The Chief Constable of Thames Valley Police v A Police Misconduct Panel
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jay |
| Judgment Date | 27 October 2023 |
| Neutral Citation | [2023] EWHC 2693 (KB) |
| Court | King's Bench Division |
| Docket Number | Case No: CO/4057/2022 |
and
[2023] EWHC 2693 (KB)
Mr Justice Jay
Case No: CO/4057/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Alan Payne KC and Barnabas Branston (instructed by Thames Valley Police Legal Services) for the Claimant
Susannah Stevens (instructed by Direct Access) for the Interested Party
Hearing date: 17 th October 2023
Approved Judgment
This judgment was handed down remotely at 10:30am on 27 th October 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
INTRODUCTION
On 17 th August 2022 a Police Misconduct Panel (“the panel”) determined that PC Hafeez Javeed was guilty of gross misconduct. He received a final written warning extended for five years. The Chief Constable of Thames Valley Police (“Thames Valley Police”) contends in these judicial review proceedings that the panel's decision was unlawful on public law grounds and that PC Javeed should have been dismissed. In the alternative, Thames Valley Police contends that the panel's public law errors are such that the case should be remitted to them for reconsideration.
ESSENTIAL FACTUAL BACKGROUND
In August 2020 PC Javeed, who was aged 25 at the time, was employed as a police response officer at Maidenhead Police Station. He had had just over two-years' service. Miss A, a detention officer and junior to him, had been employed in that capacity for about 12 months. On PC Javeed's account, which Miss A did not accept, they had encountered each other on a number of occasions before the events forming the subject-matter of the misconduct proceedings and there had been banter, fist bumps and pats on the shoulder.
On 11 th August 2020 Miss A was working at her desk in the staff room in the custody suite at Maidenhead Police Station. DO Collins was working in the same room. PC Javeed's account was that he entered the custody suite that morning because he wanted to discuss a potential arrest with the custody sergeant. At or shortly after 8:20am the police officer entered the staff room and walked directly up to the seated Miss A. What happened next is caught on CCTV.
Thames Valley Police contends that the only fair way of assessing the police officer's actions is by viewing the CCTV footage. Visually, it is of good quality but there is no audio. That is relevant inasmuch as there clearly were verbal interactions between the police officer and Miss A. In my judgment, the CCTV footage is open to more than one interpretation and the panel received oral evidence as to what happened. The only fair way of arriving at a conclusion on the balance of probabilities as to what happened can be by considering all the evidence in the case. It is not, of course, this Court's role to undertake that exercise. My task is to undertake a review function applying well-settled principles. The invitation to undertake a “fair” assessment of the CCTV footage comes close to asking me to form my own view of the underlying evidence.
The parties before the panel proceeded on the basis that there were two events, which were described as Event 1 and Event 2. These were separated by a brief interlude during the course of which the police officer moved away from Miss A and there was a verbal exchange between them.
Thames Valley Police's interpretation of the CCTV evidence is as follows:
“Event 1
[PC Javeed is seen to] walk directly up to the seated Miss A and stand immediately next to (if not actually touching) her left shoulder, lean over her, fleetingly touch the top of her head/the back of her neck area, and then place his hands on her shoulders and squeeze them whilst talking to her.
Event 2
[PC Javeed is seen to] walk back to stand very close to the side of Miss A, place the mobile phone he was holding in his left hand down on the desk, freeing up his left hand which he then briefly slips under Miss A's left arm, before then retracting it and placing it on her left shoulder and massaging it (whilst at the same time placing his right hand on the back of her head and then on her right shoulder).”
Next on the CCTV we can see PC Javeed leaving the room. At no stage did he look at or towards DO Collins, who appears to have been unaware of what had occurred beyond seeing PC Javeed's hands on Miss A's shoulders for a couple of seconds. Immediately upon his leaving, Miss A turned towards DO Collins and said, on her account, “I think he's just groped my boob”. The CCTV imagery then shows her demonstrating what had occurred.
DO Collins' recollection of what Miss A said was along the lines of, “that officer just grabbed my boob”. Miss A then reported these events to DI Robert Webb and PS Lianne Roberts and their evidence as to what she said was very similar.
