Mat Holdcroft and Cecily White (led by Andrew Warnock KC and instructed by Keiron Walsh) act for the police force parties in these Court of Appeal hearings concerning liability of the police for the criminal actions of a third party and alleged police failure to investigate:

(1) CJ & PJ  (by her mother & Litigation Friend DJ) & anr (appellants) v The Chief Constable of Wiltshire Police (respondent) (in which Mat and Cecily also appeared for the respondent below)
and
(2) Woodcock (respondent) v The Chief Constable of Northamptonshire Police (appellant) (in which Mat also appeared for the appellant below)

The hearings listed Monday 28th to Wednesday 30th have been selected for live-streaming as “high profile and legally significant case[s]”, in order to “increase open justice and improve public access and understanding of the justice system”.  Please click here for the link to watch the proceedings live, or on video afterwards.

These appeals follow last week’s Supreme Court dismissal of the appeal in Tindall v CC of Thames Valley Police (in which Andrew Warnock KC and Ella Davis appeared) the court unanimously re-iterated the law as set out in Michael, stated that the law in relation to negligence is not in flux, and that the police do not have a special status in relation to those known to be at a special risk of personal harm.

On 14 October 2024 the public inquiry into the death of Dawn Sturgess commences with hearings in Salisbury. Dawn Sturgess died on 8 July 2018 after being poisoned with Novichok, the nerve agent that had been used to poison Sergei and Yulia Skripal in Salisbury on 4 March 2018. As well as ascertaining how Dawn Sturgess came about her death, the Inquiry will consider the issue of Russian state responsibility.

The public inquiry, chaired by retired Justice of the Supreme Court Lord Hughes, will be holding hearings in Salisbury and London until 6 December 2024.

The inquiry has attracted significant media attention.

John Beggs KC and James Berry act for Wiltshire Police.

Bridget Dolan KC acts for South West Ambulance Service NHS Foundation Trust.

Cecily White presented the case against former PC John Apter, who was head of the Police Federation for England & Wales between 2018 and 2022 and at the time of the alleged misconduct.   Mr Apter was found to have made a sexually inappropriate comment about Lissie Harper, whose husband was a police officer killed in the line of duty, during preparations for an awards ceremony in January 2020.  Mr Apter has since retired from policing.

The Police Misconduct Panel concluded that Mr Apter would have been dismissed had he still been a serving police officer with the consequence that his name will be added to the Barred List maintained by the College of Policing.  Other allegations were found not proven.

The case received significant press coverage from the BBC, The Guardian and the Times Series.

Congratulations to James Berry who was awarded Public Services and Charities Junior of the Year, and Rhys Hadden, who was award Court of Protection Junior of the Year at the Legal 500 UK Bar Awards 2024.

Thank you to all our clients and contacts for their continued support throughout the research process.

Recent Legal 500 testimonials for James and Rhys include:

• ‘James is one of the best juniors. Very clever, great strategic brain, and a calm and authoritative style in court.’
• ‘James is incredibly approachable, good with clients of all ranks and matches this with an excellent grasp of police law. His advocacy is understated – which suits the subject matter – but highly effective.’
• ‘Rhys is a very experienced and specialist barrister. His engaging and collaborative approach ensures cases progress quickly and efficiently. His advocacy style is thorough, engaging and effective.’
• ‘Rhys brings a wealth of knowledge to proceedings when dealing with difficult exclusion matters and school governors. Clients value his ability to cut through the extraneous matters and focus on what is important.’

This week the Investigatory Powers Tribunal (Singh LJ, Lady Carmichael and Stephen Shaw KC) is considering a significant claim brought by two Northern Irish journalists, Barry McCaffrey and Trevor Birney.

The Tribunal will consider the Claimants’ complaints including that their journalistic material was obtained unlawfully in criminal investigations into the alleged leaking of confidential information by public servants.

The investigations were undertaken by and on behalf of the Police Service of Northern Ireland.

The case has attracted national media coverage.

James Berry and Chloe Hill act for the Metropolitan Police Service.

They are also acting in a similar claim brought by the BBC and BBC journalist Vincent Kearney which will be heard by the Tribunal in due course.

