R (The Chief Constable of Northumbria Police) v The Police Appeals Tribunal [2019] EWHC 3352 (Admin)
- Summary
- Citing
- Cited By
R (The Chief Constable of Northumbria Police) v The Police Appeals Tribunal [2019] EWHC 3352 (Admin) concerned a judicial review challenge by the Chief Constable of Northumbria Police to a decision by the Police Appeals Tribunal substituting a final written warning for dismissal. Mr Justice Freedman allowed the application and reinstated the panel’s original decision of dismissal.
PC Katie Barratt, the interested party, had joined Northumbria Police in December 2016 as a probationer constable. On 14 December 2017, while off duty and intoxicated after consuming around eight alcoholic drinks during a Christmas night out, she attended a takeaway restaurant called Spice of Punjab in Newcastle city centre with two colleagues. Whilst waiting for her pizza and out of earshot of the restaurant staff, she made racially offensive remarks about the staff to her colleagues, referring to them as “fucking Pakis” and “fucking niggers”. She used the term “Pakis” on at least five occasions, including stating “I wish these Pakis would hurry up with me pizza”. No members of the public or staff heard the remarks. She was reported to police professional standards by a fellow officer who had been present.
The claimant’s professional standards department investigated and served notice of hearing under regulation 21 of the Police (Conduct) Regulations 2012. Two alternative allegations of discreditable conduct were pursued. The first alleged she called staff “fucking niggers and fucking Pakis”. The second alleged she called staff “Pakis” on at least five occasions including the comment about her pizza. Both allegations specified that by making these racially offensive comments she behaved in a manner which brought discredit to Northumbria Police and undermined public confidence in the police service. In her regulation 22 response, the interested party denied the first allegation, admitted the second in part (admitting use of the word “Paki” twice but not five times), apologised unreservedly, and admitted misconduct but not gross misconduct. She stated her conduct was completely out of character, as confirmed by character references describing her as well-mannered, considerate, respectful, and courteous.
The misconduct panel convened on 26 to 27 June 2018, comprising Ms Rachel Mangenie, T/Superintendent Dave Anderson, and Dr Mohammed Farsi. The panel found both allegations proved and determined that the conduct amounted to gross misconduct. The panel’s determination dated 27 June 2018 found that the interested party had used highly offensive language including “fucking niggers” and “fucking Pakis”, which seriously undermined public trust and confidence and jeopardised the reputation of the police service such that dismissal was the only appropriate outcome. The panel noted the character references were impressive and that the interested party was clearly a young, enthusiastic, and dedicated officer. The panel expressly considered authority including Salter v Chief Constable of Dorset Police [2012] EWCA Civ 1047 and R (Williams) v Police Appeals Tribunal [2016] EWHC 2798 on the relative lack of weight to be given to personal mitigation when balanced against maintaining public confidence. The panel stated that it was persuaded the interested party did not hold deep-seated racist values and was not inherently racist, and that this was an out of character incident, but described it as involving “unconscious discrimination” which could have a significant impact on public confidence. The panel concluded that the deliberate or conscious use of discriminatory language would always undermine public confidence, but that unconscious discrimination could also have a significant impact. The panel considered whether a lesser sanction might be available but concluded regretfully it was not, because an outcome allowing the interested party to remain an officer would seriously undermine the trust and confidence the public have in the organisation and jeopardise the reputation of the police service.
The interested party appealed to the Police Appeals Tribunal on various grounds including that the panel’s decision that she be dismissed was unreasonable pursuant to rule 4(4)(a) of the Police Appeals Tribunals Rules 2012, which permits an appeal on the ground that the finding or disciplinary action imposed was unreasonable. On 24 October 2018 the PAT Chair, Dorian Lovell-Pank QC, decided pursuant to rule 11 that the appeal as to disciplinary action only should proceed to a hearing. He found that the decision that the conduct amounted to gross misconduct was entirely reasonable and that the decision to prefer one witness’s evidence was entirely reasonable.
