Remedies of last resort

R (on the application of Short) v Chief Constable of Bedfordshire [2020] EWHC 385 Admin Saini J

Executive summary

A police officer subject to police disciplinary proceedings was not be given leave for judicial review where prejudicial documents were wrongfully disclosed to the tribunal chairman and the tribunal then refused to recuse themselves. This was because:

1. The claimants had an alternative remedy under the Police Appeals Tribunal Rules and
2. The tribunal was not in error in refusing to rescue themselves; as professional persons they could put the evidence out of their minds, so there was no apparent bias.

Background

Six Bedfordshire officers faced disciplinary proceedings following the detention and restraint of Leon Briggs on 13 November 2013. He was found unresponsive in his cell and later pronounced dead at Luton and Dunstable Hospital.

Prejudicial material was placed before the chair which the claimants said trespassed into areas that did not form part of the case against them. The claimants stated that the panel should recuse themselves. The application was heard on paper by the entire panel although only the chair had seen the prejudicial material. The application was refused. Written reasons were handed down on 23 January 2020. The claimants sought judicial review of the decision on the grounds that:

1. The chairman and panel should have recused themselves
2. The recusal application should not have been heard on paper
3. The documents had not been provided to the entire panel and
4. The failure to disclose what had been said by the chair about the nature of the documents.

They sought an order to quash the decision not to recuse. 

The decision

The court stressed that judicial review was a remedy of last resort. A statutory regime of appeal existed under the Police Appeals Tribunals rules. The availability of a statutory process of appeal was fatal to the claim. It was clear that the regime was able to address all the issues raised by the claimants which could provide all the remedies sought by judicial review. Exceptional circumstances allowing judicial review despite the existence of alternative remedies did not apply and there was nothing exceptional about a preliminary legal argument being determined against a party.

This was enough to dispose of the application, but the court went on to consider the arguments upon apparent bias through the failure to recuse and the alleged procedural irregularities. The court assumed that the chair and the other tribunal members had read the prejudicial documents although only the chair had in fact done so. Applying relevant case law, the court defined bias as ‘a prejudice against one party or its case for reasons unconnected with the legal or factual merits of the case.’ The court also said that the material that was being challenged went both ways; some of it was favourable to the claimants. He nevertheless assumed that it was prejudicial. There was no absolute rule that stated that the viewing of prejudicial material was fatal to the fairness of a trial. It could be assumed that a competent tribunal would ignore the material, so the case for recusal was not made. If the prejudice was so extreme that a tribunal could not put it out of their minds then the position would be different, but that was not the case here. 

The court finally dealt with the procedural issues. It was in order to hear the recusal application on paper as that was permitted by the Police (Conduct) Regulations 2012 which stated that a tribunal could determine the procedure, subject of course to the principles of fairness and natural justice. In the circumstances the paper hearing was consistent with competing interests — it had been very difficult to fix a date. It would have been better for the chair to deal with the recusal application by himself because he was the only tribunal member who had read them, but the court recognised the pressing timetable and made no criticism. The court made no comment upon the need for the appropriate authority (Chief Constable) to agree redactions with the officers before passing the papers to the tribunal.

Comment

This is a useful decision for a number of reasons. It makes clear that judicial review will not be allowed where there are alternative remedies. The Police Appeals Tribunal provides alternative remedies within police complaints tribunal proceedings. If an error is made and prejudicial material is accidentally disclosed, then the tribunal can put it out of its mind and continue to hear the case. On a practical level, it may be best to agree disclosure to the tribunal and redactions in advance, although this appeared difficult in this case because of time pressure.