A recent decision from the High Court in Chief Constable of Thames Valley v Police Misconduct Panel [2017] EWHC 923 (Admin) says that misconduct panels can now be judicially reviewed by Chief Constables - but gives rise to a number of new and potentially awkward questions.

Whether a Chief Constable had standing to apply for judicial review against a decision of a misconduct hearing panel had not, until now, been a question that anyone wanted to ask.  Before the recent advent of legally qualified chairs, hearing were presided-over by either an Assistant Chief Constable (ACC) or a Deputy Chief Constable. Plainly, it would have been (almost) unthinkable for a Chief Constable to seek to bring a judicial review against a decision that one of their own chief officers had made. 

Sometimes, of course, the question arose when a panel was chaired by an ACC from another force. In the main, however, no-one every seriously contemplated the Chief Constable challenging a police misconduct hearing chaired by a chief officer.

That changed, however, with the advent of legally qualified chairs (LQCs). No longer was it necessary for a panel to have a chief officer. A number of forces, for understandable operational reasons, now deploy only officers of superintendent rank to panels, as is permitted. Your writer’s view is that if police forces wish to have real influence in hearings then the most effective way of achieving this is by having an ACC on the panel. That is, however, a different point.

For better or for worse, Chief Constables consider that they have reduced power to control standards in their own force and of sometimes being at odds with the decisions of misconduct hearing panels.  The need to have a chief officer on the panel is particularly important in hearings turning on the appropriate standard and thresholds for gross misconduct, rather than factual disputes about whether the officer acted as alleged.  

As a consequence, the very real issue has started to arise of Chief Constables wanting to challenge the decisions of misconduct hearing panels. It is perhaps due to a chief officer’s previous role in chairing such panels that the Chief Constable did not have the right to appeal to the Police Appeals Tribunal. This lack of power has not, however, changed with the advent of LQCs. If, therefore, a panel chaired by a LQC were to make a decision that the Chief Constable considered was unlawful or irrational, the only available route (subject to any possible powers of a panel to re-open its decision, the existence of which is not considered here) is that of judicial review.

The rub, however, has thought to lie in the very nature of the panels. The Police (Conduct) Regulations 2012 require the Chief Constable, as the appropriate authority, to investigate the case, present it and determine it. In order to do so, it was previously thought that the Chief Constable delegated his powers to different officers to perform these functions. An ACC or DCC chair when performing this role of a panel chair would, it was thought, previously have acted with the delegated authority of the Chief Constable. Whereas in fast-track hearings, the Chief chairs the hearing himself. It follows, therefore, that when police officers subject to misconduct proceedings previously sought to bring judicial review applications against decisions of a misconduct hearing panel, the defendant was the Chief Constable of the relevant force.

The question that Chief Constables found themselves asking with the advent of LQCs was, if they were to bring an application for judicial review, who the Defendant would be. A public body cannot be both the Claimant and the Defendant in an application for judicial review. However, it has always been the case that a member of a public body could bring a claim against it with that body’s authority.

A recent example of this in the police misconduct sphere is the matter of R (Chief Executive of the IPCC) v IPCC [2016] EWHC 2993 (Admin); [2016] Inquest LR 302. In that case, the IPCC Chief Executive applied for judicial review of the IPCC’s own decision that police officers had no case to answer in gross misconduct in respect of a person’s death. The challenge to the application came from the interested parties. So, as the judgment said at paragraph 8:

… we have the unusual situation that the claimant in this case is the chief executive of the defendant, IPCC, both of whom wish the investigation to be quashed. They were represented by the same counsel…

Although the circumstances and nature of the decisions taken are very different, nevertheless, it might have been thought uncontroversial that a Chief Constable could bring an application for judicial review against a decision of a misconduct hearing panel, where it was chaired by an LQC. The Claimant would be the Chief Constable and the Defendant would be the panel itself. In the event, the point has now been challenged, resulting in a very briefly reasoned decision on the point.