In London Borough of Islington v A Parent [2024] UKUT 252 (AAC) Upper Tribunal Judge Stout (building on the decision in AJ v London Borough of Croydon [2020] UKUT 246 (AAC)) has clarified: (1) the obligations imposed on the First-tier Tribunal (HESC) (“FTT”) when exercising its inquisitorial jurisdiction to determine appeals concerning Education Health and Care Plans and (2) the way in which the ‘burden of proof’ principle operates in this jurisdiction.

Judge Stout held that:

• The FTT erred in law by placing a formal burden of proof on the Local Authority. The FTT’s task on appeal is to “stand in the local authority’s shoes” and apply section 39(4) of the Children and Families Act 2014 properly to the facts of the case before it, exercising its inquisitorial jurisdiction to ensure it has the necessary evidence on which to fairly determine the appeal: [54]-[60].
• The FTT did not, at the hearing, explain that it was unable to make findings as to the cost of either placement nor did it canvas with the parties what should be done about that: [53]. Fairness required the FTT to put its concerns to the Local Authority at the hearing (or, if it thought of the concerns only in the course of deliberation, to give the Local Authority a further opportunity in writing or at an adjourned hearing to address those concerns): [63].
• The school of parental preference in this case fell in another geographical area. The FTT failed to properly consider its case management powers to (1) require the parties and/or the third party Local Authority and school to provide further evidence and/or (2) order a witness from the third party Local Authority or school to attend the hearing: [63]. Such powers were available to the FTT, but not the Local Authority responsible for maintaining the EHC Plan: [61].
• On the facts of this case, it was perverse for the FTT not to adjourn the hearing for further evidence, since the prejudice to the parent and child would have been minimal compared to the potential prejudice to the Local Authority to fund the child’s placement at a school at very significant additional cost to the public purse: [70].
• The FTT’s task is to find out what the difference (or approximate difference) is between the costs of the two placements on the balance of probabilities. The fact that the FTT considers those costs to be unreasonable or inadequately explained will not normally be a basis for finding that those are not the actual costs. That is especially so where the school in question is not one the Local Authority is responsible for funding: [81].
• The FTT failed to make any determination about the suitability of the school preferred by the Local Authority. On the parent’s case, those were all matters that were in dispute. The Upper Tribunal gave guidance reminding the FTT that it should normally make findings on the evidence it hears so that, in the event of an appeal, cost and public resources do not need to be wasted in an unnecessary rehearing. Dealing with a question of costs alone is the sort of issue that could normally be remade at Upper Tribunal level. The FTT’s decision not to complete its fact-finding function in this case, however, meant that the appeal needed to be remitted: [87]-[88].

The judgment can be found here.

Benjamin Harrison, of Serjeants’ Inn Chambers, was instructed by Hannah Connors on behalf of the successful appellant.

Parsing judgment: judicially reviewing decisions of the Police Appeals Tribunal

In an admirably in-depth judgment, the Court in R (Stephen Dalton) has considered on what bases decisions of the Police Appeals Tribunal (‘PAT’) may be properly subject to judicial review. The decision reiterates the ambit of the PAT’s discretion and is likely to affect how such proceedings are conducted going forward.

The misconduct proceedings

The relevant misconduct occurred when the claimant police officer, along with his colleagues, responded to a report that three youths were attempting to break into a bike shed. The claimant arrested and handcuffed one of the individuals, Richard Smith, walked him to the rear of a nearby police car, and forced his head downwards onto the vehicle. This caused Mr Smith to suffer lacerations to the face and possibly a fractured jaw.

Mr Smith complained that the claimant’s actions breached the Standards of Professional Conduct as set out in the Police (Conduct) Regulations 2012 (in effect at the time). A Police Misconduct Panel (‘the Panel’) considered an array of evidence and concluded that the claimant was solely responsible for the use of excessive force and the lack of respect and courtesy shown to Mr Smith, and that his conduct was intentional and deliberate. The Panel dismissed the claimant without notice.

The claimant appealed to the PAT. The Chair of the PAT (‘the Chair’) conducted a review of the appeal under Rule 11 of the PAT Rules 2012 and dismissed it on the basis that it had no realistic prospect of success. The claimant applied for permission to judicially review the PAT’s decision.

