Commissioner of Police of the Metropolis v PAT & Gutty
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Heather Williams |
| Judgment Date | 26 July 2022 |
| Neutral Citation | [2022] EWHC 1950 (Admin) |
| Docket Number | Case No: CO/2766/2021 |
| Court | Queen's Bench Division (Administrative Court) |
| Year | 2022 |
[2022] EWHC 1950 (Admin)
THE HONOURABLE Mrs Justice Heather Williams DBE
Case No: CO/2766/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Anne Studd QC and Daniel Hobbs (instructed by Directorate of Legal Services) for the Claimant
Colin Banham (instructed by JMW Solicitors LLP) for the First Interested Party
Hearing dates: 5 – 6 July 2022
Approved Judgment
Introduction
The Claimant applies for a judicial review of the 23 May 2021 decision of the Police Appeals Tribunal (“PAT”) to impose a Final Written Warning (“FWW”) on Detective Constable Asweina Gutty. The Commissioner submits that the only reasonable outcome was her dismissal without notice. Permission to apply for judicial review was granted by David Pittaway QC, sitting as a Deputy High Court Judge, on 2 November 2021. Pursuant to Hill J's order of 21 March 2022, the case was heard together with Claim CO/3164/2021 which raises similar, albeit not identical, grounds of challenge; and which is the subject of a separate judgment handed down at the same time as this judgment. As is usual, the PAT has adopted a neutral position and has played no active part in these proceedings. The First Interested Party, DC Gutty, has supported the PAT's decision and resisted the Claimant's grounds. The Second Interested Party, the Director General of the Independent Officer for Police Conduct, has taken no active part.
On 18 July 2018 DC Gutty pleaded guilty to an offence of assault by beating contrary to section 39, Criminal Justice Act 1988. The offence had been committed against her then partner on 27 May 2018. She subsequently appeared before a special case hearing (“SCH”) in respect of a single allegation that she had breached the Standards of Professional Behaviour in relation to Discreditable Conduct as a result of this. DC Gutty admitted the charge and accepted that it amounted to gross misconduct. The decision to dismiss her was successfully appealed to the PAT, who ordered a rehearing on the basis of medical evidence relating to DC Gutty. The second SCH was presided over by Assistant Commander Louise Rolfe who also determined that the officer should be dismissed without notice.
DC Gutty appealed the sanction imposed and her appeal was heard by the PAT on 17 May 2021. The PAT allowed the appeal and then re-took the decision on sanction. The Claimant does not challenge the overturning of AC Rolfe's decision but contends that the PAT's re-determination of the appropriate sanction was legally flawed.
The Commissioner advances four grounds of challenge, namely that the PAT erred:
i) In failing to adopt the structured approach to its decision-making required by law (“Ground One”);
ii) In not adequately addressing the seriousness of the fact of DC Gutty's conviction and its effect on public confidence and respect for the police service (“Ground Two”);
iii) In regarding the medical evidence as pivotal and determinative of the public interest (“Ground Three”); and
iv) By taking into account an irrelevant consideration under the Equality Act 2020 in respect of disability discrimination (“Ground Four”).
The Commissioner submits that in light of these errors the outcome determined by the PAT was outside the range of reasonable responses open to it and perverse and that, accordingly, this Court should quash the PAT's decision and substitute it with the sanction of dismissal without notice.
DC Gutty contends that the PAT did not err in law in imposing a FWW or, if there was any error, the same decision would have been reached in any event if it had applied the correct approach. In the further alternative, she argues that the case should be remitted to the PAT for re-consideration, as dismissal without notice is not the only reasonable option available.
The legal framework
Special case hearings
The Police (Conduct) Regulations 2012/2632 (“the 2012 Regs”), made pursuant to powers conferred by sections 50, 51 and 84 Police Act 1996, applied to the disciplinary processes in this case. Gross misconduct is defined as a breach of the Standards of Professional Behaviour “so serious that dismissal would be justified” (regulation 3(1)). The Standards of Professional Behaviour are contained in Schedule 2 and include that: “Police officers behave in a manner which does not discredit the police service or undermine public confidence in it, whether on or off duty”.
