Williams, R (on the application of) v Police Appeals Tribunal & Ors [2016] EWHC 2708 (QB)

Case No CO/1774/2016[2016] EWHC 2708 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 02/11/2016
Before
MR JUSTICE HOLROYDE
Between
THE QUEEN on the application ofClaimantDARREN WILLIAMSClaimant
John Beggs QC & Elliot Gold (instructed by LHS Solicitors) for ClaimantAnne Studd QC (instructed by Mayor’s Office of Policing & Crime) for DefendantStephen Morley (instructed by Directorate of Legal Services Metropolitan Police) for Interested PartyHearing Hearing dates: 14 th October 2016
Judgment
[1]For some 27 years, the claimant Mr Williams served as a police officer with the Metropolitan Police Service (“MPS”). He attained the high rank of Detective Chief Superintendent, and in January 2012 was appointed Borough Commander of Merton. He was very highly regarded, and the many witnesses who have provided testimonials on his behalf have praised his industry, enthusiasm and effectiveness. But on 30th April 2015, at a hearing before a misconduct panel, he admitted 5 incidents of misconduct which the panel found to be gross misconduct. The panel concluded that the appropriate sanction was that he be dismissed without notice. On 15th February 2016 the Police Appeals Tribunal (“PAT”), to which he had appealed, concluded that the decision and sanction of the panel were not unreasonable, and so dismissed his appeal. Thus Mr Williams left the police force which he had loved, and he and his family suffered the humiliation and distress of being dismissed in such circumstances. He also lost valuable pension rights, a particularly heavy blow because he was very close to retirement at the time of his dismissal. On any view, it was a very sad end to a distinguished career of public service.[2]On Mr Williams’ behalf, Mr Beggs QC and Mr Gold argue that his career was ended by an unlawful decision. No challenge is made to the findings of gross misconduct made by the panel and the PAT, but it is submitted that the decision as to sanction was unlawful. In particular it is argued that both the panel and the PAT misapplied the decisions in Bolton v Law Society [1994] 1 WLR 512 (“Bolton”) and Salter v Chief Constable of Dorset [2012] EWCA Civ 1047 (“Salter”), failed to give proper weight to Mr Williams’ powerful personal mitigation and imposed a grossly disproportionate sanction. So these judicial review proceedings have been brought. They are resisted by Miss Studd QC on behalf of the PAT and by Mr Morley on behalf of the Commissioner of Police of the Metropolis, who has been joined to the proceedings as an Interested Party.[3]I refer to Bolton and Salter in more detail below. It is however convenient to note at this stage the essence of the issue between the parties in relation to those cases. Mr Beggs accepts that they establish a principle that in cases of gross misconduct by a police officer which involves dishonesty or lack of integrity, personal mitigation can only carry limited weight. But, he submits, that principle should be confined to cases involving dishonesty or lack of integrity, and does not extend to cases involving other forms of misconduct. Miss Studd and Mr Morley submit that the principle is of wider application, and that the maintenance of public confidence in, and respect for, the police service is so important that it will outweigh personal mitigation whatever the nature of the gross misconduct. The statutory framework and the Standards[4]I begin by outlining the material parts of the statutory framework which governs police disciplinary proceedings. Section 50 of the Police Act 1996 gives the Secretary of State for the Home Office the power to make regulations providing for, amongst other things, procedures for the taking of disciplinary proceedings in respect of the conduct, efficiency and effectiveness of members of police forces. Section 85 of the same Act enables the Secretary of State to make rules providing for appeals to a PAT. Pursuant to those powers, the Secretary of State has made the Police (Conduct) Regulations 2012 (“P(C)R”) and the Police Appeals Tribunal Rules 2012.[5]The Standards of Professional Behaviour which a police officer must observe (“the Standards”) are set out in Schedule 2 to the P(C)R. They are expressed, not in the form of prohibitions, but rather in the form of statements as to how a police officer is expected and required to behave:
“Honesty and Integrity Police officers are honest, act with integrity and do not compromise or abuse their position. Authority, Respect and Courtesy Police officers act with self-control and tolerance, treating members of the public and colleagues with respect and courtesy. Police officers do not abuse their powers or authority and respect the rights of all individuals. Equality and Diversity Police officers act with fairness and impartiality. They do not discriminate unlawfully or unfairly. Use of Force Police officers only use force to the extent that it is necessary, proportionate and reasonable in all the circumstances. Orders and Instructions Police officers only give and carry out lawful orders and instructions. Police officers abide by police regulations, force policies and lawful orders. Duties and Responsibilities Police officers are diligent in the exercise of their duties and responsibilities. Confidentiality Police officers treat information with respect and access or disclose it only in the proper course of police duties. Fitness for Duty Police officers when on duty or presenting themselves for duty are fit to carry out their responsibilities. Discreditable Conduct Police officers behave in a manner which does not discredit the police service or undermine public confidence in it, whether on or off duty. Police officers report any action taken against them for a criminal offence, any conditions imposed upon them by a court or the receipt of any penalty notice. Challenging and Reporting Improper Conduct Police officers report, challenge or take action against the conduct of colleagues which has fallen below the Standards of Professional Behaviour.”
Authority, Respect and Courtesy Equality and Diversity Use of Force Orders and Instructions Duties and Responsibilities Confidentiality Fitness for Duty Discreditable Conduct

Challenging and Reporting Improper Conduct

[6]By reg 3 of the P(C)R, “misconduct” is defined as “a breach of the Standards of Professional Behaviour”, and “gross misconduct” is defined as a breach of those Standards “so serious that dismissal would be justified”.[7]It is unnecessary for present purposes to set out the procedure by which an allegation reaches a misconduct hearing: there is no suggestion that the appropriate steps were not taken in this case. Procedure at the hearing is regulated by reg 33, which provides in part as follows:
“(13) The person or persons conducting the misconduct proceedings shall review the facts of the case and decide whether the conduct of the officer concerned amounts – … (b) … to misconduct, gross misconduct or neither. (14) The person or persons conducting the misconduct proceedings shall not find that the conduct of the officer concerned amounts to misconduct or gross misconduct unless – (a) he is or they are satisfied on the balance of probabilities that this is the case; or (b) the officer concerned admits it is the case.”
[8]When a finding is made against the officer concerned at a misconduct hearing, the disciplinary action which may be taken is set out in reg 35(3)(b):
“(i) management advice; (ii) written warning; (iii) final written warning; (iv) dismissal with notice; or (v) dismissal without notice.”
