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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Thames Valley Police, R (on the application of) v The Police Appeals Tribunal & Anor [2015] EWHC 3358 (Admin) (29 July 2015) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/3358.html Cite as: [2015] EWHC 3358 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		29 July 2015

1. MR JUSTICE MITTING: Michael Squire is a Detective Inspector serving with the Thames Valley Police. He has been in the police service for 28 years. Between March 2012 and April 2013 he was based at Bracknell Police Station. On 10 May 2013, a married Civilian Investigator, Mrs Jaimie Evans, complained to her superiors that DI Squire had harassed her sexually and bullied her. DS Smith was instructed to investigate. On 30 September 2013, she produced a report to the Chief Constable of Thames Valley Police under regulation 18 of the Police (Conduct) Regulations 2012 in which she indicated, as required by regulation 18(2)(c), that there was in her opinion a case to answer in respect of misconduct and gross misconduct. The Chief Constable determined under regulation 19 that there was a case to answer and referred the case to a misconduct hearing under regulation 19(5)(a). The hearing took place over eight days, between 28 April 2014 and 14 May 2014, before a panel chaired by Assistant Chief Constable Pryde.
2. There were two allegations. The first was as follows:

"1. Between approximately March 2012 and April 2013, when you were a Detective Inspector in the Bracknell local CID office, you harassed and/or bullied Civilian Case Investigator Jaimie Evans, treating her differently because you appeared to be sexually attracted to her. In particular:

(i) On a date unknown in March or April 2012 you stood in the CID office at Bracknell just staring at CI Evans as she worked at her desk;

(ii) On a date unknown approximately two weeks later CI Evans was working late in a small office at Crowthorne Police Station when around 2000 hours you stood in the doorway talking to her and then asked for a 'hug'. When CI Evans moved to give you a 'hug' you took hold of her waist and pulled her tightly towards you and made a grunting sound. You positioned CI Evans such that your groin was pushing against her groin and then you released her saying 'I usually have to pay for stuff like that';

(iii) On a date unknown approximately two weeks later CI Evans was again working late at Crowthorne Police Station when you approached her and asked for a 'special hug'. When CI Evans declined you said curtly 'Well if I'm not going to get a special hug I might as well go then';

(iv) On 24 May 2012 you called CI Evans into your office and asked her to help you find a Gen 46 on your computer. As CI Evans moved towards your computer you deliberately positioned yourself in an attempt to make her lean over you in order to use the computer;

(v) On 28 May 2012 you called CI Evans into your office, asked her whether she had lost weight and then told her that she looked 'good'. You also referred again to 'special hugs' before offering to lend her money, which she declined;

(vi) On 19 July 2012 you saw CI Evans leaving Bracknell Police Station wearing civilian clothes and asked her why she was not wearing uniform. When CI Evans explained that she was about to take a statement from a witness who had asked her not to wear uniform you said that she looked 'far sexier' in her own clothes;

(vii) On or about 29 November 2012 you belittled CI Evans in front of colleagues when you told her to write a statement saying that you had given her a 'bollocking' about the manner in which she had taken a statement; and

(viii) On 15 April 2013 during a conversation with CI Evans in your office about becoming a Designated Investigator, you made a sexual innuendo about making her an 'offer'.

It was also alleged that DI Squire had installed a CCTV camera in Bracknell Police Station without appropriate authorisation.

