The Chief Constable of Thames Valley Police v A Police Misconduct Panel

Regulation 2 defines “misconduct” (for these purposes) as “a breach of the Standards of Professional Behaviour that is so serious as to justify disciplinary action”, and “gross misconduct” as “a breach of the Standards of Professional Behaviour that is so serious as to justify dismissal”. It is unnecessary to refer to other regulations dealing with notices, procedure and the like.

The current version of the Guidance came into force on 17^th August 2022. The parties are agreed that the relevant version is that published in 2017.

Section 1 of the Guidance provides in material part:

“1.2

The guidance is intended to assist persons appointed to conduct misconduct proceedings (misconduct hearings, misconduct meetings, and special case hearings) under Parts 4 and 5 of the Police (Conduct) Regulations 2012 (the Conduct Regulations). The guidance may also be used to inform assessments of conduct under Regulation 12 of the Conduct Regulations or paragraph 19B of Schedule 3 to the Police Reform Act 2002. The guidance is designed to ensure consistency and transparency in assessing conduct and imposing outcomes at the conclusion of police misconduct proceedings.

1.3

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.

1.4

Instead, this guidance outlines 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.”

As for the assessment of seriousness, the Guidance includes the following:

“4.1

Assessing the seriousness of the conduct lies at the heart of the decision on outcome under Parts 4 and 5 of the Conduct Regulations. Whether conduct would, if proved, amount to misconduct or gross misconduct for the purposes of Regulation 12 of the Conduct Regulations is also a question of degree, i.e., seriousness.

4.2

As Mr Justice Popplewell explained [in Fuglers LLP v Solicitors Regulation Authority [2014] EWHC 179 (Admin), referring to a similar guidance note regarding solicitors), there are three stages to determining the appropriate sanction:

■ assess the seriousness of the misconduct

■ keep in mind the purpose of imposing sanctions

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

4.3

Assessing the seriousness of the misconduct is the first of these three stages.

4.4

Assess the seriousness of the proven conduct by reference to:

■ 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.

4.5

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 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.”

Para 4.10, under the rubric “culpability” provides:

“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.”

Paras 4.14 and 4.15 provide:

“It is not possible to categorise all types of case where dismissal will be appropriate because the circumstances of the individual case must be considered.

The following types of misconduct, however, should be considered especially serious”

The types of misconduct falling in the “especially serious” category include (non-exhaustively) criminal convictions, operational dishonesty, impropriety or corruption, data protection and misuse, and sexual impropriety.

The Guidance addresses harm under paras 4.57ff. In particular:

“4.57

Harm will likely undermine public confidence in policing…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.

4.58

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

4.59

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.

4.60

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.

4.61

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.

4.62

Whether a matter is of local or national concern will be a matter for the person(s) conducting the proceedings based on their experience and the circumstances of the case. …..

…

4.65

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.”

As for aggravating and mitigating factors, the former includes “malign intent” and “serious physical or psychological impact on the victim”. The latter includes “misconduct confined to a single episode of brief duration”. Para 4.72 is material:

“In cases where the misconduct occurred several years prior to the meeting or hearing, consider the outcome by reference to the standards of the time rather than current attitudes and standards. Give due account to the officer’s conduct in the intervening years, for example, whether they performed their duties to a high standard.”

Section 6 of the Guidance addresses personal mitigation and provides:

“the weight of personal mitigation will necessarily be limited particularly where serious misconduct has been proven.

…

[the primary consideration] is the seriousness of the misconduct found proven. If the misconduct is so serious that nothing less than dismissal would be sufficient to maintain public confidence, personal mitigation will not justify a lesser sanction.”

Section 7 of the Guidance provides the following conclusions:

“7.2

There are three stages to determining outcome:

■ assess the seriousness of the misconduct

■ keep in mind the threefold purpose for imposing outcomes in police misconduct proceedings

■ choose the outcome which most appropriately fulfils that purpose, given the seriousness of the conduct in question.

7.3

Assessing the seriousness of the conduct is the first of these three stages. In assessing the seriousness of the conduct, have regard to the four categories outlined: culpability, harm, aggravating and mitigating factors.

7.4

Consider less severe outcomes before more severe outcomes. The more serious the conduct found proven against an officer, the more likely it is that dismissal will be justified.”

