The Chief Constable of West Midlands Police, R (on the application of) v Police Misconduct Panel

finding that the Officer’s conduct (a) had not breached the standard of professional behaviour relating to “Equality and Diversity” (as had been admitted by the Officer); and (b) had “only just” breached the standard relating to “Authority, Respect and Courtesy”;

its assessment of the seriousness of the Officer’s misconduct (in relation to specific aspects of her conduct and overall); and

whether by reason of the errors asserted in grounds 1 and 2, or otherwise, imposing a final written warning, rather than dismissal, as the sanction.

‘(i) Authority, Respect and Courtesy, a Standard which requires you to act with self-control and tolerance, treating members of the public and colleagues with respect and courtesy,

Equality and Diversity, a Standard which requires you to act with fairness and impartiality and not discriminate unlawfully or unfairly,

Honesty and Integrity, a Standard which requires you to act with honesty and integrity at all times, and

Discreditable Conduct, a Standard which requires you to behave in a manner, whether on duty or off duty, which does not bring discredit on the police service or undermine public confidence in policing.’

‘6. As outlined above PS Srivastava has made full admissions as to the facts and that such conduct amounts to gross misconduct. This is enough to make a finding of gross misconduct and proceed to outcome. For the avoidance of doubt the Standards of Professional Behaviour alleged to have been breached are:

Authority, respect and courtesy;

Equality and diversity;

Honesty and integrity and

Discreditable conduct.

7.In concocting a story about demeaning behaviour towards a transgender colleague and her dealing with the same (see allegations 1(a) to (g) of the Regulation 21 Notice), PS Srivastava failed to treat her transgender colleague with respect and courtesy. Further, she undermined her colleagues by alleging that they had made inappropriate comments about their transgender colleague. In so doing she did not treat them with respect and courtesy. Further, in using this example she purported to show her leadership skills which was an abuse of her authority. In any event the conduct of PS Srivastava was a breach of the standard of authority, respect and courtesy which she admits.

8.In concocting a story about demeaning behaviour towards a transgender colleague and her dealing with the same, PS Srivastava breached the standard of equality and diversity. She did not treat her transgender colleague fairly and such conduct would amount to directly discriminatory behaviour in that she would not have singled out this colleague had they not been transgender. This colleague was unfairly and wrongly highlighted and their life story used to seemingly gain an advantage in interview. The story also imputed that such a colleague may have been the victim of inappropriate behaviour because of their transgender status which would only serve to unnecessarily add to the distress of those with this status. In any event the conduct of PS Srivastava was a breach of the Standard of equality and diversity which she admits.

9.In concocting a story about demeaning behaviour towards a transgender colleague and her dealing with the same, PS Srivastava breached the standard of honesty and integrity. Whilst it is admitted that the breach of this standard was not in an operational role, the standard makes clear that police officers are to act honestly, act with integrity and not to compromise or abuse their position. PS Srivastava committed the act of dishonesty in her professional role as a police officer and when placed under pressure to provide an example she chose to lie. In so doing PS Srivastava failed to act with honesty and compromised and abused her position. In any event the conduct of PS Srivastava was a breach of the Standard of honesty and integrity which she admits.

In concocting a story about demeaning behaviour towards a transgender colleague and her dealing with the same, PS Srivastava breached the standard of discreditable conduct. PS Srivastava’s actions brings discredit to the police service and would undermine public confidence. Firstly, PS Srivastava purported to use the life story of a transgender colleague for her personal benefit in circumstances which were entirely false. Members of the transgender community may be alarmed to learn of such a fact. Secondly, the lie would perpetuate a false notion that a member of the transgender community was bullied by colleagues. This would serve to undermine the faith and trust members of such community may have in the police generally. Thirdly, to lie about the conduct of one’s colleagues in such a way is entirely discreditable. In any event the conduct of PS Srivastava was a breach of the Standard of discreditable conduct which she admits.

…

Outcome

24.The AA considers that the only appropriate sanction in this matter is dismissal without notice. The panel will have recourse to the College of Policing’s, ‘Guidance on outcomes in police misconduct proceedings.’

25.Paragraph 3.17 and Regulation 35(10) states that where the panel determines the officer shall be dismissed the dismissal must be without notice. Before determining the issue of sanction the panel must have regard to the officer’s record of police service, they may receive evidence from any witness who evidence would, in their determination, assist them and must allow the parties to make written or oral representations (paragraph 3.18).

26.The three stages in determining sanction are (Fuglers LLP v Solicitors Regulation Authority [2014] EWHC 179 (Admin) per Popperwell J at [28]):

Assessing the seriousness of the misconduct;

Keeping in mind the purpose of imposing sanctions and

Choose the sanction which most appropriately fulfils that purpose for the seriousness of the conduct in question.

In assessing seriousness of the proven conduct, the panel will have reference to:

The officers culpability for the misconduct;

The harm caused by the misconduct;

The existence of any aggravating factors;

The existence of any mitigating factors.

PS Srivastava was entirely to blame for the lie perpetuated. It was her decision to concoct such a story which she did in the pressure of an interview. The AA does not allege that the conduct was planned, but it was intentional, deliberate and targeted. PS Srivastava also perpetuated the lie based on her seniority i.e. as an example of how she assisted her team with equality and diversity issues. Of note in this case is the discriminatory conduct of PS Srivastava in using her transgender colleague’s status. Paragraph 4.53 states, “Cases where discrimination is conscious or deliberate will be particularly serious. In these circumstances, the public cannot have confidence that the officer will discharge their duties in accordance with the Code of Ethics.” Whilst the AA does not serve any evidence as to whether the lie caused PS Srivastava’s colleagues distress, the potential for harm in such a case is obvious. At paragraph 4.57 it states, “...Harm will likely undermine public confidence in policing. Harm does not need to be suffered by a defined individual or group to undermine public confidence.” Paragraph 4.59 states: “Where no actual harm has resulted, consider the risks attached to the officer’s behaviour, including the likelihood of harm occurring and the gravity of harm that could have resulted.”

