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

An appellate police tribunal applying the ordinary meaning of “unreasonable” may substitute a lesser disciplinary sanction where the original decision failed to give proper weight to relevant personal and medical circumstances. The possibility that gross misconduct justifies dismissal does not make dismissal mandatory in every case.

A tribunal has jurisdiction to determine consequential matters such as back pay despite delay in issuing its written decision, unless the governing rules clearly remove jurisdiction. However, natural justice requires the parties to be heard before a significant back-pay order is made. Costs decisions by regulatory tribunals must address the special principle that public regulators ordinarily should not face costs orders absent good reason.

Inspector Naulls was dismissed by a misconduct hearing panel after travelling in first-class accommodation without entitlement and repeatedly giving dishonest explanations. The Police Appeals Tribunal allowed his appeal against the disciplinary action, substituted an 18-month final written warning, ordered reinstatement, awarded back pay, and ordered the Police Authority to pay his costs.

The Commissioner challenged those decisions by judicial review. The issues were whether reinstatement was irrational, whether the Tribunal had jurisdiction to order back pay after the hearing, and whether its costs reasoning was lawful.

1. Reinstatement and sanction. The challenge to reinstatement and substitution of an 18-month final written warning was dismissed. The applicable appeal test was whether the disciplinary action was unreasonable in its ordinary meaning, not the higher Wednesbury threshold applicable to judicial review of public decisions. The distinction was explained in R (Chief Constable of Wiltshire Police) v Police Appeals Tribunal (Woolard) [2012] EWHC 3288 (Admin).
2. Gross misconduct is conduct sufficiently serious to justify dismissal, but that does not require dismissal in every case. Public confidence and honesty were important, and good character, loss of livelihood and later reform ordinarily carried limited weight in regulatory proceedings: Bolton v The Law Society [1994] 1 WLR 512. Nevertheless, the Tribunal was entitled to find that severe and unusual personal stress had contributed to the dishonest explanations and that the misconduct panel had given that factor too little weight.
3. Back pay. The Tribunal had jurisdiction to make the order. Failure to comply with rule 22(3) and (4) of the Police Appeal Tribunal Rules 2008 did not remove jurisdiction because the Rules contained no clear words producing that consequence. However, the back-pay issue had not been raised at the hearing. Natural justice required the Commissioner to be invited to address matters including any earnings received during the relevant period. The back-pay decision was therefore quashed and remitted.
4. Costs. The costs order was quashed. The Tribunal had failed to apply the principles governing costs against public regulators, namely that such an order ordinarily requires good reason, balancing prejudice to the individual against the need to allow regulators to perform public functions without undue financial exposure. Those principles, stated in Baxendale-Walker v The Law Society [2006] EWHC 643 (Admin); [2006] 3 All ER 675, applied to internal police appeals. Costs were remitted for reconsideration, including the admission of gross misconduct and the fact that the proceedings were properly brought.

High Court (Administrative Court): The Commissioner’s judicial review challenge was dismissed as to reinstatement and the substituted warning, but allowed as to back pay and costs. Those matters were remitted to the Police Appeals Tribunal.