Another month, another decision on the meaning of honesty and integrity. Given that the Standard of ‘Honesty and Integrity’ is considered primus inter pares in relation to the other Standards, in that a breach of it puts an officer at serious risk of dismissal, what amounts to this is important – for officers and presenting authorities.

There has been a number of cases addressing this over the past couple of years. They have focused on the meaning of integrity as opposed to honesty – whether integrity is something different to honesty and, if so, whether it is measured subjectively or objectively. This post will suggest that integrity is something different to dishonesty and is measured objectively rather than subjectively.

Honesty and integrity are separate and different terms in the Police (Conduct) Regulations 2012. The Honesty and Integrity Standard is defined as being:

Police officers are honest, act with integrity and do not compromise or abuse their position.

The forward to the first edition of the Code of Ethics lists integrity as a separate principle to honesty. This is repeated at chapter 2 “Policing Principles”, page 3, which draws specific distinction between these concepts:

(i) Honesty / You are truthful and trustworthy
(ii) Integrity / You always do the right thing

The Code of Ethics provides further illustrations of the distinction between these two terms in the specific section on honesty and integrity:

Examples of meeting this standard are when you:
• are sincere and truthful
• show courage in doing what you believe to be right
• ensure your decisions are not influenced by improper considerations of personal gain
• do not knowingly make false, misleading or inaccurate oral or written statements in any professional context
• neither solicit nor accept the offer of any gift, gratuity or hospitality that could compromise your impartiality
• do not use your position to inappropriately coerce any person or to settle personal grievances.

The references to being truthful and doing the right thing and not using one’s position to settle personal grievances refer to trustworthiness and public confidence. They are, in your writer’s opinion, qualitatively different to dishonesty, incorporating the making of false, misleading or inaccurate statements in any professional context.

Prior to the Code of Ethics, the Home Office Guidance 2012 similarly adverted to honesty and integrity as separate concepts:

1.13 Police officers act with integrity and are open and truthful in their dealings with the public and their colleagues, so that confidence in the police service is secured and maintained.

There are other Standards which use the word “and” to link separately required concepts. They include “authority, respect and courtesy”, “equality and diversity”, “orders and instructions”, “duties and responsibilities”. There is no requirement that each element be breached. Rather, a failure to meet an element of the Standard thereby fails to meet the entirety of what is required.

Alternatively, the word “and” may be read as disjunctive, similar to the requirement in the Licensing Act 2003, where an objective of preventing “crime and disorder” was properly held to admit a breach of either element: R (Blackpool Council) v Howitt [2008] EWHC 3300; [2009] 4 All ER 154 at [17]-[19].

The oft-cited case of Bolton v Law Society [1993] EWCA Civ 32; [1994] WLR 512 recognised a difference between honesty and integrity. A solicitor disbursed monies prior to the conclusion of a conveyancing transaction, which never completed. He failed to report the matter but when later questioned about it, accepted his actions without prevarication [515C]. The Solicitors Disciplinary Tribunal found the solicitor’s behaviour to be naïve and foolish but did not represent a deliberate course of dishonest conduct [5156B]. Nevertheless, he had failed to act with scrupulous propriety [516E]. Sir Thomas Bingham MR recognised a distinction between dishonesty, as one factor, and a failure to act with integrity, probity and trustworthiness as another, at [518B]:

Any solicitor who is shown to have discharged his professional duties with anything less than complete integrity, probity and trustworthiness must expect severe sanctions… The most serious [lapses] involves proven dishonesty… If a solicitor is not shown to have acted dishonestly but is shown to have fallen below the required standards of integrity, probity and trustworthiness, his lapse is less serious but it remains very serious indeed in a member of a profession whose reputation depends upon trust.

More recently, in Solicitors Regulation Authority v Chan [2015] EWHC 2659 (Admin) at [48], a Divisional Court comprising a Lord Justice of Appeal and puisne judge, Davis LJ held that it was unhelpful to attempt a judicial definition of the word integrity, stating that it was capable of being identified by reference to the facts of individual cases:

As to want of “integrity”, there have been a number of decisions commenting on the import of this word as used in various regulations. In my view, it serves no purpose to expatiate on its meaning. Want of integrity is capable of being identified as present or not, as the case may be, by an informed tribunal or court by reference to the facts of a particular case.

The words of Davis LJ were cited with approval in another Divisional Court, again comprising a Lord Justice of Appeal and puisne judge, in Scott v Solicitors Regulation Authority [2016] EWHC 1256 at [40]-[41], thereby admitting the difference between dishonesty and integrity. The court went further and stated that there was an “obvious distinction” between the two, at [48] (Sharp LJ): [emphasis added]

The fact that the appellant was, in the event, found not to have been dishonest, plainly did not mean that it was not open to the SDT to conclude that he lacked integrity. There is an obvious distinction between the two concepts, as Mr Williams QC submits, and Mr Kendal did not argue to the contrary. A person can lack integrity without being dishonest. One example which applied here, was by being reckless as to the use of various client accounts. As the SDT found, the appellant had not enquired as to the reasons for the improper payments and transfers out of client account; he had not cared at all about what he was instructed to authorise, and he had not shown any steady adherence to any kind of ethical code. Accordingly it was not so much a case of what the appellant thought, but that he neither thought nor cared about what was required by the rules governing his profession, of which he was aware.