29.The aggravating features of this case are that:

PS Srivastava abused her position of seniority in using the example she did. It was only because of her seniority that she could use such an example;

When she was telephoned later that day by DI Sambrooks, PS Srivastava perpetuated the lie;

In using the example PS Srivastava discriminated against her transgender colleague;

In so acting PS Srivastava committed multiple breaches of the Standards of Professional Behaviour.’

‘CC: Now before, and I propose to read the Regulation 21 Notice into the record in a moment, but before doing that there is just one point I need to make Counsel aware of because you may want to turn your mind to submissions in due course. So the panel notes that Sergeant Srivastava accepts her wrongdoing which is apparent from the papers. She accepts that the four standards of behaviour alleged to have been breached, she accepts that she breached those and she accepts that her misconduct amounts to gross misconduct. Now we’ve reminded ourselves of Regulation 33 and the panel may accept those admissions in terms of reaching a finding against the officer, however in this case we feel that we would rather reserve our judgement and decide on the evidence and we feel that is, this is appropriate for the panel to consider all of the evidence and consider submission from the Appropriate Authority on behalf of the officer. So we’re not simply going to accept the officer’s view of whether or not this is gross misconduct and whether all four standards of breach. We will reserve that answer to ourself. So I raise that now just [so] you have time if you wish [to] address me in in more detail when it comes to closing speeches. So unless there’s anything else, is there anything else either party wishes to raise at this point?

…..

CC: Perfect, thank you. Right Mr Fernando is there anything that you’d like to mention before we go to the Regulation 21 Notice?

PF: Sir just so I can clarify your - as I understand from this in your initial summary you’re not accepting the officer’s admissions pursuant to Regulation and therefore won’t be making your finding pursuant [to] Regulation 33(14)(b) and we are proceeding on the basis that you may make admission you may make findings on the basis of 33(14((a), is that correct?

CC: Yes, correct.

PF: Very good, thank you sir.’

‘… so the panel have had time to consider the question of finding and we have reached a decision on that. So there is no factual dispute in this case that the officer admitted to telling a lie during effectively what was a job interview and on the 8th of November it’s admitted that she fabricated an answer to a competency based question. The Appropriate Authority is content that the officer’s conduct breaches four separate standards of behaviour and they are; Honesty and Integrity, Discreditable Conduct, Equality and Diversity and Authority, Respect and Courtesy and in fact the officer accepts that all four of those standards mentioned were breached. However, the panel having considered the facts of the case, again there’s no dispute as to the facts, against those four standards finds that the standard regarding Equality and Diversity is not breached on the basis that merely [citing] a person with a protect[ed] characteristic in an answer to a question is not sufficient to breach that standard. There was no evidence for example of any discriminatory behaviour or anything else which the panel would consider to be a breach of that standard. Turning to Authority, Respect and Courtesy, we do consider that standard to have been breached in this case but only just. We find that that the breach there was tenuous in nature and on the basis that the officer showed a lack of respect towards her colleagues by using them as an example in the job interview in the way that she did. We do find them, we do accept that the standards regarding Honesty and Integrity and Discreditable Conduct are clearly breached on the facts of this case. The panel then turn to consider whether or not the misconduct amounts to gross misconduct. The officer in fact in her Regulation 22 Notice accepts that her conduct was gross misconduct and in this case the panel agrees with that assessment that the conduct is indeed gross misconduct for the following reasons; Sergeant Srivastava is a Supervisor, she was a Supervisor at the time of the job interview and one can expect to the public and expect even higher standards of behaviour from a Police Supervisor and on this occasion she failed to demonstrate that level of leadership and fell short of the standards expected. Whilst there was no financial gain to be had from the lies that she told there was an element of professional gain and gain potentially at the expense of her colleagues who were also competing for the same position. It is accepted that there was no premeditation in this case, no prior planning, but the panel did note and did give adverse weight to the fact that this was an elaborate concoction, an elaborate account concocted during the course of the interview. And finally the panel did take note as well to the delay in admitting the lies to DI Sambrook. So again on that basis the panel does find gross misconduct. So if we’re ready, if we can turn to submissions on outcome…’

‘The panel yesterday found that you had breached the standards of professional behaviour relating to Honesty and Integrity, Discreditable Conduct and Authority, Respect and Courtesy and taken together the panel found that those breaches amounted to gross misconduct and that was our finding yesterday. I then, after that part of the hearing we heard submissions from Counsel and then we retired to consider the appropriate outcome in this case. Now [in] cases of gross misconduct, dismissal is an appropriate outcome and the Appropriate Authority argue that dismissal was the appropriate outcome in this case, I should say I’m giving you verbal reasons of now Sergeant Srivastava but for Counsel’s benefit I will follow up with more detailed written reasons in the notice. So the Appropriate Authority’s case was that dismissal was the appropriate outcome in this case, however, the law in the form of Regulation 35B at the Police misconduct, I’m sorry Police Conduct Regulations 2012, permits a misconduct panel to consider a range of options and indeed the Home Office Guidance on outcomes produced by the College of Policing requires a misconduct panel to consider a range of options. So to put it another way dismissal is not mandatory and it’s not automatic in cases of gross misconduct. Now in this case we can tell you that the panel thought long and hard about whether you should be dismissed or whether some lesser sanction would meet the purpose of the Police disciplinary regime. Without doubt and we want to make this very clear Sergeant Srivastava that the panel found that your behaviour was reprehensible and serious but the question to be determined by the panel was how serious your gross misconduct was. The role of the panel of course is to act with impartiality and without emotion and the panel must also follow a clear [defined] process as identified by Mr Justice [Popplewell] in the case of Fuglers LLP versus the SRA which is the 2014 case. That case is not about Police misconduct but about Solicitor’s misconduct but that case was adopted and confirmed in the 2018 judicial review case into Police misconduct and a case which is commonly referred to as Rosco so the case law clearly defines a process that the panel must follow in reaching an outcome and that process can be defined as a three stage process.

