Mr Justice Wyn Williams:
Introduction
- On 31 March 2011 the Defendant announced its decision to allow an appeal by the Interested Party against the decision of a Misconduct Panel ("the Panel") constituted under Regulation 25(4) of the Police (Conduct) Regulations 2008 (hereinafter referred to as the "Conduct Regulations"). The Panel had found proved 10 separate allegations made against the Interested Party which, cumulatively, it considered constituted gross misconduct; further, it had decided that the Interested Party should be dismissed without notice by reason of that misconduct. The Defendant decided that the Panel ought not to have found proved two of the allegations which had been made against the Interested Party (the only two allegations which he contested). It also decided that the Panel should not have imposed the sanction of dismissal without notice; rather it should have issued a final written warning in respect of seven of the allegations which he had admitted and a written warning in respect of the eighth. As a consequence of its decisions the Defendant ordered the Interested Party's reinstatement as a police constable, the Panel's decision having taken effect following its pronouncement. As I have said the Defendant announced its decision on 31 March 2011; on 6 May 2011 it provided detailed written reasons for the decision which it had made. In the remainder of this judgment the written reasons are referred to as the decision letter.
- In these proceedings the Claimant seeks to impugn each of the decisions made by the Defendant and contained within the decision letter. In particular he argues that the Defendant acted unlawfully when it concluded that the Panel should not have imposed the sanction of dismissal upon the Interested Party.
Relevant background
- Mr Robert Meade and the Interested Party are old friends. On 23 May 2009 Mr Meade was arrested on suspicion of having committed sexual offences against a 14 year old girl. After further investigation Mr Meade was charged with abducting the girl and engaging in sexual activity with her.
- On 16 October 2009, at the Swindon Crown Court, Mr Meade pleaded guilty to the offence of engaging in sexual activity with the girl. He was sentenced to a period of 12 months' imprisonment. The prosecution did not pursue the charge of abduction.
- During the course of the investigation of Mr Meade his two mobile phones were seized and examined. It became clear that Mr Meade had been using one of the phones to text and speak to the Interested Party on various occasions between 17 March 2008 and 23 May 2009. In due course, text messages passing between Mr Meade and the Interested Party were retrieved which gave rise to concerns on the part of the investigating officers that the Interested Party had been behaving inappropriately.
- On 10 September 2009 DI Stirton made a written report to his superior, DCI Capstick, in which he drew attention to a number of text messages which had passed between the Interested Party and Mr Meade in the period 12 May 2009 to 18 May 2009. He further reported that the Interested Party had disclosed to him that he had "accessed the Niche Occurrence to ascertain what his friend was accused of" although DI Stirton also reported that the Interested Party had explained his conduct by saying that he had been unable to contact Mr Meade, that he was concerned for him and that he had done nothing to interfere with the course of the investigation.
- In October 2009 DI Stirton's report was received by the Professional Standards Department of the Wiltshire Police Force. An investigation of the Interested Party ensued. On 7 December 2009 the Interested Party was served with a notice pursuant to Regulation 15 of the Conduct Regulations which alleged that he had been in breach of the "Standards of Professional Behaviour" a reference to a document so entitled which is an annexe to the Conduct Regulations and which sets out standards to be expected of serving police officers. The following day the matter was referred to the Independent Police Complaints Commission. The Commission determined that there should be a managed investigation of the allegations made against the Interested Party undertaken by the Wiltshire Police Force.
- In due course, TCI Harvey was appointed to carry out the investigation. On 28 January 2010 the Interested Party was served with a notice detailing 11 specific allegations of breach of professional standards. As was his right the Interested Party served a detailed response. Thereafter he was interviewed under caution.
- On 14 May 2010 TCI Harvey published the report of her investigation. She concluded that there was "a case to answer" in respect of 10 of the allegations she had investigated. She also concluded that should the allegations be proved they would amount to gross misconduct. Accordingly, she recommended that the allegations should be considered by a panel at a misconduct hearing.
- On 7 July 2010 a notice was served upon the Interested Party pursuant to Regulation 21 of the Conduct Regulations. The notice alleged that the Interested Party's conduct had breached the Standards of Professional Behaviour in 10 specific respects. The notice also informed the Interested Party that his behaviour was alleged to constitute gross misconduct and that a misconduct hearing would be convened to consider the allegations. The allegations set out in the notice were as follows:-
"1. On 15 March 2004, whilst on duty, you conducted an Intelligence search for Robert MEADE.
2. Prior to December 2006, using the Wiltshire Police e-mail system you posted several messages on [email protected]. This resulted in the host for that site sending an e-mail to you at your Wiltshire Police e-mail address warning you about the inappropriate language you were using e.g f*ck and sh*t. On 10 December 2006 you responded to the host apologising for the behaviour again using your Wiltshire Police e-mail address.
3. On 12 February 2008 and 17 April 2008, you used your Wiltshire Police e-mail address to engage in e-mail communication with Robert MEADE and in so doing used inappropriate language i.e. swearing and the content of some were of a sexist nature. These e-mails were sent by you while you were on duty.
[The offending e-mails were then sent out].
4. Prior to 13th February 2008 you used your position as a Police Officer to gain membership to Somerford Angling Club. This e-mail was sent while on duty. "RE-JOINED SOMERFORD ABOUT 2 WEEKS AGO AFTER SUSPENDING IN 2000. WOULDN'T LET ME RE-JOIN INITIALLY, DROPPED A FEW NAMES SCRATCHED A FEW BACKS, MENTIONED I WAS THE FILTH".
5. Between 12 May 2009 and 18 May 2009 using your private mobile telephone, you engaged in a text conversation with Robert Meade where you used swear words and sexist comments.
