R the Chief Constable of Cleveland Constabulary v Police Appeals Tribunal Lee Rukin (Interested Party)
| Jurisdiction | England & Wales |
| Judge | HHJ Saffman |
| Judgment Date | 15 May 2017 |
| Neutral Citation | [2017] EWHC 1286 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3221/2016 |
and
[2017] EWHC 1286 (Admin)
His Honour Judge Saffman sitting as a Judge of the High Court
Case No: CO/3221/2016
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
LEEDS DISTRICT REGISTRY
The Court House
Oxford Row
Leeds LS1 3BG
Mr Charles Apthorp for the Claimant
The Defendant did not appear
Mr Nicholas Yeo for the Interested Party
Hearing date: 21, 22 March 2017
Date draft circulated to the Parties: 27 March 2017
Date handed down 15 May 2017
Introduction
This is a substantive application by the Chief Constable of Cleveland Constabulary, represented by Mr Charles Apthorp of counsel, for the judicial review of the decision of the Police Appeals Tribunal (PAT) given on 28 April 2016. Mr Lee Rukin is joined into these proceedings as an Interested Party (IP) since the decision of the PAT related to him. He is represented by Mr Nicholas Yeo of counsel. Permission to bring the claim was given on 23 September 2016.
By its decision of 28 April the PAT allowed an appeal by the IP against the decision of a disciplinary panel made at a misconduct hearing held on 5 August 2015. The panel had concluded that the IP had been guilty of gross misconduct by breaching the standards of professional behaviour expected from him in his capacity as a Temporary Chief Inspector with the claimant Constabulary. The panel concluded that the sanction in respect of this gross misconduct was dismissal without notice. The PAT took the view that the conduct about which the claimant complained, in so far as it was found proved, was misconduct but not gross misconduct and the sanction to be applied was a final written warning.
By these proceedings the claimant seeks an order that the decision of the PAT be quashed because it was a flawed decision. In addition, by the claim form the claimant seeks remission of the matter back to the PAT with an order directing it to dismiss the IP's appeal from the panel. It transpires that this latter order is not open to the court since the PAT no longer has jurisdiction in respect of the conduct of the IP by reason of his resignation from the police force on 31 December 2016. Of course, the quashing of the decision of the PAT would inevitably result in the reinstatement of the decision of the panel and thus the finding of gross misconduct and dismissal without notice.
The PAT take a neutral stand in this application and has not filed any pleadings nor is it represented at this hearing but the IP has taken an active position by which he contends that the decision of the PA T to quash the decision of the panel was one which it was lawfully entitled to make.
There are two preliminary issues to which it is appropriate to refer. The first is the contention by Mr Yeo that this claim is academic bearing in mind that the IP has resigned from the claimant police force in any event.
He refers to sections 31(3C) and (3D) Senior Courts Act 1981 which require the court to consider whether the outcome of the application would have been substantially different if the conduct complained of had not occurred. He argues that the conduct complained of was a decision of the PAT which essentially reinstated the IP in his employment with the claimant but that that decision has been divested of any relevance by the resignation of the IP.
It was pointed out that section 31(3C) relates only to matters to which the court should have regard when considering the question of permission. This is a substantive hearing to which the provisions of those particular subsections do not apply. As I understand it, Mr Yeo did not demur from that proposition or from the proposition that accordingly the issue of whether the claim is academic or not does not strictly arise in the context of the ground for striking the claim out at this stage.
Secondly, the issue was raised as to whether these proceedings had been lodged sufficiently promptly. CPR 54.5 specifies that the claim form must be filed promptly and, in any event, not later than 3 months after the ground to make the claimant first arose. It is trite law that a claim is not necessarily made promptly simply because it has been made within 3 months.
The claim form was issued on 23 June 2016, 8 weeks after the decision was made but Mr Yeo argues that in the context of the review of a decision involving a person's livelihood that period cannot be considered prompt.
