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B e f o r e:
HIS HONOUR JUDGE MARK RAESIDE QC
(Sitting as a Judge of the High Court)
Between:
MARK ANASTASI
Claimant
v
POLICE APPEAL TRIBUNAL (1)
Defendant
CHIEF CONSTABLE OF NORTHUMBRIA POLICE (2)
POLICE COMMISSIONER FOR NORTHUMBRIA (3)
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Mr James Hill QC appeared on behalf of the Claimant
Mr Toby Hedworth QC appeared on behalf of the Second Defendant
J U D G M E N T
HIS HONOUR JUDGE RAESIDE: This is an extempore oral judgment which will be in eight parts. I Introduction; II Application and Procedure; III Regulatory Framework; IV Facts; V Panel Decision (2514), Appeal Decision (26215); VI Law; VII Conclusions and VIII Order.
I: Introduction
This is a judicial review claim brought by Mark Anastasi against more than one defendant but so far as this appeal is concerned just the second defendant has attended although I am informed that the other defendants take a similar view, and concerns the procedure under police regulations, both before a Panel and an Appeal in which he considers he did not get a fair trial, essentially as a result of not achieving an adjournment of the hearing based on unchallenged medical evidence.
This case concerns points of law and possibly, as the skeleton arguments indicate, the correct approach to take to such matters as a matter of principle.
II: Application and Procedure
On 10th April 2015 a judicial review claim form was entered through leading counsel, Mr James Hill, on behalf of his client, Mark Anastasi, against the first defendant the Police Appeal Tribunal and the second defendant, the Chief Constable of Northumbria Police.
The particular decisions which were the subject of judicial review are:
(i) The decision of the Police Appeal Tribunal (Appeal Decision 26215 dated 26th February 2015).
(ii) The decision of this Misconduct Panel (Panel Decision 2514 dated 20th May 2014)
What was sought, was relief based on five different grounds on which I focus on the first three:
(i) a quashing of the Appeal Decision dated 26th February 2015
(ii) a quashing of the Misconduct Panel Decision dated 20th May 2014, (in respect of allegations 1, 2 and 4).
(iii) a direction the case is remitted to be considered by a new Misconduct Panel.
The grounds of appeal were those attached to the notice and are settled by Mr James Hill QC, dated 8th April 2015, and as he is also counsel who provided the skeleton argument and appeared before me today, it may be it is not surprising that there is a certain contiguity of approach.
Acknowledgement of service took place, so far as the court records are concerned, on 5th May 2015. Attached was the second defendant's summary grounds which is a long and detailed document. Whilst it is not signed by counsel, having compared it to the skeleton argument there is again a clear and obvious continuity in the second defendant's case.
The matter came initially before Lewis J who made an order on 14th May 2015 as follows:
"1. Permission to appeal for judicial review is granted.
Observations.
The grounds of claim are arguable. The claimant should bear in mind that that simply means the competing arguments for the claimant and the defendant should be considered at the hearing, the court will then reach decision on whether or not the claim succeeds. The fact that permission has been granted does not indicate the claim will or will not succeed."
Certain case management directions were given which so far as this court is concerned have been met.
The skeleton argument, as I have indicated, settled by James Hill QC, is very much in terms of the grounds of appeal. The document in broad terms and in summary says this:
"(i) The decision of the original Panel to proceed to a full hearing in the absence of the claimant is sanctioned by the Police Appeal Tribunal was irrational, unreasonable and lacked proportionality. Citation was made from the decision in Brabazon-Drenning v UK Central Council for Nursing, Midwifery and Health Visiting [2001] HRLR 6."
Reference was then made to a consultant psychiatrist's report of Dr Tacchi of 20 years' experience, which was unchallenged. Reference was made to Panel's approach and the 24 hour period given for the continued hearing.
The skeleton argument on behalf of the second defendants is settled by Mr Toby Hedworth QC and dated 1st November 2015. He was the counsel, as will be clear, who attended before the Panel and made submissions before the Tribunal to which I shall come to and therefore it is may be not surprising that this document largely represents and follows that of the response of the second defendant.
The documents gives an indication of the factual background which in broad terms I shall rely upon. With two exceptions the facts in this case are generally accepted. It sets out a detailed analysis of the case law, in particular the decision of R v Hayward [2001] EWCA Crim 168, and other authorities to which I shall come to, which again in broad terms, has been accepted by the claimant as the correct test in addition to the authority I have cited on behalf of the claimant.
The Second Defendant's case was summarised in this way:
(i) It was for the Panel conducting the misconduct hearing to determine the procedure that was adopted. The Panel had a wide discretion as to how to progress the hearing. The Panel adhered to and acted in accordance with the Police (Conduct) Regulation 2012 and Home Office guidance.
(ii) the second defendant provided clear reasons and explanations at each stage as it did on the appeal procedure. (iii) the claimant had by the time of the second misconduct hearing had months to provide his regulation 22 response. It was apparent from submissions made in the hearing that the claimant had attended at least one conference with his legal team and the claimant had also provided a prepared account that he attended for interview which was available and to be considered by the Panel.
