When police officers commit gross misconduct – statutory framework and recent judicial reviews

Introduction

The way in which police officers are disciplined has been the subject of hot debate recently, with calls for more powers to be given to chief officers to suspend and fire errant officers. The current procedures – updated as recently as 2020 – are labyrinthine, and governed by primary and secondary legislation, and guidance issued by a number of bodies.

There are misconduct ‘meetings’ for less serious transgressions and misconduct ‘proceedings’ for more serious offences when an officer could lose their job. Each has its own rules and guidance. Officers can appeal cases to the Police Appeals Tribunals (although a chief officer cannot). Anyone involved in proceedings (including complainants) has access to judicial review to challenge decisions.

For a full summary of the law and procedures, see Chapter 5 of Police Misconduct: Legal Remedies by Stephen Cragg KC and Sam Jacobs,  and published by the Legal Action Group in 2022. https://www.lag.org.uk/shop/book-title/212180/police-misconduct--legal-remedies

This article explains the sources of legal powers and duties which govern the police misconduct system, and then looks at a flurry of recent judicial review cases, many of which feature chief officers seeking to uphold decisions to dismiss officers found guilty of misconduct.

These cases are all featured in the upcoming Legal Action article on police misconduct written by Stephen Cragg KC, Maya Sikand KC and Carolynn Gallwey, which covers the full gamut of important cases involving the police from the last six months (October 2022- March 2023) https://www.lag.org.uk/magazine.

Police misconduct procedures – statutory and guidance sources

These following statutory provisions contain the legal framework for police discipline procedures:

•   The Police (Conduct) Regulations (‘Conduct Regs’) 2020 deal with internal conduct matters brought to the attention of the police otherwise than under Police Reform Act (PRA) 2002 Sch 3 and operate alongside the Police (Complaints and Misconduct) Regulations (‘Complaints and Misconduct Regs’) 2020,  which deal with public complaints and discipline-related matters arising under PRA 2002 Sch 3. The Conduct Regs 2020 also deal with the procedures involved for misconduct hearings and meetings.

•   The Police (Performance) Regulations (‘Performance Regs’) 2020 make provisions for cases which are not subject to misconduct hearings or meetings.

•   The Police Appeals Tribunals Rules (‘PAT Rules’) 2020 set out the circumstances in which a member of a police force may appeal to the PAT and the procedures governing such an appeal.

There is also guidance on police discipline procedures:

•   Home Office Guidance (HOG) has been published entitled Conduct, efficiency and effectiveness: statutory guidance on professional standards, performance and integrity in policing.[1] Those responsible for discipline procedures must take its provisions into account when discharging their functions. The HOG says that its provisions ‘must only be departed from when there is good reason to do so which can be clearly justified’.[2] This is an important document for complainants and advisers involved in disciplinary procedures which have arisen as a result of a police complaint that has been upheld and further action taken against an officer.

•   The College of Policing has produced statutory guidance entitled Guidance on outcomes in police misconduct proceedings[3] which should be taken into account by those conducting misconduct proceedings. For those advising complainants, it is a useful resource as it underlines the seriousness with which misconduct proceedings should treat transgressions by police officers, especially where the allegations concern dishonesty, lack of integrity and discrimination. The guidance contains reference to the main case-law at the time of its publication (2022). 

•   The College of Policing has also produced a Code of ethics: a code of practice for the principles and standards of professional behaviour for the policing profession of England and Wales[4] which is ‘a supportive, positive, everyday decision-making framework and is a constant reinforcement of the values and standards that policing is proud of’ and is often referred to in misconduct proceedings as a tool for assessing the level and appropriateness of police officer behaviour.

Recent judicial review cases 2022-2023

• R (Commissioner of Police of the Metropolis) v Police Appeals Tribunal [2022] EWHC 1951 (Admin)
• R (Commissioner of Police of the Metropolis) v Police Appeals Tribunal [2022] EWHC 1950 (Admin).

Two judgments of the High Court delivered on the same day involved the Metropolitan Police commissioner challenging decisions of the Police Appeals Tribunal (PAT) to impose a final written warning on errant officers rather than to uphold decisions of the police misconduct panel that the officers should be dismissed.

The first case involved a senior officer who had been convicted in the criminal courts of possessing an indecent image of a child after her sister had sent it to her phone. The sentencing remarks in the Crown Court indicated that it was accepted that the officer had received no sexual gratification from the image, but also that her account that she had not known she was in receipt of the image had been disbelieved by the jury. The second case involved an officer who had been convicted in the magistrates’ court of assaulting her partner.

In both cases, the officers were dismissed following a police misconduct hearing, but exercised their right of appeal to the PAT and were reinstated and given final written warnings. In both cases the main ground of judicial review by the Commissioner was that the PAT had failed to adopt the structured approach to its decision-making required by law.

The structured approach was described by the court as arising from the case of Fuglers LLP, Berens and Fugler v Solicitors Regulation Authority [2014] EWHC 179 (Admin), and consisted of:

• assessing the seriousness of the misconduct;
• keeping in mind the purpose for which sanctions are imposed by the tribunal; and
• choosing the sanction that most appropriately fulfils that purpose for the seriousness of the conduct in question.

