“Honesty and Integrity Police officers are honest, act with integrity and do not compromise or abuse their position.” “Authority, Respect and Courtesy Police officers act with self-control and tolerance, treating members of the public and colleagues with respect and courtesy. Police officers do not abuse their powers or authority and respect the rights of all individuals.” “Use of Force Police officers only use force to the extent that it is necessary, proportionate and reasonable in all the circumstances.” “Orders and Instructions Police officers only give and carry out lawful orders and instructions. Police officers abide by police regulations, force policies and lawful orders.” “Duties and Responsibilities Police officers are diligent in the exercise of their duties and responsibilities.” “Discreditable Conduct Police officers behave in a manner which does not discredit the police service or undermine public confidence in it, whether on or off duty. Police officers report any action taken against them for a criminal offence, any conditions imposed on them by a court or the receipt of any penalty notice.”
“The conduct, if proved, amounts to gross misconduct for the following reasons: a) You misused your police powers to enable Mr Allen to enter the house in order to remove Ms Bowen’s personal possessions; b) In order to do so, you misled Ms Bowen about the law and sought to intimidate her into permitting you to do so; c) You used excessive and disproportionate force against Ms Bowen without justification and misused your police powers in arresting her so that you could recover the key to the property; d) The conduct overall does serious damage to the reputation of Nottinghamshire Police.”
“The first part of this allegation is duplicitous, dealt with already in allegations 1 and 2 and adds nothing to those allegations. To the extent that this allegation asserts that the conduct the subject of allegations 1 & 2 was “done unfairly to induce Ms Bowen to allow you inside”, it is denied.” iv) In respect of allegations 5 and 6, he denied misconduct or gross misconduct. He accepted that he had asked Ms Bowen to unlock the door, but denied his conduct was in breach of any of the Standards, stating he was concerned about his own and his colleague’s safety being locked in the property. He denied that Ms Bowen ever said she had locked the door to prevent Mr Allen gaining access, and so said he did not disregard any such assertion. v) He accepted the comment alleged in allegation 7 was made, but denied misconduct. vi) He denied allegations 8, 9 and 10. vii) In respect of allegation 11, the regulation 22 response said: “This allegation, yet again, adds nothing to the allegations already made. They are duplicitous and on one view parasitic upon Allegations 1-9 being found proved. It purely goes to the motivation of the Accused Officer in acting as he did rather than being a freestanding breach of the Standards of Professional Behaviour. It is covered by Allegation 1. If in fact the Accused Officer did have that motivation as alleged by the AA, it is this fact that amounts to a deliberate misrepresentation of his powers and renders the entry unlawful in the first instance. If however in fact the Accused Officer initially mistakenly but genuinely believed he could enter to search for property, and thereafter entered for that reason and/or allied to a genuine belief that suspects were on the premises, his entry would be lawful. For the avoidance of doubt, PS Flint had attended due to reports of criminal offences and his conduct was in furtherance of that investigation. For the sake of completeness, this allegation is denied.”
“2 … Sgt Flint repeatedly talked over Ms Bowen, asked her none of the obvious questions, closing down every attempt by her at dialogue and ignoring her requests for information. He gave instructions and did not listen. …” “3 … He was rude to and dismissive of a person who he obviously regarded as an interfering distraction, when actually she was an eye-witness to the offence he was supposed to be investigating and her statement of the legal position was more accurate than his own. …”
“1. You instructed Ms. Bowen to let you into the property to search for the parcel which Mr Allen had said was taken from his car and threatened to use force to enter if she did not do so. In that respect you misrepresented your police powers without justification. This is found to be proved. This did happen. Sgt Flint justified his entry by reference to a search for stolen property; “let me tell you what I can do. There’s parcels been stolen out of his car. I suspect they are in this house. Therefore I think …”
“Due to the Officer’s continued arrogance and disdain for all interruptions Ms Bowen was never allowed to articulate what was undoubtedly her desire that Mr Allen be kept out of the property. The Officer’s defence to this is that she never made such an assertion so he could not have disregarded it. Technically, this is correct, so we do not find this allegation proven. The reason why we do not find it though hardly bathes the Officer in glory.”
