It has, of course, always been necessary for decisions to be clearly and cogently expressed. As Lord Brown explained, for example, in the seminal South Buckinghamshire District Council v Porter (No 2) [2004] 1 WLR 1953, the reasons for a decision must, inter alia, “be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the ‘principal important controversial issues’, disclosing how any issue of law or fact was resolved”.

In R (on the application of CPRE Kent) v Dover District Council and another [2018] 2 All ER 121, when reviewing Porter (No 2), Lord Carnwath noted that in the course of Lord Brown’s review of the authorities “he had referred with approval to the 'felicitous' observation of Sir Thomas Bingham MR in Clarke Homes Ltd v Secretary of State for the Environment (1993) 66 P & CR 263 at 271–272, identifying the central issue in the case as: '… whether the decision of the Secretary of State leaves room for genuine as opposed to forensic doubt as to what he has decided and why. This is an issue to be resolved as the parties agree on a straightforward down-to-earth reading of his decision letter without excessive legalism or exegetical sophistication.'”

These were planning cases. The practical importance of that duty, and the need for sufficient and adequate reasons, is, perhaps, even more stark in the context of disciplinary proceedings. The importance of ensuring that the decision maker approaches their task in the correct way, and applies, for example, the correct standard of proof, cannot be overstated. In such a forum, an individual will often face not only a catastrophic economic loss of livelihood, but may also be obliged to forego their profession as well as all personal standing within their community. Furthermore, human error being such, there will be instances where such consequences will be visited upon an (occasionally) blameless individual by a lay panel supported only by legal advice of an (inevitably) variable quality, rather than by an experienced and highly-qualified judge. The stakes could not be higher.

A series of recent cases in the context of disciplinary proceedings have brought the importance of the duty of such panels to give reasons - and the standard required of those reasons - into sharp focus. Whilst it is certainly not intended here to suggest that in any of the particular cases considered the legal input was inadequate, this article explores the broader implications for all those involved, including the advocates, in disciplinary decisions, which are challenged on such grounds.

The Andrew Case

In Andrew v Solicitors Regulation Authority Limited (Case No. 12430-2023, 14 June 2023), a recent appeal against the decision of a SRA Adjudication Panel, the Solicitors Disciplinary Tribunal (“SDT”) reviewed the reasons given by the SRA panel. The SDT found, inter alia, that the “reasons given were inadequate” and that this “represented a serious procedural irregularity” (see paragraph 59 of the decision). Amongst the criticisms made by the Tribunal was the fact that, inter alia, the panel had described the solicitor’s explanation as “unattractive” but failed to “explain why” and also failed to “give a reason as to why they did not accept” his explanation. The decision demonstrates, in our view, the need for such bodies to explain very clearly and in terms how they have grappled with the competing cases advanced by the respective parties, and then to set out in their reasons why they have preferred one explanation, for example, to another.

High Court Decision in Professional Standards

Turning to the medical profession (although the general legal principles are applicable, of course, to all disciplinary proceedings), in Professional Standards Authority for Health and Social Care v General Medical Council [2023] EWHC 967 (Admin) (“Professional Standards”), the High Court was recently concerned with an appeal against the decision of the Panel of the Medical Practitioners Tribunal of the GMC. Mrs Justice Foster, at paragraph 17, noted that although normally “deference is afforded to the expert Panel”, “this respect is more limited, or absent, in circumstances where a serious procedural or other irregularity is apprehended”. The Judge then cited, as authority for the proposition that there is a duty to give cogent reasons, the earlier decision of the court in PSA and GOC v Rose [2021] EWHC 2888 (Admin) where it was held that “the duties that expert tribunals have to the public – to ensure that the public can understand why certain decisions have been reached in its name…has a secure foundation”.

Whilst we have already referred to the life-changing impact such proceedings may have upon the affected individual, Professional Standards highlights the extremely important element of the wider public interest inherent in disciplinary proceedings, particularly where the individual is employed in a profession such as the medical profession which is responsible for providing services to the public. This means that the reasons must be intelligible not only to the parties, who will of course be aware of the issues, but also to the public (and, indeed, to any court which may be invited to review the outcome, or to apply it for consistency in subsequent proceedings).