It is relevant to note that that list of possible sanctions does not include suspension from duty.[9]The effect of reg 35(5) is that in the event of a finding of misconduct but not gross misconduct, the officer may not be dismissed (with or without notice) unless he or she was already subject to a final written warning. That restriction does not apply where there is a finding of gross misconduct; and in such a case, if the panel decides that the disciplinary action shall be dismissal, then “the dismissal shall be without notice”: reg 35(10). Reg 35(11) provides that where the question of disciplinary action is being considered, the panel “shall have regard to the record of police service of the officer concerned as shown in his personal record”, may receive evidence from any witness whose evidence would in their opinion assist them in determining the question, and shall give the officer’s lawyer an opportunity to make oral or written representations before the question is determined.[10]In the circumstances of this case, rule 4 of the Police Appeals Tribunals Rules 2012 gives Mr Williams a right of appeal against the sanction imposed. His sole ground of appeal, pursuant to rule 4(4)(a), is that the disciplinary action imposed was unreasonable. The facts[11]As a young man, Mr Williams served for a time in the military police before joining the MPS. When his military service is taken into account, he was dismissed only some four months short of completing 30 years’ pensionable service. The period of 30 years is particularly significant in assessing his pension entitlement.[12]By the beginning of 2012, Mr Williams was serving as a Police Superintendent in Bexley. He was then transferred, at very short notice, to the Borough of Merton. He replaced a Borough Commander who had been abruptly removed from his post as a result of grave concerns about police performance in that Borough. He was promoted to Chief Superintendent and became Borough Commander. The evidence before the panel included a statement of the former Territorial Police Commander for South East London, who described the position of Borough Commander as “a very pressurised role”, with responsibilities for the reduction of crime, the increasing of detection rates, the building of effective relationships with the community and local businesses, and operating the police force within a reducing budget. Mr Beggs spoke, in my view with justification, of Mr Williams being “parachuted” into a most demanding role. The evidence before the Panel made clear that he devoted himself to that role with great vigour and commitment. He worked very long hours, and achieved considerable success.[13]That success was achieved despite medical problems which Mr Beggs understandably emphasises. In early 2010, Mr Williams consulted his doctor, complaining of depression. A note made at the time recorded that his mood was low, he was anxious, and his concentration was impaired. It was noted that he was in a stressful job, and put a lot of pressure on himself. He was prescribed medication. In November 2010 he again saw his doctor, complaining of anxiety. He was reviewed in January 2011, when he complained of feeling low, sleeping poorly, and becoming more anxious and angry. He was still receiving prescribed medication. In January 2013 he consulted his doctor because of palpitations and anxiety and was again prescribed appropriate medication. These were matters which Mr Williams was at the time reluctant to report to his seniors, feeling that it might be viewed as a sign of weakness. Mr Beggs submits that, with the benefit of hindsight, it can be seen that Mr Williams was suffering from significant problems before he took up his post as Borough Commander and therefore before and at the time of the matters of misconduct which led to his dismissal. The misconduct[14]That misconduct occurred on occasions between about Spring 2012 and December 2013. Five allegations were made against Mr Williams. They were, in summary, that he had misconducted himself in the following ways: i) In September 2012, in the staff office at Wimbledon Police Station and in the presence of another officer, he put his arms around Mrs J, a civilian employee with whom he worked closely, and put his tongue in her ear. ii) In early 2012 Mrs J was absent through ill health, and another civilian employee, Ms S, took her place for a time. It was alleged that Mr Williams – a) On a number of occasions, approached Ms S whilst she was sitting at a computer and stroked her neck; b) In early summer 2012 called Ms S into his office, told her she looked nice, pulled her closer and put his tongue in her ear; c) In about October or November 2012 he sat with Ms S at a police social function. He asked her a number of inappropriate personal questions, which embarrassed and upset her. About 5 days later he called her into his office to discuss this matter and said:
“we could not work together as we’d end up either killing each other or shagging each other on the desk”. iii) In the summer of 2012 Mr Williams was in the staff office with Ms E, who was not a police officer but was the head of an important public body in Merton which worked closely with the police. They were to be interviewed over the telephone by a local radio station. It was alleged that whilst waiting for the interviews to begin, Mr Williams said that women eating bananas only reminded him of one thing. Shortly thereafter, whilst Ms E was being interviewed, he used a banana to simulate oral sex in front of her. When the interview was concluded, he said to her “I bet that put you off”
. On a later date, in 2013, Mr Williams was speaking to Ms E at Merton Civic Centre about a plan to compile a video for a senior officer’s retirement. He told her that it would be funny if he could video her standing at a kitchen sink in her underwear. iv) Around mid-December 2013 he was in the staff office. A Chief Inspector, a Sergeant and a female Police Constable, PC W, were present. Mr Williams stood in a doorway, took a scarf belonging to PC W, and rubbed it around his groin area in a sexually suggestive manner. v) In 2013 Mr Williams received a donation towards a police open day, in the form of a £50 voucher for use at a stationers. Just over £30 was spent purchasing items for use at the open day. In November 2013 Mr Williams used the balance (£19.09) when purchasing printer cartridges for his own use. He had failed to make any record of this expenditure for his personal benefit in the “gifts and hospitality register” before he was suspended from duty some weeks later, on 7th January 2014.[15]Each of the first four of those allegations was said to relate to “unprofessional and inappropriate behaviour” which breached the Standards relating to “authority, respect and courtesy” and “discreditable conduct”. The fifth was initially said to relate to behaviour which breached the Standards relating to “honesty and integrity”, “orders and instructions” and “discreditable conduct”. It was however later amended to delete the reference to “honesty and integrity”, no doubt because of an acceptance of Mr Williams’ explanation that he had balanced the money spent by not claiming certain travel expenses to which he undoubtedly was entitled, and that he intended to record his use of the voucher in the appropriate register when he next updated his records. The disciplinary proceedings[16]On 17th March 2015 Mr Williams was served with the requisite notice informing him of those allegations against him. Initially he denied them. A hearing was arranged for 27th April 2015, and then adjourned to 30th April. On that date Allegation Five was amended in the way I have mentioned, and Mr Williams then admitted all the facts alleged and admitted that his conduct amounted to misconduct. The issues for the panel, therefore, were whether the conduct amounted to gross misconduct, and what should be the appropriate sanction.[17]The impact of that misconduct on those who were subjected to it was summarised to the panel by Mr Morley as follows:
“The ladies concerned fairly recognise that this was not sexual conduct inasmuch as sexual harassment or anything like that, but they do describe how they felt embarrassed and violated by this behaviour.”
[18]A substantial volume of evidence in the form of character testimonials was before the panel. On any view, it was an impressive body of evidence. Witnesses who are themselves serving or former police officers praised Mr Williams’ abilities as a senior officer. In addition, the panel read statements from a number of local politicians and community and religious leaders. Again with justification, Mr Beggs summarises the evidence as showing that Mr Williams displayed a rare combination of ability and effectiveness both in the police skills of detecting crime and in the softer skills of fostering good relationships between the police service and the community. Mr Beggs places particular emphasis on the statements of the present and former MP for Merton, and of prominent members of local government, who collectively described Mr Williams in glowing terms. Mr Beggs points out that their collective political experience of the local area covered a great many years, across the main political parties, and they were well-placed to compare and contrast Mr Williams’ performance with that of other senior police officers who had served in Merton. He relies heavily on this evidence as showing that Mr Williams’ continued service would be in the public interest.[19]The medical records which I have summarised above were also before the panel, together with psychological and psychiatric reports. The expert psychological evidence was to the effect that Mr Williams was, at the material time, suffering from post-traumatic stress disorder and “burn-out syndrome.” It was said that the symptoms of his PTSD were “dramatically enhanced due to the nature and pressure of his work role.” In one of the reports upon which Mr Beggs relied, a consultant psychiatrist said that such a PTSD - “…can often produce feelings of disassociation, where the sufferer can sometimes experience mild and sudden feelings of detachment from their immediate surroundings. Any accompanying behaviour whilst experiencing dissociation can often be perceived as inexplicable and/or out of character. Psychologically, such behaviour serves the function of managing the pressure experienced internally by the sufferer, albeit temporarily. Quite often such behaviour is an attempt to “lighten the mood”, even when said behaviour can at the same time be perceived by some onlookers as inappropriate.”[20]In the light of that evidence, and of the fact that Mr Williams’ behaviour appeared to consist more of wholly inappropriate attempts at humour than specifically sexual conduct, Mr Beggs submitted to the panel that the misconduct was wholly out of character for Mr Williams, and could be viewed as an inappropriate attempt by him to find an outlet for his stress.[21]The panel also had written evidence as to the financial consequences for Mr Williams of dismissal. The evidence was that failure to complete 30 years’ pensionable service, even by a small margin, would result in a double financial detriment: Mr Williams would first have to await his 50th birthday before being able to draw any pension or commute part of his pension to take a lump sum, and secondly he would be significantly restricted in the maximum amount which could be commuted to a lump sum. If Mr Williams wished to take the maximum available lump sum, the amount which he would be able to take if he completed 30 years’ pensionable service would be almost £190,000 more than the maximum sum which would be available to him after dismissal. Mr Beggs understandably places considerable emphasis on the scale of that financial loss. The panel’s decision[22]The panel announced their decisions at the conclusion of the hearing, and then set out their findings in writing on 5th May 2015. The material part of the oral announcement was in the following terms:
“We retired and we considered the evidence but in particular we gave very careful consideration to the submissions. Although we are aware of all the available outcomes, we were particularly directed to a final written warning, and dismissal was obviously within our minds. So most of our deliberations I can say were on those two outcomes. Having reconsidered many of the references that we were referred to in the submissions, and considered all matters, the decision of the panel is that DCS Williams will be dismissed from the MPS without notice.”
