England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT, QBD
ADMINISTRATIVE COURT (BURNETT J)
REF: CO/8560/2010

		Royal Courts of Justice Strand, London, WC2A 2LL
		31 July 2012

Lord Justice Maurice Kay :

1. For 22 years Mr Neil Salter was a serving police officer. He began in the West Yorkshire Police before transferring to the Dorset Police Force in July 1991. He received commendations and in June 2008 he was promoted to sergeant. The events with which this case is concerned occurred at the end of October 2008. At all times before then, Mr Salter had had an unblemished career. Sadly, all that was brought to an end by those events. At a misconduct hearing on 27 August 2009, Mr Salter admitted a disciplinary charge that he had not behaved with honesty or integrity in relation to an investigation. The Misconduct Panel (the Panel) required him to resign. Mr Salter applied for a Chief Constable's review but on 16 November 2009 the Chief Constable decided that any lesser sanction than a requirement to resign would be wholly inadequate. Mr Salter then appealed to the Police Appeals Tribunal (PAT). By its report dated 9 July 2010 the PAT allowed the appeal and substituted a decision that Mr Salter should be reduced to the rank of constable and reinstated in that rank to the Dorset Police. In the present proceedings, the Chief Constable applied for judicial review of the decision of the PAT. That application was successful. On 14 December 2011, Burnett J quashed the decision of the PAT and substituted a decision that Mr Salter's appeal to the PAT be dismissed. However, he granted permission to appeal to this Court on the grounds that the case raises novel questions in relation to police discipline which merit the attention of the Court of Appeal.

The facts

2. The judgment of Burnett J contains the following succinct summary of the undisputed facts (at paragraph 7):

"In the early hours of Sunday 26 October 2008 PC Ian Morton was killed in a road traffic accident. No other vehicle was involved. Mr Salter was appointed as the Deputy Senior Investigating Officer under Inspector Wilcox. PC Mesher was appointed as Family Liaison Officer. It soon became apparent that PC Morton had a long-term partner but was also involved with a member of another force with whom he had spent the night before his death. His partner was unaware of the relationship. Two mobile telephones were recovered from the crashed vehicle. It became known to Mr Salter that one of those telephones contained stored text messages which evidenced the relationship. On 27 October Mr Salter met PC Mesher. He instructed him to go to the Vehicle Recovery Centre, find the telephone and destroy it. The death was the subject of a Coroner's Investigation. PC Mesher was not prepared to destroy evidence and raised the matter with senior colleagues. Other officers attended the Recovery Centre and seized the two telephones that had been in the car at the time of the crash. The matter was reported to the Professional Standards Department of the Dorset Police. Mr Salter was arrested and questioned under caution. He admitted using the words 'Destroy the phone' to PC Mesher. He said that he was thinking out loud. His intention was to protect PC Morton's family from discovering the other relationship. He was aware that the Coroner would require all the evidence to be produced. He said that he had been in touch with the officer with whom PC Morton had spent the night before his death and that he had spoken to her before meeting PC Mesher."

3. Although the interview under caution did not take place until 6 November, it is right to say that, from the outset, Mr Salter reacted with candour in relation to his misconduct. On 27 October he admitted to colleagues that the decision to destroy the phone was his alone, recognised that it was a wrong and bad decision and said that PC Mesher had been right to speak out about it. In short, he accepted full responsibility.

The Misconduct Hearing on 27August 2009

4. The allegation against Mr Salter was formulated as follows:

"That your conduct on 27 October 2008 did not meet the appropriate standard as set out in Regulation 3(1), Schedule 1, Paragraph 1 of the Police (Conduct) Regulations 2004 in that as a Police Sergeant with Dorset Police you did not behave with honesty or integrity in relation to the investigation into the death of Detective Constable Ian Morton.

Particulars

On 27 October 2008, you were the Deputy Senior Investigating Officer, in relation to the death of Detective Constable Morton. You instructed the appointed Family Liaison Officer, Constable 1845 Scott Mesher to attend the Ibsley Recovery Centre and to locate and destroy the mobile telephone belonging to the deceased officer, even though you knew it would be required as evidence at the Inquest into the officer's death."