In Professional Standards, the High Court also held, at paragraph 71, that it had come to “the clear conclusion that the decision of the Panel must be quashed and remitted to them for reconsideration on the basis of a serious procedural error in the form of inadequate and unclear reasoning as to sanction”. Specifically, “[T]he reasoning process is inadequate for the Court to determine whether or not certain important issues were appreciated, and if so, how they were reasoned through. It is therefore not possible to determine whether the sanction imposed was “wrong” in the statutory sense. There has been a serious procedural error engaging the Court’s appellate jurisdiction”. In reaching that finding, the High Court, inter alia, described the treatment of certain evidence as “opaque”, said it was not clear “what analysis the Panel engaged in upon” certain matters and found that certain matters were not mentioned even where they were “opened” or “canvassed in evidence” and were matters “which they must have formed a view on” (see paragraph 73). The Court also found that in determining proportionality, “the reasoning is inadequate to demonstrate the particular factors that impressed the Panel and to help the public understand what it was that drove the MPT to the conclusion it reached on a conditions of practice order”. All in all, “the reasoning does not allow of an informed decision” (see paragraph 73).

The High Court noted that it was mindful that the “Panel saw the Professor give evidence and [was] therefore in a good position to make judgements that are central to the seriousness of the events in question and as to genuine understanding and insight” but due to what it regarded as the “clear failure of reasoning, possibly concealing failures of analysis”, the Court nonetheless quashed the “decision on the basis only of procedural error, for a reconsideration and revisiting of the decision on sanction” (see paragraph 75). The Court, at paragraph 81, noted that a Panel “in the reasoning they set out” must “expose the relevant analysis so the reader understands what the principal issues were, and what the Panel made of them. This is part and parcel of their function in protecting the public interest”. This analysis highlights, again, that even where there may have been a good basis on the merits of the case for the decision which was reached, a decision can be set aside. Professional Standards reflects once more the importance attached to the need for reasons which are (at the very least) ‘adequate’.

The Bennett Case

Another recent and very clear illustration of the issue may be found in the case of Ms Bennett, a social worker, who was initially charged with holding data of service users on her personal computer (of which she was cleared), together with acts of dishonesty following her conviction and imprisonment for immigration offences. Following a hearing before a Fitness to Practice Committee Ms Bennett’s fitness to practise was initially found to be impaired. She was suspended for 12 months. The Professional Standards Authority for Health and Social Care subsequently appealed to the High Court against that decision on the basis that there had been serious procedural irregularities in respect of the decision on sanction and/or that it was wrong – see The Professional Standards Authority for Health and Social Care v Social Work England [2021] EWHC 3593 (Admin). Social Work England (as the decision-making body) accepted, albeit Ms Bennett did not, that there were serious procedural irregularities in its own decision on sanction. The High Court, at paragraph 59, noted that “A failure to give adequate reasons may constitute a serious procedural irregularity, which renders the tribunal’s decision unjust”. The High Court also noted that “The adequacy of the reasons will depend on the nature of the case”. 

In Bennett the High Court concluded that the Committee had failed to give adequate reasons. At paragraph 73, the Court held that due to the “series of findings” which had been made, there was a need for “a clear, reasoned explanation as to why removal was not considered to be the appropriate sanction”. Further, at paragraph 78, the High Court found that the Committee had made brief reference to the “wider public interest” but held that “it was incumbent on the Committee, particularly in a case where there was serious, persistent dishonesty and a lack of insight, to address how its role in upholding public trust applied to the imposition of a sanction”. The Court went on to say that the Committee had failed to do so, and that its “reasons did not have to be over-elaborate. This could have been explained in a few sentences, or perhaps less”. The High Court concluded that, overall, “The absence of reasoning in…various respects meant that the parties, the appellant, the appeal court and members of the public are not able to understand sufficiently, if at all, why this Committee decided that a 12-month suspension was the appropriate sanction in circumstances where its own findings appeared to point towards removal” (see paragraph 97). The High Court held that this meant that the decision was tainted by a serious procedural irregularity. The decision was, therefore, remitted.

