The Chief Constable of West Midlands Police has successfully challenged a misconduct hearing panel’s decision to impose a Final Written Warning (FWW), after an officer made racist remarks about a fellow officer: R (Chief Constable of West Midlands Police) v Panel Chair, Police Misconduct Panel [2020] EWHC 1400 (Admin). The decision confirms that the High Court will be prepared to intervene where panels fail to follow the College of Policing’s Guidance on Outcomes, and that misconduct involving discrimination will be treated especially seriously.
Facts
Officer A, a member of a covert surveillance unit, received the FWW after a Panel found that he had made racist remarks during a conversation with Officer B about another member of the unit, Officer E, which Officer E had covertly recorded.
The Panel found that the unit had been badly managed and had a “culture of cliques”, and that it appeared that three officers from black and minority ethnic (“BAME”) backgrounds (Officers C, E and F) had started an “exclusive clique”. Officers C, E and F were, in turn, unhappy about the way they had been treated as regards allocation of work, on-call duties, training opportunities and overtime. Against this background of “unresolved grievances”, Officer E had left his mobile phone recording when he left the unit with Officers C and F.
The transcript revealed that Officers A and B began talking about them. Officer A could be heard: [paras. 11-18]
- Describing Officers C, E and F as “gangsters”;
- In response to the officers leaving together and Officer B saying: “Doesn’t take three of them”, saying “It doesn’t mate, but that will become common fucking practice now mate. It’ll become common practice now because, mate, take this as a racist fucking comment if you like I don’t care mate. When they start moving in streets they all live together. They don’t want fucking amalgamating, mix with other people. When they work together, they don’t want to work, mix. Do you know what I mean?”, which prompted Officer B’s agreement. It was common ground that “they” referred to people of Asian ethnicity;
- Saying: “They’ll form their own clan. The pair did it straight away. Now they’ll do it. When the next one comes in mate they’ll do it. Yeh, yeh. Honestly mate.” It was accepted that “the next one” referred to a further BAME officer;
- Complaining that Officers C, E and F did not always speak English in the office and proceeding to impersonate an Asian speaker.
The Panel found that Officer A had made racially inappropriate and offensive comments and contributed to an environment in which such comments were acceptable, thereby breaching the Standards of Equality & Diversity, Authority, Respect & Courtesy, and Discreditable Conduct. Gross misconduct was found proven [paras. 19-21].
Panel’s decision on outcome
In separately considering the appropriate outcome to impose, the Panel observed that:
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The recording had contained a number of conversations about “work gripes”, largely spoken by Officers A and B, triggered by the decision of Officers C, E and F to go out together as a 3 person team to do a job which appeared to require only two people, when there was a backlog of urgent work to be done in the office;
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Officer A had been “venting”, in stressful circumstances;
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Officer A had applied racial stereotypes about his colleagues and made inappropriate and racist comments. He had, however, made full admissions and expressed regret;
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Although Officer A had not intended to cause offence, having believed he was speaking in private, his comments had been likely to prolong the “toxic culture” within the unit and had the potential to seriously undermine public confidence;
- As for personal mitigation, Officer A had since voluntarily undertaken Equality & Diversity training and the Panel was satisfied that he was “not a racist”, but instead had said things in anger which he did not mean [paras. 22-24].
Expressly referencing the structure of Culpability, Harm, Aggravating and Mitigating Factors outlined in the College of Policing Guidance on Outcomes (“the Guidance”), the Panel concluded that: [paras. 26-28]
1. Officer A’s culpability had been high, in that “probably nothing [was] more important to West Midlands Police than its reputation for fairness and diversity”;
2. There had been a serious risk of harm to the reputation of the police service;
3. However, the misconduct had not been premeditated and had been limited to a single episode of relatively short duration, in circumstances where the officer had been stressed. The Panel added that the misconduct “was provoked by an apparently inexplicable decision by three officers to leave the office instead of helping with the backlog of work”;
4. Officer A was of previous good character with lengthy service and specialist skills, who “should be kept in West Midlands Police where possible”. The Panel was impressed with the steps he had taken to remedy his misconduct, and his genuine remorse;
5. A FWW was the “appropriate and sufficient” outcome. Officer B also received a FWW for failing to challenge Officer A’s behaviour.
