Metropolitan Police Commissioner, R (on the application of) v Police Misconduct Panel [2025] EWHC 1462 (Admin)

[2025] EWHC 1462 (Admin)Case No AC-2024-LON-001443
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Date Tuesday, 17 th June 2025
Between
FORDHAM JClaimant- - - - - - - - - - - - - - - - - - - - -Between:THE KING (METROPOLITAN POLICE COMMISSIONER)POLICE MISCONDUCT PANELDefendantPC MARK NEALEInterested Party
SITTING IN LONDON
Cecily White (instructed by Legal Services, Metropolitan Police) for ClaimantAmina Graham (instructed by Reynolds Dawson) for Interested Party for The Defendant did not appear and was not represented
Hearing Hearing date: 7.5.25Draft judgment: 3.6.25
Approved Judgment
FORDHAM JThis Judgment was handed down remotely at 10am on 17.6.25 by circulation to the parties or their representatives by email and by release to the National Archives.

FORDHAM J:

[1]This case is about the exercise by a police misconduct panel of a power to dismiss a misconduct case, brought by an appropriate authority against a police officer, by finding no case to answer (“NCA”). It is common ground that a panel has such a power. The proceedings in the panel are governed by the Police (Conduct) Regulations 2020. The Statutory Guidance on Professional Standards, Performance and Integrity in Policing, published by the Home Secretary on 5 February 2020 in accordance with ss.87 and 87A of the Police Act 1996, says this at §11.120: The chair and panel may decide during the course of the hearing (that is to say before proceedings are finished) that there is no case to answer in respect of misconduct or gross misconduct. The Regulations are silent on this point. There is precedent in case law for a decision to be made. In making this decision, the chair with the panel will need to have regard to its role in law to consider the evidence and hear the case at least in part presented at the hearing…[2]After hearing submissions on the morning of Day 2 of what was listed as a three-day hearing, the Panel in this case decided that there was NCA. It dismissed the three allegations of misconduct set out in a reg.30 statutory notice. Those allegations were being made against the Interested Party (the “IP”), by the Claimant (the “AA”) as “appropriate authority” (reg.2(1)). The AA seeks judicial review of the Decision. As an adjudicative body, and consistently with the principle of neutrality (see Special Tribunal v Estate Police Association [2024] UKPC 13 [2024] 1 WLR 4252 at §56), the Panel has not participated in these judicial review proceedings. Judicial review is resisted by the IP. The agreed issues are about whether the Decision was lawful and reasonable.

Reporting Restrictions

[3]The Panel’s Decision was reached at a public hearing and published (“Outcome Rationale Gross Misconduct Hearing PC Mark Neale”). These judicial review proceedings were heard in public. There has, throughout, been one necessary derogation from open justice. The Decision was anonymised so that the individual (“PCA”) whose disclosure had led to the proceedings against the IP is not identifiable. PCA has a right to lifelong anonymity pursuant to s.1 of the Sexual Offences (Amendment) Act 1992. That is also reflected in HHJ Jarman KC’s published order (30 July 2024) for anonymity, reporting restrictions and restricted access to the court records. Everything in this judgment is reportable.

Open Justice and Skeleton Arguments

[4]Two members of the press attended the High Court hearing. Each requested the skeleton arguments. Experiencing a delay, they rightly raised this with the Court. I made an unopposed direction for immediate provision of the skeletons. Counsel flagged up one paragraph in one skeleton argument, whose reporting could have fallen foul of the reporting restrictions. I have been invited by the two members of the press – Mr Ayling and Ms Osborne-Crowley – to record the position in law. They are supported by Ms White, Ms Graham and their instructing solicitors. A helpful recent discussion is in Moss v Upper Tribunal [2024] EWCA Civ 1414 [2024] 4 WLR 99 at §§27-29.[5]Skeleton arguments relied on at a public hearing should ordinarily be made available to the press, promptly on request at the hearing, in paper or electronically. This promotes open justice, as to both public scrutiny and intelligibility (see Dring v Cape Intermediate Holdings Ltd [2019] UKSC 38 [2020] AC 629 at §§42-43). It promotes contemporaneous reporting and public confidence. Often, it is entirely appropriate for skeleton arguments also to be available to members of the public who wish to understand the hearing. Any person wanting a skeleton argument should identify how this will advance open justice, a threshold often easily cleared by reference to understanding the case. The question is then whether there are countervailing factors which justify withholding the skeleton or part of it. It follows from all of this that advocates should come to a public hearing, prepared promptly to provide their skeleton argument, having thought ahead about any countervailing factor, and bringing any contingently-redacted version.

Proceedings Before the Panel

[6]The Panel was conducting a “misconduct hearing” (reg.2(1)), to “determine whether the conduct of the officer amounts to misconduct or gross misconduct or neither and whether disciplinary action should be imposed”. A referral had taken place, the AA having determined that there was “a case to answer” (reg.23(1)(a)). That determination was a ‘prosecutorial’ evaluation on the available material. A reg.30 statutory notice from the AA gave the requisite “written notice of … the conduct that is the subject matter of the case and how that conduct is alleged to amount to misconduct or gross misconduct, as the case may be” (reg.30(1)(a)(ii)). A reg.31 statutory notice from the IP gave the requisite “written notice of(i) the allegations they dispute and their account of the relevant events, and(ii) any arguments on points of law they wish to be considered by the person or persons conducting the misconduct proceedings” (reg.31(2)(c)). The IP also provided the documents on which he intended to rely (reg.31(3)). The parties agreed a hearing bundle (198 pages). It is common ground that everything in the agreed bundle was already “evidence in the case”, at the time of the Decision.[7]Under reg.2(1), “misconduct” means “a breach of the Standards of Professional Behaviour that is so serious as to justify disciplinary action”; and “gross misconduct” means a breach of the Standards of Professional Behaviour that is so serious as to justify dismissal”. The relevant Standard of Professional Behaviour in this case was “Discreditable Conduct” (Sch 2 §1). It requires that “police officers behave in a manner which does not discredit the police service or undermine public confidence in it, whether on or off duty”. As the Statutory Guidance explains at §§4.26 and 4.27: 4.26 There are three over-arching purposes for police disciplinary proceedings: [i] To maintain public confidence in, and the reputation of, the police service, [ii] To uphold high standards in policing and deter misconduct, [iii] To protect the public. 4.27 Undertaking disciplinary proceedings against individual officers seeks to achieve these goals by establishing the facts underlying the allegation and coming to a fair and just conclusion, with regard to all the evidence. The three overarching purposes (at §4.26) are also set out in §2.3 of Statutory Outcomes Guidance issued by the College of Policing pursuant to s.87 of the 1996 Act. The Outcomes Guidance emphasises the importance of public confidence in the police (§2.4(c)) and that a panel is centrally concerned with reputation or standing (of the police) rather than with punishment (§2.7). Reg.41(15)(16) provide: (15) The [Panel] must review the facts of the case and decide whether the conduct of the officer concerned amounts … to misconduct, gross misconduct or neither. (16) The [Panel] must not find that the conduct of the officer concerned amounts to misconduct or gross misconduct unless … they are satisfied on the balance of probabilities that this is the case …

Conventional Completion

[8]To understand the principled approach to a ‘half-time’ NCA decision, it helps to start with what happens when a hearing proceeds to its conventional end-point. Conventional completion means the panel will have received all the documentary evidence in the case; and will have heard all the oral evidence in the case. As appropriate, witnesses will have adopted their witness statements; they will have answered questions; and there will be closing speeches. Then, the panel will evaluate all the evidence. It will conduct its deliberations. It will arrive at its preferred view of the evidence, applying the burden and standard of proof. It will make relevant findings. It will make its determination. Conventional completion links to an idea of keeping “an open mind” until all of the evidence has been heard. Here is what the Court of Appeal has said of crown court juries, making clear that it applies equally to “any Tribunal deciding facts” (R v Edwards [2021] EWCA Crim 1870 at §21): juries, like any Tribunal deciding facts, are entitled to consider and discuss the case as it goes along, so long as they do so when all members of the jury or Tribunal are present and so long as they keep an open mind until they have heard all of the evidence, the speeches and the directions.