3. All of the allegations in the first compendious allegation relied on the unsupported evidence of Jaimie Evans.
4. On the first day of the hearing, counsel for Detective Inspector Squire objected to the calling of Detective Sergeant Payne as a witness in support of the allegations. Her evidence was that complaints had been made to her about the conduct of DI Squire by: (1), Jaimie Evans; (2), other female police officers, each of whom was to give evidence at the hearing. The panel ruled that her evidence should be admitted, as to (1), because it helped to explain Jaimie Evans's decision not to make earlier complaint about DI Squire's conduct, and as to (2), because as the witnesses said to have made the complaints to DS Payne were to be called, they could be cross-examined about what they had or had not said to her. In the event, none of them said that they had made the complaints to her of which she spoke.
5. The disciplinary panel dealt with her evidence in its findings delivered orally on 14 May 2013. Having reminded itself that it had ruled that her evidence was admissible despite it being hearsay, it went on to state:

"However, when the witnesses came to give oral evidence, none of that evidence was supported by the officers who are mentioned as having made the comments. In the circumstances, we did not consider it to be fair to DI Squire for us to place any reliance on any evidence of that type. We therefore do not do so. For example, we take no account of the evidence given by Kerry Neal that DI Squire has a reputation amongst staff of being lecherous. When pressed to identify those who had given that information to Ms Neal, she declined to do so. That made it impossible for the evidence to be tested and we do not consider it fair to DI Squire to base our decision on that evidence.

We also take no account of the evidence given from former DC Payne, that Kerry Neal disclosed sexual misconduct towards her, by DI Squire (pages 74 and 75). Kerry Neal gave oral evidence and did not support that part of DC Payne's evidence. That renders this part of DC Payne's evidence of such little weight as to make it unfair on DI Squire for us to rely on it. We therefore do not do so.

The same applies to the evidence of DC Payne about comments made to her about DI Squire, by PC Boyd and DS Wise. Those two officers did not confirm the comments attributed to them. In the circumstances it would be unfair to rely on that evidence and we do not do so.

We were not impressed by the notes made by former DC Payne. The notes were made in a haphazard way and were undated. We consider it inappropriate to base our findings on such unsatisfactory material and so we disregarded them."

6. The disciplinary panel found allegations (ii), (iii), (v) and (vi) of the first compendious allegation proved and (i), (iv), (vii) and (viii) not proved. The essential finding was set out in a short passage dealing with allegation (ii), the allegation that DI Squire had pushed himself against Jaimie Evans with their groins touching when giving her a hug at Crowthorne Police Station:

"We recognise that the allegation contained in this particular, and indeed all particulars in allegation one, is entirely uncorroborated and that it depends on one person's word against another's. We prefer CI Evans's evidence about it to the evidence given by DI Squire. CI Evans gave evidence for almost seven hours, we found her evidence compelling. She gave her answers without hesitation and with conviction. Throughout that long period of giving evidence, she did not change her account in any significant way. She appeared to us to be merely recounting the facts as she remembered them. She gave full, reasoned answers, which we found convincing. Further, she has no reason to lie. There was no evidence of any antecedent grudge or other conflict between Mrs Evans and DI Squire. Further, she made a disclosure to others, her husband on the same evening as the hug at Crowthorne and her colleague, former DC Payne, on the next day. These disclosures show consistency in her evidence."

7. The panel also gave careful and detailed reasons for its findings on all eight individual allegations, and on the seven allegations concerning the installation of a CCTV camera comprised in allegation 2. It is only necessary to set out the reasons which it gave about the seventh allegation in allegation 1 for present purposes:

"Allegation seven. On or about 29 November 2012, you belittled CI Evans in front of colleagues when you told her to write a statement saying that you had given her a bollocking about the manner in which she had taken a statement. We do not find this particular proved. DI Squire's evidence that he spoke to CI Evans in a calm and professional manner is corroborated by the evidence of PC Crowe, page 82 of the bundle. CI Evans accepts that DI Squire was entitled to speak to her in order to tell her that she had committed an error. We have heard from a number of witnesses, including DI Squire himself, that he has a direct and interventionist style of management. We consider that this style of speaking to her may have caused CI Evans offence. However, we are not satisfied that his conversation with her went beyond a legitimate rebuke."

