R (on the Application of the Chief Constable of Dyfed Powys Police) v Police Misconduct Tribunal
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicklin |
| Judgment Date | 29 July 2020 |
| Neutral Citation | [2020] EWHC 2032 (Admin) |
| Docket Number | Case No: CO/2372/2019 |
| Date | 29 July 2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2020] EWHC 2032 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
CARDIFF DISTRICT REGISTRY
THE HONOURABLE Mr Justice Nicklin
Case No: CO/2372/2019
and
Elliot Gold (instructed by Force Solicitor, Dyfed Powys Police) for the Claimant
Mark Ley-Morgan (instructed by Slater & Gordon LLP) for the Interested Party
The Defendant was not represented
Hearing date: 1 May 2020
Approved Judgment
This claim for judicial review challenges the lawfulness of decisions of a Police Misconduct Tribunal (“the Tribunal”), which considered charges of misconduct against Police Constable Simon England (“PC England”) at a hearing between 1–5 April 2019. The Tribunal's panel was: Peter Griffiths QC, the legally qualified chair, Superintendent Robyn Mason, and an independent panel member, John Cross.
As a result of a complaint about PC England made by PC A, the Chief Constable of Dyfed Powys launched a misconduct investigation pursuant to Police (Conduct) Regulations 2012 (“PCR”). PC England was interviewed, on 31 May 2018, as part of the investigation of the alleged misconduct (“the Interview”).
As a result of the investigation, PC England was alleged to have been guilty of the following acts of misconduct:
(1) On 2 December 2017, whilst on duty, he told a male and female colleague, “ I always make time for wanking” (“Incident (1)”).
(2) On 4 December 2017, whilst on duty, he said to a male colleague, referring to a woman standing in the street, “ I'd fuck her and suck the juice out of her pussy” (“Incident (2)”).
(3) On 11 December 2017, whilst on duty at a hospital, he had said to a female colleague, PC “A”, that he had put tissues in his pocket otherwise the nurses would think that he was “ having a wank”; put his hand down the back of her shirt without permission or invitation whilst stating, “ you never know, I'd probably be able to get it down your neck”; told her “ I like it with one glove”; and suggested that they should go running together but that “ there is only one shower at the ‘nick’ so that could be interesting” (“Incident (3)”).
(4) On 22 December 2017, whilst at a Christmas party, he put his hands on PC A's exposed back and rubbed it without permission or invitation (“Incident (4)”).
(5) On 26 April 2018, whilst on restricted duties, he made contact with PC A despite expressly being told not to do so (“Incident (5)”).
In the Regulation 21 Notice, which effectively contained the disciplinary charges against PC England, the Chief Constable of Dyfed Powys Police (“the Appropriate Authority”) contended that his actions (identified in Incidents (1) to (5)):
“… breached the following Standards of Professional Behaviour
(a) Authority, respect and courtesy. Your actions described above… amounted to:
(i) Unwanted conduct or unwanted conduct of a sexual nature;
(ii) Conduct which had the purpose or effect of violating the dignity or creating an intimidating hostile, degrading, humiliating or offensive environment for the officers you were with and for officers in general;
(iii) A failure to act with self-control and respect towards your colleagues;
(b) Orders and instructions in that you made contact with [PC A] as stated [Incident (5) above] when it was not required or necessary for you personally to do so; and/or
(c) Discreditable conduct in respect of the above…
As a result of that stated herein, if proved, your conduct singularly or in its totality amounts to gross misconduct.”
As the Tribunal was advised on the first day of the hearing, the misconduct charges had adopted the precise definition of sexual harassment provided in s.26 Equality Act 2010 (the relevant terms of the section are set out in [55] below). In summary, the charges against PC England principally included a charge of sexual harassment of PC A. Although both the incident at the hospital and at the Christmas party involved touching by PC England, the alleged misconduct was not alleged to amount to sexual assault.
