Cleveland Constabulary, R (on the application of) v Police Appeals Tribunal

This is a substantive application by the Chief Constable of Cleveland Constabulary, represented by Mr Charles Apthorp of counsel, for the judicial review of the decision of the Police Appeals Tribunal (PAT) given on 28 April 2016. Mr Lee Rukin is joined into these proceedings as an Interested Party (IP) since the decision of the PAT related to him. He is represented by Mr Nicholas Yeo of counsel. Permission to bring the claim was given on 23 September 2016.

By its decision of 28 April the PAT allowed an appeal by the IP against the decision of a disciplinary panel made at a misconduct hearing held on 5 August 2015. The panel had concluded that the IP had been guilty of gross misconduct by breaching the standards of professional behaviour expected from him in his capacity as a Temporary Chief Inspector with the claimant Constabulary. The panel concluded that the sanction in respect of this gross misconduct was dismissal without notice. The PAT took the view that the conduct about which the claimant complained, in so far as it was found proved, was misconduct but not gross misconduct and the sanction to be applied was a final written warning.

By these proceedings the claimant seeks an order that the decision of the PAT be quashed because it was a flawed decision. In addition, by the claim form the claimant seeks remission of the matter back to the PAT with an order directing it to dismiss the IP’s appeal from the panel. It transpires that this latter order is not open to the court since the PAT no longer has jurisdiction in respect of the conduct of the IP by reason of his resignation from the police force on 31 December 2016. Of course, the quashing of the decision of the PAT would inevitably result in the reinstatement of the decision of the panel and thus the finding of gross misconduct and dismissal without notice.

The PAT take a neutral stand in this application and has not filed any pleadings nor is it represented at this hearing but the IP has taken an active position by which he contends that the decision of the PA T to quash the decision of the panel was one which it was lawfully entitled to make.

There are two preliminary issues to which it is appropriate to refer. The first is the contention by Mr Yeo that this claim is academic bearing in mind that the IP has resigned from the claimant police force in any event.

He refers to sections 31(3C) and (3D) Senior Courts Act 1981 which require the court to consider whether the outcome of the application would have been substantially different if the conduct complained of had not occurred. He argues that the conduct complained of was a decision of the PAT which essentially reinstated the IP in his employment with the claimant but that that decision has been divested of any relevance by the resignation of the IP.

It was pointed out that section 31(3C) relates only to matters to which the court should have regard when considering the question of permission. This is a substantive hearing to which the provisions of those particular subsections do not apply. As I understand it, Mr Yeo did not demur from that proposition or from the proposition that accordingly the issue of whether the claim is academic or not does not strictly arise in the context of the ground for striking the claim out at this stage.

Secondly, the issue was raised as to whether these proceedings had been lodged sufficiently promptly. CPR 54.5 specifies that the claim form must be filed promptly and, in any event, not later than 3 months after the ground to make the claimant first arose. It is trite law that a claim is not necessarily made promptly simply because it has been made within 3 months.

The claim form was issued on 23 June 2016, 8 weeks after the decision was made but Mr Yeo argues that in the context of the review of a decision involving a person’s livelihood that period cannot be considered prompt.

He refers to the judgement of Mann LJ in R v Secretary Of State for Health and Another ex-parte Furneaux 1994 2 All ER 652 at 658 which underlined the principle that promptitude is important where the rights of third parties are affected by the decision which is impugned. He also refers me to the judgement of Keene LJ in Hardy v Pembrokeshire County Council 2006 EWCA Civ 240 paragraph 10 in which it was said;

“a public law decision by a public body in almost all cases affects the rights of parties other than the decision maker and the applicant seeking to challenge such a decision. It is important that these parties and indeed the public generally, should be able to proceed on the basis that the decision is valid and can be relied on, and that they can plan their lives and make personal and business decisions accordingly.”

It is argued that the approach of the claimant in waiting until 23 June to issue proceedings was dilatory and has prolonged uncertainty for the IP.

Mr Apthorp points out that the written decision of the PAT was not received until the beginning of May and it was only at that point that formal advice could be obtained regarding the merits of seeking a review of that decision and that the claim form was issued less than 8 weeks from the date when the decision was received. Promptitude, it is said, has to be considered in the context of the difficult issues in the claim and it is disputed that the interested party has been significantly affected by the time lapse between the decision and issue.

In fact, whilst the issue of promptitude was presaged in the grounds of resistance and in both counsels’ skeleton arguments it was not pursued by Mr Yeo in his oral submissions. Insofar however as it is still a live issue I reject the contention that these proceedings have not been lodged with sufficient promptitude.

I accept that there are difficult issues raised by this claim which make an 8 week period between the decision and issue of the claim form a reasonable one. I am not satisfied that the IP or others have been caused such prejudice by the time lapse that it is appropriate to strike out this claim on limitation grounds and I have no evidence that he suffered any avoidable hardship during the period when the claimant’s application was being drafted.

As I have said, at the relevant time, the IP was a Temporary Chief Inspector. He was thus a senior police officer in a leadership role and was visually so.

On 19 May 2015 he was brutally assaulted by the husband of a female police sergeant with whom he was conducting an intimate affair. His facial bones were fractured in multiple places, more specifically his injuries included a severe compound fracture of the right eye socket, a crushed fracture to the side of the right eye and a fractured cheekbone. He was rendered unconscious by the attack and was hospitalised. It took place in the presence of the police sergeant with whom he was intimately involved.

The disciplinary proceedings against him arose out of the fact that he lied to police colleagues about the circumstances giving rise to his injuries. The panel’s assessment was that the lies brought discredit to the police service and betrayed a dishonesty and a lack of integrity on the part of the IP that amounted to gross misconduct and justified summary dismissal taking account of the fact that the public’s confidence and faith in the integrity of those who police them is a fundamental precept and one which is reinforced by, and founded upon Statute, Regulations, Home Office Guidance and a Code of Ethics.

