Neutral Citation Number:  EWCA Civ 34
Case No: C1/2016/3250
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
 EWHC 1239 (Admin)
Royal Courts of Justice
Strand, London, WC2A 2LL
THE MASTER OF THE ROLLS
LORD JUSTICE UNDERHILL
LORD JUSTICE HOLROYDE
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|THE CHIEF CONSTABLE OF NOTTINGHAMSHIRE POLICE||Appellant/
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|R (on the application of Trevor GRAY)||Respondent/Claimant|
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|THE POLICE APPEALS TRIBUNAL||Interested Party/
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John Beggs QC and Cecily White (instructed by East Midlands Police Legal Services Unit) for the Appellant
Paul Greaney QC and Steven Crossley (instructed by Rebian Solicitors) for the Respondent
The Interested Party did not appear and was not represented
Hearing date : 12 December 2017
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Sir Terence Etherton MR:
- This is an appeal in judicial review proceedings concerning the application of cause of action estoppel and abuse of process to a second set of police disciplinary proceedings, the respondent having successfully appealed against a finding of gross misconduct in a first set of disciplinary proceedings, where both sets of proceedings are in respect of the same alleged misconduct.
- The appeal is by the Chief Constable of Nottinghamshire, who is joined to these proceedings as an Interested Party, from the order of Coulson J dated 29 July 2016 by which he quashed the decision of the defendant, the Police Appeals Tribunal (“the PAT”), dated 27 May 2015. The PAT’s decision, made in the second set of disciplinary proceedings in issue in this case, was to dismiss an appeal by the respondent, Mr Trevor Gray (“the respondent”), from the decision of a police misconduct panel that he had conducted himself in a manner which constituted gross misconduct and that he should be dismissed from the police service without notice.
The legislative context
- The two sets of police disciplinary proceedings which are in issue on this appeal were governed by regulations made by the Secretary of State in exercise of powers conferred by the Police Act 1996. As a result of the length of time over which the two sets of disciplinary proceedings (including appeals) took place, there were four sets of regulations which were in play at different times: the Police (Conduct) Regulations 2008 (“the 2008 Regulations”), the Police Appeals Tribunal Rules 2008 (“the 2008 Rules”), the Police (Conduct) Regulations 2012 (“the 2012 Regulations”) and the Police Appeals Tribunals Rules 2012 (“the 2012 Rules”). It is not necessary to go into any detail in respect of the applicable transitional provisions, save to say that the 2008 Regulations, the 2008 Rules (other than Rule 22) and Rule 22 of the 2012 Rules (“Rule 22”) applied to both sets of disciplinary proceedings. Neither the 2012 Regulations nor the 2012 Rules (other than Rule 22) play a significant role in the resolution of the matters in issue on this appeal and it is not necessary to refer to them further. Any references in this judgment to a regulation is a reference to a regulation in the 2008 Regulations.
- The initiative and authority to make many of the important procedural decisions in police disciplinary proceedings lie with “the appropriate authority”. It is, for example, for the appropriate authority to assess whether the relevant conduct of the police officer would, if proved, amount to misconduct or gross misconduct or neither; to appoint a person to investigate the matter; to determine whether the officer concerned has a case to answer in respect of misconduct or gross misconduct; to refer the case to misconduct proceedings; to appoint a person to conduct the misconduct meeting; and to appoint the panel of three persons to conduct the misconduct hearing. The expression “appropriate authority” is defined in Reg. 3(1) to mean, in any case other than one in which the officer concerned is a senior officer, the chief officer of police of the police force concerned.
- Part 5 of the 2008 Regulations (“Part 5”) lays down a “fast track procedure for special cases”. This fast track procedure is only available where “special conditions” are satisfied. The expression “special conditions” is defined in Reg. 3(1) to mean:
“(i) there is sufficient evidence, in the form of written statements or other documents, without the need for further evidence, whether written or oral, to establish on the balance of probabilities that the conduct of the officer concerned constitutes gross misconduct; and
(ii) it is in the public interest for the officer concerned to cease to be a police officer without delay.”
- “Misconduct” is defined in Reg. 3(1) to mean “a breach of the Standards of Professional Behaviour”, and “gross misconduct” is defined to mean “a breach of the Standards of Professional Behaviour so serious that dismissal would be justified”. The Standards of Professional Behaviour are set out in the schedule to the 2008 Regulations.
- Where the “special conditions” are not satisfied, the misconduct proceedings are conducted in accordance with the provisions of Part 4 of the 2008 Regulations (“Part 4”).
- If the fast track procedure under Part 5 applies, the case is referred to a special case hearing (under Reg. 41), and the appropriate authority must as soon as practicable give the officer concerned written notice that it has been so referred (under Reg. 43).
- 45 provides that, before the end of seven working days beginning with the first working day after the written notice has been given to the officer concerned, the officer shall provide to the appropriate authority: (a) written notice of whether or not he accepts that his conduct amounts to gross misconduct; (b) where he accepts that his conduct amounts to gross misconduct, any written submission he wishes to make in mitigation; (c) where he does not accept that his conduct amounts to gross misconduct, written notice of (i) the allegations he disputes and his account of the relevant events; and (ii) any argument on points of law he wishes to be considered by the person or persons conducting the special case hearing. Within the same period, the officer concerned must provide the appropriate authority with a copy of any document he intends to rely on at the hearing.
