Anastasi v Police Appeal Tribunal & Ors

A misconduct panel deciding whether to proceed in an officer’s absence must exercise its discretion by conducting a fair balancing exercise. Where unchallenged medical evidence indicates that the officer is unfit to withstand the disciplinary process, that evidence must be treated as the starting point. The panel is not bound to accept it, but must give proper reasons if it prefers another course. The interests of complainants, witnesses, the organisation and the public remain relevant, as does delay, but they do not displace the fundamental requirement of a fair hearing. An appeal tribunal must engage with the material evidence and explain its conclusion. Failure to do so may render both decisions irrational, unreasonable and disproportionate.

Mark Anastasi, a chief inspector, challenged a misconduct panel’s decision to proceed with disciplinary proceedings despite his absence and the withdrawal of his legal representatives. He relied on an unchallenged consultant psychiatrist’s report and subsequent letter stating that he was unfit to attend the hearing and unlikely to withstand cross-examination fairly.

The Police Appeal Tribunal upheld the panel’s decision, although it recorded the medical evidence. The judicial review concerned whether the panel and appeal tribunal had properly applied the governing legal principles and Regulation 24 of the Police (Conduct) Regulations 2012.

1. The claim succeeded. The panel’s decision and the Police Appeal Tribunal’s decision were quashed. The matter was remitted to a new misconduct panel.

2. The discretion to proceed in a defendant’s or officer’s absence must be exercised with great care. Fairness to the officer is of prime importance, but fairness to the prosecution or disciplinary authorities, complainants and witnesses, the likely length of an adjournment, the officer’s representation and ability to give instructions, the disadvantage caused by absence, and the public interest must also be considered. The approach in R v Hayward [2001] EWCA Crim 168 and R v Jones (Anthony) [2002] UKHL 5, as applied to professional disciplinary proceedings in Tait v Royal College of Veterinary Surgeons, was applicable.

3. Under Regulation 24 of the Police (Conduct) Regulations 2012, the hearing period could be extended where that was in the interests of justice. The central question was whether the officer could receive a fair opportunity to attend the hearing and present his case, rather than whether the proposed adjournment was unusually long.

4. The psychiatric report and letter were relevant, independent and unchallenged. They indicated that the claimant was unfit to attend and might become unduly compliant under cross-examination. The panel should have treated that evidence as the starting point and given proper reasons if it rejected it. Its focus on delay, public interest and the claimant’s previous ability to provide information did not amount to the required balancing exercise.

5. The appeal tribunal recorded the medical evidence and stated the correct legal test, but failed to engage with it in its reasons. It instead endorsed the panel’s broad conclusion that the proceedings should continue because of their history. Both decisions were therefore irrational, unreasonable and disproportionate, and the claimant had not received a fair trial.

• Police Appeal Tribunal: upheld the misconduct panel’s decision to proceed in the claimant’s absence (Appeal Decision 26215 dated 26 February 2015).
• Misconduct Panel: refused an adjournment and proceeded with the hearing (Panel Decision 2514 dated 20 May 2014).
• High Court (Administrative Court): quashed both decisions and remitted the matter to a new misconduct panel.