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The Brief: the apology paradox


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Saying sorry for something an officer has not done raises a number of appeal issues.


Date - 24th August 2020
By - Kevin Baumber

An officer might robustly deny and defend an allegation but suffer an adverse finding. They may maintain their innocence and wish to appeal. In the moment their allegation has been found proven they face the outcome stage and imposition of disciplinary action. It is sometimes held against them that they have not apologised or ‘shown insight’ – e.g. by saying sorry and recognising that their actions (which until a moment before they were denying) were wrong. To do so would likely be inconsistent with appeal; indeed if the finding against them is wrong it would be a false confession, yet in that moment the found reality is that they are guilty – never mind that they may not remain so. A tricky paradox.

In GMC v Awan [2020] EWHC 1553 (Admin) a doctor had been suspended from practice for 9 months and the GMC (General Medical Council) appealed on the basis that the sanction was insufficient to protect the public.

GMC cases provide much of the case law that is adopted into police misconduct because of the many similarities. The GMC is fixed with the over-arching objective of the protection of the public, promoting and maintaining public confidence in the medical profession, and promoting and maintaining proper professional standards and conduct for members of that profession. The overarching objective of the tribunal is the protection of the public. Thus, a sanctions decision is not penal, but looks to protect the reputation of a profession. All of these things are true for police misconduct.

In Awan a doctor fell foul of a sting operation by communicating with a police officer posing as a 13 year old child. He was alleged to have made sexually motivated inappropriate comments to a potentially vulnerable child. The court remarked that his defence that he had figured out it was a police sting and went along to catch them out was absurd.

It was said that his insight was limited, that he was yet to recognise his actions were inappropriate, and had not expressed remorse. This issue arises in police cases where an allegation has been defended but been found proven, the officer might want to appeal but for the moment has been found guilty and faces being criticised for lack of insight and remorse if they do not confess and apologise for the thing their own defence had just that moment been saying they did not do, but has been found otherwise. The Awan case brings some common sense to this situation and provides valuable protection against it being held against an officer if they do not reverse their position in the moments between a finding and the sanction stage. Mostyn J held

‘I think that it is too much to expect of an accused member of a profession who has doughtily defended an allegation on the ground that he did not do it suddenly to undergo a Damascene conversion in the impairment phase following a factual finding that he did do it. Indeed, it seems to me that to expect this of a registrant would be seriously to compromise his right of appeal against the factual finding, and add very little, if anything, to the principal allegations of culpability to be determined…’

His Lordship goes on to refer to what is sometimes said in such situations: namely recognising what the tribunal had found proved was serious and deplorable. His Lordship observes:

‘That is some distance away from admitting explicitly the truth of what the tribunal had found proved. In my judgment, in the absence of any significant hiatus between the factual finding and the impairment/sanctions phase in which full reflection can be undergone, that is as much as can reasonably be expected of an accused professional who has defended the case on the ground that he did not do what was alleged.’

In everyday life an apology of the type ‘I am sorry if you are offended’ may be considered no apology at all, but in professional misconduct it is valid.

In fact this case offers more than this insight – perhaps a more important one touching upon the practice to be disapproved and resisted by a competent defence: namely allegations of dishonesty being brought on the basis that an officer has denied a charge in interview or otherwise. That argument is too important and extensive to be addressed here; but there is room at least for a reminder, if it crops up, take advice.

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.


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