The first stage is for the panel to assess seriousness so it’s not enough for the panel to find that the misconduct was serious we have to decide how serious. Having decided the question of seriousness we then have to go on to consider the purpose of imposing sanctions and in particular the purpose of the Police disciplinary regime and then having done that the panel then has to decide what the appropriate sanction is to fulfil those functions and it must settle on the least serious sanction which appropriately fulfils those functions. So the law and Home Office Guidance requires a panel to decide as I said the least serious sanction available to meet the purposes of the disciplinary regime. So it was within those parameters that the panel approached its task in determining the appropriate sanction. So first of all we looked at seriousness again it’s not enough to say that a breach was serious, we have to decide how serious and to do that we have to follow a number of steps in sequence, we looked at culpability, we looked at harm, we looked at any aggravating factors and then any mitigating factors. Now again we must stress the panel in no way minimises your behaviour and our assessment of seriousness in no way condones your lack of Honesty and Integrity that you displayed in the interview on the 8th of November 2019. But addressing the question of culpability was specifically looked at in a number of factors as set out in the Home Office Guidance. We looked at whether or not you intended to cause any harm and we’ll come on to harm in a moment but whether or not there was an intent to cause harm to anyone or to public perception. We determined that there was no such intent. Was there any element of targeting a victim in this case, so whilst a person was identified in the example you gave we didn’t feel that that constituted targeting in the commonly understood sense of the word and it was accepted by the Appropriate Authority that there was no evidence of planning in this case, there was no suggestion at the hearing that you went into the interview with this lie in mind. We then considered whether or not any of the especially serious types of Police misconduct as set out in the Home Office Regulations were featured in this case, such as operational dishonesty, misuse of data protection, criminal offending and again the answer to that question was no, however we did find that your culpability was raised by the fact that you are a Sergeant, you’re a Sergeant, a Supervisor who should have set yourself even higher standards than the average Constable when you approached the interview in the way that you did, so in that sense we felt that your culpability was raised. So having looked at culpability and in the round we assessed that your level of culpability on a range of low [to high] we set it at medium, the medium level of culpability.

We then turn to the question of harm, again we thought very carefully about what harm was caused or might have been caused by your behaviour, there was any real harm or whether there was the potential harm either to individuals or to public perception. We reached the conclusion that there was no actual harm done in this case to the individuals that you cited in your example and no actual harm to public perception, however we did find that there was clearly the potential for harm to individuals, the potential for harm to public perception and to public confidence. We did think very carefully about the possible harm that that could have been imparted to the transgender colleague that you mentioned in your interview and we judged that perhaps if this matter had come to light then that individual’s feelings could have been hurt by what you said in the interview. And likewise there was some element of putting or something we considered some elements of putting your colleagues in jeopardy of a PSD investigation and possibly disciplinary action, however on the facts of this case we judged that the risk of that was very low in that we found that you wouldn’t have allowed that to happen and indeed you did confess to your lies to DI Sambrook when that looked to be a possibility that she might investigate the matter further. So there was some element of harm in terms of harm to public confidence and public perception, what we judged that the public would take a dim view of an officer who lies at an interview in order to secure a job for themselves. There was no element though of any financial gain, it was in effect to secure a sideways move. So whilst public confidence in the Police service and in you might have been harmed to a degree, we didn’t put it in the same category as operational, dishonesty or operational misconduct which we judged would have a more significant impact on public confidence. So again when it came to assessing [overall] the degree of harm we judged it to be at the medium level.

We then went on to consider any aggravating features and we couldn’t identify any factors that could be considered aggravating, we were very conscious not to double count factors, aggravating factors which had been considered as part of the culpability and the harm assessments. We then turned to any mitigating factors, we gave you credit for the fact that this was a single episode of very brief duration and we also took into account that you demonstrated remorse in your interview for your actions and that was repeated throughout and repeated again in your evidence to the panel yesterday. Finally we did consider your personal mitigation, we did take note of your long and good service and we took note of the character references that were produced on your behalf. But as a panel we felt that we could give little weight to that character reference and also evidence of good character, because one can expect officers with your length of service to produce evidence of such good character and of course guidance dictates that misconduct panels should give little if any weight to such good character evidence. And so in terms of your personal mitigation, whilst creditable we can say that that had no impact at all on our assessment of seriousness and the eventual outcome upon which we set.

We then moved on to stage two of the process and considered the purpose of the Police disciplinary regime which you will know is maintaining public confidence in and the reputation of the Police service, upholding the high standards in Policing and deterring misconduct and also protecting the public. We considered those purposes very carefully, we decided that the least serious sanction which would appropriately meet all of those above purposes was a Final Written Warning and not dismissal. So that is our decision that you will be issued with a Final Written Warning. Now we should say this that we recognise that that decision may be a disappointment to West Midlands Police, which clearly sets the very highest standards and it quite rightly expects the very highest standards of its officers. It may also come as a disappointment to colleagues that know you that you haven’t been dismissed in the knowledge of the of the breaches that we found against you. But we [reiterate] that we found your conduct to be reprehensible and it’s also worth noting that if the 2020 Regulations applied to this case, which they do not of course, it is most likely that you would have lost your rank at the very least. We also say this to others who may who might be aware of your particular case, who might be minded to act in the same way, these, those individuals should not regard this particular outcome, this particular sanction as in any way setting a precedent. You came very close to dismissal but on the guidance that we are required by law to follow on the specific facts of this case, we arrived at the sanction I’ve already mentioned which is one of a Written Final Warning. So that is our decision on outcome and as I said before will of course in due course issue a written set of reasons on our on our decision on outcome. Is there anything further from Counsel that I need to be made aware of before I we terminate these proceedings?’

