A post last week noted the decision of the Court of Appeal in TBO Investments Ltd -v- Mohun Smith EWCA Civ 403 where the court stated that an application under CPR 39.3 should have been allowed when a defendant failed to attend court for medical reasons. Similar reasoning, in perhaps a more robust style, can be found in the judgment of HH Judge Mark Raeside QC (sitting as a Judge of the High Court) in Anastasi -v- Police Appeal Tribunal  EWHC 4156 (Admin) (although the case pre-dates the TBO Investments decision.)
“In my judgment, this hearing plainly should have been adjourned. Save in very exceptional cases where the public interest points strongly to the contrary, it must be wrong for a committee which has the livelihood and reputation of a professional individual in the palm of its hands, to go on with a hearing when there is unchallenged medical evidence that the individual is simply not fit to withstand the rigours of the disciplinary process.”
- A Police disciplinary panel and appeal Tribunal had erred in failing to grant an adjournment in circumstances where there was clear medical evidence that the claimant could not give evidence for health reasons.”
The claimant was subject to police disciplinary proceedings. A psychiatric report was obtained which indicated that he was not fit to give evidence. A disciplinary Panel refused an application for an adjournment. That decision was upheld by the Police Appeals Tribunal.
The judge was critical of the decision of the Panel and Tribunal. In relation to the Tribunal decision.
This decision clearly states the correct authority; it is aware of a document which says in terms that this individual cannot attend trial and when cross-examined will not attempt to give a correct version but will take what might be called a slightly easier approach – Is aware of the fact that report was not challenged, as could have been done and all expert evidence is open to challenge in the normal way if is not to be accepted in its face as an independent document. But despite all of that, one does not see, as far as I can see from these reasons, any focus on those points. Because at the end of the day, what this decision should have done with reasons is ask itself the question why it was that these proceedings were adjourned when there was clear, unchallenged expert opinion evidence was before a Tribunal and was not properly referred to in the decision of that Tribunal.
Whilst I acknowledge that a tribunal is not bound to accept independent medical opinion and like all opinion evidence a tribunal has to come to its own view. In this case there appears to be no proper recognition that a report such as this has to be a starting point for an adjournment. Application before the tribunal goes on to consider why it would prefer not to accept such independent opinion on more proper reasoned basis. this does not appear to have been the basis for the Appeal Decision review of the Tribunal.
VI: The Law
The leading case is so far as relied upon by the claimants that of Rose LJ and Elias J (as he then was). Rose LJ invited Elias J to give a decision inBrabazon-Drenning v United Kingdom General Council for Nursing and Midwifery and Health Visiting  HRLR 6. I have reviewed the authorities considered and the background. The facts of that case where, as one can see from paragraph 7, that there was a general practitioner’s report which explained the background. Then the key quote which has been cited at paragraph 18:
“In my judgment, this hearing plainly should have been adjourned. Save in very exceptional cases where the public interest points strongly to the contrary, it must be wrong for a committee which has the livelihood and reputation of a professional individual in the palm of its hands, to go on with a hearing when there is unchallenged medical evidence that the individual is simply not fit to withstand the rigours of the disciplinary process.
A year later, on 31st January 2001 R v Hayward, Jones and Purvis, of which Rose LJ sat with Hooper J and Goldring J. As a matter of record he did not cite from the decision on which he sat with Elias J but did in a very comprehensive and full way indicate the test in this particular hearing, of course being a criminal hearing. I pick it therefore from paragraph 22 which is quoted time and again in subsequent decisions as I shall indicate. I read from paragraph 22:
“1. A defendant has, in general, a right to be present at his trial and a right to be legally represented.
2. Those rights can be waived, separately or together, wholly or in part, by the defendant himself. They may be wholly waived if, knowing, or having the means of knowledge as to, when and where his trial is to take place, he deliberately and voluntarily absents himself and/or withdraws instructions from those representing him. They may be waived in part if, being present and represented at the outset, the defendant, during the course of the trial, behaves in such a way as to obstruct the proper course of the proceedings and/or withdraws his instructions from those representing him.
3. The trial judge has a discretion as to whether a trial should take place or continue in the absence of a defendant and/or his legal representatives.
4. That discretion must be exercised with great care and it is only in rare and exceptional cases that it should be exercised in favour of a trial taking place or continuing, particularly if the defendant is unrepresented.
