Wilby-Newton, R (On the Application Of) v Police Appeals Tribunal

On behalf of the Claimant, Mr Pitter made the following submissions.

First, he argued that the Panel reversed the burden of proof relating to the use of force. At [19] of his Skeleton Argument Mr Pitter referred to [34] and [35] of the Panel’s decision (set out above) where it said it was not for it to find justification for the Claimant’s actions, when none had been advanced by him; that it was for the Claimant to provide evidence that his use of force was justified based on his honestly held belief at the time; that he had provided no evidence to justify a kick; and that it therefore concluded that there was no justification for the Claimant’s use of force and that the allegation was proved.

At [20.1] Mr Pitter said that the case was presented by the Chief Constable on the basis that the ‘circumstances were such that the panel cannot fill the void (left by the Officer’s lack of explanation)’ (Chief Constable’s Written Opening, [6(c]). After referring to [4.4] of the Code of Ethics (see above), Mr Pitter submitted at [20.3] (original emphasis):

“The unfortunate consequence was to contribute to a shift in emphasis of the burden and standard of proof in relation to the use of force, which remains, as in the application of the principles of self-defence on the AA throughout. This is made clear by the Code of Ethics itself which states [at 3.1.2}

‘However, in misconduct proceedings against police officers, the formal wording of the Police (Conduct) Regulations 2012 will be used.’ What the Code of Ethics does is give helpful guidance especially to a police officer, to help understand the principles and standards expected in day to day activity and serves as a guide to that effect. It does not affect the legal test and approach as set out in W80 ie the breach which must be proved is whether the use of force (viewed objectively) was not necessary, reasonable and proportionate. It does not require the Officer to prove anything or give a reason (although they may be relevant considerations). Otherwise, any officer who does not recollect events for whatever reasons when force is used would be in breach.”

Mr Pitter went on to submit (at [22]-[23]) that (original emphasis):

“22.

It is apparent that the Panel misapplied the test as it effectively viewed it as a requirement that the Claimant must give a positive account to justify his actions. The effect of that was to reverse the burden of proof …

23.

Therefore, it follows that the Panel’s decision and finding was wrong and unreasonable, in a public law sense, on the basis of its misapplication of the proper test and its findings was in breach of PAT rules 4(4)(a) and (c).”

So, Mr Pitter said that for these reasons the Panel’s decision was wrong and unreasonable, and that the Chair in his decision had not engaged with this issue sufficiently or at all, simply stating that ‘there was no reversal of the burden of proof’, and so adopted the Panel’s defective reasoning.

Additionally, on unreasonableness more generally, Mr Pitter said it was unreasonable for the Panel to have declined the Claimant offer of ‘several options as to what could have happened … I am happy to go through them, if you think it would help’ (Skeleton Argument, [24]).

At [26] Mr Pitter referred to the Officer’s evidence that, having viewed the footage, he was ‘moving [Mr Hague’s legs]’ because he was about to put his hands and face down and he ‘I didn’t want to get kicked … So I have moved his legs in a position where he can’t necessarily kick out at me.’

Accordingly, Mr Pitter submitted that it was wrong and unreasonable in a public law sense for the Chair to conclude that an appeal had no prospects of success.

I turn to the Claimant’s second ground of challenge, relating to expert evidence.

Mr Pitter submitted that the LQC was wrong to refuse to admit the expert evidence from Joanne Caffrey on which the Claimant wished to rely; that it went directly to the reasons the Claimant might have had for acting as he did, which was of importance because of the Panel’s view that it was for the Claimant to justify his actions (Skeleton Argument, [29]). He also submitted that the Chair’s reasoning on this issue was ‘light’ and that he had not justified his reasoning.

Third (the renewed ground for seeking permission), at [33] Mr Pitter made a number of criticisms of the Panel’s reasoning on the honesty and integrity allegation, in particular, its conclusion at [39] that having viewed the footage the Claimant ‘must have been sufficiently reminded of events at the time to know what his involvement was’. He said it was not clear how that conclusion was reached. He also said that the Panel had not had sufficient regard to the fact that the CCTV footage needed to be enhanced to enable identification to be made with sufficient clarity.

