The Chief Constable of West Midlands Police, R (on the application of) v Police Misconduct Panel

The claimant sought judicial review of a police misconduct panel's decision which found PS Srivastava guilty of gross misconduct but imposed a final written warning rather than dismissal. The legal framework applied was the Police (Conduct) Regulations 2012 and the College of Policing Guidance on Outcomes, and the familiar three-stage approach to sanction (assess seriousness by reference to culpability and harm, consider the purposes of the disciplinary regime, and choose the least severe sanction that meets those purposes) was applied (drawing on Fuglers LLP v SRA and related authorities).

The court rejected the claimant's three grounds: (1) the panel was entitled to find that the Equality and Diversity standard was not breached because the officer's fabrication in an interview did not amount to unlawful discriminatory treatment of the named colleague, and it was open to treat the Authority, Respect and Courtesy breach as tenuous; (2) the panel lawfully and reasonably assessed culpability and harm as medium and identified mitigating factors (single episode, remorse, long unblemished service), so there was no public law error in its overall seriousness assessment; and (3) the panel lawfully exercised its discretion on sanction and did not make a Wednesbury error — the claim amounted to an undue-leniency appeal and was dismissed.

Background and parties:

The Chief Constable of West Midlands Police applied for judicial review of a police misconduct panel's decision relating to PS Srivastava. The panel had found that the officer had fabricated an example at an internal interview involving a purported transphobic incident, admitted breaches of four Standards of Professional Behaviour, and accepted that her conduct amounted to gross misconduct; the panel nevertheless found breaches of three standards (Honesty and Integrity; Discreditable Conduct; Authority, Respect and Courtesy), rejected that the Equality and Diversity standard had been breached, and imposed a final written warning. The claimant sought quashing of that decision and a fresh hearing, advancing three grounds.

Nature of the claim and relief sought:

• The claimant sought judicial review quashing the panel’s findings and/or sanction and a remit for reconsideration by a differently constituted panel.

Issues framed by the court:

• Whether the panel erred in law or acted irrationally in (a) not finding a breach of the Equality and Diversity standard and in assessing the Authority, Respect and Courtesy breach as only just; (b) wrongly assessing the seriousness of misconduct (culpability, harm, aggravating and mitigating factors); and (c) imposing a final written warning rather than dismissal.

Court’s reasoning and conclusions:

The court reviewed the panel’s application of regulation 33 of the 2012 Regulations and the Guidance on Outcomes, noting the three-stage approach to sanction and the standard of review applicable to misconduct panels (the Administrative Court will not lightly interfere absent a public law error; a challenge to the sanction amounts effectively to an undue-leniency appeal and is constrained by Wednesbury principles). On Ground 1 the court held it was open to the panel to conclude that naming a person with a protected characteristic in a fabricated example did not amount to discriminatory treatment in reality and that the tenuous breach of Authority, Respect and Courtesy was a reasonable finding. On Ground 2 the court held that the panel lawfully balanced culpability (raised by rank and abuse of position) against absence of planning or targeting, and properly assessed harm as potential rather than actual; mitigating features (single episode, remorse, long service) were properly considered and did not amount to double-counting. On Ground 3 the court held the panel applied the Guidance and exercised its discretion within the permissible range, and there was no public law error sufficient to quash the outcome. The claim was dismissed.

Wider context:

The court emphasised the limited scope of judicial review of disciplinary decisions, warning against using the Administrative Court to mount undue-leniency appeals; the judgment explains the proper application of the Guidance on Outcomes and the distinct assessment between operational dishonesty and non-operational dishonesty.

The claim is dismissed. The court held that the misconduct panel acted within its permissible discretion and reached conclusions on standards breached, seriousness and sanction that were reasonably open to it. No public law error was demonstrated in the panel’s treatment of the Equality and Diversity standard, its assessment of culpability, harm, aggravating and mitigating factors, or its choice of sanction.

Permission to apply for judicial review was given by Steyn J. The claim form was issued 18 December 2020 and the substantive hearing took place on 5 November 2021; the judgment of Ellenbogen J (Administrative Court) was delivered 2 December 2022.