Police Law Blog European Decisions Statutory Materials

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

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

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 The Police (Conduct) Regulations 2012 reg 33 [beware that the linked statutory instrument is now out of date, but not on this particular regulation] provides that a legally qualified chair (LQC) may adjourn the hearing in particular circumstances: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.

Practical consequences of misconduct panel liability for discrimination

What are the practical consequences of the removal of judicial immunity for police misconduct panels in discrimination cases? This article considers the acts that give rise to a cause of action, the common scenarios in which these could arise and the practical steps to take to address or avoid such issues.

In P v Comr of Police of the Metropolis [2017] UKSC 65, the Supreme Court held that the Chief Constable was vicariously liable for decisions of (old style) police misconduct hearing panels where they make decisions which amount to discrimination contrary to Equality Act 2010, where this transposes the causes of action stated in the Framework Directive.

As we have said previously, the effect of the decision in P is limited to those causes of action which derive from EU law. It can have no application to, for example, whistleblowing claims are purely a matter of English law, not derived from EU directives. Furthermore, it may be that a careful reading of the appropriate Directive may provide a ‘get out’ clause if the right being asserted in the employment tribunal does not derive from EU law.

Update on the amended Police Conduct Regulations – resigned to a hearing?

The Police (Conduct, Complaints and Misconduct and Appeal Tribunal) (Amendment) Regulations 2017 came into force on 15th December 2017 and have made a number of important changes to police misconduct procedures. The four central changes to be aware of are:

a. The removal of the need for officers under investigation to obtain the consent of the Appropriate Authority before resigning or retiring;

b. The introduction of a new procedure to proceed with misconduct investigations and hearings notwithstanding that the officer concerned has left the police service;

c. A new power to misconduct hearing panel Chairs to provide information relevant to the barred list; and

d. An amendment to the Police Appeals Tribunals Rules 2012, allowing former officers to appeal against the findings of a misconduct panel.

Selection of Legally Qualified Chairs in misconduct hearings

A short post on a change in the Home Office Guidance. It now states that the selection of LQCs should be on a “fair and transparent basis”. Good practice will be selection through a “rota system”. A rota system may not necessarily work with LQCs’ other professional commitments. Often, appropriate authorities will inform all LQCs of a hearing and select them on a ‘first-come, first-served’ basis. That said, if more than one LQC responds, there is no reason why a rota system cannot then apply. Note, also, that the Guidance suggests that the manner of selection should be made clear to all parties to the hearing, which really means the respondent officer(s).

The relevant part of the HO Guidance is as follows: [emphasis added]

2.215. The appropriate authority is responsible for appointing all three panel members. The LQC must be chosen from a list of candidates which is selected and maintained by the local policing body through the process described in Annex F. The appropriate authority should select the LQC at the earliest opportunity following the decision to refer to misconduct proceedings. In accordance with procedural fairness and principles of natural justice, the selection of the LQC should be on a fair and transparent basis. Good practice will be selection through a rota system by which the next available LQC is selected for the next hearing. Bad practice will be to select on the basis of which LQC will be more likely to give the verdict required. The manner of selection should be made clear to all parties to the hearing.