

13 September 2012

[1] This reclaiming motion arises in proceedings for judicial review at the instance of the Chief Constable of Fife Constabulary ("the Chief Constable") against Constable William Crawford ("Mr Crawford"). Since 2004 Mr Crawford has been involved in disciplinary proceedings which were initiated against him under the provisions of the Police (Conduct) (Scotland) Regulations 1996 ("the 1996 Regulations"). When the proceedings began the petitioner's predecessor in office, was Chief Constable Peter Wilson. The present proceedings for judicial review relate to those disciplinary proceedings. The Chief Constable seeks reduction of a decision of a Police Appeals Tribunal, dated 22 December 2009, to allow Mr Crawford to advance an additional ground of appeal in his appeal before the tribunal. That decision was intimated to the Chief Constable and Mr Crawford on 26 March 2010.

[2] The reclaiming motion has been enrolled by Mr Crawford against interlocutors of the Lord Ordinary dated 15 December 2010 and 20 January 2011. By virtue of those interlocutors the Lord Ordinary reduced the decision complained of and remitted the disciplinary proceedings against Mr Crawford to a fresh hearing before a different tribunal constituted under the Police (Scotland) Act 1967 ("the 1997 Act") and The Police Appeals Tribunals (Scotland) Rules 1996 ("the 1966 Rules"). In this reclaiming motion Mr Crawford has lodged grounds of appeal and the Chief Constable, for her part, has lodged cross‑grounds of appeal. The terms of those grounds of appeal will be referred to later.

[3] The disciplinary proceedings against Mr Crawford have had a long history. In December 2004 Mr Crawford, who was a police officer with Fife Constabulary, appeared before a misconduct hearing in respect of three charges that alleged he had conducted himself in an oppressive or improper manner, contrary to the 1996 Regulations. The misconduct hearing was chaired by Superintendent Stan McLeod, who sat with two assessors. In his decision of 16 December 2004 the Chairman of the Misconduct Hearing held that only the third charge against Mr Crawford was proved. That charge was in the following terms:

"On 22^nd or 23^rd February 2001 at ........ Fife you did lay on top of C J c/o 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 the said C J and in doing so conducted yourself in an oppressive or improper manner, contrary to the Police (Conduct) (Scotland) Regulations 1996, Schedule 1, paragraph 1(h)".

[4] The disposal of the Misconduct Hearing was that Mr Crawford be dismissed from Fife Constabulary with immediate effect. Mr Crawford appealed to the petitioner's predecessor in office, Chief Constable Peter Wilson, under Regulation 20 of the 1996 Rules. Chief Constable Wilson refused the appeal on 17 August 2005. Mr Crawford then appealed to a police appeals tribunal in terms of section 30(1) of the 1997 Act ("the first tribunal"). The notice of appeal which Mr Crawford lodged enumerated twelve separate grounds. In advance of the hearing before the first tribunal, Mr Crawford intimated that he wished to amend his grounds of appeal by adding an argument relating to the standard of proof and otherwise condensing his remaining grounds. The first tribunal allowed the amended notice of appeal, which was in the following terms:

"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."

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

[6] The petitioner's predecessor in office then petitioned this court for judicial review of the first tribunal's decision. That petition first called on 26 May 2006 when first orders were pronounced, including interim suspension of the decision of the first tribunal. Having heard parties at the First Hearing, the Lord Ordinary, Lord Uist, held that the first tribunal had erred in law in its decision dated 19 March 2006 and reduced that decision. The interlocutor pronounced remitted the case for a fresh hearing before a differently constituted tribunal. In the course of his opinion (Petition of Peter Wilson, Chief Constable of Fife Constabulary [2008] CSOH 96) Lord Uist held that the majority of the first tribunal had erred in finding that the misconduct hearing had itself erred in its approach to the standard of proof. Lord Uist also held that a majority of the first tribunal had further erred by substituting their own opinion on the evidence for that of the misconduct hearing and reaching the conclusion that the misconduct hearing's decision was plainly wrong. Lord Uist supported the minority view of the first tribunal that the misconduct hearing had properly appreciated the correct approach in law to the assessment of the evidence and that no error had been demonstrated in applying that approach. In the course of his opinion, in para [73], Lord Uist noted that the misconduct hearing had explicitly said that, having listened to and watched the witnesses give evidence, it considered the account of the complainer to be credible. Lord Uist then expressed, as his own opinion, that the first tribunal's criticism of the misconduct hearing's decision on the facts was fundamentally unsound criticism. He continued:

' 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 is 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".'

