Case No: CO/10599/2011
Neutral Citation Number: [2012] EWHC 2280 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN BIRMINGHAM

Birmingham Civil Justice Centre
33 Bull Street, Birmingham, B4 6DS

Date: 01/08/2012

Before :

THE HONOURABLE MR JUSTICE BEATSON
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Between :

	The Queen on the application of the Chief Constable of the Derbyshire Constabulary	Claimant	
	- and -		
	The Police Appeals Tribunal	Defendant	
	- and -		
	Wesley Green	First Interested Party	
	- and -		
	Thomas Stewart		Second Interested Party	

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John Bassett (instructed by East Midlands Legal Services Unit) for the Claimant
The Defendant did not appear and was not represented
Samuel Green (instructed by Russell Jones and Walker) for the First Interested Party
Alisdair Williamson (instructed by Russell Jones and Walker) for the Second Interested Party

Hearing date: 26 June 2012
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Judgment
Mr Justice Beatson : 
Introduction
1.	The claimant is the Chief Constable of the Derbyshire Police. He challenges the decision of the Police Appeal Tribunal (“the Tribunal”) dated 29 July 2011 overturning the findings of gross misconduct made against two former police constables, Wesley Green and Thomas Stewart, by a Misconduct Panel (“the Panel”) acting pursuant to the Police (Conduct) Regulations 2008 SI 2008 No. 2864 (“the 2008 Conduct Regulations”) on 3 February 2011. The Panel’s findings were made after an investigation following a complaint by Ms Hannah Roberts about the officers’ conduct when attending her premises in the early hours of 27 April 2010 in response to a 999 telephone call. The Panel ordered that the officers be dismissed without notice. The Tribunal allowed their appeal and ordered their reinstatement as constables in the Derbyshire Constabulary.

2.	The 2008 Conduct Regulations define “misconduct” as a breach of the Standards of Professional Behaviour, and “gross misconduct” as a breach of those Standards “so serious that dismissal would be justified”. The Standards are set out in the Schedule to the Regulations. There are ten Standards. The material Standards that the Panel found had been broken in these cases in a way that amounted to “gross misconduct” are: “honesty and integrity”, “duties and responsibilities”, “discreditable conduct”, and “challenging and reporting improper conduct”. 

The issues

3.	This case concerns the process by which allegations of police misconduct are investigated, determined and appealed in the 2008 Conduct Regulations and the Police Appeals Tribunals Rules 2008 SI 2008 No. 2863 (“the 2008 Appeals Rules”) which implemented the 2005 Review of Police Disciplinary Arrangements Report chaired by William Taylor QPM. The 2008 Conduct Regulations and Appeal Rules were considered by the Administrative Court earlier this year in R (Chief Constable of the Hampshire Constabulary) v Police Appeals Tribunal [2012] EWHC 746 (Admin) and R (Montgomery) v Police Appeals Tribunal [2012] EWHC 936 (Admin).

4.	There are three questions before the court:

(1)	Did the Tribunal misdirect itself in law in concluding that it was not open to the Panel to find that the officers had breached Standards of Professional Behaviour other than that relating to honesty and integrity, the only one which was referred to in the notice of the referral of the matter to the Panel?
(2)	What is the correct test to be applied by the Tribunal in determining an appeal on the ground that the finding or disciplinary action imposed by the Panel was unreasonable, and to what extent can the Tribunal substitute its assessment of findings of fact for that of the Panel?
(3)	In what circumstances might the Tribunal properly exercise its power under section 85(2) of the Police Act 1996 “on the determination of an appeal under this section, [to] make an order dealing with [an] appellant in any way in which he could have been dealt with by the person who made the decision appealed against”?

When giving permission on 9 January 2012, His Honour Judge David Cooke observed that the case raises an important issue of principle in relation to police disciplinary proceedings. It was accepted by the claimant that the third question only arises if the answer to the first question is “yes”, but the claimant’s submission that the Tribunal had erred in its conclusion as to the extent to which it may substitute its assessment of findings of fact for that of the Panel failed. 

The factual background

5.	In the early hours of the morning of 27 April 2010 Darren Pollard made an emergency call to the police alleging that there were people in his garden looking at his house and that he was petrified. PC Green and PC Stewart attended and found him in an agitated and paranoid state. His condition led them to suspect that he had taken a controlled substance. PC Green asked him if he had taken anything which might account for his behaviour and he stated that he had taken a “legal high”. Ms Roberts, who was Mr Pollard’s landlady, and Nicola Keel, who was Mr Pollard’s girlfriend, stated that a clear plastic bag was produced by Mr Pollard and handed to one of the officers. Hannah Roberts and Ms Keel claimed there was a white powder residue in the bag and that PC Green told them to flush the powder away and destroy the bag, and that Mr Pollard should get some sleep. The officers denied this. They maintained the bag was produced by Ms Keel, that it was empty or contained nothing capable of analysis, and that they had not told Ms Keel to dispose of it. An important part of the task of the Panel was to resolve this conflict of evidence. 

