Trevor Gray v Police Appeals Tribunal (defendant) and Chief Constable of Nottinghamshire (interested party)
A decision to allow the appeal of an officer who had been dismissed from service on conviction but later acquitted was final and binding.
A decision by a Police Appeals Tribunal (PAT) to allow the appeal of an officer who had been dismissed from service on conviction but later acquitted was final and binding. It was not possible to initiate fresh misconduct proceedings subsequently based upon the same evidence as this offended the principle of res judicata, by which legal decisions are binding when final and based on the merits of the case.
The claimant was accused of the sexual assault and rape of a female friend in July 2011 and convicted in May 2012. Misconduct proceedings were referred to a special case hearing under the fast track procedure allowed by the Police (Conduct) Proceedings 2008. The Temporary Chief Constable (TCC) ruled in September 2012 that the claimant had committed two breaches of the standards of professional behaviour in respect of both the conduct committed in July 2011 and the subsequent conviction. The claimant was dismissed.
His conviction was quashed on appeal in 2013 and the Court of Appeal ordered a retrial. Fresh evidence had emerged from a taxi driver who picked up the claimant following the night of the alleged offences and witnessed an intimate and affectionate parting. The claimant claimed that the sexual contact was consensual and in February 2014 he was acquitted of all offences.
Before his retrial the claimant had appealed against the misconduct findings that led to his dismissal. The chair of the PAT ruled in April 2014 that the appeal should be allowed because of the acquittal and the availability of fresh evidence and not remitted for a rehearing.
However, the Chief Constable then issued a fresh notice of referral to misconduct proceedings. The allegations were the same as had appeared in the original notice, namely the alleged sexual assaults on in July 2011.
The claimant raised the argument of res judicata, arguing that the decision of the PAT in April 2014 was final and on the merits. That decision acted as an estoppel on the subsequent proceedings. This was rejected by the disciplinary panel and on further appeal to the PAT, both of whom found him guilty of gross misconduct. He was dismissed again without notice.
The claimant then appealed by way of judicial review, repeating the res judicata argument.
The Chief Constable as an interested party argued that the decision of the PAT which allowed the original appeal was not binding. It was argued that the TCC’s original decision in September 2012 to dismiss under the fast track procedure was unlawful and therefore a nullity. It followed that the consequential decision by the PAT in April 2014 was also a nullity because it was based upon the TCC’s decision which was in part unlawful.
The Chief Constable argued that it was not open to the TCC to make findings of fact (the first breach) where the claimant’s defence concerned the alleged consent of the victim. The decision was made under the fast track procedure without oral evidence. It was, however, accepted that the decision to dismiss based on the 2012 conviction (the second breach) was lawful.
Toulson J rejected these arguments. The judge did not accept the argument that the TCC’s decision could be partly lawful and unlawful. He further did not accept that it had been unlawful in any way to apply the fast track procedure to this matter. It followed that the subsequent decision of the PAT to allow the appeal following acquittal was not a nullity. The question was whether that PAT decision was binding and res judicata.
Touslon J ruled that the PAT decision had been final and based on the merits. The decision had been taken not to remit the matter for further hearing and there was nothing to suggest that there would be a further round of hearings. It was final.
Secondly, the decision was based on the merits. The acquittal on the retrial was plainly an important element. The PAT decision also went beyond the mere fact of acquittal and spoke of evidence that ‘could have materially affected the finding or decision on disciplinary action.’
As a result, the subsequent proceedings were barred under the principle of res judicata, a principle designed to provide legal certainty.
Pending the outcome of an appeal by the chief constable, this decision reinforces the important principle of res judicata, relevant to all civil proceedings including litigation.
It also gives useful insight on appropriate procedure in police misconduct cases. The fast track procedure was available and properly applied here and the PAT decision to allow the appeal was lawful.
Touslon J observed that the res judicata argument, having been raised, should have been heard as a preliminary issue by the new panel. The argument had also been advanced before the second PAT but for some reason not referred to in the PAT’s decision. That drew judicial criticism.
For further information about Weightmans or any of the issues in this update, please contact John Riddell, Consultant on, 0116 242 8925 or by email at email@example.com