Back in October 2017, The College of Policing issued new guidance specifically to those who preside over Police Misconduct Proceedings. This was to ensure consistent and proportionate determinations by reference to relevant criteria which included the officer’s record, culpability for the misconduct, the harm caused, aggravating factors and mitigation.
The guidance is, in my opinion, clear and comprehensive and the decision to publish it very commendable. But I question why the guidance is said to be issued only to those chairing misconduct proceedings, i.e. Senior and Chief Officers and independent legally qualified Chairs and not to all those involved in the entire misconduct investigation (from start to finish) and in particular, those involved in determining the level of misconduct once an allegation has been investigated (i.e. ‘the Appropriate Authority’).
What do I mean?
Misconduct for Police Officers will involve a breach of the Standards of Professional Behaviour which are;
Honesty and Integrity
Police officers are honest, act with integrity and do not compromise or abuse their position.
Authority, Respect and Courtesy
Police officers act with self-control and tolerance, treating members of the public and colleagues with respect and courtesy.
Police officers do not abuse their powers or authority and respect the rights of all
Equality and Diversity
Police officers act with fairness and impartiality. They do not discriminate unlawfully or unfairly.
Use of Force
Police officers only use force to the extent that it is necessary, proportionate and
reasonable in all the circumstances.
Orders and Instructions
Police officers only give and carry out lawful orders and instructions.
Police officers abide by police regulations, force policies and lawful orders.
Duties and Responsibilities
Police officers are diligent in the exercise of their duties and responsibilities.
Police officers treat information with respect and access or disclose it only in the proper course of police duties.
Fitness for Duty
Police officers when on duty or presenting themselves for duty are fit to carry out their duties and responsibilities.
Police officers behave in a manner which does not discredit the police service or
undermine public confidence, whether on or off duty.
Challenging and Reporting Improper Conduct
Police officers report, challenge or take action against the conduct of colleagues which has fallen below the standards of professional behaviour expected.
Each case of wrongdoing is categorised as either misconduct or gross misconduct. Misconduct is a breach of the standards of professional behaviour whilst gross misconduct is a breach of the standards of professional behaviour so serious that dismissal is justified.
An allegation of misconduct can lead to an internal Misconduct Meeting, whereas an allegation of gross misconduct leads to a Misconduct Hearing which is usually held in public.
An appearance at a Misconduct Hearing can lead to the officer being sacked, whilst a Misconduct Meeting’s maximum penalty is a final written warning. The distinction is not only pertinent as regards outcome but also public scrutiny; only Misconduct Hearings (with some exceptions) are held in public.
I have long considered Professional Standard Departments to be too protective of those Officers accused of misconduct and their efforts to keep complaints ‘in house’ suspicious. Yes, sometimes there is a right of appeal to the ‘independent’ IOPC that is exercised and yes, sometimes the IOPC will intervene and reclassify misconduct as gross misconduct and direct consideration by a Misconduct Hearing but in my experience this rarely happens and too often, allegations of misconduct which are clearly serious and ‘gross’ are dealt with, or ‘covered up’ in house. Take for example the case of PC Norman, which you can read about here.
One case that does buck the trend is that involving a client I am currently representing.
Back in April 2017, my client was at home when she was visited by an Enforcement Officer in respect of an outstanding/unsatisfied debt.
My client went outside to meet the Enforcement Officer and noticed that her vehicle had been fixed with a clamp and a seizure notice.
My client also noted another vehicle, parked in front of her own, which she believed, at that time, to belong to the Enforcement Officer.
My client did not have the financial resources to immediately settle the debt and was content to allow seizure of her vehicle.
At or about this time, my client’s son and cousin also arrived at the scene.
As my client believed that her vehicle was to be seized imminently, she began to remove personal items from the car and transfer these to her home address.
Suddenly and unexpectedly, the Enforcement Officer alleged that a parcel had been removed from his vehicle and that damage had been caused to his vehicle.
My client advised the Enforcement Officer she had no knowledge whatsoever of either issue.
The Enforcement Officer indicated his intentions to contact the Police and my client witnessed a phone call taking place.
