Paddy Tomkins, Chief Constable, Lthian And Borders Police+lothian And Borders Police Board+alistair Gemmell V. Alistair Gemmell
| Jurisdiction | Scotland |
| Judge | Lord Reed |
| Neutral Citation | [2005] CSOH 32 |
| Court | Court of Session |
| Published date | 01 March 2005 |
| Year | 2005 |
| Date | 01 March 2005 |
| Docket Number | P159/04 |
| OUTER HOUSE, COURT OF SESSION [2005] CSOH 32 | |
| P159/04
| OPINION OF LORD REED in the Petition of PADDY TOMKINS, CHIEF CONSTABLE, LOTHIAN AND BORDERS POLICE Petitioner; against LOTHIAN AND BORDERS POLICE BOARD First Respondent; and POLICE APPEALS TRIBUNAL Second Respondent; and ALISTAIR GEMMELL Third Respondent: ________________ |
Petitioner: Swanson, Solicitor Advocate; Maclay Murray & Spens
First and Second Respondents: Moynihan, Q.C.; Edinburgh City Council
Third Respondent: Hodge, Q.C., Skinner; Hughes Dowdall
1 March 2005
Introduction
[1]In 1996 Alistair Gemmell (the third respondent) began service as a police constable with Lothian and Borders Police. Following certain incidents and investigations, he was prosecuted on two charges of theft. On 11 February 2003 he was acquitted of those charges. Misconduct proceedings were then taken against him, in accordance with the Police (Conduct) (Scotland) Regulations 1996, SI 1996 No 1642 ("the 1996 Regulations").
[2]On 19 March 2003 a misconduct form was served on the third respondent in accordance with regulation 6 of the 1996 Regulations, requiring him to appear before a misconduct hearing on 18 June 2003. The misconduct form contained particulars of five charges of misconduct, as defined in Schedule 1 to the 1996 Regulations:
"(1)On 1st September, 1999, at the Bank of Scotland, Regent Centre, Blackness Road, Linlithgow or elsewhere, it is alleged that P.C. 4563-F Alistair Gemmell received an apparently counterfeit £10.00 note numbered BG 524804 and between 1st September, 1999 and 11th December, 2000 he neglected his duty to properly and timeously process the said note.
CONTRARY to Schedule 1, Paragraph 4.
(2)On 1st September, 1999, at the Bank of Scotland, Regent Centre, Blackness Road, Linlithgow or elsewhere, it is alleged that P.C. 4563-F Alistair Gemmell received an apparently counterfeit £10.00 note numbered BG 620829 and between 1st September, 1999 and 11th December, 2000 he neglected his duty to properly and timeously process the said note.
CONTRARY to Schedule 1, Paragraph 4.
(3)On or about 6th June 2000, at Linlithgow Police Station or elsewhere, it is alleged that P.C. 4563-F Alistair Gemmell received an apparently counterfeit £5.00 note and between 6th June, 2000 and 12th December, 2000 he neglected his duty to properly and timeously process the said note.
CONTRARY to Schedule 1, Paragraph 4.
(4)On 23rd October, 2000, at Linlithgow Police Station, it is alleged that P.C. 4563-F Alistair Gemmell took possession of £20.00 money and that he neglected his duty to properly process said money as found property, the neglect being such as to render himself and his colleagues open to allegations of theft and thus it is alleged his actions constituted conduct likely to bring discredit on the police force or service.
CONTRARY to Schedule 1, Paragraph 1.
(5)On 10th December, 2000, at Linlithgow Police Station, it is alleged that P.C. 4563-F Alistair Gemmell took possession of £10.00 money and that he neglected his duty to properly process said money as found property, the neglect being such as to render himself and his colleagues open to allegations of theft, and thus it is alleged his actions constituted conduct likely to bring discredit on the police force or service.
CONTRARY to Schedule 1, Paragraph 1."
Charges 4 and 5 concerned the matters which had previously been the subject of the criminal proceedings. The third respondent gave notice that he denied all the charges.
[3]The misconduct hearing took place on 18 June 2003 before Assistant Chief Constable Malcolm Dickson, assisted by two other senior officers acting as assessors. The third respondent, who was legally represented, admitted all five charges of misconduct. ACC Dickson gave his decision at the conclusion of the hearing, and confirmed it in writing on 23 June 2003. In respect of charges 1, 2 and 3 the third respondent was reprimanded. In relation to those charges, ACC Dickson stated:
"No 1 and 2 are, as far as we're concerned today, the same event in that the two apparently counterfeit £10 notes were received by him at the same time and dealt with the same way. His initial actions were understandable and only incorrect in minor detail which he had the opportunity to make good. The neglect came in the enormous delay after he acknowledged receipt of the memo from the Custodier and he even updated the Crime Report Form to say that the notes had been returned to the bank. Only after his next 'lapses' (as in 3 and 4) did he return the notes some fourteen weeks [sic: the period was fourteen months] after he had originally received them, without acknowledging that he had taken so long.
