The Administrative Court has quashed a misconduct panel’s decision to impose a final written warning on the basis that the panel failed to follow the correct approach outlined in the College of Policing’s Guidance on Outcomes in Police Misconduct Proceedings (“the Guidance”): R (Chief Constable of Greater Manchester Police) v Police Misconduct Panel (HHJ Pelling QC, 13 November 2018). The case is on Westlaw but not Bailii. It is, however, a case of considerable importance. It states that when reaching a decision on disciplinary sanction, a panel must not only follow a structured approach to its decision making but show that it has done so in its written reasons.
The officer subject to the misconduct proceedings was alleged to have behaved sexually inappropriately towards a woman in her own home after attending an incident nearby. He denied the allegations, which were reported in the local press, but the panel found them proven.
In what HHJ Pelling QC, sitting as a judge of the High Court, described as a “single unnumbered paragraph”, the panel proceeded to consider what outcome or sanction to impose, concluding that a final written warning was appropriate in the circumstances.
Whilst it was apparent that the panel had considered aggravating and mitigating factors relevant to the seriousness of the conduct in question, HHJ Pelling QC concluded that the panel had failed to follow the three-stage approach of:
1. first, assessing the seriousness of the misconduct;
2. second, keeping in mind the purpose for which sanctions are imposed; and
3. third, choosing the sanction which most appropriately fulfils that purpose in light of the seriousness of the conduct.
This approach – outlined in the Guidance and derived from Fuglers LLP v SRA [2014] EWHC 179 (Admin) per Popplewell J at [28] – required the panel to have regard to the purpose of the misconduct proceedings when deciding on disciplinary action, including the maintenance of public confidence in the profession: a factor of particular importance in policing, R (Green) v Police Complaints Authority [2004] UKHL 6; [2004] 1 WLR 725 per Lord Carswell at [78].
HHJ Pelling QC agreed with the claimant Chief Constable that the panel had unlawfully failed to follow the structured approach derived from Fuglers: [16] – [18]. The Judge found there was nothing in the panel’s reasoning to show that it had, either expressly or in substance, applied that approach:
1. The panel did not appear to have assessed how serious it found the misconduct to be by reference to the categories outlined in the Guidance (Culpability, Harm, and Aggravating and Mitigating Factors) – having simply found it to be “serious”; and
2. The panel then failed to consider sanction “specifically by reference to the need to maintain public confidence in and the reputation of the police service, to uphold high standards, to deter misconduct and to protect the public”.
The decision was therefore quashed and remitted to the panel to reconsider outcome applying the structured, three-stage approach outlined above (HHJ Pelling QC not being persuaded to substitute his own decision for that of the panel): [19] and [20]. A separate irrationality challenge was not determined.
Comment
On one view, the misconduct panel in this case simply failed to give adequate reasons for its decision on outcome. The failure to mention the purpose for which outcomes are imposed, including the importance of maintaining public confidence in policing – emphasised throughout the Guidance – is striking and gave the Chief Constable a credible basis upon which to challenge the decision with which he disagreed by way of judicial review.
However, it might be observed that the panel’s reasoning is more fulsome than many. HHJ Pelling QC’s detailed consideration of the Guidance and criticism of the panel for failing to demonstrate that it had followed the three stage-approach may prove useful for officers and forces alike seeking to challenge decisions on outcome, especially those which are poorly explained. It was not sufficient for the panel simply to state, as the panel did in this case, that it had “applied the principles” laid out in the Guidance. The panel must expressly go through the three-stage approach, which should promote a more rigorous approach to decision making and greater consistency in decisions.
Postscript
On 10 July 2019 the matter came back before the panel for a fresh outcome hearing taking account of HHJ Pelling QC’s guidance. PC Roscoe was dismissed without notice.
James Berry appeared for the Chief Constable in the Administrative Court and at the fresh outcome hearing.