Dyfed Powys Police, R (On the Application Of) v Police Misconduct Tribunal

A misconduct tribunal must address the charges actually framed and make clear findings on each material element. Where charges allege unwanted conduct of a sexual nature, the tribunal must assess the conduct as a whole and consider its purpose or effect, including the complainant’s perception and the objective circumstances. The perpetrator’s intention is not determinative of whether conduct was sexual or unwanted. A tribunal must explain how its factual findings support its conclusions. In outcome decisions, it must follow the structured approach in the applicable guidance, or explain any departure.

The Chief Constable sought judicial review of decisions made by a Police Misconduct Tribunal concerning allegations against PC Simon England. The Tribunal found three incidents proved and amounting to gross misconduct, but concluded that aspects of the conduct were not sexual, found two further incidents not to amount to misconduct, and imposed a final written warning.

The challenge alleged irrationality, inadequate fact-finding and reasons, and failure to apply the structured approach governing disciplinary outcomes. The central issues were whether the Tribunal had properly assessed the alleged sexual conduct and its effect, whether it had resolved the disputed facts, and whether its findings and outcome decision could stand.

1. Incidents (1)–(3). The Tribunal had failed to determine whether the conduct amounted to unwanted conduct or unwanted conduct of a sexual nature and whether it had the purpose or effect specified in Equality Act 2010, s 26. Its conclusion that the touching of PC A was not sexual was irrational. The Tribunal had wrongly confined its inquiry to whether the touching itself was sexual, rather than assessing the events as a whole.
2. On the unchallenged evidence, PC England had repeatedly used highly sexualised language towards PC A. The conduct was unwanted and objectively had the effect of violating her dignity and creating a degrading, humiliating and offensive environment. His intention, and the expert evidence concerning his mental state, could not determine the objective effect of the conduct.
3. The Tribunal had also failed to make the necessary findings concerning Incidents (1) and (2), including whether the conduct was unwanted or sexual in nature and its effect on the relevant officers. The basis on which gross misconduct was found was material to the later outcome decision.
4. Incident (4). The Tribunal had not resolved the factual dispute whether PC England rubbed or merely touched PC A’s back. It had also failed to address whether the touching was unwanted and whether it had the statutory effect alleged. In the context of the other incidents, those deficiencies were legally material.
5. Incident (5). The Tribunal’s conclusion that the telephone call did not amount to misconduct was not irrational. The allegation was discrete, and the challenge merely sought a different factual assessment.
6. Outcome and remedy. The Tribunal’s disciplinary findings in Incidents (1)–(4) and its outcome decision were quashed. The matter was remitted to a differently constituted panel for rehearing. The separate outcome challenge did not require determination, although the judge observed that the Tribunal had also failed to explain its reasoning and to direct itself by reference to the applicable guidance. That guidance required assessment of seriousness, consideration of the purposes of disciplinary sanctions, and selection of the outcome that most appropriately fulfilled those purposes, having regard to culpability, harm, aggravating factors and mitigating factors.

This was a first-instance judicial review claim in the Administrative Court. The challenged decisions were made by the Police Misconduct Tribunal following its April 2019 misconduct hearing. The disciplinary findings concerning Incidents (1)–(4) and the outcome decision were quashed and remitted for rehearing by a differently constituted panel. The decision concerning Incident (5) was upheld.