The Chief Constable of Nottinghamshire Police v R (on the application of Trevor Gray)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Lord Justice Holroyde,Sir Terence Etherton MR |
| Judgment Date | 22 January 2018 |
| Neutral Citation | [2018] EWCA Civ 34 |
| Date | 22 January 2018 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2016/3250 |
[2018] EWCA Civ 34
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Coulson J
Royal Courts of Justice
Strand, London, WC2A 2LL
THE MASTER OF THE ROLLS
Lord Justice Underhill
and
Lord Justice Holroyde
Case No: C1/2016/3250
— and —
John Beggs QC and Cecily White (instructed by East Midlands Police Legal Services Unit) for the Appellant
Paul Greaney QC and Steven Crossley (instructed by Rebian Solicitors) for the Respondent
The Interested Party did not appear and was not represented
Hearing date: 12 December 2017
Judgment Approved
This is an appeal in judicial review proceedings concerning the application of cause of action estoppel and abuse of process to a second set of police disciplinary proceedings, the respondent having successfully appealed against a finding of gross misconduct in a first set of disciplinary proceedings, where both sets of proceedings are in respect of the same alleged misconduct.
The appeal is by the Chief Constable of Nottinghamshire, who is joined to these proceedings as an Interested Party, from the order of Coulson J dated 29 July 2016 by which he quashed the decision of the defendant, the Police Appeals Tribunal (“the PAT”), dated 27 May 2015. The PAT's decision, made in the second set of disciplinary proceedings in issue in this case, was to dismiss an appeal by the respondent, Mr Trevor Gray (“the respondent”), from the decision of a police misconduct panel that he had conducted himself in a manner which constituted gross misconduct and that he should be dismissed from the police service without notice.
The legislative context
The two sets of police disciplinary proceedings which are in issue on this appeal were governed by regulations made by the Secretary of State in exercise of powers conferred by the Police Act 1996. As a result of the length of time over which the two sets of disciplinary proceedings (including appeals) took place, there were four sets of regulations which were in play at different times: the Police (Conduct) Regulations 2008 (“the 2008 Regulations”), the Police Appeals Tribunal Rules 2008 (“the 2008 Rules”), the Police (Conduct) Regulations 2012 (“the 2012 Regulations”) and the Police Appeals Tribunals Rules 2012 (“the 2012 Rules”). It is not necessary to go into any detail in respect of the applicable transitional provisions, save to say that the 2008 Regulations, the 2008 Rules (other than Rule 22) and Rule 22 of the 2012 Rules (“Rule 22”) applied to both sets of disciplinary proceedings. Neither the 2012 Regulations nor the 2012 Rules (other than Rule 22) play a significant role in the resolution of the matters in issue on this appeal and it is not necessary to refer to them further. Any references in this judgment to a regulation is a reference to a regulation in the 2008 Regulations.
The initiative and authority to make many of the important procedural decisions in police disciplinary proceedings lie with “the appropriate authority”. It is, for example, for the appropriate authority to assess whether the relevant conduct of the police officer would, if proved, amount to misconduct or gross misconduct or neither; to appoint a person to investigate the matter; to determine whether the officer concerned has a case to answer in respect of misconduct or gross misconduct; to refer the case to misconduct proceedings; to appoint a person to conduct the misconduct meeting; and to appoint the panel of three persons to conduct the misconduct hearing. The expression “appropriate authority” is defined in Reg. 3(1) to mean, in any case other than one in which the officer concerned is a senior officer, the chief officer of police of the police force concerned.
Part 5 of the 2008 Regulations (“Part 5”) lays down a “fast track procedure for special cases”. This fast track procedure is only available where “special conditions” are satisfied. The expression “special conditions” is defined in Reg. 3(1) to mean:
“(i) there is sufficient evidence, in the form of written statements or other documents, without the need for further evidence, whether written or oral, to establish on the balance of probabilities that the conduct of the officer concerned constitutes gross misconduct; and
(ii) it is in the public interest for the officer concerned to cease to be a police officer without delay.”
“Misconduct” is defined in Reg. 3(1) to mean “a breach of the Standards of Professional Behaviour”, and “gross misconduct” is defined to mean “a breach of the Standards of Professional Behaviour so serious that dismissal would be justified”. The Standards of Professional Behaviour are set out in the schedule to the 2008 Regulations.
Where the “special conditions” are not satisfied, the misconduct proceedings are conducted in accordance with the provisions of Part 4 of the 2008 Regulations (“Part 4”).
If the fast track procedure under Part 5 applies, the case is referred to a special case hearing (under Reg. 41), and the appropriate authority must as soon as practicable give the officer concerned written notice that it has been so referred (under Reg. 43).