The Court’s decision

Mrs Justice Lang, refusing the claimant’s application for judicial review, closely analysed the reasoning of both the Panel and the PAT. The main grounds of review and the reasoning of the Court are summarised below.

(i) Irrationality

The claimant alleged that the Chair acted irrationally in concluding that the evidence of two of the claimant’s colleagues, both of whom were on the scene when Mr Smith was arrested, was “not hugely significant.” Mrs Justice Lang held that this ground was “unarguable” and had no realistic prospect of success. The Panel had based their conclusions on high-quality Body Worn Video which contradicted or undermined key parts of the claimant’s evidence, rendering it unreliable. It was entirely rational for the Chair to reach the decision he did. In the alternative, Mrs Justice Lang considered that permission should be refused under section 31 Senior Courts Act 1981.

(ii) Failure to properly analyse the issue of apparent bias

The claimant submitted that the PAT had failed to properly engage with his contention that one of the Panel Members had acted in a manner that gave rise to an appearance of apparent bias. Mrs Justice Lang concluded that this ground was also unarguable and had no realistic prospect of success. The Panel was entitled to ask searching questions, and none of the language used was unfair or biased. The Panel Member was neither a trained lawyer or judge and was therefore entitled to some latitude in the phrasing of her questions. The Chair had applied the correct legal test and assessed the questions in their proper context.

(iii) Failure to give adequate reasons

The claimant alleged that the Panel had erred by (i) making findings in respect of witness credibility before resolving certain inconsistencies in the evidence presented to them, and (ii) failing to properly refer to the good character evidence presented to them. In turn, the PAT had failed to give adequate reasons for rejecting that ground of appeal.

Mrs Justice Lang rejected both of the claimant’s submissions. On the first issue, she concluded that it sought to “re-open the evidential issues under the guise of a failure by the PAT Chair to give adequate reasons.” After reiterating that judicial review is not an appeal on the merits, she held that the claimant’s argument turned entirely on how the Panel had drafted its judgment. This was a matter squarely within its discretion. In any event, it was clear that the Panel had considered all the evidence, decided which it accepted and which it rejected, and made its findings of fact. On the second issue, she concluded that the Panel was not required to refer to the character direction in their decision – they were merely required to take it into account. In the alternative, were she wrong on either ground, Mrs Justice Lang considered that permission should be refused under section 31 Senior Courts Act 1981.

Commentary

Mrs Justice Lang’s judgment reiterates a number of important principles of law that must be borne in mind by both tribunals and reviewing courts alike. First, although it is crucial to maintain the highest standards of procedural fairness, misconduct panels have some discretion over how misconduct proceedings are conducted, and their independent members are not to be treated in the same manner as professional lawyers or judges. Appeals brought on the basis that the tribunal did not operate as a court might be expected to in criminal proceedings are unlikely to be successful (see Simon Brown LJ’s comments on the purpose of misconduct proceedings in Redgrave). Second, reviewing courts should be careful not to venture into unsuitable terrain and make a decision on the merits of the case, however the claimant’s application may be formulated. Perhaps such reminders will serve to reduce the number of ‘unarguable’ cases that come before the courts in future.

Matthew Holdcroft represented the Chief Constable of Hertfordshire Constabulary as the Interested Party, who acted as the Appropriate Authority at the misconduct proceedings. The Court upheld his submissions on all grounds.

Rachel Spearing has been appointed as a Patron of The Next 100 years after many years of being a member. Rachel joined The First 100 Hundred Years Pioneers for the 1990’s, celebrating her diverse background and co-founding of the Wellbeing at the Bar initiative in 2012.

The Next 100 Years is a project dedicated to achieving equality for women in law. They are focused on encouraging collaboration across the profession, improving the visibility of women in law, and supporting the women lawyers of the future.

The ten-year project is powered by Spark21, a charity founded to celebrate, inform and inspire future generations of women in the profession. It builds on the success of the First 100 Years project, created to chart the journey of women in law in the first 100 years following the Sex Disqualification (Removal) Act 1919, which allowed women to become lawyers for the first time. The five-year project culminated in centenary celebrations in 2019.