‘In your Regulation 22 response to the Regulation 21 Notice of Allegations you accepted that your behaviour amounted to breaches of the Standards of Professional Behaviour relating to Authority, Respect and Courtesy, Equality and Diversity, Honesty and Integrity, and Discreditable Conduct. In the same response, you accepted that your behaviour amounted to gross misconduct. At the hearing, the AA sought to rely upon your acceptance of the alleged breaches of the four Standards of Professional Behaviour cited and that your conduct amounted to gross misconduct. However, the Panel reminded itself of Regulation 33(14)(b) of the Police (Conduct) Regulations 2012 which empowers a police misconduct Panel to find that an officer’s conduct amounts to misconduct or gross misconduct if the officer admits that is the case. The wording of Regulation 33(14)(b) clearly indicates that the power is permissive and not obligatory. Having read the evidence in the case the Panel decided that it was best placed as a professional Panel to judge the degree of misconduct and would, therefore, determine for itself the issues of misconduct or gross misconduct after considering all of the evidence and submissions from counsel, and in accordance with Regulation 33(14)(b). Having decided to rely upon the Regulation 33(14)(a) route to finding, counsel were given the opportunity to make submissions on what they considered to be the appropriate level of misconduct.’

‘The Panel took into account all of the evidence contained in the AA’s bundle. Live evidence was given by you.

At the conclusion of the factual hearing, submissions were made by Mr Fernando on behalf of the AA and by Miss Bahia on your behalf.

The Panel found the facts underpinning the allegation Proved on the basis of the witness evidence, your own admissions to DI Sambrooks on 11th November 2019 and in your PSD interview on 9th January 2020.

The Panel found the conduct described in the allegation amounted to clear breaches of Honesty and Integrity and Discreditable Conduct and a breach of Authority, Respect and Courtesy, albeit tenuous on the basis you showed a lack of respect for others by fabricating a lie which involved them. The Panel did not find that your behaviour amounted to a breach of the Equality and Diversity Standard of Professional Behaviour. Whilst the fabricated example you gave involved a person with a protected characteristic, you did not act in a discriminatory way towards that person or towards the transgender community, or in any other way which offended against the Equality and Diversity Standard of Professional Behaviour.

The Panel found that your conduct amounted to Gross Misconduct for the following reasons:

 You displayed a clear lack of honesty and integrity by telling a lie in an internal job interview. The fact you were a Sergeant and in a leadership role made your misconduct more serious.

 Whilst not planned, the lie was elaborate.

 Whilst your motive was not one of financial gain, as the role you competed for was at the same rank, you did seek to gain professionally by securing a job at the expense of other applicants.

 Delay in confessing to the lie. The first opportunity to admit to wrongdoing was after the interview when telephoned by DI Sambrooks, however you confessed to her at the next available opportunity when you met her face to face on 11th November 2019.’

‘Counsel for the AA made submission to the Panel that the appropriate outcome for your behaviour was dismissal because of the elaborate nature of the lie, the fact you perpetuated the lie when called by DI Sambrooks later on the same day as the interview, the risk of harm to others cited in the lie, namely the transgender colleague who could have been alerted to it and those you claimed had made inappropriate remarks and who were put at risk of investigation. Mr Fernando also highlighted the multiple breaches of the Standards of Professional Behaviour and also pointed out that when you were put under pressure you chose to lie, the suggestion being a possible propensity to lie on other occasions and in other circumstances.

Miss Bahia spoke on your behalf. She submitted the Panel should look at the totality of the breaches not the fact a number of the Standards were breached by the same set of facts. Miss Bahia invited us to consider a less serious outcome than dismissal and reminded us that each case must be decided on its own facts. Miss Bahia described your conduct as a single, unplanned lie told in a moment of panic in a stressful situation. Miss Bahia asserted that the lie was not as elaborate as suggested by the AA because you used part of a genuine example when you arranged for Equality and Diversity awareness training for colleagues in a previous role, and weaved that into the lie about the transgender colleague. Addressing the issue of harm, Miss Bahia argued that there was no genuine risk of harm to your colleagues as you would never have allowed DI Sambrooks to pursue any follow up action, and indeed you confessed to the lie when this appeared to be a possibility. Miss Bahia submitted that you had displayed genuine remorse and referred to your previous good character and long service.

In his submissions, Mr Fernando reminded the Panel that when deciding on outcome, it must adhere to the College of Policing Guidance on Outcomes in Police Misconduct Proceedings, and follow the 3-stage approach to reaching the appropriate sanction. The Panel followed that staged approach as it is required to do.

The Panel reminded itself that the outcome imposed can have a punitive effect, therefore it should be no more than is necessary to satisfy the purpose of the proceedings. It reminded itself that it must consider less severe outcomes before more severe outcomes, always choosing the least severe outcome which deals adequately with the issues identified, while protecting the public interest. The Panel understood that if an outcome is necessary to satisfy the purpose of the proceedings, it must impose it even where this would lead to difficulties for the individual officer.

The Panel followed the three-stage approach as follows:

Stage 1: Assess Seriousness.

Stage 2: Remind itself of the Purpose of the Police Misconduct Regime.

Stage 3: Determine the sanction most appropriate to the Purpose.

Seriousness

The Panel agreed that your misconduct was serious and so serious that dismissal might well be justified, however it reminded itself that dismissal is not automatic when gross misconduct is proved. Whether or not dismissal or some lesser sanction is appropriate will depend on the facts of the case having assessed the level of seriousness.

In assessing seriousness, the Panel decided that the gravamen (or most serious aspect of your wrongdoing) was your breach of honesty and integrity by concocting a false example in the interview for the role of SOCEX supervisor.

The Panel assessed the level of seriousness in your case by following the four-stage approach as laid down in the College of Policing Guidance on Outcomes.

Stage 1: Assess Culpability.

Stage 2: Assess Harm.

Stage 3: Consider Aggravating Factors.

