Secretary of State for the Home Department v Ravideep Singh Bhoti

In police disciplinary proceedings governed by regulations with a criminal-law character, an aggravating fact relied upon to justify a more severe punishment must be admitted or proved to the criminal standard. A decision-maker cannot treat the mere possibility that alcohol contributed to an accident as an aggravating factor where that fact has not been established.

The Secretary of State may disagree with a disciplinary tribunal’s recommendation, but must give adequate reasons and properly address material factual findings. A decision is unlawful where it relies on an unproved aggravating circumstance. Decision-makers should also seek reasonable consistency between comparable disciplinary cases.

A police constable admitted driving with excess alcohol and was convicted, fined and disqualified. A disciplinary board required him to resign. On appeal, a tribunal recommended substitution of a reprimand, but the Secretary of State dismissed the appeal.

Collins J quashed that decision, holding that the Secretary of State had relied improperly on the possibility that alcohol contributed to the accident and had failed to give adequate weight to the tribunal’s findings. The Secretary of State appealed, raising the proper evidential standard for aggravating facts and the extent of the obligation to give reasons when rejecting a tribunal’s recommendation.

1. Appeal dismissed. The Secretary of State’s decision was unlawful because it treated the possibility that alcohol had contributed to the accident as a material aggravating factor, although that fact had not been established.
2. Under regulation 23 of the Police (Discipline) Regulations 1985, the criminal standard of proof applied throughout the disciplinary process. Where the presenting officer or Secretary of State sought to impose a penalty on a factual basis more adverse than the officer’s admitted or proved case, the relevant aggravating facts had to be admitted or proved beyond reasonable doubt. The court applied the reasoning in R v Newton (1983) 77 Cr App Rep 13 and R v Kerrigan (1993) 14 Cr App R(S) 179.
3. It was not proved that alcohol caused or contributed to the accident. The fact that it may have done so could not, in the circumstances, lawfully be used to justify the more severe punishment. The possibility of an aggravating fact was insufficient.
4. The Secretary of State was entitled in principle to reach a different conclusion from the tribunal, consistently with R v Secretary of State for the Home Department, ex parte Barr 7 Admin LR 157 (CA). However, under section 37 and Schedule 5 to the Police Act 1964, he was required to give reasons. Where he rejected the tribunal’s recommendation, he had to address material factual findings and explain why he differed on the appropriate punishment.
5. Schiemann LJ further observed that reasonable consistency between comparable cases was a matter of good administration and general fairness. That observation was not necessary to the disposition. The decision was quashed and the matter returned to the Secretary of State for reconsideration. Costs followed the event.

• Court of Appeal (Civil Division): appeal from the decision of Collins J dismissed; the Secretary of State’s decision was unlawful and the matter was to be reconsidered.
• High Court: Collins J quashed the Secretary of State’s decision and remitted the matter for reconsideration.