GUIDANCE PROVIDED ON THE PROVISION OF SKELETON ARGUMENTS TO THE PRESS/PUBLIC.

In R(Metropolitan Police Commissioner) v Police Misconduct Panel [2025] EWHC 1462 (Admin) 17 June 2025 (see https://www.bailii.org/ew/cases/EWHC/Admin/2025/1462.pdf for full judgment), the High Court provided guidance on the approach to be taken when skeleton arguments are requested by the media.

The guidance provided was as follows:

4. Two members of the press attended the High Court hearing. Each requested the skeleton arguments. Experiencing a delay, they rightly raised this with the Court. I made an unopposed direction for immediate provision of the skeletons. Counsel flagged up one paragraph in one skeleton argument, whose reporting could have fallen foul of the reporting restrictions. I have been invited by the two members of the press – Mr Ayling and Ms Osborne-Crowley – to record the position in law. They are supported by Ms White, Ms Graham and their instructing solicitors. A helpful recent discussion is in Moss v Upper Tribunal [2024] EWCA Civ 1414 [2024] 4 WLR 99 at §§27-29.

5. Skeleton arguments relied on at a public hearing should ordinarily be made available to the press, promptly on request at the hearing, in paper or electronically. This promotes 2 R (MPC) v Police Misconduct Panel FORDHAM J Approved Judgment open justice, as to both public scrutiny and intelligibility (see Dring v Cape Intermediate Holdings Ltd [2019] UKSC 38 [2020] AC 629 at §§42-43). It promotes contemporaneous reporting and public confidence. Often, it is entirely appropriate for skeleton arguments also to be available to members of the public who wish to understand the hearing. Any person wanting a skeleton argument should identify how this will advance open justice, a threshold often easily cleared by reference to understanding the case. The question is then whether there are countervailing factors which justify withholding the skeleton or part of it. It follows from all of this that advocates should come to a public hearing, prepared promptly to provide their skeleton argument, having thought ahead about any countervailing factor, and bringing any contingently-redacted version.

The judge did not set out what the 'countervailing factors' might be. It is not easy to envisage the same, as in most cases, a skeleton argument is essentially an aide memoir to the oral submissions that will be made at the relevant public hearing.

The substantive case concerned the decision of the Police Misconduct Panel, who determined that there was no case to answer in relation to sexual misconduct allegations.

The Court was considering the 'Gailbraith' test that the Panel applied, which is essentially whether the evidence is so weak that it would be unreasonable to uphold the misconduct charges. The challenge was by way of judicial review, i.e. whether the Panel's decision was so unreasonable that no reasonable Panel could have made it.

Thus the Court was not substituting its own application of the Gailbraith test for the Panels'. The result of the case was that part of the decision was upheld and part of it was quashed and remitted to a differently constituted Panel.