England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		16 November 2007

Mr Justice Underhill:

INTRODUCTION

1. The circumstances giving rise to this claim can be summarised as follows:

(1) On 17^th November 2005 the Claimant, who was then a police constable with the Merseyside force, was found guilty by a disciplinary panel constituted under reg. 18 of the Police (Conduct) Regulations 1999 ("the 1999 Regulations") of five breaches of the Code of Conduct prescribed by Sch. 1 to the Regulations. The most serious allegations arose out of an incident on 18^th September 2003 when it was said that he and another officer, PC O'Leary, had failed properly to investigate a reported robbery because that would have involved revealing that they were in an area where they had no business to be for reasons that had nothing to do with their duties. The panel decided that he should be dismissed.

(2) The Claimant applied for a review of that decision under the procedure provided for by regs. 34-37 of the 1999 Regulations, which I set out in full at para. 4 below. Under normal circumstances that review would have been carried out by the chief officer of the force, i.e. the Defendant (or his designated deputy), but because PC O'Leary was the subject of a separate disciplinary enquiry and was accordingly well-known to senior officers in the Merseyside force, it was arranged (pursuant to reg. 37 (2)) that the review would instead be conducted by the Chief Constable of the North Wales Police, Mr. Richard Brunstrom.

(3) By a decision dated 8^th May 2006 Mr. Brunstrom declined to interfere with the findings of misconduct against the Claimant. However, he purported to set aside the sanction of dismissal imposed by the panel and to substitute the maximum penalty available short of loss of office, i.e. a fine of thirteen days' pay (equivalent to £1,596.92).

(4) By letter dated 22^nd May 2006 the Defendant announced that he had decided to reject what he described as Mr. Brunstrom's "recommendations" and to maintain the decision of the panel.

(5) By the present proceedings, which were commenced on 21^st August 2006, the Claimant challenges the lawfulness of the Defendant's refusal to implement Mr. Brunstrom's decision. It is his case that the Defendant was obliged to accept and give effect to that decision, with the result that he should be treated as having been reinstated from 8^th May 2006.

2. Permission to apply for judicial review was given by Sullivan J. on 20^th November 2006. I have had the advantage of full and cogent written and oral submissions from Mr. Gavin Millar QC, leading Ms. Henrietta Hill, for the Claimant, and from Mr. John Beggs for the Defendant. Mr. Brunstom has been joined as an interested party but has taken no part in the proceedings.

THE PROVISIONS GOVERNING THE REVIEW PROCEDURE

3. No issue arises before me as regards the initial hearing before the panel, and I need not reproduce here the provisions of the 1999 Regulations setting out the disciplinary procedure applicable to police officers (which are regs. 19-33). It is sufficient for present purposes to say that they provide for a hearing by a panel of three officers appointed by the chief officer of the force concerned, one of whom must be of the rank of assistant chief constable and acts as "presiding officer".
4. I should however set out in full the provisions of the Regulations providing for the review procedure ("the review provisions"). These are as follows:

Request for a review

34.  - (1) Where a sanction is imposed under regulation 31, the member concerned shall be entitled to request the chief officer of the force concerned or, where the member concerned is a member of the metropolitan police force, the Assistant Commissioner ("the reviewing officer"), to review the finding or the sanction imposed or both the finding and the sanction.

(2) A request for a review must be made to the reviewing officer in writing within 14 days of receipt of the written summary of reasons given in accordance with regulation 33 unless this period is extended by the reviewing officer.


(3) The request for a review shall state the grounds on which the review is requested and whether a meeting is requested.


Conduct of the review

35.  - (1) The reviewing officer shall hold a meeting with the member concerned if requested to do so.


(2) Where a meeting is held the member concerned may be accompanied by a member of a police force and, in a case where regulation 16 applies, by counsel or a solicitor.


Finding of the review

36.  - (1) The member concerned shall be informed of the finding of the reviewing officer in writing within three days of completion of the review.


(2) The reviewing officer may confirm the decision of the hearing or he may impose a different sanction which is specified in regulation 31(i) but he may not impose a sanction greater than that imposed at the hearing.


(3) The decision of the reviewing officer shall take effect by way of substitution for the decision of the hearing and as from the date of that hearing.


(4) Where as a result of the decision of the reviewing officer the member concerned is dismissed, required to resign or reduced in rank he shall be notified in writing of his right of appeal to a Police Appeals Tribunal.


Hearing of review in absence of chief officer

37.  - (1) Subject to paragraphs (2) to (4), where the chief officer is an interested party or the circumstances in section 12(4)(a) or (b) of the 1996 Act apply, the review shall be conducted by the assistant chief constable designated under section 12(4) of the 1996 Act.


(2) Where the designated assistant chief constable is absent or an interested party, the review shall be conducted by the chief officer of another force who has agreed to act in that capacity.


(3) …


(4) … .

5. Ss. 83 and 87 of the Police Act 1996 empower the Home Secretary to issue guidance to police authorities, chief officers and other members of police forces concerning the discharge of their functions under, inter alia, regulations providing for disciplinary procedures against police officers; and they are obliged to have regard to such guidance. A document entitled "Guidance on Police Unsatisfactory Performance, Complaints and Misconduct Procedures" has been issued in accordance with those provisions. Reviews under regs. 34-37 of the 1999 Regulations are the subject of section 4 of the Guidance. I should set out the following provisions of section 4 (as it stood at the relevant time):

I. SCOPE

4.1. A police officer will have a right to ask his or her Chief Constable to review any decision of an unsatisfactory performance hearing or a misconduct hearing.

4.2. The review will provide the opportunity for a Chief Constable to take quick action to rectify clear errors or inconsistencies in process or determination by the earlier hearing.

II. THE REQUEST FOR A REVIEW

…

III. THE REVIEW

4.7. Unless the officer concerned requests a personal hearing, which must be granted, the Chief Constable will conduct the review on the basis of the account of the hearing prepared by the presiding officer and the representations made by the officer concerned in the request for a review. Before or during the review it will be open to the Chief Constable to seek extra information from the presiding officer if this is considered necessary (eg the officer concerned may have raised a matter in the request for a review which is not adequately covered in the presiding officer's account of the hearing). Where this is done, both the request for the information and the information itself should be in writing, and copies of the request and the presiding officer's response should be supplied to the officer concerned.

4.8. Where a personal hearing takes place, this will not amount to a fresh re-hearing of the case. Rather, it will be an opportunity for the officer concerned to state his or her grounds for seeking a review of the hearing's decisions in person, and will allow the Chief Constable to question the officer concerned about those grounds or any other relevant points.

4.9 …

4.10. The Chief Constable must have had no previous involvement in the case under review, and nor must he or she have any detailed knowledge of the case prior to the request for a review.