Reg. 45 provides that, before the end of seven working days beginning with the first working day after the written notice has been given to the officer concerned, the officer shall provide to the appropriate authority: (a) written notice of whether or not he accepts that his conduct amounts to gross misconduct; (b) where he accepts that his conduct amounts to gross misconduct, any written submission he wishes to make in mitigation; (c) where he does not accept that his conduct amounts to gross misconduct, written notice of (i) the allegations he disputes and his account of the relevant events; and (ii) any argument on points of law he wishes to be considered by the person or persons conducting the special case hearing. Within the same period, the officer concerned must provide the appropriate authority with a copy of any document he intends to rely on at the hearing.
Reg. 54 sets out the procedure at a special case hearing. Reg 54(5) provides that no witnesses, other than the officer concerned, shall give evidence. Reg. 54(13) provides that the person or persons conducting the special case hearing shall review the facts of the case and decide whether or not the conduct of the officer concerned amounts to gross misconduct. Reg 54(14) provides that the person or persons conducting the special case hearing shall not find that the conduct of the officer concerned amounts to gross misconduct unless (a) he is or they are satisfied on the balance of probabilities that this is the case; or (b) the officer concerned admits it is the case.
The 2008 Rules deal with, among other things, appeals to the PAT against findings of misconduct or gross misconduct at a misconduct hearing under Part 4 or a special case hearing under Part 5 and disciplinary action imposed in consequence of that finding. Rule 4(4) of the 2008 Rules (“Rule 4(4)”) sets out the permissible grounds of appeal, as follows:
“(a) that the finding or disciplinary action imposed was unreasonable; or
(b) that there is evidence that could not reasonably have been considered at the original hearing which could have materially affected the finding or decision on disciplinary action; or
(c) that there was a breach of the procedures set out in the Conduct Regulations, the Police (Complaints and Misconduct) Regulations 2004, Schedule 3 to the Police Reform Act 2002 or other unfairness which could have materially affected the finding or decision on disciplinary action.”
Rule 22 is, so far as relevant, as follows:
“(1) The tribunal shall determine whether the ground or grounds of appeal on which the appellant relies have been made out.
(2) Where the tribunal determines that a ground of appeal under rule 4(4)(b) … has been made out, the tribunal may set aside the relevant decision and remit the matter to be decided again in accordance with the relevant provisions of the Conduct Regulations …
(3) Where the tribunal remits the matter under paragraph (2) and the relevant decision was the decision of a panel (“the original panel”), the matter shall be decided by a fresh panel which is constituted in accordance with the relevant provisions of the Conduct Regulations … but does not contain any of the members of the original panel.
(4) …
(5) The chair shall prepare a written statement of the tribunal's determination of the appeal and of the reasons for the decision…”
The disciplinary proceedings
The convictions
The respondent, then a detective sergeant with the Nottinghamshire police force, 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 respondent left the address but returned shortly afterwards in the early hours of 24 July. It is not in dispute that sexual activity, including anal intercourse, then took place. The respondent said that it was all consensual. N said that it was not.
The respondent was charged with sexual assault, attempted rape and anal rape. On 30 May 2012, at Derby Crown Court, the respondent was convicted of those three offences. He was sentenced to 8 years' imprisonment.
The first disciplinary proceedings
The appropriate authority for the purposes of the 2008 Regulations at that time was the temporary Chief Constable of Nottinghamshire, Mr Christopher Eyre (“the TCC”). The TCC decided that the special conditions for fast track disciplinary proceedings under Part 5 against the respondent were satisfied. The...
To continue reading
Request your trial
-
Nicholas Eckland v Chief Constable of the Avon and Somerset Constabulary
...CAR (Deputy Chief Constable of Kent Police) v Chief Constable of Kent Police [2020] EWHC 2099 (Admin)R (Gray) v Police Appeals Tribunal [2018] EWCA Civ 34; [2018] 1 WLR 1609, CAR (Mackaill) v Independent Police Complaints Commission [2014] EWHC 3170 (Admin); [2015] ACD 19R (Monger) v Chief ......
-
Commissioner of Police v Police Appeals Tribunal
...appeal against findings of misconduct / gross misconduct succeeds. In Chief Constable of Nottinghamshire Police v R (Trevor Gray) [2018] EWCA Civ 34 (“ Trevor Gray”) Sir Terence Etherton MR said at para 73: “The plain inference of Rule 22(2) is that a decision by the PAT not to remit final......
-
White v The ATTORNEY-GENERAL of New Zealand
...in England and Wales, above n 20, at [29], applied in R (Gray) v Chief Constable of Nottinghamshire Police [2018] EWCA Civ 34, [2018] 1 WLR 1609 at Visiting Justice decision, above n 2, at [51], quoting Forrest v Attorney-General [2012] NZCA 125, [2012] NZAR 798 at [15]. At [50]. At [53]–[5......