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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Wilson, Chief Constable of Fife Constabulary, Re Judicial Review [2008] ScotCS CSOH_96 (01 July 2008)
URL: http://www.bailii.org/scot/cases/ScotCS/2008/CSOH_96.html
Cite as: [2008] CSOH 96, [2008] ScotCS CSOH_96

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OUTER HOUSE, COURT OF SESSION

 

[2008] CSOH 96

 

     

 

 

 

 

 

 

 

 

 

 

 

OPINION OF LORD UIST

 

in the Petition of

 

PETER WILSON,

CHIEF CONSTABLE,

FIFE CONSTABULARY

 

 

for

 

Judicial Review of a decision of the Police Appeals Tribunal

dated 19 March 2006

 

 

ญญญญญญญญญญญญญญญญญ________________

 

 

 

Petitioner: Miss Ailsa Carmichael; HBJ Gateley Wareing (Scotland) LLP

Respondent: J L Mitchell QC, Miss Doherty, Miss McKenna; Balfour + Manson LLP

 

 

1 July 2008

The factual background

[1] In this application to the supervisory jurisdiction of the court the Chief Constable of Fife Constabulary ("the petitioner") seeks judicial review of a decision of the Police Appeals Tribunal ("the tribunal") dated 19 March 2006. That decision allowed an appeal by Constable William Crawford ("the respondent") under section 30 of the Police (Scotland) Act 1967 ("the Act") against a decision of the petitioner under Regulation 20 of the Police (Conduct) (Scotland) Regulations 1996 (SI 1996/1642) ("the Regulations").

[2] In December 2004 the respondent appeared before a misconduct hearing on the following three allegations:

 

(1) Between 1 January 1997 and 31 December 1998 on a path outside 123 Townhill Road, Dunfermline, Fife you did place your arm around CJ's shoulders, escort her along the path, tell her to shut up and try to kiss her, all of which was against her will and unsolicited by said CJJ, and in so doing conducted yourself in an oppressive or improper manner, contrary to the Police (Scotland) Regulations, 1996, Schedule 1, paragraph 1(h).

 

(2) Between 1 January 1999 and 31 December 2000 at 154 Townhill Road, Dunfermline, Fife you did place your body against CJ so that she was pinned against a wall unit, tell her that you had always found her sexy and prevent her from moving away from you, all of which was against her will and unsolicited by said CJ, and in so doing conducted yourself in an oppressive or improper manner, contrary to the Police Conduct (Scotland) Regulations 1996, Schedule 1, paragraph 1(h).

 

(3) On 22 or 23 February 2001 at 154 Townhill Road, Townhill, Dunfermline, Fife you did lie on top of CJ whilst she was asleep, insert your penis into her vagina and have sexual intercourse with her, all of which was against her will and unsolicited by said CJ and in so doing conducted yourself in an oppressive or improper manner, contrary to the Police (Scotland) Regulations 1996, Schedule 1, paragraph 1(h).

 

[3] The hearing took place before the chairman, Superintendent Stan McLeod, who sat with two assessors, Miss Louise Cooper, Solicitor, and Chief Superintendent Andrew Laing. The presenting officers were Fraser Munro and Inspector Tom Danks of Fife Constabulary Complaints, Conduct and Professional Standards Department. The respondent was represented by Mr Robert Vaughan, Solicitor and Constable John McNab of the Scottish Police Federation. The proceedings, which were recorded, took place over a number of days and concluded on 16 December 2004. The decision of the hearing was that only allegation 3 was found proved and the disposal was the dismissal of the respondent from Fife Constabulary with immediate effect.

[4] The respondent thereafter appealed against both the decision and the disposal to the petitioner under Regulation 20 of the Regulations. On 17 August 2005 the petitioner refused the appeal.

[5] The respondent then appealed against the petitioner's decision to the tribunal under section 30 of the Act. The tribunal, which consisted of Gerry Moynihan QC as chairman, Councillor Andrew Keddie, William Spence and Thomas Rowatt, met on 15 November 2005 as required by Rule 7 of the Police Appeals Tribunals (Scotland) Rules 1996 (SI 1996/1644) ("the Rules") and decided that a hearing should be allowed in the appeal. The appeal hearing took place on 20 February 2006. Although it would have been competent for it to do so, the tribunal did not rehear the evidence. After deliberating at the conclusion of that hearing the tribunal was unable to reach a decision. It met again on 17 March 2006 and concluded its deliberations. On 19 March 2006 the tribunal issued its decision allowing the appeal on the casting vote of the chairman under paragraph 5 of Schedule 3 to the Act. The result of the appeal decision would have been that the respondent was reinstated as a police constable and deemed to have served continuously from the date of his dismissal on 16 December 2004 had it not been that interim suspension of the tribunal's decision was granted on 26 May 2006.

 

The grounds of challenge to the tribunal's decision

 

[6] The grounds of challenge to the tribunal's decision, which are elaborated in detail in the petition, are that the tribunal erred in law in finding that the misconduct hearing had misdirected itself in law by failing to give adequate reasons for its decision and that the tribunal itself fell into error when it came to deal with the evidence.

 

The relevant statutory provisions

 

[7] Section 30 of the Act provides:

 

(1) A constable who is dismissed, required to resign or reduced in rank by a decision taken in proceedings under regulations made in accordance with subsection (2A) of section 26 of this Act may appeal to a police appeals tribunal against the decision except where he has a right of appeal to some other person; and in that case he may appeal to such a tribunal from any decision of that other person as a result of which he is dismissed, required to resign or reduced in rank.

 

(5) Schedule 3 to this Act shall have effect in relation to appeals under this section.

 

Paragraph 5 of schedule 3 provides:

"Where there is an equality of voting among the members of a police appeals tribunal, the chairman shall have a second or casting vote".

 

[8] The relevant provisions of the Regulations are as follows:

2. These Regulations shall apply only -

 

(a) in relation to misconduct on the part of a constable below the rank of assistant chief constable;

 

(b) to any report, allegation or complaint from which it may reasonably be inferred that any act or omission which was committed or made by a constable below that rank on or after 1st August 1996 may amount to misconduct; ..

 

3. - (1) Unless the context otherwise requires, in these Regulations -

'misconduct' shall be construed in accordance with Regulation 4.

 

4. For the purposes of these Regulations, an act or omission of a constable shall amount to misconduct on the part of the constable if it falls within any of the kinds of conduct described in schedule 1.

 

(Paragraph 1(h) of Schedule 1 describes as conduct constituting misconduct "conduct likely to bring discredit on the police force or service, including - (h) acting towards, or treating, any person in an oppressive or improper manner.")

 

6. - (4) Where the assistant chief constable decides that the constable should be required to appear before a misconduct hearing, he shall cause -

 

(a) to be prepared a form (hereinafter referred to as "the misconduct form") containing -

 

(i) particulars of the alleged act or omission which it is considered amounts to misconduct on the part of the constable;

 

(ii) a statement of the reasons why the assistant chief constable considers that the alleged act or omission amounts to misconduct; and

 

(iii) a notice that the constable is required to attend a misconduct hearing, at a time and place to be notified, at which the allegation of misconduct will be heard; and

 

(b) a copy of the misconduct form to be sent to the constable.

 

12.- (4) In any case where the constable has given notice ... that he wishes to be legally represented ... the constable may be represented, at his option, at the misconduct hearing either by an advocate or by a solicitor.

 

13.- (1) An allegation of misconduct against a constable shall be heard by a constable (other than the chief constable) who is appointed for the purpose by the assistant chief constable and who shall act as chairman of the misconduct hearing.

 

(2) The chairman shall be -

(a) a constable of the police force concerned ...; and

(b) of at least the rank of superintendent.

(3) The chairman may be assisted by up to two other constables who are also of at least the rank of superintendent who shall act as assessors.

 

(4) In any case in which the constable has given notice ... that he wishes to be legally represented ... the chairman may , if he thinks fit, appoint an advocate or solicitor to sit with him at the misconduct hearing as a legal assessor.

 

17. - (1) ... at the conclusion of the misconduct hearing the chairman shall reach a decision on the allegation of misconduct.

(3) The decision of the chairman, which shall be recorded in the misconduct form, shall state -

 

(a) the finding and any disposal which he makes ...; and

(b) his reasons.

20. - (1) Where in terms of regulation 17 the chairman has made a finding that an act or omission of the constable amounts to misconduct, the constable may appeal in accordance with this regulation against -

 

(a) both the finding and the disposal made ...; or

(b) the disposal only.

[9] The relevant provisions of the Rules are as follows:

3. On any appeal to a police appeals tribunal under section 30(1) of the Act the respondent shall be -

 

(b) in the case of an appeal by an officer who is not a senior officer, the chief constable of the police force of which the appellant is a constable.

 

15. - (1) Subject to the provisions of these Rules -

(a) the procedure at the hearing of an appeal shall be determined by the tribunal who shall have power to hear any new evidence or to re-hear the evidence given at the misconduct hearing ...; and

 

(b) the tribunal shall conduct the hearing in such manner as it considers suitable to the clarification of the issues before it and generally to the just handling of the proceedings; it shall so far as it appears to it appropriate seek to avoid formality in its proceedings.

(2) At the beginning of the hearing the chairman of the tribunal shall explain the order of proceedings which the tribunal proposes to adopt.

 

(3) Each party shall be heard in such order as the tribunal shall determine and shall be entitled -

 

(a) to give evidence;

(b) to call witnesses and to question any witnesses called by the other party; and

 

(c) to address the tribunal both on the evidence and on the subject matter of the appeal.

 

16. - (1) .... the tribunal shall determine the appeal -

(b) where a hearing has been held, either at the end of the hearing or, where the tribunal reserves its decision, at a later date.

 

(2) The decision of the tribunal may be taken by a majority and the chairman shall record whether the decision was unanimous or taken by a majority.

(6) The decision of the tribunal shall be recorded not later than 7 days after the date on which it is made in a document which shall contain -

 

(a) the terms of the order made by the tribunal in determining the appeal ...; and

 

(b) a statement of the reasons for the decision,

and shall be signed and dated by the chairman of the tribunal".

 

 

The misconduct hearing

 

[10] Superintendent McLeod found each of allegations 1 and 2 not proved on the ground that it was possible that each incident occurred outwith the dates specified in the allegation. He found allegation 3 proved. Having stated earlier in the introductory remarks of his findings that they resulted to a very considerable degree on the credibility of the accounts provided, he stated as follows in relation to allegation 3:

"You denied the allegation that on 22nd/ 23rd February 2001 at 154 Townhill Road, Dunfermline that (sic) you lay on top of CJ whilst she was asleep, insert (sic) your penis into her vagina , and have (sic) sexual intercourse, all of which was against her will and unsolicited and in so doing conducted yourself in an oppressive or improper manner.

The allegation is of a most serious nature and discloses conduct which by its very nature is without question oppressive or improper and likely to bring discredit on the Police Service, even although it is alleged to have been carried out while you were off duty. Your representative, Mr Vaughan, acknowledged this in his closing submission.

The dates and locus applicable to this allegation are not in dispute. Evidence from CJ, Rona Crawford and yourself is to the effect that CJ spent the night of 22/23 February 2001 in your home. She slept in one of the 2 single beds in one of the children's rooms, having gone to bed some time after midnight. All parties had been drinking alcohol and your wife Rona Crawford gave CJ a T-shirt to wear in bed.

CJ stated that she woke to find someone on top of her having sexual intercourse with her. She clearly identified that person as you and that (sic) she felt your penis moving inside her vagina, having penetrated her. Her express evidence is that these actions were unsolicited, against her will and that she told you to get off and pushed you off.

You deny that this ever took place. Your evidence is that you went to bed around 12.45am and at no point entered the room where CJ was sleeping.

Your wife Rona Crawford provides some support for this in that she joined you in bed, having given CJ night attire and left her in the child's bedroom. Rona Crawford stated that at some point you arose, left the bedroom and at some subsequent point CJ joined her in your bed. She thought you arose to go to work and stated your alarm was set for 5 am, as you did in your evidence.

CJ stated that she didn't shout or scream but left you in the single bed and went to where Rona Crawford was sleeping. Under cross-examination she stated that she went to join Rona Crawford as a place of safety. After she did this she stated she could hear you moving around in the house.

Rona Crawford's evidence offers no rationale for CJ joining her in bed other than to check the time as it was dark in the child's bedroom and she had to be up for work. Rona Crawford did not ask CJ why she had done this.

