“29. In assessing seriousness the most important factors will be (1) culpability for the misconduct in question and (2) the harm caused by the misconduct. Such harm is not measured wholly, or even primarily, by financial loss caused to any individual or entity. A factor of the greatest importance is the impact of the misconduct upon the standing and reputation of the profession as a whole. Moreover the seriousness of the harm may lie in the risk of harm to which the misconduct gives rise, whether or not as things turn out the risk eventuates. The assessment of seriousness will be informed by (3) aggravating features (e.g. previous disciplinary matters) and (4) mitigating factors (e.g. admission at an early stage or making good any loss)… 30. At the second stage, the tribunal must have in mind that by far the most important purpose of imposing disciplinary sanctions is addressed to other members of the profession, the reputation of the profession as a whole, and the general public who use the services of the profession, rather than the particular solicitors whose misconduct is being sanctioned…”
“16. …The only way a court or anyone else reading the decision can be satisfied that the correct structured approach has 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.”
“22. …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…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.”
“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….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…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 part of the price.”
“66. …the importance of maintaining public confidence in and respect for the police service is constant, regardless of the nature of the gross misconduct under consideration. What may vary will be the extent to which the particular gross misconduct threatens the preservation of such confidence and respect. The more it does so, the less weight can be given to personal mitigation. Gross misconduct involving dishonesty or lack of integrity will by its very nature be a serious threat: save perhaps in wholly exceptional circumstances…Gross misconduct involving a lack of integrity will often also be a serious threat. But other forms of gross misconduct may also pose a serious threat, and breach of any Standards may be capable of causing great harm to the public’s confidence in and respect for the police. 67. This does not mean, of course, that personal mitigation is to be ignored…On the contrary, it must be taken into account…But where the gross misconduct threatens the misconduct of public confidence and respect in the police – as gross misconduct often will – the weight which can be given to personal mitigation will be less that would be the case if there were no such threat, and if the disciplinary body were a court imposing a punishment. Whether the circumstances are such that the sanction of dismissal is necessary will be a fact-specific decision: where the facts show dishonesty, case law establishes that dismissal will almost always be necessary, and dismissal will often be necessary where the misconduct involves a lack of integrity; where the facts show that one of the other Standards has been breached, the appropriate outcome will depend on an assessment of all the circumstances, with proper emphasis being given to the strong public interest in maintenance of respect and confidence in the police and consequentially less weight being given to personal mitigation.”
“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… 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 [PAT] 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.”
“53. It is common ground that the Panel was required to follow the three-stage structured approach laid down in the Guidance…That said, as Mr Butterfield QC submits, this did not mean the Panel was required to exhaustively cite each consideration set out in the Guidance, or to ruminate upon each part, in order to demonstrate adherence to it. Equally, however, the mere fact that the Panel expressly referred to the structured approach laid down in the Guidance would not be, of itself, enough to demonstrate that it had applied that approach. The issue is one of substance rather than form. The Panel was not involved in a tick-box exercise but was required to apply the structured approach laid down as a way of ensuring that its Outcome Decision properly took account of all relevant matters and afforded the necessary primacy to public confidence. The question is whether the Outcome Decision, as explained in this case, demonstrates this.”
“4.16 It is entirely unacceptable for police officers who are responsible for enforcing the law to break the law themselves. 4.17 The level of culpability depends on the seriousness of the offence. The sentence imposed by the criminal court is not necessarily a reliable guide to seriousness in misconduct proceedings, which are primarily directed towards maintaining public confidence in the profession. A relatively minor criminal offence may be of the utmost gravity in the professional context. 4.18 The conviction or caution may relate to on or off-duty conduct. While the person(s) conducting the proceedings cannot question the conviction or sentence imposed, they can consider the circumstances of the offending and form their own view of the gravity of the case. 4.19 Offences of dishonesty, sexual offences (including possession of child pornography) and violent crime are particularly serious and likely to terminate an officer’s career. Such offending involves such a fundamental breach of the public’s trust in police officers and inevitably brings the profession into disrepute. 4.20 Any criminal conviction will be serious, however, and likely to have an adverse impact on public confidence in policing. An officer’s conviction or caution may be disclosed to the prosecution and defence during the course of a criminal trial, with the potential for undermining the investigation and the prosecution.”