The Next 100 Years will continue the work of the First 100 Years, capturing the inspirational stories of today’s pioneering women lawyers, educating the public on the legacy of the legal pioneers of the past, and driving the change needed to create an equal future for women in the profession.

Speaking about the project Rachel says: “As a Patron of the Next 100 Years ‘paving the way’ for this next generation for me means supporting their access to, resilience within, and successful retention or return to the profession. Building greater awareness of their challenges is what I aspire to do as a Leader.”

Visit their website here.

A concise practice review was commissioned by Mid & West Wales Safeguarding Children Board following the tragic death of Lola James, a young child, as a result of an unprovoked and violent attack by her mother’s partner.

Emma Sutton KC was appointed as the independent reviewer and was responsible for drafting the report published today.

A copy of the full report together with a 7 minute briefing is available here, the 11 recommendations are as follows:

” 1. For the corporate management team within the local authority to ensure that guidance for heads of service regarding additional funding requests is readily available and understood, and to consider how internal funding decisions can be reviewed if a request for additional funding is rejected. This is particularly important within social services due to the statutory
nature of this service, and the need to maintain an effective operating level in line with statutory duties. Where these pressures are not able to be met or statutory duties are compromised, this should be highlighted clearly in the director of social services’ annual report for the attention of elected members and the public.

2. For training to be arranged for practitioners and managers within children’s services regarding the assessment/sign off process, and for senior officials within children’s
services to ensure there is a robust process in place for auditing assessments. For senior officials to also review whether the current supervision arrangements for both social workers and team managers is appropriate, and to urgently review whether other assessments within children’s services have been completed and closed in a similar way to child A, and to consider whether this review should be undertaken independently. Practitioners within adult services to be reminded in supervision meetings of the need for wider consultation with relevant professionals when undertaking adult needs assessments.

3. For senior officials within children’s services, in conjunction with HR, to ensure that a policy is in place regarding how staff are supported when sickness issues arise to avoid crisis/ prolonged staff leave, and to address how cases are managed when staff are on sick leave. The latter point to include consideration of how records are managed when staff are on sick leave, and for such issues to be considered as part of the return to work and sickness absence review processes.

4. For senior officials within children’s services to finalise a template for rapid reviews to be undertaken effectively and timely following a child’s death or serious incident in an open or recently closed case. Consideration should also be given to how that rapid review process can (itself) be reviewed to ensure its effectiveness.

5. Agencies to review and provide assurance that training and guidance is available to multiagency practitioners in respect of completing and understanding thresholds for completing Multi-Agency Referral Forms (“MARFs”), and for a robust quality assurance process to be put in place to ensure that the MARF process is correctly and effectively utilised by practitioners.

6. Agencies to consider mechanisms which would facilitate multi-agency decision making and collaborative practice in respect of children and families where concerns fall below the threshold of significant harm, including the formation of multi-agency safeguarding hubs, and for consideration for such hubs to meet “virtually” having regard to the wide geographical area.

7. Agencies to ensure that sharing policies and practice guides are up to date in line with current legislation, policy and procedures, for further training to be undertaken on information sharing, and for an audit on staff training to be undertaken. This relates to CYSUR 1 2021 Child Practice Review Report CYSUR 1/2021 Report Page 30 of 35 information sharing between practitioners and information between professionals and a non-resident parent.

8. Information sharing between compulsory education and early years settings to be explored by local education services to facilitate sharing of sibling information, alongside national consideration of this issue (see CIW report commissioned by the Welsh Government, September 2023).

9. Multi-agency training to be undertaken and greater managerial support for complex cases where there are difficulties engaging with parents or carers, and for a robust quality
assurance process to be put in place to evidence that training/greater managerial support (regarding the issue of difficulties with parental engagement/engagement with other relevant persons, etc) is being addressed.

10. Regional police force to pursue implementation of a flagging mechanism of a specific address (within the operational database) where there is a wider history of safeguarding concerns linked to that address (absent an incident being logged as a “domestic” incident).

11. For supervision sessions with relevant practitioners within the respective agencies to address the importance of using specific terminology when completing records/reports, and for professionals to be reminded of the importance of providing sufficiently detailed/ contemporaneous records. This is to include making it clear which individual(s) in or around a family are being referred to. “

Coverage from Sky News is here.