The Chief Constable of the British Transport Police, R (on the application of) v Police Misconduct Panel

Introduction: paras. [1]-[4]

The Judicial Review claim in outline: paras. [5]-[10]

The Facts and the Disciplinary Process in more detail: paras. [11]-[23]

The Law and Guidance on the appropriate approach: paras. [24]-[70]

The Grounds of Review: submissions paras. [71]-[102]

Discussion: paras. [103]-[149]

Conclusion and Disposal: paras. [150]-[156]

II. The Judicial Review claim in outline

The Panel’s decision to impose an outcome other than dismissal was irrational.

The Panel failed properly to follow the structured approach to assessing a disciplinary outcome:

The irrationality of certain factual findings.

The irrationality of the decision on outcome in the light of the irrational findings of fact.

The Facts and the Disciplinary Process in more detail

“Complaint details

Please tell us what happened

I live in Hammersmith and was excited to go out for a walk/jog for some exercise as I have been self isolating for two weeks now. I had scheduled to meet a friend (redacted) to go for a jog together at a socially acceptable distance. So I was on my way to the Brook Green area, walking along Shepherds Bush Rd, and as I was crossing a smaller street I sensed a car beside me slowing down, and a man looking out of his car to look at me. He smiles, but with my earphones on, I do not hear whether he's said anything to me, so I just carry on walking. This car parks in front of me, just a few metres away from the Tesco's and the man walks out of his car. I assume that he's just parking and leaving, but he turns towards me and starts talking to me. I pull my earphones out to hear him say "How's it going? Sorry. I was distracted by you whilst I was driving, and wanted to know, where are you from?" This kind of conversation starter happens quite often and so I just quickly answer to avoid being to rude and I say " Hong Kong" with a slight smile. I try to turn to leave and he says "Oh! I thought you were Brazilian! because you look too curvy to be asian!" At this point, I am already disgusted by what he's said but I decide to leave it and just wanted to get this over with as soon as possible so that I can go and find [complainant’s friend], who is now waiting for me. This man introduces himself as Jay, and tells me not to worry as he is an officer, and that he has just come off his shift. He flashes his police badge at me, and says "here look, let me show you a photo too". I say "its really okay, im on my way to meet a friend so im going to go now" and he said "oh to tesco's?" and I say "no, for a run".

Jay says "oh you're a runner, maybe we can hang out some time soon too." and really finding it hard to leave, I quickly just say "Sorry im taken" (as usually that makes it easier to end the conversation. not this time though) Jay continues by saying "no its fine, we can just hang out, as friends you know, you dont believe me when i say im a police officer? Here, see, this is me in my uniform" and he proceeds to show me photos of him wearing the police helmet, but also photos of him wearing unbuttoned shirts, and pictures of him showing off his body. At this point, I message my friend (redacted) "help me" and am about to send him my location details, when Jay comes closer to me and asks for my number. In my experience, its easier to give out your real number and block them later than to say no or give them a fake number because boys tend to call immediately to check, so i gave him my number, and he then calls me to verify my number, and seeing that it came through, i show my phone to him with his call coming through and i say "sure, just message me, i need to leave now" and he says "aw i know its covid 19 and everything but you can give me a little hug right?" and I say "No, i need to go now" so i start calling my friend (redacted) to look occupied and walk away. and Jay gets into his car and slowly drives away whilst still waving at me. The reason I am filing this complaint: - It shouldnt be okay for a police officer to be flashing their badge at someone, ruining the police's image as a whole, and just making "the victim" i.e. me feel like i couldnt really leave at the time. - if the badge was not real and it was only a tool to "get" more girls, impersonating the police is also a crime and therefore I wanted it check whether this person is actually in the police force. - his intentions were clearly to try and get with me and during the whole situation even though i was out in public, i did not feel like I could leave, and I felt sexually harassed by the things he was showing me and saying. Now that he knows my number and first name, I keep wondering if he could abuse his power as a police man and find out more details about me and i feel absolutely unsafe. I am also currently living alone, so not being able to freely walk around my neighbourhood knowing that he works in the area is not a great feeling to have. - calling me "too curvy to be asian" was more racist than he may have thought. and i have no idea how he may have thought this would have been flattering for me to hear. I do not wish this situation upon any other girl. Whilst I didn't fully express my discomfort at the time, my coping strategy is sometimes to laugh it off and just be done with the conversation to avoid any trouble, this has definitely ruined my day and left me feeling harassed. Since then, he has messaged me asking me for my whatsapp (which thankfully is linked to another number) and has asked "How was your run, babe". I have not responded to these and have blocked this number. I am also happy to provide screenshots of these conversations (both Jay's messages and my conversation with (redacted) to prove my messaging him "help me" and to prove the timestamp of when all of this happened).”

“On the 15th April 2020, at approximately 1600 hours, I had just finished a 0700-1600 hours early shift and planned to leave work and attend for my daily essential food shopping at my local supermarket which is on the shepherd’s bush road. I have been reluctant to park in the car park after my car boot was damaged a few months ago and as such routinely choose on street parking locally. On this occasion I had parked on Shepard’s Bush road approximately 50 to 100 yards away from the Tesco.

