Chief Constable of Nottingham Police v R (on the application of Trevor Gray) v Police Appeals Tribunal, Court of Appeal [2018] EWCA Civ 34

Background

The respondent, then a detective sergeant with the Nottinghamshire police force, was charged in 2011 with the sexual assault, attempted rape and anal rape of a female friend (N). The sexual activity was not in dispute, the issue being whether it was consensual or otherwise. In May 2012 the respondent was convicted of all three offences and sentenced to 8 years imprisonment.

The First Disciplinary Proceedings (‘the TCC decision’)

The Temporary Chief Constable (TCC) of Nottinghamshire decided that this was a case in which the fast track disciplinary proceedings under Part 5 of the Police (Conduct) Regulations 2008[1] ought to be used[2]. Notice was served on the respondent that his conduct fell below that required by the Standards of Professional Behaviour in respect of three numbered paragraphs; the first paragraph set out the alleged facts of what had happened at N’s house, the second paragraph set out the convictions of May 2012 and the third that each of these amounted to gross misconduct. The hearing at Nottingham Prison took place in September 2012, chaired by the TCC, who found all the breaches proved and dismissed the respondent with immediate effect.

Criminal conviction quashed and acquittal

The respondent appealed against his conviction on the grounds of new evidence which had come to light since the trial, namely the evidence of M, a taxi driver who had collected him from N’s house on the relevant morning and could vouch for their intimate and affectionate parting. In July 2013 the appeal was allowed by the Court of Appeal, the convictions quashed and a retrial ordered. At the retrial in February 2014 the respondent was acquitted of all counts.

First PAT Decision

The respondent therefore appealed the TCC decision, essentially relying on the quashing of his convictions and subsequent acquittal. Importantly, in March 2014 Mr Ring (solicitor for the appropriate authority) said that it was accepted that in view of the respondent’s acquittal the basis for his dismissal through the fast track process had ceased to apply and, on that limited basis the appropriate authority did not resist the appeal and invited the tribunal chair to determine the appeal on the papers and formally reinstate the respondent as a police officer. In a further letter Mr Ring stated that in anticipation of the respondent’s reinstatement, the appropriate authority had carried out a review, including the new evidence, and had decided to refer the respondent to a gross misconduct hearing, and that he would be suspended until that had been dealt with.

The First PAT allowed the appeal against the finding of gross misconduct on the ground that there was evidence that could not reasonably have been considered at the original hearing which could have materially affected the finding. The PAT ordered that the matter was not to be remitted to be decided again, and reinstated the respondent.

The Second Disciplinary Proceedings

Two days after the first PAT decision, the appropriate authority issued a Notice to the respondent notifying him of a fresh referral of misconduct proceedings (this time under Part 4). The allegations were the same as those in the first paragraph of the notice of the first proceedings (i.e. the underlying conduct which founded the previous convictions). The hearing of the second disciplinary proceedings took place in August 2014. The panel rejected the submission advanced at the outset of the hearing on behalf of the respondent relating to res judicta, deciding that the rescinding of the decision by the PAT meant it no longer subsisted, and further that the PAT did not then itself make final decisions on the merits of the case. The panel found gross misconduct proved, dismissing the respondent.

Second PAT

The respondent appealed the panel’s ruling to the PAT (the Second PAT). The Second PAT dismissed the appeal, agreeing that there had been no final decision on this matter on the merits during the first proceedings.

Judicial Review – Coulson J

The respondent brought judicial review proceedings seeking to quash the decision of the Second PAT and seeking a declaration that the second disciplinary proceedings were prohibited by operation of law and therefore the finding of gross misconduct was unlawful.

Coulson J, considering R (Coke-Wallis)[3] and Redgrave[4], held that the First PAT Decision was a final decision, and that it was a decision on the merits, such that the principle of res judicata was a bar to the Second PAT Decision.

Court of Appeal

The appellant appealed that decision. At the heart of the appeal was the question of whether Coulson J was right to hold that the First PAT Decision to allow the appeal and not to remit the matter to be decided again was both ‘final’ and ‘on the merits’ for the purposes of cause of action estoppel.

