Parsing judgment: judicially reviewing decisions of the Police Appeals Tribunal

In an admirably in-depth judgment, the Court in R (Stephen Dalton) has considered on what bases decisions of the Police Appeals Tribunal (‘PAT’) may be properly subject to judicial review. The decision reiterates the ambit of the PAT’s discretion and is likely to affect how such proceedings are conducted going forward.

The misconduct proceedings

The relevant misconduct occurred when the claimant police officer, along with his colleagues, responded to a report that three youths were attempting to break into a bike shed. The claimant arrested and handcuffed one of the individuals, Richard Smith, walked him to the rear of a nearby police car, and forced his head downwards onto the vehicle. This caused Mr Smith to suffer lacerations to the face and possibly a fractured jaw.

Mr Smith complained that the claimant’s actions breached the Standards of Professional Conduct as set out in the Police (Conduct) Regulations 2012 (in effect at the time). A Police Misconduct Panel (‘the Panel’) considered an array of evidence and concluded that the claimant was solely responsible for the use of excessive force and the lack of respect and courtesy shown to Mr Smith, and that his conduct was intentional and deliberate. The Panel dismissed the claimant without notice.

The claimant appealed to the PAT. The Chair of the PAT (‘the Chair’) conducted a review of the appeal under Rule 11 of the PAT Rules 2012 and dismissed it on the basis that it had no realistic prospect of success. The claimant applied for permission to judicially review the PAT’s decision.

The Court’s decision

Mrs Justice Lang, refusing the claimant’s application for judicial review, closely analysed the reasoning of both the Panel and the PAT. The main grounds of review and the reasoning of the Court are summarised below.

(i) Irrationality

The claimant alleged that the Chair acted irrationally in concluding that the evidence of two of the claimant’s colleagues, both of whom were on the scene when Mr Smith was arrested, was “not hugely significant.” Mrs Justice Lang held that this ground was “unarguable” and had no realistic prospect of success. The Panel had based their conclusions on high-quality Body Worn Video which contradicted or undermined key parts of the claimant’s evidence, rendering it unreliable. It was entirely rational for the Chair to reach the decision he did. In the alternative, Mrs Justice Lang considered that permission should be refused under section 31 Senior Courts Act 1981.

(ii) Failure to properly analyse the issue of apparent bias

The claimant submitted that the PAT had failed to properly engage with his contention that one of the Panel Members had acted in a manner that gave rise to an appearance of apparent bias. Mrs Justice Lang concluded that this ground was also unarguable and had no realistic prospect of success. The Panel was entitled to ask searching questions, and none of the language used was unfair or biased. The Panel Member was neither a trained lawyer or judge and was therefore entitled to some latitude in the phrasing of her questions. The Chair had applied the correct legal test and assessed the questions in their proper context.

(iii) Failure to give adequate reasons

The claimant alleged that the Panel had erred by (i) making findings in respect of witness credibility before resolving certain inconsistencies in the evidence presented to them, and (ii) failing to properly refer to the good character evidence presented to them. In turn, the PAT had failed to give adequate reasons for rejecting that ground of appeal.

Mrs Justice Lang rejected both of the claimant’s submissions. On the first issue, she concluded that it sought to “re-open the evidential issues under the guise of a failure by the PAT Chair to give adequate reasons.” After reiterating that judicial review is not an appeal on the merits, she held that the claimant’s argument turned entirely on how the Panel had drafted its judgment. This was a matter squarely within its discretion. In any event, it was clear that the Panel had considered all the evidence, decided which it accepted and which it rejected, and made its findings of fact. On the second issue, she concluded that the Panel was not required to refer to the character direction in their decision – they were merely required to take it into account. In the alternative, were she wrong on either ground, Mrs Justice Lang considered that permission should be refused under section 31 Senior Courts Act 1981.

Commentary

Mrs Justice Lang’s judgment reiterates a number of important principles of law that must be borne in mind by both tribunals and reviewing courts alike. First, although it is crucial to maintain the highest standards of procedural fairness, misconduct panels have some discretion over how misconduct proceedings are conducted, and their independent members are not to be treated in the same manner as professional lawyers or judges. Appeals brought on the basis that the tribunal did not operate as a court might be expected to in criminal proceedings are unlikely to be successful (see Simon Brown LJ’s comments on the purpose of misconduct proceedings in Redgrave). Second, reviewing courts should be careful not to venture into unsuitable terrain and make a decision on the merits of the case, however the claimant’s application may be formulated. Perhaps such reminders will serve to reduce the number of ‘unarguable’ cases that come before the courts in future.

Matthew Holdcroft represented the Chief Constable of Hertfordshire Constabulary as the Interested Party, who acted as the Appropriate Authority at the misconduct proceedings. The Court upheld his submissions on all grounds.