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Green & Stewart: guidance on misconduct “charges” and PAT appeals

Our cut off date for police-related legal developments on the UK Police Law Blog was 1 August 2012. This decision was handed down on 1 August 2012 (and it has been a quiet summer / early autumn since then).

In R (Chief Constable of the Derbyshire Constabulary) v Police Appeals Tribunal & Green & Stewart [2012] EWHC 2280 (Admin) it was established that:

  • A Regulation 21 Notice should set out which of the Standards of Professional Behaviour the officer is alleged to have breached
  • A misconduct panel can consider Standards other than those specified in the Regulation 21 Notice if appropriate procedural safeguards are put in place (eg. adjournments so that the officer can consider the new allegations)
  • The PAT’s power under Rule 4(4)(a) of the PAT Rules 2008 is limited to a review of the misconduct panel’s findings. The PAT does not conduct a rehearing. While not strictly a Wednesbury review, the appellant must establish that the misconduct panel’s findings were “unreasonable”

There were two key issues before the Court:

  1. Whether or not the misconduct panel was entitled to find that the officers had breached the Standards of Professional Behaviour other than those listed in the Regulation 21 Notice
  2. What was the correct test to be applied by the PAT in determining an appeal on the ground that the misconduct panel’s finding or the disciplinary action it imposed was unreasonable

New allegations

A Regulation 21 Notice is a written invitation to attend a police misconduct hearing. Regulation 21(1)(a)(ii) specifies that the Notice must identify “the conduct that is the subject matter of the case and how that conduct is alleged to amount to misconduct or gross misconduct as the case may be”. Unlike the predecessor Regulation 14(2) of the Police (Conduct) Regulations 2004, there is no express requirement for the Notice to set out which of the Standard(s) the officer is alleged to have breached.

In Green & Stewart the Regulation 21 Notices alleged that the officers had failed to meet the Standard of Honesty and Integrity and set out the particulars of that allegation. However, the misconduct panel found that the both officers had breached not only the Standard of Honesty and Integrity, but also the Standards of (i) Duties and Responsibilities and (ii) Discreditable Conduct (and, with respect to PC Stewart only, the Standard of (iii) Challenging and Reporting Improper Conduct as well).

The officers complained that this was impermissible and that the Regulation 21 Notices should have identified each of the Standards alleged to have been breached. Beatson J held (at [43]) that, even if this was not a requirement of the Police (Conduct) Regulations 2008 taken on their own, “absent good reason in a particular case, the charge should identify the Standard or Standards of Professional Behaviour alleged to have been breached.”

However, Beatson J went on to deal with the situation where (presumably at its own instigation) the misconduct panel wishes to consider Standards other than those specified in the Regulation 21 Notice (see [44]). The Judge indicated that this was not necessarily be unfair to the officers so long as it was done in a procedurally fair way, such as that at suggested on behalf of the officers and recorded at [39]:

“…if during the course of a hearing, a Panel decided that the officer before them was arguably also or alternatively in breach of another Standard, the correct procedure would be to give notice, and to adjourn to give the officer in question a chance to respond. I accept this submission. Where all that is involved is a different way of characterising the same conduct, such an adjournment can be very short. Where the officer admits the breach of a Standard or Standards not specified in the notice, it will not be necessary to adjourn, and Regulation 34(14)(b) provides the mechanism by which such a breach can be found. … [I]n some cases it will be possible for the Panel to identify possible breaches of additional Standards to those stated in the Regulation 21 notice before the hearing starts. While matters may well arise during a hearing, such pre-hearing identification is desirable where it is practicable.”

Standard of review by the PAT

The ground of appeal to the PAT under r.4(4)(a) of the Police Appeal Tribunal Rules 2008 is “that the finding or disciplinary action imposed was unreasonable”. The other grounds are fresh evidence (r.4(4)(b)) and a breach of procedure or other unfairness (r.4(4)(c)).

A recent trio of Administrative Court decisions ending in Green & Stewart has considered the meaning of “unreasonable” in r.4(4)(a). Does it mean a limited review for Wednesbury reasonableness or something more extensive?