(iv) it is the judgment of the Panel made clear and it understood the balance to be the struck between the needs of officer and the subject of proceedings, the complaints, the organisations and its employees. The Panel considered the case law put forward by the claimant and applied the test of exceptional circumstances and made clear findings on the point. It also found the length and request for adjournment too long. Dr Tacchi described Chief Inspector Anastasi as suffering from a "moderate depressive episode and in need of some treatment and support" and given time and adequate explanation would be fit for full instructions and it then refers to other matters in law.
III: Regulatory Framework
The relevant regulatory framework for the Panel decision is a Statutory Instrument 2012 No 2632. The Police (Conduct) Regulations 2012 came into force on 2nd November 2012.
So far as the background approach leading up to this hearing the procedures require a written notices to be provided under Regulation 15 and representations are made to the investigator.
So far as misconduct proceedings, which this matter is solely concerned with, the matter starts with referral, misconduct proceedings under 19 and then of more importance on the facts of this case as I shall come, is under regulation 21 "Notice of referral to misconduct proceedings" and Panel membership is given and under 22 there is procedure on receipt of such notice as to what has to be done.
Of more significance and where the focus of this case really lies is in fact under rule 24 which provides:
"Timing and notice of misconduct proceedings
24.-(1) Subject to paragraphs (2) and (6), the misconduct proceedings shall take place-
(a) in the case of a misconduct meeting, before the end of 20 working days; or
(b) in the case of a misconduct hearing, before the end of 30 working days
beginning with the first working day after the documents have been supplied to the officer concerned under regulation 21(1).
And equally importantly rule 24(2) provides:
"(2) The person conducting or chairing the misconduct proceedings may extend the period specified in paragraph (1) where he considers that it would be in the interests of justice to do so ....
(3) Where the person conducting or chairing the misconduct proceedings decides to extend the period under paragraph (2), or decides not to do so following representations from the officer concerned or the appropriate authority, he shall provide written notification of his reasons for that decision to the appropriate authority and the officer concerned..."
So far as the Home Office Guidance is concerned the relevant version shown to me is Version 3 revised in July 2014 published by the Home Office. The material background has shown to me the time for holding meetings and hearings is under paragraph 2.168:
"2.168 A misconduct meeting shall take place not later than 20 working days beginning with the first working day after the date on which the documents and material for the meeting have been supplied to the police officer under Regulation 21 of the Conduct Regulations. Misconduct hearings shall take place not later than 30 working days beginning with the first working day after the date the documents for the hearing have been supplied to the police officer concerned. Documents for the meeting/hearing should be served on the officer as soon as possible after the decision has been taken to refer the matter to misconduct proceedings.
2.169 The time limit for holding a misconduct meeting or a misconduct hearing can be extended if in the interests of justice the person conducting or chairing the misconduct proceedings considers it appropriate to extend beyond that period. Any decision to extend or not to extend the time limit for a meeting/hearing and the reasons for it will be documented by that person and communicated to the appropriate authority and the police officer concerned.
2.170 In order to maintain confidence in the misconduct procedures it is important that the misconduct meetings/hearings are held as soon as practicable and extensions to the timescales should be an exception rather than the rule. To that end, managers appointed to conduct or chair misconduct meetings/hearings are to ensure that a robust stance is taken in managing the process whilst ensuring the fairness of the proceedings. Extensions may be appropriate for example if the case is particularly complex. It will not normally be considered appropriate to extend the timescale on the grounds that the police officer concerned wishes to be represented by a particular lawyer."
It was rightly conceded by counsel for the second defendants that one sees nothing in this guidance as to what happens in a case of medical evidence as to the ability of an individual police officer to attend the hearing. However, under 2.171 the purpose of the misconduct hearing is described as follows:
"2.171 The purpose of a formal misconduct meeting/hearing is to:
• Give the police officer a fair opportunity to make his or her case having considered the investigation report including supporting documents and to put forward any factors the police officer wishes to be considered in mitigation (...)
• Decide if the conduct of the police officer fell below the standards set out in the Standards of Professional Behaviour ...
• Consider what the outcome should be if misconduct is proven or admitted..."
So far as the appeal decision is concerned that is a Statutory Instrument 2012 No 2630, the Police Appeals Tribunal Rules 2012. The part I have focused for present purposes is in fact paragraph 22.5:
"Statement of Tribunal Determination ...
(5) the chair shall prepare a written statement of the Tribunal's determination of the appeal and the reasons for the decision."
IV: Facts
Taking as I said I would the background facts largely from the second defendants and I will note when there are dispute of fact background is this. The claimant is 47 years and joined the Northumbria Police Force on 9th July 1990 and has had 20 years of service. On 1st July 2013 there were allegations and investigation instigated within the regulations to which I have referred. There was a service of a regulation 15 notice and the claimant attended for a formal misconduct interview under caution on 2nd August 2013 and provided a prepared document in respect of that procedure. Thus far the proceedings went entirely in accordance with those conduct matters to which I have not had need to quote from specifically.