On my way to the supermarket (Brook Green Tesco) I saw a female who I know now to be [WXY]. I will refer to her as [WXY] in my statement, she was slowly walking towards me in the direction I had parked my vehicle and at first glance I thought I knew this female from my gym (pure gym Hammersmith) which started the conversation I am a keen fitness enthusiast and kickboxer and in my spare time I usually train with males and females at the local gym which was a few hundred yards away from where I parked. I had an honest held belief that she attended my gym (pure gym, Hammersmith). [WXY] alleges that I was driving slowly next to her and looking out of my car and looking at her and smiling. I refute this as I was looking for a place park and I knew that I would have to turn left to do so. As I was looking for carrier bags in my vehicle, she walked slowly towards me on the pavement. I said ‘hey, how’s it going?’ to her and she smiled, took out her headphones and stopped. She then alleges that I said to her that I been distracted by her when I was driving, and I wanted to know where she was from? This is not true. I had been driving slowly as I was about to park my car. I introduced myself as Jay- (my childhood/social nickname) and she introduced herself as [WXY]. I asked her how she was coping through COVID-19 and where she was from and she replied that it had been hard as she was unable to socialise as normal and smiled and said she was from Hong Kong. She alleges that I said “Oh I thought that you were Brazilian, because you look too curvy to be Asian” I did NOT make any such comment. When I stated that I thought she was from Brazil she said, ‘No I have good genes’ She then asked me where I was from and as I assumed it was a polite conversation and I was happy to answer that I was a British Pakistani, to which she replied, ‘a British What’?

At this point I assumed the conversation had concluded but as she showed no sign of leaving and was continuing to chat, I asked her what she did for a living, she replied she was an admin assistant or similar. I said this must have been hard if she had been furloughed in the pandemic and she agreed. When she asked me what I did for a living, I replied I was a police officer who had just finished my shift in the local area and was on my way for essential shopping up the road. She said ‘oh, really? I don’t believe you, where’s your badge?’ at which point I was ethically obliged to show my warrant card as she was a member of the public requesting it.

She began asking about what the role of a police officer entailed and at this point I was happy to engage her and answer. She said that to be in the police, officers must have to be in optimal shape and this segued into her asking about my general fitness regime. I replied that I enjoy doing a variety of training through running, weight lifting, circuit training and particularly martial arts and stated that I had pictures on my phone of my training endeavours. She asked to see them, and I was happy to show her as she had also expressed an interest in fitness. Throughout the conversation I was mindful of the need to ensure social distancing and so I was aware when she breached this by stepping forward to see my pictures, so I took a step back. I did show [WXY] pictures which I had on my phone. The pictures were of me in the pure gym carrying out some weight training.

She then commented about my physique, complimenting me and at this point she looked at me up and down and said she thought I had a good physique. She asked what my height was. I replied that she too looked in good shape and asked her what fitness regime she was doing.

I said to her ‘are you a member of the pure gym down the road?’ as we have all been affected by gym closures during the pandemic, to which she replied that she was not at attending the gym now. I said ‘you look like you are into your fitness- I am motivated by fellow fitness enthusiasts and as a friendly gesture (as I was aware gyms are closed) I said if she wanted to train together once feasible we could. I have been asked many times for support/advice on training in the local gym. She replied ‘yes, WhatsApp me and we can arrange a time and date’ so we swapped numbers and I said I would message her later, as I was originally on my way to Tesco. At this point I said to [WXY] ‘I would shake your hand’ to say nice to meet you but due to covid-19 am not going to, I then said bye to [WXY] and told her to have a good run she then said bye and slowly walked off smiling.

At this point, I saw the queue from the Tesco car park was long and decided to forgo the waiting time as I was tired from my early shift.

To my knowledge, the encounter lasted a few minutes. I am aware she asked personal details about me including where I live, where I work, and if I frequented Westfields shopping centre. I found these questions slightly disconcerting at as at the time I had no reason for concern but given the shock of this allegation I am fearful of my safety and my wellbeing because she knows more about me than I do about her, and as she knows I am a police officer I worry she may do something to jeopardise my career or reputation. I have taken extra regard as is expected of police officers to engage and support the community in a worrying time for us all and am mindful that there is a heightened sense of fear in the community about the pandemic.

I am worried that as [WXY] alluded to in her statement, conversation starters are common but, on this occasion, she has chosen to make a complaint and I am highly concerned that this may be because I am in a profession of law enforcement which may be polarising for some. I find it conflicting that she stated she ‘wanted to get this over with as soon as possible’, however, continued to engage in conversation longer than I had anticipated and as such was willing to oblige.

I am also confused as to why [WXY] states she wanted to check the legitimacy of my profession via the mechanism of a complaint- I am ethically obliged to disclose to a member of the public who asks to see my warrant card that I am indeed a police officer hence showing her my warrant card at the time.

I would also like to make the point that at no time was this conversation sexual it was always based around fitness. At NO time did I make a sexual comment verbally or in a text message. As shown in the text messages I did use the term “babe”. This is a term I use friends as part of my day to day language. If on this occasion I have caused offence to [WXY] by using this term the I would like to state that was not my intention. It was not used in a sexual or defamatory way. Our brief conversation was purely about fitness and potentially meeting for a fitness session. I would like to add that by nature I am a very sociable person and I thought that we were engaging in a friendly chat and she showed a keen interest in wanting to train together. I did message [WXY], as she requested, on WhatsApp approximately two (2) hours after we meet. A copy of the text messages has been provided. From those text messages I would like to state categorically that I sent those messages to arrange a training session. When [WXY] did NOT respond to my text messages I made NO further contact.

I would like to state categorically that I refute ALL the allegations made by [WXY] in their entirety. I had an Honest held belief that on speaking to [WXY] initially that she did in fact attend and train at my local gym (Pure gym, Hammersmith). I did not force [WXY] into a conversation nor did I force [WXY] to remain in conversation with me. She could have walked away at any point.”

“…

Inappropriately used your status as a police officer in an attempt to impress [WXY], or otherwise advance your prospects of building a relationship with her;

Persistently ignored [WXY’s] cues that she did not wish to engage with you;

Made comments of a sexual nature to her;

Showed her photographs of an inappropriate or sexual nature;

Engaged with [WXY] generally, sought physical contact with her (i.e. a hug), and stood within two metres of her despite the coronavirus pandemic and in breach guidance issued by the Government and guidance provided to you by the British Transport Police;

Your interaction with [WXY], which was not a reasonable excuse to be outside of your home, was a breach of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020.”