As we have already noted Lord Uist reduced the decision of the first tribunal and remitted the case for a fresh hearing before a differently constituted police appeals tribunal.

[7] The differently constituted tribunal (hereinafter referred to as "the second tribunal") met on 22 September 2009. In a letter dated 23 September 2009 the Assistant to the Registrar to the Police Appeals Tribunal wrote to the parties outlining the documents that were before the second tribunal. Those documents included the transcript of the proceedings before the misconduct hearing, held in December 2004; the finding of the misconduct hearing date stamped 16 December 2004; the notice of the determination of the appeal to Chief Constable Wilson dated 17 August 2005; Mr Crawford's notice of appeal against the determination of the chief constable (together with amendments to it); and the Chief Constable's statement setting out grounds for opposing that appeal dated 22 September 2005. In the letter dated 23 September 2009 the parties were advised that it was for the second tribunal to consider whether a hearing would take place to determine Mr Crawford's appeal. The parties were informed that in view of the passage of time since the appeal was presented in 2005 the second tribunal had decided that before making a decision on whether to hold a hearing it wished to know if the parties were content that their written representations should remain as submitted in 2005 or whether any adjustment to those representations was to be made. The parties were asked to clarify such matters by 7 October 2009.

[8] By letter dated 5 October 2009 the solicitor acting for Mr Crawford wrote to the Assistant to the Registrar giving notice of how he intended to proceed with an additional ground of appeal (which he undernoted) and to lead evidence from Mr Crawford and Rona Crawford. The terms of the proposed additional ground of appeal were:

"The Chairman of the Misconduct Hearing erred by failing to comment in his decision on the credibility and reliability of both William Crawford and Rona 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 assistance, if possible, of productions which had been lodged and referred to at the Misconduct Hearing but which were not available at the last Police Appeal Tribunal."

[9] On 7 October 2009 the Chief Constable wrote to the Assistant to the Registrar setting forth her representations in respect of the two grounds of appeal that had been considered by the first tribunal. The Chief Constable was, at the date of writing that letter, unaware of the additional ground of appeal intimated on behalf of Mr Crawford. On 29 October 2009, the Assistant to the Registrar wrote to the Chief Constable enclosing a copy of the letter dated 5 October 2009 that had been received from Mr Crawford's solicitor. On the same day the Assistant to the Registrar wrote to Mr Crawford's solicitor enclosing a copy of the Chief Constable's letter of 7 October 2009. On 2 November 2009 the solicitors for Mr Crawford again wrote to the Assistant to the Registrar noting the terms of the Chief Constable's letter of 29 October 2009 and stating:

"Of course, the Police Appeals Tribunals is entitled to consider the evidence of witnesses over and above the findings in fact in the contents of the original Misconduct Hearing decision, and this is what we are inviting the fresh tribunal to do."

On 23 November 2009 the Chief Constable wrote a further letter to the Assistant to the Registrar, in which she stated in relation to the additional ground of appeal intimated by Mr Crawford's solicitor:

"It is very similar to the original sixth ground of appeal made on behalf of Mr Crawford. However when the appeal called before the Police Appeals Tribunal on 20 February 2006, the grounds of appeal were amended and the appeal proceeded on that basis. I submit that having previously amended the grounds of appeal, Mr Crawford should not be permitted to add an additional ground at this very late stage. I would be very grateful if you could bring my concerns to the attention of the Police Appeals Tribunal."

The original sixth ground to which the Chief Constable referred had been in the

following terms:

"6. The Chairman has not rejected the evidence of Constable William Crawford nor his wife Rona 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 Rona 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."