4.11. If the Chief Constable (Commissioner in the City of London, Assistant Commissioner in the Metropolitan Police) is absent, unavailable or was previously involved in the case, the review will be conducted by their designated Deputy. If the designated Deputy has previously been involved in the case or has overall responsibility for complaints and discipline matters, the case will be reviewed by another Chief Constable or, in the Metropolitan Police, another Assistant Commissioner. A Chief Constable from another force conducting the review will consider the case and make a recommendation as to whether to uphold or vary the decisions of the hearing to the Chief Constable of the officer concerned, who will remain responsible for the implementation of the decision. In the Metropolitan Police another Assistant Commissioner will review the case and uphold or vary the decisions as if he or she were the Assistant Commissioner for the area in question.

4.12. The task of the Chief Constable in conducting the review will be to determine whether the original hearing was conducted fairly and whether the outcome decided upon appears to have been justified and appropriate to the nature of the case. Reviews must be carried out fairly and in accordance with the principles of natural justice. The Chief Constable will be responsible for determining the course of the review.

4.13. The Chief Constable will read or hear the grounds put forward by the officer concerned in his or her request for a review, together with any representations made at a personal hearing by the officer and his or her 'friend' or legal representative, and will consider the presiding officer's account of the hearing. The Chief Constable may also consider any further information requested from the presiding officer (paragraph 4.7 refers). Where there is some dispute about an element of the original hearing the Chief Constable may call for and consider the relevant part of the recording of the hearing or a transcript of the relevant part of the recording. The Chief Constable can adjourn a review as long as the time limits specified at paragraph 4.16 are met.

6. As appears from reg. 36 (4), the right to a review is distinct from, and additional to, the right of an officer convicted of misconduct to appeal to a Police Appeals Tribunal under the procedure provided for by the Police Act 1996 and the Police Appeals Tribunal Rules 1999. That procedure provides, in an appropriate case, for a full rehearing of the case against the officer before an independent tribunal. The nature of the review jurisdiction procedure was helpfully discussed in the very recent decision of Wyn Williams J. in R (Independent Police Complaints Commission) v. Hayman [2007] EWHC (Admin) 2136.^[1] Paras. 28-36 of the judgment in that case read as follows:

28. Neither the 1996 Act nor the Regulations seek to prescribe, expressly, the circumstances in which a reviewing officer should exercise the powers conferred upon him either to overturn a decision to the effect that an officer has been guilty of misconduct or impose a different and lesser sanction. In my judgment, however, there are clear indicators in the 1996 Act and the Regulations that Parliament intended that the power is to be used sparingly and with caution.

29. It is of significance that section 85 of the Police Act 1996 has created a right of appeal to a police appeals tribunal and that such a tribunal has the wide-ranging powers described by Collins J in R (Chief Constable of Avon and Somerset) v Police Appeals Tribunal. It is also significant that a class of officers (to which PC Bell and PC Wakeling belong) can exercise that right only after they have sought a review and the review has been determined against them. It seems to me to be unlikely that when Parliament provided for reviews in the 2004 Regulations it intended that the reviewing officer should approach the review and exercise his powers as if there was no difference between his role in conducting a review and the role of an appeals tribunal when hearing an appeal.

30. Support for the view that a review is intended to be far less extensive in its scope than an appeal under section 85 of the Act is to be found in the Regulations themselves. A review must be sought within 14 days of the receipt of the written decision of the panel. The review can take place solely on the papers or at a "meeting." If a meeting is held the officer may be "accompanied" by a fellow officer and/or by a lawyer. The words "meeting" and "accompanied" are not usually those chosen when what is contemplated is that a re-hearing is to take place or even a detailed re-appraisal. Importantly, in my judgment, the Regulations are silent upon the topic of whether anyone is to be present who is in the category of a "prosecutor." While it may be that such a person may be permitted to be present by a reviewing officer as a matter of discretion, the fact that the Regulations make no provision for presence as of right is a strong indicator that what is to occur at a review is intended to be limited. The reviewing officer is expected to inform the officer who has sought the review of its outcome in writing within three days of the completion of the review. On any view that is a limited timescale and one which militates against the notion that a review will be a detailed re-appraisal.

31. The Regulations are silent upon the extent of the documentation which will be before the reviewing officer. There must be a written request for a review and that written request must contain the grounds upon which a review is sought. No other documents must be placed before a reviewing officer although, no doubt, as a matter of his discretion he or she could ask for more. In my judgment, the fact that there is no attempt in the Regulations to specify what documentation should be before a reviewing officer is an indication that the process is intended to be limited in nature.

32. However just as Parliament has refused to lay down prescriptive rules about when and in what circumstances the powers conferred upon a reviewing officer should be invoked so, in my judgment, it would be wrong for this court to usurp the function of Parliament and attempt some all embracing formula to guide reviewing officers. I say that as a matter of principle but also because it is unnecessary. That is so because clear guidance upon the Regulations has been issued pursuant to section 87 of the 1996 Act.

33. In the introduction to the guidance readers are reminded that it has been issued pursuant to section 87 of the Act. They are also informed that "…those responsible for administering the procedures described in this guidance are reminded that they are required to take its provisions fully into account when discharging their functions" and they should depart from the guidance only for good reason.

34. Earlier in this judgment, I quoted extensively from that part of the guidance which deals with reviews. I make it clear that it is necessary for reviewing officers to have proper regard to all aspects of the guidance which deals with reviews and to depart from the guidance only for good reason.

35. In these circumstances it would be wrong of me to "re-write" the guidance in this judgment in my own words or put a gloss upon one or more aspects of the guidance. The reviewing officer's obligation is to have proper regard to the guidance as written. That said it does seem to me that the following emerges clearly from the guidance and cannot sensibly be contradicted. First, a review provides an opportunity "to take quick action to rectify clear errors or inconsistencies in process or determination by the earlier hearing." Secondly, a personal hearing "will not amount to a fresh re-hearing of the case." Thirdly the task of the reviewing officer is to determine "whether the original hearing was conducted fairly and whether the outcome decided upon appears to have been justified and appropriate to the nature of the case." In my judgment the use of the word "appears" is deliberate and it militates against the notion of an in-depth re-appraisal of the issues before the panel. Fourthly, the review must be conducted fairly which, obviously must mean fairly both to the officer seeking the review and to those who have laid the disciplinary charge against him.

36. It should not be thought, however, that a reviewing officer who embarks upon a detailed re-appraisal of the evidence at the hearing or who, in effect, turns a review into a re-hearing necessarily acts beyond his powers. To repeat he is given the express power of "overturning" the decision of the panel and it may be that circumstances will arise in which it is not just permissible but desirable that a review should be a much more detailed process than is contemplated by the guidance. It is neither desirable nor possible for me to lay down what the circumstances might be which would justify a departure from the guidance. If such a departure does take place, however, it will be necessary for the reviewing office to explain why and to identify clearly the "good reason" which justifies a departure from the approach set out in the guidance.

I respectfully agree with that exposition.

