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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Commissioner of Police for the Metropolis, R (on the application of) v Police Appeals Tribunal & Anor [2013] EWHC 1684 (Admin) (20 June 2013) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2013/1684.html Cite as: [2013] EWHC 1684 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
R( Commissioner of Police for the Metropolis) |
Claimant |
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| - and - |
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Police Appeals Tribunal |
Defendant |
|
Joseph Naulls | Interested party |
____________________
Police
Service solicitors) for the Claimant
Kevin Baumber (instructed by Reynolds Dawson) for the Interested Party
No appearance by the Defendant
Hearing dates: 11th June 2013
____________________
Crown Copyright ©
Mr Justice Dingemans
Introduction
Commissioner
of the
Police
for the Metropolis ("the
Commissioner")
to the lawfulness of decisions by the
Police
Appeals Tribunal ("the Appeals Tribunal") announced at the conclusion of the hearing on 21 October 2011, and in a written decision dated 6 November 2011, to order the reinstatement of Inspector
Naulls,
to award costs, and to order the payment of back pay.
Naulls
was stopped travelling in first class on a train out of London Victoria. He was not entitled to first class travel. He lied about what he was doing travelling in first class and where he was going to, and he continued lying until confronted with CCTV evidence on 13 April 2010. At the time Inspector
Naulls
was under severe personal stress, partly because his youngest 4 year old son had a rare genetic condition meaning that he could not walk, talk, sleep properly and whose future was uncertain.
Naulls
was dismissed without notice by a Misconduct Hearing Panel. Inspector
Naulls
appealed against that dismissal and following a hearing on 21 October 2011, the
Police
Appeals Tribunal ("the Appeals Tribunal") decided that the appeal should be allowed as to the disciplinary action taken so that Inspector
Naulls
was reinstated and given a final written warning to last for 18 months. The Appeals Tribunal also decided that Inspector
Naulls'
costs should be paid by the
Police
Authority. Written reasons for that decision were given on 6 November 2011, and it was then also ordered that his pay should be backdated to run from the date of his dismissal.
Commissioner
challenges the decisions of the Appeals Tribunal (1) to order the reinstatement on the grounds that the decision was irrational to order the reinstatement of Inspector
Naulls
in the light of his dishonesty and admitted gross misconduct; (2) to order that Inspector
Naulls
should have his pay from the date of reinstatement on the ground that the Appeals Tribunal's decision was made after it had ceased to have jurisdiction and on the ground that the
Commissioner
had not been asked to address the issue of back pay; and (3) to order that he should have his costs on the grounds that it was irrational because the Appeals Tribunal had not taken account of the fact that the starting position ought to be that the
Police
Authority, as a regulatory body for
police
officers, ought not to be ordered to pay costs.
Naulls,
who is the interested party, resists the challenge. He says (1) that the Appeals Tribunal was entitled, and right, to order his reinstatement because the original Misconduct hearing panel had failed to have proper regard to the stress suffered by Inspector
Naulls
arising from his very unfortunate domestic situation; (2) that the Appeals Tribunal did have jurisdiction to make the order relating to his back pay, and that although the matter was not expressly raised at the hearing, it was an order to be expected and therefore if the
Commissioner
had wanted to address it, he should have done so; (3) the order for costs was properly made for the reasons given by the Tribunal.
Commissioner's
application and put in detailed grounds for contesting the claim. At one stage, as appears below, it seemed as if this application might raise a point of importance about the legal approach to the Appeals Tribunal's jurisdiction on appeal, but this point has now been clarified in other subsequent cases and it became common ground before me. In those circumstances the Appeals Tribunal wrote a letter stating that they continued to resist the application made by the
Commissioner
but because Inspector
Naulls
would be making similar points, and to save costs, they would not attend. This was an obviously sensible approach to take.
Inspector
Naulls
position leading up to 25 January 2010
Naulls.