Galbraith in the Crown Court

[9]The idea of dismissal of a case on the basis of NCA is familiar in crown court trials. It is an evaluative determination. It considers the evidence so far adduced, by the prosecution as the party bearing the overall burden of proof. Whether there is NCA is a function of the judge. There will be an identification in law of the elements which the prosecution must prove. What applies is the two-limbed test from R v Galbraith [1981] 1 WLR 1039, cited to the Panel in the present case. Lord Lane said this (Galbraith at 1042B-D): How then should the judge approach a submission of “no case”? [Limb 1] If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. [Limb 2] The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence,(a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case.(b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury… There will of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the judge.[10]As Ms White points out, Galbraith (at 1041C-D) endorsed this from R v Barker (1975) 65 Cr App R 287 at 288: even if the judge has taken the view that the evidence could not support a conviction because of the inconsistencies, he should nevertheless have left the matter to the jury. It cannot be too clearly stated that the judge’s obligation to stop the case is an obligation which is concerned primarily with those cases where the necessary minimum evidence to establish the facts of the crime has not been called. It is not the judge’s job to weigh the evidence, decide who is telling the truth, and to stop the case merely because he thinks the witness is lying. To do that is to usurp the function of the jury…[11]As Ms Graham points out, there is helpful commentary in Blackstone’s Criminal Practice (2024). This commentary was cited to the Panel. I was also shown the equivalent passages in the 2025 edition. On Galbraith Limb 1, Blackstone says (§D16.55): Such cases may arise, for example, where an essential prosecution witness has failed to come up to proof, or where there is no direct evidence as to an element of the offence and the inferences which the prosecution ask the court to draw from the circumstantial evidence are inferences which, in the judge’s view, no reasonable jury could properly draw. However, judges should take care to avoid taking into account defence evidence which is yet to be called and potential defences which have not yet been made out in assessing this limb of the test. On Galbraith Limb 2, Blackstone says (§D16.56 and 16.57): D16.56 … [T]he second limb of the Galbraith test does leave a residual role for the court as assessor of the reliability of the evidence. The court is empowered by the second limb of the Galbraith test to consider whether the prosecution’s evidence is too inherently weak or vague for any sensible person to rely on it. Thus, if the witness undermines his or her own testimony by conceding uncertainty about vital points, or if what the witness says is manifestly contrary to reason, the court is entitled to hold that no reasonable jury properly directed could rely on the witness’s evidence, and therefore (in the absence of any other evidence) there is no case to answer. D16.57 It is often central to the application of the test in Galbraith to undertake an assessment of the reliability of the evidence adduced by the prosecution. This was illustrated in Shippey [1988] Crim LR 767, where the trial judge (Turner J) found there was evidence to support the prosecution’s assertions, but that the evidence as a whole contained ‘really significant inherent inconsistencies’. On a literal view of Galbraith and Barker, the case should therefore have gone to the jury for them to weigh the inconsistencies, but Turner J took a more robust view. He said that ‘taking the prosecution case at its highest’ did not mean ‘taking out the plums and leaving the duff behind’. It was for the judge to assess the evidence and, if it was ‘self-contradictory and out of reason and all common sense’, then the judge could properly conclude that it was ‘inherently weak and tenuous’ within the meaning of the second limb of the Galbraith test. However, it has since been emphasised … that Shippey should not be elevated from a decision on specific facts into a legal principle. The proper test to be applied remains that enunciated in Galbraith, and the decision in Shippey merely illustrates the requirement that the court consider the evidence as a whole, including both its weaknesses and strengths.[12]The “proper approach” is then described (Blackstone at §D16.58): The following propositions are advanced as representing the position that has now been reached on determining submissions of no case to answer:(a) If there is no evidence to prove an essential element of the offence, a submission must obviously succeed.(b) If there is some evidence which, taken at face value, establishes each essential element, the case should normally be left to the jury.(c) If, however, the evidence is so weak that no reasonable jury properly directed could convict on it, a submission should be upheld. Weakness may arise from the sheer improbability of what the witness is saying, from internal inconsistencies in the evidence or from its being of a type which the accumulated experience of the courts has shown to be of doubtful value (especially in identification evidence cases …).(d) The question of whether a witness is lying is nearly always one for the jury, save where the inconsistencies are so great that any reasonable tribunal would be forced to the conclusion that it would not be proper for the case to proceed on the evidence of that witness alone.[13]As can be seen, the Galbraith NCA test, as applied in the crown court, has three aspects. They relate to who, when and what: i) Who. It is the jury who will need to weigh the evidence and decide who is telling the truth. The judge does not have that function. The jury will decide what its preferred view of the evidence is. The jury will choose whether to take the prosecution evidence at its highest, or not. ii) When. The time for weighing all the evidence and deciding who is telling the truth will be at the end of the case, on all the evidence. The decision on NCA does not bring forward that function to the end of the prosecution case. The decision as to what is the preferred view of the evidence, and whether to take the prosecution evidence at its highest, is for the end. iii) What. The NCA questions are carefully designed to look only for “one possible view” of the prosecution evidence, taking that evidence “at its highest”. This is not about what preferred view a jury would take, would currently take, or would be likely to take, of the evidence which has been adduced. It is about a possible view of the evidence that a jury could take.[14]The practical upshot is this. A determination of NCA at a crown court trial means the defendant need not face testifying and exposing themselves to cross-examination; they need not face any dilemma (or any otherwise-appropriate adverse inference) from choosing not to testify in their defence; they need not give their side of the story. That is because the prosecution evidence is incapable of supporting a conviction, even taken at its “highest”, and on any “possible” view.

Galbraith and Magistrates

[15]Galbraith is applied in other proceedings, and decisions on NCA made. The obvious example is the magistrates’ court. The court considers the evidence so far adduced, by the prosecution as the party bearing the overall burden of proof. Whether there is NCA is a function of the magistrates. There will be an identification in law of the elements which the prosecution must prove. After the end of the prosecution case, the magistrates may “acquit on the ground that the prosecution evidence is insufficient for any reasonable court properly to convict”: see Criminal Procedure Rules r.24.3(3)(d). The magistrates’ NCA power is addressed in Archbold, Magistrates’ Courts Criminal Practice (2025) at §11-14, citing cases including DPP v Young [2018] EWHC 3616 (Admin).[16]In the magistrates’ court there is no who aspect. It is the magistrates who would need to weigh the evidence and decide who is telling the truth. It is also the magistrates who are applying Galbraith at half-time. There are the two aspects: when and what. These have the same discipline as with the judge in the crown court trial. It is a special discipline, because the magistrates would also be the evaluative fact-finding decision-maker at the end of the trial. The magistrates, like a jury, are keeping an open mind. They are not asking “what view would we currently take, as our preferable view of the prosecution evidence, if we were deciding the case on the evidence so far?” The discipline is in looking to eliminate any “possible” view of the evidence, taking it “at its highest”, by reference to “any reasonable court” (r.24.3(3)(d)). That is the same discipline whose same practical upshot is about whether the defendant faces presenting evidence and choosing whether to testify in their defence, and be cross-examined.