[10] By letters dated 26 March 2010 the parties were given formal notice that the additional ground of appeal had been allowed and that a hearing had been fixed to take place on the 19 and 20 April 2010. In those letters the second tribunal provided no reasons for its decision to allow the additional ground of appeal.

[11] On 9 April 2010 the present petition for judicial review was lodged. On the same date, interim orders were pronounced suspending ad interim the decision of the second tribunal to allow the additional ground of appeal and interdicting ad interim the second tribunal from holding a hearing in Mr Crawford's appeal. Those interim orders were recalled one week later, under reservation of the whole rights and pleas of both parties as raised in the petition.

[12] On 21 April 2010 the Chairman of the second tribunal issued a note setting out the second tribunal's reasons for inter alia allowing receipt of Mr Crawford's additional ground of appeal. That note was in the following terms:

"Background

1. The appellant is William Crawford. He appeared before a Misconduct Hearing chaired by Supt. Stan MacLeod of Fife Constabulary on various dates between 6^th and 16^th December 2004 to answer three allegations that on various dates and in various locations in Dunfermline his conduct had been such as to bring discredit on the police force or service by acting towards, or treating, any person in an oppressive or improper manner, all contrary to the Police Conduct (Scotland) Regulations 1996, ('the Regulations'), Schedule 1, paragraph 1(h). Having heard evidence the Chairman of the Misconduct Hearing found the third allegation proved. That allegation was that 'on 22 or 23 February 2001 at ........ Fife, you did lay on top of C J ..., whilst 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 and in doing so conducted yourself in an oppressive or improper manner." The other two allegations were not proved. The appellant appealed the Chairman's finding to the extent that he found the third allegation proved to the Respondent's predecessor in office in terms of Regulation 20 of the Regulations. By written determination dated 17^th August 2005 the Respondent's predecessor dismissed the appeal. Thereafter the Appellant appealed to the Police Appeals Tribunal, and after sundry procedure and a hearing the Tribunal issued its decision on 19^th March 2006, and, on the casting vote of the Chairman, allowed the appeal. The Respondent's predecessor sought judicial review of the Tribunal's decision, and on 1^st July 2008 Lord Uist issued his Opinion in terms of which he concluded that the Tribunal had erred in law. He reduced the decision of 19^th March 2006 and remitted the case back for a fresh hearing before a differently constituted tribunal.

2. The present Tribunal met on 22^nd September 2009 in accordance with Rule 7 of the Police Appeals Tribunals (Scotland) Rules 1996, ('the Rules') and, having had regard to the material before it, the Tribunal instructed the Registrar to write to the parties in the following terms:- 'In light of the fact that the parties written representations is respect of this appeal were presented in 2005, this Tribunal has decided that before making a decision on whether to hold a hearing [in terms of Rule 7(b)], it would wish to know if parties are content that the written representations remain as submitted in 2005 or whether adjustment to those representations is to be made by the parties.' The Registrar wrote in the such terms to parties on 23^rd September 2009, and, in response thereto, the Appellant's solicitor wrote to the Registrar on 5^th October 2009 indicating that 'I intend to proceed with the additional ground of appeal as undernoted and to lead evidence both from my client and his wife as well as referring to the productions which were not available at the last Police Appeals Tribunal.' The additional ground of appeal was in the following terms:- 'The Chairman of the Misconduct Hearing erred by failing to comment in his decision on the credibility and reliability of both William Crawford and Rona 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 eth assistance, if possible, of productions which had been lodged and referred to at the Misconduct Hearing but which were not available during the last Police Appeal Tribunal.'