5. In the 2004 Regulations the duty to behave with honesty and integrity is expressed as follows:

"Honesty and Integrity

It is of paramount importance that the public has faith in the honesty and integrity of police officers. Officers should therefore be open and truthful in their dealings; avoid being improperly beholden to any person or institution; and discharge their duties with integrity."

6. At the misconduct hearing, Mr Salter was represented by counsel who presented evidence in mitigation. There was a statement from PC Mesher saying that he believed Mr Salter's decision had been the result of misguided loyalty towards the family of PC Morton and made to protect them from further upset. Other officers gave statements to the same effect. They confirmed that on 27 October 2008 Mr Salter had apologised for what he had done and had said that PC Mesher was correct to bring his concerns to the attention of other officers. Sergeant Quill described Mr Salter as "very dedicated, very keen to look after his troops and to do his work properly" and Sergeant Allmond described Mr Salter's good work in Traffic Division. Counsel on behalf of Mr Salter contended for the sanction of reduction in rank rather than dismissal or a requirement to resign.
7. The Panel retired for some 2½ hours before rejecting that submission and requiring resignation. Its reasoning was as follows:

"In our judgment your actions amounted to a very serious breach of integrity. You are an officer with 22 years service with significant experience of road traffic collisions and their investigation. You are also an experienced Family Liaison Officer who is used to dealing with families involved in road traffic collisions. In your role as a sergeant you are expected to set high standards to those under your supervision, particularly with regard to honesty and integrity. The Panel accepts that on the balance of probability you made a decision to have the mobile phone belonging to Ian Morton removed and destroyed as you were concerned about the feelings of his family. However, the decision to remove the mobile phone had serious implications in relation to subsequent investigation of the road traffic collision. It is very clear that information that may have been held on the mobile phone could have provided important evidence in relation to the collision and therefore its removal and destruction would have had serious implications in relation to any subsequent judicial proceedings. The Panel also consider that your direction to PC Scott Mesher to remove and destroy the mobile phone is an aggravating factor and could have led to another officer compromising their integrity. PC Mesher took the courageous decision to consult another supervisor which prevented this situation from escalating any further. We acknowledge that when presented with the facts you took responsibility for your actions. We also acknowledge that the mitigation presented to the Panel highlights the fact that you have been a hardworking and competent police officer throughout your service. However, it is our judgment that your behaviour has seriously breached the values of the Force. The public expect the very highest standards of honesty and integrity from police officers. In this case your standard of behaviour has fallen well short and therefore I am requiring you to resign from the Force forthwith."

The Panel had comprised an Assistant Chief Constable and two Superintendents from the Dorset Police.

The Chief Constable's Review

8. The Chief Constable reviewed the decision of the Panel. He conducted an oral hearing on 11 November 2009. Mr Salter was represented by his solicitor, Mr Wilson. A representative of the Police Federation also spoke on his behalf. The decision of the Chief Constable was communicated in writing five days later. He recorded that his function was one of review and that he was not concerned with substituting his own decision for that of the panel. He noted that the material placed before him did not contain an apology or a convincing expression of remorse. His conclusions were expressed as follows:

"29. Those holding the office of Constable, which carries with it not only significant responsibilities but also enormous powers, are expected to have the personal strength of character to make sound judgements under pressure and in the face of ethical dilemma. The behaviour of police officers when they are not under direct supervision or scrutiny is just as important as when they are. Given my own regular contact with the public and Independent Police Complaints Commission in relation to matters of police performance and conduct I cannot accept Mr Wilson's argument that were the public to know the details of this case they would take a view more lenient than that taken by the panel.

30. Mr Salter's application for this Review argued that the decision to require an officer to resign calls for a 'careful and proper analysis of the facts and mitigation in any particular case'. I judge that this is precisely what happened in this particular case.

31. During my Review I have identified no clear errors or inconsistencies in process or determination at the Misconduct Hearing. Neither was I able to conclude that the sanction imposed by the panel was so plainly excessive that it could be properly characterised as unfair. I conclude that the panel took very careful account of all the issues in this case before deciding that Mr Salter should be required to resign. In my view the fact that Mr Salter has been allowed the dignity of resignation rather than being dismissed from the service demonstrates how fully the mitigation, his previous good record and the character evidence has been taken into account. Conversely, any lesser sanction, such as reduction in rank or a financial penalty would, in my view, be wholly inadequate to mark the seriousness of Mr Salter's misconduct. The misconduct admitted is not an issue solely in relation to rank but also to Mr Salter's honesty and integrity as a police officer, which as a result of his own actions has been irreparably damaged.