In reaching his decision in Green & Stewart, Beatson J referred to the decisions in R (Montgomery) v PAT [2012] EWHC 935 (Admin) and R (Chief Constable of Hampshire Police) v PAT  & McClean [2012] EHWC 746:

“[33] … The word “reasonable” has a certain chameleon-like quality and, as always, its precise meaning is determined by the context in which it is used. On behalf of the first interested party, Mr Green, supported by Mr Williamson on behalf of the second interested party, submitted that the statutory context, the language of the 2008 Appeals Rules, and the fact that the Police Appeals Tribunal is a specialist Tribunal chaired by a lawyer, normally Queen’s Counsel, show that the threshold is not the very high threshold of “Wednesbury unreasonableness” as used by the Administrative Court in the exercise of its supervisory jurisdiction over governmental and other public bodies….

[36] The decisions in the Montgomery and Hampshire Constabulary cases are directly in point because they concern appeals to the Police Appeals Tribunal. In the latter case Mitting J (at [25]) described the test as “a Wednesbury test shorn of technicality”. In the former Collins J stated (at [18]) that, in order to be fair, “unreasonable” in the context of Rule 4(4)(a) means that “the [Police Appeals Tribunal] will look at the material before it and decide on all that material whether or not it was specifically referred to or decided by the Panel, [and] whether in its view it was a reasonable decision in the particular case”. He added that “to that extent, I think that it is not helpful to apply a strict legal definition in Wednesbury terms of the word ‘reasonable’”.

[37]…. I have concluded that the [the PAT’s] decision, referring as it does to a “Wednesbury-type test”, and … “whether the decision on finding or outcome was within the range of reasonable findings or outcomes to which the Panel could have arrived”, are essentially correct. But the [statement] that “[t]he test for ‘reasonableness’ is the Wednesbury test” taken alone, and unqualified, is misleading….”


Natural Justice and basic procedural fairness dictates that an officer should know the “charges” against him or her before they are determined by a misconduct panel. The importance of precisely framed charges was emphasised in Strouthos v London Underground [2004] EWCA Civ 402, where  Stanley Burnton J said at [12]

“It is a basic proposition, whether in criminal or disciplinary proceedings, that the charge against the defendant or the employee facing dismissal should be precisely framed, and that evidence should be confined to the particulars given in the charge.”

Vague charges have formed the basis for successful judicial review challenges to decisions in the police misconduct field. In R (Wheeler) v AC House [2008] EWHC 439 (Admin)

Stanley Burnton J said:

“[6] Vagueness is a ground for judicial review if it leads to unfairness in the proceedings, and the danger with a vague charge is that the parties, and in particular the respondent… do not know with some precision what is alleged against them and therefore are not fully able to address those matters in the course of the hearing….”

[7] I refer to the vagueness of the charges in the hope that in future charges will be more focused and more specific. It is sufficient if a charge is particularised subsequent to its being first formulated, but certainly it should be sufficiently particularised well before the hearing so that the respondent to disciplinary charges knows not just what it is alleged he failed to do, but in what respects he failed, so that he can then see whether or not, consistent with his other duties, he could or should have done that which it is alleged he should have done.”

Against this backdrop, the conclusion that a Regulation 21 Notice must set out the Standards of Professional Behaviour that the officer is alleged to have breached is perhaps an obvious one.

In this case the Regulation 21 Notice was not deficient per se. Rather, the misconduct panel decided to scrutinise the officers’ conduct under different Standards to those specified in the Notices. Beatson J proposed a sensible way of dealing with this situation, avoiding (if not entirely removing) any unfairness to the officer. The key is to inform officers that breaches of additional Standards might be considered by the misconduct panel as early as possible, with the grant of adjournments to enable the officer and/or those representing them to prepare a response.

One of the marked changes brought about by the Police (Conduct) Regulations 2008 was to the basis on which an appeal can made from the findings of a misconduct panel to the PAT

Under the Police (Conduct) Regulations 2004 an appeal to the PAT was (at least potentially) a full rehearing, rather than more limited ‘review’ of the misconduct panel’s decision (see: R (Chief Constable of Avon and Somerset) v PAT [2004] EWHC 220 (Admin)).

As to the intensity of the PAT’s ‘review’ power, the meaning of “unreasonable” under r.4(4)(a) of the PAT Rules 2008 is still not entirely clear. However, it seems now to be settled that:

  • The PAT performs a review of the misconduct panel’s findings. It is not a rehearing where the PAT can overturn the misconduct panel’s finding simply because it has reached a different conclusion
  • The PAT does not apply a strict or technical Wednesbury test in determining whether the misconduct panel’s decision was “reasonable”
  • The threshold of “unreasonableness” is still a significant one

At least one other case considering the extent of the PAT’s powers is pending before the Administrative Court and we will bring you a summary of the decision as soon as it is handed down.