Outer House judge reduces Police Scotland decision to hold separate hearings for three officers accused of similar misconduct
Three police officers have successfully challenged the instigation and form of misconduct proceedings brought against them by Police Scotland in judicial review proceedings before the Outer House of the Court of Session.
The petitioners, all still currently serving police officers, argued that their misconduct hearings ought to be heard together, as the circumstances leading to them were broadly the same for each petitioner and the decision to refer them to separate hearings was procedurally unfair. The decision challenged was made by an Assistant Chief Constable in August 2020.
The petition was heard by Lady Wise. Roddy Dunlop QC, Dean of Faculty, appeared for the petitioners, while the respondents were represented by Maria Maguire QC.
Concerns prior to decision
On 30 July 2017 a man, Frederick McGettigan, handed a handbag that he said he had found by a canal into a police station. The bag belonged to the wife of a serving police officer, Joanne Threshie, who along with her husband later discovered Mr McGettigan’s identity and began to suspect that he had broken into their house and stolen it.
Mr McGettigan was found dead on 9 August 2017. A cousin of Mrs Threshie, Kirk McIntyre, was found guilty of murdering him, while Mrs Threshie was acquitted of the same crime. Following the criminal proceedings, an Investigating Officer was appointed to investigate allegations against the petitioners, concluding in April 2020 that they had a case to answer.
The first petitioner was accused of suggesting to Mr Threshie that Mr McGettigan had been responsible for the housebreaking and of giving false evidence at trial. The second was accused of giving Mr Threshie information that identified Mr McGettigan as the person responsible for the housebreaking, while the third was accused of failing to take any action when he became aware that such information had been passed to Mr Threshie.
In the summer of 2020, each petitioner was referred to a misconduct hearing with a separate chairperson under the Police Service of Scotland (Conduct) Regulations 2014. The possibility of a single chairperson conducting all of the hearings was considered but rejected on the basis that this would be unfair, with a risk that the evidence, findings, or determination relating to one of the petitioners might impact negatively on the others.
It was submitted for the petitioners that there had been procedural unfairness in the decision to hold the misconduct hearings separately with separate chairs. While concerns had been expressed about doing so by a Scottish Police Association representative for the second petitioner, at the time those concerns were aired no decision had been taken to have a hearing or hearings and no binding agreement was made to proceed in that fashion. In terms of the Guidance on the 2014 Regulations, that decision ought to have been taken after the appointment of a chair and following representations from the parties on the matter.
Counsel for the petitioners further submitted that there was also substantive unfairness as the petitioners would suffer real and substantial prejudice in the event of there being separate hearings. There was a general interest in hearing analogous matters together and there was a risk that witnesses common to all three proceedings might give their evidence differently on each occasion.
In her decision, Lady Wise noted: “I accept that there will be a general expectation of a single hearing in a case involving a single IO and a related set of circumstances. What requires scrutiny in this case is the procedure that led to a different a different approach than the default position of a single hearing being adopted and the reasons given subsequently for that departure.”
She continued: “What appears to have occurred is that ACC Speirs reached his decision largely on the basis of what he understood was a representation on behalf of the petitioners that they did not wish to appear before a single chair at a combined hearing. Even leaving aside the error in the letter of 8 September 2020 where it states that the decision to refer each of the four officers to misconduct hearings had been made before [the] purported representations, it is clear that ACC Speirs relied heavily on what he understood, wrongly, to have been representations made on behalf of the officers.”
Considering the petitioner’s arguments together with the Guidance, Lady Wise said: “If there are separate hearings arising from the same broad factual matrix which were investigated together by a single IO, different decision makers may assess the same facts differently and reach mutually inconsistent decisions. It is indisputable that the potential consequences for the petitioners are of the most severe kind and the risk of inconsistent findings between separate chairs hearing at least some of the same witnesses is a sufficient basis to be satisfied about the decision made causing prejudice to the petitioners.”
She went on to say: “The question of a single or joint hearing was not one for open debate, but one which had to start with the Guidance. ACC Speirs reached his decision on separate hearings after taking an irrelevant consideration into account. In the absence of strong justification for any departure from the Guidance his decision making does not withstand scrutiny.”
Lady Wise concluded: “I acknowledge and understand the respondents’ concern that the outcome in this case could have implications for their well established procedures. However, the errors made in this particular case arose largely from an absence of clarity about when and by whom decisions as to procedure at misconduct hearings are actually taken and the distinction between an SPF official expressing a personal view and representing the view of a police officer or officers on their behalf.”
For these reasons, the petition was granted, and the decision reduced.
© Scottish Legal News Ltd 2021