- 54 sets out the procedure at a special case hearing. Reg 54(5) provides that no witnesses, other than the officer concerned, shall give evidence. Reg. 54(13) provides that the person or persons conducting the special case hearing shall review the facts of the case and decide whether or not the conduct of the officer concerned amounts to gross misconduct. Reg 54(14) provides that the person or persons conducting the special case hearing shall not find that the conduct of the officer concerned amounts to gross misconduct unless (a) he is or they are satisfied on the balance of probabilities that this is the case; or (b) the officer concerned admits it is the case.
- The 2008 Rules deal with, among other things, appeals to the PAT against findings of misconduct or gross misconduct at a misconduct hearing under Part 4 or a special case hearing under Part 5 and disciplinary action imposed in consequence of that finding. Rule 4(4) of the 2008 Rules (“Rule 4(4)”) sets out the permissible grounds of appeal, as follows:
“(a) that the finding or disciplinary action imposed was unreasonable; or
(b) that there is evidence that could not reasonably have been considered at the original hearing which could have materially affected the finding or decision on disciplinary action; or
(c) that there was a breach of the procedures set out in the Conduct Regulations, the Police (Complaints and Misconduct) Regulations 2004, Schedule 3 to the Police Reform Act 2002 or other unfairness which could have materially affected the finding or decision on disciplinary action.”
- Rule 22 is, so far as relevant, as follows:
“(1) The tribunal shall determine whether the ground or grounds of appeal on which the appellant relies have been made out.
(2) Where the tribunal determines that a ground of appeal under rule 4(4)(b) … has been made out, the tribunal may set aside the relevant decision and remit the matter to be decided again in accordance with the relevant provisions of the Conduct Regulations …
(3) Where the tribunal remits the matter under paragraph (2) and the relevant decision was the decision of a panel (“the original panel”), the matter shall be decided by a fresh panel which is constituted in accordance with the relevant provisions of the Conduct Regulations … but does not contain any of the members of the original panel.
(5) The chair shall prepare a written statement of the tribunal’s determination of the appeal and of the reasons for the decision…”
The disciplinary proceedings
- The respondent, then a detective sergeant with the Nottinghamshire police force, spent the evening of 23 July 2011 out with N, a female friend. They went back to her house. N said she did not feel well and went to bed. The respondent left the address but returned shortly afterwards in the early hours of 24 July. It is not in dispute that sexual activity, including anal intercourse, then took place. The respondent said that it was all consensual. N said that it was not.
- The respondent was charged with sexual assault, attempted rape and anal rape. On 30 May 2012, at Derby Crown Court, the respondent was convicted of those three offences. He was sentenced to 8 years’ imprisonment.
The first disciplinary proceedings
- The appropriate authority for the purposes of the 2008 Regulations at that time was the temporary Chief Constable of Nottinghamshire, Mr Christopher Eyre (“the TCC”). The TCC decided that the special conditions for fast track disciplinary proceedings under Part 5 against the respondent were satisfied. The respondent was given a notice under Reg. 43 of the Regulations that there would be a special case hearing into his alleged misconduct at Nottingham Prison on 20 September 2012. The notice said that the respondent’s conduct fell below that required by the Standards of Professional Behaviour in the respects specified in three numbered paragraphs. The first paragraph set out the alleged facts of what had happened at N’s house in the early hours of 24 July 2011. The second paragraph set out the convictions on 30 May 2012. The third paragraph said that each of these amounted to gross misconduct.
- The hearing at Nottingham Prison on 20 September 2012 was chaired by the TCC. He found all the breaches proven and dismissed the respondent with immediate effect (“the TCC Decision”).
The quashing of the convictions and the re-trial
- The respondent appealed against his convictions on the ground of new evidence which had come to light since the trial. The new evidence was that of M, a taxi driver who had collected the respondent from N’s house the morning after the alleged offences, and who recalled their intimate and affectionate parting. On 2 July 2013 the appeal was allowed by the Court of Appeal (Criminal Division), the convictions were quashed and the respondent was ordered to be retried.
- At the retrial at Birmingham Crown Court, in which the new evidence was deployed, the respondent was acquitted on all counts on 3 February 2014.
The First PAT Decision
- The respondent appealed the TCC Decision. In his notice and grounds of appeal, he relied on, among other things, the quashing of his convictions and his subsequent acquittal.
- In a letter dated 26 March 2014 from Mr David Ring, the solicitor for the appropriate authority, to the Office of the Nottinghamshire PCC (“the ONPCC”), who acted for the appeal tribunal, Mr Ring said that it was accepted that, in view of the respondent’s acquittal on all allegations against him, 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 letter dated 28 March 2014 from Mr Ring to the respondent’s solicitors 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. Mr Ring said that the decision had also been made that, upon the respondent’s reinstatement, he would be suspended from duty pending the outcome of the new misconduct proceedings. That letter, and related email correspondence between Mr Ring and the respondent’s solicitors between 28 March 2014 and 2 April 2014, were not disclosed to Coulson J.
- In a written review dated 3 April 2014 (“the First PAT Review”) Ms Joanna Greenberg QC, as chair of the appeal tribunal (“the First PAT”), said that the appeal was allowed and, given the acquittal and taking into account the view expressed in Mr Ring’s letter of 26 March 2014, that the case should not be remitted for rehearing under Rule 22(2). She also said that the respondent should be reinstated in the Nottinghamshire Police Force in the rank of sergeant.
- The formal order of the First PAT dated 9 April 2014 (“the First PAT Decision”): (1) 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, (2) ordered that the matter was not to be remitted to be decided again under Rule 22(2), and (3) directed that the respondent be reinstated at the Nottinghamshire Police Force in the rank of sergeant.
