Bolt, R (on the application of) v Merseyside Police & Anor

The disciplinary panel which heard the Claimant’s case made full and clear findings of the facts which it held to constitute misconduct on his part in relation to the events of 18^th September 2003, and these were accepted by Mr. Brunstom. In those circumstances the panel’s findings were unchallenged before me. I can summarise them as follows:

Both the Claimant and PC O’Leary were based at Stanley Road Police station in Liverpool. At about 11.30 a.m. they set off together in a police van and drove over three miles to visit a Mr. Mark Mitchell, an ex-police officer. The trip was at PC O’Leary’s instigation. No finding was made by the panel as to its purpose, although the two officers had visited Mr. Mitchell on at least two previous occasions, on at least one of which their purpose was to collect some pornographic material from him.

PC O’Leary was in fact at this time in a corrupt relationship with Mr. Mitchell under which he supplied him with information from police records for transmission to criminal associates. On 21^st February 2006 he pleaded guilty to six counts of misconduct in public office and was sentenced to 3½ years in prison. But it is important to emphasise that, whether or not PC O’Leary’s wish to visit Mr. Mitchell on this occasion was connected with this aspect of their relationship, it has never been part of the case against the Claimant that he was aware of any corrupt dealings between the two of them.

Both officers were on duty at the time. There was some uncertainty as to whether the Claimant had been allocated to a joint patrol with PC O’Leary, and in fact the Claimant’s evidence to the panel was that he had simply got into the van with PC O’Leary in order to go out and get a sandwich at refreshment time – though he did not dispute that he knew and went along with PC O’Leary’s purpose to drive to visit Mr. Mitchell. On any view, it is not in dispute that the visit to Mr. Mitchell formed no part of the Claimant’s or PC O’Leary’s duties or that Hawthorn Road was considerably outside any patrol area to which either of them had been allocated. The panel summarised the position as follows:

As the two officers were driving down Hawthorn Road, near to Mr. Mitchell’s flat, they were flagged down by a Mr. Colbert, a disabled man, who reported that he just been attacked while obtaining money from a bank cash machine. He pointed out the alleged robber, a Mr. Lisemore. Although the Claimant told the panel that he remained in the van, it was the evidence of Mr. Colbert - and the panel accepted - that both officers got out. PC O’Leary took the lead in dealing with Mr. Colbert. Mr. Lisemore was detained and taken into the van. The Claimant made a call on his radio to obtain a PNC check on Mr. Lisemore. He was asked by the operator for his location. Instead of saying that he was in Hawthorn Road he gave his location as Stanley Road, which was some distance away and within his legitimate patrol area. He told the panel that he did so because he did not know exactly where he was and he thought that Stanley Road was the nearest main artery. The panel did not believe this. It found that his true reason was that he did not want to reveal that he and PC O’Leary were outside their patrol area on an unauthorised visit. As they put it:

Neither the Claimant nor PC O’Leary made any record of the incident. The Claimant professed to be satisfied by Mr. Lisemore’s account of his identity and his actions and, after Mr. Colbert had left the scene, he was simply released.

The Claimant’s account to the panel was that PC O’Leary took the lead in handling the incident throughout and that it was because PC O’Leary told him that it appeared that there was no evidence of a crime having been committed that Mr. Lisemore was allowed to go and no record was made. The panel did not accept this account. It held as follows:

The incident came to light because Mr. Colbert (who was in fact a local councillor) was dissatisfied with the lack of any action against Mr. Lisemore.

The Claimant’s conduct on 18^th September 2003 was the subject of three separate charges of breach of the Code of Conduct. The first and most serious was of a breach of para. 1 of the Code, which is headed “Honesty and Integrity” and reads as follows:

The Claimant was also charged with two breaches of the Code arising from a subsequent search of his locker and desk. I need not set these out in full. The gist of them was that he was found to have kept a large quantity of miscellaneous items and documents (files, notebooks, custody records, video-tapes, tapes of interviews, seized drugs etc.) which should have been properly filed or otherwise dealt with or disposed of. The nature and quantity of the material found was such that this went far beyond trivial failures of administration. He was charged with two counts of failure to be conscientious and diligent in the performance of his duties.