“Culpability is increased here because the Officer was holding a position of responsibility and indeed his actions did influence those of a junior officer.”
“A feature of this case has been a significant deviation from the law. We think this arose from a position of ignorance and arrogance as opposed to [being] planned and dishonest.”
“We have gone on to choose the outcome which most appropriately fulfils these purposes, given the seriousness of the conduct proved. We have started with the least serious option. We have found numerous allegations and breaches of six of the Standards of Professional Behaviour, several of them repeatedly. Whilst the timeframe of this incident was quite tight, there was a range of conduct constituting several different elements. This was not one bad decision but a series. As a matter of grossmisconduct, which by definition is a breach so serious thatdismissal would be justified, caselaw very strongly points to anoutcome of dismissal. To do otherwise really needs to bejustified by something exceptional. The call out, the duties of the Officer and the circumstances on the day in question were not extraordinary in any way. The Officer knew the location and should have been more than able to deal with the situation. He managed instead to show ignorance of the law, arrogance towards the public and a high-handed and intolerant attitude. He set the tone, he set the pace. There should have been no particular pressures on him. Yet only a few minutes later he has unlawfully entered the home of a socially vulnerable woman, has arrested her and applied unlawful force and allowed her rights to be violated against her specific wishes. Bearing in mind the purposes of the proceedings and in particular the need to maintain public confidence we consider that the only proper outcome is dismissal without notice.”
“36 … The findings that emerged from the way in which the regulation 21 [notice] was drafted led to the following inconsistent findings. 37 The Panel made an express finding that the Appellant made a mistake and deliberately did not misrepresent his police powers when he instructed Ms Bowen to let him into the property. They made an express finding that there was no improper abuse of position but an unintentional one borne out of ignorance and mistake. All of these findings are the direct opposite of: a. Misrepresentation to unfairly induce – which requires a deliberate act b. Facilitating an aim – namely letting the bailiff into the premises – which again requires a deliberate act 38 If this was an improper motive case, then there would have been deliberate misrepresentation in the instruction given to open the door and not a mistaken one. If this was an impropermotive case the Panel would have found the standard of honestyand integrity breached in relation to Allegations 1 and 4. But itdidn’t. The Panel only found a breach of the standard of duties and responsibilities in respect of Allegation 1 and only found a breach of the standards of Orders and Instructions, Duties and Responsibilities and Discreditable Conduct in respect of Allegation 4. It[’]s relevant to note that the Panel specifically addressed its mind to the gravamen of Allegation 4 and whether the entry was lawful, irrespective of why he said he was going and said this: Again, we think that the misrepresentation here arises from ignorance and mistake as opposed to dishonesty. So by this point, twice in relation to the Allegations 1 and 4, thePanel has expressly ruled out any dishonest conduct. 39 It is difficult to see therefore how a finding in relation to Allegation 11 can reasonably stand in the light of those findings. … 40 Having expressly ruled out an abuse of position in relation toAllegation 4 and arguably Allegation 1 as well, it is unreasonableto conclude that that conduct contained within these allegationswas for an improper motive. Allegation 11 includes 1, 2,3 and 4, 5, 6, 7, 8 and 9 for which at no point did the Panel find an abuse of position. They only found a lack of diligence, lack of authority, respect and courtesy, use of force and discreditable conduct. It was unreasonable therefore for a finding of lack of integrity to be made, for an allegation that relies on other allegations for which no breach of honesty and integrity were made and only an unintentional abuse of position was found. 41 The Panel’s findings were unclear and open tomisinterpretation and for that reason they were unreasonable.”
