Chief Constable of Dorset, R (on the application of) v Police Appeals Tribunal [2011] EWHC 3366 (Admin)

Case No CO/8560/2010

[2011] EWHC 3366 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 14/12/2011

Before

MR JUSTICE BURNETT

Between

The Queen on the Application of the Chief Constable of DorsetClaimant

Police Appeals TribunalDefendant

Mr Neil SalterInterested Party

Mr John Beggs QC and Mr James Berry (instructed by Mrs Shan Hounsell, Force Solicitor) for Claimant

Mr Michael Ford (instructed by Russell, Jones and Walker) for Interested Party

Hearing Hearing date: 22 November 2011

Judgment

The Hon. Mr Justice Burnett:

Introduction

[1]In a written decision dated 9 July 2010 the Police Appeals Tribunal (“the Tribunal”) decided that Neil Slater, the interested party, should be reduced in rank from sergeant to police constable as a sanction for serious misconduct that he had admitted. In doing so they overruled the decision of a Misconduct Panel of the Dorset Police, which had been affirmed on review by the Chief Constable, that he be required to resign from the force. This is the Chief Constable’s claim for judicial review of the decision of the Tribunal.

The Statutory Scheme

[2]Section 50 of the Police Act 1996 [“the 1996 Act”] provides:

“(1) Subject to the provisions of this section, the Secretary of State may make regulations as to the government, administration and conditions of service of police forces. (2) Without prejudice to the generality of subsection (1), regulations made under this section may make provision with respect to – (e) The conduct, efficiency and effectiveness of members of police forces and the maintenance of discipline; (3) Without prejudice to the powers conferred by this section, regulations made under this section shall- (a) establish, or make provision for the establishment of, procedures for cases in which a member of a police force may be dealt with by dismissal, requirement to resign, reduction in rank, reduction in rates of pay, fine, reprimand or caution, and … ”

Section 85 of the 1996 Act provides:

“(1) A member of a police force who is dismissed, required to resign or reduced in rank by a decision taken in proceedings under regulations made in accordance with section 50(3) may appeal to a police appeals tribunal against the decision except where he has a right of appeal to some other person; and in that case he may appeal to a police appeals tribunal from any decision of that other person as a result of which he is dismissed, required to resign or reduced in rank. (2) Where a police appeals tribunal allows an appeal it may, if it considers that it is appropriate to do so, make an order dealing with the appellant in a way – (a) which appears to the tribunal to be less severe than the way in which he was dealt with by the decision appealed against, and (b) in which it could have been dealt with by the person who made that decision.”

Schedule 6 to the 1996 Act makes provision for the composition of police appeals tribunals. Different provision is made for senior officers and those who are not senior officers as defined by the Act. Senior officers are chief constables, deputy and assistant chief constables, and (in some forces) those in the rank of commander and above. The effect of Paragraph 2 of that Schedule is that the chairman must be someone who satisfies the judicial appointment eligibility condition on a five-year basis, one member shall be a member of the police authority for the appellant’s force, one shall be a serving or recently retired chief officer of police from another force and the last a retired police officer of appropriate rank. In Mr Salter’s case, that is the rank of Inspector or below.

[3]The Police Appeals Tribunal Rules 1999 governed the procedure to be followed by such tribunals and included a requirement that the determination of the Tribunal shall be prepared in writing by the chairman and contain reasons.

[4]The regulations which governed the disciplinary proceedings in this case were The Police (Conduct) Regulations 2004 [“the 2004 Regulations”]. Schedule 1 to the 2004 Regulations contains the Code of Conduct which by Paragraph 1 provides:

“Honesty and Integrity 1. It is of paramount importance that the public has faith in the honesty and integrity of police officers. Officers should therefore be open and truthful in their dealings; avoid being improperly beholden to any person or institution; and discharge their duties with integrity.”

Regulation 4 enables a police officer to be suspended pending the resolution of a disciplinary complaint. Regulation 19 provides that the hearing of a disciplinary allegation concerning an officer (who is not a senior officer) must be heard by three police officers, including (in the case of most police forces) an assistant chief constable. Regulation 35 provides:

“(1) Subject to section 84 (1) of the 1996 Act, the persons conducting the hearing in the case of an officer other than a senior officer may- (a) record a finding that the conduct of the officer concerned failed to meet the appropriate standard but take no further action; or (b) impose any of the sanctions in paragraph (2). (2) Those sanctions are- (a) dismissal from the force; (b) requirement to resign from the force as an alternative to dismissal taking effect either forthwith or on such date as may be specified in the decision; (c) reduction in rank; (d) fine; (e) in the case of a special constable only, suspension from all or from operational duties only for a period of up to three months; (f) reprimand; (g) caution. (3) On receipt of the report of a tribunal under regulation 27(8), the appropriate authority shall decide whether to dismiss the case or- (a) to record a finding that the conduct of the senior officer concerned failed to meet the appropriate standard but to take no further action; or (b) to record such a finding and impose a sanction.”

The ‘appropriate authority’ for these purposes is the Chief Constable of Dorset (see regulation 3(1)(a) of the 2004 Regulations).