This is the sum of the direct evidence available as presented. What my task has been is to establish which account is more likely to have happened on the balance of probabilities. In these terms weight has to be attached to the other evidence presented.

Rona Crawford stated that you went to work and CJ arrived in the bedroom. When asked directly if you were still in the house at this time she stated that she did not know. She did state that she thought CJ had arrived in her bedroom nearer the time she was due to get up as opposed to when you arose. I found Rona Crawford's evidence vague on this point. What is clear is that CJ arose for some reason, left the room where she was sleeping, joined your wife in bed and that you were absent from the room at that time.

CJ and Rona Crawford both state that CJ left and returned home after one of the children entered the bedroom, leaving Rona still in bed.

CJ stated that she showered and went to work in Edinburgh. Rona Crawford affirmed that she had talked about having to attend an important meeting that morning. CJ attempted to telephone Jane Callaghan several times that morning, the first occasion being around 8.30am and before she left for work. Jane Callaghan confirms this, but also that she did not initially answer.

CJ's evidence is that she telephoned Rona Crawford to obtain a lift to the Railway Station but that she was unable to tell her what had happened. Rona Crawford's evidence is that she gave her a lift but there did not appear to be anything wrong and that CJ was not upset and was only concerned that she might be smelling of alcohol and that she did not appear to have any problems.

The subsequent medical examination of you on Sunday 25 February 2001 by Dr Bell was inconclusive. It is unfortunate that there was such a time delay and that set procedures were not followed as this may have produced forensic (sic) evidence to support or refute the allegation. This was not your fault, or, for that matter, CJ's.

Rona Crawford confirms receiving a telephone call from CJ later on the morning of 23 February 2001. She told me that the call was because CJ couldn't recall what had happened the night before and was concerned that she may have been telephoning a male friend. CJ states that the call was to tell her that she needed to speak to her about the allegation. Rona Crawford confirms that she was anticipating a visit from her later in the day but that it did not happen.

CJ's account of her telephone call to Jane Callaghan and subsequent meeting is supported by Jane Callaghan's evidence. Jane Callaghan gave evidence that on the first contact from CJ, following a series of missed calls, it was clearly evident that CJ was upset. She also gave evidence to the fact that CJ was upset and crying when they first met in the afternoon and would not initially speak to her. She stated she had never seen CJ like that before and it was well out of character. Her evidence also supports CJ's account of getting in touch with another friend Elaine Siggers who joined them in CJ's home. Elaine Siggers did not give evidence.

Jane Callaghan's evidence supports the rationale behind the decision to contact Lothian and Borders Police. Her evidence of the account given by CJ to her is consistent with that given to the Police by CJ and also with what CJ said at this hearing. She is a close friend of CJ, but she gave her evidence in a forthright and genuine manner and I consider her evidence as being credible and supportive of CJ's account.

Throughout CJ's subsequent contact with police officers, DC Gray, DCI Boal, ex DS Sargeson and DCI Malcolm her account has remained consistent. All of the officers speak to her fragile demeanour in the days following the report of the incident. None have (sic) raised questions over her motive.

Derek Gray described her as anxious and distressed with a story to tell. Lesley Boal described her as being very certain, concerned but not emotional initially, but later on the following day as being exhausted. Janice Sargeson, who took the initial statement, stated that it had taken time to get the details and CJ was upset at points. She stated CJ was co-operative. Stephen Malcolm, who spoke with CJ 6 days after the incident, described her as still being upset and concerned at how she was going to tell her family, and, in particular, her mother.

Both Dr Hiremath and Professor Busuttil confirm the medical examination of CJ was neutral. The findings do not refute or confirm the allegation. Dr Hiremath and Professor Busuttil also confirmed that this is not unusual.

Professor Busuttil gave evidence as to the absence of DNA traces on the swabs taken from CJ. He stated that semen could still be recovered via high vaginal swabs up to 10 days after ejaculation. The evidence presented by CJ was that you had said you were about to ejaculate when she pushed you off.

Professor Busuttil advised that pre-ejaculate fluid could have been secreted in these circumstances and may in certain circumstances been (sic) recovered in identifiable quantities from swabbing and from clothing/bedding. He advised that, had sexual intercourse reached this stage, the likelihood of pre-ejaculate being present was probable (sic). He did, however, qualify his evidence by advising that a number of factors can affect and reduce likelihood: washing, time delay and quantity secreted, and, of course, stage of sexual arousal reached. Accordingly, I am unable to draw any actual conclusion from this other than that the medical and forensic (sic) tests are neutral and neither confirm or (sic) refute the allegation. Not enough is known about the factors mentioned by Professor Busuttil to attach any weight in terms of balance of probabilities.

Professor Busuttil also gave evidence on the two sets of DNA on the pants, which CJ handed to Lesley Boal as having been worn. Neither set of DNA belongs to you. Professor Busuttil's evidence was to the effect that semen is water soluble and would have been lost in washing. He qualified this statement by saying this depends on the type of washing but normal washing would make DNA difficult to find. Biological powder would destroy the DNA. He added every wash would tend to remove more and more off the clothing.

Dr Hiremath's evidence was that although washing would remove the semen heads traces can survive washing and can last for years. She advised that this was information she had been given by scientists who conduct the tests. Neither Dr Hiremath or (sic) Professor Busuttil are (sic) involved in the actual testing process.

The inference of finding 2 sets of DNA on the pants is that CJ lied to Dr Hiremath and Professor Busuttil regarding her sexual history. Without further tests or information on the tests carried out I am unable to safely attach any weight to this. What is evident from the forensic (sic) examination of CJ is that she has not had sex within the 10 days prior to the examination where ejaculation has taken place within her vagina (sic).

Professor Busuttil also gave evidence about the layout of the bedroom in question and that what is alleged to have taken place would have aroused the child in the room. He qualified this by stating that this was dependent on a number of factors, none of which he could speak to. I viewed his evidence on this as speculative and of no assistance to me.

I have considered the evidence given by you that noisy floorboards and cold air from the hallway would have woken the child. Rona Crawford indicated the child was a light sleeper. However, there is no evidence that the child woke up when CJ arose and left the room.

I have considered Mr Vaughan's submission that CJ is a cold, calculating liar. I agree that in order to have made up an allegation in the circumstances before this hearing would require considerable calculation on the part of the person making the allegation.

There is an inference that CJ embellished some facts such as intimating that she was an actual solicitor when initially contacting the police. It may also have been drawn that retrospective claim (sic) that she may have been drugged was supposition on her part. Indeed, there is no evidence to support the fact that she was drugged. She has raised this as a result of how she was feeling when she awoke. There is evidence that she was working long hours, was tired and that alcohol was consumed, which I consider to be more likely factors.

CJ was certain and specific on the material facts. Her evidence was given in a direct and at times emotional, but, I consider, genuine way. While it is some hours after the incident before she manages to disclose the facts to Jane Callaghan, the facts disclosed at that time to the witness are as disclosed to the police and now to this hearing. They are consistent.

I am satisfied that CJ ended up spending the night as a result of circumstances. Additionally, she has been unable to account for or rationalise her initial reactions. This, combined with her actions and demeanour during the course of the following day and subsequent initial police investigation, I consider seriously challenges the assertion that she was calculating.

I have to be satisfied that there is sufficient evidence led, based on the balance of probabilities, to prove the allegation. CJ's evidence, if believed, is sufficient. Her evidence is specific and clear on the material points. Corroboration is not required; however, there is, in addition to her evidence, some supporting evidence from witnesses who (sic) I hold to be reliable and credible.

Weighing up all of the foregoing and having listened to and watched the witnesses, including you, give evidence, I consider the account given by CJ to be credible.

Accordingly, I find this allegation proved."

 

The appeal to the petitioner

[11] The respondent lodged a notice of appeal to the petitioner containing ten separate grounds of appeal (6/4 of process). On 17 August 2005 the petitioner refused the appeal and upheld the finding and disposal made by the misconduct hearing without inviting oral submissions. His determination stated as follows:

"Having considered all the material available to me, in particular, the notice of appeal, the transcript of the hearing including the chairman's finding and the reputation of the force, I have come to the conclusion to reject the appeal, upholding the decision of the Misconduct Hearing Chairman and his disposal."

 

[12] In his reasons for determination he stated:

"I have paid particular attention to the judgment of the chairman, both in terms of his finding in relation to the allegation upon which the appeal is centred and his disposal. I am of the opinion that he has considered the evidence of each of the witnesses in a balanced way, and came to a judgment as to their credibility. I am therefore of the view that he was entitled to conclude that the allegation was proved on the totality of the evidence available to him.

 

I have considered the appeal document carefully and considered whether any of the propositions therein critically affect the judgement reached by the chairman. I have not found so. Much of the appeal document can be described as alternative opinion and covered ground which lay within the hearing itself (sic) and fell to be assessed by the chairman. I am conscious that the chairman had the assistance of the assessors, and, while the judgments would be his, I do not have concerns that he was unable to assess the full range of material available to him and to form a view as to their (sic) weight."

 

 

The appeal to the tribunal

[13] The notice of appeal to the tribunal (6/6 of process) repeated the original ten grounds of appeal to the petitioner and contained two additional grounds of appeal. A thirteenth ground of appeal was added by way of adjustment. The thirteen grounds of appeal were as follows:

1. Even in accordance with the required standard of proof, namely, a balance of probabilities, there was insufficient evidence adduced by the Presenting Officer to justify a finding that the conduct complained of had taken place. In particular:

 

(a) Other than the complainer's account there was no supporting evidence that penetration had taken place.

 

(b) Other than the complainer's account there was no supporting evidence that the act complained of had taken occurred without the complainer's consent and against her will.

 

(c) There was no forensic (sic) evidence whatsoever in support of the complainer's version that she had been assaulted in the manner described.

 

(d) There were no injuries to either the complainer or the appellant, notwithstanding that examinations of both had occurred within a period of less than seventy two hours following the alleged incident.

 

(e) The first person in whom the complainer allegedly confided was Jane Callaghan, but this did not take place until at least thirteen to fourteen hours after the alleged incident.

 

(f) The only source of evidence to support the allegation was the complainer herself. Apart from the direct evidence given to the hearing by the complainer herself, all other evidence was hearsay in character.

2. The complainer was wrongly viewed by the chairman as being a credible and reliable witness, notwithstanding aspects of her evidence which were untruthful, irrational and incredible (sic), including the following:

 

(a) Telling lies during a telephone call on 24 February 2001 to Detective Constable David Gray that she was a solicitor in Edinburgh.

 

(b) Telling lies to the medical witnesses who examined her on 24 February 2001, namely, Professor Anthony Busuttil and Dr Kranti Hiremath with regards (sic) to her sexual history.

(c) Narrating to the witness Jane Callaghan versions with regards (sic) to the acts complained of by Constable Crawford in allegations 1 and 2 on the misconduct form and which versions were substantially different in material respects from the evidence she gave to the hearing.

 

(d) Incredible explanations by the complainer in evidence at the hearing, for example, that the reason Constable Crawford did not have any injuries was that she did not fight him off by striking, biting or scratching and because she bit her nails at the time and was unable to scratch; the reason she made no noise nor drew attention to the fact that she was in the process of being raped was that she was aware of the presence of Constable Crawford's son sleeping in a bed in the same room and she did not wish to awaken him; the reason she refused to provide Constable Crawford's representatives with a precognition was not that she was being obstructive but she felt precognitions were of no assistance in the light of her experience previously as a precognition agent; that the reason there was evidence of semen stains on her pants, not connected to Constable Crawford but originating from two other unknown males, was that maybe the pants removed by the police and examined at the Forensic Laboratory were not the pants worn by her during the incident, notwithstanding the evidence of police officers who removed the pants from her house that these were the pants identified by her as having been worn during the incident and this has been confirmed by the complainer beyond any shadow of doubt.

 

3. By believing the complainer's account in evidence the chairman has in effect forced himself into a situation where he requires to accept a series of events by the complainer which do not make rational sense (sic) and which appear to be perverse. For example, (a) the absence of noise coming from the complainer's room during the incident is explained by her by the fact that she did not struggle and the absence of struggling is explained by her in not wishing to awaken the said child who was sleeping in an adjoining bed within the same room; (b) the bizarre behaviour of the complainer in going through to the appellant's bedroom and getting into bed beside the appellant's wife is explained by her confused state. She denies her state was induced by excess alcohol taken the night before, but rather (sic) that her drink must have been drugged by the appellant. That speculative evidence was completely discredited by other evidence as to the sequence of events the previous night which clearly confirmed that the appellant was unaware that the complainer would be staying the night at his home and that he had already gone to bed at a time when the complainer was leaving his house to return to her own flat; (c) the incredible reaction by the complainer in allegedly awaking from sleep to find the appellant on top of her and inside her was not to shout, scream, struggle and fight him off, but to instantly think of the presence of the sleeping child in the room. This is notwithstanding the fact that when she awoke she said she was unclear and confused and became immediately aware of the accused's presence on top of her.