3. By letter dated 7^th October 2009 the Respondent replied to the Registrar's letter of 23^rd September 2009. She observed that although written representations were made on behalf of the then Respondent in September 2005, these were in response to the original 12 grounds of appeal. Subsequently an amended notice of appeal was lodged with two grounds of appeal, viz., '1. The Chairman misdirected himself as to the standard of proof required before finding the allegation proven when he said simply that a 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.' The Respondent observed that there was no objection to this amended notice of appeal, but that the then Respondent was not in a position to formally respond as it was lodged so late. The Respondent went on to draw attention to the reasoning of the majority of the Police Appeal Tribunal at paragraph 55, and the conclusions reached by Lord Uist in his Opinion at paragraphs 61‑70 and 71‑74. The Respondent concluded as follows:- 'Accordingly the Chief Constable's submission in relation to the amended notice of appeal is that a correct standard of proof was applied by the Chair of the Misconduct Hearing and that the Chair, having been properly instructed as to the standard of proof was entitled to reach the decision which he did, a decision which was made on the basis of the evidence led before him and thereafter assessed by him, and a decision which should not be overturned.'

4. By further letter dated 2^nd November 2009 the Appellant's solicitor wrote to the Registrar, and having noted the content of the Respondent's letter of 7^th October 2009, observed that 'Of course, the Police Appeals Tribunal is entitled to consider the evidence of witnesses over and above the findings in fact and contents of the original Misconduct Hearing decision, and this is what we are inviting a fresh Tribunal to do.' The Registrar forwarded a copy of the Appellant's solicitor's letter of 5^th October 2009 to the Respondent on 29^th October 2009, and by letter dated 23^rd November 2009 the Respondent wrote to the Registrar in the course of which she stated the following:- 'I note that Mr. Crawford's solicitor has an additional ground of appeal. It is very similar to the original 6^th ground of appeal made on behalf of Mr. Crawford. However, when the appeal called before the Police Appeals Tribunal on 20^th February 2006, the grounds of appeal were amended and the appeal proceeded on that basis. I submit that having previously amended the grounds of appeal, Mr. Crawford should not be permitted to add an additional ground at this very late stage.'

5. The members of the Tribunal met again on 22^nd December 2009 in order to determine (a)whether to allow the Appellant to state the additional ground of appeal as contained in his solicitor's letter of 5^th October 2009, and (b) whether a hearing of the appeal should be held. The members of the Tribunal decided that they would permit the Appellant's additional ground of appeal to be received, and that a hearing of the appeal would be held. Thereafter the Registrar endeavoured to arrange dates for the hearing of the appeal and provisional arrangements were made for the week beginning 1^st February 2010. These dates proved to be unsuitable for one of the parties. Subsequently, 16^th April 2010 was identified as a suitable date for the hearing. On 4^th March 2010 the Respondent's solicitor wrote to the Registrar in the course of which he stated that 'I understand from you that members of the Tribunal have made a decision to hold a hearing and that a hearing date of 16^th April 2010 has been assigned. Please confirm whether the purpose of the hearing on 16^th April is to hear oral submission as to whether Mr. Crawford should be allowed to proceed with the proposed additional ground of appeal, or whether that matter has been decided and it is contemplated that some other form of procedure take place on 16^th April.' On 26^th March 2010 the Registrar wrote to the Respondent's solicitor and indicated that she could confirm that the members of the Tribunal had agreed to allow the additional ground of appeal to be received and that a hearing of the appeal would take place on 19^th and 20^th April 2010. On the same date the Registrar sent to parties' representatives formal intimation of the hearing of the appeal in terms of Rule 9 of the Rules. That formal intimation noted, inter alia, that the hearing would be conducted in terms of Rule 15 of the Rules, and that parties should lodge with the Registrar and copy to the other party, at least seven days prior to the hearing (i) copies of any policy documentation or other documents to which reference is intended to be made at the hearing and which have not already been lodged as productions, and (ii) a list of any witnesses intended to be called at the hearing.

6. The Respondent presented a Petition for Judicial Review of the decision of the Tribunal to allow the additional ground of appeal to be received as intimated to the Respondent on 26^th March 2010, and on 9^th April 2010 Lady Stacey, having heard Counsel for the Respondent, ordered the suspension of the decision to allow an additional ground of appeal ad interim, and interdicted the Tribunal from holding a hearing in the Respondent's [the Appellant's] appeal ad interim. The Appellant sought recall of the said interim orders, and on 16^th April 2010 the interim orders were recalled under reservation of the parties' whole rights and pleas as raised in the current Petition. Lord Kinclaven had noted in the Minute of Proceedings that the recall of the interim orders 'was allowed in order to enable the Tribunal to consider fully any questions arising under or in terms of [the Rules], in particular, Rule 15(5). The Tribunal is to be addressed fully by both parties and thereafter is to provide reasons for their (sic) decision. The Tribunal is then to take such decisions as necessary in relation to further procedure.'