6.	There was also an issue as to whether the officers had made enquiries about Mr Pollard on the Police National Computer. At the time, Mr Pollard was in fact a “wanted” person because he was suspected for an offence of violence. The officers maintained that PC Green had made enquiries, but no record of any enquiry was found. After the incident, PC Stewart made an entry in the command and control system. This stated that there were no offences, and did not mention that drugs or that an alleged “legal high” was involved. 

The 2008 Conduct Regulations

7.	The material parts of the 2008 Conduct Regulations provide:

“21.— Notice of referral to misconduct proceedings and panel membership

(1) Where a case is referred to misconduct proceedings, the appropriate authority shall as soon as practicable give the officer concerned—

(a) written notice of—

(i)	the referral;

(ii) 	the conduct that is the subject matter of the case and how that conduct is alleged to amount to misconduct or gross misconduct as the case may be;

(iii)	the name of the person appointed to (in the case of a misconduct meeting for an officer other than a senior officer) conduct or (in any other case) chair the misconduct proceedings and of the effect of paragraphs (3) to (6) of this regulation; and

(iv)	the effect of regulation 7(1) to (3) in relation to the form of misconduct proceedings to which the case is being referred;

...

22.— Procedure on receipt of notice

(1) Before the end of—

(a) 14 working days beginning with the first working day after the documents have been supplied to the officer concerned under regulation 21(1); or

(b) where that period is extended by the person conducting or chairing the misconduct proceedings for exceptional circumstances, such extended period,

the officer concerned shall comply with paragraphs (2) and (3).

(2) The officer concerned shall provide to the appropriate authority—

(a) written notice of whether or not he accepts that his conduct amounts to misconduct or gross misconduct as the case may be;

(b) where he accepts that his conduct amounts to misconduct or gross misconduct as the case may be, any written submission he wishes to make in mitigation; and

(c) where he does not accept that his conduct amounts to misconduct or gross misconduct as the case may be, or he disputes part of the case against him, written notice of—

(i)	the allegations he disputes and his account of the relevant events; and

(ii)	any arguments on points of law he wishes to be considered by the person or persons conducting the misconduct proceedings.
…

24.— Timing and notice of misconduct proceedings

(1) Subject to paragraphs (2) and (6), the misconduct proceedings shall take place—

	…

 				(b) in the case of a misconduct hearing, before the end of 30 working days,

…

(2) The person conducting or chairing the misconduct proceedings may extend the period specified in paragraph (1) where he considers that it would be in the interests of justice to do so.

(3) Where the person conducting or chairing the misconduct proceedings decides to extend the period under paragraph (2), or decides not to do so following representations from the officer concerned or the appropriate authority, he shall provide written notification of his reasons for that decision to the appropriate authority and the officer concerned.

…

28.— Documents to be supplied

(1) Prior to the misconduct proceedings the appropriate authority shall supply the person or persons conducting the misconduct proceedings with a copy of—

(a) the documents given to the officer concerned under regulation 21(1)(a) to (c)(ii);

(b) the documents provided by the officer concerned under—

(i)	regulation 22(2) and (3); and

(ii)	where paragraph (2) applies, regulation 45; and

(c) where the officer concerned does not accept that his conduct amounts to misconduct or gross misconduct as the case may be or where he disputes any part of the case against him, any other documents that, in the opinion of the appropriate authority, should be considered at the misconduct proceedings.
		
		…

(3) Prior to the misconduct proceedings the officer concerned shall be supplied with a list of the documents supplied under paragraph (1) and a copy of any such document of which he has not already been supplied with a copy.

…

34.— Procedure at misconduct proceedings

(1) Subject to these Regulations, the person conducting or chairing the misconduct proceedings shall determine the procedure at those proceedings.

...

(5) The person representing the officer concerned may—

(a) address the proceedings in order to do any or all of the following—

		…

		(v) 	subject to paragraph (8), ask questions of any witnesses;

…

(8) Whether any question should or should not be put to a witness shall be determined by the person conducting or chairing the misconduct proceedings.

…

(10) Where evidence is given or considered at the misconduct proceedings that the officer concerned—

(a) on being questioned by an investigator at any time after he was given written notice under regulation 15(1) of these Regulations or regulation 14A of the Complaints Regulations; or

(b) in submitting any information or by not submitting any information at all under paragraph 19C of Schedule 3 to the 2002 Act or regulation 16(1) or 22(2) or (3) (or, where paragraph (11) applies, regulation 45),

failed to mention any fact relied on in his case at the misconduct proceedings, being a fact which in the circumstances existing at the time, the officer concerned could reasonably have been expected to mention when so questioned or when providing such information, paragraph (12) applies.
		