The second disciplinary proceedings
- On 11 April 2014, two days after the First PAT Decision, the appropriate authority issued a notice to the respondent under Reg. 21 notifying him of a fresh referral of misconduct proceedings, this time under Part 4. The allegations of misconduct were precisely the same as those in the first paragraph of the notice under Reg. 43 which had been given to the respondent in the first disciplinary proceedings.
- The hearing of the second disciplinary proceedings took place before an independent panel, appointed under the 2008 Regulations, between 18 and 22 August 2014. Early in that hearing the panel gave an oral ruling rejecting the submissions advanced at the outset on behalf of the respondent relating to res judicata. The note of the panel’s ruling states as follows:
“The Panel has given consideration into the matter of whether or not the fast track hearing of 20 September 2012 was a final decision on the merits of the case … however, in relation to this point, the Panel accepts legal advice that it is not necessary for us at this time to form a judgment on that particular point. This is because it is in our judgment that the finding of the PAT tribunal of 3 April 2014 supersedes that consideration. The Panel accepts our legal advice that no subsisting determination on the merits on the issues in this case was made by the PAT tribunal on that occasion, which means that at this time now there is no subsisting determination on the merits on the facts in this case. We have also considered the relevance of the fact that the PAT did not remit the matter to be decided by a fresh disciplinary panel. We consider that this is not directly relevant as the institution of police disciplinary proceeding is a matter solely for the appropriate authority. For these reasons, the Panel’s decision is that res judicata does not apply and on two points. The decision of the PAT in rescinding the first decision means that it no longer subsists and the PAT did not then itself make final decisions on the merits of the case.”
- The panel, having considered the evidence, found on 22 August 2014 that gross misconduct was proven. The respondent was once again dismissed without notice.
The Second PAT Decision
- The respondent appealed the panel’s ruling, and the finding of gross misconduct, to the PAT (“the Second PAT”). There was an oral hearing at which the status and effect of the First PAT Review and the First PAT Decision were one of the principal topics. In a subsequent written ruling dated 27 May 2015 prepared by Mr Mukhtar Hussain QC, the chair of the Second PAT, the Second PAT dismissed the appeal (“the Second PAT Decision”). The relevant parts of the Second PAT Decision are as follows:
“26. On the evidence before us, we are satisfied that the Panel did not take into account any irrelevant matter nor failed to take into account all relevant matters when reaching their decision. We agree with the Panel and reject the appellant’s submission that the issues raised before them had already been considered on merit and a final decision reached. Whilst we have reservations as to the decision of the TCC [of September 2014] being unlawful, we accept the submissions made on behalf of the Respondent and are satisfied that his decision on this issue was clearly without jurisdiction. It is clear that Part 5 procedure did not apply. The appellant was denying the charge and there was clear dispute as to the facts that could only be resolved after hearing witnesses which could only be done under Part 4 procedure. Furthermore we are also satisfied that there had been no final decision on merit on this issue. The Special Case Hearing was held in prison … the hearing itself lasted a very short time. We therefore consider that there has been no final decision on merits on this issue …”
The present proceedings
- In the present judicial review proceedings, commenced by a claim form issued on 10 July 2015, the respondent claimed an order quashing the Second PAT Decision and a declaration that the second disciplinary proceedings were prohibited by operation of law and the decision on 22 August 2014 was unlawful and a nullity.
The judgment of Coulson J
- The claim against the Second PAT Decision was heard by Coulson J on 25 May 2016. He handed down a careful and detailed judgment on 29 July 2016 in which he allowed the claim. His reasoning may be briefly summarised as follows.
- He said (at ) that finality and legal certainty are fundamental to the rule of law and are important for social and commercial interaction.
- He referred (at ) to the six constituent elements of the form of res judicata known as cause of action estoppel, as set out by Lord Clarke in R (Coke-Wallis) v Institute of Chartered Accountants  UKSC 1,  2 AC 146 at para , which include the requirement that the original decision giving rise to the estoppel was final and on the merits.
- He noted (at -), citing Coke-Wallis, that those constituent elements apply to the findings of tribunals in disciplinary proceedings.
- He also noted (at ), citing R (Redgrave) v Commissioner of Police of the Metropolis  EWCA Civ 4,  1 WLR 136 and Ashraf v General Dental Council  EWHC 2618 (Admin),  ICR 1244, that the fact that parallel criminal proceedings resulted in an acquittal does not of itself give rise to res judicata, and neither does it make the subsequent pursuit of disciplinary proceedings inherently unfair, although in certain circumstances it may do so.
- He said (at ) that the principal issue concerned the First PAT Decision, and in particular whether the decision to allow the appeal and not to remit the matter to be decided again, gave rise to res judicata, thus rendering the second disciplinary proceedings a nullity. He noted that an integral part of this analysis was whether the First PAT Decision was final and a decision on the merits.
- Although Coulson J found that it was probably unnecessary for him to do so, he considered (at -) the TCC Decision and concluded that it was a final decision, subject to any appeal (which was what subsequently happened), and was also plainly a decision on the merits. He also concluded (at - and ) that the TCC Decision was not unlawful and so not a nullity. Further, were it necessary to do so, he said that he would conclude that the appropriate authority was estopped from arguing that the TCC Decision was unlawful in circumstances where the appropriate authority had assumed the TCC Decision to be lawful, and where the respondent had participated in good faith throughout the subsequent proceedings. In any case, Coulson J found that the TCC Decision was and is ultimately irrelevant to the res judicata issue that instead concerns the First PAT Decision.