[5]In the event that an officer is dissatisfied with the conclusion of a disciplinary panel, he may request a review by the Chief Constable pursuant to Regulation 40. Regulation 41 requires there to be a meeting with the officer in question. Regulation 42 governs the finding of the review:

“(1) The officer concerned shall be informed of the finding of the reviewing officer in writing within three days of completion of the review. (2) The reviewing officer may confirm or overturn the decision of the hearing or he may impose a different sanction which is specified in regulation 35(2) but he may not impose a sanction greater than that imposed at the hearing. (3) The decision of the reviewing officer shall take effect by way of substitution for the decision of the hearing and as from the date of the hearing. (4) Where as a result of the decision of the reviewing officer an officer who is a member of a police force is dismissed, required to resign or reduced in rank he shall be notified in writing of his right of appeal to a police appeals tribunal. (5) …”

[6]The overall result of the statutory scheme is to provide a three tier disciplinary scheme. An allegation of misconduct is brought in the first instance before a panel of three police officers presided over by an assistant chief constable, all from the force of the officer subject to the disciplinary action. There is then an entitlement to a review by the Chief Constable of the force. The third layer is the appeal to a police appeals tribunal.

The Misconduct and Disciplinary Process

[7]In the early hours of Sunday 26 October 2008 PC Ian Morton was killed in a road traffic accident. No other vehicle was involved. Mr Salter was appointed as the Deputy Senior Investigating Officer under Inspector Wilcox. PC Mesher was appointed as family liaison officer. It soon became apparent that PC Morton had a long-term partner but was also involved with a member of another force with whom he had spent the night before his death. His partner was unaware of the relationship. Two mobile telephones were recovered from the crashed vehicle. It became known to Mr Salter that one of those telephones contained stored text messages which evidenced the relationship. On 27 October Mr Salter met PC Mesher. He instructed him to go to the vehicle recovery centre, find the telephone and destroy it. The death was the subject of a coroner’s investigation. PC Mesher was not prepared to destroy evidence and raised the matter with senior colleagues. Other officers attended the recovery centre and seized the two telephones that had been in the car at the time of the crash. The matter was reported to the Professional Standards Department of the Dorset Police. Mr Salter was arrested and questioned under caution. He admitted using the words ‘destroy the phone’ to PC Mesher. He said that he was thinking out loud. His intention was to protect PC Morton’s family from discovering the other relationship. He was aware that the Coroner would require all the evidence to be produced. He said that he had been in touch with the officer with whom PC Morton had spent the night before his death and that he had spoken to her before meeting PC Mesher.

[8]The Misconduct Hearing took place on 27 August 2009. Mr Salter admitted an allegation in these terms:

“ALLEGATION 1 That your conduct on 27th October 2008 did not meet the appropriate standard as set out in Regulation 3(1), Schedule 1, Paragraph 1 of the Police (Conduct) Regulations 2004 in that as a police sergeant with Dorset Police you did not behave with honesty or integrity in relation to the investigation into the death of Detective Constable Ian MORTON. PARTICULARS On 27th October 2008, you were the Deputy Senior Investigating Officer, in relation to the death of Detective Constable MORTON. You instructed the appointed Family Liaison Officer, Constable 1845 Scott MESHER to attend the Ibsley Recovery Centre and to locate and destroy the mobile telephone belonging to the deceased officer, even though you knew it would be required as evidence at the inquest into the officer’s death.”

PARTICULARS

[9]The Misconduct Hearing was presided over by Assistant Chief Constable Glanville together with Superintendents Rogers and Thorp. They heard mitigation on behalf of Mr Salter presented by his counsel and extensive character evidence. There were numerous written testimonials. The essence of the case being advanced by Mr Salter was that the circumstances of his misconduct, whilst undeniably serious, arose out of a sense of misplaced loyalty to a colleague and a sense of concern for that colleague’s family. It brought no benefit for the officer himself. PC Morton was not in fact known to Mr Salter. Mr Salter was then aged 48 years old with a long and unblemished service. Reduction in rank was the proper sanction to apply in these circumstances, rather than dismissal or a requirement to resign. The panel disagreed. After deliberating for two and a half hours it imposed the sanction of a requirement to resign. Its reasons were as follows:

“In our judgement your actions amounted to a very serious breach of integrity. You are an officer with 22 years service with significant experience of road traffic collisions and their investigation. You are also an experienced family liaison officer who is used to dealing with families involved in road traffic collisions. In your role as a sergeant you are expected to set high standards to those under your supervision, particularly with regard to honesty and integrity. The panel accepts that on the balance of probability you made a decision to have the mobile phone belonging to Ian Morton removed and destroyed as you were concerned about the feelings of his family. However, the decision to remove the mobile phone has serious implications in relation to subsequent investigation of the road traffic collision. It is very clear that information that may have been held on the mobile phone could have provided important evidence in relation to the collision and therefore its removal and destruction would have had serious implications in relation to any subsequent judicial proceedings. The panel also consider that your direction to PC Scott Mesher to remove and destroy the mobile phone is an aggravating factor and could have led to another officer compromising their integrity. PC Mesher took the courageous decision to consult another supervisor which prevented this situation from escalating any further. We acknowledge that when presented with the facts you took responsibility for your actions. We also acknowledge that the mitigation presented to the panel highlights the fact that you have been a hard working and competent police officer throughout your service. However, it is our judgement that your behaviour has seriously breached the values of the Force. The public expect the very highest standards of honesty and integrity from police officers. In this case your standard of behaviour has fallen well short and therefore I am requiring you to resign from the Force forthwith.”