The charges against the Claimant did not proceed for some time. This was because of the complications associated with the investigation into the corruption allegations against PC O’Leary. For the same reason, charges arising out of the incident of 18^th September 2003 were not in the end pursued against PC O’Leary. A hearing of the charges against the Claimant alone eventually took place on 14^th November 2005. Because of the notoriety within the Merseyside force of the corruption charges against PC O’Leary the presiding officer was an Acting Deputy Chief Constable from the Lancashire force, Mr. McAllister. Mr. Beggs presented the case against the Claimant. Mr. Kieran Galvin of counsel appeared for the Claimant.

The Claimant admitted charges 4 and 5 but disputed charges 1-3 (although it appears that in the course of the hearing he implicitly admitted charge 3). It was agreed between the parties that reference needed to be made, by way of background, to the existence of the charges against PC O’Leary; but Mr. Beggs stated explicitly that it was no part of his case that the Claimant had any involvement in the corruption alleged against PC O’Leary. The panel heard oral evidence from (among others) Mr. Colbert and the Claimant.

The panel’s written decision was promulgated on 17^th November 2005. All the disputed charges were found proved. The panel’s reasons were set out in considerable detail over some five pages. I have already summarised its essential findings. It followed from the finding that the Claimant had acted “in a manner that lacked both honesty and integrity” that he was guilty of charge 1. It is also clear that there were a number of aspects of the Claimant’s account on which the panel expressly or by necessary implication regarded him as having lied, both in his evidence to it and in the prior investigation. The panel’s findings also inevitably meant that he was guilty on the lesser charges 2 and 3.

As regards sanction the panel said this:

As already noted, the Claimant exercised his right to require a review, and that review was carried out by Mr. Brunstrom, the Chief Constable of the North Wales force. Both Mr. Beggs and Mr. Galvin provided submissions to Mr. Brunstrom in writing, and he also sought and obtained comments from Mr. McAllister. A “meeting” in accordance with reg. 35 (1) - in practice an all-day hearing - took place on 21^st March 2006. Among the points taken by Mr. Galvin on behalf of the Claimant was that, notwithstanding Mr. Beggs’s ostensible disavowal of any intention to tar the Claimant with guilt by association, the reference which had been made to the charges against PC O’Leary created an atmosphere in which there was bound to be at least the appearance of bias. It was also contended that because Mr. McAllister had formerly served in the Merseyside force and had twice given evidence in criminal corruption cases involving Merseyside officers his appointment as presiding officer failed to achieve the intended distancing of the case against the Claimant from the charges against PC O’Leary.

Mr. Brunstrom gave his decision in the form of a seven-page letter to the Claimant’s solicitor, copied to the Defendant, dated 8^th May 2006. I can summarise it as follows:

At paras. 1-3 he set out the procedural background, mentioning in particular the allegations of bias (see para. 2).

At para. 4 he attempted to summarise his role in the following terms:

At paras. 5 and 6 he emphasised the absence of any connection between himself and the Merseyside force and explained that he did not propose to deal with every detail of the representations made to him.

At paras. 7-10 he addressed the allegation that the appointment of Mr. McAllister as presiding officer gave rise to such an appearance of bias as to require the panel’s decisions to be set aside in their entirety. He concluded that although the appointment had been “unwise”, and such as justifiably to raise a suspicion of bias, once the record of the hearing was considered a fair-minded and informed observer would conclude that there had been no bias: he expressly found that Mr. McAllister had “conducted himself with scrupulous adherence to the principles of fairness”.

At paras. 11-12 he considered the allegation that “the presenting side cleverly wove suspicions of corruption into their case such that the taint of corruption was in the air”. He rejected that allegation.

At paras. 13-14 he considered a submission that the conviction of the Claimant on charges (1) and (2) was so contrary to the weight of the evidence as to reinforce the case that the panel was biased against him. He rejected that submission also, saying that he could find no evidence that the panel assessed the evidence otherwise than conscientiously and diligently: it was entitled to prefer Mr. Colbert’s evidence to that of the Claimant.