THE FACTS

The Incident of 18^th September 2003 and the Charges arising from it

7. The disciplinary panel which heard the Claimant's case made full and clear findings of the facts which it held to constitute misconduct on his part in relation to the events of 18^th September 2003, and these were accepted by Mr. Brunstom. In those circumstances the panel's findings were unchallenged before me. I can summarise them as follows:

(1) Both the Claimant and PC O'Leary were based at Stanley Road Police station in Liverpool. At about 11.30 a.m. they set off together in a police van and drove over three miles to visit a Mr. Mark Mitchell, an ex-police officer. The trip was at PC O'Leary's instigation. No finding was made by the panel as to its purpose, although the two officers had visited Mr. Mitchell on at least two previous occasions, on at least one of which their purpose was to collect some pornographic material from him.

(2) PC O'Leary was in fact at this time in a corrupt relationship with Mr. Mitchell under which he supplied him with information from police records for transmission to criminal associates. On 21^st February 2006 he pleaded guilty to six counts of misconduct in public office and was sentenced to 3½ years in prison. But it is important to emphasise that, whether or not PC O'Leary's wish to visit Mr. Mitchell on this occasion was connected with this aspect of their relationship, it has never been part of the case against the Claimant that he was aware of any corrupt dealings between the two of them.

(3) Both officers were on duty at the time. There was some uncertainty as to whether the Claimant had been allocated to a joint patrol with PC O'Leary, and in fact the Claimant's evidence to the panel was that he had simply got into the van with PC O'Leary in order to go out and get a sandwich at refreshment time – though he did not dispute that he knew and went along with PC O'Leary's purpose to drive to visit Mr. Mitchell. On any view, it is not in dispute that the visit to Mr. Mitchell formed no part of the Claimant's or PC O'Leary's duties or that Hawthorn Road was considerably outside any patrol area to which either of them had been allocated. The panel summarised the position as follows:

PC Bolt was in company with another colleague and in a vehicle which was at odds with his original posting, some distance outside his patrol area, outside of his allocated refreshment time and visiting Mark Mitchell on non police business within duty time.

(4) As the two officers were driving down Hawthorn Road, near to Mr. Mitchell's flat, they were flagged down by a Mr. Colbert, a disabled man, who reported that he just been attacked while obtaining money from a bank cash machine. He pointed out the alleged robber, a Mr. Lisemore. Although the Claimant told the panel that he remained in the van, it was the evidence of Mr. Colbert - and the panel accepted - that both officers got out. PC O'Leary took the lead in dealing with Mr. Colbert. Mr. Lisemore was detained and taken into the van. The Claimant made a call on his radio to obtain a PNC check on Mr. Lisemore. He was asked by the operator for his location. Instead of saying that he was in Hawthorn Road he gave his location as Stanley Road, which was some distance away and within his legitimate patrol area. He told the panel that he did so because he did not know exactly where he was and he thought that Stanley Road was the nearest main artery. The panel did not believe this. It found that his true reason was that he did not want to reveal that he and PC O'Leary were outside their patrol area on an unauthorised visit. As they put it:

In essence he knew that should the visit to Mr. Mitchell's flat become known to his supervisors he would face significant difficulty in explaining his presence in that area and the reason for that presence. He knew that at least one previous visit to Mr. Mitchell's flat was for a dubious purpose ... The panel are left to conclude that in fact PC Bolt was only too aware that to give the location of the PNC check as Hawthorn Road would give an immediate and auditable trail as to where the check took place. He did not want that trail to be available to supervisors and as a result gave his location erroneously as Stanley Road.

(5) Neither the Claimant nor PC O'Leary made any record of the incident. The Claimant professed to be satisfied by Mr. Lisemore's account of his identity and his actions and, after Mr. Colbert had left the scene, he was simply released.

(6) The Claimant's account to the panel was that PC O'Leary took the lead in handling the incident throughout and that it was because PC O'Leary told him that it appeared that there was no evidence of a crime having been committed that Mr. Lisemore was allowed to go and no record was made. The panel did not accept this account. It held as follows:

The panel do not accept this version of events and take the view that whilst the motivations for what was effectively the covering up of a street crime may have been different for the two officers, PC Bolt nevertheless played a significant and knowing part of that cover up. He sought to ensure as best he could that there was no trace of the incident (with the obvious exception of the PNC check, although this was falsely located). In doing so he behaved in a manner that lacked both honesty and integrity … .

(7) The incident came to light because Mr. Colbert (who was in fact a local councillor) was dissatisfied with the lack of any action against Mr. Lisemore.

8. The Claimant's conduct on 18^th September 2003 was the subject of three separate charges of breach of the Code of Conduct. The first and most serious was of a breach of para. 1 of the Code, which is headed "Honesty and Integrity" and reads as follows:

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.

The particulars of the breach of that requirement were specified as follows:

(i) At about 11.45 a.m. on 18^th September 2003 you were on uniform patrol duties with PC O'Leary, in a police van.

(ii) You were away from your area without permission.

(iii) You were visiting one Mark Mitchell, a retired Merseyside police officer, who resided in a flat above the National Westminster Bank situated at the junction of Sefton Road and Field Lane, Litherland.

(iv) Your assistance was sought by one Mr. Colbert, a disabled man who claimed to have just been the subject of an attempted robbery by one Sean Lisemore, as he (Colbert) was taking cash from the ATM at the Bank.

(v) PC O'Leary spoke with Colbert, then placed Lisemore in the rear of your police van whilst you spoke with Colbert.

(vi) You performed a PNC check on Lisemore, and when asked for your location you gave Stanley Road, rather than the correct location.

(vii) You released Lisemore after only a few minutes without:

(a) recording his name in your pocket book;

(b) arresting him;

(c) completing a crime report, or filing any sort of report, concerning the alleged attempted robbery;

(d) carrying out any proper investigation into the alleged attempted robbery.

(viii) You acted as in paragraph (vii) herein so as to cover up your unauthorised visit to Mitchell.

Charge 2 charged the Claimant with conduct likely to bring discredit upon the police service, contrary to para. 12 of the Code (headed "General Conduct"). The same particulars were relied on: the essential difference between this charge and charge 1 was thus simply that the conduct alleged was not said to have been dishonest. Charge 3 alleged a failure on the part of the Claimant to be conscientious and diligent in the performance of his duties, contrary to para. 5 of the Code. The same particulars were relied on, save that sub-para. (viii) was omitted. The three charges arising from the incident of 18^th September 2003 were thus plainly intended as alternatives, in descending order of seriousness.

Charges 4 & 5

8. The Claimant was also charged with two breaches of the Code arising from a subsequent search of his locker and desk. I need not set these out in full. The gist of them was that he was found to have kept a large quantity of miscellaneous items and documents (files, notebooks, custody records, video-tapes, tapes of interviews, seized drugs etc.) which should have been properly filed or otherwise dealt with or disposed of. The nature and quantity of the material found was such that this went far beyond trivial failures of administration. He was charged with two counts of failure to be conscientious and diligent in the performance of his duties.