He was born on 25 May 1962 and was nearly 48 when the present events occurred. He had joined the Metropolitan
Police
Service and had been promoted to Inspector. He was at the time working on
policy
work. He had not had a day off sick since 2006. He had, in December 2009, finally passed his exams to become a Chief Inspector at the ninth attempt. On the 25 January 2010 he had been interviewed for a specific appointment as Chief Inspector and the interview had gone well and he was hoping to get that appointment. He was working on a PhD in criminology. He produced a review in February 2010 on the Section 60 Stop and Search power ("the S60 review"), collating information that he had obtained on the use of the power. He had been married for 19 years and had, at the material time, 3 children aged under 10. He had not sought to access any welfare services provided by the
Police
Service. The
Commissioner
says that Inspector
Naulls
had a successful career, he had acquired significant responsibilities, and he was operating normally.
Naulls
had been seen crying, on occasion, by a more senior officer. Inspector
Naulls
domestic situation was very unfortunate. Inspector
Naulls'
youngest son had been born in May 2006, so that he was nearly 4 at the material time. The youngest son had been diagnosed with a rare genetic condition which meant he was unable to walk. The papers show that the son had some mobility, particularly when provided with a lycra suit, although he had outgrown those on occasions. The son had very limited vocal skills. He did not sleep well, and did not sleep for any length of time. He had coughed blood when suffering from a cold, see the letter dated 1 March 2010. If he had seizures (a known complication arising from the genetic condition) the medical evidence showed that these did not last and only occurred very rarely. He required constant supervision. Much assistance had been provided by Inspector
Naulls'
parents-in-law, but they too had suffered medical problems which had limited their ability to help. The strain that must have been imposed on both Inspector
Naulls
and his wife is obvious.
Naulls
(following his interview on 13 April 2010, details of which are given below) presented to Oxted Health Centre with suicidal ideations. At the material time Inspector
Naulls
appeared, see the letter from Oxted Health Centre dated 29 June 2010, to be in denial about his son's need for long term care. Inspector
Naulls
had, before 14 April 2010, attempted to cope, and to keep these private matters private.
Naulls
was examined on 5 May 2010 by Dr Sukumaran, consultant psychiatrist, following a request by a social worker, as appears from a letter dated 14 May 2010. Dr Sukumaran made a diagnosis of acute stress reaction and recorded, as noted on behalf of the
Commissioner
in submissions, that this suggested that everything was going well until 25 January 2010 "which seems to be the precipitating factor for the current issues". Dr Sukumaran saw Inspector
Naulls
again on 14 May 2010. Inspector
Naulls
had been feeling better in the last few weeks, and was then in a recovery phase.
Naulls'
son was produced by social workers. This was part of a child protection investigation triggered as a result of Inspector
Naulls'
disclosures about his suicidal thoughts. In the course of a second visit noted in the assessment Inspector
Naulls
said "he was feeling much more positive and stated that he felt like a weight had been lifted off of his shoulders because his problems had come out into the open". Coping strategies were suggested and it was recorded that Inspector
Naulls
"used to have to rush home to take Toby to appointments (if Mrs
Naulls
could not do so) and this meant that he did not take time off work to do this and so it impacted on his working life thus causing more stress and anxiety". The report specifically noted that "there appears to be a clear difference now and the past in that Mr
Naulls
acknowledges the problems he has (whereas in the past he did not) and this has provided a problem for him to analyse and reflect upon his mental health situation thus enabling him to carry on his daily life …".
Naulls
had been on holiday with his daughter, had been to Harvard University as part of his PhD, had completed counselling sessions, and was due to return to work. On 30 June 2010 Inspector
Naulls
saw Dr Oxlade, a consultant psychiatrist, as part of the Human Resources provision made by the
Commissioner.
Dr Oxlade recorded that "he has no problems with memory now, and problems that were noted in January regarding his inconsistent stories about what he was doing, should be regarded as related to his state of panic at the time, and the fact that his memory was not working properly when so frightened".
The journey on 25 January 2010 and lies told by Inspector
Naulls
police
officers. This helps to ensure that there are often
police
officers on trains ready to provide assistance when required. This is an important privilege available to
police
officers which should not be abused.
police
officers wrongly travelling in first class accommodation in contravention of the ATOC agreement, a Revenue Protection Officer from Southern Railways, and officers from the Metropolitan
Police
Directorate of Professional Standards ("DPS"), boarded a train travelling from London Victoria to East Grinstead. Inspector
Naulls,
having completed his work in London, had boarded the train and sat in the first class accommodation. He had started to watch a DVD, and was intending to travel to his home station of Hurst Green.
