By Oliver Williamson (who appeared in this case with John Beggs QC)
The Administrative Court has given important guidance on the interpretation of Regulation 21 of the Police (Conduct) Regulations 2008 in R (Bonnard) v Drusilla Sharpling & Cleveland Police Authority  EWHC B24 (Admin).
Regulation 21 of the 2008 Regulations is replicated in the Police (Conduct) Regulations 2012, so the law in this case is applicable to the 2012 Regulations.
The Claimant in this case was Mr Bonnard, who is the serving (but suspended) Deputy Chief Constable of Cleveland Police (“CP”). He had been charged by the Cleveland Police Authority (”CPA”) with gross misconduct. A misconduct hearing had been scheduled to start one working day after the urgent application that gave rise to this judgment and the Claimant was seeking an order staying timetabling decisions of the Chair of the misconduct panel (the Defendant) until further order (necessarily adjourning the impending misconduct hearing). The application was opposed by the CPA.
On 8 November 2012 the Panel Chair gave directions for the conduct of the proceedings that included a decision that the Claimant was required to provide his response to the allegations against him by 14 November 2012 and a decision that the hearing should begin on 20 November 2012. It was those directions which the Claimant sought to challenge by way of judicial review and asked the Court to stay.
When a police officer is referred to misconduct proceedings Regulation 21(1) requires the appropriate authority to give the officer, as soon as practicable:
“(a) written notice of –
(i) the referral;
(ii) the conduct that is the subject matter of the case and how that conduct is alleged to amount to misconduct or gross misconduct as the case may be;
(iii) the name of the person appointed to…conduct or…chair the misconduct proceedings…
(b) a copy of any statement he may have made to the investigator during the course of the investigation; and
(c) subject to the harm test, a copy of –
(i) the investigator’s report or such parts of that report as relate to him (together with any document attached to or referred to in that report as relates to him); and
(ii) any other relevant document gathered during the course of the investigation.”
Regulation 22(1) provides that before the end of 14 working days beginning with the first working day after ‘the documents’ have been supplied to the officer concerned under Regulation 21(1), the officer concerned shall, essentially, state whether he admits any of the allegations and insofar as he disputes them set out his case in answer. There is provision in Regulation 22(1)(b) for the period to be extended by the Chair for exceptional circumstances.
Regulation 24 requires the misconduct hearing to take place 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). Under regulation 24(2) the Chair may extend the period where he considers that it would be in the interests of justice to do so.
Thus the basic structure of the timetable as dictated by the Regulations (2008 and 2012) is that time for service of a response to the allegations, and for the hearing, is set by reference to the date when “the documents have been supplied to the officer concerned under Regulation 21(1)“ (albeit that the Chair has power to extend that time).
Leggatt J found that the Claimant had a strongly arguable case (and on which point he would give permission to claim judicial review) on one point, namely the question of when time started to run for the purposes both of Regulation 22(1) and 24(1).
The Judge held that as a matter of ordinary language the term “the documents” encompassed the written notice as required by 21(1)(a) and the copy of the statement referred to in 21(1)(b) and the documents attached to the report and other relevant documents referred to in 21(1)(c). The phrase “the documents“ must refer to all the documents to be given in writing pursuant to Regulation 21(1) whether mere notices or actual disclosure materials.
This underscores the importance of compliance by the appropriate authority with regulation 21(1) in full if time is to start running against the accused officer.
Fortunately for Professional Standards Departments, the Court emphasised that a purposive interpretation must be given to the Regulations in order to give reasonable sense to them and to make them workable in practice. References in Regulations 22 and 24 to supplying the documents under Regulation 21(1) must be understood as requiring substantial compliance with that provision and, provided there has been substantial compliance, time begins to run under those later Regulations.
Leggatt J held that “substantial compliance” meant compliance sufficient to enable the officer fairly to understand the case that he has to meet and to be in a position without unfairness to prepare his response to the allegations and to participate in a misconduct hearing.
The question of whether there has been substantial compliance in that sense necessarily involves a value judgment. Leggatt J unsurprisingly decided that the Court was not well placed to make the necessary assessment and that the Chair of the panel was better placed to assess the sufficiency of the provision of documentation and whether there had been substantial compliance.
In conclusion and on a (necessarily) provisional assessment (since this was a permission hearing where “arguability” was the test) the Court held that the decisions which were taken by the Chair were taken on an incorrect legal basis because the Chair did not consider whether the notice that had been given of the case against the officer was sufficient to enable him fairly to respond to it.
Further, the Chair did not expressly decide whether the documentation provided was sufficient fairly to enable the officer to prepare his response and participate in a hearing.
The Court granted a stay of the decisions taken by the Chair and observed that it was for the Chair to give fresh consideration to the appropriate timetable and to determine afresh the appropriate dates, (1) for service of the response and (2) for the hearing, having regard to Leggatt J’s guidance as to interpretation.
This decision has afforded helpful guidance to all those concerned with police misconduct proceedings.
The question of when time starts to run for the purposes both of Regulations 22(1) and 24(1) is determined by reference to the time when all the documents – including the “notices” – referred to in sub-sections (a) to (c) inclusive of Regulation 21(1) have been provided. This is significant since it means that if, to take the example that prevailed in this case, there is any delay in identifying even the Chair of the panel, then time will not start to run for the purposes of regulations 22 and 24.
Supplying disclosure documentation does not require each and every document to be provided but it does require that the officer be provided with documentation sufficient to enable him fairly to understand the case he has to meet and to be in a position to prepare his response to the allegations and to participate in a misconduct hearing without unfairness. Fairness was, and remains, the overriding principle.
In respect of particularity of misconduct charges, Leggatt J stated that a distinction can be drawn between a case where adequate notice has been given to enable a response to be prepared but further particulars are desirable; and a case in which the first and fundamental requirement of adequate notice has not been met. It was unclear to the Court which view of the matter the Chair took in the instant case.
Leggatt J also held that Regulation 24(4) obliged the Chair of a misconduct panel to consult with the officer about the hearing date, albeit that such consultation is circumscribed by the balance of Regulation 24.
The decision offered a further example of the pitfalls contained within the 2008 Regulations (which are for all practical purposes emulated in the Police (Conduct) Regulations 2012) and provided yet further criticism of the inelegant wording and untidy drafting of the Regulations (Leggatt J observing “that the Regulations are not happily drafted and that the term “document” appears to have a different meaning in Regulation 21(1)(c) from the meaning that it has in Regulations 22(1) and 24(1)”).