The parties have cited extensively from authority in the sphere of what may be described as police discipline. This sphere bears certain similarities with medical and legal discipline, in particular in the consistent and constant recognition of the importance of maintaining public confidence in the profession and the reputation of the service. Indeed, it would be fair to say that this public interest may be described as a paramount consideration. By that I mean, “the most important” rather than (at least in all conceivable situations) “so important that unless there are powerful and cogent considerations militating against that course, dismissal should follow”.

Previous authority is valuable in illuminating the generally applicable principles. Given that each case is so fact-specific, I do not consider it a helpful exercise to attempt to calibrate the present case against earlier decisions of this Court and the Court of Appeal, particularly in circumstances where a review jurisdiction is being exercised.

I derive the following principles from the relevant jurisprudence, confining my review of authority to the principles that are pertinent to the outcome in the instant case.

First, in Fuglers LLP v SRA [2014] EWHC 179, at paras 28-30, Popplewell J, as he then was, set out the three-stage “structured approach” that should govern the decision-making of disciplinary panels.

“28.

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.

29.

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 (e.g. previous disciplinary matters) and (4) mitigating factors (e.g. admissions at an early stage or making good any loss). These considerations are reflected in The Solicitors Disciplinary Tribunal Guidance Note on Sanctions issued in August 2012 at paragraphs 13 to 17.

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. ”

Secondly, given the “most important purpose” that has been identified, and given also that in a disciplinary context an unblemished past record and positive evidence of good character will be the norm, the weight to be given to personal mitigation in a serious case is likely to be limited. Disciplinary sanctions are not primarily punitive. In a wider disciplinary context, the case that is ordinarily cited as support for the foregoing proposition is Bolton v The Law Society [1994] 1 WLR 512 and the famous passage of Sir Thomas Bingham MR, as he then was, at 519B-E. In Salter v The Chief Constable of Dorset [2012] EWCA Civ 1047, the Court of Appeal, Maurice Kay LJ giving the lead judgment, held that the Bolton principles could be “read across” to the police context and that the weight to be given to personal mitigation was necessarily limited in a serious case (at paras 21 and 23).

There are helpful dicta to similar effect in Williams v Police Appeals Tribunal [2016] EWHC 2708 (Admin), per Holroyde J, as he then was, at paras 66 and 67:

“66.

…the importance of maintaining public confidence in and respect for the police service is constant, regardless of the nature of the gross misconduct under consideration. What may vary will be the extent to which the particular gross misconduct threatens the preservation of such confidence and respect. The more it does so, the less weight can be given to personal mitigation. Gross misconduct involving dishonesty or lack of integrity will by its very nature be a serious threat: save perhaps in wholly exceptional circumstances…Gross misconduct involving a lack of integrity will often also be a serious threat. But other forms of gross misconduct may also pose a serious threat, and breach of any Standards may be capable of causing great harm to the public’s confidence in and respect for the police.

67.

This does not mean, of course, that personal mitigation is to be ignored…On the contrary, it must be taken into account…But where the gross misconduct threatens the misconduct of public confidence and respect in the police – as gross misconduct often will – the weight which can be given to personal mitigation will be less that would be the case if there were no such threat, and if the disciplinary body were a court imposing a punishment. Whether the circumstances are such that the sanction of dismissal is necessary will be a fact-specific decision: where the facts show dishonesty, case law establishes that dismissal will almost always be necessary, and dismissal will often be necessary where the misconduct involves a lack of integrity; where the facts show that one of the other Standards has been breached, the appropriate outcome will depend on an assessment of all the circumstances, with proper emphasis being given to the strong public interest in maintenance of respect and confidence in the police and consequentially less weight being given to personal mitigation.”

Thirdly, some types of gross misconduct case are so serious that dismissal may be regarded as the expectation: in order to avoid it, some particularly compelling consideration has to be advanced. This principle clearly applies in a police context to cases of operational dishonesty (see the facts of Salter), and I would hold that it should also apply to the “especially serious” categories of case that I have previously referenced. I intend to leave for further consideration the correct approach to para 4.65 of the Guidance.

