David Humpherson, R (on the application of) v The Police Appeals Tribunal

A Police Appeals Tribunal reviewing a misconduct decision must decide whether the finding or sanction was unreasonable within the applicable appellate test. That test is less demanding than the classic Wednesbury standard, but the Tribunal must apply the structured seriousness assessment in the College of Policing Guidance. Judicial review remains supervisory: the High Court may intervene only for a public law error, allowing appropriate deference to the Tribunal’s expertise. In assessing culpability, “targeted” conduct need not be predatory or unwanted where the Guidance uses the term alongside intentional, deliberate and planned conduct. A uniformed officer’s use of a police vehicle and equipment can rationally be treated as bringing the force into a personal encounter. Sending an intimate image to a virtual stranger may constitute a reckless and significant escalation even where the evidence does not establish that the image was unwanted.

The claimant, a police officer, challenged the Police Appeals Tribunal’s dismissal of his appeal against the Chief Constable’s decision to dismiss him for gross misconduct. The misconduct arose from a consensual meeting arranged through a dating application while the claimant was travelling to work in uniform, followed by the sending of an explicit image during an on-duty WhatsApp exchange.

The claimant’s permitted judicial-review ground alleged irrationality and related public-law errors in the Tribunal’s treatment of three matters: whether his conduct was “targeted”, whether he had used the overt leverage of his police role, and whether the image was unwanted. The central issue was whether the Tribunal had lawfully upheld the Chief Constable’s finding and sanction.

1. Claim dismissed. The Police Appeals Tribunal had not acted irrationally or otherwise erred in public law.
2. The appeal test under the Police Appeals Tribunals Rules 2012 asks whether the finding or disciplinary action was unreasonable. It is less demanding than the classic Wednesbury test and does not permit the Tribunal simply to substitute its own view. The Tribunal must nevertheless apply the structured approach in the College of Policing Guidance, including assessment of culpability, harm, aggravating factors and mitigating factors.
3. On judicial review, the High Court reviews the Tribunal’s decision for a public-law error and gives appropriate deference to its expertise. Deference is reduced on questions of law or where the reasoning reveals a fundamental misunderstanding of the facts or applicable principles. The court must consider the Chief Constable’s decision because it is reviewing the Tribunal’s review of that decision, but the decision directly under review remains that of the Tribunal.
4. The Tribunal was entitled to treat the conduct as falling within the Guidance’s description of “intentional, deliberate, targeted or planned” conduct. In that context, “targeted” did not require predatory or unwanted conduct. The listed characteristics were disjunctive, and the claimant’s conduct was intentional, deliberate and planned.
5. The Tribunal was also entitled to find that the claimant had brought the police force directly and overtly into the meeting by attending in uniform on a liveried police motorcycle and using his blue notebook. That conclusion did not depend on proof that he deliberately used his police status as sexual leverage. The notebook could rationally be viewed as an attempt to conceal the encounter from observers and as evidence that he knew the conduct was improper.
6. The Tribunal accepted that the evidence did not establish an express finding that the image was unwanted. It nevertheless rationally treated sending the image to a virtual stranger, without solid grounds for believing it was wanted, as reckless and as a significant escalation. The claimant’s prior receipt of intimate but qualitatively different images did not require a different conclusion.
7. The Tribunal’s reasoning on the three issues was sufficiently cogent to uphold both the gross-misconduct finding and, to the extent challenged, the decision to dismiss.

This was a first-instance judicial-review claim. The claimant challenged the Police Appeals Tribunal’s decision dated 21 January 2021 dismissing his appeal against the Chief Constable’s dismissal decision.