Galbraith and the Panel

[17]Like the magistrates, there is no who element (judge and jury). Unlike the crown court and the magistrates, the Panel is applying a lower (civil) standard of proof (reg.41(16)). As Ms White and Ms Graham agree, the parties’ agreed bundle of documents has become “evidence in the case”. There may be witness statements in the bundle, some of which may come to be adopted by witnesses giving live evidence. Witnesses called by the AA will have given their live evidence. Witnesses to be called by the “defence” have not yet given live evidence or been cross-examined. There will have been no closing speeches; just submissions on NCA. Ms White’s researches located a variety of cases of different kinds which illustrate Galbraith being applied in disciplinary proceedings, involving regulated solicitors, doctors, dentists, nurses and pharmacists. She cited Solicitors Regulation Authority v Sheikh [2020] EWHC 3062 (Admin) at §§9 and 56; R (Tutin) v General Medical Council [2009] EWHC 553 (Admin) at §§5 and 8; R (Husband) v General Dental Council [2019] EWHC 2210 (Admin) at §§14-17; Professional Standards for Health & Social Care v Nursing & Midwifery Council [2018] EWHC 70 (Admin) at §56; and Professional Standards Authority for Health & Social Care v General Pharmaceutical Council [2024] EWHC 3335 (Admin) at §§76-83. Ms White submits, and Ms Graham accepts, that the application of Galbraith in police misconduct proceedings must take account of the nature of the ‘case’ being brought in those proceedings, the stage at which the test is invoked, and the civil standard of proof which applies.[18]A disciplinary panel – like the magistrates – must not fall into the “trap” of bringing forward the evaluative function which it would have at the end of all the evidence in the case. That is when it comes to adopt its preferred view of the AA’s evidence. Ms White submits, and Ms Graham accepts, that a panel cannot ‘jump the gun’ and undertake an exercise in preferred evidential evaluation – on the civil standard – on the evidence it has heard so far. A panel is not asking:
“based on the evidence in the case so far, and applying the civil standard, would we find for the defence?”
A panel must hold to the discipline of the “one possible view” of the AA’s evidence, when that evidence is “taken at its highest”, which “a” reasonable and properly directed panel could take. A panel may think it would not itself take that view, were it deciding the case now. When they decide cases, panels are not required to accept a “possible” view. They are not required to accept the AA’s evidence at its “highest”. But that is all to do with deciding the case at the end of the case, having heard all the evidence. By reference to the lower standard of proof, the same what and when features of NCA apply, as in the magistrates. The upshot is the same for the person facing the allegations. All of which links to ensuring that the panel keeps an open mind as to what its preferred view may ultimately be.[19]This is why Nicol J said in Husband (at §15) that “the task is to decide whether the charge could, not whether it would, be made out”. It is why Nicol J went on to say (Husband at §42) that:
“At this stage, the [panel] was not asking itself whether it did believe the two witnesses, but whether the evidence was sufficient, taken together with [the other] evidence, to support the charges”
. This is why Holroyde LJ explained in the context of magistrates and NCA in Young (at §19) that:
“Whether at the conclusion of all the evidence [the magistrates] would have convicted is of course a separate matter”
. At the NCA stage, as he explained:
“The issue they had to determine … was whether a reasonable bench, properly directed, could properly convict”
. These observations all point to the necessary discipline, and the need to avoid the “trap”.

Prosecutorial Decisions

[20]Ms White showed me the part of the Statutory Guidance which refers (at §8.62) to “a modified version of the co-called Galbraith test”. This calls for special caution. This is part of the Statutory Guidance which is discussing the test of a “case to answer” when it appears in reg.23(1). As Ms White accepts, that is the AA’s decision-making in making a referral to misconduct proceedings. I have called it a ‘prosecutorial’ decision. It is a distinct function by a distinct decision-maker. It is at a prior stage. It is, necessarily, uninformed by the oral evidence which is then given at a hearing and the extent to which it is undermined by cross-examination. At that prosecutorial stage there are distinct features relating to who, when and what. Just as a description of a ‘case to answer’ function within the CPS Code for Crown Prosecutors would not “read-across” to the NCA function of a crown court judge half-way through a trial, so too this Statutory Guidance does not read-across to the NCA role of the Panel. There is, however, a footnote. One part of the Statutory Guidance has resonance. It says (at §8.66b) that the prosecutorial decision-maker at the referral stage should never assess and weigh up the merits of evidence “to such an extent that it becomes a judgment on the balance of probabilities as to whether there has been misconduct or gross misconduct”. This observation, as it happens, is also true of a panel, as explained by Nicol J and Holroyde LJ in Husband and Young.

This Case

[21]The allegations against the IP related to alleged inappropriate conduct in 2021 and 2022 towards PCA. PCA was at that time a female colleague within the same team, working at the same Base. Following disclosures made by PCA on 11 March 2022 and a witness statement which PCA made on 28 March 2022, the IP was interviewed on 13 July 2022. The Panel comprised a legally qualified chair (Akbar Khan), an independent member (David Scott) and a police member (Supt Steve Allen). The hearing was scheduled for 3 days starting on 7 February 2024.[22]The AA’s reg.30 notice contained two allegations of assault, and a third allegation of inappropriate messaging, each said to constitute a breach and serious departure from the Discreditable Conduct standard, and each said to amount to gross misconduct. These were the three Allegations, in respect of which the Decision found NCA (the paragraph numbering in square brackets is mine): Allegation 1. On a date between October 2021 and 10th January 2022 in the area of the gymnasium at the Base, you assaulted by pinching her bottom. The said pinching was non-consensual and sexually motivated. Allegation 2. On a date between 10th January 2022 and 11th March 2022 in the area of the treadmill at the gymnasium at the Base, you assaulted PC by pinching her waist. The said pinching was non-consensual and sexually motivated. Allegation 3. Between August 2021 and 11th March 2022 you subjected to inappropriate sexualised comments sent via WhatsApp chat, repeatedly making comments on her personal appearance, and sexualised remarks about her body. In particular: [3.1] the text messaging on 2nd Aug 2021 from 18:22:39 to 18:28 including, but not limited to the statement “you’re young, and pretty bloody hot”; [3.2] the text messaging on 28th Aug 2021 from 05:46:31 to 06:07:25 including, but not limited to the statement:
“I just woke up from a proper sex dream about you so if I look at you different today you know why”; [3.3] the text messaging on 10th Sep 2021 at 18:07:24 to 19:18:27 including, but not limited to the statements: [3.3.1] “Oh yeahhhh, sorry I was distracted cos you looked cute what you doing with your weekend? X”; [3.3.2] “I mean I’m happy for pictures of legs too… bum counts as part of legs right…?!”; [3.3.3] “I’m happy to cuddle both you & R just make sure there’s ice cream… and pizza. then at least you’ll know it’ll be friend zone as I’ll be too full to try it on x”; [3.4] the text messaging on 10th Sep 2021 at 20:05:46 to 21:52:23 including, but not limited to the statements: [3.4.1] “Lol that’s probably the flirtiest thing you’ll ever say to me isn’t it … until I befriend you for long enough and sneak my way in anyway”; [3.4.2] “gotta take what you’re given, I’ll keep plugging away”; [3.5] the text messaging on 9th Oct 2021 at 12:22:16 to 12:45:04 including, but not limited to the statements: [3.5.1] “Really you don’t even need to play because you know as long as I win you’ll be sorted for life as we’ll be eloping together [3.5.2] “you know I’ll look after you!! how’s it going? X”; [3.6] the text messaging on 9th Oct 2021 at 14:24:09 to 14:34:11 including, but not limited to the statement: “Hmmm when I win £174m then ask you to move in with me we’ll see if you give these same excuses x”; [3.7] the text messaging on 25th Oct 2021 at 21:06:41 containing the statement: “If you missed me that much you could’ve just asked to take my jacket to smell. didn’t have to steal it. X” [3.8] the text messaging on 10th Jan 2022 at 19:46:51 to 20:41:24 including, but not limited to the statements: [3.8.1] “you gona be ready for my fat callipers first thing Sat morning? … it’s meant to be good motivation… the fact I get sexual gratitude from it is beside the point”; [3.8.2] “you’re def not looking even remotely fat … and you wear tight enough gym clothes that I can tell okay?”