…

(12) Where this paragraph applies, the person or persons conducting the misconduct proceedings may draw such inferences from the failure as appear proper.

(13) The person or persons conducting the misconduct proceedings shall review the facts of the case and decide whether the conduct of the officer concerned amounts—

(a) in the case of a misconduct meeting, to misconduct or not; or

(b) in the case of a misconduct hearing, to misconduct, gross misconduct or neither.
		
		…

(14) The person or persons conducting the misconduct proceedings shall not find that the conduct of the officer concerned amounts to misconduct or gross misconduct unless–   
			
(a) he is or they are satisfied on the balance of probabilities that this is the case; or 

(b) the officer concerned admits it is the case.

		36.— Notification of outcome

(1) The officer concerned shall be informed of—

(a) the finding of the person or persons conducting the misconduct proceedings; and

(b) any disciplinary action imposed, 

as soon as practicable and in any event shall be provided with written notice of these matters and a summary of the reasons before the end of 5 working days beginning with the first working day after the conclusion of the misconduct proceedings.” 

8.	The material parts of the 2008 Appeals Rules provide:

“4.— Circumstances in which a police officer may appeal to a tribunal

...

(4) The grounds of appeal under this rule are—

(a) that the finding or disciplinary action imposed was unreasonable; or

(b) that there is evidence that could not reasonably have been considered at the original hearing which could have materially affected the finding or decision on disciplinary action; or

(c) that there was a breach of the procedures set out in the Conduct Regulations, the Police (Complaints and Misconduct) Regulations 2004, Schedule 3 to the Police Reform Act 2002 or other unfairness which could have materially affected the finding or decision on disciplinary action.”

      The 2008 Home Office Guidance

9.	The Secretary of State issued statutory guidance pursuant to powers under section 87 of the Police Act 1996 on Police Officer Misconduct, Unsatisfactory Performance and Attendance Management Procedures, which applied from 1 December 2008. Paragraph 1.8 provides that, where the Standards of Professional Behaviour are being applied in any decision or misconduct hearing, they “shall be applied in a reasonable, transparent, objective and proportionate manner” (emphasis added). Paragraph 1.10 of chapter 1 states that “where the misconduct procedure is being applied, it is important to identify the actual behaviour that is alleged to have fallen below the standard expected of a police officer, with clear particulars describing that behaviour”. Paragraph 2.149, in the chapter entitled “Guidance on Police Officer Misconduct Procedures” provides: 

“It is necessary to describe the particulars of the actual behaviour that is considered to amount to misconduct or gross misconduct, and the reasons it is thought the behaviour amounts to such”. 

The reference to the Panel

10.	After Ms Roberts’ complaint, Sergeant Green, an investigating officer, conducted an investigation. His report, dated 17 December 2010, determined that there was a case for the officers to answer. Notices pursuant to Regulation 21 of the 2008 Conduct Regulations, giving particulars of the misconduct alleged, were then served on the two officers. The notices stated that the allegations had been referred to a misconduct hearing. Each notice stated that the details of the conduct that it was alleged may have breached the Standards of Professional Behaviour were set out in it. The particulars are those I summarise in [11]. After setting out the particulars, each notice stated: “the matter is alleged to amount to gross misconduct for the following reasons: the allegation, if proved, would tend to have a fundamental impact on your honesty and integrity as an officer”. 

11.	The particulars of misconduct alleged in the notices are that PC Green and PC Stewart: (i) failed to make adequate enquiries as to whether Mr Pollard had in his possession a controlled substance; (ii) failed to take any or adequate steps to secure as evidence the clear plastic bag containing a white powder, despite having reasonable grounds to believe it consisted of or contained a controlled substance; (iii) having those reasonable grounds, failed to make any or adequate enquiries as to Mr Pollard’s status on the police national computer; (iv) failed to take any or adequate steps to prevent Ms Keel from disposing of the plastic bag and white powder in it, and; (v)(a) in the case of PC Green, advising her to do so, and; (v)(b) in the case of PC Stewart, failing to challenge, prevent or report PC Green for so doing. The particulars also stated that PC Green failed to take any or adequate steps to ensure that a true, accurate and complete report of the incident was created, and that PC Stewart created a report of the incident that was false and/or misleading.

12.	In their Regulation 22 responses to the Regulation 21 notices, PC Green and PC Stewart denied that their conduct “fell below the standards set out in the Standards of Professional Behaviour”. PC Green did not accept that it amounted to “misconduct or gross misconduct”, and PC Stewart did not accept that it would amount to “gross misconduct”.  

