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.

A consultant was charged with unprofessional conduct before a professional conduct committee, which found the misconduct proved. At the sanction hearing (13 months later), the prosecuting authority presented petitions from various organisations calling for the consultant to be struck-off. The panel dismissed the consultant’s request, which asked if two panel members were members of those organisations, and sought to proceed. It transpired that one of the panel members was such a member but claimed that he had not participated in the petitions. The panel dismissed a recusal application.

The consultant applied to the High Court for an injunction against the continuance of the hearing and for judicial review of the decision by the panel to dismiss the recusal application. The High Court held that the consultant was required to exhaust his internal remedy of appeal and that the application for judicial review was premature. It relied on section 7(2) of the Promotion of Administrative Justice Act 3 of 2000, which provided that there should be no review unless an internal remedy was exhausted, save in exceptional circumstances - of which there were none.

The Supreme Court of Appeal disagreed. 

The complaint was not merely that the finding of the panel was an irregularity committed by an otherwise competent tribunal but that it lacked competence from the outset, due to perceived or actual bias. By virtue of its composition, it could not exercise jurisdiction over him. It was not, therefore, merely a case where the committee acted wrongly within its jurisdiction – it had no jurisdiction from the outset.

The appellant was entitled to fairness at every stage in the proceedings. The judgment referred with approval to the English case of Leary v National Union of Vehicle Builders [1971] Ch 34 at 39 wherein Megarry J held that, "If the rules and the law combine to give the member the right to a fair trial and the right of appeal, why should he be told that he ought to be satisfied with an unjust trial and a fair appeal?"

Further, insofar as the application for recusal went to the jurisdiction of the first-instance panel, the statutory appellate tribunal exercised no original jurisdiction and could not set aside the first instance proceedings. Its powers were limited to varying, confirming or setting aside a finding. Additionally, if the panel should have recused themselves, the proceedings would be a nullity, as would be any appellate proceedings, which would similarly lack jurisdiction.

A concurring judgment reaching the same decision by a different route noted that a penalty that the panel imposed would remain effective until the appeal was finalised. Such a penalty (striking-off) would cause irreparable harm to the consultant’s practice. Further, the sanction would have to be imposed by the same persons that the consultant wanted to be recused. He would suffer the exercise of drastic powers by persons whose decisions might be found to be a nullity, after a hearing that should never have taken place. Immediate judicial consideration of the same would, therefore, be justified.

Accordingly, the consultant was granted the right to seek judicial review before exhausting his internal statutory remedies.

The particular enactments in South Africa, the law on availability of judicial review and the powers of the appellate tribunal are different to those which apply in England and Wales. The case of Leary has also received its own treatment in English courts. Nevertheless, the South African court articulated powerful points of principle concerning the availability of judicial review where perceived or actual bias may exist – and should be of interest to misconduct practitioners.