[The text messages included a message sent by the Interested Party:-
"I'M HERE. JUST WAIT IN FOR THE WOMEN TO COME AND OPEN UP. I MIGHT RAPE HER AS THERE'S NO ONE ELSE HERE]
6. On 18 May 2009 you sent a photograph of a female colleague from your private mobile telephone to the mobile telephone of Robert MEADE and then entered a text conversation which was of a sexist nature. You were on duty at the time this was sent. The texts you sent with this image were:
"PERSIAN PRINCESS",
"HALF IRANIAN. BETTER IN THE FLESH PHOTO"
On the same day you received the following
"SHE'S HOT, U SHAGGED HER YET, FEEL SORRY FOR HER WORKING WITH ALL THOSE BLOKES, BET THEY'RE ALL OVER HER LIKE A RASH".
7. Between 25 May 2009 and 16 October 2009 you were in regular contact with Robert MEADE who at that time who was on bail for criminal matters and you have not complied with force policy regarding such contact and association. On 11 November 2009 you sent the following e-mail to Mark Bellamy,
"THE DEMISE OF BOBBY MEADE YES MATE, I KNOW. WAS SPEAKING WITH HIM REGULARLY UP UNTIL CROWN COURT APPEARANCE. I DID TEXT YOU ON YOUR MOB THE DAY HE GOT SENT DOWN"
8. On 22 July 2009 you engaged in an e-mail conversation with another serving officer of Wiltshire Police where you disclosed the information you had obtained concerning Robert MEADE. The e-mail reads,
"FOUND ROB HE'S IN AN UNBELIEVABLE AMOUNT OF TROUBLE. HAVE A LOOK AT NICHE OCC 54090039734. VERY NIEVE (sic) OF HIM. THE ONLY STUMBLING BLOCK AS FAR AS I CAN TELL WOULD BE THE FACT THAT HE'S REMOVED HER BRA
.. CAN'T BELIEVE HIS BRIEF MADE HIM GO 100% NO COMMENT EITHER
.I DON'T RECKON HE'LL GET CUSTODIAL IF FOUND GUILTY".
9. On 5 and 6 September 2009, you accessed a Niche record, reference 54090071725 which relates to a reported crime where the suspect is Robert MEADE. You were on duty when these checks were made.
10. On 8 December 2009, a Nokia N95 black 8GB Panther mobile telephone was located inside your locker at Gable Cross Police Station. This telephone was purchased on 17 April 2008 by Alan Johnson but has never been used."
- By letter dated 9 July 2010 the Interested Party's solicitor responded to these allegations. He indicated that the Interested Party accepted allegations 1, 2, 3, 4, 8, 9 and 10 and that the conduct alleged amounted to conduct which fell below the standards specified in the Standards of Professional Behaviour. In relation to allegations 5, 6 and 7 the Interested Party's solicitor wrote:-
"In respect of Charge 5 PC Woollard accepts that sending a text message to a member of the public in which he made an inappropriate comment about rape was an inappropriate act for a police officer. He accepts this text message could bring discredit upon the Police Service and he would be willing to plead guilty to this allegation on the basis of the single text message. It is this message which raises the concern from others following the analysis of Mr Meade's mobile telephone. It is submitted that the other text messages do not conflict with his role as a police officer nor do they bring discredit upon the Police Service, as such we ask that the other messages are removed from the contents of Regulation 21 notice.
In relation to Charge 6 PC Woollard denies that he entered into a text conversation with Mr Meade which was of a sexist nature. PC Woollard does accept that he sent the message which contained the photograph of PC Kenzie. He maintains that this occurred with PC Kenzie's knowledge and consent. PC Woollard agrees that he received the text message detailed in the charge from Mr Meade. The issue in relation to this charge is whether or not PC Woollard's actions in sending the text message and receiving the text message a) amounts to a text conversation with Mr Meade which was of a sexist nature, and b) whether the PC Woollard's agreed actions amounts to a breach of the code of conduct.
In relation to Charge 7 PC Woollard denies that he failed to comply with force policy by maintaining contact with Mr Meade whilst Mr Meade was on bail for criminal matters. PC Woollard does accept that he maintained telephone contact with Mr Meade whilst Mr Meade was being dealt with by the Police and Courts for the offences that he committed. PC Woollard maintains that he did so as a friend and that at no time did he seek to interfere or influence the processes that Mr Meade was subject to. Mr Woollard denies the allegation on the basis that there was no policy in place concerning this kind of conduct and as such he did not fail to comply with force policy regarding the contacts/association he had with Mr Meade
.."
The Hearing before the Panel
- On 21 July 2010 the Panel convened pursuant to Regulation 25(4) of the Conduct Regulations and heard the case against the Interested Party. He was represented by counsel and solicitors. He admitted allegations 1, 2, 3, 4, 5, 8, 9 and 10. The Panel found proved allegations 6 and 7. In relation to allegation 7 the Panel concluded that the Interested Party had not contravened the policy of the Wiltshire Police Force by maintaining contact with Mr Meade but found that his contact with Mr Meade between 25 May 2009 and 16 October 2009 was a pattern of behaviour that should be considered as "discreditable" for a serving police officer. It found allegation 7 proved on this basis.
- During the course of her submissions to the Panel, Counsel for the Interested Party accepted that his conduct "could amount to gross misconduct" (see Trial Bundle 2 C/326 and C/331). That concession was made in relation to the 8 allegations which the Interested Party admitted. Perhaps not surprisingly in those circumstances, the conclusion of the Panel was that the Interested Party's conduct was "sufficiently serious to constitute gross misconduct." In relation to allegations 1, 2, 4, 9 and 10 the Panel recorded the fact that the Interested Party admitted each allegation but did not specify, in any detail, the Panel's view as to the important underlying facts or the seriousness of the misconduct in question. In relation to allegation 3 the Panel said this:-
"The panel acknowledges that PC Woollard accepts the breach of Standards of Professional Behaviour (Discreditable Conduct). The panel find the content of the emails and the use of the Wiltshire Police email system utterly unacceptable for any member of Wiltshire Police. The language and content used bring discredit to the Police Service and to PC Woollard. The panel find these communications undermine public confidence. The panel recognise that these emails were sent between two adult males, however there remained a vulnerability to PC Woollard, the Force and the Service that such emails could have been circulated more widely or whatever the originating intent."