So what were the lies which are at the heart of this matter? In summary it consisted of the IP intimating to various colleagues that his injuries arose not as result of an assault but as a result of a cycling accident caused by his riding into the back of a parked car. In fact the IP had ridden into the back of a parked car the day prior to the assault but had emerged from that experience without any injury whatsoever.

For reasons which it is unnecessary to go into the lies slowly unravelled and when the IP was confronted with that on 12 June he readily acknowledged that he had misled his colleagues. He said that he did so because he did not want is children to know that he was the victim of the assault and his pride had been severely hurt as result of the incident.

He acknowledged that he had lied to DCC Spittal, Chief Superintendent McPhillips, Supt Green and Inspector Hunt by telling them that his injuries had been caused by a cycling accident albeit he did not accept that Inspector Hunt’s recollection was correct in so far as he recalled having been told by the IP that there was a non-violent altercation between the IP and the police sergeant’s husband. He was clear that he thought that the conversations that he had had with these officers were personal and not professional. The view that the conversations were personal rather than professional was not shared by either DCC Spittal, chief Supt McPhillips or Superintendent Green. They saw them as professional conversations. It is right that Inspector Hunt thought that his contact with the IP was part professional and part personal.

The charges that the panel had to consider arising out of this series of events were as follows;

The panel found proved charge A, relating to honesty and integrity and held that the IP’s actions amounted to gross misconduct. The panel also found proved the contention that the provision of a false account of how the IP was injured to members of the CPS amounted to discreditable conduct and that accordingly it was misconduct but there was no finding that it was gross misconduct. It found not proven the contention that the other 3 allegations of conduct amounted to discreditable conduct.

In reaching its conclusion the panel rejected significant parts of the IP’s evidence. For example the IP sought to excuse his conduct in seeking to corroborate his lies by the use of photographs on the basis that that was simply poor judgement. The panel, at paragraph 2.22 of its judgement, saw that as “a calculated and premeditated attempt to give substance to the lie and to protect his reputation and career” and at paragraph 3.4 that supporting the lie with photographs was “not poor judgement, it is dishonesty and it lacks integrity”.

In paragraph 2.6 of its judgement it is clear that the panel rejected the IP’s contention that he constructed this web of lies in order to protect his young children. The panel formed the view that the deception arose by virtue of the concern as to whether chief officers “knew of the real reason for his injuries and whether it would damage his career”. At paragraph 2.7 the panel expressed the opinion that the IP “formed an intention to be dishonest to protect his pride career and reputation and not primarily his family or his private life”. At paragraph 2.10 the panel finds that “the use of photographs embellished the lie told by the officer”.

Fundamentally, for the purpose of this application, the panel rejected the IP’s contention that he was entitled to lie because his Article 8 right to privacy entitled him to do so. The panel concluded that these lies were promulgated not in a private capacity but rather in a professional capacity and that Article 8 Rights were therefore not engaged. The IP appealed to the PAT on the grounds that:

As I have said, the claimant contends that the decision of the PAT whereby the appeal from the panel was allowed was flawed and should be quashed. In paragraph 20 of the grounds for judicial review the claimant impugned the decision of the PAT on 6 grounds;

Mr Althorp in his skeleton argument distils the grounds of appeal down to 5 namely;

Under section 39A(1) the Secretary of State may issue codes of practice relating to the discharge of their functions by chief officers of police.

Pursuant to section 50(2)(e) the Secretary of State may make regulations as to the conduct, efficiency and effectiveness of members of police forces and the maintenance of discipline.

Pursuant to section 87 the Secretary of State may issue guidance to police authorities concerning the discharge of their functions under regulations made under section 50.

These Regulations were made pursuant to the power granted by section 50 of the 1996 Act. They provide the standards of professional behaviour which include the following; “that police officers are honest, act with integrity and do not compromise or abuse their position”.

The HOG arises pursuant to section 87 of the 1996 Act and in its most recent form was issued in May 2015 and so was relevant at the time of thehearing before the panel. In any event, the previous version was in materially the same terms.

The HOG is statutory guidance which those responsible for disciplinary functions in the police force are required to take “fully into account” when discharging their functions and which “should not be departed from without good reason”.

The HOG refers back to the Conduct Regulations and specifically points to the fact that standards of professional behaviour are set out therein. It also draws attention to the fact that as a professional body for policing the College of Policing is “responsible for setting standards of policing practice and for identifying, developing and promoting ethics, values and integrity”. The Code of Ethics, issued by the College of Policing, sets out in detail the principles and expected behaviours that underpin the standards of professional behaviour for everyone working in the policing profession in England and Wales. I shall come to the Code of Ethics shortly.

HOG however also makes clear that the standards of professional behaviour reflect relevant principles enshrined in, amongst other things, the European Convention on Human Rights. The purpose of the HOG is to emphasise that police officers are expected to act with honesty and integrity and in a manner which does not discredit the police service.

It points out at paragraph 1.26 that discredit can be brought on the police by an act itself or because public confidence in the police is undermined. In general it should be the actual underlying conduct of the police officer that is considered under the misconduct procedures, whether the conduct occurred on or off duty.

The HOG deals with off duty conduct from paragraph 1.28 (Footnote: ²). So far as is relevant it states as follows;

These regulations are also made under section 50 the 1996 Act and include the following;

Schedule 1 of the Regulations include the following;

I have already referred to this in the context of the fact that it is referred to in the HOG. It is issued pursuant to section 39A of the 1996 Act. As a result, like the HOG and the Police Conduct Regulations 2012 and the Regulations of 2003, it has statutory authority.