5. In exercising that discretion, fairness to the defence is of prime importance but fairness to the prosecution must also be taken into account. The judge must have regard to all the circumstances of the case including, in particular:
(i) the nature and circumstances of the defendant’s behaviour in absenting himself from the trial or disrupting it, as the case may be and, in particular, whether his behaviour was deliberate, voluntary and such as plainly waived his right to appear;
(ii) whether an adjournment might result in the defendant being caught or attending voluntarily and/or not disrupting the proceedings;
(iii) the likely length of such an adjournment;
(iv) whether the defendant, though absent, is, or wishes to be, legally represented at the trial or has, by his conduct, waived his right to representation;
(v) whether an absent defendant’s legal representatives are able to receive instructions from him during the trial and the extent to which they are able to present his defence;
(vi) the extent of the disadvantage to the defendant in not being able to give his account of events, having regard to the nature of the evidence against him;
(vii) the risk of the jury reaching an improper conclusion about the absence of the defendant;
(viii) the seriousness of the offence, which affects defendant, victim and public;
(ix) the general public interest and the particular interest of victims and witnesses that a trial should take place within a reasonable time of the events to which it relates;
(x) the effect of delay on the memories of witnesses;
That summation has then been considered in R v Jones which went to the House of Lords. It was Lord Bingham of Cornhill, whose views in this matters carry great weight and in particular paragraph 13, indicates having quoted that case, that having gone to paragraph 22 of the Court of Appeal decision the pages I have just quoted 135 and 136:
“…the discretion to commence a trial in the absence of a defendant should be exercised with the utmost care and caution. If the absence of the defendant is attributable to involuntary illness or incapacity it would very rarely, if ever, be right to exercise the discretion in favour of commencing the trial, at any rate unless the defendant is represented and asks that the trial should begin. The Court of Appeal’s check-list of matters relevant to exercise of the discretion (see paragraph 22(5)) is not of course intended to be comprehensive or exhaustive but provides an invaluable guide. I would add two observations only.
First, I do not think that ‘the seriousness of the offence, which affects defendant, victim and public’, listed in paragraph 22(5)(viii) as a matter relevant to the exercise of discretion, is a matter which should be considered…
Secondly, it is generally desirable that a defendant be represented even if he has voluntarily absconded. The task of representing at trial a defendant who is not present, and who may well be out of touch, is of course rendered much more difficult and unsatisfactory, and there is no possible ground for criticising the legal representatives who withdrew from representing…
That decision is followed in very similar terms with almost identical quotations from the other members of Lord Nolan, Lord Hoffmann, Lord Hutton and Lord Rodger of Earlsferry. Again, one and between them quote that similar decision and/or agree with the decision of Lord Bingham of Cornhill.
“Counsel for the appellants drew attention to the observation of Lord Bingham of Cornhill in R v Jones [and he indicates a quote that I have just quoted] Lord Bingham proved the checklist of matters relevant to the exercise. The Court of Appeal at paragraph 22(5) which I also quoted from pertinent to the present case. These decisions show the following factors (i) the seriousness of the case against the defendant (ii)the seriousness of the case against the defendant, the risk of the tribunal reaching a wring conclusion about the reasons for the absence of the defendant, and the risk of reaching a wrong conclusion on the merits as a result of the appellant’s account not being heard…”
In terms of the most recent decision that is still the correct approach. Again I do not read in detail the well-know decision of McDaid v NMC. Eder J in the Administrative Court. The one paragraph, paragraph 28 in which having set out the factors he summarises in this way:
“The principles to be generally applied when exercising the discretion to proceed in a criminal case in the absence of the defendant are set out in the case of R v Hayward … R v Jones (Anthony)  UKHL 5 and applied to professional regulatory proceedings by the Privy Council in Tait v The Royal College of Veterinary Surgeons…”
It is quite apparent to me and correct to say that approach is now and more recently followed in these sort of proceedings. For those purposes there is no dispute between counsel before me that the Nursing and Midwifery Council approach and these proceedings should be the same.
The last authority I quote and I concede this was not by the either counsel it seems it is relevant to medical expert reports seeking an appointment. It is a matter that Tribunals regularly have to deal with is the decision of (as he then was) Norris J, now the Vice-Chancellor. The decision is Levy v Ellis-Carr and others  EWHC 63 (Ch). It is paragraph 32 and 36 it is quoted from in adjournment cases generally in civil case and many cases where the approach to expert evidence on medical grounds is fairly summarised viz:
“32. Registrars, Masters and district judges are daily faced with cases coming on for hearing in which one party either writes to the court asking for an adjournment and then (without waiting for a reply) does not attend the hearing, or writes to the court simply to state that they will not be attending. Not infrequently ‘medical’ grounds are advanced, often connected with the stress of litigation. Parties who think that they thereby compel the Court not to proceed with the hearing or that their non-attendance somehow strengthens the application for an adjournment are deeply mistaken. The decision whether or not to adjourn remains one for the judge.”
