Lasting Powers of Attorney: recent key developments
R (on the application of Darren Williams) v Police Appeals Tribunal  EWHC 2708 (Admin)
For some 27 years, Darren Williams, (the “claimant”), served as a police constable with the Metropolitan Police Service (the “MPS”). He attained the rank of Detective Chief Superintendent and, in January 2012, was appointed Borough Commander of Merton. At a misconduct hearing on 30 April 2015, the claimant admitted five incidents of misconduct, which the panel found to be gross misconduct. The panel concluded that the appropriate sanction was that he be dismissed without notice. On 15 February 2016, the Police Appeals Tribunal (the “PAT”), to which the claimant had appealed, concluded that the decision and sanction of the panel was not unreasonable, and so dismissed his appeal. The claimant was thus dismissed from his post four months before completing his 30 years of pensionable service. His pension entitlements were limited accordingly.
The basis of the challenge
The claimant argued that both the panel and the PAT had made an error of law in reaching their decisions. In particular, he argued that, inter alia, both bodies had misapplied the decisions in Bolton v Law Society  1 WLR 512 (“Bolton”) and Salter v Chief Constable of Dorset  EWCA Civ 1047 (“Salter”) as to the weight which disciplinary panels and tribunals should attach to personal mitigation. These decisions establish that personal mitigation should carry limited weight in cases where dishonesty or lack of integrity is established in relation to a finding of misconduct. On behalf of the claimant, it was argued that the panel and the PAT had unlawfully extended this principle to a case where neither dishonesty nor a lack of integrity was in issue. Accordingly, and after exhausting the appeals process available to police officers in police disciplinary proceedings, the claimant sought a quashing order of the PAT’s decision and the substitution of it for a final written warning. In the alternative, the claimant invited the court to quash the decision to dismiss and remit the case for a rehearing before a differently-constituted PAT.
At the outset, it should be noted that the claimant had to establish a public law wrong in order to bring a claim for judicial review. Judicial review is not available simply in order to further pursue an appeal. As noted by Burnett J in Salter, at paragraph 19:
“Proceedings in the Administrative Court seeking to challenge the decision of a Police Appeals Tribunal do not arise by way of appeal, but by way of a claim for judicial review. In those circumstances, a claimant in judicial review proceedings must establish a public law error before the decision of that Tribunal could be quashed”.
The claimant had cited extensive medical and character evidence during the disciplinary proceedings. The panel accepted that the claimant had performed the role of Borough Commander to an extremely high standard, that he was a good officer and a good man, and that he had “undoubtedly served the MPS and the community well to an extremely high standard for 27 years”. It was also agreed that, with hindsight, the claimant’s work as Borough Commander had aggravated the consequences of the depressive illness which had first been diagnosed in 2010. However, the panel could not accept the submission that the misconduct was a consequence of the claimant’s medical condition. Crucially, the panel stated that:
“… although this case is not concerned with operational dishonesty, the panel do think that the observations of the Court of Appeal in Salter v Ch Constable of Dorset  are relevant. In that case Maurice Kay LJ at paragraph 23 pointed out that because the purpose of misconduct proceedings was the maintenance of public confidence in the police service, the potential of ‘personal mitigation’ is ‘necessarily limited’. The panel is required to balance DCS William’s exemplary and long service against the need to maintain public confidence in and the reputation of the MPS.”
The PAT agreed with the panel’s analysis and concluded that the principles set out by Burnett J and Maurice Kay LJ in Salter are of general application and can be applied, where appropriate, in all cases of police misconduct. As noted, it was this that the claimant sought to challenge through a claim for judicial review.
The decision of the court
Holroyde J rejected the claimant’s submissions that the Salter principle should be confined to cases of dishonesty or lack of integrity. Instead, he held that Salter was of wider application. Holroyde J noted, at paragraph 66, that:
“In my judgment, the importance of maintaining public confidence in and respect for the police service is constant, regardless of the nature of the gross misconduct under consideration. What may vary will be the extent to which the particular gross misconduct threatens the preservation of such confidence and respect. The more it does so, the less weight can be given to personal mitigation. Gross misconduct involving dishonesty or lack of integrity will by its very nature be a serious threat: save perhaps in wholly exceptional circumstances, the public could have no confidence in a police force which allowed a convicted fraudster to continue in service. Gross misconduct involving a lack of integrity will often also be a serious threat. But other forms of gross misconduct may also pose a serious threat, and breach of any of the Standards may be capable of causing great harm to the public’s confidence in and respect for the police”.
The learned judge noted at paragraph 67 that his ruling did “not mean, of course, that personal mitigation is to be ignored … [o]n the contrary, it must always be taken into account”. However, the weight to be attached to such personal mitigation must always be fact specific and, given the strong public interest in the maintenance of respect and confidence in the police, it was right that personal mitigation should be afforded less weight than these other points.
The decision of the court in Williams is of wider application and is relevant to other professions. It was accepted by all the parties in the case that “the principles relating to police disciplinary proceedings are the same as those relating to disciplinary proceedings before other professional bodies” (paragraph 53).
Holroyde J, at paragraph 64, explained why, with reference to the purpose of sanctions imposed by disciplinary panels, personal mitigation was of less importance:
“ … the purpose of the sanction is not primarily punitive, and often not punitive at all: the purpose is to maintain public confidence in and respect for the police service or the profession concerned. Personal mitigation which may provide a ground for reducing the punishment which would otherwise be imposed for a criminal offence cannot therefore have the same effect in disciplinary proceedings which have a different, and wholly or largely non-punitive, purpose. The second is that in criminal proceedings, a defendant’s personal mitigation may enable him to distinguish himself from others convicted of similar offences, and so to demonstrate that the normal punishment for his offence would be unduly severe in his case. In contrast, a defaulting police officer or professional person will usually be able to adduce evidence of good character and to point to very severe consequences if dismissed or excluded from his or her profession”.
Although cases will always be fact specific, tribunals in disciplinary proceedings will, as a matter of law, be entitled to conclude that personal mitigation is of secondary importance to the purpose of ensuring public confidence in a profession. Dismissal, notwithstanding otherwise compelling personal mitigation, is within the range of sanctions open to tribunals in such circumstances.
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