R (Independent Police Complaints Commission) v Assistant Commissioner Hayman
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MITTING |
| Judgment Date | 28 July 2008 |
| Neutral Citation | [2008] EWHC 2191 (Admin) |
| Docket Number | CO/10622/2006 |
| Date | 28 July 2008 |
| Court | Queen's Bench Division (Administrative Court) |
[2008] EWHC 2191 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Mitting
CO/10622/2006
Mr Jeremy Johnson appeared on behalf of the Claimant
Mr Paul Ozin appeared on behalf of the Defendant
Mr Kevin Baumber appeared on behalf of the Second Interested Party
Mr M Westgate appeared on behalf of the Third Interested Party
0n 15 May 2004 PC Bannister, off-duty, became involved in a fracas in Old Street, London, EC1. In the course of the fracas two members of the public —Mr Campbell and Mr Wilcox —were arrested. Mr Campbell was arrested by PC Bannister. Mr Wilcox was arrested by another officer, apparently after PC Bannister had indicated he had committed an offence of assault against him. Both men were taken to a police station and detained for a number of hours. Each was released without charge.
Both complained about PC Bannister's conduct. Their complaints were investigated by an investigating officer of the Metropolitan Police Service who prepared a detailed, but undated, report some time later. It concluded that there was inadequate evidence of criminal offences on the part of PC Bannister or of disciplinary offences and recommended that no action be taken.
Mr Campbell complained to the Independent Police Complaints Commission (“IPCC”) who directed that disciplinary proceedings take place against PC Bannister. The disciplinary proceedings came before a panel of three senior officers who heard the case over four days, from 5-8 June 2006. There were four charges of misconduct, each alleging either the use of force or the abuse of authority as described in paragraph 4 of Schedule 1 to the Police Conduct Regulations 2004. There was no charge of want of honesty and integrity under paragraph 1. The panel found three of the four charges proved and decided that PC Bannister should resign.
PC Bannister applied for a review of that decision, as was his right. The review was conducted on 25 August 2006 by Assistant Commissioner Hayman who found the three charges which had been found to be proved against him by the panel not to be proved, so quashing their decision.
The IPCC, supported by Mr Campbell but not by Mr Wilcox, challenged that decision in these judicial review proceedings. The basis of challenge is that Assistant Commissioner Hayman applied the wrong standard of proof in his review of the panel's decision.
First, I deal with the statutory framework. Section 50 (2) (e) of the Police Act 1996 permits the Secretary of State to make regulations for the conduct of efficiency and effectiveness of members of police forces and the maintenance of discipline. That is the section under which the 2004 Regulations were passed. Section 85 provides for a right of appeal by the police officer who is dismissed or required to resign to a Police Appeals Tribunal directly or, when, as here, a review is conducted by an assistant commissioner, after the review is conducted. Section 87 (1) permitted the Secretary of State to issue guidance to police officers concerning the discharge of their functions under regulations made under Section 50 “and they shall have regard to any such guidance in the discharge of their functions”.
Regulation 27 (3) of the 2004 Regulations requires any police tribunal conducting a hearing not to find that the conduct of the officer concerned failed to meet the appropriate standard unless the conduct is admitted by him or “(b) proved by the person presenting the case on the balance of probabilities”. There is no indication in the report of the disciplinary panel, which found three of the four allegations had been proved, that it misdirected itself as to the standard of proof. The principal issue in this review is whether or not Assistant Commissioner Hayman directed himself correctly as to the standard of proof in the conduct of his review.
The panel found that PC Bannister had wrongfully and unnecessarily arrested the two complainants. Furthermore, as he admitted, it found that he had kicked Mr Wilcox in the groin but, as he did not admit, did not do so in lawful, if anticipatory, self-defence. It is not necessary for me to set out any detail the facts found to be proved by the panel beyond that statement. It is necessary to refer to its reasoning in imposing the severe sanction of requiring PC Bannister to resign. It noted that he was a relatively junior officer. He had only just been confirmed in his rank. It noted, as they put it, “some impressive actions” were noted on his record. It found that he had displayed a lack of integrity or, as they put it, “deceit and abuse of his position” on the day of the incident, after it and at the hearing. As to his conduct at the hearing, they put it as bluntly as they could: “We were lied to.” The reason for imposing the severe sanction is summed up in the words:
“….. given integrity is non-negotiable, we saw very little integrity with respect to these breaches and frankly we did not believe his account …..”
A possible criticism of the approach of the panel may therefore be that although it was notionally considering a code 4 disciplinary offence, it actually based its conclusion as to sanction on an uncharged want of honesty and integrity.
Assistant Commissioner Hayman had before him the report of the panel and submissions made in some detail by counsel who had represented PC Bannister at the panel hearing. Those representations included three paragraphs, of which paragraph 15 is typical, which referred to the standard of proof. Paragraph 15 reads:
“….. against the background of PC Bannister's exemplary professional character ….. speaks of an obvious miscarriage given the higher standard of proof which should have been applied by virtue of the seriousness of the charge and sanction imposed (requirement to resign).”
In making those submissions, counsel understandably founded himself on the Home Office guidance issued pursuant to Section 87 of the 1996 Act which, at the time, stated:
“3.8.1 In deciding matters of fact the burden of proof lies with the presenting officer and the misconduct hearing/tribunal must apply the standard of proof required in civil cases, that is, the balance of probabilities. As a starting-point, conduct will be proved on the balance of probabilities if the adjudicator is convinced by the evidence that it is more likely or probable that something occurred than that it did not occur. However relevant case law makes it clear that the degree of proof required increases with the gravity of what is alleged and its potential consequences. It therefore follows that, where an allegation is likely to ruin an officer's reputation, to deprive them of their livelihood or seriously damage their career prospects, a hearing/tribunal should be satisfied to a high degree of probability that what is alleged has been proved.”
Assistant Commissioner Hayman certainly understood that guidance in accordance with its plain meaning because in a witness statement of January 2007 he observed (in paragraph 7):
“I am fully aware that the standard of proof to be applied in relation to proving misconduct charges is that they be proved on the balance of probability. However I am also aware that there is a sliding scale where the degree of proof increases with the gravity of what is alleged and its potential consequences.”
In applying that guidance and that understanding of that guidance, Assistant Commissioner Hayman directed himself in his review decision in paragraph 3 as follows:
“Burden of Proof
Counsel has quite rightly highlighted the burden required for a dismissal or a requirement to resign. In short, we are at the criminal burden, of 'beyond reasonable doubt'. Given the degree of proof required, I think it is reasonable for me to question whether that has actually been reached in this case. I will now highlight where I feel that the commentary of the hearing fails to provide convincing arguments that their consideration of the evidence met the high threshold.”
Assistant Commissioner Hayman referred again to the burden of proof later on in paragraph 3:
“….. On the basis of that point I have serious doubts...
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