Thames Valley Police, R (on the application of) v The Police Appeals Tribunal & Anor

MR JUSTICE MITTING: Michael Squire is a Detective Inspector serving with the ThamesValleyPolice. He has been in the police service for 28 years. Between March 2012 and April 2013 he was based at Bracknell Police Station. On 10 May 2013, a married Civilian Investigator, Mrs Jaimie Evans, complained to her superiors that DI Squire had harassed her sexually and bullied her. DS Smith was instructed to investigate. On 30 September 2013, she produced a report to the Chief Constable of ThamesValleyPolice under regulation 18 of the Police (Conduct) Regulations 2012 in which she indicated, as required by regulation 18(2)(c), that there was in her opinion a case to answer in respect of misconduct and gross misconduct. The Chief Constable determined under regulation 19 that there was a case to answer and referred the case to a misconduct hearing under regulation 19(5)(a). The hearing took place over eight days, between 28 April 2014 and 14 May 2014, before a panel chaired by Assistant Chief Constable Pryde.

There were two allegations. The first was as follows:

All of the allegations in the first compendious allegation relied on the unsupported evidence of Jaimie Evans.

On the first day of the hearing, counsel for Detective Inspector Squire objected to the calling of Detective Sergeant Payne as a witness in support of the allegations. Her evidence was that complaints had been made to her about the conduct of DI Squire by: (1), Jaimie Evans; (2), other female police officers, each of whom was to give evidence at the hearing. The panel ruled that her evidence should be admitted, as to (1), because it helped to explain Jaimie Evans's decision not to make earlier complaint about DI Squire's conduct, and as to (2), because as the witnesses said to have made the complaints to DS Payne were to be called, they could be cross-examined about what they had or had not said to her. In the event, none of them said that they had made the complaints to her of which she spoke.

The disciplinary panel dealt with her evidence in its findings delivered orally on 14 May 2013. Having reminded itself that it had ruled that her evidence was admissible despite it being hearsay, it went on to state:

The disciplinary panel found allegations (ii), (iii), (v) and (vi) of the first compendious allegation proved and (i), (iv), (vii) and (viii) not proved. The essential finding was set out in a short passage dealing with allegation (ii), the allegation that DI Squire had pushed himself against Jaimie Evans with their groins touching when giving her a hug at Crowthorne Police Station:

The panel also gave careful and detailed reasons for its findings on all eight individual allegations, and on the seven allegations concerning the installation of a CCTV camera comprised in allegation 2. It is only necessary to set out the reasons which it gave about the seventh allegation in allegation 1 for present purposes:

The panel also heard evidence about three other incidents which were not the subject of any allegation of misconduct. I take them from paragraphs 6.11 to 6.26 of the reasons of the Police Appeals Tribunal: (1), Detective Inspector Squire had told Jaimie Evans that he could unlock the women's shower with a penny and had a mirror to hold under the door; (2), Detective Inspector Squire had told Jaimie Evans to draw a van during an investigation into a burglary, in terms which she found disparaging; (3), at a farewell gathering for a female colleague, DI Squire mentioned putting a condom in her last collection on the occasion when she had previously moved to another job, as she was doing on this occasion. I refer to these incidents as "the three incidents". The panel made no reference to them in its reasons.

The panel found that the four allegations proved in allegation 1 amounted to gross misconduct, and imposed a sanction of immediate dismissal for them. A finding of misconduct was made in relation to allegation 2 about the CCTV camera. The sanction was management advice.

DI Squire appealed to the Police Appeals Tribunal, chaired by Dorian Lovell-Pank QC. After a two day hearing, on 10 and 11 February 2015, the Tribunal allowed the appeal on allegation 1 but dismissed it on allegation 2. It quashed the finding of gross misconduct, and so necessarily the sanction of immediate dismissal, leaving only the sanction of management advice to stand.