“45. Ground 1(b) is partially made out. There was some unfairness. 46. There were aspects of PC Elliott’s evidence that should have been addressed by the Panel. In particular, the Panel when assessing outcome referred to the seniority of the Appellant and his position of trust and how it influenced PC Elliot. There was discrepancy in the evidence that was given in relation to this arising, however, from what was said at the hearing and what was said during the Misconduct meeting. PC Elliott’s Regulation 36 decision was before … the Panel and mentioned as an ancillary matter. Apart from noting that it was helpful, the Panel made no mention of the factual findings. They should have done so however, given the discrepancy in evidence and the importance of it.”
“50. The Panel stated: As a matter of gross misconduct, which by definition is a breach so serious that dismissal would be justified, caselaw very strongly points to an outcome of dismissal. To do otherwise really needs to be justified by something exceptional. 51. The Appellant, both Counsel and this Tribunal are left in the unenviable position of having to surmise or at worse guess what caselaw the Panel could have been referring to. The Appellant and the public are entitled to know the legal basis upon which a decision that leads to dismissal, is based on. A finding of gross misconduct does not lead to a presumption of dismissal that can only be overcome by something exceptional. This was not a case where a finding of operational dishonesty was made. In that regard we cannot accept the submission made by Counsel for the Respondent that the comment made by the Panel that the Appellant “set the tone, set the pace, yet only a few minutes later unlawfully entered the home of a socially vulnerable woman…” was consistent with him not being operational. It would be grossly unfair to the Appellant to read into a Panel[’]s reasoning something as significant as that.”
“19. … 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.” “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 Administrative Court should guard against the misuse of its jurisdiction by Chief Constables seeking to mount what are effectively “undue leniency” appeals to decisions of misconduct panels or PATs.”
“It is obvious that deliberate dishonesty on the part of a police officer would, almost invariably, amount to gross misconduct. The standard of honesty expected by the public of its police service is high and must be jealously guarded by those responsible for its maintenance. Equally the public is entitled to expect that police officers will maintain the required standards of integrity but as Sir Thomas Bingham MR set out in Bolton v Law Society[1994] 1 WLR 512 at 518 D, “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 on trust. A striking off order will not necessarily follow in such a case but it may well. The decision whether to strike off or 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.”
“[95] As a matter of common parlance and as a matter of law, integrity is a broader concept than honesty… [97] In professional codes of conduct, the term "integrity" is a useful shorthand to express the higher standards which society expects from professional persons and which the professions expect from their own members. See the judgment of Sir Brian Leveson P in Williams at [130]. The underlying rationale is that the professions have a privileged and trusted role in society. In return they are required to live up to their own professional standards. … [100] Integrity connotes adherence to the ethical standards of one's own profession. That involves more than mere honesty. To take one example, a solicitor conducting negotiations or a barrister making submissions to a judge or arbitrator will take particular care not to mislead. Such a professional person is expected to be even more scrupulous about accuracy than a member of the general public in daily discourse. … [102] Obviously, neither courts nor professional tribunals must set unrealistically high standards, as was observed during argument. The duty of integrity does not require professional people to be paragons of virtue. In every instance, professional integrity is linked to the manner in which that particular profession professes to serve the public. …”
“The imposition of a test which asks whether the decision of the misconduct panel was unreasonable has led some to take the view that that imported a test of Wednesbury unreasonableness, a test appropriate to that applied by this court in questions of public law. That, in my view, is erroneous. As many courts have concluded before this court, the test is not one of Wednesbury unreasonableness. Firstly, the test must be seen in its correct statutory context, namely that of a specialist appeal tribunal considering the decision of a misconduct panel. A Wednesbury unreasonableness test is that test which is conventionally adopted where courts review decisions of the executive or expert panels; it is in such cases necessary to impose a high standard before intervention, so that the courts do not merely substitute inexpert views for those on whom primarily the responsibility of making a decision lies. Secondly, the appeal panel is itself an expert panel, as this case fully demonstrates. … 7. It follows therefore, to my mind, that the test imposed by the rules is not the Wednesbury test but is something less. That does not mean that the appeal tribunal is entitled to substitute its own view for that of the misconduct hearing panel, unless and until it has already reached the view, for example, that the finding was unreasonable. Nor, I should emphasise, is the Police Appeals Tribunal entitled, unless it has already found that the previous decision was unreasonable, to substitute its own approach. It is commonplace to observe that different and opposing conclusions can each be reasonable. The different views as to approach and as to the weight to be given to facts may all of them be reasonable, and different views may be taken as to the relevance of different sets of facts, all of which may be reasonable. The Police Appeals Tribunal is only allowed and permitted to substitute its own views once it has concluded either that the approach was unreasonable, or that the conclusions of fact were unreasonable. None of what I say is revolutionary or new.”