“Effect on the police service and/or public confidence Harm will likely undermine public confidence in policing…Where an officer commits an act which would harm public confidence if the circumstances were known to the public, take this into account. Always take seriously misconduct which undermines discipline and good order within the police service, even if it does not result in harm to individual victims. 4.58 Assess the impact of the officer’s conduct having regard to these factors and the victim’s particular characteristics. 4.59 Where no actual harm has resulted, consider the risks attached to the officer’s behaviour, including the likelihood of harm occurring and the gravity of harm that could have resulted. 4.60 How such behaviour would be or has been perceived by the public will be relevant, whether or not the behaviour was known about at the time. 4.61 If applicable, consider the scale and depth of local or national concern about the behaviour in question. A case being reported in local or national media, however, does not necessarily mean that there is a significant level of local or national concern. Distinguish objective evidence of harm to the reputation of the police service from subjective media commentary. 4.62 Whether a matter is of local or national concern will be a matter for the person(s) conducting the proceedings based on their experience and the circumstances of the case. ….. 4.65 Where gross misconduct has been found, however, and the behaviour caused or could have caused serious harm to individuals, the community and/or public confidence in the police service, dismissal is likely to follow. A factor of the greatest importance is the impact of the misconduct on the standing and reputation of the profession as a whole.”
“This is a serious case, as not only did you hold the victim by the neck, which resulted in her hitting her head; you verbally abused the victim and displayed controlling behaviour”
“…downtrodden, belittled and humiliated. I finally decided to leave as I could no longer tolerate her behaviour towards me…the events that day stunned me and made me scared of her, of what she was capable of doing to the people she’s supposed to love the most…She made me feel weak, humiliated, hurt, scared, embarrassed and ashamed to be a woman, a mother and a police woman…As police officers we deal with domestic abuse on a daily basis…I never in a million years expected to be the victim of domestic abuse myself…Only now do I genuinely understand that this can happen to anyone, from any walk of life, in any kind of relationship, in any kind of profession…Since that day I have been on an emotional rollercoaster that at times has taken me to some bleak places.”
“On27 May 2018 whilst off duty, you assaulted your partner. It is alleged that these circumstances amount to Gross Misconduct. In all respects the Appropriate Authority therefore consider your actions to be a breach of the following standard of Professional Behaviour: Discreditable Conduct. This behaviour is likely to bring discredit on the police service as a whole because public confidence depends on police officers demonstrating the highest standards of personal and professional behaviour. This type of offending undermines public confidence in the police service.”
“…suffers with an Emotionally Unstable Personality Disorder (EUPD)…This condition appears to arise as a consequence of childhood abuse… A primary symptom of EUPD involves emotional dysregulation i.e. rapid changes in mood and bouts of anger over which the individual has little control. At times of high levels of emotional arousal a person suffering with EUPD may disconnect from the world (i.e. dissociate – evident to the eye like a brief trance like state) during which the individual is often amnesic for that period of time.”
“20. Accordingly, a Panel’s reasoning, at first instance or appeal level must demonstrate expressly or in substance that it has: 1. assessed how serious it found the misconduct to be by reference to the categories outlined in the Guidance (Culpability, Harm and Aggravating and Mitigating Factors), rather than simply having found it be ‘serious’; and 2. consider 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’. 21. This approach requires the Panel to have regard to the purpose of the misconduct proceedings when deciding on disciplinary action, including the maintenance of public confidence in the profession: a factor of particular importance in policing (see R (Green) v Police Complaints Authority[2004] 1 WLR 725 per Lord Carswell at [78]). 22. Also relevant to this point is the case law dealing with the weight to be given to personal mitigation in such misconduct cases. In short, the case-law confirms that while personal mitigation may be relevant, the protection of the public and the interests of the profession will be given greater weight because of the nature and purpose of disciplinary proceedings, particular where serious misconduct has been proven…[Salter, Williams and Bolton were then cited].” (Emphasis in original.)