[23]In their written reasons, the panel referred to Home Office guidance which made clear that the rationale behind the Standards of Professional Behaviour is the maintenance of public confidence in the police service. They described the relevant conduct in the following terms:
“Allegations One to Four all concern highly inappropriate behaviour towards women, three of whom were junior staff members on DCS Williams’ borough and the fourth was employed by London Borough of Merton, a key partner for the borough. Several of his inappropriate acts took place in the presence of others, including junior staff. In addition to the feelings of the women concerned, some junior officers have described in their statements how they also felt shocked and uncomfortable. …”
[24]The panel went on to reject a submission by Mr Beggs that the incidents complained of fell into “two short bursts”: they considered that it was, rather, “a pattern of behaviour that took place over a period of 12-15 months”. They concluded that each of the first four allegations was in itself so serious as to amount to gross misconduct, and that the conduct described in the five allegations cumulatively amounted to gross misconduct, though Allegation Five on its own would only have amounted to misconduct.[25]In relation to sanction, the panel referred to Mr Williams’ long and exemplary service. They summarised the matters of mitigation put forward by Mr Beggs, including the medical and character evidence. They accepted the evidence that Mr Williams had performed the particularly stressful role of Borough Commander to an extremely high standard, that he was a good officer and a good man, and that he had “undoubtedly served the MPS and the community well to an extremely high standard for 27 years.” As to the medical evidence, they accepted that it is now apparent with hindsight that Mr Williams’ work as Borough Commander had aggravated the consequences of the depressive illness which had first been diagnosed in 2010. They were however unable to accept the submission that the misconduct was a consequence of Mr Williams’ medical condition, in particular because of their finding that allegations 1 to 4 represented a pattern of behaviour rather than a number of individual incidents. In the opinion of the panel, none of the incidents referred to in those allegations occurred in the course of or as a result of a “loss event” as described by one expert witness, or while Mr Williams was experiencing what another witness referred to as feelings of disassociation.[26]The panel noted that none of the women concerned suggested that Mr Williams conduct had sexual overtones. They accepted a submission that it was “puerile, stupid and deeply unworthy of any rank, and especially DCS Williams’ senior position”.[27]In a key passage, which Mr Beggs submits reveals an error of law in the panel’s approach, the panel said this:
“However, although this case is not concerned with operational dishonesty, the panel do think that the observations of the Court of Appeal in Salter v Ch Constable of Dorset [2012] are relevant. In that case Maurice Kay LJ at paragraph 23 pointed out that because the purpose of misconduct proceedings was the maintenance of public confidence in the police service, the potential of ‘personal mitigation’ is ‘necessarily limited’. The panel is required to balance DCS William’s exemplary and long service against the need to maintain public confidence in and the reputation of the MPS.”
[28]In carrying out that balancing exercise, the panel emphasised that Mr Williams had a particular responsibility to ensure that his conduct was exemplary and to set an example to his subordinate officers. He had instead set a very poor example, with much of his misconduct occurring in front of witnesses, and had placed his subordinates in “uncomfortable positions in considering whether to challenge the conduct of their Borough Commander”. That was compounded by the fact that the conduct towards Ms E “was directed not just to a civilian but to a senior member of a key partner organisation”. They concluded that the admitted misconduct “can only undermine public confidence and greatly discredits the MPS”.[29]In another passage, on which Mr Beggs places particular emphasis as showing a wrong approach which contributed to a disproportionate sanction, the panel recognised the impact of dismissal on Mr Williams’ pension but said:
“However, any such impact is the result of his own conduct. That it is potentially so significant is due to the high rank he has achieved, but that is a rank, as the panel have already stated, which demands that he conduct himself to the highest standards. Were the panel to regard the loss of pension as a reason for imposing a Final Written Warning rather than dismissal in this case, it would justifiably be regarded as treating a senior, long-serving officer more leniently than a junior officer who had acted in the same way, and this would clearly be wrong.”
[30]The panel gave Mr Williams credit for his admissions of misconduct, which had spared the witnesses the ordeal of giving live evidence, but concluded that his conduct was so serious, and had so discredited the MPS, that dismissal without notice was the only appropriate outcome.[31]Mr Williams appealed to the PAT against the decision as to outcome. The grounds of appeal were i) that the outcome of dismissal was unreasonable; ii) that the impact of the behaviour was limited, and no offence had been intended; iii) that insufficient weight had been given to the medical history; and iv) that there was no finding of dishonesty or lack of integrity, and therefore Mr William’s personal mitigation was highly relevant, but it had been accorded little or no weight; and the panel had wrongly interpreted Salter.[32]The appeal was heard on 28th January 2016. It was dismissed. Detailed written reasons for the PAT’s decision were promulgated on 15th February 2016.[33]The PAT’s decision The PAT reminded themselves of the approach they must take in deciding whether the decision of the panel was unreasonable. They referred in this regard to the judgment of Moses LJ in R (on the application of the Chief Constable of Durham) v Police Appeals Tribunal and Cooper [2012] EWHC 2733 (Admin). At paragraph 7, Moses LJ said that when a specialist appeal tribunal is considering whether a decision of a misconduct panel was unreasonable – “…the test imposed by the rules is not the Wednesbury test but is something less. That does not mean that the appeal tribunal is entitled to substitute its own view for that of the misconduct hearing panel, unless and until it has already reached the view, for example, that the finding was unreasonable. Nor, I should emphasise, is the Police Appeals Tribunal entitled, unless it has already found that the previous decision was unreasonable, to substitute its own approach. It is commonplace to observe that different and opposing conclusions can each be reasonable. The different views as to approach and as to the weight to be given to facts may all of them be reasonable, and different views may be taken as to the relevance of different sets of facts, all of which may be reasonable. The Police Appeals Tribunal is only allowed and permitted to substitute its own views once it has concluded either that the approach was unreasonable, or that the conclusions of fact were unreasonable.”[34]In the light of that guidance, the PAT reminded themselves (correctly) that their task was not to consider what sanction they would have imposed had they formed the panel, but rather to consider whether the panel’s decision was unreasonable.[35]The Chairman then quoted from the decision in Salter and other cases cited by Mr Beggs, and referred to Mr Beggs’ submission that any limitation upon the weight to be given to personal mitigation in cases of police impropriety related only to cases involving dishonesty or lack of integrity, and was not of general application. The PAT rejected that submission, considering that the principles set out by Burnett J and Maurice Kay LJ in Salter are of general application and can be applied, where appropriate, in all cases of police misconduct. Their reasons were encapsulated in the following passage of the written reasons:
“6.17 From all the material put before us, we draw the following conclusions. The wording and language of the judgments need to be seen in context. The words cited above are mainly concerned with dishonesty and lack of integrity. But the principles which underlie the judgments cannot have been intended to apply solely to cases involving dishonesty and integrity. 6.18 The language of the judgments [ie, in the cases referred to by Mr Beggs] is concerned with the maintenance of the reputation of and public confidence in the standing and integrity of ‘the profession’, be it of solicitors or the police service. These can be severely damaged by the improper conduct of an officer which may not be dishonest but may involve unlawful violence, misuse of confidential information, neglect of duty and undeclared business interests, to name some examples. 6.19 It follows that, in all cases, the maintenance of the reputation of the police force concerned and the police service generally will be uppermost in the minds of those tasked with disciplinary considerations … . 6.20 The language, indeed the very words, used by Burnett J are, in our view, clearly intended to be of general application across the full range of police misconduct.”
[36]The PAT therefore rejected the argument that the panel had misdirected themselves. Turning to the other grounds of appeal, the PAT summarised the medical evidence; observed that “the character evidence is extensive” (but said no more on that topic); and referred to the submissions made about the loss of pension consequent upon dismissal.[37]Applying the principles set out in Salter, the PAT concluded:
“… we consider the panel’s decision to dismiss DCS Williams entirely appropriate. From its measured and detailed findings, it is clear that the panel gave anxious and careful consideration to its task. Its decision cannot be impugned.”
