The Queen (on the application of the Chief Constable of Northumbria Police) v The Police Appeals Tribunal
| Jurisdiction | England & Wales |
| Judge | Mr Justice Freedman |
| Judgment Date | 06 December 2019 |
| Neutral Citation | [2019] EWHC 3352 (Admin) |
| Date | 06 December 2019 |
| Docket Number | Case No: CO/2300/2019 |
| Court | Queen's Bench Division (Administrative Court) |
and
[2019] EWHC 3352 (Admin)
Mr Justice Freedman
Case No: CO/2300/2019
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
LEEDS DISTRICT REGISTRY
The Court House
1 Oxford Row
Leeds LS1 3BG
Mr Fortt (instructed by Northumbria Police Legal Services) for the Claimant
Mr Beggs QC and Mr Berry (instructed by Haighs Law) for the Interested Party
Hearing dates: 21 November 2019
Approved Judgment
I Introduction
This is a challenge to the determination of the Police Appeals Tribunal (“PAT”) of 25 March 2019 reduced to writing on 11 April 2019 in which it upheld a finding of gross misconduct, but allowed an appeal against the outcome of dismissal. The appeal was against the outcome of a misconduct panel (“the Panel”) that the Interested Party, PC Barratt, (“the IP”) should be dismissed for gross misconduct. Having allowed the appeal against the outcome of the dismissal, the PAT directed that there should be a final written warning against the IP to stay on the file for 18 months and a further recommendation that she be given additional professional development on equality and diversity. The matter comes before this court on a claim for judicial review with the permission from HH Judge Saffman on 8 August 2019. The question is whether it is open to this court on a judicial review application to interfere with a decision of the PAT, and to reinstate the outcome of dismissal or to order afresh dismissal or to make some other order.
II Background
The background is to be found in the IP's detailed grounds for resisting (DGR) the claim at paragraphs 7–20 and in the Claimant's skeleton argument at paragraphs 5–7. They will be summarised in the following paragraphs.
The IP joined Northumbria Police on 12 December 2016 having been a Special Constable (volunteer) from the age of 18. At the time of the incident she was 21 years old, and still a probationer constable.
On 14 December 2017, while off duty, the IP went on a Christmas night out with police colleagues in Newcastle city centre. Like other officers present, she became intoxicated (consuming around 8 alcoholic drinks). At the end of the evening, at about 22:30, the IP went to a takeaway restaurant called the Spice of Punjab with two colleagues PC Downs (who was intoxicated) and PC Bradley (who was not). There were no other customers in the restaurant. The officers ordered food and waited for it sitting at a table. In conversation with the other two officers, and out of the hearing of the restaurant staff, the IP recalls using racially offensive language about the staff.
Whilst waiting for her pizza to arrive she made racially offensive comments to her colleagues about the staff who worked there (the staff did not hear the remarks). She called them ‘fucking Pakis’ and ‘fucking niggers’. She referred to the staff as ‘Pakis’ on at least five occasions when talking to her colleagues, including stating ‘I wish these Pakis would hurry up with me pizza’. She was reported to the police by one of her fellow police officers who had been out with her that evening.
The Claimant's professional standards department investigated the IP's conduct and served her with a notice of hearing pursuant to regulation 21 of the Police (Conduct) Regulations 2012 (“the PCR”). The allegations, which appear to have been pleaded in alternative, were as follows:
Allegation 1- Discreditable Conduct
On Thursday 14 December 2017 at the Spice of Punjab takeaway in Newcastle city centre, you Officer Barratt, whilst off duty and intoxicated made racially offensive comments about members of the public, namely the staff working at Spice of Punjab, calling them “fucking niggers and fucking Pakis”.
By making these racially offensive comments you behaved in a manner which brought discredit to Northumbria Police and undermined the public's confidence in the police service.”
Allegation 2- Discreditable Conduct
On Thursday 14 December 2017 at the Spice of Punjab takeaway in Newcastle city centre, you Officer Barratt, whilst off duty and intoxicated made racially offensive comments about members of the public, namely staff working at Spice of Punjab, calling them “Pakis” on at least 5 occasions, including saying “I wish these Pakis would hurry up with me pizza”.
By making these racially offensive comments you behaved in a manner which brought discredit to Northumbria Police and undermined the public's confidence in the police service.”