32. Furthermore I do not believe that Mr Salter could ever again become a good and efficient police officer due to the entire question of an ongoing lack of trust. For example, the nature of Mr Salter's misconduct would mean that he would be able to undertake only a very limited range of police duties because he simply could not be put forward to the Crown Prosecution Service or the courts as a witness of truth.

33. I therefore conclude that the sanction imposed at the Misconduct Hearing on 27 August 2009 ie a requirement to resign from the police service was both justified and appropriate in the circumstances."

Although the Chief Constable was correct when he said that he had not received an apology from Mr Salter, it is now accepted that preparation of a statement of apology had been undertaken. However, the apology was not communicated by reason of oversight. Given Mr Salter's candour in the immediate aftermath of the events, I am sure that the explanation of oversight is correct.

The hearing by and decision of the PAT

9. The PAT was appropriately constituted pursuant to the Police Appeals Tribunals Rules 1999. It was chaired by Mr Dorian Lovell-Pank QC. Its other members were Ms Della Cannings, a retired Chief Constable from another force; Mr Graeme Mann; a retired police constable; and Ms Ann Stribley, a member of the Dorset Police Authority. The procedure was governed by the Police Appeals Tribunals Rules 1999. It is common ground that the approach required of the PAT is that set out in the judgment of Collins J in R v Police Appeals Tribunal, ex parte the Chief Constable of Avon and Somerset, [2004] EWHC 220 (Admin), paragraph 28:

"It seems to me that when Parliament confers a right of appeal to a specialist tribunal such as the Police Appeals Tribunal, it is inherent in that that the powers of the tribunal are to consider all matters put before it, in the form of fresh evidence or fresh submissions or whatever, and to reach its own conclusions upon the matter. Of course, it will have regard to the decision of the body from whom the appeal is brought. It will have regard to the views of the Chief Constable, and will no doubt be slow to differ from those views unless it is persuaded that they were, in its view, wrong, but if it is so persuaded then it has an obligation to apply what it believes to be the correct result."

I should add that more recent Rules, which did not apply to this case, have limited the PAT to more of a review function.

10. The PAT explained its decision in a series of numbered paragraphs but then added an "Epilogue". The material parts under the heading of "Decision" are as follows:

"6.1 We begin by recognising the sentiments and observations expressed by the panel and the Chief Constable as well made and well founded in all cases concerning this sort of behaviour.

6.2 The appellant admits that he did not behave with honesty and integrity over the mobile telephone. His instruction to PC [Mesher] is an aggravating feature in that he placed a junior officer in a difficult and intolerable position. The appellant is clearly unfit to continue in any supervisory role. The question is whether or not he is unfit to remain a police officer at all. It is here that we part company with the panel and Chief Constable. We do so for the following reasons.

6.3 Both the panel and the Chief Constable expressed the view that the public expects the highest standards of honesty and integrity from police officers. We agree. But one needs to take this tenet a step further forward. If the public was fully informed as to the circumstances of this particular case, would it expect or wish the officer to lose his job after 22 years or have him taught a lesson instead? The Chief Constable rejects the argument that the public would take a more lenient view than the panel. We are not so sure.

6.4 In the experience of this tribunal, the character evidence, taken together with the appellant's unblemished career in the force, is exceptional. We consider the letter of 19 June 2009 from Mr M C Johnson, the Coroner for the Western District of Dorset, to be a particularly powerful piece of mitigation. The letter speaks for itself, but of note are his comments that

… I believe that he is a man of integrity and great loyalty, both to his colleagues and to the Dorset Force in general …I also suspect that if this had occurred twenty years ago, the whole incident would be viewed in a different light and he might even had [sic] been congratulated for his actions. I perfectly understand that what he did was wrong and that nowadays there is a need for total transparency … I would only say that in my view [the appellant] might be described as 'an old-fashioned policeman' and I used [sic] the phrase 'not intending any criticism'.

