A robust approach to discrimination allegations in police misconduct proceedings

R. (Chief Constable of the West Midlands) v Panel Chair (Police Misconduct Panel) [2020] EWHC 1400 (Admin) concerned the approach of a Police Misconduct Panel to allegations of racist conduct by a police officer and the decision to give him a final warning instead of a more serious sanction.  The decision comes at a time where the issue of race discrimination within the police service in the UK and abroad has come under heightened scrutiny.  The outcome indicates the need for a robust approach to be taken to assessing such allegations in police misconduct proceedings.  

The facts

The officer who was the subject of the misconduct proceedings worked in a covert surveillance unit for West Midlands Police which contained cliques and unresolved grievances.  Three BME officers left a mobile phone on in the unit office that was recording sound.  The officer was recorded as referring to the BME officers as “gangsters”, stated that people of “their” backgrounds “did not mix with other people”, and mimicked an Asian accent.

The Police Misconduct Panel found that the officer had engaged in racist conduct and that it amounted to gross misconduct.  In assessing the proper sanction, the Panel took into account the officer’s full admissions and expressions of regret, found that the conduct was an isolated occurrence and concluded that it had been “provoked” by a situation where the BME officers had left the office as a group instead of staying to help with a work backlog.   The Panel found that the racist conduct contributed to the unit’s toxic culture and had the potential to undermine public confidence in the police.  The Panel concluded that a final warning was the appropriate sanction.

The Chief Constable of West Midlands Police sought judicial review of the Panel’s decision and reasoning. 

Eady J’s decision

It was common ground that the Panel was required to follow a three-stage process in choosing an outcome:

• It had to assess the seriousness of the misconduct.
• It had to keep in mind the purpose for which sanctions were imposed by such a tribunal. 
• It had to choose the sanction which best suited the seriousness of conduct and the purpose of the sanction in question.  In assessing the seriousness of misconduct, the case law stipulated that it was necessary to consider the following factors: culpability; harm caused or potentially caused; and mitigating factors.  Of additional relevance was the College of Policing Guidance on misconduct proceedings, which stated that racial discrimination was especially serious.   The main purpose for imposing sanctions was to maintain the profession’s reputation and the public’s trust in it, rather than to punish police officers.

Eady J held that the Panel had made several legal errors:

• Although the Panel had considered the reputational harm to the police force, as well as the effect of racist conduct on the culture within the unit, it had failed to consider the evidence of actual harm suffered by the BME officers who had heard the recording and thereby discovered the racist conduct.  She rejected the Panel’s submission that the evidence of the BME officers was “overblown”, maintaining that the “statements of the officers concerned certainly paint a very troubling picture of their experiences…and I do not see that there is any proper reason for simply ignoring the evidence provided”.
• The Panel’s assessment that the racist conduct had been “provoked” was “sufficiently inexplicable as to be properly described as irrational”.
• The Panel had erred in its approach to both the “contextual mitigation” and the officers’ “personal mitigation”: it had failed to properly consider how the wider circumstances of the racist conduct impacted on the seriousness of the conduct and the purpose of the sanction; and while it was entitled to consider the officer’s admissions, expressions of regret, and steps taken to address his behaviour, it had failed to demonstrate that it had properly considered the purposes of imposing a disciplinary sanction.  These purposes were the maintenance of public confidence in, and the reputation of, the police service, the upholding of high standards in policing and the deterrence of misconduct and the protection of the public.

Eady J therefore upheld the Chief Constable’s claim.  Applying section 31(2)(a) of the Senior Courts Act 1981, she found that it was “impossible” to say that the Panel would have imposed the same sanction if it had applied the correct legal approach and therefore quashed the Panel’s decision.

Comment 

Judicial review challenges of police misconduct panels are relatively rare.  It is rarer still for such challenges to be brought by a Chief Constable on the grounds that an officer has been treated too leniently.  Nevertheless, this was one such case which, along with the High Court decision last year in R. (Chief Constable of Northumbria) v Police Appeals Tribunal [2019] 12 WLUK 78 (another challenge brought by a Chief Constable following racist comments by an officer), may indicate growing recognition by Chief Constables of the damage that racist conduct, and the perception of lenient treatment for the same, does to public confidence in the police.

Eady J’s judgment shows that the courts will carefully scrutinise the effects of racist language and behaviour by police officers.  A general assessment of the harm caused is likely to be inadequate, especially where there is evidence of actual harm to identifiable individuals. 

Accordingly, police misconduct panels will generally need to consider at least three aspects of the harm resulting from racist or other discriminatory behaviour:

• the specific or actual harm to colleague;
• the harm to the culture of the unit or department (i.e. whether it creates an environment where such comments are permitted, tolerated, or people are afraid to speak out); and
• the harm to the public’s confidence in the police. 

It is clear from Eady J’s judgment that a “structured approach” is required to assess the seriousness of the harm and the purpose of the sanction in question; and that the scope for mitigation in these cases is quite tightly defined 

Finally, this case is notable for Eady J’s finding that it would be irrational to consider that racist behaviour could be provoked, even where a fellow officer has behaved unreasonably. 

Henrietta Hill QC and Frederick Powell are members of the Actions Against the Police Team at Doughty Street Chambers.