Liability of police misconduct hearings for discrimination

Written by: Jonathan Davies, Elliot Gold
Published: 10 November 2017

The Supreme Court has held in P v Commissioner of Police of the Metropolis [2017] UKSC 65, that police misconduct hearings no longer benefit from judicial immunity in respect of discrimination claims. They also held that the Chief Constable is vicariously liable for the discriminatory acts of such panels. However, the decision related to an internal panel under the old regime when a misconduct hearing panel was chaired by an assistant chief constable. Three awkward issues arise:

Whether its reasoning applies to panels chaired by a Legally Qualified Chair (‘LQC’) under the new regime;

If so, whether the Chief Constable is legally responsible for the acts of an independent panel or whether the LQC and the other members of such panels would be liable as a panel;

If the LQC and panel members are potentially liable in damages in their own names, regardless.

Given up the Ghosh? Dishonesty in police misconduct hearings

Written by: Elliot Gold
Published: 6 November 2017

The explanation of dishonesty to a misconduct panel has always had the air of artificiality about it. That is not just my view – in its upending of the test in Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67, the Supreme Court described the test at [57] as being one “which jurors and others often find puzzling and difficult to apply.” In that decision, the Supreme Court upended the Ghosh test, which should no longer be used in misconduct proceedings. What might remain a live question, however, is whether the objective standard is those of ordinary, honest people or ordinary honest police officers.

The felling of protest?

Written by: George Thomas
Published: 30 September 2017

In Sheffield City Council v Fairhall [2017] EWHC 2121 (QB), the Court has been asked to consider the extent to which the decision in DPP v Jones [1999] UKHL 5; [1999] 2 AC 240 can be relied upon as a right to conduct peaceful but disruptive protest on the highway.

There has been a long battle in Sheffield to prevent the local authority’s tree-felling programme. In an effort to discharge its obligation under s.41 of the Highways Act 1980 more efficiently, Sheffield City Council contracted out its maintenance contract to Amey Hallam Highways Ltd. In operating the contract, Amey identified a large number of trees, many of them healthy, that it wished to cut down. Campaigners believed that the contract into which Sheffield City Council entered was unlawful as it put, the Defendant submitted, profiteering (by Amey) and cost-cutting (by the Council) ahead of its environmental obligations.

Should police officers be separated after a shooting?

Written by: Aaron Rathmell
Published: 15 September 2017

In February 2017, there was something of a falling out between the police and the IPCC regarding post-incident procedures when police firearms are deployed. Reasonable arguments were made on all sides, robustly and publicly.

Shortly before his retirement as Metropolitan Police Commissioner, Sir Bernard Hogan-Howe gave a speech calling for “less suspicion and more trust” in firearms officers. He raised a concern, also raised by the Police Federation, about officers being deterred from volunteering and training for firearms duty by the threat of being treated as a suspect when they discharge firearms on duty and then being the subject of lengthy investigations. He also said, “we can’t afford to have officers think twice because they fear the consequences of shooting someone. That’s how they get shot or the public gets hurt or a criminal gets away with a gun.”

Can police forces publish misconduct investigation reports? Should they?

Written by: Aaron Rathmell
Published: 11 September 2017

Publication of misconduct investigation reports can give rise to difficult and important questions, particularly in cases where there has been no misconduct hearing because there has been a determination of “no case to answer”, or because the accused officer has resigned or retired.

To my knowledge there is no provision in the Police Reform Act 2002, Police (Conduct) Regulations 2012 or related regulations which compels police forces to publish misconduct investigation reports; nor is there an express power to do so, voluntarily. But the question of publication may well arise as a result of a request for information under the Freedom of Information Act 2000 (“FOIA”). The FOIA of course establishes the general right of access to information held by public authorities, including Police and Crime Commissioners and police forces, upon written request, subject to exemptions.