Judicial review or internal appeal against bias?

Written by: Elliot Gold
Published: 8 March 2018

Where a police officer makes an unsuccessful application for a panel to recuse itself on the grounds of perceived (or actual) bias, can he apply for judicial review of the decision before exhausting his ‘internal’ right of appeal (under rule 4(4)(c) of the Police Appeals Tribunal Rules 2012)?

The law in foreign, common-law jurisdictions is different but a similar question in relation to a doctor and a misconduct panel was answered affirmatively by the Supreme Court of Appeal of South Africa in Basson v Health Professions Council of South Africa [2018] ZASCA 1.

Police liability for failures in criminal investigations

Written by: Elliot Gold
Published: 22 February 2018

The hits for the police keep on coming. The decision in Commissioner of the Metropolis v (1) DSD (2) NBV [2018] UKSC 11 confirms that the police can be liable in proceedings for a breach of Article 3’s prohibition on inhuman and degrading treatment (and possibly Article 4’s prohibition on slavery) where they fail to perform an adequate criminal investigation into alleged serious ill-treatment.

This decision was less of a surprise than Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4 – given the strength of the earlier judgments both at first instance and in the Court of Appeal. That said, it is hard to say anything other than that the courts are slowly but surely eroding out of existence the police’s ‘immunity’ from claims arising out of the performance of its core duties.

Not so fast-track! Holding a standard misconduct hearing after a quashed fast-track decision

Written by: Aaron Rathmell
Published: 13 February 2018

Where an officer is dismissed at a fast-track hearing, based upon a conviction which is then subsequently overturned, a Police Appeals Tribunal (‘PAT’) will likely allow the misconduct appeal. In such circumstances, there has been no finding on the merits in misconduct proceedings to prevent the officer from facing a subsequent standard-track hearing. So said the Court of Appeal in CC Nottinghamshire v R (Gray) [2018] EWCA Civ 34.

The appeal concerned the application of the form of res judicata known as cause of action estoppel to two hotly contested sets of police disciplinary proceedings, against a backdrop of criminal proceedings – all in respect of the same events.

When to adjourn a misconduct hearing

Written by: Elliot Gold
Published: 9 February 2018

When must a police misconduct hearing adjourn the proceedings for the attendance of the respondent officer or even a witness? The Police (Conduct) Regulations 2012 reg 33 [beware that the linked statutory instrument is now out of date, but not on this particular regulation] provides that a legally qualified chair (LQC) may adjourn the hearing in particular circumstances:

(3) Subject to paragraph (4), the person conducting or chairing the misconduct proceedings may from time to time adjourn the proceedings if it appears to him to be necessary or expedient to do so.

(4) The misconduct proceedings shall not, except in exceptional circumstances, be adjourned solely to allow the complainant or any witness or interested person to attend.

The meaning of exceptional circumstances presumably refers to circumstances that are an exception to the norm rather than those which are extraordinary. Regardless, the latest case from the Court of Appeal on adjournments in civil cases, Solanki v (1) Intercity Telecom Ltd (2) Guidinglight Finance Ltd [2018] EWCA Civ 101 is worth reading.

An assault on Hill? Police liability in negligence positively narrowed

Written by: Ian Skelt KC
Published: 8 February 2018

In Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4, the Supreme Court made significant inroads into the principle that the police cannot be sued in negligence save in exceptional circumstances as a result of alleged failures in their core operational duties. Now, where a third party such as a pedestrian is injured as a result of a negligent arrest on the street by a police officer, the police are liable in negligence where that injury was a reasonably foreseeable consequence of the police’s actions

This is the most important police law case for a generation. It goes to the heart of when a duty of care will be imposed on the police for the performance of their operational duties. The news is very bad if you are a Chief Constable. The news is very good if you are a claimant (or defendant) lawyer.