The Disciplinary Proceedings

9. The charges against the Claimant did not proceed for some time. This was because of the complications associated with the investigation into the corruption allegations against PC O'Leary. For the same reason, charges arising out of the incident of 18^th September 2003 were not in the end pursued against PC O'Leary. A hearing of the charges against the Claimant alone eventually took place on 14^th November 2005. Because of the notoriety within the Merseyside force of the corruption charges against PC O'Leary the presiding officer was an Acting Deputy Chief Constable from the Lancashire force, Mr. McAllister. Mr. Beggs presented the case against the Claimant. Mr. Kieran Galvin of counsel appeared for the Claimant.
10. The Claimant admitted charges 4 and 5 but disputed charges 1-3 (although it appears that in the course of the hearing he implicitly admitted charge 3). It was agreed between the parties that reference needed to be made, by way of background, to the existence of the charges against PC O'Leary; but Mr. Beggs stated explicitly that it was no part of his case that the Claimant had any involvement in the corruption alleged against PC O'Leary. The panel heard oral evidence from (among others) Mr. Colbert and the Claimant.
11. The panel's written decision was promulgated on 17^th November 2005. All the disputed charges were found proved. The panel's reasons were set out in considerable detail over some five pages. I have already summarised its essential findings. It followed from the finding that the Claimant had acted "in a manner that lacked both honesty and integrity" that he was guilty of charge 1. It is also clear that there were a number of aspects of the Claimant's account on which the panel expressly or by necessary implication regarded him as having lied, both in his evidence to it and in the prior investigation. The panel's findings also inevitably meant that he was guilty on the lesser charges 2 and 3.
12. As regards sanction the panel said this:

… [T]he Panel are acutely aware of the very serious nature of Charge 1. This goes straight to the heart of PC Bolt's honesty and integrity. Accordingly on Charge 1 PC Bolt is dismissed from the service forthwith.

On charges 2 and 3 the panel required the Claimant to resign from the service forthwith (a sanction substantially identical to dismissal but presentationally less severe). On charges 4 and 5 it imposed a reprimand. In view of the sanction imposed on charge 1, those further sanctions might appear to have been meaningless, but the panel believed them to be formally necessary: as to this, see para. 35 below.

13. As already noted, the Claimant exercised his right to require a review, and that review was carried out by Mr. Brunstrom, the Chief Constable of the North Wales force. Both Mr. Beggs and Mr. Galvin provided submissions to Mr. Brunstrom in writing, and he also sought and obtained comments from Mr. McAllister. A "meeting" in accordance with reg. 35 (1) - in practice an all-day hearing - took place on 21^st March 2006. Among the points taken by Mr. Galvin on behalf of the Claimant was that, notwithstanding Mr. Beggs's ostensible disavowal of any intention to tar the Claimant with guilt by association, the reference which had been made to the charges against PC O'Leary created an atmosphere in which there was bound to be at least the appearance of bias. It was also contended that because Mr. McAllister had formerly served in the Merseyside force and had twice given evidence in criminal corruption cases involving Merseyside officers his appointment as presiding officer failed to achieve the intended distancing of the case against the Claimant from the charges against PC O'Leary.
14. Mr. Brunstrom gave his decision in the form of a seven-page letter to the Claimant's solicitor, copied to the Defendant, dated 8^th May 2006. I can summarise it as follows:

(1) At paras. 1-3 he set out the procedural background, mentioning in particular the allegations of bias (see para. 2).

(2) At para. 4 he attempted to summarise his role in the following terms:

I am charged by the Guidance (paragraph 4.12) with ensuring fairness, and ensuring that the outcome decided upon appears to have been justified and appropriate to the nature of the case. It has been correctly pointed out to me by Mr Beggs that a Review is not an Appeal, but it is very clear from the wording of the Guidance that I have considerable latitude in the way I carry out my duty, fairly and in accordance with the principles of natural justice.

(3) At paras. 5 and 6 he emphasised the absence of any connection between himself and the Merseyside force and explained that he did not propose to deal with every detail of the representations made to him.

(4) At paras. 7-10 he addressed the allegation that the appointment of Mr. McAllister as presiding officer gave rise to such an appearance of bias as to require the panel's decisions to be set aside in their entirety. He concluded that although the appointment had been "unwise", and such as justifiably to raise a suspicion of bias, once the record of the hearing was considered a fair-minded and informed observer would conclude that there had been no bias: he expressly found that Mr. McAllister had "conducted himself with scrupulous adherence to the principles of fairness".

(5) At paras. 11-12 he considered the allegation that "the presenting side cleverly wove suspicions of corruption into their case such that the taint of corruption was in the air". He rejected that allegation.

(6) At paras. 13-14 he considered a submission that the conviction of the Claimant on charges (1) and (2) was so contrary to the weight of the evidence as to reinforce the case that the panel was biased against him. He rejected that submission also, saying that he could find no evidence that the panel assessed the evidence otherwise than conscientiously and diligently: it was entitled to prefer Mr. Colbert's evidence to that of the Claimant.

(7) Accordingly Mr. Brunstrom concluded at para. 15 that:

… ex-PC Bolt was properly convicted on all charges, and … consequently I uphold all the convictions.

(8) However, he proceeded in paras. 16 and 17 to express strong criticisms of one aspect of the way the case had proceeded. I need to set out those paragraphs in full:

16. However I must draw attention to my disquiet to the way in which Charges 1, 2 & 3 were handled by the Presenting side and the Panel. Despite Mr Beggs's rather unchivalrous attempt in the Review Hearing to shift blame for "a mistake" onto the Professional Standards Department of Merseyside Police it is quite clear that these charges were initially drawn up, by him, as true alternatives. It is disingenuous to try to dismiss this after the event as a mistake. There is in fact a great deal of logic to what seems to have been the original purpose – that these charges were intended to be true alternatives of descending or ascending severity. That being the case only one conviction should have resulted, depending on the findings of the Panel. In the event however the Panel were advised by Mr Hillman (tape 9 side 1 page 2/15) not to treat the charges as true alternatives but to make a finding on all three, apparently to avoid ambiguity in relation to a potential future appeal. This advice was offered gratuitously by the Panel's legal advisor, and it seems to me to be erroneous; it was certainly unhelpful. The result is that Mr Bolt has been convicted of three charges; perhaps not legally wrong in itself but analogous to finding a murderer guilty not only of the murder but of GBH, ABH and common assault as well. As Mr Beggs himself has said in his notes to assist the Reviewing Officer (paragraph 11) "Having found the Honesty and Integrity charge proven, the panel inevitably found the discreditable (general conduct) and neglect (performance of duties) charges also proven". This inevitability is real; it is not normal practice for very good reason, and I am surprised that the Defence did not make more of it in the Hearing.

17. I dislike intensely the way in which the original Hearing handled Charges 1, 2 & 3, and I will return to the fairness of this course of action later.

