JR: Final Warning for PC’s Harassment of Lone Woman
17 March 2023
The decision of a Police Misconduct Panel to impose a final written warning upon an off-duty Police Officer who sexually harassed a lone female pedestrian during lockdown was judicially reviewed in the High Court: Chief Constable of the British Transport Police, R (On the Application Of) v Police Misconduct Panel [2023] EWHC 589 (Admin) Charles Bagot KC, Deputy High Court Judge
The central issue in the proceedings was whether that was an outcome open to the Panel or whether the only rational outcome was dismissal. When she granted permission for the review proceedings, Collins Rice J observed that it was notable that the factual matrix of the underlying case fell squarely within the overall ambit of acute general public concerns about policing at the present time.
The Court observed that this was an unsolicited approach to a lone female by an off-duty officer who was driving past, during the pandemic lockdown. He made the comment “too curvy to be Asian” which the Panel rightly found to be of a sexual and unwanted nature and amounted to unwanted stereotypical racial profiling. He inappropriately used his warrant card solely for personal gain, to prolong the engagement with the complainant and to impress her or otherwise advance his prospects of building a relationship with her.
The Officer showed personal photographs of him in gym kit either before or after the warrant card was shown. The complainant declined the officer’s offer to “hang out”. He requested her telephone number, checking she had given the correct one by calling her immediately. When she insisted on leaving, he asked her for a hug. He later sent her a message referring to her as “babe”.
On the Panel’s own findings, it failed properly to grasp the seriousness and significance of this conduct and its impact on public confidence in the police. Had it done so, there was only one outcome reasonably open to it, namely dismissal.
The Panel also fell into the error of merely identifying the appropriate test rather than actually applying it in the methodical way required both in relation to seriousness and also the purpose for which the sanction was imposed. Here it vitiated the Panel’s determination of outcome. Wider public protection and confidence was a point which the Panel erroneously failed to consider in any meaningful or appropriate way.
Furthermore, the Panel’s finding, based on accepting the officer’s evidence that the relationship he envisaged was not a sexual relationship, was unsustainable. The only sustainable conclusion from the findings was that the Officer was not randomly approaching a lone female to seek a gym “training buddy”, that that he abused his position and used his warrant card as part of seeking a sexual relationship.
The Panel was irrational to view the use of “babe” differently from the earlier “too curvy to be Asian” remark. Both could only be properly classified, in this context, as sexual in nature.
Contradictory findings underpinned the conclusion that the Officer did not continue his unwelcome persistence in talking to the complainant. This was largely because of the passive engagement of the complainant. This was troubling and wrong. It placed the responsibility upon the complainant, not the perpetrator. It came close to imposing an obligation upon a lone woman approached by an officer in such circumstances, to challenge him, otherwise she could not therefore complain if he continued his efforts to try to engage with her.
The only proper finding open to the Panel was that the Officer’s conduct was persistent. The Panel was irrational to excuse his continuation of his conduct as justified by the Panel’s flawed interpretation of the complainant’s demeanour and behaviour.
The officer was wrong to suggest that he was “a victim of the times we are now living in today” or that this was a personal or racist attack on him to get him dismissed. This case had nothing to do with scapegoating and was not a disciplinary overreaction to the well-publicised serious crimes of which certain policemen had been convicted in recent months and years.
By contrast, it was this officer’s own choice to approach a lone female and indulge in prejudicial racial stereotyping and sexualist language, amongst other trouble features of his conduct, which had been the undoing of his police career. Whilst the consequences for him were stark, he was entirely the author of his own misfortune in that regard.
The Court was satisfied that no reasonable Panel, correctly applying the law and guidance, could have reached the decision on sanction, of a final written warning that the Panel did.
His Lordship therefore quashed the sanctions decision on the grounds of irrationality as the only sanction reasonably open to the Panel was dismissal without notice and, rather than remitting the matter to the same (or different) specialist Panel substituted the Panel’s outcome with dismissal.