Naulls
and asked to see his ticket. Inspector
Naulls
produced his warrant card, entitling him to standard class, but not first class, travel. Inspector
Naulls
was told that he was not entitled to travel in the first class accommodation and he offered to move to standard class. He and the DPS officers got off the train at Clapham Junction.
Naulls
told the DPS officers that: he was sitting in first class accommodation because he was required to make and receive sensitive phone calls connected to the S60 review; he had been watching the DVD because of poor telephone reception; and he had been getting off at Clapham Junction. Inspector
Naulls
was given a penalty fare of £20. The correct penalty fare if it had been known he was travelling to Hurst Green would have been £26.40.
Naulls
that his actions in travelling in first class amounted to misconduct. The evidence shows that the normal penalty for such misconduct was likely to have been a written warning. Such a written warning would obviously have compromised Inspector
Naulls'
promotion chances.
Naulls
called his line manager and said he had been found standing in first class accommodation. This was untrue because he had been sitting down.
Naulls
sent an email to his line manager, copied to the DPS officers. In the email, Inspector
Naulls
stated that he was intending to travel from Victoria to Clapham Junction, where he was going to meet his wife, and travel on to Brighton for a meal to celebrate the wedding anniversary. He had boarded the train in standard class and had begun to type up notes and make telephone calls. He had had to speak loudly because of a poor signal, and had moved to first class. He stood up making a call and then sat down to make notes on his laptop. The email was obviously written in an attempt to avoid any proceedings because it contained the suggestion, after explaining the false matters set out above, that "… common sense and discretion should have a part to play in the decision making process". It is common ground that the email contained statements which were not true. He also said that he had often been asked to sit in first class to deal with school children who invaded first class.
Naulls
had not had a conversation, lost a signal or stood up. CCTV from Hurst Green showed Inspector
Naulls
travelling on 25 January 2010 to that station, and not to Brighton.
Naulls
was served with a Regulation 15 notice. This made two essential complaints. The first complaint was that he had travelled in first class when he was not entitled to such travel. The second complaint, which had become more serious than the first, was that he had fabricated reasons for travelling in first class. Inspector
Naulls
replied to that notice accepting that he was sitting in first class, but maintaining that he was sitting there writing an urgent
police
report of a highly sensitive nature on his laptop. He was anticipating making and receiving sensitive mobile phone calls on the issue.
Naulls
was interviewed. A disclosure and interview strategy was devised whereby the CCTV would be disclosed in stages, to see whether Inspector
Naulls
was giving a truthful account. Inspector
Naulls
maintained his false account until he was confronted with the CCTV evidence, and he made some limited admissions about his untrue account. However he maintained his account that he had not been watching a DVD. In the course of the interview Inspector
Naulls
said he had originally lied because of panic, thinking he might be able to bluff his way out of it, and embarrassment. He said that having started to lie he couldn't go back on it, and he admitted that he would have continued to lie without the CCTV evidence.
Naulls
referred to the stress that he was under. He referred to the pressure of the S60 review and
police
federation work. He referred to his son's condition. He said he had never sought help and had just ploughed on. He said he had just passed the Chief Inspectors exam, and that when colleagues challenged him about the first class ticket all of that risk came to mind. Later that day Inspector
Naulls
emailed and said he had lied about not watching the DVD. As appears above, it was on 14 April 2010 that Inspector
Naulls
first sought psychiatric help.
Naulls
submitted a statement that it is common ground provides a true account of what happened on 25 January. In the statement Inspector
Naulls
admitted to trying to lie his way out of the situation and panicking. He made a reference to "other events in my life" at the end of the statement, and said that "these events have had more of an effect on me than I may have realised and may go some way to explaining my irrational thoughts process, absence of memory and uncharacteristic behaviour". As appears from the investigating officer's account Inspector
Naulls
had: lied about sitting at the bottom of platform 19 to make notes about his S60 review; lied about using his laptop when sitting in first class; lied by saying he was not watching a DVD and owning a portable DVD player; lied about getting off at Clapham Junction and going to Brighton; and lied about standing up in first class to his line manager.
