Short & Ors, R (On the Application Of) v Police Misconduct Tribunal & Anor

Judicial review is ordinarily a remedy of last resort where Parliament has provided an adequate statutory appeal. A challenge to apparent bias and procedural unfairness may generally be raised through that statutory route, unless exceptional circumstances justify earlier intervention. Apparent bias is determined by the court itself, applying the fair-minded and informed observer test. The court assesses all relevant circumstances and asks whether they establish a real possibility of bias. Exposure to irrelevant or prejudicial material does not automatically require recusal. The nature, experience and professional discipline of the tribunal are relevant, although exceptionally extreme material may make it impossible to disregard. A tribunal may determine a recusal application on written submissions where its procedure remains fair and proportionate.

Six police officers sought permission to apply for judicial review of decisions made by a Police Misconduct Tribunal in proceedings arising from the detention and restraint of Leon Briggs. They challenged the refusal of the Tribunal’s chair and the Tribunal as a whole to recuse themselves after documents containing potentially prejudicial material had been provided to the chair.

They also challenged the decision to determine the recusal application on paper, the constitution of the decision-making panel, and alleged failures concerning disclosure and redaction. The claim was issued shortly before the misconduct hearing, after an interim stay had been granted. The central issues were whether judicial review should be entertained despite the statutory appeal route and, substantively, whether the Tribunal or chair was apparently biased.

1. Alternative remedy. Permission was refused because the statutory misconduct regime provided an adequate and practically available alternative remedy. Under the Police Appeals Tribunals Rules 2012, an appeal could address unreasonable findings or disciplinary action, new evidence, and procedural breach or other unfairness materially affecting the result. Apparent bias and the alleged procedural defects fell within the latter ground. The fact that the complaint raised a legal issue, or that proceeding to a hearing would cause stress, cost and delay, did not constitute exceptional circumstances.
2. The authorities emphasised that judicial review should respect Parliament’s allocation of competence and should not disrupt statutory procedures which are capable of providing an effective remedy. The earlier cases relied upon by the claimants concerned stays for abuse of process which, if granted, would have brought proceedings to an end. They did not assist where the proposed judicial review would merely add delay before the statutory process was completed.
3. Apparent bias. The court had to decide the issue for itself, rather than review the Tribunal’s reasons on a rationality basis. Applying the fair-minded and informed observer test, the court considered all relevant circumstances. The documents went both ways and were not inherently prejudicial in the required sense.
4. Even assuming that the material was capable of causing prejudice, recusal did not follow automatically. The professional composition and experience of the Tribunal were significant. Its members were capable of distinguishing admissible from irrelevant material, separating allegations actually made from matters not charged, and putting irrelevant opinions out of mind. Only exceptionally extreme material might make that impossible. This was not such a case.
5. The complaint that the recusal application was determined on paper also failed. The procedure was within the chair’s broad discretion under regulation 33(1) of the Police (Conduct) Regulations 2012, and the officers had been given an opportunity to respond in writing. The process was fair in the circumstances.
6. Permission was refused on the alternative-remedy and substantive grounds. The stay was removed forthwith. Costs were ordered in favour of the Appropriate Authority and the IOPC on the standard basis. The question of indemnity costs was reserved for written determination.

This was a first-instance judicial review claim in the High Court (Administrative Court). Permission was refused and the interim stay of the misconduct proceedings was removed.