Appeal No. UKEAT/0884/03/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 17 May 2004

Before
HIS HONOUR JUDGE WILKIE QC
MR R LYONS
MR B M WARMAN

MR L R JOHNSON	APPELLANT

CHIEF CONSTABLE OF NORTHAMPTONSHIRE POLICE	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MRS P M DUFFAY
(Consultant)
The Employment Law Advice Centre Limited
22 St Edmunds Road
Northampton NN1 5EH	
For the Respondent	MR PHILLIP MEAD
(of Counsel)
Instructed by:
Messrs Toller Hales & Collcutt Solicitors
2 Castilian Street
Northampton NN1 1JX	

SUMMARY

Race Discrimination

Tribunal procedure.  Alleged refusal to permit witnesses to give live evidence.

HIS HONOUR JUDGE WILKIE QC

1.	In this appeal by Mr Johnson against a decision of the Employment Tribunal sitting at Bedford in the Tribunal case No 1202180/1999 a point has arisen in the course of the appeal which may be of considerable significance but upon which we cannot proceed to a final conclusion without obtaining the observations of the Employment Tribunal itself.

2.	The point is contained within the issues of appeal at numbered paragraphs 20, 27, 28 and 29.  It concerns a matter contained in paragraph 40 in the Tribunal decision.  For the sake of clarity, in that decision paragraph 40 immediately follows numbered paragraph 30 and we are assuming that that is simply a misnumbering.

3.	We have the benefit of the observations of Mrs Duffay who represented Mr Johnson before the Tribunal.  The Respondents are represented today by Mr Mead.  At the Tribunal they were represented by Mr Sutton and though Mr Mead has been extremely helpful in all respects today he has (and we do not blame him for this) been simply unable to assist in respect of this matter.

4.	The point essentially is this.  Mrs Duffay had apparently sought a witness order securing the attendance of a number of witnesses who were police officers.  It may be up to three – certainly she thinks it was more than one – but beyond that, and beyond the fact that one of the officers may well have been a D.C. Brett, she was unable to assist us today on their identity.

5.	That application was made by a letter dated 3 July 2001 and by response dated the same date the Chairman of the Tribunals, Mr Moore, granted the application for the witness orders.  It would be extremely helpful for this Tribunal were the application letter of Mrs Duffay to be made available, either by the Tribunal itself or by one or other of the parties.

6.	Mrs Duffay therefore secured the attendance of those, up to three, persons.  She has told us that they had provided written statements, apparently in the form either of police witness statements or possibly a record of an interview, which were prepared for the purposes of internal police investigations into certain of the matters of complaint raised by Mr Johnson.  She particularly wished those witnesses to attend and to give evidence on oath because she says that their accounts broadly supported those of her client and were contradictory to certain accounts by other police officers made in the course of that same investigation which were against the interests of Mr Johnson.

7.	She says that when the time came for her to call the first of these 3 witnesses the Tribunal Chairman refused to allow her to do so in these circumstances.  She had been informed by the 3 that they were prepared to say no more and no less than they had already said in their witness statements to the internal investigation.  Mrs Duffay apparently – and very properly – informed the Chairman to that effect.  What she says the Chairman then responded is as follows:

“No Mrs Duffay I will not give their statements any more or less credence than the others in the bundle.”

8.	The reference to ‘others in the bundle’ was a reference to witness statements given in the same way to the internal police investigation by P.S. Blatchley, D.C. Roberts, D.S. Fell, Mr Western, Mr Whitman, Mr Abraham, D.C. Elegy and, apparently, P.C. Imran Shuja.  Mrs Duffay has said that another police officer, a P.C. Shija, did attend the Tribunal to give evidence on behalf of the Respondents to this appeal, but so far as she was aware, none of the others attended the hearing and certainly none of them were called to give evidence by the Respondents.

9.	The position that she sought to achieve for her client was having the evidence of the three officers who were broadly supportive of her client’s case given on oath and subject possibly to cross-examination in order to test their credibility against the contradictory statements given by other police officers in the course of that investigation.  If that had occurred, she would then have been able to argue that evidence given on oath to the Tribunal should be given more weight than evidence not supplied for the purposes of the Tribunal hearing, not given orally and not given on oath or subjected to cross-examination.

10.	She says that the refusal by the Chairman to allow her to have that advantage, coupled with his explicit statement that he would not give them any more weight than he would give to statements given to the investigation, in the circumstances, constitutes a clear procedural unfairness, which, quite apart from any other point in this appeal, would result in the appeal succeeding.

11.	She goes somewhat further than that because it certainly is the case that in paragraph 40 of the decision the Tribunal in coming to certain conclusions about the bona fides of the opinion of Sergeant Davies about the qualities of Mr Johnson and his work, as well as Sergeant Davies’ general attitude as a supervising officer, made specific reference to having had the benefit of evidence from these named individuals who had given evidence to the internal investigation but who were not called as witnesses by the Respondent.

12.	As we have said, Mrs Duffay has done the best that she can to recollect precisely what happened in the course of a hearing which took place back in July 2001 and Mr Mead who was not there has not been able to assist us.

13.	Before we can come to any final conclusion on this potentially significant issue, it would be most helpful for us to have the benefit of the comments of the Tribunal and in particular the Tribunal Chairman on the accuracy or otherwise of Mrs Duffay’s recollection and any explanation that he might have for any decision that he might have made in respect of the giving of live evidence by those witnesses.

14.	We appreciate that the Tribunal has already been requested to provide, and has provided, comments on certain paragraphs within the Notice of Appeal which raised contentions of bias.  It is unfortunate, that they were not asked about this matter, because it was not at that stage obvious that this type of further elucidation was required.  Nonetheless it does go to a potentially significant issue in this appeal and we would be greatly assisted were the Tribunal able to provide the assistance we seek.

15.	Therefore, we request the Tribunal Chairman to provide his comments on this issue and the further hearing of this appeal will be adjourned pending the receipt of those comments.  It seems to us to be sensible, and both Mrs Duffay and Mr Mead have agreed, that in order to enable us to come to a final decision on this particular point it would be singularly helpful if we had available in the appeal bundle the various witness statements or recorded interviews which those witnesses who were not called by the Respondents, whose names we have already mentioned, and the witnesses in respect of whom witness orders were made on the application of Mrs Duffay, so that we can see precisely what was the evidence that the 3, or so, would have given live on oath and the countervailing material upon which the Tribunal placed some weight in paragraph 40 of their decision.

16.	It follows that this appeal will recommence before the same constituted panel as soon as may be after the comments of the Employment Tribunal Chairman have been obtained.

17.	We would be assisted by any further Skeleton Argument that either side wishes to put in.