Members of the Serjeants’ Inn Police Team write a monthly Legal Update for Police Professional. By agreement with the editors, the UK Police Law Blog will bring you our Team’s Police Professional articles one month after they appear in print.
In this article, published on 13 September 2012, John Beggs QC and James Berry analyse the Court of Appeal’s decision in Salter v Chief Constable of Dorset [2012] EWCA Civ 1047 which contains important guidance on the approach that police misconduct panels and the PAT should take to sanction (or “outcome”) in cases of dishonesty. John and James appeared for the Chief Constable of Dorset in the Court of Appeal and in the Administrative Court in what was the first successful judicial review challenge to a decision of the PAT.
Maintaining standards – Why police integrity cannot be compromised
On July 31, 2012, the Court of Appeal gave judgment in what is likely to become the touchstone case for the promotion of honesty and integrity in policing. In Salter v Chief Constable of Dorset Police [2012] EWCA Civ 1047, the Court of Appeal unequivocally confirmed that:
- the default sanction for dishonesty by police officers in an operational context is dismissal; and
- this is only to be departed from in a “very small residual category” of cases.
The reasons were perhaps obvious: dishonesty is inimical to policing and to the office of constable. The court confirmed that the very high standards of honesty and integrity applied by the regulators of the solicitors’ and barristers’ professions should apply to policing.
Background
The facts of the case were unhappy. A sergeant of over 20 years’ unblemished service admitted at a misconduct hearing in August 2009 (under the old Police (Conduct) Regulations 2004) that he had not behaved with honesty or integrity in relation to an investigation.
He had instructed a subordinate officer to find two mobiles phones and destroy them. The mobile phones had been retrieved from the wrecked car of a police officer who had tragically been killed in an RTA. The sergeant believed that the deceased officer was having an affair at the time of his death and that the mobile phones would contain evidence of the affair.
It was not disputed that the sergeant’s motives were unselfish; he simply wanted to spare the feelings of the widow. He had nothing to gain from his dishonest instruction. But in so instructing a subordinate officer, he was seeking the destruction of evidence that could have been relevant in judicial proceedings – in this case an inquest.
Misconduct proceedings
Unsurprisingly, the misconduct panel required the officer to resign; they imposed this sanction rather than dismissal out of respect for his length of unblemished service.
At a Review in November 2009, the chief constable decided that any lesser sanction than a requirement to resign would be wholly inadequate and upheld the panel’s decision.
The ex-officer then appealed to the Police Appeals Tribunal (PAT), which in July 2010 allowed his appeal and substituted a decision that he be reduced to the rank of constable and reinstated in that rank to Dorset Police.
Judicial review
Dissatisfied with the PAT’s decision, the chief constable applied for judicial review of the decision of the PAT and was successful when, in December 2011, Burnett J quashed the PAT decision and substituted a decision that the sergeant’s appeal to the PAT be dismissed (the decision is reported at [2011] EWHC 3366 (Admin). This was understood to be the first successful challenge to a PAT’s decisions (the challenge in R v PAT, ex parte Chief Constable of Avon and Somerset, [2004] EWHC 220 (Admin) failed). Both the High Court and, subsequently, the Court of Appeal found it to be appropriate to apply to the police the high standards required of lawyers by their regulatory bodies. Burnett J applied the language of Sir Thomas Bingham MR who said in Bolton v Law Society [1994]:
“Any solicitor who is shown to have discharged his professional duties with anything less than complete integrity, probity and trustworthiness must expect severe sanctions to be imposed upon him by the Solicitors’ Disciplinary Tribunal… the most serious (type of case) involves proven dishonesty… in such cases the Tribunal has almost invariably, no matter how strong the mitigation advanced for the solicitor, ordered that he be struck off the Rolls of Solicitors.”
The Master of the Rolls then explained why such harsh sanctions were required:
“To maintain the reputation of the solicitors’ profession as one in which every member, of whatever standing, may be trusted to the ends of the earth. To maintain its reputation and sustain public confidence in the integrity of the profession it is often necessary that those guilty of serious lapses are not only expelled but denied readmission… otherwise, the whole profession, and the public as a whole, is injured. A profession’s most valuable asset is its collective reputation and the confidence which that inspires.”