Accordingly Mr. Brunstrom concluded at para. 15 that:

However, he proceeded in paras. 16 and 17 to express strong criticisms of one aspect of the way the case had proceeded. I need to set out those paragraphs in full:

However I must draw attention to my disquiet to the way in which Charges 1, 2 & 3 were handled by the Presenting side and the Panel. Despite Mr Beggs’s rather unchivalrous attempt in the Review Hearing to shift blame for “a mistake” onto the Professional Standards Department of Merseyside Police it is quite clear that these charges were initially drawn up, by him, as true alternatives. It is disingenuous to try to dismiss this after the event as a mistake. There is in fact a great deal of logic to what seems to have been the original purpose – that these charges were intended to be true alternatives of descending or ascending severity. That being the case only one conviction should have resulted, depending on the findings of the Panel. In the event however the Panel were advised by Mr Hillman (tape 9 side 1 page 2/15) not to treat the charges as true alternatives but to make a finding on all three, apparently to avoid ambiguity in relation to a potential future appeal. This advice was offered gratuitously by the Panel’s legal advisor, and it seems to me to be erroneous; it was certainly unhelpful. The result is that Mr Bolt has been convicted of three charges; perhaps not legally wrong in itself but analogous to finding a murderer guilty not only of the murder but of GBH, ABH and common assault as well. As Mr Beggs himself has said in his notes to assist the Reviewing Officer (paragraph 11) “Having found the Honesty and Integrity charge proven, the panel inevitably found the discreditable (general conduct) and neglect (performance of duties) charges also proven”. This inevitability is real; it is not normal practice for very good reason, and I am surprised that the Defence did not make more of it in the Hearing.

I dislike intensely the way in which the original Hearing handled Charges 1, 2 & 3, and I will return to the fairness of this course of action later.

Mr. Brunstrom then turned to the question of sentence. After some introductory observations in paras. 18-20, making in particular the point that charges 1-3 were in descending order of seriousness, he said, at para. 21:

Before, however, proceeding to consider the appropriateness of the penalties in relation to charges 1-3, at paras. 22 and 23 he made some observations on charges 4 and 5. He described them as showing “a quite remarkable list of failures” which showed the Claimant to be “serially neglectful”, someone who had on many occasions “failed badly in his duty to properly investigate and record crime”, and “an unreliable disgrace”. (He also pointed out that the charges also showed serious failures by the Merseyside force.) It is evident that he regarded a mere reprimand for such offences as a surprisingly lenient sanction. He expressed the view at para. 24 that charge 3 – which related to the events of 18^th September shorn of the element of deliberate cover-up – was of essentially the same character as charges 4 and 5.

Mr. Brunstrom then returned to the consideration of charges 1 and 2. Paras. 25-29 of the letter read as follows:

Charges 1 & 2 are the same as Charge 3 in all their particulars with the exception of item (viii) – that ex-PC Bolt acted as he did so as to cover up his unauthorised visit to Mitchell (a corrupt ex-police officer and friend of ex-PC Bolt’s corrupt companion, O’Leary). It was asserted during the Review Hearing by Mr Beggs for the Presenting side that both charges can be made out in law without the need to prove point (viii). I accept this submission. However it is precisely this limb which gives rise to the degree of seriousness with which charges 1 & 2 have been imbued; without it the charges are indistinguishable from Charge 3, even though the breach of the Police (Conduct) Regulations is in detail different. This gives rise to a difficulty. Charges 1, 2 & 3 were originally intended to be alternatives. There should properly have been only one suitable finding of guilt. Unfortunately this did not happen as already discussed, and though ex-PC Bolt is clearly guilty of all the charges they amount, without limb (viii) and in the vernacular, to ‘more than one bite of the cherry’.

It is clear that in relation to Charge 1 the original Panel found ex-PC Bolt to be untruthful, at the appropriate level of proof. I have not challenged their finding. The question for me now is whether the sanction applied is appropriate to the conduct proved. In essence, I do not believe that it is. Ex-PC Bolt has been found guilty of being off his beat without proper authority and lying about his reasons. I do not accept that this level of misconduct justifies dismissal from the service. I am drawn to the conclusion that the Panel have in fact become biased by the repeated statements about corruption during the Hearing and that this has led them to apply an excessive penalty. The normal penalty for being off one’s beat without authority and untruthful when caught out, is not the sack; ex-PC Bolt has received an abnormal punishment to an extent that I find unfair.

