Wilby-Newton, R (On the Application Of) v Police Appeals Tribunal

A police misconduct panel must apply the civil burden of proof to the allegation that force was excessive. An officer’s duty to account for force under the policing standards does not reverse that burden. The panel must consider any explanation given, but need not invent possible justifications where the officer provides none.

On a Rule 11 dismissal, the Police Appeals Tribunal may reject an appeal where the panel’s decision falls within the range of reasonable decisions and there is no compelling reason for an oral hearing. Expert evidence may properly be excluded where it is served late, would cause prejudice or delay, and would require speculation rather than assist the fact-finder.

The claimant, a former police officer, sought judicial review of a decision by the Chair of the Police Appeals Tribunal dismissing his appeal under Rule 11 of the Police Appeals Tribunal Rules 2012. A misconduct panel had found that he deliberately kicked a handcuffed detainee and had later given an inaccurate account during interview. It found gross misconduct and dismissed him without notice.

The claimant alleged that the panel had reversed the burden of proof concerning use of force, that expert evidence had been wrongly excluded, and that the finding of dishonesty was unreasonable. The central issues were whether the Chair had made a public law error in dismissing the appeal without an oral hearing and whether any of the proposed grounds had a real prospect of success.

1. The claim for judicial review was dismissed. The court distinguished between the standard applicable to review of the Chair’s decision and the standard applied by the Chair to the misconduct panel. The Chair’s decision was unlawful only if it was Wednesbury unreasonable or otherwise contained a public law error.

2. The panel correctly directed itself that the burden rested on the Appropriate Authority and that the standard was the balance of probabilities. The use-of-force allegation had two limbs: whether force was used, and whether it was not necessary, proportionate or reasonable. The burden remained on the Chief Constable throughout.

3. The requirement in the Code of Ethics that an officer account for force reflected a fundamental policing obligation. It did not require the officer to prove that the force was justified. The panel had to take any explanation into account when deciding whether the Chief Constable had proved excessive force. Where the officer could not explain the force, the panel was entitled to decline to invent possible justifications or speculate.

4. The panel was entitled to find that the CCTV showed a deliberate kick to a restrained detainee and that, absent an explanation, the force was not necessary, proportionate or reasonable. The Chair was therefore entitled to conclude that this ground had no real prospect of success.

5. The exclusion of the claimant’s expert report was a reasonable case-management decision. It was served shortly before the hearing, without explanation for the delay, and would have caused prejudice and potentially an adjournment. Expert evidence was also unnecessary because the panel could assess the footage and the surrounding evidence itself. The report invited speculation about possible reasons for the movement and would not have assisted the claimant.

6. The panel’s credibility finding concerning the claimant’s first interview was plainly within the range of reasonable findings open to it. The panel had heard the evidence, considered the CCTV and was entitled to infer that the claimant had deliberately denied involvement. The Chair’s dismissal of this ground was not Wednesbury unreasonable. Permission on that renewed ground was refused.

This was a first-instance judicial review in the Administrative Court. The Police Appeals Tribunal had dismissed the claimant’s disciplinary appeal under Rule 11 of the Police Appeals Tribunal Rules 2012. The Administrative Court dismissed the judicial review claim and refused permission on the renewed dishonesty ground.