It is said that on 14th October a second interview was organised. However, the claimant did not attend, apparently through sickness, and it is said no evidence was provided thereafter.
That matter is disputed. It is the case of the claimants that in fact from October they did provide details of their general practitioners.
There was a request made by the Professional Standards Department for an assessment of the claimant's fitness to be interviewed and that was to be carried out by the Operation Health Unit. On 7th November 2013 the claimant attended an appointment with Dr Nachapan, who requested site of a report. A further appointed was made with the same doctor on 18th December 2013 and the claimant refused consent to have the report disclosed to the Professional Standards Department.
There is a dispute as to that. It is the claimant's case that this particular doctor no longer works for the police department as a result of conduct complaints.
Following the investigation a regulation 21 notice was served. That was served on 6th March 2014 and the allegations of breach are set out in Nos 1 to 4, to which reference for the purposes of this hearing in broad terms is probably unnecessary. It was however an allegation of gross misconduct. That has the usual penalties attached which could that have been found at this hearing.
As a matter of record there was no regulation 22 response as required by the rules to which I have referred. Counsel acting for the claimant, made, amongst others, two applications: an extension of time under regulation 22 and so far as this case, an application to adjourn the proceedings until those representing the officer had obtained a psychiatric report.
That report in due course was made available by Dr Mary Jane Tacchi a consultant psychiatrist. So far as material to that document the summary of the conclusions is in paragraph 1.3.1:
"This report will show that in my professional opinion Mr Anastasi faces formal disciplinary proceedings. As a result of these proceedings Mr Anastasi has developed a Moderate Depressive Episode. I have suggested treatment to effect recovery to allow him to be able to take a full part in the proceedings."
I have read the report carefully and will not quote from all parts of it. What is clear is that there are details of the family history and a personal history together with the pre-morbid personality and habits. The mental state examination at 4.10.1 says this:
"Mr Anastasi was casually depressed and slightly unkempt with long hair and a beard. He was pleasant and co-operative throughout the interview with reasonable eye contact. He showed evidence of emotional avoidance. He became weepy at times but hid this. His speech was normal. In content however, he was anxious and gave a rambling account of events with little structure which at times was difficult to understand. His mood was low but weepy at times although he hid this well. There was no evidence of psychosis, in particular no auditory hallucinations or precursory phenomena. He does have overvalued ideas about him being cause of his family problems but these are not held with delusionary intensity. Cognitively he was fully orientated in time, place and person. His short term memory was intact and his concentration reasonable."
In response to what I might call usual questions asked by an expert or an individual writing this sort of report the questions are these.
"5.1.6: Issue 1: is Mr Anastasi fit to give us full instructions?
Response: In my opinion given time and adequate explanations Mr Anastasi is fit to give instructions.
5.1.8: Issue 2: is Mr Anastasi capable of playing a full part in proceedings?
5.1.9: Response: As a result of his psychiatric condition it is my opinion that Mr Anastasi would understand the proceedings but may be unable to play a full part as a result of extreme distress and the inability to think or concentrate when considering the effects of allegations upon those around them. In my opinion, under strong cross-examination he will become distressed and unable to continue. He may become unduly compliant and not be able to represent himself fairly as his psychiatric condition is likely to affect his decision making.
5.1.10: Issue 3: in particular is Mr Anastasi capable of giving evidence and undergoing his cross-examination?
Response: 5.1.11: as above.
Issue 4: In the event Mr Anastasi is either unable to give instructions or unable to play a full part in the proceedings or unable to give evidence, may we please your prognosis as to what remedy any or all of these difficulties and the period of time involved in such remedy?
5.1.13: Response: Mr Anastasi requires treatment in order to effect recovery from the psychiatric condition. The treatment of choice would be a combination of anti-depressant medication and cognitive behavioural therapy. I understand that he has not been prescribed medication but I would urge his general practitioner to consider to provide him with a selective serotonin re-uptake inhibitor. I understand that he is about to receive cognitive behavioural therapy. I am unaware of who this is from or the content of this but it is the treatment of choice for his condition.
However, I understand he will require 3 to 6 months of treatment in order to effect improvement. The ongoing nature of involvement in the case is unlikely to have an effect on his psychiatric condition. It is in my opinion that unless this case is resolved he is unlikely to fully recover. However, with treatment he may be fit to play a full part in the proceedings. I would suggest review after such treatment has been implemented and he has received 12 sessions of cognitive behaviour the modicum period of 4 months."
That report contains a declaration in the usual way:
"I confirm that I have made clear what the facts and matters referred to in this report read within my own knowledge and which are not. Those which are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinion on the matters which are referred."
That is signed and dated 22nd April 2014. The history and qualifications of this expert are set out and from any point of view they are plainly appropriate to give this opinion evidence.
As a result of receiving that report a letter was sent to Dr Tacchi on 15th May by solicitors acting for the claimant. I quote from it:
"I shall be grateful if you can confirm and provide me with a written response to the questions set out by no later 4.00 pm on Friday 16th May.