In relation to Charge 2, I come to the same conclusion. In this case ex-PC Bolt is guilty of failing to record a crime to cover up his presence in the wrong place. In fact his admitted conduct shows that he regularly fails to properly investigate crime in more serious circumstances. The normal penalty for an officer with eleven years’ service caught out failing properly to record crime is not a requirement to resign.

In the case of Charge 3, I again find that the punishment is excessive. Ex-PC Bolt has admitted more serious offences, and the punishment for “merely” failing to make an adequate record of an incident that may well not have amounted to a real crime in any event is not a requirement to resign.

In my opinion the “fair minded and informed observer” (my italics) must inevitably come to the conclusion that the penalty does not fit the crime. It is agreed that ex-PC Bolt is not himself accused of being corrupt. He has admitted serious failures for which he has been awarded only Reprimands. The original intention that he be convicted of only one of the first three charges has become compromised by poor advice, leading to him being convicted more than once on what is effectively the same set of facts (it is clear that the Panel, if operating in line with the original intention, would have convicted him of the most serious allegation, Charge 1). He has been dismissed for conduct that while reprehensible in the extreme would not normally carry this penalty - and by far the most likely explanation for this is that the stench of corruption by association has in fact caused the Panel to over-react to what is admittedly a pretty unsavoury picture.

Having reached that point Mr. Brunstrom concluded as follows:

I have therefore decided to set aside the original penalties for Charges 1, 2 & 3 and replace them as follows:

Mr Bolt is therefore reinstated to the office of Constable in Merseyside Police with immediate effect, backdated to 17 November 2005.

PC Bolt clearly bears personal responsibility for his failures. He is an unreliable officer who cannot be trusted to act properly without close supervision – which it is apparent that Merseyside Police has not previously put in place, but is going to need time in the future.

This case reveals serious crime audit failures in Merseyside Police which are beyond my remit.

As already noted, the Defendant was not prepared to accept Mr. Brunstrom’s decision. On 22^nd May 2006 he wrote to the Claimant in the following terms:

The primary submission of Mr. Millar for the Claimant was that where the review is conducted by an officer other than the chief officer - by virtue of either reg. 37 (1) or reg. 37 (2) – it is on the true construction of the Regulations not open to the chief officer to reject the decision of the officer conducting the review: the decision of that officer is the effective decision, and there is no role left for the chief officer. Accordingly the Defendant’s purported rejection of Mr. Brunstrom’s “recommendation” was misconceived: he had no power to accept or reject.

The points made by Mr. Beggs in response can most conveniently be categorised as follows:

He argued that the sanction imposed by the panel on charge 1 was outside the scope of the matters which Mr. Brunstrom was entitled to review.

He contended that, contrary to Mr. Millar’s primary submission, Mr. Brunstrom’s decision was in law no more than a recommendation, which it was open to the Defendant to reject. He accepted that a chief officer would only be entitled to reject such a recommendation for good cause, and that the cases where a chief officer who was not the reviewing officer would have such cause would be rare. But he submitted that in the present case there were sufficient grounds for him to decide not to follow Mr. Brunstrom’s decision.

He submitted that even if, contrary to (2), the decision of the officer conducting the review had automatic effect Mr. Brunstrom’s decision in the present case was bad in law; and that that meant either that the Defendant had been entitled to ignore it or in any event that I ought not as a matter of discretion to grant relief requiring him to implement it.

He submitted that even if he succeeded on none of the previous points it was not in the public interest that I should grant any substantive relief on the facts of the present case.

The procedural trigger for a review under reg. 34 (1) is a request from the convicted officer asking the chief officer “to review the finding or the sanction imposed or both the finding and the sanction”. Thus if the Claimant had only asked for the findings of guilt to be reviewed Mr. Brunstrom would have had no power to review the sanctions.

