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27 Feb 20 Back to Listing

Fiona Barton QC represents in the IOPC in a judicial review concerning important points of general application in police misconduct cases.

The Claimant officers argued that the misconduct panel should recuse itself having being provided with irrelevant and prejudicial documents. They complained that the Chair or the Tribunal had effectively become tainted by the contents of the controversial documents giving rise to apparent bias. They obtained an urgent stay of the misconduct hearing on the last working day before commencement of the hearing having issued their application on that same day.

In a rolled-up hearing, Saini J determined that permission should be refused on a number of separate grounds of important general application in misconduct proceedings.

Judicial review is properly to be regarded as a remedy of last resort. The statutory regime which governs police misconduct proceedings is a robust process which provides an adequate alternative remedy to judicial review. Save in exceptional circumstances the statutory regime should be exhausted before judicial review is commenced. The circumstances in this case were not exceptional and the legislative framework must be permitted to take its natural course, even where this might result in a hearing lasting several weeks and a lengthy appeal process.

The test for apparent bias was not met. The Panel in this case, chaired by non-Practising Solicitor and Registrar, the other two members being an experienced magistrate and senior police officer respectively, was directly analogous to that of the panels in Mahfouz and Subramanium. It is a quasi-legal tribunal, every member well-placed to identify and ignore irrelevant and inadmissible material. Even if the officers were in a position to prove prejudice arising out of the contents of the documents (which on the facts they were not) the test for apparent bias justifying recusal was not met. Saini J held the test for justifying recusal was not even arguable on the basis of the factual material and the authorities. It is thus apparent that it is a high bar for a Claimant to surmount.

In respect of complaints about the process adopted in respect of provision of material to the Panel and the hearing of the recusal application Saini J held there is no right to make oral submissions on preliminary legal argument at misconduct hearings. The regulation 33(1) power to determine the procedure at the hearing involves as a wide discretion constrained only by common law principles of natural justice and fairness to which Art 6 does not add materially even if applicable.

Obiter Saini J opined that on a strict reading of the regulations the AA may be obliged to send to the entire Tribunal all of the materials provided to the officer with the Regulation 21 notice but did not determine that issue.

The court stressed the duty of candour which attaches to ex-parte applications. The Claimants had failed to put before the court the responses to the letter before action. Saini J indicated that had they done so, it is highly unlikely that he would have granted a stay.  He drew the attention of the Claimants to the Administrative Court Judicial Review Guide 2019 in Section 14 (Specific Practice Points, Duty of Candour) and Section 16 (Urgent Cases).