Agreed Issues

[23]Ms White and Ms Graham agree that the AA’s grounds for judicial review raise two issues in relation to each of the three Allegations. That means these six issues: Allegation 1 (non-consensual, sexually motivated pinching of bottom in area of the gymnasium). Issue(1) Did the Panel properly apply Galbraith Limb 2 to Allegation 1? Issue(2) Was the Panel’s conclusion that there was no case to answer in respect of Allegation 1 unreasonable? Allegation 2 (non-consensual, sexually motivated pinching of waist in area of the treadmill at the gymnasium). Issue(3) Did the Panel properly apply Galbraith Limb 1 to Allegation 2? Issue(4) Was the Panel’s conclusion that there was no case to answer in respect of Allegation 2 unreasonable? Allegation 3 (subjecting PCA to inappropriate sexualised comments via WhatsApp). Issue(5) Did the Panel properly apply Galbraith Limb 2 to Allegation 3? Issue(6) Was the Panel’s conclusion that there was no case to answer in respect of Allegation 3 unreasonable?

The Nature of Judicial Review

[24]In my judgment, the way in which the legal challenge has been formulated, as reflected in the six issues, raises an important question about the nature of judicial review. Issues (1), (3) and (5) are framed so that this Court would decide whether Galbraith was “properly” applied by the Panel. This formulation is distinct from issues (2), (4) and (6), which are framed in terms of public law unreasonableness. The AA’s pleaded grounds and Ms White’s skeleton argument adopted this structure. They address issues (1), (3) and (5) in terms that the Panel “erred in law in its application of Galbraith”; that the Panel “misapplied Galbraith”; that the Panel made an “error in application”; culminating in a submission that “the evidence was not so inherently weak or vague that it fell to be dismissed at half-time” but “instead should have been left for the Panel’s consideration at the end of all the evidence”.[25]Skilfully though all of this was prepared and presented by Ms White, I do not think it is a permissible approach. Distinguished from the unreasonableness grounds, these are really an invitation to this Court to substitute its own “application” of Galbraith; or perhaps an intermediate approach which asks whether an appealed decision was “wrong” (cf. CPR 52.21(3)). In my judgment, that is not the judicial review Court’s role; nor would it be the Court’s role on a case stated appeal on a point of “law”. The “application” of Galbraith can involve evaluation and appreciation. The Panel is the primary decision-maker. This Court has a conventional supervisory jurisdiction. On this point, I agree with Ms Graham. I am not the primary decision-maker. This is a supervisory, not a substitutionary, review. This is reflected in Husband at §40 (“My task is not to ask whether I would have acceded to or dismissed the NCA submission”); and Tutin at §27 (asking whether “the Tribunal took a course that no reasonable tribunal could properly take”). It is seen in a case stated appeal in DPP v Whittaker [2015] EWHC 1850 (Admin) [2016] 1 WLR 1035 at §30 (asking whether magistrates were “entitled to reach their conclusion … for the reasons they gave”). The test is unreasonableness. That means a decision “outside the range of reasonable decisions open to the decision-maker” or with “a demonstrable flaw in the reasoning which led to the decision” (see eg. R (Finch) v Surrey County Council [2024] UKSC 20 [2024] PTSR 988 at §56). Ms White focused on the first of these. She cited R (BTP Chief Constable) v Police Misconduct Panel [2023] EWHC 589 (Admin) [2023] ACD 62, where the judicial review court’s approach and its limits are described at §§68-69.[26]In the present case, it is not said that the Panel misdirected itself in law. On the contrary, Ms White accepts that the Panel got the law right in the Decision when it said: The ‘Galbraith’ test anticipates the stopping of proceedings in two circumstances:(a) where there is no evidence to prove the charge (Limb 1), or(b) where there is some evidence, but it is of a tenuous character, for example, because of inherent weakness or vagueness or because it is inconsistent with other evidence (Limb 2) and, taking the AA’s case at its highest, a properly directed Panel could not conclude that the standards of professional behaviour alleged had been breached. In such circumstances, it is the duty of a Panel to stop the case. The Panel is also mindful that the standard of proof is the balance of probabilities… The Panel is also aware that it should not dismiss an allegation where there is evidence of a breach of the standards of professional behaviour which could amount to ‘simple misconduct’.[27]Absent a misdirection in law, the only “hard-edged” basis for impugning the “application” of Galbraith as involving an “error of law” would be this. Ms White would need to show that, having begun by stating the law correctly, the Panel nevertheless went on, in substance, to ask and answer “the wrong question”.

The Evidence

[28]The Panel recorded in the Decision:(i) that it had heard live evidence from PCA, Inspector Christopher Hicks and Police Sergeant Christopher Cunliffe;(ii) that it had reviewed the WhatsApp chat and text messages passing between PCA and the IP; and(iii) that it had reviewed the written notes taken from meetings held with PCA in March 2022. I will fill in a little more detail in relation to each of these: i) First, as to the live evidence, this had all been heard on Day 1 of the hearing (7 February 2024). The transcript is 168 pages. PCA’s evidence (131 pages) involved her adoption of her witness statement (28 March 2022). She was then examined in chief “old style” by the AA’s advocate (Mr Jenkins), then cross-examined (97 pages) by the IP’s advocate (Ms Graham), briefly re-examined by Mr Jenkins, and finally asked questions by the Panel. Insp Hicks and Sgt Cunliffe each adopted their witness statements and were each briefly cross-examined by Ms Graham. ii) Secondly, as to the messages, the WhatsApp chat messages were 58 pages of screenshots containing messages between the IP and PCA from 30 June 2021 and 11 March 2022. These were in colour and showed additional features such as emojis. As to the text messages, these were a black and white text download format, showing the same textual content. They contained the list of messages featuring in Allegation 3. PCA was examined in chief, and cross-examined, in relation to the WhatsApp screenshot messages. iii) Thirdly, as to the written notes taken from the March 2022 meetings, these were a 6-page document written by Sgt Cunliffe on 11 March 2022 at 17:14. The notes described PCA’s first contact with Insp Hicks and Sgt Cunliffe (10 March 2022), meetings with Hicks (11 March 2022 at 06:30) and with Insp Hicks and Cunliffe (11 March 2022 at 08:30). The written and live evidence of PCA, Insp Hicks and Sgt Cunliffe made reference to what had been disclosed by PCA to Insp Hicks and Sgt Cunliffe and the way in which it had been disclosed.[29]The Panel had the agreed bundle. It included the adopted witness statements of PCA, Insp Hicks and Sgt Cunliffe; the WhatsApp and text messages; and the written notes. It also included a photo from PCA’s Instagram (11 March 2022); the AA’s reg.30 notice; the IP’s reg.31 response; the IP’s record of interview (24 pages, 13 July 2022) and his witness statement (5 pages, 12 December 2023); some emails from Insp Hicks; an initial report by Sgt Cunliffe; a statement by PC Joe Maloney (11 December 2023) relating to Allegation 2; and a series of character witness statements from colleagues of the IP. I have read the evidence that was before the Panel, and the entirety of the transcript of both Day 1 and Day 2.

Submissions on NCA

[30]What happened was this. At the close of the AA’s evidence, at the end of Day 1, Ms Graham helpfully flagged up for the Panel that she envisaged making an application. Later that evening, she filed a clear 7-page skeleton argument setting out the law and the reasons why she was submitting that the Panel should find NCA in relation to all 3 Allegations. The next morning, at the hearing on Day 2 (8 February 2024), Ms Graham made oral submissions (8 pages of the transcript). In writing and orally, she addressed the three Allegations in turn. Mr Jenkins for the AA then responded with oral submissions (9 pages of the transcript). Ms Graham made a brief reply. The Panel withdrew to deliberate. Later, on the afternoon of Day 2, the Panel delivered its determination, later published as the Decision.