[10]The Chief Constable reviewed the decision of the Panel. He conducted an oral hearing on 11 November 2009. Mr Salter was again legally represented. A representative of the Police Federation also spoke on his behalf. Extensive submissions were made by the solicitor, augmented by the representative. On 16 November the Chief Constable issued his written decision on the review. The detail of the case and the arguments advanced were rehearsed. The Chief Constable correctly apprehended that his function was one of review and not concerned with substituting his own decision for that of the Panel. He noted that the material placed before both the Panel and before him contained no apology for what had occurred, nor any convincing sense of remorse. His conclusions are found in the following paragraphs of his decision:

“29. Those holding the Office of Constable, which carries with it not only significant responsibilities but also enormous powers, are expected to have the personal strength of character to make sound judgements under pressure and in the face of ethical dilemmas. The behaviour of police officers when they are not under direct supervision or scrutiny is just as important as when they are. Given my own regular contact with the public and the Independent Police Complaints Commission in relation to matters of police performance and conduct I cannot accept Mr Wilson’s argument that were the public to know the details of this case they would take a view more lenient than that taken by the panel. 30. Mr Salter’s application for this Review argued that the decision to require an officer to resign calls for a “careful and proper analysis of the facts and mitigation in any particular case”

. I judge that this is precisely what happened in this particular case 31. During my Review I have identified no clear errors or inconsistencies in process or determination at the misconduct hearing. Neither was I able to conclude that the sanction imposed by the panel was so plainly excessive that it could be properly characterised as unfair. I conclude that the panel took very careful account of all of the issues in this case before deciding that Mr Salter should be required to resign. In my view the fact that Mr Salter has been allowed the dignity of resignation rather than being dismissed from the service demonstrates how fully the mitigation, his previous good record and the character evidence has been taken into account. Conversely, any lesser sanction, such as a reduction in rank or a financial penalty would, in my view, be wholly inadequate to mark the seriousness of Mr Salter’s misconduct. The misconduct admitted is not an issue solely in relation to rank but also to Mr Salter’s honesty and integrity as a police officer, which as a result of his own actions has been irreparably damaged. 32. Furthermore, I do not believe that Mr Salter could ever again become a good and efficient police officer due to the entire question of an ongoing lack of trust. For example, the nature of Mr Salter’s misconduct would mean that he would be able to undertake only a very limited range of police duties because he simply could not be put forward to the Crown prosecution Service or the courts as a witness of truth. 33. I therefore conclude that the sanction imposed at the Misconduct Hearing on 27 August 2009 i.e., a Requirement to Resign from the police service was both justified and appropriate in the circumstances.”

[11]By notice dated 2 December 2009, Mr Salter appealed to the Tribunal. His grounds contended that a requirement to resign was excessive because it failed to give sufficient weight to the mitigation and the unusual features of the case. In summary the following points were made: i) There was no personal gain; ii) His motivation was to avoid further distress and grief to PC Morton’s family; iii) He failed to give sufficient consideration to the possibility that use of the mobile telephone might have been a line of investigation in seeking the cause of the crash; iv) The telephone was in fact of no evidential value in the Coroner’s inquiry, and even if it had shown that PC Morton was using it at the time of the crash the verdict would have been the same; v) PC Mesher’s view was that Mr Salter was not dishonest but misguided. Other officers attributed the same motive to him. vi) Mr Salter readily accepted shortly afterwards that his conduct was inappropriate, that is ‘a bad call’; vii) The circumstances were difficult because the deceased was a serving police officer and the Senior Investigating Officer was not available. The point being made here was that Mr Salter was unable to discuss with the SIO the possibility that the telephone contained incriminating messages; viii) Mr Salter was a hard-working and competent police officer whose actions in a handful of hours should be set against 22 years service; ix) Nothing similar would happen again; x) The difficulties in finding alternative work for Mr Salter could not justify a more serious sanction being imposed if otherwise, reduction in rank was appropriate; xi) The public would not expect an officer, on the facts of this case, to lose his job; xii) On the question of remorse, Mr Salter had prepared an apology which he intended to make at the hearing before the Panel. He had written it out and shown it to his counsel. It was overlooked. A copy was provided.

[12]A Tribunal was appointed. Its chairman was Dorian Lovell-Pank QC. The other members were Della Cannings, a retired Chief Constable, Graeme Mann a retired police constable and Ann Stribley, a member of the Police Authority. The Tribunal met in London in the absence of the parties on 28 June 2010. It allowed the appeal and directed that Mr Salter be reduced in rank to police constable and be reinstated in that rank. Its written decision is dated 9 July 2010. The Chief Constable had responded to the appeal notice through Assistant Chief Constable Glanville. He emphasised that even if the motive for acting as he did was not for personal benefit or gain, it was nonetheless dishonest. Mr Salter attempted to get a more junior officer to commit a serious wrong, in circumstances when Mr Salter must have known that the mobile telephone might be important in a fatal road traffic inquiry. If PC Mesher had acted upon Mr Salter’s instruction both might have faced a dilemma of whether to perjure themselves at the inquest. His conclusion was:

“Whilst giving full credit for his character evidence and mitigating circumstances, the Appellant’s behaviour seriously breached the values of the force and the sanction is both proportionate and well justified.”

[13]The Tribunal approached its decision in accordance with the guidance given by Collins J in R v Police Appeals Tribunal ex parte the Chief Constable of Avon and Somerset

[2004] EWHC 220 (Admin)

and in particular this extract from paragraph [28]:

“… it seems to me that when Parliament confers a right of appeal to a specialist tribunal such as the Police Appeals Tribunal, it is inherent in that that the powers of the tribunal are to consider all matters put before it, in the form of fresh evidence or fresh submissions or whatever, and to reach its own conclusions upon the matter. Of course, it will have regard to the decision of the body from whom the appeal is brought. It will have regard to the views of the Chief Constable, and will no doubt be slow to differ from those views unless it is persuaded that they were, in its view, wrong, but if it is so persuaded then it has an obligation to apply what it believes to be the correct result.”