8. The panel also heard evidence about three other incidents which were not the subject of any allegation of misconduct. I take them from paragraphs 6.11 to 6.26 of the reasons of the Police Appeals Tribunal: (1), Detective Inspector Squire had told Jaimie Evans that he could unlock the women's shower with a penny and had a mirror to hold under the door; (2), Detective Inspector Squire had told Jaimie Evans to draw a van during an investigation into a burglary, in terms which she found disparaging; (3), at a farewell gathering for a female colleague, DI Squire mentioned putting a condom in her last collection on the occasion when she had previously moved to another job, as she was doing on this occasion. I refer to these incidents as "the three incidents". The panel made no reference to them in its reasons.
9. The panel found that the four allegations proved in allegation 1 amounted to gross misconduct, and imposed a sanction of immediate dismissal for them. A finding of misconduct was made in relation to allegation 2 about the CCTV camera. The sanction was management advice.
10. DI Squire appealed to the Police Appeals Tribunal, chaired by Dorian Lovell-Pank QC. After a two day hearing, on 10 and 11 February 2015, the Tribunal allowed the appeal on allegation 1 but dismissed it on allegation 2. It quashed the finding of gross misconduct, and so necessarily the sanction of immediate dismissal, leaving only the sanction of management advice to stand.
11. Its reasons were set out in an 82 page document dated 10 April 2015. They were essentially as follows: (1), it was unfair and unreasonable to admit hearsay evidence of DC Payne at all, or at least before the evidence of the witnesses said to have complained to her; (2), in consequence the panel allowed itself unconsciously to be influenced, or perhaps to be perceived to have been influenced, by the evidence of DC Payne, and so to have reached a biased conclusion; (3), it was unreasonable of the panel not to have made findings about the three incidents. If it had done so, it would have concluded that Jaimie Evans's account of them was unreliable, and if it had done so, it could and should have questioned its conclusion that her core account was true and reliable.
12. The Chief Constable challenges the Tribunal's conclusion and reasoning in these judicial review proceedings. The legal framework is straightforward. The evidence given at a misconduct hearing is governed by regulations 23(3) and 33(1) and (8) of the Police (Conduct) Regulations 2012, which provide:

"23. Witnesses

...

3. No witness shall give evidence at misconduct proceedings unless the person conducting or chairing those proceedings reasonably believes that it is necessary for the witness to do so in the interests of justice ...

33. Procedure at misconduct proceedings

1. Subject to be these regulations, the person conducting or chairing the misconduct proceedings shall determine the procedure of those proceedings

...

8. Whether any question should or should not be put to a witness shall be determined by the person conducting or chairing the misconduct proceedings."

13. As far as the proceedings before the Tribunal are concerned, the grounds upon which an appeal to the Tribunal may lie are set out in regulation 4(4) of the Police Appeals Tribunals Rules 2012:

"4. The ground of appeal under this rule are --

(a) that the finding or disciplinary action imposed was unreasonable; or ...

(c) that there was a breach of the procedures set out in the Conduct Regulations ... or other unfairness which could have materially affected the finding or decision on disciplinary action."