In relation to allegation 5 the Panel reasoned:-
"The panel acknowledge PC Woollard's acceptance of the allegations and that this was an exchange between two adult males on private mobile phones. The panel found the language used wholly inappropriate but of more concern was the comment in relation to 'rape' which is utterly unacceptable for a police officer or member of the Police Service to have made. This was a breach of the Standards of Professional Behaviour (Discreditable Conduct). Police Officers are expected to inspire confidence with vulnerable victims of crime and such comments wholly undermine that aim. In addition, the disparaging and derogatory comments in relation to females are incompatible with the role of a Police Officer."
Counsel, for the Interested Party, described allegation 8 as "one of the most severe breaches of professional standards". The Panel described this breach as follows:-
"The panel found that this was singularly the most concerning allegation not only because of the breach of the use of Force systems for legitimate policing purposes but the content of the e-mails seeks to diminish the seriousness of the offence committed. This assertion was compounded by the evidence presented by PC Woollard. The panel feel that his evidence was wholly inconsistent with the evidence presented within the bundle. The Panel do not accept PC Woollard's assertion that he did not know the full detail of the Niche record which was subsequently referred to in his e-mail to another officer. This is a breach of the Standards of Professional Behaviour (Discreditable Conduct) and (Confidentiality)."
- The Panel concluded that the appropriate sanction was dismissal from the Police Service with immediate effect and without notice. It did so having heard the submissions of counsel and evidence from the Interested Party and having considered written material including substantial references. It justified its conclusion on sanction as follows:-
"At the commencement of this hearing I spoke about the principles upon which these proceedings would be conducted.
The principles we have followed revolve around openness, integrity and in line with obtaining natural justice for everyone concerned. Natural justice for you (PC Woollard), the community and the Police Service.
I have no doubt these incidents and the subsequent misconduct processes have had a profound effect on everyone concerned and reinforced the huge responsibility police officers have when conducting themselves; whether in private or professionally.
I have to tell you it is impossible to reconcile your behaviour with that of a professional Police Officer.
Notwithstanding those sentiments and the potential impact you have had on public confidence not only for Wiltshire Police but the wider Police Service these proceedings will follow the principle of proportionality which I believe is an important element when determining sanctions. The panel have followed those principles.
The panel acknowledges the testimonies presented during the proceedings and have taken into consideration PC Woollard's energy and commitment to the Force whilst undertaking his duties. PC Woollard is clearly an influential team member where he has been placed in a position of trust and has taken responsibility for the development of other people.
Public confidence in the Police Service is determined by police officers demonstrating the highest level of professional and personal standards of behaviour. A breach of those standards damages confidence in the Police Service and the Service cannot condone or be seen to condone inappropriate, lewd, profane, demeaning, vulgar comments.
The panel believes that PC Woollard has behaved in a manner which brings such discredit to the Police Service and does undermine public confidence. The derogatory behaviour and contempt with which you have referred to women and which has been a feature of the evidence provided is incompatible with the role of a police officer.
The panel also finds that the allegations do not revolve around spontaneous and inexplicable acts made in the heat of the moment but a long sustained pattern of behaviour over a number of years.
The code of conduct sets out clearly what is expected of police officers in respect of confidentiality and management of information. One of the greatest responsibilities the police service has is maintaining the integrity and confidentiality of the data and information entrusted to it. Any breach for whatever reason can significantly undermine public confidence in this respect. You have breached that confidence. This is in itself is a serious breach of the Standards of Professional Behaviour (Confidentiality).
In determining the appropriate sanction the panel has given careful consideration to PC Woollard's character and record of service. PC Woollard is described as a clever and articulate man and this has been recognised during the course of the proceedings and which leads the panel to conclude that the various breaches of the Standards of Professional Behaviour have been a flagrant disregard of those Standards which in turn has made his position as a police officer untenable.
The panel have decided that they believe that PC Woollard's conduct has clearly reached the threshold for gross misconduct."
The Police Appeals Tribunal Rules 2008
- An appeal from the Panel to the Police Appeals Tribunal is governed by the above rules (hereinafter referred to as the "Appeal Rules"). The material parts of Appeal Rules provide as follows:-
"4(1). Subject to paragraph (3) a police officer to whom paragraph (2) applies may appeal to an appeal tribunal in reliance on one or more of the grounds of appeal referred to in paragraph (4) against
a) the finding referred to in paragraph (2)(a), (b) or (c) made under the Conduct Regulations; or
b) the disciplinary action, if any, imposed under the Conduct Regulations in consequence of that finding;
or both.
(2) This paragraph applies to
a) an officer other than a senior officer against whom a finding of misconduct or gross misconduct has been made at a misconduct hearing; or
b)
.
(3) A police officer may not appeal to a Tribunal against a finding referred to in paragraph (2)(a), (b) or (c) where that finding was made following an acceptance by the officer that his conduct amounted to misconduct or gross misconduct (as the case may be).
(4) The grounds of appeal for this rule are
a) that the finding or disciplinary action imposed was unreasonable; or
b)
..
c)
.."
The Defendant's decision and the reasons for it
- The substance of the Defendant's decision is set out at paragraph 1 above. This section of my judgment identifies the important parts of the decision letter dated 6 May 2011.
- Section 1 identified the basis of the appeal brought by the Interested Party. It also set outs the only grounds of appeal which were available to the Interested Party under Rule 4(4) of the Appeal Rules. Section 2 of the decision letter contained a detailed account of the facts relevant to the allegations found proved and admitted together with some of the facts which the Defendant thought relevant to mitigation. Section 3 dealt with the findings made by the Panel in relation to allegations 6 and 7. Sections 4 to 9 analysed each of the allegations which the Appellant admitted. Section 10 contained the Defendant's "conclusions upon the appeals against the punishments". It is necessary to consider sections 3 to 10 in some detail.