The Tribunal went on to explain its decision. It recognised the sentiments expressed by the Panel and the Chief Constable concerning this type of behaviour as being well founded. It noted that in behaving as he did, Mr Salter put his junior colleague in an intolerable position. It added that Mr Salter was unfit to continue in a supervisory role. The Tribunal set out its reasons for disagreeing with the panel and Chief Constable:

“6.3 Both the panel and the Chief Constable express the view that the public expects the highest standards of honesty and integrity from police officers. We agree. But one needs to take this tenet a step further forward. If the public was fully informed as to the circumstances of this particular case, would it expect or wish the officer to lose his job after 22 years or have him taught a lesson instead? The Chief Constable rejects the argument that the public would take a more lenient view than the panel. We are not so sure. 6.4 In the experience of this tribunal, the character evidence, taken together with the appellant's unblemished career in the force, is exceptional. We consider the letter of 19th June 2009 from Mr M. C. Johnson, the Coroner for the Western District of Dorset, to be a particularly powerful piece of mitigation. The letter speaks for itself, but of note are his comments that ‘ … I believe that he is a man of integrity and great loyalty, both to his colleagues and the Dorset Force in general … I also suspect that if this had occurred 20 years ago, the whole incident would be viewed in a different light and he might even add (sic) been congratulated for his actions. I perfectly understand that what he did was wrong and that nowadays there is a need for total transparency… I would only say that in my view [the appellant] might be described as ‘an old fashioned policeman’ and I used (sic )the phrase not intending any criticism.’ 6.5 The behaviour of this experienced and mature police officer has to be taken very much in its own context. It is clear that the appellant acted not for any personal gain but to avoid further grief to DC Morton’s family. That cannot be a defence nor an excuse, but it is a reason for his thought process which cannot be simply brushed aside. Whilst keeping firmly in mind the question of honesty and integrity, we ask ourselves whether the appellant would be biased in favour of others in the future and whether he can be trusted in the future. 6.6 This takes us directly to the appellant's future deployment within the evidential chain if he were to remain in the force. The Chief Constable addresses the point at paragraph 32 of his decision … 6.7 Complaint is made in the grounds of appeal that this issue was not raised by the Chief Constable at the review and that there had been no opportunity to respond. Whilst true, there is little scope for complaint. The case of R v Edwards and the position of disclosure of officers’ disciplinary records is never far from the surface. The appellant's finding would always need to be disclosed in (criminal) proceedings. Our experience, however, is that it is the facts and circumstances behind a finding which are of importance and not merely their “title”

. The fact that the appellant admitted the charge would count in his favour. We feel, therefore, that the Chief Constable is overly pessimistic in his assessment of the appellant's likely, future deployment. 6.8 The appellant acted out of concern for others. Laudable as that may seem, he crossed the line into unprofessional conduct which involved a junior officer who, commendably, had the good sense not to carry out the instruction. One asks, rhetorically, if the appellant had really thought through what he was intending should happen, why risk asking another officer to carry out the task and not do it himself? 6.9 This was a one-off aberration in an otherwise unblemished career. An officer who has striven for and achieved a measure of excellence should be entitled to feel that he can meaningfully call upon his record in times of trouble. This is the situation here. 6.10 We consider that the public might well think it somewhat harsh and lacking in compassion for an officer in the appellant's position and situation to lose his job, with all that entails, for what he did. 6.11 We are more than alive-as the panel and Chief Constable will have been-to the fact that a sanction affects not only the officer concerned but the Dorset Police and the police service generally and the trust and confidence in which they expect to be held by the public. Dismissal is reserved for the most serious cases. A requirement to resign is appropriate in cases which are not the most serious but where the conduct of the officer has shown him or her to be unfit to remain a police officer. We are not persuaded that this is the case here. We are clear, however, that the appellant should be forthwith relieved of his supervisory role, something he himself has contended for before the panel, the Chief Constable and in his grounds to this panel.”

[14]The Tribunal set out in an ‘epilogue’ to its decision a number of additional points. It indicated that the decision was not arrived at lightly or in haste and that at first blush it had no quarrel with the earlier decision making. It found that the case was unusual and not at all easy and, having looked at what it described as competing interests, concluded in a finely balanced case that reduction in rank was the appropriate sanction. It emphasised that in coming to that conclusion there was no criticism of the Panel or Chief Constable. It considered the difference between them as one of "emphasis rather than substance". The decision should not be seen as an endorsement of what Mr Salter did.

The Grounds of Review

[15]The Chief Constable advances four grounds in support of his claim for judicial review: i) Irrationality because a) the act of dishonesty was premeditated and calculated; b) the dishonesty was in an operational context; c) the act involved attempting to suborn a subordinate officer; d) the act involved the attempt to destroy evidence; e) the act involved an attempt to destroy evidence in judicial proceedings, namely the coronial proceedings; f) Mr Salter was the sergeant with direct supervision of the officer he attempted to suborn. ii) Incorrect approach to sanction because a) the starting point in the context of operational dishonesty should have been dismissal; and b) only a very small residual category of such cases would not be visited with dismissal or requirement to resign;. iii) Excessive weight was given to the mitigation. iv) Insufficient weight was attached to the views of the Chief Constable.

[16]At the heart of the submissions advanced by Mr Beggs QC on behalf of the Chief Constable was the contention that the approach to disciplinary proceedings involving allegations of dishonesty against solicitors developed by the Courts was, by analogy, applicable to police disciplinary proceedings involving dishonesty in an operational context. He observed that there is a paucity of authority dealing with police disciplinary proceedings. Mr Ford, who appeared on behalf of Mr Salter, did not dispute that the requirements of integrity which govern the practice of the law apply with equal force to police officers. He submits, however, that the almost invariable context in which solicitors’ dishonesty has arisen in the decided cases involves personal gain, which is absent in this case. In those circumstances, he submits that the decision of the Tribunal cannot properly be impugned in these proceedings and that, as the Courts have consistently recognised when dealing with disciplinary proceedings of many sorts, it would be inappropriate to interfere with a decision on sanction arrived at by a specialist body.