Stage 4: Consider Mitigating Factors.

Culpability

It was agreed you were culpable for your actions, but to what degree? This was determined by considering the culpability sub-factors in the Guidance:

 Intentional or Deliberate? Your misconduct was obviously intentional and deliberate. However, the Panel was not satisfied that you intentionally or deliberately set out to cause harm to your colleagues or to the reputation of WMP.

 Targeting. There was no evidence of targeting a particular victim in this case. Whilst your lie referred to an identifiable individual, that reference did not amount to targeting.

 Planning. The AA did not assert that you had planned to lie before the interview.

 Abuse of Trust/Responsibility. The Panel did consider this to be a factor which elevated your culpability. You were and are a Sergeant and therefore a supervisor. WMP and the public expected you to maintain even higher standards than the already high standards expected of a Constable. By behaving as you did you failed to live up to your position of responsibility as a leader.

 Especially Serious. Your actions did not fit into any of the types described as especially serious in the Guidance.

Having considered all of the sub-factors above, the Panel assessed the degree of culpability in your case as Medium.

Harm

The Panel found that your behaviour did not cause actual harm but created the potential for harm, both in terms of harm to your colleagues and to the reputation of the force and the police service.

The Panel found that the potential for harm to your colleagues, whilst serious if it ever materialized, was unlikely to so materialise because you would have intervened in precisely the way you did by owning up to the lie as soon as it appeared DI Sambrooks might take further action to investigate the fabricated episode of inappropriate behaviour.

In terms of potential harm to the reputation of the force and the wider police service, the Panel assessed that ordinary members of the public would take a dim view of your behaviour, but would distinguish it from more serious forms of misconduct such as operational dishonesty or other misconduct in the execution of one’s duties. On the facts of your case, this reduced the degree of potential harm to reputation of the police service and public confidence.

Therefore, whilst the Panel concluded there was the potential for some harm, the facts of this case did not lead it to conclude serious harm would result.

For the above reasons, the Panel assessed the potential harm caused as Medium.

Aggravating Factors

In considering what aggravating features might be present the Panel referred to the non-exhaustive list in the Guidance and considered them alongside the facts of your case. The Panel found there were no aggravating factors which had not already been counted as part of its assessment of culpability and harm, namely planning, targeting, taking deliberate steps, seeking personal (or professional) advantage or abuse of trust and position.

It was suggested by the AA that the breach of multiple Standards of Professional Behaviour was an aggravating feature in your case. The Panel rejected that contention. Whilst the Panel found your behaviour amounted to breaches of three separate Standards, the breaches did not arise from multiple instances of misbehaviour but a single and very limited act. In your case a breach of Honesty and Integrity would inevitably also be labelled Discreditable Conduct, and the lie which formed the subject of the aforementioned breaches led to a third breach (albeit tenuous) of Authority, Respect and Courtesy because of the disrespect demonstrated towards colleagues. Therefore, the panel concluded there were not multiple breaches of any substance, but a single proven allegation which satisfied multiple definitions and which the Panel had to consider holistically.

No additional aggravating features were identified by the Panel, therefore it determined there were no further aggravating features of significance to which it could give weight.

Mitigating Features

The Panel referred to the non-exhaustive list of mitigating factors set out in the Guidance on Outcomes and found the following to be present in your case:

 Misconduct confined to a single episode or brief duration. A single admitted instance of lying to a single question in an internal job interview.

 Evidence of genuine remorse, insight and/or accepting responsibility for one’s actions. The Panel accepted that you displayed genuine remorse in your PSD interview and repeated this in your evidence to the tribunal.

Overall Assessment of Seriousness

The Panel assessed your misconduct as a relatively serious instance of dishonesty, but distinguished between a lie told in answer to a question put to you in an internal job interview which did involve promotion, and lies told in an operational policing capacity.

Whilst the Panel deemed your conduct to be reprehensible and questioned how you might stand up to pressure in the future, there was no evidence to suggest you had any propensity to be untruthful when executing your duties. Such a propensity would demand protection for the public, and protection in the form of dismissal. But your 27 years of unblemished service in demanding front line investigative roles revealed no evidence that might suggest a tendency towards dishonesty in an operational context and the complexion of the lie you told was insufficient to suggest you would do the same in an operational context.

Your behaviour had the potential to undermine public confidence to a degree, but as an example of gross misconduct it fell some way short of the worst cases of gross misconduct dealt with by a Police Misconduct Hearings.

Applying the staged process to the facts, the Panel assessed your misconduct as follows:

Culpability – Medium.

Harm – Medium.

Aggravating Features – None.

Mitigating Features – Two identified mitigating factors. A single episode of limited duration and remorse.

Overall, the Panel assessed seriousness as falling somewhere close to the middle of the range of the seriousness spectrum and certainly not at the upper end.

The Purpose

Having assessed seriousness, the Panel reminded itself of the purpose of the police misconduct regime before deciding on the appropriate sanction. The threefold purpose is of course as follows:

• Maintaining public confidence in and the reputation of the Police Service.

• Upholding high standards in policing and deterring misconduct.

• Protecting the public.

Deciding Sanction

As required by the Guidance on Outcomes, the Panel moved to the third stage of the sanction process by considering the least serious outcome available to it that would meet the threefold purpose of the misconduct regime.

The degree and nature of your misconduct was so serious that neither Management Advice nor a Written Warning were deemed sufficient to meet the requirements of maintaining public confidence in the police service and to provide effective deterrence against further misconduct.

