Gray v Police Appeals Tribunal
| Jurisdiction | England & Wales |
| Judge | The Hon. Mr Justice Coulson |
| Judgment Date | 29 July 2016 |
| Neutral Citation | [2016] EWHC 1239 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 29 July 2016 |
| Docket Number | Case No: CO/3276/2015 |
[2016] EWHC 1239 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Birmingham Civil and Family Justice Centre
33 Bull Street, Birmingham, B4 6DS
The Hon Mr Justice Coulson
Case No: CO/3276/2015
Mr Steven Crossley (instructed by Rebian Solicitors) for the Claimant
Mr John Beggs QC and Ms Cecily White (instructed by East Midlands Police Legal Services Unit) for the Interested Party
The Defendant did not appear and was not represented
Hearing date: 25 May 2016
Approved Judgment
INTRODUCTION
This application for judicial review raises a short but important question of res judicata and its application to two sets of police disciplinary proceedings. It arises out of a long and rather troubling story.
In May 2012, the claimant was tried and convicted of sexual assault, attempted rape and anal rape. In September 2012, following a special case hearing conducted by the then Temporary Chief Constable of Nottinghamshire ("TCC"), Mr Christopher Eyre 1, the claimant was dismissed for gross misconduct. In July 2013, the claimant's conviction was quashed by the Court of Appeal and, at the subsequent retrial in 2014, he was acquitted of all charges.
The claimant had commenced an appeal against the TCC's findings of misconduct before his retrial. Following his acquittal, in March 2014, the claimant's grounds of appeal were perfected. The appeal was not opposed by the IP and, in April, the defendant tribunal reviewed the case, allowed the appeal, set aside the TCC's decision, did not remit the matter to be decided again, and reinstated the claimant. However, a few days later, without any prior warning, a second set of misconduct proceedings, relating to exactly the same events, were commenced on behalf of the IP.
In August 2014, at the second misconduct hearing, the panel rejected the submission that it did not have jurisdiction to consider the misconduct charges. They were upheld. The claimant was again dismissed from the police. The claimant appealed against that decision but his appeal was refused by the defendant on 27 May 2015. He now applies for judicial review of that decision pursuant to the leave of McGowan J, dated 20 November 2015.
The principal issue between the parties arises out of the defendant's decisions in April 2014 to allow the claimant's appeal, and not to remit the misconduct proceedings for re-hearing. It is those decisions which are said to give rise to the res judicata.
I set out the relevant facts in Section 2 below. I summarise the law on res judicata in Section 3 below. I set out the issues in Section 4 below. I then deal, in Sections 5 and 6 respectively, with the arguments about the status and effect of the TCC's decision of September 2012, and the defendant's decisions of April 2014, dealing under each heading with the subsequent rulings on those matters of the Panel and the defendant. There is a short summary of my views as to the overall merits in Section 7 below and a similar short summary of my conclusions at Section 8 below. I am very grateful to both counsel for their helpful written and oral submissions. I repeat the assurance I gave the parties at the end of the hearing that the bulk of this judgment was prepared by the end of May, and apologise that any involvement in a lengthy commercial case has prevented its final completion until now.
THE RELEVANT FACTS
The claimant spent the evening of 23 July 2011 out with N, a female friend. They went back to her house. N said she did not feel well and went to bed. The claimant left the address but returned shortly afterwards in the early hours of 24 July. Thereafter there was no dispute that sexual activity, including anal intercourse, took place. The claimant said that it was all consensual; N said that it was not. The claimant was subsequently charged with sexual assault, attempted rape, and anal rape.
On 30 May 2012, at Derby Crown Court, the claimant was convicted of those three offences. He was sentenced to 8 years' imprisonment.
The Police (Conduct) Regulations 2008 ("the Regulations"), govern the relevant misconduct proceedings. Part 4 (Regs 19–40) of the Regulations is concerned with 'Misconduct Proceedings' generally, whilst Part 5 (Regs 41–57) sets out the 'Fast Track Procedure for Special Cases'. Pursuant to a notice sent and received after his conviction, the claimant was told that there would be a Special Case Hearing, pursuant to Regulation 43(2) (Part 5), at Nottingham Prison on Thursday 20 September 2012. The misconduct hearing would be chaired by the TCC.