The Dismissal of Allegation 1

[31]The Panel concluded that Galbraith Limb 2 applied to Allegation 1. These were the Panel’s reasons (the Panel’s references to “the officer” are the IP): 1.16. PCA gave evidence in relation to Allegation 1, namely, that the officer sexually assaulted her by pinching her bottom on a date between October 2021 and 10 January 2022 in the area of the gymnasium. She stated she was a regular gym user often arriving first around 6.15am. The officer would arrive after her. 1.17. She could not recall if the alleged assault happened whilst in or outside the gymnasium but said he pinched her bottom. She could not remember any of the details, only how it made her feel, which was ‘uncomfortable’ and to ask herself ‘What actually just happened?’. She didn’t know how to react and just pretended nothing happened which was easier. She just compartmentalised it and moved on. There was no change to his behaviour afterwards and she didn’t tell anyone what had happened. 1.18. During cross-examination, having stated that she could not recall when the incident happened PCA then contradicted herself and said she thought it happened in January 2022 but could not provide any explanation for why she had only now recalled such detail. She later claimed in re-examination that she was confused between Allegations 1 & 2. 1.19. The defence assert that Allegation 1 falls within limb 2 of the Galbraith test, namely, that the evidence taken at its height is so inherently weak that the allegation ought to be dismissed. 1.20. The Panel has carefully considered the evidence received in relation to Allegation 1 and observes it is only PCA’s evidence that is in support of the allegation. The Panel finds this is a Galbraith limb 2 case, and that the evidence received from PCA is inherently weak, such that taken at its height a properly directed Panel could not find the Allegation proven. In this regard, PCA’s evidence lacks any detail regarding the actual location of the incident, or even the date of the incident on which she was confused. In the circumstances, the Allegation is dismissed.

The Dismissal of Allegation 2

[32]The Panel concluded that Galbraith Limb 1 applied to Allegation 2. These were the Panel’s reasons: 1.21. PCA gave evidence in relation to the second allegation, namely, that on date between 10 January 2022 and 11 March 2022 in an area of the treadmill at the gymnasium the officer sexually assaulted her by pinching her waist. PCA said the second incident occurred within weeks of the first incident - no more than a month. She was in the gym on the treadmill. No one other than the officer was present. 1.22. PCA said she was talking to the officer about putting on weight and feeling fatter. The officer then pinched her waist simulating the use of a set of fat callipers. He told her she had not put on weight. Although she didn’t see his actions as sexual, it was unwanted and made her feel very uncomfortable. The officer then sent her a message on 10 January which read ‘you gonna be ready for my fat callipers first thing Sat morning?’ PCA replied ‘noo’. The officer next said ‘It’s meant to be good motivation.. the fact that I get sexual gratitude from it is beside the point’. PCA said it was a shocking thing to have happened and again there was no change in his behaviour and she simply compartmentalised it. At the time she didn’t think his action was sexualised. It was only after receiving his message she thought it was sexual. She could not recall which side of her waist had been pinched. 1.23. The defence assert this allegation falls within Galbraith limb 1 as there was no sexual element to the alleged assault (even if one occurred) and therefore the allegation must fail. The AA submits that the message of 6 January 2022 is evidence of an assault. It stated ‘Now that I’ve fat tested you and you’re thin enough, can I have a fresh picture of your muscly back? PCA replied ‘No’ with three laughing emoji’s and the statement ‘Plus I don’t even have one!’. The AA further submit that the 10 January message was clearly meant to say ‘sexual gratification’ rather than ‘sexual gratitude’ and therefore the officer has a case to answer for sexual assault. 1.24. The Panel has carefully considered the evidence and finds that allegation 2 does fall within limb 1 of the Galbraith test. The evidence of PCA is clear that she did not view the action of the officer as sexual when he pinched her but it was in the context of her discussion about being fat. The officer’s message of 6 January 2022 which the AA has taken the Panel to whilst suggesting that a ‘fat-test’ might have occurred makes no reference to anything sexual. 1.25. Furthermore, the only reference to the assault being sexual which is claimed retrospectively by PCA comes from the later message of 10 January 2022 when the officer mentioned the use of his fat callipers giving him sexual gratitude. Even if ‘sexual gratitude’ is to be construed as ‘sexual gratification’ the message refers to his possible sexual gratification from the future use of the fat callipers not to any previous act of pinching PCA’s waist. Accordingly, there is no evidence to suggest that the alleged assault of pinching PCA’s waist (if it did take place) was sexual in nature. As such, there is no objective evidence of sexual motivation to support Allegation (2) which is dismissed.

The 6 and 10 January 2022 Messages

[33]Here are the WhatsApp messages which include (with emphasis added) the IP’s “message of 6 January 2022” (§1.24) and his “later message of 10 January 2022” (§1.25): 6 January 2022 13:16:49 IP: Now that I’ve fat tested you and you’re thin enough can I have a fresh pic of your muscly back? [grinning face emoji] 13:18:16 PCA: No. [3 laughing face emojis] 13:18:21 PCA: Plus I don’t even have one! … 10 January 2022 … 19:46:51 PCA: … I’ve just taught a spin class! 19:48:23 IP: Sounds enough for me … you gona be ready for my fat callipers first thing Sat morning? [laughing face emoji] 19:49:06 PCA: [3 screwed up face with downward mouth emojis] nooo 19:51:48 IP: it’s meant to be good motivation … the fact I get sexual gratitude from it is beside the point. 19:54:09 PCA: [hand over face emoji] 19:56:56 IP: [grinning face emoji thumbs up] I’m jokinggggggggg how many gym sessions you got tomorrow then? x