(I find some difficulty in understanding Mr. Brunstrom's "intense dislike" of the course adopted; but I discuss this aspect, so far as necessary, at para. 35 below.)

(9) Mr. Brunstrom then turned to the question of sentence. After some introductory observations in paras. 18-20, making in particular the point that charges 1-3 were in descending order of seriousness, he said, at para. 21:

It is common ground that ex-PC Bolt has not been accused of corruption. His proven dishonesty amounts to being off his beat without good excuse, and lying about it to cover it up. His discreditable conduct amounts to failing to ensure that a proper record was made of a reported crime, again in order to cover up the fact that he was improperly off his beat. It is has been formally accepted that he is not accused of corruption – and he certainly has not been convicted of it. I have already agreed that the Panel, on the evidence, were quite entitled to find as they did that these two charges were proved. Ex-PC Bolt has of course admitted the remaining charges, directly or indirectly. However I am charged not merely with considering his guilt, but also sanction and fairness i.e. were the penalties applied fair in all the circumstances.

(10) Before, however, proceeding to consider the appropriateness of the penalties in relation to charges 1-3, at paras. 22 and 23 he made some observations on charges 4 and 5. He described them as showing "a quite remarkable list of failures" which showed the Claimant to be "serially neglectful", someone who had on many occasions "failed badly in his duty to properly investigate and record crime", and "an unreliable disgrace". (He also pointed out that the charges also showed serious failures by the Merseyside force.) It is evident that he regarded a mere reprimand for such offences as a surprisingly lenient sanction. He expressed the view at para. 24 that charge 3 – which related to the events of 18^th September shorn of the element of deliberate cover-up – was of essentially the same character as charges 4 and 5.

(11) Mr. Brunstrom then returned to the consideration of charges 1 and 2. Paras. 25-29 of the letter read as follows:

25. Charges 1 & 2 are the same as Charge 3 in all their particulars with the exception of item (viii) – that ex-PC Bolt acted as he did so as to cover up his unauthorised visit to Mitchell (a corrupt ex-police officer and friend of ex-PC Bolt's corrupt companion, O'Leary). It was asserted during the Review Hearing by Mr Beggs for the Presenting side that both charges can be made out in law without the need to prove point (viii). I accept this submission. However it is precisely this limb which gives rise to the degree of seriousness with which charges 1 & 2 have been imbued; without it the charges are indistinguishable from Charge 3, even though the breach of the Police (Conduct) Regulations is in detail different. This gives rise to a difficulty. Charges 1, 2 & 3 were originally intended to be alternatives. There should properly have been only one suitable finding of guilt. Unfortunately this did not happen as already discussed, and though ex-PC Bolt is clearly guilty of all the charges they amount, without limb (viii) and in the vernacular, to 'more than one bite of the cherry'.

26. It is clear that in relation to Charge 1 the original Panel found ex-PC Bolt to be untruthful, at the appropriate level of proof. I have not challenged their finding. The question for me now is whether the sanction applied is appropriate to the conduct proved. In essence, I do not believe that it is. Ex-PC Bolt has been found guilty of being off his beat without proper authority and lying about his reasons. I do not accept that this level of misconduct justifies dismissal from the service. I am drawn to the conclusion that the Panel have in fact become biased by the repeated statements about corruption during the Hearing and that this has led them to apply an excessive penalty. The normal penalty for being off one's beat without authority and untruthful when caught out, is not the sack; ex-PC Bolt has received an abnormal punishment to an extent that I find unfair.

27. In relation to Charge 2, I come to the same conclusion. In this case ex-PC Bolt is guilty of failing to record a crime to cover up his presence in the wrong place. In fact his admitted conduct shows that he regularly fails to properly investigate crime in more serious circumstances. The normal penalty for an officer with eleven years' service caught out failing properly to record crime is not a requirement to resign.

28. In the case of Charge 3, I again find that the punishment is excessive. Ex-PC Bolt has admitted more serious offences, and the punishment for "merely" failing to make an adequate record of an incident that may well not have amounted to a real crime in any event is not a requirement to resign.

29. In my opinion the "fair minded and informed observer" (my italics) must inevitably come to the conclusion that the penalty does not fit the crime. It is agreed that ex-PC Bolt is not himself accused of being corrupt. He has admitted serious failures for which he has been awarded only Reprimands. The original intention that he be convicted of only one of the first three charges has become compromised by poor advice, leading to him being convicted more than once on what is effectively the same set of facts (it is clear that the Panel, if operating in line with the original intention, would have convicted him of the most serious allegation, Charge 1). He has been dismissed for conduct that while reprehensible in the extreme would not normally carry this penalty - and by far the most likely explanation for this is that the stench of corruption by association has in fact caused the Panel to over-react to what is admittedly a pretty unsavoury picture.

(12) Having reached that point Mr. Brunstrom concluded as follows:

30. I have therefore decided to set aside the original penalties for Charges 1, 2 & 3 and replace them as follows:

Charge 1: the maximum penalty available short of loss of office i.e. a fine of 13 days' pay, equivalent to £1596.92 (PC Bolt joined on 21.09.94)

Charge 2: Reprimand

Charge 3: Reprimand.

31. Mr Bolt is therefore reinstated to the office of Constable in Merseyside Police with immediate effect, backdated to 17 November 2005.

32. PC Bolt clearly bears personal responsibility for his failures. He is an unreliable officer who cannot be trusted to act properly without close supervision – which it is apparent that Merseyside Police has not previously put in place, but is going to need time in the future.

33. This case reveals serious crime audit failures in Merseyside Police which are beyond my remit.

15. As already noted, the Defendant was not prepared to accept Mr. Brunstrom's decision. On 22^nd May 2006 he wrote to the Claimant in the following terms:

Re: Misconduct Review by Mr Brunstrom

As you are aware, Mr Brunstom provided his decision on his review of your misconduct proceedings in his letter of the 8^th May 2006, a copy of which is enclosed.

I have carefully considered both Mr Brunstrom's decision and the decision of the original Misconduct Panel, together with associated documents.

I note that Mr Brunstom found that:

(i) there was no substance to the "apparent bias" complaint in relation to the presiding officer who he found to have "conducted himself with scrupulous adherence to the principles of fairness" (paragraph 10 of Mr. Brunstrom's letter.) Indeed, he found the Panel to have conducted its role "conscientiously and diligently" (paragraph 13);

(ii) the findings of guilt on charges 1–3 (paragraph 15) were properly made and the Panel applied the "appropriate level of proof", (paragraph 26) and;

(iii) you were an "unreliable officer who cannot be trusted without close supervision" (paragraph 32) and an officer who is "serially neglectful" and "an unreliable disgrace", (paragraph 22).

