Chief Constable of the British Transport Police, R (On the Application Of) v Police Misconduct Panel

Factual and Procedural Background

During the pandemic lockdown, an off-duty police officer approached a lone female pedestrian unknown to him. The officer stopped his car with the engine running, engaged her in conversation unrelated to policing, made a racially and sexually inappropriate comment, showed his warrant card and personal gym photos, requested her phone number and a hug, and later sent her a message addressing her as "babe". The female pedestrian felt sexually harassed and complained. A disciplinary panel found the officer guilty of gross misconduct but imposed a final written warning rather than dismissal. The Chief Constable of British Transport Police sought judicial review challenging the panel's decision, contending dismissal was the only rational outcome. The panel did not participate in the judicial review proceedings.

Legal Issues Presented

1. Whether the disciplinary panel's decision to impose a sanction other than dismissal was irrational.
2. Whether the panel failed properly to follow the structured approach to assessing disciplinary outcomes, including assessing seriousness and the purpose of sanctions.
3. Whether certain factual findings by the panel were irrational.
4. Whether the decision on outcome was irrational in light of the alleged irrational factual findings.

Arguments of the Parties

Claimant's Arguments

• The panel's decision to impose a final written warning rather than dismissal was irrational given the officer's conduct.
• The officer's conduct amounted to abuse of position for a sexual purpose (APSP), categorized as serious corruption requiring zero tolerance.
• The panel failed to appreciate the seriousness and significance of the conduct, particularly its impact on lone women and public confidence in policing.
• The panel incorrectly assumed the complainant consented to the encounter and erred in limiting the impact of the misconduct to the complainant alone.
• The panel failed to properly apply the structured approach to disciplinary outcomes as required by established guidance and case law.
• The panel's factual findings that the officer did not seek a sexual relationship, that the term "babe" was not sexual, and that the conduct was not persistent were irrational.

First Interested Party (Officer)'s Arguments

• The panel properly conducted the disciplinary process and the final written warning was an appropriate and proportionate sanction.
• The use of the term "babe" was a familiar, non-sexual term used among friends.
• The officer denied making the racially and sexually inappropriate comments and denied persistence.
• The judicial review is a disproportionate challenge amounting to a personal and racial attack.
• The panel followed the structured approach and made rational findings on culpability, harm, and mitigation.

Second Interested Party (IOPC)'s Arguments

• The IOPC supported the claimant's submissions, emphasizing the seriousness of APSP and the need for zero tolerance.
• The panel's finding that the conduct was not persistent was wrong and ignored the power imbalance and victim's experience.
• The panel's approach to the complainant's demeanour and consent was flawed and outdated.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully reviewed the factual findings of the disciplinary panel, which largely preferred the complainant's account over the officer's and found multiple breaches of the Standards of Professional Behaviour amounting to gross misconduct. The officer's conduct was found to include inappropriate use of his warrant card for personal gain, sexualised and racially discriminatory comments, breach of COVID-19 guidance, and attempts to initiate unwanted physical contact.

Applying the statutory and non-statutory guidance, including the BTP Conduct Regulations 2015, Home Office Guidance 2020, and the NPCC National Strategy on abuse of position for sexual purposes (APSP), the court emphasised the paramount importance of maintaining public confidence in policing and the zero tolerance approach to APSP.

The court found that the panel failed to properly apply the structured three-stage approach to sanctions as established in Fuglers LLP v SRA and confirmed in subsequent cases. Specifically, the panel's assessment of seriousness and the purpose of sanctions lacked substantive engagement, focusing inadequately on harm caused to public confidence, particularly among lone women, and overemphasising personal mitigation and future learning to the exclusion of accountability.

The panel's acceptance that the complainant remained in the encounter by consent was deemed unreasonable, as it failed to consider the power imbalance and the complainant's inner distress despite outward composure. The panel's factual findings that the officer did not seek a sexual relationship, that the term "babe" was non-sexual, and that the conduct was not persistent were internally inconsistent and irrational given other findings.

Given the serious nature of the misconduct, including abuse of police power for personal gain, sexual impropriety, racial profiling, and breach of public trust, the court concluded that dismissal was the only rational and proportionate sanction. The panel's decision to impose a final written warning was irrational and undermined public confidence in policing.

The court also rejected the officer's plea for mitigation based on personal and family impact, emphasizing that public confidence and the reputation of the police service outweigh individual considerations. The court exercised its jurisdiction to substitute the panel's sanction with dismissal rather than remitting the matter for reconsideration, citing public interest and procedural efficiency.

Holding and Implications

The court QUASHED the disciplinary panel's decision to impose a final written warning and substituted it with a dismissal without notice of the officer.

This decision directly affects the officer, terminating his police service. It underscores the strict standards police misconduct panels must apply, particularly in cases involving abuse of position for sexual purposes and misconduct impacting public confidence. The ruling reinforces the zero tolerance approach to such misconduct and the necessity for disciplinary outcomes to reflect the seriousness of the conduct to maintain public trust in policing. No new legal precedent was established beyond the application of existing statutory and case law principles.