The Panel’s decision

13.	The Panel heard evidence from the two officers, Mr Pollard, Ms Roberts, and Ms Keel. It rejected the evidence of the officers and preferred that of the other witnesses. The Panel stated there were “striking similarities” in the accounts of the civilian witnesses who had neither the time, the opportunity or an apparent motive to collude. It recorded its findings thus:

“PC Green:

We are satisfied that you did advise Nicola Keel to dispose of the plastic bag containing some white powder, therefore failing to secure it as evidence and failing to make adequate enquiries about Darren Pollard being in possession of a controlled substance. We are also satisfied that you had sufficient grounds to suspect Darren Pollard had taken a controlled substance and that you should have made enquiries about him on the PNC. However, given that we have found that you advised Nicola Keel to dispose of the plastic bag and the white powder, we do not consider that the discrete allegation that you failed to take any steps to prevent her from doing so can properly be described as a separate example of misconduct. Finally, we do not consider that an officer is under any duty to confirm the accuracy or completeness of a report submitted by a colleague, and therefore do not find the allegation made in paragraph (f) has been proved. 

In our view the facts that we have found proven in the above summary engage the standards of professional behaviour relating to honesty and integrity, duties and responsibilities, and discreditable conduct, and amounts to gross misconduct. 

PC Stewart:

We have found that PC Green did instruct Nicola Keel to dispose of the plastic bag and white powder. We have been persuaded by evidence given by the live witnesses from whom we have heard, from your own account in interview, and your account given today in oral evidence that on the balance of probabilities you were aware of this instruction. In those circumstances, you had an obligation to challenge your colleague and you failed to do so, thereby failing to secure it as evidence and failing to make adequate enquiries about Darren Pollard being in possession of a controlled substance. We are also satisfied that you had sufficient grounds before you to make enquiries relating to Darren Pollard on the PNC, yet you failed to do so. 

Given that we have been persuaded by the account of events given by Hannah Roberts, Nicola Keel and Darren Pollard, and that you did not record them, we also find that your account given in the incident mark-off was misleading. 

Given these findings, we consider that your conduct engages the standards of professional behaviour relating to honesty and integrity, duties and responsibilities, discreditable conduct, and challenging and reporting improper conduct, and amounts to gross misconduct”. 

The Tribunal’s decision

14.	The appeal to the Tribunal was brought under Rule 4(4)(a) and (c) of the 2008 Appeals Rules. Sub-rule (a) provides for an appeal where “the finding or disciplinary action imposed was unreasonable”, and sub-rule (c) where “there was a breach of the procedures set out in the Conduct Regulations…or other unfairness which could have materially affected the finding or decision on disciplinary action”.
 
15.	After referring (paragraph 39) to the need for disciplinary proceedings and sanctions imposed to maintain high standards, and for an approach which focuses on the public perception of the integrity of the police and the maintenance of confidence in the police as well as the maintenance of discipline, the Tribunal addressed the grounds of appeal.

16.	The Tribunal stated (paragraph 42) that “[t]he test for ‘reasonableness’ [in Rule 4(4)(a)] is the Wednesbury test: whether the decision or finding or outcome was within the range of reasonable findings or outcomes to which the Panel could have arrived”. There is no formal challenge by the claimant to this finding, based as it is on the difference between the 2008 and the 1999 Appeals Rules. The claimant, however, submitted that the Tribunal erred in its application of the test. The claimant maintained the Tribunal erred in its conclusion as to the extent to which it may substitute its assessment of findings of fact for that of the Panel which made the findings after hearing evidence. On behalf of the interested parties, it is, however, submitted, relying on the statements of Collins J in R (Montgomery) v PAT at [2012] EWHC 936 (Admin) at [18] and of Mitting J in R (Chief Constable of Hampshire Constabulary v PAT [2012] EWHC 746 (Admin) at [25], that the test is not a strict Wednesbury test.

17.	The Tribunal accepted the submission of PC Green and PC Stewart that the Panel was not entitled to make findings of breaches of professional behaviour other than those identified in the Regulation 21 notices. It stated:

“It is a matter of fairness and justice that an officer facing the loss of his career and reputation is properly notified of the breaches alleged against him and it is unfair that he may find himself condemned under additional heads of standard of professional behaviour by arguing, as seems does the [Chief Constable], that these additional heads may be gleaned from the facts and circumstances, albeit not identified as breaches prior to the hearing.”