The IP served a response to the allegations pursuant to regulation 22 of the PCR in which she:
i) denied allegation 1;
ii) admitted allegation 2 in part- admitting to using the word “Paki” twice (she did not admit that in fact it was five times), for which she apologised unreservedly;
iii) admitted that her behaviour amounted to misconduct (she did not admit that it was gross misconduct) recognising that her use of the word “Paki” was totally inappropriate, and that her conduct was capable of undermining public confidence in the police;
iv) stated:
“The officer bitterly regrets the use of the word, which was completely out of character, as confirmed by PC Gray …. Who describes her as “well mannered, considerate and respectful”, and by PC Vout… (“a respectful and courteous person”). PCs Harvey, Hall and Younas had never previously witnessed any inappropriate behaviour from the officer, or any causes for concern.”.
III The Panel's decision
On 26–27 June 2018 the matter came before the panel which comprised Ms Rachel Mangenie, T/Superintendent Dave Anderson and Dr Mohammed Farsi. The panel found allegations 1 and 2 both proved, and that the IP's conduct amounted to gross misconduct.
The panel concluded in its determination dated 27 June 2018 that in addition to the use of the word “Paki” the IP also used other highly offensive language including referring to staff as ‘fucking niggers’ and ‘fucking Pakis’. The panel found that this seriously undermined the trust and confidence that the public has in the police service and jeopardised its reputation, such that dismissal was the only appropriate outcome. The panel's conclusions as to outcome included the following remarks:
“The Panel have considered the character references which are indeed impressive … The Panel have also considered other documents which compliment PC Barratt on her professional behaviour. PC Barratt is clearly a young enthusiastic and dedicated Police Officer …
In making this decision the Panel have had regard to our purpose as set out in Salter v Chief Constable of Dorset Police [2012] EWCA Civ 1047: namely to protect the public and to maintain the high standards and good reputation of an honourable profession. We have also considered the recent case of R (On the application of Williams) v Police Appeals Tribunal [2016] EWHC 2798 which reiterates the relative lack of weight that a Panel must give to personal mitigation' however impressive, when balanced against the public interest in maintaining public confidence in the police service …
The Panel conclude that the appropriate sanction is Dismissal without notice …
… We have sympathy for PC Barratt and the situation she finds herself in …
The serious nature of the incident and public perception cannot be underestimated. Whilst no member of the public has been directly affected the issue is highly sensitive and the words used can cause great offence. Any member of the public hearing such comments from a serving Police Officer would no doubt be offended and their confidence in that Officer and the Police force would be diminished .
It is concerning to the panel and likely would be to the public, that a young officer in current times would use such language either consciously or unconsciously, particularly given that diversity training is detailed and central to a student's officer training and development.
When making the decision, we have had particular regard to the ethnic minority communities who resided in the Northumbria Policing Area and also to the scale of national concern of the issue of racism throughout the Police Service …
The Panel are persuaded that PC Barratt does not hold deep seated racist values. There has been no evidence presented which supports this assertion. We do not believe that PC Barratt is inherently racist and this was an out of character incident.
The deliberate or conscious use of discriminatory language will always undermine public confidence that the officer concerned cannot discharge their duties in accordance with the Code of Ethics.
Unconscious discrimination however, which the Panel deem this situation to be, can also have a significant impact on public confidence .
The Panel has considered whether this was a case where a lesser sanction may be available but regretfully concludes it is not. This type of behaviour undermines public confidence. A confidence that depends on Police Officers demonstrating the highest standards of personal and professional behaviour and safeguarding the public. We concluded that an outcome where PC Barratt was allowed to remain an Officer with Northumbria Police, would seriously undermine the trust and confidence the public have in the organisation and jeopardise the reputation of the Police Service.” (emphasis added).
IV Appeal to the PAT
The IP appealed the panel's decision to the PAT on various grounds including that the panel's decision that she be dismissed was “unreasonable”. Rule 4(4)(a) of the Police Appeals Tribunals Rules 2012 (“the PAT Rules”) permits an officer to appeal the decision of a panel to the PAT on the ground “that the finding or disciplinary action imposed was unreasonable”.
It is to be noted that the appeal was not by reference to the...
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