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 EWCA Civ 1047; LTL 31/7/2012, Court of Appeal - Michael Ford QC
The appellant police sergeant (S) appealed against a decision ((2011) EWHC 3366 (Admin)) dismissing his appeal to the Police Appeals Tribunal in relation to the sanction imposed by the respondent chief constable for S's admitted serious misconduct.
Whilst investigating another police officer's death, S had discovered that the deceased had been having an affair with another officer. The deceased's family were unaware of the relationship. S instructed a junior officer to destroy a mobile telephone recovered from the scene, as it contained evidence of the affair. S maintained that his intention had been to protect the deceased's family from further distress. A police misconduct panel concluded that S should be required to resign, and the chief constable upheld that decision on review. The tribunal decided that S should instead be reduced in rank. It considered that the character evidence and his 22-year unblemished career were exceptional, and that it was a finely balanced case. The chief constable successfully applied for judicial review. The judge held that the correct approach was reflected in the authorities on solicitors' disciplinary proceedings. He said that a decision-maker had to recognise that a sanction that resulted in an officer leaving the force would be the almost inevitable outcome in cases involving operational dishonesty, and that if a decision-maker found that a case was exceptional it had to identify the features of the misconduct that supported a different conclusion.
S argued that (1) what the judge had described as the correct approach for a decision-maker was too prescriptive; (2) the judge had been wrong to apply authorities on solicitors' disciplinary proceedings; (3) the decision of the tribunal was not clearly inappropriate or irrational.
HELD: (1) Although there was nothing in the relevant statutory provisions and guidance that sought to circumscribe the tribunal's approach, that did not preclude the development of principles to ensure that the tribunal acted in a consistent manner and not arbitrarily. The judge had not demanded a formal and express self-direction by the tribunal. He had identified as the correct approach one that was not only appropriate but incontrovertibly correct. It was inherent in the requirement of judicial and quasi-judicial reasoning that where a decision-maker had to choose between the usual and the exceptional course, it was incumbent on him, if he chose the exceptional course, to explain why he had done so. The question for the reviewing court was whether the decision-maker had complied with that obligation rather than whether there was, on the face of the decision, a formal or express self-direction about it (see para.19 of judgment). (2) The judge had not been ignorant of the differences between the positions of police officers and solicitors. He had simply drawn on the authorities in relation to solicitors by way of analogy. The similarities between solicitors and police officers in relation to the need for public confidence in them justified the analogy, provided that the decision-maker appreciated at all times that the case fell to be assessed in the context of policing (para.21). (3) The tribunal had exceeded the limits that were reasonably open to it. Notwithstanding the factors that mitigated the offence, including that it had not been planned and that S's motives were unselfish and well-intentioned, it remained a very serious offence. Due to the importance of public confidence, the potential of personal mitigation was limited. It was not a finely balanced case, or one of the very small residual category in which operational dishonesty or impropriety need not result in dismissal or a requirement to resign, R. (on the application of Bolt) v Chief Constable of Merseyside  EWHC 2607 (QB),  Po. L.R. 212 considered (paras 22-23).