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.
Facts
By way of brief summary, a police officer was accused of sexual assault and rape. He was convicted in the Crown Court. Unsurprisingly, he was then dismissed by his temporary Chief Constable in “fast track” misconduct proceedings. The ex-officer appealed his criminal conviction, with new evidence. The conviction was quashed, a retrial ordered. He was acquitted following retrial in the Crown Court.
The ex-officer then took the new evidence to the Police Appeals Tribunal, wanting his job back. The PAT allowed the appeal and the officer was reinstated. Importantly, the PAT had not been asked to, and did not, remit the case so that the misconduct allegations could be run again, on the basis of all the evidence, old and new.
The appropriate authority then commenced new misconduct proceedings, heard by a panel in the ordinary way. The officer submitted that this was barred by the principle of res judicata and/or was an abuse of process. The panel rejected those submissions. The allegations were proved to the civil standard and the officer was dismissed again. A new PAT rejected his appeal.
The (again) ex-officer brought a claim in the Administrative Court, where he succeeded, on the basis that there had already been a final and binding decision on the merits of the misconduct allegations.
Appeal
The idea that the officer could be reinstated and carry on in the modern police service, effectively on a technicality, having twice been dismissed for gross violations of the Standards of Professional Behaviour in respect of allegations of sexual assault and rape, might be thought unreal. But that was the consequence of the Administrative Court decision. The Chief Constable appealed to the Court of Appeal.
The Court of Appeal overturned the decision. A necessary element of cause of action estoppel, it held, had not been not satisfied. There had been no final decision on the merits. The first PAT had quashed the temporary Chief Constable’s findings and outcome for good reason following the officer’s acquittal on criminal charges because of fresh evidence. That was correct as far as it went. But the decision not to remit the case had not been based on an evaluation of the evidence as a whole. The appellant still had a case to answer for gross misconduct. There was nothing in principle that was wrong in holding the second misconduct proceedings to resolve the allegations [76]-[77].
Commentary
Along the road to that answer, there are some useful lessons and reminders. Most are stated in relation to the Police (Conduct) Regulations 2008 and the 2008 PAT rules, but the common law principles apply with the same force to the 2012 regime, which regulations should be considered in para materia [the 2012 rules/regulations on legislation.gov are now out-of-date].
An acquittal on criminal charges, considered against the criminal standard of proof, does not give a complete answer to the question of whether an officer has misconducted himself in relation to the Standards of Professional Behaviour, assessed against the civil standard. See for instance R (Redgrave) v Commissioner of Police of the Metropolis [2003] EWCA Civ 4; [2003] 1 WLR 1136. There is no question of res judicata here, because different procedures and standards are involved. See [33] and [78].
What an appropriate authority cannot do, however, is conduct duplicative misconduct proceedings, for example, by dredging up allegations after a final decision on the merits has already been made in relation to the same at a previous meeting or hearing (and not quashed on appeal), hoping for a different result. At [43], the Court of Appeal applied the elements of cause of action estoppel set out in R (Coke-Wallis) v Institute of Chartered Accountants in England and Wales [2011] UKSC 1; [2011] 2 AC 146 at [34], which had endorsed the analysis in the fourth edition of Spencer Bower and Handley on Res Judicata:
i. the decision, whether domestic or foreign, was judicial in the relevant sense;
ii. it was in fact pronounced;
iii. the tribunal had jurisdiction over the parties and the subject matter;
iv. the decision was- (a) final; (b) on the merits;
v. it determined a question raised in the later litigation; and
vi. the parties are the same or their privies, or the earlier decision was in rem.
“Final” and “merits” are, as the subdivision within the fourth element above indicates, cumulative requirements. The merits element is only satisfied if “the first determination involved a judicial assessment or evaluation of the facts constituting the cause of action in the light of the applicable legal principles”. There needs to have been an analytical adjudication on the basis of law and the evidence as a whole [49]-[52], [76] and [80]-[81]. The first PAT decision, reinstating the officer because of fresh evidence and his acquittal in the criminal proceedings, did not meet that description.
The Court of Appeal also cautioned that res judicata and abuse of process are different at [46]: res judicata and abuse of process are distinct although overlapping legal principles. They have the common underlying purpose of limiting abusive and duplicative litigation but res judicata is a rule of substantive law, whilst abuse of process is a concept which informs the exercise of the court’s procedural powers: [Virgin Atlantic Airways Ltd v Premium Aircraft Interiors UK Ltd [2013] UKSC 46; [2014] AC 160 per Lord Sumption JSC, with whom the other justices agreed].
Hence, where no res judicata submission is arguable, there may still be scope for an abuse of process application – albeit there had been no such abuse on the facts of this case: see [83]-[88]. A different and worthier scenario might be where the result in criminal proceedings is an emphatic exoneration of the officer and renewal of misconduct proceedings would be unfair after the passage many years – or where the misconduct allegations are being pursued for improper purposes.
Before the first PAT, the officer had been put on notice by letter that there would be another set of misconduct proceedings against him in respect of the same matters. For whatever reason, the Administrative Court (and perhaps the PAT) were not told about that correspondence. The fact that the officer had not been taken by surprise, and had not alleged bad faith against appropriate authority, were relevant factors against his abuse of process submission. The lesson is to put all relevant correspondence before the PAT and the Court.
In that connection, why not simply ask the first PAT to remit the case against the officer to a fresh hearing under rule 22 of the PAT rules? The rule which gives the PAT the power to remit following a successful appeal on the basis of new evidence or a breach of procedures. The appropriate authority had not sought that, because the view was taken that a fast track case under Part 5 of the conduct regulations could not be transformed by remittal into ordinary Part 4 proceedings. The Court of Appeal disagreed. The appropriate authority could have asked and/or the PAT could have remitted the case to be heard together with the new evidence by a panel. That would have been the simple and direct route and there would have been no question of res judicata: see [68]-[72].
And, finally, while it was not a significant part of the case or judgment, there was a helpful reminder by the Court of Appeal of the circumstances in which Part 5 fast track proceedings will be appropriate: when (paraphrasing) there is sufficient evidence of gross misconduct which is either admitted or where the evidence is incapable of credible challenge and where it is fair in all the circumstances to proceed without testing live witness evidence: [57]-[58] of the judgment, citing Annex A of the Home Office guidance on police misconduct and see, for convenience as well as authority, R (Evans) v Chief Constable of Sussex [2011] EWHC 2329 (Admin) [14]-[15] (Burnett J) (not available online).
Lord Sumption famously said, or was one of the more recent people to say “Most law is only common sense with knobs on. Although we spend a lot of time looking through these ancient tomes, everyone knows what the answer is likely to be.” And so it was in the Gray case, one can say in hindsight, after some elaborate submissions and decisions.