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
		04/05/2017

Mrs Justice McGowan:

Introduction

1. The Claimant is the Chief Constable of Thames Valley Police, ("the Chief Constable"). He seeks Judicial Review of a decision of the Defendant, a Police Misconduct Panel, ("the Panel"). The Panel has played no part in these proceedings. The Interested Party is PC 5671 Mark White, ("PC White").
2. Police officers are required to comply with Standards of Professional Behaviour, ("the Standards"). The procedure for dealing with an alleged breach is laid down in the Police (Conduct) Regulations 2012, ("the Regulations").
3. At a disciplinary hearing the Panel found some allegations of fact proved against PC White and that those breaches of the Standards amounted only to misconduct and therefore the most serious penalty available was a final written warning. The decision was given orally at the conclusion of the hearing on 12 February 2016 and in writing on 17 February 2016.
4. The issues in this review are,

i) whether the Panel's decision that the breaches of the Standards of Professional Behaviour amounted only to misconduct was irrational; and

ii) Whether the Chief Constable has capacity to bring such a challenge, given his role in the appointment of the Panel.

The History

5. PC White was on duty in Bicester High Street on 1 August 2014. He dealt with an incident involving an off-duty soldier who was drunk. During the exchange he took possession of the soldier's Ministry of Defence identity card and failed to hand it back. He later disposed of the card in a confidential waste sack at Bicester Police Station where it was found by another police officer on 21 April 2015. The matter was reported to the Thames Valley Police Professional Standards Department who concluded that he had a case to answer for breaching the Standards of Professional Behaviour. PC White admitted disposing of the card in that way and that his behaviour had breached the Standards of duties and responsibilities but denied that his failings amounted to gross misconduct.
6. On 12 February 2016 PC White appeared before a misconduct hearing and admitted being in breach of the Standards by failing to record his possession of the identity card and by attempting to dispose of it. He admitted that those breaches amounted to misconduct but denied they were sufficiently serious to amount to gross misconduct.
7. Schedule 2 of the Standards sets out;

i) "Honesty and Integrity" as "Police officers are honest, act with integrity and do not compromise or abuse their position".

ii) "Duties and Responsibilities" as "Police officers are diligent in the exercise of their duties and responsibilities."

8. The Panel had to consider whether his conduct was a breach of the "Honesty and Integrity" paragraph of the Standards and whether it was a serious breach described as "gross misconduct" or the simple "misconduct" of being in breach of the "Duties and Responsibilities" paragraph as admitted.
9. The Regulations provide definitions in Regulation 3;

i) "gross misconduct" as "a breach of the Standards of Professional Behaviour so serious that dismissal would be justified" and

ii) "misconduct" as "a breach of the Standards of Professional Behaviour".

10. The panel found three matters of fact proven against PC White;

i) that his failure to return the identity card when he realised it was still in his possession was a breach of the "Duties and Responsibilities" paragraph of the Standards, amounting to misconduct,

ii) that his failure to record his possession of the identity card in the appropriate property register was a breach of the "Duties and Responsibilities" paragraph of the Standards, amounting to misconduct and,

iii) that his attempting to dispose of the identity card was a breach of the "Duties and Responsibilities" paragraph of the Standards, amounting to misconduct. The panel went on to say that whilst this conduct was not dishonest they concluded it demonstrated a lack of integrity as PC White knew that what he was doing was "not the right thing to do".

11. Having found those breaches of the Standards and that they amounted only to misconduct the most serious sanction available to the Panel was a final written warning, which they imposed.
12. The Claimant does not challenge the Panel's finding that PC White did not act dishonestly. PC White accepts that he did not act with due diligence.

The Merits

13. The Claimant relies on five grounds of challenge to the decision;

i) that it was irrational on severity,

ii) that it failed to deal with the allegations cumulatively,

iii) that it demonstrates a misunderstanding of the term "misconduct",

iv) that it demonstrates a misunderstanding of the term "gross misconduct" and

v) that it was irrational on the finding of a "lack of integrity".