Mr Yeo suggests that its status is somewhat inferior to that of the HOG and that the HOG takes precedence over the Code of Ethics in respect of any guidance as to the scope of professional standards. I have not had my attention drawn to any area where one contradicts the other so that deference has to be made to one rather than the other so the matter is probably academic. However, it seems to be that the genesis of both is the 1996 Act and it is accordingly difficult to see why one should have primacy over the other. The Code of Ethics specifically makes it clear that its scope extends beyond its statutory basis (paragraph 1.3.1).

The Code of Ethics sets out the principles and standards of behaviour expected from anybody who works in policing. Paragraph 1.4.4 of the preamble to the Code specifically acknowledges the position of senior police officers. It states;

“All police personnel in leadership roles are critical role models. The right leadership will encourage ethical behaviour. Those who are valued, listened to and well led are likely to feel a greater sense of belonging and so be more likely to take pride in their work and act with integrity”

Paragraph 1.4.5 states;

The policing principles set out in paragraph 2 of the preamble to the Code include a requirement to be

In terms of honesty and integrity, paragraph 1.3 makes it clear that the more senior in rank grade or role an officer is, “the greater the potential for harm as a consequence of any misuse of his position or a failure to meet the standards required by the code of ethics.” (my emphasis).

Under the heading “honesty and integrity” the code gives examples of the standard to be expected. The standard of honesty and integrity is met when the officer does not “knowingly make false, misleading or inaccurate oral or written statements in any professional context”

Paragraph 9 of the code deals with conduct including conduct off duty. Paragraph 9.1 states;

“As a police officer……….. You must keep in mind at all times that the public expect you to maintain the highest standards of behaviour. You must, therefore, always think about how a member of the public may regard your behaviour, whether on or off duty”

Paragraph 9.2 states;

“You should ask yourself whether a particular decision, action or omission might result in members of the public losing trust and confidence in the policing profession”

Paragraph 9.3 states;

“It is recognised that the test of whether behaviour has brought discredit on policing is not solely about media coverage and public perception but has regard to all the circumstances”

There are supplementary notes to the code. Of particular importance in this case is paragraph 5.1 of the supplementary notes;

“Breaches of the code of ethics will not always involve misconduct or require disciplinary proceedings. Breaches will range from relatively minor shortcomings in conduct performance or attendance through to gross misconduct and corruption. Different procedures exist according to the type of unprofessional behaviour or misconduct alleged.”

Rule 4 (4) states;

I have been referred at length to 2 cases the first of which is R (CC Durham) v PAT (Cooper) 2012 EWHC 7233 (Admin) ACD 20. This was a decision of the Divisional Court. The second case to which extensive references have been made is R (Williams) v PAT 2016 EWHC 2708 (admin). I have also been referred fleetingly to other cases.

I do not intend to quote from either Cooper or Williams at more length than I think is strictly necessary. Mr Yeo in his skeleton argument cites extensively from paragraphs 5, 6 and 7 of the judgement of Moses LJ in Cooper. His purpose in doing so is to explain how the provisions of rule 4(4) of the 2012 Rules referred to above are to be construed. I propose simply to confine myself to the principles that can be gleaned from those citations.

Mr Apthorp took me to a number of passages in Williams predominantly on the basis that it codified principles enunciated in previous cases but it is also right to say that the issues in Williams bear a good deal of similarity to the issues with which I am concerned.

That case too concerned a police officer who had attained high rank and who was very highly regarded, as is the case here. Mr Williams was alleged before a misconduct panel to have been guilty of gross misconduct. The panel concluded that he had indeed been guilty of gross misconduct and concluded that the appropriate sanction was dismissal without notice. The difference in the Williams case is that the PAT to whom Mr Williams appealed took the view that the findings of the panel and the sanction that it imposed were not unreasonable and so dismissed the appeal. That is in distinction to the instant case where the PAT regarded the decision of the panel to have been unfair/unreasonable. The judicial review in Williams centred on Mr Williams’s contention that the decision as to sanction made by the panel and the PAT was unlawful.

Williams is useful because of its analysis of earlier cases principally dealing with the question of sanction. The starting point is perhaps Bolton v The Law Society 1994 2 All ER 486. That is a case relating to the conduct of a solicitor but it is of general application. The principle that emerged from that case, expressed by the decision of Sir Thomas Bingham MR, is that where a person in an occupation in which the trust and confidence of the public is reposed is guilty of dishonesty then it is almost invariably the case, no matter how strong the mitigation, that the person’s career will be ended by his/her disciplinary body. This is because “the reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is part of the price”.

That principle was specifically approved in Law Society v Salsbury 2009 1 WLR 1286 at paragraph 3 and 37 where Jackson LJ stated that there existed only a very small residual category of cases where ending a professional person’s career for dishonesty was not appropriate. In that case however it was recognised that, in applying Bolton principles, account had to be taken of the rights of the person under the European Convention of Human Rights.

The effect of Bolton and Salsbury was further analysed in Solicitors Regulation Authority v Dennison 2011 EWHC 291 at paragraph 16. It is not in my view necessary to cite that in detail. It sets out the purpose for the imposition of sanctions by professional bodies and draws attention to the fact that, albeit there may be a punitive element in such sanctions, that is not their primary purpose and that accordingly personal mitigation is likely to be of less effect. Nevertheless, regard must be had to the rights of the person under ECHR.

Perhaps, for the purpose of this application, it is wise to have regard to paragraph 16(7) of Dennison wherein it is said;

“The power of the High Court to interfere with a decision of the tribunal on sanctions is not limited to cases where “a very strong case is shown”. The court will intervene where there has been an error of law or when a sentencing decision was clearly inappropriate”

R ota Chief Constable of Dorset v PAT and another (2011) EWHC 3366 is a case concerning a police officer. It is generally known as the Salter case. Burnett J as he then was concluded at paragraph 22 that;

“The correct approach to the question of sanction on a finding of serious impropriety by a police officer in the course of his duty is reflected in the principles articulated in Bolton and Salsbury. The reasons which underpinned the strict approach applied to solicitors and barristers apply with equal force to police officers. Honesty and integrity in the conduct of police officers in any investigation are fundamental to the proper workings of the criminal justice system”.

