Derbyshire Constabulary, R (on the application of) v The Police Appeals Tribunal & Ors

In an appeal under the Police Appeals Tribunal Rules 2008, “unreasonable” means a Wednesbury-type test shorn of technicality. The Tribunal must consider all the material before it and decide whether the Panel’s decision fell within the range of reasonable findings or outcomes available to it.

A notice referring an officer to misconduct proceedings must identify the Standards of Professional Behaviour alleged to have been breached, as well as the conduct and why it amounts to misconduct or gross misconduct. If the Panel considers an additional standard, procedural fairness normally requires notice and an opportunity to respond, usually by a short adjournment.

The Chief Constable challenged the Police Appeals Tribunal’s decision allowing the appeals of two former constables and ordering their reinstatement. A misconduct Panel had found that their conduct, arising from their handling of a suspected controlled substance and their recording of the incident, amounted to gross misconduct under the Police (Conduct) Regulations 2008.

The Tribunal held that the Regulation 21 notices failed to identify all relevant Standards of Professional Behaviour and that the Panel’s findings of dishonesty and lack of integrity were unreasonable. The High Court considered the proper reasonableness test and the contents of a misconduct notice.

1. The application was dismissed. The court did not decide the circumstances in which the Tribunal could exercise its power under section 85(2) of the Police Act 1996, because that issue did not arise once the first two questions had been resolved.
2. “Unreasonable” in rule 4(4)(a) of the Police Appeals Tribunal Rules 2008 is not, taken alone, the strict Wednesbury test. The correct approach is a Wednesbury-type test shorn of technicality. The Tribunal may examine all the material before it, whether or not the Panel expressly referred to or decided it, and determine whether the decision was within the range of reasonable findings or outcomes available to the Panel.
3. Regulation 21(1)(a)(ii) of the Police (Conduct) Regulations 2008 requires the notice to identify the Standard or Standards of Professional Behaviour alleged to have been breached. “Misconduct” and “gross misconduct” are defined by reference to breaches of those standards, which differ in nature and culpability and may overlap. The potential consequence of dismissal reinforces the need for clear notice.
4. If a Panel identifies a possible breach of an additional standard, fairness normally requires notice and an opportunity to respond, commonly through an adjournment. No adjournment is required where the officer admits the additional breach, because regulation 34(14)(b) provides the relevant mechanism.
5. The statutory Home Office guidance also supports that construction. In the absence of good reason, the charge should identify the relevant Standards of Professional Behaviour. The court therefore upheld the Tribunal’s conclusions on the first two questions.

First-instance judicial review proceedings. The challenged decision was the Police Appeals Tribunal’s determination dated 29 July 2011.