Discussion of Allegations 1 and 2

[34]Starting with Allegation 1, Ms White submits that the Panel’s dismissal of that allegation on the basis of NCA (Galbraith Limb 2) was not a course reasonably open to it. She emphasises that the Panel took the position that “it is only PCA’s evidence that is in support of the allegation” (§1.20). However, she submits, there was evidential “support” for Allegation 1 from several other sources, which the Panel’s reasoning overlooked. Those other sources of evidence were capable of being logically probative in relation to Allegation 1. That, as I saw it, is the central submission.[35]In evaluating it, it is important to consider the logic of the position arising out of Allegation 2. On Allegation 2 (the pinching of the waist in the gym), the Panel’s approach starts from the position that it was a possible view of the evidence – taken at its highest – that the act of the IP physically pinching PCA’s waist in the gym did take place. The IP’s act of pinching PCA’s waist was a necessary element of Allegation 2. It was PCA’s evidence. Any act of touching was denied by the IP. It was PCA’s word against the IP’s. But a possible view of the evidence was that it happened. Pausing there, I agree with Ms White that even this means the evidence relating to Allegation 2 was capable of being logically probative, in support of Allegation 1 (the pinching of the bottom in the gym area). They were both alleged incidents of physical touching. They were both said to have taken place in the gym area. They were both alleged by PCA, and denied by the IP. If it were to be found as a fact that this physical touching in the gym area (Allegation 2) did take place – if PCA were believed about that and IP’s denial were rejected – that would be relevant in support of whether the other act of physical touching in the gym area (Allegation 1) took place. This involved seeing a connection; joining the dots. The Panel treated it as a possible view of the evidence that one denied act of physical touching in the gym area (Allegation 2) did take place. But it failed to factor this point into its consideration of the other denied act of physical touching in the gym area (Allegation 1). It did not make the connection.[36]The point is that the evidence that the vehemently denied physical touching in Allegation 2 took place could support the AA’s case that the vehemently denied physical touching in Allegation 1 took place. And I agree with Ms White that there were other features of the evidence, which would be capable of providing “support” on Allegation 1, and yet which are missing in the Panel’s view that “it is only PCA’s evidence that is in support of the allegation” (§1.20). There are the WhatsApp messages. These could “support” the IP as having had a sexual interest in PCA, linked to physical touching and the gym. There was the evidence of the disclosure by PCA (10 March 2022) that the IP had said PCA “could end me”. Sgt Cunliffe corroborated having heard this too (the IP saying PCA “could ruin me”) and having found it odd. This could – especially in the absence of any other convincing explanation – also provide “support” on Allegation 1. Despite Ms Graham’s assistance, I have come to the conclusion that Ms White’s central submission on Allegation 1 is correct. For the reasons I have given, I cannot accept that the Panel was entitled to reach their conclusion for the reasons they gave.[37]On Allegation 2, the Panel’s approach was that “and sexually motivated” was a necessary element to the allegation as framed. The Panel’s conclusion (§1.24) was that there was “no objective evidence of sexual motivation” (§1.25). The Panel’s reasoning was as follows. Yes, a possible view of the IP’s message on 6 January 2022 (at 13:16:49) was that it was evidence relating to the pinching incident, but that first message contained “no reference to anything sexual” (§1.24). Yes, a possible view of the IP’s message on 10 January 2022 (at 19:51:48) was that it contained a reference to something sexual, but that second message was describing something in the future, involving a “future use of the fat callipers”, and not any previous act of “pinching” (§1.25).[38]Ms White’s central submission, as I saw it, is that the Panel’s dismissal of Allegation 2 on the basis of NCA (Galbraith Limb 1) was not a course reasonably open to it. She says there was direct corroboration for sexual motivation. The messages were capable of supporting the inference that a “fat test” which simulated the use of fat callipers had already taken place and that the IP had derived sexual gratification from it. The Panel lost sight of the IP’s own known position – from his reg.31 notice and witness statement in the agreed bundle – that(a) he had “simulated giving a reading of her weight from a fat calliper” and(b) his message about “fat callipers” referred back to that incident. That is the central submission on Allegation 2.[39]The Panel’s approach to Allegation 2 recognised that the WhatsApp messaging could be “objective” evidence of the IP’s “motivation”, and whether it was “sexual”, accepting that “sexual gratitude” could mean “sexual gratification” (§1.25). The Panel’s reasoning carefully separated the WhatsApp messages: on 6 January 2022 (§1.24) and on 10 January 2022 (§1.25). In that separation, the Panel was making two distinctions. One is a distinction between an act of pinching with fingers (PCA being “fat tested” by the IP) and an act of using a piece of equipment (“the fat callipers”). The other is a distinction between the past (PCA being “fat tested” by the IP) and the future (the “use of the fat callipers”). I have been unable to follow either of these distinctions, bearing in mind the Panel’s need – rightly accepted by Ms Graham – to consider the evidence in the round and as a whole, and remembering that the Panel was looking for “any evidence” of sexual motivation.[40]First, there is the Panel’s distinction between an act of pinching with fingers (being “fat tested”) and an act of using a piece of equipment (“the fat callipers”). Ms White and Ms Graham agree that the Panel had not heard or received any evidence about anyone having or using an actual piece of equipment being “the fat callipers”. The IP’s reg.31 response – which had been formally adopted by him at the start of Day 1 – was that the pinching of the waist was done (he said, by PCA to herself) at the same time that the IP had “simulated giving a reading of her weight from a fat calliper”. His case was that there was simulation of a fat calliper but that “at no time did he touch her”. His case was that “fat callipers” was simulation, but without touching. PCA said it was actual pinching by the IP with his fingers. The IP’s reg.31 response also stated expressly that the WhatsApp message which referred to “callipers” was referring back to the simulation incident during which PCA’s waist was pinched (by herself, according to the IP). PCA said he had pinched her. I have not been able to understand – despite the Panel’s reasoning and Ms Graham’s submissions – why “callipers” were separate and distinct from the incident where PCA’s waist was pinched. Nobody’s case before the Panel involved any use, or any reference to any use, of any actual piece of equipment (“the fat callipers”).[41]Secondly, there is the Panel’s distinction between the past (with no evidence of any sexual element) and the future (with evidence of a sexual element). The words used are “I get” followed by the words “sexual gratitude” (gratification). I have been unable to see why this could not constitute “evidence” relating to an act of having “fat tested you”. It was a “fact” that “I get sexual gratitude from it”. I have been unable to understand – despite the Panel’s reasoning and Ms Graham’s submissions – how “I get sexual gratitude” was “no evidence” of sexual motivation, in the context of the alleged act of the IP pinching PCA’s waist.[42]Despite Ms Graham’s assistance, I have come to the conclusion that Ms White’s central submission on Allegation 2 is also correct. I cannot accept that the Panel was entitled to reach their conclusion for the reasons they gave. For these reasons, I am unable to accept that the Panel’s conclusions on Allegations 1 and 2 were within the range of reasonable decisions open to it as primary decision-maker. The appropriate course will be to quash the Panel’s decision and remit the case for reconsideration by a freshly-constituted panel.

Other Points

[43]A number of other points about Allegations 1 and 2 have been raised or have arisen. I am satisfied that nothing can turn on them. But I will address three topics. First, there were points in relation to Allegation 1, about lack of detail (§§1.17, 1.20), about contradiction (§1.18), and about confusion (§1.20). Ms Graham says this was a case of a witness (PCA) who “was considered to be contradictory, inconsistent, inherently weak and lacking in credibility”. That was not the position taken by the Panel itself on whether the physical touching in Allegation 2 took place. On Allegation 1, the Panel considered it important to ask whether there was no evidential “support”, with which I have dealt. As to contradiction and confusion, the Panel heard, and understood, PCA to have “contradicted herself”. That was Ms Graham’s submission. Mr Jenkins for the AA accepted that “she wasn’t good on the date … of when her bottom was pinched”. This is a case of a primary decision-maker hearing live evidence, with its overall flow. I will, however, record that Ms Graham showed me the transcript, it did not read off the page like straight contradiction. PCA’s reference to “January 2022” followed a question about “an allegation that you made at some point on the 11 March [2022], which was unspecific”. But PCA had disclosed both incidents (Allegations 1 and 2) on 11 March 2022. A later exchange about Allegation 2 involved PCA saying “I previously said I believe this happened in January” and “you asked me a question earlier where you said if it was December or January, and I said January”. When pressed, PCA then said of the incident in Allegation 1 that “I believe it might have been” January 2022 “although I may be confusing that with the side pinch”. In re-examination, PCA said “the reason I said January was because I was getting confused with that particular incident. To be honest, at this point, two years later, it’s all blurred into one a little bit. But I definitely remember there being two distinct, different incidents”.[44]Secondly, there are the circumstances of the disclosure. In her grounds of resistance to the claim Ms Graham relied on PCA’s disclosure as having been in response to “a leading question”. Mr Jenkins submitted to the Panel that “this was not an allegation she made willingly. There was no evidence of any malicious desire to down this officer or ruin him. It had to be drawn out of her.” I record that, what the notes evidenced was that the incident in Allegation 1 was a responsive disclosure. PCA had raised other matters. She was asked a direct question by Sgt Cunliffe. He asked PCA whether she had experienced “any inappropriate touching”. In response to that question, she disclosed that:
“Someone pinched my bum in the gym here a few months ago”
. Asked about that, she was initially reluctant to name the person. She was encouraged and reassured. She then identified the IP. The AA’s case was that this evidenced a truthful disclosure of a real incident, in response to a direct question, with no plausible motive ever suggested as to why PCA would have told an untruth as to it happening, or as to who had done it.[45]Thirdly, there was a point about whether “and sexually motivated” was a necessary element of Allegation 2. As part of this judicial review claim, Ms White has submitted that it was sufficient for misconduct if the IP “assaulted PCA by pinching her waist” where “the said pinching was non-consensual”. She says Allegation 2 should not have been read with the strictness of an indictment. On that basis alone, said Ms White, the Panel’s decision on Allegation 2 was unreasonable. That is because the Panel applied Galbraith Limb 1 to the additional element “and sexually motivated”. I would not have decided this claim on that basis. It appears to me that everyone at the Panel hearing had been approaching the case on the basis that “and sexually motivated” was a necessary part of Allegation 2. It needs to be clear (including after remittal) what the case is which the IP has to meet. For the purposes of this judicial review claim, I note that Mr Jenkins for the AA responded to the NCA application by treating “and sexually motivated” as a necessary part of Allegation 2, which was the basis of Ms Graham’s NCA submissions to the Panel. I would not have let the AA change its position and take a new position on judicial review.[46]Fourthly, a point emerged as to dates in Allegation 2. The date range is “between 10th January 2022 and 11th March 2022”. But the AA’s case includes that “I’ve fat tested you” (6 January 2022) was referring to the incident in Allegation 2. Ms Graham did not submit that this could affect the analysis of this claim. I agree. It may need regularising following remittal.