- In section 3 the Defendant first concluded that allegation 7 was not proved because at the material time there was no relevant adopted force policy of which the Interested Party could have been in breach. The Panel had reached the same conclusion; however it had gone on to conclude that the Interested Party's contact with Mr Meade had been "part of a pattern of behaviour which may be considered as discreditable conduct".
- The Defendant's view was that the Panel had not been entitled to consider allegation 7 on this alternative basis. Additionally, however, the Defendant concluded that even if the Panel had been entitled to consider the allegation in the manner that they did there was no proper basis for the conclusion that the contact which occurred between the Interested Party and Mr Meade was discreditable conduct.
- In the remaining part of section 3 the Defendant considered allegation 6. The Panel's reasoning in relation to allegation 6 had been as follows:-
"The panel heard evidence from PC Woollard on this point which was contested. PC Woollard accepted that he took and sent the photograph however he denied that the text was of a sexist nature.
On questioning the panel were not confident that PC Kenzie had been photographed by consent. PC Kenzie's statement made no reference to contextual evidence supplied by PC Woollard in respect of her seeking a 'date' or contact with single men. When questioned, PC Woollard appeared evasive on this point. The inappropriate taking of a photograph goes against the Dignity and Respect that should be afforded to colleagues albeit that PC Kenzie has subsequently stated that she does not mind that the photograph was taken. This attitude and behaviour is a common theme demonstrating a lack of respect towards women.
Based on previous evidence the panel draw an inference that the comment could be construed as sexist however they accepted PC Woollard's representation that he had not intended the comment to be of a sexist nature.
The panel find that the taking and sending of the photograph is a breach of the Standards of Professional Behaviour (Discreditable Conduct)."
- The Defendant's conclusion was that it was unsafe to make a finding of guilt on this allegation. In so finding the Defendant was clearly influenced by two factors. First, the fact that PC Kenzie had not been offended by the Interested Party's conduct; second, that in the view of the Defendant the Panel had been wrong to doubt the credibility of the Interested Party's account of events surrounding the allegation.
- In reaching the conclusion that the Panel had been wrong to doubt the credibility of the account of the Interested Party, the Defendant laid emphasis upon what it described as an error of approach on the part of the Panel. During the course of her submissions about allegations 6 and 7 Counsel for the Interested Party had invited the Panel to read the impressive character references adduced on his behalf before reaching conclusions about whether allegations 6 and 7 had been proved. The Panel declined to do so maintaining that the references were relevant only to the issue of sanction. The Defendant's view was that this was an error and that the character references were plainly relevant to the issue of the Interested Party's credibility.
- Section 4 of the decision letter began with the following paragraph:-
"We have already announced our decision to substitute for the sanction of dismissal without notice, the sanction that a final warning be issued and management advice given. It was a matter of concern for us that our decision might be interpreted as signalling that we thought these charges were not serious. It would be very wrong to read that into our decision because we do think these charges are serious. However our task is to ensure as far as possible a uniformity of approach across England and Wales Police Forces to these types of misconduct. Our task requires us to look very closely at each charge and analyse just what the Appellant is being punished for, to ask whether the sentencing approach to those facts is the correct one; and to ask whether the sanction applied is of a kind uniformly applied across England and Wales Police Forces. It may help if we said straightaway that during our analysis of these charges we felt serious doubt about whether some of them amounted to gross misconduct, and we did not consider that any of them merited dismissal. Our reasons for saying this will become clear as we go through each charge."
I set out this paragraph in full for these reasons. First, it is clear that the Defendant concluded that no one allegation, by itself, merited dismissal. Second, its view was that the allegations viewed cumulatively did not merit dismissal. Third, it expressed its doubt about whether some of the allegations amounted to gross misconduct. Fourth, the Defendant thought it part of its function, so far as possible, to adopt "a uniformity of approach across England and Wales Police Forces to these types of misconduct".
- Section 5 of the report dealt with allegations 1, 8 and 9. These allegations are those relating to the accessing of Niche intelligence records. The Defendant recorded in terms that "unauthorised access is serious misconduct". Having made that point, however, it then concluded that the misconduct proved in relation to allegation 1 was "of a low order" and that allegations 8 and 9 "share an important mitigating feature" namely that the Interested Party did not publish the information which he obtained to anyone outside the police service. The Defendant's consideration of allegations 8 and 9 concluded with the following:-
"There are cases where a police officer has been pulled up for accessing the Niche record for no lawful purpose: and then he does it again, and is dismissed. This is not the case here.
For the reasons stated we respectfully consider that a dismissal without notice on these 3 charges for what he did is unreasonably harsh. It is out of proportion to what he did, and wrong in principle."
- In section 6 the Defendant considered the 3 charges of "exchanging inappropriate e-mails and texts"; these were allegations 2, 3 and 5. The Defendant began its appraisal of these charges by noting:-
"It is understandable why any police force would be disappointed to realise that one of its mature officers had been engaging in electronic conversation with a member of the public using such disgusting language. The language is disparaging, derogatory and sexist in its attitude to women. In fact the language employed in these conversations comes from a different age, many decades ago. It is as if these two men were in a time warp, conversing together in a way that is totally unacceptable by today's standards of current beliefs in equal treatment for women, sex discrimination laws and the overriding need to treat women with courtesy, respect and dignity."