The Authorities Relating to Solicitors

[17]In Bolton v. Law Society

[1994] 1 WLR 512

Sir Thomas Bingham MR set out what has become the classic statement of the correct approach to sanction in the context of solicitors disciplinary proceedings: “It is required of lawyers practising in this country that they should discharge their professional duties with integrity, probity and complete trustworthiness. That requirement applies as much to barristers as it does to solicitors. If I make no further reference to barristers it is because this appeal concerns a solicitor, and where a client’s moneys have been misappropriated the complaint is inevitably made against a solicitor, since solicitors receive and handle clients’ moneys and barristers do not. Any solicitor who is shown to have discharged his professional duties with anything less than complete integrity, probity and trustworthiness must expect severe sanctions to be imposed upon him by the Solicitors Disciplinary Tribunal. Lapses from the required high standard may, of course, take different forms and be of varying degrees. The most serious involves proven dishonesty, whether or not leading to criminal proceedings and criminal penalties. In such cases the tribunal has almost invariably, no matter how strong the mitigation advanced for the solicitor, ordered that he be struck off the Rolls of Solicitors. Only infrequently, particularly in recent years, has it been willing to order the restoration to the Roll of a solicitor against whom serious dishonesty had been established, even after a passage of years, and even where the solicitor had made every effort to re-establish himself and redeem his reputation. If a solicitor is not shown to have acted dishonestly, but is shown to have fallen below the required standards of integrity, probity and trustworthiness, his lapse is less serious but it remains very serious indeed in a member of a profession whose reputation depends upon trust. A striking off order will not necessarily follow in such a case, but it may well. The decision whether to strike off or to suspend will often involve a fine and difficult exercise of judgment, to be made by the tribunal as an informed and expert body on all the facts of the case. Only in a very unusual and venial case of this kind would the tribunal be likely to regard as appropriate any order less severe than one of suspension. It is important that there should be a full understanding of the reasons why the tribunal makes orders which might otherwise seem harsh. There is, in some of these orders, a punitive element: a penalty may be visited on a solicitor who has fallen below the standards required of his profession in order to punish him for what he has done and to deter any other solicitor tempted to behave in the same way. Those are traditional objects of punishment. But often the order is not punitive in intention. Particularly is this so where a criminal penalty has been imposed and satisfied. The solicitor has paid his debt to society. There is no need, and it would be unjust, to punish him again. In most cases the order of the tribunal will be primarily directed to one of other or both of two other purposes. One is to be sure that the offender does not have the opportunity to repeat the offence. This purpose is achieved for a limited period by an order of suspension; plainly it is hoped that experience of suspension will make the offender meticulous in his future compliance with the required standards. The purpose is achieved for a longer period, and quite possibly indefinitely, by an order of striking off. The second purpose is the most fundamental of all: to maintain the reputation of the solicitors’ profession as one in which every member, of whatever standing, may be trusted to the ends of the earth. To maintain its reputation and sustain public confidence in the integrity of the profession it is often necessary that those guilty of serious lapses are not only expelled but denied re-admission. If a member of the public sells his house, very often his largest asses, and entrusts the proceeds to his solicitor, pending re-investment in another house, he is ordinarily entitled to expect that the solicitor will be a person whose trustworthiness is not, and never has been, seriously in question. Otherwise, the whole profession, and the public as a whole, is injured. A profession’s most valuable asset is its collective reputation and the confidence which that inspires. Because orders made by the tribunal are not primarily punitive, it follows that considerations which would ordinarily weigh in mitigation of punishment have less effect on the exercise of this jurisdiction than on the ordinary run of sentences imposed in criminal cases. It often happens that a solicitor appearing before the tribunal can adduce a wealth of glowing tributes from his professional brethren. He can often show that for him and his family the consequences of striking off or suspension would be little short of tragic. Often he will say, convincingly, that he has learned his lesson and will not offend again. On applying for restoration after striking off, all these points may be made, and the former solicitor may also be able to point to real efforts made to re-establish himself and redeem his reputation. All these matters are relevant and should be considered. But none of them touches the essential issue, which is the need to maintain among members of the public a well-founded confidence that any solicitor whom they instruct will be a person of unquestionable integrity, probity and trustworthiness. Thus it can never be an objection to an order of suspension in an appropriate case that the solicitor may be unable to re-establish his practice when the period of suspension is past. If that proves, or appears likely, to be so the consequence for the individual and his family may be deeply unfortunate and unintended. But it does not make suspension the wrong order if it is otherwise right. The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price” (page 518A to 519E)

[18]In summarising the approach in this way, the Master of the Rolls was reflecting a settled line of authority found, in particular, in a number of unreported decisions of his predecessor, Lord Donaldson. In Re a Solicitor No. 5 of 1990 Lord Donaldson had said:

“Both branches of the profession are totally dependent for their acceptance by the public upon having an unassailable reputation for honesty, not as individuals but by virtue of being members of the profession.”