14. Regulation 22 permits the Tribunal to remit a decision to a disciplinary panel when it allows an appeal on one of the grounds identified in regulation 4(4)(c). Section 85(2) of the Police Act 1996 empowers the Tribunal on the determination of an appeal to "make an order dealing with the appellant in any way in which he could have been dealt with by the person who made the decision appealed against."
15. Dealing first with the admission of the evidence of DC Payne, it is apparent from the two regulations which I have cited that the disciplinary panel enjoyed a wide discretion on the admission of evidence, which does not exclude hearsay. Mr Westgate QC for the interested party, DI Squire, accepts as much. The Tribunal found for a variety of reasons that it was unfair to admit this hearsay evidence of what other persons had told DC Payne about DI Squire's conduct, or at least that it was unfair to do so before they themselves gave evidence.
16. Mr Lock QC for the Chief Constable suggests that DC Payne may have been called before the other witnesses because Jaimie Evans had first complained to her, and it was sensible to call her immediately afterwards to deal with that aspect of the case. The Tribunal held that calling the evidence in that way put counsel for DI Squire in an unfair position, in effect compelling her to cross-examine witnesses about complaints which they did not say they had made, when otherwise there would have been no evidence about the alleged complaints at all.
17. I see force in the Tribunal's view. It would, in hindsight, have been better if DC Payne's evidence about the complaints, if it was to be given at all, had been given after the evidence of the alleged complainants. In fact, as they made no complaint, it almost certainly would have been excluded under the wide powers available to the person chairing the panel on the simple ground that it was not necessary for her to give any evidence about it.
18. Indeed, the only circumstance in which it can be envisaged that such evidence might be called in those circumstances is if there was a plausible basis for suggesting that the alleged complainants had either forgotten their complaints or were deliberately withholding evidence about them for an ulterior purpose. There was no suggestion of anything to that effect in this case, and I for my part agree with the Tribunal's view that it would be better if the evidence of DC Payne had been dealt with in the manner stated.
19. The Tribunal's findings on this issue were, however, rather more drastic than the views which I have just expressed. They are set out in paragraph 6.8 and 6.39 to 6.40 of the document setting out its reasons:

"6.8. Unlike in the case of juries, judges, magistrates and professional tribunals are relied upon and expected to put out of their minds irrelevant and inadmissible evidence and are deemed able to do so.

Here, the situation was that the panel itself had admitted DC Payne's evidence in the knowledge that other witnesses' statements did not support her and in the almost certain expectation that the witnesses would not do so when they came to give evidence, as, indeed, was the case.

Having admitted the evidence with one hand, the panel purports to disregard it with the other.

In our view, the panel's findings show it to have begun in error and ended in error.

6.39. It is sometimes said, 'What is read cannot be unread'. I repeat what I have said at paragraph 6.8 above in respect of professional tribunals putting out of their minds extraneous material and at paragraph 6.30 as to the panel being best placed to assess the witnesses. Nothing I say should detract from those principles.

Here, we find that the panel fell into error. It approached the evidence as to hearsay in the wrong way. It did not apply a proper, logical way of dealing with what was an entirely foreseeable and avoidable evidential difficulty.

6.40. The panel states that it has ignored the hearsay material. We have no doubt that it would have attempted to do so and no doubt it was confident it had done so.

What we cannot ignore is the taint that this material may have had -- even unconsciously -- upon the panel from the outset of its consideration of the papers and then moving to the evidence.

In those cases when the panel had to decide on the balance of probabilities what could not be put down to 'an impression ... behaviour consistent with innocent action, innocent request or boiling down to nuance' ... it had to decide whose word to accept.

In trying to strike that balance, who is to say that taint -- as we call it -- played no part, or may or may not have played a part or be perceived to have played a part?"

As I shall demonstrate, it went on to find that unconscious or perceived bias may in consequence have arisen.

