Nottinghamshire Police v Gray, R. (On the Application of)

Cause of action estoppel in professional disciplinary proceedings requires a prior judicial decision that is both final and on the merits. Finality alone is insufficient. The prior decision must assess whether the evidence establishes the facts needed to satisfy the legal elements of the charge.

An appeal tribunal's decision allowing an appeal on new evidence may be on the merits of the original fast-track finding. Its separate decision not to remit will not create an estoppel unless it also evaluates whether the charge should proceed. A tribunal may remit a fast-track police misconduct case for a fresh ordinary hearing. Fresh proceedings will not necessarily be abusive where the officer had notice of them and no improper advantage was sought.

The respondent police officer was convicted of sexual offences and dismissed for gross misconduct under the fast-track procedure in Part 5 of the Police (Conduct) Regulations 2008. His convictions were later quashed and he was acquitted at retrial.

The first Police Appeals Tribunal allowed his appeal on the ground of new evidence, declined to remit the matter, and directed his reinstatement. The appropriate authority then commenced fresh misconduct proceedings under Part 4 on the same allegations. A new panel found gross misconduct and dismissed him. The second Police Appeals Tribunal dismissed his appeal.

Coulson J quashed that decision, holding that the first tribunal's decision created a cause of action estoppel: [2016] EWHC 1239 (Admin). The central issue on the Chief Constable's appeal was whether the first tribunal's decision not to remit was a final decision on the merits which barred the second proceedings, or whether their commencement was an abuse of process.

1. Appeal allowed unanimously. The first Police Appeals Tribunal's decision did not create a cause of action estoppel barring the second disciplinary proceedings.

2. Cause of action estoppel applies to successive professional disciplinary proceedings. It requires, among other elements, a decision that is both final and on the merits. A decision is not on the merits merely because it is final. It must include a judicial assessment of whether the necessary facts have been established to satisfy the legal elements of the charge. Abuse of process remains distinct: it is a procedural control on duplicative litigation, whereas res judicata is substantive.

3. The original fast-track decision was lawful, final subject to appeal, and on the merits. Although the officer denied the allegations, he did not give the notice required to dispute the factual allegations, advance a contrary account, call evidence, or object to the fast-track procedure. The decision-maker evaluated the evidence and found the underlying conduct proved, rather than relying solely on the criminal convictions.

4. Under Rule 22(2) of the Police Appeals Tribunals Rules 2012, a tribunal may remit a fast-track case for a fresh hearing under Part 4 of the Police (Conduct) Regulations 2008 where new evidence has materially affected the original finding. The fresh panel is constituted under the Regulations and excludes the original panel. A decision not to remit is generally intended to determine the charge finally for both procedures, but it gives rise to estoppel only if it is itself on the merits.

5. The first tribunal allowed the appeal on new evidence and therefore decided the original fast-track finding on the merits. Its decision not to remit, however, was not an evaluation of the evidence as a whole or a decision that there was no case to answer under Part 4. It followed the parties' joint position that no remission was sought. That separate decision was therefore not on the merits and did not bar fresh proceedings.

6. The fresh proceedings were not an abuse of process. The officer had been clearly told before reinstatement that a gross-misconduct hearing would be pursued, was not taken by surprise, and alleged no improper advantage. The procedural mistake of commencing fresh proceedings rather than seeking remission did not make the proceedings unfair.

• Court of Appeal (Civil Division): Allowed the Chief Constable's appeal. The first tribunal's non-remittal decision was not on the merits, and neither cause of action estoppel nor abuse of process invalidated the second proceedings.
• High Court (Administrative Court): Coulson J allowed the judicial-review claim and quashed the second Police Appeals Tribunal decision, holding that the first tribunal's decision created a res judicata bar: [2016] EWHC 1239 (Admin).