The Panel then had to decide whether a Final Written Warning was sufficient to meet the purpose of the misconduct regime or whether only dismissal would meet the purpose. In assessing seriousness, the Panel decided that your gross misconduct fell short of the most serious forms of police misconduct and although the general public would not condone your behaviour, the Panel did not find that dismissal was necessary to meet the threefold purpose. In particular the Panel deliberated on your ability to continue in an investigative capacity and whether you posed a risk of harm to the public which could only be averted by dismissal. On this point the Panel reminded itself of the clear distinction drawn in the Home Office Guidance on Outcomes between operational dishonesty and dishonesty in other contexts. The Panel considered very carefully whether your lying in an internal job interview indicated a genuine risk to the public that you would be tempted to act dishonestly in an operational capacity, but the Panel was satisfied that whilst your behaviour was reprehensible, a single instance, on the facts of this case, was insufficient to establish a propensity towards dishonesty or untruthfulness. Therefore, the Panel determined dismissal was not necessary to protect the public.

Considering the questions of maintaining public confidence in and the reputation of the police service, the Panel reminded itself of its findings in relation to harm in that the public would certainly take dim view of your misconduct, but would regard it as less serious than other forms of misconduct. The Panel decided public concern could adequately be met by a Final Written Warning.

In terms of upholding high standards in policing and deterring misconduct, WMP has clearly and publicly demonstrated that it sets and expects the highest standards by bringing gross misconduct proceedings against you. Your experience of these proceedings and the sanction of a Final Written Warning are sufficient to deter others from attempting to repeat your behaviour. Your colleagues will also understand, as explained in the Panel’s oral reasons given to you on 6th October 20, that you were very close to dismissal.

Taking its assessment of seriousness into account, the Panel concluded that a Final Written Warning was a proportionate response to your misconduct, which sufficiently meets all three aspects of the misconduct regime’s purpose.

Your behaviour was inconsistent with the office of Constable and the rank of Police Sergeant, but in all the circumstances of the case and having applied the approach directed by the Guidance on Outcomes, the Panel decided that dismissal with or without notice were not the least serious sanctions available to adequately protect the public interest and confidence in the police. It was considered that a Final Written Warning is sufficient to mark your misconduct as unacceptable and will provide the required deterrence against future misconduct.

Personal Mitigation

Personal mitigation in the form of good character references was considered by the Panel after determining seriousness and in accordance with Part 6 of the Guidance on Outcomes. The Panel recognised the comments made about your contribution to the Police Service, particularly in the field of public protection, and whilst the positive remarks about your good conduct and character went to your credit, they did not affect the Panel’s assessment of seriousness or its decision on outcome in this case.

RIGHT OF APPEAL

You have a right of appeal against the outcome under the following circumstances:-

the finding or outcome was unreasonable;

there is evidence that could not reasonably have been considered at the original hearing which could have materially affected the finding or decision on disciplinary action; or

there was a breach of the procedures or other unfairness which could have materially affected the finding or decision on outcome.

Should you wish to appeal this must be done to the Police Appeals Tribunal by writing to the Police and Crime Commissioner, West Midlands Office for Policing and Crime within ten working days beginning with the day after receipt of this notice. Please note that the tribunal can increase any outcome imposed as well as reduce or overturn the decision of the panel. You have the right to be legally represented at the appeal hearing.

…’

Its assessment of culpability had placed too little weight on the Officer’s rank, position of trust in relation to her team, and the nature of the lie (as described in Ground 1);

Its assessment of harm had followed an erroneous finding that there had been no actual harm (as distinct from no evidence of the latter), albeit that some members of the Officer’s team had been aware of her conduct and had told her that she had been a ‘stupid idiot’; had left out of account the risk of real (at least reputational) harm which the junior colleagues would have suffered had DI Sambrooks (and the other interview panel members) accepted the Officer’s story as true and DI Sambrooks accepted her statement that no further action was needed; had failed to take account of any risk of harm to the transgender officer; and had failed to recognise the significance of the fact that the dishonest act had been committed by the Officer whilst on duty and at work; had involved lying to more senior officers and incriminating the junior colleagues whom she supervised; and had been for her own personal gain. In those circumstances, the properly informed public would not merely have taken ‘a dim view’, but a more serious view of the Officer’s conduct. The Panel ought to have considered the gravity of the particular breach, rather than where it had fallen in a spectrum of possible acts of misconduct;

Its conclusion that there had been no aggravating factors had left out of account the nature of the relevant dishonesty (as described in Ground 1);

Its identification of a single incident of lying, in response to a single question in an internal job interview, as a mitigating factor had double-counted matters already taken into account and further, had minimised significantly the dishonesty in question, which had been elaborate and multi-layered and, albeit that the Officer had immediately recognised that her dishonesty had been ‘very bad’, she had reinforced it whilst ‘mulling over’ what to do, admitting the truth in a piecemeal fashion, three days later. The Panel’s conclusion that the misconduct in question did not indicate a tendency towards operational dishonesty had not been explained (acknowledging that that point had not been raised in the grounds of review).

each case must turn on its specific facts;

there could be no legitimate criticism of the Panel’s consideration of both culpability and harm when assessing the seriousness of the Officer’s misconduct; the Panel had been at pains to stress that it in no way minimised her behaviour, or lack of honesty and integrity; it had balanced her role as a sergeant, in a position of trust, with the fact that her conduct had not been planned or deliberately targeted - this had been conduct with unintended consequences, in the moment of a stressful and unique interview environment in which it was difficult to conclude that the Officer reasonably could have foreseen the harm;

the misconduct had not fallen within any of the specific categories which would increase the Officer’s culpability;

the Panel had been well aware of the fact that the Officer’s colleagues had been aware of her conduct, had been made aware of their reaction to it, in which context noting that no ‘actual harm’ had occurred. Whilst DI Sambrooks had been aware of the identity of the individuals in the Officer’s team, the rest of the interview panel had not;

as soon as the Officer had become aware that DI Sambrooks intended to speak to the transgender officer, she had stated that that officer was unaware of the matter in question and, subsequently, had confessed, thereby reducing any risk of harm. DI Sambrooks’ role as a senior officer in FIB inevitably had meant that the matter would be taken forward. Furthermore, nothing could have been held against any of the allegedly transphobic colleagues, absent investigation, meaning that the risk of reputational harm to those officers had been limited;

the level of harm had been correctly assessed by the Panel because the risk of harm had been balanced with the absence of aggravating factors;

the lie had been told in the moment and had taken on a life of its own, as the Panel had recognised by its characterisation of that lie;

the Panel had received evidence in relation to the risk of operational dishonesty, following cross-examination of the Officer to that effect, and had reached its conclusion in that context;

whilst the Officer had not immediately admitted to lying, she had made full and frank admissions prior to formal interview, demonstrative of her genuine remorse.