6.5 The behaviour of this experienced and mature police officer has to be taken very much in its own context. It is clear that the Appellant acted not for any personal gain but to avoid further grief to DC Morton's family. That cannot be a defence nor an excuse, but it is a reason for his thought process which cannot be simply brushed aside. Whilst keeping firmly in mind the question of honesty and integrity, we ask ourselves whether the Appellant would be biased in favour of others in the future and whether he can be trusted in the future.

6.6 This takes us directly to the Appellant's future deployment within the evidential chain if he were to remain in the force. The Chief Constable … says

'… further the nature of Mr Salter's misconduct would mean that he would be able to undertake only a very limited range of police duties because he simply could not be put forward to the Crown Prosecution Service or the courts as a witness of truth.'

6.7 …The Appellant's finding would always need to be disclosed in [criminal] proceedings. Our experience, however, is that it is the facts and circumstances behind the finding which are of importance and not their mere 'title'. The fact that the Appellant admitted the charge would count in his favour. We feel, therefore, that the Chief Constable is overly pessimistic in his assessment of the Appellant's likely future deployment.

6.8 The Appellant acted out of concern for others. Laudable as that may seem, he crossed the line into unprofessional conduct which involved a junior officer who, commendably, had the good sense not to carry out the instructions. …

6.9 This was a one-off aberration in an otherwise unblemished career. 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. This is the situation here.

6.10 We consider that the public might well think it somewhat harsh and lacking in compassion for an officer in the Appellant's position and situation to lose his job, with all that that entails, for what he did.

6.11 We are more than alive – as the Panel and Chief Constable will have been – that the fact that a sanction affects not only the officer concerned but the Dorset Police and the police service generally and the trust and confidence in which they expect to be held by the public. Dismissal is reserved for the most serious cases. A requirement to resign is appropriate for cases which are not the most serious but where the conduct of the officer has shown him or her to be unfit to remain a police officer. We are not persuaded that this is the case here. We are clear, however, that the Appellant should be forthwith relieved of his supervisory role, something he himself has contended for before the Panel, the Chief Constable and in his grounds of appeal before this Tribunal.

6.12 Accordingly we allow the appeal. We direct that the appellant be forthwith reduced in rank to Police Constable and reinstated in that rank to the Dorset Police."

11. The PAT then added its "Epilogue". In it, it stated that it had not come to its decision "lightly or in haste"; that it had found the case "unusual and not at all easy"; that it was "a finely balanced case", and that its different conclusion from those of the Panel and the Chief Constable was "one of emphasis rather than of substance". It added:

"Equally, this case should not be seen as any kind of endorsement of what the Appellant did. Our decision is limited entirely to the facts of this case and should not be seen as any kind of precedent."

The judgment of Burnett J

12. In a careful reserved judgment Burnett J referred to the authorities relating to solicitors' disciplinary proceedings. He set out a lengthy passage from the well-known judgment of Sir Thomas Bingham MR in Bolton v Law Society [1994] 1 WLR 512. He included these passages from Bolton:

"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 second purpose is the most fundamental of all: 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 … It follows that considerations which would ordinarily weigh in mitigation of punishment have less effect on the exercise of this jurisdiction than on the ordinary run of sentences imposed in criminal cases. … all these matters (of personal mitigation) are relevant and should be considered. But none of them touches the essential issue, which is the need to maintain amongst members of the public a well-founded confidence that any solicitor whom they instruct will be a person of unquestionable integrity, probity and trustworthiness."

13. Burnett J then observed that the approach in Bolton has been substantially endorsed by this court in Salisbury v Law Society [2009] 1 WLR 1286. There, in addition to confirming "the Bolton principles" and referring to a "very small residual category of cases", Jackson LJ set out the correct approach to be taken by the High Court when considering solicitors' disciplinary cases. He said (at paragraph 30):

"The correct analysis is that the Solicitors' Disciplinary Tribunal comprises an expert and informed Tribunal, which is particularly well placed in any case to assess what measures are required to deal with defaulting solicitors and to protect the public interest. Absent any error of law, the High Court must pay considerable respect to the sentencing decisions of the Tribunal. Nevertheless, if the High Court, despite paying such respect, is satisfied that the sentencing decision was clearly inappropriate, then the court will interfere."

Burnett J concluded (at paragraph 22):

"… in my judgment, the correct approach to the question of sanction on a finding of serious impropriety by a police officer in the course of his duty is reflected in the principles articulated in Bolton and Salisbury. 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."