My client suggested to her son and cousin that they should leave the area, in order that they did not become embroiled with the Enforcement Officer’s spurious allegations.
My client’s advice was heeded and the two males walked off.
My client overheard the Enforcement Officer providing a description to the Police of her son and cousin and their direction of travel.
My client collected the final few personal items from her car and went inside.
A few minutes later, a Police Sergeant arrived. He was aggressive from the outset. He advised my client that he was looking for an unspecified parcel, wished to enter her home to look for it and if she didn’t open her front door voluntarily, he would force entry.
By this stage, a second uniformed officer arrived at the scene.
The Officer continued to insist that he be allowed entry, otherwise he would force entry.
My client refused to allow the Officers entry and so the Officers attempted to force entry to my client’s home.
Concerned that the Sergeant would cause damage, my client agreed to allow the Officers access and opened her front door. My client was however anxious to ensure that the Enforcement Officer did not gain access and so locked the door behind her.
The Sergeant demanded that my client unlock the door and she reluctantly complied. The Sergeant then demanded that my client hand over her house keys. My client refused.
Both Officers then moved towards my client, who fell onto her sofa. The Officers then attempted to physically remove the keys from my client, which my client resisted.
During the struggle, my client received a number of heavy blows (which she believes were punches from one or both officers) to her head.
To her horror, my client at one stage witnessed the Sergeant wielding a CS gas incapacitant, which he threatened to deploy against her.
Eventually, both officers managed to overpower my client and seize her house keys. My client was then restrained in handcuffs and advised that she was under arrest for “breach of the peace”.
The Sergeant proceeded to open the front door and invited the Enforcement Officer to enter the house and recover whatever he “wanted”. To be clear, the Enforcement Officer had no right to enter in the circumstances, nor did the Sergeant have power to let him enter. This was a gross disturbance of the privacy of my clients’ home, a trespass invited and encouraged by the Officer who had attacked her.
Despite the motivations of the Sergeant being expressed as ‘looking for a parcel’, no such search was carried out.
The Enforcement Officer then carried out a search of the address and concluded that there were no items of sufficient value to satisfy the remainder of the debt and left.
My client was then released from her handcuffs.
The Police Officers and the Enforcement Officer then drove away from the scene.
The next day my client attended her local Police Station to report the conduct of the Officers and was subsequently contacted by Professional Standards who recorded the complaint and commenced an investigation.
Misconduct or gross misconduct?
Upon initial assessment, an Officer considered the Sergeant’s alleged actions to constitute gross misconduct, specifically that
“it is alleged that the Sergeant has abused his authority and had gained unlawful entry to the complainant’s property. Whilst within the property has used force on the complainant when arresting for a breach of the peace, in circumstances that may make the arrest unlawful. The complainant states that she has been hit several times and threatened with CS by the Sergeant. Taking into account the chain of events, I consider the totality of the conduct alleged if proven or admitted to be a breach of the standards of professional behaviour so serious that dismissal would be justified. Therefore on the information known at this time I assess this as Gross Misconduct which could proceed to a Misconduct Hearing. The use of force could also amount to a criminal assault”.
The complaint was then investigated and the evidence was reviewed and assessed by the Force’s Appropriate Authority, a Detective Superintendent who clearly identified the failings of both Officers who had entered my clients’ home and which to a large extent were admitted. Both Officers accepted in interview that they did not have any lawful powers to enter and/or search my client’s property. As such any force used upon my client whilst in her home would also be unreasonable and excessive.
However, the Appropriate Authority took a somewhat different view as to the appropriate outcome than had the initial reviewing Officer. She considered the case suitable for a referral to a Misconduct Meeting only. Dismissal, in her view, “could not be justified” and “rehabilitation through the sanctions available at a misconduct meeting” was deemed appropriate.
With my help, my client appealed this decision to the IOPC. We argued that the Sergeant’s behaviour clearly constituted gross misconduct and that determination of the outcome by a Misconduct Hearing was appropriate.
The IOPC, on review, agreed with us and found as follows;
The Sergeant was a Senior Officer with 15 years’ experience as a Police Officer.