The Claimant made his request for a review on the form prescribed in annex M4 to the Home Office Guidance. The form as completed by him explicitly requested a review of “the findings and punishments in respect of charges 1 and 2 … and in respect of the punishment imposed in respect of charge 3 [emphasis supplied]”. However, Mr. Beggs pointed out that in the supporting “detailed submissions” and in the representations, both written and oral, subsequently addressed to Mr. Brunstrom the challenge as regards sanction was clearly stated to be to the sanctions on charges 2 and 3 and no challenge was articulated to the sanction on charge 1. The Claimant lodged a witness statement from Mr. Galvin, who was responsible for those submissions. Although it is not entirely clear, what I understand him to be saying is that no representations were made on the sanction on charge 1 because the Claimant was denying any dishonesty. I am not sure that that is a good explanation for the omission, and I agree that the way in which the issue was pursued is strongly suggestive of an intention only to challenge the sanctions on charges 2 and 3, and that may be of some significance as regards a later issue (see para. 28 below). Nevertheless it seems to me that, the form M4 having made an express challenge to the sanctions on all three charges, only a clear and unequivocal withdrawal of that challenge would suffice. Albeit with some hesitation, I have come to the conclusion that the formulation of the representations is insufficiently unequivocal to have the effect for which Mr. Beggs contends.

I accordingly reject Mr. Beggs’s submission on this issue.

THE STATUS OF MR. BRUNSTROM’S DECISION

In my view Mr. Millar is correct that the scheme of the Regulations does not give a chief officer who has not himself conducted the review the power to reject the decision of the officer who has done so. Reg. 36 (3) provides that “the decision of the reviewing officer” shall (if different) take effect by way of substitution for the decision of the original panel. Although “the reviewing officer” is defined in reg. 34 (1) as the chief officer of the force concerned, in cases where another officer conducts the review under reg. 37 (1) or 37 (2) it seems to me clear that he or she must do so in the place of the chief officer and in the capacity of reviewing officer. If the intended model in such a case were that the chief officer would remain formally the reviewing officer, with the other officer merely making a report or recommendation, the Regulations would have to contain provisions to that effect, and there are none. Further, if that were the intended model it would undermine the clear purpose of at least reg. 37 (2), namely to ensure that where the chief officer of the “home” force or his designate have a potential conflict they should play no part in the decision taken. The phrase “in that capacity” is used in reg. 37 (2): the “capacity” being referred to can in my view only be that of reviewing officer. If that is right, then the decision of the officer conducting the review is in all respects equivalent to a decision of the chief officer of the home force and takes effect automatically in substitution for the decision of the panel as provided by reg. 36 (3).

Mr. Beggs objected that such a construction would undermine the position of the Chief Constable, who by virtue of s. 10 of the Police Act 1996 is entrusted with “direction and control” of his force. It was, he submitted, inconsistent with that responsibility that the review procedure should permit a situation in which he might be saddled with an officer in whom he had no confidence. But in my view the wording of the review provisions is clear. If the result is that in a particular case a chief officer may be required to maintain in his force an officer whom he wishes to see dismissed I do not see that that result is objectionable in principle. The fact that a chief constable has ultimate responsibility for the conduct of his force does not mean that he must have untrammelled power to hire and fire. There are other circumstances in which, as here, a decision as to who should be a member of his force rests with someone other than himself – most obviously where a panel declines to recommend dismissal or where, if it does so, the decision is overturned by the Police Appeals Tribunal.

Mr. Beggs also pointed to the reference in para. 4.11 of the Guidance (which covers cases falling within reg. 37.2) to the chief constable who conducts the review making a “recommendation” to the chief constable of the home force, “who will remain responsible for implementing the decision”. But that wording seems to me at best ambiguous. In a reg. 37 (2) case the decision of the officer conducting the review has inevitably to be at least communicated to the home chief constable. The description of that communication as a “recommendation” may not be ideal if the truth is that the decision is binding on the recipient, but the language is nevertheless not altogether inapt, given that the home chief constable remains the person who has to take action in consequence. And the phrase “implementing the decision” strongly suggests that the role of the home chief officer is indeed only to give effect to the decision of the officer who has conducted the review. In any event, whether the language of the Guidance is ambiguous or not, it does not seem to me that it can trump the clear provisions of the Regulations.