 

4. The treatment by the chairman of the lack of forensic evidence is perverse. He views the absence of the lack of supporting forensic evidence as being consistent with the complainer's account. There is no forensic evidence whatsoever to support the complainer's account notwithstanding examinations of both the accused and the complainer over the weekend immediately following the events of 23 February 2001. There was ample opportunity for forensic evidence to be recovered, but none was. The examinations included not only that (sic) of the complainer and appellant but also of clothing and bed linen.

 

5. Undue weight has been placed by the chairman on the evidence of police officers whose duties were simply to take statements from witnesses. On page 6 of his decision the chairman places reliance on the evidence of the police officer as to the taking of statements from the complainer and describes her account as having "remained consistent". He wrongly gives weight to the fact that none of these officers have (sic) raised any questions over the complainer's motive. He has also taken into account the complainer's condition days after the alleged incident. By giving undue weight to that evidence the chairman has misdirected himself.

 

6. The chairman has not rejected the evidence of Constable Crawford nor (sic) his wife Rona Crawford. Their evidence directly contradicted the evidence of the complainer in a number of material respects. The chairman does not state in his decision that he disbelieves Constable Crawford or his wife Rona Crawford. Accordingly, there is no rational basis upon which the chairman chose to believe the evidence of the complainer on its own as against the evidence of the appellant as supported by his wife.

 

7. The chairman was unduly sympathetic towards the complainer in her evidence and on a number of occasions interrupted her cross-examination by Constable Crawford's legal representative, notwithstanding that the complainer was prevaricating and effectively refusing to give straight answers to the questions put. This necessitated the questions being repeated. The chairman interrupted and refused to allow that to happen. Said sympathetic approach to the complainer was also demonstrated in the decision by the chairman to allow a motion by the presenting officer for the complainer to be accompanied during her evidence by a friend. That motion was opposed by Constable Crawford in terms of Regulation 13(7) and (8) on the basis that there were no special circumstances to support such a motion. As it turned out, because the complainer's evidence was not heard until the following day, that friend was not present and the complainer was content simply to give her evidence alone.

 

8. The preliminary motion on behalf of the appellant to dismiss allegations 1 and 2 was wrongly refused by the chairman. The motion was that fair notice of the allegations had not been provided and, in particular, with regards (sic) to the latitudes in time taken by the presenting officer. The appellant could not be provided with a fair opportunity to defend these allegations. The motion was based not only on the European Convention of Human Rights but also on common law grounds of natural justice and to (sic) the concept of a fair hearing. The presenting officer had been invited to amend allegation number 1 so that the latitude was restricted to one month, which would have been consistent with a statement made by the complainer to Grampian Police. However he (sic) declined to do so and preferred to lead the evidence based on excessive latitude taken in the original allegations. Had the chairman dismissed these allegations at the preliminary stage then the hearing could have simply concentrated on the evidence in respect of allegation number 3 and a finding could have been returned in isolation. The eventual outcome whereby evidence against the appellant in allegations numbers 1 and 2 was prejudicial to the appellant in respect of the third allegation (sic).

 

9. In his decision the chairman states that he did not give any weight to statements made by the complainer to others who then told other persons. He states he has discounted such hearsay evidence. However, the chairman goes on in his decision to state that he found Jane Callaghan to be credible and reliable and supportive of the complainer's version, yet the information received by Jane Callaghan from the complainer was not until thirteen to fourteen hours after the alleged event. According to the evidence she was the first witness spoken to by the complainer as a confidante. The chairman also places reliance on the evidence of Elaine Siggers who did not in fact give evidence at the hearing. These are examples of hearsay evidence being used as supportive of the complainer's evidence. The chairman also relies upon evidence of police officers whose duties were simply to take statements from witnesses, including the complainer. Their view of motive appears to have been relied upon by the chairman.

 

10. Although the chairman upheld the objection by Constable Crawford to exclude the contents of statements of witnesses who were not present at the hearing (after an objection by Constable Crawford under Regulations 13 and 14 of the 1996 Regulations) the chairman then wrongly allowed the presenting officer to elicit from police witnesses the contents of witness statements in the form of hearsay evidence. For example, Elaine Siggers was not present as a witness but part of the contents of her police statement was given in evidence by police officers. The chairman then makes reference to Elaine Siggers in his decision. The introduction of that evidence was a misdirection by the chairman and was prejudicial to the eventual outcome (sic).

 

11. The appeal to the Chief Constable was decided without an oral hearing. Accordingly, no opportunity was provided to the appellant to expand upon the grounds contained within the notice of appeal. Further, no observations on these grounds were made by the Chief Constable prior to his decision and accordingly there was no opportunity for the appellant to comment upon any such observations.

 

12. In the Chief Constable's written decision he makes no reference to the individual grounds of appeal and why he has decided to dismiss them. In particular, he makes no reference to any part of the evidence contained within the transcript of evidence from the original hearing before Superintendent McLeod, nor does he make any reference to the identity of any witnesses who gave evidence at that hearing. In particular, he provides no reasons why he supports the decision of Superintendent McLeod and rejects the grounds of appeal.

 

13. At the misconduct hearing the Chairman misdirected himself in applying a standard of proof based upon a balance of probabilities. The correct standard is proof beyond reasonable doubt, which is the same standard which would be applied in a criminal court according to the law of Scotland. The Police (Conduct) Regulations 1996 does (sic) not specify what the standard of proof should be at misconduct hearings. At the misconduct hearing former Constable Crawford faced an allegation of misconduct which was effectively an allegation of rape. Based on a standard of proof beyond reasonable doubt there was insufficient evidence (sic) to find that ground of misconduct proved.

 

[14] In his statement setting out his grounds for opposing the appeal under Rule 5(2)(a) the petitioner stated:

"Grounds 1-10 formed the grounds of appeal to me and I would make the following comments.

The chairman was entitled to reach the finding that he did. The case fell to be determined on the credibility and reliability of Ms CJ and the chairman was entitled to regard her as such (sic).

The chairman was entitled to have regard to the fact that CJ's account remained consistent over a considerable period of time.

While the chairman may not have explicitly said that he was rejecting the evidence of Constable Crawford or his wife Rona Crawford the finding that he made clearly indicates that he did so.

I am satisfied that the chairman conducted the hearing in a way that was fair to both the complainer and Constable Crawford.

The chairman was entitled to allow evidence to be led in relation to allegations 1 and 2 and had the benefit of advice from a legally qualified assessor in this regard. In any event the finding in relation to allegation 3 was based on evidence led on that allegation.

The chairman was entitled to distinguish between individuals who came into contact with the complainer in the period immediately following the event and individuals who were told what had happened other than by the complainer.

The chairman excluded the contents of witnesses not present at the hearing but evidence of police officers concerning such statements was admissible hearsay evidence.

There was no obligation on me to hold an oral hearing. In view of the grounds of appeal before me I saw no need to do so.

Having considered the grounds of appeal that were before me I did not consider any of the propositions to have critically affected the chairman's judgment. The critical issue was credibility and the chairman reached a clear view on this matter."

 

[15] In advance of the appeal hearing before the tribunal the respondent intimated that he wished to amend his grounds of appeal by adding an argument relating to the standard of proof and otherwise condensing his remaining grounds. The tribunal allowed the amended notice of appeal, which was in the following terms:

1. The chairman misdirected himself as to the standard of proof required before finding the allegation proven when he said simply that a balance of probabilities was enough.

 

2. The account of events given by the complainer was so improbable that no chairman properly instructed as to the standard of proof required for such an allegation would have found it proved.

 

The tribunal's decision

[16] At the appeal hearing before the tribunal on 20 February 2006 the respondent was represented by Mr Len Murray, Solicitor, and the petitioner by Mr Fraser Munro. Intimation had been given to the tribunal before the hearing that it might be asked to hear the evidence of the respondent but in the event Mr Murray did not invite the tribunal to hear the respondent's evidence. The hearing therefore consisted only of submissions on behalf of each of the parties. The tribunal had before it the misconduct form (but not any of the productions referred to in the list of documents appended to it), the transcript of the misconduct hearing, the finding of the misconduct hearing, the notice of the determination of the appeal by the petitioner, the respondent's notice of appeal and the amendments to it and the petitioner's statement setting out his grounds for opposing the appeal. It was plain from a reading of the transcript that the misconduct hearing had had before it a number of documentary productions that were not available to the tribunal, but the representatives of the parties agreed that the appeal hearing should proceed on the basis of the material available to the tribunal.

 

[17] At the conclusion of the hearing on 20 February 2006 the tribunal deliberated but could not reach a decision. It stated that the issue was whether the misconduct charge had been proved against the appellant, no separate point having been taken in relation to disposal, it being obvious that dismissal was appropriate if the misconduct charge was proved. When it met again on 17 March 2006 it concluded its deliberations and allowed the appeal on the casting vote of the chairman under paragraph 5 of Schedule 3 to the Act. It held (at para 19 of its determination), following the decision in Mullan v Anderson 1993 SLT 835, that the standard of proof was proof on a balance of probabilities but that, in applying that standard, it was recognised that it may be more difficult to prove an allegation of murder or serious crime "because it is inherently unlikely that a normal person will commit such a crime" (per Lord Morison at p824E-F). It was accepted on behalf of the respondent that the standard of proof which fell to be applied was that of balance of probabilities but submitted that the misconduct hearing had misdirected itself as to the proper application of that standard of proof in a case involving as serious an allegation as rape. The tribunal stated (at para 25) that the submissions made by both parties relative to the standard of proof were perfunctory, they having agreed that the standard was the ordinary civil standard and not having analysed the practical question of the proper approach to the assessment of evidence where an allegation as serious as rape was in issue, and that this probably accounted for the truncated conclusion of the misconduct hearing. It identified (at para 26) the questions in the appeal as:

(1) whether the misconduct hearing had in contemplation the correct approach to the assessment of evidence as explained in Mullan v Anderson; and

 

(2) whether the misconduct hearing duly applied the correct approach with the result that the tribunal should defer to its conclusions.

It stated (at para 27) that the decision of the petitioner did not advance matters because he simply deferred to the misconduct hearing's assessment of the evidence without asking the pertinent questions and recorded that neither party to the appeal placed weight on his decision.

[18] The minority view of the tribunal (set out at paras 28-30) was that the misconduct hearing had properly appreciated the correct approach in law to the assessment of the evidence and that no error had been demonstrated in the approach taken. The minority was satisfied that the chairman of the misconduct hearing, having heard the witnesses and the submissions made, addressed the evidence led. He specifically identified that the alleged contravention of the Regulations was indeed an allegation of a most serious nature. No new evidence was offered to the tribunal to augment or qualify the evidence in the transcript placed before the tribunal. The minority referred to Mullan v Anderson and Thomas v Thomas 1947 SC (HL) 45 and observed that, in relation to the variations in evidence and the perceived contradictions or inconsistencies, such circumstances (sic) were commonplace in the recollections of witnesses and might not necessarily have had a sinister foundation. The argument that the chairman of the misconduct hearing had not adequately reported on the weight he had given to individual witnesses was an aspect that was not considered fatal to the outcome (Thomas v Thomas, per Lord Simonds at p 61). The minority considered that the chairman had satisfied the requirement to evaluate the evidence given and they believed that the evidence in the transcript did not justify setting aside the determination made. They recognised that the chairman had indicated his attention to the evidence, which included weighing up the sufficiency and amount of evidence that he held to be reliable and credible.

[19] The majority view (set out at paras 31-59) was that the reasons given by the misconduct hearing were not satisfactory and that, consistently with Thomas v Thomas per Lord Thankerton at p 54, the tribunal could and should interfere with the conclusion. Addressing Lord Shaw's question in that case, the majority were satisfied that the finding of misconduct was plainly wrong. They said that the background had to be borne in mind. They pointed out that the misconduct complaint was an extremely serious one, involving an allegation of rape, which was sufficiently serious to come within the guidance in Mullan v Anderson that it was inherently unlikely that a normal person would commit such a crime and that accordingly proof of such a serious allegation required evidence of some magnitude. They accepted the submission made by Mr Murray that that inherent unlikelihood was heightened in the present case by the fact that the circumstances of the alleged incident included a number of extraordinary features, which they specified at para 32.2 as follows:

(i) The incident took place in the appellant's family home.