(i) Bearing in mind that Chief Inspector Anastasi is an experienced police officer, with a history of being able to analyse material, give a clear and cogent account of events as a witness and bearing in mind that he gave ' a rambling account of events with little structure and was difficult to understand ' in your professional opinion is he fit beyond trial in a misconduct hearing for which the case very well turn his credibility as to witness?
(ii) Having determined that he may not be able to withstand cross-examination, may not become unduly compliant due to his mental illness would not medical people (police officers and lawyers) be able to tell whether he was giving an accurate account of himself as opposed to simply conceding points in order to shorten the experience?"
The answer on 16th May 2014 from Dr Tacchi is as follows:
"I am writing in response to your request of 15th May regarding Mr Anastasi's current mental state. I reiterate my opinions expressed in my report dated 22/4/14.
(i) It is my opinion that Mr Anastasi is not fit to attend a misconduct hearing as a result of his mental state. His inability to structure his thoughts and give coherent accounts of events. This is a result of mental illness.
(ii) In my opinion, he would not be able to withstand cross-examination. My concern is that he will become unduly compliant in order to end the stress of cross-examination rather than give an accurate account of himself. This is as a result of his mental illness.
If you require any further information please contact me."
The transcript of the hearing before the Chair; Chief Constable Jo Farrell, and the other Panel members Superintendent Alan Vich and Dr Mohammed Farsi, RPCC representative, indicates attendees being for the second defendant is Toby Hedworth QC, and Tom Mitchell as counsel for Mr Anastasi, (not in fact counsel who appears before me today.)
Both the report and the letter were before the Panel.
As a result of the Tribunal seeking instructions from Mr Mitchell, from his client who did not attend, the record shows the background to be Mr Anastasi's medical position as follows:
"When I first told I way referred... I'll read back as well if we need more time. When I was first told I was referred to Jesmond Therapy, through the Force. I put in an immediate active request for assistance. I got an appointment with a therapist. I think I did four sessions. I cannot remember the dates. She said that the Force would only pay for eight sessions and it was an external referral so she advises to go to the NHS. Jesmond therapist advised to go to the NHS. The Force have an interim report on file after four sessions. It was clear that it would not be resolved in the available time. Then I went to see the GP. I went on the sick. That was the time of the first sick note or was that the second time. I may be able to clarify further when that was if we require it. Then I referred to psychological services North Tyneside. As soon as I got that referral I had to stop at Jesmond Therapy. So then I had to attend. I got letters saying there was a delay in the psychological services. I attended an open session of psychological services. During this time I was still seeing my GP. Then from that I was referred to CPT [I take to be is cognitive psychotherapy or therapy which is of course a very matter referred to the report I have referred].
I did two sessions CPT's coach who said because my circumstances were changed ie my partner's health and my father's health and family difficulties with my son they would not be able to work with me so I was referred back to my GP in February of that year. During all of these decisions the GP said I shouldn't be taking medication in accordance with the NAICE guidelines and referred to therapeutic approach. I was referred to Paul Deluca. I have had two counselling sessions with him but I have a third one this week and on the 22nd as part of the ongoing process. He has not set a number of sessions. Father admitted to North Tyneside General yesterday. They are determining today whether he has heart surgery. My partner tried to take her own life over the weekend therefore he has not set a number of sessions. He simply agreed to work with me. I was referred to see Dr Tacchi having received her report. I have gone back to the GP to discuss Dr Tacchi's recommendations. As a result of that I have been given medication. I am on 20 milligrams of Floranex per day and I am taking it. The GP also made referrals to CPT counselling sessions in a different type of counselling in accordance with the recommendations. There are possible delays to that. Perhaps it will be able to go through Mr Deluca if he is qualified CPT. I have had a follow up session as followed up and GP assessment to see how I am doing with Floranex and also the time when the situation is CPT available. I should say for the record that I have confirmed that note with my client."
Rather than consider the expert opinion the Tribunal appears to have undertaken their own enquiry of the applicant through counsel in an attempt to make their own assessment despite the advice given by this expert.
IV: The Panel Decision (2514) Appeal Decision (26215)
(a) The Panel Decision (2514)
The decision of the Panel is on two pages. That decision is to proceed and they therefore refuse the adjournment application. I think it is fair that I ought to set out the main parts because it is noteworthy as to what matters the Panel considered and what they do not consider. I therefore quote as follows:
"We have reminded ourselves that it will be rare that we exercise our discretion to proceed when officers not present nor represented at the misconduct hearing and bear reference to the reference of R v Hayward and the latter cases of R v Jones. Nevertheless we have found that there are exceptional circumstances in which to proceed."
These are as follows. I have numbered these paragraph 5 to 11 so one can see what those grounds were:
"5. Public interest must be served in the most appropriate manner possible and confidence in the police service should be maintained despite difficulties misconduct proceedings whatever...
6. The Panel has a duty to the complainants, the organisation, its employees the Force policy in relation to fairness at work and the Home Office Guidelines on misconduct proceedings.