Its reasons were set out in an 82 page document dated 10 April 2015. They were essentially as follows: (1), it was unfair and unreasonable to admit hearsay evidence of DC Payne at all, or at least before the evidence of the witnesses said to have complained to her; (2), in consequence the panel allowed itself unconsciously to be influenced, or perhaps to be perceived to have been influenced, by the evidence of DC Payne, and so to have reached a biased conclusion; (3), it was unreasonable of the panel not to have made findings about the three incidents. If it had done so, it would have concluded that Jaimie Evans's account of them was unreliable, and if it had done so, it could and should have questioned its conclusion that her core account was true and reliable.

The Chief Constable challenges the Tribunal's conclusion and reasoning in these judicial review proceedings. The legal framework is straightforward. The evidence given at a misconduct hearing is governed by regulations 23(3) and 33(1) and (8) of the Police (Conduct) Regulations 2012, which provide:

As far as the proceedings before the Tribunal are concerned, the grounds upon which an appeal to the Tribunal may lie are set out in regulation 4(4) of the Police Appeals Tribunals Rules 2012:

Regulation 22 permits the Tribunal to remit a decision to a disciplinary panel when it allows an appeal on one of the grounds identified in regulation 4(4)(c). Section 85(2) of the Police Act 1996 empowers the Tribunal on the determination of an appeal to "make an order dealing with the appellant in any way in which he could have been dealt with by the person who made the decision appealed against."

Dealing first with the admission of the evidence of DC Payne, it is apparent from the two regulations which I have cited that the disciplinary panel enjoyed a wide discretion on the admission of evidence, which does not exclude hearsay. Mr Westgate QC for the interested party, DI Squire, accepts as much. The Tribunal found for a variety of reasons that it was unfair to admit this hearsay evidence of what other persons had told DC Payne about DI Squire's conduct, or at least that it was unfair to do so before they themselves gave evidence.

Mr Lock QC for the Chief Constable suggests that DC Payne may have been called before the other witnesses because Jaimie Evans had first complained to her, and it was sensible to call her immediately afterwards to deal with that aspect of the case. The Tribunal held that calling the evidence in that way put counsel for DI Squire in an unfair position, in effect compelling her to cross-examine witnesses about complaints which they did not say they had made, when otherwise there would have been no evidence about the alleged complaints at all.

I see force in the Tribunal's view. It would, in hindsight, have been better if DC Payne's evidence about the complaints, if it was to be given at all, had been given after the evidence of the alleged complainants. In fact, as they made no complaint, it almost certainly would have been excluded under the wide powers available to the person chairing the panel on the simple ground that it was not necessary for her to give any evidence about it.

Indeed, the only circumstance in which it can be envisaged that such evidence might be called in those circumstances is if there was a plausible basis for suggesting that the alleged complainants had either forgotten their complaints or were deliberately withholding evidence about them for an ulterior purpose. There was no suggestion of anything to that effect in this case, and I for my part agree with the Tribunal's view that it would be better if the evidence of DC Payne had been dealt with in the manner stated.

The Tribunal's findings on this issue were, however, rather more drastic than the views which I have just expressed. They are set out in paragraph 6.8 and 6.39 to 6.40 of the document setting out its reasons:

These were not conclusions which the Tribunal was entitled to reach about the findings of the panel. 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 at paragraph 6.8. There was no such evidence, other, perhaps, than the Tribunal's reasoning about the three incidents. It is only if that reasoning must be accepted that the Tribunal's conclusion on this issue might be capable of being sustained. It cannot be.

The first incident, the comment about the female showers, was said by DI Squire to have been the result of Jaimie Evans's misunderstanding of a comment made by him to DI Nick Evans about the specification of lavatories at the police station. DI Elphick gave evidence that he had spoken to DI Evans, who had no recollection of DI Squire saying what Jaimie Evans attributed to him, and felt that even after the passage of time any such comment would have stuck. This was a slender basis for concluding anything other than that recollections about a passing, if on one view striking, comment made some time ago might differ.

The second incident concerned an instruction which Jaimie Evans said was given to her to draw a van during an investigation into a burglary. Four and a half pages were devoted to this issue in the reasons of the Tribunal, pages 59 to 63. I have read and reread them. They amount to no more than a difference of recollection between three people, DI Squire, Jaimie Evans and PC Boyd, about precisely what DI Squire had requested of Jaimie Evans. Again it demonstrates no more than a difference of recollection of no great moment about a trivial incident between three people.