(ii) It took place in the bedroom of one of the appellant's stepsons while the boy was asleep in the room, with the obvious risk that he might be wakened.

 

(iii) It took place in proximity to the bedroom in which the appellant's wife was asleep.

 

(iv) The appellant and his wife had been married only the week before the incident and on the night in question they had had sexual intercourse together.

(v) After the incident the appellant left the house to go to work, leaving the complainer the opportunity to speak to his wife.

 

(vi) The complainer did go into the couple's bedroom and was at least on, if not in, their bed for some time after the incident.

 

(vii) She returned to her own home briefly to get ready for work and then came back to the appellant's house to get a lift from his wife and was in conversation with her as they drove to the station.

 

They went on to point out that there was no corroboration for even an assault, let alone the penetration required for rape. There was no forensic (sic) evidence to confirm the complainer's account. The complainer did exhibit distress during a telephone conversation with the witness Jane Callaghan and later when she met that witness at the railway station but that distress did not corroborate the commission of an assault.

[20] Having regard to the combination of these background factors the majority took the view that a close analysis of the evidence was required to determine whether the petitioner had proved his case. The crux of the majority view was that there were conflicts among the witnesses on significant details and the misconduct hearing had simply glossed over them, either not noting them at all, or, insofar as they were noted, not resolving them or addressing their implications. They thought the misconduct hearing had been poorly served by inadequate submissions and they were satisfied, having had the benefit of fuller submissions, that the reasons given by the misconduct hearing were inadequate to justify upholding the complaint. They took the view that the complainer's evidence did not stand up to the requisite scrutiny and the finding of the misconduct hearing, by asking whether there were points on which the complainer was supported by other witnesses, had failed to tackle the true issue. In their view the true issue was to consider whether, having regard to the combination of background factors mentioned above and the points on which the complainer's evidence conflicted with that of other witnesses, her evidence was of sufficient weight to justify the conclusion that the alleged misconduct occurred. The complainer had been contradicted on essential details by the respondent's wife, Mrs Rona Crawford, and the misconduct hearing had given no reason for rejecting Mrs Crawford's evidence. The cross-examination of Mrs Crawford on behalf of the petitioner was brief, extending to only three pages of the transcript, and there was no challenge to the credibility and reliability of her evidence where it conflicted with that of the complainer. The majority then proceeded to analyse at paras 38 to 46 the specific conflicts. They also pointed out that the misconduct hearing did not discuss the respondent's evidence in any detail and that only by implication could one infer that they found him an incredible witness. That in itself troubled them. One could not infer that where the evidence of the complainer and Mrs Crawford diverged the misconduct hearing had preferred that of the complainer. On the contrary, apart from one incidental comment on the vagueness of one aspect of Mrs Crawford's evidence, the misconduct hearing had made no adverse comment on her reliability or credibility. Indeed, when the misconduct hearing observed that the complainer's account gained some support from witnesses "who I hold to be credible and reliable", that must have included Mrs Crawford whose testimony was relied upon as providing some collateral support. Though superficially there were points in common between the two witnesses, there were essential differences (which they proceeded to discuss at paras 48-53) that went to the credibility of the account given by the complainer.

[21] The majority of the tribunal concluded their reasoning (in a passage in which the present petitioner is referred to as "the respondent" and the present respondent is referred to as "the appellant") at paras 54 to 58 in the following terms:

"54. It is not in dispute that the complainer spent the night at the appellant's house. The question is whether she was raped by the appellant during the course of that night. This is an extremely serious allegation, which in itself requires a careful analysis of the evidence, and the need for careful analysis is heightened by the fact that the circumstances surrounding the alleged incident present a number of extraordinary features. The appellant denied the allegation in evidence, exposing himself to cross-examination. No specific criticisms are made of his evidence and one is left to infer that he was dismissed as incredible only because the opposing account of the complainer was considered to be credible. There is no corroborative evidence of any assault. It is, of course, acknowledged that there is no requirement for corroboration in a civil case such as the present (Civil Evidence (Scotland) Act 1988, section 1(1)), and this tribunal is mindful that it must review the evidence in a balanced manner without indirectly reintroducing the old rules (L v L 1998 SLT 672). Still, at a practical level the absence of any forensic (sic) evidence consistent with the complainer's account must be a factor of some weight. On a matter of this seriousness it is of grave concern that the complainer is correctly found to have embellished a central part of her account and, moreover, that she is in conflict with witnesses who are generally credible and reliable. The conflicts are most pronounced compared with (sic) the evidence of Mrs Crawford but do extend to Ms Callaghan.

 

55. The majority accepts Mr Murray's submission that this case has to be approached as one of the kind contemplated by Lord Penrose in Mullan v Anderson: one involving an allegation which, of its very nature, is, or appears to be, improbable and which therefore requires evidence of more significant weight to persuade one that a fact of that nature was probably true.

 

56. Having reviewed the evidence as a whole in the transcript the majority is not satisfied that the respondent has discharged the onus of proof incumbent upon him by adducing evidence of sufficient weight to prove this misconduct complaint.

 

57. Lord Shaw's question in Clarke v Edinburgh & District Tramways 1919 SC (HL) 35 at p 37 has to be addressed by the majority:

 

'Am I - who sit here without these advantages, sometimes broad and sometimes subtle, which are the privilege of the judge who heard and tried the case - in a position, not having those privileges, to come to a clear conclusion that the judge who had them was plainly wrong?'

 

58. The majority is not satisfied with the reasons given by the misconduct hearing. The majority is of the view that the misconduct hearing did not properly address the issue because of the inadequacy of the submissions presented to it. With the benefit of fuller submissions the majority is of the view, for the reasons given, that the misconduct hearing was plainly wrong to find the misconduct complaint proven on the balance of probabilities."

 

 

Submissions for the petitioner

[22] The primary submission for the petitioner was that, on the basis of Thomas v Thomas, this was not a case in which the tribunal was entitled to interfere with the decision of the misconduct hearing. The following passages from that case were founded upon.

 

[23] Viscount Simon, who dissented in the result, stated at pp 47-48:

"Before entering upon an examination of the testimony at the trial, I desire to make some observations as to the circumstances in which an appellate court may be justified in taking a different view on facts from that of a trial judge. For convenience, I use English terms, but the same principles apply to appeals in Scotland. Apart from cases in which the powers of the Court of Appeal are limited to deciding a question of law ... an appellate court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this is really a question of law), the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at the trial, and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and the view of the trial judge as to where credibility lies is entitled to great weight. This is not to say that the judge of first instance can be treated as infallible in deciding which side is telling the truth, or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given. ... Lord President Clyde in Dunn v Dunn's Trustees 1930 SC 131 summarised the scope of appellate correction, with copious citation of earlier authority, and I agree with him that the true rule is that expounded by Lord President Inglis in Kinnell v Peebles (1890) 17R 416 that a court of appeal should 'attach the greatest weight to the opinion of the judge who saw the witnesses and heard their evidence', and consequently should not disturb a judgment of fact unless they are satisfied that it is unsound.

It not infrequently happens that a preference for A's evidence over contrasted evidence of B is due to inferences from other conclusions reached in the judge's mind, rather than from an unfavourable view of B's veracity as such; in such cases it is legitimate for an appellate tribunal to examine the grounds of these other conclusions and the inferences drawn from them, if the materials admit of this; and if the appellate tribunal is convinced that these inferences are erroneous, and that the rejection of B's evidence was due to the error, it will be justified in taking a different view of the value of B's evidence. I would only add that the decision of an appellate court whether or not to reverse conclusions of fact reached by the judge at the trial must naturally be affected by the nature and circumstances of the case under consideration. What I have said applies to appeals from a judge sitting alone. Conclusions of fact embodied in the verdict of a jury cannot be subjected to the same degree of re-examination - for the course of reasoning by which the verdict has been reached is not disclosed - and consequently the verdict of a jury on fact must stand if there was any evidence to support it and if the conclusion is one at which a reasonable jury when properly directed might reasonably arrive."

 

[24] Lord Thankerton said at p 54:

"I do not find it necessary to review the many decisions of this House, for it seems to me that the principle embodied therein is a simple one, and may be stated thus:-

 

(1) Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the judge's conclusion.

 

(2) The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence.

 

(3) The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question."

 

[25] Lord Macmillan said at p 59:

"The case now before the House provides a typical example of the difficulties I have indicated, but it is also a typical case for the application of the well-established rule defining the proper approach of an appellate court to the consideration of a decision on fact by the court of first instance ... The appellate court has before it only the printed record of the evidence. Were that the whole evidence, it might be said that the appellate judges were entitled and qualified to reach their own conclusion upon the case. But it is only part of the evidence. What is lacking is evidence of the demeanour of the witnesses, their candour or their partisanship, and all the incidental elements so difficult to describe which make up the atmosphere of an actual trial. This assistance the trial judge possesses in reaching his conclusion, but it is not available to the appellate court. So far as the case stands on paper it not infrequently happens that a decision either way may seem equally open. When this is so, and it may be said of the present case, then the decision of the trial judge, who has enjoyed the advantages not available to the appellate court, becomes of paramount importance and ought not to be disturbed. This is not an abrogation of the powers of a court of appeal on questions of fact. The judgment of the trial judge on the facts may be demonstrated on the printed evidence to be affected by material inconsistencies and inaccuracies, or he may be shown to have failed to appreciate the weight or bearing of the circumstances admitted or proved, or otherwise to have gone plainly wrong."

 

[26] Lord Simonds at p 60 agreed with the above dicta of Lord Simon and Lord Thankerton, and, in particular, concurred in the three propositions stated by Lord Thankerton. Having held that the Second Division was wrong to have reversed the decision of the Lord Ordinary on the facts, he went on to state at pp 61-62:

"There I should be content to leave this case but for certain criticisms made by counsel for the respondent in his able and candid address. Relying on the testimony of certain witnesses called on behalf of the respondent (whom I need not name) he said that the learned Lord Ordinary had come to a conclusion which was diametrically opposed to that testimony, yet he had not explicitly stated that he did not accept them as witnesses of truth nor, indeed, make any adverse comment upon them. Your Lordships were therefore invited to find that the learned judge had forgotten or ignored this evidence and to hold that his judgment was thereby vitiated. I believe this to be fundamentally unsound criticism. The trial judge has come to certain conclusions of fact; your Lordships are entitled and bound, unless there is compelling reason to the contrary, to assume that he has taken the whole of the evidence into his consideration. If his conclusion is inconsistent with the evidence of certain of the witnesses but he does not in terms stigmatise them as false witnesses, it is not the proper or necessary inference that he has forgotten or ignored them; of this the present case is a cogent example, for I can well understand why the Lord Ordinary, while not accepting his evidence, did not think fit to comment unkindly on at least one of the witnesses in question."

 

[27] Lord du Parcq stated at pages 62-63:

"I was a party to the decision of the Court of Appeal in Yuill v Yuill [1945] P 15, to which my noble and learned friend on the Woolsack has referred. I am happy that it should meet with approval in this House, and I agree with my noble friend's statement of the result of earlier cases. All the authoritative decisions which relate to the proper attitude of an appellate court towards the findings of fact of the trial judge naturally tend to lay emphasis on one aspect of the question, either on the fact that the appellate court's duty to see justice done may constrain it to reject the judge's findings, or on the undesirability of deciding a case on the written record against the view of the judge who heard the witnesses. But, though one aspect may be emphasised, the other must always be present to the mind of the court. Thus in Yuill v Yuill, where the decision of the judge was reversed, the learned Master of the Rolls said (at p 19): 'It can, of course, only be on the rarest occasions, and in circumstances where the appellate court is convinced by the plainest considerations, that it would be justified in finding that the trial judge had formed a wrong opinion.' I am satisfied that this is not one of those very rare occasions. There are, no doubt, cases in which it is proper to say, after reading the printed record, that, after making allowance for possible exaggeration and giving full weight to the judge's estimate of the witnesses, no conclusion is possible except that his decision was wrong. I can come to no such conclusion in the present case. The opinion of the Lord Ordinary, if I may respectfully say so, seems to me to be careful, wise and fair. It has been pointed out that he makes no reference to the evidence of Jemima Robertson, but I am by no means prepared to infer from this omission that he had not given what he believed to be due weight to her testimony."

