Hampshire Constabulary v Police Appeals Tribunal & Anor

Under regulation 23(3) of the Police (Conduct) Regulations 2008, deciding whether a witness should attend misconduct proceedings is an exercise of judgment, not an unfettered discretion. The decision-maker must reasonably believe that attendance is necessary in the interests of justice.

Where a serious allegation depends upon a disputed incident witnessed only by the complainant and the officer, and misunderstanding or exaggeration is possible, the interests of justice will ordinarily require both witnesses to give live evidence. The decision is reviewable for reasonableness. On an appeal to a Police Appeals Tribunal, an unreasonable decision under regulation 23(3) constitutes a breach of that regulation, and the Tribunal must consider whether the breach could materially have affected the finding or sanction.

A police misconduct panel found that PC Adam McLean had committed gross misconduct and dismissed him. The panel relied largely on written statements, but heard live evidence from only two witnesses. It refused to call two complainants whose evidence concerned central allegations.

The Police Appeals Tribunal concluded that refusing to call those witnesses was unreasonable and caused unfairness which could materially have affected the finding. It allowed the appeal but considered that it had no power to rehear the evidence or remit the matter. The Chief Constable challenged that decision. The central issues were the construction of regulation 23(3), the correct scope of the Tribunal’s review under rule 4(4)(c), and the Tribunal’s remedial powers.

1. The claim was dismissed. The Police Appeals Tribunal’s decision was not open to successful challenge on Wednesbury grounds.

2. Regulation 23(3) establishes a starting position that witnesses other than the officer concerned do not give evidence unless the person conducting or chairing the proceedings reasonably believes that attendance is necessary in the interests of justice. The reference to reasonable belief introduces a substantial objective element, while allowing some reasonable difference between decision-makers.

3. The regulation does not define when the interests of justice require a witness to attend. The general law applies. Adopting Dr SS v Knowsley NHS Primary Care Trust [2006] EWHC 26 (Admin), where an important primary fact turns on one witness’s word against another, hearing and seeing the witness may materially assist the decision-maker. The seriousness of possible dismissal is also relevant, by analogy with Bonhoeffer v General Medical Council [2011] EWHC 1585 (Admin).

4. In a case involving disputed critical incidents witnessed only by the complainant and the officer, with possible misunderstanding or exaggeration, the interests of justice will ordinarily require both witnesses to be heard. That conclusion does not apply where the complainant’s evidence is cogently supported by unchallengeable evidence. Nor will witnesses ordinarily be required concerning matters that are not central to the misconduct allegations.

5. An appeal under rule 4(4)(a) involves review of whether the finding or sanction was reasonably open to a reasonable panel. Under rule 4(4)(b), the Tribunal makes the primary judgment whether new evidence could materially have affected the result. Under rule 4(4)(c), it decides whether the Conduct Regulations were breached and whether the breach or other unfairness could materially have affected the finding or sanction. Where the issue is the reasonableness of a regulation 23(3) decision, the Tribunal reviews that decision rather than substituting its own view of the interests of justice.

6. The Tribunal correctly found that the refusal to call the two central complainants breached regulation 23(3), because the chairman’s reason that he saw no reason why they would change their accounts was inadequate. Once that breach was established, it was logically impermissible to conclude that calling the witnesses could have made no difference.

7. The 2008 rules did not give the Tribunal a general power to rehear the case or remit it to the disciplinary panel following a successful appeal under rule 4(4)(c). The statutory scheme therefore created a serious remedial difficulty, which required legislative correction. The Tribunal was entitled, and required, to allow the appeal without resolving the misconduct allegations by rehearing the evidence.

The judgment describes an appeal by PC McLean to the Police Appeals Tribunal following the misconduct panel’s decision. The Tribunal allowed the appeal on the basis that the refusal to call central witnesses was unreasonable and could materially have affected the finding. The High Court dismissed the Chief Constable’s challenge to that decision.