The Dismissal of Allegation 3

[47]The Panel concluded that Galbraith Limb 2 applied to Allegation 3. In its reasoned decision explaining why, the Panel started with this description of PCA’s live evidence: 1.26. Turning to the alleged inappropriate sexualised comments sent by the officer via WhatsApp chat between August 2021 and 11 March 2022 (at paras [3.1] to [3.8] of the regulation 30 notice), PCA gave the following evidence: [a] She could not recall how she felt about being described as ‘young, pretty and bloody hot’ but she understood that between friends and colleagues these things are said. During cross-examination she was taken to the remarks within their context where it was put to her that the officer had only said those things to reassure her after she had stated that she missed her ex-boyfriend and was convinced that she wouldn’t find anyone else. The officer had also stated ‘you’ll clearly find someone else better than him with very little effort’. PCA conceded there was nothing inappropriate in what had been said and nothing unusual between friends. [b] In relation to the comment ‘I just woke up from a proper sex dream about you, so if I look at you different today you know why’, PCA said she just replied with ‘Christ’ and an emoji covering her eyes. She just ignored it and didn’t reply to it. The comment made her skin crawl. [c] In relation to the several comments about her looking ‘cute’, what she was doing for the weekend; ‘happy to receive pictures of legs too.. bums counts as legs right’ and ‘I am happy to cuddle you and dog just make sure there’s ice cream… and pizza, then at least you’ll know it’ll be friend zone and I’ll be too full to try it on x’, PCA said she had no problem inviting her friends over to get to know each other. In relation to the ‘Netflix and Chill’ invitation, in her view it was a non-sexual invitation. She accepted that she should have been blunter with him in her responses. [d] In relation to his requests for new pictures she did not reply to his reference to ‘bums and legs’. Overall she tried to move on by using laughing emoji’s to get rid of the comments or by making references to her dog. She initially denied sending or showing the officer any picture of her ‘topless’ and asserted he must have seen the naked photo of her ‘back’ that was on her Instagram account. She said it was ‘ludicrous’ she would show him a topless picture, or hold the phone close to her chest, saying he would have to work much harder if he wanted to see them. However, later in cross-examination, PCA conceded that although she did not recall showing him any topless photos, she may have showed him selfies stored in her phone gallery taken during her fitness programme. [e] In relation to the comment ‘Lol that probably the flirtiest thing you’ll ever say to me isn’t it …..until I befriend you for long enough and sneak my way in anyway’ and ‘gotta take what you’re given, I’ll keep plugging away’, PCA said that it was just a continuation of the officer’s behaviour and the comment showed she was not ‘flirty’ with him. [f] In relation to the officer’s comments about them eloping together; looking after PCA after he had won lots of money, PCA explained the comments referred to the officer’s role in running the team’s Euromillions syndicate. She would just laugh off his comments. Again, PCA confirmed there was nothing inappropriate in the comments. [g] In relation to the officer’s comments about PCA stealing his jacket and smelling it, PCA explained this referred to the officer’s jacket being left in a vehicle. PCA was given it by a colleague who asked her to pass it to the officer. PCA said it was an odd joke that she had sniffed the jacket. It was a ridiculous thing for him to say. However, in her view it was not a sexualised remark as such. [h] PCA was asked about what she meant by her reference to the ‘endgame’? The officer had replied ‘Haha marriage and moving away together as millionaires’. She then replied ‘I meant realistic endgame’. PCA said she asked for ‘nothing’ as stated in her reply. Again there was nothing sexualised, just him being ridiculous. [i] PCA was also asked about the officer’s question to her about giving her ex-boyfriend the ‘good stuff’ to mean sex. She had replied ‘No’ with a laughing emoji. It was put to her that this was not a sexualised exchange. PCA agreed it was not sexualised. [j] PCA stated to the Panel that she considered the officer’s messages to be worse than the unnamed officer’s messages (in particular the message about the ‘sex dream’) relating to asking for a massage. In that instance, she told the other officer who was also from her team to stop his sexualised messaging which had been persistent. However, she could provide no reason why she was unable to similarly rebuff the current officer in respect of his messages which had also been ongoing for months and in which she had engaged, other than stating that she did not want to upset anyone, or to complain, or to rock the boat where she had to work.[48]The Panel then reasoned as follows (with one agreed typo corrected): 1.27. The defence submit that allegation 3 falls within Galbraith limb 2, and the AA must satisfy the Panel that the messages were sexually inappropriate and unwarranted comments by the officer. Further, in order to make out discreditable conduct, the AA has the burden of proving that the alleged conduct would be considered to be discreditable having regard to all the circumstances. 1.28. The AA stated that the messages plainly constituted a course of conduct that were sexualised in nature. Furthermore, there was no obligation on the part of PCA to rebuff the officer. The Panel accepts this latter remark. 1.29. The Panel has carefully considered the evidence and accepts the allegation falls within Galbraith limb 2. The Panel finds in summary, that the underlying comments at paragraphs [3.1], [3.3.1], [3.3.3], [3.4.1], [3.4.2], [3.5.1], [3.5.2], [3.6] and [3.7] of the regulation 30 notice were viewed as non-sexual messaging by PCA. 1.30. The other messages forming the course of conduct such as the ‘sex dream’ and references to PCA’s body such ‘bum and legs’ must also be looked at in the context of the messaging. In this regard, the Panel has noted that PCA was able to tell the other officer on her team to stop his sexualised messaging but could provide no reason why she did not do the same towards the current officer. Even accepting that she was under no obligation to rebuff him her conduct is relevant to how he perceived their relationship. 1.31. In this regard, she was happy enough to invite the officer to her home to participate in an evening of ‘Netflix and Chill’ in or around September 2021 despite the fact that he had already told her a month earlier (in August) about the ‘proper sex dream’ he had about her which she told the Panel made her skin crawl. Even assuming that she thought an evening with the officer at her home would not involve any sex, her evidence is clearly contradictory and lacks credibility given what she said about how the ‘sex dream’ remark made her feel. 1.33. PCA’s evidence about sharing a photo of her upper body with the officer was also inconsistent and lacked credibility. At first, she claimed that the officer must have seen a picture of her upper body from her Instagram account but upon hearing that he did not have an Instagram account she conceded that she may have shown him her pictures from her own picture gallery on her phone. Additionally, her explanation as to why she did not challenge his conduct behaviour is also contradictory to her early behaviour in challenging another male colleague on the team. 1.34. Overall, the Panel agrees that allegation 3 does fall within Galbraith limb 2. The Panel finds that the height of the evidence is so inherently weak that allegation 3 should be dismissed.

The Netflix and Chill Messages

[49]As to the Panel’s references to “Netflix and Chill” (§§1.26[c] and 1.31), this was the exchange: 10 September 2021 18:25:11 IP: You’ll just have to invite me to Netflix & chill sometime instead then [halo emoji] 18:25:32 IP: Meant in the purely friendship non sexual way of course x 18:33:50 PCA: You’re welcome any time!