Fourthly, these are judicial review proceedings and not an appeal. The medical cases (brought under section 40 of the Medical Act 1983) are not relevant. In this context, I would define the Wednesbury test in these terms: the claimant must show that the panel’s conclusions were clearly wrong (I note that Holroyde J took the same view in Williams). This has three consequences. First, when it comes to findings of primary fact based wholly or in substantial part on a panel’s assessment of oral evidence, the scope for judicial review is very limited. To demonstrate that a decision was clearly wrong in circumstances where the reviewing court has not seen and heard the witnesses is a tall order. Secondly, in the wider context of evaluation and assessment of the appropriate sanction, this court must respect the expertise and judgment of the decision-maker. Thirdly, if the court is satisfied that the panel correctly identified the considerations material to its decision, and did not take immaterial considerations into account, it is well-established that matters of weight are not for this court.

Authority for this second aspect is to be found in paras 22-24 of the decision of Heather Williams J in R (oao Commissioner of Police of the Metropolis) v PAT and Robyn Williams [2022] EWHC 1951 (Admin).

Fourthly, it is axiomatic that the panel must give sufficient reasons for its decision. Here, the principles are so well-established that extensive citation from authority is not required. I agree with Ms Stevens’ formulation that the reasons provided must be such as to ensure that (a) the parties are aware in broad terms why they have won or lost (as the case may be), (b) that the parties and any appellate court can discern whether there has been legal error, and (c) that the mind of the decision-maker has been focused on the material issues. I would go slightly further: reasons must also be sufficient to enable the reviewing court to discern and understand the decision-maker’s essential reasoning processes. If the Court should conclude that the decision-maker’s reasons contain an error, it must then go on to decide whether that error was material to the outcome. If so, there will be cases where the Court can properly conclude what the outcome should be with that error notionally corrected, but there will be cases where the Court is in doubt. In this latter circumstance, the case should be remitted to the panel for reconsideration.

I return to para 4.65 of the Guidance, which falls under the heading of “harm”. It contains a general statement of the position where “serious harm” has been found, either to an individual victim or in connection with the wider public interest. Para 4.65 is not concerned with the officer’s level of culpability, although I can see that there may be an indirect correlation between blameworthiness and harm. I cannot accept the submission of Mr Alan Payne KC for ThamesValleyPolice that para 4.65 applies the principle in Salter that dismissal is to be expected in serious cases. Salter applies to cases where the officer’s culpability is especially serious. In my view, para 4.65 is less prescriptive. Dismissal may be the likely outcome in cases of serious harm, but that is no more than a general indication of the position. It is a prediction. Whether dismissal is appropriate in any individual case will always require a close examination of the officer’s culpability, an aspect which para 4.65 does not claim to address.

I am grateful to both counsel for their compelling written and oral arguments. A summary of these is unnecessary for present purposes.

This is undoubtedly a difficult case. It is not so because the law is particularly complex or unclear; it is not. The challenge lies in the extent to which this reviewing court should be dissecting the panel’s reasons for their conclusion that a final written warning was the appropriate sanction.

In his oral argument Mr Payne chose to begin with his second Ground – that is to say, on the premise that the panel’s findings of fact were correct. Ground 1 seeks to upset those findings. He had clear forensic reasons for sequencing his submissions in that fashion, but I have not deviated from my provisional view expressed during the hearing that Ground 1 must be considered before Ground 2. Logically, it comes first. Should ThamesValleyPolice win on Ground 1, it would be inevitable that the decision on sanction could not stand. Indeed, I would go further: the only reasonable sanction in all the circumstances of this case would have to be dismissal.

Mr Payne’s starting point on Ground 1 was that PC Javeed’s actions were “objectively” sexual or that, at the very least, consideration should have been given by the panel as to whether they were.

I return to where I left matters hanging at §19 above. The deliberate act of squeezing a woman’s breast would, to use the terminology preferred by Mr Payne, be “objectively” sexual. There is, however, perhaps a better formulation. I agree with Ms Susannah Stevens, who has presented PC Javeed’s case before me with conspicuous poise and ability, that section 78 of the Sexual Offences Act 2003 applies by analogy. Some actions are inherently or by their very nature sexual: see section 78(a); others may be sexual, depending on all the circumstances, including the inferences to be drawn from any explanation, or the lack of it, given by the individual in question: see section 78(b). I cannot accept Mr Payne’s high submission that even on his client’s alternative case what PC Javeed did fell into the first category, although I am with him to the extent that this might have been a case that fell into the second category.