He refers to the judgement of Mann LJ in R v Secretary Of State for Health and Another ex-parte Furneaux 1994 2 All ER 652 at 658 which underlined the principle that promptitude is important where the rights of third parties are affected by the decision which is impugned. He also refers me to the judgement of Keene LJ in Hardy v Pembrokeshire County Council 2006 EWCA Civ 240 paragraph 10 in which it was said;
" a public law decision by a public body in almost all cases affects the rights of parties other than the decision maker and the applicant seeking to challenge such a decision. It is important that these parties and indeed the public generally, should be able to proceed on the basis that the decision is valid and can be relied on, and that they can plan their lives and make personal and business decisions accordingly."
It is argued that the approach of the claimant in waiting until 23 June to issue proceedings was dilatory and has prolonged uncertainty for the IP.
Mr Apthorp points out that the written decision of the PAT was not received until the beginning of May and it was only at that point that formal advice could be obtained regarding the merits of seeking a review of that decision and that the claim form was issued less than 8 weeks from the date when the decision was received. Promptitude, it is said, has to be considered in the context of the difficult issues in the claim and it is disputed that the interested party has been significantly affected by the time lapse between the decision and issue.
In fact, whilst the issue of promptitude was presaged in the grounds of resistance and in both counsels' skeleton arguments it was not pursued by Mr Yeo in his oral submissions. Insofar however as it is still a live issue I reject the contention that these proceedings have not been lodged with sufficient promptitude.
I accept that there are difficult issues raised by this claim which make an 8 week period between the decision and issue of the claim form a reasonable one. I am not satisfied that the IP or others have been caused such prejudice by the time lapse that it is appropriate to strike out this claim on limitation grounds and I have no evidence that he suffered any avoidable hardship during the period when the claimant's application was being drafted.
The background
As I have said, at the relevant time, the IP was a Temporary Chief Inspector. He was thus a senior police officer in a leadership role and was visually so.
On 19 May 2015 he was brutally assaulted by the husband of a female police sergeant with whom he was conducting an intimate affair. His facial bones were fractured in multiple places, more specifically his injuries included a severe compound fracture of the right eye socket, a crushed fracture to the side of the right eye and a fractured cheekbone. He was rendered unconscious by the attack and was hospitalised. It took place in the presence of the police sergeant with whom he was intimately involved.
The disciplinary proceedings against him arose out of the fact that he lied to police colleagues about the circumstances giving rise to his injuries. The panel's assessment was that the lies brought discredit to the police service and betrayed a dishonesty and a lack of integrity on the part of the IP that amounted to gross misconduct and justified summary dismissal taking account of the fact that the public's confidence and faith in the integrity of those who police them is a fundamental precept and one which is reinforced by, and founded upon Statute, Regulations, Home Office Guidance and a Code of Ethics.
So what were the lies which are at the heart of this matter? In summary it consisted of the IP intimating to various colleagues that his injuries arose not as result of an assault but as a result of a cycling accident caused by his riding into the back of a parked car. In fact the IP had ridden into the back of a parked car the day prior to the assault but had emerged from that experience without any injury whatsoever.
Particulars of the Lies
(A) On 19 May 2015 the IP texted Chief Superintendent McPhillips to say " Peter, sorry about this but I've had a bit of an accident……. Head injury would you have any objection to be working from home tomorrow?" 1
(B) On 21 May 2015 the IP had a meeting at CPS with Deputy Chief Constable Spittal. He and DDC Spittal met in the car park of the office where this meeting was to be held. DCC Spittal inevitably noticed the condition of the IP's face and asked how he came by his injuries. He was told that they had arisen as result of a cycling accident. There appears to have been something of a discussion as to how the accident actually occurred at which members of CPS were apparently also present and the IP gave details. He said that it been riding head down using tribars and thus had only seen the car at the last minute.
(C) On 27 May 2015 an Inspector Hunt became aware of rumours circulating to the effect that the IP had received facial injuries caused by the police sergeant's husband. He sent an email to the IP in his capacity as a " mate" of the IP in which he said that he was aware of the rumour " sweeping the force" that the IP had left his wife for the police sergeant and pointing out that he had...
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