Misconduct case to answer – crossing the threshold

A direction by the IOPC requiring City of London Police to subject an officer to gross misconduct proceedings was not irrational.

Executive Summary

The police had failed to surmount the very high threshold of irrationality required to quash a direction that there was a case to answer.

Background

In December 2010 a large and sometimes violent protest involving thousands took place in Parliament Square. A police officer, PC Alston, was on duty. During the maintenance of a police cordon in which PC Alston was deployed, a student called Alfie Meadows suffered a serious head injury requiring hospitalisation.

Mr Meadows subsequently complained and the IOPC conducted an independent investigation. That was suspended while Mr Meadows was prosecuted for violent disorder. After three criminal trials he was acquitted and the IOPC recommenced the investigation.

The IOPC’s initial recommendation that there was a case to answer for misconduct or gross misconduct required the police, as appropriate authority, to make a determination on that question or if there was no case to answer. The police indicated their view that there was no case to answer, leading to a further recommendation from the IOPC to the police that there was a case to answer. Again, following receipt of further information, the police stated that they did not accept the IOPC’s recommendation, leading to the IOPC direction to subject PC Alston to a misconduct hearing for gross misconduct, in respect of which the present judicial review challenge emerged.

There were accordingly two charges in prospect against PC Alston: first that he had used repeated downward baton strikes in close proximity to the front lines of protestors (without suggestion that the strikes connected); and second that his baton blow caused Mr Meadows’ serious head injury.

Decision

For the police, it was submitted that the evidence against PC Alston was hopeless. In addition, beyond the immediate merits of this case, it was pointed out that there was widespread concern on the part of police constabularies that the IOPC was directing cases to go to gross misconduct hearings which had no merit.

In terms of the correct approach to the claim of irrationality, the IOPC argued that Parliament had considered that the appropriate judgment on whether there was a ‘case to answer’ was one for the IOPC, and that in doing so it enjoyed a ‘broad evaluative role’. That was the proper context for considering Wednesbury irrationality. Further, the threshold for identifying the case to answer was low, requiring only sufficient evidence on which a reasonable misconduct panel could, on the balance of probabilities, make a finding of misconduct or gross misconduct. The IOPC’s function was not to decide the very questions raised by the ‘case to answer’; that was the task of the misconduct tribunal. The police submitted that it was not open the IOPC to ‘cherry pick’ from the evidence to produce a misleading analysis when exercising that statutory function.

The police relied on what was described as ‘incontrovertible’ evidence of the nature of the events on the day and the situation faced by the officers, arguing that the mere swinging of a baton from high to low on multiple occasions could not amount to misconduct, let alone gross misconduct. As to the injuries sustained by Mr Meadows, it was accepted that had he been struck on the head by a police baton, the officer in such a case would have a case to answer for gross misconduct. But in this case, on a proper consideration of the evidence available at its highest, no reasonable misconduct tribunal could conclude, on balance, that Mr Meadows was struck with any police baton, never mind PC Alston’s.

The IOPC disagreed with the description of the context as ‘incontrovertible’, contesting that it would be open to a reasonable tribunal to conclude the deliberate baton swings were unjustified and disproportionate and that the CCTV video evidence and statement of Mr Meadows, and the position and timing of PC Alston’s involvement, were sufficient to raise a case to answer.

Having reviewed the evidence and considered the competing submissions, the court concluded that the police had “failed to surmount the very high threshold of irrationality …” As a result, the IOPC direction to subject PC Alston to gross misconduct proceedings remains.

Comment

Having concluded that the high threshold for irrationality was not crossed, the court declined to say anything more about the evidence in the case. That will be a matter for the disciplinary tribunal to review and adjudicate upon. Saying any more about the evidence would have risked “descending into an impermissible arena”.

Interestingly (the judicial review hearing having concluded within a day) the court invited details of costs for summary assessment. No costs’ schedule had been prepared or could be made available. As a result, in awarding the IOPC its costs on the standard basis, the court qualified that entitlement by ordering that the police were to have their costs of any ensuing detailed assessment of costs caused by the non-availability of summary details.

If you have any questions or would like to know more about our update, please contact Nick Peel, Partner, on 0151 242 9453, or nick.peel@weightmans.com.

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