The claim for judicial review[38]In this claim for judicial review, Mr Williams seeks an order quashing the decision of the PAT and substituting for it a final written warning. In the alternative, he invites the court to quash the decision to dismiss and remit the case for a rehearing before a differently-constituted PAT.[39]The grounds in support of the claim raise three issues: i) Whether the PAT misapplied Bolton and Salter, in particular by regarding mitigation as carrying little weight even in the context of misconduct which did not involve dishonesty; ii) Whether the PAT erred in its approach to and treatment of Mr Williams’ personal mitigation and its assessment of the public interest; iii) Whether the sanction of dismissal was grossly disproportionate, and therefore one which no reasonable appeal tribunal could have regarded as reasonable. The first issue: case law and submissions[40]I begin by citing the key passages in the cases to which I have been referred.[41]In Bolton the Court of Appeal was considering an appeal by the Law Society in relation to the sanction which had been imposed on a solicitor. The solicitor had paid out moneys prematurely in anticipation of formal completion of a conveyancing transaction, thereby taking “a deliberate risk”, and had been caught out because a purchaser reneged. The Solicitors Disciplinary Tribunal had found that the solicitor’s conduct had not been dishonest but had been “naïve and stupid”. The Tribunal had accepted that the solicitor was an honest man, but regarded his conduct as a very serious matter and “wholly unacceptable”. The Tribunal had nonetheless concluded that it was not necessary to impose the sanction of striking off, which would normally be merited by such conduct, and had instead ordered that the solicitor be suspended from practice for two years. On an appeal by the solicitor a Divisional Court had admitted fresh evidence as to the solicitor’s good character, and had concluded that the sanction of suspension – which in practical terms would have much the same effect as striking off - was disproportionate to the Tribunal’s findings. The Divisional Court accordingly quashed that penalty, and substituted for it a fine. The Law Society appealed. The Court of Appeal held that the Divisional Court had been wrong to substitute its own view on penalty for that of the professional disciplinary body.[42]I must quote a lengthy and oft-cited passage from the judgment of Sir Thomas Bingham MR, with whom Rose LJ and Waite LJ agreed. At pp77A-78E the Master of the Rolls said:
“It is required of lawyers practising in this country that they should discharge their professional duties with integrity, probity and complete trustworthiness. That requirement applies as much to barristers as it does to solicitors. If I make no further reference to barristers it is because this appeal concerns a solicitor, and where a client's moneys have been misappropriated the complaint is inevitably made against a solicitor, since solicitors receive and handle clients' moneys and barristers do not. Any solicitor who is shown to have discharged his professional duties with anything less than complete integrity, probity and trustworthiness must expect severe sanctions to be imposed upon him by the Solicitors Disciplinary Tribunal. Lapses from the required high standard may, of course, take different forms and be of varying degrees. The most serious involves proven dishonesty, whether or not leading to criminal proceedings and criminal penalties. In such cases the tribunal has almost invariably, no matter how strong the mitigation advanced for the solicitor, ordered that he be struck off the Roll of Solicitors. Only infrequently, particularly in recent years, has it been willing to order the restoration to the Roll of a solicitor against whom serious dishonesty had been established, even after a passage of years, and even where the solicitor had made every effort to re-establish himself and redeem his reputation. If a solicitor is not shown to have acted dishonestly, but is shown to have fallen below the required standards of integrity, probity and trustworthiness, his lapse is less serious but it remains very serious indeed in a member of a profession whose reputation depends upon trust. A striking off order will not necessarily follow in such a case, but it may well. The decision whether to strike off or to suspend will often involve a fine and difficult exercise of judgment, to be made by the tribunal as an informed and expert body on all the facts of the case. Only in a very unusual and venial case of this kind would the tribunal be likely to regard as appropriate any order less severe than one of suspension. It is important that there should be full understanding of the reasons why the tribunal makes orders which might otherwise seem harsh. There is, in some of these orders, a punitive element: a penalty may be visited on a solicitor who has fallen below the standards required of his profession in order to punish him for what he has done and to deter any other solicitor tempted to behave in the same way. Those are traditional objects of punishment. But often the order is not punitive in intention. Particularly is this so where a criminal penalty has been imposed and satisfied. The solicitor has paid his debt to society. There is no need, and it would be unjust, to punish him again. In most cases the order of the tribunal will be primarily directed to one or other or both of two other purposes. One is to be sure that the offender does not have the opportunity to repeat the offence. This purpose is achieved for a limited period by an order of suspension; plainly it is hoped that experience of suspension will make the offender meticulous in his future compliance with the required standards. The purpose is achieved for a longer period, and quite possibly indefinitely, by an order of striking off. The second purpose is the most fundamental of all: to maintain the reputation of the solicitors' profession as one in which every member, of whatever standing, may be trusted to the ends of the earth. To maintain this reputation and sustain public confidence in the integrity of the profession it is often necessary that those guilty of serious lapses are not only expelled but denied re-admission. If a member of the public sells his house, very often his largest asset, and entrusts the proceeds to his solicitor, pending re-investment in another house, he is ordinarily entitled to expect that the solicitor will be a person whose trustworthiness is not, and never has been, seriously in question. Otherwise, the whole profession, and the public as a whole, is injured. A profession's most valuable asset is its collective reputation and the confidence which that inspires. Because orders made by the tribunal are not primarily punitive, it follows that considerations which would ordinarily weigh in mitigation of punishment have less effect on the exercise of this jurisdiction than on the ordinary run of sentences imposed in criminal cases. It often happens that a solicitor appearing before the tribunal can adduce a wealth of glowing tributes from his professional brethren. He can often show that for him and his family the consequences of striking off or suspension would be little short of tragic. Often he will say, convincingly, that he has learned his lesson and will not offend again. On applying for restoration after striking off, all these points may be made, and the former solicitor may also be able to point to real efforts made to re-establish himself and redeem his reputation. All these matters are relevant and should be considered. But none of them touches the essential issue, which is the need to maintain among members of the public a well-founded confidence that any solicitor whom they instruct will be a person of unquestionable integrity, probity and trustworthiness. Thus it can never be an objection to an order of suspension in an appropriate case that the solicitor may be unable to re-establish his practice when the period of suspension is past. If that proves, or appears likely, to be so the consequence for the individual and his family may be deeply unfortunate and unintended. But it does not make suspension the wrong order if it is otherwise right. The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price.”
[43]In a later case concerning a solicitor, Salsbury v Law Society [2008] EWCA Civ 1285; [2009] 1 WLR 1286 the Court of Appeal qualified the Bolton principles in one respect. Jackson LJ said at paragraph 30:
“From this review of authority I conclude that the statements of principle set out by Sir Thomas Bingham MR in Bolton v Law Society [1994] 1 WLR 512 remain good law, subject to this qualification. In applying the Bolton principles the Solicitors Disciplinary Tribunal must also take into account the rights of the solicitor under articles 6 and 8 of the Convention. It is now an overstatement to say that “a very strong case” is required before the court will interfere with the sentence imposed by the Solicitors Disciplinary Tribunal. The correct analysis is that the Solicitors Disciplinary Tribunal comprises an expert and informed tribunal, which is particularly well placed in any case to assess what measures are required to deal with defaulting solicitors and to protect the public interest. Absent any error of law, the High Court must pay considerable respect to the sentencing decisions of the tribunal. Nevertheless if the High Court, despite paying such respect, is satisfied that the sentencing decision was clearly inappropriate, then the court will interfere.”
