Chief Constable of Avon and Somerset Police, R (on the application of) v Police Misconduct Tribunal & Ors

The claimant, the Chief Constable of Avon and Somerset, sought to challenge a Police Misconduct Tribunal decision finding that PC Pauline Archer had used a racist term on duty and constituted gross misconduct, and imposing a final written warning. The court considered (i) the scope of the tribunal chair's power and duty under regulation 23(3) of the Police (Conduct) Regulations 2012 to call witnesses during the hearing, (ii) whether the tribunal's factual findings (including that the racist word was used unintentionally and that the officer accepted responsibility) were irrational, (iii) whether the tribunal gave adequate reasons for preferring the officer's evidence over the witness's, and (iv) whether the sanction and the tribunal's structuring of its decision were unlawful.

The court held that the chair retains a continuing obligation during the hearing to keep under review whether it is necessary in the interests of justice to call witnesses and that the relevant test is that in regulation 23(3). However, on the facts the chair's prior decision not to call witnesses was lawful and procedural fairness did not require calling the witness during the hearing. The tribunal's findings about intent, acceptance of responsibility and breach of the Standards of Professional Behaviour were within the band of rational conclusions open to it. The tribunal gave sufficient reasons and applied the appropriate structured approach to assessing misconduct and outcome. The claim was dismissed.

Background and parties

This judicial review arose from a Police Misconduct Tribunal decision of 12 December 2019 concerning PC Pauline Archer, who admitted using an abhorrent racist term while on duty on 23 July 2019. The Chief Constable of Avon and Somerset (the claimant) challenged the Tribunal's findings and the imposition of a final written warning rather than dismissal. The Independent Office for Police Conduct intervened on issues about the calling of witnesses.

Nature of the claim / relief sought

• The claimant brought a public law challenge to the Tribunal's decision of 12 December 2019, seeking to upset factual findings and the disciplinary outcome imposed (effectively to quash or vary the Tribunal's decision and sanction). The hearing determined the lawfulness of the Tribunal's procedure, findings and sanction.

Key facts

• On 23 July 2019 PC Archer admitted saying a racist term in an open-plan office while on duty. The remark was overheard by a colleague, Ms Jasani, who complained. PC Archer admitted the term, expressed remorse and supplied written mitigation and an explanation that the utterance was an unintentional, brief lapse.
• The regulation 21 notice alleged breaches of three Standards of Professional Behaviour and assessed the conduct as gross misconduct. The Tribunal found the conduct proved, admitted breaches and concluded it amounted to gross misconduct, but imposed a final written warning rather than dismissal.

Procedural posture and issues before the High Court

The Chief Constable pleaded four grounds of challenge: (1) the chair should have called a key witness during the hearing, (2) the Tribunal's factual findings (unintentional use, full acceptance of responsibility, and no discrimination under the Equality Act 2010) were irrational, (3) inadequate reasons were given for preferring the officer's evidence to the complainant's, and (4) the sanction was vitiated by those errors and the Tribunal failed to structure its decision correctly.

Court's reasoning on the issues

• The court agreed as a matter of law that the chair has a continuing obligation during the hearing to keep under review whether witnesses should be called and that regulation 23(3) (necessity in the interests of justice) governs that question. It rejected applying a different test (such as the exceptional-adjournment test in regulation 33(4)) in place of regulation 23(3).
• Applying the law to the facts, the court held that there was no material change in evidence during the hearing, that the factual issues were narrow (centred on whether the conduct was an aberration or indicative of character), and that both parties had considered that no live witnesses were necessary. The chair was entitled to rely on the parties' considered positions and the earlier lawful decision not to call witnesses; procedural fairness did not require the complainant or others be called at that stage.
• The tribunal's findings about intent, acceptance and lack of discrimination under the Equality Act were within the range of rational conclusions open on the evidence. Although the High Court considered that the conduct could have amounted to harassment under section 26 of the Equality Act 2010, the Tribunal was not required to make such a finding where no allegation of harassment had been made and the Equality and Diversity Standard was found breached.
• The Tribunal gave adequate reasons for preferring the officer's account about mindset and intent and applied the structured approach to assessing misconduct and outcome. The Tribunal considered culpability, harm, aggravating and mitigating factors and concluded a final written warning was appropriate; that decision was not irrational or procedurally unfair.

Result

The Chief Constable's claim was dismissed.

The claim is dismissed. The court held that (i) the chair has a continuing obligation under regulation 23(3) to keep under review whether witnesses should be called, but on the facts the chair did not act unlawfully in declining to call witnesses; (ii) the Tribunal's findings that the racist word was used unintentionally, that the officer accepted responsibility, and that the Equality and Diversity Standard was breached (without a formal finding of statutory harassment) were rational and open on the evidence; (iii) the Tribunal gave adequate reasons and applied the appropriate structured approach to misconduct finding and sanction; and (iv) the final written warning was within the range of reasonable outcomes.