Independent Police Complaints Commission, R (on the application of) v Hayman

Disciplinary proceedings with potentially serious consequences remain subject to a single civil standard of proof: the balance of probabilities. Serious allegations and consequences require careful scrutiny of the evidence, but they do not raise the standard to beyond reasonable doubt or create a legally distinct sliding scale.

A reviewing authority misdirects itself if it applies the criminal standard when reviewing misconduct findings. Where that error may have affected the result, the decision should be quashed and the matter reconsidered by a properly directed decision-maker. The court may remit rather than restore the original disciplinary decision, particularly where the findings have wider public-interest and disclosure consequences.

Following an incident involving two members of the public, a police misconduct panel found three charges against Police Constable Bannister proved and required him to resign. On review, Assistant Commissioner Hayman quashed those findings, applying what he described as the criminal burden of proof because of the seriousness of the allegations and sanction.

The Independent Police Complaints Commission challenged that review decision by judicial review. The central issue was whether the reviewer had applied the correct standard of proof under the Police Conduct Regulations 2004.

1. Correct standard. Regulation 27(3) of the Police Conduct Regulations 2004 requires misconduct to be proved on the balance of probabilities. The statutory test is a single and unvarying civil standard.
2. Serious allegations and serious potential consequences require the tribunal to examine the evidence with particular care. They affect the assessment of inherent probability and the care required in deciding whether the civil standard is met. They do not justify applying beyond reasonable doubt or an especially cogent evidential standard.
3. The approach in In re H was clarified by In re B and In re Doherty. Lord Hoffmann’s reasoning in In re B, expressly approved by Lord Rodger and Lord Walker, formed part of that case’s ratio. The true principle is that the fact in issue must be more probable than not, with common sense requiring appropriately careful consideration of serious allegations.
4. Assistant Commissioner Hayman expressly applied the criminal standard and treated the required proof as a higher threshold. That was a material misdirection. His review decision therefore could not stand.
5. The court declined simply to reinstate the panel’s decision. The disciplinary findings could have consequences for public protection, future criminal proceedings and disclosure. The Assistant Commissioner’s decision was quashed and the matter remitted to the Commissioner of Police of the Metropolis for a fresh decision by another Assistant Commissioner applying the proper standard. The defendant was ordered to pay the claimant’s costs.