In the notice, the particulars of misconduct were divided into two separate alleged breaches. The first breach concerned the alleged facts of what had happened at N's house in the early hours of 24 July 2011. The second breach relied on the claimant's convictions for the three offences.
The Special Case Hearing took place on the allotted day at Nottingham Prison. The solicitor presenting the case on behalf of the appropriate authority said that it was open to the TCC "to find or not find all or any part of the facts set out in that Notice as proven this afternoon". In reply, the claimant's representative told the TCC that:
"Trevor [the claimant] fully realises today that this Hearing is a formality and that having been found guilty at Court and convicted and been given a Prison sentence that there could be no other option available to the Force than to dismiss him, as I say, he has been found guilty of a serious criminal offence and he has received a custodial sentence. Trevor has always denied the allegations, he continues to do so, and he has registered an appeal which has been filed and that will take its course."
Notwithstanding the reference to the outstanding appeal, the TCC concluded that both breaches had been proved and dismissed the claimant from the police. On 24 September 2012, he provided written reasons. As to the first breach, he said:
"The compelling evidence from N's interviews; the clear evidence from DS Gray and N that he had been asked to leave her house; the clear evidence from text communications that, having left, he regarded her as 'harsh' for asking him to leave; the physical evidence and admission of DS Gray's subsequent forced entry to 17, Bailey Drive; the evidence of early complaint of non-consensual sexual activity by N; and the consistent corroborative evidence from J and S; collectively satisfied me that on balance of probabilities all of the above facts were without N's consent. I therefore found this breach proven."
The TCC then referred to the convictions at the Derby Crown Court and found that the second breach had also been proved. He went on to conclude that both breaches amounted to gross misconduct and he recorded the dismissal of the claimant with immediate effect, for each breach.
On 2 July 2013, the claimant's appeal against his convictions was allowed by the Court of Appeal (Criminal Division). The convictions were quashed and he was ordered to be retried.
On 6 December 2013, prior to the retrial, the claimant sought to appeal the TCC's findings of gross misconduct. The detailed Grounds of Appeal relied on the quashing of the claimant's previous convictions, but other points were taken about the involvement and conduct of the TCC.
The Court of Appeal had quashed the claimant's convictions because of the fresh evidence of M, a taxi driver who had collected the claimant from N's house the morning after the alleged offences, and who recalled their intimate and affectionate parting. That evidence was also deployed at the claimant's retrial at Birmingham Crown Court. On 3 February 2014, the claimant was acquitted on all counts.
The fact of the acquittal was then added to the claimant's perfected Grounds of Appeal against the findings of misconduct. In response to those perfected Grounds, Mr David Ring, a senior solicitor with the East Midlands Police Legal Services (and acting for the IP), wrote to the defendant in late March 2014, in these terms:
"The Respondent accepts for the purposes of these proceedings only that, with the Court proceedings being concluded in the Appellant's favour, the basis for his dismissal through the 'fast track' process has ceased to apply. Accordingly, the Respondent writes to indicate that, upon this limited basis, it does not resist the Appeal and invites the Tribunal Chair to determine the Appeal on the papers and formally reinstate the Appellant as a police officer."
The defendant ruled on the claimant's appeal in two separate documents. The first was a Review, pursuant to Rule 11(2) of the Police Appeals Tribunal Rules 2012 ("the Rules") by Ms Joanna Greenberg QC (as she then was), the chairman of the defendant, and dated 3 April 2014. Thereafter, on 9 April, the defendant made an order pursuant to section 85 of the Police Act 1996. This order was signed by Ms Greenberg and two other members of the defendant tribunal.
The relevant parts of the Review set out the background facts and concluded that, in ordinary circumstances, the claimant was entitled to have a hearing of his appeal. However, the Review went on:
"16. In the unusual circumstances that have arisen in this case, before making this Rule 11 decision, the other members of the Appeals Tribunal have been consulted. The conclusion reached is that the appeal against the finding of gross misconduct should be allowed under Rule 4(4)(b) [fresh evidence] and that it is unnecessary for there to be an oral hearing. There is no doubt, as recognised by the respondent, that the events subsequent to the Fast Track hearing make the allowing of the appeal the only decision to be...
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