He saw no reason why the same considerations did not arise in connection with investigations carried out on behalf of Coroners.

14. All this led him to conclude (at paragraph 24):

"… that the most important purpose of disciplinary sanctions, particularly in cases involving dishonesty or impropriety in connection with an investigation, is to maintain public confidence in the police service and maintain its collective reputation."

15. He added:

"One consequence of the fact that sanctions imposed in the disciplinary process are not primarily punitive is that personal mitigation is likely to have a limited impact on the outcome. Cases of proven dishonesty and lack of integrity in an operational environment, of which the destruction, suppression or fabrication of evidence, or attempts to do so, would be clear examples, are the most serious breaches of the Code of Conduct. In such cases the sanction of dismissal or requirement to resign would, to use the language of Sir Thomas Bingham in Bolton, 'almost invariably' be appropriate but there exists 'a very small residual category' where a lesser sanction may be available, as Jackson LJ put it in Salisbury."

16. Burnett J then proceeded to consider the submissions advanced on behalf of the Chief Constable under three headings: (1) the test of exceptionality and the impact of personal mitigation; (2) insufficient deference to the Chief Constable on review; and (3) irrationality.
17. As to (1) he said (at paragraph 30):

"Rather than concluding that there is a two-stage test, the correct approach for a decision-maker is to recognise that a sanction which results in the officer concerned leaving the force would be the almost inevitable outcome in cases involving operational dishonesty. That terminology itself recognises that there may be exceptions. In concluding that the case is exceptional, the decision-maker must identify the features of the circumstances of the misconduct which support a different conclusion, recognising that the number of such cases would be very small. The decision-maker would take account of personal mitigation, but must recognise its limited impact in this area."

Applying that approach to the present case he stated (at paragraph 32):

"The language of the Tribunal suggests that it did not approach its decision-making on the basis that a finding of operational dishonesty normally called for dismissal or a requirement to resign from the force. Furthermore, it is clear from the way in which it discussed the question of mitigation that it gave very great weight to personal mitigation in circumstances where it was not appropriate to do so."

He therefore concluded that "the Tribunal misdirected itself in law in both these respects".

As to (2), he did not consider that the PAT's approach to the decision of the Panel or to the reasons of the Chief Constable for upholding the Panel's decision demonstrated any error of law. At the same time, he appeared to prefer the view of the Chief Constable to that of the PAT on the question of deployment difficulties if Mr Salter were to remain a police officer. So, for that matter do I, but it is not necessary for me to say more about that because it did not form a significant part of the judge's reasoning.

As to (3), irrationality, Burnett J said (at paragraphs 37 – 38):

"Mr Beggs advances a powerful argument that the features of Mr Salter's misconduct when viewed through the correct legal lens, and in particular if mitigation were given the correct weight, could deliver only one lawful outcome, namely dismissal or requirement to resign.

There is no doubt that the Tribunal's approach to the question of personal mitigation resulted in its attaching more weight to it than was justified. Having accorded more weight to that mitigation than the proper legal approach justified, the Tribunal concluded in its epilogue that the appeal before it was 'a finely balanced case'. It follows as a result of irresistible logic that it would have dismissed the appeal had it followed the correct legal approach, both as to mitigation and the starting point being dismissal or requirement to resign for operational dishonesty. When taking account of those factors this was not a finely balanced case. The misconduct was very serious, for the reasons given by the Panel and the Chief Constable. Those reasons were accepted by the Tribunal. It is true that the mitigation advanced by Mr Salter concerning the misconduct itself shows that the destruction of evidence can arise in circumstances that are worse. But his personal mitigation could not, in my judgment, tip the scales against the sanction that resulted in his leaving the Police Force."

He added that "on the material before it and applying the correct legal approach, the PAT was bound to dismiss Mr Salter's appeal". Accordingly he quashed the decision of the PAT.

The grounds of appeal to this Court

18. Although the skeleton argument on behalf of Mr Salter advanced five grounds of appeal, it seems to me that there is some overlap between them and that, in reality, they can be reduced to three. First, what Burnett J described as "the correct approach for a decision-maker" in paragraph 30 of his judgment was too prescriptive. Secondly, the judge was wrong to "read across" from the authorities on solicitors' disciplinary proceedings. Thirdly, the decision of the PAT was not "clearly inappropriate" or "irrational".

