Appeal No.	 EAT/60/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 29 April 1998
Judgment delivered on 4 August 1998

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MR P DAWSON OBE
MR J C SHRIGLEY

DETECTIVE INSPECTOR IRENE MEEHAN	APPELLANT

(1) MESSRS GENTLE, RACKSTRAW & ROBINSON 	RESPONDENTS
(2) PERKINS GROUP LTD	

Transcript of Proceedings

JUDGMENT

IN A MATTER OF A WITNESS ORDER

Revised

	APPEARANCES

For the Appellant	MR D OUDKERK
(of Counsel)
Instructed by:
Mr N Bennett
Solicitor
Bedfordshire County Council
County Hall
Cauldwell Street
Bedford
MK42 9AP	

For the first Respondents

For the second Respondents	

MR S G ROBINSON
(Representative)

NEITHER PRESENT NOR PRESENTED	

	MR JUSTICE MORISON (PRESIDENT):	This is an appeal against the decision of a tribunal chairman who refused to set aside a witness order against Detective Inspector Irene Meehan.   The case has a long history.   In essence, the applicants contend that they were dismissed from their employment by Perkins in circumstances which rendered their dismissal unfair, and, further, that in order to defeat their applications for unfair dismissal Perkins concocted certain evidence against them.   Because they were of the view that perjury might have been committed or, possibly, that there had been a conspiracy to pervert the course of justice, the applicants reported the matter to the police.   An Inspector Bullock produced a report which the applicants believe and contend confirms their suspicions as to the fabrication of certain evidence.   Essentially, his evidence might tend to show that certain appraisal documents presented to the Industrial Tribunal had been created for the purpose of the hearing, and did not exist whilst they were employed, contrary to what was said at the Industrial Tribunal.    We make no comment about the evidence of Inspector Bullock, nor as to any inferences that could be drawn from it, and nothing we say in this judgment is to be taken as an expression of view, one way or the other about the merits of the case.

	Armed with this new information, the applicants applied to an Industrial Tribunal for a review of the Decision dismissing their applications for unfair dismissal.    Their application was made well beyond the 14 day time limit which the Rules provide.   But both parties had come to the tribunal with their evidence expecting a hearing.    One of the witnesses whom the applicants were intending to call was DI Meehan against whom a witness order had been granted.   At the hearing, DI Meehan successfully applied for the order to be lifted and the Industrial Tribunal then refused to hear any evidence on the grounds that the application for a review had been made out of time.    Thus the application for a review was dismissed.

	The applicants appealed both the order setting the subpoena aside and the Tribunal’s refusal to conduct the review.    At a preliminary hearing, the applicants’ appeal on the second issue was allowed to proceed, but the appeal against the way the witness order had been dealt with was dismissed, on the ground that it was a matter for the Tribunal’s discretion as to which witnesses should be compellable and which not.    At the full hearing of the appeal on the review issue, on 11 March 1997, the EAT allowed the applicants’ appeal.    It seemed to the EAT that where there was the potentiality of a serious miscarriage of justice procured by deceit, the court should be slow to deny a re-opening of the case merely on some procedural nicety.    We said that the matter should go back to the Industrial Tribunal for a review hearing so that the parties could call the evidence which “they had available at the Industrial Tribunal and would have called but for the time limit point having been taken.”    Nothing was said at that hearing about the witness order because that had already been dealt with at the preliminary hearing.   

	The matter was remitted to the Industrial Tribunal.    The applicants applied for, and were granted, a further witness order against DI Meehan.   An unsuccessful application was made to set aside that subpoena and there is an appeal against that decision.

	Before turning to the parties’ arguments it is necessary to say something further about the facts.    DI Meehan took statements from various of Perkins’ employees about the allegations the applicants were making and they will shed further light on the evidence which Inspector Bullock has to give.    These statements will lie at the very heart of the review, as they may shed light on the question whether the first Industrial Tribunal were deliberately misled and whether, in truth, the applicants were selected for dismissal on the grounds put forward by the employers.   

