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 The Police (Conduct) Regulations 2012 reg 33 [beware that the linked statutory instrument is now out of date, but not on this particular regulation] provides that a legally qualified chair (LQC) may adjourn the hearing in particular circumstances: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.
Facts
Briefly, a defendant in a civil action, acting in person, applied for an adjournment of the final hearing on the basis of medical advice that he was not mentally fit to attend. The court refused the application on the papers, giving no reasons, but said that the application could be renewed in person on the hearing’s first day. On the first day of the hearing, the defendant (who was physically absent) applied in writing for an adjournment, attaching a report from his general practitioner stating that he was suffering from depression, anxiety and taking prescription anti-depressants. The judge dismissed the application and went on to strike-out the defence and counterclaim. The defendant appealed.
Law
A failure to adjourn in a police misconduct hearing may result in an appeal pursuant to Police Appeals Tribunals Rules 2012 rule 4(4)(c) – breach of procedures or other unfairness. In such circumstances, it would be for the PAT to satisfy itself that the refusal to adjourn was fair – rather than asking whether the decision fell within the range of reasonable responses open to the LQC: see R v Panel on Take-overs and Mergers, ex p Guinness plc [1990] 1 QB 146, 183H – 184E (Lloyd LJ). See also R (Osborne) v Parole Board [2013] UKSC 61; [2014] AC 1115 [65] and [66]-[71]:
“The court must determine for itself whether a fair procedure was followed (Gillies v Secretary of State for Work and Pensions [2006] UKHL 2; 2006 SC (HL) 71; [2006] 1 WLR 781)… Its function is not merely to review the reasonableness of the decision-maker’s judgment of what fairness required.”
For the avoidance of any doubt, such law applies to the Police Appeals Tribunal: see R (Chief Constable of Hampshire) v PAT & McLean [2012] EWHC 746 at [25]. The Court of Appeal in Solanki repeated this in relation to civil hearings, stating:
“[Counsel] rightly accepted that the question of whether or not to grant an adjournment of a trial on health grounds was a discretionary matter for the trial judge. However, as he submitted, and as I accept, the jurisdiction of this court is not confined simply to considering whether irrelevant factors were taken into account, or relevant ones were ignored in the Wednesbury sense, or whether the decision not to adjourn lay within the broad band of judicial discretion of the trial judge. Rather, the authorities make clear that, in reviewing the exercise of discretion, the Court of Appeal has to be satisfied that the decision to refuse the adjournment was not “unfair”: for example, see Terluk v Berezovsky [2010] EWCA Civ 1345 (per Sedley LJ at paras 18-20).”
The case of Terluk stated at [18]-[20] (Sedley LJ):
“Our approach to this question is that the test to be applied to a decision on the adjournment of proceedings is not whether it lay within the broad band of judicial discretion but whether, in the judgment of the appellate court, it was unfair. In Gillies v Secretary of State for Work and Pensions [2006] UKHL 2, Lord Hope said… ‘[T]he question whether a tribunal . . . was acting in breach of the principles of natural justice is essentially a question of law.’ As Carnwath LJ said in AA (Uganda) v Secretary of State for the Home Department [2008] EWCA Civ 579… anything less would be a departure from the appellate court’s constitutional responsibility…
But… the appellate judgment ‘requires a correct application of the legal test to the decided facts…‘ Thus the judgment arrived at first instance is not eclipsed or marginalised on appeal. What the appellate court is concerned with is what was fair in the circumstances identified and evaluated by the judge. In the present case, this is an important element.
We would add that the question whether a procedural decision was fair does not involve a premise that in any given forensic situation only one outcome is ever fair. Without reverting to the notion of a broad discretionary highway one can recognise that there may be more than one genuinely fair solution to a difficulty.”
