JR: Former Police Officer’s Written Warning Quashed
After a Police Misconduct Panel imposed a sanction of a final written warning upon a former police officer who it found used his position of authority to sexually harass the appellant both in person and by email, following which Swift J (the judge) dismissed a claim for judicial review in the Administrative Court, the matter was further considered by the Court of Appeal: O’Connor, R (On the Application Of) v Panel Chair (Police Misconduct Panel) [2025] EWCA Civ 27 Bean, Baker, Nicola Davies LJJ
The judge had concluded that the Panel’s reasoning, considered in the round, was consistent with the assessment of seriousness explained in the Outcomes Guidance. He found that the Panel had made clear findings of fact and it set out its conclusions on the consequences of those matters in so far as they concerned the application of the Standards of Professional Behaviour.
But in the Court of Appeal Nicola Davies LJ said that the purpose of the Police Misconduct regime was identified as being threefold: (i) to maintain public confidence and the reputation of the police service; (ii) to uphold high standards in policing and (iii) to deter misconduct and protect the public. The Outcomes Guidance provided to Police Misconduct Panels in determining issues of misconduct was detailed and contained “outlines in a general framework for assessing the seriousness of conduct, including factors which may be taken into account.” It did not override the discretion of the person(s) conducting the meeting or hearing. Their function was to determine the appropriate outcome and each case would depend on its particular facts and circumstances.
In Fuglers LLP and others v Solicitors Regulatory Authority [2014] EWHC 179 (Admin) Popplewell J identified three stages in determining the appropriate sanction: (i) assess the seriousness of misconduct; (ii) keep in mind the purpose of imposing sanctions and (iii) chose the sanction which most appropriately fulfils that purpose for the seriousness of the conduct in question. In assessing seriousness, the most important factors were culpability, harm, aggravating and mitigating factors.
The attempt by HHJ Pelling KC in R (Chief Constable of Greater Manchester Police) v Police Misconduct Panel and Roscoe (unreported 13 November 2018) placed a gloss on the approach taken by Popplewell J, was unnecessary and led to differing judicial interpretations.
This was deliberate and targeted misconduct by a police officer holding a position of trust and authority. It involved sexual impropriety towards a vulnerable victim. No reference was made by the Panel to the fact that misconduct involving sexual impropriety, of itself, was serious and that more serious action was likely to be appropriate where the officer had demonstrated predatory behaviour motivated by a desire to establish a sexually inappropriate emotional relationship with a member of the public.
The Panel recognised the vulnerability of the victim but did not identify the part this played in its assessment of seriousness and harm. The panel did identify aggravating factors but failed to properly assess or identify the weight to be attached in terms of harm or culpability to such factors and ultimately to the issue of the seriousness of the misconduct.
Notwithstanding the listing of aggravating and mitigating factors, her Ladyship was satisfied that the Panel did not provide an adequate analysis and, resulting from it, adequate reasons for its findings in respect of seriousness and within the finding of seriousness the levels of culpability and harm. These findings were important because they provided the factual basis for the first stage of the Panel’s determination upon sanction. The absence of such reasoning was a significant omission and represented an error of law.
It was difficult to establish a reason why a sanction of a final written warning was appropriate rather than the more serious outcomes of reduction in rank or dismissal. The Panel’s statement that such outcomes would be disproportionately harsh did little to assist an understanding of its reasoning as to the appropriateness of the sanction.
The decision of the Panel in respect of sanction of a final written warning was quashed and the matter remitted to a Misconduct Panel to consider sanction in respect of the original finding of misconduct.
Baker and Bean LJJ agreed. Bean LJ noted that personal mitigation such as an outstanding record of service did not reduce the seriousness of the misconduct. It may be considered, but only once the seriousness of the misconduct had been assessed. Whether it carried weight when set against the principles set out in cases such as Bolton v Law Society [1994] 1 WLR 512 was a fact-specific balancing exercise for the Panel in each case.