R Shane Wheeler v Police Appeals Tribunal
| Jurisdiction | England & Wales |
| Judge | Mr Justice Julian Knowles |
| Judgment Date | 21 January 2022 |
| Neutral Citation | [2022] EWHC 117 (Admin) |
| Docket Number | Case No: CO/4195/2020 |
| Year | 2022 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 117 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Julian Knowles
Case No: CO/4195/2020
and
Eva Niculiu (instructed by Haighs Law Firm) for the Claimant
Simon Walsh (instructed by Force Solicitor) for the Interested Party
The Defendant did not appear and was not represented
Hearing dates: 11–12 October 2021
Approved Judgment
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Introduction
The Claimant, Shane Wheeler, was formerly a police constable with the Cumbria Constabulary. This is an application by him for judicial review of the decision of the Defendant, the Police Appeals Tribunal (PAT), on 25 August 2020 to dismiss his appeal against the disciplinary finding of gross misconduct and his dismissal without notice by a Police Misconduct Panel (the Panel) on 16 October 2019.
Permission was granted by His Honour Judge Saffman sitting as a judge of the High Court on 6 April 2021.
The Panel was constituted under the Police (Conduct) Regulations 2012 (SI 2012/2632). These have since been replaced by the Police (Conduct) Regulations 2020 (SI 2020/4) but were current at the time. In this judgment, unless otherwise indicated, references are to the 2012 Regulations.
Factual background
The Claimant was a police constable with Cumbria Constabulary for 29 years between 1990 and 2019. Before that he was a civilian scenes of crimes officer with the same force for three years between 1987 and 1990.
It is only fair to emphasise that until his dismissal, the Claimant had a long and unblemished record as a police officer. He was regarded as someone who would go a long way to help others, as the Panel recognised in its reasons at [71].
The Defendant is the body responsible under the Police Act 1996 for determining appeals against decisions of Police Misconduct Panels. The rules applicable at the time (again, they have since been replaced) were the Police (Appeals) Tribunal Rules 2012 (SI 2012/2630) (the 2012 Appeal Rules).
The Interested Party is the Chief Constable of Cumbria Constabulary, who was the ‘appropriate authority’ under reg 3(1)(b) of the 2012 Regulations, ie, the person who brought the disciplinary proceedings against the Claimant. Once the Chief Constable determined that there was a case to answer against the Claimant for gross misconduct, she referred them to a Misconduct Panel under reg 19(5). She was thus the other party in the misconduct hearing, and thereafter the Respondent to the Claimant's appeal to the PAT. In fact, in this case, pursuant to reg 3(5)(a), the Chief Constable delegated the role of appropriate authority under the Regulations to Deputy Chief Constable Mark Webster, at least for the purposes of making representations on outcome under reg 35(11)(c)(ii). I will return to this later.
The gross misconduct allegations
The Claimant is an avid and life-long rugby fan who has had a long-standing involvement with the game in various capacities, including playing for the Cumbria Constabulary team, and then acting as one of its officers. Before he was unfortunately injured and had to retire from playing, he played at quite a high level.
The gross misconduct charges against him arose out of his buying tickets for, and selling tickets to, colleagues and others for international rugby matches which he was able to obtain through his contacts in the game. The tickets were often highly sought-after and in short supply. In simple terms, he acted as a ticket-broker, taking money from customers and then sourcing tickets for them. He only ever charged face-value for the tickets. This was something which he had done for many years before the allegations against him were made.
His buying and selling tickets was lawful and, for a long time, took place without complaint. However, from about 2015 or 2016 onwards, his activities proved to be less satisfactory and started to give rise to complaints. A number of people either paid the Claimant for tickets but received neither the tickets nor refunds (or the refunds were paid many months later), or they sold him tickets but were not paid in full for them. A number of people received cheques from the Claimant drawn on his personal account but when they were presented for payment they ‘bounced’.