The learned judge made it clear that the most important purpose of the imposition of sanctions, particularly in cases involving dishonesty or impropriety in connection with an investigation, is to maintain public confidence in the police service and to maintain its collective reputation. He went on to say;

“Cases of proven dishonesty and lack of integrity in an operational environment……… are the most serious breaches of the code of conduct. In such cases, the sanction of dismissal or requirement to resign would, to use the language of Sir Thomas Bingham in Bolton “almost invariably” be appropriate but there exists “a very small residual category” were a lesser sanction may be available.”

In the Court of Appeal 2012 EWCA Civ 04 the court upheld the conclusion reached by the judge below that, in accordance with Bolton, mitigation is unlikely to assist the police officer from avoiding dismissal but Maurice Kay LJ made the point that;

“While I would certainly accept that not every untruth or half-truth told by police officer, however trivial and whatever the circumstances, would necessarily constitute misconduct justifying dismissal, the misconduct found by the panel constituted deliberate dishonesty in an operational context”

Williams is also useful for reminding a court hearing a judicial review from the decision of the PAT what the obligation of the court is. As Holroyde J puts it at paragraph 62;

In the context of a case such as this, the learned judge’s observations at paragraph 66 are also apposite;

“In my judgement, the importance of maintaining public confidence in and respect for the police service is constant, regardless of the nature of the gross misconduct under consideration. What may vary will be the extent to which the particular gross misconduct threatens the preservation of such confidence and respect …….. Gross misconduct involving dishonesty or lack of integrity will by its very nature be a serious threat: save perhaps in wholly exceptional circumstances, the public could have no confidence in a police force which allowed a convicted fraudster to continue in service. Gross misconduct involving a lack of integrity will often also be a serious threat. But other forms of gross misconduct may also pose a serious threat, and breach of any of the standards may be capable of causing great harm to the public’s confidence in and respect for the police.”

Mr Yeo draws attention to paragraph 67 to the effect that what is said at paragraph 66 does not mean that personal mitigation is to be ignored, indeed it must always be taken into account. It is simply that the weight which can be given to personal mitigation will be less in a case involving gross misconduct where the confidence in the police force is at risk than it would be in other cases.

It will be recalled by reference to paragraph 27 above that one of the complaints by the claimant is that the decision of the PA T was insufficient and inadequate as to the reasons. It seems that that was also a complaint made about the PAT decision in Williams. Holroyde J stated at paragraph 71;

“I accept that the panel could have set out in greater detail than they did the reasons why the importance of maintaining public confidence and respect made dismissal necessary. I do not however accept that the terms in which the panel expressed their findings reveal any error or unfairness in their approach. This is not a case in which it is impossible to understand why they reached the conclusion they did or in which it could be said that their reasoning was so scant as to be unsustainable”

Discussions as to the quality of the panel’s judgement bring me on the other hand to Southall v GMC (2010) EWCA Civ 484 paragraphs 55 and 56 in which Lord Justice Levinson states;

Finally, on the issue of the relevant law I turn to the question of privacy. This is in fact the pivotal issue in this case since the contention of the IP is that his Article 8 rights are engaged and that there was in fact no obligation upon him to be honest as to the reasons that he came by his injuries because to do so would inevitably lead to an infringement of his right to privacy.

Article 8 ECHR of course has been incorporated into English law through the Human Rights Act and is specifically incorporated into the regulatory framework relating to the conduct of the police (Footnote: ³) . Article 8 states as follows;

In R (Razgar) v SoS for the Home Department 2004 2 AC 368 the House of Lords adopted a structured approach as to when the right, and qualifications to it, are engaged.

In Campbell v MGN (2004) 2 AC 457, Lord Nicholls said at paragraph 21;

It is clear that a person’s sex life and their reputation both engage Article 8 considerations. It is also clear that a person’s private life does not necessarily end when the individual enters the workplace. In Halford v United Kingdom 1997 24 EHRR 523 the European Court of Human Rights held that the applicant’s right to privacy had been violated where the police service had intercepted private calls made on an office phone provided to the applicant (for private use) in her role as an assistant chief constable. Similarly in Copland v United Kingdom 2007 45 EHRR 37 emails and websites within the work environment were held to attract the same protection.

The point made by Mr Yeo in this context is that the authorities clearly reveal that what is and is not private conduct is not defined necessarily by the question of whether the conduct took place whilst the person involved in it was on duty or off duty in a professional capacity but rather whether, when the conduct was undertaken, he/she had a reasonable expectation of privacy in relation to it. This point is made because one of the complaints that was made about the decision of the panel and which formed the basis of the appeal to the PAT was that the panel had focused its consideration of privacy on the issue of whether the IP was on duty or off duty when the conduct occurred, and that is not the test by which Article 8 considerations ought properly to be judged.

Mr Yeo’s position is that, based upon the jurisprudence in relation to privacy issues and undertaking the balancing act, paragraph 1.28 of the HOG should relate not to questions as to whether the officer was off duty. The decision maker should also consider the relevant conduct on the basis of whether it related to the police officer’s private life ie whether it related to something in respect of which the officer had a reasonable expectation of privacy.

In paragraph 45 of his skeleton argument Mr Yeo argues that in reality paragraph 1.28 should be construed on the following basis;

“Police officers have some restrictions on their private life. These restrictions are laid down in the police regulations 2003. These restrictions have to be balanced against the right to a private life. Therefore, in considering whether a police officer has acted in a way which falls below the standards while off duty or otherwise relating to his private life, due regard should be given to that balance and any action should be proportionate taking into account all of the circumstances”

Mr Yeo suggests that the inclusion of the underlined words accurately reflects what paragraph 1.28 must be intended to mean.