18.	The Tribunal rejected the argument that the absence in Regulation 21 of the 2008 Conduct Regulations of an express reference to the appropriate Standard of Professional Behaviour which had been in Regulation 14(2) of the 2004 Conduct Regulations, SI 2004 No. 645, meant that it was not necessary to refer to the particular Standard. It did so because Regulation 21 requires written notice of the conduct “and how that conduct is alleged to amount to misconduct or gross misconduct…” and Regulation 3(1), the interpretation provision in the 2008 Conduct Regulations, provides that “‘misconduct’ means a breach of the standards of professional behaviour”. Accordingly, it concluded that the Regulation 21 notice, in identifying how the conduct is alleged to amount to “misconduct” must identify the specific breaches of Standards of Professional Behaviour alleged (paragraph 46). The Tribunal therefore also concluded that there was a “breach of the procedures set out in the Regulations…or other unfairness” (paragraph 47). 

19.	The Tribunal then addressed the question whether, in the language of Rule 4(4)(c) of the 2008 Appeals Rules, the breach or other unfairness “could have materially affected the finding or decision”. It concluded that the answer depended on whether the factual findings made by the Panel as to what occurred would in any event have led to a finding of gross misconduct based on a breach of the standard of professional behaviour of honesty and integrity. This was because it would be rare that a breach under that heading would be other than gross misconduct, and rarer still for such a finding to lead to disciplinary action other than dismissal (paragraph 48). 

20.	The Tribunal, however, concluded that the Panel’s factual findings would not in any event have led to a finding of gross misconduct. This was because, while the Panel made explicit factual findings that PC Green advised Ms Keel to dispose of the plastic bag and its contents, that PC Stewart was aware of that, and that additionally PC Stewart did not make an accurate record of the events and gave a “misleading” account in the incident “mark-off”, “nowhere in those findings did the Panel explain how they led to a finding of breach of the Standard of Professional Behaviour of Honesty and Integrity” (paragraph 49). The Tribunal noted that the only reference to the officers’ state of mind concerned the use of the term “misleading” in relation to PC Stewart. It observed that “using that term, rather than an expression such as “deliberately false”, suggest[ed] that the Panel did not consider that to be an example [of lack] of Honesty and Integrity”.

21.	The Tribunal also considered that its own examination of the evidence and documentation did not lead it to conclude that a breach of the standard of “honesty and integrity” had occurred, and indeed that the Panel’s finding that this was so was an unreasonable finding. This is because the evidence did not show that the officers’ actions were borne of a base motive as opposed to concern for Mr Pollard’s welfare, and because their conduct was more consistent with a flawed exercise of judgment as to how to deal with the situation in which the evidence tended to suggest, albeit not conclusively, that Mr Pollard may not have taken a controlled substance and that therefore there was no crime to record. It stated (paragraph 50) that it did not see how a conclusion that the evidence of the events of 27 April established other than extremely poor performance by both officers could be reached.

22.	It had been submitted on behalf of the Chief Constable that the Panel could have relied on the officers’ lies when taxed about their conduct as evidence supporting a finding of lack of honesty and integrity. The Tribunal stated (paragraph 52) that this may have had some support “if that had been the Panel’s reasons, or one of them, for finding a breach of the standard of professional behaviour under the heading of honesty and integrity” but that the Panel made no such explicit finding. The Tribunal considered that it would be pure speculation to consider that this evidence was relied on in this way. It observed that, in its reasons for its decision, the Panel “seems conscientiously to confine itself to the events of 27 April”. 
The claimant’s case
23.	On behalf of the Chief Constable, Mr Bassett submitted that the changes introduced as a result of the Taylor Report were aimed to avoid “an overly legalistic or adversarial environment”, to “be much less quasi-judicial”, and to have, where appropriate, less formal hearings managed in a manner proportionate to the context and nature of the issues at stake (see Report, pp. 5 – 6, setting out the thirteen key areas upon which disciplinary arrangements should be established, and in particular (ii), (iv) and (viii)). 

24.	Mr Bassett relied on the fact that, unlike the 2004 Conduct Regulations, under which an officer would generally face a number of specific individual allegations similar to charges, under the 2008 Conduct Regulations the officer “will generally face a single allegation that embraces all aspects of the alleged misconduct or gross misconduct”: skeleton argument, paragraph 10(v). This, together with other departures in the new regime from classic features of adversarial hearings, he submitted meant that it was not necessary for the notice to identify the Standards of Professional Behaviour which it is alleged were breached, provided the description of the conduct enables the officer charged properly to identify which of the standards are said to be “engaged”. 

25.	Mr Bassett relied in particular on two features of the procedure in the 2008 Conduct Regulations. The first was that Regulation 22 required an officer to state his case in answer to an allegation in advance of the misconduct hearing. The second was the fact that, by virtue of Regulation 23, whether a witness is called to give oral evidence is a matter to be determined by the Chair of the Panel conducting the hearing. This was, he argued, a major change to the position under the 2004 Conduct Regulations. Paragraph 2.160 of the current Home Office Guidance on police officer misconduct provides that “generally speaking, misconduct meetings and hearings will be conducted without witnesses”. 

