Cleveland Constabulary, R (on the application of) v Police Appeals Tribunal

A Police Appeals Tribunal may substitute its own decision for that of a misconduct panel only after an appeal passes the gateway in Police Appeals Tribunal Rules 2012, rule 4(4). The gateway is satisfied where the panel’s decision was unreasonable or where procedural unfairness could materially have affected the outcome. Wednesbury unreasonableness is not required.

Police officers may have private conduct while on duty. Privacy is assessed by reference to the substance of the conduct and any reasonable expectation of privacy, not merely by an on-duty or off-duty classification. A tribunal must balance privacy rights against professional standards and the public interest. On judicial review, the court must respect the specialist tribunal’s evaluative judgment unless it contains an error of law or falls outside the range of lawful decisions.

The Chief Constable sought judicial review of a decision of the Police Appeals Tribunal dated 28 April 2016. The Tribunal had allowed Lee Rukin’s appeal against a misconduct panel’s finding of gross misconduct and dismissal without notice, substituting a finding of misconduct and a final written warning.

The dispute concerned whether Mr Rukin, a senior police officer, was entitled to give colleagues a false account of serious injuries sustained in circumstances involving his private relationship, whether the panel had misdirected itself on private conduct while on duty and mitigation, and whether the Tribunal had lawfully substituted its own conclusions.

1. The claim was dismissed. The Police Appeals Tribunal’s decision remained in force.
2. Under rule 4(4) of the Police Appeals Tribunal Rules 2012, the Tribunal need not establish Wednesbury unreasonableness before finding a panel’s decision unreasonable. An appeal may pass the gateway where procedural unfairness could materially have affected the finding or disciplinary action. Once that gateway is passed, the Tribunal may consider the matter afresh and substitute any decision which the panel itself could have made. This followed the principles identified in R (CC Durham) v PAT (Cooper).
3. The misconduct panel had erred in stating that there was no such thing as private conduct while on duty. Article 8 privacy issues depend on the nature of the conduct and whether there was a reasonable expectation of privacy, rather than solely on whether the officer was on duty. The panel’s repeated reliance on an on-duty/off-duty dichotomy could therefore have materially affected its reasoning.
4. The panel had also misdirected itself by treating mitigation as requiring exceptional circumstances. The stringent approach in R ota Chief Constable of Dorset v PAT and another concerned operational dishonesty and did not make mitigation irrelevant in every case. This provided an additional lawful route through the rule 4(4) gateway.
5. Having been lawfully seized of the appeal, the Tribunal was entitled to conclude that the conduct was misconduct rather than gross misconduct and to impose a final written warning. Its conclusions on privacy, liability and sanction were not irrational or otherwise unlawful. They fell within the range of decisions legitimately open to a specialist tribunal. The reasons could have been fuller, but they were sufficiently intelligible and sustainable.
6. On judicial review, the court was conducting a review of a review. It was not entitled to substitute its own view merely because it might have reached a different conclusion.

The disciplinary panel found gross misconduct and imposed dismissal without notice. On 28 April 2016, the Police Appeals Tribunal allowed the officer’s appeal, substituted a finding of misconduct and imposed a final written warning. The High Court dismissed the Chief Constable’s judicial review claim, so the Tribunal’s decision stood.