I recognise that Mr Apthorp’s position is that the decision of the panel is unassailable because it took account of all relevant matters and no irrelevant matters and the conclusion reached both as regard to the allegations and the sanction that it imposed was rational and reasonable. He points out that:

I have already set out in paragraph 25 above the basis upon which the IP argued that the panel’s decision was unfair. I do not think I need to enlarge on Mr Yeo’s arguments in that connection at this point because essentially they are set out in the decision of the PAT to which I now turn.

It should first be said that it is very brief. That in itself however is not necessarily a criticism provided that it meets the test set out in Southall to which I refer above. Of course the argument of Mr Apthorp is that it does not, taking account of the complexity of the case and the fact that it involves serious matters relating to the integrity of the police force and breaches of standards of honesty and engagement of Article 8 rights and it fails to go through the process of setting out why the panel’s decision was one which it was unreasonable or unfair to make.

The PAT recognise in paragraph 1 that its role is not to conduct a rehearing but merely to review the panel’s findings and that it should not substitute its own view over that of the panel unless satisfied that the decision of the panel in relation to finding (i.e. liability) or sanction (i.e. penalty) was unreasonable or otherwise unfair. Mr Yeo argues that this is an accurate interpretation of the PAT’s powers as specified in rule 4(4) of the 2012 Rules, which I reproduce at paragraph 51 above. As I understand it, Mr Apthorp does not demur from this.

Paragraph 2 of the decision is a particularly critical one for reasons which I shall discuss below. In it the PAT consider paragraph 3.8 of the panel’s decision set out at paragraph 75(F) above. As it is required to do, the PAT considered whether the panel had misdirected itself in concluding that there is no such thing as “private on duty conduct”. Mr Yeo argues that it was entirely reasonable for the PAT to conclude that in making a finding that there is no such thing as “private on duty conduct” the panel did indeed misdirect itself and that such misdirection could have resulted in an unfairness which could have materially affected the finding or decision of the panel. Mr Yeo points out that in paragraph 3 the PAT specifically recognises and accepts that the misdirection could have materially affected the finding by the panel. Mr Apthorp takes issue with this and I set out the basis upon which he does so in paragraph 88 below.

At paragraph 5 the PAT accept and agree with the panel’s findings that the IP was not obliged to discuss the events surrounding his injury but took the view that giving away any details in relation to the assault would almost certainly have resulted in information regarding the IP’s relationship with the police sergeant being revealed. The PAT saw that as an engagement of Article 8 issues in relation to the IP’s private life.

At paragraph 6 the PAT noted the observation in the code of ethics to the effect that any lie can amount to breach of the code but not all lies will amount to misconduct. The PAT makes clear in paragraph 6 that it accepted that the IP “was entitled to lie to DCC Spittal, the CPS employees and other members of the force about how he came to suffer the injuries” and it formed the view that this “does not amount to misconduct as the cause of the injuries was a private matter and the appellant (IP) was not obliged to tell anyone”. Accordingly, it is clear that the PAT regarded the IP’s Article 8 rights as having been engaged.

This is a finding that Mr Apthorp argues is simply unreasonable and irrational. He cites the HOG, the code of conduct and the Regulations in support of that contention. Put simply, he argues that it is inevitable that a member of the public learning of the IP’s conduct would believe that it brings discredit on the force and, particularly in the light of the seniority of the IP, undermines the faith that the public would have in the integrity and honesty of the IP and police officers serving the public in general. He complains that there is no reference to the balancing exercise that needs to be undertaken or matters of proportionality or anything approaching the structured approach required by Razgar.

By paragraph 7 the PAT quashed the finding that providing a false account to members of the CPS amounted to discreditable conduct and by paragraph 8 to paragraph 10 it concluded that providing photographs to DS Green and Inspector Hunt amounted to misconduct in the form of a breach of the standard of honesty and integrity having regard to the code of ethics but not gross misconduct. That view appears to have been taken on the basis that it was no more than a continuation of the previous lie and the IP had been entitled to lie.

In paragraph 13 the PAT states in terms that the finding that the IP’s conduct amounted to gross misconduct was unreasonable. It formed the view that “there were no elements of operational dishonesty, it related to personal rather than professional circumstances, and there were exceptional circumstances relating to the commission of the misconduct. The Tribunal considers it may properly be described as misconduct”.

By paragraph 14 the PAT considered that the panel had yet further misdirected itself in applying the Salter approach when this was not a case of operational dishonesty. The Salter approach was one which took its cue from the judgement of Burnett J to which I refer in paragraph 60 above. The most severe sanction to be imposed for misconduct where otherwise the officer has not previously been found guilty of misconduct is a final written warning.

Mr Yeo’s position is that all these findings and the conclusions drawn from them are all reasonable but that, even if they are not reasonable, they are not Wednesbury unreasonable. The court would have to find they are unreasonable to that extent as well as finding that the PAT had erred in initially taking the view that the proceedings in the panel had been tainted by unfairness which could have materially affected its findings. (Footnote: ⁴)

As I have said in paragraph 27 above, there are essentially 5 grounds upon which the decision of the PAT is impugned by the claimant including, as I mention in paragraph 77 above, that it fails to adequately set out how the decision was reached. These are set out from paragraph 15 of Mr Apthorp’s skeleton argument to which, of course, I have had full regard. I do not intend to repeat those arguments in detail but hope that following sets out sufficiently the essence of them.

Mr Apthorp’s position is that the finding of unfairness set out in paragraph 2 and 3 of the decision is impermissible. It is based upon a reading of paragraph 3.8 which is wholly out of context and fixes upon just 4 words. Furthermore, it simply does not state the basis upon which the PAT believe that the panel have got it wrong. In fact, he argues, the panel clearly had in mind issues of privacy in a context far wider than simply whether the IP was on or off duty and he points to those paragraphs in the panel’s decision which make that clear and to which I have referred in paragraph 75 above and particularly paragraph 75 (F).