THE LAWFULNESS OF MR. BRUNSTROM’S DECISION

Mr. Millar raised a preliminary objection to this aspect of Mr. Beggs’s submissions. He submitted that if the Defendant wished to contend that Mr. Brunstrom’s decision was unlawful the proper course for him to have taken would have been to bring prompt proceedings for the judicial review of that decision. Unless and until that decision was quashed by the court it was a lawful and effective decision which the Defendant ought to have respected: it was wrong for him to arrogate to himself, in his letter of 22^nd May 2006, a finding that only a court could make. The result of the course which he had taken was that he was seeking to raise a collateral challenge to Mr. Brunstrom’s decision in proceedings where Mr. Brunstrom was not the defendant.

As to that, the initial position adopted by Mr. Beggs was that if Mr. Brunstrom’s decision was unlawful it was simply a nullity and could be ignored on that basis. He relied in his skeleton argument heavily on the speech of Lord Irvine in Boddington v. British Transport Police [1999] 2 AC 143, at pp. 157-8. But I need not explore the extent to which Lord Irvine’s observations in that passage – as to which other members of the House expressed some reservations – are correct, because in his oral submissions Mr. Beggs was content to proceed primarily on the basis that even if Mr. Brunstrom’s decision was not a nullity, and even if the Defendant’s rejection of it without seeking to challenge it in the courts was “unorthodox”, there was nevertheless no bar to my reaching a finding on the lawfulness of that decision in the context of the present proceedings; and he submitted that in the present case it was necessary to do so in order to reach a just result. He pointed out that although Mr. Brunstrom was not a defendant he had been served as an interested party and was on notice of the criticisms made of his decision. All the material necessary for me to rule on the lawfulness of that decision was before me.

I think Mr. Beggs is right about this. Whether or not it might have been better for the Defendant to seek judicial review of Mr. Brunstrom’s decision, I can see no real prejudice to any party in my considering its lawfulness in the present proceedings. Mr. Millar did not in fact go so far as to submit that it was wrong in law for me to do so: he only urged me to be cautious. I turn therefore to consider the substance of Mr. Beggs’s submission that Mr. Brunstrom’s decision was unlawful.

What Mr. Brunstrom held was that the sanction of dismissal was not “appropriate to the conduct proved” and was “an abnormal punishment to an extent that I find unfair” (see para. 26 of his letter). I am bound to say that I find that conclusion very surprising. The panel’s findings – which Mr. Brunstrom expressly accepted – were, in short, that the Claimant had knowingly participated in a deliberate omission to investigate a serious reported crime because he feared that doing so would reveal other misconduct on his part. As part of that cover-up he had lied about his whereabouts to the colleague who he asked to carry out a PNC check. He had maintained his lies in the subsequent investigation and at the hearing. That conduct was – rightly and indeed inevitably – characterised by the panel as dishonest. Mr. Brunstrom himself referred to the Claimant’s conduct as “reprehensible in the extreme” (para. 29 of the letter of 8^th May 2006). (He also described him as “an unreliable disgrace” (para. 24) and as “an unreliable officer who cannot be trusted to act properly without close supervision” (para. 30), but it may be that those observations were directed wholly or mainly to charges 4 and 5.) That seems to me, as the panel put it, to go to the heart of the Claimant’s integrity. While I would certainly accept that not every untruth or half-truth told by a police officer, however trivial and whatever the circumstances, would necessarily constitute misconduct justifying dismissal, the misconduct found by the panel as regards the events of 18^th September, and the Claimant’s subsequent lies about it, constituted deliberate dishonesty in an operational context. As para. 1 of the Code rightly emphasises, integrity is a fundamental requirement for a police officer. I should, frankly, be dismayed to think that such conduct was not of a kind which was normally thought to merit dismissal – as indeed the three officers who comprised the original panel, and the Defendant, believed that it did. (I must also suspect that the omission from Mr. Galvin’s submissions of any explicit challenge to the penalty on charge 1, as discussed at para. 20 above, reflects a recognition that in a case of a breach of para. 1 of the Code it is hard to contend that dismissal is an inappropriate sanction.)