I also cannot accept Mr Payne’s argument that whether an action is sexual depends on how a woman in Miss A’s position is likely to have construed it. Plainly, that is one of the circumstances that must be considered but it is far from determinative.

The panel had absolutely no difficulty with the proposition that the primary case contained within it the implicit allegation that PC Javeed’s actions were sexually motivated. That is made clear, amongst other things, by the use of the term “grope”; the panel found as a fact that, notwithstanding Miss A’s perception, her breast was not groped. When it came to the panel’s consideration of the alternative case, it no doubt took into account the way in which ThamesValleyPolice’s case had been advanced. Given, in particular, the way in which PC Javeed was cross-examined, there were obvious difficulties in concluding that his actions were sexually motivated even if the panel had thought there was no reasonable explanation for them.

In any case, I have reached the conclusion that both parties’ submissions on Ground 1 ignore what the panel actually decided. Contrary to Mr Payne’s submission that the panel failed to address the issue, and to Ms Stevens’ that the issue did not require to be addressed at all, I think that it is clear from the panel’s reasons that consideration was given to the reasonableness or otherwise of PC Javeed’s explanation for what he did and, consequently, whether the inference of a sexual motivation should be drawn:

“10.

The Panel has considered carefully the evidence of PC Javeed, both from his interview and the oral evidence given by him at the hearing. The Panel has accepted that there were no sexual motivations on the part of the Officer or malign intentions; he was intending to be friendly and was in a particularly good mood owing to his performance having been praised that same morning. However, he went too far in tactile behaviour within a professional setting with someone that he did not have a close friendship with. …” [emphasis supplied]

The reference to “no sexual motivations” was in the context of the alternative case: the panel had already found as a fact that his hand came far too close to Miss A’s left breast but had not touched it. So, the issue of sexual motivation was addressed in the context of PC Javeed’s explanation for his actions. It is for this reason that I said at §19 above that the panel took its own course.

If I were entitled to reach my own conclusion, I would be expressing more than a modicum of disquiet. PC Javeed’s squeezing of the shoulders, which he has denied, looks to me like a massage. His reasons for placing his hand under Miss A’s armpit were, apparently, that he was in a “very, very good mood” and was behaving in a “jokey” fashion. I am not particularly persuaded. Other considerations bearing on this issue are the stance PC Javeed took when interviewed under caution and his belief, clearly articulated in his oral evidence to the panel, that it was Miss A who had previously invaded his personal space.

It is also a fair criticism that the panel did not expressly address possible inconsistencies between PC Javeed’s interview and his oral evidence. However, there is no reason to suppose that the panel did not consider these matters during the course of its deliberations: they were entirely obvious.

Overall, my assessment is that the panel adopted a somewhat generous interpretation of PC Javeed’s actions in the light of all the evidence.

Ultimately, however, my level of disquiet can go no further than that. The panel saw and heard the evidence, and I am in no position to assess the impressions Miss A and PC Javeed respectively may have made. The sub-text of the panel’s evaluation of Miss A was that she was a credible witness but not sufficiently reliable. What she may have perceived to have been a “grope” (i.e. a sexual assault) was not: the contact was “very close to the side of her left breast”, but it was not close enough. This was a fleeting contact and the CCTV does not show exactly what PC Javeed did.

I reiterate that the panel’s failure to undertake any close analysis of PC Javeed’s evidence lends some support to Mr Payne’s overarching submission, and I have to say that in this case a more detailed review of his evidence should really have taken place. Nonetheless, what happened that morning was a jury question par excellence for the panel. It would require a wholly exceptional case for an experienced panel’s conclusion of primary fact to be overturned on a judicial review. Mr Payne has fallen short of persuading me that this is such a case.

I now turn to address Mr Payne’s various submissions grouped under Ground 2.

Some of his points have already been covered. I have concluded that the panel was entitled to decide that PC Javeed’s actions were not sexual. I have also concluded that para 4.65 of the Guidance does not go so far as to raise a presumption in favour of dismissal; but even if I am wrong about that the point leads nowhere. Furthermore, I do not consider that the panel failed properly to address the risk of recurrence. That is implicit in the final substantive paragraph of its decision, dealing with the sufficiency of a final written warning.