20. These were not conclusions which the Tribunal was entitled to reach about the findings of the panel. The panel was a professional or semi-professional panel. It made it clear beyond doubt that it had put DC Payne's evidence, except that about the complaints made to her by Jaimie Evans, entirely out of account when assessing the strength of the case against DI Squire. In the absence of evidence to show that it did not do so, its reasoning is to be accepted, as the Tribunal itself recognised at paragraph 6.8. There was no such evidence, other, perhaps, than the Tribunal's reasoning about the three incidents. It is only if that reasoning must be accepted that the Tribunal's conclusion on this issue might be capable of being sustained. It cannot be.
21. The first incident, the comment about the female showers, was said by DI Squire to have been the result of Jaimie Evans's misunderstanding of a comment made by him to DI Nick Evans about the specification of lavatories at the police station. DI Elphick gave evidence that he had spoken to DI Evans, who had no recollection of DI Squire saying what Jaimie Evans attributed to him, and felt that even after the passage of time any such comment would have stuck. This was a slender basis for concluding anything other than that recollections about a passing, if on one view striking, comment made some time ago might differ.
22. The second incident concerned an instruction which Jaimie Evans said was given to her to draw a van during an investigation into a burglary. Four and a half pages were devoted to this issue in the reasons of the Tribunal, pages 59 to 63. I have read and reread them. They amount to no more than a difference of recollection between three people, DI Squire, Jaimie Evans and PC Boyd, about precisely what DI Squire had requested of Jaimie Evans. Again it demonstrates no more than a difference of recollection of no great moment about a trivial incident between three people.
23. Evidence about the third incident was given by DI Squire, Jaimie Evans, and the departing colleague, Gina Watson, who said she could not recall anything said about the condom. The same comment applies to this incident.
24. None of the three incidents, even taken with the unproven allegation (vii), of which I have read the panel's findings in full, could reasonably lead the Tribunal to have concluded that the core evidence of Jaimie Evans was undermined, let alone so undermined that the panel was bound either to disbelieve it or to treat it as unreliable. The Tribunal's ultimate conclusions about both issues, taken together, are set out in paragraphs 6.42 to 6.46 of its reasons:

"6.42. We are conscious that a panel, in giving its reasons for its findings, ought not to be criticised for failing to cover every detail of evidence or every matter it has considered when its thinking is clear in its findings or can be reasonably inferred from its language. One should not expect from the panel the language of lawyers, nor should its findings be subjected to over rigorous analysis or semantic points.

Here, we find that matters are different. Miss Felix [counsel for DI Squire], in argument and in the grounds of appeal, has made the point that, on each occasion where others were present, Mrs Evans's allegations are unsupported and mostly contradicted.

6.43. The panel gives its reasons why in respect of four of the eight particulars in allegation 1 it prefers the evidence of Mrs Evans. In respect of 1(vii) -- the 'bollocking' -- the panel found that DI Squire's evidence was corroborated by PC Crowe and other witnesses who spoke as to DI Squire's 'direct and interventionist style of management'. It found the particular not proved.

Of course we are unable to say with certainty what the panel would have found had the other three allegations been made the subject of formal charges. We feel strongly, however, that if they had, the evidence of the other three witnesses would have resulted in the charges not being proved.

6.44. This is not mere speculation on our part. It goes to the root of what ought to have been part of the panel's thinking. We are of the view that the panel ought to have stated in its findings that it had considered the point, gone on to explain how it had approached it and given its conclusions upon it.

It did not do so.

6.45. Again, we are left with the concern which we have had from the outset of our dealing with this appeal and about which we have no insight into the panel's thinking. That is -- and I make no apology for repeating it -- the danger which we feel is a real possibility that when faced with evidence which contradicts Mrs Evans. The panel finds -- or would have found -- the allegation not proved, but in having to decide on the balance of probabilities whose word it prefers, may have been influenced or persuaded by the taint of DC Payne's damaging evidence regardless of its attempts to ignore it.

6.46. Applying the principles I have set out at paragraph 4.1 to 4.12 as to reasonableness and 6.33 as to bias, we find that there is a real possibility or real danger that the panel was biased and that the fair minded and informed observer would have so concluded or perceived it to be so.

It is for these reasons that we find that the panel, having decided to admit the hearsay evidence, misdirected itself, thus making its decision as to its finding unreasonable."

