Another shot at dismissal for the Met Police | Commissioner of the Police of the Metropolis v A Police Conduct Panel v PS HR, PC CS  EWHC 2857 (Admin)
Another day, another successful challenge by a police force of the findings of a police conduct panel.
Thankfully, this case at least gives the writer an excuse to descend into gun or shooting based puns in an attempt to lighten the mood. That is despite the case generating a feeling of both weary familiarity and resignation to those of us who routinely defend such cases.
For those of you who are triggered (?) by police officers having what looked like a glorious victory cruelly snatched from them by the Administrative Court, look away now.
Anyway, let’s bite the bullet and get into it.
The facts were relatively straightforward: the claimant force applied for judicial review of sanctions imposed by a conduct panel on two firearms officers, who had been found to have falsified various records relating to firearms in 2019. The officers were based at the Met’s MO19 specialist firearms command and had falsified both firearms reclassification ‘shoot records’ and authorisations for two types of firearm. Having found proved allegations that the officers had breached standards relating to honesty and integrity and discreditable conduct, the conduct panel held that the behaviour amounted to gross misconduct i.e. conduct so serious that dismissal would be justified. At the sanction stage, rather than dismissal, the panel went on to impose a final written warning upon both officers.
The force sought review of that decision. This was on the grounds that the process by which the sanctions decision was reached was unlawful and also that the sanction as against PS HR (but not PC CS) was ‘irrational’. Again unsurprisingly, the claimant sought remittal back to a different panel, whilst the officers sought remittal back to the original panel.
In granting the review, Mostyn J reiterated the importance of the College of Policing issued ‘Guidance on Outcomes in Police Misconduct Proceedings’, stating:
‘In my judgment in a police misconduct case a non-trivial failure to follow the Outcomes Guidance will highly likely amount to an error of law.’ 
Mostyn J also reiterated the importance of the well-known ‘three stage process’ in determining the appropriate sanction, as enumerated in the case of Fuglers LLP v Solicitors Regulation Authority  EWHC 179 (Admin) (assess the objective seriousness of the misconduct, keep in mind the purpose of imposing sanctions, choose the sanction which most appropriately fulfils that purpose in light of the seriousness of the conduct in question).
Whilst objectively assessing seriousness is a key part of that process, and this allows the decision-maker to take account of mitigating factors relevant to the conduct (e.g. ill health or psychological impairment), Mostyn J made clear that the consideration of mitigation in the form of testimonials and references is not relevant to this assessment, and indeed is inadmissible.
In short, the panel had erred in law by considering testimonials at stage 1 when assessing the seriousness of the misconduct. That was not a trivial error. Testimonial evidence had been a key factor leading to the least harsh sanction. The court concluded that the panel allowed the testimonial and reference evidence to significantly water down the objective seriousness of the conduct.
In respect of the rationality or reasonableness challenge in light of the panel’s finding of dishonesty Mostyn J stated:
‘I am satisfied that the Panel’s decision was Wednesbury unreasonable. The decision does not grapple with the consequences of the finding of dishonesty, having regard to the policy of the disciplinary regime. It does not attempt to calibrate this particular class of dishonesty (i.e. on-duty, non-operational) by reference to the Outcomes Guidance.’ 
The court also poured scorn on the panel’s findings with, and reliance upon, the officers’ “long and positive service“, branding it as ‘hard to understand’ as a reason for administering a warning in circumstances where it is effectively inadmissible in assessing the objective seriousness of the conduct.
The first glimmer of hope for the officers seemed to arrive at paragraph 78 of the judgment, where Mostyn J declined to conclude that the only reasonable sanction against PS Russell was instant dismissal and as a result declined to substitute such a sanction himself. However, perhaps predictably, this was tempered to some extent by the case then being remitted to a fresh panel rather than the original one, the court stating that:
“I do not think that a right-thinking member of the public would consider that she or he would see justice being done if the sanctions decision were redetermined by the original Panel.” 
The writer wonders out loud if the officers would necessarily agree with that.
In general, from a disciplinary proceedings legal perspective, there was nothing new or ground-breaking in any of this. Some obvious points that perhaps emerge for those who defend such cases are:
- Take care to distinguish as between mitigation directly linked to the commission of the misconduct (e.g. ill-health, operational pressure) and pure personal mitigation;
- Be careful when and how you deploy references and testimonials – there is a danger the panel could give them undue or improper weight or consider them at the wrong stage, giving the force a strong potential point of challenge;
- Ensure the panel does not stray from the ‘three stage approach on sanction’ or again, the force will likely have a potential point of challenge;
- For similar reasons, ensure the panel sticks slavishly to process and guidance as contained within the ‘Guidance on Outcomes’;
- Be prepared for the prospect that if the case is remitted, dependent on the extent of the apparent errors, it may very well be remitted to a fresh panel for the purposes of sanction.
The regular and depressing inability of misconduct panels to arrive at the decision they clearly want to reach on sanction, but in a legally sound way, is again apparent in this case. Some would say this is born out of a combination of the harshness of the police misconduct regime (particularly with respect to any finding of dishonesty) and the now almost ‘algorithmic’ nature of the sanctioning exercise that is required.
Others would say this case could be seen simply as another example of police forces, (via the Administrative Court) seeking to uphold and maintain proper standards and public confidence, ensuring the imposition of proper, proportionate and consistent sanctions and ensuring that the law is properly applied.
Whatever your own view, the reality is that in the current climate any sanction seen by a force to be remotely lenient is likely to be challenged. Any ‘error’ by a panel with respect to sanction, no matter how trivial, is liable to be branded as Wednesbury unreasonable, irrational or some other type of public law error. That includes the case where, in reality, the error is simply a sanction that the force doesn’t like or thinks ‘is a bit soft’.
In that regard, this decision and others like it, suggest that the landscape has perhaps changed since the observations of Freedman J just three years ago in the case of Barratt  EWHC 3352 (Admin):
“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.”
Given that this observation seems now to be increasingly ignored, any conduct panel seeking to give an officer the benefit of the doubt in terms of sanction may well end up simply shooting themselves in the foot…
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