In that passage, Sharp LJ explained that the test for finding a lack of integrity was objective – it being not so much what the appellant thought but that he neither thought not cared about what was required. Holroyde J gave a concurring judgment stating, at [59], that a person could be acquitted of subjective dishonesty whilst being guilty of a lack of integrity, citing with approval that stated in Hoodless and Blackwell v FSA [2003] UKFTT FSM007 that a person lacked integrity if “unable to appreciate the distinction between what is honest or dishonesty by ordinary standards”. He continued:

To take a hypothetical example, suppose a solicitor had repeatedly taken monies from the client account, used them for his own purposes, and from time to time made good the deficiency when he found it convenient to do so. Suppose that when challenged by his professional body, his response was that he knew he was not supposed to treat the client account in that way, but did not think that it really mattered as long as the monies were repaid, and did not think that anyone would regard him as dishonest. He might on that basis be acquitted of subjective dishonesty; but it surely could not be suggested that he had not shown a lack of integrity.

In Solicitors Regulation Authority v Wingate and Evans [2016] EWHC 3455, Holman J sat alone, observing its being unsatisfactory that he was considering an appeal as a single judge rather than as part of a two-judge Divisional Court. He properly followed the decisions of both Chan and Scott, agreeing both that there was a distinction between the two concepts and that it was unnecessary to provide a rigid, judicial definition of integrity. In referring at [47] to Iqbal v Solicitors Regulation Authority [2012] EWHC 3251, Holman J explained a lack of integrity as including, but not being limited to, a failure to adhere to trustworthiness. Whereas dishonesty was subjective, a lack of integrity was objective, at [37]:

While all dishonesty involves a lack of integrity, not all lack of integrity involves dishonesty. The law requires a subjective element to any finding or conclusion of dishonesty, but the question whether a person lacked integrity is objective.

In his subsequent decision in the same cause, reported at [2017] EWHC 505, Holman J observed that whereas a finding of dishonesty would have made striking-off a “virtual inevitability” at [17] and a “virtually automatic sanction” at [18], lack of integrity did not so result, despite its nevertheless being serious. The reason for Holman J’s diffidence in remitting a decision to strike-off a solicitor in respect of a failure to act with integrity as opposed to honesty was the possibility of suspension from practice at [18]. No such sanction exists for police officers – a matter noted by Holroyde J in R (Williams) v Police Appeals Tribunal [2016] EWHC 2708 (Admin); [2017] ICR 235 at [8].

It was reaffirmed clearly by Morris J in Newell-Austin v Solicitors Regulatory Authority [2017] EWHC 411, drawing upon the cases stated above, that whereas dishonesty involved subjectivity, the test for lack of integrity was an objective test alone. At [48]:

Thirdly, it is clear that, by contrast with the test of dishonesty, the test of “lack of integrity” is an objective test alone. A distinction must be drawn between subjective knowledge of the facts of the underlying conduct (which are alleged to give rise to the lack of integrity), and subjective knowledge of the fact that the conduct would be regarded by reasonable people as lacking in integrity. There is no requirement that a solicitor must “subjectively” realise that his conduct lacks integrity.

The law stood satisfactorily before, arguably, being upended by Mostyn J, sitting alone, in Malins v Solicitors Regulatory Authority [2017] EWHC 835 (Admin). Referring at [27] to Lang J’s difficulty in Bar Standards Board v Howd [2017] EWHC 210; [2017] 4 WLR 54, to explain the difference between honesty and integrity, he expressed respectful disagreement with Holman J in Wingate and held that the dictionary definition stated by Sharp LJ in Scott meant that want of dishonesty and integrity were the same thing and had to be proved to the same standard. At [30]:

In my judgment, the approval by Sharp LJ in Scott of the Hoodless definition means that the legal and dictionary definitions of the words honesty and integrity are aligned and that they are synonyms. It means that dishonesty and integrity are antonyms. This would explain why the SRA principles do not additionally require a solicitor to act with honesty. This is because it is the same thing as integrity. Want of integrity and dishonesty are not only the same thing but must be proved to the same standard, in my judgment.

The first issue with the reasoning of Mostyn J is that the decision of Lang J was tied closely to the particular professional regulations to which she was referring. At [44]-[45], Lang J held that the word “integrity” in the Bar Code of Conduct ‘CD 3’ took its colour from the term “honesty” and connoted probity and adherence to ethical standards, not inappropriate and offensive social and sexual behaviour. In doing so, however, she observed that the rules explaining CD 3 referred exclusively to acts in the course of professional practice – see [38]. Those rules are qualitatively different to the illustrations in the Code of Ethics.

