Anastasi v Police Appeal Tribunal [2015] EWHC 4156 (Admin)
We recently reported on the Court of Appeal decision of Drs Adeogba and Visvardis and the re-visitation of case law principles in relation to proceeding in the absence of registrants, where the Court of Appeal had ruled that there is 'no premium on non-co-operation'. Now (in a judgment of 14 September 2015 which was only recently published), the High Court has confirmed that 'it is difficult' to have a fair hearing when the accused cannot attend due to medical reasons, and that when faced with unchallenged expert evidence that the accused is unable to attend by reason of ill health, it is incumbent on panels and tribunals to properly weigh this evidence with all other factors before proceeding.
On 20 May 2014, a Police Misconduct Panel ('the Panel) ruled that Mr A should be dismissed for gross misconduct. Following the investigation into allegations of inappropriate behaviour in the workplace, notice was served advising him of the allegation and that his case was to be referred to a Misconduct Panel. Mr A did not provide his response to that notice within the required time specified in the Police (Conduct) Regulations 2012, and Counsel acting for him later made an application for an extension of time in order to do so, as well as an application to adjourn the proceedings until a psychiatric report could be obtained.
The psychiatric report stated that Mr A was suffering from a psychiatric condition which required treatment in the form of anti-depressant medication and cognitive behavioural therapy. In order to play a full part in the proceedings, a course of treatment of around 4 months was required as until then, Mr A's psychiatric condition could impair his decision-making and render him distressed and 'unduly compliant' in the face of strong cross-examination.
The Panel convened on 20 May 2014 and decided that the exceptional circumstances of the case merited a decision to proceed with the hearing in the absence of Mr A despite the medical evidence. It considered that it was in the interests of the complainants, witnesses and the public to conclude matters within a reasonable period of time, and that the adjournment sought by Mr A to complete his treatment was too long. In respect of the psychiatric report that had been submitted, the Panel considered that Mr A had been able adequately to instruct his legal team and had previously provided a detailed response to the allegations in interview whilst he had been signed off sick and accordingly that this served to outline his case.
Mr A appealed to the Police Appeals Tribunal ('the Tribunal') who agreed that Mr A had been able to engage with doctors and attend appointments so it was 'difficult to see why he could not have instructed a solicitor properly'. The Panel had been 'right to take account the interests of the complainants who expect the matter to be resolved [sic]' and had been right to consider that there was no clear indication that the appellant would be 'wholly recovered' if there was an adjournment.
The High Court, upon Mr A's judicial review of the Tribunal found that both the Panel and the Tribunal has failed to properly give effect to the long-established case law around proceeding in the absence of the accused. The Panel had not properly considered the 'direct, relevant, independent, objective' psychiatric evidence before it and it had stood unchallenged. The Court found that 'it is perfectly plain that this [Panel] were looking for exceptional circumstances to continue rather than carrying out the balancing exercise that they are required to do' and that it was clear that had the Panel properly considered the medical evidence in the context of all the other factors that need careful consideration as set out in R v Hayward, Jones and Purvis [2001] 3 WLR 125.
The Tribunal likewise had not applied the correct test and had taken a broader approach to the whole case, deciding that the hearing should go ahead because of its long history. Finding the decisions irrational, unreasonable and disproportionate, the decisions were quashed and a new misconduct hearing ordered.
This case further confirms the correct approach panels and tribunals should take when determining whether to proceed in the absence of a registrant. Whilst, as Adeogba and Visvardis demonstrate, a panel should not allow the regulatory process to be frustrated by a registrant's deliberate attempt to evade due enquiry, panels must approach adjournment applications based on health grounds with great caution. Unchallenged medical evidence that a registrant is not fit to attend a hearing must be properly balanced against public interest factors, and any decision to proceed must make evident that this reasoning process had been carefully undertaken.