Discussion

19. In my judgment, the criticism of paragraph 30 of the judgment below is entirely misplaced. I accept that there is nothing in the statutory provisions or the 2004 Regulations or the relevant Home Office Guidance which seeks to circumscribe the approach of the PAT. However, that does not preclude the development of principles to ensure that the PAT acts in a consistent manner and not arbitrarily. I do not consider that paragraph 30 of the judgment demanded a formal and express self direction by the PAT. It identified as the correct approach one that seems to me to be not only appropriate but incontrovertibly correct. It recognised, correctly, that a sanction resulting in the officer concerned having to leave the force will be the usual consequence of operational dishonesty but it admitted of the possibility of exceptional cases. It is inherent in the requirement of judicial and quasi-judicial reasoning that where a decision-maker has to choose between the usual and the exceptional course, it is incumbent upon him, if he chooses the exceptional course, to explain why he has done so. The question for a reviewing court is whether or not the decision-maker has complied with that obligation rather than whether there is, on the face of his decision, a formal and express self-direction about it. In the event, it seems to me that, read as a whole, the decision of the PAT, including its Epilogue, discloses an awareness of the usual outcome in cases involving operational dishonesty and of the exceptionality of the course it was taking.
20. It follows that I am not convinced that the judge was justified, in paragraph 32 of his judgment, in concluding that the PAT "did not approach its decision-making on the basis that a finding of operational dishonesty normally called for dismissal or a requirement to resign". On the other hand, I consider that the judge was on firmer ground when concluding that the PAT did not proceed on the basis that personal mitigation carries less weight in this context than in some others. Such mitigation is of course relevant and it is clear that the PAT found "the character evidence, taken together with the … unblemished career in the Force" to be "exceptional". Perhaps there is contained within that finding an implicit acknowledgement that personal mitigation generally counts for less in cases such as this but the PAT considered that, so exceptional was the mitigation, that, uniquely, it tipped the balance. My uncertainty about whether this is the correct analysis of the PAT's legal approach to mitigation disposes me to the view that it will be more profitable to revisit the question of mitigation in its factual context when considering the judge's finding of irrationality.
21. I turn to the criticism of the judge for "reading across" from the solicitors' disciplinary cases. I reject this criticism. Whilst there are differences between the positions of police officers and solicitors, the judge was not and could not have been ignorant of them. It seems to me that he was simply drawing on the authorities in relation to solicitors by way of analogy. 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. I am entirely satisfied that Burnett J committed no error in this regard.
22. I turn to the third issue, irrationality. That sometimes misunderstood word means no more here than the reaching of a conclusion which no reasonable Tribunal could have reached on the same material with the consequence that its decision was (in the words of Jackson LJ in Salisbury) "clearly inappropriate". To my mind, this is the central question in the present case. Did the PAT exceed the limits that were reasonably open to it? In my judgment it did. The focus must be on what Mr Salter actually did. In the course of an investigation for which he had a measure of supervisory authority he sought to procure the destruction of potentially significant evidence. What is more, he sought to do so through the medium of a junior officer. On any view, that was a serious impropriety. It is a primary duty of police officers to gather and to preserve evidence. It is what they do. It is what the public rely upon them to do. To destroy or procure the destruction of evidence is, in the words of Mr Beggs QC, inimical to the office of constable. Of course, I accept that there are features in this case which differentiate it from one characterised by self-interest or corruption. The impropriety was not sophisticated or the subject of careful planning. It was conceived within a short space of time. The Coroner was already aware of PC Morton's illicit relationship. Mr Salter's motives were unselfish and well-intentioned, even if misguidedly so. Nevertheless, he did what police officers must not do and must not seek to cause their junior colleagues to do. Notwithstanding the factors which mitigate the offence (as opposed to factors of personal mitigation), it remained a very serious offence. There are more heinous examples of impropriety in the course of investigation but in relation to many of those the likely consequence would include prosecution and conviction in the criminal courts, not just a requirement to resign from the Force, which is in itself a slightly lesser sanction than dismissal.
23. As to personal mitigation, just as an unexpectedly errant solicitor can usually refer to an unblemished past and the esteem of his colleagues, so will a police officer often be able so to do. However, because of the importance of public confidence, the potential of such mitigation is necessarily limited. The PAT found the letter from the Coroner to be "a particularly powerful piece of mitigation". I do not consider that it was justified in treating it as such. On any reasonable view, it misunderstood or misstated the seriousness of the offence, although I do not question the sincerity of the Coroner's opinion. Like Burnett J, I cannot see this as "a finely balanced case" or one of the "very small residual category" in which operational dishonesty or impropriety need not result in dismissal or a requirement to resign. Burnett J derived assistance from the judgment of Underhill J in R (Bolt) v Chief Constable of Merseyside Police [2007] EWHC 2607 (QB). There, Underhill J said (at paragraph 28):

