The Commissioner of the Police of the Metropolis, R (on the application of) v The Police Appeals Tribunal

The claim is a judicial review of a Police Appeals Tribunal decision of 31 March 2023 which had allowed an appeal by a police officer (the Interested Party) against a Police Misconduct Panel finding of gross misconduct and dismissal. The Tribunal set aside the Panel’s decision and remitted the matter for a fresh panel, on the basis that the Panel had not addressed the officer’s legal case that her defaults were attributable to disabilities and therefore were performance rather than conduct issues.

The High Court allowed the judicial review, quashing the PAT decision. The court held that the misconduct Panel had heard oral evidence and properly made primary findings of fact, including that the officer had given untrue evidence on key points. Those findings could reasonably support a finding of gross misconduct. The PAT’s conclusion that the Panel had failed to address the officer’s "performance-versus-conduct" legal argument was misplaced because that argument had not been advanced before the Panel as a factual explanation for alleged untruthfulness and there was no expert medical evidence linking the officer’s dyslexia or dyspraxia to the giving of untruthful evidence. The court also rejected the claim of procedural unfairness in respect of not expressly putting to the officer that she was deliberately misleading the Panel, concluding she had ample opportunity to answer the critical challenges to her evidence.

Background and parties

The claimant is the Metropolitan Police Commissioner. The defendant is the Police Appeals Tribunal (PAT). The Interested Party (IP) is a Metropolitan Police officer who was dismissed following a Police Misconduct Panel decision (17 May 2022) which found gross misconduct in her investigation of allegations of domestic abuse made by the victim, Denise Keane-Barnett (DKB). The PAT allowed the IP’s appeal on 31 March 2023, quashed the Panel decision and remitted the case to a fresh panel. The Commissioner brought judicial review of the PAT decision.

Procedural posture and relief sought

• The claimant applied for judicial review seeking to quash the PAT’s decision to set aside the Panel’s finding of gross misconduct and remit the case.

Key factual and procedural background

• The IP was the officer in charge of the investigation into repeated complaints by DKB about her husband, who later murdered DKB. The Panel found a number of investigatory failings, concluded that the IP had made false assertions about conversations and actions, and that those falsehoods were deliberate attempts to mislead the investigator and the Panel. The Panel found gross misconduct and dismissed the IP.
• The IP appealed to the PAT. Before the PAT her case developed to emphasise that her dyslexia and dyspraxia, together with heavy caseload and limited supervision, meant that any shortcomings were performance-related (and disability-linked), not conduct-related. The PAT accepted that the Panel had not reached a determination on that legal issue and remitted the case for reconsideration by a fresh panel.

Issues for the court

• Whether the PAT was legally entitled to set aside the Panel’s finding on the basis that the Panel had not addressed the IP’s legal argument that the defaults were performance-related and disability-linked.
• Whether the Panel had acted unfairly by not expressly putting to the IP that she had deliberately misled the investigator and the Panel.
• Whether the Panel erred in its assessment of mitigation, culpability and the weight of prior performance development reviews (PDRs) in circumstances where disabilities were pleaded.

Court’s reasoning and conclusions

• The court emphasised the appropriate review standard for the PAT is one of public law error and Wednesbury unreasonableness for the merits: the PAT could only lawfully overturn a Panel decision if that decision fell outside the range of reasonable outcomes.
• The court concluded the IP’s case before the Panel was that her positive evidence was true; the disability and workload material was advanced as mitigation and to explain workrate and supervision issues, not as an explanation for alleged untruthfulness. The substantial shift at the appeal stage to present the disabilities as the cause of the IP’s alleged false evidence was a new legal argument not advanced as a factual explanation before the Panel.
• The PAT’s decision failed to identify any evidential link, supported by expert evidence, between the diagnosed dyslexia/dyspraxia and the Panel’s findings of deliberate untruthfulness. The court found no basis to infer that those conditions caused the officer to give untrue evidence; absent such evidence the PAT was wrong to treat the Panel as unreasonable for not treating those findings as performance rather than conduct.
• On the procedural fairness point the court held that the IP had been given ample opportunity in cross-examination and by the Panel to address the core challenges to her account; there was no unfairness in not asking the specific question whether she had intentionally misled the Panel, because there was no further answer she could properly have given that would have affected the outcome.
• The Panel’s reliance on PDRs as an aggravating factor and its assessment of culpability and mitigation were within the range of reasonable evaluation in the circumstances.

Disposition

The court allowed the judicial review and quashed the PAT decision of 31 March 2023. The PAT’s remittal was unlawful because the Panel’s findings and sanction of dismissal were within the range of reasonable outcomes on the evidence before it and there was no evidential basis to treat the defaults as performance issues attributable to disability.

The claim for judicial review is allowed. The High Court quashed the Police Appeals Tribunal’s decision on the basis that the PAT erred in law and acted unreasonably in setting aside the Misconduct Panel’s finding of gross misconduct. The court held (i) the Misconduct Panel had heard oral evidence, made primary findings that the officer had given untrue evidence on key points and those findings could reasonably support gross misconduct and dismissal; (ii) the PAT’s conclusion that the Panel had failed to address an alternative legal case that failings were performance-related to disability was misplaced because that argument had not been advanced before the Panel as explaining alleged untruthfulness and there was no expert or other evidence linking the officer’s dyslexia/dyspraxia to the findings of untruthfulness; and (iii) there was no procedural unfairness in the Panel’s handling of the alleged misleading conduct because the officer had ample opportunity to answer the challenges to her evidence. For those reasons the PAT’s decision was quashed.