Irrationality on Severity

14. The first of these is described as the central plank of the Claimant's submissions. It is submitted that the finding that his conduct amounted only to simple misconduct was so unreasonable as to be irrational. It is argued that the finding of the Panel that PC White lacked integrity because in disposing of the card he acted in a manner which he knew not to be the right thing to do means that his misconduct was so serious that it can only be characterised as gross.
15. It is obvious that deliberate dishonesty on the part of a police officer would, almost invariably, amount to gross misconduct. The standard of honesty expected by the public of its police service is high and must be jealously guarded by those responsible for its maintenance. Equally the public is entitled to expect that police officers will maintain the required standards of integrity but as Sir Thomas Bingham MR set out in Bolton v Law Society [1994] 1 WLR 512 at 518 D,

"If a solicitor is not shown to have acted dishonestly, but is shown to have fallen below the required standards of integrity, probity and trustworthiness, his lapse is less serious but it remains very serious indeed in a member of a profession whose reputation depends on trust. A striking off order will not necessarily follow in such a case but it may well. The decision whether to strike off or suspend will often involve a fine and difficult exercise of judgment, to be made by the tribunal as an informed and expert body on all the facts of the case."

A lapse of integrity is very serious but can fall short of the quality of a lapse of honesty. Integrity in this context is not used in the sense of freedom from moral corruption rather in the sense of a failing to act in the right way, not behaving as the totally correct police officer would, in some way falling short of the whole. It is explained for police officers as "doing the right thing".

16. Accordingly, it follows that not every failure to act with integrity is inevitably so serious as to be gross. That is a matter for the exercise of judgment by a panel with the experience and expertise in such matters to determine. PC White clearly did not do the "right thing" in disposing of the card in confidential waste rather than arranging its safe return, to that extent he did not act as the "whole" police officer would. Whilst that conduct can be characterised as very serious it is not irrational for the panel seized of all the facts not to have found that to be gross misconduct.
17. PC White should have ensured the safe return of the card to the soldier, or, at the very least, to have booked it into the property register at the police station. There is inevitably some concern that a Ministry of Defence identity card should have been treated in this way, particularly in a time of greater security requirements but the instructions on the reverse of the card provide for a card found in a public place to be placed in a post box for return. It might be argued that its destruction in police confidential waste was no worse than sending it openly through the public mail system. In any event PC White did not do the right thing. He said he had disposed of the card in that way because he believed it would have been replaced by the time he found it months after the seizure.
18. However lazy and lamentable PC White's conduct was, it was open to the Panel, having heard all the evidence and used their expertise to find, in the exercise of their judgment that it did not amount to gross misconduct. The Panel cannot be shown to have acted irrationally in finding the conduct to be misconduct but not finding it to be gross. The primary ground fails.

Cumulative Allegations

19. In reaching three separate findings the panel chose to identify their reasoning in stages. They had been asked to deal with the course of conduct as a whole. Although expressed as one charge the original allegation set out a series of acts and included other matters such as the suggestion that PC White had lied to PS Pickwick about still having the card in his possession. It appears that the panel followed the steps set out in expressing their findings. That process enabled them to be clear about which parts of the narrative they did or did not find proved.
20. PC White should not have held on to the card by inadvertence, he should not have retained it for several months before acting and he should have returned it safely. Whether identified as steps in the process or a continuing act cannot affect the quality of the conduct as a whole. However it is expressed, each is part of the whole which was found to be misconduct.

Misunderstanding of Misconduct

21. In describing his falling below the standard required as being "serious enough to constitute misconduct" the panel has not sought to use a term of art and cannot therefore be said to have shown a misunderstanding of the legal definition of misconduct. It was not expressed in the most helpful way but the Panel is seeking to show that the behaviour is serious enough to amount to a breach of the required standard and therefore amounted to misconduct.

Misunderstanding of Gross Misconduct

22. It is submitted that the Panel has also misunderstood or misinterpreted the definition of gross misconduct. Gross misconduct is that which is so serious as would justify dismissal. The Panel said that in their findings "that a minor breach of the duty to act with integrity does not necessarily call for the sanction of dismissal as a starting point …….". Again the phrase used lacks precision but that does not demonstrate flawed reasoning. Dismissal cannot be a starting point; it must come at the conclusion of findings. Again, this could have been more clearly expressed but it does show that the Panel did understand that to find gross misconduct they had to reach the point of determining that dismissal would be justified. These infelicities of expression do not demonstrate a misunderstanding of the terms misconduct or gross misconduct. The complaint comes back to the criticism that the Panel erred in not finding the admitted breaches to be gross. If that finding was properly open to the Panel on the evidence, as it was, then the grounds of misunderstanding and/or misinterpretation are based on a circularity of reasoning.