 

[28] The crux of the majority view of the tribunal as set out at paras 35 and 36 of its decision was that the misconduct hearing had glossed over points involving conflicts of evidence, but there was no insufficiency of reasoning by the misconduct hearing. It could not be said that the tribunal was entitled to hold that the misconduct hearing had not taken proper advantage of seeing and hearing the witnesses. The tribunal took the view that the misconduct hearing had to give detailed reasons dealing with each possible perceived conflict in the evidence. There was no such duty on the misconduct hearing, provided it made clear what its reasons for its decision were. The tribunal's criticism of the misconduct hearing's failure to give reasons should be looked at in the context of the authorities on judges having to give reasons: those authorities did not require the detail the tribunal seemed to think necessary. It was clear from the misconduct hearing's findings that its determination was based on credibility and that it had accepted the evidence of the complainer as credible on material matters. The conflicts identified in the evidence were on matters that did not directly bear on whether the respondent had conducted himself in the manner alleged. The respondent's position was that the rape did not occur: if the complainer's version was accepted it followed that the respondent's version was not accepted. The chairman of the misconduct hearing felt that there were other witnesses who supported the complainer to some extent. The credible testimony of one witness, depending on his or her demeanour, could tip the balance. If there had been only two witnesses, the misconduct hearing could have accepted the evidence of the complainer. The weight to be given to certain evidence could be derived from its quality. The reason for the rejection of allegations 1 and 2 had nothing to do with the credibility and reliability of the complainer. In this case if the complainer was believed that was essentially the end of the matter.

[29] In Thomson v Kvaerner Govan Ltd 2004 SC (HL) 1 the Lord Ordinary held that the pursuer's account of an industrial accident could not be accepted as reliable because the parties had admitted that his recollection of various matters was faulty, it was suggested that he may have been suffering from retrograde amnesia, and his account of the accident could not be reconciled with the evidence of the defenders' expert. The First Division allowed the pursuer's reclaiming motion, holding that the evidence of the defenders' expert was not of sufficient weight by itself to justify the rejection of the pursuer's evidence. The House of Lords (Lord Steyn dissenting) reversed the judgment of the First Division and restored the decision of the Lord Ordinary, holding that it had not given the weight which an appellate court ought to give to the decision on the facts by the judge of first instance, and appeared to have given way to the temptation of retrying the case on the printed evidence, that an appellate court ought to be slow to interfere with a decision based on a view of the reliability of witnesses of whom the Lord Ordinary was able to make a personal assessment and that the Lord Ordinary's approach could not be faulted. Lord Hope of Craighead stated at p 6, paras 18 and 19:

"[18] Although Lord Morison said that the reasons given by the Lord Ordinary for holding as he did were not satisfactory, the opinion which he delivered falls short of saying that the Lord Ordinary had gone plainly wrong. He said that the conclusion which the court had reached was that Mr Cox's opinion was not of sufficient weight by itself to justify rejection of the respondent's direct evidence as to the occurrence of the accident. I am left with the clear impression that their Lordships, for their part, did not give the weight which an appellate court ought to give to the decision on the facts by the judge who was sitting at first instance. Instead they appear to have given way to the temptation which must always be resisted by an appellate court of retrying the case on the printed evidence.

 

[19] The rule to which I have referred is so familiar that I would regard it as quite unnecessary for an appellate court as a matter of routine to cite the well-known authorities. But one ought to be able to detect some signs, in the language used or at least in the general approach which has been taken, that the court had the rule in mind when it was addressing the argument. One would expect it to be said that the Lord Ordinary had gone plainly wrong or that it unmistakably appeared from the evidence that he had not taken proper advantage of the opportunity which he had of seeing and hearing the witnesses. Those indications are absent from Lord Morison's opinion. What one finds instead is a re-examination of the question which was pre-eminently a matter for the Lord Ordinary - namely, whether the respondent's account was to be regarded as reliable having regard to the weight of the evidence."

 

[30] In Simmons v British Steel PLC 2004 SC (HL) 94 the pursuer sustained a severe blow to the head in an accident at work. He thereafter experienced an exacerbation of a pre-existing skin condition and developed a personality change which resulted in a severe depressive illness. The Lord Ordinary was not satisfied on the evidence that it had been proved that the skin condition and depressive illness were sufficiently causally related to the accident. He held that after the accident the pursuer had become angry and that it was his anger which led to the exacerbation of the skin condition several weeks after the accident and his depressive illness. The Second Division took a different view of the facts and held that the skin condition began to worsen within a matter of days and that it and the depressive illness were directly caused by the accident. The House of Lords held that the Lord Ordinary had been entitled to make the findings in fact which he had made and that the Second Division were in error when they interfered with them. Having referred to Lord Thankerton's three propositions in Thomas v Thomas and the evidence in the case, Lord Rodger of Earlsferry stated at p 109, para 50:

"In these circumstances there was no basis for the Second Division to reopen the Lord Ordinary's findings. Indeed, having read the same excerpts from the transcript as were before the Inner House, I would pay tribute to the careful way in which Lord Hardie analysed the evidence and formulated his findings in fact. More especially, I am satisfied that, on the basis of Mrs Simmons' evidence, in particular, the Lord Ordinary was fully entitled to hold that the exacerbation of the pursuer's skin condition did not occur until 'several weeks' after the accident. Without explaining why, the Second Division substituted a finding that 'within a matter of days the pursuer's skin condition began steadily to worsen'. Applying the well-established principles in Thomas v Thomas and other authorities, I see no basis for the appellate judges, who had not seen the witnesses, supplanting the Lord Ordinary's considered finding on this particular, important, matter."

 

[31] In the present case the chairman of the misconduct hearing had watched the two crucial players (the complainer and the respondent) give evidence. He had not fastened upon the complainer's evidence and ignored other evidence. Her evidence had been accepted and contrary evidence rejected. He had given proper and adequate reasons for his decision, which left the court in no real and substantial doubt what the reasons for it were and what were the material considerations which were taken into account in reaching it (Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 per Lord President Emslie at p 348).

[32] In Eagil Trust Co Ltd v Piggott-Brown [1985] 3 All ER 119 Griffiths LJ said at p 122a-e:

"A professional judge should, as a rule, give reasons for his decision. I say 'as a general rule' because in the field of discretion there are well-established exceptions. The most obvious and frequently used is the judge's discretion on costs. ...

Apart from such exceptions, in the case of discretionary exercise, as in other decisions on facts or law, the judge should set out his reasons, but the particularity with which he is required to set them out must depend on the circumstances of the case before him and the nature of the decision he is giving. When dealing with an application in chambers to strike out for want of prosecution, a judge should give his reasons in sufficient detail to show the Court of Appeal the principles on which he has acted and the reasons that have led him to his decision. They need not be elaborate. I cannot stress too strongly that there is no duty on a judge, in giving his reasons, to deal with every argument presented by counsel in support of his case. It is sufficient if what he says shows the parties, and, if need be, the Court of Appeal the basis on which he has acted, and if it be that the judge has not dealt with some particular argument but it can be seen that there are grounds on which he would have been entitled to reject it, this court should assume that he acted on those grounds unless the appellant can point to convincing reasons leading to a contrary conclusion ..."

 

[33] In English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409 Lord Phillips of Worth Matravers MR, giving the judgment of the Court of Appeal, stated at p 2418, para 18 that the above observations of Griffiths LJ applied to judgments of all descriptions. He went on to say at para 19:

"It follows that, if the appellate process is to work satisfactorily, the judgment must enable the appellate court to understand why the judge reached his decision. This does not mean that every factor which weighed with the judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the judge's conclusion should be identified and the manner in which he resolved them explained. It is not possible to provide a template for this process. It need not involve a lengthy judgment. It does require the judge to identify and record those matters which were critical to his decision. If the critical issue was one of fact, it may be enough to say that one witness was preferred to another because the one manifestly had a clearer recollection of the material facts or the other gave answers which demonstrated that his recollection could not be relied upon."

[34] In the present case the issue was resolved on the credibility of the complainer and the respondent respectively.

[35] The decision of the Privy Council in Gupta v General Medical Council [2002] 1 WLR 1691 dealt with an appeal from the Professional Conduct Committee of the General Medical Council, upon whom there was no general duty to give reasons for its decisions on matters of fact, particularly where they depended essentially on resolving questions of the credibility of witnesses. The Board held that there was no requirement on the committee to indicate formally which witnesses it accepted and which it rejected and that its decision was not bad for want of reasons. Lord Rodger of Earlsferry, after referring to two earlier decisions which he described as "a reminder of the scope of the jurisdiction of this Board in appeals from professional conduct committees", went on to say at p 1697, para 10:

"They do indeed emphasise that the Board's role is truly appellate, but they also draw attention to the obvious fact that the appeals are conducted on the basis of the transcript of the hearing and that, unless exceptionally, witnesses are not recalled. In this respect these appeals are similar to many other appeals in both civil and criminal cases from a judge, jury or other body who has seen and heard the witnesses. In all such cases the appeal court readily acknowledges that the first instance body enjoys an advantage which the appeal court does not have, precisely because that body is in a better position to judge the credibility and reliability of the evidence given by the witnesses. In some appeals that advantage may not be significant since the witnesses' credibility and reliability are not in issue. But in many cases the advantage is very significant and the appeal court recognises that it should accordingly be slow to interfere with the decisions on matters of fact taken by the first instance body. This reluctance to interfere is not due to any lack of jurisdiction to do so. Rather, in exercising its full jurisdiction, the appeal court acknowledges that, if the first instance body has observed the witnesses and weighed their evidence, its decision on those matters is more likely to be correct than any decision of a court which cannot deploy those matters when assessing the position. In considering appeals on matters of fact from the various professional conduct committees, the Board must inevitably follow the same general approach. Which means that, where acute issues arise as to the credibility and reliability of the evidence given before such a committee, the Board, duly exercising its appellate function, will tend to be unable properly to differ from the decisions as to fact reached by the committee except in the kinds of situations described by Lord Thankerton in the well known passage in Watt or Thomas v Thomas [1947] AC 484, 487-488."

 

That case provided useful guidance. In the present case there were five pages discussing the evidence about allegation 3 which concluded with an overall weighing of the evidence before a decision was reached.

[36] Stefan v General Medical Council [1999] 1 WLR 1293 was an appeal to the Privy Council on a point of law dealing with the duty on the Health Committee of the General Medical Council to give reasons where no statutory duty to do so was imposed upon it. Lord Clyde, delivering the judgment of the Board, stated at p 1301C-F:

"An important distinction should be noted at this stage, namely the distinction which has to be made between the obligation to state reasons and the separate but related matter of the substance of those reasons. ... What will suffice to constitute the reasons is a matter distinct from the obligation to give reasons, and there can clearly be circumstances where a quite minimal explanation will legitimately suffice."

At p 1304A his Lordship stated:

"The extent and substance of the reasons must depend upon the circumstances. They need not be elaborate or lengthy. But they should be such as to tell the parties in broad terms why the decision has been reached."

 

The requirement that the reasons should be such as to tell the parties in broad terms why the decision had been reached had been met in the present case and the tribunal was in error insofar as it held that there had been a failure to give adequate reasons.

[37] Whether or not the complainer's evidence should be accepted was essentially a jury matter. The weight to be accorded to the evidence of a single witness was pre-eminently a matter for the body which heard the evidence of the witness. There had been no failure by the misconduct hearing to give adequate reasons and there had been no basis for the tribunal to hold that the misconduct hearing had been plainly wrong.

[38] It was accepted on behalf of the petitioner that the point might be made against him - what about Mullan v Anderson 1993 SLT 385? That case dealt with an allegation of murder in civil proceedings. Lord Justice-Clerk Ross said at p 840:

"There is no question of the civil court being asked to review what was done in the High Court; no difficulty should arise so far as standard of proof is concerned because in the civil action the standard of proof will be balance of probability."