Where an investigator believes that the appropriate authority (“AA”) would be likely to determine that the special conditions are satisfied, they may submit a statement to that effect (regulation 18(3)). The Claimant is the AA for present purposes. On receipt of the investigator's statement, the AA determines whether the special conditions are satisfied (regulation 41(1)). The “special conditions” are that: (i) there is sufficient evidence, in the form of written statements or other documents, without the need for further evidence, whether written or oral, to establish on the balance of probabilities that the conduct of the officer concerned constitutes gross misconduct; and (ii) it is in the public interest for the officer concerned to cease to be a police officer without delay (regulation 3(2)). If it determines that these conditions are satisfied, the AA may certify it as a special case and refer it to a SCH (regulation 41(4)). Pursuant to regulation 43, the officer is provided with the AA's certificate issued under regulation 41(4) and giving written notice of this and describing the conduct that is the subject matter of the case and how it is alleged to amount to gross misconduct. Regulation 45 makes provision for the officer's response, including indicating whether he or she accepts that the conduct amounts to gross misconduct and providing any written submissions by way of mitigation.
Where gross misconduct is found / admitted, the options in terms of sanction at the SCH are to impose a FWW, extend an existing FWW or dismiss without notice (regulation 55(1)). The decision maker is required to have regard to the record of police service of the officer concerned ( regulation 55(10)).
The Police Appeal Tribunal
Section 85 Police Act 1996 imposes a duty on the Secretary of State to “by rules make provision specifying the cases in which a member of a police force or a special constable, or a former member of a police force or former special constable” may appeal to a PAT. Appeals are brought under the Police Appeals Tribunal Rules 2012/2630. Rule 4 sets out the circumstances in which an appeal to the PAT may be brought. These include an appeal by an officer against whom a finding of gross misconduct has been made at a SCH (rule 4(2)(c)). The appeal may be against that finding and/or against the disciplinary action imposed (rule 4(1)). Amongst other grounds, an appeal may be brought on the basis that the disciplinary action imposed was unreasonable (rule 4(4)(a)). Rule 22(1) states that the PAT shall determine whether the grounds of appeal have been made out. The Chair is required to prepare a written statement of the PAT's determination and the reasons for its decision (rule 22(5)).
It is well established that the test for “unreasonableness” under rule 4(4)(a) is something less than the Wednesbury test: the authorities were summarised by Freedman J in R (The Chief Constable of Northumbria Police) v The Police Appeals Tribunal & Barratt [2019] EWHC 3352 (Admin) (“ Barratt”) at para 16(c). Once it has concluded that the unreasonableness test is met, the PAT is entitled to substitute its own view, addressing the matter on a “clean slate” basis and dealing with the appellant in any way in which they could have been dealt with by the misconduct panel or SCH: R (Chief Constable of Cleveland Constabulary v Police Appeal Tribunals & Rukin [2017] EWHC 1286 (Admin) at para 53.
Determining sanction
The structured approach
In Fuglers LLP & Ors v Solicitors Regulatory Authority [2014] EWHC 179 (Admin) (“ Fuglers”) Popplewell J (as he then was) explained that there were three stages to be adopted when determining sanction. The case concerned the Solicitors Disciplinary Tribunal (“SDT”) but the approach has since been applied to the police. The stages were: (1) assess the seriousness of the misconduct; (2) keep in mind the purpose for which sanctions are imposed by the tribunal; and (3) choose the sanction which most appropriately fulfils that purpose for the seriousness of the conduct in question. Mr Justice Popplewell went on to explain the process as follows:
“29. In assessing seriousness the most important factors will be (1) culpability for the misconduct in question and (2) the harm caused by the misconduct. Such harm is not measured wholly, or even primarily, by financial loss caused to any individual or entity. A factor of the greatest importance is the impact of the misconduct upon the standing and reputation of the profession as a whole. Moreover the seriousness of the harm may lie in the risk of harm to which the misconduct gives rise, whether or not as things turn out the risk eventuates. The assessment of seriousness will be informed by (3) aggravating features (e.g. previous disciplinary matters) and (4) mitigating factors (e.g. admission at an early stage or making good any loss)…
30. At the second stage, the tribunal must have in mind that by far the most important purpose of imposing disciplinary sanctions is addressed to other members of the profession, the reputation of the profession as a whole, and the general public who use the services of...
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