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||Neutral Citation Number:  EWHC 1684 (Admin)
||Case No: CO/12415/2011
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE DINGEMANS
Matthew Holdcroft (instructed by Metropolitan 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
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr Justice Dingemans
- This case concerns a challenge by the 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.
- On 25 January 2010 Inspector 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.
- On 12 October 2010, at the conclusion of misconduct proceedings, Inspector 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.
- The 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.
- Inspector 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.
- The Appeals Tribunal resisted the 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
- As appears from the short summary set out above, it is necessary to set out some factual background relating to Inspector 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.
- However, other facts provide further insight. At work before 25 January 2010 Inspector 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.
- On 14 April 2010 Inspector 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.
- Inspector 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.
- An updated assessment dated 19 May 2010 relating to Inspector 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 …".
- By 14 June it was noted that Inspector 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
- The Association of Train Operating Companies ("ATOC") provide free standard class travel, but not first class travel, to 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.
- On Monday 25 January 2010, as part of an operation into 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.
- The DPS officers and the Revenue Protection officer approached Inspector 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.
- It is common ground that Inspector 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.
- The DPS officers told Inspector 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.
- At 1620 hours that day Inspector 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.
- The next day, on Tuesday morning, at 0842 hours, Inspector 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.
- CCTV investigations were carried out. Footage from the platform at London Victoria and the carriage showed that Inspector 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.
- On 8 February 2010 Inspector 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.
- On 13 April 2010 Inspector 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.
- At the end of the interview Inspector 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.
- On 27 April 2010 Inspector 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
- Section 50 of the Police Act 1996 provides a power to the Secretary of State to make regulations to provide for disciplinary proceedings.
- The 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).
- At one stage in the proceedings the 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)  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.
- Sanctions Guidelines (which was non statutory internal guidance relating to the 2004 Regulations, which were themselves replaced by the 2008 Regulations) provide, under Code of Conduct 1 (now replaced by the Professional Standards of Behaviour) that "It is of paramount importance that the public has faith in the honesty and integrity of 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.
- The 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.
- Previous decisions have noted that both misconduct hearing panels and Appeals Tribunals (provision for the latter being made by schedule 6 of the 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
- The Misconduct hearing panel gave a short judgment which was read out by the Presiding Officer at the end of the hearing on 12 October 2010. The panel set out the details of Inspector 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.
- The panel recorded that they had listened carefully to what had been said on behalf of Inspector 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
- Inspector 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.
- By written reason for determination dated 6 November 2011 the Appeals Tribunal gave reasons for those decisions. The Appeals Tribunal also decided to award Inspector Naulls back pay for the period when he had been dismissed, and gave reasons for that.
- The Appeals Tribunal set out the details of the allegations, antecedents, character evidence, mitigation and disciplinary action. The grounds of appeal and a response to them were set out. The Appeals Tribunal then dealt with the merits of the appeal. The Appeals Tribunal recorded that "Whilst gross misconduct is by definition conduct so serious that dismissal is justified, the Tribunal had to consider whether it was a reasonable outcome having regard to the conduct and surrounding circumstances". The Appeals Tribunal considered the Guidance on sanctions and related the start of the "sorry history". The Appeals Tribunal noted that the lies were not an attempt to deny misconduct but rather to put up reasons why misconduct proceedings should not be started. The Appeals Tribunal then addressed the reasons why Inspector 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.
- In the course of considering the reasons why Inspector 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".
- The Tribunal recorded that the disciplinary action should be amended to a final written warning for 18 months. It was noted that disciplinary action runs from the date of the decision appealed against (the 12th October 2010) and that the Tribunal did not find any reason why reinstatement and pay should not run from that date. It is common ground that there was no argument on that issue at the hearing on 21 October 2011.
- The Tribunal then addressed the issue of costs giving reasons that legal representation was justified because of complexity, Inspector 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
- The Appeals Tribunal expressly addressed the correct legal test when deciding whether to allow Inspector 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.
- It was submitted for the 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.
- On behalf of the 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.
- I accept that the maintenance of public confidence in the 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  1 WLR 512 at 529C-E.
- In my judgment, it would not be a correct reading of the Appeals Tribunal decision to suggest that Inspector 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.
- It is also apparent that Inspector 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.
- However the evidence did justify the decision made by the Appeals Tribunal about the part played by Inspector 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.
- However that still left the fact that there was very serious dishonesty by Inspector 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
- The Appeals Tribunal did have jurisdiction to make the order about back pay. What appears to have happened is that the Appeals Tribunal announced their decision on reinstatement and costs orally at the end of the hearing on 21 October 2011, but said nothing about back pay. Nothing further happened until the written statement was produced on 6 November 2011.
- It is apparent that there was not compliance with rule 22(3) and (4) of the 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.
- However one reason that nothing was said about back pay was because the issue was simply not raised at the hearing. It could have been raised by either side, or by the Appeals Tribunal, but it was not. It does seem to me that if the 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
- The reasoning by the Appeals Tribunal for its costs order does not take account of the fact that, in regulatory proceedings, "a regulator brings proceedings in the public interest in the exercise of a public function which it is required to perform. In those circumstances the principles applicable to an award of costs differ from those in relation to private civil litigation. Absent dishonesty or a lack of good faith, a costs order should not be made against such a regulator unless there is good reason to do so … In considering an award of costs against a public regulator the court must consider on the one hand the financial prejudice to the particular complainant, weighed against the need to encourage public bodies to exercise their public function of making reasonable and sound decisions without fear of exposure to undue financial prejudice, if the decision is successfully challenged", see paragraph 44 of Baxendale-Walker v The Law Society  EWHC 643 (Admin);  3 All ER 675, which was affirmed on appeal  EWCA Civ 233;  1 WLR 426.
- These are relevant principles of law in relation to costs which apply to any internal appeal before the 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.
- For these reasons, I dismiss the 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.
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