The
Police
Act, Conduct regulations and guidance, and
Police
Appeal Tribunal Rules
Police
Act 1996 provides a power to the Secretary of State to make regulations to provide for disciplinary proceedings.
Police
(Conduct) Regulations 2008 provide, in certain circumstances, for a Misconduct Hearing Panel to determine misconduct proceedings. The
Police
Appeal Tribunal Rules 2008 provide for appeals to an Appeals Tribunal. One of the grounds of appeal is "that the … disciplinary action imposed was unreasonable", pursuant to rule 4(4)(a).
Commissioner
had put in written submissions noting that the Appeals Tribunal could only allow an appeal where the disciplinary action was unreasonable, and suggesting that in order to satisfy this test, the
police
officer who was appealing would have to show that the Misconduct Hearing Panel had made a decision which was so unreasonable that no reasonable Misconduct Hearing Panel could have made it, namely the Wednesbury test. It is now common ground that this is not the correct test, see R(Chief Constable of Wiltshire
Police)
v
Police
Appeals Tribunal (Woolard) [2012] EWHC 3288 (Admin) at paragraphs 32-34. This is because the Appeals Tribunal has statutory jurisdiction, pursuant to the
Police
Appeals Tribunal Rules 2008, to allow an appeal where the disciplinary action is unreasonable. Although the Wednesbury test uses, among other expressions, the words "unreasonable" it does so in another context. The Court may intervene to quash an unlawful decision made by a public body. It is established law that a public body is not entitled to make a decision that is so unreasonable that no reasonable public body could have made that decision. This is a different and higher test than the Appeals Tribunal considering that the sanction or outcome imposed by the Misconduct hearing panel's decision was unreasonable.
police
officers. Officers should be open and truthful in their dealings …". The paragraphs following this statement record that an officer who has failed to adhere to this standard will frequently be found to be unfit for service, and that an adverse finding may render the officer unsuitable for operational deployment and therefore not useful to the service. A list of factors likely to be relevant ask whether the false declaration is deliberate or reckless, and record that the most serious breach will be dishonesty in the contemplation of criminal or civil proceedings, followed by false statements for financial benefit, and below that there would be false statements uttered in order to deflect enquiry about a one off and relatively minor breach of duty. Further guidance noted that officers making false statements in the context of personal and family relationships would not ordinarily be susceptible to disciplinary procedures. It was also recorded that a crucial issue was where off-duty behaviour is likely to have the capacity to infect the officer's honesty and integrity in the performance of his duties.
Police
Appeal Tribunal Rules 2008 provide at rule 22 for a statement of the Tribunal's determination. Rule 22(3) provides that "The chair shall prepare a written statement of the tribunal's determination of the appeal and of the reasons for the decision". Rule 22(4) provides that "As soon as reasonably practicable after the determination of the appeal the chair shall cause the appellant, the respondent and the
police
authority to be given a copy of such a statement; but, in any event, the appellant shall be given written notice of the decision before the end of 3 working days beginning with the first working day after the day on which the appeal is determined." These provisions are relevant to the issue of jurisdiction to make the order relating to back pay.
Police
Act) are specialist Tribunals. This means that the Court will obviously give proper weight to the views and decisions of such Tribunals. It also means that the Appeals Tribunal will not be required to show the same deference to the Misconduct Hearing Panel that a non-specialist tribunal should properly accord to a specialist tribunal. However the Appeals Tribunal has a statutory jurisdiction to allow an appeal only if they find the decision "unreasonable" within the ordinary and proper meaning of that word.
Misconduct hearing panel
Naulls
being stopped, appeared to accept that Inspector
Naulls
was expecting to receive telephone calls, and recorded that that was not a legitimate reason for breaching the ATOC agreement. The Misconduct Hearing Panel recorded that Inspector
Naulls
had chosen to lie and set out the details of the lies, recording that the lies had taken the matter far beyond a misconduct matter and into gross misconduct. The panel recorded that Inspector
Naulls
had invented the story to protect his livelihood and that it had spiralled out of control.