[19]The approach summarised by the Master of the Rolls in Bolton was reviewed by the Court of Appeal in Salisbury v. Law Society [2009] I WLR 1286 and made subject to two qualifications which are set out in paragraph [30] of the judgement of Jackson LJ:

“From this review of authority I conclude that the statements of principle set out by Sir Thomas Bingham MR in Bolton v Law Society [1994] I WLR 512 remain good law, subject to this qualification. In applying the Bolton principles of the Solicitors Disciplinary Tribunal must also take into account the rights of the solicitors under articles 6 and 8 of the Convention. It is now an overstatement to say that “a very strong case” is required before the court will interfere with the sentence imposed by the Solicitors Disciplinary Tribunal. The correct analysis is that the Solicitors Disciplinary Tribunal comprises an expert and informed tribunal, which is particularly well placed in any case to assess what measures are required to deal with defaulting solicitors and to protect the public interest. Absent any error of law, the High Court must pay considerable respect to the sentencing decisions of the tribunal. Nevertheless if the High Court, despite paying such respect, is satisfied that the sentencing decision was clearly inappropriate, then the court will interfere.

(I) ”

The reference to the respect which the High Court should accord to the decision of the Solicitors Disciplinary Tribunal arose in a statutory environment which affords a solicitor a right of appeal to the High Court against the findings of such a tribunal. Proceedings in the Administrative Court seeking to challenge the decision of a Police Appeals Tribunal do not arise by way of appeal, but by way of a claim for judicial review. In those circumstances, a claimant in judicial review proceedings must establish a public law error before the decision of that Tribunal could be quashed.

[20]Salsbury was a case in which the Divisional Court had allowed the appeal and substituted a sanction of suspension for that of striking off. At paragraph 37 Jackson LJ said this:

“In my view the Divisional Court fell into error in holding that there were exceptional facts which brought this case to the very bottom of the scale of dishonesty. The court also erred in concluding that this case fell into the very small residual category where striking off was not appropriate.”

[21]Mr Beggs cited the decision of Underhill J in R (Bolt) v. Chief Constable of Merseyside Police

[2007] EWHC 2607 (Admin)

in further support of the approach consistent with that applied to members of the legal profession found to have behaved dishonestly in the course of exercising their professional calling. A police officer had been subject to disciplinary proceedings in which the Panel decided he should be dismissed. The proved allegations included that he failed properly to investigate a robbery for fear of exposing wrongdoing on his part and on the part of colleagues. He applied for a Chief Constable’s review which was carried out by the Chief Constable of another force, for reasons which are immaterial. On review the external Chief Constable reduced the sanction. However, the Chief Constable of Merseyside declined to interfere with the determination of the Panel and rejected the external Chief Constable’s view. The judicial review proceedings sought to quash that refusal. However, it is the learned judge’s comments on the approach to sanction in cases of operational dishonesty upon which Mr Beggs relies:

“What [the external Chief Constable] held was that the sanction of dismissal was not "appropriate to the conduct proved" and was "an abnormal punishment to the extent that I find it unfair". I am bound to say that I find that conclusion very surprising. The panel's findings-which [he] expressly accepted-were, in short, that the claimant had knowingly participated in a deliberate omission to investigate a serious reported crime because he feared that doing so would reveal other misconduct on his part. As part of that cover-up he lied about his whereabouts to the colleagues who he asked to carry out a PNC check. He had maintained his lies in the subsequent investigation and at the hearing. That conduct was-rightly and indeed inevitably-characterised by the panel as dishonest. [The external Chief Constable] himself referred to the claimant's conduct as reprehensible in the extreme" ... While I would certainly accept that not every untruth or half-truth told by a police officer, however trivial and whatever the circumstances, would necessarily constitute misconduct justifying dismissal, the misconduct found by the panel as regards the events of the 18th September, and the claimant's subsequent lies about it constituted deliberate dishonesty in an operational context. As para.1 of the code rightly emphasises that integrity is a fundamental requirement for a police officer. I should, frankly, be dismayed to think that such conduct was not of the kind which was normally thought to merit dismissal-as indeed the three officers who comprised the original panel, and the defendant, believed that it did.”

[22]Having regard to the reasoning which informs the approach to sanction in the context of the legal profession, in my judgment, the correct approach to the question of sanction on a finding of serious impropriety by a police officer in the course of his duty is reflected in the principles articulated in Bolton and Salsbury. The reasons which underpin the strict approach applied to solicitors and barristers apply with equal force to police officers. Honesty and integrity in the conduct of police officers in any investigation are fundamental to the proper workings of the criminal justice system. They are no less important for the purposes of other investigations carried out by police forces, including those on behalf of coroners. The public should be able unquestioningly to accept the honesty and integrity of a police officer. The damage done by a lack of integrity in connection with the investigation of an alleged offence may be enormous. The guilty may go free. The innocent may be convicted. Large sums of public money may be wasted. Public confidence in the integrity of the criminal justice system may be undermined. The conduct of a few may have a corrosive effect upon the reputation of the police service in general.

[23]The Code of Conduct set out in the Schedule to the 2004 Regulations, for good reason, describes public faith in the honesty and integrity of police officers as being of ‘paramount importance’.

[24]It follows that when considering questions of sanction, the Panel, the Chief Constable on review and the Tribunal should have regard to the following factors: i) The imposition of sanctions following a finding of misconduct by a police officer may have three elements: a) There may be a punitive element designed to punish the police officer concerned and to deter others, particularly if he has not been prosecuted and convicted. But the imposition of sanctions is not primarily punitive, and may not be punitive at all. b) The sanctions imposed may be designed to ensure that the police officer does not have the opportunity to repeat his misconduct. c) However, the most important purpose of these sanctions, particularly in cases involving dishonesty or impropriety in connection with an investigation, is to maintain public confidence in the police service and to maintain its collective reputation. ii) One consequence of the fact that sanctions imposed in the disciplinary process are not primarily punitive is that personal mitigation is likely to have a limited impact on the outcome. iii) Cases of proven dishonesty and lack of integrity in an operational environment, of which the destruction, suppression or fabrication of evidence, or attempts to do so, would be clear examples, are the most serious breaches of the Code of Conduct. In such cases, the sanction of dismissal or requirement to resign would, to use the language of Sir Thomas Bingham in Bolton, "almost invariably" be appropriate but there exists "a very small residual category" where a lesser sanction may be available, as Jackson LJ put it in Salsbury.

