O'Connor, R (On the Application Of) v Panel Chair (Police Misconduct Panel) (Rev1)

Factual and Procedural Background

This appeal concerns a judicial review claim dismissed by the Administrative Court regarding a Police Misconduct Panel's decision. The Panel found that a former police officer, referred to here as the Interested Party, used his position to sexually harass the Appellant both in person and via email, constituting gross misconduct. The Panel imposed a sanction of a final written warning. The Appellant challenges the Panel's approach, assessment of conduct, and sanction, not the finding of gross misconduct itself. Permission to appeal was granted on 31 May 2024.

On 23 October 2011, the Appellant was a victim of a violent attempted street robbery resulting in injuries. The Appellant reported the crime and was taken to a police station. Although another officer was assigned as Officer in the Case, the Interested Party, then a Detective Sergeant and supervisor, took the Appellant’s statement. During this, he asked intrusive personal questions and invited the Appellant to dinner, which she declined.

On 24 October 2011, the Appellant emailed the Interested Party regarding a fingerprint examination. In response, he sent multiple emails asking her out, making inappropriate comments about her appearance, and dismissing her objections. The Appellant found this behaviour distressing and posted excerpts of the emails publicly. The incident had significant psychological impact on the Appellant, including entering an abusive relationship and reluctance to seek police help, delaying her formal complaint until 2020.

Following the complaint, police disciplinary proceedings were initiated under the Police Reform Act 2002 and relevant 2020 Regulations. The Independent Office for Police Conduct decided on the investigation. The Interested Party admitted some misconduct but denied gross misconduct. A hearing found breaches of professional standards amounting to gross misconduct, with the Panel imposing a final written warning after considering aggravating and mitigating factors.

The Appellant sought judicial review of the Panel’s decision and sanction, which was dismissed by the Administrative Court. The appeal focuses on the Panel’s application of statutory guidance and the appropriateness of the sanction.

Legal Issues Presented

1. Whether the Police Misconduct Panel was required to follow a "structured approach" as mandated by the Outcomes Guidance when determining sanction.
2. Whether the Panel lawfully evaluated the seriousness of the Interested Party’s gross misconduct in accordance with the Outcomes Guidance, particularly regarding assessment of culpability and harm.
3. Whether it was rational and lawful for the Panel to impose a final written warning as sanction despite the seriousness of the gross misconduct.

Arguments of the Parties

Appellant's Arguments

• The Panel failed to follow the mandated "structured approach" required by the Outcomes Guidance, which reflects the three-stage approach set out in Fuglers LLP and supported by Roscoe.
• The Panel did not properly assess the seriousness of the misconduct, failing to evaluate culpability and harm adequately, and improperly included personal mitigation at the seriousness stage.
• The listing of aggravating and mitigating factors without analysis does not satisfy the requirement to assess seriousness, constituting a public law error.
• The sanction of a final written warning was inappropriate given the nature and impact of the misconduct.

Interested Party's Arguments

• The Administrative Court correctly found that a "structured approach" was not strictly mandated but that the Panel must follow the three-stage approach from Fuglers, considering culpability, harm, aggravating, and mitigating factors, which can overlap.
• The Panel addressed all relevant matters substantively, including aggravating factors related to culpability and harm, such as breach of trust and victim vulnerability.
• Although the Panel did not explicitly analyse culpability or harm separately, the overall reasoning was sufficient and consistent with the Outcomes Guidance.
• The term "structured approach" as used in Roscoe has caused confusion; the Panel’s discretion and the flexible application of the guidance were properly respected.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the nature and role of the Outcomes Guidance in police misconduct proceedings, emphasizing its function as a general framework rather than a prescriptive template. It rejected the Appellant’s contention that the Panel was required to adopt a rigid "structured approach" to decision-making, affirming that discretion remains with the Panel to assess the facts and circumstances of each case.

The court acknowledged the three-stage approach from Fuglers: assessing seriousness, considering the purpose of sanctions, and selecting an appropriate sanction. Within the seriousness assessment, four factors—culpability, harm, aggravating, and mitigating factors—are relevant and can overlap.

While the Panel identified aggravating and mitigating factors, it failed to provide an adequate analysis of the seriousness of misconduct, particularly lacking explicit assessment of culpability and harm. The court found that listing factors without evaluating their weight or impact was insufficient and constituted an error of law. The Panel also erred by including personal mitigation (such as commendations and character references) within the seriousness assessment, contrary to guidance distinguishing personal mitigation from factors relevant to seriousness.

The court held that the absence of clear reasoning on seriousness, culpability, and harm undermined the factual basis for the sanction imposed. The Panel’s decision to impose a final written warning lacked sufficient explanation to justify why more severe sanctions were inappropriate, rendering the sanction decision unlawful.

The court further noted that the misconduct involved deliberate, targeted sexual impropriety by a police officer in a position of trust towards a vulnerable victim, factors that ordinarily would warrant serious sanction. The passage of time and intervening good conduct were relevant but did not diminish the seriousness of the original misconduct.

Accordingly, the court allowed the appeal ground relating to the evaluation of seriousness and sanction, quashing the sanction decision and remitting the matter to a Police Misconduct Panel for reconsideration. The court confirmed that the Panel’s discretion remains intact but must be exercised with proper legal reasoning consistent with the Outcomes Guidance.

Holding and Implications

The court’s final decision was to ALLOW IN PART the appeal. Specifically:

• The court dismissed the ground that a mandated "structured approach" was required by the Outcomes Guidance, affirming the Panel’s discretion in assessing misconduct and sanction.
• The court found that the Panel erred in law by failing to adequately analyse the seriousness of the misconduct, particularly culpability and harm, and by improperly including personal mitigation within that assessment.
• The sanction of a final written warning was quashed due to inadequate reasoning and analysis.
• The case was remitted to a Police Misconduct Panel, preferably the same Panel, to reconsider the appropriate sanction consistent with the court’s guidance.

The direct effect of this decision is to require a fresh determination of sanction for the Interested Party’s gross misconduct. No new legal precedent was established beyond clarifying the application and scope of the Outcomes Guidance and the need for reasoned analysis in misconduct proceedings. The decision reinforces the principle that disciplinary panels must exercise discretion with proper legal reasoning while retaining flexibility to address the facts of each case.