In the Matter of an Application by Simon John Marshall for Judicial Review.
Judicial Review - Tribunal - Evidence - Admissibility of hearsay.
In the High Court of Justice in Northern Ireland (before Mr Justice Kerr); judgment delivered 5 December 1996.
IT would be wrong if disciplinary tribunals were to refuse to admit hearsay evidence in pursuance of an inflexible and automatically applied policy. In appropriate circumstances hearsay evidence might be admitted in disciplinary proceedings.
In deciding whether or not to recommend a prosecution, a prosecuting authority is entitled to take into account the circumstance that an accused person has failed to reply to pertinent and legitimate questions.
Mr Justice Kerr so held in dismissing an application for judicial review of a decision by the Independent Commission for Police Complaints to direct the preferring of a disciplinary charge.
Gerald Simpson BL for the applicant, Francis O'Reilly BL for the respondent.
MR JUSTICE KERR said that the applicant, a detective constable in the Royal Ulster Constabulary, sought a judicial review of a decision of the In dependent Commission for Police Complaints for Northern Ireland ("ICPC") to exercise its power pursuant to article 13 (3) of the Police (Northern Ireland) Order 1987 to direct that a disciplinary charge he brought against him.
The charge related to an incident which was alleged to have occurred during a case in which a claimant was pursuing a claim for sexual discrimination against her employers. Counsel for the employers, in the presence of counsel for the claimant, had advised the President of the Tribunal hearing the discrimination case, that she had just received evidence which might affect the credibility of the claimant. Counsel for the employers had explained that this evidence was alleged to have come to light during a telephone call which the applicant had made to the brother of one of the directors of the company defending the discrimination claim.
The claimant had instructed her solicitor to lodge with the RUC a complaint against the applicant's alleged unauthorised release of information concerning her.
During the course of an investigation into the complaint, a Chief Inspector of the RUC had interviewed the claimant's counsel and solicitor, and attempted, unsuccessfully, to interview counsel and solicitor for the company defending the discrimination claim, and the man who had allegedly received the telephone call from the applicant.
When interviewed himself, the applicant had denied the allegation in a general way, but had refused to answer several specific questions put to him.
On 1 May 1996, Margaret Ann Dinsmore QC and Brian Reid members of the ICPC, had decided to direct the Chief Constable to prefer a disciplinary charge against the applicant, to the effect that he had without proper authority communicated to another information which he had in his possession as a police officer, contrary to paragraph 6A of Schedule 1 of the Royal Ulster Constabulary Discipline and Disciplinary Appeals Regulations 1988.
Mr Justice Kerr said that the main thrust of the applicant's application for judicial review was that the only evidence indicating that he had made the unauthorised telephone call had been the evidence given to the Chief Inspector by the claimant's counsel and solicitor. It was submitted that this was hearsay evidence, and accordingly there was no prima facie case against the applicant. Therefore, it was argued, the ICPC's decision that there was such a prima facie case had been insupportable and unreasonable in the Wednesbury sense.
It was not suggested on behalf of the applicant that the hearsay evidence against him would have been inadmissible as a matter of law. Rather, it was submitted that such hearsay evidence would not have been admitted against him on two grounds.
The first ground was that it was the invariable practice of disciplinary tribunals to refuse to admit hearsay evidence. Mr Justice Kerr rejected this submission, saying that an inflexible and automatically applied policy whereby disciplinary tribunals excluded hearsay evidence was obviously wrong. In appropriate circumstances hearsay evidence might be admitted in disciplinary proceedings.
The second ground was that the hearsay evidence in this particular case would not have satisfied the requirements for admission as laid down in the Northern Ireland Office's Guidance to the Chief Constable on Police Complaints and Discipline Procedures. This Guidance laid down that hearsay evidence should only be admitted by a Disciplinary Tribunal if it was impracticable for its originator to give evidence himself, with the further conditions that the evidence must be clearly relevant, with there being an opportunity to test at the hearing both the reliability of the evidence itself and so far as possible the reliability of the originator, Mr Justice Kerr accepted that on the facts, these conditions had been satisfied when the ICPC decided to prefer the charge against the applicant.
A further discrete point was made on behalf of the applicant to the effect that, in deciding to direct that a charge be preferred against the applicant, the ICPC should not have taken into account the applicant's failure to answer specific questions which had been put to him during the course of the investigation of the complaint. Mr Justice Kerr said that there was nothing to suggest that the members of ICPC had drawn from the applicant's failure to answer an inference comparable to the inference which a court might draw under the Criminal Evidence (Northern Ireland) Order 1988. Nonetheless, they were entitled to take into account, as a prosecuting authority deciding whether to recommend a prosecution, the circumstance that an accused person had failed to reply to pertinent and legitimate questions.
Accordingly, the Commission's decision to direct that a disciplinary charge be preferred could not be faulted, and the application would be dismissed.
Solicitors: Edwards & Co (Belfast) for the applicant; Johns Elliot (Belfast) for the respondent.