- Coulson J considered (at -) that it was open to the First PAT, had they wished to do so, to remit the first disciplinary proceedings under Rule 22(2) for a rehearing under Part 4.
- Coulson J said (at -) that he was in no doubt that the First PAT Decision was a final decision, and he also held that it was a decision on the merits. This was, in his view, apparent from the importance placed by the First PAT on the respondent’s acquittal and the PAT’s consideration of the evidence and the underlying merits of the allegations. Further, the decision not to remit the matter to be decided again meant, in his view, that no further decision on the merits was envisaged or required by the First PAT.
- Accordingly, (at - and ) he quashed the Second PAT Decision on the basis that, because the First PAT Decision was both final and on the merits, the principle of res judicata was a bar to the Second PAT Decision.
The appeal to the Court of Appeal
- The appellant appeals on four grounds, all of which underlie the overarching argument that the Second PAT Decision is not barred by operation of res judicata. These grounds are that Coulson J erred: (1) in portraying as being inherently abusive and unfair the instigation of disciplinary proceedings following the conclusion of criminal proceedings against a professional; (2) in holding the TCC Decision to be both final and on the merits and in holding that the entire decision was lawful and not a nullity; (3) in holding the First PAT Decision to be final and on the merits; and (4) in concluding that the Second PAT Decision was inadequate in any respect.
- There is a respondent’s notice. The notice does not appear to have been intended to set out additional grounds for upholding the judgment of Coulson J (in accordance with CPR 52.13(2)(b)) but rather it was a statement of reasons why permission to appeal should not be given. There is no need for me to refer to it further.
The legal principles
- At the heart of the appeal is the question whether the Judge was correct to hold that the First PAT Decision to allow the appeal and not to remit the matter to be decided again was a final decision on the merits for the purposes of cause of action estoppel and had the consequence that the second disciplinary proceedings were barred.
- It is common ground that cause of action estoppel applies to successive sets of professional disciplinary proceedings: R (Coke-Wallis) v Institute of Chartered Accountants  UKSC 1,  2 AC 146 at .
- It is also common ground that the constituent elements of cause of action estoppel were the following six matters specified by Lord Clarke JSC in Coke-Wallis at , endorsing paragraph 1.02 of Spencer Bower and Handley on Res Judicata (4th ed, 2009): (1) the decision, whether domestic or foreign, 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 or their privies, or the earlier decision was in rem. The critical issue in the present case is factor (4).
- Cause of action estoppel is absolute in relation to all points which had to be and were decided in order to establish the existence or non-existence of a cause of action: Arnold v National Westminster Bank Plc (No. 1)  2 AC 93; Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd  UKSC 46,  AC 160 at .
- It was common ground before us that principles of abuse of process apply to police disciplinary proceedings. This is implicit in the judgments of the Court of Appeal in R v Chief Constable of the Merseyside Police, ex parte Merrill  1 WLR 1077 and was the basis for the decision of May LJ in R v Chief Constable of the Merseyside Police ex parte Calveley  QB 424 at 439G-H.
- 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, whilst abuse of process is a concept which informs the exercise of the court’s procedural powers: Virgin Atlantic Airways at  (Lord Sumption JSC, with whom the other Justices agreed).
- It is difficult to identify, in the context of res judicata in general and cause of action estoppel in particular, an authoritative meaning of the expression “on the merits” applicable to all circumstances. Most of the authorities on the point concern issue estoppel. That was the situation in The Sennar (No. 2) 1985 1 WLR 490, in which Lord Brandon, in a passage on which the appellant relies, said (at 499F-G):
“Looking at the matter negatively a decision on procedure alone is not a decision on the merits. Looking at the matter positively a decision on the merits is a decision which establishes certain facts as proved or not in dispute; states what are the relevant principles of law applicable to such facts; and expresses a conclusion with regard to the effect of applying those principles to the factual situation concerned.”
- On the face of it, that is rather different from the following explanation by Lord Diplock in the same case (at 494B):
“It is often said that the final judgment of the foreign court must be “on the merits.” The moral overtones which this expression tends to conjure up may make it misleading. What it means in the context of judgments delivered by courts of justice is that the court has held that it has jurisdiction to adjudicate upon an issue raised in the cause of action to which the particular set of facts give rise; and that its judgment on that cause of action is one that cannot be varied, re-opened or set aside by the court that delivered it or any other court of co-ordinate jurisdiction although it may be subject to appeal to a court of higher jurisdiction.”
- That description focuses on the finality of the decision as distinct from the need for an analytical adjudication on the basis of law and evidence. The other three members of the appellate committee agreed with both Lord Diplock and Lord Brandon.
- Neither counsel before us nor the Judge in his judgment addressed the question whether there is any distinction between cause of action estoppel and issue estoppel as regards a requirement that the first determination was “on the merits”. Apart from a reference by Mr John Beggs QC, for the appellant, to the passage in Lord Brandon’s speech in The Sennar (No 2) quoted above, neither counsel nor the Judge referred to any authority on what constitutes “on the merits” for the purposes of cause of action estoppel. My impression is that the Judge assumed and Mr Paul Greaney QC, for the respondent, did not oppose the thrust of the appellant’s case that a cause of action estoppel will only arise if, among 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.
