R (Chief Constable of Dyfed Powys) v Police Misconduct Tribunal

The claim for judicial review challenged the lawfulness of findings and the sanction of a Police Misconduct Tribunal which had considered allegations of inappropriate sexualised conduct by PC England under the Police (Conduct) Regulations 2012. The court held that the Tribunal failed to address the precise wording of the disciplinary charges and did not decide whether the proven conduct was "unwanted conduct" or "unwanted conduct of a sexual nature" within the meaning used in the charges and s.26 Equality Act 2010, thereby producing legally flawed fact‑finding in respect of Incidents (1)–(4).

As a result the judge quashed the Tribunal’s findings and the outcome in relation to Incidents (1)–(4) and remitted those matters for rehearing by a differently constituted panel. The Tribunal’s conclusion on Incident (5) (unauthorised contact contrary to instruction) was upheld as lawful and sustainable.

Background and parties: The Chief Constable of Dyfed Powys Police sought judicial review of a Police Misconduct Tribunal decision made after a hearing in April 2019 which found that three of five alleged incidents of misconduct by PC Simon England were proved and amounted to gross misconduct, but recorded a final written warning rather than dismissal. The incidents principally concerned sexualised comments and touching of a female colleague (PC A). The Appropriate Authority (the Chief Constable) brought the claim; the Tribunal was the defendant and PC England was an interested party.

Nature of the application: The claimant sought to quash aspects of the Tribunal’s decision. The principal legal criticisms were that the Tribunal (i) reached a perverse and inadequately explained factual conclusion that certain acts were "not sexual", (ii) failed properly to identify and resolve disputed facts and to give reasons for findings of credibility, (iii) failed adequately to resolve whether particular incidents (notably the rubbing of PC A’s back and the unauthorised telephone contact) were proved, and (iv) erred in its approach to sanction by failing to follow the structured approach set out in the College of Policing Guidance and relevant authorities (including the three-stage approach in Fuglers).

Issues framed by the court:

• Whether the Tribunal’s finding that the touching and other conduct were "not sexual" and "not intended to be sexual" was perverse or irrational and inadequately reasoned, particularly given the unchallenged evidence of the complainant.
• Whether the Tribunal failed in its duty to resolve or identify disputed facts and to give adequate reasons for accepting the officer’s evidence.
• Whether particular findings (Incidents (4) and (5)) were legally sustainable.
• Whether the Tribunal followed the correct structured approach when determining outcome and provided adequate reasons.

Court’s reasoning and outcome: The court emphasised the limits of appellate interference in fact finding but reiterated that a tribunal must explain how it reached conclusions and must address the right questions. The judge concluded that the Tribunal had not directed itself to the precise terms of the charges (including whether the conduct amounted to "unwanted conduct" or "unwanted conduct of a sexual nature" and whether it had the purpose or effect described in s.26 Equality Act 2010), and that its isolated focus on whether a particular physical touch was sexual was a misdirection. On the unchallenged evidence analysed from the complainant, the judge concluded the only rational conclusion was that the conduct was sexualised and unwanted and had the relevant effect; the Tribunal’s contrary conclusion was legally flawed and, in public law terms, irrational.

Remedy and scope: The court quashed the Tribunal’s findings and the outcome in relation to Incidents (1)–(4) and remitted those incidents for rehearing by a differently constituted panel. The Tribunal’s decision on Incident (5) was upheld. Because the outcome findings fell with the quashed factual findings, the sanction was remitted for reconsideration at any rehearing.

The claim was allowed in part. The High Court quashed the Tribunal’s factual findings and sanction in relation to Incidents (1)–(4) as legally flawed for failure to address whether the conduct amounted to "unwanted conduct" or "unwanted conduct of a sexual nature" and for inadequate reasoning; those matters were remitted for rehearing by a differently constituted panel. The Tribunal’s decision on Incident (5) was upheld.