The Wallace Case

The approach taken by the High Court in the decisions just discussed is reflective of the earlier decision of Holgate J in Wallace v Secretary of State for Education [2017] EWHC 109 (Admin) where the High Court was concerned with an appeal against a decision to impose a prohibition order on a teacher. One of the grounds of appeal was that the Respondent had failed to give adequate reasons for the decision. The Appellant succeeded on two other grounds such that the Court did not consider it necessary to consider the reasons ground in detail (see paragraph 94). The High Court did, however, say that it would “nevertheless consider that the reasoning given by the Respondent is legally inadequate because (a) there is at least a “substantial doubt” as to whether she took…matters into account…and (b) the Appellant has not been given a reasoned decision which applies those factors [alternative sanction and the correct proportionality test] to his case”. Once more such decisions reflect the overriding need for adequate reasons so that the individual professional can themselves understand the decision which has been reached.

Police Misconduct

Misconduct hearings occur in any case involving an indication of gross misconduct, or where there is an indication of misconduct involving police officers on their final warning. They are typically held in public (unless there is good reason not to) and are chaired by a legally qualified person (LQC) chosen from a force-wide pool. Available sanctions are a written warning, a final warning, a reduction in rank, or dismissal. Two cases from the bank of decisions in such cases illustrate the particular issues that can arise, however, in this particular regime.

In the recent case of R (Chief Constable of West Midlands Police) v Police Misconduct Panel [2022] EWHC 3076 (Admin), the High Court was concerned with a judicial review of the decision of the Police Misconduct Panel which, having found that a police officer had breached three standards of professional behaviour and was guilty of gross misconduct, concluded that the appropriate sanction was a final written warning. Amongst the grounds of review was a suggestion that “the Panel’s decision as to outcome had constituted an error of law and/or been irrational” (see paragraph 22). The High Court noted, at paragraph 42, that “the sanction imposed by the Panel can only be interfered with on Wednesbury grounds” and found that the Panel, “Having assessed the seriousness of the Officer’s misconduct and addressed the purpose of imposing sanctions”, had “chose the sanction which, in its considered and explained view, most appropriately fulfilled that purpose for the seriousness of the conduct in question”. Mrs Justice Ellenbogen noted that the Panel had “cogently explained its views” and that its approach was consistent with the Guidance. The decision highlights, therefore, the necessity of a Panel adequately explaining the reasons why, for example, dismissal would not be the appropriate sanction.

In the earlier case of R (Independent Police Complaints Commission) v Assistant Commissioner Hayman [2008] EWHC 2191 (Admin), which pre-dated the replacement of police chiefs as chairs of police misconduct hearings by LQCs (although it is understood that the Home Office has now proposed reversing that change), the High Court was concerned when reviewing a decision of a panel of three senior officers with the question of the correctness of the standard of proof applied. The case arose out of a complaint following an incident in which an off-duty police officer became involved in a fracas. The panel had found that the Officer had “wrongly and unnecessarily arrested the two complainants” and had kicked one. It concluded that he should resign. The decision was quashed on review by an Assistant Commissioner who directed himself that there was, in the circumstances, a heightened burden (i.e. “the criminal burden of ‘beyond reasonable doubt’” - see paragraphs 13 and 14). The IPCC, on judicial review, contended that this was an error of law.

Reviewing that decision, in turn, the High Court concluded, at paragraph 20, that “Of course in disciplinary proceedings the tribunal must look with the greatest care at accusations which potentially give rise to serious consequences. But in determining whether or not they occurred, it applies a single unvarying standard, the balance of probabilities. If satisfied it is more likely than not that the facts occurred, then it must find them proved and draw appropriate conclusions as to sanction”. This meant, therefore, that the Assistant Commissioner had misdirected himself in law (see paragraph 21) and his decision was therefore quashed and remitted.