7. The Tribunal duly met on 19^th April 2010, and, in accordance with guidance given by Lord Kinclaven and contained in the Minute of Proceedings, heard from Mr. Dewar QC on behalf of the Appellant and Mr. Wallace, Advocate, on behalf of the Respondent. Mr. Dewar indicated that although the Note in the Minute of Proceedings made reference to Rule 15(5), it was more likely that, in considering whether to allow the Appellant's additional ground of appeal, the Tribunal had regard to Rule 6(2) which provides that '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.' Both parties accepted that as the Tribunal had taken a decision to allow the additional ground of appeal it was not competent for the Tribunal to review that decision, but both parties invited the Tribunal to provide reasons for that decision. The Tribunal indicated that it would prepare a written Note of its reasons within seven days, and that thereafter there would be a further period of fourteen days in which (a) the Respondent could, if so advised, reply in writing to the additional ground of appeal, and (b) parties could intimate and lodge lists of productions and witnesses.

Reasons for the Tribunal's Decision to permit receipt of the Appellant's additional ground of appeal

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 therefor 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 obtained 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 to 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 issues 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 the 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 the 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 an 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."

Current petition for judicial review

[13] The petition for judicial review lodged by the Chief Constable proceeds on a number of grounds. It is averred that the Chief Constable had not been afforded any opportunity to make representations to the second tribunal in advance of its decision to allow Mr Crawford to add an additional ground of appeal. The Chief Constable founds on the fact that no reasons were given for the second tribunal's decision at the time of its intimation to the parties. Under reference to the terms of the Lord Uist's opinion it is submitted that the decision of the second tribunal has been unreasonable et seperatim unlawful. It is also averred that it would be procedurally unreasonable to allow Mr Crawford and his wife, Rona Crawford, to lead fresh evidence to establish their credibility and reliability before the second tribunal. In the event that they were allowed to give evidence, there would be a need to re‑hear the whole case and the evidence of all the witnesses, including the complainer. Even if all the witnesses could be located and brought before the tribunal again, the incident took place more than nine years ago and the value of evidence about such a historic incident would, in the circumstances, be questionable. It is also averred that the second tribunal ought to have taken into account that such a re‑hearing of evidence would have the result of requiring a person complaining of rape to give evidence on a second occasion. Further complaints are that the additional ground of appeal could have been pursued in the appeal proceedings back in 2006; and that the additional ground of appeal was similar to Ground of Appeal 6, which had been included in Mr Crawford's original notice of appeal lodged with tribunal in 2005, but was subsequently deleted and substituted with other grounds. It is averred that before determining whether to allow the additional ground of appeal to be received, the second tribunal ought to have considered whether it disclosed a point of any potential merit. The second tribunal had erred in law by failing to do so. Furthermore when considering that matter, the second tribunal, had it been instructing itself properly, should have taken into account Lord Uist's conclusions. It had failed to so, which had been a further error in law. The second tribunal had also erred in failing to consider whether there had been any error of law on the part of the Chairman of the Misconduct Hearing in his approach to the credibility and reliability of the witnesses he heard. When considering that particular issue the second tribunal had again failed to take into account Lord Uist's conclusions as to the actings of the Chairman of the Misconduct Hearing.