In addition, he points out that, while in paragraph 3 the PAT makes reference to the HOG and the 2003 Regulations, there is no reference to the code of ethics and its emphasis on police officers conducting themselves in a manner which does not undermine the trust and confidence and faith of the public in its police officers. Furthermore, the reference to the HOG is simply confined to the suggestion that the panel failed to take paragraph 1.28 into account. Mr Apthorp argues that that is simply wrong, it does so in paragraph 2.24 of the panel’s judgement.

Mr Apthorp complains that paragraph 5 contains a non sequitur. It is argued that disclosing that one has been assaulted would mean that information about how the assault came about and by whom would be revealed. He argues that there is nothing to stop a person in the circumstances in which the IP found himself from simply saying that he been assaulted but that the circumstances surrounding it were his business and he did not wish to discuss it.

I have already set out at paragraph 82 above the basis upon which Mr Apthorp challenges the rationality of the PAT’s conclusion in paragraph 6 of its judgement to the effect that the IP was entitled to lie to other senior officers. He also argues that the conclusion reached in paragraph 6 to the effect that the IP was entitled to lie to protect his privacy and to avoid the true circumstances being revealed is a conclusion that misses the point, for the same reason as set out in paragraph 89 above. Furthermore, it is not justified on general principles recognised in the Spycatcher case where the House of Lords took the view that the public interest may outweigh rights to privacy or confidence – a fact actually recognised in Article 8 itself. The same, Mr Apthorp suggests, applies in relation to paragraph 8 to 10 of the PAT decision.

The criticism that Mr Apthorp makes of paragraph 13 and the finding of the PAT that the conclusions reached by the panel as to gross misconduct were unreasonable is that it is essentially no more than a substitution by the PAT of its own views for those of the panel. He points out that it cannot possibly be said that it was not properly open to the panel to conclude that a senior officer who had lied over a sustained period to other senior officers and provided photographs to corroborate that lie was guilty of gross misconduct. He argues that such a finding was one which it was well within the power of the panel to make even if the PAT would have come to a different conclusion, as clearly they did.

As regards paragraph 14 and the PAT’s conclusion that the panel misdirected itself in applying Salter when there was no operational dishonesty, Mr Apthorp’s point is that it does not matter whether the dishonesty was operational or not. That is a misunderstanding of Salter when considered in the context of Bolton and Salsbury. The message derived from an analysis of all 3 cases is that dismissal is “almost inevitable” where the dishonesty is such as to undermine trust and confidence in the profession concerned, whether that dishonesty arises on an operational basis or on some other basis.

On the question of privacy, Mr Apthorp argues that the decision of the PAT takes no account of the fact that rumours were sweeping the force to the effect that the IP was in an intimate relationship with the police sergeant and indeed, according to Inspector Hunt, the possibility, if not the likelihood, that people seeing the injuries to the IP would put 2 and 2 together and conclude that the IP had been a victim of the attack by the police sergeant’s husband. He argues that this in itself undermines privacy issues, as does the fact that the initial assault actually took place in the street, but the PAT failed to have regard to those details or the fact that even the police sergeant’s wife agreed that for about 5 weeks prior to the assault rumours of her association with the IP had been circulating and had even reached her husband. He argues that the PAT fell into error by incorrectly conflating the relationship which the IP had with the police sergeant with the assault in the public street rather than considering whether the assault could ever have been considered a private matter when privacy is considered in the context of the issue of whether there can be a reasonable expectation of privacy. In short, the PAT erred in treating the fact of the assault on the IP as being a private matter and, since that fact formed the basis for its view that the IP was entitled to lie about the assault, the integrity of that view is fatally undermined.

A further general complaint by Mr Apthorp arises out of the fact that the PAT seems simply to ignore the findings of fact made by the panel and its rejection of some of the evidence of the IP and its findings that the IP was in certain respects disingenuous. I refer to paragraphs 23 and 24 above. Indeed, he argues that the PAT have actually gone as far as to substitute its assessment of findings of fact for those of the panel. The findings of the PAT he argues clearly imply that it was not prepared to hold the IP to be disingenuous. Mr Apthorp argues that if the PAT chose to disregard those findings it was incumbent upon it to set out its reasons for doing so.

In addition, he complains there is an absence of any reference to the public interest or the balancing act that needs to be undertaken between the rights of individual and the public interest in terms of issues surrounding privacy especially those relating to the confidence and faith that the public may have in their police service. Furthermore, the decision provides no explanation as to why it is that the PAT rejected the unchallenged evidence of the senior police officers to whom the IP spoke to the effect that, with the partial exception of Inspector Hunt, they regarded their conversations with him as professional conversations. He argues that the decision of the PAT is simply deficient in these areas to such an extent that the decision ought not to stand.

Finally, he argues that not only can it properly be said that the decision reached by the PAT was one which it was unreasonable or unfair to make, he also asserts that the conclusion of the PAT that the conduct of the IP amounted only to misconduct but not gross misconduct was one that no reasonable PAT properly directed could come to bearing in mind the facts of this case and in particular the seniority of the IP, the seniority of the persons to whom he disseminated the lie, the perpetuation of the lie, the corroboration of the lie by photographs and the fact that it caused an investigation which ultimately led to the truth.

As I mention in paragraph 86, Mr Yeo comprehensively challenges these criticisms of the judgement of the PAT. He argues that the conclusion reached by the PAT has proper regard to paragraph 1.28 of the HOG as that should properly be interpreted (as to which see paragraph 74 above).