That said, the Defendant then identified what it regarded as mitigating features which, it concludes, the Panel either ignored or gave too little weight. First, there was no evidence to demonstrate that any member of the public had become aware of the exchange save for the moderator of the website in relation to allegation 2. Second, the Interested Party had demonstrated genuine remorse. In relation to the text contained within the series of texts constituting allegation 5 the "rape" text the Defendant highlighted how the Interested Party had dealt with this text in his evidence before the Panel. He told the Panel:-
"Well that is the one thing out of this entire package that has left me hanging my head in shame the most. That was again, the shock humour and banter that Robert and I used. I was waiting for him to turn up. It was just the ludicrous things that, you can see in the context of the communications with him, it is wholly unacceptable and embarrasses me to say this very second, to have that read out and I apologise to all again having to listen, a completely unnecessary thing to say albeit it is completely and utterly not, was not my intention at all on that day to do anything like that at all. It was just a stupid joke, to a stupid bloke, between two stupid friends."
The Defendant also concluded that while the texts were sent and received while the Interested Party was on duty the conduct could properly be regarded "as an off-duty type of offence".
- In the light of the factors in mitigation summarised above and notwithstanding the fact that the Defendant categorised the misconduct in these three allegations as serious it concluded that dismissal without notice was an unreasonably harsh sanction.
- Sections 7 and 9 dealt with the individual allegations numbered 4 and 9. It suffices to say that the view of the Defendant was that neither offence justified dismissal without notice. Indeed in respect of each allegation the Defendant's view was that the punishment imposed was out of proportion to the facts proved.
- Section 8 of the decision letter considered that part of allegation 8 which was critical of the Interested Party for emailing confidential information about Mr Meade to a fellow officer. The Panel's view of allegation 8 as a whole is set out at paragraph 13 above.
- The Defendant concluded that allegation 8 constituted a breach of confidentiality. It expressed itself as unclear how it could constitute discreditable conduct. In order to understand the Defendant's reasoning process it is necessary to set out what it had to say about this aspect of the case.
"With respect the gravamen of this charge is that he accessed the Niche record for a non-police purpose that proof that he did this is contained in the email which is set out in the charge. From it, it is plain that he has accessed the Niche record and he gives its reference number. But the point he is sentenced on is that the email "seeks to diminish the seriousness of the offence committed". We think this is somewhat unfair since this is never particularised in the charge. In point of fact one often hears of police officers, solicitors, barristers and all those connected with criminal trials give an opinion about "what this chap would get". Some opinions one hears are hopelessly wrong, just as this one is. Not only is his prediction of a non-custodial sentence quite ludicrous, but so are other remarks, such as his belief that the stumbling block would be that he removed her bra. Whether this middle-aged man removed it, or he permitted the 14-year old girl to remove it, would make no difference to his sentence. Robert Meade would be given a prison sentence whichever way it was. We think it certainly possible that the Appellant had not read the Niche record fully and thoroughly (which he consistently said he had not). But we think it more probable that his prediction was given with an incomplete knowledge of sentencing practice in criminal cases.
Even if we are wrong about that, we are concerned to see the Misconduct Panel concluding that he was untruthful in what he had seen on the Niche record without taking into account his character references. We have made that point earlier. In fact we are unsure from the transcript exactly how the Misconduct Panel came to this conclusion, and what documents they were directed to. If a conversation with counsel takes place outside the hearing room, what happens ought to be described later for the record on the transcript. It is unfortunate the offer to have the appellant called to explain what he saw was not taken up. Since the Misconduct Panel was inclined to disbelieve him which it did in fact do the appellant should have been given the opportunity to give his explanation on the point. Because there is no record on the transcript of what happened, it remains uncertain as to why this did not happen. We have spent some time on this matter because not only did the Misconduct Panel disbelieve his evidence on the issue of what he saw on the Niche record, they also rejected his evidence he was not seeking to diminish the seriousness of the offence committed by Robert Meade.
This offence is found to constitute discreditable conduct and breach of confidentiality. Having access to the Niche record was certainly a breach of confidentiality. It is not so clear however how it constituted discreditable conduct. We think it unlikely that Detective Inspector Standing would regard this email as discrediting the Police Service, and upon the basis that the email might have gone astray, it needs to be explained by the Misconduct Panel why a member of the public would know from the words of that email that a 14-year old girl was the victim.
Finally, if the appellant really did wish to diminish the seriousness of the offence we cannot see the point of him doing so to a fellow officer. This is particularly so when he was contemplating that the fellow officer would read the record himself, and no doubt judge for himself.
For the several reasons we have given we respectfully cannot agree with the Misconduct Panel's assessment of the seriousness of this charge. We believe the sanction of dismissal without notice unreasonably harsh."
- That leaves section 10. In this section the Defendant drew together its reasons for allowing the appeal against the sanction imposed by the Panel. It expressed itself as follows:-
"We have allowed the appellant's appeal on the facts in respect of charges 6 and 7. He had pleaded not guilty to these two charges. He pleaded guilty to charges 1, 2, 3, 4, 5, 8, 9 and 10. He accepted that his misconduct on each of these charges amounted to gross misconduct. It is not our place to question why he did that. Nonetheless the fact that he admitted gross misconduct does not mean that he should necessarily be dismissed upon any of the charges.
We have now taken each charge in turn and consider the features which we believe should be focused upon when sentencing and we have identified areas upon which we believe the Misconduct Panel has misdirected itself when sentencing. For the reasons we have given, it is our respectful opinion after an analysis of what constitutes each charge, together the mitigation advanced, that none of these charges merit dismissal. We add that we do not believe either that even when taken in aggregate, that dismissal is merited. We consider upon the facts that we have identified as constituting the charges, that dismissal is an unreasonably harsh disciplinary action, it being a punishment out of proportion to those facts, and one that does not accord with our experience of the practice of generally of other Police Forces in England and Wales."
- The Defendant did not conduct an oral hearing. It reached it conclusions upon the documents with which it was provided although I make it clear that the documents included a transcript of the proceedings before the Panel. The documentation also included detailed grounds of appeal which suggested, in summary, that the Panel's findings in relation to allegation 6 and 7 were unreasonable, that aspects of its factual conclusions in relation to the allegations admitted were also unreasonable and that the sanction imposed was unreasonable.
