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The Brief: challenging Police Appeals Tribunals rulings


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Fedster

A chief constable sought to overturn a Police Appeals Tribunal ruling which reduced the dismissal of an officer to a final written warning.

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Date - 6th June 2021
By - Kevin Baumber

In the recent case of R. (on the application of Chief Constable of Nottinghamshire) v Police Appeals Tribunal [2021] EWHC 1248 (Admin) a number of aspects of decision making by Police Appeals Tribunals came into focus.

A bailiff attending an address to enforce a debt suspected that during his visit a parcel had been stolen from his car by people connected with the debtor he was visiting. He rang the police. The complaint in question against the officer was made by the person the bailiff had been visiting. The complaint was in relation to the attendance made by officers in investigation of the bailiff’s call. It concerned exercise of powers, use of force, and misleading the complainant as to the law regards their powers.

A police misconduct panel found 12 out of 13 allegations of misconduct proven as gross misconduct and dismissed the officer. A Police Appeals Tribunal (‘PAT’) then allowed an appeal brought by the police sergeant concerned and substituted a final written warning. The PAT also considered that his conduct was so serious as to amount to gross misconduct but, having found (amongst other matters) that the Panel’s finding of lack of integrity was unreasonable, substituted a lesser sanction. 

The Chief Constable sought to have the dismissal reinstated by bringing a claim for judicial review. There were numerous grounds argued including that

the PAT failed to recognise the distinction between honesty and integrity;

the PAT failed to correctly apply the test in rule 4(4)(c) of the Police Appeals Tribunal Rules 2012 (i.e. unfairness which is material) ; and

the PAT irrationally quashed the sanction of dismissal imposed by the Panel which was a sanction reasonably open to the Panel on the facts and/or erred in law in its approach to substituting a sanction of a final written warning (i.e. did not follow the structured approach required when dealing with outcomes).

The court set out the principles of judicial review of a PATs decision, which do not encourage such claims being brought lightly. It cited R (Chief Constable of Dorset) v PAT & Salter [2011] EWHC 3366 (Admin) which held that absent another error of law on the part of the Police Appeals Tribunal its decision on sanction could be interfered with only on classic Wednesbury grounds, in short that on the material before it no reasonable Tribunal could have reached the conclusion that it did.

It also referred to Chief Constable of Northumbria v PAT & Barratt [2019] EWHC 3352 (Admin) , where Freedman J observed that the Administrative Court

“should guard against the misuse of its jurisdiction by Chief Constables seeking to mount what are effectively ‘undue leniency’ appeals to decisions of misconduct panels or PATs.”

The Standard of Professional behaviour which requires officers to act with honesty and integrity includes two distinct requirements. The court confirmed that honesty and integrity are distinct. Case law establishes, in the simplest terms, that integrity requires officer do the right thing. Therefore one can be honest but lack integrity – i.e. not breach the honesty element but breach the integrity one. Here the point turned on an allegation that the officer had misrepresented the law and his powers – with an issue of whether he was just mistaken as to what they were. The Chief Constable’s challenge on judicial review failed on this ground as the court found that the PAT had not misdirected itself regarding the distinction between honesty and integrity.

The court observed that it would have been logically possible for the officer to have been mistaken about his powers of entry to search for stolen property or suspects (and so been mistaken in his representation of those powers), and at the same time to have misused the powers he believed he had to seek entry for a different, improper purpose, and that such conduct would have been dishonest and lacked integrity. However that was not the case as found here.

The Chief Constable relied on a number of authorities in support of the proposition that a first instance tribunal’s findings of primary fact, particularly if founded upon an assessment of the witnesses, are close to being unassailable. This is another way of saying that PATs should find it very difficult to overturn the misconduct panel where the decision is one of fact that has been made from the panel seeing and hearing witnesses that the PAT does not see because appeals like this are not re-hearings, they are based on arguments and submissions made on the papers.

The Chief Constable failed in this argument however because the court found that the PAT’s decision could not properly be characterised as quashing the primary finding of fact. Rather, the PAT effectively quashed the finding of lack of integrity because the Panel’s decision did not clearly explain the finding of lack of integrity.

The point about rule 4(4)(c) was about whether the unfairness was material. The rule allows appeals there is some other unfairness not covered in the gateways to appeal under the ‘unreasonableness’ 4(4)(a) gateway or ‘fresh evidence’ 4(4)(b) gateway.

The Chief Constable argued that the PAT failed correctly to apply the test in rule 4(4)(c) of the PAT Rules 2012 that any unfairness must be material. The court found that it was implicit in the PAT’s decision that the unfairness to which they referred was material, but found that it had failed to give adequate reasons for finding any material unfairness.

The argument about following the correct approach to sanction was a reference to what is known as the Fuglers approach. Fuglers was a case which set out the step by step approach to assessing seriousness and other matters that must be strictly followed by police panels when imposing sanction. The question here was whether a PAT has to follow that approach. It does.

The court found that when remaking the decision, the PAT was standing in the place of the Panel and bound to take the same approach. It was important that in remaking the decision as to sanction the PAT should make clear its assessment of the seriousness of the conduct which remained proven.

The result is that decisions as to sanction, whether made by the Panel at first instance or by the PAT by way of substitution under s.85(2) of the Police Act 1996, must be reached following the three stage test set out in Fuglers LLP v Solicitors Regulatory Authority [2014] EWHC 179 (Admin) at [28]-[29], as summarised and applied to the police misconduct jurisdiction in the College of Policing’s Guidance on outcomes in police misconduct proceedings (“the Guidance on outcomes”). Any sanctions imposed that fail to do so are thus vulnerable to challenge in the Administrative Court by way of judicial review.

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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Zulu 22

I would hope that the Chief Constable would accept the decision or is he likely to try and make a point of making life difficult for the Sergeant.  With Nottinghamshire being a County Force he could, of course, try and punish him by transferring him to an outlandish posting. To do so would then leave the Chief Constable open to a case and complaint of misconduct.  I would think that the Sergeant would now be in a stronger position than the Chief.

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BizzieBee

Does anyone have any insight into the allegations and the incident, that they are able to share? A bit of a long-shot, granted. But the article isn’t very clear and reads to be a civil matter, turned criminal, with allegations of theft - so I’d be interested to see what the issues were with entry, arrest and search and use of force in order to do so - then how it progressed to 13 allegations, 12 of which upheld. If anything, it sounds as though issues with the use of police powers which would be a management and training issue. 

Still, wouldn’t be the first time the Chief Officers table have got together to do someone’s legs. They only look after their own with the pats on the back. 

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Zulu 22

I think that Sergeant Flint was correct in his description to the Bailiff.  A baiIiff and an unwilling debtor never go down well complicated by someone stealing property from the bailiffs vehicle and "keying" the vehicle, especially when only the debtors relatives have been there.

The Sergeant may have been in the wrong but I could have sympathy with him.  

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