Accordingly, the Claimant invited me at [38] of his Skeleton Argument either to (a) quash the Chair’s decision and order reconsideration under Rule 12 of the Appeal Rules (determination of an appeal not dismissed under Rule 11); or (b) alternatively, remit the matter to the PAT for reconsideration and provision of proper reasons.

In reply, Ms Checa-Dover submitted as follows.

As I have said, she began by pointing out that the Panel’s finding that the Claimant had deliberately kicked Mr Hague had not been the subject of any appeal to the PAT (Skeleton Argument, [9]). At [10] she said:

“Thus, notwithstanding how the event is now framed in the Claimant’s Skeleton Argument as ‘a motion’ or ‘use of a leg’, this case involves the Claimant deliberately kicking a handcuffed detainee, who was on the ground being restrained by other officers, whilst riled by the preceding events.”

At [11]-13] she also pointed out that the Claimant had completed a Use of Force Form on the same day and had not mentioned any contact or use of force, whether by way of a kick or ‘sweep’ or otherwise. She said any such contact should obviously have been included. Her inferential submission was that the Claimant had intentionally not mentioned what he had done because he knew it was wrong. She also said that the Claimant had failed to mention a kick in his accounts thereafter. In particular, although he had given a long account in his first interview on 15 January 2019, he had failed to mention anything about kicking Mr Hague. She also emphasised that although he was able to identify two other officers on the (unenhanced) CCTV shown at the first interview, he positively asserted the officer seen coming from the right was not him; not that it might be him, or that he could not be sure.

In response to the specific grounds of challenge, Ms Checa-Dover submitted as follows.

On the first ground of challenge, she said there were two aspects to the first allegation relating to use of force: (a) what was the nature of the force used ?; (b) was the force as found not necessary, proportionate and reasonable ?

On the first question, for the reasons I have explained, before the PAT the force used was accepted by the Claimant to have been a kick to a handcuffed detainee. The Panel did not accept the Claimant’s assertion that the action had been a ‘sweep’, or something less than a deliberate kick.

On the second issue, Ms Checa-Dover said the Panel was entitled to look to the

She said there had been no reversal of the burden of proof by the Panel and that the Chair had been right (or, at a minimum, entitled) so to conclude. She pointed out that at [5] of its decision the Panel had directed itself the burden lay on the Chief Constable to prove the allegations. She put it this way in her Skeleton Argument at [40] (emphasis in original):

“Seeking a factual explanation from a serving officer about why he kicked a man does not equate to reversing the legal burden of proof; it is an application of common sense and a realistic reflection of policing. This is well-known to all working in policing, including the Claimant’.

On the unreasonableness challenge more generally, Ms Checa-Dover said at [45]:

“45.

Ultimately, what to make of the CCTV and the witness accounts was a matter for the specialist Panel who heard and read the evidence at first instance. The Chair was right not to interfere with the Panel’s assessment of the evidence before it and the weight to be attached to the same.”

The Chief Constable’s response on the expert evidence ground of challenge was as follows.

At [47] of her Skeleton Argument, Ms Checa-Dover said the Chief Constable would not resist the remission of this ground to the Chair for fuller reasons to be given that excluding Ms Caffrey’s evidence was a proper exercise of the Panel’s discretion, as a pragmatic remedy.

She said that in refusing to admit Ms Caffrey’s evidence, the Chair was in receipt of the following submissions from the Chief Constable:

The Chair’s reasoning was as follows (Chief Constable, Skeleton Argument [48]): “Furthermore, adducing expert evidence at this stage is too late. Misconduct proceedings are to be conducted as expeditiously as possible. The introduction of such evidence will undoubtedly delay the commencement of the hearing and may necessitate an adjournment of it. These allegations relate to events which occurred some two years ago. The officer has been aware of the allegations since at least August 2018. It is not in the interests of justice for there to be any further delay in the proceedings. Also I have not had any explanation from the officer as to why the report was not obtained earlier. Its potential existence was not mentioned during the case management of this case and would have impacted on decisions relating to Mr Clarke’s evidence. The late disclosure of the report causes obvious and significant prejudice to the Appropriate Authority.”

Turning to the way the matter is put on behalf of the Claimant on this application, Ms Checa-Dover said the primary flaws in the argument are that: (a) the expert evidence is sought to be used impermissibly to fill a factual void; (b) the expert was opining on matters outside her expertise.

