Miller, R (On the Application Of) v Chief Constable of Merseyside Police

Complainants and interested persons are entitled to attend police misconduct proceedings as observers until the disciplinary-action stage begins. Premature exclusion, without explanation, may constitute a serious procedural irregularity and create a real possibility of apparent bias. A misconduct decision is irrational where its reasoning relies on unsupported conclusions and fails to address material evidence or inconsistencies central to the allegations. Where unlawful procedure or irrationality has affected the decision, the appropriate remedy may be to quash the findings and order a fresh hearing before a different decision-maker.

The claimant sought judicial review of two misconduct meetings concerning complaints against two police constables. The meetings had found the allegations not proved. The claimant challenged the proceedings on the grounds that he and his mother had been excluded prematurely, that the decision-maker had reached irrational conclusions, and that relevant documents had not been provided. Permission was granted on the exclusion and irrationality grounds. The court considered the scope of attendance rights under the Police (Conduct) Regulations 2008, the rationality of the findings, and the appropriate remedy.

1. The claim succeeded on the exclusion and irrationality grounds. The findings of both misconduct meetings were quashed, and the meetings were ordered to be re-held before a different decision-maker.
2. Regulation 31(3) of the Police (Conduct) Regulations 2008 entitled the complainant and his mother, as an interested person, to attend as observers until the point at which disciplinary action was considered. Since no finding of misconduct had been made, that point had not arisen when they were excluded. The imposition of management advice in one case was in any event a form of disciplinary action under regulation 35(2)(a), and could justify exclusion only after the finding and reasons. The unexplained premature exclusion breached an important open-justice provision and created a real possibility of bias.
3. The decisions were also irrational. The finding that the youths displayed violent tendencies was unsupported by the matters relied upon. The decision-maker failed to address the significance of confusing and incomplete notebook evidence and discrepancies between the officer’s account and CCTV. In the other case, the decision-maker failed clearly to consider that CS spray had been used at approximately two feet, despite the stated training distance of three feet or more unless there was a significant risk to life.
4. The court declined to determine every evidential criticism because the matters would be reheard and the officers had not made substantive representations. The claimant was awarded his costs under Part 44 of the Civil Procedure Rules.