On 25 March 2019 the full PAT, comprising Dorian Lovell-Pank QC as Chair, Deputy Chief Constable Jo Farrell (subsequently appointed Chief Constable of Durham Police), and Mr Stephen Smith, heard the appeal with both parties represented by counsel. The PAT announced its decision and a summary of reasons with written reasons to follow, allowing the appeal on the basis that the panel’s finding as to outcome was unreasonable. It substituted a final written warning of eighteen months’ duration for dismissal and directed that the interested party be reinstated with back pay from the date of dismissal less earnings since dismissal. The PAT’s written decision dated 11 April 2019 set out the allegations, facts, details of the hearing before the panel, the grounds of appeal, submissions, legal approach, and decision. The PAT cited the College of Policing Guidance on outcomes in police misconduct proceedings at paragraphs 4.51 to 4.54, which stated that discrimination on the basis of race is never acceptable and really serious, that discrimination may be conscious or unconscious, that cases where discrimination is conscious or deliberate will be particularly serious such that the public cannot have confidence the officer will discharge their duties in accordance with the Code of Ethics, and that unconscious discrimination can however also be serious and can also have significant impact on public confidence. The PAT stated that the nub of the appeal revolved around the sanction of dismissal and that it was important to bear in mind that a PAT does not conduct a rehearing and does not decide what it would have done had it been the panel, but rather reviews the panel’s thought processes and decision to consider if the panel approached the case in the right way and applied itself particularly to authority and guidelines. The PAT stated it found the case difficult but for different reasons than the panel. The PAT found that the panel began by announcing its decision to dismiss early in its reasons and then went on to say the discrimination was unconscious in what appeared to be an afterthought or justification without explaining what it meant by that term. The PAT observed that the College of Policing guidance distinguished between conscious and deliberate discrimination which will be particularly serious and unconscious discrimination which can however also be serious, but that the guidance did not define unconscious discrimination and the panel had not chosen to explain what it meant when it said this was an incident of unconscious discrimination. The PAT noted the panel concluded the interested party had not been dishonest nor sought to mislead, that she was in drink, that she was not inherently racist, and that what happened was an out of character incident. The PAT stated it tried to avoid undue speculation as to what the panel had in mind, and thought it unlikely the panel meant the interested party was unaware her use of abusive language was racist, as she accepted it was, and equally unlikely the panel meant she was so drunk she was unaware of everything she was saying, as she remembered using the word “Paki” twice. The PAT asked itself rhetorically whether using such language in one’s sleep or under anaesthetic would be considered unconscious discrimination making one liable to be sanctioned. The PAT found the panel’s decision was in two parts neither of which was properly explained. It found the panel had looked at the words used and determined they amounted to gross misconduct meriting nothing less than dismissal, had acknowledged there was no evidence the interested party held serious racist values and noted the non-deliberate and out of character nature of the use of the words and the fact it was not directed at or heard by staff, then determined what had occurred was an incident of unconscious discrimination without explaining what it had in mind by use of that term. The PAT stated the panel then said it had considered whether any outcome short of dismissal was appropriate and regretted not, but gave no or no proper reason. The PAT entirely endorsed the principle that uppermost in the minds of a panel and PAT will be maintenance of confidence in and reputation of the force and these interests must take precedence over those of the individual officer. The PAT stated that in giving reasons a panel is not required to spell out its thought process in excessive detail, but what is expected are reasons sufficiently clear to explain on what basis it came to its conclusion so as to allow interested parties to understand its thought process and to know why the officer had lost her job. The PAT considered this had not happened, and that whereas the panel noted and quoted from established authority and guidelines, it made an important finding of unconscious discrimination and decision of dismissal without proper explanation so that an informed reader of the panel’s reasons was left in considerable doubt as to the basis of the outcome. The PAT stated this made the panel’s decision on outcome unreasonable as that word is understood in the context of an appeal to a PAT. The PAT stated that reputation of and public confidence in the force are maintained not simply by severity of outcomes but equally by the force being seen to be an organisation not given to knee-jerk reactions to what at first blush might appear to merit dismissal, and that a force unnecessarily punitive of its own members will not maintain reputation or confidence of its own members or the public.
The Chief Constable of Northumbria Police challenged the PAT’s decision by way of judicial review. Permission was granted by His Honour Judge Saffman on 8 August 2019. The claimant advanced two grounds. Ground 1 contended that the PAT’s conclusion that the panel’s decision as to outcome was unreasonable was perverse and not a conclusion open to it, and if that contention was accepted the PAT had no lawful basis for replacing the panel’s decision with its own. Ground 2 contended that further or alternatively, if the panel’s decision was unreasonable for the reasons given by the PAT, the PAT could not itself reasonably have concluded that dismissal was a knee-jerk reaction and unnecessarily punitive, and the conduct was such that no reasonable tribunal could conclude anything other than dismissal was warranted. The interested party resisted the claim and raised a preliminary issue that the application had been brought out of time because although brought within the three-month period it had not been brought promptly as required by CPR 54.5(1).