“Your actions as set out above constituted a serious departure from one or more [of] the standards [of Professional Behaviour set out in Schedule 1 to the Regulations]:

Honesty and Integrity

Authority, Respect and Courtesy

Equality and Diversity

Duties and Responsibilities

Discreditable Conduct

“Factual Findings

1.13. In relation to the alleged facts at paragraph 1 (Footnote: ²), the Panel finds these proven based on the admission by the officer at paragraph 3 in his Regulation 22 response.

In relation to the alleged facts at paragraph 2 (Footnote: ³), the Panel finds the facts in relation to the officer alighting from his car and approaching the complainant proven based on the officer's own admission. However, the Panel does not accept that the officer 'parked' his car as alleged.

The evidence from the officer and the CCTV footage show that his car pulled into the motor cycle bay. He stopped a few feet away from the kerb with the engine idling and the vehicle lights left on when he alighted from the vehicle and walked around the rear of the vehicle before approaching the complainant. Throughout the encounter the vehicle engine was left running.

The Panel finds that the officer did not 'park' the vehicle in the conventional meaning of the word 'parked' but simply stopped the vehicle in the motor cycle bay with its engine idling. As to the alleged facts that the complainant was 'unknown to him at the time' while this is factually true in hindsight, at the relevant time the officer maintained that he honestly, albeit mistakenly held the belief that the complainant was someone he recognised from his gym in Hammersmith, the Pure Gym. The Panel has assessed the evidence and finds it is inconclusive as to whether he honestly held the belief that he knew the complainant at the time he approached her. In any event, the Panel finds it is not a material fact in this case as within a minute or two of their exchanges it was clear he did not know her.

In relation to the alleged facts at paragraph 3, the Panel finds the majority of facts proven based on the admissions made by the officer and the complainant. Both agreed there was a conversation in which the complainant was asked if she was Brazilian to which she replied she was from Hong Kong. The disputed facts concern the reference to the words "because you look too curvy to be Asian". The complainant stated that the whole sentence said to her by the officer in response to her reply that she was from Hong Kong was "Oh I thought you were Brazilian because you look too curvy to be Asian". The officer denied he made any reference to these words.

The Panel has reviewed the evidence and finds on a balance of probabilities that it prefers the evidence of the complainant. In reaching its finding, the Panel has assessed the consistency and reliability of the complainant's evidence compared to the officer's evidence contained in their respective accounts made to the IOPC and their live evidence. In this regard, the Panel notes the complainant filed her complaint setting out her account of the content of the encounter at 7.34pm on the same day of the incident, namely, 15 April 2021. Her account was therefore extremely contemporaneous and very detailed regarding the encounter.

In contrast, the officer did not complete his statement to the IOPC until after the service of the Regulation 17 Notice of Investigation dated 13 May 2020. On his own admission before the Panel, the officer accepted that his account given to the IOPC was possibly incomplete in omitting that he had shown training/ gym pictures on two occasions to the complainant and not only on one occasion as his IOPC account might suggest.

1.19 (i). He also said his IOPC account was not given in a timeline as he was responding to questions put to him by the IOPC. The Panel has reviewed the IOPC request dated 22 May 2020 for a written statement from him and notes that it simply requests that he give his version of events of 15 April. It did not prescribe any particular order that he was required to present his version of events. It therefore seems strange to the Panel that the officer would seek to present a version of events to the IOPC that did not reflect a timeline of how the encounter unfolded in the same way that the complainant did as this would have been the clearest way of presenting his evidence. This being the case, while the officer denied his IOPC account was unreliable due to the omission noted earlier he stated that he did his best to state what he could recall of the encounter to the best of his knowledge and belief.

Looking at both accounts, they refer to the complainant being asked where she was from and the officer stating he thought she was Brazilian. However, the complainant recalls the officer making reference that 'she looked too curvy to be Asian'. The officer has denied stating this. The Panel accepts on a balance of probabilities that this was said by the officer based on the contemporaneity and consistency of the complaint's evidence both in her written account to the IOPC and in her live evidence. On the other hand, the Panel finds the officer has been inconsistent on some material matters between his IOPC written account and his live evidence, namely the sequencing of the photographs and showing ot his warrant card which casts doubt on his general recollection of the encounter. The Panel recalls that memories tend to fade with time not, improve with time, yet the officer's memory appears to have improved with time regarding how many times he showed his photos to the complainant which he claimed in his live evidence was twice although this was not reflected in his IOPC account.

In relation to alleged facts at paragraph 4, the evidence from the complainant was that she definitely did not ask or initiate a request to see the officer's badge or warrant card but it was case of him saying if you don't believe that I am a police officer then here is my badge. In contrast, the officer stated that during their conversation regarding what they both did for a living, he informed the complainant that he was a police officer who had just finished his shift, to which the complainant said to him "Oh really? I don't believe you, where is your badge?" He said he felt ethically obliged to show his warrant card as she was a member of the public requesting it. He did so to provide her with reassurance that he was not lying as he thought she might have thought he was impersonating a police officer. The Panel prefers the evidence of the complainant based on her consistent contemporaneous IOPC account and her live evidence compared to the officer has been inconsistent in his IOPC account his live evidence as previously identified. Further the Panel can find no reasonable basis why the complaint would have wished to see the officer's badge or warrant card when she was on her way to meet a friend and by doing so would have bene further delayed. The Panel found the complainant was candid and honest in her live evidence accepting when she did not recall a matter and clear when she did. This is to her credit.

On the other hand, the Panel finds there is a plausible reason why the officer would have produced his warrant voluntarily. The officer said in producing his warrant card, he did not consider he was putting himself 'on duty' but simply responding to an ethical duty to demonstrate his good faith. He accepted he was not acting for a legitimate policing purpose in showing his warrant card. It was suggested to the officer in cross examination that he had taken out his warrant card in order to keep the complainant engaged as she wanted to leave. He denied this assertion and said she was talking and engaging freely with him.