[25]At each level in the disciplinary process, the decision maker or decision making body is expert in nature. It knows and understands how the police service works. It knows and understands the importance of maintaining integrity amongst police officers. It knows and understands the impact that serious misconduct can have on the force concerned and the police service in general. Parliament has provided that the Tribunal is the appellate body for these purposes. There is no further appeal to the High Court. The Tribunal is subject to the supervisory jurisdiction of this court. I have already observed that the approach of this court in judicial review is different from the approach adopted when sitting in an appellate capacity from the Solicitors Disciplinary Tribunal. Absent another error of law on the part of the Police Appeals Tribunal its decision on sanction could be interfered with only on classic Wednesbury grounds, in short that on the material before it no reasonable Tribunal could have reached the conclusion that it did.

The Argument

[26]Mr Beggs submits that the facts of this case are such that there could be only one outcome. Mr Salter’s continued presence in the Dorset Constabulary would be incompatible with the maintenance of public confidence in the police service. The limit of the discretion available to the decision makers was to determine whether he should be dismissed or should be required to resign. The second of those courses was the more benign. In imposing that sanction the Panel (supported by the Chief Constable) gave the circumstances of the misconduct and Mr Salter’s personal mitigation full weight. He submits that the Tribunal should have applied a two stage reasoning process. First they should have recognised that dismissal or requirement to resign was the default sanction in a case such as this, and then gone on to consider separately whether the material before them placed it within the ‘very small residual category’ of cases which admitted of a lesser sanction. He submits that the Tribunal accorded much more weight to Mr Salter’s personal mitigation than was permissible as a matter of law. Finally he submits that the Tribunal accorded too little weight to the views of the Panel and the Chief Constable.

[27]Mr Ford submits that on the material available to the Tribunal, it was open to it to conclude that a sanction requiring Mr Salter to leave the police force was not required. The misconduct arose in very unusual circumstances with none of what might be regarded as the malign intent that usually attaches to such action. The personal mitigation was strong. He submits that there is no formal two-stage test. The Tribunal appreciated that the course is took was exceptional. It was for the Tribunal to accord what weight it thought appropriate to the mitigation, acting as it was as an expert body. Finally, the Tribunal was well aware of all the considerations which the Chief Constable thought important, and weighed them, but overall came to a different conclusion. That, they were entitled to do. Discussion The test of exceptionality and the impact of personal mitigation

Discussion

[28]I take these two arguments first because together they form the basis for the submission that the Tribunal applied the wrong legal test when considering the question of sanction. They are not hermetically sealed one from the other. Mr Beggs’ written argument proposed a formal two-stage approach to sanction, namely: i) The starting point of dismissal or requirement to resign will normally follow upon proven operational dishonesty (see Underhill J in Bolt at [28]); ii) The next consideration is whether the case falls within the "very small residual category" where dismissal may not be necessary (see Jackson LJ in Salsbury at [37]. In his oral argument Mr Beggs was inclined to accept that a tribunal was engaged in an overall evaluative exercise, but which nonetheless required the Tribunal to recognise the usual consequences of such misconduct and the exceptionality of taking a different course.

[29]Although in Bolt Underhill J was not considering the police disciplinary structure by comparison with that applicable to solicitors, and indeed none of the authorities appear to have been cited to him, his conclusion that conduct of the sort encountered in that case should "normally be thought to merit dismissal" sits comfortably with the conclusions of Sir Thomas Bingham MR in Bolton. In noting that in cases of proven dishonesty the Solicitors Disciplinary Tribunal had almost invariably struck off the solicitor concerned, the Master of the Rolls was recognising that there may be exceptional cases where that sanction could be avoided. The Court of Appeal in Salsbury was doing no more than applying that dictum to the facts of that case and was not, in my view, seeking to erect a different test in using the language of a ‘very small residual category’ of cases.

[30]Rather than concluding that there is a two stage test, the correct approach for a decision maker is to recognise that a sanction which results in the officer concerned leaving the force would be the almost inevitable outcome in cases involving operational dishonestly. That terminology itself recognises that there may be exceptions. In concluding that the case is exceptional, the decision maker must identify the features of the circumstances of the misconduct which support a different conclusion, recognising that the number of such cases would be very small. The decision maker would take account of personal mitigation, but must recognise its limited impact in this area. It would not overlook any article 8 arguments in play.

[31]In its decision the Tribunal recognised that the public expects the highest standards of integrity from police officers. It then formulated a test in these terms:

“If the public was fully informed as to the circumstances of this particular case, would it expect or wish the officer to lose his job after 22 years or have him taught a lesson instead?”

In answering that question in its written decision quoted in paragraph [13] above, the Tribunal concluded that the character evidence, coupled with Mr Salter’s unblemished career, was exceptional. It placed considerable weight on a reference from the Coroner. The Tribunal accepted that Mr Salter acted to save others from upset and not for personal gain. It concluded that dismissal was reserved for the most serious cases and a requirement to resign was appropriate in cases ‘which are not the most serious but where the conduct of the police officer has shown him or her to be unfit to remain a police officer.’