Irrationality on Lack of Integrity

23. This is also a subsidiary ground and in large part echoes the primary ground on severity. The Panel was asked to find that PC White had acted in a way that lacked integrity, in other words it was asked to find that he had not done the right thing. It was also asked to find, as was admitted, that he had acted in breach of his duty and responsibility to act diligently. It found that he had failed to act diligently and that he had not acted with integrity, in other words done the right thing. It was open to the Panel to find that he did fail to do the right thing out of laziness. Again, the expression of their findings could have been more clearly defined between the paragraphs dealing with duties on the one hand and integrity on the other but there cannot be any doubt as to what they had found proved, and why, and how seriously they viewed the conduct.
24. The panel found a failure to act with integrity but that the breach was not so serious as to amount to gross misconduct. Proper respect must be given to the Panel's findings on the facts and their assessment of the seriousness of the breaches. It heard the evidence and submissions. It is possible to criticise the expression of their findings but despite that, the overall conclusions reached and the reasoning for them is apparent and comprehensible. The four subsidiary grounds do not, separately or in combination, make out the claim.

Capacity

25. These police disciplinary proceedings were governed by the Regulations of 2012. When an allegation which may amount to misconduct or gross misconduct comes to the attention of the "appropriate authority", that authority must assess whether the conduct, if proved, would amount to gross misconduct. If the assessment is one of gross misconduct, an investigator will be appointed to report to the authority on whether there is a case to answer. If so, the matter is referred to a misconduct hearing. For an officer of PC White's rank the appropriate authority is the Chief Officer of his police force; the Chief Constable.
26. The authority then appoints a panel to conduct the hearing. The panel must be chaired by someone who satisfies the judicial appointment eligibility condition, a legally qualified chair. There will also be a lay member also chosen from a list of candidates drawn up and maintained by the Office of the Police and Crime Commissioner ("OPCC") and a senior police officer.
27. It is submitted by PC White that there is an insufficient degree of separation between the Claimant and the Panel to permit the Claimant to bring a challenge against the decision of the Panel. Whilst PC White accepts that the Claimant is not seeking to review the sanction imposed, it is argued that such a course might be pursued in another case.
28. The Regulations provide PC White with a route of appeal. There is no such route of appeal available to the Claimant.
29. It is submitted by the Claimant that whilst the appropriate authority is identified technically as the Chief Constable in the Regulations, the reality is that all its powers, duties and functions are in fact delegated. The Panel is therefore separate from and independent of the Chief Constable and, therefore its decisions are amenable to judicial review at his instigation.
30. A similar position was considered in South Staffordshire NHS Trust v The Hospital managers of St George's Hospital [2016] EWHC 1196 (Admin), in which Cranston J found,

"26……… the Trust is seeking judicial review of a decision which it had the power to take but which was taken by a body to which it had delegated that power. If it had taken the decision itself, judicial review would have been impossible because of the principle about a body not being able to bring a claim for judicial review of its own rules and decisions. In my view the legal position changes given the nature of the delegation in this case, to a body which Parliament intends to be an independent decision-making entity. Section 23(6) of the 1983 Act ensures the independence of a panel from an NHS foundation trust by the requirement that members cannot be executive directors of its board or employees. Consequently, the Panel is, in my view, sufficiently separate from and independent of the Trust to enable the Trust to bring a judicial review challenge to its decision. The situation is analogous to a regulatory body bringing a judicial review challenge to one of its own disciplinary committees, as in R v. Statutory Committee of the Pharmaceutical Society of Great Britain [1981] 1 WLR 886."

31. In amending earlier regulations, following public consultation, to require the appointment of a legally qualified chair, a lay person appointed by the OPCC and only one police officer and opening such hearings to the public Parliament evidenced its intention that such disciplinary proceedings should be independent and transparent. As in the South Staffordshire case the Panel appointed is sufficiently separate from and independent of the Chief Constable to enable him to bring such a challenge by way of judicial review. If that were not the case, then the Claimant would have no remedy if a panel was to act in a patently irrational and unlawful manner. This is not to open the door to a series of challenges which effectively amount to appeals against lenient sanctions. The standard required to meet the test of bringing a judicial review is a difficult one to meet.
32. Accordingly whilst the Claimant does have capacity to bring this challenge it does not succeed on the merits.