The Panel has assessed the evidence and finds on a balance of probabilities that the warrant card was produced to the complainant not at her request as she said, and not for any ethical reason, but voluntarily by the officer to demonstrate he was someone who the complainant could trust as he was an officer. In this sense, its purpose was for the complainant's reassurance as he was a complete stranger who had just stopped her in the street while she was going about her lawful business.

The officer knew very well from his experience from frontline policing the power that production of a warrant card would have on a member of the public in providing reassurance that the holder could be trusted. The Panel finds that while the officer did show his warrant card for the purpose of reassurance, at the same time there was no legitimate policing purpose in producing his card. The only reasonable conclusion to reach on a balance of probabilities is that the reassurance he sought to provide was to induce the complainant to continue the engagement with him as there was no objective reason why she would have continued talking to a complete stranger when she was on her way to meet her friend, (redacted).

The Panel also finds from the CCTV footage that there was no continuing showing of the warrant card as alleged but it was a quick show of the warrant card from him. There has been dispute about whether the warrant card was produced before the mobile phone pictures or vice versa with the AA suggesting the warrant card was produced first followed by the pictures. The Panel finds resolution of this matter to be immaterial in the context of specifically assessing the purpose for which the warrant card was produced given that there is no dispute that whatever the sequence both the photos and the warrant card were produced at some stage during the encounter.

Having made its findings on the facts regarding production of the warrant card it follows that the allegation at paragraph 13(a) of the Regulation 21 notice is proven on a balance of probabilities, namely, that the officer did use his status as a police officer in an attempt to impress the complainant, or otherwise advance his prospects of building a relationship with her. In this latter regard, the Panel accepts the evidence of the officer that the nature of the relationship he envisaged was to 'hang out as friends' or 'training buddies' and not a sexual relationship.

In relation to the alleged facts at paragraph 5, the Panel finds these facts proven on a balance of probabilities based on the admissions of the officer and the complainant.

In relation to the alleged facts at paragraph 6, the Panel finds that the complainant did decline his invitation and told the officer she was 'taken'. The complainant said she told the officer she was taken because she was finding it hard to leave the conversation and that by saying this it usually makes it easier to end a conversation. The Panel also notes that immediately after she told the officer that she was 'taken' she texted her friend 'Help me'. In the Panel's view this is clear evidence that in her mind she was keen to get away from the officer and therefore by telling him she was 'taken' she hoped to achieve this outcome. In contrast, the officer has simply denied that the complainant told him this. The Panel has assessed the evidence and on a balance of probabilities prefers the complainant's evidence compared to the officer's which contextually and contemporanously is supported by her subsequent action of texting her friend "Help me".

In relation to the alleged facts at paragraph 7, the Panel finds on a balance of probabilities that the officer did ask the complainant to 'hang out as friends' He said as much in his IOPC account and in his live evidence. As regards whether he said 'you don't believe me when I say I am a police officer'the Panel has already accepted at paragraph 1.21, the evidence of the complainant that she did not request production of the officer's warrant card or badge but that he voluntarily produced it after he said "You don't believe me when I say I am a police officer?"

However, the Panel does not accept the assertion in paragraph 5, that the officer "persisted" in his behaviour. This is because the CCTV evidence shows the engagement between the officer and the complainant to be outwardly congenial with laughing and smiling on both sides. There is no objective evidence suggesting that the officer was being 'persistent' in any way.

It is not disputed that the complainant did send a text message to her friend (redacted) stating "Help me, I am on my way, Got stopped by a guy, Gosh' all in quick succession which clearly evidences the complainant's ongoing internal stress at the time from the encounter. However, these messages were unknown to the officer at the time and from the CCTV there is no objective evidence showing any outward stress by the complainant.

In the Panel's view her outward behaviour did not reflect her inner stress. Furthermore, the Panel finds that the encounter was in broad daylight in public and it was open to the complainant to leave the conversation at any time. She stated in live evidence and in her IOPC account that she was 'disgusted by the officer's remarks regarding when he said "Oh! I thought you were Brazilian because you look too curvy to be Asian", yet she did not leave. She also gave the officer her mobile number when she could have refused to do so. It is therefore reasonable to assume that she remained in conversation by consent.

The AA's states that the complainant was small in stature in comparison to the officer who is very tall. This is indeed factual but the implication made by the AA is that the complainant was in a somewhat weaker position during the encounter and was possibly being detained against her free will and choice. The Panel does not find this on the evidence. The complainant made her complaint within a few hours of the encounter. This required determination and courage. The complainant also explained her practice of giving out her real mobile number rather than a fake number when asked by males hitting on her. This was so she could ensure that any conversation went smoothly and then block them. She also said she used the tactic of telling the officer she was 'taken' so she could end the conversation. In the Panel's view her candour shows someone who was very capable of looking after herself and was clearly 'streetwise' in the situation she found herself.

In light of these findings, the Panel does not accept the assertions made at paragraph 9 that the officer "continued his unwelcome persistence in talking to the complainant". It therefore follows that the allegation in paragraph 13(b) is not proven.

In relation to the alleged facts at paragraph 8, the Panel does not find the facts proven, namely, that the officer showed the complainant photographs of himself wearing a police helmet, wearing an unbuttoned short and showing off his body. The AA bears the burden of proof of proving its case on a balance of probabilities. They have failed to discharge this burden regarding the alleged nature of the photographs being of an inappropriate or sexual nature because the IOPC investigation was deficient in failing to ask for the photographs from the officer.

The evidence of the complainant was that she was shown photographs by the officer she described as 'indecent' comprising mostly selfies of the officer in his underwear and others with his upper torso naked and another wearing a police uniform. None of these photographs have been produced by the AA.

The officer has produced four photographs that he claims he showed her comprising of one photo in his martial arts gym kit and the remaining three photos of him weight lifting. The complainant has candidly said that she believes only one of the photos produced she might have seen, namely, the one with him dressed in a martial arts gym kit. She said she could not recall any of the others being shown to her and importantly she would consider none of them as being 'indecent'. In the circumstances, the AA has failed to prove its alleged facts at paragraph 8 and likewise at allegation 13(d).

