Squire v R (on the application of the Chief Constable of Thames Valley Police) and the Police Appeals Tribunal [2016] EWCA 1315

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An appeal brought against the decision of Mitting J. [2015] EWHC 3358 (Admin) who had allowed the First Respondent's application for judicial review of a decision made by the Police Appeals Tribunal ("PAT").  The PAT had allowed an appeal brought by DI Squire following his disciplinary dismissal.  Mitting J. had rejected the PAT's conclusions and only remitted the decision on sanction back to the PAT.  The First Respondent further brought a cross-appeal against Mitting J's decision in relation to the remission of sanction.

The Court of Appeal, on the whole, agreed with Mitting J's approach and findings.  Important points were reiterated in relation to how evidence is presented to a committee with a particular focus in this case on hearsay.

Facts

Background to the Disciplinary Tribunal Hearing

A complaint was made against Detective Inspector Squire ("the Appellant") by Ms Jaimie Evans, a fellow police officer. The complaint was made in May 2013 and stated that the Appellant had conducted himself towards her in an inappropriate and sexually motivated manner.  The complaint led to fitness to practise proceedings before a panel of the Police Disciplinary Tribunal ("the Tribunal"). 

The Tribunal heard the case in May 2014 and found the Appellant to have committed gross misconduct and dismissed him from the service.  The Tribunal based its findings upon a preference of Ms Evan's evidence over that of the Appellant.

Prior to making the findings of fact, the Tribunal had allowed the prosecution's application to put before it hearsay evidence of a detective (DC Payne) who had attested to having been told that the Appellant had acted in an inappropriate manner and/or made inappropriate comments to a number of female members of staff.  Those members of staff then went on to give oral evidence at the hearing which did not support the hearsay of DC Payne.

Appeal to the PAT

The Appellant appealed the Tribunal's decision on the basis that the original panel had exhibited bias, had wrongly refused to exclude hearsay in the statement of DC Payne, could not reasonably be satisfied that allegation 1 was proved (or amounted to gross misconduct) and finally the sanction was unreasonable. The appeal was successful.

The PAT concluded that the Tribunal's acceptance of Ms Evans' evidence was unreasonable and that it ought not to have admitted DC Payne's hearsay evidence. The PAT could not be satisfied that the Tribunal had put those matters out of its mind. There was thus an appearance of bias.  In relation to Ms Evan's evidence, it was said that wherever someone else was present Ms Evans was either not supported or was contradicted in the account she provided.

Judicial Review of PAT Decision

The Chief Constable of Thames Valley Police applied to judicially review the PAT's decision.  Mitting J considered the review and accepted that the evidence of DC Payne ought not to have been admitted until the other witnesses had given their evidence.  Nonetheless, he concluded the PAT was not entitled to find apparent bias in view of the terms of the Tribunal's decision:

"These were not conclusions the [PAT] was entitled to reach…..The panel was a professional or semi-professional panel.  It made it clear beyond doubt that it had put DC Payne's evidence, except that about the complaints made to her by Jaimie Evans, entirely out of account when assessing the strength of the case against DI Squire.  In the absence of evidence to show that it did not do so, its reasoning is to be accepted, as the Tribunal itself recognised…There was no such evidence, other, perhaps, than the [PAT]'s reasoning about the three incidents.  It is only if that reasoning must be accepted that the [PAT]'s conclusion on this issue might be capable of being sustained.  It cannot be."

Appeal

The Appellant's appeal was against the Judgment of Mitting J arguing that he ought to have remitted decisions on whether the Tribunal's findings on misconduct were unreasonable, and whether the misconduct should be considered 'gross' back to the PAT.

Judgment

Judgment was handed down by Lady Justice Rafferty.

The PAT had said:

"...the panel itself had admitted DC Payne's evidence in the knowledge that other witnesses' statements did not support her and in the almost certain expectation that the witnesses would not do so when they came to give evidence, as, indeed, was the case."

Rafferty LJ identifies that in their statements, the proposed witnesses were silent as to the matters as set out by DC Payne. As far as it goes, there was therefore force in the PAT's observations. For obvious tactical reasons those representing the Appellant were unlikely to cross-examine and risk introducing the material into evidence. However, the key issue in this appeal is that when the hearing had progressed, the Tribunal had explicitly disavowed reliance on DC Payne's hearsay evidence. Rafferty LJ found that Mitting J was correct to point out that the PAT could not go behind that disavowal absent of a clear evidential basis to show it was wrong.

In consideration of the appeal ground in relation to the decision as to whether or not misconduct was gross being remitted to the PAT, Rafferty LJ said that the Appellant's behaviour entitled the Tribunal to term the misconduct as gross. This was an officer of supervisory rank with direct responsibility for Ms Evans' pastoral care. As the primary facts had been found proved, Rafferty LJ struggled to follow on what basis the adjectival description could be described as inappropriate, she there concluded that there was no flaw in the conclusion of Mitting J on this point.

In relation to the cross-appeal, Mitting J had said:

"DI Squire appealed against the sanction of immediate dismissal. For obvious reasons, the appeal tribunal made no finding on that submission. It should now do so. Accordingly I remit the appeal to the same panel, if possible, for it to consider the appeal against sanction."

The submission of the First Respondent was that it was wrong for Mitting J to remit sanction, because there was nothing to remit. The inevitable sanction was dismissal.  Rafferty LJ was not persuaded. She found that while dismissal may well be a very likely, perhaps the most likely, outcome on the facts of the present case, it is not necessarily the inevitable outcome. In any event, the decision is for the PAT and (for obvious reasons) it has as yet made none in this regard.

Commentary

This appeal (and the decision of Mitting J prior) offers some guidance on witness case management when dealing with hearsay evidence. The relevant indication is as follows: "Whilst the order of witnesses was a case management decision for the panel, with which any appellate tribunal will be slow to interfere, it would have been prudent to adopt a different approach, hearing the quoted witnesses first. If they or any of them failed to come up to proof on what [the hearsay witness] was capable of saying they said, the clearer, simpler, and more logical route would have been not to admit the hearsay evidence at all."