- In principle, but without the benefit of legal argument, that would seem to me to be correct. Lord Clarke’s endorsement of the six elements of cause of action estoppel is binding on this court. The fourth factor is expressed to constitute two separate requirements that the decision was both (a) final and (b) on the merits. Accordingly, finality in the sense described by Lord Diplock in The Sennar (No. 2) is not sufficient. There is an additional requirement of 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. This makes sense in the light of Lord Sumption’s distinction in Virgin Atlantic Airways between, on the one hand, res judicata as a rule of substantive law and, on the other hand, the court’s procedural powers to prevent abuse of process. An action which is duplicative of the cause of action in earlier proceedings may, in appropriate circumstances be struck out or dismissed for abuse of process even though it is not barred by cause of action estoppel.
- That analysis may be said to be at odds with authority that a default judgment may give rise to an estoppel. There are, for example, statements to that effect in New Brunswick Railway Company v British and French Trust Corporation Ltd  AC 2 and Hoong v Leong Cheong Kweng Mines Ltd  AC 993 (PC). As I have said, we have not had the benefit of any submissions by counsel on this matter. There would appear to be at least six reasons to treat those statements with caution. Firstly, they were all obiter since in neither case was it held that there was an estoppel. Secondly, they were cases of issue estoppel. Thirdly, the members of the appellate committee in New Brunswick Railway did not speak with one voice on the subject. Fourthly, it was emphasised in Hoong that any estoppel arising from a default judgment must be given a restricted operation and was limited to what must necessarily and with complete precision have been determined. Fifthly, there are different types of default judgments. In some cases, for example most non-money claims, it is not possible to obtain an order automatically but will require an application to a judge to satisfy himself or herself that the relief sought is justified on the alleged facts: see CPR r.12.4. It would appear that this was the situation in New Brunswick Railway Company where in the earlier action, following the failure of the appellants to enter an appearance in the action, the respondents had filed a notice of motion for judgment in the same terms as the relief claimed (which included a declaration as to the proper construction of the bond in question). There is no difficulty in regarding a judgment in those circumstances as “on the merits”. Sixthly, those decisions were given without the benefit of the most recent analysis in Virgin Atlantic Airways, drawing a distinction between cause of action estoppel as a rule of substantive law and abuse of process.
The TCC Decision
- The Judge took the view that the TCC Decision is irrelevant to the res judicata argument because it was superseded by the First PAT Decision. The appellant contends, to the contrary, that the TCC Decision forms an important part of the history of the case and an important component of his argument. I agree. If the TCC Decision was not itself a decision on the merits, it is difficult to see how the appeal could have given rise to a cause of action estoppel. The appeal from the TCC Decision was only on the ground of new evidence, which made the TCC Decision unsafe. A successful appeal on that ground cannot have changed an original decision by the TCC which was not on the merits into one which was.
- Although the Judge considered it was probably unnecessary for him to answer the question whether or not the TCC Decision was final and on the merits, he did proceed to consider and answer that question. He rejected (what he understood to be) the appellant’s two arguments that it was not on the merits because (1) insofar as it was necessary to reach a conclusion on the factual allegations against the respondent, the conditions for special case proceedings were not satisfied and the proceedings were a nullity, and (2) insofar as there was merely reliance on the fact of the conviction, there was no decision on the merits.
- The Judge rejected both those arguments. He was right to do so.
- On the issue of nullity and the lawfulness of the first set of disciplinary proceedings, the appellant’s case is that the proceedings were unlawful and a nullity if and insofar as they were based on anything other than the fact of the respondent’s criminal conviction. The argument is that the fast track procedure under Part 5 is only intended for cases where the evidence is incontrovertible, typically (but not only) where the appropriate authority relies on a criminal conviction, since (under Reg. 54(5)) the officer is not entitled to call any witnesses other than himself or herself. The “special conditions”, which are a pre-requisite of fast track proceedings under Part 5, envisage cases where gross misconduct can be established on a balance of probabilities on the basis of written statements and other documents alone and where a speedy resolution of disciplinary proceedings for gross misconduct is in the public interest.
- For a description of the type of case for which Part 5 is suitable, the appellant relies upon paragraph 2 of Annex A of the Home Office Guidance on Police Officer Misconduct, Unsatisfactory Performance and Attendance Management Procedures (Version 1.1) and the following statements of His Honour Judge Pelling QC in R (Gannon) v Chief Constable of Merseyside Police  EWHC 2133 (Admin):
“12. … The Fast Track procedure was created in order to provide a cheaper and quicker alternative where fairness could be achieved without the need for a Part 4 hearing. Where the material facts alleged to constitute gross misconduct are either admitted or are incapable of realistic dispute, then the focus of any hearing should be on whether the facts alleged or incapable of realistic dispute amount to gross misconduct and on any mitigation. It is only in relation to a case where there is no or no realistic dispute as to the facts alleged and/or there is no or no realistic dispute as to any factual evidence relevant to whether the factual allegations constitute gross misconduct that the Part 5 procedure will be fair.”