In response to the AA's failure to produce any photos of an indecent nature it has been suggested that the officer should have voluntarily cooperated with the IOPC and handed over any photos on his phone. The Panel does not accept this analysis. The fundamental error lies with the failure of the IOPC to request the photographs in the first place as part of its investigation. The officer was fully entitled to take the view as he did, that he did not have any photos of the nature alleged by the complainant on his phone and therefore was not in a position to produce any voluntarily. What photos he did have he produced to his legal advisers which was entirely reasonable in the circumstances.

In relation to the alleged facts at paragraph 10, the Panel finds these facts proven based on the agreed accounts of both the complainants and the officer.

In relation to the alleged facts at paragraph 11, the Panel finds the facts proven based on the agreed accounts of the officer and the complainant, save for the disputed reference to the request for a 'hug' by the officer. In this regard, the Panel recalls the officer stated in evidence that he did not request as 'hug' but said he would have offered to shake the complainant's hand meaning a fist bump. The complainant in her account stated that he requested a 'hug' which she refused.

The evidence of (the complainant’s friend) also referenced a request for a 'hug' which is supportive of the complainant's IOPC account. What is clear from the evidence is that both the officer and the complainant agree that the reference for a hug came after the officer mentioned Covid-19. Despite the recognition of covid-19 at the time the officer has admitted to standing on occasion within two metres of the complainant in breach of government guidance. By showing her pictures from his phone on two occasions and his warrant card the Panel finds that the officer encouraged the complainant to step forward to be closer to him in breach of government guidance.

In view of the permissive behaviour shown by the officer, the Panel finds it is more likely than not that he did ask the complainant for a 'hug' before they went their separate ways. Furthermore, the complainant has been clear and reliable in her IOPC account and before the Panel in her live evidence. In contrast, the officer has not been consistent in his evidence between his IOPC account and live account. Accordingly, on a balance on a probabilities, the Panel prefers the evidence of the complainant and finds that the officer did request a 'hug'. Therefore, based on its findings it follows that allegation 13(e) is proven.

In relation to the alleged facts at paragraph 12, the Panel finds the facts proven based on the admissions made by the officer.

In relation to the allegation at paragraph 13(c) that the officer made comments to the complainant of a sexual nature, the AA relies upon the proven reference by the officer to the complainant "looking to curvy to be Asian" and his reference to 'babe' in his text message. In relation to first reference the Panel finds that the reference to the body appearance of the complainant 'looking too curvy to be Asian' to be of a sexual and unwanted nature. The complainant said she was disgusted by it and the Panel accepts her evidence as to how she felt.

However, the Panel finds on the evidence that the reference to 'babe' was not sexual in nature. In this regard, the Panel heard evidence from the officer that this was the friendly and light hearted manner in which he referred to his female friends since he was at university. The Panel accepts his explanation and also his candid admission that the reference to 'babe' towards a person who he had only met a few hours only and was not a friend was indeed 'ill­ judged' in the circumstances.

Finally, in relation to allegation 13(f), the Panel recalls the evidence of the officer that he was on his way for shopping at Tesco when he encountered the complainant, which if correct would have provided the officer with a 'reasonable excuse' to be outside of his home under the relevant government Coronavirus Regulations 2020.

The evidence shows that he did ask the complainant if she was going to Tesco to which she replied 'No', she was going for a run. The evidence also shows that the Tesco shop was on the same street where he pulled in and remained stationary while he met the complainant. Finally, the evidence shows that following the encounter he did not go to the Tesco as he said the queue was too long. Having assessed the evidence, the Panel finds it is more likely than not that he was going to Tesco for his shopping but was temporarily distracted by the meeting with the complainant. The Panel finds that this temporary deviation from his primary purpose of shopping for no more than five­ minutes did not vitiate his reasonable excuse for being outside his home. The fact that he decided in the end not to go to Tesco because of the long queues also does not in the view of the Panel negate his initial purpose of going to do his shopping.”

Paragraph 13(a): PC Aftab “did use his status as a police officer in an attempt to impress the complainant, or otherwise advance his prospects of building a relationship with her”, but this relationship was to be friends or training buddies and not sexual (paragraph 1.26 of Determination).

Paragraph 13(c): PC Aftab’s remark “looking too curvy to be Asian [was] of a sexual and unwanted in nature” (paragraph 1.44 of Determination).

Paragraph 13(e): PC Aftab “did ask the complainant for a ‘hug’ before they went their separate ways” (paragraph 1.42 of Determination).

“15…

Honesty and Integrity: breach arose from PC Aftab’s “production of a warrant card where there was no legitimate policing purpose” and “production of his warrant card was solely for his personal gain of seeking or continue to prolong the conversation with the complainant with a view to forming a training (albeit not sexual) relationship with her” (paragraph 2.8 of Determination).

Authority, Respect and Courtesy: breaches arose from PC Aftab’s saying the word “babe” and his comment “too curvy to be Asian” (paragraph 2.11 of Determination).

Equality and Diversity: breach arose from PC Aftab’s saying “‘too curvy to be Asian’ [which] was unwanted stereotypical racial profiling” (paragraph 2.13 of Determination). But no breach arose from the use of the word “babe” (paragraph 2.14 of Determination).

Duties and Responsibilities: breach arose from asking for a hug in breach of the COVID-19 guidance (paragraph 2.16 of Determination).

Discreditable Conduct: breach arose as “on the basis of the admitted and proven facts the officer has by his conduct discredited and undermined public confidence in the policing service”, the “clearest evidence” of which was “the evidence of the complainant herself” as “she feels that people in power like the officer can get away with such conduct”. The Panel noted: “In her written complaint she said she felt ‘sexually harassed’” (paragraph 2.18 of Determination).

“Harm has been suffered by the complainant in particular and to wider confidence in policing in general” (paragraph 3.4 of Determination).