[44]In Solicitors Regulation Authority v Dennison [2011] EWHC 291 (Admin), the principles were summarised in this way by Lloyd Jones J (with whom Toulson LJ agreed) at paragraph 16:
“The classic statement of the approach of this court to an appeal against a penalty imposed by the solicitors' professional disciplinary body is contained in the judgment of Sir Thomas Bingham MR in Bolton v Law Society [1994] 1 WLR 512 at pp. 518A – 519E. That approach was modified to a limited extent by the Court of Appeal in Salsbury v Law Society [2008] EWCA Civ 1285; [2009] 1 WLR 1286 at paragraphs 30 and 37. For the purposes of this appeal, the following matters to be derived from these authorities are particularly significant. (1) The purposes of the imposition of sanctions on defaulting solicitors are three-fold: (a) In some cases there may be a punitive element in order to punish the solicitor, if he has not been dealt with by the courts, and to deter others. However, such orders are not primarily punitive and often the order is not punitive in intention. (b) The order may be intended to ensure that the solicitor does not have the opportunity to repeat the offence. An order of suspension or striking off may achieve that in varying degrees. (c) Most fundamentally, the order is intended to maintain public confidence in the solicitors' profession and its reputation. (2) Because such orders are not primarily punitive, personal mitigation is likely to be of less effect. (3) Nevertheless, the Tribunal must also take into account the rights of the solicitor under Articles 6 and 8 ECHR . (4) Cases of proven dishonesty are the most serious breaches of professional standards. In Bolton, Sir Thomas Bingham observed that in such cases the Tribunal has “almost invariably” ordered that the solicitor be struck off. In Salsbury the Court of Appeal accepted that there exists a “very small residual category where striking off is not appropriate”. (5) In cases where there has been proved a breach of the required standards of integrity, probity and trustworthiness, but falling short of dishonesty, the lapse remains very serious indeed. While a striking off order will not necessarily follow in such cases, it may well. Only in a very unusual and venial case would the Tribunal be likely to regard as appropriate any order less severe than one of suspension. (6) The Solicitors Disciplinary Tribunal is a specialist tribunal which is particularly well equipped to determine what sanctions are necessary in any given case in order to deal with defaulting solicitors, to protect the public and to protect the reputation of the profession. As a result a high degree of respect should normally be paid to its decisions. (7) However, the power of the High Court to interfere with a decision of the Tribunal on sanctions is not limited to cases where “a very strong case is shown”
. The court will intervene where there has been an error of law or where the sentencing decision was clearly inappropriate.”[45]That case was decided in February 2011. The proceedings in Salter came before Burnett J in November 2011: R on the application of the Chief Constable of Dorset v Police Appeals Tribunal and another [2011] EWHC 3366 (Admin). A police sergeant who was investigating a road traffic accident in which a police colleague had died became aware that one of two mobile phones recovered from the deceased’s car contained evidence of a relationship which the deceased had been conducting without the knowledge of his wife. Motivated by a desire to spare the deceased’s family further distress, he ordered a constable to destroy that phone. He admitted misconduct amounting to a breach of the Standard relating to “honesty and integrity”. A panel required him to resign. On appeal, the PAT assessed the officer’s personal mitigation as “exceptional” and decided that the appropriate sanction was a reduction in rank. The Chief Constable successfully sought judicial review of that decision.[46]After reviewing the cases cited to him, Burnett J concluded at paragraph 22 that “… the correct approach to the question of sanction on a finding of serious impropriety by a police officer in the course of his duty is reflected in the principles articulated in Bolton and Salsbury. The reasons which underpin the strict approach applied to solicitors and barristers apply with equal force to police officers. Honesty and integrity in the conduct of police officers in any investigation are fundamental to the proper workings of the criminal justice system. ”[47]Burnett J went on to say, at paragraph 24 – “It follows that when considering questions of sanction, the Panel, the Chief Constable on review and the Tribunal should have regard to the following factors: i) The imposition of sanctions following a finding of misconduct by a police officer may have three elements: a) There may be a punitive element designed to punish the police officer concerned and to deter others, particularly if he has not been prosecuted and convicted. But the imposition of sanctions is not primarily punitive, and may not be punitive at all. b) The sanctions imposed may be designed to ensure that the police officer does not have the opportunity to repeat his misconduct. c) However, the most important purpose of these sanctions, particularly in cases involving dishonesty or impropriety in connection with an investigation, is to maintain public confidence in the police service and to maintain its collective reputation. ii) One consequence of the fact that sanctions imposed in the disciplinary process are not primarily punitive is that personal mitigation is likely to have a limited impact on the outcome. iii) Cases of proven dishonesty and lack of integrity in an operational environment, of which the destruction, suppression or fabrication of evidence, or attempts to do so, would be clear examples, are the most serious breaches of the Code of Conduct. In such cases, the sanction of dismissal or requirement to resign would, to use the language of Sir Thomas Bingham in Bolton “almost invariably” be appropriate but there exists “a very small residual category” where a lesser sanction may be available, as Jackson LJ put it in Salsbury .”[48]Burnett J found that the Tribunal had erred in its approach to consideration of the appropriate outcome. He then went on to say, at paragraph 32:
“32 The language of the Tribunal suggests that it did not approach its decision making on the basis that a finding of operational dishonesty normally called for dismissal or a requirement to resign from the force. Furthermore, it is clear from the way in which it discussed the question of mitigation that it gave very great weight to personal mitigation in circumstances where it was not appropriate to do so, for the reasons given by Sir Thomas Bingham in Bolton. The strength of the personal mitigation available to Mr Salter was regarded by the Tribunal as of great significance. That is clear from paragraph 6.4 of its written decision, where it described his unblemished career and the character evidence as ‘exceptional’; and also from paragraph 6.9 where it indicated that he ‘should be entitled to feel that he can meaningfully call upon his record in times of trouble’. It follows that in my judgment the Tribunal misdirected itself in law in both these respects.”
[49]Burnett J concluded that the Tribunal would have decided upon dismissal if they had not fallen into those two errors. He accordingly quashed the decision of the Tribunal, and substituted a decision that the appeal to the Tribunal was dismissed. In the result, the police officer was again subject to the sanction initially imposed upon him, namely that he was required to resign. He appealed to the Court of Appeal: [2012] EWCA Civ 1047.[50]At paragraph 20 of his judgment in the Court of Appeal, Maurice Kay LJ (with whom Stanley Burnton and Gross LJJ agreed) doubted one aspect of Burnett J’s ruling and then continued:
“On the other hand, I consider that the judge was on firmer ground when concluding that the PAT did not proceed on the basis that personal mitigation carries less weight in this context than in some others. Such mitigation is of course relevant and it is clear that the PAT found “the character evidence, taken together with the … unblemished career in the Force” to be “exceptional”
. Perhaps there is contained within that finding an implicit acknowledgement that personal mitigation generally counts for less in cases such as this but the PAT considered that, so exceptional was the mitigation, that, uniquely, it tipped the balance. My uncertainty about whether this is the correct analysis of the PAT's legal approach to mitigation disposes me to the view that it will be more profitable to revisit the question of mitigation in its factual context when considering the judge's finding of irrationality.”[51]Later in the judgment, when dealing with the argument as to irrationality, Maurice Kay LJ said at paragraph 23:
“23 As to personal mitigation, just as an unexpectedly errant solicitor can usually refer to an unblemished past and the esteem of his colleagues, so will a police officer often be able so to do. However, because of the importance of public confidence, the potential of such mitigation is necessarily limited. The PAT found the letter from the Coroner to be “a particularly powerful piece of mitigation”
. I do not consider that it was justified in treating it as such. On any reasonable view, it misunderstood or misstated the seriousness of the offence, although I do not question the sincerity of the Coroner's opinion. Like Burnett J, I cannot see this as “a finely balanced case” or one of the “very small residual category” in which operational dishonesty or impropriety need not result in dismissal or a requirement to resign. Burnett J derived assistance from the judgment of Underhill J in R (Bolt) v Chief Constable of Merseyside Police [2007] EWHC 2607 (QB) . There, Underhill J said (at paragraph 28):
“While I would certainly accept that not every untruth or half truth told by a police officer, however trivial and whatever the circumstances, would necessarily constitute misconduct justifying dismissal, the misconduct found by the Panel … constituted deliberate dishonesty in an operational context. As para 1 of the Code rightly emphasises, integrity is a fundamental requirement for a police officer. I should, frankly, be dismayed to think that such conduct was not of a kind which was normally thought to merit dismissal.”
