Melia, R (on the application of) v Merseyside Police

Police disciplinary hearings are ordinarily private. A solicitor may attend only where the applicable regulations and the required consent permit attendance. A claimant’s solicitor cannot attend merely by characterising himself as a friend, where the evidence establishes a professional representative relationship.

Article 3 does not require a complainant or solicitor to participate in disciplinary proceedings, provided that the State has an adequate investigatory process for alleged ill-treatment. Article 6 does not require solicitor attendance at disciplinary proceedings merely because related criminal proceedings are pending. Disclosure of relevant evidence and transcripts can safeguard the fairness of the later trial.

The claimant sought permission to challenge decisions by senior officers of Merseyside Police refusing to allow his solicitor to attend disciplinary proceedings against two police officers. The proceedings concerned allegations that the claimant had been supplied with heroin after arrest. The claimant was also facing criminal proceedings, which had been ordered to follow the disciplinary proceedings.

The solicitor sought attendance first as a solicitor and then as a friend. The police officers refused consent under the Police Conduct Regulations 1999. The central issues were whether the solicitor was properly regarded as a friend or relative, and whether exclusion breached Articles 3 or 6 of the European Convention on Human Rights.

1. Application dismissed. The presiding officer was entitled to conclude that the claimant’s solicitor had not substantiated that he was a friend or relative within regulation 25 of the Police Conduct Regulations 1999. The information supplied described the solicitor’s professional representation and the claimant’s vulnerability, but did not establish friendship.
2. Regulation 26(1) made the hearing private, subject to the specified conditions. The presiding officer had no discretion to allow the solicitor to attend as a solicitor where the parties had not consented. The Regulations also did not permit a friend or relative, or a solicitor, to represent the complainant by asking questions.
3. Article 3 was not engaged. The alleged supply of heroin, though reprehensible if undertaken by or with the connivance of a State agent, did not meet the minimum threshold of treatment required by that Article. In any event, Article 3 did not confer a right to participate in investigatory or disciplinary proceedings. The State’s positive obligation was met through a proper investigatory process, and no defect in the Police Complaints Authority’s investigation had been alleged.
4. There was no breach of Article 6. The absence of the claimant’s solicitor from the disciplinary hearing did not render the future criminal trial unfair. Relevant evidence, including inconsistent evidence given in the disciplinary proceedings, could be disclosed through the existing machinery for disclosure and considered at trial. The solicitor’s opportunity to observe and assess witnesses added nothing necessary to trial fairness.
5. The judge made additional observations, not necessary to the decision, that attendance by a Crown Prosecution Service representative would be highly desirable where significant criminal-trial witnesses were giving evidence in disciplinary proceedings. The application for leave to appeal was refused. Costs were postponed pending further application.

Not an appeal. The High Court (Administrative Court) determined an application for permission and judicial review of decisions by Merseyside Police.