Factual and Procedural Background
The Petitioner, a Deputy Police Constable (Designate), sought judicial review of a decision by the Police Appeals Tribunal dated 6 July 2023. The Tribunal had found misconduct by the Respondent, a Detective Constable in the Police Service of Scotland, and issued him with a final written warning.
In March/April 2022, the Respondent was served with three allegations of misconduct relating to derogatory and offensive comments made about fellow police constables in a WhatsApp group chat between 10 February and 17 July 2016. The allegations concerned disrespectful comments, including remarks about a colleague's dyslexia.
The Chief Superintendent initially determined that two of the allegations amounted to gross misconduct and ordered dismissal without notice, while the third allegation was not upheld. The Respondent appealed this decision to the Assistant Chief Constable, who dismissed the appeal without an oral hearing.
The Respondent then appealed to the Police Appeals Tribunal under section 56 of the Police and Fire Reform (Scotland) Act 2012. He accepted that the allegations amounted to misconduct but challenged the classification as gross misconduct and the sanction of dismissal, seeking reinstatement with a final written warning instead.
On 6 July 2023, the Tribunal found the conduct to be misconduct rather than gross misconduct, reinstated the Respondent to the office of constable, and imposed a final written warning.
Legal Issues Presented
- Whether the Police Appeals Tribunal erred in law by failing to provide adequate and intelligible reasons for its decision that the Respondent's conduct amounted to misconduct rather than gross misconduct.
- Whether the Tribunal took into account irrelevant considerations in reaching its decision.
- Whether the Tribunal applied the correct legal test for gross misconduct.
- The appropriate remedy following any identified errors in the Tribunal's decision.
Arguments of the Parties
Petitioner's Arguments
- The Tribunal failed to provide adequate reasons on why the conduct did not amount to gross misconduct, merely adopting the Respondent's submissions without proper qualification, causing ambiguity and confusion.
- The Tribunal took into account irrelevant considerations such as the private nature of the WhatsApp group, lack of training, encouragement to use WhatsApp, the Respondent's desire to fit in, the proportion of offending messages, and the nature of the messages not being sexist, which were improper when assessing the seriousness of the conduct.
- The Tribunal conflated the assessment of culpability with the determination of sanction, failing to properly distinguish between the two stages as required by the Police Service of Scotland (Conduct) Regulations 2014 and relevant case law.
- The Tribunal applied an incorrect and materially higher test for gross misconduct, requiring conduct to be of such a reprehensible nature as to warrant dismissal, rather than the correct test of whether the conduct may justify dismissal.
- The decision should be reduced due to these errors, and the matter remitted for reconsideration.
Respondent's Arguments
- The Tribunal's decision, read as a whole, clearly articulated the reasons for its finding of misconduct and the sanction imposed, with no real or substantial doubt left as to the basis of its conclusions.
- The Respondent admitted the allegations and gave unchallenged evidence; the main issue was the seriousness of the conduct and appropriate sanction, which the Tribunal addressed.
- The Tribunal was entitled to consider the context and circumstances surrounding the conduct, including the private nature of the WhatsApp group and the Respondent's mistaken belief about privacy, as relevant to the seriousness of the conduct.
- Lack of training and encouragement to use WhatsApp were relevant to mitigation and sanction, and inexperience could be relevant to the classification of conduct.
- The Tribunal rejected the Respondent's submission that the messages were not sexist and found some messages to be unquestionably sexist and offensive, yet reasonably concluded the conduct did not amount to gross misconduct.
- The Tribunal applied the correct legal test for gross misconduct and appropriately exercised its evaluative and discretionary judgment.