Finally, on the renewed ground of challenge relating to the honesty and integrity charge, Ms Checa-Dover said the Panel had had the opportunity of hearing from the Claimant and assessing the veracity of his account. She said it was open to the Panel reasonably to conclude that the Claimant had not told the truth when he positively asserted in his first interview that he was not the officer shown on the CCTV walking into shot from the right at 11:35:21 and then at 11:35:25 using his leg in some sort of motion, because it was inherently implausible that a police officer of 29 years would be able confidently to recognise others, but not himself. She pointed out that the Claimant had not expressed uncertainty but had positively asserted he was elsewhere at the relevant time. She therefore said, for the reasons given by His Honour Judge Saffman when refusing permission, the decision of the PAT could not be impugned.

Ms Checa-Dover therefore submitted I should dismiss Grounds 1 and 2 and refuse permission on Ground 3, although as I have indicated, she said she would not oppose, on a pragmatic basis, Ground 2 being remitted to the Chair for the provision of further reasons.

The approach the Administrative Court must take on a claim for judicial review of a decision of the PAT was stated by Burnett J (as he then was) in R (Chief Constable of Dorset) v Police Appeals Tribunal [2011] EWHC 3366 (Admin), [19], [25]:

“19.

… Proceedings in the Administrative Court seeking to challenge the decision of a Police Appeals Tribunal do not arise by way of appeal, but by way of a claim for judicial review. In those circumstances, a claimant in judicial review proceedings must establish a public law error before the decision of that Tribunal could be quashed.

…

25.

At each level in the disciplinary process, the decision maker or decision making body is expert in nature. It knows and understands how the police service works. It knows and understands the importance of maintaining integrity amongst police officers. It knows and understands the impact that serious misconduct can have on the force concerned and the police service in general. Parliament has provided that the Tribunal is the appellate body for these purposes. There is no further appeal to the High Court. The Tribunal is subject to the supervisory jurisdiction of this court. I have already observed that the approach of this court in judicial review is different from the approach adopted when sitting in an appellate capacity from the Solicitors Disciplinary Tribunal. Absent another error of law on the part of the Police Appeals Tribunal its decision on sanction could be interfered with only on classic Wednesbury grounds, in short that on the material before it no reasonable Tribunal could have reached the conclusion that it did.”

In his oral submissions Mr Pitter correctly identified that I was concerned with whether the Chair’s determination was Wednesbury unreasonable, and that he himself was concerned with whether the Panel’s decision was arguably unreasonable or unfair. Mr Pitter described my task as a ‘nuanced’ and ‘double layered’ process.

Ms Checa-Dover also said that the PAT is a specialist tribunal and so I should be slow to interfere with the Chair’s decision, and she referred to R (Chief Constable of Northumbria) v Police Appeals Tribunal [2019] EWHC 3352 (Admin), [29]:

“29.

The PAT's decision is entitled to 'deference' such that the court should be slow to interfere with it. The PAT is a specialist appellate tribunal, experienced and expert in assessing police misconduct, including the impact of an officer's misconduct on public confidence in and the reputation of the police. Although he deprecated the use of the term 'deference' in Salter [ie, Chief Constable of Dorset, supra] Burnett J (as he then was) said at [33]:

‘…The reason why the court is slow to interfere with the decision of an expert tribunal is that the court does not share the expertise. It is not 'deference' but a proper recognition of the need for caution before disagreeing with someone making a judgment on a matter for which he is especially well qualified, when the court is not.’”

Without in any way doubting these passages, I consider they apply with particular force where, for example, the Administrative Court is asked to overturn a particular sanction imposed for misconduct. In that type of case, the Misconduct Panel and the PAT with its expertise are better placed that the Court to determine what is required by way of sanction to maintain confidence in policing. They may apply with lesser force, it seems to me, where the Court is asked to intervene because of an alleged error of law by the PAT (as in the first ground of challenge in this application). In such a case there is less need for caution or ‘deference’ because the Court is the ultimate arbiter of what is lawful. This approach is broadly similar to that taken by the Court on medical appeals: cf General Medical Court v Jagivan [2017] EWHC 1247 (Admin), [40(v) and (vi)] (the appellate court will approach medical Tribunal determinations about whether conduct is serious misconduct or impairs a person’s fitness to practise, and what is necessary to maintain public confidence and proper standards in the medical profession, with diffidence; but there may be other areas such as dishonesty or sexual misconduct where the court will attach less weight to the expertise of the Tribunal.)