7. The Panel takes the view that given the nature of allegations made against Chief Inspector Anastasi the undoubted pressure caused by the length of proceedings and waiting for the hearing to take place and the delay has caused the complaints of undue distress, the length of the requested adjournment is considered to be too long and that he has the ability to provide clear instructions when required to do so.
8. Northumbria Police have a duty towards maintaining a working environment which is fair without prejudice and must be seen to take robust action when allegations of wrongdoing against such policy and procedures become apparent. Employees who make the difficult decision of this type must be supported by the organisation. The Panel accepts the responsibility.
9. The Panel recognises that misconduct hearings must be primary fair, the officer accused but he also must also take into account the need for complainants of witnesses.
10. The Home Office guidelines in relation to police misconduct proceedings ... compelling reasons not to. Having already agreed on 31st March 2014 a timetable for this hearing, which sits outside the period described in the regulations the Panel has been asked yet again to extend the timetable for a further four months. We therefore consider there has already been considerable delay in the context of this type of proceedings and that request for further delay does not serve the interests of justice.
11. We are satisfied that in this case there are compelling reasons to proceed."
They then deal with what is said an additional reason at paragraph 12. This is the only place where I can find any reference to the report of Dr Tacchi, which of course is the basis of the adjournment:
"12.In addition to the above although we are concerned the officer's interests would be best served by legal representation, we understand that Mr Mitchell and those who instruct him have decided that they would be professionally unable to do so, there are some additional issues which the Panel take into account.
(i) the medical report of Dr Tacchi describes Chief Inspector Anastasi as suffering from moderate depressive episode and is need of some treatment and support. But given time and adequate explanations would be fit to give full instructions.
(ii) In addition we note that the officer has provided detailed response to his legal team both on 31st March in relation to the making up the Panel, and the alleged conflicts of interest and this morning in relation to his health.
(iii) The Panel therefore rejects submissions of Chief Inspector Anastasi, has been unable to provide instructions to his legal team and represents him (iv) the Panel notes that Chief Inspector Anastasi had written response to interview, that he provided detailed version of events in relation to allegations made against him of a professional standard on 2nd August 2013, after he suspended 2 months prior to being signed off sick and therefore has outlined the Chief Inspector's version of events which they consider on his behalf."
It is clear from this decision that the letter provided to the Tribunal of 15th May 2015 does not appear to have been referred to. It therefore appears, looking at that decision on its face, which refused an adjournment, that three things can fairly be summarised as follows:
(i) whilst the summary of the report of Dr Tacchi is described it does not seem to actually set out the effect of that report which in simple terms is: this individual is not able to attend trial.
(ii) that no reference whatsoever is to the letter of 15th May 2015. But the letter when read fairly, as far as this court is concerned, considers that expert is simply reiterating, as the letter makes clear, the opinions made, that is to say this expert is an independent expert with a declaration of truth has said that was the case.
(iii) the Tribunal found it better to take instructions from counsel as to to medical matters as opposed to an expert report and either that were before the Panel and unchallenged.
It is also relevant to note that, where one party provides opinion evidence that the other party in fairness should have a chance to respond to that. Mr Hill QC rightly notes that that opportunity was made available by not taken up by the Panel or others.
I note however that this Tribunal did look at the prognosis and consider the period proposed was too long and they also looked at the rules and in that regard and noted that this was four times the usual period of time. Of course when looking at the rules the Panel could not avoid the need for a fair trial. I have indicated that in terms of a fair trial, which this individual has a right to, very often the period of time prognosis and the fairness of the trial cannot be simply equated. Whilst these rules expressly provide for an extend that time, the test that has to be applied if the time needs to be extended in the interest of justice. It is fundamental to English justice. An individual should generally attend trial, have the chance to put his case in order that he can case have a fair hearing.
(b) Appeal Decision (26215)
So far as the Police Appeals Tribunal decision is concerned that is longer and covers a wider ambit of matters.
Unlike the Panel Decision in paragraph 36, this Tribunal does consider the letter received from Dr Tacchi, as follows:
"The report sent to presiding officer AC Farrell the 1st May 2014. She responded by indicating that in the light of this up-to-date report it would not be appropriate for an appellant to be reassessed by the FMA as Dr Tacchi's report dealt with the appellant's fitness to take part in the hearing. Dr Tacchi was asked to give a further opinion in which he stated..."
and sets out details of the 15 May 2015 letter. It is therefore perfectly clear that this Tribunal did understand and did record first, there was report, secondly, the report was unchallenged, that the opportunity was given and it was decided not to challenge it. Thirdly, they understand that this individual, as a qualified independent expert, whose qualifications are not put in dispute or the weight of that evidence is not disputed has said in the clearest terms that this individual is not fit to attend a misconduct hearing and, if did attend, the cross-examination would not necessarily give an accurate account but would have the purpose of being unduly compliant and therefore normal conclusions can be fairly understandably drawn.
It ought to be noted that at this hearing there was citation in paragraph 18 of the decision of Brabazon-Drenning .