- The Petitioner's criticisms were misconceived, and the decision should be sustained.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| South Bucks District Council v Porter (No 2) [2004] 1 W.L.R 1953 |
Requirement for adequate and intelligible reasons in decision-making |
Used to assess whether the Tribunal’s reasons left the reader in real and substantial doubt as to the basis of its decision. |
| Tesco Stores Limited v Secretary of State for the Environment [1995] 1 WLR 759 |
Definition of relevant considerations and error of law for failure to consider material matters |
Guided the court’s analysis on whether the Tribunal took into account irrelevant considerations. |
| SS v Secretary of State for the Home Department 2010 CSIH 72 |
Clarification of error of law and irrationality in tribunal decisions |
Referenced in determining whether the Tribunal’s decision was irrational or legally flawed. |
| Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 |
Standard for irrationality (Wednesbury unreasonableness) |
Applied to assess whether the Tribunal’s decision was so unreasonable that no reasonable tribunal could have reached it. |
| R (ex parte Campbell) v General Medical Council [2005] 1 W.L.R 3488 |
Distinction between misconduct and sanction stages; deference to specialist tribunal |
Used to emphasize the need to separate assessment of conduct from sanction and to accord respect to the Tribunal’s expertise. |
| Rae v Strathclyde Joint Police Board and Others [2005] CSOH 131 |
Nature of Police Appeals Tribunal as a rehearing, not a review |
Supported the principle that the Tribunal may substitute its own view and is not bound by earlier decisions. |
| Mooney v Secretary of State for Work and Pensions 2004 SLT 1141 |
Requirement for modesty and deference in judicial review of tribunal decisions |
Guided the court’s supervisory role, emphasizing respect for the Tribunal’s findings. |
| Wordie Property Co Limited v The Secretary of State for Scotland 1984 SLT 345 |
Standards for adequacy and intelligibility of reasons |
Informed the court’s assessment of the sufficiency of the Tribunal’s reasoning. |
| Barakat v General Medical Council [2013] EWHC 3427 (Admin) |
Contextual reading of reasons and degree of particularity required |
Applied to interpret the Tribunal’s decision as a whole rather than isolated passages. |
| R (Chief Constable of Northumbria Police) v Police Misconduct Panel and M [2022] EWHC 1217 |
Requirements for reasons in disciplinary proceedings |
Supported the principle that reasons must sufficiently inform parties of the Tribunal’s findings. |
| C v The Chief Constable 2020 CSIH 6 |
No reasonable expectation of privacy in WhatsApp messages; admissibility in misconduct proceedings |
Clarified that messages in WhatsApp groups are admissible and privacy claims are limited. |
| Mallon v General Medical Council 2007 SC 426 |
Discretion and evaluation in misconduct classification and sanction |
Referenced to support the Tribunal’s discretion in assessing seriousness and sanction. |
| Chief Constable, Lothian and Borders v Lothian and Borders Police Board [2005] SLT 315 |
Need for impartiality and public confidence in police disciplinary tribunals |
Informed the court’s view on the importance of perceived impartiality in remitting cases. |
| HCA International Ltd v Competition and Markets Authority [2015] 1 WLR 4341 |
Presumption against rehearing before a differently constituted tribunal |
Considered in submissions on whether rehearing should be before the same or different tribunal. |
| Salter v Chief Constable of Dorset 2012 EWCA Civ 1047 |
Importance of public confidence in police disciplinary decisions and standards |
Referenced regarding the public interest in maintaining high standards in policing. |
Court's Reasoning and Analysis
The court undertook a detailed examination of the Tribunal's decision, focusing on whether the reasons provided for classifying the conduct as misconduct rather than gross misconduct were adequate and intelligible. It found that the Tribunal's reasoning was ambiguous and left the informed reader in real and substantial doubt about the basis for its decision. The Tribunal adopted the Respondent's submissions extensively without clear qualification or indication of which parts it accepted or rejected, creating confusion.
The court emphasized the necessity of distinguishing between factors relevant to the assessment of the conduct itself and those relevant to the sanction to be imposed, as required by the 2014 Regulations and established case law. It found that the Tribunal failed to maintain this distinction, conflating mitigating circumstances with the seriousness of the conduct, thereby improperly downgrading the classification of the conduct.
The court also considered the legal test applied by the Tribunal for gross misconduct. While the Tribunal used language suggesting a higher threshold than legally required, the court concluded that, when read as a whole and in context, no error of law arose from this aspect of the decision.
Regarding the Respondent's belief that the messages were private, the court noted the established legal position that there was no reasonable expectation of privacy in such communications, a matter the Tribunal did not adequately address or resolve.
The court gave considerable weight to the supervisory role it holds in judicial review, recognizing the expertise of the Tribunal and the need for modesty in interference, but found that the identified failures in reasoning and consideration of irrelevant factors amounted to errors of law justifying intervention.
On remedy, the court acknowledged the parties' submissions and, while noting the general presumption against rehearing before a differently constituted tribunal, concluded that remitting the matter for reconsideration was appropriate. The court left the question of whether the rehearing should be before the same or a differently constituted tribunal to the specialist tribunal, as it was not substantively raised in the petition.
Holding and Implications
The court SUSTAINED the Petitioner's pleas in law regarding the inadequacy of reasons and the taking into account of irrelevant considerations, and REDUCED the decision of the Police Appeals Tribunal dated 6 July 2023.
The matter is remitted to a Police Appeals Tribunal to proceed in accordance with the court's findings, including addressing the identified errors of law and ensuring adequate reasoning and proper distinction between conduct assessment and sanction.
No new legal precedent was established by this decision. The direct effect is the quashing of the Tribunal's prior decision and ordering a rehearing, thereby ensuring procedural fairness and clarity in future determinations.