I have considered Mr Brunstrom's recommendations, as required by the Home Office guidance on Police Unsatisfactory Performance, Complaints and Misconduct Procedures, and I have decided to reject them. You will not therefore be reinstated. My reasons are threefold:

First, it seems to me that Mr Brunstrom conducted an appeal rather than a review. The more limited nature of a review, as distinct from an appeal before a Police Appeals Tribunal, is made clear in the Home Office Guidance and in particular I have had regard to paragraphs 4.2, 4.8 and 4.12. It seems to me that Mr Brunstrom substituted his view on the appropriate sanction for that of the Misconduct Panel, notwithstanding that he accepted that the Panel properly found charges 1 – 3 proven to the appropriate standard.

Second, Mr Brunstrom explained his reduction in sanctions on the basis that a "fair minded and informal observer must inevitably come to the conclusion that the penalty does not fit the crime". He said the miss match between "crime" and "penalty" was caused by the "stench of corruption by association [causing] the Panel to over-react to what is admittedly a pretty unsavoury picture" (paragraph 29). I consider that conclusion to be irrational and without foundation. Mr Brunstrom clearly found the presenting side did not allege corruption by association and had "specifically excluded any such connection". Furthermore, he clearly found that the Panel fully understood this (paragraph 11).

Third, even if I am incorrect about the first and second points above, it seems to me that Mr Brunstrom was quite wrong to conclude that the appropriate sanction for charge 1 could have been anything other than, at the very least, a requirement to resign. In common with the original Panel, Mr Brunstrom found that you had gone off your area without permission, had then failed to properly investigate the serious crime that you had stumbled upon and then you had lied to cover up your presence out of area. Mr Brunstrom found that conduct to be "reprehensible in the extreme" (paragraph 29). In the circumstances, any sanction less than a requirement to resign would, in my judgment, be irrational, because the police service cannot tolerate such conduct from its officers.

As you know, you have a right to appeal to a Police Appeals Tribunal and I enclose a notice for your guidance in this respect. Indeed, in view of this letter, you may wish to have your case reviewed by another Chief Constable.

THE ISSUES

16. The primary submission of Mr. Millar for the Claimant was that where the review is conducted by an officer other than the chief officer - by virtue of either reg. 37 (1) or reg. 37 (2) – it is on the true construction of the Regulations not open to the chief officer to reject the decision of the officer conducting the review: the decision of that officer is the effective decision, and there is no role left for the chief officer. Accordingly the Defendant's purported rejection of Mr. Brunstrom's "recommendation" was misconceived: he had no power to accept or reject.
17. The points made by Mr. Beggs in response can most conveniently be categorised as follows:

(1) He argued that the sanction imposed by the panel on charge 1 was outside the scope of the matters which Mr. Brunstrom was entitled to review.

(2) He contended that, contrary to Mr. Millar's primary submission, Mr. Brunstrom's decision was in law no more than a recommendation, which it was open to the Defendant to reject. He accepted that a chief officer would only be entitled to reject such a recommendation for good cause, and that the cases where a chief officer who was not the reviewing officer would have such cause would be rare. But he submitted that in the present case there were sufficient grounds for him to decide not to follow Mr. Brunstrom's decision.

(3) He submitted that even if, contrary to (2), the decision of the officer conducting the review had automatic effect Mr. Brunstrom's decision in the present case was bad in law; and that that meant either that the Defendant had been entitled to ignore it or in any event that I ought not as a matter of discretion to grant relief requiring him to implement it.

(4) He submitted that even if he succeeded on none of the previous points it was not in the public interest that I should grant any substantive relief on the facts of the present case.

I consider those points in turn.

(1): WAS THE SANCTION ON CHARGE 1 WITHIN THE SCOPE OF THE REVIEW ?

18. The procedural trigger for a review under reg. 34 (1) is a request from the convicted officer asking the chief officer "to review the finding or the sanction imposed or both the finding and the sanction". Thus if the Claimant had only asked for the findings of guilt to be reviewed Mr. Brunstrom would have had no power to review the sanctions.
19. The Claimant made his request for a review on the form prescribed in annex M4 to the Home Office Guidance. The form as completed by him explicitly requested a review of "the findings and punishments in respect of charges 1 and 2 … and in respect of the punishment imposed in respect of charge 3 [emphasis supplied]". However, Mr. Beggs pointed out that in the supporting "detailed submissions" and in the representations, both written and oral, subsequently addressed to Mr. Brunstrom the challenge as regards sanction was clearly stated to be to the sanctions on charges 2 and 3 and no challenge was articulated to the sanction on charge 1. The Claimant lodged a witness statement from Mr. Galvin, who was responsible for those submissions. Although it is not entirely clear, what I understand him to be saying is that no representations were made on the sanction on charge 1 because the Claimant was denying any dishonesty. I am not sure that that is a good explanation for the omission, and I agree that the way in which the issue was pursued is strongly suggestive of an intention only to challenge the sanctions on charges 2 and 3, and that may be of some significance as regards a later issue (see para. 28 below). Nevertheless it seems to me that, the form M4 having made an express challenge to the sanctions on all three charges, only a clear and unequivocal withdrawal of that challenge would suffice. Albeit with some hesitation, I have come to the conclusion that the formulation of the representations is insufficiently unequivocal to have the effect for which Mr. Beggs contends.
20. I accordingly reject Mr. Beggs's submission on this issue.

(2) THE STATUS OF MR. BRUNSTROM'S DECISION

21. In my view Mr. Millar is correct that the scheme of the Regulations does not give a chief officer who has not himself conducted the review the power to reject the decision of the officer who has done so. Reg. 36 (3) provides that "the decision of the reviewing officer" shall (if different) take effect by way of substitution for the decision of the original panel. Although "the reviewing officer" is defined in reg. 34 (1) as the chief officer of the force concerned, in cases where another officer conducts the review under reg. 37 (1) or 37 (2) it seems to me clear that he or she must do so in the place of the chief officer and in the capacity of reviewing officer. If the intended model in such a case were that the chief officer would remain formally the reviewing officer, with the other officer merely making a report or recommendation, the Regulations would have to contain provisions to that effect, and there are none. Further, if that were the intended model it would undermine the clear purpose of at least reg. 37 (2), namely to ensure that where the chief officer of the "home" force or his designate have a potential conflict they should play no part in the decision taken. The phrase "in that capacity" is used in reg. 37 (2): the "capacity" being referred to can in my view only be that of reviewing officer. If that is right, then the decision of the officer conducting the review is in all respects equivalent to a decision of the chief officer of the home force and takes effect automatically in substitution for the decision of the panel as provided by reg. 36 (3).
22. Mr. Beggs objected that such a construction would undermine the position of the Chief Constable, who by virtue of s. 10 of the Police Act 1996 is entrusted with "direction and control" of his force. It was, he submitted, inconsistent with that responsibility that the review procedure should permit a situation in which he might be saddled with an officer in whom he had no confidence. But in my view the wording of the review provisions is clear. If the result is that in a particular case a chief officer may be required to maintain in his force an officer whom he wishes to see dismissed I do not see that that result is objectionable in principle. The fact that a chief constable has ultimate responsibility for the conduct of his force does not mean that he must have untrammelled power to hire and fire. There are other circumstances in which, as here, a decision as to who should be a member of his force rests with someone other than himself – most obviously where a panel declines to recommend dismissal or where, if it does so, the decision is overturned by the Police Appeals Tribunal.
23. Mr. Beggs also pointed to the reference in para. 4.11 of the Guidance (which covers cases falling within reg. 37.2) to the chief constable who conducts the review making a "recommendation" to the chief constable of the home force, "who will remain responsible for implementing the decision". But that wording seems to me at best ambiguous. In a reg. 37 (2) case the decision of the officer conducting the review has inevitably to be at least communicated to the home chief constable. The description of that communication as a "recommendation" may not be ideal if the truth is that the decision is binding on the recipient, but the language is nevertheless not altogether inapt, given that the home chief constable remains the person who has to take action in consequence. And the phrase "implementing the decision" strongly suggests that the role of the home chief officer is indeed only to give effect to the decision of the officer who has conducted the review. In any event, whether the language of the Guidance is ambiguous or not, it does not seem to me that it can trump the clear provisions of the Regulations.

