Acting to stop harm: the FCA and Appointed Representatives
Decision date: 31 July 2012
Court of Appeal affirms that operational integrity of the police is of fundamental importance and any breach will almost always result in erasure or resignation.
Neil Salter, a police officer of 22 years unblemished experience, admitted a disciplinary charge at a Misconduct Hearing in August 2009. The charge was essentially as follow; that he had, in October 2008, instructed a junior officer to locate and destroy a mobile telephone which had belonged to a recently deceased officer, despite the fact that he knew it was required as evidence at the Inquest into the officer’s death. The reason, he explained, for his actions was that he was aware that on that telephone was evidence of an extra-marital affair that the deceased had been having with another member of the police force. His intention was to protect the deceased’s family from discovering the other relationship. Neil Salter had from the outset accepted full responsibility for those actions. It was further admitted by him that that conduct did not meet the appropriate standard in Regulation 3(1), Schedule 1, Paragraph 1 of the Police (Conduct) Regulations 2004, in that he did not behave with honesty or integrity.
Despite hearing Mr Salter’s extensive mitigation, the Panel found that his actions amounted to a very serious breach of integrity and required him to resign from the Force. The Chief Constable reviewed that decision, conducting an oral hearing on 11 November 2009, his role being to review the decision and not substitute his own. He concluded that the sanction imposed at the Misconduct Hearing was both justified and appropriate in the circumstances given that Mr Salter’s honesty and integrity had been ‘irreparably damaged’. The point was also made that given the finding, Mr Salter would be extremely limited in his utility, given that he could not be put forward to the Crown Prosecution Service or the Courts as a witness of truth.
Mr Salter appealed to the Police Appeals Tribunal (PAT), whose role under its 1999 Rules was to consider the matter afresh and reach its own conclusion, with due regard to the body from whom the appeal was brought. The PAT agreed with the sentiments and observations of the panel and the Chief Constable, but placed great weight on the mitigation in this case. It was their view that if the public was fully informed as to the facts of this particular case, they would not expect nor wish that officer to lose his job of 22 years. They found that this behaviour was a ‘one off aberration in an otherwise unblemished career’, and that the sentiments of the Chief Constable in relation to his future use as an officer was pessimistic. They directed that Mr Salter be reduced in rank to Police Constable and reinstated to the Dorset Police.
The Chief Constable successfully applied for judicial review of that decision. Burnett J, quoted from the well-known judgement of Sir Thomas Bingham MR in Bolton v Law Society  1 WLR 512 that any ‘a profession’s most valuable asset is its collective reputation and the confidence which that inspires’ and referred to the endorsement of those principles in the case of Salisbury v Law Society  1 WLR 1286. It is established law that where a solicitor has discharged his duties with anything less than complete integrity and trustworthiness the Tribunal must, apart from ‘a very small residual category of cases’ mark that behaviour with erasure. Burnett J went further and concluded that ‘the reasons which underpin the strict approach applied to solicitors and barristers apply with equal force to police officers’. The PAT had not, in his view, approached the decision on the basis that a finding of operational dishonesty normally called for dismissal or a requirement to resign. It had not identified the features of the misconduct which supported the view that this case required an exception. His view was that the PAT had given great weight to personal mitigation in circumstances where it was not appropriate to do so. The decision of the PAT was therefore quashed and Mr Salter’s appeal to the PAT dismissed. However, permission to appeal to the Court of Appeal was granted on the grounds that the case raised novel questions in relation to police discipline.
Maurice Kay LJ giving judgement for the Court, endorsed the approach taken by Burnett J as correctly recognising that ‘a sanction resulting in the officer concerned having to leave the force will be the usual consequence of operational dishonesty’ but admitting of the possibility of exceptional cases. If a Panel puts a case into the ‘exceptional’ category, it is incumbent upon them to explain why. It was held that Burnett J was right to ‘read across’ the solicitors disciplinary cases; ‘although police officers do not have a fiduciary client relationship with individual members of the public or the public at large, they do carry out vital public functions in which it is imperative that the public have confidence in them’. The submission by Mr Salter that the decision of Burnett J was irrational was rejected; on any view this was ‘serious impropriety’ which was ‘inimical to the office of constable’. Whilst sympathy was expressed for Mr Salter, the potential of mitigation is necessarily limited in this case becsue of the importance of public confidence.
Stanley Burton LJ made a further point; it was inappropriate for the PAT to have recommended a demotion to police constable in a case such as this. Where there are questions of competence and ability, demotion may be appropriate, but where matters related to integrity, there should be disqualification from any role be it supervisory or otherwise. He agreed with the Chief Constable that Mr Salter’s finding would always have to be disclosed, seriously affecting his credibility and negating any future useful deployment.
This case expressly widens the ‘Bolton’ and ‘Salisbury’ principles to police officers; dishonesty in such a profession will almost inevitably lead to a strike off. If a panel does not reach that decision, great efforts must be taken to adequately explain what makes the case exceptional. Personal mitigation alone will almost certainly not be sufficient to place it in that category.
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