“17. However, it is necessary to emphasise that aside from cases where the factual allegations are or the relevant evidence is admitted or not denied, the only circumstance when it will be appropriate to proceed under the Fast Track procedure is where the challenge to the factual allegations or evidence can properly be characterised as unrealistic. A challenge is not likely to be unrealistic in this sense where there is a conflict between witnesses concerning the critical factual allegations made against the officer. This is so because the person deciding the Regulation 42(1) application cannot rationally decide to prefer one witness’s evidence over that of another without hearing the evidence of each witness and thus there is by definition insufficient evidence to establish on the balance of probabilities the factual allegation concerned. The only exceptions to this principle that are likely to arise in practice are either where the officer’s challenge is inherently incredible or where there is compelling evidence that is inconsistent with the officer’s challenge and which itself is incapable of credible challenge. Cases falling within the first of these categories are likely to be rare. Cases falling within the second category are likely to arise more frequently. CCTV film is a potential example of such evidence. Contemporary documentation is another.”
- As the Judge observed, those comments were rightly cited with approval by Burnett J (as he then was) in R (Evans) v Chief Constable of Sussex  EWHC 2329 (Admin) at .
- I do not agree, however, that the first disciplinary proceedings were unlawful, and therefore a nullity. Although the respondent has always denied that he committed the offences which were the subject of the criminal proceedings and of the first and second disciplinary proceedings, the TCC hearing took place in circumstances where the respondent did not, pursuant to Reg. 45(1)(c), give any notice that (1) he wished to dispute particular factual allegations or (2) to present a contrary account of the relevant events to those in the statements on which the appropriate authority relied or (3) he wished to call oral evidence or (4) he had any objection to the fast track procedure under Part 5. Even now, the respondent makes no complaint about the use of the fast track procedure. In those circumstances, it is simply impossible for the appellant, in effect the TCC’s successor, to contend several years later that the first disciplinary proceedings can be entirely ignored as having no legal consequences.
- The appellant contends that, in any event, the TCC Decision was not “on the merits” because in reality it was based entirely on the fact of the respondent’s conviction. That is plainly wrong.
- The notice to the respondent under Reg. 43 that there would be a special case hearing described the alleged breach of the Standards of Professional Behaviour. The factual matters relied upon were set out in two separate paragraphs. The first paragraph stated the respondent’s physical actions which constituted the alleged gross misconduct and when and where they had taken place. The second referred to the conviction.
- At the TCC hearing itself, the lawyer presenting the case against the respondent requested the TCC to make findings of fact. He said as follows:
“ … firstly, you’re asked to consider whether or not the behaviour complained of, namely the contact with N … is proved on the basis of the evidence before you and I’ll simply say this, that on the balance of probabilities the evidence of the … complainant in my submission is both compelling and consistent as an account and is partially corroborated by the subsequent accounts which she made very shortly after the incident and that it would be open to you to find simply on those facts alone that the case on that matter is proved. Against that of course is this officer’s account given in interview … I would ask you to find that in fact that account is implausible when taken against the other evidence within the bundle you have and that it’s open to you to find on a balance of probabilities that those particular allegations are proven in any event”.
- The TCC had available the principal witness statements from the criminal prosecution of the respondent as well as accounts given in interview by N and the respondent and other documents.
- The TCC Decision dated 24 September 2012 made clear that, in reaching his conclusion that the respondent was guilty of gross misconduct, the TCC had evaluated the evidence, not limited to the fact of conviction, and found the conduct of the respondent alleged in the first paragraph of the Reg. 43 notice proved. In that connection, his written decision stated as follows.
“The compelling evidence from N’s interviews; the clear evidence from DS Gray and N that he had been asked to leave her house; the clear evidence from text communications that, having left, he regarded her as ‘harsh’ for asking him to leave; the physical evidence and admission of DS Gray’s subsequent forced entry to 17, Bailey Drive; the evidence of early complaint of non-consensual sexual activity by N; and the consistent corroborative evidence from J and S; collectively satisfied me that on balance of probabilities all of the above facts were without N’s consent. I therefore found this breach proven.”
- For all those reasons, the TCC Decision was a lawful decision on the merits. It was also final, subject to an appeal, which is what subsequently happened.
The First PAT
- I agree with the Judge that the decision of the First PAT to allow the respondent’s appeal against the finding of gross misconduct on the ground of new evidence which could have materially affected the finding, and not to remit the matter to be decided again under Rule 22(2), was final. It was not subject to any further procedural appeal and it concluded the first disciplinary proceedings.
- In agreement with the Judge, I do not accept the appellant’s submission that it was not a final decision because, although it was final as to the fast track proceedings under Part 5, the First PAT’s decision not to remit could not preclude the right of the appropriate authority to commence new disciplinary proceedings under Part 4. In support of that submission Mr Beggs contended 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. Again, in agreement with the Judge, I reject that contention.
- Mr Beggs submitted that ability to remit a case on the fast track to the ordinary track under Part 4 cannot have been intended because, not only is there no express mention of such a power in Rule 22, but such remission would deprive the appropriate authority of the ability to decide under Reg. 19 whether or not, in all the circumstances then prevailing, the officer concerned has a case to answer. That would also, he said, be unfair to the officer concerned. He also emphasised that, in accordance with Reg. 25(4), it is the appropriate authority which appoints the panel for a misconduct hearing.
- I do not agree with either of those objections. First, 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. Indeed, it would appear to be implicit in Rule 22 that the PAT may do precisely that since Rule 22(2) stipulates that the matter may be remitted where the original decision has been set aside on the ground (in Rule 4(4)(b)) that there is new evidence that could not reasonably have been considered at the original hearing and which could have materially affected the finding or decision on disciplinary action. It is precisely in the case of such new evidence, as in the present case, that the fast track procedure is likely to be inappropriate. Moreover, Rule 22(3) expressly requires any remission to be to a fresh panel which does not contain any of the members of the original panel.