The court noted its own limited role in reviewing a decision of the PAT – a public law failing will have to be identified – and that the court should guard against the misuse of its jurisdiction by chief constables seeking to mount what are, in effect, ‘undue leniency’ appeals (para 24).

In both cases, Heather Williams J found that the PAT had followed the structured approach required by the case law and that this was apparent from the reasoning set out in its decision in each case. In particular, the PAT had ensured that it only dealt with the issue of personal mitigation once it had considered the seriousness of the conduct and did not elide the two issues. The court did not identify a public law error in either case and dismissed the applications for judicial review.

Comment: In both these cases, the arguments by the commissioner to the effect that the PAT had acted unlawfully and adopted the wrong approach were dismissed by the court and did not appear especially strong, underlining perhaps a determination by the commissioner to do all that was possible where a view had been reached that an officer should be dismissed. In both of these cases, and in others in this section, importance was placed on of the College of Policing statutory guidance (referred to above) entitled Guidance on outcomes in police misconduct proceedings (the Outcomes Guidance), which should be taken into account by those conducting misconduct proceedings.

• R (Commissioner of Police of the Metropolis) v Police Appeals Tribunal [2022] EWHC 2711 (Admin)

A different result was reached in this judicial review against the PAT brought by the commissioner. Two police officers said that a traffic light was green when they drove through a junction and hit another car. As a result, the driver of the other car was investigated for careless driving. CCTV evidence showed that the police officers had driven through a red light. A police misconduct panel concluded that the officers were dishonest and should be dismissed. The officers appealed to the PAT, which overturned the decision, deciding that the officers’ conduct did not amount to gross misconduct.

The court decided that the PAT had acted beyond its powers and had failed to establish that a finding of gross misconduct was not within the range of reasonable findings open to the panel, in a case where the outcome essentially turned upon its assessment of the credibly and reliability of the officers, whom the misconduct panel had heard give evidence.

Comment: The case shows the importance of the PAT not overstepping its functions of deciding whether the misconduct panel’s decision was reasonable or straying into the realm of interfering with first-instance fact-finding decisions.

• Commissioner of the Police of the Metropolis v A Police Conduct Panel [2022] EWHC 2857 (Admin)
• R (Chief Constable of West Midlands) v Police Misconduct Panel [2022] EWHC 3076 (Admin)

Where a chief officer disagrees with the finding of the misconduct panel, there is no appeal for the chief officer to the PAT (only the sanctioned officer can appeal) and the only remedy is judicial review of the panel’s decision.

In the West Midlands case, a police officer had fabricated a detailed example in an internal job interview as to how she had dealt with a situation where officers had made discriminatory comments about a transgender officer. When the lie was uncovered, the officer was charged with dishonesty and other breaches. It was accepted that her behaviour amounted to gross misconduct, but the panel imposed a final written warning. The court accepted that the panel had carefully explained why it had taken this course of action and had committed no public law error in reaching and explaining its conclusions.

The panel in the Metropolis case fared less well. Two officers had dishonestly fabricated entries on firearms records and their behaviour was found to amount to gross misconduct. One of the officers had been on duty at the time of the dishonesty. The panel imposed final written warnings. The court found that the panel had wrongly taken into account testimonials about the officers at the stage of deciding the seriousness of the misconduct (rather than when considering sanctions). In relation to the officer who had been on duty, the court found that the panel had failed to explain why it had taken an exceptional course in not dismissing the officer, in line with the Outcomes Guidance. The panel’s decisions were quashed and returned to be considered by a fresh panel.

Comment: Once again, the court emphasised the importance of the Outcomes Guidance, and in the Metropolis case, Mostyn J said that a non-trivial failure to follow it in a police misconduct case was highly likely to amount to a public law error. The judge also noted that the three-stage structured process in the Fuglers case (see above) ‘is now embedded in the field of police misconduct proceedings by virtue of its explicit adoption in the Outcomes Guidance’ (para 49).

• R (Humpherson) v Police Appeals Tribunal [2022] EWHC 2424 (Admin)

An officer who disagrees with the outcome of a PAT appeal can also apply for judicial review of the decision. In this case the officer was unsuccessful. Having met a woman on a dating app, and told her he was a police officer, he met her in uniform on his way to work at a petrol station and sexual activity took place in her car. Later, it was found, he uninvitedly sent the woman a picture of his erect penis. The woman complained, the misconduct panel found the officer guilty of gross misconduct and he was dismissed. The PAT upheld the decision.

Noting that it could only interfere with the PAT decision if it was unreasonable, the Court concluded that the PAT had found that the officer’s actions were ‘intentional, deliberate, targeted or planned’, that the reputation of the police had been damaged and sending the photograph was reckless. There was nothing unreasonable about those conclusions and the court would not interfere.

Comment: This case confirms that if the PAT has followed the Outcomes Guidance and fully explained its decision-making process, the court will be slow to interfere with the conclusions it has reached.

[1]     V1, February 2020, issued pursuant to Police Act 1996 ss87 and 87A, available at: www.gov.uk/government/publications/policing-professional-standards-performance-and-integrity.

[2]     HOG para 1.25.

[3]     August 2022 edition now available at:  https://www.college.police.uk/article/outcomes-police-misconduct-proceedings-updated-guidance

[4]     July 2014, available at: https://assets.college.police.uk/s3fs-public/2021-02/code_of_ethics.pdf.