“In my view, the appellants repeatedly came close to, and often crossed, the clear boundary as to what can and cannot be argued on an appeal of this sort. It is unnecessary to set out in detail the proper approach of an appellate court to appeals that raise issues about the first instance judge’s findings of fact. The Supreme Court has regularly explained that, unless a critical finding of fact has no basis in the evidence, or is based on a demonstrable misunderstanding of relevant evidence, or a failure to consider such evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonable be explained or justified: see Henderson v Foxworth Investments Limited[2014] UKSC 41 , Lord Reid at paragraph 67; Volcalfe Ltd v Cia Sud Americana de Vapores SA[2018] UKSC 61 , Lord Sumption. This applies equally to findings of primary fact and any inferences to be drawn from them: see Staechelin v ASLBDD Holdings & Others[2019] All ER 429 .”
“Firstly, the observation that Sgt Flint has not been dealt with in the same way as PC Elliott. We note that the role of the two officers was different, their rank was different, their role profiles within the police were different, their actions were different, and their attitudes were different. Further, these proceedings against Sgt Flint are as a result of an IOPC recommendation. This is a matter of public law. This Panel cannot sit as an appellate body of their decisions. We can only deal with what is presented to us. It is not our role in these circumstances to go behind the decisions that brought that case here. Secondly, we note the findings of the regulation 36 misconduct meeting that PC Elliott had, as presented to us as additional evidence, and it has been helpful to see some of what was said during that process. Nevertheless, we would like to make it clear that we in no way consider ourselves bound by the factual findings of that process.”
“Through his own geographical knowledge PC Elliott was aware that the males may have returned back to the address using another route. Upon arrival at the address he was also aware that they could have got back into he property without being seen from the front of the address. He saw that Sgt Flint wanted to gain access to the address. Although there was no briefing or conversation from PS Flint or further information provided from another party to suggest that the males were in the address, PSFlint’s actions added to his rationale that the offenders were inthe address. PC Elliott stated that he did not hear PS Flint saying that hewanted to enter to search for property and his belief was that themotivation to enter was to search for the subjects…. PC Elliott had already formed the suspicion that the subjects mayhave returned to the address. To arrive at the address and see asupervising officer adamant to go into the premises confirmedfor him that they were in there. The only action PC Elliot could have taken to further his belief was to speak to PS Flint and confirm clarity around why the subjects were believed to be in the address; however PS Flint’s demeanour at the time did not lend itself to allow for those questions to be asked combined with a collapsing time frame being instigated by PS Flint. It is a viable assumption for PC Elliott to make that a more seniorofficer with greater knowledge of the law, who has been at thescene the longest, would have all the information available. Ifthe officer is attempting to get into the address then PC Elliottupon arrival, having already formed the opinion that they mayhave returned, would draw the conclusion that Sgt Flint wantedto get into the address because he was more informed than PCElliott and thus aided the belief the subjects to be in the address. Therefore regardless of Sgt Flint’s intentions and whether his entry was lawful, at the point of entry PC Elliott believed the subjects were in the address and he had a lawful power to enter the premises under section 17 PACE to search for the two outstanding subjects.”
