This decision gives guidance to panels that investigate individuals' misconduct. Here it was held that the Police Misconduct Panel's decision in relation to the conduct of a police officer, DC Smith, was so irrational that the judge quashed the decision and ordered that a new Panel hear the case.
DC Smith was in charge of investigating two alleged rape cases (the "Cases"). Witness A and Witness B were the mother of the first complainant and the sister of the second, respectively. In relation to Witness A, DC Smith allegedly: (i) communicated with her in a sexualised manner on his personal phone; (ii) sought to form a sexual relationship with her; (iii) untruthfully told her that he had split up with his partner; and (iv) said that it was vital no-one knew if they met up. This constituted gross misconduct and breached the behavioural standards of honesty and integrity, duties and responsibilities and discreditable conduct. In relation to Witness B, it was alleged that DC Smith repeatedly communicated with her in a flirtatious manner using his work phone. This constituted gross misconduct and breached the behavioural standards of duties and responsibilities and discreditable conduct.
As to Witness A, DC Smith said that his texts to her were flirtatious, but not sexualised. He said he suffered from anxiety and depression and the texting boosted his self-esteem. He also said that he did not seek to form a sexual relationship with her, regardless of what impression his texts gave. Additionally, although he accepted that he lied when saying he had split up with his partner, this was not a breach of behavioural standards, just morally questionable. As to Witness B, he accepted he engaged in repeated flirtatious texting, but said he never had any intention of meeting up with her for non-policing purposes and that only 170 out of the 575 texts to her were of a personal nature.
At the hearing, the Panel held that DC Smith's conduct: (i) as to Witness A, amounted to gross misconduct and discreditable conduct, but did not breach honesty and integrity; and (ii) as to Witness B, amounted to misconduct and discreditable conduct. The sanction given was a final written warning.
The Chief Constable of Northumbria Police applied for this decision to be judicially reviewed. Leave was granted on the following grounds: (1) the Panel were irrational in not finding that there had been a breach of the behavioural standards of honesty and integrity and duties and responsibilities in relation to Witness A; (2) it was irrational for the Panel not to find that the allegation in relation to Witness B amounted to gross misconduct; (3) inadequate reasons had been given in relation to the failure to find a breach of the behavioural standards of honesty and integrity and duties and responsibilities in relation to Witness B; and (4) the final sanction was irrational. These grounds were considered at the substantive hearing.
Ground 1: Krammer J accepted the applicant's submission that the Panel failed to consider the fact that DC Smith encouraged Witness A to lie about any potential meetings, and that this is what should have led to a finding of a breach of honesty and integrity. Instead, the Panel focused only on the fact that DC Smith lied to doctors and work colleagues about his poor mental health. This was found not to breach honesty and integrity because the Panel said it was more to do with credibility. The Panel said that the issue of encouraging Witness A to lie was only speculative, because it was not carried through. However, Krammer J concluded that as there was an agreement to lie, it was not speculative, but concrete, and the Panel was incorrect not to give weight to this when deciding if honesty and integrity had been breached. Due to these shortcomings, Krammer J found that the Panel had been irrational when coming to a decision on whether honesty and integrity had been breached. In terms of the allegation that DC Smith had breached his duties and responsibilities through his texting with Witness A, Krammer J said that this had been entirely left out of the Panel's decision and no conclusion on this had been made. Overlooking this was held to be irrational and Wednesbury unreasonable.
Ground 2: Krammer J agreed with the applicant that the Panel had come to the conclusion that DC Smith's conduct amounted only to misconduct, based simply on the level of DC Smith's flirtation. He found that instead the Panel should have come to their decision after considering reputational consequences and what the guidance says about using your position to have improper relationships with the public. Krammer J agreed that as the Cases concerned alleged rape, this made the situation more serious. Therefore, he held that the Panel acted irrationally because they had failed to take into account relevant matters, thus reducing the seriousness of the allegations.
Grounds 3 and 4: As to ground 3, Krammer J found that the Panel failed to give weight to, and put forward as reasons, the factors that should have been considered. As to ground 4, Krammer J held that although the Panel had recited the relevant test and guidance, they had not followed it properly. In absence of reasons as to why the Panel departed from it, the Panel's decision was faulted.
The judgment serves to remind misconduct panels of the importance of (i) carefully considering all of the allegations against an individual before coming to a decision and sanction and (ii) ensuring the reasons given for that decision and sanction are wholly appropriate and line with relevant guidance, for failing to do this could end with a quashing order.
Co-authored by Holly Bontoft and Lauren Howes (trainee)