I read from the latter parts of this Appeal Decision as follows:
"72. The Tribunal considers the misconduct Panel was entitled to look at overall circumstances decide whether the appellant was trying to co-operate with the investigation and subsequent proceedings and in other words his depression was not the whole picture.
73. Up until the 2nd August 2013 he had been apparently able to apply his mind to allegations in written response. There is evidence by way of context to undermine credibility of Ms Krani, who was astute to avoiding revealing text messages that had been sent to her. I put matters in different light.
74. Being able to engage with doctors, attend appointments and give a full of the allegations to Dr Tacchi and give his side of the story. It was difficult to see why he could not have instructed a solicitor properly. If he has done the solicitor could have instructed counsel, could have cross-examined the complainants and otherwise. It was the appellant's decision not to give proper instructions. The Misconduct Panel was right to take account the interests of the complainants who expect the matter to be resolved...
76. The Misconduct Panel was right to consider there was no clear indication that the appellant would be wholly recovered and raise more times especially given the fact that much of the problems lay in the fact that the proceedings themselves were hanging over him as well as difficulty in circumstances at home which showed no sign of improving.
77. The Misconduct Panel accepted that he might have difficulty in dealing with cross-examination. However they stated they were willing to make the adjustments necessary. The concept of vulnerable witness having given evidence and having to give special measures announces the court Tribunal were familiar. If necessary cross-examination could be carefully controlled and kept to an absolute minimum. The appellant chose not to attempt to attend to participant, despite being given extra date to attend and no doubt generous time given more detailed instructions if needed."
This decision clearly states the correct authority; it is aware of a document which says in terms that this individual cannot attend trial and when cross-examined will not attempt to give a correct version but will take what might be called a slightly easier approach - Is aware of the fact that report was not challenged, as could have been done and all expert evidence is open to challenge in the normal way if is not to be accepted in its face as an independent document. But despite all of that, one does not see, as far as I can see from these reasons, any focus on those points. Because at the end of the day, what this decision should have done with reasons is ask itself the question why it was that these proceedings were adjourned when there was clear, unchallenged expert opinion evidence was before a Tribunal and was not properly referred to in the decision of that Tribunal.
Whilst I acknowledge that a tribunal is not bound to accept independent medical opinion and like all opinion evidence a tribunal has to come to its own view. In this case there appears to be no proper recognition that a report such as this has to be a starting point for an adjournment. Application before the tribunal goes on to consider why it would prefer not to accept such independent opinion on more proper reasoned basis. this does not appear to have been the basis for the Appeal Decision review of the Tribunal.
VI: The Law
The leading case is so far as relied upon by the claimants that of Rose LJ and Elias J (as he then was). Rose LJ invited Elias J to give a decision in Brabazon-Drenning v United Kingdom General Council for Nursing and Midwifery and Health Visiting [2001] HRLR 6. I have reviewed the authorities considered and the background. The facts of that case where, as one can see from paragraph 7, that there was a general practitioner's report which explained the background. Then the key quote which has been cited at paragraph 18:
"In my judgment, this hearing plainly should have been adjourned. Save in very exceptional cases where the public interest points strongly to the contrary, it must be wrong for a committee which has the livelihood and reputation of a professional individual in the palm of its hands, to go on with a hearing when there is unchallenged medical evidence that the individual is simply not fit to withstand the rigours of the disciplinary process.
A year later, on 31st January 2001 R v Hayward, Jones and Purvis , of which Rose LJ sat with Hooper J and Goldring J. As a matter of record he did not cite from the decision on which he sat with Elias J but did in a very comprehensive and full way indicate the test in this particular hearing, of course being a criminal hearing. I pick it therefore from paragraph 22 which is quoted time and again in subsequent decisions as I shall indicate. I read from paragraph 22:
"1. A defendant has, in general, a right to be present at his trial and a right to be legally represented.
2. Those rights can be waived, separately or together, wholly or in part, by the defendant himself. They may be wholly waived if, knowing, or having the means of knowledge as to, when and where his trial is to take place, he deliberately and voluntarily absents himself and/or withdraws instructions from those representing him. They may be waived in part if, being present and represented at the outset, the defendant, during the course of the trial, behaves in such a way as to obstruct the proper course of the proceedings and/or withdraws his instructions from those representing him.
3. The trial judge has a discretion as to whether a trial should take place or continue in the absence of a defendant and/or his legal representatives.
4. That discretion must be exercised with great care and it is only in rare and exceptional cases that it should be exercised in favour of a trial taking place or continuing, particularly if the defendant is unrepresented.