Mr Justice Freedman reviewed the law, noting that proceedings in the Administrative Court seeking to challenge a decision of a PAT arise by way of judicial review not appeal, and that a claimant must establish a public law error before the decision could be quashed. The court cited Salter, emphasising that absent another error of law the PAT’s decision on sanction could be interfered with only on classic Wednesbury grounds, in short that on the material before it no reasonable tribunal could have reached the conclusion it did. The court noted the Administrative Court should guard against misuse of its jurisdiction by chief constables seeking to mount what are effectively undue leniency appeals to decisions of misconduct panels or PATs. The court also reviewed the test for unreasonableness on an appeal to the PAT, citing R (Chief Constable of Cleveland) v PAT and Rukin [2017] EWHC 1286 (Admin), which held that when considering whether a finding by a panel is unreasonable the PAT is not required to find it Wednesbury unreasonable as a prerequisite for overturning the decision, but the PAT is not entitled to substitute its own view unless and until it has already reached the view the finding was unreasonable or there was another valid basis for appeal, and once the gateway is negotiated the PAT can deal with the matter on a clean slate basis and make an order dealing with the appellant in any way in which he could have been dealt with by the panel. The court also cited Williams, in which Holroyde J emphasised that the importance of maintaining public confidence in and respect for the police service is constant regardless of the nature of the gross misconduct under consideration, and that gross misconduct involving dishonesty or lack of integrity will by its very nature be a serious threat, but other forms of gross misconduct may also pose a serious threat and breach of any of the standards may be capable of causing great harm to the public’s confidence in and respect for the police.
The interested party submitted there was no misdirection, that the PAT is entitled to deference, and that the PAT’s decision was not irrational. As to deference, the interested party cited Salter in which Burnett J deprecated the use of the term deference but said the reason the court is slow to interfere with the decision of an expert tribunal is that the court does not share the expertise, and it is not deference but proper recognition of the need for caution before disagreeing with someone making a judgment on a matter for which he is especially well qualified when the court is not. The interested party emphasised the composition of the PAT in this case, comprising a highly experienced criminal law QC as Chair who was one of the most experienced chairs of the PAT, and Jo Farrell, the Deputy Chief Constable and subsequently Chief Constable of Durham Police who spent a substantial part of her career in ranks up to and including Assistant Chief Constable in Northumbria Police. The interested party submitted the PAT’s conclusion that the panel failed to give proper reasons for the finding of unconscious discrimination was a proper basis for finding the decision unreasonable, that insufficiency of reasons is a proper basis for such a finding, and that the finding of unconscious discrimination was important because of reliance on the College of Policing guidance that it should be considered especially serious, that it was not discrimination within the meaning of the Equality Act 2010 section 13, and it was not explained what was meant by unconscious discrimination. The claimant contended that the finding that the reasons were insufficiently clear such that the decision was unreasonable was not open to the PAT, and that the extracts from the panel’s determination readily demonstrated it was the nature of the language used which rendered the conduct so serious that dismissal was the only available outcome due to the impact on trust, confidence, and reputation of the police service, and that this was all the information the interested party needed to understand why the decision as to outcome had been reached. The claimant submitted that in that context the description of discrimination as unconscious does not introduce any lack of clarity as to the reason for dismissal, that the reason for dismissal could not have been clearer, that the focus on the nature of the language used and damage to reputation was the correct focus and constituted proper and clear reasons for dismissal, and that the PAT’s decision as to alleged lack of clarity was flawed and not a reason which permitted it to substitute its own view as to outcome.
Mr Justice Freedman held that the PAT’s decision that the reasoning was so deficient as to have been made without proper explanation leaving the reader in considerable doubt as to the basis of outcome and thereby unreasonable was wrong. The court found the reasoning was not so deficient because it was clear the words used were the critical reason for the panel’s decision, as evidenced by references to the words causing great offence, to members of the public hearing a police officer had used those words being offended with their confidence in the officer and police force diminished, to concern being exacerbated by use of such language by a young officer given detailed diversity training, and to concern being exacerbated by substantial ethnic minority communities in Northumbria and national concern about racism throughout the police service. The court rejected the suggestion that use of the words “unconscious discrimination” changed
Salter v Chief Constable of Dorset [2012] EWCA Civ 1047
R (On the application of Williams) v Police Appeals Tribunal [2016] EWHC 2798
R (CC of Cleveland) v PAT & Rukin [2017] EWHC 1286
R(on the application of the Chief Constable of Durham) v Police Appeals Tribunal and Cooper [2012] EWHC 2733
Williams v Police Appeals Tribunal [2016] EWHC 2708 (Admin)
R (CC of Dorset) v PAT & Salter [2011] EWHC 3366
R (on the application of the Chief Constable of the Derbyshire Constabulary) v Police Appeals Tribunal [2012] EWHC 2280
Bolton v The Law Society [1994] 2 All ER 486
R v Secretary of State for the Home Department, ex parte Ruddock [1987] 1 WLR 1482