It is, perhaps, of some note that the charges had accused the solicitor of dishonesty in the deployment of the documents but not their creation, which was a lack of integrity. Further, Mostyn J made particular reference in his judgment at [31] to the inability of counsel to provide an example of conduct lacking in integrity which was not dishonest. This is, respectfully in the view your writer, not entirely fair. Previous judges had said that integrity did not need to be defined and, perhaps, eluded precise definition. Rather, one recognises when one sees it. In those circumstances, to note that counsel could not create a hypothetical example of an act of integrity which was not dishonest is perhaps not of great value.

The main concern, however, is that Mostyn J’s reasoning would be unhelpful and unrealistic. A police officer may misuse an automatic number plate recognition system to track a person to whom they are sexually attracted. Alternatively, they may misuse the system to track a person who they consider is abusing a person to whom they are attracted, for a personal purpose forming no part of their extant policing duties. They may do so openly, without seeking to hide their actions (which may not necessarily be recorded) and make full admissions on being questioned. Similarly, the improper disclosure of police information, taking advantage of a vulnerable victim of crime, informant or CHIS all involve a lack of integrity where actual dishonesty may be absent. Given the office of constable, a failure to uphold the law and/or acceptable standards, for instance by circulating the most extreme, degrading pornographic images, may similarly amount a lack of integrity. Even if lacking dishonesty, the misuse of police systems or a lack of trustworthiness may properly amount to a lack of integrity.

It is the view of the writer that the decision of Mostyn J should, perhaps, be confined to its facts. It departs not merely from a single judgment of another single judge but a line of authority from two Divisional Courts and other single judges in the High Court. If applied to the Police (Conduct) Regulations 2012, it would unhelpfully foreclose any distinction between two different concepts, expressed in different terms in the regulations, the Code of Ethics and the previous Home Office Guidance.

One note of caution, however. The standard of 'Honesty and Integrity' is, as I said above, first amongst equals. It should describe those matters that really are the most serious. In the same way that article 8 of the European Convention is said, whether fairly or unfairly, to be a catch-all for a wide description of actions, the standard of 'Discreditable Conduct' is seen as a catch-all description for most misconduct, often in addition to other stated standards. It is important that the integrity element of the 'Honesty and Integrity' standard is not treated flexibly. Those who present / prosecute misconduct cases would be well advised to consider charging this standard only where they consider that it is really the best fit for the conduct alleged. It should not used if merely an adjunct, a different way of stating discreditable conduct. 

For what it is worth, therefore, your writer’s view is that the only sensible interpretation of the Police (Conduct) Regulations 2012 is that a failure to act with integrity, considered objectively, may result in a failure to meet the Standard of ‘Honesty and Integrity’ and amount to a breach of it – even where the act is not dishonest. But due account should be paid to the seriousness that that charge properly represents. 

 

-- Postscript. I have just seen the decision of McGowan J in Chief Constable of Thames Valley Police v (1) Police Misconduct Panel (2) Mark White [2017] EWHC 923 (Admin). The decision is important, but not unexpected, insofar as it states that a Chief Constable may bring a judicial review against a decision of a police misconduct hearing panel - an issue upon which I will comment shortly. However, there is also a part of the judgment that has some import here - in that McGowan J accepted without difficulty the proposition that there is a difference between honesty and integrity, a breach of the latter being potentially less serious than a breach of the former. Relying on Bolton (to which Mostyn J also referred), she stated at paragraphs [15]-[16]:

... A lapse of integrity is very serious but can fall short of the quality of a lapse of honesty. Integrity in this context is not used in the sense of freedom from moral corruption rather in the sense of a failing to act in the right way, not behaving as the totally correct police officer would, in some way falling short of the whole. It is explained for police officers as "doing the right thing".

Accordingly, it follows that not every failure to act with integrity is inevitably so serious as to be gross. That is a matter for the exercise of judgment by a panel with the experience and expertise in such matters to determine. PC White clearly did not do the "right thing" in disposing of the card in confidential waste rather than arranging its safe return, to that extent he did not act as the "whole" police officer would. Whilst that conduct can be characterised as very serious it is not irrational for the panel seized of all the facts not to have found that to be gross misconduct.

This may be of some use to defence practitioners, to help make good a submission that a breach of integrity rather than dishonesty could properly be considered to be misconduct simpliciter or, if not, at least permitting a sanction other than dismissal without notice. Note also at what I said above about the due seriousness that the charge of 'Honesty and Integrity' should represent. If acts are overcharged, there will be more decisions that agree with McGowan J's statement that "not every failure to act with integrity is inevitably so serious as to be gross".