British Transport Police overturn decision to allow police officer to keep his job after harassment

Chief Constable of British Transport Police v Police Misconduct Panel [2023] EWHC 589

Executive summary

A police misconduct panel found that a police officer had spoken to and sexually harassed a lone woman whom he encountered jogging. They found gross misconduct and delivered a final written warning. The Chief Constable judicially reviewed the decision claiming that it was irrational and he should have been dismissed. The Administrative Court agreed and quashed the panel’s decision.

The facts

During the pandemic lockdown an off-duty police officer approached a lone female pedestrian, whom he did not know, having got out of his car alongside her, leaving the engine running. He engaged her in conversation, for no policing purpose, during which he observed that she was "too curvy to be Asian" and showed her his warrant card to demonstrate that he was a police officer. She informed him that she was meeting someone and that she was "taken"; she also messaged a friend saying "help me". He stood close to her to show her photographs of himself working out in the gym, on his mobile telephone. He asked for her telephone number and immediately called her to check she had given him the correct number. Before she left, he asked her for a hug. After she walked away, he drove alongside her at a slow speed seeking to wave at her. That evening he messaged her, addressing her as "babe’’.

The tribunal accepted these facts and found a breach of several standards of professional behaviour including honesty and integrity; authority, respect and courtesy; equality and diversity; duties and responsibilities; and discreditable conduct. They found gross misconduct but delivered a final written warning. The panel took into account, amongst other things, the officer’s previous record, expressions of remorse and opportunities for management action.

The legal challenge and decision

The basis of the challenge was that the decision was irrational. The tribunal also failed to take a structured approach in reaching the outcome. The court observed that this was an unsolicited approach on a lone female followed by sexual harassment and racial stereotyping. It failed properly to grasp the seriousness and significance of this conduct and its impact on public confidence in the police. Had it done so, there was only one outcome reasonably open to it, namely dismissal. The decision was therefore irrational.

The panel also failed to take a structured approach. They identified the legal tests but failed to apply them in the methodical way required, both in relation to seriousness of the conduct and also the purpose for which the sanction is imposed.

The court accordingly found for the Chief Constable and quashed the decision of the tribunal. The officer has now been dismissed.

Comment

The purpose of the police conduct regime is to hold wrongdoing to account and maintain public confidence. This decision will assist that purpose. It is also a reminder that disciplinary sanctions are in the hands of independent tribunals, not chief constables. Chief constables have a right of redress by judicial review challenge. It is, however, time-consuming, restricted in scope and expensive. A right of appeal would be a cheaper and wider remedy. It is not usual for the prosecution to have rights of appeal in England and Wales. Many European and North American jurisdictions give such a right.