PETITION OF DEPUTY POLICE CONSTABLE (DESIGNATE) FIONA TAYLOR, QPM FOR JUDICIAL REVIEW

Factual and Procedural Background

The Petitioner, a Deputy Police Constable (Designate), sought judicial review of a decision by the Police Appeals Tribunal dated 7 July 2023. The tribunal had found misconduct and gross misconduct by the Respondent, a Detective Constable in the Police Service of Scotland, and issued him a final written warning.

In March/April 2022, the Respondent faced seven allegations of misconduct related to posting and receiving inappropriate images and engaging in offensive WhatsApp group discussions involving derogatory comments about fellow constables. The Chief Superintendent initially found five allegations to constitute gross misconduct and ordered dismissal without notice, a decision which the Respondent appealed unsuccessfully to the Assistant Chief Constable.

The Respondent then appealed to the Police Appeals Tribunal, accepting that some allegations amounted to misconduct and one to gross misconduct but contending that the findings of gross misconduct for certain allegations were unjustified and that dismissal was disproportionate. The tribunal, on 7 July 2023, found some allegations did not amount to misconduct, others did, and one amounted to gross misconduct, reinstating the Respondent with a final written warning.

Legal Issues Presented

1. Whether the Police Appeals Tribunal acted unfairly and procedurally irregularly by addressing an issue (whether certain allegations amounted to misconduct) without giving the Petitioner notice or opportunity to be heard.
2. Whether the Tribunal provided adequate reasons for its findings that certain allegations amounted to misconduct but not gross misconduct.
3. Whether the Tribunal failed to properly consider the relevant factor of maintaining public confidence in the police when determining sanctions.
4. Whether the sanction imposed was appropriate and proportionate given the findings.

Arguments of the Parties

Petitioner's Arguments

• The Tribunal breached natural justice by deciding that two allegations did not amount to misconduct without giving the Petitioner notice or an opportunity to make submissions on that issue, despite it being a new issue not framed by the parties.
• The Tribunal improperly expanded the scope of the appeal, which was limited to whether the conduct amounted to misconduct or gross misconduct, contrary to the adversarial principle that parties frame the issues.
• There was a lack of adequate and intelligible reasons explaining why certain allegations were misconduct but not gross misconduct, creating real and substantial doubt about the reasoning.
• The Tribunal failed to properly consider the need to maintain public confidence in the police, especially given the nature of the offensive conduct and its impact on diverse public groups.
• The Tribunal applied a higher test for gross misconduct than legally required by suggesting conduct must justify dismissal rather than may justify dismissal.
• The inconsistency in the Tribunal’s approach between this case and a related appeal involving similar allegations undermines confidence in the decision.

Respondent's Arguments

• The Respondent accepted his actions amounted to misconduct but submitted that the Tribunal was entitled to reach its own conclusions on the categorisation of conduct and was not bound by parties' admissions.
• All relevant facts were before the Tribunal, and parties had ample opportunity to make submissions; thus, no unfairness arose from the Tribunal’s approach.
• The Tribunal’s decision to reclassify allegations 1 and 2 was a matter of fact and law within its discretion and did not require further submissions.
• The Tribunal provided adequate reasons for its findings on allegations 3 and 4, distinguishing them from allegation 6 which was gross misconduct, based on context, the Respondent’s service record, and the nature of the comments.
• The Tribunal properly took into account public confidence in the police, as evidenced by its reasoning on sanction and consideration of public perception.
• If procedural unfairness were found, the appropriate remedy would be a limited remit to the Tribunal to hear submissions on the misconduct issue, not a full rehearing or quashing of the entire decision.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed supervisory review of the Police Appeals Tribunal’s decision, focusing on procedural fairness, adequacy of reasons, and consideration of relevant factors.

Firstly, the court found that the Tribunal acted unfairly by addressing whether certain allegations amounted to misconduct without giving the Petitioner prior notice or an opportunity to make submissions on this issue. This was a new issue not framed by the parties, contrary to the adversarial nature of the proceedings and the Tribunal’s procedural rules. The court emphasized that parties must be given fair notice of all issues to be addressed, citing established authorities on natural justice.

Secondly, the court held that the Tribunal failed to provide adequate and intelligible reasons explaining why allegations 3 and 4 amounted to misconduct but not gross misconduct. The reasons given left the informed reader in real and substantial doubt, lacking clarity on why the conduct did not reach the threshold of gross misconduct. The court noted inconsistencies with a related appeal involving the same allegations, which further undermined confidence in the reasoning.

Thirdly, the court considered the Tribunal’s treatment of the need to maintain public confidence in the police. It found that the Tribunal had sufficiently taken this into account in its sanctioning decision, as evidenced by references to public perception and the seriousness of the conduct.

The court acknowledged the deference owed to specialist tribunals in misconduct matters and that the Tribunal was entitled to reclassify conduct and make its own findings. However, the procedural unfairness and inadequate reasoning identified were material errors of law warranting intervention.

Regarding remedy, the court noted that the parties agreed the decision should be reduced and the matter remitted for rehearing. The court declined to decide whether the rehearing should be before the same or a differently constituted tribunal, leaving that to the specialist body, but recognized the importance of avoiding any perception of unfairness or damage to public confidence.

Holding and Implications

The court SUSTAINED the Petitioner’s pleas in law relating to procedural unfairness and inadequate reasons, and REPELLED the Respondent’s pleas opposing those grounds.

The decision of the Police Appeals Tribunal dated 7 July 2023 is REDUCED. The matter is remitted to a Police Appeals Tribunal to proceed in accordance with this opinion, allowing for a rehearing that addresses the procedural and reasoning deficiencies identified.

The direct effect is that the original disciplinary findings and sanction are set aside pending rehearing. No new legal precedent is established beyond the application of established principles of natural justice, adequacy of reasons, and appellate supervision of disciplinary tribunals.