‘Overview

Pursuant to regulation 3(1) of the Police (Conduct) Regulations 2012, by finding Officer A guilty of gross misconduct, the Panel had concluded that his conduct was so serious that dismissal would be justified, albeit that it could impose a lesser sanction of management advice, written warning or final written warning (regulation 35(3)(b)).

It is common ground between the parties that, although the Panel thus had a discretion as to the appropriate sanction in Officer A’s case, it was required to exercise that discretion in accordance with the structure identified in the Guidance (see R (on the application of the Chief Constable of Greater Manchester Police) v Police Misconduct Panel 13 November 2018, per HHJ Pelling QC at paragraph 14). Moreover, to the extent it considered it appropriate to depart from the structure of the Guidance, the Panel was required to explain why it had done so (see R (on the application of the Chief Constable of Northumbria Police v Police Misconduct Panel [2018] EWHC 3533 (Admin), per HHJ Kramer at paragraph 75).

At paragraph 1.3, the Guidance itself explains that it:

“…does not override the discretion of the person(s) conducting the meeting or hearing. Their function is to determine the appropriate outcome and each case will depend on its particular facts and circumstances. Guidance cannot and should not prescribe the outcome suitable for every case.”

That said, it does provide (see paragraph 1.4):

“…a general framework for assessing the seriousness of conduct, including factors which may be taken into account. These factors are non-exhaustive and do not exclude any other factor(s) that the person(s) conducting the proceedings may consider relevant.”

The purpose of the police misconduct regime is also made clear in the Guidance; paragraph 2.1 setting the context, as follows:

“Police officers exercise significant powers. The misconduct regime is a key part of the accountability framework for the use of these powers. Outcomes should be sufficient to demonstrate the individual accountability for any abuse or misuse of police powers if public confidence in the police service is to be maintained. They must also be imposed fairly and proportionately.”

Then, at paragraph 2.3, the three-fold purpose is explained:

“• Maintaining public confidence in and the reputation of the police service

• Upholding high standards in policing and deterring misconduct

• Protecting the public.”

This articulation of the purpose of professional disciplinary proceedings is drawn from the case-law; specifically, in relation to the police, the Guidance refers to the decision of the House of Lords in R (Green) v Police Complaints Authority [2004] UKHL 6, at paragraph 78, where Lord Carswell stated:

“Public confidence in the police is a factor of great importance in the maintenance of law and order in the manner of which we regard as appropriate in our polity. If citizens feel that improper behaviour on the part of police officers is left unchecked and they are not held accountable for it in a suitable manner, that confidence will be eroded”.

At paragraph 2.10 of the Guidance, it is noted that misconduct proceedings are not designed to punish police officers, with reference being made to Raschid v General Medical Council [2007] 1 WLR 1460, where, at paragraph 18, Laws LJ had observed:

“The panel is then centrally concerned with the reputation or standing of the profession rather than the punishment of the doctor.”

That said, at paragraph 2.11, the Guidance acknowledges:

“The outcome imposed can have a punitive effect, however, and therefore should be no more than is necessary to satisfy the purpose of the proceedings. Consider less severe outcomes before more severe outcomes. Always choose the least severe outcome which deals adequately with the issues identified, while protecting the public interest. If an outcome is necessary to satisfy the purpose of the proceedings, impose it even where this would lead to difficulties for the individual officer.”

…in determining the appropriate outcome, [the panel] is required to adopt a three-stage approach, as laid down by Popplewell J (albeit in the context of solicitors’ disciplinary proceedings) in Fuglers LLP v SRA [2014] EWHC 179 (Admin), at paragraph 28, as follows:

“There are three stages to the approach which should be adopted by a solicitors’ disciplinary tribunal in determining sanction. The first stage is to assess the seriousness of the misconduct. The second stage is to keep in mind the purpose for which sanctions are imposed by such a tribunal. The third stage is to choose the sanction which most appropriately fulfils that purpose for the seriousness of the conduct in question”.

That three-stage approach is set out at paragraph 4.2 of the Guidance.

Stage 1: Seriousness

In Fuglers, at paragraph 29, Popplewell J went on explain that in assessing seriousness (the first stage):

“In assessing seriousness the most important factors will be (1) the culpability for the misconduct in question and (2) the harm caused by the misconduct. Such harm is not measured wholly, or even primarily, by financial loss caused to any individual or entity. A factor of the greatest importance is the impact of the misconduct upon the standing and reputation of the profession as a whole. Moreover the seriousness of the misconduct may lie in the risk of harm to which the misconduct gives rise, whether or not as things turn out the risk eventuates. The assessment of seriousness will also be informed by (3) aggravating factors (eg previous disciplinary matters) and (4) mitigating factors (eg admissions at an early stage or making good any loss). …”

These considerations are set out in the Guidance at paragraph 4.4.

At paragraphs 4.5-4.9, the Guidance advises that, when considering outcome, a panel should:

… first assess the seriousness of the misconduct, taking account of any aggravating or mitigating factors and the officer’s record of service. The most important purpose of imposing disciplinary sanctions is to maintain public confidence in and the reputation of the policing profession as a whole. This dual objective must take precedence over the specific impact that the sanction has on the individual whose misconduct is being sanctioned.

Consider personal mitigation such as testimonials and references after assessing the seriousness of the conduct by the four categories above.”

