Deceptively simple – or simply deceptive? The dangers of over-complicating misconduct allegations – and over-simplifying reasons
Chief Constable Nottinghamshire Police v Police Appeals Tribunal ((Police Sergeant Jonathan Flint Interested Party) [2021] EWHC 1248 (Admin)
Introduction
On 12 May the Administrative Court handed down judgment in The Chief Constable of Nottinghamshire Police v Police Appeals Tribunal. As I had done below at the Police Appeals Tribunal (“PAT”), and throughout the original police misconduct proceedings, I represented PS Flint in the Administrative Court, led by Jason Pitter QC of New Park Court Chambers.
Facts
The original incident arose in April 2017 when PS Flint and a fellow officer attended the home address of Ms B in response to a request from a bailiff. Ultimately, the entry of the bailiff was secured and Ms B physically detained. She brought a complaint two days later.
Despite the whole incident lasting just six minutes, the Notice against PS Flint alleged multiple, nuanced breaches of different standards relating to his intention and state of mind during different parts of the incident. PS Flint’s response contended that the Notice was deficient, repetitious, duplicitous and confusing, and invited the Appropriate Authority to reflect and “to draft fewer, succinct allegations”. That invitation was ignored.
Following a hearing in November 2019, the Panel found 12 out of 13 allegations of misconduct proven against PS Flint and that his conduct cumulatively amounted to gross misconduct. They imposed a sanction of dismissal upon him.
On appeal, the PAT concluded the Panel’s decision was flawed. It noted, inter alia:
- the decision was generally unclear and open to misinterpretation,
- the finding of lack of integrity was flawed since the panel had commented in respect of another allegation that the same conduct was ‘a mistake’ and ‘unintentional’,
- the panel misapplied the proper test for dismissal (imposing an additional test of exceptionality in order not to impose a sanction of dismissal).
The PAT replaced the original sanction of dismissal with a final written warning.
The judicial review
The Appropriate Authority (under the guise of the Chief Constable) challenged the PAT’s approach, its decision to remake the sanction and to the remade sanction itself.
The challenge was partially successful. The court concluded that the PAT’s decision making process in terms of sanction and the reasons given for it, failed to address the seriousness of PS Flint’s conduct. In remaking the decision of sanction the PAT should have made explicit its assessment of the seriousness of the conduct which remained proven. The case was remitted back for PAT to reconsider the issue of sanction.
However, the majority of the Appropriate Authority’s challenges failed. The PAT’s all-important decision to overturn the finding of lack of integrity was maintained. The court rejected the argument (routinely deployed against PAT decisions) that the PAT had impermissibly quashed the original Panel’s ‘primary findings of fact’, which are essentially unassailable. In doing so, the court considered that the finding in respect of integrity was not a primary finding of fact, but essentially a finding of law.
In addition to this, in reviewing the case, Mrs Justice Steyn was critical both of the Notice and the panel’s original reasons. It commented, “The Panel faced a difficult task because of the unfortunate way in which the allegations were drafted.” It described the Claimant’s attempts to “rescue” the Panel’s obviously obscure reasoning as “an attempt to engineer backwards from the result, in the absence of any explanation”.
The fact police misconduct allegations are often wide-ranging, confusing, pleaded-in-the-alternative, duplicitous, and include a general ‘catch-all’, will be wearily familiar to those who regularly defend police misconduct hearings. Similarly familiar will be the often artificial, ex post facto justifications deployed by various Appropriate Authorities at the PAT, deployed in an attempt to “salvage” self-evidently deficient, or even legally incorrect, Panel decisions.
This decision provides a welcome and overdue counter-balance to the usual tolerance of that approach by the higher courts.
In addition, the court firmly and roundly rejected the attempt by the Claimant to invite the court itself to effectively impugn and to quash the entirety of the PAT’s decision and to replace the PAT’s sanction of a Final Written Warning with one of dismissal. In that regard, Mrs Justice Steyn stated unequivocally:
“In my judgment, it is impossible to conclude that the misconduct proven in this case was such that the only sanction that could rationally be imposed was dismissal.”
This serves to highlighted the point: the PAT is a specialist tribunal and their view regarding the appropriate sanction is worthy of respect. Again, whilst it may be self-evident, such a proposition seems to have been recently forgotten. (e.g. see the cases of Salter, Woollard, Roscoe, Barratt). This case represents a welcome reaffirmation of the respect that should properly attach to the conclusions of the PAT as to sanction. This restatement of that particular principle is always useful for those who defend such cases, in terms of repelling undue leniency appeals mounted in the High Court cunningly masquerading as so-called ‘rationality challenges’.
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