Kristina O'Connor, R (on the application of) v Police Misconduct Panel & Anor

Police misconduct investigations and disciplinary decisions are judged by public law standards, but the court must allow reasonable latitude in choosing investigative lines and evaluating penalty. Statutory guidance must be taken into account as a matter of substance, not merely form, but it need not be applied as a rigid checklist or template.

For penalty, a misconduct panel should assess seriousness methodically by considering culpability, harm, aggravating factors and mitigating factors, together with the purposes of maintaining public confidence, upholding standards, deterring misconduct and protecting the public. Gross misconduct does not inevitably require dismissal. A penalty will be unlawful only where the panel overlooks a material matter, relies on an irrelevant matter, or reaches an irrational conclusion.

The claimant sought judicial review of the investigation of her complaint about inappropriate sexual conduct by a police officer and of the misconduct panel’s decision to find gross misconduct but impose a three-year final written warning rather than dismissal.

She argued that the Commissioner had failed to treat the complaint as involving discrimination, had failed to follow relevant guidance, and had conducted an inadequate investigation. She also argued that the Panel had failed to have regard to the College of Policing’s outcomes guidance, had overlooked or overvalued relevant matters, and had acted irrationally.

1. Investigation. The Commissioner did not err in law by recording and referring the complaint as involving sexual assault or harassment and discreditable conduct rather than discrimination or equality and diversity. Sexual harassment is itself a form of unlawful discrimination, and the substance of the complaint was fully conveyed to the IOPC. The recording guidance concerned classification for recording purposes and did not prescribe how the investigation had to be conducted.
2. The investigation was conducted under Schedule 3 to the Police Reform Act 2002. The investigator had to act for a proper purpose, consider relevant matters and have regard to applicable guidance. However, the court should not prescribe every investigative step or second-guess reasonable choices of enquiry. The Allegations of Discrimination Guidance reduced the available latitude, but hindsight was not the test. The investigation was reasonably and appropriately conducted.
3. Outcomes guidance. The Panel’s obligation to have regard to the College of Policing’s Outcomes Guidance was substantive rather than merely formal. The guidance was a general framework, not a straitjacket or prescribed template. A panel need not cross-refer to every paragraph or address each factor in a separate section.
4. Seriousness should nevertheless be assessed methodically by reference to culpability, harm, aggravating factors and mitigating factors. These matters may overlap, and their categorisation is less important than whether they were taken into account. The Panel’s findings and reasons, read as a whole, showed that it had considered those matters and the need to maintain public confidence.
5. Gross misconduct did not inevitably require dismissal. The Panel was entitled to weigh the sexual motive, breach of trust, impact on the complainant and public concern against the limited duration of the conduct, the lapse of time, admissions, remorse and otherwise good service record. Its decision to impose a final written warning for three years was proportionate, rational and lawfully available.
6. The application for judicial review was dismissed. The court also emphasised that a public authority’s duty of candour requires careful consideration of the claimant’s pleaded case when identifying disclosable material.

First-instance judicial review in the Administrative Court. No appellate history was stated in the judgment.