This note is intended to assist Appropriate Authorities (“AAs”), Professional Standards Departments (“PSDs”) and hearings units to progress misconduct proceedings under the Police (Conduct) Regulations 2012 and 2020 (“PCR”), during the outbreak of COVID-19. We suggest that AAs should try to proceed with hearings by video and/or telephone where possible, and we explore the practical implications of doing so.
What follows are simply our suggestions. They carry no legal authority. We have endeavoured to keep this document brief and to avoid duplication of other more general or analogous guidance. Any person concerned with misconduct procedures should keep track of the general position in respect of the COVID-19 outbreak and the advice from HM Government at https://www.gov.uk/coronavirus.
No bright line between private and public tweeting for professional misconduct
It is possible for the social media activity of professionals to amount to professional misconduct, even if seemingly made in a personal capacity and where freedom of speech is claimed. The case of Diggins v Bar Standards Board  EWHC 467 (Admin), holds that there is no “bright line” between conduct that falls within the private realm as opposed to that which is sufficiently public to engage a professional disciplinary jurisdiction. It is sometimes argued in police misconduct hearings that private social-media behaviour of officers falls outwith professional misconduct – that might be the case on particular facts but the instant case shows that this is not necessarily so.
Short shrift for bias and recusal submissions in police misconduct hearings
In R (Short) v (1) Police Misconduct Tribunal (2) Chief Constable of Bedfordshire Police  EWHC 385 (Admin), Mr Justice Saini delivered a resounding reaffirmation that misconduct hearing panels are well able to put irrelevant and prejudicial matters out of their minds rather than having to recuse themselves and that they are able to determine their own procedures, just like civil courts and tribunals.
The necessity for structured decisions on disciplinary sanction
The Administrative Court has quashed a misconduct panel’s decision to impose a final written warning on the basis that the panel failed to follow the correct approach outlined in the College of Policing’s Guidance on Outcomes in Police Misconduct Proceedings (“the Guidance”): R (Chief Constable of Greater Manchester Police) v Police Misconduct Panel (HHJ Pelling QC, 13 November 2018). The case is on Westlaw but not Bailii. It is, however, a case of considerable importance. It states that when reaching a decision on disciplinary sanction, a panel must not only follow a structured approach to its decision making but show that it has done so in its written reasons.
Decisions on disciplinary sanction must be properly structured
Police misconduct panels must explain their decisions on disciplinary outcome in a structured manner, referring to the seriousness of the misconduct, the purpose of disciplinary sanctions and the most appropriate sanction for the misconduct. The High Court has quashed a misconduct panel’s decision to impose a final written warning on the basis that the panel failed to do this: R (Chief Constable of Greater Manchester Police) v (1) Police Misconduct Panel (2) Roscoe (2018) Case no 698/2018.