Ms Checa-Dover also said that the Panel should be afforded a degree of latitude in their reasoning, it being ‘right to adopt a generous approach to the reasoning provided by a misconduct panel’: R (Chief Constable of West Midlands Police) v Police Misconduct Panel [2020] EWHC 1400 (Admin), [59].

I begin with the self-direction on the burden and standard of proof which the Panel set out at [5] of its decision:

“5.

The burden is on the Appropriate Authority to prove the allegation. The standard is the balance of probabilities. The more serious the allegation of misconduct that is made or the more serious the consequences for the individual which flow from a finding against him the more persuasive (cogent) the evidence will need to be to meet this standard.”

This was a wholly correct direction. The third sentence is a reflection of what Lord Hoffmann said in Secretary of State for the Home Department v Rehman[2003] 1 AC 153, 194:

“The civil standard of proof always means more likely than not. The only higher degree of probability required by the law is the criminal standard. But, as Lord Nicholls of Birkenhead explained in In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, 586, some things are inherently more likely than others. It would need more cogent evidence to satisfy one that the creature seen walking in Regent's Park was more likely than not to have been a lioness than to be satisfied to the same standard of probability that it was an Alsatian. On this basis, cogent evidence is generally required to satisfy a civil tribunal that a person has been fraudulent or behaved in some other reprehensible manner. But the question is always whether the tribunal thinks it more probable than not.”

There can be no doubt, therefore, that the Panel began from the correct starting point in considering on whom the burden of proof lay, and to what standard.

In considering whether the Chief Constable had proved the first misconduct allegation, there were two limbs to the charge which the Panel had to consider, both of which the Chief Constable had to prove in order to succeed:

On the first question, as I have set out, the Panel concluded that force had been used, and that that force was a deliberate kick which had made contact with Mr Hague.

I do not regard what the Panel said at [28] (‘The second issue is whether the officer has provided justification for his actions on his honestly held belief at the time’) or at [34] (‘It is for the officer to provide evidence that his use of force was justified based on his honestly held belief at the time. He has provided no evidence to justify a kick’) as amounting to a reversal of the burden of proof. That is for the following reasons.

It is a fundamental principle of policing that where an officer uses force then s/he must explain and justify why s/he did so. This principle is so deeply engrained so as not to require much by way of authority or explanation. In her oral submissions Ms Checa-Dover, correctly in my view, linked it to what is called ‘policing by consent’. This refers to the long-standing philosophy of British policing, likely devised and set out in nine principles by the first Commissioners of Police of the Metropolis (Charles Rowan and Richard Mayne, not Sir Robert Peel as often claimed), which comprised the ‘General Instructions’ that were issued to every new police officer from 1829. The fifth of these was:

“5.

To use physical force only when the exercise of persuasion, advice and warning is found to be insufficient to obtain public co-operation to an extent necessary to secure observance of law or to restore order, and to use only the minimum degree of physical force which is necessary on any particular occasion for achieving a police objective.”

The corollary of this is that where an officer uses force, s/he must justify it and explain why they have done so. This explains why every police force in the country requires its officers to complete a Use of Force Form when force has been used. It finds its most vivid expression where lethal force is used; in such a case the obligations imposed on the State by Article 2 of the European Convention on Human

The Code of Ethics, [4.4], reflects this fundamental principle by placing every police officer under a positive duty to account for any use of force, in other words, to justify it based upon his/her honestly held belief at the time that they used the force. Ms Checa-Dover described this duty as no more than the ‘common sense expectation’ on the part of the public that an officer should be able to account for his/her use of force.

Hence, the requirement for an explanation for the use of force imposed by the Code has nothing to do with reversing the burden of proof, even where an officer is accused of using excessive force. It is a general requirement in all cases when force of any type is used whether or not the officer is blameworthy. In this case, for example, the Claimant accepted in interview (Bundle, pp163 and 173 of 345) that he knew he would have to account for the use of Lex and for him biting Mr Hague, even though the Claimant was completely blameless because Mr Hague had twice deliberately provoked the dog before it bit him. It does not amount to a requirement that an officer explain himself or herself, in default of which they will be found to have used excessive force.