(3) THE LAWFULNESS OF MR. BRUNSTROM'S DECISION

24. Mr. Millar raised a preliminary objection to this aspect of Mr. Beggs's submissions. He submitted that if the Defendant wished to contend that Mr. Brunstrom's decision was unlawful the proper course for him to have taken would have been to bring prompt proceedings for the judicial review of that decision. Unless and until that decision was quashed by the court it was a lawful and effective decision which the Defendant ought to have respected: it was wrong for him to arrogate to himself, in his letter of 22^nd May 2006, a finding that only a court could make. The result of the course which he had taken was that he was seeking to raise a collateral challenge to Mr. Brunstrom's decision in proceedings where Mr. Brunstrom was not the defendant.
25. As to that, the initial position adopted by Mr. Beggs was that if Mr. Brunstrom's decision was unlawful it was simply a nullity and could be ignored on that basis. He relied in his skeleton argument heavily on the speech of Lord Irvine in Boddington v. British Transport Police [1999] 2 AC 143, at pp. 157-8. But I need not explore the extent to which Lord Irvine's observations in that passage – as to which other members of the House expressed some reservations – are correct, because in his oral submissions Mr. Beggs was content to proceed primarily on the basis that even if Mr. Brunstrom's decision was not a nullity, and even if the Defendant's rejection of it without seeking to challenge it in the courts was "unorthodox", there was nevertheless no bar to my reaching a finding on the lawfulness of that decision in the context of the present proceedings; and he submitted that in the present case it was necessary to do so in order to reach a just result. He pointed out that although Mr. Brunstrom was not a defendant he had been served as an interested party and was on notice of the criticisms made of his decision. All the material necessary for me to rule on the lawfulness of that decision was before me.
26. I think Mr. Beggs is right about this. Whether or not it might have been better for the Defendant to seek judicial review of Mr. Brunstrom's decision, I can see no real prejudice to any party in my considering its lawfulness in the present proceedings. Mr. Millar did not in fact go so far as to submit that it was wrong in law for me to do so: he only urged me to be cautious. I turn therefore to consider the substance of Mr. Beggs's submission that Mr. Brunstrom's decision was unlawful.
27. What Mr. Brunstrom held was that the sanction of dismissal was not "appropriate to the conduct proved" and was "an abnormal punishment to an extent that I find unfair" (see para. 26 of his letter). I am bound to say that I find that conclusion very surprising. The panel's findings – which Mr. Brunstrom expressly accepted – were, in short, that the Claimant had knowingly participated in a deliberate omission to investigate a serious reported crime because he feared that doing so would reveal other misconduct on his part. As part of that cover-up he had lied about his whereabouts to the colleague who he asked to carry out a PNC check. He had maintained his lies in the subsequent investigation and at the hearing. That conduct was – rightly and indeed inevitably – characterised by the panel as dishonest. Mr. Brunstrom himself referred to the Claimant's conduct as "reprehensible in the extreme" (para. 29 of the letter of 8^th May 2006). (He also described him as "an unreliable disgrace" (para. 24) and as "an unreliable officer who cannot be trusted to act properly without close supervision" (para. 30), but it may be that those observations were directed wholly or mainly to charges 4 and 5.) That seems to me, as the panel put it, to go to the heart of the Claimant's integrity. 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 as regards the events of 18^th September, and the Claimant's subsequent lies about it, 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 – as indeed the three officers who comprised the original panel, and the Defendant, believed that it did. (I must also suspect that the omission from Mr. Galvin's submissions of any explicit challenge to the penalty on charge 1, as discussed at para. 20 above, reflects a recognition that in a case of a breach of para. 1 of the Code it is hard to contend that dismissal is an inappropriate sanction.)
28. Mr. Beggs submitted that, for essentially those reasons, Mr. Brunstrom's conclusion was irrational. He made the particular point by way of support that the finding of dishonesty made by the panel would require to be disclosed to the defence in any prosecution in which the Claimant's evidence were in issue; and he submitted that that fact would make him, in practice, unemployable in any operational role. The extent to which that would indeed be the consequence was not fully explored before me, and I do not need to rely on it; but, whatever the precise position about the formal disclosure obligations, the general point that the Defendant would have difficulty putting the Claimant forward in any prosecution as a witness of truth seems to me to have considerable force.
29. Mr. Millar firmly though tactfully reminded me that I am not a police officer and that I am much less well-placed than Mr. Brunstrom to form a view on what level of sanction is and is not "normal" for any particular kind of misconduct. He drew my attention to the fact that another officer in the Merseyside force, an Insp. Moore, who had committed a serious breach of para. 1 of the Code – that is, had been found to have acted dishonestly - in association with PC O'Leary at much the same time had not been dismissed (although he had suffered a reduction in rank): Mr. Millar accepted that the circumstances of that case were different, but he relied on the sanction imposed on Insp. Moore as an illustration that an outsider's view of the level of punishment that was appropriate for such breaches might not correspond to what was accepted as fair and normal within the force.^[2]
30. I have come to the conclusion that Mr Brunstrom's decision to overturn the panel's decision was not one to which he could properly have come. My principal reason is simply that I cannot accept that dismissal was an inappropriate penalty in the light of the panel's findings. I am willing to accept, despite my own views and in deference to the points made by Mr. Millar, that there may be room for argument as to whether it was the only possible penalty. But that is not the decisive question. It must be in the nature of a review – as opposed to a full appeal - that the chief officer conducting it should not overturn the decision of the original panel as to the appropriate sanction simply because he would have taken a different view, but only where the sanction imposed by the panel was so plainly excessive as to be properly characterised as unfair. I appreciate that Mr. Brunstrom does indeed appear in para. 26 of his letter to go that far; but I cannot in all conscience agree with him, for the reasons given at para. 28 above.
31. I would if necessary rest my decision on that ground alone. However, there are a number of features of Mr. Brunstrom's detailed reasoning which seem to me at least questionable; and it may in fact be that it was these features which led him to reach what appears to be so surprising a conclusion. That alleviates much of my concern about disagreeing with the view of an experienced Chief Constable who plainly approached his task thoughtfully and conscientiously. The features in question are as follows.
32. First, Mr. Brunstrom in para. 26 summarised the misconduct for which the Claimant fell to be disciplined as "being off his beat without authority and lying about his reasons". That summary does not fully reflect the panel's findings. A crucial element in those findings was the deliberate failure properly to investigate or record Mr. Colbert's complaint and the contemporaneous lie told when making the PNC check: those features are important because they relate directly to the Claimant's conduct of an operational matter – they are more serious than simply telling lies subsequently to investigators and the panel when his conduct came to the attention of his superiors. In this connection I note Mr. Brunstrom's acceptance in para. 25 of his letter of a submission that charges 1 and 2 could have been made out even if sub-para. (viii) of the particulars had not been proved and his observation that it is precisely the allegation in that sub-para. – i.e. that the other acts of misconduct were committed in order to cover up the unauthorised visit to Mr. Mitchell - which made the charges so serious. I do not follow his train of thought on this point; but it is at least possible that he believed that he had to proceed on the basis that the panel had not found sub-para. (viii) proved. If so, that would be plainly wrong.
33. Secondly, Mr. Brunstrom sought to explain what he characterised as the panel's "over-reaction" by the hypothesis that it had in fact been biased, as regards penalty, by "the repeated statements about corruption during the hearing" (paras. 26 and 30). I find this explanation hard to reconcile with his explicit finding that the panel had not been affected by any such bias in deciding the issue of guilt and indeed that it had conducted the hearing with conspicuous fairness (para. 15 (4)-(6) above). No doubt as a matter of strict logic the panel might have avoided bias when deciding guilt but succumbed to it when considering sanction; but in human terms it is not very likely. If this explanation is put aside, there is all the less reason to see anything wrong with the panel's decision.
34. Thirdly, I am struck by the vehemence of Mr. Brunstrom's reaction to the fact that the Claimant was found guilty, and formally punished, on each of charges 1-3 instead of only on charge 1: see para. 17 of his letter quoted at para. 15 (8) above. I can understand his argument that that was wrong in principle because the charges were alternatives. On the other hand, I can see the advantage of the panel expressing a view on each charge in case its findings of guilt on the more serious charge or charges were overturned on appeal; and I was indeed told that there was judicial authority supporting the course taken. But whatever the rights and wrongs of this issue I am puzzled as to why Mr. Brunstrom attached such importance to it. It seems to me a largely formal matter, since it would be apparent to any person who relied on the findings for any purpose that the three "convictions" were in fact simply different formulations of a single course of (mis)conduct. No objection was taken by Mr. Galvin – either before the panel or in the review - to sanctions being imposed on all three. The significance of this point in the present context is that at para. 25 of his letter, and again in the middle of para. 30, where he was dealing with the question of penalty, Mr. Brunstrom expressly returned to the question of the inappropriateness (as he saw it) of the course taken about the three charges. The detailed reasoning is not clear: there is apparently some connection with the "sub-para. (viii) point" (see para. 33 above), but I cannot entirely follow it. But it does seem that Mr. Brunstrom may have regarded the perceived unfairness to the Claimant of being convicted on three offences rather than only one as a further reason why the penalty on charge 1 should be found to be excessive. If so, I cannot agree. I note also that in the same para. 30 Mr. Brunstrom refers to the Claimant having received "only reprimands" on charges 4 and 5. Again, I do not quite follow Mr. Brunstrom's train of thought here; but I am unable to see any basis on which, if the penalty on those matters was indeed unduly lenient, that is a reason for holding the penalty on charge 1 to be excessive.
35. Whether those reasons amount in law to a finding of irrationality or a finding that Mr. Brunstrom misdirected himself as to the limit of his powers under the review provisions, I am satisfied that his conclusion cannot be sustained in law. In my judgment the decision of the panel should not have been overturned on a review.
36. Having reached that point, in my view it follows that I ought not to grant the relief sought. If the Defendant had followed the arguably more formally correct course of seeking a judicial review of Mr. Brunstrom's decision that decision would have been quashed, with the result that the decision of the panel stood (subject to appeal). If I refuse relief in the circumstances which have in fact occurred substantially the same result will be achieved.
37. I should add in this connection that the Claimant has lodged an appeal on a precautionary basis: he could not of course have proceeded with it consistently with his contention that his original dismissal had been effectively overturned. It does not necessarily follow from my reasoning in overturning Mr. Brunstrom's decision that the panel's finding is impregnable on the more intense review which will take place if that appeal is pursued. For one thing, the panel's findings of fact may not be upheld. Even if they are, my decision does not mean that as a matter of law the decision of the panel was the only possible decision on the basis of those findings: it means only that it was a decision which was unquestionably open to it. It is true that I have been unable to avoid expressing a view on the appropriateness of dismissal as a penalty; but if the appeal is pursued the appeal tribunal will have to reach its own view.