In Chief Constable of Thames Valley v Police Misconduct Panel [2017] EWHC 923 (Admin), the Chief Constable sought judicial review of the decision of a misconduct hearing panel that misconduct charges involving a breach of the Standard of ‘Honesty and Integrity’, albeit only the integrity element, amounted to misconduct simpliciter. The Defendant was the “Police Misconduct Panel” and the defendant officer was the Interested Party. Unsurprisingly, the Defendant chose not to participate and the Interested Party fought the application.

The Interested Party contended that there was an insufficient degree of separation between the Claimant and the Defendant, submitting that the Claimant could have no standing. This is, to your writer’s knowledge, the first time that this point has been taken. He has been involved in two applications for judicial review against a misconduct hearing panel – once for an officer as the Claimant and once for the Chief Constable as an Interested Party. In neither case was any objection taken to the standing of the parties.

Back to Thames Valley, the judge, McGowan J, referred to the decision in South Staffordshire NHS Trust v The Hospital Managers of St George's Hospital [2016] EWHC 1196 (Admin); [2017] 1 WLR 1528, to hold that the Chief Constable had standing. South Staffordshire NHS Trust held that the trust had standing to seek a judicial review of its own independent panel that a mental health patient be discharged. The Court held that the panel was sufficiently independent of the delegating trust for the trust to have capacity to challenge its decision by way of judicial review.

In reaching this decision, the court in South Staffordshire NHS Trust in turn referred to R v Bassetlaw District Council ex p Oxby [1997] EWCA Civ 2960; [1998] PLCR 283, where the leader of the council sought a judicial review of his own council’s planning decision. The court there held that as the council could not be both applicant and respondent, Mr Oxby, as leader of the council, had standing to bring the application – see 292-293, as long as the right was not abused.

The Court in South Staffordshire NHS Trust further considered the situation to be analogous to a regulatory body bringing a judicial review to one of its own disciplinary committees, its noting that it was similarly separate and independent.

Commentary on the Thames Valley decision

Reviewing these authorities, it seems that McGowan J had no hesitation in finding that a Chief Constable had standing to bring a claim for judicial review against the misconduct hearing panel – given that this part of the decision was expressed in no more than two paragraphs, one of those being a citation from South Staffordshire. The reference to the judgment’s brevity is in no way a criticism.

There is one issue, however, that has been slightly glossed-over. In paragraph 31, McGowan J said that as in South Staffordshire, the panel appointed was sufficiently separate from and independent of the Chief Constable, to enable the Chief to bring a challenge by way of judicial review. There is, though, no in-depth analysis as to why the panel is sufficiently independent for this purpose.

The judgment correctly states that a panel’s composition is that of an LQC, an independent member and only one police officer. The Police and Crime Commissioner appoints the LQCs and independent members to a list, from which they can be selected to sit on and/or conduct individual hearings.

However, this ignores two points. The first is that the police officer may be an Assistant Chief Constable of the force - as it was in the Thames Valley decision. It would be surprising to say that the panel was sufficiently separate and independent of the Chief where one of his own chief officers sits on it. The argument may have less force where it is a superintendent who takes the place – but that surely creates a perverse situation where the panel is more independent, and therefore able to be judicially reviewed by a Chief Constable, the less experienced and high-powered it is.

The second is that the Chief Constable still appoints the panel – the entirety of it comprising the LQC, the independent member and the police member. There has been some disquiet at how LQCs are booked to conduct particular hearings – the potential concern of defendant officers being that if the LQC is perceived to be too independent (or lax) then the Chief Constable, in reality the Professional Standards Department, will not be keen to use them for future cases. Forces may have to take particular care to ensure an open and transparent bookings system – but that is a slightly different issue to how independent is an LQC when the prosecutor selects them and when the LQC knows that if he is too difficult then the prosecutor might not select them again.

Oddly, neither an investigator nor the person conducting an internal misconduct meeting can be an “interested party” – see reg 13(4)(b), an interested party being a person whose appointment could reasonably give rise to a concern as to whether he could act impartially under the regulations – see reg 3(1). There is no similar provision in relation to panel members for misconduct hearings, although the standards of public law fairness will apply.