In my view, it is helpful in a case such as this to ask two questions. The first is whether the panel could properly have concluded that dismissal was not required in these particular circumstances. The second is whether an examination of the panel’s reasons for coming to the conclusion it did are sustainable.

The first question must, of course, be framed in Wednesbury terms. Mr Payne’s headline submission was that the finding of serious harm, the paramount public interest in protecting public confidence in the police, PC Javeed’s failure to demonstrate appropriate insight, even before the panel, and the relatively low weight that should be given to his personal mitigation all point to this being a decision on sanction that was clearly wrong.

I certainly see the force of these arguments, and my mind has wavered. However, I cannot conclude that the panel reached a conclusion that was simply not open to it. The key features of this case possibly militating against dismissal were the absence of sexual motivation, the fleeting nature of the contact, and the finding that “his intentions were friendly and light-hearted”. In short, and in rejection of one of Mr Payne’s overarching submissions, a proper calibration of the public interest in all the circumstances of this case did not necessitate dismissal. To the contrary, provided that it is clear from the panel’s reasons that they understood the paramount importance of this public interest (as I have defined it at §50 above), the weight to be accorded to it was for the panel to determine. In my judgment, this is clear enough. I refer to the following two passages in its ruling on outcome:

“We have been mindful of the threefold purpose of the police misconduct regime as set out in the College of Policing Guidance. Police officers are rightly held to the highest of standards and the protection of the public confidence in and the reputation of the police service are paramount.”

and

“This officer has come extremely close to dismissal without notice owing to the seriousness with which such behaviour is now regarded.”

My second question requires an examination of the panel’s reasons for imposing the sanction it did. I have the following concerns about these.

First, the panel found that it was “disturbing” that PC Javeed “appears to show little recognition of how disrespectful and potentially intimidating this would have been for a young female member of staff etc.” In my judgment, although I might have put the matter slightly differently, this was an entirely fair assessment. Yet in the very next paragraph of its decision on gross misconduct, the panel said that it was “gratifying” that PC Javeed had belatedly apologised. The decision on outcome is closer to the “gratifying” than the “disturbing”:

“This officer has come extremely close to dismissal without notice owing to the seriousness with which such behaviour is now regarded, and his apparent lack of self-awareness at the time that his conduct was inappropriate and disrespectful. We acknowledge that he has now finally apologised for the upset caused and, having reflected upon it, shows some awareness of how it may have been perceived by Miss A and also the wider public.”

Furthermore, and this aspect is also relevant to the issue of outcome, I repeat that the panel have not addressed PC Javeed’s evidence that Miss A had previously invaded his personal space. In my judgment, there is an unresolved tension between these parts of the panel’s decision, as well as a failure to address an issue which called for some analysis.

Secondly, there is a tension between the following passages in the panel’s decision:

“12.

The Panel has considered the College of Policing Guidance (chapter 4) when assessing the seriousness of the conduct. In the current climate of public and national concern about any police officer who appears to behave disrespectfully or abusively towards women, this matter takes on a heightened and aggravated seriousness. The culpability of the officer and risk of wider harm to the reputation of the police and public confidence is, in our view, considerably high.

…

… We have accepted that his intentions were friendly and light-hearted but his actions went too far and fell below the standard of appropriate behaviour that is expected of him. We also accept that the standards by which he should be judged and public expectations have rightly shifted in the intervening period between the date of the incident and today’s hearing (as per paragraph 4.72 of the Guidance).”

The first citation, from para 12 of the panel’s decision on gross misconduct, references the aftermath of the Sarah Everard case and her tragic abduction and murder in March 2021. In terms of its impact on public perception, the panel’s reasons are intelligible. Although “considerably high” could certainly have been better phrased, what the panel was saying was that the harm to the public interest was serious.

It was wrong at this stage of the panel’s decision-making process to conclude that PC Javeed’s culpability was also “considerably high”. That assessment was made before taking into account any mitigatory factors bearing on the circumstances of the offence. Even so, my reading of the panel’s decision on sanction was that these circumstances were considered at that juncture. This error therefore leads nowhere.