PC Javeed was suspended from duty and then interviewed under caution. He did not accept that he had invaded Miss A's personal space or that he had crossed any boundaries. He denied massaging Miss A's shoulders. PC Javeed accepted that he did touch her shoulder and that he placed his left hand under her arm “in a jokey way”. He denied touching her hair or her breast; he claimed that he went “nowhere near” the latter. He denied putting his phone down in order to touch her breast. Specifically:
“I believe that she's misinterpreted the action, like my, I do admit that my hand was over here but making a friendly gesture but at no point did my hand manoeuvre towards her breast or at no point did I squeeze her breast.”
Further:
“Q. Did she give you any indication that either, she had enjoyed it, er, encouraging it, your touching her?
A. I mean, I couldn't, I couldn't tell you what's in her mind so …
Q. Nothing obvious to you?
A. Em, I mean she was laughing …”
PC Javeed denied having any sexual interest in Miss A. There had been no flirtatious behaviour between them in the past.
An investigating officer of the “Appropriate Authority” within Thames Valley Police completed a report on 4 th January 2021 recommending that PC Javeed had a case to answer for conduct amounting to gross misconduct for breach of “authority, respect and courtesy” and/or “discreditable conduct” justifying dismissal. On 12 th February 2021 he was served with a notice informing him that he was to appear at a Misconduct Hearing in relation to these allegations.
This hearing was delayed pending the conclusion of criminal proceedings for the offence of sexual assault. On 25 th November 2021 following a three-day trial PC Javeed was acquitted.
The Misconduct Hearing took place between 15 th and 17 th August 2022.
THE MISCONDUCT HEARING
The panel was chaired by Ms Nicola Talbot Hadley, now HHJ Talbot Hadley. Her wing members, each with an equal voice in the outcome, were then Chief Superintendent Katy Barrow-Grint (now Assistant Chief Constable) and Ms Susan Wilkins, the lay member.
The particulars of the conduct alleged to constitute gross misconduct, as served under regulation 30 of The Police (Conduct) Regulations 2020, were as follows:
“You approached [Miss A] as she sat at her desk and without her invitation or consent proceeded to touch her, including:
(a) by rubbing her upper back and/or
(b) by touching her on the top of her head and/or
(c) by massaging her shoulder(s) and/or
(d) by reaching your left hand under her left armpit and touching her left side
and/or
(e) by touching her left breast with your left hand and/or
(f) by squeezing her left breast.
(c) Such touching was entirely unsolicited and unwelcome and left [Miss A] shocked, surprised and offended. It was in breach of the Standards of Professional Behaviour in relation to “Discreditable Conduct” and/or “Authority Respect and Courtesy” in that it was conduct which would discredit the police service or undermine public confidence in it and/or demonstrated a failure to treat your colleague, [Miss A] with respect and courtesy. If proven it is considered to amount to gross misconduct, namely a breach of the Standards of Professional Behaviour so serious that your dismissal would be justified.”
PC Javeed's response, as served under regulation 31, included the following:
“10. PC Javeed is only aware of patting her on the back and touching her shoulders and her side area, near the armpit as described in interview. He is not aware that he ever touched her breast area and denies doing so. He did not squeeze her breast. He did not massage her shoulders. He did not touch the top of her head, nor did he rub her back.
11. The touching was momentary during a conversation. PC Javeed meant nothing by the brief contact at all and the contact was not sexual. The contact did not amount to an act breaching the Standards of Respect and Courtesy.”
Thames Valley Police's opening note included the following:
“13. The AA's case is that all of the touching seen on CCTV was entirely inappropriate, some of it extremely so. The nature of the relationship between Miss A and PC Javeed was entirely and only professional. PC Javeed crossed a significant boundary once he had invaded her personal space and proceeded to lay his hands on her. The AA's primary case is that he did squeeze Miss A's left breast as she alleges, but even on the officer's account, touching her at all and placing his left hand anywhere near her rib cage in the context of an entirely professional relationship was entirely inappropriate; there was simply no reasonable explanation for such conduct.”
The opening note also alluded to PC Javeed's acquittal at his criminal trial. It pointed out that the panel applied a lower standard of proof (viz. the balance of probabilities) and that in order to establish gross misconduct proof of a sexual motivation...
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