Whilst I acknowledge that the misconduct of Mr Salter was in some ways less serious than that in Bolt, the comments are apt. It may not be profitable to speculate about a case which might fall within the “very small residual category” …”[52]I was referred to many other cases in which similar issues have arisen. I do not think it necessary to mention all of them. They are application of the principles in Bolton and Salter to specific circumstances. None was directly concerned with the issue, which arises here, of whether personal mitigation carries diminished weight in cases of police or professional misconduct which does not involve dishonesty or lack of integrity.[53]Many of the cases to which I was referred relate to members of the legal and medical professions rather than to police officers, but all counsel agree that similar considerations apply whether the court is concerned with a police officer or a member of one of those professions. At para 21 of his judgment in Salter, Maurice Kay LJ rejected a submission that Burnett J had been wrong to “read across” from the solicitors’ disciplinary cases. He said – “Although police officers do not have a fiduciary client relationship with individual members of the public or the public at large, they do carry out vital public functions in which it is imperative that the public have confidence in them. It is also obvious that the operational dishonesty or impropriety of a single officer tarnishes the reputation of his Force and undermines public confidence in it. In these respects, the similarities between solicitors and police officers justify the analogy provided that, ultimately, the decision-maker, be it the PAT or a judge of the Administrative Court, appreciates at all times that the index case falls to be assessed in the context of policing.” It follows that, provided the context of the particular proceedings is always kept well in mind, the principles relating to police disciplinary proceedings are the same as those relating to disciplinary proceedings before other professional bodies.[54]Mr Beggs accepts that where misconduct by a police officer or professional involves dishonesty or lack of integrity, personal mitigation carries less weight than it would in the context of criminal proceedings. That principle is clearly stated in Bolton, and has been applied to police disciplinary proceedings in Salter. For convenience I shall refer to it, as counsel have done, as “the Salter principle”.[55]Mr Beggs’ submission, in essence, is that the cases in which the Salter principle has been applied have all been cases involving dishonesty or lack of integrity, and that the principle should be confined to such cases. He argues that dishonesty is always the most serious form of misconduct (and for that reason, any allegation of dishonesty must be distinctly pleaded) and that reduced weight should be given to personal mitigation in such cases because of “the degree of the rupture of public trust”. Absent dishonesty, however, the public can have greater confidence that a defaulting police officer’s conduct will not be repeated, and therefore more weight can be given to personal mitigation. Mr Beggs further submits that, if the PAT’s decision in this case is correct, personal mitigation will always have such limited value that there will be no scope for any outcome other than dismissal in any case of gross misconduct.[56]In their submissions opposing the first ground of appeal, both Miss Studd and Mr Morley argue that the principles stated in Bolton and Salter are of general application to all cases of police and professional gross misconduct. They point out that in Bolton itself, there was an express finding that the solicitor had not acted dishonestly, and yet his mitigation could only carry limited weight. They submit that in the passages which I have cited above, and in the judgments in other cases to which I was referred, the courts have enunciated considerations which are relevant to all professional disciplinary proceedings. They argue that there is no reason of principle which requires those statements to be confined only to cases involving either dishonesty or lack of integrity. On the contrary, other forms of misconduct may equally well harm public confidence and trust in the police service. Moreover, they submit, common sense dictates that personal mitigation must carry less weight before a police or professional disciplinary tribunal than it would before a criminal court, because those serving in the police or as members of the legal or medical profession will generally be able to adduce evidence of their good character and performance of their duties. Issues 2 and 3: case law and submissions[57]Mr Beggs realistically acknowledges that there is a substantial degree of overlap between his second and third grounds of appeal, and it is therefore convenient to consider them both together. He submits that the panel and the PAT, having misapplied Salter, failed properly to balance Mr Williams’ personal mitigation against the public interest in dismissing an officer found guilty of gross misconduct, and so failed to take all relevant matters into consideration when reaching their decision as to outcome. He argues that both the panel and the PAT did little more than acknowledge the existence of the character testimonials and medical evidence, but either discounted them altogether (in the mistaken belief that Salter required them to do so), or failed properly to assess the weight – in his submission, considerable – which should be accorded to that body of evidence. He particularly criticises the failure of the panel and the PAT, when considering the public interest, to take into account the powerful character evidence to the effect that Mr Williams had excelled in serving the community. He argues that the statements of the local politicians should be regarded as expressing the public interest in allowing a good officer to remain in post, and submits that in the particular circumstances of this case the need to maintain public confidence and respect would be fulfilled by imposing the sanction of a final written warning. He submits that in all the circumstances, if proper weight were given to Mr Williams’ very long record of exemplary service, the panel and the PAT should have concluded that a final written warning would have been the appropriate sanction. As it was, he argues, the decision as to outcome imposed a sanction which was wholly disproportionate in its severity, and in its financial consequences, to the gravity of the misconduct. He submits that in the passage cited at paragraph 29 above, the panel were wrong in their approach to the loss of pension rights: far from being a reason for imposing a much more punitive sanction on Mr Williams than on a junior officer, he argues, the fact that Mr Williams had served so long, and had attained such high rank, should have been powerful factors militating against the sanction of dismissal.[58]Mr Beggs places particular reliance on the decision of Holman J in R (on the application of James) v Nursing and Midwifery Council [2008] EWHC 365 (Admin). A nurse had pleaded guilty to an offence contrary to the Proceeds of Crime Act 2002 and had received a suspended sentence of imprisonment. A Conduct and Competence Committee determined that the nurse had failed to uphold the reputation of the nursing profession, and that her fitness to practise was impaired. She was able to advance strong personal mitigation. The Committee nonetheless concluded that her name must be removed from the register. She appealed against that decision to the High Court. Holman J found that the Committee had not given adequate reasons for their decision, and that they had not demonstrated that they had properly evaluated the nurse’s qualities and capabilities because they appeared to have felt they had no alternative but to strike off. Holman J therefore had “… a very serious concern that by defects in, or omissions from, their reasoning process they came to an outcome which is more severe than it should have been.” He therefore remitted the matter for rehearing before a differently-constituted Committee. Although that was a decision of the High Court made in a statutory appeal, rather than in an application for judicial review, Mr Beggs relies on it as supporting his submission that in this case I should regard the panel’s and the PAT’s reasons for dismissal as inadequate.[59]Mr Beggs also relies on the decision of Collins J in another statutory appeal in a medical context, Giele v General Medical Council [2005] EWHC 2143 (Admin); [2006] 1 WLR 942. After a contested hearing lasting no less than 29 days, a Fitness to Practise Panel had found a surgeon guilty of an allegation of serious professional misconduct in relation to a sexual relationship with a patient. The surgeon was able to adduce very strong evidence of his expertise in his specialist field of practice, and evidence from patients who expressed dismay at the prospect of losing his services. The Panel nonetheless imposed the sanction of erasure from the register. Collins J at paragraphs 29 and 30 said this:
“29. I do not doubt that the maintenance of public confidence in the profession must outweigh the interests of the individual doctor. But that confidence will surely be maintained by imposing such sanction as is in all the circumstances appropriate. Thus in considering the maintenance of confidence, the existence of a public interest in not ending the career of a competent doctor will play a part. Furthermore, the fact that many patients and colleagues have, in the knowledge of the misconduct found, clearly indicated their views that erasure was not needed is a matter which can carry some weight in deciding how confidence can properly be maintained.… 30. [Counsel] submitted that it would be wrong to allow a practitioner who was more skilled and whose loss would accordingly be a greater blow to avoid a sanction which would otherwise be appropriate and would have been imposed on the less skilled. So long as the public interest in retaining the services of a competent practitioner is a relevant consideration, it is inevitable that the weight to be attached to this aspect will to some extent depend on the abilities of the practitioner in question. It must be obvious that misconduct which is so serious that nothing less than erasure would be considered appropriate cannot attract a lesser sanction simply because the practitioner is particularly skilful. But if erasure is not necessarily required, the skills of the practitioner are a relevant factor.”