- In the second place, it will presumably be possible for the appropriate authority to consider, in advance of the decision of the PAT, whether, should the appeal be successful, the PAT should nevertheless be requested to remit the matter for rehearing because the officer concerned still has a case to answer. That was precisely the position in the present case where an assessment under Reg. 19 was carried out and a written report dated 21 March 2014 was submitted by Deputy Chief Constable Susannah Fish advising that there was a case to answer for gross misconduct notwithstanding the respondent’s acquittal and that, following the anticipated reinstatement of the respondent by the First PAT, misconduct proceedings against the respondent should follow.
- In any event, even if the PAT ordered that the matter be remitted, there is nothing to preclude the appropriate authority at any time, having reviewed the evidence and all the circumstances, from bringing the disciplinary proceedings to an end.
- In the third place, I see no reason why, on remission for a rehearing under Part 4 of disciplinary proceedings which had previously been conducted under Part 5, the appropriate authority should not continue to have the right to appoint the new panel. Rule 22(3) expressly provides that the fresh panel shall be constituted in accordance with the relevant provisions of the Conduct Regulations.
- Finally, I would reject the alternative submission of Mr Beggs on the finality of the First PAT’s decision that, even if the First PAT had power to remit the matter for a fresh hearing under Part 4, this did not make it impermissible for the appropriate authority to commence new disciplinary proceedings under Part 4. The plain inference of Rule 22(2) is that a decision by the PAT not to remit finally determines whether or not there has been gross misconduct for the purposes of both Part 5 and Part 4. Apart from the general principle of public policy favouring finality in legal disputes, that conclusion follows inexorably from the absence of any power to remit for rehearing where the ground of appeal is that under Rule 4(4)(a), namely that the finding or the disciplinary action imposed was unreasonable. 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.
- The next issue, in the context of cause of action estoppel, is whether the First PAT Decision was “on the merits”. The Judge concluded that it was. He based his conclusion on the First PAT’s reliance in the First PAT Review on the fact of the acquittal, the new evidence of M, which was not available or known at the time of the original hearing, and the decision not to remit.
- I agree with the Judge, on this issue, to the extent that the decision to allow the appeal was “on the merits”. It is clear from paragraph 16 of the First PAT Decision that, in allowing the appeal, the First PAT did not rely solely on the acquittal but took into account the new evidence of M.
- Mr Beggs argued that, although the First PAT Decision was “on the merits” for the purposes of Part 5, it was not “on the merits” for the purposes of Part 4. There is a good point underlying that submission but which is better expressed in different language. I would express the point as being that the decision not to remit was not based on any evaluation of the evidence as a whole in order to assess whether, notwithstanding M’s evidence, the appellant still had a case to answer in respect of misconduct or gross misconduct. The only matters mentioned in paragraph 17 of the First PAT Review in relation to the decision not to remit for a rehearing were the acquittal and the view expressed by the appropriate authority in its letter dated 26 March 2014 to the ONPCC that the appeal should be allowed and the respondent formally reinstated as a police officer. Mr Greaney submitted that the words “In addition” at the start of paragraph 17 show that the First PAT also took into account the new evidence of M. Even if, which I seriously doubt, that is correct, it hardly amounts to an indication that, in deciding not to remit, the First PAT took into account all the evidence. That is also borne out by the fact that the First PAT Review said that the new evidence could have materially affected the outcome of the misconduct proceedings, rather than pronouncing on whether or not the allegations of misconduct were actually made out.
- Indeed, Mr Greaney candidly accepted that, if the First PAT had been asked by the appropriate authority to remit, and they had reviewed all the evidential material for that purpose, and if the First PAT had (as I would hold) power to remit to a fresh panel under Part 4, they would have done so. This is not one of those cases where, for example, the alleged conduct, if it had occurred, would not warrant disciplinary proceedings because it does not touch in a relevant way upon the standards and integrity of the police force and the public confidence in it or the need for public protection: cf the example given by Sir Brian Leveson P in Ashraf v General Dental Council  EWHC 2618 (Admin) at .
- The appellant submits that the error of the Judge was to fail to appreciate, or in any event to fail to take sufficiently into account, that criminal proceedings and professional disciplinary proceedings serve different purposes and that an acquittal on criminal charges does not preclude disciplinary proceedings for the same conduct. It is not in dispute that they do indeed serve different purposes and that the maxim “no one ought to be punished twice for the same offence” only applies to other criminal courts of competent jurisdiction and is no bar to the bringing of disciplinary proceedings in respect of the same charge: R (Redgrave) v Commissioner of Police of the Metropolis  EWCA Civ 4,  1 WLR 1136. The purpose of professional disciplinary proceedings is not to punish but to protect the public, to maintain public confidence in the integrity of the profession, and to uphold proper standards of behaviour. Further, different rules of evidence and judicial discretions are likely to apply, and in many cases, including the present case, the civil standard of proof on a balance of probabilities applies: Redgrave; Coke-Wallis at .
- I do not accept that the Judge did not appreciate those distinctions. He cited Redgrave and Ashraf at paragraph  of his judgment and he clearly and expressly noted at paragraphs  and  that, as a matter of principle, the mere fact that a person is acquitted in the Crown Court does not of itself prevent the institution of disciplinary proceedings.
- I respectfully suggest instead that, as outlined in paragraph 76 above and discussed in the following paragraphs, the error of the Judge was that 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.
- For those reasons, the decision of the First PAT did not give rise to a cause of action estoppel precluding the commencement of the second disciplinary proceedings.