25. Thus the Tribunal appears to have come back to its finding of bias in relation to the evidence of DC Payne to justify its unstated conclusion that the panel was unreasonable to find that Jaimie Evans was truthful and reliable in her core account.
26. I am sorry to have to say that the reasoning of the Tribunal was flimsy and illogical. Its conclusion is unsustainable and cannot stand. Its reasoning and conclusions do not begin to undermine the clearly stated and well reasoned conclusion of the panel that in her core account about the most serious of the allegations Jaimie Evans told the truth. On that basis, there was no room for the finding that the proceedings before the panel were unfair, or that their approach to their task or their conclusion were unreasonable.
27. For those reasons, this challenge to the findings of the Tribunal is upheld. Its decision allowing the appeal against the panel's finding on the first allegation must be quashed. I decline the submission of Mr Westgate that it should be remitted to another Tribunal to start again. On no view could the findings of this panel reasonably be upset on statutory grounds by an appeal tribunal.
28. I have considered whether or not to remit the case to the appeal tribunal for the challenge to the panel's conclusion that the conduct which I have described amounted to gross misconduct should be determined. Mr Lock submits that it is so obvious that on the findings of the disciplinary panel DI Squire's conduct amounted to gross misconduct that it would be perverse to find otherwise. I agree with his submission and therefore decline to remit that issue to the Tribunal.
29. There remains, however, the question of sanction. DI Squire appealed against the sanction of immediate dismissal. For obvious reasons, the appeal tribunal made no finding on that submission. It should now do so. Accordingly I remit the appeal to the same panel, if possible, for it to consider the appeal against sanction.
30. MR LOCK: My Lord, in those circumstances, I would propose to draw an order up, agree it with my learned friends and submit it to your Lordship for your consideration along the lines of the relief that your Lordship's given.
31. MR JUSTICE MITTING: Yes. Can you do that so that it arrives on my desk by Friday? Because the end of the legal term approaches and you may find it difficult to get it to me if I don't have it by then.
32. MR LOCK: My Lord, I plan to be on a plane on Friday morning, so it will certainly be before your Lordship well before then.
33. MR JUSTICE MITTING: Yes.
34. MR LOCK: My Lord, I also ask for a term in that order that we have our costs against the interested party. We obviously don't seek our costs against the Tribunal.
35. MR JUSTICE MITTING: No, of course not.
36. MR LOCK: But this matter has been properly contested on both sides and we have been successful.
37. MR JUSTICE MITTING: Yes. Mr Westgate, you're supported by the Police --
38. MR WESTGATE: Yes, my Lord, first of all may I raise a matter about the gross misconduct point.
39. MR JUSTICE MITTING: Yes.
40. MR WESTGATE: When we broke just before lunch I think you were sending us away to see how this had been approached in the documents, and perhaps I misunderstood, but I had understood that we were going to have some further discussion about that.
41. MR JUSTICE MITTING: Oh, I see. I'm sorry, if I've preempted that I apologise.
42. MR WESTGATE: The point I draw your Lordship's attention to --
43. MR JUSTICE MITTING: Forgive me, I don't resile from the view I expressed, but if you can persuade me that notwithstanding that there is something I should do about that, I will gladly do so.
44. MR WESTGATE: I will do it as briefly as I can. Page 214 to 215 of the bundle. The point was a live one on the appeal. One sees the way it's put, paragraph 61, that it was, "an opportunistic momentary lack of judgment," is the way it was put. "Plainly it was not suggested this is deliberate sexual touching since that would have been alleged," and that's clearly the case. "It follows that to conclude this was gross misconduct was outside the broad band of decisions ..." I don't need to go to the rest of that.
45. If one goes to what the decision was, it's page 251 on this point.
46. MR JUSTICE MITTING: 2 ...?
47. MR WESTGATE: 251, which is the decision of the panel. You'll recall that the allegation against him was that he had insisted on a hug, in effect.
48. MR JUSTICE MITTING: Yes.
49. MR WESTGATE: Then Mrs Evans said, "Well all right then" to get rid of them, and then he made it inappropriately close and grunted. Of that, there was no suggestion that -- no finding as to who suggested the hug, one gets that halfway down, and the height of this is:

"We find that DI Squire took deliberate advantage of this by placing his hand on CI Evans's back and pulling her towards him until their bodies, including their groins, were touching one another tightly."

50. And then:

We find that DI Squire made the hug inappropriately intimate and that he knew this to be the case."