Collins J went on to conclude that, as the Panel had approached the issue of sanction in the wrong way, he was entitled to form his own view. He concluded that suspension for a period of 12 months would be an appropriate sanction. Mr Beggs relies on that decision in support of his submission that the Panel in this case failed to give sufficient weight to the evidence which confirmed Mr Williams’ admirable work with the community which he served.[60]In opposing these second and third grounds of appeal, Miss Studd and Mr Morley submit that both the panel and the PAT clearly did have regard to all relevant considerations, and were entitled to conclude that the sanction of dismissal was necessary in the circumstances. They summarise the key features which had to be weighed against the long service and exemplary record as being the need for an officer of Mr Williams’ rank to set an example to his subordinates; the enhanced responsibility to maintain standards which went with his high rank; the difficult position in which he placed his subordinates, who were required by the Standards to report his behaviour; the presence of witnesses; and the fact that one allegation related to misconduct directed at a person outside the MPS. They point out that, whilst Mr Williams’ behaviour did not involve dishonesty, it did involve wholly inappropriate behaviour towards subordinates, in the presence of other officers, and was therefore the very opposite of the example which Mr Williams should have set as a senior officer. They emphasise that Ms E was a member of an outside organisation, with the result that Mr Williams’ conduct damaged the standing of the MPS in the eyes of an important community body. As to the loss of pension rights, they submit that the panel and the PAT adopted the correct approach: an officer with many years’ service, and of high rank, obviously has more to lose than a colleague who is junior in rank and years of service, but that is not a reason for imposing a lesser sanction where dismissal is appropriate.[61]All three counsel addressed me cogently and in detail. I have taken into account all of their submissions. I do not think it necessary to add to the above brief summary by dealing with each of the many points which was made. The issues and arguments are, to my mind, clear. Discussion[62]It is common ground that in this claim for judicial review I must, in effect, carry out a review of a review, and must therefore consider not just the decision of the PAT but also the decision of the panel. The question for the PAT was not what sanction they would have imposed had they formed the panel, but whether the panel’s decision as to outcome was unreasonable. The question for me is whether the decision of the PAT was vitiated by error of law, or was so far outside the range of decisions legitimately open to the PAT as to be unlawful. As Burnett J said in Salter, at paragraph 19 - “Proceedings in the Administrative Court seeking to challenge the decision of a Police Appeals Tribunal do not arise by way of appeal, but by way of a claim for judicial review. In those circumstances, a claimant in judicial review proceedings must establish a public law error before the decision of that Tribunal could be quashed.”[63]In relation to the first ground of appeal, I am unable to accept the submission that the Salter principle should be confined to cases of dishonesty or lack of integrity. Although many cases have been cited to me, none contains any statement expressly requiring the application of the Salter principle to be limited in that way. Mr Beggs argues that equally, there is none which contains any explicit statement to the effect that the Salter principle does apply to cases involving other forms of misconduct. That, in my view, is readily understandable: the cases to which I have been referred have in fact involved allegations amounting to dishonesty or lack of integrity, and one therefore would not expect to see statements of principle made in terms wider than were necessary to the decisions in the particular cases. More importantly, it seems to me that the terms in which the Salter principle has been expressed in the passages which I have quoted above, far from expressing or suggesting the restriction for which Mr Beggs contends, tend to support the view that the Salter principle applies to all forms of gross misconduct by a police officer. Thus in Salter itself, Burnett J at paragraph 24(i)(c) of his judgment spoke in general terms of “the most important purpose of these sanctions, particularly [my emphasis] in cases involving dishonesty or impropriety in connection with an investigation”: he did not limit the purpose to such cases. Similarly, Maurice Kay LJ at paragraph 21 of his judgment on appeal spoke of “operational dishonesty or impropriety”: that seems to me to be a reference to impropriety in various forms, not (as Mr Beggs submitted) impropriety only when it involves a lack of integrity. At paragraph 23, he spoke of “an unexpectedly errant solicitor”, not of a dishonest solicitor. Lloyd Jones J, at paragraph 16 of his judgment in Dennison, spoke of the purposes of the imposition of sanctions “on defaulting solicitors”, not of the imposition of sanctions on dishonest solicitors.[64]Mr Beggs has not been able to persuade me that any consideration of principle dictates the limitation for which he contends. As is clear from Bolton, Salter and many other cases, there are two reasons why personal mitigation can carry only limited weight when a disciplinary body is considering the appropriate sanction in a case involving dishonesty or lack of integrity. The first, and fundamental, reason is that the purpose of the sanction is not primarily punitive, and often not punitive at all: the purpose is to maintain public confidence in and respect for the police service or the profession concerned. Personal mitigation which may provide a ground for reducing the punishment which would otherwise be imposed for a criminal offence cannot therefore have the same effect in disciplinary proceedings which have a different, and wholly or largely non-punitive, purpose. The second is that in criminal proceedings, a defendant’s personal mitigation may enable him to distinguish himself from others convicted of similar offences, and so to demonstrate that the normal punishment for his offence would be unduly severe in his case. In contrast, a defaulting police officer or professional person will usually be able to adduce evidence of good character and to point to very severe consequences if dismissed or excluded from his or her profession. But those two reasons do not apply only to cases of misconduct involving dishonesty or lack of integrity. Each of them is also applicable to cases involving other forms of misconduct. Public confidence in or respect for the police service may be seriously harmed by many forms of misconduct, not all of which involve dishonesty or lack of integrity. That indeed is implicit in one of the Standards which Mr Williams was found to have breached, namely that relating to “discreditable conduct”.[65]In my view, to limit the Salter principle in the way for which Mr Beggs contends would lead to surprising and unsatisfactory results. Suppose, by way of hypothetical illustration, that two police officers are both tasked with interviewing, and liaising with, persons reporting sexual abuse. Both officers have records of good service over a number of years, and both can adduce impressive character evidence. Suppose then that a misconduct panel has to consider the appropriate sanctions for two different forms of gross misconduct. One officer has repeatedly been rude, bullying and dismissive, and has caused great distress to the complainants, some of whom have as a result felt unable to make witness statements or give evidence. He has been found to have breached the Standards relating to “authority, respect and courtesy” and “discreditable conduct”. The other has dealt sensitively and efficiently with the complainants, but has falsified records in order to make a dishonest claim for overtime payment. He has been found to have breached the Standard relating to “honesty and integrity”. On Mr Beggs’ submission, the panel would be required to give full weight to the personal mitigation in the first case but only limited weight in the second. Such an approach would in my view lead to the panel wrongly failing to reflect the importance of the public interest in ensuring that public confidence and respect is not harmed by conduct such as that of the first officer. I do not say that the outcome would necessarily be the same for each of the two hypothetical officers; that would depend on a proper consideration of all the circumstances. But the stark difference of approach which Mr Beggs’ submissions would suggest would in my view be contrary to principle and authority.[66]In my judgment, 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, the public could have no confidence in a police force which allowed a convicted fraudster to continue in service. 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 of the 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. Nothing in the Salter principle suggests it must be ignored. On the contrary, it must always be taken into account. I therefore reject the submission that the effect of the Salter principle is that dismissal will invariably be the sanction whenever gross misconduct is proved. But where the gross misconduct threatens the maintenance 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 than 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 also be necessary where there 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 the maintenance of respect and confidence in the police and consequentially less weight being given to personal mitigation.[68]A police misconduct panel considering what sanction to impose following a finding of gross misconduct must therefore always have in mind the importance of the public interest in maintaining public confidence in and respect for the police service. The necessary consequence is that the personal mitigation available to the defaulting police officer, however impressive, cannot carry the same weight as it might do in a different context.[69]It follows that the panel and the PAT were in my judgment correct in law in declining to confine the Salter principle to cases of dishonesty or lack of integrity, and in declining to exclude the application of that principle in this case. The reasoning of the PAT in paragraphs 6.17 to 6.20 of their decision, quoted at paragraph 35 above, is in my view correct. The first ground of appeal accordingly fails.