Where an officer who is accused of using excessive force provides an explanation pursuant to [4.4] of the Code, the Misconduct Panel must take that explanation into account in determiningwhether the Chief Constable has discharged the burden of showing that the force used was not necessary, proportionate or reasonable in the circumstances. The officer’s account can also be used in determining whether and, if so, what force was used. But the burden of proof does not shift and remains on the Chief Constable throughout.

In the present case, the Panel had CCTV of the incident. It is not perfect, but it is tolerably clear. The Panel found that it showed the Claimant deliberately kicking a restrained detainee. Whilst it is not directly a matter for me, having viewed the footage myself, I am unsurprised by the Panel’s conclusion. The Panel was required then to consider whether, on a balance of probabilities, that use of force was not necessary, proportionate or reasonable in the circumstances. In making that determination, as I have said, it was bound to consider and take into account the Claimant’s explanation for his actions, not because there was any burden of proof on him, but because [4.4] of the Code required him to give an explanation and basic fairness required the Panel to take that explanation into account when considering whether the Chief Constable had proved the second limb of the charge.

The Claimant asserted a loss of memory and so could not explain his actions. There was, accordingly, nothing by way of explanation which the Panel could take into account in considering whether the Chief Constable had proved that second limb. The Panel was therefore entirely correct to observe that in the absence of any explanation from the Claimant, it was not for it to come up with its own potential justifications; to have done so would have meant the Panel impermissibly speculating. In fact, the Panel went further; as I have set out, in [33] it said that the Claimant knew he had had no justification for kicking Mr Hague and it therefore did not accept his claimed loss of memory.

Given the nature of the force used and the absence of any explanation from the

It follows that I do not consider the Panel reversed the burden of proof. At the end of this section of its decision the Panel said, ‘The [Chief Constable] has proved the first allegation.’ So, as well as starting in the right place (as I have said), the Panel also ended in the right place. Hence, the Chair of the PAT was correct in his decision, and I therefore reject the first ground of challenge.

I accept, as indeed Ms Checa-Dover accepted, that the Chair’s determination on this issue was brief and fairly cursory. Indeed, it was little more than a stated conclusion with little in the way of reasoning to support that conclusion. As a general matter, where an appeal is being refused under Rule 11, then there should be fuller reasoning than that given by the Chair in this case, so that the losing party is in no doubt why they have lost. Rather than expressing a global conclusion overall, as the Chair appeared to do at [18] of his decision, it would have been better if he had stated each ground of appeal and then briefly, in a few sentences, set out his reasoning and conclusions in relation to each.

That said, in looking at the Chair’s reasoning, and in order to understand it, I am not limited to the formal record of his decision. When it is considering an appeal on the ground of what are said to be inadequate reasons, an appellate court can have regard to material outside the formal record of the reasons. For example, regard may be had to the Panel’s reasoning, transcripts of evidence, and the like, in order to deduce the meaning of the Chair’s reasons. In English v. Emery Reimbold & Strick [2002] 1 WLR 2409, [26], [57], the Court said:

“26.

Where permission is granted to appeal on the grounds that the judgment does not contain adequate reasons, the appellate court should first review the judgment, in the context of the material evidence and submissions at the trial, in order to determine whether, when all of these are considered, it is apparent why the judge reached the decision that he did. If satisfied that the reason is apparent and that it is a valid basis for the judgment, the appeal will be dismissed. This was the approach adopted by this court, in the light of Flannery's case [Flannery v Halifax Estate Agents Ltd [2000] 1 WLR 377] in Ludlow v National Power plc (unreported) 17 November 2000; Court of Appeal (Civil Division) Transcript No 1945 of 2000. If despite this exercise the reason for the decision is not apparent, then the appeal court will have to decide whether itself to proceed to a rehearing or to direct a new trial.

…

57.

The judge could have explained the issue and his reasoning process in comparatively few words. It is regrettable that he did not do so and that it has taken the appellate process and the assistance of counsel who appeared at the trial to enable us to follow the judge's reasoning. Having done so we conclude that this appeal must be dismissed.”

