James Hendrick V. Stephen House Qpm, Chief Constable, Strathclyde Police+the Police Appeals Tribunal Scotland
| Jurisdiction | Scotland |
| Judge | Lord Wheatley,Lord Drummond Young,Lady Paton |
| Judgment Date | 19 February 2014 |
| Neutral Citation | [2014] CSIH 22 |
| Court | Court of Session |
| Published date | 19 February 2014 |
| Docket Number | P755/12 |
| Date | 19 February 2014 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| [2014] CSIH 22 | |
| Lady Paton Lord Drummond Young Lord Wheatley | P755/12 OPINION OF THE COURT delivered by LADY PATON in the reclaiming motion in the petition of JAMES HENDRICK Petitioner and reclaimer; against (FIRST) STEPHEN HOUSE, QPM, CHIEF CONSTABLE, STRATHCLYDE POLICE; and (SECOND) THE POLICE APPEALS TRIBUNAL (SCOTLAND) Respondents: for Judicial review of a decision of the first respondent to dismiss the petitioner from his employment with Strathclyde Police _______________ |
First respondent: Maguire QC; Macgregor Solicitor Advocate; Simpson & Marwick
Second respondents: J Lake QC; Jones Solicitor Advocate; Brechin Tindal Oatts
19 February 2014
Introduction
[1] The issues in this reclaiming motion are (i) whether prejudice must be shown for a successful plea of mora, taciturnity and acquiescence; and (ii) whether the Lord Ordinary was wrong to sustain such pleas in the present case and to dismiss the petition for judicial review by interlocutor dated 26 April 2013.
Background
[2] On 7 August 2006 the petitioner, a police officer, was served with formal misconduct proceedings. The allegations against him were as follows:
"(1) On 28/29 May 2004 within the Travel Inn, 187 George Street, Glasgow, [you did] act in an improper manner towards [TB], take hold of her by the neck and punch her on the face and in so doing your conduct was such as was likely to bring discredit on the police force or service.
(2) On or about 17 September 2004 in Pollokshaws Road, Glasgow or elsewhere act in an improper manner towards [TB], be aggressive towards her, take hold of her by the body and/or clothing, pull her towards you, place your face close to the face of the said [TB] and adopt a position whereby you were forehead to forehead with the said [TB] and in so doing your conduct was such as was likely to bring discredit on the police force or service.
(3) On or about 17 September 2004 in Pollokshaws Road, Glasgow or elsewhere act in an improper manner towards [TB], push her, punch or otherwise strike her on the face, place her in a headlock and repeatedly punch or otherwise strike her on the face and your conduct in so doing was such as was likely to bring discredit on the police force or service."
[3] Misconduct hearings took place in 2007. There were seven in all, as detailed in the chronology set out in paragraph [9] below. They were conducted by a tribunal comprising Detective Chief Superintendent Ruaraidh Nicolson and two police officers, acting as assessors. The petitioner was invited to attend each hearing, but did not. His QC attended the initial hearings, many of which were continued to enable medical reports on the petitioner, including psychiatric and psychological assessments, to be obtained. At the third hearing on 5 July 2007, reports from two psychiatrists, Dr Patience and Dr Ellison, were available. Both indicated that the petitioner was not fit to attend, but was fit to instruct a solicitor. Dr Ellison stated further that the petitioner was not going to improve while the proceedings were unresolved. At the fourth hearing, the QC advised the tribunal that he was concerned by the instructions he had received from the petitioner. The hearing was adjourned to allow him to consider whether to withdraw from acting. At the fifth hearing, the case was adjourned to allow further psychiatric evidence to be obtained. At the sixth hearing, neither the petitioner nor his QC attended. The tribunal considered a letter from the QC confirming that he would be withdrawing from acting, and adjourned the hearing so that a report from Dr Baird, psychiatrist, could be made available. At the seventh hearing, neither the petitioner nor his QC were present. The report from Dr Baird stated inter alia that the petitioner had said that he would not attend the hearing as he did not think that he would be dealt with fairly. The tribunal decided that failure to make progress would be detrimental inter alia to the petitioner's health. They accordingly proceeded to hear evidence, all as detailed in paragraph [9] below. After hearing evidence and submissions, the tribunal found the first allegation not proved. They found the second and third allegations proved. The recommended disposal was dismissal from the police force. The petitioner was dismissed on 5 February 2008.
[4] The petitioner appealed to the Chief Constable (the first respondent). The appeal hearing took place on 15 May 2009. The petitioner did not attend the hearing, but his QC (reinstated) attended and presented the appeal. On 23 July 2009 the appeal was refused.