“once the gateway is negotiated, the PAT can deal with the matter on a clean slate basis and can make an order dealing with the appellant in any way in which he could have been dealt with by the panel whose decision is appealed.”
“4.2 As Mr Justice Popplewell explained, there are three stages to determining the appropriate sanction: ▪ assess the seriousness of the misconduct ▪ keep in mind the purpose of imposing sanctions ▪ choose the sanction which most appropriately fulfils that purpose for the seriousness of the conduct in question. ▪ assess the seriousness of the misconduct ▪ keep in mind the purpose of imposing sanctions ▪ choose the sanction which most appropriately fulfils that purpose for the seriousness of the conduct in question. 4.3 Assessing the seriousness of the misconduct is the first of these three stages. 4.4 Assess the seriousness of the proven conduct by reference to: ▪ the officer’s culpability for the misconduct ▪ the harm caused by the misconduct ▪the existence of any aggravating factors ▪ the existence of any mitigating factors. 4.5 When considering outcome, first assess the seriousness of the misconduct, taking account of any aggravating or mitigating factors and the officer’s record of service. The most important purpose of imposing disciplinary sanctions is to maintain public confidence in and the reputation of the policing profession as a whole. This dual objective must take precedence over the specific impact that the sanction has on the individual whose misconduct is being sanctioned.”
“16. In my judgment this panel fell into error in the way it approached the sanction. The only way a court or anyone else reading the decision can be satisfied that the correct structured approach had been adopted is if either the panel identifies the structured approach that it is required to adopt expressly in the body of its decision and then explains how it has arrived at the relevant decision applying that approach. If that ideal approach is not adopted but it is apparent from the language used by the tribunal that in substance such an approach in fact has been adopted then the court will not intervene. Obviously however the court will not guess or assume that a correct approach has been adopted if that is not apparent on the face of the decision. 17. As is apparent from two of the authorities referred to earlier in this judgment - Salter and Green - one of the primary purposes of a sanction in a professional misconduct context is preserving public confidence. It was for that reason that Popplewell J identified as the second stage in Fugler the need to keep in mind the purpose for which sanctions are imposed. Whilst it may not be apposite to describe this as a "stage" it is undoubtedly what a panel must keep in mind when deciding the most appropriate sanction. The guidance summarised earlier in this judgment states in clear terms the purpose of the misconduct regime - see paragraph 3.2 - and the need to keep those purposes in mind when arriving at the appropriate sanction - see paragraphs 4.2 and 7.2. In its reasons the panel in this case does not anywhere state in terms that such has been its approach nor does it explain how applying those principles had led it to the decision it has made nor use language that demonstrates that that is how it arrived at its decision. 18. Although the panel states in the second and third line of its sanction decision that it has applied the principles in the guidance that falls far short of what is required in my judgment. It does not set out expressly or even refer expressly to the correct structured approach identified in Fugler summarised in the guidance even though the parties formerly cited Fugler to the panel. Even if the language used by the panel could be regarded as sufficient in the circumstances that of itself is not enough unless the reasoning that follows shows that effect has been given to the structured approach by reference to the purpose of sanctions identified in the guidance. The panel has identified certain aggravating factors and certain mitigating factors before then concluding that a final written warning was appropriate. By adopting that approach the panel fell into error because it did not attempt to assess how serious it concluded the misconduct to be. Seriousness is not a binary question. The focus of Chapter 4 of the guidance is on assessing how serious the misconduct is, not whether or not it was serious. Hence the reference for example in paragraph 4.15 to conduct that should be considered 'especially serious' . The panel should have but has failed to assess the level of seriousness by reference to culpability, harm, aggravating factors and mitigating factors in the structured manner required by the guidance. Having reached a conclusion as to the level of seriousness displayed in circumstances of this case exhibited by the misconduct found to have occurred, the panel ought then to have considered sanction specifically by reference to the need to maintain public confidence in and the reputation of the police service, to uphold high standards, to deter misconduct and to protect the public. There is not a hint within the language used by the panel that this has been its approach.”