Discussion
a) The word 'unreasonable' in rule 4 of the Appeal Rules
- There have been a number of recent decisions in which this court has grappled with what is meant by the word "unreasonable" in Rule 4(4)(a) of the Appeal Rules 2008. I refer to R (Montgomery) v Police Appeals Tribunal [2012] EWHC 936 (Admin) (Collins J); R (Chief Constable of Hampshire) v Police Appeals Tribunal [2012] EWHC 746 (Admin) (Mitting J); R (Chief Constable of the Derbyshire Constabulary) v Police Appeals Tribunal [2012] EWHC 2280 (Admin) (Beatson J) and R (The Chief Constable of Durham) v Police Appeals Tribunal [2012] EWHC 2733 (Admin) (a Divisional Court consisting of Moses LJ and Hickinbottom J). In his decision in the Derbyshire case Beatson J expressed the view that the issue of whether a finding or sanction was unreasonable should be determined by asking the question whether the panel in question had made a finding or imposed a sanction which was within the range of reasonable findings or sanctions upon the material before it. The learned judge clearly considered that his view was consistent with the views expressed in the earlier decisions in the Montgomery and Hampshire cases.
- The approach of Beatson J is echoed in the approach adopted in the Durham case by Moses LJ (with whom Hickinbottom J agreed). During the course of his judgment Moses LJ considered whether or not the use of the word "unreasonable" within Rule 4(4)(a) mandated the tribunal to apply what is familiarly known as the Wednesbury test when determining whether or not a finding or sanction is to be categorised as unreasonable. His conclusion was as follows:-
"7. It follows therefore, to my mind, that the test imposed by the rules is not the Wednesbury test but is something less. That does not mean that the Appeal Tribunal is entitled to substitute its own view for that of the misconduct hearing panel, unless and until it has already reached the view, for example, that the finding was unreasonable. Nor, should I emphasise, is the Police Appeals Tribunal entitled, unless it has already found that the previous decision was unreasonable, to substitute its own approach. It is commonplace to observe that different and opposing conclusions can each be reasonable. The different views as to approach and as to the weight to be given to facts may all of them be reasonable, and different views may be taken as to the relevance of different sets of facts, all of which may be reasonable. The Police Appeals Tribunal is only allowed and permitted to substitute its own views once it has concluded either that the approach was unreasonable, or that the conclusions of fact were unreasonable. None of what I say is revolutionary or new."
- I propose to follow the same approach to the word "unreasonable" as that which was adopted by Beatson J in the Derbyshire case and Moses LJ and Hickinbottom J in the Durham case.
b) Legal challenges to the Defendant
- At each level in the disciplinary process, the decision-maker is expert in nature. It knows and understands how the Police Service works. It knows and understands the importance of maintaining integrity amongst police officers. It knows and understands the impact that serious misconduct can have on the Force concerned and the Police Service in general. Parliament has provided that the Defendant is the appellate body for these purposes. There is no further appeal to the High Court. The Defendant is subject to the supervisory jurisdiction of this court. Absent an error of law on the part of the Defendant its decisions cannot be impugned. In the skeleton argument on behalf of the Claimant the authors accept that a decision of the Defendant upon sanction can be interfered with only on classic Wednesbury grounds.
- There can be no doubt that it is open to this court to quash a decision of the Defendant if the Claimant has established that the decision was unreasonable or irrational. In the light of the decision in the Durham case it may be that the potential grounds of challenge are not so confined. I will return to this issue later in this judgment.
c) Allegations 6 and 7
- Did the Defendant consider whether the panel's findings in respect of allegations 6 and 7 were unreasonable? I pose that question since there is no explicit finding in section 3 of the Defendant's report that the Panel's conclusions in relation to allegations 6 and 7 should be so categorised.
- Notwithstanding the Defendant's failure to specify, expressly, that the Panel's findings in relation to allegations 6 and 7 were unreasonable I have little doubt that this was the conclusion which it reached when its decision on each of these allegations is read in context.
- In relation to allegation 6 the Defendant concluded that the Panel had been wrong to disbelieve the Interested Party's account of the circumstances in which he came to take a photograph of his colleague. Two reasons were advanced by the Defendant for reaching this conclusion. First, the Panel had not heard evidence from PC Kenzie. According to the Defendant, the Panel should not have relied upon the difference between her account of how the photograph came to be taken (as contained in her witness statement) and the account given by the Interested Party as a reason for disbelieving him. Second, the Panel was wrong to refuse to take account of the evidence of the Interested Party's good character when considering the credibility of his account in relation to allegation 6. Counsel for the Interested Party had wished to adduce this evidence before the Panel reached its conclusions about whether allegations 6 and 7 had been proved but the Panel refused to admit the evidence at that stage of the proceedings holding, in effect, that the evidence of good character was relevant only to the issue of sanction.
- In my judgment, the Panel fell into error in its approach to the issue of evidence of good character. Such evidence was relevant not just to the issue of sanction but also to the issue of the Interested Party's credibility. The Interested Party's credibility was an important factor in determining whether allegation 6 was proved (and, for that matter, in determining the seriousness of the allegation). In my judgment the Defendant was entitled to conclude that the adverse credibility finding inherent in the conclusion that allegation 6 had been proved was unreasonable given that the evidence of good character had been excluded, wrongly, from consideration.
- I do not share the view of the Defendant that it was unreasonable of the Panel to reach an adverse credibility finding against the Interested Party based upon the difference between the witness statement of PC Kenzie and the evidence given by the Interested Party to the Panel. The Interested Party was represented by experienced lawyers; there was no request that PC Kenzie should give oral evidence before the Panel. The Panel was reasonably entitled to compare the evidence contained in her witness statement with the evidence given by the Interested Party and reach a conclusion about which evidence it preferred. However, it is by no means certain that the Panel would have reached the same conclusion had it taken account of the evidence of good character upon which the Interested Party sought to rely.