Challenge
The Chief Constable brought a claim for judicial review of the decision to impose a FWW, on the basis that the Panel had:
- failed to exercise its discretion in accordance with the structure in the Guidance;
- failed to give proper consideration to the actual harm caused by the proven racist comments and behaviour;
- placed unlawful weight on the officer’s mitigation, contrary to the Guidance; and
- reached a decision which was irrational.
Ruling
It was agreed that, although the Panel had a discretion as to the appropriate outcome, it was required to exercise that discretion in accordance with the structure outlined in the Guidance, in substance rather than form [30, 53].
After detailed consideration of the Guidance, Mrs Justice Eady concluded that the Panel should be afforded “a degree of latitude”, no doubt having in mind the approach of the Employment Appeal Tribunal to judgments of the employment tribunal – having practised in employment law at the bar and then been a judge in the EAT, and that it would be wrong to expect “cross-referencing to each relevant point within the Guidance” [58].
However:
1. The Panel’s decision still needed to demonstrate “engagement with the relevant factors identified on the evidence adduced in the particular case” [59]. In this case, the evidence relevant to “Harm” did not just relate to the broader issue of reputational harm, which the Panel had identified: there was also evidence of actual harm suffered by BAME officers in the unit who had come to learn of Officer A’s remarks and conduct, which had not been referenced by the Panel at all [59-61].
2. The Panel had erred in its approach to mitigation. Although it had been entitled to take into account contextual mitigation, such as the stress Officer A had been under in the absence of effective supervision in the unit, it had apparently accepted that this was “limited”, and to the extent that the Panel had found that Officer A’s conduct had been “provoked”, this was sufficiently inexplicable to be irrational [63].
3. Whilst the Panel was entitled to consider the officer’s personal mitigation, the Panel had not demonstrated that it had then returned to the purposes of imposing a disciplinary outcome i.e. the maintenance of public confidence in, and the reputation of, the police service; the upholding of high standards in policing; and the protection of the public. Instead, the Panel had approached the question of sanction “through the prism of Officer A’s personal mitigation”, rather than the public-oriented concerns to which it was required to have regard [64].
The Chief Constable’s challenge therefore succeeded, and Mrs Justice Eady was not satisfied that the Panel would have reached the same conclusion had it applied the correct legal approach (applying s. 31(2)(a) Senior Courts Act 1981) [66]. The outcome decision was therefore quashed and remitted to a fresh Panel for re-determination [67].
The case confirms, further to R (Chief Constable of Greater Manchester Police) v Police Misconduct Panel & Roscoe (HHJ Pelling QC, 13 November 2018), that the Administrative Court will be prepared to quash a decision on outcome if the Panel has failed to follow the approach in the Guidance.
The Guidance emphasises, at paragraphs 4.15 and 4.51-4.54, that certain misconduct will be considered “especially serious”. This includes discrimination, whether conscious or unconscious, and any element of unlawful discrimination will be an aggravating factor (paragraphs 4.66-4.67).
In a case particularly concerned with the impact of discrimination – not only on public confidence in the police service but on other serving officers, especially those from BAME backgrounds – the ruling reflects the seriousness with which discrimination should be treated by Panels properly following the Guidance.
One minor point – this claim was brought against the Legally Qualified Chair in addition to the panel. The LQC has no special status – the other panel members can outvote them on matters of fact and of law. The correct defendant in these cases is the Police Misconduct Tribunal – and the correct interested parties will be, depending on the identity of the Claimant, the Chief Constable, the officer who was the defendant officer in the misconduct hearing and any persons who, during the misconduct investigation, were considered to be interested persons or complainants.