Anne Studd QC successfully defends JR: the principle that personal mitigation carries diminished weight in cases of police misconduct applies to all forms of misconduct

The Administrative Court held that the principle that personal mitigation carried diminished weight in cases of misconduct by a police officer applied to all forms of misconduct, not just dishonesty or a lack of integrity.

The Claimant sought judicial review of a decision of the Police Appeals Tribunal upholding the conclusion of a misconduct panel that he should be dismissed without notice for gross misconduct.

The Claimant, a Borough Commander in the Metropolitan Police Service had an exemplary record. Five allegations of misconduct were made against him, four concerned highly inappropriate behaviour towards women. Three of the four women in question were junior staff members; the other was the head of an important public body which worked closely with the police. The claimant admitted that his behaviour amounted to misconduct but relied on significant matters in mitigation: his excellent service record; the fact that he had been suffering from “burn-out syndrome” and had other mental health issues; character testimonials tendered on his behalf from local politicians across the political spectrum and the fact that he would sustain a significant pension loss if dismissed shortly before completing 30 years of service.

The misconduct panel had regard to those matters but accepted the statement in R. (on the application of Salter) v Chief Constable of Dorset and Police Appeals Tribunal [2012] EWCA Civ 1047 that because the purpose of misconduct proceedings was the maintenance of public confidence in the police, the potential of personal mitigation would necessarily be limited. The panel concluded that the claimant’s conduct was so serious, and had so discredited the Metropolitan Police Service, that dismissal without notice was the only appropriate sanction. The panel’s decision was upheld by the Police Appeals Tribunal.

The claimant argued that the sanction imposed was disproportionate. He also argued that the principle that personal mitigation carried diminished weight in cases of police or professional misconduct should be confined to cases involving dishonesty or a lack of integrity.

Held: (1) The principle in Chief Constable of Dorset should not be confined to cases of dishonesty or lack of integrity. None of the many cases put before the court contained any statement expressly requiring the principle to be limited in that way. The terms in which the principle had been expressed in the case law, far from expressing or suggesting the restriction for which the claimant had argued, tended to support the view that the principle applied to all forms of gross misconduct by a police officer. The claimant had not shown that any consideration of principle dictated a different conclusion. The purpose of a sanction was to maintain public confidence in and respect for the police service. Public confidence or respect might be seriously harmed by many forms of misconduct, not all of which involved dishonesty or a lack of integrity. Personal mitigation had always to be taken into account. However, a misconduct panel considering what sanction to impose following a finding of gross misconduct had always to have in mind the importance of the public interest in maintaining public confidence in and respect for the police service. The necessary consequence was that the personal mitigation available to the defaulting police officer, however impressive, could not carry the weight that it might in a different context, Chief Constable of Dorset followed and Bolton v Law Society [1994] 1 W.L.R. 512 applied (see paras 63-64, 67-68 of judgment).

(2) There was no error or unfairness in the approach of the misconduct panel, and the Police Appeals Tribunal had been entitled to conclude that the panel’s decision as to the appropriate sanction was not unreasonable. Neither the panel nor the tribunal had failed properly to take into account the matters in the claimant’s favour. His career had come to a very sad end, but it did not end because of an unlawful decision (paras 71, 74, 76).

A link to the judgment can be foundĀ here.

Anne Studd QC acted for the Defendant Police Appeals Tribunal.