In R (Darren Williams) v Police Appeals Tribunal [2016] EWHC 2708 (QB), Mr Justice Holroyde was asked to consider whether ‘the Salter principle’ – that personal mitigation carries diminished weight in cases of police or professional misconduct – applies to all breaches of professional standards, not just honesty and integrity. He found that it did – but that all mitigation must properly be weighed and considered.

Mr Williams was a senior officer. When dismissed, he had attained the rank of Detective Chief Superintendent and had been appointed Borough Commander of Merton, with almost 30 years’ service. He was described as displaying a rare combination of ability and effectiveness both in the police skills of detecting crime and in the softer skills of fostering good relationships between the police service and the community. However, in April 2015, his service came to an end when he admitted five incidents of misconduct, described as highly inappropriate behaviour towards women, which were found to be gross misconduct. Despite extensive mitigation evidence, the disciplinary panel concluded that the appropriate sanction was that he be dismissed without notice.

Mr Williams’ appeal to the Police Appeals Tribunal was dismissed. Thereafter, Mr Williams sought to challenge the sanction by way of judicial review. Mr Williams’ principal argument was that the PAT should not have applied the Salter principle in the context of misconduct which did not involve dishonesty. Further, it was that the decision was not properly reasoned and was disproportionate.

In Bolton v Law Society [1994] 1 WLR 512, 518A-519E, the Court of Appeal set out how the Administrative Court should approach an appeal against a penalty imposed by the solicitors' professional disciplinary body. Insofar as they are relevant to Williams, the principles derived from Bolton are that, most fundamentally, sanctions imposed on defaulting solicitors are intended to maintain public confidence in the solicitors' profession and its reputation. Because the reason for imposing sanctions is not primarily punitive, personal mitigation is likely to be of less effect.

In R (Chief Constable of Dorset) v Police Appeals Tribunal ex p Salter [2011] EWHC 3366 (Admin), Burnett J held that the strict approach identified in Bolton to solicitors and barristers should apply with equal force to police officers.

In Williams, Holroyde J concluded that the Salter principle should not be confined to cases of dishonesty or lack of integrity. He came to this conclusion for three key reasons. First, he found that none of the cases cited contained any statement expressly requiring the application of the Salter principle to be limited in that way. In fact, he considered that the terms in which the Salter principle had been expressed, tended to support the view that the Salter principle applies to all forms of gross misconduct: see paragraph 63.

Secondly, the two reasons why personal mitigation can carry only limited weight in cases involving dishonesty or lack of integrity do not apply only to those sorts of cases:

(i) The purpose of the sanction is not punishment. Rather the purpose is to maintain public confidence in and respect for the police service or the profession concerned. Public confidence in or respect for the police service may be seriously harmed by many forms of misconduct, not all of which involve dishonesty or lack of integrity. That point is demonstrated by the instant case, where Mr Williams was found to have breached Standards relating to “discreditable conduct”.

(ii) A defaulting police officer or professional person will usually be able to adduce evidence of good character and to point to very severe consequences if dismissed or excluded from his or her profession: see paragraph 64.

Finally, Holroyde J considered that limiting the Salter principle would lead to surprising and unsatisfactory results: see paragraph 65. The Judge gave the example of two police officers investigating sexual abuse. One officer has been rude, bullying and dismissive, and has caused great distress to the complainants. The other has dealt sensitively and efficiently with the complainants, but has falsified records in order to make a dishonest claim for overtime payment. If the Salter principle were limited to cases of dishonesty or lack of integrity, the disciplinary panel would be required to give full weight to the personal mitigation in the first case but only limited weight in the second.

Holroyde J emphasised the importance of maintaining public confidence in and respect for the police service. This, he said, is constant. What may vary will be the extent to which the particular gross misconduct threatens the preservation of such confidence and respect. The more the gross misconduct threatens these values, the less weight can be given to personal mitigation. Personal mitigation must always be taken into account. However, where the gross misconduct threatens the maintenance of public confidence and respect in the police, the weight which can be given to personal mitigation will be less than would be the case if there were no such threat: see paragraphs 66 and 67.

Dismissal is, therefore, not a foregone conclusion where gross misconduct is proved. However, dismissal will almost always be necessary where the facts show dishonesty and will often be necessary where the misconduct involves lack of integrity. Where the facts show that one of the other Standards has been breached, the appropriate outcome will depend on an assessment of all the circumstances, with proper emphasis being given to the strong public interest in the maintenance of respect and confidence in the police: see paragraph 67.

It is clear from this case that in determining what weight to give to mitigation, the disciplinary panel should have foremost in its mind, the extent to which the gross misconduct has threatened public confidence in and respect for the police service. In one respect, it might be thought that officers have no incentive to make admissions, insofar as this is mitigation that would have little weight. This will undoubtedly be true in some cases; there will be instances where the alleged behaviour is so serious that dismissal will always follow whether or not an officer admits to the conduct. However, this will not always be so.

Where an officer makes full admissions to their conduct, the fact of their recognising their default and behaviour may be relevant to the extent to which respect for the police service can be maintained by that officer’s retention. In Williams, admissions were made to misconduct only rather than gross misconduct and only at the last possible moment. It was not the situation that Mr Williams had made full admissions at the outset, thereby demonstrating his recognition at the gravity of his actions. Whether that would have made any difference here is, perhaps, a moot point. But the clear statement of Holdoye J that all mitigation must be considered does give some assistance to officers – beyond what might be thought to be the headline of this case.

Also of interest, the judge had little interest in the point of proportionality, dismissing in fairly short terms the argument relating to Mr Williams’ lost of pension – a substantial sum in the hundreds of thousands of points. It is arguable that this point required greater attention from the judge. The question of whether article 6 applies to these hearings is, as yet, unresolved. If it does, the issue of proportionality unquestionably requires more attention than it received here. Even if it does not, it is properly arguable that a panel should consider whether any decision is proportionate to the circumstances of the case.