The Chief Constable of the British Transport Police, R (on the application of) v Police Misconduct Panel

A misconduct panel must apply the structured three-stage approach to sanction: assess seriousness, identify the purposes of discipline, and select the outcome that best fulfils those purposes. Maintaining public confidence in policing is central and must be assessed by reference to the wider public, not only the complainant or the officer’s prospects of rehabilitation. The Administrative Court should respect specialist panels and intervene only for public-law error or irrationality. However, where an officer misuses a warrant card for personal gain during an unsolicited approach to a lone woman, combined with sexualised or discriminatory conduct, dismissal may be the only rational outcome. A panel must not treat a complainant’s outwardly calm or cooperative behaviour as consent, or place responsibility on her to resist the encounter.

The Chief Constable sought judicial review of a Police Misconduct Panel’s decision to impose a final written warning on a police constable who, while off duty during lockdown, approached a lone woman, displayed his warrant card without a policing purpose, made a sexualised and racially stereotypical comment, sought her telephone number and asked for a hug.

The Panel found gross misconduct and breaches of the professional standards but rejected some allegations, including persistence, sexual intent and inappropriate photographs. The claim challenged the sanction, the Panel’s application of the structured approach to outcome, and several factual findings. The central questions were whether the final written warning was irrational, whether the Panel had lawfully assessed seriousness and disciplinary purpose, and whether the Court should remit or substitute the outcome.

1. Outcome. The claim succeeded. The final written warning was quashed and replaced with dismissal without notice under sections 31(5) and 31(5A) of the Senior Courts Act 1981.
2. The Court recognised the high threshold for irrationality and the need for caution before interfering with an expert misconduct panel. Judicial review is not an appeal against undue leniency. Nevertheless, the Panel’s conclusion was outside the range of rational outcomes on its own findings.
3. The Panel had to apply the three-stage approach in Fuglers LLP v SRA: first assess seriousness, including culpability, harm, aggravating factors and mitigating factors; secondly identify the purposes of disciplinary sanctions; and thirdly select the sanction which best fulfils those purposes. Merely referring to the structure or repeating its terminology was insufficient.
4. The Panel failed adequately to assess culpability, including the misuse of police authority and the extensive rejection of the officer’s account. It also treated harm too narrowly by focusing on the complainant and failing to address the effect on lone women and public confidence in policing generally. Its forward-looking emphasis on learning and redeployment did not properly address harm already caused or the need to maintain confidence.
5. The Panel’s treatment of the complainant’s conduct was legally flawed. Her decision to remain outwardly composed, provide her number or avoid confrontation did not establish consent. The Court rejected an approach which placed responsibility on a lone woman to resist an officer who had used his warrant card.
6. On the Panel’s findings, the conduct involved misuse of police power for personal gain, sexual impropriety, racial stereotyping and conduct corrosive of policing by consent. It amounted to abuse of position for a sexual purpose and serious corruption. Dismissal was the only rational sanction. The additional challenged findings—that the intended relationship was not sexual, that “babe” was non-sexual and that the conduct was not persistent—were also irrational when read with the Panel’s other findings.

First-instance judicial review in the High Court (Administrative Court). The Court quashed the Police Misconduct Panel’s sanction and substituted dismissal without notice.