“36. Such evidence should identify the medical attendant and give details of his familiarity with the party’s medical condition (detailing all recent consultations), should identify with particularity what the patient’s medical condition is and the features of that condition which (in the medical attendant’s opinion) prevent participation in the trial process, should provide a reasoned prognosis and should give the court some confidence that what is being expressed is an independent opinion after a proper examination. It is being tendered as expert evidence. The court can then consider what weight to attach to that opinion, and what arrangements might be made (short of an adjournment) to accommodate a party’s difficulties. No judge is bound to accept expert evidence: even a proper medical report falls to be considered simply as part of the material as a whole (including the previous conduct of the case).”
That case has been expressly approach by Lewison LJ in Forrester Ketley v Brent  EWCA Civ 324 – see paragraph 26, and there have been other cases where that has been approved including (as he was then) Vos J, in Governor of Bank Ireland and Jaffery  EWHC 734 – paragraph 49 et al. More recently, in Decker v Hopcraft, a defamation case (Warby J), he cited those principles seriatim as I have done from paragraph 21 through to paragraph 26 inclusive as being the correct approach to an adjournment. These are well-known rules and in terms of expert medical evidence are probably now accepted as to the correct approach any tribunal should take when considering the question of an adjournment on medical grounds.
1. Taking the Panel Decision first, in this court’s judgment the interest of justice in this case did require the Panel in a misconduct procedure to extended time if they had properly considered the provisions of the Police (Conduct) Regulations 2012, paragraph 24 and in order that Chief Inspector Anastasi could have a fair opportunity to attend a trial and allow him to put his case in an objective and fair way. That also would have accorded with the Home Office Guidelines (July 2014 Regulations paragraph 2.17) which indicates the purpose of those hearings, a fair hearing. From everything I have considered in this case I am simply not satisfied that approach was correctly taken.
2. The Panel should have properly considered both the report and the letter of Dr Tacchi which gave direct, relevant, independent, objective evidence and a normal declaration from someone entirely qualified which had not been challenged, though it could have been. The decision was not to challenge it. Therefore, in broad terms, it stood and was evidence largely along the lines of Levy and Ellis (supra), which was before the Tribunal and therefore they had to consider that in the usual way.
In order to do that they would and should have come to the conclusion that Chief Inspector Anastasi was not fit for a trial and they should have been concerned that if he did attend trial and gave evidence he would not give, as they often say the full truth but nothing the truth in answers which would equate to a wish to reduce the extent of its proceedings and the pressure on him given what his psychiatric report says his symptoms were.
There was also a prognosis as to the period of time whilst the Tribunal did properly consider that, they considered it was too long. In this court’s judgment, very often proceedings it is not literally the length of the period, what one is trying to achieve is the test as required by those Police Conduct Regulations and Home Office guidelines it is trying to achieve fairness. It is difficult to have a fair trial when someone cannot attend for perfectly good medical grounds which are unchallenged and indeed would, if he attended, and this was the hearing where attendance was after a really very short period of time was likely, so the evidence indicated at Tribunal, not answer the questions expected by any fair hearing.
3. The Panel failed to properly give effect to the Harvey decision and the Jones decision in principle, when they considered the factors; it is perfectly plain that this Tribunal were looking for exceptional circumstances to continue rather than carrying out the balancing exercise that they are required to do. It is therefore significant that the professional independent opinion that said this individual claimant cannot sadly attend the trial was not put into the balance and effect given to Brabazon-Drenning.
It seems to me if you are going to consider that test and you are going to consider an adjournment on the medical grounds those are the factors that are plainly part of that list and they should be followed and indeed it is very difficult to consider the decision of Lord Bingham and his very clear indication of how matters should proceed as in Jones which was apparently before the Tribunal then become with those exceptional circumstances just do not produce, as this court sees it, a balanced view at all.
4. So far as the Appeal Decision is concerned, that in large terms simply supported the approach of the Panel. It is right to say and I do record that they did apply the correct test. On this occasion Mr Hill attended and focused precisely on that test. They did record the very letter as a matter of evidence which indicated and reported the inability of these individuals to attend trial. But when they came to the reasoned parts of their decision and the reasons they had to give seemed not recorded those matters, considered them or put them into the balance. What they seem to have done is taken a broader approach of the whole case and formed the view that the trial must proceed because of its long history.
In view of that there, may be somewhat unusually but I think on the facts of this case I have little or no option whatsoever but to quash the decision of the Panel on the 20th May 2015 and quash the Appeal Decision of the 26th February 2015. In view of that this matter in this court’s judgment should therefore have the third relief sought which is the matter should be remitted to a new misconduct Panel and Chief Inspector Anastasi should have the right to a fair hearing.”