Court of Appeal guidance on how a gross misconduct panel should analyse relevant factors

R (oao O’Connor) -v- Police Misconduct Panel & the Commissioner of Police of the Metropolis [2025] EWCA Civ 27

Executive Summary

The Court of Appeal held that the absence of sufficient analysis and reasoning by a Police Misconduct Panel (the Panel) on the issues of seriousness, culpability and harm raised by the officer’s misconduct was an error of law. As a result, a decision of the panel to impose a final written warning was quashed and remitted to the panel for reconsideration.

Background

We have previously commented on the High Court decision here. In summary, the Panel at a misconduct hearing found Mr Mason’s conduct towards the claimant amounted to gross misconduct and imposed a final written warning.

The claimant applied for judicial review on the basis that the investigation was inadequate, the police failed to take into account relevant matters and the Panel failed to take proper account of the College of Policing’s Outcomes Guidance and was therefore irrational.

In the High Court, Swift J dismissed the claimant’s application for judicial review, finding – amongst other matters that – the Panel did have regard to the Outcomes Guidance but it is wrong to conclude that the Guidance provides a “route map” for misconduct panels - the Outcomes Guidance “does not purport to be a straitjacket”. The Panel’s decision was not irrational.

The Appeal

The claimant appealed on the basis that:

1. The court were wrong to find that the Panel followed the Outcomes Guidance because the Panel was not obliged to follow a ‘structured approach’ to its decision-making.
2. The court were wrong to find that the Panel lawfully followed the Outcomes Guidance in its approach to evaluating the seriousness of Mr Mason’s gross misconduct.
3. The court were wrong to find that it was not irrational for the Panel to impose a written warning.

Decision

The court dismissed the appeal at ground (1) but allowed the appeal at ground (2), meaning that the Panel’s decision was quashed, and the Panel should reconvene. In light of the decision at ground (2), the court did not determine ground (3).

The Panel’s approach

The Guidance provides a general framework for assessing the seriousness of conduct. It does not override the discretion of the person chairing the gross misconduct hearing. The Panel was not obliged to follow a structured approach. Factors could overlap but the most important would be culpability, harm, aggravating and mitigating factors.

The Panel’s reasoning

The Panel had not provided any analysis of the seriousness of Mr Mason’s misconduct, especially the culpability and harm. Simply listing the aggravating and mitigating factors did not represent the required analysis.

As a result, it was difficult to identify why a final written warning was considered appropriate rather than a more serious outcome (such as reduction in rank or dismissal). The Panel’s statement that such an outcome would be disproportionately harsh did not assist.

Comment

This case affirms the three-stage approach to police misconduct proceedings (as described in Fuglers v SRA [2014] ewhc 179 (Admin), which is:

1.  Assess the seriousness of the misconduct.
2. Keep in mind the purpose for which sanctions are imposed.
3. Choose the sanction which most appropriately fulfils that purpose for the seriousness of the conduct in question.

The court’s decision – confirming that the Outcomes Guidance is not a straitjacket - will be welcomed by misconduct panels, who ultimately retain discretion as to how they apply the Guidance when dealing with matters before them. However, a misconduct panel must properly analyse the relevant factors, particularly those that concern culpability, harm, aggravating and mitigating factors.