26.	A number of other features of the procedure under the 2008 Conduct Regulations were relied on to show that they are intended to be inquisitorial in procedure rather than accusatorial or adversarial. Although some of the matters relied on by Mr Bassett for this submission, such as the fact that those conducting misconduct proceedings receive all relevant documentation and evidence in advance, are not in fact indications of an inquisitorial as opposed to an adversarial process, others are. Thus, the fact that, as I have stated, under Regulation 23 the person chairing the panel determines whether a witness gives oral evidence does point towards a more inquisitorial process. Again, the absence of a right to cross-examine witnesses who do give oral evidence (see Regulation 34(5)(a)(v) and 34(8)), and the fact that the Home Office Guidance indicates that questions should generally be put to a witness through the Chair of the Panel (see paragraph 2.194) point to a less adversarial approach and a greater role for the Panel. 

27.	Those changes are the backdrop for the submissions made on behalf of the Chief Constable as to the correct interpretation of Regulation 21(1)(a)(ii) of the 2008 Conduct Regulations concerning what has to be provided to a police officer facing an allegation of misconduct or gross misconduct at a misconduct hearing. It is contended that one of the mischiefs sought to be addressed by the 2008 Conduct Regulations arose because the 2004 Conduct Regulations required “the paragraph of the Code of Conduct in respect of which the appropriate Standard is alleged not to have been met” to be stated. As a result of this, submissions were commonly made on behalf of an officer that, while his or her conduct may have amounted to a breach of the Code of Conduct, it did not amount to a breach of the paragraph or paragraphs of the Code of Conduct charged. It was such an approach, and the consequences of it, that led the Taylor Report to criticise misconduct hearings as having become “too quasi-judicial”. 

28.	Mr Bassett submitted that the omission of the words in Regulation 14(2) of the 2004 Conduct Regulations from Regulation 21(1)(a)(ii) of the 2008 Conduct Regulations was intended to indicate that it was unnecessary to specify which one or more of the Standards of Professional Behaviour was alleged to have been breached. He argued that all that is now required is that the notice should specify the conduct that is the subject of the case, and how that conduct is alleged to amount to misconduct or gross misconduct. 

29.	Mr Bassett also submitted that this construction is supported by Regulation 34(13) of the 2008 Conduct Regulations. That provides that the person or persons conducting misconduct proceedings “shall review the facts of the case and decide whether the conduct of the officer concerned” amounts to “misconduct, gross misconduct, or neither”. He argued that the focus in the 2008 Conduct Regulations is on the “conduct” of the officer. The formulation of the Regulation 21 notice is undertaken by the appropriate authority, whose functions are to determine (see Regulation 19) whether the officer has a case to answer, and if so, whether to refer the case to misconduct proceedings. If a case is so referred, it is also the function of the appropriate authority to serve the officer with the Regulation 21 notice. Mr Bassett submitted that to limit the Panel to the formulation used by the appropriate authority in the Regulation 21 notice, which is only an indication of the appropriate authority’s assessment of which Standards have been breached, confuses the role of the appropriate authority with that of the Panel. It is the Panel which has to determine whether the officer has breached one or more Standards of Professional Behaviour and, if so, which. 

30.	Mr Bassett relied heavily on Regulation 34(14) which empowers the Panel to find that the conduct of an officer amounts to misconduct or gross misconduct where the officer admits that it does. He submitted that, if the Tribunal’s ruling on the meaning of Regulation 21(1)(a)(ii) is correct, the consequences would be illogical. He took the case of an officer who admitted in his Regulation 22 response to a notice that his conduct did amount to a breach of one or more of the Standards of Professional Behaviour, but not to a breach of the Standard referred to in the Regulation 21 notice, as an example. He submitted that in such a case the officer cannot be found to have committed misconduct or gross misconduct. That, he said, was both illogical and contrary to the intention of the legislature as seen from Regulation 34(14)(b). 

31.	The next plank in Mr Bassett’s submissions was that neither natural justice nor Article 6 of the European Convention required the Regulation 21 notice to specify the particular Standard(s) of Professional Behaviour alleged to have been breached, and constrained the Panel to consider only the specified Standard(s). Mr Bassett accepted as self-evident that misconduct proceedings must be conducted fairly, but submitted, on the basis of R (Whitehead) v Chief Constable of Avon and Somerset Police [2001] EWHC 433 (Admin) and Application No. 28541/95, Pellegrin v France (2001) 31 EHRR 26, that Article 6 does not apply to police misconduct proceedings. He also submitted that the procedure which required service with a notice describing the conduct that is alleged to have breached the Standard(s), the opportunity to “engage” at an early stage in the investigation, and the opportunity to state his or her case in answer to the allegation, and to present it to the Panel, satisfied the requirement of fairness. “Fairness” did not require the notice to state which Standard(s) are alleged to have been breached, and did not confine the Panel in their consideration to those Standards specified in the notice. Mr Bassett relied on the fact that the officers’ responses to the notice (see [12]) were directed not to the Standard relating to Honesty and Integrity identified in the notice, but to “the Standards set out” in the Standards of Professional Behaviour. 