Evidence about the third incident was given by DI Squire, Jaimie Evans, and the departing colleague, Gina Watson, who said she could not recall anything said about the condom. The same comment applies to this incident.

None of the three incidents, even taken with the unproven allegation (vii), of which I have read the panel's findings in full, could reasonably lead the Tribunal to have concluded that the core evidence of Jaimie Evans was undermined, let alone so undermined that the panel was bound either to disbelieve it or to treat it as unreliable. The Tribunal's ultimate conclusions about both issues, taken together, are set out in paragraphs 6.42 to 6.46 of its reasons:

Thus the Tribunal appears to have come back to its finding of bias in relation to the evidence of DC Payne to justify its unstated conclusion that the panel was unreasonable to find that Jaimie Evans was truthful and reliable in her core account.

I am sorry to have to say that the reasoning of the Tribunal was flimsy and illogical. Its conclusion is unsustainable and cannot stand. Its reasoning and conclusions do not begin to undermine the clearly stated and well reasoned conclusion of the panel that in her core account about the most serious of the allegations Jaimie Evans told the truth. On that basis, there was no room for the finding that the proceedings before the panel were unfair, or that their approach to their task or their conclusion were unreasonable.

For those reasons, this challenge to the findings of the Tribunal is upheld. Its decision allowing the appeal against the panel's finding on the first allegation must be quashed. I decline the submission of Mr Westgate that it should be remitted to another Tribunal to start again. On no view could the findings of this panel reasonably be upset on statutory grounds by an appeal tribunal.

I have considered whether or not to remit the case to the appeal tribunal for the challenge to the panel's conclusion that the conduct which I have described amounted to gross misconduct should be determined. Mr Lock submits that it is so obvious that on the findings of the disciplinary panel DI Squire's conduct amounted to gross misconduct that it would be perverse to find otherwise. I agree with his submission and therefore decline to remit that issue to the Tribunal.

There remains, however, the question of sanction. 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.

MR LOCK: My Lord, in those circumstances, I would propose to draw an order up, agree it with my learned friends and submit it to your Lordship for your consideration along the lines of the relief that your Lordship's given.

MR JUSTICE MITTING: Yes. Can you do that so that it arrives on my desk by Friday? Because the end of the legal term approaches and you may find it difficult to get it to me if I don't have it by then.

MR LOCK: My Lord, I plan to be on a plane on Friday morning, so it will certainly be before your Lordship well before then.

MR JUSTICE MITTING: Yes.

MR LOCK: My Lord, I also ask for a term in that order that we have our costs against the interested party. We obviously don't seek our costs against the Tribunal.

MR JUSTICE MITTING: No, of course not.

MR LOCK: But this matter has been properly contested on both sides and we have been successful.

MR JUSTICE MITTING: Yes. Mr Westgate, you're supported by the Police --

MR WESTGATE: Yes, my Lord, first of all may I raise a matter about the gross misconduct point.

MR JUSTICE MITTING: Yes.

MR WESTGATE: When we broke just before lunch I think you were sending us away to see how this had been approached in the documents, and perhaps I misunderstood, but I had understood that we were going to have some further discussion about that.

MR JUSTICE MITTING: Oh, I see. I'm sorry, if I've preempted that I apologise.

MR WESTGATE: The point I draw your Lordship's attention to --

MR JUSTICE MITTING: Forgive me, I don't resile from the view I expressed, but if you can persuade me that notwithstanding that there is something I should do about that, I will gladly do so.

MR WESTGATE: I will do it as briefly as I can. Page 214 to 215 of the bundle. The point was a live one on the appeal. One sees the way it's put, paragraph 61, that it was, "an opportunistic momentary lack of judgment," is the way it was put. "Plainly it was not suggested this is deliberate sexual touching since that would have been alleged," and that's clearly the case. "It follows that to conclude this was gross misconduct was outside the broad band of decisions ..." I don't need to go to the rest of that.

If one goes to what the decision was, it's page 251 on this point.

MR JUSTICE MITTING: 2 ...?

MR WESTGATE: 251, which is the decision of the panel. You'll recall that the allegation against him was that he had insisted on a hug, in effect.

