The Chief Constable of Thames Valley Police v A Police Misconduct Panel

On judicial review of a police misconduct sanction, the reviewing court must respect the panel’s assessment of primary facts and evaluative judgment. The court may intervene where the conclusion is clearly wrong or the reasons contain a material legal error.

Public confidence in policing is the paramount disciplinary consideration, but a finding of serious harm does not create a presumption that dismissal must follow. The panel must assess culpability, harm, aggravating factors and mitigation, and select the outcome which best serves the disciplinary purpose. Personal mitigation carries limited weight in serious cases. If material reasoning errors make the proper sanction uncertain, the sanction decision should be remitted for reconsideration.

A police misconduct panel found PC Hafeez Javeed guilty of gross misconduct after finding that he had engaged in highly inappropriate, unwanted touching of a female colleague in a police station. It imposed a final written warning lasting five years rather than dismissal.

The Chief Constable sought judicial review, alleging errors in the panel’s assessment of culpability, sexual motivation, harm, risk of recurrence, mitigation and sanction. The central questions were whether the panel’s factual findings and sanction were unlawful or clearly wrong, whether its reasons were adequate, and whether the case should be remitted.

1. Ground 1 failed. The panel was entitled to find that the touching was inappropriate but not sexually motivated and that there had been no deliberate squeezing of the breast. Whether conduct was sexual could be assessed, by analogy with Sexual Offences Act 2003, section 78, by asking whether it was inherently sexual or sexual in all the circumstances, including the explanation given. The colleague’s perception was relevant but not determinative.
2. Judicial review is not an appeal on the facts. The Wednesbury question was whether the panel’s conclusions were clearly wrong. Review of primary findings based substantially on oral evidence was subject to a very narrow scope. Evaluation of sanction and matters of weight were for the panel where it identified the material considerations and acted within its expertise.
3. The disciplinary decision required the structured approach identified in Fuglers LLP v SRA: assess seriousness; keep in mind the purpose of sanctions; and choose the sanction that most appropriately fulfils that purpose. Seriousness required consideration of culpability, harm, aggravating factors and mitigating factors. Maintaining public confidence in and the reputation of the police was the most important purpose, but this did not mean that dismissal automatically followed.
4. Paragraph 4.65 of the Guidance was predictive rather than prescriptive. Serious harm could make dismissal likely, but the appropriate outcome still required close examination of culpability. The limited weight generally given to personal mitigation in serious disciplinary cases did not prevent mitigation having some relevance where the misconduct was not within an especially serious category.
5. The panel’s reference to changed standards was wrong. The lapse of only two years and the intervening public concern did not alter the seriousness of the conduct when committed. The panel also failed adequately to resolve tensions concerning the officer’s insight, his account that the colleague had previously invaded his personal space, and the relationship between its findings on harm, culpability and mitigation.
6. Those errors were material. It was uncertain whether a properly directed panel would impose a final written warning or dismissal. The judicial review therefore succeeded. The findings of fact and the finding of gross misconduct stood, but the issue of sanction was remitted to a differently chaired Police Misconduct Panel for reconsideration, with further submissions or evidence permitted on harm, seriousness, mitigation, insight and awareness.

1. Police Misconduct Panel: on 17 August 2022 found gross misconduct and imposed a final written warning for five years.
2. High Court (Administrative Court): allowed the judicial review. The factual findings and finding of gross misconduct stood, but the sanction decision was remitted for reconsideration by a differently chaired panel.