It was common ground that;

  • Cause of action estoppel applies to successive sets of professional disciplinary proceedings (Coke-Wallis)
  • That the constituent elements of cause of action estoppel were the six matters identified by Lord Clarke JSC in Coke Wallis, namely: (1) the decision was judicial in the relevant sense; (2) it was in fact pronounced; (3) the tribunal had jurisdiction over the parties and the subject matter; (4) the decision was (a) final and (b) on the merits; (5) it determined a question raised in the later litigation; and (6) the parties are the same.
  • In the present case the critical issue was factor (4)

It was difficult to identify, the Court said, an authoritative meaning of the expression ‘on the merits’ applicable to all circumstances; most of the authorities on the point concern issue estoppel. The Court, although not having heard direct argument about this issue, held that in principle it is right to assume that a cause of action estoppel will only arise if, amongst other things, the first determination involved a judicial assessment or evaluation of the facts constituting the cause of action in the light of the applicable legal principles [50]. Essentially they held that ‘on the merits’ required an assessment whether the necessary facts have been established to satisfy the legal elements of the cause of action. In an appropriate case that will require an evaluation of the evidence [51].

The Court was keen to make clear that res judicata and abuse of process are distinct (although overlapping) legal principles. They have the common underlying purpose of limiting abusive and duplicative litigation but res judicata is a rule of substantive law, while abuse of process is a concept which informs the exercise of the court’s procedural powers. By way of example, an action which is duplicative of the cause of action in earlier proceedings may, in appropriate circumstances be struck out for abuse of process even though it is not barred by cause of action estoppel.

Decision

The decision of the First PAT to allow the respondent’s appeal on the ground of new evidence and not to remit the matter was final. The Court rejected the contention that the PAT has no power under Rule 22 to remit a case which has proceeded on the fast track under Part 5 to be reheard under Part 4. It is possible for the appropriate authority to consider, in advance of the decision of the PAT whether, should an appeal be successful, the PAT should remit the matter for rehearing because the officer concerned still has a case to answer. It was held that ‘it cannot have been the intention of the drafter or of parliament that, even though the PAT has no power to remit where the appeal succeeded on that ground, the appropriate authority could nevertheless bring new disciplinary proceedings in relation to the same conduct’ [73].

The next issue was whether the First PAT decision was ‘on the merits’. The Court held that Coulson J erred when he failed to distinguish between the two distinct parts of the first PAT decision – the decision to allow the appeal, and the decision not to remit, and to apply the ‘on the merits’ requirement of cause of action estoppel to the latter as well as the former. The decision not to remit was not a decision on the merits of the case; the PAT merely holding that the new evidence could have materially affected the outcome rather than pronouncing on whether or not the allegations of misconduct were made out. The decision to remit the case for hearing under Part 4 did not involve any judicial decision that there was no case to answer. The First PAT simply acceded to a request by all parties not the remit the matter; the parties knowing that the Chief Constable’s intention was to start fresh misconduct proceedings.

It was therefore held that the decision of the First PAT did not give rise to a cause of action estoppel precluding the commencement of the second disciplinary proceedings. However, that was not the end of the matter; there then must be consideration of whether it was nonetheless an abuse of process for the appropriate authority to commence the second disciplinary proceedings for precisely the same conduct as was the subject of the first?

On the particular facts of the present case, it was held that it was not an abuse of process. The letters from Mr Ring show that the respondent was clearly put on notice that in the event of the anticipated reinstatement of the respondent by the First PAT, it was the intention of the appropriate authority to refer him to a gross misconduct hearing. Underhill LJ stated that there was no substantial unfairness to the respondent; ‘The point taken on this appeal [by the respondent] has only been open to him because the Chief Constable decided to start fresh proceedings rather than ask for remittal. This may have been because he thought that this was the only course procedurally open to him. If so, I agree with the Master of the Rolls that that view was mistaken. But the mistake was only procedural: the Respondent always knew that the Chief Constable intended to take the course which he did and raised no objection.

This case makes it clear that there is nothing in Rule 22 which expressly precludes the PAT from remitting a case, which has been conducted on the fast track under Part 5, for a rehearing under Part 4.

The case also helpfully analyses the requirements for cause of action estoppel and how it differs in principle and nature from abuse of process.