Mr. Beggs submitted that, for essentially those reasons, Mr. Brunstrom’s conclusion was irrational. He made the particular point by way of support that the finding of dishonesty made by the panel would require to be disclosed to the defence in any prosecution in which the Claimant’s evidence were in issue; and he submitted that that fact would make him, in practice, unemployable in any operational role. The extent to which that would indeed be the consequence was not fully explored before me, and I do not need to rely on it; but, whatever the precise position about the formal disclosure obligations, the general point that the Defendant would have difficulty putting the Claimant forward in any prosecution as a witness of truth seems to me to have considerable force.

Mr. Millar firmly though tactfully reminded me that I am not a police officer and that I am much less well-placed than Mr. Brunstrom to form a view on what level of sanction is and is not “normal” for any particular kind of misconduct. He drew my attention to the fact that another officer in the Merseyside force, an Insp. Moore, who had committed a serious breach of para. 1 of the Code – that is, had been found to have acted dishonestly - in association with PC O’Leary at much the same time had not been dismissed (although he had suffered a reduction in rank): Mr. Millar accepted that the circumstances of that case were different, but he relied on the sanction imposed on Insp. Moore as an illustration that an outsider’s view of the level of punishment that was appropriate for such breaches might not correspond to what was accepted as fair and normal within the force. (Footnote: ² )

I have come to the conclusion that Mr Brunstrom’s decision to overturn the panel’s decision was not one to which he could properly have come. My principal reason is simply that I cannot accept that dismissal was an inappropriate penalty in the light of the panel’s findings. I am willing to accept, despite my own views and in deference to the points made by Mr. Millar, that there may be room for argument as to whether it was the only possible penalty. But that is not the decisive question. It must be in the nature of a review – as opposed to a full appeal - that the chief officer conducting it should not overturn the decision of the original panel as to the appropriate sanction simply because he would have taken a different view, but only where the sanction imposed by the panel was so plainly excessive as to be properly characterised as unfair. I appreciate that Mr. Brunstrom does indeed appear in para. 26 of his letter to go that far; but I cannot in all conscience agree with him, for the reasons given at para. 28 above.

I would if necessary rest my decision on that ground alone. However, there are a number of features of Mr. Brunstrom’s detailed reasoning which seem to me at least questionable; and it may in fact be that it was these features which led him to reach what appears to be so surprising a conclusion. That alleviates much of my concern about disagreeing with the view of an experienced Chief Constable who plainly approached his task thoughtfully and conscientiously. The features in question are as follows.

First, Mr. Brunstrom in para. 26 summarised the misconduct for which the Claimant fell to be disciplined as “being off his beat without authority and lying about his reasons”. That summary does not fully reflect the panel’s findings. A crucial element in those findings was the deliberate failure properly to investigate or record Mr. Colbert’s complaint and the contemporaneous lie told when making the PNC check: those features are important because they relate directly to the Claimant’s conduct of an operational matter – they are more serious than simply telling lies subsequently to investigators and the panel when his conduct came to the attention of his superiors. In this connection I note Mr. Brunstrom’s acceptance in para. 25 of his letter of a submission that charges 1 and 2 could have been made out even if sub-para. (viii) of the particulars had not been proved and his observation that it is precisely the allegation in that sub-para. – i.e. that the other acts of misconduct were committed in order to cover up the unauthorised visit to Mr. Mitchell - which made the charges so serious. I do not follow his train of thought on this point; but it is at least possible that he believed that he had to proceed on the basis that the panel had not found sub-para. (viii) proved. If so, that would be plainly wrong.

Secondly, Mr. Brunstrom sought to explain what he characterised as the panel’s “over-reaction” by the hypothesis that it had in fact been biased, as regards penalty, by “the repeated statements about corruption during the hearing” (paras. 26 and 30). I find this explanation hard to reconcile with his explicit finding that the panel had not been affected by any such bias in deciding the issue of guilt and indeed that it had conducted the hearing with conspicuous fairness (para. 15 (4)-(6) above). No doubt as a matter of strict logic the panel might have avoided bias when deciding guilt but succumbed to it when considering sanction; but in human terms it is not very likely. If this explanation is put aside, there is all the less reason to see anything wrong with the panel’s decision.

