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

A specialist police appeal tribunal must address the case actually advanced before the misconduct panel. It cannot quash a finding of gross misconduct because of an alternative disability-based explanation raised for the first time, or materially reformulated, on appeal.

Where a witness has had a fair opportunity to answer the factual allegations and maintains that their evidence is true, a tribunal need not separately ask whether they are deliberately misleading it. Procedural unfairness requires substantive prejudice.

Personal circumstances and disability must be considered in accordance with the case advanced and the evidence available. In cases involving serious impropriety or untruthful evidence, personal mitigation may carry limited weight. Previous warnings may properly aggravate repeated misconduct.

The Commissioner challenged the Police Appeals Tribunal’s decision allowing an officer’s appeal against her dismissal for gross misconduct and remitting the matter to a fresh misconduct panel.

The misconduct panel had found that the officer failed properly to investigate domestic-abuse allegations and had given untruthful evidence about key events. Before the Police Appeals Tribunal, the officer relied substantially on dyslexia, dyspraxia, workload and inadequate supervision, arguing that the proven failings were performance issues rather than misconduct.

The central issues were whether the Police Appeals Tribunal had lawfully concluded that the misconduct panel failed to address that case, whether findings of misleading conduct were procedurally unfair, and whether insufficient weight had been given to disability and other personal circumstances.

1. Judicial review and applicable standard. The claim succeeded. The Police Appeals Tribunal was a specialist tribunal, but its decision was reviewable for error of law and, where reasonableness was alleged, under the Wednesbury standard. The relevant question was whether the misconduct panel’s findings and outcome fell within the range of reasonable findings or outcomes available to it.

2. Performance and conduct. The officer’s case before the misconduct panel was that the factual allegations were untrue and that her actions were justified. Disability, workload and supervision were advanced as mitigation and as explanations for investigative failings, not as an explanation for untruthful evidence. The Police Appeals Tribunal therefore erred in treating a materially different case advanced on appeal as a case which the misconduct panel had failed to determine. The panel’s findings that the officer had deliberately misled the investigator and panel, and had recommended closure of the investigations on a false basis, were plainly capable of supporting gross misconduct.

3. Procedural fairness. Fairness is fact-sensitive. The officer had been given ample opportunity to answer the disputed factual allegations and had repeatedly maintained that her account was true. The panel was not required to use the additional formulation that she was deliberately misleading it. A failure to put a point expressly in cross-examination is relevant only if it causes substantive unfairness. There was none because the officer’s answer would have been the same.

4. Personal circumstances and culpability. The panel did consider the disability and personal circumstances actually advanced. The Police Appeals Tribunal was wrong to require further consideration of an unsupported causative link between dyslexia or dyspraxia and untruthful evidence. The findings that the officer was responsible for her actions were within the panel’s reasonable range.

5. Mitigation and aggravation. In serious police impropriety cases, personal mitigation is likely to carry limited weight because of the importance of public confidence. The panel was entitled to rely on prior performance reviews and warnings as aggravating factors where the officer repeated conduct about which she had previously been warned.

6. The judicial review application was allowed and the Police Appeals Tribunal’s decision was quashed.

• Police Misconduct Panel: Found the Interested Party guilty of gross misconduct and dismissed her on 17 May 2022.
• Police Appeals Tribunal: Allowed the appeal, set aside the misconduct panel’s decision and remitted the matter to a fresh panel on 31 March 2023.
• High Court (Administrative Court): Allowed the judicial review application and quashed the Police Appeals Tribunal’s decision.