Recognising:

There may be overlap between these four categories and/or imbalances between them. Low-level culpability on the part of a police officer, such as a failure to respond in good time to an incident, can result in significant harm. Equally, an officer may commit serious misconduct which causes minimal harm to individuals or the wider public but may still damage the reputation of the police service.

Carefully assess the officer’s decisions and actions in the context in which they were taken. …

Weigh all relevant factors and determine the appropriate outcome based on evidence…”

The Guidance also addresses the assessment of culpability, explaining at paragraph 4.10:

“Culpability denotes the officer’s blameworthiness or responsibility for their actions. The more culpable or blameworthy the behaviour in question, the more serious the misconduct and the more severe the likely outcome.”

It is observed, however, that certain forms of misconduct are to be considered “especially serious” (paragraph 4.15), relevantly providing (paragraph 4.51) that this will include “Discrimination” (citing race as one of the relevant protected characteristics in this regard) and stating that:

“Discrimination towards persons on the basis of any of these characteristics is never acceptable and always serious.”

The Guidance goes on to explain that:

Discrimination may involve language or behaviour. It may be directed towards members of the public or colleagues. It may be conscious or unconscious.

Cases where discrimination is conscious or deliberate will be particularly serious. In these circumstances, the public cannot have confidence that the officer will discharge their duties in accordance with the Code of Ethics.

Unconscious discrimination can, however, also be serious and can also have a significant impact on public confidence in policing.”

In addressing the question of harm, the Guidance acknowledges that this might be considered in various ways. It might be relevant to consider (for example) the type of harm caused or risked; the persons affected; or the effect on the police service or public confidence (see paragraph 4.57). The Guidance then advises that the panel should:

Assess the impact of the officer’s conduct, having regard to these factors and the victim’s particular characteristics.

Where no actual harm has resulted, consider the risks attached to the officer’s behaviour, including the likelihood of harm occurring and the gravity of harm that could have resulted.” and notes:

How such behaviour would be or has been perceived by the public will be relevant, whether or not the behaviour was known about at the time.”

At paragraph 4.65, however, it is further noted that:

“Where gross misconduct has been found, however, and the behaviour caused or could have caused, serious harm to individuals, the community and/or public confidence in the police service, dismissal is likely to follow. A factor of the greatest importance is the impact of the misconduct on the standing and reputation of the profession as a whole.”

The Guidance also provides advice as to the approach panels are to adopt to aggravating and mitigating factors. It notes that:

Aggravating factors are those tending to worsen the circumstances of the case, either in relation to the officer’s culpability or the harm caused.” and that:

Factors which indicate a higher level of culpability or harm include: … any element of unlawful discrimination …”

As for mitigating factors, the Guidance explains that:

Mitigating factors are those tending to reduce the seriousness of the misconduct. Some factors may indicate that an officer’s culpability is lower, or that the harm caused by the misconduct is less serious than it might otherwise have been.”

And various examples of mitigating factors are given, including whether the misconduct was confined to a single episode or was of brief duration; whether there was any element of provocation; whether the officer had made open admissions at an early stage; whether there was evidence of genuine remorse, insight and/or an acceptance of responsibility (paragraph 4.71).

Stage 2: Purpose

Having assessed seriousness, the panel is required to turn to the second stage and to remind itself of the purpose for which sanctions are imposed; as explained in Fugler, at paragraph 30: “At the second stage, the tribunal must have in mind that by far the most important purpose of imposing disciplinary sanctions is addressed to other members of the profession, the reputation of the profession as a whole, and the general public who use the services of the profession, rather than the particular solicitors whose misconduct is being sanctioned.”

In Bolton v The Law Society [1994] 1 WLR 512 (another case involving solicitors’ disciplinary proceedings, but which is also referenced in the Guidance), at p 518H, Sir Thomas Bingham MR (as he then was) observed that: “The second purpose is the most fundamental of all: to maintain the reputation of the solicitors' profession as one in which every member, of whatever standing, may be trusted to the ends of the earth. To maintain this reputation and sustain public confidence in the integrity of the profession it is often necessary that those guilty of serious lapses are not only expelled but denied readmission. … A profession's most valuable asset is its collective reputation and the confidence which that inspires.”

Stage 3: Determination of Sanction Most Appropriate to Purpose

It is thus, having first assessed the seriousness of the misconduct in issue, and then reminded itself of the purpose of disciplinary sanctions, that the panel will be able to carry out the third stage of the process and determine, given the seriousness of the conduct, which category of sanction most appropriately fulfils that purpose.’

‘21. The correct approach to be taken by the Administrative Court on a claim for judicial review of a PAT's decision is that stated by Burnett J in R (CC of Dorset) v PAT & Salter [2011] EWHC 3366 (Admin) (emphasis added):

The Administrative Court should guard against the misuse of its jurisdiction by Chief Constables seeking to mount what are effectively "undue leniency" appeals to decisions of misconduct panels or PATs.’

‘..there was no evidence to suggest you had any propensity to be untruthful when executing your duties. Such a propensity would demand protection for the public, and protection in the form of dismissal. But your 27 years of unblemished service in demanding front line investigative roles revealed no evidence that might suggest a tendency towards dishonesty in an operational context and the complexion of the lie you told was insufficient to suggest you would do the same in an operational context.’; and

‘On this point the Panel reminded itself of the clear distinction drawn in the Home Office Guidance on Outcomes between operational dishonesty and dishonesty in other contexts. The Panel considered very carefully whether your lying in an internal job interview indicated a genuine risk to the public that you would be tempted to act dishonestly in an operational capacity, but the Panel was satisfied that whilst your behaviour was reprehensible, a single instance, on the facts of this case, was insufficient to establish a propensity towards dishonesty or untruthfulness.’

All of the other criticisms made by the Claimant go to the weight of the various factors which, it is clear from the Panel’s oral and written reasons, it had had in mind. In my judgment, they constitute no more than a disagreement with the Panel’s assessment and disclose no public law error in the Panel’s approach or conclusions.