An Improper Pursuit: R (On the application of The Chief Constable of Cleveland Police) v A Police Misconduct Panel (Interested Party: PC Paul Faulkner) (Unreported)

Yet another successful judicial review by a police force of the findings of the police misconduct panel you say? Not quite.

The reader will be no doubt delighted to know that this article represents something rather different to my usual lament, involving (as it usually does) sorry tales of the writer valiantly snatching defeat from the jaws of victory.

As those now familiar with the well-trodden path know, it usually goes something like this:

1. Defend a police misconduct hearing at first instance,
2. Obtain a glorious acquittal and/or superbly unexpected result in terms of avoiding dismissal at the sanction stage,
3. Application for judicial review by the relentless, heartless and deep-pocketed force in question,
4. The High Court (often, rather uncharitably in my view) classify my stunning victory as an ‘error of law’ or ‘unduly lenient sanction’ by the Panel or similar,
5. Final Written Warning replaced by a sanction of dismissal, or,
6. Case remitted back to the original Panel – who then see the error of their ways and dismiss the unfortunate officer.
7. My initial legendary status is summarily revoked.

[I have deliberately not included the potentially inevitable Stage 7 of all vanquished advocates, which involves them cursing angrily, and falling into a pit of regret and despair whilst questioning both their self-worth and reflecting on their life and career choices.

Stage 8, involving a full and complete recovery after the weekend and/or when the cheque arrives, is also entirely optional.]

Anyway, this case concerned a renewed application for permission to apply for judicial review made by the Chief Constable of Cleveland Police, permission having initially been refused on the papers.

Without spoiling the punchline, the renewed application was ultimately refused by HHJ Kelly, sitting as a Judge of the High Court at Leeds – hence the cheery tone of this article.

The facts of the case were widely reported at the time. Of course, it is well known that the media never let a police officer accused of misconduct escape the unwarranted moniker of ‘Top Cop’ – and thus it was here for the unfortunate ‘Top TV Cop’ PC Faulkner, who had the dubious honour of being the erstwhile star of Channel 5’s popular flagship reality offering “Channel 5 Police Interceptors”.

Throw in that his nickname was ‘Mustard’ (as in ‘keen as’), and that the case involved initially some fairly salacious allegations – including an extra-marital affair and dishonesty – and the headlines almost wrote themselves.

In essence, the straightforward facts were that PC Faulkner had become involved in an extra-marital relationship with a fellow officer which ultimately broke down – nothing unusual about that you may think.

What marked the case out however was, firstly, that PC Faulkner then became the officer’s Federation representative at the material time, and, secondly (and perhaps more importantly) when directly asked about it the existence of the relationship, he had lied to his colleagues and superiors about it. Misconduct charges of discreditable conduct and breaches of honesty and integrity inevitably followed.

After a contested misconduct hearing over 3 days, the Panel found that whilst the circumstances of the relationship did amount to discreditable conduct (which had been denied) and whilst the lying about it when challenged did indeed also amount to dishonesty (which had been admitted), in the round the behaviour amounted to misconduct rather than gross misconduct.

The Panel effectively accepted PC Faulkner’s evidence that the dishonesty was a misguided effort to protect both his own and the officer’s family. The net effect of that decision was, of course, that the officer could not be dismissed at the sanction stage.

In terms of challenge, the Chief Constable alleged (as ever) that:

1. The Panel’s assessment of seriousness was so unreasonable as to be irrational,
2. Their approach to the severity assessment was wrong in law, and
3. They gave insufficient reasons.

They placed particular reliance on the principle emerging from the case of White [2017] EWHC 923 (Admin) to the effect that: “It is obvious that deliberate dishonesty on the part of a police officer would, almost invariably, amount to gross misconduct”.

The criticisms were focussed on the Panel’s admittedly rather inelegant summary of that principle, in terms of asking instead whether its findings on one allegation “elevated his admitted misconduct to gross misconduct”. The Panel, the Chief Constable said, had effectively looked at the test the wrong way round.

Despite that inelegance, and in what seems to the writer to be a vanishingly rare occurrence these days (albeit without a shred of empirical evidence to back that up), the Chief Constable’s original arguments were given short shrift from the outset, with permission being initially refused on the papers on all grounds.

At the renewal hearing, HHJ Kelly then adopted almost entirely the same reasoning and rationale in dismissing the application to renew.

HHJ Kelly decided that whilst not perfect, it was clear to see why the Panel had reached the decision they had, and that any criticism (in terms of isolating one paragraph or one phrase) failed to have proper regard to the whole of the Panel’s decision. They had also seen and heard the evidence.

The rather more worrying (and arguably bold) submissions made by the Chief Constable – that the Panel ought to have explicitly referenced and used the College of Police ‘Guidance on Outcomes’ document in assessing severity at the facts stage – was also dismissed. The obvious answer from the writer’s perspective was that, effectively, the clue was there in the name of the document: Guidance on Outcomes.

Ultimately however, this decision serves as welcome boost for the accused officer involved, and perhaps even for some other serving officers facing misconduct in terms of the approach taken.

In other articles I have previously commented upon the apparent harshness of the police misconduct regime and the often depressing inability of police misconduct Panels to construct or to express a legally sound way of keeping an officer in service – even when it is abundantly clear they are desperate to find a way of so doing.

Clearly, the proposed reforms to the misconduct regime and system (which are outside the scope of this article) may make that situation even worse.

In summary, this decision doesn’t break any new ground, but perhaps reaffirms and makes clear:

1. Provided that misconduct Panels are thorough in their reasoning and approach their task in the right way, it is the both the content and the context of the whole of the written decision that is important – not, as is often the case urged by the Chief Constable, the selective cherry picking of discrete parts or particular phrases within a decision. It is often forgotten that the proper starting point is that the Panel should be afforded a degree of latitude in their reasoning, it being ‘right to adopt a generous approach to the reasoning provided by a misconduct Panel’: R (Chief Constable of West Midlands Police) v Police Misconduct Panel [2020] EWHC 1400 (Admin).

2. That is subject to the caveat that the Panel have to at least get the basics right (e.g. setting out relevant law and Guidance, and expressing clearly and correctly the test for (for instance) misconduct or gross misconduct).

3. Such a decision is a welcome counterpoint to the dicta relied upon (now almost routinely) by Chief Constables in these claims, namely the observations of HHJ Pelling in R (The Chief Constable of Greater Manchester Police) v Police Misconduct Panel & Roscoe (13 November 2013) to the effect that in respect of the so-called ‘structured approach’ of the College of Police Guidance on Outcomes:

“… obviously however the court will not guess or assume that a correct approach has been adopted if that is not apparent on the face of the decision.”

4. In that sense, any attempt to extend the structured, almost algorithmic approach within the Guidance on Outcomes to the primary, fact-finding stage (or indeed to the stage where the Panel decide whether it amounts to misconduct or gross misconduct or neither) is to be strongly resisted.

The writer’s view is that such an approach would further limit what is arguably already very limited discretion afforded to police misconduct Panels.  Any attempts to make Panels (effectively) reverse engineer factual findings or severity assessments based upon the structured approach within the Guidance on Outcomes document (i.e. with explicit reference to the four ingredients feeding into the assessment of seriousness of culpability, harm, aggravating and mitigating factors) would likely fetter the discretion of decision-makers at the facts stage, eliminate nuance and ramp up seriousness – all of which would generally spell trouble for serving officers, especially in the current climate.

Michael Rawlinson