	The applicants, reasonably, we think, contended that DI Meehan’s evidence was available on the day of the original review hearing, at least until the witness order had been set aside.   It was said that the Industrial Tribunal decided to deal with the witness order first, simply to suit counsel’s convenience and, thus, although DI Meehan was released from the tribunal before the actual review took place, her evidence was available on that day.    Faced with conflicting submissions, the learned chairman refused to set aside the witness order.

	Before us, on DI Meehan’s behalf it was submitted to us that 

(1)	Nothing had changed between the date when the EAT refused to entertain an appeal against the decision of the industrial tribunal to set the first witness order aside; thus it was an abuse of process for the applicants to have applied for a new order;

(2)	The Learned Chairman was wrong to have construed the EAT’s decision that the parties could call such evidence as they had available at the first hearing as including the evidence of DI Meehan;

(3)	The applicants were ‘fishing for evidence’ as they did not know what DI Meehan could say;

(4)	The evidence which DI Meehan was able to give went to the credit or credibility of Perkins’ witnesses;

(5)	The Industrial Tribunal should have reserved to itself the right to look at the material to be produced before ordering disclosure.

	The applicants were unrepresented.    They submitted that it would defeat the ends of justice if DI Meehan was not a compellable witness.   The whole basis for the EAT’s decision that the case should be remitted was that the Industrial Tribunal should examine all the available evidence.    They pointed out that in certain circumstances Industrial Tribunals would require sensitive or confidential material to be disclosed where that was necessary for the doing of justice between the parties.   The order against DI Meehan was made, on the second occasion, amongst other such orders.   But not all the applicants’ requests were met, and, therefore, this was not a case where the Tribunal had made an order inadvertently or accidentally.

	Perkins supported the position of the appellant.

	We have not found this an easy case.    It would plainly be in the interests of justice that the Industrial Tribunal should have access to the material which DI Meehan can produce.   As we have said, this material lies at the very heart of the case.   Without in any way seeking to prejudge the matter, in the light of Inspector Bullock’s report, it can be said that the applicants’ contentions are neither purely speculative nor mischievous.   That is not to say that they will win, at the end of the day.    What the statements obtained by DI Meehan will show is whether a secretary had been asked to type relevant documents for use at the tribunal after the dismissal.    She may have informed Inspector Bullock that she had, but then denied it.   The applicants harbour the suspicion that she may have been persuaded to ‘change her mind’.    On the other hand, police officers should be entitled to investigate complaints and take statements from people who can assume that, if there is to be no prosecution, as here, their witness statements will not be used for other purposes.    Further, there is a presumption against making witness orders in relation to credit or credibility issues for obvious reasons.   It would normally be oppressive and unduly time-consuming.   It would be a line of inquiry without any apparent end.   

	On balance, we do not think we should interfere with the exercise of discretion by the learned Chairman.    The fact that a witness order has been made and then set aside does not, we think, lead, inevitably, to the conclusion that a similar further application will be an abuse of the process of the Court.    Perceptions of a case may change over time.   The Industrial Tribunal was looking at the matter in the light of the remission decision of the EAT.   It seems to us that a Chairman could reasonably conclude that the evidence of DI Meehan was necessary for the doing of justice between the parties at such a review.    Further, we are not persuaded that the sole purpose behind the production of the statements is to attack the credit or credibility of witnesses.    The basis of the application for a review is that there has been a new development, some new evidence which was not reasonably available when the first decision was made, and where the interests of justice require a review.    The application was based upon a report prepared by Inspector Bullock.    The work done by DI Meehan simply follows on the police investigation [albeit by a different force] initiated by the Inspector.  The evidence and productions of DI Meehan form part of the essential facts on which the applicants rely in advancing their case for a review.    Whilst sympathetic to the position of police officer when carrying out investigations, persons from whom a witness statement is taken by the police may expect to be required to give evidence, and to have their Criminal Justice Act witness statement disclosed.    Whilst relevant, we do not consider that the fact that there is to be no prosecution, alters the fact that persons from whom the police take statements cannot demand or expect complete confidentiality.    That said, it seems to us that the Chairman will have a residual discretion to look at the documents when they are produced and to allow them to be adduced in evidence as he sees appropriate, having regard to their contents.

	Accordingly, it is our view that the learned Chairman did not err in the exercise of his discretion in refusing to set aside the subpoena.   Accordingly, the appeal will be dismissed.