After reading our case update on Stewart & Green, one of our readers contacted the editor and brought an important, but unreported, judgment to our attention.

In R (CC Durham) v PAT and Cooper [2012] EWHC 2733 (Admin) the Adminstrative Court (Moses LJ and Hickinbottom J) gave important guidance as to the correct standard of review by the PAT when considering appeals under rule 4(4)(a) of the PAT Rules 2008. Although there are many other changes within the new PAT Rules 2012 (due to come into effect on on 22nd November 2012), rule 4(4)(a) remains unchanged.

Since this appears to be the most definitive guidance available from the Courts, it is worth setting out the relevant parts of Moses LJ’s words in full:

[3] “…[I]t is necessary to deal with the correct approach under the statutory scheme that the Police Appeals Tribunal should take [before it reverses the decision of the misconduct panel] since, as I understand it, there have been disagreements between various courts considering the matter. In my view, there should be no difficulty about it.

[4]     The starting point must be the statutory scheme. The Secretary of State is required to make rules specifying the cases in which a member of a police force may appeal to a Police Appeals Tribunal (see section 85(1) of the Police Act 1996). The power to make rules as to procedure is conferred by section 85(3), and schedule 6 contains further provisions relating to the conduct of the appeals. By section 85(2):

“…a police appeals tribunal may, on the determination of an appeal under this section, make an order dealing with the appellant in any way in which he could have been dealt with by the person who made the decision appealed against.”

This is amplified in schedule 6, under paragraph 7, where it is provided that an order made under section 85(2) shall take effect by way of substitution for the decision appealed against. It is important to appreciate that those entitled to sit on Police Appeals Tribunals are identified in schedule 6, paragraph 1. It is a specialist appeal tribunal.

[5]     Relevant to the question of the appropriate test are the rules made by the Secretary of State under the 1996 Act. By rule 4(4): 


“The grounds of appeal under this rule are: (a) that the finding or disciplinary action imposed was unreasonable or (b) that there is evidence that could not reasonably have been considered at the original hearing which could have materially affected the finding or decision on disciplinary action [not a rule relevant for this appeal]; (c) that there was a breach of the procedures set out in the conduct regulations, the Police Complaints and Misconduct Regulations 2004, schedule 3 to the Police Reform Act 2002; (d) or other unfairness which could have materially affected the finding or decision on disciplinary action.”

It will readily be seen that the grounds under 4(a)-(c) may overlap, in that unfairness may lead to an unreasonable conclusion.

[6]     The imposition of a test which asks whether the decision of the misconduct panel was unreasonable has led some to take the view that that imported a test of Wednesbury unreasonableness, a test appropriate to that applied by this court in questions of public law. That, in my view, is erroneous. As many courts have concluded before this court, the test is not one of Wednesbury unreasonableness. Firstly, the test must be seen in its correct statutory context, namely that of a specialist appeal tribunal considering the decision of a misconduct panel. A Wednesbury unreasonableness test is that test which is conventionally adopted where courts review decisions of the executive or expert panels; it is in such cases necessary to impose a high standard before intervention, so that the courts do not merely substitute inexpert views for those on whom primarily the responsibility of making a decision lies. Secondly, the appeal panel is itself an expert panel, as this case fully demonstrates. The Chairman of the panel in the instant case was a highly experienced QC practising in the field of criminal law, and herself one of the most experienced Chairs of Police Appeals Tribunals.

[7]     It follows therefore, to my mind, that the test imposed by the rules is not the Wednesbury test but is something less. That does not mean that the appeal tribunal is entitled to substitute its own view for that of the misconduct hearing panel, unless and until it has already reached the view, for example, that the finding was unreasonable. Nor, I should emphasise, is the Police Appeals Tribunal entitled, unless it has already found that the previous decision was unreasonable, to substitute its own approach. It is commonplace to observe that different and opposing conclusions can each be reasonable. The different views as to approach and as to the weight to be given to facts may all of them be reasonable, and different views may be taken as to the relevance of different sets of facts, all of which may be reasonable. The Police Appeals Tribunal is only allowed and permitted to substitute its own views once it has concluded either that the approach was unreasonable, or that the conclusions of fact were unreasonable. None of what I say is revolutionary or new.

[8]     If authority is required for those propositions, it is to be found in the judgment of Lightman J in a different statutory context, namely that of the Dart Harbor and Navigation Authority Act 1975 in R (Dart Harbor and Navigational Authority) v Secretary of State for Transport, Local Government and the Regions [2003] EWHC 149 (Admin), and in a number of decisions of Collins J, notable amongst which is his more recent decision in R (Montgomery) v Police Appeals Tribunal and the Commissioner of Police of the Metropolis [2012] EWHC 936 (Admin)….”

Commentary

The Administrative Court’s decision in Cooper makes it is clear in an appeal to the PAT under rule 4(4)(a) of the PAT Rules 2008 (unchanged in the 2012 regime):

  • The PAT can only substitute a finding where the misconduct panel’s finding was “unreasonable”
  • The word “unreasonable” does not connote a Wednesbury unreasonableness (or irrationality) test but “something less”
  • In any case there will be a range of decisions that a misconduct panel could have reached that could all be characterised as “reasonable”. It is not enough that the PAT would not have reached the same decision as the misconduct panel.

It is suggested that the test in rule 4(4)(a) of the PAT Rules 2008 is something akin the “range of reasonable responses” test applied by the Employment Tribunals when deciding whether a dismissal for gross misconduct was fair under s.94 of the Employment Rights Act 1996. Under s.98(4)(a) of that Act, the Employment Tribunal must ask whether the employer acted reasonably or unreasonably in treating the gross misconduct as sufficient to warrant dismissal. In Milton Keynes Council v Orr [2011] EWCA 62 the Court of Appeal provided a compendious summary of the caselaw interpreting s.98. The following parts of that summary at [78] are potentially relevant to an analysis of rule 4(4)(a) of the PAT Rules 2008:

“(5) In applying [s.98(4)(a)], the ET must decide on the reasonableness of the employer’s decision to dismiss ….. (6) In doing the exercise set out at (5), the ET must consider, by the objective standards of the hypothetical reasonable employer, rather than by reference to its own subjective views, whether the employer has acted within a “band or range of reasonable responses” to the particular misconduct found of the particular employee. If it has, then the employer’s decision to dismiss will be reasonable. But that is not the same thing as saying that a decision of an employer to dismiss will only be regarded as unreasonable if it is shown to be perverse.(7) The ET must not simply consider whether they think that the dismissal was fair and thereby substitute their decision as to what was the right course to adopt for that of the employer. The ET must determine whether the decision of the employer to dismiss the employee fell within the band of reasonable responses which “a reasonable employer might have adopted”.”

In Orr the Aikens LJ observed at [78] that “[t]he case law on the interpretation and application of what is now section 98 and its predecessors is vast; indeed, it could be said that the section has become encrusted with case law.” It is hoped that, after the Administartive Court’s decision in Cooper, rule 4(4)(a) of the PAT Rules 2008/2012 does not suffer the same fate.