Personal Mitigation in Police Misconduct Cases
June 2, 2020
In misconduct hearings concerning police officers, if an allegation of gross misconduct is proved, it is often asserted on behalf of the Appropriate Authority, that the only appropriate outcome must be one of dismissal. Significant cases and guidance documents seemingly point in that direction. However, a deeper reading of the guidance and the relevant cases identifies the ongoing relevance of personal mitigation.
The case of Salter
Neil Salter v The Chief Constable of Dorset  EWCA Civ 1047
This case built on previous principles and earlier cases within the sphere of misconduct and personal mitigation, particularly dealing with consideration of operational dishonesty. At paragraph 23, the importance of public confidence was highlighted by Lord Justice Maurice Kay:
‘As to personal mitigation, just as an unexpectedly errant solicitor can usually refer to an unblemished past and the esteem of his colleagues, so will a police officer often be able so to do. However, because of the importance of public confidence, the potential of such mitigation is necessarily limited.’
The case of Williams
The Queen on the application of Darren Williams v Police Appeals Tribunal Commissioner of Police of the Metropolis  EWHC 2708 (Admin)
The principles concerning personal mitigation were revisited in Williams by way of a claim for judicial review following a Police Appeals tribunal upholding an earlier decision by a misconduct Panel that an officer should be dismissed.
It is correct that the judgment in this case identified that personal mitigation carried diminished weight in cases of misconduct, and that those issues applied to all forms of misconduct, not only dishonesty or a lack of integrity.
At first blush, this would appear to be a one-way street in terms of outcome. At paragraph 64 within Williams it was identified that “personal mitigation can carry only limited weight when a disciplinary body is considering the appropriate sanction in a case involving dishonesty or lack of integrity.”
It identified the following two reasons:
“The first, and fundamental, reason is that the purpose of the sanction is not primarily punitive, and often not punitive at all: the purpose is to maintain public confidence in and respect for the police service or the profession concerned. Personal mitigation which may provide a ground for reducing the punishment which would otherwise be imposed for a criminal offence cannot therefore have the same effect in disciplinary proceedings which have a different, and wholly or largely non-punitive, purpose.”
“The second is that in criminal proceedings, a defendant’s personal mitigation may enable him to distinguish himself from others convicted of similar offences, and so to demonstrate that the normal punishment for his offence would be unduly severe in his case. In contrast, a defaulting police officer or professional person will usually be able to adduce evidence of good character and to point to very severe consequences if dismissed or excluded from his or her profession.”
The judgment then went further to identify that in order to protect the public confidence, the principle of limited personal mitigation should extend further to other cases,
“But those two reasons do not apply only to cases of misconduct involving dishonesty or lack of integrity. Each of them is also applicable to cases involving other forms of misconduct.”
Following the case of Williams, further cases have reinforced the limitations of personal mitigation and have endorsed in general terms, the power of a Panel to reach an outcome of dismissal. In The Queen (on the application of the Chief Constable of Northumbria Police) v The Police Appeals Tribunal v Katie Barratt  EWHC 3352 (Admin), the chosen sanction of dismissal for use of offensive and racist language was endorsed.
How then, is Personal Mitigation still relevant?
If one looks deeper into the case of Williams there is reason when representing an officer, to clarify the specific circumstances of the case, and to ensure that discipline Panels remember the importance of the officer’s background.
At paragraph 67 within Williams Mr Justice Holroyde stated,
“This does not mean, of course, that personal mitigation is to be ignored. Nothing in the Salter principle suggests it must be ignored. On the contrary, it must always be taken into account. I therefore reject the submission that the effect of the Salter principle is that dismissal will invariably be the sanction whenever gross misconduct is proved.”
Whilst limitations to personal mitigation exist where there is a threat to the maintenance of public confidence and respect in the police, it is not the case that just because gross misconduct is proved, that dismissal must follow. Therefore, submissions and mitigation that allow a Panel to consider how a properly informed public would view a particular case, means that personal mitigation can still have an important part to play on outcome.
Whilst findings of dishonesty very often end in dismissal (though again not all), it is still important to remember following the judgment in Williams that:
“The appropriate outcome will depend on an assessment of all the circumstances”.
Whilst accepting personal mitigation can be limited after findings of gross misconduct, it is still important to consider how Panels are guided to ensure they do not ignore it. Accepting that the current police guidance will need updating in line with the new Police Conduct Regulations 2020, the current College of Policing “Guidance on outcomes in police misconduct proceedings”, provides specific assistance as to the importance of personal mitigation.
At paragraph 6.7, the guidance highlights the case of Giele v General Medical Council  EWHC 2143 (Admin), which confirmed there is a public interest in retaining those with particular skills and experience. If dismissal is not the inevitable outcome, then in effect a Panel can take relevant skills and experience into account when considering outcome.
The Guidance goes further at paragraph 6.9 to identify that despite some restrictions:
“Nonetheless, personal mitigation is always relevant and should always be taken into account”.
It is important to note as already identified, that police discipline cases are now governed by new regulations. They took effect in February 2020. They supplant the 2012 regulations and provide the framework for new cases where the allegations came to the attention of the Appropriate Authority from 1.2.20. The new regulations amend some of the outcomes. However, even with the new regulations, personal mitigation will remain a relevant and important feature. One that should be advanced on behalf of the Officer and one that Panels must remember to take into account.
Julian King specialises in regulatory and serious criminal cases. He has extensive experience of professional discipline cases and licensing work across numerous practice areas. He has represented police officers across the country in a wide variety of misconduct proceedings.