The complainant felt “sexually harassed” (paragraph 3.4 of Determination).

The complainant felt that “calling her “‘too curvy to be Asian’ was more racist than he might have thought” (paragraph 3.4 of Determination).

“the public would be deeply concerned that a police officer used his warrant card for personal gain” (paragraph 3.4 of Determination).

The conduct was aggravated by PC Aftab’s “abuse of trust, deviation from the government covid-19 guidelines, [and] proven multiple breaches of the professional standards all constitute aggravating factors” (paragraph 3.5 of Determination).”

“…

Turning now to the outcome or sanction for the officer:

The Panel recalls it has already found that the officer is solely responsible for his own conduct.

In terms of harm, and recalling the relevant aggravating and mitigating factors, the Panel has found that public confidence and trust has been significantly undermined by the conduct of the officer towards the complainant in particular, and the wider public confidence in policing in general. This is a case where the misconduct of the officer has directly engaged and/or impacted an identifiable member of the public, [WXY], who said in her live evidence that looking at the incident as a whole she felt as if the officer was trying to 'hit on her'. It made her angry as she felt that a lot of people in positions of power like the officer get away with this type of behaviour. She also felt that the process had been too long and took too much effort from her.

Of importance in the context of maintaining public confidence in and the reputation of the police are the comments made by the complainant regarding what she wished to see happen as a result of her complaint. She stated in her written complaint that she wished "the police to learn from the incident, the individual officers or staff involved to learn from the incident, the force to apologise and acknowledge something went wrong and to be provided with an explanation from the police". She also said that she felt 'absolutely unsafe' as the officer had her personal details. While her comments are not binding on the Panel, they are nonetheless important when weighing all the relevant factors in determining on an appropriate and proportionate outcome.

Turning to the Police Service Record for the officer, as a general remark the Panel notes that in 2018 he was the subject of a service recovery complaint. The details are unknown to the Panel and the complaint is not relied on by the AA in recommending an outcome. Specifically, the records show that the officer has been with the BTP Force for approximately 6 years and was a PCSO with the Metropolitan Force beforehand.

The character evidence submitted on behalf of the officer shows him to be a diligent, well liked and conscientious officer with a keen interest in fitness and exercise.

In his statement to the Panel, the officer expressed remorse for his actions and also noted that he had learnt from this incident. He said if retained by the Panel he would be more professional and respectful towards the public. In this context, the Panel believes that the salutary effect of these proceedings and the expression of remorse and reflective insights shown by the officer into his behaviour should provide the necessary assurance to the public that his misconduct will not be repeated and that he will adhere to the Professional Standards of Behaviour expected from him.

The misconduct regime recognises that officers will make mistakes. The Panel recognises that an important feature of the disciplinary regime is acknowledging that something went wrong here. This has been done by the Panel's finding of gross misconduct and the clear message that such conduct will not be tolerated. The Panel also considers that learning and development forms an integral part of public protection and reassurance. In this context, and to respond to the complainant's wishes and the wider public interest, the Panel recommends the BTP Head of Professional Standards adopt the following Management action:

We agree that the Code [of Ethics] and the HOG [2018] are the primary reference points for police officers and employees with respect to the professional standards which they are mandated by the 2012 Regulations to follow. They cannot, however, be seen in isolation from other guidance issued by the College. For that reason, we deal now with two documents published by the College that specifically address the use of firearms by police officers: the non-statutory, now updated Armed Policing Authorised Professional Practice (the "APAPP")... ”

Appropriate approach to misconduct proceedings and sanctions

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.”

In my judgment this panel fell into error in the way it approached the sanction. The only way a court or anyone else reading the decision can be satisfied that the correct structured approach had been adopted is if either the panel identifies the structured approach that it is required to adopt expressly in the body of its decision and then explains how it has arrived at the relevant decision applying that approach. If that ideal approach is not adopted but it is apparent from the language used by the tribunal that in substance such an approach in fact has been adopted then the court will not intervene. Obviously however the court will not guess or assume that a correct approach has been adopted if that is not apparent on the face of the decision.”

Although the panel states in the second and third line of its sanction decision that it has applied the principles in the guidance that falls far short of what is required in my judgment. It does not set out expressly or even refer expressly to the correct structured approach identified in Fugler summarised in the guidance even though the parties formerly cited Fugler to the panel.”

“DISCIPLINARY PROCEEDINGS

4.26 There are three over-arching purposes for police disciplinary proceedings:

4.27 Undertaking disciplinary proceedings against individual officers seeks to achieve these goals by establishing the facts underlying the allegation and coming to a fair and just conclusion, with regard to all the evidence.”

“Purpose of proceedings

4.33 [...]

4.34 As such, disciplinary proceedings are intended to deal with serious breaches of this nature that would damage public confidence in policing and have the potential to bring the reputation of the police force concerned or the service as a whole into disrepute such that a formal sanction would be appropriate if the allegation or matter were found proven.”

Public confidence in the police is a factor of great importance in the maintenance of law and order in the manner 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.” 

“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 re-admission. If a member of the public sells his house, very often his largest asset, and entrusts the proceeds to his solicitor, pending re-investment in another house, he is ordinarily entitled to expect that the solicitor will be a person whose trustworthiness is not, and never has been, seriously in question. Otherwise, the whole profession, and the public as a whole, is injured. A profession's most valuable asset is its collective reputation and the confidence which that inspires.”

... Although police officers do not have a fiduciary client relationship with individual members of the public or the public at large, they do carry out vital public functions in which it is imperative that the public have confidence in them. It is also obvious that the operational dishonesty or impropriety of a single officer tarnishes the reputation of his Force and undermines public confidence in it. In these respects, the similarities between solicitors and police officers justify the analogy provided that, ultimately, the decision-maker, be it the PAT or a judge of the Administrative Court, appreciates at all times that the index case falls to be assessed in the context of policing. I am entirely satisfied that Burnett J committed no error in this regard.”

