The Commissioner of Police of the Metropolis, R (on the application of) v Police Appeals Tribunal & Anor

Judicial review of decisions under the Police Appeals Tribunal Rules 2008 is ordinarily inappropriate for interim or procedural decisions capable of correction by the Tribunal. The Tribunal’s chair must, however, determine the appeal by reference to the grounds actually relied upon. Ordering a hearing on an unrelied ground is a fundamental error, even if the appeal could otherwise properly proceed to a hearing. A chair who reverses an earlier procedural determination must also comply with natural justice and give the affected party a fair opportunity to make representations. Exceptional procedural circumstances may justify judicial review where the Tribunal has created an unresolved and contradictory procedural position.

The Commissioner challenged decisions concerning Mr Peart’s appeal against a police misconduct finding and dismissal. The Chair initially directed that the appeal should proceed to a full Tribunal hearing because evidence from a later Crown Court appeal might materially have affected the misconduct decision. The Chair later rescinded that decision and provisionally proposed dismissing the appeal under rule 11, without first seeking representations from Mr Peart. The claim was a renewed judicial review application following an earlier refusal of permission. The central issues were whether judicial review was appropriate, whether the February decision unlawfully proceeded on a ground not advanced by Mr Peart, and whether the May decision was procedurally unfair.

1. Permission and time. Permission was granted and the matter was treated as a rolled-up hearing. Time for judicial review under rule 11(5) ran from written notification of the Chair’s determination, not from the date on which the Chair gave instructions to administrative staff. The claim was therefore in time.
2. Appropriateness of judicial review. The Police Appeals Tribunal Rules 2008 establish a comprehensive appeal code. Ordinarily, a challenge to an interim or procedural decision under rules 11 or 12 should first be raised before the Tribunal if the error is capable of correction there. Judicial review is not normally appropriate in such cases. The unusual and contradictory procedural history here constituted exceptional circumstances justifying intervention.
3. February decision. Rule 11 required the Chair to consider whether the appeal should be dismissed by reference to the grounds relied upon by the appellant. Mr Peart relied on rules 4(4)(a) and 4(4)(c), not rule 4(4)(b). The Chair nevertheless ordered a hearing and admitted the transcript on the basis of rule 4(4)(b), while failing to engage with the grounds actually advanced. Because rule 22 required the Tribunal to determine the grounds on which the appellant relied, this was a fundamental misdirection. The decision was quashed.
4. The Chair had discretion to admit the Crown Court transcript, but its admissibility could be considered by the Tribunal in due course on the correct grounds of appeal. The earlier decision concerning the judge’s remarks did not determine the admissibility of the full transcript.
5. May decision. The Chair’s proposed redetermination was made without inviting submissions or considering whether he had power to rescind the earlier decisions. Mr Peart had prepared for a full hearing in reliance on those decisions. Reversing the position without giving him an opportunity to make representations was fundamentally unfair and breached natural justice. The February and May decisions were both quashed.

• High Court (Administrative Court): A renewed application for permission was heard as a rolled-up hearing. The February and May 2011 Tribunal decisions were quashed.
• Earlier procedural stage: Permission had previously been refused by His Honour Judge Thornton QC, sitting as a High Court judge.