In Phipps v. General Medical Council [2006] EWCA Civ 397, [104], Arden LJ (as she then was) said:

Adopting this approach, and looking at all the relevant materials (including the LQC’s reasons that I have already quoted, and Ms Checa-Dover’s written submission in opposition to the Claimant’s application) in my judgment it is clear why the LQC refused to allow the Claimant to rely on the expert report, and it is clear why the Chair held that decision to be within the range of reasonable decisions by the LQC. In his oral submissions, Mr Pitter said the LQC had not focussed sufficiently on the question of unfairness to the Claimant if he was not entitled to rely on the expert’s report.

The main reason why the LQC refused to allow the expert evidence was on case management grounds. He said that the report had been served late; that there had been no explanation about why it had been served late; and that to allow the Claimant to rely upon it would cause the Chief Constable significant prejudice. The LQC commented on the need to deal expeditiously with misconduct allegations, and that to allow the evidence in would necessitate an adjournment. He observed that the allegations related to events that had happened nearly two years earlier.

The reference to expedition was to reg 24(1)(b) of the Conduct Regulations, which provides that a misconduct hearing must take place within 30 days (beginning with the first working day after the reg 21 notice has been served, although that period can be extended). Because the LQC had, by 10 October 2017 when the application to rely on Ms Caffery was made, already refused the Chief Constable permission to rely on a use of force expert, to have allowed the Claimant’s application would have led to the re-opening of the whole issue. The Chief Constable might have decided to commission a full report from Mr Clarke, which would likely have delayed matters for a considerable period. In the circumstances, it was reasonably open to the LQC to give primacy to the need to begin the hearing expeditiously in circumstances where he

In light of this, the LQC’s decision to refuse the application seems to me to have been an unremarkable exercise of his case management powers which lay well within the bounds of what was reasonable, given all the circumstances.

Further and in any event, I do not consider that the expert’s report was admissible or that it would have assisted the Claimant. Ms Checa-Dover was correct in substance when she argued at [7] of her written opposition to the Claimant’s application:

“… the Officer’s case is that he cannot remember kicking out as he is seen to do on CCTV. A report citing all the reasons why one might have done so is not only irrelevant, and thus in admissible as a matter of common law; but also inviting dangerous and impermissible speculation.”

The expert, Joanne Caffrey’s, instructions were to (see report, [1]):

“1.

… provide [an] opinion on the use of force incident ‘to consider the CCTV footage of the incident and, if possible, provide a foundation as to the circumstances in which you might use a leg to sweep or kick someone’s legs away.’”

At [3.11] she listed her experience and qualifications. These included being a former police officer and member of the TSG who had conducted many stop and search incidents, arrests and violent incidents. She had current teaching experience in the use of force, stop and search, and managing challenging behaviour, along with associated risk assessments and care plans. As a general matter, I accept that Ms Caffrey was a properly qualified expert.

Section 5 of the report is headed ‘Expert’s Summary Opinion’. Ms Caffrey’s summary conclusions at [5.1.3]-[5.1.4], [5.1.6] were (emphasis added):

“5.1.3

I witnessed on the CCTV at least 5 leg sweeps/kicks, by what appears to be 3 or more different officers, being deployed during the incident. From the distance of the CCTV, and the vehicle obstruction, they could be for leg sweeping/kicking to assist with body positioning to gain control, to assist to move or control a limb, for the defence of another person, to activate a nerve point, to move an article on the ground, or for malicious purposes. It is also reasonable that such physical movements, during physical incidents, could be unconsciously applied as natural and instinctive responses, meaning the officers may not be conscious of the fact they did the act. Due to the fact that at least 5 kick/sweeps were deployed by officers indicates this is not an unusual tactical option in this policing area, and kicks, as a tactical option, are specifically listed in module 2 of the personal safety manual, ‘accounting for your actions aide memoir. I am unable to describe, or identify, any of the officers based upon the qualified of the CCTV footage.

…

5.1.4

In my opinion, it is possible for a person to have no recollection of a particular movement during a physical intervention activity, particularly if it was not applied with malicious intent. I speak to many professional staff, in my current role, who have no recollection of what actions they applied during behaviour and restraint incidents, and it is purely on the information from witnesses or CCTV that they accept they used particular methods.