- I am satisfied that the Defendant was correct to conclude that the Panel's finding that allegation 6 was proved was unreasonable. If the evidence of the Interested Party's good character had been taken into account prior to the determination in relation to allegation 6 there is a realistic possibility that a different view of the Interested Party's credibility would have been taken. At the very least there is a realistic possibility that if the good character evidence had been taken into account the Panel might have viewed the seriousness of the allegation in a different light even if it was appropriate to find the allegation proved.
- The credibility of the Interested Party was also important to allegation 7. The failure to take account of the good character evidence before determining whether allegation 7 was proved was also an error which undermines the reasonableness of the Panel's conclusion on this allegation. The Defendant was correct so to find. In my judgment the Defendant was correct, too, in its conclusion that there was an additional reason why the Panel's finding in relation to allegation 7 was unreasonable. Allegation 7, as framed, was a complaint of a failure to comply with an adopted policy of the police force. No such policy existed at the material time and the draft policy which was in existence was not known to the Interested Party. Notwithstanding that the Panel accepted all that, it concluded that the Interested Party had been guilty of behaviour which was discreditable. It is by no means clear that it was open to the Panel to reformulate allegation 7 in the way that it did. Assuming it had the power to do so, however, it is clear from the transcript of the proceedings that it did not afford the Interested Party any opportunity to make representations about whether it had such power and, if so, whether it was fair to exercise it. To repeat, in my judgment, the finding that allegation 7 was proved in its amended form was unreasonable.
d) Was the sanction of dismissal without notice unreasonable?
- This is the issue which is at the heart of this challenge. Was it open to the Defendant to conclude that the sanction of dismissal without notice was unreasonable in the light of the 8 allegations which the Interested Party had admitted?
- The starting point must be that Counsel for the Interested Party expressly acknowledged that it was properly open to the Panel to conclude that the 8 allegations, viewed cumulatively, could amount to gross misconduct see paragraph 13 above. The Defendant acknowledged, expressly, that it had to proceed on the basis that the Interested Party had admitted that each of the admitted allegations amounted to gross misconduct see paragraph 29 above.
- The Defendant concluded that no individual allegation merited dismissal. It also concluded that the allegations viewed cumulatively did not merit such a sanction. At one point it doubted, expressly, whether some of the allegations admitted amounted to gross misconduct, although in section 10 of the decision letter it stated expressly that it should proceed on the basis that the Interested Party had admitted 8 allegations of gross misconduct. The Panel expressed no conclusion about whether any individual allegation looked at in isolation justified dismissal. Its view was that the allegations taken together amounted to a course of conduct which justified dismissal. It reached that conclusion on the basis that there were 10 admitted or proved allegations but there is no realistic possibility that it would have reached a different conclusion had it found that allegations 6 and 7 had not been proved. Accordingly, the issue for the Defendant was whether the sanction of dismissal for a course of conduct which encompassed 8 admitted allegations of gross misconduct spanning a number of years was unreasonable. Was the sanction within the range of reasonable responses open to the Panel given the material before it?
- In my judgment, the Panel was plainly entitled to reach the conclusion that the course of gross misconduct admitted by the Interested Party justified dismissal. Their reasons for so concluding are set out in paragraph 14 above and although those reasons relate to 10 allegations I am quite satisfied that the Panel's reasoning would have been the same had it been dealing with the 8 allegations which were admitted. The Defendant did not suggest in its decision letter, and given its own reasoning could not suggest, that it was allegations 6 and 7 which tipped the balance in favour of the sanction of dismissal.
- No useful purpose would be served by repeating or emphasising parts of the Panel's reasoning. It is necessary to read the reasoning as a whole since, in my judgment, it constitutes compelling justification for the stance which the Panel adopted.
- The Defendant reached the conclusion that
"
.upon the facts that we have identified as constituting the charges, that dismissal is an unreasonably harsh disciplinary action, it being a punishment out of proportion to those facts, and one that does not accord with our experience of the practice generally of other police forces in England and Wales."
In my judgment that conclusion was not open to the Defendant given the constraints upon its function imposed by the Appeal Rules. I acknowledge that I should be very cautious about reaching such a conclusion given that the Defendant is a specialist Tribunal having considerable expertise and experience in matters such as these. Nonetheless, I am satisfied that in the instant case the Defendant's decision was erroneous. There are two principal reasons why I take that view.
- First, in relation to many of the allegations which the Interested Party admitted the Defendant substituted its own view of the relevant facts for that of the Panel rather than making an assessment about whether the findings of the Panel in relation to the allegations were ones which were reasonable. Section 6 of the Defendant's decision letter (which deals with the email/text allegations) provides a good example of what I mean. The Defendant acknowledges that "any police force would be disappointed to realise that one of its mature officers had been engaging in electronic conversation with a member of the public using
..disgusting language." The decision letter continues "the language is disparaging, derogatory and sexist in its attitude to women." However, the Defendant then explains that the conduct is less serious than would otherwise be the case since the Interested Party's words did not reach the public domain and identifies other factors which in its view mitigate the seriousness of the allegations (see paragraph 25 above).
- With respect to the Defendant, I consider Mr Beggs QC is correct when he submits that it was reasonable for the Panel to focus upon the nature of the words used rather than whether or not the words actually reached the public domain. The plain fact is that if many of the Interested Party's texts or e-mail messages had reached the public domain there would likely have been very significant adverse comment about his conduct. The "rape" message (described by the Defendant as "simply appalling") would, in my judgment, have led to very significant adverse comment upon the Interested Party's behaviour and, undoubtedly, would have brought discredit upon his force. In my judgment there was nothing unreasonable about the Panel's assessment of the email/text allegations (see paragraph 13 above).