Lord Ordinary's opinion

[14] It is clear from the Lord Ordinary's opinion in the current petition for judicial review that he upheld the challenge to the second tribunal's decision on the basis that the decision was Wednesbury unreasonable. He noted that there was no suggestion during the submissions that the second tribunal did not have power to make the decision under challenge. He rejected submissions that the second tribunal failed to take into account the lateness of the lodging of the additional ground of appeal, and that the second tribunal failed to consider whether the Chief Constable would suffer any prejudice on account of the passage of time between the alleged event founded upon in the disciplinary proceedings and the date when Mr Crawford sought to amend his grounds of appeal. The Lord Ordinary could identify no error of law in the way that the second tribunal dealt with both those issues, and with a number of other issues that the Chief Constable sought to raise. However the Lord Ordinary found there to be substance in the final issue that counsel for the Chief Constable raised, namely that the second tribunal had erred in holding that there was an arguable point within the additional ground of appeal. The Lord Ordinary deals with this issue at paragraphs [77] - [86] of his opinion. He took the view that it was necessary to consider whether it was in the interests of justice that the additional ground of appeal should be allowed. That involved the Lord Ordinary considering the merits of the additional ground. That was because it could not be argued that it was in the interests of justice for the second tribunal to allow an additional ground of appeal if it was clear that the ground was without merit. At a procedural hearing, accordingly, the test for the second tribunal had been a low one; did the additional ground constitute an arguable ground of appeal?

[15] In considering whether the additional ground was arguable, the Lord Ordinary relied on the fact that it was predicated on the basis that the Chairman of the Misconduct Hearing had erred by failing to comment in his finding on the credibility and reliability of both William Crawford and Rona Crawford. As had been argued by counsel for the Chief Constable, that point had already been dealt with by Lord Uist and rejected by him (at paras [20] and [73] of his opinion). Thus the new ground of appeal was not arguable.

[16] The Lord Ordinary took the view that because the additional ground of appeal involved matters that had previously been rejected by Lord Uist and had been rejected by him, the additional ground was without merit. He concluded that no police appeals tribunal properly directing itself as to the law and applying its mind to the issues involved could 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. For the second tribunal to have done so constituted an error of law on its part. The Lord Ordinary accordingly reduced the decision of the second tribunal allowing the additional ground of appeal, which had been intimated to the parties on 21 April 2010.

Submissions

[17] Before this court, it was argued on behalf of Mr Crawford that the Lord Ordinary had erred in reaching the conclusion he did in respect of the additional ground of appeal. Lord Uist had not been dealing with the same issue as the second tribunal was being invited to address under reference to the additional ground of appeal. In para [73] of his opinion Lord Uist had dealt with the issue as to whether, according to the requirements set out in Thomas v Thomas 1947 SC (HL) 45, the first tribunal had been entitled on the basis of the transcript of the evidence at the Misconduct Hearing to interfere with the conclusion of that Hearing. He had not been invited to deal with an argument to the effect that the Chairman of the Misconduct Hearing had failed to assess properly the credibility and reliability of the Mr Crawford and his wife. No such argument had been advanced at the previous hearing before the first tribunal. Such an argument was open to the respondent. It could be based on what was said on pages 3, 7 and 8 of the Finding of the Misconduct Hearing dated 16 December 2004. In any event, the intention was to lead the evidence of Mr Crawford and his wife, which it was competent for the second tribunal to allow and competent for the second tribunal to accept and rely on (see Rules 6(2) and 15(3) of the 1996 Rules). The new ground of appeal was arguable. It had been well within the powers of the second tribunal to allow the additional ground of appeal.

[18] As far as the grounds of the cross appeal on behalf of the Chief Constable were concerned, senior counsel for Mr Crawford argued that the Lord Ordinary had been correct to reject the arguments advanced. All three grounds concerned matters in respect of which the second tribunal had to exercise the wide discretion that was available to it. It could not be concluded that when the second tribunal had considered the issues raised by the three grounds of cross appeal the second tribunal had unreasonably exercised its discretion or had erred in law in allowing the additional ground of appeal to be received.