 

[39] Lord Morison, having referred to two authorities which suggested that there might be a higher standard of proof, went on to say at p 842:

"In my view these authorities are plainly insufficient to displace the well established principle that in civil cases the standard of proof required of a pursuer is that he establish his case on a balance of probabilities, and the suggestion that there exists in Scotland some standard intermediate between a balance of probabilities and beyond reasonable doubt has been expressly rejected in Brown v Brown 1972 SLT at p 145, Lamb v Lord Advocate 1976 SLT at pp 153 and 156, and B v Kennedy 1987 SLT at p 768. My view that any civil case, including this one, must be determined on a balance of probabilities does not ignore the obvious fact that it is more difficult to prove, according to the required standard, an allegation of murder or serious crime, because it is inherently unlikely that a normal person will commit such a crime. Certain English authorities cited, including the similar case of Halford v Brookes [1991] 1 WLR 428, appear to have proceeded on the basis that this difficulty is to be reflected in a variation of the normal standard of proof, but in my view there is no justification in Scotland for that approach, and if it were applied it might well lead to uncertainty in case where an allegation of serious criminal or immoral conduct was made."

 

[40] Lord Prosser said at pp 846-7:

"The only alternative to proof on a balance of probabilities is proof beyond reasonable doubt (Brown v Brown), and I can see nothing in authority or principle which suggests that the higher standard should be adopted in a civil action simply because that higher standard would be required in proving the same facts in a criminal trial. Whichever standard of proof is being applied, the party upon whom the onus of proof is laid may succeed merely by proving quite bare circumstances. Or he may have to provide a vast wealth of detailed evidence. General assumptions may make the task easy, or they may make it close to impossible, on either standard. Lord Reid's observations in McWilliams v Sir William Arrol & Co 1962 SLT at p 126 appear to me to show with great clarity the way in which general assumptions as to probabilities determine the magnitude or otherwise of a pursuer's task. Having regard to general probabilities, I do not doubt that a pursuer's task is one of some magnitude if he seeks to prove that a murder has been committed, even on a balance of probabilities. On the other hand, if he can prove detailed facts and circumstances leading to death he may require little more, even to satisfy the higher standard of proof. Whichever standard has to be attained, one may have a long way to go, or a short way to go, once the basic facts are proved. I see no justification for departing from the ordinary civil standard of proof in those cases where initially, because of the gravity of the allegations, a pursuer apparently has a long way to go."

 

[41] Lord Penrose, having said that in his opinion the English authorities were not helpful in this context, went on to say at p 851:

"The Scottish authorities establish, in my opinion, that there are two standards of proof only in Scotland, proof beyond reasonable doubt and proof on a balance of probabilities ... The two standards differ in character, not in degree. Proof on a standard which excludes reasonable doubt on the whole evidence available to the tribunal of fact involves a process of analysis and reasoning which differs from that involved in reaching a view whether, among the possibilities which emerge on a consideration of the evidence as a whole, one can be identified which probably reflects the truth. In my opinion it is wholly consistent with such an approach to recognise that certain facts may require evidence of particular weight if they are to be established on either approach. ... In some cases one may have an allegation which, of its very nature, is, or appears to be, improbable. It would require evidence of more significant weight to persuade one that a fact of that nature was probably true than it would to persuade one that a commonplace event had occurred."

 

[42] The decision in Mullan did not require the fact-finding body to deal with every point that might be apprehended as a conflict in the evidence. Nothing suggested that a complainer had to be uncontradicted in every part of her evidence. The weight to be attached to the evidence could be derived from the demeanour of the witness. It could not be inferred in the present case that there was not evidence of sufficient weight before the misconduct hearing to entitle it to find allegation 3 proved. If the complainer's evidence were accepted as true and correct, the burden of proof was discharged, however one might describe it. It was not necessary for the misconduct hearing to say that the respondent's evidence had been rejected as incredible: that was an inevitable inference from the penultimate paragraph of its decision. The tribunal took the view that the misconduct hearing should have evaluated the evidence of the complainer in light of the factors specified in para 32.2 of its decision. Those factors were for the jury or decision maker.

[43] The errors alleged to have been made by the tribunal were set out in statement 11 of the petition. The tribunal had correctly identified its role as circumscribed by the decision in Thomas v Thomas. The tribunal referred to the inherent unlikelihood of the conduct alleged, but the misconduct hearing had taken the unusual circumstances into account. In a criminal trial the prosecutor would say that no one would make up such an unusual complaint and the defence would say that it was so unusual that it was unbelievable. The decision was a jury one. The submission that CJ was a cold, calculating liar was faced up to by the misconduct hearing, whose ultimate conclusion was that she was credible in her account (see the last seven paragraphs of the misconduct hearing's decision). The tribunal's view that the misconduct hearing had not sufficiently taken the unusual circumstances into account was unfounded. The misconduct hearing was impressed by the fact that CJ's account to the interviewing police officers close to the time of the incident was consistent with that given by her to the misconduct hearing.

[44] It was submitted that the tribunal had erred in law in various specific respects. It erred by taking into account as a matter increasing the unlikelihood of the truth of CJ's allegation the circumstance that the respondent and his wife had had sexual intercourse together on the night in question. That did not form part of the allegation made by CJ and by having regard to it the tribunal had accepted it as true. It erred by taking into account an irrelevant factor, namely, the absence of corroboration of either an assault or rape. There was no requirement for corroboration in these civil proceedings. It erred by treating the evidence of CJ's distress as witnessed by Jane Callaghan as entirely irrelevant: it was relevant as corroboration of CJ's evidence that something distressing and unwelcome had happened to her. It erred by taking into account the absence of any forensic (sic) evidence consistent with CJ's account. The absence of evidence that intercourse had occurred and that it had occurred without CJ's consent, particularly the absence of evidence of injury, was itself consistent with CJ's account. It erred in its application of the appropriate standard of proof to the evidence before it. It correctly accepted that the standard of proof to be applied on the evidence before it was proof on the balance of probabilities but in its analysis of the evidence it relied on discrepancies in points of detail between the evidence of CJ and the evidence of other witnesses and on discrepancies which were not put, or not fully put, to CJ in cross-examination. In effect, its analysis of the evidence was one which sought to exclude reasonable doubt as to what occurred, rather than seeking to ascertain what probably occurred. It erred by treating as material the discrepancies which it identified in the evidence: any reasonable tribunal reading the evidence would have concluded that these amounted at most to discrepancies on points of detail. It erred in treating as material the points of difference between the evidence of CJ and that of Rona Crawford about the matters narrated by it at paragraphs 44, 45 and 46. The allegation that CJ said to Rona Crawford that she was concerned about "stinking of drink" was put to her in cross-examination as a statement which she was alleged to have made while still in Rona Crawford's bed. Rona Crawford's evidence was that CJ had articulated this concern while in Rona Crawford's car. It was not apparent that there was the conflict perceived by the tribunal. The matter narrated by the tribunal at paragraph 46 of its decision was never put to CJ in cross-examination and she was given no opportunity to comment on it. The tribunal was not entitled to treat as significant discrepancies points which were not put to CJ in cross-examination. In taking into account the purported discrepancies it took an irrelevant matter into account. It erred in taking into account that CJ had been found to have embellished a central part of her account, apparently referring to her belief that she had been drugged. That represented a misconstruction of the misconduct hearing's finding, which was that an inference "may also be drawn that a retrospective claim that she may have been drugged was supposition on her part." It erred in failing to take into account the advantage which the misconduct hearing had, and which it did not have, of hearing and seeing the witnesses give evidence. That was a significant factor in assessing the weight of a witness's evidence and the importance or otherwise of any points of difference between the evidence of two witnesses. The tribunal accorded no deference to the misconduct hearing, which had articulated in its findings that it placed weight on the manner in which both CJ and the respondent had given evidence. The vital issue for the misconduct hearing was the credibility and reliability of CJ. It was quite clear what their conclusion on that matter was. The decision of the tribunal should be reduced.

 

 

Submission for the respondent

[45] It was submitted for the respondent that the petitioner had failed to demonstrate any basis for the court interfering with the decision of the tribunal. The tribunal had not erred in law or acted unreasonably. The supervisory jurisdiction of the court did not allow it to interfere with the merits of the tribunal decision where that decision had been properly and lawfully reached. The court was concerned, not with the decision under review, but with the decision-making process. In Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155 Lord Hailsham of St Marleybone LC, speaking of the purpose of the remedy by way of judicial review, said at pp 1160F - 1161A:

"Since the range of authorities, and the circumstances of the use of their power, are almost infinitely various, it is of course unwise to lay down rules for the application of the remedy which appear to be of universal validity in every type of case. But it is important to remember in every case that the purpose of the remedies is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that it is no part of that purpose to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question. The function of the court is to see that lawful authority is not abused by unfair treatment and not to attempt itself the task entrusted to that authority by the law. There are passages in the judgement of Lord Denning MR (and perhaps in the other judgments of the Court of Appeal) in the instant case ... which might be read as giving the courts carte blanche to review the decision of the authority on the basis of what the courts themselves consider fair and reasonable on the merits. I am not sure whether the Master of the Rolls really intended his remarks to be construed in such a way as to permit the court to examine, as for instance in the present case, the reasoning of the subordinate authority with a view to substituting its own opinion. If so, I do not think this is a correct statement of principle. The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised by law to decide for itself a conclusion which is correct in the eyes of the court."

 

 

[46] Lord Fraser of Tullybelton said at p 1164D-E:

"I wish to emphasise that the only matter which I am deciding is that the process by which the chief constable reached his decision in this case was unfair in respect that the respondent was never told the reasons why his dismissal was being considered, and that he was given no opportunity of making an explanation about the matters of complaint against him. I am far from saying that, if the procedure had been fair, the chief constable would not have been entitled to reach the decision which he did."

[47] Lord Brightman said at p 1173D-F:

"I turn ... to the proper purpose of the remedy of judicial review, what it is and what it is not. In my opinion the law was correctly stated in the speech of Lord Evershed (in Ridge v Baldwin [1964] AC 40) at p 96. His was a dissenting judgment but the dissent was not concerned with this point. Lord Evershed referred to 'a danger of usurpation of power on the part of the courts ... under the pretext of having regard to the principles of natural justice'. He added:

 

'I do observe again that it is not the decision as such which is liable to review; it is only the circumstances in which the decision was reached, and particularly in such a case as the present the need for giving to the party dismissed an opportunity for putting his case.'

 

Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of abusing power."

 

[48] The dicta of Lord Templeman in Mercury Energy Ltd v Electricity Corporation of New Zealand [1994] 1 WLR 521 at p 526D-H were also founded on.

[49] The above dicta on the scope of judicial review had been universally approved and applied. They indicated the proper scope of judicial review. In this case Parliament had provided the appeal machinery. The court had to recognise the restriction on its power and guard against usurping the power of the tribunal. The tribunal's decision was well reasoned: it made clear that it had properly addressed the issues before it, including the standard of proof and the detailed examination of the evidence. No error of law on the part of the tribunal had been demonstrated and there was no foundation for the assertion that it had acted unreasonably.

[50] The tribunal was established under section 30 of the Act and the Rules detailed the applicable procedure. Regulations 9 and 15 conferred a wide jurisdiction upon it. It was an independent expert tribunal which had a legally qualified chairman and a jurisdiction which was not limited or qualified in any respect. It was not bound by the decision of the misconduct hearing or the Chief Constable and was entitled to come to its own view, contrary to theirs. It was not necessary for the tribunal to demonstrate that the inferior decision makers had either erred in law or acted unreasonably. In R ex parte Chief Constable of Avon and Somerset Police v Police Appeals Tribunal [2004] EWHC 220 (Admin) (a case dealing with an appeal against the sanction imposed) Collins J, dealing with the equivalent English tribunal, said at para 26:

"There is nothing in the statutory framework which indicates the way in which the tribunal must approach its task. It is, in terms, an appeal. It is an appeal to an expert tribunal. In those circumstances one would expect, particularly when it can hear fresh evidence and consider all matters put before it (and it has the power to substitute in the case of sanctions any that could have been imposed by the tribunal from which it is hearing the appeal), has a full power to reconsider and exercise its own judgment as to what the appropriate outcome should be."

Reference was also made to paras 28 and 35.

[51] In Chief Constable of Strathclyde Police v Strathclyde Joint Police Board & Ors [2005] CSOH 131 Lord Carloway stated at para 15:

"An appeal to a police appeal tribunal may involve a rehearing of the case. It is not a review of the correctness of the decision at the misconduct hearing or that on a subsequent appeal to the Chief Constable. The tribunal does not have to take as its starting point the previous decisions, nor does it require to analyse the reasoning of the earlier decision-makers or to identify some error of law on their part. It may look at that reasoning, take it into account and, in certain circumstances, agree with it. On the other hand, it may simply reach a different view on the evidence presented to it. If it does, then it is entitled to reach its own determination for any reached beforehand. In so doing, it is not bound to explain why it considers the earlier decision to have been 'wrong'. If it does reach a different decision, then it has, by so doing, formed the view that the earlier decision was not the correct one on the basis of the material, new or otherwise, ultimately presented to it. The reasons for its view will, of course, require to be adequate and they may, in that context, examine the earlier decision. But they need not do so."