- The Defendant's treatment of the other allegations admitted by the Interested Party is open to the same criticism. In respect of each allegation the Defendant appears to have placed the admitted conduct in its most favourable light as opposed to asking itself whether the Panel's assessment of the allegation was reasonable. In my judgment the Defendant's approach to sanction has been conditioned by its own view of the seriousness of the allegations. To repeat, the task for the Defendant was to determine whether the Panel's view of the allegations was a reasonable one and, in light of that view, whether the Panel's sanction constituted a reasonable response. The Defendant's approach was much more akin to an assessment by way of re-hearing rather than an objective assessment of the reasonableness of the conclusions reached by the Panel.
- The second reason which leads me to the view that the Defendant fell into error is that it seems to have ignored the principle, now well established, that one of the primary purposes of professional misconduct proceedings is to ensure the preservation of public confidence in the profession in question. There can be no doubt that this principle is applicable to disciplinary proceedings involving police officers. In R (Green) v Police Complaints Authority [2004] UKHL 6 Lord Carswell said:-
"Public confidence in the police is a factor of great importance in the maintenance of law and order in the manner which we regard as appropriate in our polity. If citizens feel that improper behaviour on the part of police officers is left unchecked and they are not held accountable for it in a suitable manner, that confidence will be eroded."
More recently, in Salter v Chief Constable of Dorset Police [2012] EWCA Civ 2012 Maurice Kay LJ, in a passage of his judgment which considered whether the public confidence aspect of disciplinary proceedings which is emphasised in cases involving solicitors should apply in relation to police officers explained:-
"Although police officers do not have a fiduciary client relationship with individual members of the public or the public at large, they do 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. In these respects, the similarities between solicitors and police officers justify the analogy provided that, ultimately, the decision-maker, be it the PAT or a judge of the Administrative Court, appreciates at all times that the index case falls to be assessed in the context of policing."
- The Panel's decision made specific reference to the need to respond to the Interested Party's misconduct in a manner which would maintain public confidence in the police service. There is no such reference to be found in the decision of the Defendant. While it is not necessary for the Defendant to articulate this principle expressly in its written decision as a means of demonstrating that it has taken it into account there is nothing in the Defendant's decision which suggests that it did and the clear tenor of the decision suggests that it did not.
- The Claimant's challenge to the Defendant's decision is based squarely on the proposition that the Defendant reached a decision which was unreasonable or irrational in the Wednesbury sense. Reluctantly, given the status of the Defendant, I would agree if needs be. It may be, however, that in light of the analysis of the Divisional Court in the Durham case it is not necessary, strictly, to establish that the Defendant's decision was unreasonable or irrational. In that part of his judgment which is set out at paragraph 33 above Moses LJ emphasises that the Defendant is entitled to substitute its own approach for that of a panel only if it has already found that the decision made by the panel was unreasonable. As I have endeavoured to show I do not consider that the Defendant adopted that approach in this case. In my judgment the Defendant adopted a view of the relevant allegations which it considered was justified by the evidence without first making a judgment about whether the Panel's view of the allegations was reasonable. It compounded this error of approach by failing to take account of a highly material factor the maintenance of public confidence in the police service - when determining the appropriateness of the sanction imposed by the Panel. In my judgment it is open to this court to intervene given those errors on the part of the Defendant.
- During the course of his oral submissions, in particular, Mr Davies, on behalf of the Interested Party, sought to persuade me that the sanction of dismissal was not reasonable if, notwithstanding the conduct about which complaint was made, the police officer in question was still "operational." Mr Davies used the word "operational" to mean that it would still be reasonably possible to deploy the officer in question in his normal duties notwithstanding his proved or admitted misconduct.
- I have considered this submission in the context of the authorities put before me. I am unable to discern from the authorities any statement of principle to the effect that dismissal should not be regarded as a reasonable sanction if, despite the misconduct in question, the officer remains "operational". No doubt if the misconduct in question has had the effect of rendering the officer non operational it may follow, almost inevitably, that dismissal will be regarded as a reasonable sanction. It does not follow, however, that the misconduct in question must have that effect for the sanction of dismissal to be regarded as reasonable. To repeat, I can find no statement of principle in the authorities which supports Mr Davies' submission. In any event in this case the Panel's conclusion was that it was "impossible to reconcile your behaviour with that of a professional police officer" and that "the various breaches of the Standards of Professional Behaviour have been a flagrant disregard of those Standards which in turn has made his position as a police officer untenable." In the context of the whole of the passage in which those expressions of view appear (see paragraph 14 above) that seems to me to be tantamount to a finding by the Panel that the Interested Party was no longer operational as a consequence of his misconduct.
- Finally, I should refer briefly to an aspect of the Defendant's decision which troubled me to some extent. The Defendant was at pains to say that it was part of its function to ensure a consistency of approach to the sanctions imposed upon police officers for misconduct. I do not consider that aim to be objectionable in itself but there is a need for caution. There may be many instances where it will be easy, comparatively, to establish a consistent approach; one example is cases involving dishonesty on the part of a police officer. I doubt, however, whether Misconduct panels or the Defendant are often faced with the sort of misconduct alleged in the instant case. Indeed, I would be surprised if there were many instances of cases such as the present in which an officer has engaged in quite different forms of unprofessional and discreditable behaviour. While the Defendant claimed that it was seeking to apply an approach which was consistent with other decisions made in comparable cases it provided no details or reasoning to justify that assertion. This issue has not been raised directly as a discrete ground of challenge and, accordingly, I do not take account of it in reaching my decision in this case. I mention it only so that the Police Appeals Tribunals are aware of the possibility that more detail may be necessary if consistency is to found a justification for allowing an appeal against the findings of a Misconduct panel especially when, as here, consistency was not a ground of appeal and it had formed no part of the police officer's case before the panel.
- I have reached the conclusion that the decision of the Defendant should be quashed. I presume that a quashing of the decision means, inevitably, that the decision of the Panel will be restored (a presumption confirmed by the draft order agreed by the parties consequent upon my judgment). The issue of costs will be determined in accordance with the terms of my order and the timetable attached thereto.