- It is not strictly necessary in the circumstances to consider the submission of Mr Beggs, raised only in his oral reply, that the court should hold that there is a public interest exception to the strict application of the doctrine of cause of action estoppel in the context of the fast track procedure under Part 5. An argument in favour of such a public interest exception in the context of professional disciplinary proceedings was raised in Coke-Wallis. Lord Clarke, with whom the other Justices of the Supreme Court agreed, said (at -) that whether and in what circumstances such an exception should be permitted should be left to Parliament. Although Coke-Wallis concerned the conduct of disciplinary proceedings against a chartered accountant, I cannot see that it would be appropriate for us to take a different stance from that of the Supreme Court in that case. Parliament has made no such exception in relation to police misconduct proceedings.
- That is not, however, the end of the matter. It remains to consider whether, nevertheless, it was 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 disciplinary proceedings in circumstances where (1) the appropriate authority never asked the First PAT to remit, (2) the appropriate authority invited the PAT to determine the appeal on the papers and formally reinstate the respondent as a police officer, (3) the First PAT was never informed of the intention of the appropriate authority to commence fresh misconduct proceedings, and (4) a decision of the PAT to set aside the relevant decision and not to remit the matter to be decided again pursuant to Rule 22(2) is intended to be a final determination of the charge of misconduct or gross misconduct.
- On the particular facts of the present case, and on the basis of material that most regrettably was not placed before the Judge, I do not consider that the commencement of the second disciplinary proceedings was an abuse of process. I do not reach that conclusion on the basis of the qualified language of the letter from the appropriate authority’s solicitor to the OPCC dated 26 March 2014:
“The [appropriate authority] accepts for the purposes of these proceedings only that, with the Court proceedings being concluded in [Mr Gray’s] favour, the basis for his dismissal through the “fast track” process has ceased to apply. Accordingly, the [appropriate authority] writes to indicate that, upon this limited basis, it does not resist the Appeal and invites the Tribunal Chair to determine the Appeal on the papers and formally reinstate [Mr Gray] as a police officer.”
- I do not accept Mr Beggs’ submission that this language would have put the First PAT on notice of the intention to commence fresh disciplinary proceedings notwithstanding the reinstatement of the respondent as a police officer. Apart from the distinct lack of clarity on that point from the express language used, there was complete and unhelpful disagreement between Mr Beggs and Mr Greaney as to whether or not it is common or uncommon for fresh disciplinary proceedings to be commenced following a successful appeal in earlier disciplinary proceedings and reinstatement as a result of acquittal on criminal charges relating to the same conduct. Mr Beggs thought it was far from uncommon. Mr Greaney said the present case is unique in that respect.
- On the other hand, I regard it as critical, on the abuse issue, that the communications between the legal representatives of the parties between 28 March 2014 and 2 April 2014, which were never disclosed to the Judge, show that the respondent was put clearly 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. Although it is true that the respondent’s solicitor made clear that he was only instructed in relation to the First PAT, he made no suggestion at all that this would be an impermissible or even inappropriate course of action. Nor did the respondent’s solicitor make any mention, by way of objection to that proposed course of action, to the First PAT of the appropriate authority’s stated intention. The important point is that the respondent was not taken by surprise at all by the immediate commencement of the second disciplinary proceedings following the decision of the First PAT.
- Furthermore, it has not been suggested by the respondent that the decision of the appellant to commence the second disciplinary proceedings rather than ask the First PAT to remit was to gain some improper advantage or was for any other reason than a mistake as to the correct legal process.
- Finally on this aspect, the respondent accepts, as I have said, and as is perfectly plain, that, if the First PAT had reviewed all the evidential material, and had been asked by the appropriate authority to remit, they would have done so.
- For all those reasons, I would allow the appeal.
Lord Justice Underhill :
- I agree that this appeal should be allowed.
- The essential point is that the First PAT cannot be said to have reached a decision “on the merits” about whether the Respondent was guilty of the misconduct charged. As the Master of the Rolls says at para. 76 of his judgment, the PAT’s decision, having allowed the appeal against the decision taken under Part 5, not to remit the case for a hearing under Part 4 did not involve any judicial decision that there was no case to answer. It is clear from Ms Greenberg’s review decision of 3 April 2014 that the PAT took the course it did because neither party sought a remission: that was obviously the Respondent’s position, but by his letter of 26 March Mr Ring made it clear that it was the Chief Constable’s too. We now know that it was in fact the Chief Constable’s intention to start fresh misconduct proceedings, and also that the Respondent knew that, since on 28 March Mr Ring had written to his solicitors saying so (see para. 21 of the Master of the Rolls’ judgment), and it may well be that the PAT was aware of this too: although it was not copied in on the letter of 28 March, Mr Ring’s letter to it of 26 March used language that might well have led an informed reader to understand that further proceedings were contemplated.
- But ultimately it does not matter whether the First PAT knew what was intended. What matters is that it was not asked to, and did not, make any decision on the merits: it simply acceded to the request of both parties that it should not remit. I see nothing in that outcome contrary to the policy underlying the rules about res judicata: there was never any adjudication in the first proceedings that the Respondent was not guilty of the misconduct charged.
- Nor is there any substantial unfairness to the Respondent. The point taken on this appeal 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 this was the only course procedurally open to him. If so, I agree with the Master of the Rolls (see paras. 69-70 of his judgment) 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.
Lord Justice Holroyde :
- I agree with both judgments.