 

Reference was also made to para 22.

[52] In the present case the tribunal was in an unusual situation. Its decision was based on the evidence heard by the misconduct hearing, which was addressed by both parties before it in a much more detailed way than at the misconduct hearing on the basis of the appropriate standard of proof where the allegation was one of a very serious crime (Mullan v Anderson). The misconduct hearing did not appear to have proceeded on a proper understanding of the law in that regard. The tribunal applied Mullan v Anderson in its approach to the evidence as it was not only entitled but obliged to do. It could not be said that it erred in law in doing so. It identified what it considered was a deficiency in the reasoning of the misconduct hearing. That was in itself sufficient to entitle it to come to a different view on the evidence led before the misconduct hearing. The procedure adopted in this case was not to order a rehearing and hear the evidence afresh. The tribunal did not have the productions. Seeing and hearing a rape complainer - indeed all the witnesses - might have been an advantage. It was not a question of asking simply whether the complainer or the respondent was believed: it was a question of applying the proper standard of proof. It was of absolutely no moment that juries convicted without giving reasons: the misconduct hearing was obliged to give reasons. The decision in Thomas v Thomas conferred a very wide power on the appellate court to intervene. The decision in the present case not to call for a rehearing was appropriate because, first, there had been an error by the misconduct hearing about the standard of proof, and, secondly, there was a deficiency of detailed reasoning by the misconduct hearing when it considered the evidence. The tribunal was a better qualified body than the misconduct hearing. No recent case was known where there had been a complete rehearing of the case by the tribunal. The reasons given by the misconduct hearing were unsatisfactory and did not warrant the decision it reached. The complainer made no mention to three police officers before her medical examination that she had been drugged. The misconduct hearing had rejected her assertion that she had been drugged. Regulation 17(3) required the misconduct hearing to give its finding and reasons. Here all that had been provided was a perfunctory statement by the misconduct hearing. The misconduct hearing held that she had embellished her evidence, for example, by suggesting that she was a solicitor when she contacted the police. She said that she had shared one bottle of wine in Edinburgh between 6 and 8.30 pm, but there was the question of how much alcohol she had had in the house. There were significant inconsistencies in her evidence. In the circumstances the appropriate course for the tribunal was to consider the evidence in light of the further submissions, whether the allegation of rape had been established and the misconduct hearing's finding could not be explained by any advantage which it enjoyed. The misconduct hearing had not been addressed at length on the applicable standard of proof and the correct approach to the assessment of the evidence.

[53] The tribunal's starting point for interfering with the decision of the misconduct hearing was the five judge decision in Mullan v Anderson. In light of what was said in that case evidence of particular weight was required to establish the fact of rape. The relevant passages in the opinions were referred to before the tribunal. It was appropriate to conduct a careful analysis of the evidence before making a finding that a serious crime had been committed, even on the balance of probabilities. There had been no appreciation by the misconduct hearing that evidence of a certain type was required to overcome the presumption that a normal person would not commit rape (even more so in the unusual circumstances here). The complainer's evidence of having been drugged required careful and precise examination, an exercise which had not been undertaken by the misconduct hearing. It was regrettable that neither of the two solicitors nor the misconduct hearing itself had paid regard to Mullan v Anderson. We did not know what the misconduct hearing would have decided had it been referred to that decision. It was not just a question of hearing two competing versions and deciding which was the more probable: the decision had to be whether one account could be identified which probably reflected the truth. The fact that the complainer was believable was not good enough: the misconduct hearing could not ignore the inconsistencies in the evidence if it was applying the approach in Mullan v Anderson. Nothing in the misconduct hearing decision disclosed that it had considered the possibility of determining that it was not established one way or another whether rape had been committed. The tribunal, which was well aware of the constraint on it, had gone on to apply the correct test (Thomas v Thomas, per Viscount Simon at pp 47-48, Lord Thankerton at p 54, Lord Macmillan at p 59, Lord Simonds at p 60 and Lord du Parcq at p 62). In Thomson v Kvaerner Govan Ltd and Simmons v British Steel PLC the House of Lords had reversed the Inner House because the latter had given no explanation for reversing the Lord Ordinary on the facts. These were two examples of careful first instance judgments being wrongly overturned by the first appellate court. If the petitioner succeeded in this case there would have to be a referral back to a differently constituted tribunal: Lord Carloway in Chief Constable of Strathclyde Police at para 23.

[54] The tribunal's reasoning in this case was that the misconduct hearing had not correctly applied the law in its consideration of the evidence and, also, it was not satisfied that the misconduct hearing had carefully analysed the evidence on separate matters. One got the impression that the second point might have stood separately even if the misconduct hearing had purported to apply Mullan v Anderson to its consideration of the evidence. While the outcome may be unsatisfactory in that the only proper legal consideration of the evidence was on the basis of the transcript of the evidence, the fault for that did not lie with the respondent. The power of the court on judicial review was circumscribed. The tribunal could have held that, as Mullan v Anderson had not been applied, the determination of the misconduct hearing could not stand, and stopped there, but it went on to consider the evidence itself on a proper approach based on Mullan v Anderson.

[55] The reasoning of the majority of the tribunal was very clearly set out in a number of passages. It was of the view that there were features of the evidence which were so unusual that a judge would have to consider them before deciding whether to accept the complainer's evidence (paras 32 and 33). It was absolutely correct to say, as the tribunal did at para 33, that having regard to the combination of the background factors a close analysis of the evidence was required to determine whether the petitioner had proved his case. The tribunal had then proceeded to carry out that detailed analysis from paras 36 to 54. It was always important to look at whether a rape complainer had given a consistent version of events and whether her actions before and after the event were consistent with her allegation. On a consideration of those matters there were clear inconsistencies in her evidence. Her allegation of having been drugged was used by her to explain some of her actions, such as not crying out. It was inherent in her position that she was not "stinking of drink", her explanation throughout having been that she had been drugged. Her allegation of having been drugged had not been mentioned by her to the police officers. There was simply no possibility of her having been drugged. When she had taken drink in the house it was not known that she was going to be staying the night.

[56] The tribunal's analysis showed a careful approach to the evidence and it was correct to carry it out in considering whether the charge had been proved. This was an example of a very superficial misconduct hearing which did no more than make passing reference to the drugging allegation. The complainer had lied to the police when she told them she was a solicitor. The tribunal was not bound to defer to the unsatisfactory decision of the misconduct hearing which had failed to address the necessary matters. The misconduct hearing was an unsatisfactory forum for addressing guilt of a serious charge.

 

Response for the petitioner

[57] In the response for the petitioner no issue was taken with the submission for the respondent about the limited nature of the supervisory jurisdiction. There was no dispute that a broad appellate jurisdiction was vested in the tribunal, but Lord Carloway had perhaps stated the matter too broadly when the tribunal was considering a transcript of evidence.

[58] The point of substance was the application of the decision in Mullan v Anderson. The tribunal did not characterise that point as an error in law. The reasoning of the misconduct tribunal did not disclose any reference to what their Lordships said in Mullan v Anderson. Ground of appeal 13 was that the standard of proof required was proof beyond reasonable doubt. The chairman of the tribunal drew the decision in Mullan v Anderson to the attention of the parties' solicitors (6/1 of process, page 3, paras 17 and 18). The point based on Mullan v Anderson therefore became a live one relatively late in the day, and after a change of representation for the respondent. Even if, applying Mullan v Anderson, the court were to hold that there had been an error of law, it would have to determine whether such an error had been material. Ultimately the decision would always turn on whether the complainer's evidence should be believed. If her evidence were believed, it was difficult to see how, on any approach to the standard of proof, any decision-maker could do other than hold that the allegation had been proved. Mullan v Anderson did not hold that corroboration was required. What gave evidence its weight was how it was given. Once the decision-maker got over the hurdle of believing the complainer the essentials of the charge were proved. The misconduct hearing described her evidence as having been "given in a direct and at times emotional but ... genuine way" and had taken that into account. The misconduct hearing said that the manner in which she gave evidence weighed with it. A professional judge would undoubtedly have written more in his decision than the misconduct hearing did, but it rejected the suggestion that she was a cold, calculating liar.

[59] There were two aspects to the issue of demeanour. First, whether any error on the part of the misconduct hearing was material. Secondly, whether the tribunal's own approach in interfering on the question of the credibility of the complainer was sustainable. It was averred in the petition (statement 11.9) that the tribunal had erred in law in failing to take into account the advantage which the misconduct hearing had, and which it did not have, of hearing and seeing the witnesses give evidence. The tribunal had not tackled head on the issue of the credibility of the complainer. It had not held that the misconduct hearing was not entitled to have held her to be credible. The finding by the misconduct hearing that she was credible was not subject to legitimate attack and the tribunal was not able to supplant that finding. The tribunal had simply taken a different view of the evidence. Once the complainer was believed at first instance the charge was proved. It would have been untenable for a decision-maker to say: "I believe the complainer but I do not hold the charge proved". While an error in law might open up findings in fact in an appeal court, deference was still due to the first instance finding on credibility, which was the basis of a finding in fact. The tribunal on appeal had to go through a two-stage process and ask itself two separate questions about the misconduct hearing's findings: (1) Can we interfere? and (2) Do we interfere? The first instance decision-maker's views on credibility were material at both stages. In some cases if a certain piece of evidence were believed it would be utterly irrational not to hold the charge proved. (On a specific point, it was pointed out that it was not put to the complainer in any great detail that she had said she was a solicitor: she was not asked if she told the police she was a solicitor). The decision of the tribunal should be reduced and a rehearing of the appeal ordered before a differently constituted tribunal.

 

Discussion

[60] It seems to me that the following points arise from the submissions made.

(i) Did the misconduct hearing err in its approach to the standard of proof ?

[61] The misconduct hearing recognised that the allegation of rape was "of a most serious nature", that it had "to be satisfied there is sufficient evidence led, based on the balance of probabilities, to prove the allegation", that corroboration was not required and that the evidence of the complainer, if believed, was sufficient. It also pointed out that, although corroboration was not required, there was, in addition to the evidence of the complainer, some supporting evidence from credible and reliable witnesses. The tribunal dealt with the question of standard of proof at para 19 of its determination, to which I have referred above. Although it mentioned that there was no corroborative evidence of any assault, at the same time it acknowledged that, by virtue of the Civil Evidence (Scotland) Act 1988, section 1(1) there was no requirement for corroboration in a civil case such as the present (paras 32/3 and 54 of its determination). As this was a case of what was formerly known as clandestine injury, involving intercourse with complainer while she was unable to consent, I do not see how there could ever have been corroboration of an assault, no force or violence on the part of the respondent (other than the act of intercourse itself) having been alleged by the complainer.

[62] In my view there are only two standards of proof recognised by the common law: proof on the balance of probabilities and proof beyond reasonable doubt. There is no intermediate standard of proof, such as some kind of higher balance of probabilities. This was made clear by the judges in Mullan v Anderson in the passages from their opinions quoted above. Moreover, the point was reinforced very recently by the House of Lords in In re B (Children) [2008] UKHL 35, in which Lord Hoffmann, reviewing the English authorities, made certain observations on the standard of proof to be applied in civil proceedings. He stated at para 2:

"If a legal rule requires a fact to be proved (a 'fact in issue'), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who carries the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened."

 

[63] That case dealt with the question of the standard of proof to be applied to facts used as the basis of a prediction that a child was likely to suffer significant harm. Lord Hoffmann went on to state at paras 4 and 5:

"4. The question which appears to have given rise to some practical difficulty is the standard of proof in such cases, that is to say, the degree of persuasion which the tribunal must feel before it decides that the fact in issue did happen. Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 makes it clear that it must apply the ordinary standard of proof. It must be satisfied that the occurrence of the fact in question was more likely than not.