5. In exercising that discretion, fairness to the defence is of prime importance but fairness to the prosecution must also be taken into account. The judge must have regard to all the circumstances of the case including, in particular:
(i) the nature and circumstances of the defendant's behaviour in absenting himself from the trial or disrupting it, as the case may be and, in particular, whether his behaviour was deliberate, voluntary and such as plainly waived his right to appear;
(ii) whether an adjournment might result in the defendant being caught or attending voluntarily and/or not disrupting the proceedings;
(iii) the likely length of such an adjournment;
(iv) whether the defendant, though absent, is, or wishes to be, legally represented at the trial or has, by his conduct, waived his right to representation;
(v) whether an absent defendant's legal representatives are able to receive instructions from him during the trial and the extent to which they are able to present his defence;
(vi) the extent of the disadvantage to the defendant in not being able to give his account of events, having regard to the nature of the evidence against him;
(vii) the risk of the jury reaching an improper conclusion about the absence of the defendant;
(viii) the seriousness of the offence, which affects defendant, victim and public;
(ix) the general public interest and the particular interest of victims and witnesses that a trial should take place within a reasonable time of the events to which it relates;
(x) the effect of delay on the memories of witnesses;
...."
That summation has then been considered in R v Jones which went to the House of Lords. It was Lord Bingham of Cornhill, whose views in this matters carry great weight and in particular paragraph 13, indicates having quoted that case, that having gone to paragraph 22 of the Court of Appeal decision the pages I have just quoted 135 and 136:
"...the discretion to commence a trial in the absence of a defendant should be exercised with the utmost care and caution. If the absence of the defendant is attributable to involuntary illness or incapacity it would very rarely, if ever, be right to exercise the discretion in favour of commencing the trial, at any rate unless the defendant is represented and asks that the trial should begin. The Court of Appeal's check-list of matters relevant to exercise of the discretion (see paragraph 22(5)) is not of course intended to be comprehensive or exhaustive but provides an invaluable guide. I would add two observations only.
First, I do not think that 'the seriousness of the offence, which affects defendant, victim and public', listed in paragraph 22(5)(viii) as a matter relevant to the exercise of discretion, is a matter which should be considered...
Secondly, it is generally desirable that a defendant be represented even if he has voluntarily absconded. The task of representing at trial a defendant who is not present, and who may well be out of touch, is of course rendered much more difficult and unsatisfactory, and there is no possible ground for criticising the legal representatives who withdrew from representing...
That decision is followed in very similar terms with almost identical quotations from the other members of Lord Nolan, Lord Hoffmann, Lord Hutton and Lord Rodger of Earlsferry. Again, one and between them quote that similar decision and/or agree with the decision of Lord Bingham of Cornhill.
In terms of that approach as being appropriate to disciplinary hearings the case of Tait v Royal College of Veterinary Surgeons , a decision of Lord Steyn in the Privy Council pertinent and I need to read from paragraph 5 viz:
"Counsel for the appellants drew attention to the observation of Lord Bingham of Cornhill in R v Jones [and he indicates a quote that I have just quoted] Lord Bingham proved the checklist of matters relevant to the exercise. The Court of Appeal at paragraph 22(5) which I also quoted from pertinent to the present case. These decisions show the following factors (i) the seriousness of the case against the defendant (ii)the seriousness of the case against the defendant, the risk of the tribunal reaching a wring conclusion about the reasons for the absence of the defendant, and the risk of reaching a wrong conclusion on the merits as a result of the appellant’s account not being heard..."
In terms of the most recent decision that is still the correct approach. Again I do not read in detail the well-know decision of McDaid v NMC . Eder J in the Administrative Court. The one paragraph, paragraph 28 in which having set out the factors he summarises in this way:
"The principles to be generally applied when exercising the discretion to proceed in a criminal case in the absence of the defendant are set out in the case of R v Hayward ... R v Jones (Anthony) [2002] UKHL 5 and applied to professional regulatory proceedings by the Privy Council in Tait v The Royal College of Veterinary Surgeons..."
It is quite apparent to me and correct to say that approach is now and more recently followed in these sort of proceedings. For those purposes there is no dispute between counsel before me that the Nursing and Midwifery Council approach and these proceedings should be the same.
The last authority I quote and I concede this was not by the either counsel it seems it is relevant to medical expert reports seeking an appointment. It is a matter that Tribunals regularly have to deal with is the decision of (as he then was) Norris J, now the Vice-Chancellor. The decision is Levy v Ellis-Carr and others [2012] EWHC 63 (Ch). It is paragraph 32 and 36 it is quoted from in adjournment cases generally in civil case and many cases where the approach to expert evidence on medical grounds is fairly summarised viz:
"32. Registrars, Masters and district judges are daily faced with cases coming on for hearing in which one party either writes to the court asking for an adjournment and then (without waiting for a reply) does not attend the hearing, or writes to the court simply to state that they will not be attending. Not infrequently 'medical' grounds are advanced, often connected with the stress of litigation. Parties who think that they thereby compel the Court not to proceed with the hearing or that their non-attendance somehow strengthens the application for an adjournment are deeply mistaken. The decision whether or not to adjourn remains one for the judge."