5.1.6

In my opinion, I cannot form the opinion, beyond reasonable doubt, that I have witnessed a malicious kick of a detainee from the CCTV footage, but I have witnessed the use of legs, against the detainee, on at least five occasions by at least 3 different officers. Each leg use has been during a struggle or immediately after going to ground. The last leg use being at 5 minutes and 52 seconds (edited copy), immediately upon 2 officers taking the detainee back to the ground by force and he is not under fully under control. This could have been an officer attempting to immobilize, or contain, a limb prior to bending down to take hold of it, out of personal safety tactical options.”

Although Ms Caffrey refers to a ‘kick/sweep’, of the officers who were present who were shown the CCTV of the Claimant’s actions, none of them described it as a ‘sweep’ but said it looked like a ‘kick’.

In Section 6 of her report, Ms Caffrey summarised parts of the College of Policing’s Police Personal Safety Manual. At [6.6] she said:

“6.6

… By 5 minutes 52 seconds, on the CCTV enhanced copy, the fifth use of legs by officers is deployed against the detainee (sic) and it is clear that by this time the detainee is still not fully under control by the officers. In their accounts the level of threat from the detainee remained high throughout the incident. The detainee is hand-cuffed and two other officers are present, however, they are struggling to keep him detained. Although a general principle would be that is now handcuffed and does not need additional use of force, the reality has to be assessed via the officers’ assessment of risk and threat, and application of the tactical options available. The officers formed the opinion that leg restraints were necessary. A multiple kicking/sweep at this point may indicate the possibility of malice, but a single kick/leg sweep in the circumstances of no clear footage, and no challenge raised from the other officers’ present, could be reasonable in the circumstances as a tactual option.”

Essentially, that was the extent of her report.

The general rule is that expert evidence is admissible to furnish the court with information which is likely to be outside the experience and knowledge of the fact-

In my judgment that aptly described the situation here. The Panel had CCTV footage of the incident. It had the Claimant’s account as given in his two interviews, including his claimed inability in the first interview to recognise himself whilst being able to identify other officers, and his overall inability to account for his actions. In due course he gave evidence. I can readily assume that the Panel, expert in policing matters as it was, would be familiar with the fact that police officers are allowed to use reasonable force in the course of an arrest, and that that force can include, on occasion, the use of a leg to sweep a detainee’s legs from under them, or otherwise lawfully to control them. In the absence of any positive account from the Claimant, Ms Caffrey was necessarily driven to speculate; and even she could not rule out from what she had seen that the kick was a malicious one. It is therefore not difficult to surmise on what basis she would have been cross-examined. It would have been put to her that one possibility was that the Claimant had maliciously kicked Mr Hague. She would have been bound to agree, and that answer would not have helped the Claimant’s case.

I note that the final sentence of [5.1.6] is significantly at odds with the evidence the Claimant was to give to the Panel, which was to the effect he might have been scooping something on the floor out of the way, eg glass, to stop Mr Hague from being injured (p304 of 345), but that he did not know what he had done.

Nor was her opinion about inability to remember in [5.1.4] of any assistance to the Claimant. That is because of the last sentence where she said that she had spoken to many professional staff who had no recollection of what actions they applied (emphasis added), ‘…and it is purely on the information from witnesses or CCTV that they accept they used particular methods.’ Here, of course, even when shown the CCTV, the Claimant could not account for his actions, a matter which the Panel found telling on the issue of his credibility (Determination, [31]). At [32] it noted that PC Hunter, when shown the CCTV had been able to identify what he had done as a distraction strike.

Her opinion in [6.6] is again undermined by the fact that there was no evidence from the Claimant about why he did what he did, and hence no evidence about what his assessment of risk and threat was, nor what he thought the tactical options available were. There was, accordingly, nothing solid on which the Ms Caffrey could have based her opinion. What she said was, therefore, necessarily speculation.

For these reasons, her report was not admissible. Even had it had been deployed, it would have provided little or no assistance to the Claimant and might have positively harmed his case.