Burnett J found no reason why such principles should not apply with equal force to the police service. Thus he concluded that:
“The reasons which underpin the strict approach applied to solicitors and barristers apply with equal force to police officers. Honesty and integrity in the conduct of police officers in any investigation are fundamental to the proper workings of the criminal justice system. …the public should be able unquestionably to accept the honesty and integrity of a police officer. The damage done by a lack of integrity in connection with the investigation of an alleged offence may be enormous. The guilty may go free. The innocent may be convicted. Large sums of public money may be wasted. Public confidence in the integrity of the criminal justice system may be undermined. The conduct of a few may have a corrosive effect on the reputation of the police service in general.”
The reason for such high standards was “…to maintain public confidence in the police service and maintain its collective reputation”.
Court of Appeal
This powerful language was upheld unanimously by the Court of Appeal, which dismissed the officer’s appeal. Lord Justice Maurice Kay, vice-president of the Civil Division, gave the lead judgment. He confirmed that “a sanction resulting in the officer concerned having to leave the force will be the usual consequence of operational dishonesty”.
He also observed that police officers “carry out vital public functions in which it is imperative that the public have confidence in them. It is also obvious that the operational dishonesty or impropriety of a single officer tarnishes the reputation of his force and undermines public confidence in it”.
Lord Justice Stanley Burnton put it pithily: “An actual or perceived lack of integrity disqualifies a person from acting as either a constable or in a police supervisory role.”
Stanley Burnton LJ drew a distinction between cases where the concern was about the officer’s ability, which might call into question his fitness to hold a supervisory role and cases where the concern was about the officer’s integrity, which called into question his fitness to act as a constable at all. In the latter case, a sanction of reduction in rank would be inappropriate.
Despite personal sympathy for the ex-sergeant’s plight, Lord Justice Gross described the appellant’s “insuperable” difficulty as being “that the operational integrity of the police is of fundamental importance”.
Two subsidiary issues were also addressed in the case.
First, the Court of Appeal observed that “because of the importance of public confidence, the potential of [personal] mitigation is necessarily limited”. The PAT had said: “An officer who has striven for and achieved a measure of excellence should be entitled to feel that he can meaningfully call upon his record in times of trouble.” In effect, both courts disagreed. Thus character statements and records of an unblemished career will provide little succour for officers who have been dishonest in the operational sphere.
Second, both Burnett J and the Court of Appeal expressed scepticism as to how an officer found guilty of dishonesty could be deployed again operationally. The likelihood is that almost any officer’s role will find them in the evidential chain, giving rise to the inevitable disclosure obligations for such officers via the Association of Chief Police Officers (ACPO)/Crown Prosecution Service (CPS) Disclosure Manual (see chapter 18). Burnett J was concerned that public confidence in the police would be yet further eroded were an officer found guilty of dishonesty to be retained but, “disqualified by his own misconduct from performing a substantial part of his ordinary duties”, given a “non-job” or a role that might otherwise be reserved for officers injured on duty.
Comment
What then are the consequences of, and opportunities arising from this powerful judgment?
First, Salter is a decision that no misconduct panel or PAT dealing with a case of operational dishonesty can afford to overlook. The Court of Appeal’s decision, read together with Burnett J’s decision:
- offers clear guidance on how the tribunal should approach its determination of sanctions in cases of operational dishonesty, namely that the usual outcome will be dismissal, save in an exceptional case;
- reminds tribunals that, where it decides that the case is an exceptional one where the outcome of dismissal can be avoided, then the circumstances of the misconduct that support a lesser outcome than dismissal should be fully recorded; and
- sets out the correct approach to an officer’s mitigation, namely that personal mitigation is of little relevance (although issue mitigation, which provides an explanation of the circumstances of the offence itself, might bring the cases into the small category of “exceptional” cases).
Second, at a time when so many in the public and private sectors alike, from MPs to journalists to bankers, are suffering from public excoriation, this judgment might provide a golden opportunity for the leadership of British policing to remind officers and staff of all ranks and roles that dishonesty or lack of integrity in the course of operational duties is professional suicide.
Some might think that the officer’s conduct in this case was not particularly serious, or at least not serious enough to warrant dismissal, given that his motives were benign. But all four judges who heard his case found the officer’s misconduct to be very serious indeed. The mantra emblazoned on posters in police stations all around the country, ‘Integrity is non-negotiable’, has now been put on the footing of high judicial authority.