A judicial review of a recent decision of the Police Misconduct Panel

Case Report - R (on the application of Chief Constable of Cambridgeshire Constabulary) v Police Misconduct Panel 

Weightmans were instructed by the Chief Constable of the Cambridgeshire Police to apply for a judicial review of the decision of the Police Misconduct Panel (“the Panel”) made in November 2023. The Panel had dismissed allegations against PC Ben Suckling despite noting that the complainant gave honest and credible evidence and that Suckling had no independent recollection of events.

In March 2018 Suckling spoke with Miss A who complained that she had been the victim of serious sexual assault. It was alleged that Suckling breached the standards of professional behaviour by: 

• Failing to use an Early Evidence Kit (“EEK”) to obtain samples from Miss A and to secure her clothing;
• Failing to facilitate Miss A’s attendance at a Sexual Assault Referral Centre (SARC) and / or to advise her that she could attend that centre independently;
• Doing so deliberately, motivated in part, because Miss A had told him about having been diagnosed with borderline personality disorder and / or because he was approaching the end of his shift. 

The hearing in respect of the complaint did not take place until some 5 ½ years after the initial encounter.

Suckling said he had no independent recollection of the incident but accepted he had interacted with Miss A and that he would have been responsible for the completion of the relevant paperwork. He accepted the first allegation but surmised he would have been following instructions from his supervisor Sergeant Goodenough.

Despite the admission, Suckling denied all allegations at the hearing but also conceded by that EEK was not used. Significantly, other officers were despatched the following day to gather the forensic evidence in an attempt to make good PC Suckling’s omissions.

Miss A stated unequivocally that she had not been offered any forensic evidence gathering and had not been referred to SARC or told of her eligibility to self-refer. The Panel considered that Miss A was honest and credible but concluded they had to treat Miss A’s evidence with a degree of caution given the passage of time together with her admitted lapse of memory and intoxication through alcohol and drugs. 

The Panel noted that neither Suckling nor PS Goodenough was able to independently recall the details of the relevant events given the passage of time. But nevertheless, made the following determinations:

• When PC Suckling attended Miss A whilst she was in hospital, she explained events and although she could not 'remember anything' believing her drink had been spiked, she articulated her belief that she had been “touched,” as her trousers were undone and that she found it painful to urinate and noted the presence of a lot of blood.
• That PC Suckling explained to Miss A that it was not for him to determine what had occurred and told Miss A to 'chill out' while he went to his car to obtain his 'stuff' and to have a chat with his Sergeant Goodenough to discuss the way forward. Neither Suckling nor PS Goodenough was able to recall what was discussed or advice provided, nor was there any note or record.
• That Suckling did not use a EEK and/or refer Miss A to the SARC or inform her that she could refer herself if she wished to do so. In that regard, the Panel had regard to Suckling’s lack of experience in dealing with complaints of sexual assault and, on balance, concluded that he did seek advice from his supervisor (who had prior experience of dealing with rape investigations) as to how to proceed, even though neither had any recollection of the conversation.

The Panel was unable to discern any cogent evidence in relation to the third allegation and this did not form part of the Judicial Review. 

The Chief Constable’s principal submission was that the Panel decision was Wednesbury irrational and submitted that they had failed to properly assess Suckling’s omissions as either misconduct or gross misconduct given the seriousness of Miss A’s complaint. Further it was argued that the Panel had misdirected itself by taking into account a number of irrelevant factors or failing to give weight to others. This included reference to Suckling’s experience; the fact that he was a dedicated and conscientious officer; that he admitted in evidence that he had received relevant training; that pain in Miss A’s vaginal area would suggest penetration and required an EEK; that the Force had made good PC Suckling’s omissions by making a referral the following day; that the CPS had failed to prosecute.

Richard Clayton KC sitting as Deputy High Court Judge judged as follows:

the panel's conclusion is profoundly flawed and Wednesbury irrational…The panel expressly found that Miss A was honest and credible, albeit they treated her evidence with caution, that PC Suckling, who was not a probationary constable, had received initial training in EEK, that Miss A had explained the events of the previous evening…, that PC Suckling contacted PS Goodenough to discuss the way forward…neither PC Suckling nor PS Goodenough was able to recall what was discussed or recall any advice given…nor was there any written record of a conversation… the approach taken by the CPS had no bearing whatsoever… the panel's conclusion that, "in all the circumstances, the Panel concluded that the proven conduct , neither amounted to misconduct or gross misconduct", is irrational, for a number of reasons…having found that PC Suckling had relevant training, the panel failed to make any findings in relation to: (1) the reasons why PC Suckling failed to apply that training… (2) why the panel found that his failure was somehow to be justified by seeking advice from a senior officer; (3) why PC Suckling ignored his training by relying on the advice of Sergeant Goodenough; (4) why it failed to provide any explanation as to why these omissions made it unnecessary for the panel to consider whether PC Suckling was guilty of misconduct or gross misconduct. (5) In fact, the panel did not address whether PC Suckling was guilty of misconduct or gross misconduct at any point in the decision. (6) Furthermore, the panel failed to provide any reasons for its failure to question whether PC Suckling's conduct amounted to misconduct or gross misconduct. In stating that it considered "all the circumstances of the case", the panel conspicuously failed to identify any facts or matters in the particular circumstances of the case which explained its conclusion that there was here no misconduct. 

These failures both cumulatively and individually amount to an unexplained evidential gap or leap in reasoning…and it is on that basis the panel's decision was irrational.”

In his final order, the Judge has quashed the original finding and has remitted the case back for a fresh hearing before a differently constituted Panel.