I therefore conclude, overall, that the LQC’s decision to exclude Ms Caffrey’s report was not unreasonable and did not cause unfairness to the Claimant within Rule 4(4)(a)(c) of the Appeal Rules. Further, although his decision was briefly stated, I readily understand why the Chair ruled as he did, and his conclusion that an appeal on this ground had no prospects of success was not wrong in public law terms.

I therefore reject this ground of appeal.

In my judgment the Panel’s conclusion on this issue was obviously reasonable within the meaning of Rule 4(4)(a) of the Appeal Rules, and the Chair’s decision that an appeal against it had no prospects of success was not Wednesbury unreasonable. Therefore, like His Honour Judge Saffman, I refuse permission on this ground.

The assessment of the Claimant’s credibility, and whether the Chief Constable had proved that he was not genuinely telling the truth as he honestly believed it to be in his first interview, was classically one for the Panel. They heard the evidence and, in particular, saw and heard the Claimant give evidence and be cross-examined (Bundle, p265 of 345, et seq).

The Claimant said in his evidence in chief (Bundle, p277 of 345):

“Q. That you have gone over to him and have in lay mans terms delivered the boot to him.

A. Yeah

Q. Do you have any memory of doing that at all ?

A. No I don’t.

Q. Would you have delivered a boot to him ?

A. That’s not something I would do. I have never done anything like that. I am confident I would not have done it.

Q. We know now that having seen the footage, the enhanced footage a number of times, that you now say well actually that is me.

A. Yeah I accept that it must be me from what evidence has been presented yeah.

Q. Doe having seen that footage assist you with any recollection of you carrying out …

A. It doesn’t show, I don’t watch it and remember doing that,

that act at all no.” 128. At p281-2 of 345 he said:

“Q. And you said in the first interview … A.It wasn’t me.

Q. It wasn’t you. Why was it you said that ?

A. Because that’s what I remembered.

…

Q. Did you know at the time you were not being accurate about that ?

A. No no I told them what I thought was the truth at the time.” 129. At p284 of 345 he said in cross-examination:

“A. … I have never taken a kick at somebody as a malicious kick no.”

At p296 of 345 it was put to him that in his Use of Force form completed on the day he had mentioned the dog but not the kick:

“A. No because I didn’t remember it at the time.”

At p298 of 345 it was put to him that when shown the CCTV in his first interview he had not said that he was not sure whether the officer in question was him or not, but had positively asserted that it was not him. He replied:

“A.

I thought I was sure, I was sure that I wasn’t involved in that.”

At p304-3 of 345 after giving various reasons what the movement of his leg might have been (to scoop something off the floor; to sweep something away that might have injured Mr Hague, eg, glass on the floor) he said, ‘I don’t know if that’s what I did.’

The issue for the Panel was a straightforward one. In essence, it was whether the Chief Constable had proved that this account was not true.

The Panel’s reasoning between [36] and [44] of its determination demonstrates that it properly understood what the issues before it were. Its reasoning was that even in its unenhanced state the CCTV was good enough for the Claimant to have been able identify himself, and especially when he admitted the officer shown ‘walk[ed] like him to a degree.’. It concluded that in his first interview he ‘was trying to advance an innocent explanation for events contrary to the reality’ ([41]) and that ‘he deliberately tried to evade his responsibility for his actions and knowingly provided inaccurate replies’ ([43]).

These conclusions were reasonably open to the Panel on the material before it.

I do not accept the criticisms of the Panel’s decision in [33] of the Claimant’s Skeleton Argument at [33]. In particular, contrary to what is asserted in [33.2], it is clear why the Panel reached the conclusion that it did. It was that the unenhanced CCTV was a good enough prompt for him to be able to remember, even assuming that he initially could not remember events. It noted at [32] that PC Hunter, who also initially could not remember, was successfully prompted by the CCTV to recall that he had delivered a distraction strike. That I think answers the point Mr Pitter emphasised in his oral submissions, that other officers besides the Claimant could not remember what they did during the incident. The difference was that PC Hunter at

Also, I do not regard it as realistic that the Panel would have, or did, fail to have regard, for example, to the passage of time from the incident to the date of the first interview. The fact that time had passed, and in the interim the Claimant had carried out many arrests, was specifically referred to in his reg 22 response at [3.2].

For these reasons, this application for judicial review is dismissed.