“81 Further, there can be no doubt that the integrity of police constables is of vital importance, as is the existence of public confidence in that integrity. ...

...

87 ... I have no doubt that the importance of maintaining police integrity and public confidence is of fundamental importance and that the requirement that all cautions should be disclosed, including reprimands received as a child, is rationally connected to that objective. It promotes public trust to know that nothing in an officer’s background has been held back before he or she is entrusted with the powers which a constable has ...”

In professional codes of conduct, the term "integrity" is a useful shorthand to express the higher standards which society expects from professional persons and which the professions expect from their own members. See the judgment of Sir Brian Leveson P in Williams at [130]. The underlying rationale is that the professions have a privileged and trusted role in society. In return they are required to live up to their own professional standards.

...

Integrity connotes adherence to the ethical standards of one's own profession. That involves more than mere honesty. To take one example, a solicitor conducting negotiations or a barrister making submissions to a judge or arbitrator will take particular care not to mislead. Such a professional person is expected to be even more scrupulous about accuracy than a member of the general public in daily discourse.

...

Obviously, neither courts nor professional tribunals must set unrealistically high standards, as was observed during argument. The duty of integrity does not require professional people to be paragons of virtue. In every instance, professional integrity is linked to the manner in which that particular profession professes to serve the public…”

Guidance on approach to off-duty conduct and the use of warrant cards

“2.21 When police officers produce their warrant card or act in a way to suggest that they are acting in their capacity as a police officer (e.g. declaring that they are a police officer) they are demonstrating that they are exercising their authority and have therefore put themselves on duty and will act in a way which conforms to these standards. For example, during a dispute with a neighbour a police officer who decides to produce a warrant card would be considered to be on duty.” (Footnote: ⁹)

Outcomes Guidance 2017

Use of police power for personal gain:

Sexual impropriety, and breach of position of trust or authority:

Discrimination:

“Effect on the police service and/or public confidence

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. Where an officer commits an act which would harm public confidence if the circumstances were known to the public, take this into account. Always take seriously misconduct which undermines discipline and good order within the police service, even if it does not result in harm to individual victims.” (paragraph 4.57)

“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.” (paragraph 4.60)

“If applicable, consider the scale and depth of local or national concern about the behaviour in question. A case being reported in local or national media, however, does not necessarily mean that there is a significant level of local or national concern. Distinguish objective evidence of harm to the reputation of the police service from subjective media commentary.” (paragraph 4.61)

“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.” (paragraph 4.65)

“The guidance 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.” (paragraph 1.3)

“Outcomes should be sufficient to demonstrate 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.” (paragraph 2.1)

“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.13 Consider less severe outcomes before more severe outcomes.14 Always choose the least severe outcome which deals adequately with the issues identified, while protecting the public interest.15 If an outcome is necessary to satisfy the purpose of the proceedings, impose it even where this would lead to difficulties for the individual office.” (paragraph 2.11)

“Each case will depend on its particular facts. Have regard to all relevant circumstances when determining the appropriate and proportionate outcome to impose.” (paragraph 7.7)

Non-statutory guidance

“The public expect and deserve to have trust and confidence in their police. When police officers or staff therefore abuse their position for a sexual purpose, particularly in respect of vulnerable persons, such behaviour represents a fundamental betrayal of the public and the values for which the police service stands.

The NPCC are unequivocal in condemning absolutely such reprehensible behaviour which can never be justified or condoned. Such behaviour amounts to serious corruption and is treated as such. Those who abuse their position have no place in the service.”

“any behaviour by a police officer or police staff member, whether on or off duty, that takes advantage of their position as a member of the police service to misuse their position, authority or powers in order to pursue a sexual or improper emotional relationship with any member of the public’

This includes: committing a sexual act, initiating sexual contact with, or responding to any perceived sexually motivated behaviour from another person; entering into any communication that could be perceived as sexually motivated or lewd; or for any other sexual purpose.” Or lewd; or for any other sexual purpose.

“What is important to note is the imbalance of power between police officers or staff and members of the public. In abuse of position cases such as these, a member of the public does not have to be vulnerable for the definition of abuse of position for a sexual purpose to be made out. However the vulnerability of the victim may be seen as an aggravating factor.”

“• When police officers or staff abuse their position for a sexual purpose this is serious corruption – and it has absolutely no place in policing.

• This kind of behaviour is an appalling abuse of the public’s trust ... The police are there to help them, not exploit them.

• Ultimately, it is police forces who need to act to root out this kind of behaviour and this will require a zero tolerance approach backed up by decisive and consistent action from those in charge.

• It is in everyone’s interest to root out those who abuse their position ...”

“Distinguishing features

The key elements of APSP are:

• Taking advantage of power granted by virtue of a role within the police

• The pursuit of an improper relationship

The abuse of position increases the potential for actions to undermine public confidence in the police. It is a serious form of corruption. These factors separate APSP, which includes consensual sexual relationships, from other sexually motivated offences.

APSP is not limited to police officers. This definition includes staff, volunteers and contractors as well.

It is also important to recognise that APSP covers a wide spectrum of unacceptable behaviour. More subtle actions, such as flirtatious messages or unnecessary contact, can be the start of a pattern of behaviour. It is important to root out any abuse of position and take action.

We also frequently see other inappropriate behaviour linked to our APSP investigations, such as the misuse of police computer systems to obtain information about individuals who are then targeted by perpetrators.”

“At the moment, it is too easy for the wrong people both to join and to stay in the police. Too many recent events prove this. If public confidence in the police is to be improved, chief constables, among others, need to be less complacent. Standards need to be consistent, and higher.”