It is entirely unacceptable for Police Officers who are responsible for enforcing the law, to break the law themselves, the seriousness of the offence must be considered. In this case ……, both Officers’ actions were unlawful in forcing entry, in arresting and in their use of force. Whilst the Officers sought to explain their actions, the fact remains that they did not have any police powers to take the actions that they did.
Many people come into contact with the Police when they are at a particularly difficult or distressing point in their lives and they are entitled to be treated professionally. Even though the Police were called by the Enforcement Officer as a result of his car being damaged and a package being stolen from his car, the complainant was in a vulnerable situation, in terms of her social circumstance, she was experiencing financial difficulties and dealing with a distressing situation with a bailiff. The Sergeant paid no regard to this and concentrated immediately on assisting the bailiff and in gaining entry into the property and not in investigating properly the allegation of crime by the Enforcement Officer.
The complainant was [wrongfully arrested and caused physical injuries] as a result of the use of force by both Officers.
In interview, the Sergeant stated he was direct, possibly too direct and abrupt in his approach to the Complainant but denied being aggressive. The evidence suggested otherwise. When interviewed, the Sergeant had the opportunity to reflect upon and pass comment on his behaviour and accept responsibility for his actions. He did not, particularly given he had no powers to do any of the actions taken by him. The Sergeant failed to recognise how his behaviour had had an impact on the Complainant.
In short, the IOPC found that in light of these aggravating factors in terms of the culpability and harm caused, specifically the abuse of trust, my client’s vulnerability and cumulatively, the multiple allegations and breaches of standards of behaviour, this was clearly a serious case that warranted referral to a Police Misconduct Hearing and as such the Force in question was directed to hold a Misconduct Hearing. Months later, the Misconduct Hearing took place, at the conclusion of which the Sergeant was dismissed for gross misuse of his Police powers.
However, the Sergeant appealed to the Police Appeals Tribunal (PAT) arguing that his dismissal was ‘unsafe’ because of an impression of actual or apparent bias on the part of the Misconduct Hearing Panel (another story, another blog). The PAT agreed and accordingly a second Misconduct Hearing was convened.
Following that second hearing, it was decided once again that the Sergeant should be dismissed. The new decision, of course, gave the Sergeant a fresh right of appeal and yes, he lodged a further appeal. He now has a new representative and a new angle; the sanction imposed (i.e. dismissal), he argues, was too harsh and should be replaced with a lesser sanction.
Part of the Sergeant’s new appeal relates to the conduct of the Appropriate Authority, specifically her initial decision that his case was not gross misconduct. Obviously, I feel that initial decision was wrong (as did the IOPC) but it is concerning to me that the Appropriate Authority’s apparent inexperience and lack of training led her to make that incorrect decision, giving the Sergeant a ‘lifeline’ in this case that I do not think he deserves. Perhaps if the AA had had better grounding in the COP Guidance then she would not have made that incorrect decision in the first place.
I remain very optimistic that the Sergeant’s latest appeal – notwithstanding the fact that Police Officers committing acts of misconduct often seem to have ‘more lives than a cat’ – will be rejected and his dismissal confirmed. It is the only appropriate sanction for his gross abuse of power. What is concerning, however, is that without my assistance, leading to the intervention of the IOPC, the Appropriate Authority would have classed this case as “simple” misconduct only (not gross), leading to the Sergeant avoiding the appropriate sanction (dismissal) and being given a mere ‘slap on the wrist’ by comparison.
Sadly, this is yet another example of why the Police cannot yet be trusted to ‘police themselves’ when it comes to complaint investigations, and why the College of Police Guidance should be inculcated at all levels of the decision making chain – from the Officers initially reviewing the complaint, to the Appropriate Authority and upwards – or else it will be pointless, as case of gross misconduct may never come before the Hearing Panels to whom the Guidance is currently directed, allowing rogue Officers such as the Sergeant in this case, to escape justice. A more wider dissemination of the Guidance would, in my opinion, help to ensure a more healthy, unbiased and effective culture in the Police complaints system.