32.	As to the correct test to be applied by the Tribunal in determining an appeal, Mr Bassett accepted that the Tribunal’s formulation in paragraph 42 of its decision (see [16]) was correct, but argued that the Tribunal erred in law in its application of the relevant test, because paragraph 49 of its decision (as to which see [20]) showed that the Tribunal felt able to review the evidence and documentation, and to reach its own conclusion as to whether the officers’ conduct had breached the Standard of Professional Behaviour relating to Honesty and Integrity. He argued that, in the light of the findings of fact that the accounts given by the officers were false, it was wrong to suggest that it was “pure speculation” to suggest that the Panel relied on the officers’ lies as supporting the finding of lack of Honesty and Integrity: that was an inference that the Panel could properly draw from its findings, indeed Mr Bassett submitted that it was the only inference that could properly be drawn from those findings. He submitted that the Panel, which is not legally trained, is not to be criticised for failing to state expressly in what ways it considered the conduct of the officers to be dishonest and lacking in integrity, when that can properly be inferred from their findings of fact. 

Conclusions

33.	I deal first with the second question, the correct test to be applied by the Tribunal in determining an appeal under Rule 4(4)(a), that the finding or disciplinary action imposed by the Panel was “unreasonable”. The word “reasonable” has a certain chameleon-like quality and, as always, its precise meaning is determined by the context in which it is used. On behalf of the first interested party, Mr Green, supported by Mr Williamson on behalf of the second interested party, submitted that the statutory context, the language of the 2008 Appeals Rules, and the fact that the Police Appeals Tribunal is a specialist Tribunal chaired by a lawyer, normally Queen’s Counsel, show that the threshold is not the very high threshold of “Wednesbury unreasonableness” as used by the Administrative Court in the exercise of its supervisory jurisdiction over governmental and other public bodies. They also submitted that the decisions of Collins and Mitting JJ, to which I have referred (at [15]), supported the contention that unreasonable in Rule 4(4)(a) should not be interpreted in a strict Wednesbury sense. 

34.	The starting point is the position as established in the decisions of Collins and Mitting JJ in the decisions in the Montgomery and Hampshire Constabulary cases to which I have referred (see [16]). The decision of Lightman J in R (Dart Harbour and Navigation Authority) v Secretary of State for Transport, Local Government and the Regions [2003] EWHC 1494 (Admin) is also of assistance. The Dart Harbour case concerns a different statutory context, the two tier decision-making process in the Dart Harbour and Navigation Authority Act 1975. Lightman J (at [29]) contrasted cases in which this court is exercising its supervisory jurisdiction by way of judicial review in respect of the decisions of bodies entrusted by Parliament with competence to make administrative decisions, where “[t]he very high threshold of ‘Wednesbury unreasonable’ has been adopted”, and statutory contexts where this approach is inapposite, and what is called for is a straightforward factual test based on all the material before the reviewing body. He considered one example of a situation in which the high threshold does not apply is a situation in which the statute provided for a two-tier decision-making process. In such a situation he stated it is replaced by a straightforward factual test. 

35.	In the present case, as has been seen, the 2008 Appeals Rules provide for a two-tier process, albeit with the second-tier decision-maker a specialist Tribunal chaired by a lawyer rather than, as in the Dart Harbour case, the Secretary of State. There is some force in the submission by Mr Green, relying on what Lightman J stated in that case. He argued that, since a police officer would in any event have a challenge in this court by way of judicial review, Parliament cannot have intended by the use of the word “reasonable” in the Rules to require the same test to be used. However, this factor is not conclusive. 

36.	The decisions in the Montgomery and Hampshire Constabulary cases are directly in point because they concern appeals to the Police Appeals Tribunal. In the latter case Mitting J (at [25]) described the test as “a Wednesbury test shorn of technicality”. In the former Collins J stated (at [18]) that, in order to be fair, “unreasonable” in the context of Rule 4(4)(a) means that “the [Police Appeals Tribunal] will look at the material before it and decide on all that material whether or not it was specifically referred to or decided by the Panel, [and] whether in its view it was a reasonable decision in the particular case”. He added that “to that extent, I think that it is not helpful to apply a strict legal definition in Wednesbury terms of the word ‘reasonable’”. 

