Gray v The Police Appeals Tribunal

Res judicata applies to police disciplinary proceedings where an earlier tribunal decision was judicial, final, on the merits, concerned the same issue and involved the same parties or privies. The absence of an express determination of every underlying issue does not prevent a decision being on the merits. A tribunal’s power to remit an appeal under Rule 22(2) extends to remission under either applicable disciplinary procedure. Once an appeal is allowed, the decision is set aside and the matter is not remitted, a further disciplinary process based on the same events is barred. An acquittal alone does not create res judicata or automatically make later disciplinary proceedings unfair. The reviewing tribunal must address the central res judicata issue expressly.

The claimant was dismissed under the fast-track procedure in Part 5 of the Police (Conduct) Regulations 2008 after being convicted of serious sexual offences. His convictions were quashed and he was acquitted at retrial. The Police Appeals Tribunal allowed his disciplinary appeal on the ground of fresh evidence, reinstated him and expressly declined to remit the matter for rehearing.

Two days later, the Interested Party commenced fresh proceedings concerning the same underlying events. A panel found gross misconduct proved and dismissed the claimant. The Police Appeals Tribunal dismissed his appeal, concluding that the earlier proceedings had not produced a final decision on the merits. The central issue on judicial review was whether the Tribunal’s April 2014 decisions gave rise to res judicata.

1. The claim succeeded. The decision of the Police Appeals Tribunal dated 27 May 2015 was quashed, with relief to be addressed on hand-down.
2. The six constituents of cause of action estoppel identified in R (on the application of Coke-Wallis) v Institute of Chartered Accountants [2011] UKSC 1 apply to disciplinary tribunals. A decision may be on the merits without expressly considering every issue raised. The principle in Workington Harbour and Dock Board v Trade Indemnity Co Ltd (No. 2) [1938] 2 All ER 101 was applicable: a party cannot seek to prove on a second occasion, by different means, the same underlying cause of action.
3. The TCC’s 2012 decision was final, subject to appeal, and was on the merits. The fast-track procedure was not unlawful merely because the claimant disputed consent. Under R (on the application of Peter Gannon) v The Chief Constable of Merseyside Police and Another [2009] EWHC 2133 (Admin), fast-track proceedings may be fair where the evidence is compelling and the officer’s challenge is unrealistic.
4. The April 2014 Tribunal decisions were final and binding. Rule 22(2) permitted remission under either Part 4 or Part 5 of the Regulations. Alternatively, a Part 5 remission could have been redirected to Part 4 under Regulation 42(1). The Tribunal’s express decision not to remit therefore had legal significance.
5. The April decisions were also on the merits. The Review considered the acquittal, the fresh evidence and its potential effect on the findings and disciplinary action. The order stated that the matter was not to be decided again. The subsequent proceedings concerned the same complaint and were barred by res judicata.
6. The Panel’s failure to address the final and binding nature of the April order was fundamentally flawed. The Tribunal’s later decision was also unlawful because it failed to address the central res judicata issue raised in argument. The fact of acquittal alone would not have created res judicata, although it could contribute to unfairness in an appropriate case.