O'Connor, R (on the application of) v The Police Appeals Tribunal & Anor

Under Rule 9(5)(a) of the Police Appeals Tribunal Rules 2012, witness evidence may be adduced only in support of an appeal based on fresh evidence under Rule 4(4)(b). It cannot be introduced through a procedural unfairness appeal under Rule 4(4)(c), although the same circumstances may support separate grounds of appeal. Rule 13 permits an application for disclosure at any time after the documents required by Rule 9 have been provided, including before the Rule 11 sift. The Rule 11 threshold is low, but an appeal must have a real, rather than merely arguable, prospect of success and no compelling reason must justify proceeding. Evidence of unfairness or procedural breach must also be capable of materially affecting the finding or disciplinary outcome.

The claimant, a former detective constable, sought judicial review of the Police Appeals Tribunal chair’s decision summarily dismissing his appeal against a misconduct panel’s finding of gross misconduct and decision to dismiss him. His appeal relied on fresh evidence from a former superior officer and a welfare officer, alleged failures to disclose relevant material, procedural unfairness, and possible bad faith by the investigator.

The central issues were the construction of Rules 4(4)(b), 4(4)(c), 9(5) and 13 of the Police Appeals Tribunal Rules 2012, the application of the fresh-evidence principles in Ladd v Marshall, and whether the chair was entitled to conclude that the appeal had no real prospect of success.

1. Claim dismissed. The chair’s decision to dismiss the appeal under Rule 11(2) was not irrational, unreasonable or otherwise unlawful.
2. Rule 9(5)(a) clearly provides that an appellant may adduce witness evidence only when relying on Rule 4(4)(b). Although the same facts may found appeals under both Rule 4(4)(b) and Rule 4(4)(c), the grounds remain distinct and cannot be conflated to create a gateway for fresh witness evidence under Rule 4(4)(c). The reasoning in R v Chief Constable of Durham v PAT [2012] EWHC 2733 recognised only that unfairness may lead to an unreasonable conclusion.
3. Rule 13 permits a party to apply for disclosure “at any time” after the documents required by Rule 9(4) and (8) have been provided. That includes a time before the Rule 11 sift, although the issue did not affect the chair’s decision.
4. For Rule 4(4)(b), the principles in Ladd v Marshall [1954] 1WLR 1489 remain highly persuasive. The test of whether evidence could reasonably have been considered at the original hearing permits the Police Appeals Tribunal to apply those principles in a manner aligned with civil appeals and the overriding objective. The evidence was sufficiently arguable on that issue, but this did not assist the claimant because it could not realistically have affected the result.
5. An appeal under Rule 4(4)(c) is not subject to the same fresh-evidence requirement. Nevertheless, any procedural breach or unfairness must be capable of materially affecting the finding or disciplinary outcome. The chair was entitled to conclude that the evidence concerning one earlier request by a superior officer did not materially bear on the later unauthorised accesses, which were initiated by the claimant and unrelated to another officer’s request.
6. The chair rationally considered the evidence, the alleged discrepancies in the investigator’s records, the disclosure issue, bad faith, misconduct, and sanction. The allegations of bad faith were unsupported conjecture. The principle in R v Chief Constable of Merseyside Police ex parte Merrill [1989] 1 WLR 1077 did not provide a basis for overturning the Rule 11 decision.

The judgment itself is a first-instance judicial review decision. The claimant challenged the Police Appeals Tribunal chair’s final decision dated 22 March 2017, following the chair’s provisional Rule 11(3) notification and consideration of representations. Permission for judicial review was granted by Kerr J on 10 October 2017. The High Court dismissed the claim.