As to the question of adjournment, the court referred to its earlier decision of Teinaz v LB Wandsworth [2002] EWCA Civ 1040; [2002] ICR 1471 stating that some adjournments must be granted if not to do so amounted to a denial of justice, that a litigant whose presence was needed for a fair trial but who was unable to be present through no fault of his own would usually have to be granted an adjournment but that the court or tribunal was entitled to be satisfied of the litigant’s inability to be present, the onus being on the applicant for the adjournment to prove its need. At [20]-[22]:
“…Although an adjournment is a discretionary matter, some adjournments must be granted if not to do so amounts to a denial of justice. Where the consequences of the refusal of an adjournment are severe, such as where it will lead to the dismissal of the proceedings, the tribunal or court must be particularly careful not to cause an injustice to the litigant seeking an adjournment…
A litigant whose presence is needed for the fair trial of a case, but who is unable to be present through no fault of his own, will usually have to be granted an adjournment, however inconvenient it may be to the tribunal or court and to the other parties…. But the tribunal or court is entitled to be satisfied that the inability of the litigant to be present is genuine, and the onus is on the applicant for an adjournment to prove the need for such an adjournment.
If there is some evidence that a litigant is unfit to attend, in particular if there is evidence that on medical grounds the litigant has been advised by a qualified person not to attend, but the tribunal or court has doubts as to whether the evidence is genuine or sufficient, the tribunal or court has a discretion whether or not to give a direction such as would enable the doubts to be resolved. Thus, one possibility is to direct that further evidence be provided promptly. Another is that the party seeking the adjournment should be invited to authorise the legal representatives for the other side to have access to the doctor giving the advice in question… All must depend on the particular circumstances of the case. I make these comments in recognition of the fact that applications for an adjournment on the basis of a medical certificate may present difficult problems requiring practical solutions if justice is to be achieved.”
Conclusion
In Solanki, the Court of Appeal held that the trial judge had failed to give satisfactory reasons for rejecting the medical evidence. His suspicion that the defendant was putting on an act was no substitute for the professional medical evidence from the general practitioner. At [41]:
“…the judge’s own view, apparently based on his observation of the appellant in court, was no substitute for the professional medical evidence provided by the general practitioner which clearly demonstrated that the appellant had a genuine history of depression and mental problems, for which he had been prescribed medication over a period of time. The judge did not explain why he felt able to reject the doctor’s view that the appellant had reported suicidal thoughts (6 days before the hearing), and that examination of his mental state was consistent with a diagnosis of ‘severe depression’. The appellant was plainly ill and there was no evidence to suggest that the illness was contrived. Moreover, the judge did not appear to base his view on any suggestion that the appellant had previously applied for adjournments, whether on grounds of ill health or otherwise, nor did he indicate in what respect, if any the medical evidence was inaccurate. The requirement… that the appellant would have to obtain further psychiatric evidence… if he wished to make a further application… was also unrealistically impractical.”
This post does not claim to re-invent the law or contain stunning new insights concerning adjournments or fairness. However, the case of Solanki does allow for the opportunity to restate the principles that a misconduct hearing should consider where an officer applies for an adjournment – especially in circumstances where there is a potential date when they can attend.
Clearly, misconduct proceedings cannot be postponed indefinitely – there is a public interest in the protection of the public and the swift and effective resolution of misconduct matters. Further, complainants, interested persons and witnesses may themselves be vulnerable – such that a hearing’s being adjourned could threaten its continuance. Nevertheless, it would be a mistake for panels to interpret the words “necessary or expedient” in reg 33(3) and “exceptional circumstances” in reg 33(4) without the benefit of at least some authority from other jurisdictions – as stated above.
Also, where an officer suffers from a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out day-to-day activities, this may fall within the definition of a disability for the purposes of Equality Act 2010 s6 – such that a refusal to consider adjourning and/or making adjustments to the hearing process may amount to an unlawful failure to make reasonable adjustments and/or unfavourable treatment arising from disability.
Nothing here should prevent panels from being robust and ensuring that their processes are not abused. The Court of Appeal repeated that the onus is on the applicant to demonstrate the need for an adjournment, such that it is for the applicant to prove its need (although I am not sure that this retains quite the same force where the person has a disability pursuant to the Equality Act). Where, however, LQCs entertain and make decisions on applications to adjourn, they should take care in their decision to give adequate reasons demonstrating that they have understood the nature of the application, the factors and evidence relied upon, the extent to and the reasons for which the evidence is accepted and/or rejected and where the balance of fairness lies – being cautious to avoid injustice whether that be to the officer, a complainant or the public interest.