The notice served on the Claimant under reg 21 of the 2012 Regulations alleged the following matters as amounting to gross misconduct:
“1) For many years and whilst employed by Cumbria Constabulary you have helped fellow police officers and members of the public obtain tickets to professional rugby matches. You have done so lawfully and without particular complaint. You have not sought to profit personally from these activities.
2) Your ticket activities have taken two principal forms:
1) You sell tickets to those who wish to attend rugby matches. When these people pay you for their tickets you are under an obligation to either provide those tickets or, if you cannot do so, to refund the monies paid to you. If the tickets you provide are not as good or as expensive as those you offered, you are under an obligation to refund any difference in value (or to refund the whole of the monies paid upon request);
2) You buy tickets from others for onward sale to the people referred to above. Once these tickets have been provided to you, you are under an obligation to pay the sellers for them
3) Recently, however, your activities have proved less satisfactory and less successful than in the past. Numerous people [footnote 1 stated; Full details of these people and the relevant transactions appear In the [investigating officer's] report and accompanying documentation that will be given to you with this Notice and do not need to be set out Individually here] have either paid you for tickets but received neither tickets nor refunds or sold you tickets but not been paid in full for them. Numerous other people have received cheques from you but when presented these cheques have not been honored.
4) Many of those you have done business with have experienced serious difficulty in obtaining from you money that was due to them. You still owe money to customers.
5) You have used your status as a police officer to encourage people both to obtain tickets through you and to allow you greater latitude in repayment timescales than they would to other suppliers. You have done so:
a) implicitly, by telling your customers (or allowing them to become aware of the fact) that you are a serving police officer;
b) implicitly, by using Cumbria Constabulary email addresses and email systems to conduct transactions with your customers;
c) explicitly, by sending a picture of your Cumbria Constabulary crested business card bearing your printed name;
d) explicitly, by sending a picture of you in uniform, flanked by other police officers, with an accompanying text that read: “I'm sure if you google me my ugly mug will pop up on the Cumbria Constabulary website somewhere. I'm the one in the middle. I'm a big rugby fan and 100% genuine — I won't let you down”.
6) By acting as aforesaid, you have failed to act with the honesty and integrity required of all police officers at all times by the Standards of Professional Behaviour. The standard of honesty and integrity is explained in Schedule 2 of the Police (Conduct) Regulations, 2012 as being one that requires officers not to ‘compromise or abuse their position’. Acting with honesty and integrity is further explained in the Code of Ethics (2014) as an officer using his or her “position, police identification (…) for policing purposes only and not to gain a personal advantage that could give the impression that [he or she] is abusing [that] position’~
7) By acting as aforesaid, you have al so behaved in a manner that discredits the police service as a whole and undermines public confidence in it. This is amply evidenced by the number and nature of complaints received about your ticket operations.
8) Following complaints to him from other police officers, your area commander Supt Rob O'Connor told you in a meeting on 14 February 2017 that you should immediately “stop brokering ticket sales” for both colleagues and friends. Despite these strong words of advice, you did not stop your ticket activities. You thereby defied a lawful order from a superior officer.
9) You have recently been providing your services as a chauffeur to Sir Norman Stoller in return for a loan from him. Carrying out additional work such as this constitutes a ‘secondary business’ under the relevant Cumbria Constabulary “Business Interest and Additional Occupations” policy. Carrying on such a secondary business also requires you to notify the Constabulary of it and to obtain approval for it. You did neither.
10) In acting as described in paragraphs 8 and 9 above, you have breached the Standard of Professional Behaviour that requires all police officers to abide by force policies and lawful orders.
11) Your breaches of the Standards of Professional Behaviour are so serious that your dismissal from Cumbria Constabulary would be justified and they have, as such, been categorised as amounting to gross misconduct (as that term is defined in Reg 4 of the Police (Conduct) Regulations, 2012).”
In fact, that should have been a reference to reg 3(1), which defines gross misconduct as, ‘a breach of the Standards of Professional Behaviour so serious that dismissal would be justified’. Those Standards are contained in Sch 2 to the 2012 Regulations. They include requiring police officers: to act with integrity...
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