The real tension I am referring to is between para 12 of the decision on gross misconduct and the paragraph concluding with the reference to para 4.72 of the Guidance. This was not a case where standards had arguably changed between the date of the events complained of and the date of the panel’s decision. Only two years had elapsed, and although Ms Everard’s murder had intervened that had no impact whatsoever on PC Javeed’s culpability. Placing a hand under a woman’s armpit was as serious in 2020 as it was in 2022, and PC Javeed would have known that. All that changed is that public concern in inappropriate conduct in police officers has increased. I reject Ms Stevens’ submission that in the context I am currently examining Ms Everard’s murder was some sort of watershed moment.

Mr Payne criticised other aspects of the panel’s reasoning. He submitted that too much weight was given to personal mitigation. It is true that the panel spent time rehearsing the personal mitigation, but the authorities make it clear that it must be considered. The panel said in terms that “personal mitigation may have a less significant part to play in deciding outcome”. Again, that might have been better phrased, but this was not a case of “especially serious” misconduct, as it would have been had the primary case prevailed. Personal mitigation could, therefore, have some part to play in deciding the outcome. There is insufficient indication that the panel accorded to it disproportionate weight in the overall circumstances of this case.

Mr Payne submitted that the final substantive paragraph of the decision on outcome amounted to no more than assertion:

“We take the view that a final warning of an extended duration to reflect the seriousness of the matter would be sufficient to ensure that the officer learns from this process for the future and is given a further chance to prove himself as a police officer and, as a sanction, would also protect the public confidence in and reputation of the police force which is more important than the impact of this outcome upon any individual member. In coming to this conclusion, we have considered how an individual member of the public may view this case in particular and as a whole, having heard and seen all of the evidence and made the same findings as we have done.”

Given PC Javeed’s limited acceptance of his degree of culpability, I have to say, and not for the first time, that this conclusion is somewhat generous to him. Many would say that he scarcely deserved another chance. However, I reject the submission that the panel’s reasons are unclear or inadequate. Mr Payne’s real complaint is that the panel’s conclusion was perverse, but that raises the separate issue which I have already addressed.

Finally on this topic, Ms Stevens drew my attention to the crisp observations of Mostyn J in para 56 of his judgment in Commissioner of Police of the Metropolis v A Police Conduct Panel & Russell and Strickland [2022] EWHC 2857 (Admin):

“It is axiomatic that reasons for a decision will always be capable of having been better expressed. It is well-known that a reviewing court should not subject a decision to narrow textual analysis. Nor should it be picked over or construed as though it were a piece of legislation or a contract (see Volpi v Volpi [2022] EWCA Civ 464 at [2(vi)] per Lewison LJ and Re F [2016] EWCA Civ 546 at [23] per Sir James Munby P).”

I have applied this approach.

Plainly, it should only be in rare circumstances where the reviewing court concludes that the decision at issue was one that was open to the panel on the merits but the latter’s reasons are insufficient. This is one of those cases. There are, in my judgment, material errors in aspects of the panel’s key reasoning. The reference to the change in standards is plainly wrong. But in my judgment what the decision would or should have been in the absence of these errors cannot be stated with sufficient confidence. Either outcome is possible.

I have reached that conclusion because it seems to me that a panel properly directing itself in all material respects could reach the same conclusion as did this panel, or it could decide to dismiss PC Javeed. This case, as the panel correctly said, is finely balanced. I have taken that factor into account in reaching my decision that, even if the notional errors (in PC Javeed’s favour) are removed, the outcome remains uncertain.

In these circumstances, the only just course would be to allow this application for judicial review and remit the case to a panel with a different legally qualified chair for further consideration of the issue of outcome/sanction. I direct that the parties file brief submissions in writing as to whether the panel should be wholly reconstituted or one or both of the “wing” members should be present.

I should be crystal-clear as to the basis on which this further consideration should take place. The panel’s findings of fact must stand (Ground 1 has failed), as must the conclusion that PC Javeed was guilty of gross misconduct. However, before the panel it will be open to the parties to advance further submissions, and if necessary call further evidence, on these issues:

This application for judicial review succeeds. PC Javeed’s case should be remitted to a Police Misconduct Panel for reconsideration in the light of my judgment.