High Court quash decision of Police Appeals Tribunal
PW faced an allegation before a Misconduct Panel (the Panel) in July 2011 that he had breached the Standards of Professional Behaviour in 10 specific respects. In summary they were as follows: engaging in inappropriate and sexist text and email exchanges with his friend RM (including sending him a picture of a female work colleague and, on a separate occasion, sending him a text message that read ‘I’m here. Just waiting for the women to come and open up. I might rape her as there’s no one else here’), using his work email address to post inappropriate comments on a website, engaging in regular contact with RM who at the time was on bail for criminal matters (sexual activity with 14 year old), accessing a Niche record which related to the RM’s case and subsequently engaging in an email exchange with another officer regarding the case, and using his position as a police officer to gain membership of an angling club.
PW pleaded guilty to all charges bar two; it was submitted on his behalf that although the one text message to RM referred to above was inappropriate, the other messages did not conflict with his role as police officer. The female colleague had consented to the photograph and there was no force policy in place regarding contact with those on bail. It was conceded however, on behalf of PW, that the 8 allegations that had been admitted were sufficiently serious to constitute gross misconduct.
The Panel found all charges proved and concluded that the appropriate sanction was dismissal from the Police Service with immediate effect and without notice.
Police Appeals Tribunal
PW appealed that decision to the Police Appeals Tribunal (PAT) pursuant to Rule 4(4)(a) of the Police Appeal Tribunal Rules 2008 (the rules), inviting them to find that the findings were ‘unreasonable’.
The PAT found that the Panel had not been entitled to find proved the allegation relating to contact on bail as there was no adopted force policy at the time. They rejected the original Panel’s view that it was ‘part of a pattern of behaviour which may be considered discreditable conduct’. Further they found that the Panel were wrong to find the allegation pertaining to the sending of the photograph proved because there was evidence that said colleague was not offended by the conduct and that the Panel were wrong to doubt the credibility of PW’s account in relation to this incident.
They found that the Panel had been wrong not to admit character references when considering whether allegations had been proved. The Panel had said that they were only relevant at sanction stage. The PAT found that this was an error; the character references were plainly relevant to the issue of RW’s credibility.
It was said that with regard to the accessing of the Niche intelligence records, RW did not publish the information which he obtained to anyone outside of the Police Service and that dismissal for these charges was not proportionate and ‘wrong in principle’.
With reference to the email and text exchanges, the PAT held that the Panel had failed to give adequate weight to mitigation, namely that there was no evidence to suggest the public had become aware of the exchange and that PW had shown genuine remorse.
In summary the PAT concluded that no single allegation, of itself, merited dismissal, nor did the allegations viewed cumulatively. It expressed doubt about whether some of the allegations amounted to gross misconduct. It also stated that it wanted to ‘adopt a uniformity of approach across England and Wales Police Forces to these types of misconduct’.
It was found that the Panel should not have imposed the sanction of dismissal without notice, rather it should have issued a final written warning in respect of seven of the charges which he had admitted and a written warning in respect of the eighth. The PAT duly ordered RW’s reinstatement as a police constable.
The Chief Constable appealed that decision, seeking to impugn each of the decisions made by the PAT. It was claimed that the PAT acted unlawfully when it concluded that the Panel should not have imposed the sanction of dismissal.
Mr Justice Wyn Williams discussed recent decisions of the Court in relation to the meaning of the word ‘unreasonable’ for the purposes of the rules. The approach adopted was that which was outlined by Moses LJ and Hinkinbottom J in R (Chief Constable of Durham) v Police Appeals Tribunal  EWHC 2733; the PAT is only permitted to substitute its own views once it has concluded either that the approach was unreasonable, or that the conclusions of fact were unreasonable. The test imposed by the rules is not the Wednesbury test but is something less.
The Court agreed that the Panel erred in its approach to good character evidence; such evidence was relevant not just to the issue of sanction but also to the issue of RW’s credibility. The PAT was therefore correct to conclude that the Panel’s findings in relation to their disbelief of RW’s account were unreasonable. Similarly the Panel were unreasonable to find the allegation regarding contact during bail proved, in light of the absence of any policy. The charge was framed as to rely on the policy and no such policy existed.
However, the Court disagreed with the PAT in their decision on whether dismissal without notice was unreasonable. In the judgment of the Court ‘the Panel was plainly entitled to reach the conclusion that the course of gross misconduct admitted by the Interested Party justified dismissal’.
The PAT were not entitled to conclude that the dismissal was ‘unreasonably harsh’ and disproportionate, for two reasons.
- In relation to many of the allegations which RW admitted, the PAT substituted its own view of the relevant facts for that of the Panel rather than making an assessment about whether the findings of the Panel were reasonable. It appeared that ‘in respect of each allegation the Defendant appears to have placed the admitted conduct in its most favourable light – as opposed to asking itself whether the Panel’s assessment of the allegation was unreasonable’.
- It was held that the PAT seems to have ignored the principle, now well established, that one of the primary purposes of professional misconduct proceedings is to ensure the preservation of public confidence in the profession in question’. This consideration is neither mentioned in the PAT determination, nor is there anything in the determination which suggests that it took this into account. Indeed ‘the clear tenor of the decision suggests that it did not’.
Lastly, the Court stated that it was troubled by the comment by the PAT, that part of its function was to ensure a ‘consistency of approach to the sanctions imposed on police officers for misconduct’. Whilst not objectionable in principle, given the risks involved in such a course, ‘more detail may be necessary if consistency is to found a justification for allowing an appeal against the findings of a Misconduct panel’.
This case demonstrates the pitfalls an appeal tribunal can fall into when they simply transpose their views of a case for those of the panel. Further, the Court provides clarity regarding the test for ‘unreasonableness’ in the context of Police Appeal Tribunal Rules 2008.