“54. …In this case, a key factor in this assessment of seriousness is the extent to which culpability is affected by the mental health experienced by the Appellant. The medical evidence before us makes it more likely than not, in our assessment that the psychiatric condition the Appellant was experiencing at the time of the misconduct had a real and apparent impact on the extent to which she can be considered responsible or blameworthy for the assault. We have reread all the surrounding medical evidence from 2018. In particular we note Dr Hindler’s assessment in his July 2018 Report…that ‘the Appellant’s psychiatric disorder caused mood changes and anger over which the patient had little control’. He noted…’her disassociation i.e. a trance-like state and amnesia’. Further it was said that on the night in question the Appellant was in a generalised traumatised state which was heightened by the triggering of ‘emotional arousal’ described by Dr Hindler when a glass broke just before the assault. 55. The doctor states that factors which could have affected the Appellant’s ability to appreciate the circumstances are her experience of childhood abuse. He calls her reaction understandable and notes that any over-reaction has a context of impulsive anger. This signifies that her mental state accounts for her behaviour… 56. Looking at this medical opinion, we find that a reasonable decision would have included the finding that the mental health symptoms contributed to the actions which led to the conviction. The level of contribution is significant to the extent that the officer is far less culpable for her violence [sic] behaviour that she would be regarded otherwise. 57. This determination upon the ‘central issue’ impacts upon harm as well as upon culpability. We have followed the COP Guidance at par [4.57]. Whilst we would be content to adopt AC Rolfe’s determination on harm to the victim, when considering the effect on the police service and/or public confidence the reduced culpability discussed above is entirely relevant to the impact of the misconduct on the standing and reputation of the profession as a whole and thus upon harm to the community and/or public confidence in the police service…Lastly, although we are not clear whether the comment ‘As an experienced police officer, DC Gutty could be reasonably expected to foresee the risk of harm arising from her actions’ pertained to culpability or harm, we reject it and find the medical evidence discussed above provides a clear basis for our finding that she would not reasonably be expected to have foresee [sic] the risk of harm to her victim the community or the profession.”
“66. Our first question is whether a final written warning (FWW) would fail to deter misconduct, fail to protect the public or risk high policing standards being downgraded? 67. Having taken into account all the factors which went to our views on seriousness, we have reached the view that the 3-fold purpose of misconduct proceedings would be met by the Appellant being given a FWW. This is because the public would, in our view, understand the factors that we have contemplated, including: the original trauma experienced by the Appellant which was reignited by workplace demands (the training around taking child witness statements), that she had taken steps to try to help herself (a long time before the incident happened), but found the mental health disorders she experienced overwhelming and that the symptoms resulting from her psychiatric condition were directly related to the misconduct in question. 68. It is important for the Respondent to be able to demonstrate that it is maintaining high standards of policing whilst deterring misconduct – and to this end – it is important for it to assure itself of the Appellant’s current mental health condition and how her treatment has progressed in the last 2-3 years. It may be useful for a risk assessment of the Appellant’s current mental health to be undertaken prior to deciding what duties and conditions the officer should return to work under. This would also help inform further steps such as recuperative duties, necessary training or a phased return to work. Such steps are more likely to enable the Respondent to protected the public in any event by ensuring its officers are fit for work and well supported mentally as well as in regards to physical health. 69. Such steps may overlap with consideration being given to whether any reasonable steps under the Equality Act are needed. We have to say we are somewhat disappointed that occupational health failed to address the question of disability with sufficient rigour in 2018.”
“71. Given our findings above on unreasonableness and sanction, we need not reach any decision on the question of the Equality Act (or any of the other grounds relied upon by the Appellant) but we urge those conducting SCHs and Misconduct Hearings to maintain a full awareness of their duties relating to disability discrimination particularly where issues of mental health arise. ….. 74. We also draw attention to the importance of embedding Home Office Guidance about how Misconduct Panels (and SCHs) are to engage with disability discrimination under theEquality Act 2010 . We have appended the relevant section of the 2020 edition. We also note that [para 2.9 of the CoP Guidance was referred to]…It must be that all who sit on and appear before SCHs or Misconduct Panels are aware of discrimination law and especially positive obligation that exist relating to people with disabilities. If SCH or Misconduct Panels do not heed the provisions of the Equality Act in cases where any form of discrimination is a potential issue, this risks a wasteful incurrence of resources for all involved…and also causes real injustice to individuals who may risk losing their livelihood unlawfully.”