MR JUSTICE MITTING: Yes.

MR WESTGATE: Then Mrs Evans said, "Well all right then" to get rid of them, and then he made it inappropriately close and grunted. Of that, there was no suggestion that -- no finding as to who suggested the hug, one gets that halfway down, and the height of this is:

And then:

So it's a matter that lasted for a matter of seconds, no premeditation and so on. In those circumstances I accept, as your Lordship put it, that it might be said that it's something of a stretch, I think your Lordship put it before lunch, but at the same time it simply can't be said that it's outside the bounds of possibility that the gross misconduct finding could be overturned.

MR JUSTICE MITTING: Well, given the test is was the finding reasonable, not whether it was right, or whether it was excessively severe or anything of that kind, I simply don't see how an appeal could conceivably be allowed against that finding. Unlike sanction, where the arguments that you advance I think can properly be advanced, and I am not willing to express any view beyond that about them.

MR WESTGATE: I won't take the point any further.

My Lord, so far as costs are concerned, I can't in principle object to an order for costs, and it should be subject to detailed assessment, if not agreed.

MR JUSTICE MITTING: Yes, this is a Police Federation backed case, I believe?

MR WESTGATE: Yes, it is.

My Lord, there's one further matter, which is permission to appeal. I raise it on this point only: it deals with the hearsay --

MR JUSTICE MITTING: Forgive me, can I interrupt a moment, because would it not be a second appeal? I am hearing an appeal from a statutory appeal tribunal.

MR WESTGATE: No, my Lord, this is a judicial review --

MR JUSTICE MITTING: I'm so sorry, you're quite right, it's a mistake into which I have fallen on previous occasions in relation to other --

MR WESTGATE: It's more or less accidental as to whether or not it comes by way of appeal or judicial review.

MR JUSTICE MITTING: It used to arise in planning cases.

MR WESTGATE: Yes.

MR JUSTICE MITTING: Where in various different types of planning decisions some were second appeals and some weren't. Forget what I said.

MR WESTGATE: Exactly, there doesn't seem to be much rhyme or reason as to which it is, but this one is a judicial review.

MR JUSTICE MITTING: You're quite right.

MR WESTGATE: The basis upon which I seek permission to appeal is one that raises a point of principle and a point of practice, which is this: that the effect of your Lordship's judgment is that there may be unfairness in admitting evidence, but that provided the panel at the end of the day can say, "We didn't take it into account" then that in effect renders that unfairness immune from challenge because it renders the unfairness argument academic. That creates a real practical difficulty for decisions of this kind and the process of panel decisions of this kind, because in effect it provides an incentive to the appropriate authority to put as much in as they can, in effect, as long as the panel is then encouraged to say, "We disregard it" if they decide not to -- at the end of the day if they feel there are some other reasons why they can reach a decision adverse to the officer.

So it creates that practical difficulty, which we suggest the solution may be rule 4(4)(c), which is that this is a finding of unfairness which is capable of affecting the outcome, and whether it's capable of affecting the outcome has to be judged not by asking whether the panel at the end of the day says, "We did or didn't take it into account," but asking whether as a matter of principle it would be capable of affecting the outcome. If so, that then opens the door, as it were, to the discretion under 85(2), which provides a range of options, either to dismiss the appeal, remit it or to quash.

So in those circumstances we seek permission to appeal really on the basis that the PAT's decision ought to be upheld on the basis that it was entitled to find that there was a procedural unfairness in the admission of the hearsay evidence, whether or not the panel ended up saying that they relied on it or not.

MR JUSTICE MITTING: I am afraid on the facts of this case, although I can see circumstances in which your submission might bite, it doesn't here, and I refuse your application.

MR WESTGATE: Thank you.

MR JUSTICE MITTING: There will be judgment for the claimant in terms to be drawn up by you, Mr Lock, and agreed with Mr Westgate, with your costs to be the subject of detailed assessment if not agreed.

MR LOCK: My Lord, we're very grateful.

MR JUSTICE MITTING: Thank you both for dealing with a factually quite complex case in a manner that was very much more efficient than the preparation of the bundles.