Discussion of Allegation 3

[50]In considering NCA and Allegation 3 (subjecting PCA to inappropriate sexualised comments via WhatsApp) the Panel was focusing on two key themes. One key theme concerned the intrinsic content of the messages themselves, read in the context of other relevant messages. The other key theme concerned the parallel facts as to what had happened in the interactions between the IP and PCA. Both of these key themes can be seen within the Panel’s reasoning. i) The Panel did not think intrinsic content could, in and of itself, be the basis of a finding of NCA on the entirety of Allegation 3. The IP’s case was known to be that there was no inappropriate sexualised messaging, seen in the context of an ongoing “dialogue” and “relationship” between the two of them. Ms Graham had cross-examined PCA about interactions between the IP and PCA. The Panel’s reasons show the Panel was thinking about whether and how PCA’s own “conduct” was “relevant” to “how [the IP] perceived their relationship” (§1.30); including PCA’s “evidence about sharing a photo of her upper body” (§1.33). ii) Ms White recognises the importance of putting intrinsic content alongside parallel facts as to interactions between the IP and PCA. She submitted as follows. The content of the messages – viewed in the context of what had happened between the IP and PCA and in the context of the IP’s responsibility to behave professionally towards other members of his team – were matters for consideration at the end of the evidence. Taking the “sex dream” message as an example, a possible view of the evidence was that this remark – sent in a message to a colleague – was sexualised and inappropriate. The Panel could not properly weigh the relevant evidence by hearing from only one side to the communications. iii) Ms Graham also recognises the importance of putting intrinsic content alongside parallel facts as to interactions between the IP and PCA. She submitted as follows. The IP’s WhatsApp message (10 September 2021) in Allegation [3.3.2] “I’m happy for pictures of legs too… bum counts as part of legs right…?!” needed to be viewed in the context of PCA accepting that she had showed the IP “a photograph of her without a top on”, albeit that PCA “did not accept her breasts were exposed”. The IP’s WhatsApp message (28 August 2021) in Allegation [3.2] “I just woke up from a proper sex dream about you so if I look at you different today you know why” was “one of the earliest messages in the nine-month long exchange” and “had to be viewed in the context of PCA continuing to engage with [the IP] for another 7 months”, including inviting him to “Netflix and chill” (§1.31) and for coffee, and “showing him photographs of her body from an album on her phone”.[51]In my judgment, there is an insurmountable difficulty with the Panel’s approach to NCA and Allegation 3. The parallel facts, as to what had been said and done in the interactions between the IP and PCA, cried out for fully and fairly informed, concrete findings of fact. Those findings of fact would address what had happened; and also when it had happened. Take this obvious example. Both parties have focused on the IP’s message to PCA in Allegation [3.2]: 28th Aug 2021:
“I just woke up from a proper sex dream about you so if I look at you different today you know why”
. Ms Graham emphasises that this was: one of the earliest messages in the nine-month long exchange. The AA’s case was that this message was sexualised and inappropriate, in the context of the IP’s responsibility to behave professionally towards other members of his team. The IP’s case was that this was not inappropriate sexualised messaging, seen in the context of the ongoing dialogue and relationship. The obvious question is this: what were the parallel facts, as to the interactions between PCA and the IP, relevant to this message?[52]This leads to another obvious example. It concerns photos. The Panel addressed this (§§1.26[d] and §1.33). PCA’s evidence was that the IP had seen a photo of her tattooed back. She said she had posted such a photo on her accessible social media (Instagram). When it was put to her in cross-examination that the IP did not have access to Instagram she had conceded she may have shown pictures from her phone. Ms Graham says this is important context for the message (10 September 2021) in Allegation [3.3.2] “I’m happy for pictures of legs too… bum counts as part of legs right…?!”. Also relevant (§1.23) is the IP’s message of 6 January 2022 asking for “a fresh pic of your muscly back”. It can readily be seen why this was regarded as relevant. But the obvious questions are: what actually happened?; and when did it happen? The IP’s case about a “completely topless” photo was clear from his witness statement dated 12 December 2023. This was within the Panel’s bundle, as evidence in the case. The IP had made this claim: She had lots of pictures and selfies in the phone that she was scrolling through, and there was one where she was topless which she clicked on. When she clicked onto that picture, she brought the phone to her chest and said words to the effect of “you’ll have to work hard if you want to see that”. [She] would also regularly show me pictures of her posing with her back muscles exposed, but this was the only picture I recall where she was completely topless.[53]The Panel knew this was the IP’s claim. It was put to PCA in cross-examination. It was put that she had showed the IP a photo in which “your breasts were exposed” and had said “you will have to work harder if you want to see those pictures”. Her response was “absolutely not” and that “he has never seen a picture of my breasts, ever”. The Panel did not say that this evidence was lacking in credibility.Did this incident happen as the IP claimed, or not? Who was telling the truth about it? What would it mean to reject PCA’s vehement denial of showing the IP a photo of her exposed breasts? What would it mean to reject the IP’s vehement insistence that PCA had showed him a photo of her exposed breasts?Did this key incident – or anything else relevant – happen in the interactions between PCA and the IP before 28 August 2021, so that it was not an inappropriate sexualised comment for the IP to message a colleague and say:
“I just woke up from a proper sex dream about you so if I look at you different today you know why”
. If nothing relevant had happened between PCA and the IP before 28 August 2021, did later events mean that it had not, after all, been an inappropriate sexualised comment to send that message? If so, what later events had that effect? And why did they have that effect? Does sexual appropriateness depend on future events?[54]These points and questions illustrate the insurmountable difficulty of upholding NCA in this case, in considering intrinsic content and parallel facts, but without hearing both sides of the evidence and without making findings of fact. It comes to this. The Panel recognised that it could not sustain a Galbraith limb 2 finding of NCA based solely on the intrinsic content of the messages themselves, read in the context of other relevant messages. The Panel recognised that it was necessary that the parallel facts, about the conduct between the IP and PCA, meant no “possible” view of the evidence taken at its “highest” could support the AA’s case that the WhatsApp messaging involved inappropriate sexualised comments. The Panel noted a number of relevant features of the evidence. But it did not identify concrete facts, as the only “possible” view of the evidence, taken at its “highest”. It was not in a position to make findings of fact. It could not fall into the trap of prematurely adopting a preferred view of part of the evidence. All of which reinforces the position that concrete fact-finding was needed, at the stage when the Panel had heard all the evidence, and was deciding on its preferred view of all the evidence.[55]I am, for these reasons, unable to accept Ms Graham’s submission that the Panel’s conclusion on NCA and Allegation 3 was within the range of reasonable decisions open to the decision-maker. I cannot accept that the Panel was entitled to reach their conclusion for the reasons they gave. On that basis, the AA succeeds on Allegation 3. There were other points raised, or arising, in relation to Allegation 3. For example, Ms White says the Panel was in substance placing an obligation on PCA to rebuff the IP; whereas Ms Graham says the Panel was careful to avoid this (§§1.28, 1.30). But nothing turns on who is right on this, or any other, point.

Conclusion

[56]In these circumstances and for these reasons, the claim fails on issues (1), (3) and (5); but it succeeds on issues (2), (4) and (6). The Panel fell into public law error in dismissing this case at half-time. The case should have proceeded to conventional completion, hearing the evidence adduced on behalf of the IP. That way, both sides of the story would have been heard and tested, before the Panel then addressed its preferred view of the evidence, with relevant findings of fact. I will quash the Panel’s findings of NCA. I will remit the case for consideration by a differently constituted panel. Having received this judgment in draft the AA and IP were agreed as to the appropriate order. No further matter was raised. The Order is:(1) The claim for judicial review is granted on Grounds 2, 4, and 6.(2) The decision of the Defendant, namely to dismiss the misconduct allegations against the Interested Party by finding no case to answer, is quashed.(3) The matter is remitted to a differently constituted Police Misconduct Panel for fresh consideration of the allegations in light of the Court’s judgment.(4) No order as to costs.

Cited in 3 later judgments