[32]The language of the Tribunal suggests that it did not approach its decision making on the basis that a finding of operational dishonesty normally called for dismissal or a requirement to resign from the force. Furthermore, it is clear from the way in which it discussed the question of mitigation that it gave very great weight to personal mitigation in circumstances where it was not appropriate to do so, for the reasons given by Sir Thomas Bingham in Bolton. The strength of the personal mitigation available to Mr Salter was regarded by the Tribunal as of great significance. That is clear from paragraph 6.4 of its written decision, where it described his unblemished career and the character evidence as ‘exceptional’; and also from paragraph 6.9 where it indicated that he ‘should be entitled to feel that he can meaningfully call upon his record in times of trouble’. It follows that in my judgment the Tribunal misdirected itself in law in both these respects.

Insufficient Deference to the Chief Constable on Review

[33]In the passage from Chief Constable of Avon and Somerset quoted in paragraph [13] above, Collins J indicated (unexceptionally) that an appellate body, even an expert appellate body, will pay particular regard to the views of other experts who have considered the case earlier. The settled law in cases where the High Court acts as an appellate body from a specialist tribunal is set out in the judgment of Jackson LJ in Salsbury quoted in paragraph [19] above. The reason why the court is slow to interfere with the decision of an expert tribunal is that the court does not share the expertise. It is not ‘deference’ but a proper recognition of the need for caution before disagreeing with someone making a judgment on a matter for which he is especially well qualified, when the court is not. However, the situation of the Tribunal is different from the High Court hearing an appeal from a specialist tribunal, because the Tribunal itself shares the expertise.

[34]The decision of the Tribunal referred in many places to the views of the Chief Constable and the panel. In my judgment it bore them firmly in mind. I do not consider that the Tribunal’s approach to the decision of the Panel, or to the reasons of the Chief Constable for upholding the Panel’s decision on review, or to the material placed before it for the purposes of the appeal, demonstrates any error of law.

[35]There is one aspect of the Chief Constable’s views, with which the Tribunal disagreed, on which counsel focussed particular attention. The Chief Constable adverted to the fact that it would be difficult to deploy Mr Salter because the finding of misconduct would make it nigh on impossible for him to be involved in anything that might result in criminal proceedings. The Tribunal did not disagree with the broad proposition but, from its own experience, concluded that the difficulty was not as great as the Chief Constable apparently thought. The difficulty identified by the Chief Constable is a very real one. A disciplinary finding involving tampering with evidence is something that would probably have to be disclosed in criminal proceedings in which Mr Salter was a witness. Whether that disclosure would impact upon any proceedings and whether it would be placed before the jury would depend upon many circumstances. It is that, no doubt, which the Tribunal had in mind, when it observed that the facts and circumstances of the misconduct would be important. But it is entirely reasonable, as it seems to me, to approach the problem on the basis that neither the police force in question nor the Crown Prosecution Service would be willing lightly to take the risk that a prosecution might be complicated by having the issue arise. That is why the question of alternative suitable duties could be important.

[36]Neither the Chief Constable in his review nor the Tribunal in its decision explored the detail of what work might be available which could take Mr Salter outside the scope of having to give evidence in proceedings. The Chief Constable appeared to have in mind work in which Mr Salter would never find himself in the evidential chain. Both approached the question as relevant to the issue of sanction. In Chief Constable of Avon and Somerset the point was touched upon and clearly regarded as relevant to the question of sanction. In Bolt Underhill J observed that the point had considerable force (see paragraph [29]). In my judgment, it is a factor in cases involving dishonesty which must be considered for the purposes of sanction. It engages a facet of public confidence in the police service. The need for what may appear to be harsh sanctions in cases of this nature arises from the requirement to maintain public confidence in the police service. That is why almost invariably an officer found to have behaved dishonestly in the conduct of an investigation will be dismissed or required to resign. Whilst, exceptionally, an officer may be retained, public confidence is likely to be adversely affected if such an officer were disqualified by his own misconduct from performing a substantial part of his ordinary duties and, if it were the case, be given a non-job or provided with a role which otherwise might be available to an officer injured on duty or otherwise disabled in some way.

Irrationality

[37]Mr Beggs advances a powerful argument that the features of Mr Salter’s misconduct when viewed through the correct legal lens, and in particular if mitigation were given the correct weight, could deliver only one lawful outcome, namely dismissal or requirement to resign.

[38]There is no doubt that the Tribunal’s approach to the question of personal mitigation resulted in its attaching more weight to it than was justified. Having accorded more weight to that mitigation than the proper legal approach justified, the Tribunal concluded in its epilogue that the appeal before it was ‘a finely balanced case’. It follows as a result of irresistible logic that it would have dismissed the appeal had it followed the correct legal approach, both as to mitigation and the starting point being dismissal or requirement to resign for operational dishonesty. When taking account of those factors this was not a finely balanced case. The misconduct was very serious, for the reasons given by the Panel and Chief Constable. Those reasons were accepted by the Tribunal. It is true that the mitigation advanced by Mr Salter concerning the misconduct itself shows that the destruction of evidence can arise in circumstances that are worse. But his personal mitigation could not, in my judgment, tip the scales against a sanction that resulted in his leaving the Police Force.

[39]I conclude therefore, that on the material before it and applying the correct legal approach, the Tribunal was bound to dismiss the appeal.

Conclusion

[40]The decision of the Tribunal must be quashed. Pursuant to section 31(5) and (5A) of the Senior Courts Act 1981, I substitute a decision that the appeal to the Tribunal is dismissed.

Cited in 20 later judgments

and 11 more of the most senior