[19] Senior counsel for the Chief Constable invited the court to refuse the reclaiming motion. She argued that the Lord Ordinary had been correct to hold that the second tribunal required to consider whether it was in the interests of justice for the additional ground to be received. He had also been correct to hold that it would not be in the interests of justice to allow an additional ground of appeal, because there was clearly no merit in that ground. No reasonable Police Appeals Tribunal would have done so. Senior counsel argued that Lord Uist had dealt in his opinion with the proposition that the Chairman of the Misconduct Hearing had erred by failing to comment in his decision on the credibility and reliability of the respondent and Rona Crawford and rejected it. The proposition in the additional ground that evidence should be led was predicated upon that earlier proposition. Where the second tribunal had gone wrong had been in ignoring that the adequacy of the comments of the Chairman of the Misconduct Hearing had already been litigated before Lord Uist. When considering whether to allow the additional ground of appeal, the second tribunal had been bound to take into account Lord Uist's conclusion in respect of that proposition. Lord Uist had provided clear guidance as to whether the Chairman of the Misconduct Hearing had erred. That had been a prior question that the second tribunal should have addressed, before deciding whether to allow the additional ground of appeal.

[20] It was also argued that the Lord Ordinary, for his part, had been entitled to consider the terms of the Misconduct Hearing's finding and the opinion of Lord Uist and to rely on Lord Uist's conclusions.

[21] As far as the grounds of cross appeal were concerned, senior counsel for the Chief Constable repeated the submissions that had been advanced before the Lord Ordinary. She argued that the Lord Ordinary had erred in rejecting the submissions (a) that the second tribunal ought to have taken into account that a similar ground of appeal had been initially advanced and then deleted by Mr Crawford by amendment, in 2006, (b) that the second tribunal ought to have taken into account the effect on the complainer of having to give evidence a second time; and (c) that there would be prejudice to the Chief Constable in having to prepare for dealing with further evidence by and on behalf of Mr Crawford, and possibly also for leading further evidence herself, in relation to events which were alleged to have taken place in February 2004.

Discussion

[22] In our opinion this reclaiming motion falls to be allowed. When the first judicial review proceedings were before Lord Uist, he quashed the decision of the first tribunal and remitted the disciplinary proceedings back to the Police Appeals Tribunal for a fresh hearing, before a differently constituted tribunal. In his opinion, Lord Uist did not elaborate on how he envisaged that the differently constituted tribunal would proceed. He certainly did not seek to place any restrictions as to the scope or outcome of the fresh hearing of Mr Crawford's appeal. Indeed it would not have been open to Lord Uist to do so. Accordingly the practical effect of Lord Uist's ruling decision was that the disciplinary proceedings involving Mr Crawford went back to the stage they had reached immediately prior to the hearing before the first tribunal. In other words, Mr Crawford's appeal under section 30 of the 1967 Act fell to be heard and decided of new by the second tribunal.

[23] As a consequence the starting point, as far as the Lord Ordinary in the present proceedings is concerned, ought to have been that the disciplinary proceedings were now before a differently constituted tribunal, which was entitled to allow the parties a re-hearing of the evidence led during the misconduct hearing and to hear any new evidence it allowed the parties to lead (see Rule 15 of the 1996 Rules). In our opinion, the second tribunal was not bound by anything the first tribunal had done or any view it had reached. Nor could the second tribunal be said to be bound by any opinion of Lord Uist as to the contents of the finding by the Chairman of the Misconduct Hearing. The second tribunal was obviously entitled, and indeed would be expected, to have regard to the history of events, since the disciplinary proceedings commenced. However it was for the second tribunal to undertake a fresh consideration of Mr Crawford's appeal. In our opinion that entitled the second tribunal to entertain any applications of the parties to adjust their statements of case in terms of Rule 6(2) of the 1996 Rules, lead evidence and seek to invoke the provisions of Rule 15(5) of the 1996 Rules.

[24] Rule 6(2) of the 1996 Rules allowed either party to seek to make adjustments to their statement of case. Mr Crawford's statement of case was the statement that he had been required to attach to the notice of appeal he sent to the Registrar of the Police Appeals Tribunal, when he exercised his right of appeal in terms of section 30 of the 1997 Act. That original statement required to set out fully on what grounds the appeal was being made (see Rule 4(3) of the 1996 Rules). Any adjustments to a party's statement of case, of the nature made by Mr Crawford in accordance with Rule 6(2), become part of the party's statement of case.

[25] Rule 15(5) provides:

" At the hearing of the appeal, the tribunal may, if it is satisfied that it is 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."