Thirdly, I am struck by the vehemence of Mr. Brunstrom’s reaction to the fact that the Claimant was found guilty, and formally punished, on each of charges 1-3 instead of only on charge 1: see para. 17 of his letter quoted at para. 15 (8) above. I can understand his argument that that was wrong in principle because the charges were alternatives. On the other hand, I can see the advantage of the panel expressing a view on each charge in case its findings of guilt on the more serious charge or charges were overturned on appeal; and I was indeed told that there was judicial authority supporting the course taken. But whatever the rights and wrongs of this issue I am puzzled as to why Mr. Brunstrom attached such importance to it. It seems to me a largely formal matter, since it would be apparent to any person who relied on the findings for any purpose that the three “convictions” were in fact simply different formulations of a single course of (mis)conduct. No objection was taken by Mr. Galvin – either before the panel or in the review - to sanctions being imposed on all three. The significance of this point in the present context is that at para. 25 of his letter, and again in the middle of para. 30, where he was dealing with the question of penalty, Mr. Brunstrom expressly returned to the question of the inappropriateness (as he saw it) of the course taken about the three charges. The detailed reasoning is not clear: there is apparently some connection with the “sub-para. (viii) point” (see para. 33 above), but I cannot entirely follow it. But it does seem that Mr. Brunstrom may have regarded the perceived unfairness to the Claimant of being convicted on three offences rather than only one as a further reason why the penalty on charge 1 should be found to be excessive. If so, I cannot agree. I note also that in the same para. 30 Mr. Brunstrom refers to the Claimant having received “only reprimands” on charges 4 and 5. Again, I do not quite follow Mr. Brunstrom’s train of thought here; but I am unable to see any basis on which, if the penalty on those matters was indeed unduly lenient, that is a reason for holding the penalty on charge 1 to be excessive.

Whether those reasons amount in law to a finding of irrationality or a finding that Mr. Brunstrom misdirected himself as to the limit of his powers under the review provisions, I am satisfied that his conclusion cannot be sustained in law. In my judgment the decision of the panel should not have been overturned on a review.

Having reached that point, in my view it follows that I ought not to grant the relief sought. If the Defendant had followed the arguably more formally correct course of seeking a judicial review of Mr. Brunstrom’s decision that decision would have been quashed, with the result that the decision of the panel stood (subject to appeal). If I refuse relief in the circumstances which have in fact occurred substantially the same result will be achieved.

I should add in this connection that the Claimant has lodged an appeal on a precautionary basis: he could not of course have proceeded with it consistently with his contention that his original dismissal had been effectively overturned. It does not necessarily follow from my reasoning in overturning Mr. Brunstrom’s decision that the panel’s finding is impregnable on the more intense review which will take place if that appeal is pursued. For one thing, the panel’s findings of fact may not be upheld. Even if they are, my decision does not mean that as a matter of law the decision of the panel was the only possible decision on the basis of those findings: it means only that it was a decision which was unquestionably open to it. It is true that I have been unable to avoid expressing a view on the appropriateness of dismissal as a penalty; but if the appeal is pursued the appeal tribunal will have to reach its own view.

DISCRETION

Mr. Beggs submitted that even if I held that Mr. Brunstrom’s decision was lawful and that the Defendant was in principle bound to implement it I should not as a matter of discretion grant relief requiring him to do so, because it was wrong in principle that a Chief Constable should be required to retain in his force an officer in whom he had no confidence. He relied principally on the decision of the House of Lords in Chief Constable of the North Wales Police v. Evans [1982] 1 WLR 1155, and in particular on the observations of Lord Brightman at pp. 1175-6. Since in the event I do not need to consider that submission, I prefer not to express any concluded view on it. It is fair to say that I would have seen some difficulty in withholding relief from a claimant who had successfully established that he had been dismissed in plain breach of the applicable procedures: the position of the applicant in Evans was arguably somewhat different since he was a probationer and was not entitled to the benefit of the procedures in question.