Commissioner of the Police of the Metropolis v A Police Conduct Panel

A police misconduct panel must apply the statutory Outcomes Guidance when deciding sanction. A non-trivial failure to follow it is highly likely to be an error of law. The decision-maker must assess the objective seriousness of the misconduct before considering general testimonials and references, which are not relevant to that assessment. Personal mitigation may be considered only at the proper later stage and must be weighed against the seriousness of the misconduct. A sanction is irrational where no reasonable tribunal correctly applying the law could have imposed it. On remittal, the High Court may direct reconsideration by a freshly constituted panel where returning the matter to the original panel would create a reasonably perceived risk of unfairness or damage public confidence.

Two Metropolitan Police firearms instructors were found guilty of gross misconduct after false firearms reclassification records and authorisations were created. The Police Conduct Panel imposed final written warnings. The Commissioner sought judicial review, alleging that the sanctions process unlawfully applied the Guidance on Outcomes in Police Misconduct Proceedings and that the warning imposed on PS Russell was irrational.

The interested parties accepted that the process was unlawful but disputed the extent of relief, the irrationality challenge, and whether the matter should return to the original panel. The central issues were the proper treatment of testimonials and personal mitigation, the threshold for irrationality, and the court’s power and discretion to remit sanctions to a new panel.

1. The sanctions decision was quashed. The Panel unlawfully considered testimonials when assessing the seriousness of the misconduct at stage 1. Under the statutory Guidance on Outcomes in Police Misconduct Proceedings, seriousness must first be assessed by reference to culpability, harm, aggravating factors and mitigating factors connected with the misconduct. General testimonials and references are personal mitigation and must be considered only after that assessment. This was a non-trivial error which materially diluted the objective seriousness of the conduct.
2. The Panel had not otherwise failed to use the structured three-stage approach, had not made its reasons unlawful merely because they could have been expressed better, and had not rendered the process unlawful simply by placing some weight on admissions. A reviewing court should not subject reasons to narrow textual analysis or treat them as legislation or a contract.
3. The warning imposed on PS Russell was also irrational in the Wednesbury sense. The correct test was whether no reasonable tribunal correctly applying the law could properly have made the decision. The Panel failed to grapple with the consequences of dishonesty in light of the disciplinary regime, failed to calibrate on-duty, non-operational dishonesty within the lacuna in the Outcomes Guidance, and did not explain how the lenient sanction served the regime’s purpose of maintaining confidence in police competence and probity.
4. The court declined to substitute dismissal. The specialist panel had to determine the reasonable sanction itself, applying the law correctly and construing the Outcomes Guidance to address the gap concerning on-duty, non-operational dishonesty.
5. Remittal to a freshly constituted Panel was permissible. The references in section 31(5)(a) of the Senior Courts Act 1981 and CPR 54.19(2)(a)(i) to the original decision-maker do not require literal remittal to the same individuals. Applying the test in HCA International Ltd v Competition and Markets Authority, [2015] EWCA Civ 492, remittal to the original Panel would create a reasonably perceived risk of unfairness and damage public confidence. The sanctions were therefore remitted to a new Panel.

This was a first-instance judicial review in the High Court (Administrative Court). The sanctions decision of the Police Conduct Panel was quashed and remitted to a freshly constituted Panel.