[26] In our opinion, the Lord Ordinary has erred in paragraphs 82 - 85 of his opinion in his analysis as to the consequences and effect of the views expressed by Lord Uist. It was not for Lord Uist to rule on any of the grounds of appeal that had been before the first tribunal, nor can any observations he made about the contents of the finding by the Chairman of the Misconduct Hearing bind the second tribunal. Lord Uist's role was to determine whether there were grounds for reducing the decision of the first tribunal. He held that there were. No doubt the contents of Lord Uist's opinion will be of interest to the members of the second tribunal and it would be open to the second tribunal following upon the fresh hearing it is undertaking to agree with Lord Uist's observations as to the contents of the Chairman of the Misconduct Hearing's finding. However the second tribunal are under no obligation to do so. As we have already noted the second tribunal's powers under the 1997 Act and the 1996 Rules are not restricted by the interlocutor that Lord Uist had granted or the terms of his opinion. In these circumstances we consider the Lord Ordinary erred in law in holding that the second tribunal had required to accept Lord Uist's opinion as to the opening sentence of the additional ground of appeal and having done so reached the conclusion that the additional ground of appeal was unstatable and, for that reason, should not be allowed.

[27] We do not consider the additional ground of appeal to be identical to the original ground of appeal 6. In our opinion, that is clear from a comparison of the two grounds of appeal. Ground 6 attacked the rationality of the Chairman of the Misconduct Hearing having chosen to accept the evidence of the complainer, without having stated explicitly that he had disbelieved and rejected the evidence of Mr Crawford and his wife. The additional ground of appeal, whilst it alleges that the Chairman of the Misconduct Hearing erred in failing to comment on the credibility and reliability of Mr Crawford and his wife, is designed to go much further than attacking the rationality of the Chairman of the Misconduct Hearing's finding. It seeks to lead evidence from Mr Crawford and his wife on which Mr Crawford intends to found in support of his appeal. The additional ground of appeal would entitle Mr Crawford, as a matter of law, to invite the second tribunal to consider the whole terms of the Chairman of the Misconduct Hearing's Finding in the light of the evidence led before the second tribunal.

[28] Such a ground was not before the first tribunal or before Lord Uist. The additional ground of appeal may begin with a sentence in identical terms to one of the grounds of appeal originally before the first tribunal, however depending on their assessment of the evidence Mr Crawford intends to lead it would be open to the second tribunal to reach a different conclusion to that of the Chairman of the Misconduct Committee as to whether the third charge of misconduct against Mr Crawford should be held to have been established. In other words the correct starting point for considering the additional ground of appeal is that it opens up a new issue that was not before the first tribunal during the hearing that took place. In our opinion the Lord Ordinary in the present case has failed to identify the full scope of the additional ground of appeal. He proceeded on the assumption that the second tribunal could confine the hearing to a consideration of a point of law relating to the terms of the additional ground of appeal and the finding of the Misconduct Hearing. In our opinion he erred in doing so. The additional ground of appeal admits the possibility of the second tribunal finding for Mr Crawford in the light of evidence it is to hear. In these circumstances, the decision of the Lord Ordinary cannot stand.

[29] As far as the three issues raised in the cross‑appeal on behalf of the petitioner are concerned, we are not persuaded that the Lord Ordinary erred in dealing with any of these issues. We have already discussed the difference between the original ground 6 and the additional ground of appeal. As the Lord Ordinary observed, the possibility of the complainer being called to give evidence was not placed before the second tribunal, by the Chief Constable, as a reason for opposing the allowance of the additional ground of appeal. Undoubtedly there has been delay in these proceedings. However, in our opinion responsibility for that delay cannot be placed at the feet of the appellant. The considerable history of these proceedings, which we have outlined earlier, illustrates how the delay came about. Mr Crawford was not blame for it. In these circumstances, the Lord Ordinary cannot be criticised for the manner in which he dealt with the issue of whether the Chief Constable would suffer prejudice in having to prepare for further evidence, including the possibility of leading further evidence, at the hearing before the second tribunal.