This instance of neglect, as outlined in 1 and 2 of the Statement of Reasons amounts to conduct which falls below the standards expected of a police officer and raises a question over the credibility and honesty of PC Gemmell. However, the degree of gravity is reflected in the fact that I have decided to reprimand Constable Gemmell on both these first two allegations.
The gravity of miscounduct in the admitted offence outlined in No. 3 in the Statement of Reasons is more serious because PC Gemmell did not carry out any of the expected procedures (which we know he knew of) and threw suspicion on colleagues, obstructed any timely investigation of a possible crime in another Force and denied that Force and the police service in general the criminal intelligence value of this recovery. Only after this more serious lapse was discovered, some six months later, and PC Gemmell was appropriately counselled did he deal with the other matter properly. However, as with the first two allegations, there is absolutely no evidence to suggest that there was any criminal reason for this neglect.
In view of all this I have decided that PC Gemmell's conduct fell below the standards expected of a police officer and so reprimand him on this allegation also."
In respect of charges 4 and 5, the third respondent was required to resign from the force by 20 June 2003, as an alternative to dismissal. In relation to those charges, ACC Dickson stated:
"With regard to No. 4, PC Gemmell has today for the first time admitted this discreditable conduct and confirms that he must have been the officer who received the found £20 note from Miss Watt, and this is strongly corroborated by fresh, post-trial evidence. Miss Watt's concern over the way in which PC Gemmell had received this found property was so great that she sought out another officer to establish what had happened to the money. That fact, and the fact that no-one here today, other perhaps than PC Gemmell, can tell Miss Watt what happened to that £20 note which she submitted as her civic duty, means that at the very least one honest member of the public and respected community figure must have a very low opinion of the conduct of Constable Gemmell which will reflect poorly on his colleagues and the whole Force. Not only that but PC Gemmell has been shown to lack the integrity necessary to deal properly, responsibly and timeously with found cash and has breached the trust of a member of the public.
Before giving my reasons for disposal on this fourth allegation, I want to go on to consider allegation 5.
As a consequence of suspicion falling on a particular police officer the Force took the serious and carefully considered decision to mount an integrity test. The behaviour of PC Gemmell when receiving this note from the undercover officer known as 'Lisa' was perhaps not as insistent as his representative has implied. And the collective experience of I, and the two officers sitting with me today, is that the proffering of found cash by a member of the public who then declines personal details is not as unusual as he implies. This misconduct is admitted in full by the officer and no reasonable explanation is offered for his failure to deal with the found property in the correct manner - as proved by the fact that the very note was discovered folded within a small bag within a large bag amongst other monies in his personal locked drawer in the station. This despite the fact that only a few days previously he had been counselled about his handling of counterfeit money and asked if he required any extra training or guidance in this regard. The response then had been that the £5 counterfeit note lapse had been an isolated incident - again despite himself knowing that, at the time, he still had two £10 counterfeit notes which should have been returned to the Bank of Scotland at least a year previously and the fact that some two months earlier he had received a £20 note which likewise had not been properly dealt with.
I conclude that, in this instance, PC Gemmell was shown to have breached the trust of someone he believed to be a member of the public, he lacked the integrity expected of every police officer and he has brought discredit to the Force through the knowledge within the organisation of his misconduct, and the wider knowledge of the local community through the publicity of a criminal trial.
Neglect of duty in itself as in the first three allegations is a serious concern about the standards and ability of a constable but this can be remedied through training or mentoring.
The allegations at 4 and 5 not only bring discredit on the organisation and cause distress to colleagues but they call into such doubt the integrity and honesty of this officer and are of such a grave nature that they cannot be dealt with in the same way.
I return to deal with the disposals in respect of allegations 4 and 5. If I had been dealing with allegation 4 in isolation, I would certainly have been considering either a heavy fine or requirement to resign/dismissal.
In considering allegation 5 in isolation my options would have been the same.
In taking my knowledge of both acts of misconduct together, and with knowledge of the neglect of duty in offences in 1-3, I have decided that I must dispose...
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