Appeal allowed against decision by Police Appeals Tribunal reinstating constables dismissed for offensive WhatsApp messages

About this case:

• Citation:
  [2024] CSOH 58
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lady Drummond

Fiona Taylor, the Deputy Police Constable (Designate) in both petitions, argued that the Tribunal had failed to take into account relevant considerations in the cases of constables, CD and AB. The respondents submitted that the reasoning of the Tribunal was adequate and there was no misapplication of the test for gross misconduct.

The petitions were heard by Lady Drummond in the Outer House of the Court of Session. In each case Crawford KC appeared for the petitioner and Dean of Faculty, Dunlop KC for the respondent. Adam, advocate, also appeared for respondent CD and D Blair, advocate, for respondent AB.

Modify issues of appeal

In March or April of 2022, both respondents were served with allocations of misconduct alleging inappropriate discussions through WhatsApp groups, named “Quality Polis” and “PC PIGGIES” about female constables. CD was also said to have made other comments about an unidentified female “Camilla” and to have commented in response to another constable stating he had participated in his first drug raid by saying “Nice one Kev did you keep some for yersel”.

On 28 June 2022, the Chief Superintendent determined that five of the allegations against CD and two against AB amounted to gross misconduct, and in both cases determined that the respondents should be dismissed without notice. Both constables appealed to the Assistant Chief Constable, who upheld the decision, and subsequently to the Police Appeals Tribunal.

The Tribunal decided that, of the five allegations against CD, only one amounted to gross misconduct and a further two were misconduct. In respect of AB, both allegations amounted to misconduct but not gross misconduct. Both constables were therefore reinstated by the Tribunal and issued with a final written warning.

In respect of CD, it was submitted by the petitioner that the decision ought to be reduced on the grounds of unfairness and procedural irregularity. The respondent had not disputed that the two allegations dismissed by the Tribunal constituted misconduct and it was impermissible for the Tribunal to seek to modify the issues of appeal and give the petitioner no opportunity to make submissions on these issues.

Counsel for the petitioner further submitted in both cases that the Tribunal had given inadequate reasons and taken into account irrelevant considerations in its decision-making. It was critical to maintain public confidence in the police, and this purpose in proceedings was not properly addressed.

Real and substantial doubt

In her decision on respondent CD, Lady Drummond observed generally: “The decision of the tribunal may only be interfered with if the court is satisfied that the tribunal erred in law for example by taking into account irrelevant considerations, failing to take into account relevant ones, proceeding contrary to the rules of natural justice or procedural irregularity. The question for the court is whether the tribunal reached a decision adopting a fair procedure and whether its reasons are adequate, intelligible and sufficient in the context and circumstances.”

Assessing whether there had been procedural irregularity, she said: “It cannot be known whether the tribunal’s classification of allegations 1 and 2 would have remained the same had submissions been made about it breaching standards. It is conceivable the tribunal may have been persuaded to reach a different conclusion. Had the tribunal decided, as the parties had agreed, that allegations 1 and 2 were misconduct, it is conceivable that four findings of misconduct and one of gross misconduct might have made a difference to the sanction imposed and a different overall determination.”

In her decision on AB’s case, Lady Drummond said: “It is unclear what the tribunal made of the respondent’s belief the messages were private in light of the legal position that he could have no reasonable expectation of privacy. The matter was put in issue by the petitioner but not resolved. It is not clear that the tribunal have taken into account the correct legal position which was that the respondent could have no reasonable expectation of privacy.”

She concluded: “Overall the informed reader is left in real and substantial doubt about the reasons for the decision. It is difficult to work out what were the reasons for the tribunal deciding that the conduct was misconduct and not gross misconduct. If the tribunal did indeed accept all that was said in the respondent’s submissions about context having a bearing on seriousness, some of the factors relied on were irrelevant to the assessment of conduct.”

The petitioner was therefore successful in both cases. It was agreed by the parties in both cases that the matter should be remitted back to a Police Appeals Tribunal to proceed as accords.