(4) DISCRETION

38. Mr. Beggs submitted that even if I held that Mr. Brunstrom's decision was lawful and that the Defendant was in principle bound to implement it I should not as a matter of discretion grant relief requiring him to do so, because it was wrong in principle that a Chief Constable should be required to retain in his force an officer in whom he had no confidence. He relied principally on the decision of the House of Lords in Chief Constable of the North Wales Police v. Evans [1982] 1 WLR 1155, and in particular on the observations of Lord Brightman at pp. 1175-6. Since in the event I do not need to consider that submission, I prefer not to express any concluded view on it. It is fair to say that I would have seen some difficulty in withholding relief from a claimant who had successfully established that he had been dismissed in plain breach of the applicable procedures: the position of the applicant in Evans was arguably somewhat different since he was a probationer and was not entitled to the benefit of the procedures in question.

Note 1    The judgment is in fact concerned with the equivalent provisions of the Police (Conduct) Regulations 2004; but these are substantially identical to the review provisions in the 1999 Regulations. The 1999 Regulations were applicable in the present case, notwithstanding that the 2004 Regulations were in force by the date of the proceedings against the Claimant, because the misconduct alleged occurred prior to their coming into force.    [Back]

Note 2    The incident in question also involved the Claimant. Disciplinary proceedings have not been brought against the Claimant in relation to it. In a witness statement in these proceedings the Defendant says that if the Claimant were to be reinstated such proceedings would have to be brought and that the Claimant would in all probability be convicted and dismissed. Mr. Beggs invited me to take that into account, if necessary, in the exercise of my discretion whether to grant relief (i.e. in connection with “issue (4)”). I do not however believe that it would be proper for me to do so: I cannot assume the truth of charges which have not been brought or responded to.    [Back]