Personal mitigation

“Because orders made by the tribunal are not primarily punitive, it follows that considerations which would ordinarily weigh in mitigation of punishment have less effect on the exercise of this jurisdiction than on the ordinary run of sentences imposed in criminal cases. It often happens that a solicitor appearing before the tribunal can adduce a wealth of glowing tributes from his professional brethren. He can often show that for him and his family the consequences of striking off or suspension would be little short of tragic. Often he will say, convincingly, that he has learned his lesson and will not offend again. On applying for restoration after striking off, all these points may be made, and the former solicitor may also be able to point to real efforts made to re-establish himself and redeem his reputation. All these matters are relevant and should be considered. But none of them touches the essential issue, which is the need to maintain among members of the public a well-founded confidence that any solicitor whom they instruct will be a person of unquestionable integrity, probity and trustworthiness. Thus it can never be an objection to an order of suspension in an appropriate case that the solicitor may be unable to re-establish his practice when the period of suspension is past. If that proves, or appears likely, to be so the consequence, for the individual and his family may be deeply unfortunate and unintended. But it does not make suspension the wrong order if it is otherwise right. 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 a part of the price.”

As to personal mitigation, just as an unexpectedly errant solicitor can usually refer to an unblemished past and the esteem of his colleagues, so will a police officer often be able so to do. However, because of the importance of public confidence, the potential of such mitigation is necessarily limited.”

The approach to be taken by the Administrative Court

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.”

“…The reason why the court is slow to interfere with the

decision of an expert tribunal is that the court does not share the expertise. It is not ‘deference’ but a proper recognition of the need for caution before disagreeing with someone making a judgment on a matter for which he is especially well qualified, when the court is not.”

The Grounds of Review: submissions

“22.  I turn to the third issue, irrationality. That sometimes misunderstood word means no more here than the reaching of a conclusion which no reasonable Tribunal could have reached on the same material with the consequence that its decision was (in the words of Jackson LJ in Salisbury) “clearly inappropriate”. To my mind, this is the central question in the present case. Did the [Police Appeals Tribunal] exceed the limits that were reasonably open to it?”

First, by applying the relevant guidance to the factual findings made; and

Second, by reference to the seriousness and significance of those factual findings, which it is argued the Panel failed properly to grasp.

Ground 2: submissions

The officer’s culpability for the misconduct.

The harm caused by the misconduct.

The existence of any aggravating factors.

The existence of any mitigating factors.”

maintain public confidence in and the reputation of the police service;

uphold high standards in policing and deter misconduct; and

protect the public.

… the Panel was required to demonstrate that it had then undertaken the second step, and had reminded itself of the three-fold purpose of imposing a disciplinary sanction - maintenance of public confidence in, and the reputation of, the police service; the upholding of high standards in policing and the deterrence of misconduct; the protection of the public. Merely having referenced these aims at an earlier stage does not establish that the Panel took the further step of returning to the purpose of a disciplinary sanction before reaching its decision. On the contrary, the Panel's assessment at paragraphs 10-12 is focused almost entirely on the perspective of Officer A, rather than the broader, public-oriented concerns to which it was required to have regard. At most, there is a reference to the impact on public confidence in the future, if Officer A were unable to remedy his misconduct (see paragraphs 10 and 12 of the Outcome Decision), but this fails to address the question of public confidence given the misconduct that had already taken place. Ultimately, the reasoning provided demonstrates a consideration of sanction through the prism of Officer A's personal mitigation rather than the purposes to which the Outcome Decision was required to be directed.

For the reasons I have explained, I therefore consider that this challenge must be upheld. The Panel erred in its failure to adopt the approach laid down in the Guidance; in particular, in omitting to engage with the evidence on actual harm, and in failing to adopt the structured approach required and to return to the question of purpose after considering questions of personal mitigation. Certain of the Panel's conclusions are also properly to be described as irrational; specifically, its apparently inconsistent approach to the contextual mitigation and its finding of provocation.”

Ground 3: submissions

The Officer produced his warrant card to “induce the complainant to continue the engagement”: paragraph 1.24;

It rejected his account that the complainant had not told him she was “taken” so as to indicate she was not interested: paragraph 1.28;

The Officer tried several different tacks to continue his involvement with the complainant including asking her to “hang out as friends” (at paragraph 1.29), showing her photographs of him on his phone, (at 1.37), asking her for her phone number (at 1.39), and asking her for a hug before they parted company (at 1.42).

Ground 4: submissions

Discussion - Ground 1

The Officer used his police power for personal gain, which is “very serious misconduct” (paragraph 4.28 of the Outcomes Guidance).

The Officer’s conduct amounted to sexual impropriety which is “serious” as it “undermines public trust in the profession” (paragraph 4.39). The conduct amounted to “predatory behaviour motivated by a desire to establish a sexual or inappropriate emotional relationship with ... a member of the public”, (paragraph 4.40), which “can cause substantial damage to public trust and confidence in the police…” (paragraph 4.42) and for which “More serious action is likely” (paragraph 4.40).

The Officer racially profiled a woman according to her body shape, with race being a characteristic about which discrimination is “never acceptable and always serious.” (paragraph 4.51). The context was discrimination upon a lone female unknown to the Officer.

“This paragraph, which is the apex of the reasoning exercise, sheds no light on why such a lenient sanction serves the policy of the disciplinary regime namely to foster confidence in the competence and probity of the police. In my judgment this is a fatal flaw.”

Discussion - Ground 2

“When considering outcome 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 reputation of the police 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.”

“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.”

“Culpability will be increased if the officer was holding a position of trust or responsibility at the relevant time. All police officers are in a position of trust but an officer’s level of responsibility may be affected by specific circumstantial factors such as rank, their particular role and their relationship with any persons affected by the misconduct”.

“The reason I am filing this complaint:- It shouldnt be okay for a police officer to be flashing their badge at someone, ruining the police’s image as a whole, and just making “the victim” i.e. me feel like i couldnt really leave at the time. ... i did not feel like I could leave, and felt sexually harassed by the things he was showing me and saying. ... I do not wish this situation upon any other girl.”

Discussion- Ground 3

Discussion - Ground 4

Conclusion and Disposal