R (on the application of Richard Wilby-Newton) v PAT (d) and Chief Constable of South Yorkshire Police (IP) [2021] EWHC 550 (Admin)

Introduction

On 16 March 2021, the judgment of Mr Justice Julian Knowles in R (on the application of Richard Wilby-Newton) v PAT (d) and Chief Constable of South Yorkshire Police (IP) [2021] EWHC 550 (Admin) was handed down.

The claim for judicial review was brought by former PC Wilby-Newton (the Officer), who sought to challenge the decision of the Chair of the Police Appeals Tribunal (PAT) to dismiss his appeal against decisions made by a Police Misconduct Panel (the Panel).

Background

The Officer faced two allegations. First, that he had kicked a detainee when it was not necessary, reasonable or proportionate to do so; and second, that he subsequently lied about it. In October 2019, the Panel found the allegations proved, constituting gross misconduct, and dismissed the Officer without notice.

The Officer appealed against the Panel’s findings, alleging that:

(a) The Panel had reversed the burden of proof;

(b) It was unreasonable and unfair not to have admitted the Officer’s expert evidence on the use of force; and

(c) That the Panel’s finding of dishonesty was unreasonable.

The Chair of the PAT dismissed the appeal on 7 February 2020. The Officer sought permission to judicially review the decision of the PAT Chair to dismiss his appeal. On 1 June 2020, he was granted permission to proceed on grounds relating to (a) the alleged reversal of the burden of proof; and (b) the refusal to admit expert evidence on the use of force. Those grounds, and a third (c) on which the Officer sought to renew his application for permission, came before Mr Justice Julian Knowles on 26 January 2021.

The High Court Decision

Mr Justice Julian Knowles found for the PAT and Chief Constable on both grounds and declined permission on the third.

On Ground (a), the Court determined that the Panel had not reversed the burden of proof away from the Chief Constable; it had directed itself correctly and made reference to the correct burden and standard throughout its decision. It was also entitled to consider the Officer’s explanation for the force used in order to find, on balance, whether it was excessive. However, it found no explanation had been provided by the Officer and thus made a finding against him. Knowles J found the Panel had not erred in following this course, particularly because it could not provide its own explanation and impermissibly speculate on the Officer’s reasons for the kick. Of particular note was the Court’s discussion of the Chief Constable’s submission regarding ‘policing by consent’ which, it said [at paras. 94-98] is reflected in every Force’s policy to record an Officer’s actions in a ‘Use of Force Form’ and the positive duty on every officer to justify force when it is used as per the Police Code of Ethics [4.4].   Knowles J agreed with the Chief Constable’s submission that this was a ‘common sense expectation’ on the part of the public.

With regards to Ground (b), the report of the use of force expert on which the former-Officer sought to rely on was served late. The Panel’s main issue was with the prejudice the unexplained delay in serving the expert report would cause to the Chief Constable. But, perhaps more significantly, it found that the expert’s report could not replace the absent evidence of the former-Officer, nor was there anything solid upon which the expert could have based her opinion of the former-Officer’s actions. Thus, the report was of very limited value, and in parts even potentially damaging to the former-Officer’s case. Therefore, the Court found that the Panel had been correct in not considering it, though noted that the Chair of the PAT;s decision on this point was little more than a stated conclusion. In fact, Knowles J made a clear direction that when refusing a Rule 11 appeal, fuller reasoning should be given, “so that the losing party is in no doubt why they have lost” [para. 103].

Finally, permission on ground (c) – whether the Chair’s conclusion was erroneous that an appeal to the PAT on the grounds that its conclusion on the second ground was unreasonable stood no prospects of success – was refused. The Court found the Panel’s conclusion on this issue was reasonable both within the Appeal Rules and under Wednesbury reasonableness principles.

Analysis

Three considerations arise in the ruling more generally: firstly, the Court gave a robust direction [at para. 103] of how a Chair ought to present its reasoning and conclusion when refusing a Rule 11 appeal:

“Rather than expressing a global conclusion overall, as the Chair appeared to do at [18] of his decision, it would have been better if he had stated each ground of appeal and then briefly, in a few sentences, set out his reasoning and conclusions in relation to each.”

However [at para. 104]:

“when it is considering an appeal on the ground of what are said to be inadequate reasons, an appellate court can have regard to material outside the formal record of the reasons.”

Secondly, the Court accepted the Chief Constable’s submission that Misconduct Panels and PATs, with their expertise, are often better placed than the Court to determine necessary sanctions to maintain confidence in policing. However, the Court made a clear distinction between situations where the Court is asked to overturn a particular sanction for misconduct and where it is asked to intervene because of an error in law. With regards to the former, ‘deference’ to the Panel and PAT ought to be observed, as expressed by Burnett J in R (Chief Constable of Dorset) v Police Appeals Tribunal [2011] EWHC 3366 (Admin); but in cases of the latter, “the Court is the ultimate arbiter of what is lawful” [at para. 86], following authority in cases of medical appeals (c.f. General Medical Court v Jagivan [2017] EWHC 1247 (Admin), [40(v) and (vi)].

Thirdly, and perhaps the most far-reaching implication of the judgment, is Knowles J’s comments regarding the admissibility of expert evidence on the issue of use of force. At para. 110, he said:

Further and in any event, I do not consider that the expert’s report was admissible or that it would have assisted the Claimant.  Ms Checa-Dover was correct in substance when she argued at [7] of her written opposition to the Claimant’s application:

“… the Officer’s case is that he cannot remember kicking out as he is seen to do on CCTV.  A report citing all the reasons why one might have done so is not only irrelevant, and thus in admissible as a matter of common law; but also inviting dangerous and impermissible speculation.”

With use of force experts regularly relied on in misconduct, civil and inquest proceedings, this clarification has the potential to reiterate the limitations of their use. Knowles J clearly indicates they should not be used to comment on matters which the judge or jury are capable of resolving themselves. In particular, [at para. 117] he said:

“The general rule is that expert evidence is admissible to furnish the court with information which is likely to be outside the experience and knowledge of the fact-finder. If, on the proven facts, the fact-finder can form their own conclusions without help, then the opinion of an expert is unnecessary: Turner (T) [1975] QB 834, 841.”

This clear warning to tribunals not to displace their own conclusions with those of experts ought to be welcomed, both as a means of reducing time and costs, but also to discourage officers seeking to replace, whether partially or fully, their own evidence with that of a third-party. However, this could prove difficult to put into practice. One potential difficulty is whether the tribunal will always be able to know, before an expert is instructed, whether they will not need, and not rightly be able to draw conclusions from, expert help. If it is the case that expert evidence is later considered superfluous, and indeed unnecessary, a costly expert report may be redundant but also unavoidable.

Conclusion

Overall, the judgment is both a reminder of when the Administrative Court’s supervisory function should and should not defer to specialist tribunals; and a stern indication that expert opinions ought not to replace the judgment and conclusions of that tribunal, which may have further implications in misconduct cases, and cases involving use of force experts generally.

Andrew Pickin

Pupil Barrister at KBW Chambers

The full judgment can be found at: https://www.bailii.org/ew/cases/EWHC/Admin/2021/550.html