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Officers with apparently sound appeals can be left feeling aggrieved when decisions too readily defer to the the original misconduct panel ruling. But a recent case could be a game changer. Date - 10th August 2020 By - Kevin Baumber Challenging decisions of misconduct panels on appeal is sometimes made difficult when the complaint concerns the conclusions a panel has drawn from evidence it has heard and witnesses it has seen but the appeal tribunal has not. This is because appeals tribunals are reluctant to interfere. Intervention is slow to occur because appeals tribunals defer to the lower panel because it has seen the witnesses. It is also sometimes the case that panels appear to find or decide upon things that do not reflect the precise allegations that were being heard. Instead they adopting their own slightly different tangent, decide something slightly different to what was alleged. Sometimes officers with apparently sound appeals can be left feeling aggrieved when appeal decisions too readily defer to the decision made below or allow this unfair flexibility around what is being decided versus what was alleged. Although arising from a victory by an Appropriate Authority, there is ammunition in a High Court decision last week of which savvy defence appellants should have taken notice. In R. (on the application of The Chief Constable of Dyfed Powys Police) v Police Misconduct Tribunal [2020] EWHC 2032 allegations of sexual harassment were brought against an officer who had a previous warning for inappropriate behaviour of a sexualised nature, the officer cited depression and Asperger’s in his defence to distinguish his behaviour from misconduct, admitting the facts but saying he did not recognise the inappropriateness at the time, although he did now. The allegations included touching. The Appropriate Authorities doctor disagreed on the precise mental health problem, but took the position that a tendency to sexual abuse of other persons is specifically excluded from the definition of disability in the Equality Act. Despite highly sexualised language towards a PC which was unwanted and described by her as non-consensual inappropriate touching, the panel found that it was not sexual (concentrating on how the accused officer perceived it) and imposed a Final Written Warning. This judicial review was brought, among other reasons, because it was argued to be irrational to reach such conclusions, the court agreed. The judgment recognised all the principles that can make overturning decisions by first instance tribunals, namely that appellate courts should not interfere with findings of fact by trial judges, unless compelled to do so; particularly so where the tribunal of fact has based its decision on the credibility and reliability of the evidence given by witnesses but it stressed that the reasons given for doing so must be adequate. In particular a fact-finding tribunal must explain how it has got from its findings of fact to its conclusions. It must direct itself to consider the terms of the charges that the officer concerned faced. In this case the tribunal did set out the charges in its written decision, but it never asked itself whether the evidence had demonstrated that the PC’s behaviour had contravened in the way alleged in the precise language of the charge. They also found that despite having the benefit of seeing the evidence first hand that the factual conclusion was, in public law terms, irrational; and had misdirected themselves in answering a more limited question than was posed by the actual allegation. The court held that a tribunal of fact can make findings that might be thought to go against the weight of the evidence, but if it does so, it must explain its reasons and demonstrate that it has “given acceptable answers to the right questions” This is a welcome clarification. The Get Out of Jail Free card sometimes handed by appellate tribunals to panels that have made errant decisions should disappear. The reluctance to intervene should not bite unless the panel below has both correctly identified the right questions, and given proper reasons as to why they decided them, rationally, in the way they did. Kevin Baumber, 3 Raymond Buildings 3 Raymond Buildings is recognised as the leading specialist set of barristers nationally in representing police officers in misconduct, criminal and inquest proceedings, and police forces and officers in associated judicial reviews and public inquiries. Further details are at 3rblaw.com. Any opinions expressed in articles in The Brief are those of the individual author. View On Police Oracle