Investigating complaints of sexual harassment by police officers

R (oao O’Connor) v Police Misconduct Panel & the Commissioner of Police of the Metropolis [2023] EWHC 2892 (Admin) case update

Executive summary

The High Court ruled on how misconduct panels and police forces should investigate complaints of sexual harassment by police officers. The court rejected the claimant’s challenges regarding the MPS’s investigation and the panel’s determination.

Background

In October 2011, the claimant was the victim of a criminal offence. She attended a police station where (former officer) Detective Sergeant Mason (‘Mr Mason’) took a statement from her. Mr Mason made inappropriate comments about the claimant’s personal life and relationships, he was “jovial and flirty” in the interview room. Mr Mason also sent the claimant emails in which he said the claimant looked “amazingly hot” and asked her out for dinner.

In October 2020, the claimant filed a complaint with the MPS regarding the conduct of Mr Mason who by then had been promoted to Detective Chief Inspector.

The complaint was referred to the IOPC who referred the matter to the MPS for a local investigation. As part of the referral to the IOPC, the MPS ticked a box to confirm that the complaint concerned sexual assault and harassment but not discrimination.

The MPS investigated the allegations, determined that Mr Mason had a case to answer for gross misconduct and convened a misconduct hearing. It was alleged that Mr Mason’s behaviour breached the ‘Standards of professional behaviour’ relating to honesty and integrity, respect and courtesy and discreditable conduct.
During the course of the investigation, Mr Mason made some admissions, accepted his behaviour was inappropriate and offered an apology.

In October 2021, the disciplinary panel at a misconduct hearing concluded that Mr Mason’s conduct amounted to gross misconduct and imposed a final written warning, to remain in place for three years. Mr Mason later resigned from the police.

The appeal

1. The claimant filed a judicial review application on the basis of the following:
   The MPS erred when referring the complaint to the IOPC because the matter was not described as a complaint involving discrimination.
2. The investigation was conducted without regard to relevant guidance and was inadequate (because it was not an investigation into discrimination).
3. The panel failed to have regard to the College of Policing Outcomes Guidance.
4. The panel failed to consider matters and placed reliance on irrelevant matters, meaning their conclusion was irrational.

Law

Pursuant to paragraph 4 of Schedule 3 to the Police Reform Act 2002 (‘the Act’), the police must refer certain complaints to the IOPC. Referrals are made using a standard form which includes a tick-box list of ‘relevant factors’. The relevant factors include ‘sexual assault or harassment’ and ‘discrimination’.

The police are then required (in accordance with paragraph 6 of Schedule 3 to the Act) to handle the complaint in such reasonable and proportionate manner as they decide. Once a decision has been made to investigate, public law obligations arise (e.g. to act for a proper purpose, take account of relevant matters, reach reasoned conclusions).

The IOPC’s Guidance on the Recording of Complaints makes clear that it is intended as guidance on the recording of complaints and not guidance on the handling of police complaints generally.

Regulation 42 of the Police (Conduct) Regulations 2020 sets out what sanctions a panel can impose upon a finding of gross misconduct, which includes a final written warning.

Before giving their verdict, section 87(3) of the Police Act 1996 requires the panel to have regard to the Outcomes Guidance.

Decision

1. Did the MPS err when referring the complaint to the IOPC?

No. The most important issue was that the IOPC were made fully aware of the substance of the complaint – which they were. Categorising the complaint as a matter of ‘sexual assault and harassment’ was reasonable and properly captured the substance of the complaint.

It would not have been wrong to tick the ‘discrimination’ box but, it would not have added anything of substance to the referral.

2. Was the investigation conducted without regard to the guidance and was the investigation inadequate?

No. Whilst it could be said that Mr Mason’s conduct amounted to discriminatory behaviour (thereby breaching the Standard ‘equality and diversity’) it is clear from the allegations put to Mr Mason that the claimant’s complaint, and the reasons for it, had been understood. In particular, it was clearly understood that the claimant had been treated in the way that she had been because she was a woman.

The investigation was adequate. Any investigation could be conducted in different ways and follow different lines of enquiry; “it is not for the court to second-guess every choice that the investigator might make.”

3. Did the panel fail to have regard to the College of Policing Outcomes Guidance?

No. The Outcomes Guidance is very detailed but it is wrong to conclude that it provides a “route map” for misconduct panels that either removes or reduces the panel’s ability to assess matters for itself. The Outcomes Guidance “does not purport to be a straitjacket”.

4. Was the panel’s decision irrational?

No. Whilst the claimant disagreed about the weight placed on certain pieces of evidence, it did not invalidate the panel’s reasoned decision. Their decision – to impose a final written warning – was a conclusion open to them having heard the evidence.

Comment

This case demonstrates that the court will be slow to intervene or criticise a misconduct investigation and panel decision which is investigated thoroughly by the appropriate authority resulting in a clear and well-reasoned judgment. It is also a helpful reminder that a finding of gross misconduct does not inevitably result in dismissal.