51. So it's a matter that lasted for a matter of seconds, no premeditation and so on. In those circumstances I accept, as your Lordship put it, that it might be said that it's something of a stretch, I think your Lordship put it before lunch, but at the same time it simply can't be said that it's outside the bounds of possibility that the gross misconduct finding could be overturned.
52. MR JUSTICE MITTING: Well, given the test is was the finding reasonable, not whether it was right, or whether it was excessively severe or anything of that kind, I simply don't see how an appeal could conceivably be allowed against that finding. Unlike sanction, where the arguments that you advance I think can properly be advanced, and I am not willing to express any view beyond that about them.
53. MR WESTGATE: I won't take the point any further.
54. My Lord, so far as costs are concerned, I can't in principle object to an order for costs, and it should be subject to detailed assessment, if not agreed.
55. MR JUSTICE MITTING: Yes, this is a Police Federation backed case, I believe?
56. MR WESTGATE: Yes, it is.
57. My Lord, there's one further matter, which is permission to appeal. I raise it on this point only: it deals with the hearsay --
58. MR JUSTICE MITTING: Forgive me, can I interrupt a moment, because would it not be a second appeal? I am hearing an appeal from a statutory appeal tribunal.
59. MR WESTGATE: No, my Lord, this is a judicial review --
60. MR JUSTICE MITTING: I'm so sorry, you're quite right, it's a mistake into which I have fallen on previous occasions in relation to other --
61. MR WESTGATE: It's more or less accidental as to whether or not it comes by way of appeal or judicial review.
62. MR JUSTICE MITTING: It used to arise in planning cases.
63. MR WESTGATE: Yes.
64. MR JUSTICE MITTING: Where in various different types of planning decisions some were second appeals and some weren't. Forget what I said.
65. MR WESTGATE: Exactly, there doesn't seem to be much rhyme or reason as to which it is, but this one is a judicial review.
66. MR JUSTICE MITTING: You're quite right.
67. MR WESTGATE: The basis upon which I seek permission to appeal is one that raises a point of principle and a point of practice, which is this: that the effect of your Lordship's judgment is that there may be unfairness in admitting evidence, but that provided the panel at the end of the day can say, "We didn't take it into account" then that in effect renders that unfairness immune from challenge because it renders the unfairness argument academic. That creates a real practical difficulty for decisions of this kind and the process of panel decisions of this kind, because in effect it provides an incentive to the appropriate authority to put as much in as they can, in effect, as long as the panel is then encouraged to say, "We disregard it" if they decide not to -- at the end of the day if they feel there are some other reasons why they can reach a decision adverse to the officer.
68. So it creates that practical difficulty, which we suggest the solution may be rule 4(4)(c), which is that this is a finding of unfairness which is capable of affecting the outcome, and whether it's capable of affecting the outcome has to be judged not by asking whether the panel at the end of the day says, "We did or didn't take it into account," but asking whether as a matter of principle it would be capable of affecting the outcome. If so, that then opens the door, as it were, to the discretion under 85(2), which provides a range of options, either to dismiss the appeal, remit it or to quash.
69. So in those circumstances we seek permission to appeal really on the basis that the PAT's decision ought to be upheld on the basis that it was entitled to find that there was a procedural unfairness in the admission of the hearsay evidence, whether or not the panel ended up saying that they relied on it or not.
70. MR JUSTICE MITTING: I am afraid on the facts of this case, although I can see circumstances in which your submission might bite, it doesn't here, and I refuse your application.
71. MR WESTGATE: Thank you.
72. MR JUSTICE MITTING: There will be judgment for the claimant in terms to be drawn up by you, Mr Lock, and agreed with Mr Westgate, with your costs to be the subject of detailed assessment if not agreed.
73. MR LOCK: My Lord, we're very grateful.
74. MR JUSTICE MITTING: Thank you both for dealing with a factually quite complex case in a manner that was very much more efficient than the preparation of the bundles.