37.	I have concluded that the last sentence in paragraph 43 of the decision, referring as it does to a “Wednesbury-type test”, and the latter part of the last sentence of paragraph 42, “whether the decision on finding or outcome was within the range of reasonable findings or outcomes to which the Panel could have arrived”, are essentially correct. But the first part of the last sentence of paragraph 42, that “[t]he test for ‘reasonableness’ is the Wednesbury test” taken alone, and unqualified, is misleading. But the passage in paragraph 43 of the decision in this case, and the last part of the last sentence of paragraph 42, are entirely consistent with the statements in those decisions and with the decisions themselves. 

38.	I turn to the first question. Was it open to the Panel to define that the officers had breached Standards of Professional Behaviour other than the one referred to in the Regulation 21 notice? It was submitted on behalf of the interested parties that the language of Regulation 21, the terms of the 2008 Home Office Guidance, fairness and natural justice, and good practice require the notice to identify each of the Standards of Professional Behaviour alleged to have been breached. 

39.	The interested parties argued that, if during the course of a hearing, a Panel decided that the officer before them was arguably also or alternatively in breach of another Standard, the correct procedure would be to give notice, and to adjourn to give the officer in question a chance to respond. I accept this submission. Where all that is involved is a different way of characterising the same conduct, such an adjournment can be very short. Where the officer admits the breach of a Standard or Standards not specified in the notice, it will not be necessary to adjourn, and Regulation 34(14)(b) (see [7]) provides the mechanism by which such a breach can be found. In any event, given the pre-hearing process with its quasi-inquisitorial aspects, in some cases it will be possible for the Panel to identify possible breaches of additional Standards to those stated in the Regulation 21 notice before the hearing starts. While matters may well arise during a hearing, such pre-hearing identification is desirable where it is practicable. 

40.	Regulation 21(1)(a)(ii) of the 2008 Conduct Regulations expressly requires written notice of how the conduct that is the subject matter of the case “is alleged to amount to misconduct or gross misconduct”. But in the Regulations “misconduct” and “gross misconduct” are not freestanding concepts. They can only be understood by reference to the definition in Regulation 3(1) of the 2008 Conduct Regulations. That defines those terms as conduct which is a breach of the Standards of Professional Behaviour. The 2008 Conduct Regulations set out ten Standards of Professional Behaviour in the Schedule. They do so for a reason. There are differences in the nature of the specified types of conduct and the extent of the culpability involved in breaches of the different Standards. There is also overlap between a number of the Standards. For example, conduct which consists of a failure to report improper conduct may or may not also be “dishonest” or “discreditable”. 

41.	On Mr Bassett’s submissions there would be no need to give the officer notice of whether it is alleged that what he did was dishonest provided the conduct is described. One of the outcomes of a finding of “gross misconduct” is dismissal from the police force. In these circumstances, and in the absence of clear language to the contrary in the 2008 Conduct Regulations, I accept Mr Green’s submission that, in order to set out how the conduct alleged amounts to misconduct or gross misconduct, it is necessary to set out which Standard or Standards of Professional Behaviour are alleged to have been breached. 

42.	The terms of the Home Office Guidance on what the charge should contain also support the submissions made on behalf of the officers. Paragraph 2.149 of the Guidance (see [9]) provides that the particulars of the behaviour of the officer and also “the reasons it is thought the behaviour amounts to [misconduct or gross misconduct]” must be specified. The Guidance also states that “clear particulars” should describe the actual behaviour that is alleged to have fallen below the standard expected. 

43.	Even if the 2008 Conduct Regulations, taken on their own, do not require the identification of the Standard or Standards alleged to have been breached to be identified in the Notice, the effect of the Guidance, which is statutory guidance, is (see the well-known case of Rixon [1997] ELR 66) that, absent good reason in a particular case, the charge should identify the Standard or Standards of Professional Behaviour alleged to have been breached.

44.	In view of my conclusions on these matters, it is not necessary to consider the submissions on natural justice and Article 6. I do, however, deal briefly with natural justice. While “fairness” is a fluid context-sensitive concept, and while fairness may not, in the present context, confine the Panel in their consideration to those Standards specified in the notice, if the Panel does wish to consider another Standard, it is necessary for it to do so in a procedurally fair way, for example by adopting the procedure summarised at [39]. This is particularly important in the context of conduct which is alleged to be dishonest or “gross misconduct”, and in respect of which an adverse finding may end a police officer’s career: see General Medical Council v Salha [2003] UKPC 80 at [13] – [14], in the context of an allegation of plagiarism brought against two doctors. 

45.	It is also not necessary to consider the third question, the circumstances in which the Tribunal might properly exercise its power under section 85(2) of the Police Act 1996. In view of my conclusions on the other two questions, as accepted by the claimant, this question does not fall for decision. Accordingly, for these reasons, this application is dismissed.