Naulls,
the panel accepted that the saving of £6.40 was not the motive for lying, but recorded that the panel did not condone his lying. The panel noted that the primary mitigating factor for his behaviour was severe stress as a result of his son's condition. The panel said that they understood the very difficult family circumstances, and recorded the evidence about Inspector
Naulls
crying. Having then referred to character evidence the panel noted that Inspector
Naulls
chose not to seek help, panicked when challenged and had been functioning at work. He had opportunities to tell the truth but had not done so. The panel rejected the option of imposing a written warning saying that they rejected the view that he had not functioned because of stress, this was because Inspector
Naulls
had lied from the outset, and continued to lie and only admitted the truth when confronted with evidence. The panel dismissed Inspector
Naulls.
The Appeals Tribunal
Naulls
appealed to the Appeals Tribunal. Following the hearing on 21 October 2011 the Appeals Tribunal announced that: the appeal should be allowed as to the disciplinary action taken but that Inspector
Naulls
should receive a final written warning to last for 18 months; and that Inspector
Naulls'
costs should be paid by the
Police
Authority.
Naulls
back pay for the period when he had been dismissed, and gave reasons for that.
Naulls
lied, whether he admitted his lies, the evidence of character and past service, and what impact this had on the trust that could now be placed on him.
Naulls
lied the Appeals Tribunal noted Dr Sukumaran's diagnosis, and the fact that the diagnosis was unexplained, and did not give any indication about when the condition started. The Appeals Tribunal recorded that by 14 April 2010 Inspector
Naulls
was in serious need of help and that "whatever the precise nature of his mental state and the date of its onset it is reasonable to assume that it played some part in the gross error of judgement which he made in trying to lie his way out of his situation. Although these aspects of the case were referred to by the Misconduct Panel, albeit relatively briefly … the Tribunal concluded that, judging by their decision, it was not reasonable to give them so little weight when set against the misconduct".
Naulls
was mentally fragile, the Respondent to Inspector
Naulls'
appeal was legally represented, the legal representative had assisted, and Inspector
Naulls
had been successful. There was no reference to the fact that Inspector
Naulls
had committed gross misconduct or that a starting position in regulatory proceedings is that there ought to be no order for costs.
Appeals Tribunal decision to order reinstatement was rational
Naulls'
appeal against the sanction or outcome of dismissal, and found that the Misconduct Hearing Panel's decision to give such little weight to the reason for the lies told by Inspector
Naulls
was not reasonable.
Commissioner
that because gross misconduct was part defined by the fact that it was conduct so serious that dismissal is justified, the Appeals Tribunal acted irrationally in setting aside a decision to remove Inspector
Naulls
who had admitted gross misconduct. However, many regulatory regimes adopt a definition of misconduct or gross misconduct as misconduct which is so serious as to justify dismissal, or its equivalent such as removal from a register of professionals. It is plain that not every incidence of such misconduct or gross misconduct will lead to dismissal. The fact that dismissal might be justified does not mean in every circumstance that it is justified.
Commissioner
it was also noted that maintenance of public confidence in the
police
force was vital. The fact that Inspector
Naulls
was more senior, and in a
policy
role (meaning that he was less likely to give evidence), should not mean that he is given inappropriate protection from removal. Inspector
Naulls'
dishonesty should be equated with operational dishonesty, which, as the authorities show, will almost always justify dismissal. The medical evidence did not justify the decision made by the Appeals Tribunal. The answers given in interview, and the medical evidence, showed that Inspector
Naulls
was simply trying to protect himself from the very sad consequences of misconduct proceedings and dismissal, which would apply to anyone, and there was no medical evidence to show that the mental state had been relevant as found by the Appeals Tribunal.
police
force is essential, and that this is a principal aim of disciplinary proceedings. It is clear that dishonesty will undermine public confidence and the fact that a person facing dismissal for gross misconduct will: be of otherwise good or exemplary character; lose their livelihood; have reformed; will carry little weight in regulatory proceedings for the reasons given in Bolton v The Law Society [1994] 1 WLR 512 at 529C-E.
Naulls
had been protected because of his
policy
position. The fact that he was in a
policy
position was a relevant fact, and it was recorded. It does not appear to have been in any sense decisive in the reasoning of the Appeals Tribunal. The fact that Inspector
Naulls
was in a senior position obviously increased the obligation on him to set a proper example.