And then:
"36. Such evidence should identify the medical attendant and give details of his familiarity with the party's medical condition (detailing all recent consultations), should identify with particularity what the patient's medical condition is and the features of that condition which (in the medical attendant's opinion) prevent participation in the trial process, should provide a reasoned prognosis and should give the court some confidence that what is being expressed is an independent opinion after a proper examination. It is being tendered as expert evidence. The court can then consider what weight to attach to that opinion, and what arrangements might be made (short of an adjournment) to accommodate a party's difficulties. No judge is bound to accept expert evidence: even a proper medical report falls to be considered simply as part of the material as a whole (including the previous conduct of the case)."
That case has been expressly approach by Lewison LJ in Forrester Ketley v Brent [2012] EWCA Civ 324 - see paragraph 26, and there have been other cases where that has been approved including (as he was then) Vos J, in Governor of Bank Ireland and Jaffery [2012] EWHC 734 - paragraph 49 et al. More recently, in Decker v Hopcraft , a defamation case (Warby J), he cited those principles seriatim as I have done from paragraph 21 through to paragraph 26 inclusive as being the correct approach to an adjournment. These are well-known rules and in terms of expert medical evidence are probably now accepted as to the correct approach any tribunal should take when considering the question of an adjournment on medical grounds.
VII: Conclusion
In view of the detail and indeed the time I am going to reduce these conclusions to a very short numbered four paragraphs.
1. Taking the Panel Decision first, in this court's judgment the interest of justice in this case did require the Panel in a misconduct procedure to extended time if they had properly considered the provisions of the Police (Conduct) Regulations 2012, paragraph 24 and in order that Chief Inspector Anastasi could have a fair opportunity to attend a trial and allow him to put his case in an objective and fair way. That also would have accorded with the Home Office Guidelines (July 2014 Regulations paragraph 2.17) which indicates the purpose of those hearings, a fair hearing. From everything I have considered in this case I am simply not satisfied that approach was correctly taken.
2. The Panel should have properly considered both the report and the letter of Dr Tacchi which gave direct, relevant, independent, objective evidence and a normal declaration from someone entirely qualified which had not been challenged, though it could have been. The decision was not to challenge it. Therefore, in broad terms, it stood and was evidence largely along the lines of Levy and Ellis (supra), which was before the Tribunal and therefore they had to consider that in the usual way.
In order to do that they would and should have come to the conclusion that Chief Inspector Anastasi was not fit for a trial and they should have been concerned that if he did attend trial and gave evidence he would not give, as they often say the full truth but nothing the truth in answers which would equate to a wish to reduce the extent of its proceedings and the pressure on him given what his psychiatric report says his symptoms were.
There was also a prognosis as to the period of time whilst the Tribunal did properly consider that, they considered it was too long. In this court's judgment, very often proceedings it is not literally the length of the period, what one is trying to achieve is the test as required by those Police Conduct Regulations and Home Office guidelines it is trying to achieve fairness. It is difficult to have a fair trial when someone cannot attend for perfectly good medical grounds which are unchallenged and indeed would, if he attended, and this was the hearing where attendance was after a really very short period of time was likely, so the evidence indicated at Tribunal, not answer the questions expected by any fair hearing.
3. The Panel failed to properly give effect to the Harvey decision and the Jones decision in principle, when they considered the factors; it is perfectly plain that this Tribunal were looking for exceptional circumstances to continue rather than carrying out the balancing exercise that they are required to do. It is therefore significant that the professional independent opinion that said this individual claimant cannot sadly attend the trial was not put into the balance and effect given to Brabazon-Drenning .
It seems to me if you are going to consider that test and you are going to consider an adjournment on the medical grounds those are the factors that are plainly part of that list and they should be followed and indeed it is very difficult to consider the decision of Lord Bingham and his very clear indication of how matters should proceed as in Jones which was apparently before the Tribunal then become with those exceptional circumstances just do not produce, as this court sees it, a balanced view at all.
4. So far as the Appeal Decision is concerned, that in large terms simply supported the approach of the Panel. It is right to say and I do record that they did apply the correct test. On this occasion Mr Hill attended and focused precisely on that test. They did record the very letter as a matter of evidence which indicated and reported the inability of these individuals to attend trial. But when they came to the reasoned parts of their decision and the reasons they had to give seemed not recorded those matters, considered them or put them into the balance. What they seem to have done is taken a broader approach of the whole case and formed the view that the trial must proceed because of its long history.
At the end of the day it seemed to me it is surprising that Appeal Panel having cited what was clearly the correct that in law, failed to give any effect to that as far as I can see when fairly looking at their reasoning in any fair way.
Accordingly, this Tribunal has come to a decision that both the Panel Decision and indeed the Appeal Decision are correctly described as "irrational, unreasonable and not proportionate in its approach". I am satisfied that Chief Inspector Anastasi has not had the chance of a fair trial.
VIII: Order
In view of that there, may be somewhat unusually but I think on the facts of this case I have little or no option whatsoever but to quash the decision of the Panel on the 20th May 2015 and quash the Appeal Decision of the 26th February 2015. In view of that this matter in this court's judgment should therefore have the third relief sought which is the matter should be remitted to a new misconduct Panel and Chief Inspector Anastasi should have the right to a fair hearing.