PC England had previously received a warning from Thames Valley Police, on 22 December 2010, for inappropriate behaviour towards a Police Community Support Officer (“PCSO”) on 16 December 2010. PC England had:
(1) asked the PCSO, “ what turned her on” and “ what got her going”;
(2) talked about his own sexual activities with a partner who had “ squirted on his face” and asked whether the PCSO “ squirted”;
(3) asked whether the PCSO got erect nipples when she was “ turned on”;
(4) put his arm around the PSCO's seat in the car in which they were travelling and asked where she had “ done it”; and
(5) suggested that, if she wanted, she could pull over into a lay by and said to the PCSO that she looked like she gave “ good blow jobs”. When the PCSO replied “ how the hell would you know that?”, PC England replied that the PCSO looked like the type of person that would “ give a bloke a good time and would want to please them”.
In the Regulation 21 Notice, the Appropriate Authority gave notice that it intended to rely on this previous behaviour at the misconduct hearing as similar fact evidence or evidence of propensity.
PC England served his Regulation 22 response to the misconduct charges on 21 January 2019 (“the Regulation 22 Response”). He denied that his behaviour (admitted or proved) should be categorised as misconduct and should not be considered as a breach of the standards of professional behaviour. He relied upon an expert report from Dr Ronald Lyle, a consultant clinical psychologist, dated 7 January 2019 and served with his Regulations 22 Response. In his report, Dr Lyle diagnosed PC England as suffering from depression and having high functioning Asperger's Syndrome. He noted:
“Mr England finds social interactions, and especially small talk, really hard and he tries to be ‘liked’ or ‘funny’ with work colleagues as a way of ‘fitting in’… He finds it difficult to judge what it is appropriate to say and only realises afterwards that he may have said something out of order. As he put it, ‘I haven't got much of a filter’. He accepts now that he has misjudged what he thought was only ‘flirty banter’ and that he had perhaps ‘overshared’ with colleagues.”
In the Regulation 22 Response, PC England stated that he accepted the vast majority of the factual assertions made against him in the Regulation 21 Notice. On his behalf it was submitted:
“He now recognises that his words and actions were inappropriate and caused anxiety and concern to his colleagues. He did not realise this at the time. The [Tribunal] is invited to carefully consider the Dr Lyle report and to conclude that this is an Occupational Health/Disability issue rather than a misconduct issue…”
The Appropriate Authority obtained its own expert opinion. Dr Ruth Bagshaw, a consultant clinical and forensic psychologist, carried out an assessment with PC England on 23 March 2019 and prepared a report dated 26 March 2019. She disagreed with Dr Lyle's diagnosis of autistic spectrum disorder and concluded:
“In my opinion, PC England is likely to be experiencing an acute exacerbation of a depressive disorder with obsessive compulsive features against a background of maladaptive personality traits. It is possible that he could meet the threshold for a diagnosis of personality disorder, however, taking account of his tendency to exaggerate clinical symptoms, I am inclined to suggest his personality traits are below diagnostic threshold, and in any case, a formulation based description of his difficulties is probably more useful than a diagnostic label.
In my opinion, PC England's difficulties related to depression and possibly personality disorder, could constitute a disability in terms of the Equality Act 2010 (‘the Act’) in that they reflect a mental impairment. Given his intellectual ability and normal day to day functioning, he could reasonably be expected to modify behavioural tendencies related to his mental health problems by using coping or avoidance strategies to reduce their effects on his normal day to day activities.
A tendency to sexual abuse of other persons is specifically excluded from the definition of disability in the Act, regardless of whether it arises from a mental impairment that itself would be considered a disability.
Thus, in my opinion, PC England's tendency to consciously take higher than normal risks on his own initiative, such as making risqué or sexually inappropriate remarks and overtures in the work place… would not under the Act, be regarded as having a substantial adverse effect on normal day to day activities to the extent that it would be considered a disability.”
The Proceedings at the Tribunal
Mr Gold, who represented the Claimant in these judicial review proceedings, was the presenting Counsel for the Appropriate Authority before the Tribunal. PC England was represented by Counsel, Catherine Richards.
The expert evidence was in a state of flux when the proceedings commenced. The two experts had provided reports, but there were substantial areas of disagreement between them. On the first day of the hearing, a joint report, dated 29 March 2019, had been provided to the Tribunal. It identified the areas of agreement between the experts, but there remained areas upon which they were not agreed, including the nature of the mental impairment presented by PC England (whether a personality trait or disorder or high functioning Asperger's syndrome), its severity and impact. The Tribunal had anticipated hearing...
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