He argues that the PAT were perfectly entitled to regard the conduct of the IP essentially as an emanation of his private life and to consider the matter on that basis without limiting themselves to a narrow consideration of whether the IP was on duty or off duty – as paragraph 3.8 of the panels judgement suggests that it did. Mr Yeo took me to paragraph 67 of a Regulation 22 Response which he contended properly summarised the privacy point that he is making and which he contends that the panel failed to grasp. At paragraph 67 of that document he says the following:

“The panel are expressly required to have regard to proportionality by the Guidance. Restrictions upon private life have to be balanced against the rights to a private life. Therefore, in considering whether a police officer has acted in a way which falls below the standards in their private life “due regard should be given to that balance” (the guidance refers to off duty conduct but what is said is equally applicable to private life matters that arise on duty”

Mr Yeo focused emphatically on paragraph 2 of the finding by the PAT. He saw that as critical. If the PAT’s finding (that there was unfairness in the panel’s position as set out in paragraph 3.8 (Footnote: ⁵) of their decision and that that unfairness could have materially affected the panel’s finding) was, in judicial review terms, a lawful finding then it means, by the application of the principles enunciated in Cooper and which I set out in paragraph 53 above, that there is a gateway into the appeal and that the PAT is therefore lawfully seized of the issue and is free to substitute its own view for the view of the panel.

He reminds me that, when considering whether a finding by the panel is unreasonable, or indeed unfair in the context of rule 4(4)(c), the PAT is not required to find it Wednesbury unreasonable before it is entitled to become seized of the matter. Furthermore, in considering unfairness the PAT need only be satisfied that the unfairness could have materially affected the finding or decision of the panel. There is no necessity for the PAT to believe that the unfairness in all likelihood materially affected the decision. The use of the word “could” makes the test a much lower one.

He argued that as a matter of law, the panel was wrong to hold, as it did in paragraph 3.8, that that was no such thing as “private on duty conduct”. His contention was that there clearly was and the cases of Halford and Copeland to which I refer in paragraph 71 above are clear examples of that. He argued that if the principle expressed by the panel was wrong then it followed that it gave rise to an unfairness in the conduct of the disciplinary proceedings by the panel which could have materially affected the findings. Of course, he made the supplementary point that even if the panel was not wrong in law to hold that there was no such thing as “private on duty conduct” it cannot be said to have been Wednesbury unreasonable for the PAT to take the view that it was and that that may have materially affected the panel’s findings.

He took me to paragraphs 2.24 to paragraph 2.30 of the panel’s decision. He argued that it was clear from those paragraphs, if nowhere else, that the panel had in mind the on/off duty dichotomy rather than considering privacy on the basis of what a person could reasonably expect by way of privacy. He argues that the PAT cannot be criticised for taking the view that the emphasis by the panel on the on/off duty dichotomy constituted a misdirection which could have materially affected its findings. Furthermore, even if the panel had not misdirected itself, the point is that it was reasonable for the PAT to see that as a possibility which thus enabled them to seize themselves of the matter. This is particularly so when the threshold is a low one, as to which see paragraph 101 above.

As regards the PAT’s conclusion that the IP was entitled to lie, Mr Yeo’s position was that this was not an unlawful conclusion. It represented the outcome of the balancing exercise that needs to be undertaken in the assessment of when, and the extent to which, the right to privacy is engaged.

As regards the PAT’s conclusion that such conduct as could be criticised amounted to no more than misconduct, once again Mr Yeo’s position was that this was a reasonable conclusion taking account of the code of ethics, the Regulations and the HOG as properly construed, together with the fact that not every lie amounted to misconduct and the circumstances in which the IP found himself. In any event, he reminded me once again of the provisions in Cooper to the effect that once the PAT are properly seized of the matter they are entitled to substitute their own decision in respect of both liability and sanction for that of the panel.

As regards the issue of how the rumours sweeping the Force affect issues of privacy, the point made by Mr Yeo is that rumours do not amount to fact and therefore do not detract from the proposition that the IP is not obliged to confirm them and is entitled to try and head them off by telling lies.

As regards sanction, Mr Yeo repeats much of what is said in connection with the PAT’s approach to liability. The point is that once the PAT is properly seized of the matter it is not limited in his approach by the panel’s conclusions. In any event, realistically, dismissal without notice is not an option save where there has been a finding of gross misconduct.

Leaving that aside however Mr Yeo argues that it is clear that the panel erred in its consideration of sanction. Prior to rising to consider sanction the panel had said the following;

“The honesty and integrity of police officers is fundamental to the legitimacy of the police service in the eyes of the public. We have considered Salter and we find this was not an operational matter in its pure definition, but consider that you were on duty at the relevant time. You have chosen to lie, you have continued that lie and embellished it without coercion, and honesty and integrity is integral to the role of a police officer and should be regarded as a fundamental requirement. It is a key principle of the code of ethics. Having had regard to your service record and to the mitigation presented, we don’t find that to be exceptional”

The point made by Mr Yeo is that in taking the view that mitigation could only be considered in exceptional cases the panel had misdirected itself. That is simply not the law. It is clear that, saving exceptional circumstances, mitigation will hardly ever save a person from losing his career if that person has been found guilty of dishonesty in an operational capacity but that does not mean that mitigation is ignored in its entirety. In Salsbury itself it was recognised that in applying Bolton principles, account had to be taken of the European Convention Rights of the person concerned. Furthermore, the principle in Salter was that the exceptionality requirement for the purposes of mitigation applied when the officer had been found guilty of “operational dishonesty”. That was not the situation so far as the IP was considered, as the PAT itself recognised and to which I refer in paragraph 84 above.

I have considered very carefully the able submissions made to me by both counsel but I have concluded that those of Mr Yeo are the more convincing. The fundamental fact here is that I am satisfied that the PAT were entitled to take the view that the panel had misdirected itself at least in relation to both the issue surrounding paragraph 3.8 of the panel’s decision and the issue concerning mitigation.

I reach that conclusion bearing in mind that it is clear, as a result of Cooper, that the PAT is not required to find that the decision of the panel is Wednesbury unreasonable as a prerequisite to overturning it and that an appeal to the PAT properly lies where the PAT are properly able to conclude that the unfairness identified by the misdirection could have materially affected the finding by the panel.