These difficulties arise, in part, because police misconduct hearings do not regulate police officers per se in the manner in which the GMC regulates doctors. Instead, they are internal misconduct hearings of the force itself. The analogy is less the GMC or Solicitors Regulatory Authority rather than a disciplinary hearing conducted by an individual hospital or individual solicitors’ firm. There is no split between the regulator, investigator and tribunal – all functions are performed in theory by the Chief Constable with delegated authority. LQCs have been grafted on to the existing Conduct Regulations without much, or any, alteration to the underlying nature of misconduct hearings.

It seems to your writer that the decision of McGowan J is the only sensible one – given that a Chief Constable would have, as she states, no remedy if a panel were to act in a patently irrational and unlawful manner. That said, the reasoning to reach that point – that the panel is sufficiently separate and independent from the Chief Constable to enable him to bring a judicial review, has not been debated in the judgment and, in your writer’s view, remains a potentially live point.

Dangers for LQCs

There are a couple of related points that relate to the independence of panel chairs. In the two cases in which your writer was involved and in this case, the misconduct hearing panel was a defendant but did not take part. It is not yet clear whether the correct defendant is the LQC or the panel itself. I would have thought it would be the panel. Where a panel, in particular on the decision the LQC, does not take part or seek to be represented in the judicial review they are unlikely to have a costs award made against them: see R (Davies) v Birmingham Deputy Coroner [2004] EWCA Civ 207; [2004] 1 WLR 2739, which held that there should be no order for costs against an inferior court or tribunal unless it had behaved improperly or unreasonably or, by appearing at a judicial review hearing to contest the application being made, thereby making itself an active party to the litigation. However, it remains a possibility that in circumstances where a court considers that a panel has behaved improperly or unreasonably, a costs award could be made against it and/or the LQC.

Even trickier – most decisions are taken by a majority, such the LQC could be outvoted on a question of fact or of law. Like any other tribunal comprising a legal chair or judge and lay members, it is the tribunal that makes the findings of law. LQCs cannot give directions to the other panel members – in the same way that a judge of the employment tribunal or Employment Appeal Tribunal cannot. The panels are prohibited by reg 33(15) from indicating whether any decision was taken unanimously or by a majority. Where an LQC is outvoted and considers that their panel members have behaved improperly or unreasonably – and are prohibited from informing the parties of this, they might still be chased for costs by one of the parties for the result of their decision.

No doubt, LQCs will want to know what is their liability to a potential costs order – in particular, who would indemnify them against such an order. It is unlikely to be the Chief Constable, especially if they are the one bringing the challenge. Perhaps this is something for Police and Crime Commissioners to consider – whether it should fall to them to indemnify panels and/or to fund representation to defend panels where so advised.

The same may apply in respect of applications for witness summonses. Pursuant to Civil Procedure Rules 34.4, an LQC may apply to the High Court for such a summons to require a witness to attend a hearing. Again, the question arises as to who pays for the application. Insofar as it is the LQC and not the parties (or the misconduct hearing panel) who calls the witnesses to give live evidence, it may be that it is the LQC who must make the application and pay. Another matter, perhaps for PCCs to consider.

Finally, there remains the tricky question as to data protection and email addresses. Practitioners will be well aware of the requirement not to email documents or information to email addresses where data may be transferred to servers held outside the UK or EU. Your writer has objected more than once to documents being sent to personal email addresses of LQCs and Police Appeal Tribunal chairs. Some have professional addresses at their firms / chambers – but not all.

When material is sent to LQCs, this will likely involve a processing of data under the Data Protection Act 1998. LQCs are self-employed in that role; they are not the Chief Constable’s or PCC’s employee. They may, therefore, be a data controller – to be registered with the Information Commissioner and potentially liable for DPA breaches. If there is a breach then the LQC may be personally liable for any resulting sanction – not being indemnified by either the Chief Constable or the PCC.

Thought should perhaps be given to whether forces and LQCs are breaching the DPA when documents are sent to / received by them. Perhaps LQCs who do not already have professional email addresses and, in any event, independent members should be given secure email accounts – whether by the Chief Constable of the relevant force in which they are conducting the police misconduct hearing or the PCC for the relevant area.

Conclusion

As stated above, your writer agrees with the decision of McGowan J – although this decision may not be the end of future argument. As a consequence, thought may have to be given to just how independent LQCs are – and how they may have to be protected from the consequences of this.