[70]I can deal with the second and third grounds of appeal quite shortly, important though they are. I do so in the context of the panel being entitled, and correct, to give only limited weight to Mr Williams’ mitigation. The essence of the submission is that the panel went further than the Salter principle requires, and either excluded altogether (because they wrongly thought they were required so to do), or at best gave only minimal weight to, the powerful mitigation advanced on Mr Williams’ behalf. I cannot accept that submission. It is in my view clear, both from the terms in which the decision was announced orally at the conclusion of the hearing and from the detailed written reasons, that the panel took all relevant matters into account, and carefully considered whether it would be possible to deal with the case by way of final written warning rather than by dismissal. They were entitled to conclude that the misconduct was not a consequence of Mr Williams’ medical condition, and that conclusion is not (and could not be) challenged. They were also entitled to conclude that, if the need to maintain public confidence in and respect for the police required dismissal, the financial consequences to Mr Williams – heavy though they undoubtedly are – could not be a reason for imposing a lesser sanction. As Mr Morley submitted, the nature of the misconduct here was such that Mr Williams’ rank was an aggravating factor, not a reason for mitigating the sanction. The panel did take into account, in Mr Williams’ favour, his admissions of misconduct, notwithstanding that they came late in the proceedings. There is no reason to doubt that they accepted as genuine his remorse and acute embarrassment in relation to his behaviour.[71]I accept that the panel could have set out in greater detail than they did the reasons why the importance of maintaining public confidence and respect made dismissal necessary. I do not however accept that the terms in which the panel expressed their findings reveal any error or unfairness in their approach. This is not a case in which it is impossible to understand why they reached the conclusion they did, or in which it could be said that their reasoning was so scant as to be unsustainable. They clearly identified the personal mitigation which was available to Mr Williams, but they also clearly identified the factors which made his gross misconduct so serious. It is apparent that they did balance Mr Williams’ long and exemplary service against the need to maintain public confidence and respect, and in doing so they properly took into account the significance of such misconduct on the part of a senior officer. High rank and long service carry with them responsibilities, which the panel clearly expressed; and the maintenance of public confidence and respect in the police service may mean that a high-ranking officer must suffer a harder fall than would a junior officer in similar circumstances.[72]The opinions of the local politicians and community leaders were important evidence in Mr Williams’ favour, but I do not accept Mr Beggs’ submission that it should be inferred from their evidence that public confidence and respect would be maintained if Mr Williams were not dismissed. It is not clear whether all the witnesses concerned were aware of precisely what misconduct was alleged and admitted; but even if they were, they were not the only representatives of the public whose evidence featured in the case (Ms E being an obvious example of a member of the public who was shocked by Mr Williams’ conduct). In any event, it was for the panel to determine the likely effect on public confidence and respect, and on the standing of the police service, of imposing a lesser sanction than dismissal on a senior officer who had been found guilty of gross misconduct in four separate respects, any one of which would individually have made it necessary to consider dismissal.[73]As to the loss of pension rights consequent upon dismissal, I do not accept the submission that the panel adopted a wrong approach. The panel were clearly fully aware of that heavy consequence of dismissal, and took it into account in reaching their decision. Although again they might have expressed themselves somewhat more fully, it seems to me that in the passage which I have quoted at paragraph 29 above the panel expressed their conclusion that dismissal was nonetheless necessary. They did not ignore the loss of pension rights: they concluded that dismissal was necessary, and that it would therefore be wrong to impose something less than the necessary sanction on the ground that the necessary sanction would have severe financial consequences. That, as it seems to me, is the meaning of their reference to “treating a senior officer more leniently than a junior officer who had acted in the same way”.[74]In those circumstances the PAT were entitled to conclude that the decision of the panel was not unreasonable. In their case also, I am unable to accept the submission – forcefully and persuasively though it was made - that there was a failure properly to take into account the matters in Mr Williams’ favour. The PAT’s written decision makes their reasoning clear. I have to pay appropriate respect to their experience and expertise in balancing the public interest and the individual circumstances of a defaulting police officer. There is no basis on which it could be said that their decision was clearly wrong.[75]In relation to both decisions, it must be remembered that the finding of gross misconduct was by definition a finding that the misconduct was so serious that dismissal would be justified. It must also be remembered that the panel found that each of allegations 1 to 4 was in itself so serious as to amount to gross misconduct, quite apart from the collective assessment of the five allegations as a whole. Again, there is (and could be) no challenge to that finding. In those circumstances, dismissal was in my view clearly within the range of sanctions which was reasonably open to the panel. Despite the force of Mr Beggs’ submissions, I am unable to conclude that the PAT was not entitled so to find. Conclusion[76]It follows that I can see no error of law in the decision of the PAT which is under challenge. As I said at the beginning of this judgment, Mr Williams’ career came to a very sad end; but in my judgment, it did not end because of an unlawful decision. There is, therefore, no ground on which this court could quash the PAT’s decision. The claim for judicial review accordingly fails and is dismissed. Addendum[77]The parties, having received a copy of this judgment in draft, have helpfully made written submissions as to costs. On behalf of Mr Williams, it is accepted that he must pay most of the PAT’s costs, but it is submitted that an exception should be made in relation to the costs occasioned by the adjournment of the hearing listed for 11th October 2016. It is further submitted that Mr Williams should not be required to pay any of the Interested Party’s costs. I am able to determine those issues on the basis of the written submissions, and no hearing is necessary.[78]The hearing of this claim was originally listed for 11th October. The parties prepared for, and attended, that hearing. Unfortunately, it was not able to proceed at the scheduled time. I was asked to take the case in mid-morning, and heard submissions as to whether it would be better to start the case at 2pm (which would inevitably result in the case being part-heard at the end of the day, with consequential difficulties for the attendance of counsel) or to adjourn until 14th October when the full day would be available. I directed that the latter course be adopted. It was neither necessary nor appropriate for me to hear any detailed submissions as to why the hearing had not been able to start at the scheduled time, and I make no finding in that regard.[79]It is submitted on behalf of Mr Williams that the need for that adjournment arose squarely from an error on the part of Her Majesty’s Courts and Tribunals Service (“HMCTS”), and that I should exercise the court’s powers under section 51 of the Senior Courts Act 1981 to order HMCTS to pay the costs occasioned by that error. The difficulty with that submission is that CPR 46.2 provides in part as follows:
“(1) Where the court is considering whether to exercise its power under section 51 of the Senior Courts Act 1981 … to make a costs order … against a person who is not a party to the proceedings, that person must – (a) Be added as a party to the proceedings for the purposes of costs only; and (b) Be given a reasonable opportunity to attend a hearing at which the court will consider the matter further.” (a) Be added as a party to the proceedings for the purposes of costs only; and (b) Be given a reasonable opportunity to attend a hearing at which the court will consider the matter further.”
[80]There are exceptions to that rule, one of which is that it does not apply where the court is considering whether to make a wasted costs order; but such an order is defined by CPR 46.8 as an order against a legal representative, which HMCTS is not. It follows that before an order against HMCTS could be contemplated, Mr Williams would have to apply for that Service to be joined as a party and given an opportunity to attend a hearing. No such application has been made.[81]I understand however that there is an alternative – and it may well be much more convenient - procedure available to Mr Williams: his solicitors may make a formal complaint to HMCTS, which has the power to make a payment of costs in appropriate circumstances. If dissatisfied with the decision of HMCTS, Mr Williams may make a complaint to the Ombudsman.[82]In those circumstances, I accept the submission on behalf of the PAT that the appropriate order is for Mr Williams to pay the PAT’s costs and to take such steps as he may be advised to recover part of those costs from HMCTS.[83]On behalf of the Interested Party, it is accepted that the general rule is that an unsuccessful Claimant should not be required to pay two sets of costs. I am satisfied that it was necessary for the Interested Party to file his Acknowledgement of Service and I accept the submission that the costs of doing so should be paid by Mr Williams. I am not however persuaded that there was any further need for separate representation of the Interested Party. The information provided to me enables me to make the summary assessment which I think is proper in respect of the Acknowledgement of Service.[84]I shall order accordingly.