In terms of the issues surrounding paragraph 3.8 of the panel’s decision, it has to be said that it does seem to me to be clear that there is such a thing as “private on duty conduct”. Whether the IP fitted within that definition at the relevant time is not in my view necessarily the issue. The point is that the observations of the panel at paragraph 3.8 represent, in my view, an erroneous account of the law as it was at the relevant time, and still is. I agree with Mr Yeo that it follows that this misdirection could have materially affected the panel’s decision making process. In fact, it does not matter whether, in reality it did, what matters is that the PAT were justified in taking the view that it could have done so.

Even if it does not automatically follow that the misdirection could have materially affected the panel’s decision, in this case it was reasonable to come to that conclusion in the light of the fact that the panel’s decision is clearly based upon an overly simplistic on duty/off duty dichotomy

It is equally clear from Cooper that once through the gateway into the appeal process, the PAT is not trammelled by the conclusions reached by the panel.

I appreciate Mr Apthorp’s observations about the iniquity of latching onto 4 words in a lengthy decision and his argument that matters should be considered in context but it has to be said that there are significant tracts in the panel’s decision which focus on the on duty/off duty dichotomy and which would suggest that even in context the remarks at paragraph 3.8 give rise to a challenge.

Even if I am wrong in relation to issues surrounding the panel’s observations in paragraph 3.8, it is clear that the panel had directed itself that mitigation was irrelevant. On the basis of the authorities, that too appears to have been a misdirection. In that event that was a path through the gateway which opened up to the PAT the right to make its own decisions, unencumbered by the decisions of the panel.

Furthermore, I do not accept that the decisions of the PAT as to liability or sanction were themselves irrational or otherwise unlawful. It cannot be disputed that the decision which it reached was possibly less harsh than many would have expected but it is not for this court to substitute its decision for the decision of a PAT which was properly seized of the case unless, to quote from Holroyde J in Williams, the PAT reached a conclusion which was so far outside the range of decisions legitimately open to it as to render it unlawful.

I adopt the views of Mr Yeo concerning the PAT decision which I set out from paragraph 104 above. In my view, it cannot be said that the decision made by the PAT both as to the level of the conduct and the sanction was outside the range of decisions which was legitimately open to it. I do not overlook Mr Apthorp’s argument as to the inadequacy of the judgement and its alleged failure to explain how the PAT came to its decision. I readily accept that the judgement could have been fuller but I do not accept that it is not possible to understand how the PAT came to its decision both in relation to liability and sanction. It seems to be to be clear that it undertook the balancing exercise in relation to issues surrounding privacy. It may have come to a decision in favour of privacy which others may not have reached but that does not make the decision irrational in the sense that it was outside those which could have been legitimately reached.

Nor do I think that the fact that the PAT may have erred in concluding that the panel made no reference to the HOG is in itself sufficient to impugn the decision of the PAT. The fact is that on the basis of the misdirections is as I have found them, the PAT was properly seized of the appeal and was therefore in a position to reach its own conclusions in respect of it.

Equally, as regards the PAT’s conclusion that the IP was entitled to lie and Mr Apthorp’s criticism that that PAT’s conclusion was based upon non sequiturs and a failure to take account of the fact that essentially the IP’s relationship with the police sergeant was already in the public domain, I do not think that the conclusions reached by the PAT in this connection vitiate its decision. I accept that rumours do not equal facts and I also accept that it was reasonable to conclude that answering one question truthfully would lead to others which would ultimately result in the disclosure by the IP of matters to which he had a reasonable expectation of privacy. It is clear that the PAT had regard to the HOG, the code of ethics and the 2003 Regulations. They are referred to in paragraph 3 of the decision and it is equally clear that it recognised by the PAT that the test under Rule 4(4) is a two stage one, involving, as its second stage, the need for it to be satisfied that identified unfairness could have had a material affect of the panel’s decision. Once again, this conclusion may be one which others would not reach but that does not make it an unreasonable or irrational conclusion.

In addition, it is right to remind myself of observations made in Salsbury and in Dennison to the effect that

“due regard has to be given to the fact that the tribunal is a specialist tribunal which are particularly well equipped to determine what sanctions are necessary in any given case in order to deal with defaulting solicitors, to protect the public and to protect the reputation of the profession. As a result of high degree of respect should normally be paid to its decisions.” (See Dennison paragraph 16 (6)).

It seems to me that that observation should not simply be limited to the issue of sanctions but also to the exercise by the relevant tribunal of its powers generally. Inevitably, on the authority of Salter, what applies to Messrs Salsbury and Dennison as solicitors applies equally to the IP as a police officer.

As to the issue of whether the PAT ignored findings of fact made by the panel, it is true that the decision of the PAT makes no reference to disingenuousness on the part of the IP and it departs from the conclusion of the panel that the IP’s dishonesty occurred in a professional rather than personal capacity. However, the fact is that the PAT did find that the IP was dishonest and did offer an explanation as to how it came to its conclusion that this dishonesty occurred in a personal rather than professional scenario. As I have said, it was not a full explanation by any means but the gist, in my view, was sufficiently clear so as not to vitiate the conclusions. I have in mind here, and adopt, the observations of Holroyde J that I reproduce at paragraph 65 above.

Accordingly, and for the reasons set out above I have concluded that the PAT were lawfully seized of this matter on a proper application of Rule 4(4) Police Appeals Tribunal Rules 2012 thereby entitling it to substitute its own conclusions for those of the panel and that the decisions that it then made were not irrational or otherwise unlawful and were within the range of decisions legitimately open to it.

Accordingly, I propose to dismiss the application with the result that the decision of the PAT shall stand.

As, agreed, I shall list this matter for a further hearing with a time estimate of 2 hours to resolve issues relating to back pay.