[5] The petitioner appealed to the Police Appeals Tribunal (PAT, the second respondents, an independent tribunal chaired by Stuart Gale QC). The appeal hearing took place on 15 October 2009. For the first time in the misconduct proceedings, the petitioner was present, accompanied by his QC. His QC presented the appeal on his behalf. However there followed further procedure concerning the tendering of new evidence in the form of a letter from TB dated 20 December 2006, indicating an unwillingness to proceed with her complaint. Continued hearings and procedures relating to that letter took place on 29 May, 29 June and 21 September 2010, all as detailed in paragraph [9] below. On 28 September 2010 the PAT refused the appeal.
[6] During late 2010, the year of 2011, and the first half of 2012, neither the Chief Constable nor the PAT heard anything further from the petitioner or his QC.
[7] In July 2012 the petitioner raised the current proceedings for judicial review. He challenged aspects of the disciplinary proceedings, in particular the admission of hearsay evidence, the non‑disclosure of the letter referred to above, and the standard of proof applied (on a balance of probabilities). A first hearing took place on 7‑8 March 2013 before Lord Boyd of Duncansby. Because of time constraints, the court granted the first respondent's motion to restrict argument on that occasion to the respondents' pleas of mora, taciturnity and acquiescence. By interlocutor dated 26 April 2013 the Lord Ordinary sustained those pleas and dismissed the petition.
[8] The petitioner now reclaims.
Chronology
[9] What follows is an outline of the chronology of events. More detail can be found in the pleadings and in the revised appendix dated 17 September 2013, particularly in a joint minute at pages 12 et seq.
17 September 2004: The petitioner is alleged to have assaulted TB as set out in charges (2) and (3).
11 January 2006: An officer was appointed to investigate and interview witnesses.
7 August 2006: Misconduct proceedings were served on the petitioner, with notice of a hearing fixed for 17, 18 and 19 January 2007.
20 December 2006: The complainer TB wrote a letter dated 20 December 2006, addressed to the Assistant Chief Constable, 173 Pitt Street (date‑stamped as received on 8 January 2007 and bearing to have been copied to Beltrami + Co, solicitors, of which firm Mr Macara QC was a partner). In that letter TB mentioned her poor memory, her vulnerability and suggestibility, and in a final paragraph stated:
"I do not want any further contact with the police over this allegation. I will not attend any hearing. I do not give permission for any statements made by me to be used at any hearing or for any other purpose."
17 January 2007: At the first hearing at Police Headquarters, 173 Pitt Street, Glasgow, Mr Macara QC appeared for the petitioner, who was absent. The hearing was adjourned until 14 March 2007 to enable an independent psychiatric and psychological reports to be obtained.
14 March 2007: At the second hearing, Mr Macara QC appeared for the petitioner, who was again absent. The hearing was adjourned until 5 June 2007 to allow medical reports to be obtained.
5 June 2007: At the third hearing, Mr Macara QC appeared for the petitioner, who was absent. Reports from two psychiatrists Dr Patience and Dr Ellison indicated that the petitioner was not fit to attend, but was fit to instruct a solicitor. Dr Ellison also stated that the petitioner was not going to improve whilst the proceedings were unresolved. The hearing was adjourned until 9 July 2007 to allow Mr Macara to make representations as to why the hearing should not proceed, and to consider his own professional position.
7 July 2007: The petitioner was admitted as a voluntary patient to Leverndale Hospital (a psychiatric hospital).
8 July 2007: The petitioner was discharged from Leverndale Hospital.
9 July 2007: At the fourth hearing, Mr Macara QC stated that he was concerned by the instructions he had received from the petitioner. The hearing was adjourned to allow Mr Macara to consider whether to withdraw from acting.
8 August 2007: At the fifth hearing, the case was adjourned to 19 September 2007 to allow further psychiatric evidence to be obtained.
3 September 2007: A letter dated 3 September 2007 from Mr Macara QC was received, enclosing a report by Dr Ellison (confirming that the petitioner was able to give instructions) and stating that following Law Society advice he would be withdrawing from acting and would not attend on 19 September 2007.
13 September 2007: The petitioner made inquiries of Strathclyde Pension Fund about the amount of his pension if he were to retire.
19 September 2007: At the sixth hearing, there was no attendance by or on behalf of the petitioner. Mr Macara's letter dated 3 September 2007 was considered, together with other documents. A report which had been requested from Dr Baird, consultant psychiatrist, was not yet available. The hearing was adjourned to 4 December 2007.
4-6 December 2007: At the seventh hearing, there was no attendance by or on behalf of the petitioner. The report from Dr Baird stated inter alia that the petitioner had said that he would not attend the hearing as he did not think...
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