In this context we note, as an aside, the recent decision of the Supreme Court in Jones v Birmingham City Council [2023] UKSC 27 in which, at paragraph 51, it was held that “there is only one civil standard of proof at common law and that is proof on the balance of probabilities” and that “the seriousness of an allegation, or of the consequences which would follow for a defendant if an allegation is proved, does not necessarily affect the likelihood of its being true. As a result, there cannot be a general rule that the seriousness of an allegation or of the consequences of upholding an allegation justifies a requirement of more cogent evidence where the civil standard is applied”.

In the specific context of disciplinary proceedings, and the public, it is noteworthy that the High Court commented, at paragraph 24, that “disciplinary findings potentially have a consequence not just for the individual officer concerned but also for the public and for members of the public who may come into contact with him” and that “There is also a public interest in the upholding of proper findings of disciplinary offences by police officers”.

Although Sir Mark Rowley, Commissioner of Police of the Metropolis, has suggested that officer-chaired panels would have dismissed officers in many circumstances where panels with a LQC have not followed such a course, it might be thought that that suggestion overlooks the fact that under the existing regime each panel of three currently includes a police officer (who will be at least the rank of Superintendent where the case involves a non-senior Officer), present no doubt to advance the unique police perspective, as well as an independent panel member. In all cases under the existing regime it is clearly intended that the LQC will guide and promote discussion on the evidence that is relevant to the issues, although they should not dictate the outcome, which will be the result of a simple majority decision. Consequently, it is arguable that the appointment of an LQC sitting alongside a senior police officer and an independent panel member at least ensures that any decision to dismiss is both properly and robustly considered, applying the circumstances of each case as well as all relevant law and guidance.

Sporting Disciplinary Procedure

To complete the picture we would comment that sporting professionals may also, of course, find themselves to be the subject of disciplinary proceedings. Illustrating the point, in a November 2022 case involving the FA Appeal Board (The FA v Imran Louza) the Board confirmed that, in line with existing case law, the standard of proof to be applied in proceedings before the Appeal Board was the civil standard and that there was no “higher standard of proof other than the balance of probabilities” or a requirement for “some particular cogency of evidence…because of the seriousness of the allegations” (see paragraph 31).

What Can be Done?

In each of the cases mentioned where the decision was quashed and remitted, this must have come as an extremely unwelcome surprise to the respondent professional, particularly so when the shortcoming which led to such an outcome did not relate directly to their conduct, but rather to a procedural failure on the part of the tribunal determining their case. Anyone representing such a party might also be somewhat frustrated to find that their earlier victory had proved to be merely Pyrrhic. 

Is there anything that a practitioner appearing before such bodies can do to avert such an outcome? Strictly speaking, ‘no’. By definition, the making and the formulation of any panel decision lies beyond their control. However, it is certainly possible, in our view, by the very careful formulation of written submissions, properly identifying the legal issues which the panel needs to address - and the particular facts upon which findings are required - that any tribunal can be directed to the critical issues and the findings required, so that ultimately the likelihood of any such unsatisfactory outcome can be very significantly reduced. 

Conclusion

It is clear from the above that the Courts have unsurprisingly (and entirely reasonably) placed great weight on the importance of, and the need for, adequate and sufficient reasons which explain the decision which it has reached, including how it has resolved any important issues of fact or law, in the context of disciplinary proceedings. The failure by a decision maker, such as a committee or a disciplinary panel, to give adequate reasons for its decision, or to apply the correct standard of proof, irrespective of the underlying merits of that decision, can lead to the decision being set aside on the basis of a ‘serious procedural error or irregularity’. The disadvantages of such an outcome are numerous (e.g. undue delay in bringing about a final conclusion to disciplinary proceedings, unsatisfactory public resolution, increased costs for all involved, etc.). 

Whilst it has always been necessary for disciplinary bodies to pay close regard to the need for sufficient and adequate reasons, practitioners would be well advised to do all within their power to help them achieve that end… 

This article was originally published in the Association of Regulatory and Disciplinary Laywers (ARDL) Quarterly Bulletin, Winter 2023.

Title ref: King Lear: Act 2 Scene 4.