In R (Short) v (1) Police Misconduct Tribunal (2) Chief Constable of Bedfordshire Police  EWHC 385 (Admin), Mr Justice Saini delivered a resounding reaffirmation that misconduct hearing panels are well able to put irrelevant and prejudicial matters out of their minds rather than having to recuse themselves and that they are able to determine their own procedures, just like civil courts and tribunals.
On 4 November 2013, Mr Leon Briggs was detained under section 136 of the Mental Health Act 1983. He was first physically restrained on the street and then subsequently transferred to a custody suite, where he was further restrained. Whilst in custody, Mr Briggs became unresponsive. He was conveyed to hospital, at which he died. The Independent Police Complaints Commission, now the Independent Office for Police Conduct (IOPC), investigated the matter and directed Bedfordshire Police to bring gross misconduct proceedings against six officers.
The misconduct proceedings were due to begin on 3 February 2020, over six years after Mr Briggs’ death. Prior to the commencement of those proceedings, counsel for the six officers sought recusal of the Legally Qualified Chair (LQC) and, subsequently, the entire panel. This was on the basis that the LQC had read irrelevant documents giving rise to real prejudice, such that a fair-minded and informed observer would conclude that there was a real possibility of bias. The LQC ordered that the application be determined on the papers, which application the panel subsequently dismissed.
The officers sought judicial review against this decision, together with an application for urgent injunctive relief to stay the proceedings pending its resolution. The High Court dismissed the application after a rolled up hearing.
Availability of alternative statutory remedy
As the Judge was required to first determine permission, he considered whether the Police Appeals Tribunal (PAT) constituted an available statutory appeal procedure so as to defeat the application: i.e. was there a suitable alternative remedy. Saini J unhesitatingly found that there was.
Saini J held that the “entire police misconduct process is a creature of statute and there are protections for the Claimants at every stage of that process” . The availability of a statutory appeal process was determined to be fatal to the Claimants’ claim, in this instance. The statutory process was “sufficiently robust” to address all of the issues raised, including but not limited to the argument made in respect of apparent bias which would “would fall squarely” within the regime provided by the PAT .
But what about exceptional circumstances?
Saini J considered whether this was an exceptional case, considering R v Chief Constable of Merseyside Police exp Calveley  QB 424; R v Chief Constable of Merseyside Police ex p Merrill 1 WLR 1077 and R (Wilkinson) v Chief Constable of West Yorkshire  EWHC 2353 (Admin). He held that the instant case could be readily distinguished and that the admission of prejudicial evidence would rarely meet the threshold of exceptionality :
“There is nothing exceptional about the fact that a preliminary legal argument has been determined against a party. It is a common occurrence in all forms of litigation. It is regularly the case that in courts and tribunals decisions concerning admissibility of evidence, in particular evidence which may be contended to be prejudicial, are made contrary to the arguments of a particular party. It would be surprising if that fact alone gave rise to exceptional circumstances.”
Whereas the three considered cases, if successful, would have brought an end to the misconduct proceedings; in the instant case, the application would have brought “simply… delay not finality” . Hearing length and costs also did not give rise to exceptional circumstances .
No appearance of bias
Mr Justice Saini determined that in fact, the Claimants were unable to show that the panel members should have recused themselves for the following reasons:
- The cases of R (Mahfouz) v GMC  EWCA Civ 233 and Subramanian v GMC  UKPC 64;  Lloyd’s Rep Med 69, demonstrated that a professional panel was well capable of putting irrelevant and/or prejudicial matters out of their mind -;
- In this instance, the panel consisted of a legally qualified chair, retired magistrate and a senior police officer, all of whom were all “well-placed to identify and ignore irrelevant and inadmissible material” ;
- It was likely to be a common occurrence that irrelevant, inadmissible or prejudicial material would be read or heard, but the court could be confident that, in approaching their task professionally, the panel members would be able to put such material out of their minds ;
Saini J stated that he came to his conclusion on an assumption most favourable to the Claimants, i.e. that the entire panel had read all of the controversial documents which were capable of giving rise to prejudice (in fact, only the LQC had read some of the documents in question, which the Chief Constable submitted were arguably both detrimental and supportive of the officers. The strength with which Saini J stated that the panel was well capable of ignoring irrelevant and prejudicial material was expressed by his saying that application for recusal was not even arguable :
“…even if the officers were in a position to prove prejudice arising out of the contents of the documents (contrary to my own views) the test for apparent bias justifying recusal was not met. I would go so far as to say that the submission that the test for justifying recusal was met was not even, in my view, arguable on the basis of the factual material and the authorities.” [emphasis added]
Furthermore, Saini J held that the LQC’s decision to deal with the application on paper allowed for a process that was “conspicuously fair”  and having “struck the appropriate balance” between the interests of the officers on the one hand and those of the public and the deceased’s family for the matter to be heard without further undue delay, on the other .
Duty of candour and costs
The final health warning is in respect of the duty of candour. Saini J concluded his judgment with some fairly strong comments as to the claimants’ conduct. The IOPC had drafted a pre-action letter of response which the claimants had not put before the court when applying for temporary injunctive relief. Saini J held it to be “wholly unacceptable” for them not to put that letter before the court, unusually awarded costs to both the Chief Constable and the IOPC and indicated that he would entertain a written application for costs to be awarded on an indemnity basis.
This judgment from a judge who was a public law specialist at the bar confirms important points of principle. Namely, that misconduct hearing panels are analogous to civil tribunals rather than criminal juries and so are properly able to put prejudicial material out of their minds. Recall that Saini J said that the application for recusal, assuming all the facts in favour of the claimants at their highest, was “not even… arguable”.
The key points of this judgment are, therefore, as follows:
- The PAT will be considered an available alternative statutory remedy, unless exceptional circumstances apply;
- The fact that a preliminary legal argument regarding admissibility and/or prejudice has been decided against a party is not exceptional, it is commonplace;
- Where a police misconduct tribunal has seen prejudicial material, it is likely that the members will be able put such matters out of their mind;
- Moreover, this is in circumstances where it is likely to be a common occurrence that inadmissible, irrelevant and prejudicial material will be read or heard;
- The duty of candour is especially important and applies to Claimants in urgent applications for judicial review and interim relief.