"While I would certainly accept that not every untruth or half truth told by a police officer, however trivial and whatever the circumstances, would necessarily constitute misconduct justifying dismissal, the misconduct found by the Panel … constituted deliberate dishonesty in an operational context. As para 1 of the Code rightly emphasises, integrity is a fundamental requirement for a police officer. I should, frankly, be dismayed to think that such conduct was not of a kind which was normally thought to merit dismissal."

Whilst I acknowledge that the misconduct of Mr Salter was in some ways less serious than that in Bolt, the comments are apt. It may not be profitable to speculate about a case which might fall within the "very small residual category" but Mr Beggs proffered as an example a situation in which, hypothetically, Mr Salter had, for humane reasons, denied the existence of the affair to DC Morton's partner. He described that as "a white lie", not involving the destruction of evidence or interference with proceedings. I consider that there is force in his suggestion.

24. Anyone reading the facts of the present case would feel sorry for Mr Salter. It is a tragic case. However, like Burnett J, I am driven to the conclusion that it had only one permissible conclusion and that the PAT erred in reaching the contrary one.

Conclusion

25. It follows from what I have said that I would dismiss Mr Salter's appeal.

Lord Justice Stanley Burnton:

26. I agree that this appeal should be dismissed and I agree with the reasons given by Maurice Kay LJ. I would, however, add that I consider the decision of the PAT to have been defective, and liable to be set aside, for two reasons additional to those which the judge upheld.
27. First, the Tribunal stated, at paragraph 6.11, that its members "are clear, however, that [Mr Salter] should forthwith be relieved of his supervisory role". Nonetheless, they found that he was fit to be reinstated as a police constable.
28. In cases in which the concern is with the abilities of an officer, it may be sensible, and perfectly rational, to consider that he is unfit for a supervisory role, but fit to act as a constable. In this case, however, the concern did not relate to the abilities of the officer, but to his integrity. An actual or perceived lack of integrity disqualifies a person from acting as either a constable or in a police supervisory role. The Tribunal did not explain how Mr Salter could be fit to be a constable but not to be a supervisor. This reason for its conclusion was either irrational or unreasoned, and on one or both grounds was defective.
29. Secondly, the Tribunal said, at paragraph 6.7:

"… the position of disclosure of an officer's disciplinary record is never far from the surface.

[Mr Salter]'s finding would always need to be disclosed in (criminal) proceedings. Our experience, however, is that the facts and circumstances behind the finding which are of importance and not merely their 'title' The fact that the Appellant admitted the charge would count in his favour.

We feel, therefore, that the Chief Constable is overly pessimistic in is assessment of [Mr Salter]'s likely future deployment."

30. Again, I consider this important conclusion of the Tribunal to be insufficiently reasoned. The fact, which the Tribunal accepted would have to be disclosed, that the officer admitted to an attempt to have evidence destroyed would seriously affect his credibility. The Tribunal failed to explain what the future deployment of the office could sensibly be.

Lord Justice Gross:

31. I also agree that this appeal must be dismissed, for the reasons given by Maurice Kay LJ. As Maurice Kay LJ has underlined, this is a very sad case indeed and I find it impossible not to have sympathy for Mr. Salter. His insuperable difficulty, however, is that the operational integrity of the police is of fundamental importance. A central role of the police involves the gathering and preservation of evidence. The destruction of evidence is inimical to the office of constable, all the more so, when it entailed an instruction to a junior officer to do so. For my part too, the practical problems that would attach to any future deployment of Mr. Salter as a police officer reinforce the conclusion to which I feel driven to come.