 

5. Some confusion has, however, been caused by dicta which suggest that the standard of proof may vary with the gravity of the misconduct alleged or even the seriousness of the consequences for the person concerned. The cases in which such statements have been made fall into three categories. First, there are cases in which the court has for one purpose classified the proceedings as civil (for example, for the purposes of article 6 of the European Convention) but nevertheless thought that, because of the serious consequences of the proceedings, the criminal standard of proof or something like it should be applied. Secondly, there are cases in which it has been observed that when some event is inherently improbable, strong evidence may be needed to persuade a tribunal that it more probably happened than not. Thirdly, there are cases in which judges are simply confused about whether they are talking about the standard of proof or about the role of inherent probabilities in deciding whether the burden of proving a fact to a given standard has been discharged."

 

[64] At para 6 he instanced as a case in the first category R v Secretary of State for the Home Department Ex p Khawaja [1984] AC 74, which concerned the summary removal of an immigrant on the ground that he had obtained leave to enter the country by fraud or deception. Lord Scarman, being reluctant to say that the criminal standard of proof should apply in criminal proceedings, said at p 112:

"I have come to the conclusion that the choice between the two standards is not one of any great moment. It is largely a matter of words. There is no need to import into this branch of the civil law the formula used for the guidance of juries in criminal cases. The civil standard as interpreted and applied by the civil courts will meet the ends of justice."

 

[65] At para 10 Lord Hoffmann pointed out that, until Re H (Minors), the leading case in the second category was Hornal v Neuberger Products Ltd [1957] 1 QB 247, in which the question was the appropriate standard of proof of an allegation of fraud in civil proceedings. Morris LJ said at p 226 that it was the normal standard for civil proceedings, proof on a balance of probability, but the gravity of the allegation of fraud was something that should be taken into account in deciding whether the burden had been discharged:

"Though no court and no jury would give less careful attention to issues lacking gravity than to those marked by it, the very elements of gravity become a part of the whole range of circumstances which have to be weighed in the scale when deciding as to the balance of probabilities."

[66] At paras 11 and 12 Lord Hoffmann pointed out that in In re H (Minors) Lord Nicholls of Birkenhead explained (at p 586D-H) with painstaking clarity that having regard to inherent probabilities did not mean that "where a serious allegation is in issue the standard of proof required was higher". Nevertheless, in R (McCann) v Crown Court at Manchester [2003] 1 AC 787 Lord Steyn cited that very passage as authority for the existence of a "heightened civil standard". In B v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340 Lord Bingham CJ had said that "in serious cases such as the present the difference between the two standards is, in truth, largely illusory." At para 13 Lord Hoffmann said:

"I think the time has come to say, once and for all, that there is only one civil standard of proof and that is that proof that the fact in issue more probably occurred than not."

 

[67] At para 14 he again referred to what Lord Nicholls had said in the passage quoted above ("the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred") then went on to say at para 15:

"I wish to lay some stress upon the words I have italicised. Lord Nicholls was not laying down any rule of law. There is only one rule of law, namely, that the occurrence of the fact in issue must be proved to have been more probable than not. Common sense, not law, requires that in deciding this question regard should be had, to whatever extent appropriate, to inherent probabilities. If a child alleges sexual abuse by a parent, it is common sense to start with the assumption that most parents do not abuse their children. But this assumption may be swiftly dispelled by other compelling evidence of the relationship between parent and child or parent and other children. It would be absurd to suggest that the tribunal must in all cases assume that serious conduct is unlikely to have occurred. In many cases the other evidence will show that it was all too likely."

 

[68] In my view it is obvious that the present case falls into the second category identified by Lord Hoffmann: that is plain from what the judges said in Mullan v Anderson. The position therefore is that the standard of proof required is proof on a balance of probabilities, but common sense, not law, requires that in deciding this question regard must be had, to whatever extent appropriate, to inherent probabilities.

[69] In light of the above helpful explanation of the law, I turn to consider whether it can properly be said that the misconduct hearing erred in its approach to the standard of proof in this case. As I have pointed out above, it recognised that the allegation of rape was of a most serious nature and that there had to be sufficient evidence to prove the allegation on a balance of probabilities. It is true that, as the tribunal pointed out, the misconduct hearing was not referred to Mullan v Anderson, but in my view what matters is, not whether it was referred to that decision, but whether in reaching its determination it had regard, to the appropriate extent, to the seriousness of the allegation and the inherent improbability of the event having occurred. I do not think that there can be any doubt that the misconduct hearing had regard to the seriousness of the allegation. It said in terms in its determination that the allegation of rape was "of a most serious nature" and disclosed conduct which, by its very nature, was without question oppressive or improper and likely to bring discredit on the Police Service, even although it was alleged to have been carried out while the respondent was off duty. Quite apart from that, the chairman of the misconduct hearing was a police superintendent, who by virtue of his office and experience, could not but have been aware of the gravity of an allegation of rape, particularly one made against a serving police officer. In my view there is no reason for thinking that he lacked the common sense to have regard, to the appropriate extent, to inherent probabilities.

[70] The tribunal correctly held (at para 19 of its determination) that the appropriate standard of proof was proof on the balance of probabilities. As that was the standard which the misconduct hearing applied, it cannot be said that the misconduct hearing applied the wrong standard of proof in reaching its decision. The tribunal did not hold that the misconduct hearing had done so. Accordingly, the question resolves itself into whether the misconduct hearing had regard to the seriousness of the allegation and the inherent improbability of the event having occurred. The tribunal accepted the submission made on behalf of the respondent that the inherent unlikelihood of the event in the present case was heightened by a number of extraordinary features, which it specified at para 32/2 of its determination. I do not find anywhere a conclusion by the tribunal that, this being an allegation of rape, the misconduct hearing ignored the inherent unlikelihood of the event in reaching its decision. As Lord Hoffmann pointed out in In re B (Children) at para 15 (and as is evident from the dicta in Mullan v Anderson itself) it is common sense, not law, which requires that in deciding whether the occurrence of the fact in issue is proved to have been more probable than not regard should be had, to whatever extent appropriate, to inherent improbabilities. I can find nothing in the decision of the misconduct hearing which discloses that it ignored the requirement of common sense in having regard, to the appropriate extent, to the inherent improbability of rape having occurred. Nor do I find anything in the tribunal's determination which holds that the misconduct hearing failed to have regard to the appropriate extent to the inherent improbability of rape having occurred. Accordingly, I conclude that the misconduct hearing did not err in its approach to the standard of proof, and that the tribunal was wrong in so finding.

(ii) Was the tribunal entitled to interfere with the conclusion of the misconduct hearing on the evidence?

[71] The initial submission for the respondent on this point seemed to be that it was open to the tribunal, as a matter of course, to review the conclusion of the misconduct hearing on the evidence and substitute its own view of the evidence. I do not accept that submission and, moreover, I am satisfied that the tribunal itself did not take that view of its own powers. The tribunal was not invited to rehear the evidence. Had it been, I do not doubt that it could have come to its own view on the evidence which it had heard afresh, as it would then have completely reheard the case. Nor was any additional evidence, which had not been before the misconduct hearing, placed before the tribunal. The only evidence which the tribunal had before it in this case was the transcript of the evidence given to the misconduct hearing. The tribunal itself recognised, in my view correctly, that, that being the case, the only basis upon which it could interfere with a finding in fact made by the misconduct hearing was that set out by the House of Lords in Thomas v Thomas (particularly the first proposition of Lord Thankerton at p 54). It was on the purported basis that the requirements of Thomas v Thomas were met that the tribunal held that the reasons given by the misconduct hearing were not satisfactory and that it was entitled to interfere with the conclusion of the misconduct hearing, which it categorised as plainly wrong. The tribunal then proceeded to engage in its own close analysis of the evidence and reach its own conclusion on the basis of the transcript, not having heard or seen a single witness give evidence. In my opinion the tribunal was correct to decide that the requirements of Thomas v Thomas had to be met before it was entitled to interfere with the misconduct hearing's conclusion on the facts. What Lord Carloway said at para 15 in Chief Constable of Strathclyde Police v Strathclyde Joint Police Board, as well as what Collins J said at para 26 in R ex parte Chief Constable of Avon and Somerset Police v Police Appeals Tribunal, was said in a case dealing with the question of sanction or disposal, not proof of an allegation, and has to be read in that context. Moreover, it appears from the first sentence in the passage from his opinion that Lord Carloway had in mind the situation where there had been a rehearing. The case of Chief Constable of the North Wales Police v Evans dealt with the issue of procedural fairness and the dicta cited have to be read in that context.

[72] The question which next has to be considered is whether the tribunal in this case was correct in law to hold that the requirements set out in Thomas v Thomas were met and that it was entitled to interfere with the conclusion of the misconduct hearing and reach its own conclusion solely on the basis of the transcript of the evidence. In my opinion the tribunal was not correct in law in so holding. Leaving aside the question of whether the misconduct hearing was correct in its approach to the standard of proof (with which I have dealt above), the purported basis upon which the tribunal interfered with the misconduct hearing's conclusion on the facts was that, having regard to the combination of the background factors which it identified, a close analysis of the evidence was required to determine whether the allegation had been proved, that there were conflicts among the witnesses on significant details which the misconduct hearing had simply glossed over, not noting them at all, or, insofar as they were noted, not resolving them nor addressing their implications, and that, having had the benefit of fuller submissions, the tribunal was satisfied that the reasons given by the misconduct hearing were inadequate to justify upholding the complaint. It is to be noted that the tribunal did not say that the misconduct hearing was not entitled to believe the complainer. In considering the reason given by the tribunal for interfering with the decision of the misconduct hearing on the facts I think it has to be borne in mind that the chairman of the misconduct hearing, although he was assisted by a legal assessor, was not a professional judge and his decision cannot reasonably be expected to be expressed with the clarity and precision, or indeed the fullness, expected of the decision of a professional judge (see MacColl v Council of the Law Society of Scotland 1987 SLT 524 at p 527B).

[73] What the tribunal has done in this case is to have succumbed to the same temptation as the Inner House did in Thomson v Kvaerner Govan Ltd and Simmons v British Steel PLC of retrying the case on the printed evidence. It substituted its own opinion of the evidence for that of the misconduct hearing. It does not seem to have had regard to what Lord du Parcq said in Thomas v Thomas at p 57 about "the undesirability of deciding a case on the written record against the view of the judge who heard the witnesses". Further, it does not seem to have had in mind what Lord Simonds said in the same case in the passage at pp 61-2. In my opinion that passage is destructive of the tribunal's reasoning in this case for interfering with the decision of the misconduct hearing on the facts. To adapt the words of Lord Simonds to the present case, the misconduct hearing came to certain conclusions of fact and the tribunal were entitled and bound, unless there was compelling reason to the contrary, to assume that it had taken the whole of the evidence into consideration. The misconduct hearing explicitly said that, having listened to and watched the witnesses give evidence, it considered the account of the complainer to be credible. In my opinion the tribunal's criticism of the misconduct hearing's decision on the facts can be described, in the words of Lord Simonds, as fundamentally unsound criticism. The misconduct hearing was not required to comment on every point of conflict in the evidence and engage in a close analysis of it. It cannot be inferred from the fact that it did not do so that it had forgotten or ignored such evidence. I accept that there was no deficiency in the reasoning of the misconduct hearing. This is not a case in which it can be said that no conclusion is possible except that the misconduct hearing's decision is wrong and I am of the view that the tribunal erred in law in describing the misconduct hearing's decision as "plainly wrong".

[74] In my opinion the minority view of the tribunal (which I have referred to at para [18] above) that the misconduct hearing properly appreciated the correct approach in law to the assessment of the evidence and that no error was demonstrated in its approach is correct. The minority view, as set out at paras 28-30 of the determination, is in my view sound in law.

[75] What I have held above is sufficient for disposal of this application for judicial review but, for the sake of completeness, there is one particular point raised in the grounds of challenge to the tribunal's decision which I think I should mention. I think it is correct to say that the tribunal erred in taking into account the absence of corroboration of assault or of sexual intercourse having occurred. While it recognised that corroboration was not required in these proceedings, it took such absence of corroboration into account when deciding to interfere with the misconduct hearing's decision. As I have remarked above, this was not a case in which there was a complaint of force or violence having been used to achieve intercourse: it is a case of what would formerly have been categorised as clandestine injury. In that situation it would be surprising to expect corroboration of an assault which was not alleged to have occurred. Further, it was, so far as I am aware, never suggested that the absence of corroboration of intercourse led to the conclusion that the pursuer was lying when she said that intercourse had occurred.

Decision

[76] As I am satisfied, for the reasons given above, that the tribunal erred in law I shall reduce its decision of 19 March 2006 and remit the case for a fresh hearing before a differently constituted tribunal.


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