High Court overrides police conduct panel's decision to issue a final warning for gross misconduct24/06/20
In R (on the application of Chief Constable of the West Midlands) (Claimant) v Panel chair (Police misconduct panel) (Defendant) & Officer A (Interested party) (2020), the High Court quashed a police misconduct panel's decision to impose a final warning rather than a more serious sanction on an officer found to have engaged in gross misconduct, in the form of racist comments and racist stereotyping following a judicial review of the decision. The High Court held that the panel had failed to properly assess the seriousness of the officer's actions, and some of its conclusions regarding mitigation were irrational.
An officer was recorded referring to three officers of black and minority ethnic (BAME) backgrounds as "gangsters", he stated that people of their backgrounds did not mix with other people and mimicked an Asian accent. The panel found that this had taken place against a background of unresolved grievances and a lack of management in the department. The officer disputed that the conduct was gross misconduct and urged that it was necessary to have regard to the context in which his remarks had been made.
The panel concluded that the officer’s conduct amounted to gross misconduct. In considering the appropriate sanction, the panel noted the officer's full admissions and expressions of regret, and found that his conduct had been a one-off occurrence, provoked by a situation where the other BAME officers had inexplicably left the unit office as a group instead of staying to help with a work backlog. It confirmed it had regard to the Guidance on Outcomes in Police Misconduct Proceedings published by the College of Policing (the Guidance) in particular “culpability, harm, aggravating factors and mitigating factors”. It concluded that his actions had contributed to the unit's toxic culture and had the potential to undermine public confidence in the Police Service and to deter applicants from ethnic minorities. It noted that dismissal was a potential option, but instead imposed a final warning on the basis that the misconduct was not premeditated, limited to a single episode of short duration and the officer was of previous good character.
High Court decision
Mrs Justice Eady quashed the panel’s decision and the case is to be remitted to a differently constituted panel. She held that the panel has a discretion as to sanction, pursuant to regulation 35(3)(b) of the Police (Conduct) Regulations 2012, to be exercised in accordance with the structure set out in the College of Policing guidance on misconduct proceedings: to first assess the seriousness, secondly to assess the purpose and thirdly to determine the sanction most appropriate to the purpose. Any departure from this structure had to be explained. The panel had correctly referenced the four elements of the first stage in relation to seriousness: (1) culpability, (2) harm caused or potentially caused, (3) aggravating factors and mitigating factors. However, whilst the panel had identified the reputational harm, there was no indication that they had taken into account the evidence of actual harm suffered by the unit's BAME officers who had heard the recording. The panel had therefore erred in its assessment of harm. It had also erred in assessing mitigation. Its conclusion that his conduct was provoked was sufficiently inexplicable as to be irrational: no reasonable panel could have concluded that the circumstances provoked the officer to use racist stereotypes or accent mimicry. The panel was entitled to take into account the officer's early admissions and expressions of regret, but it had focused almost entirely on him and not on broader public-orientated concerns such as public confidence in the profession. Further, it has failed to consider this again at the third stage of the process.
What to take away
The purpose of the police misconduct regime is to maintain public confidence in and the reputation of the police service, uphold high standards in policing and deter misconduct and to protect the public. This case emphasises the importance of keeping this overarching purpose in mind at all stages of the process. In order to demonstrate that a panel has maintained its focus on the purpose, it is advisable to address this in the written outcome, by assessing the applicable facts considered in relation to each stage of the process and outlining how they sit with the purpose of the misconduct regime. In this case, Justice Eady found that, from the facts relied on in the outcome; the panel was too focused on the officer and did not consider the whole picture. In doing this, she held that they failed to keep the purpose in mind.