Naulls
told lies, on a repeated basis, over a period of time in an attempt to deflect the misconduct proceedings which would be taken for travelling in a first class carriage. I also accept that the evidence shows that part of the reason for this was that Inspector
Naulls
wanted to protect his likely promotion.
Naulls'
mental state. In my view, from the material set out above, the Appeals Tribunal was entitled to consider that Inspector
Naulls'
mental state was part responsible for his gross error of judgement in giving dishonest explanations. It is true that there are passages of the evidence, particularly in interview, when Inspector
Naulls
does state that he was just in a state of panic, and that that was a reaction which is likely to affect everyone. However, there are other parts of the interview when Inspector
Naulls
talks about the stress that he was under, his failing memory, and his irrational behaviour. The fact that he was crying alone, at work, before 25 January 2010 is compelling evidence that his mental state was, even before he had been stopped wrongly travelling in first class, not normal. The fact that Inspector
Naulls
was able to complete assignments and obtain promotion is consistent both with increasing stress and with an internal and external denial of the realities of his situation. As noted above until 14 April 2010 Inspector
Naulls
seemed to be in a state of denial about his son's condition. The approach taken by the Appeals Tribunal to the evidence as a whole was, in my judgment, fair, reasonable and therefore rational.
Naulls,
in an attempt to deflect misconduct proceedings, together with a part explanation for that dishonesty unique to Inspector
Naulls.
It might be said that the decision of the Appeals Tribunal to hold that the Misconduct Hearing Panel had been unreasonable, within the meaning of the Appeal Tribunal Rules, was merciful to Inspector
Naulls.
It might also be said that other reasonable Appeals Tribunals may have been inclined to take a different approach. However, in my judgment, the decision of the Appeals Tribunal was within the bounds of a reasonable decision maker and cannot therefore be said to have been irrational and unlawful. The Appeals Tribunal have not, in any sense, licensed or approved of Inspector
Naulls
telling lies. What they did was reflect very carefully on his very individual circumstances which part explained the reason that he told lies and concluded that this justified the reduction in sanction or outcome from one of dismissal to a final written warning. They were reasonably entitled to take this view on the material before them. For these reasons, I find that the decision of the Appeals Tribunal to order the reinstatement of Inspector
Naulls
and to substitute a final written warning was lawful.
Jurisdiction to make order on back pay, but no natural justice
Police
Appeals Tribunals Rules 2008 set out above. This is because no written notice of the decision of the Tribunal was provided within 3 working days of the hearing. It seems to me to be impossible to characterise the oral decision on 21 October 2011 as the "written notice". This is because it was not written, it was simply said. The written notice of the decision, and the reasons for that decision, were both provided on 6 November 2011. This was in breach of the time limits, but it was not suggested that a breach of the time limits removed jurisdiction, and I would expect clear words to that effect in the Rules if that had been intended to be the effect of non compliance with the time limits.
Commissioner
was going to be ordered to make a significant back payment then he should have been invited to address the point. Natural justice required this. The
Commissioner
could then have raised issues relating to earnings (if any) which Inspector
Naulls
had received over the period from 12 October 2010 to 6 November 2011. It seems to me that the Appeals Tribunal's decision on back pay should be quashed because it was made in breach of the rules of natural justice, and remitted to the Appeals Tribunal for reconsideration.
Costs in the Appeals Tribunal
Police
Appeals Tribunals. They were not considered by the Appeals Tribunal, and the failure to take these fundamental principles into account means that the decision of Appeals Tribunal was not lawful. It was submitted on behalf of Inspector
Naulls
that the decision of the Misconduct Hearing Panel had been found to be unreasonable meaning that it was right that Inspector
Naulls
should be entitled to costs. That is a submission that needs to be considered by the
Police
Appeals Tribunal but they will need to take into account Inspector
Naulls'
admission of gross misconduct, the fact that proceedings against Inspector
Naulls
were properly brought and pursued, and the principles set out in paragraph 49.
Conclusion
Commissioner's
challenge to the decision to reinstate Inspector
Naulls
and provide him with a written warning to last for 18 months, but I quash the decisions to order back pay and costs, and remit those matters to be determined by the
Police Appeals Tribunal, if they cannot be resolved by the parties themselves. I am very grateful to counsel for their helpful submissions.