The Commissioner of Police of the Metropolis, R (on the application of) v Police Misconduct Tribunal

1. The Commissioner of Police of the Metropolis (“ the Claimant ”) seeks to challenge the decision of the Police Misconduct Tribunal (“ the Tribunal ” or “ the Panel ”) on 8 October 2024 (with full written reasons given on 10 October 2024) concerning Police Sergeant Paul Hollis (“ PS Hollis ” or “ the Interested Party ”). The Claimant was the Appropriate Authority (the “ AA ”, as defined by regulation 2(1) of the Police (Conduct) Regulations 2020 (“ the Regulations ”)) for the purposes of the disciplinary proceedings.

2. The Tribunal found PS Hollis’ behaviour breached the Professional Standards of “Authority, Respect and Courtesy” and of “Discreditable Conduct” and those breaches were assessed as gross misconduct. The Tribunal determined that PS Hollis’s behaviour did not breach the Professional Standard of Equality and Diversity. The Tribunal’s decision on outcome was to impose a final written warning.

3. Two grounds of challenge are advanced by the Claimant: (a) The decision that the Professional Standard of Equality & Diversity was not breached was unlawful and/or irrational. (b) The decision to impose a final written warning was unlawful and/or irrational.

4. The application is opposed by the Interested Party.

5. Permission for judicial review was granted in relation to both grounds by HHJ Dight CBE, sitting as a Judge of the High Court, on 11 March 2025. In granting permission, HHJ Dight CBE observed “[i]t is arguable that the Defendant misconstrued the relevant Professional Standards and accordingly misdirected itself in assessing the behaviour of the Interested Party and approached the allegations on too narrow a basis…. If the Claimant succeeds in its challenge as to the findings of breach of Professional Standards then it follows, in my view, that the challenge to the penalty imposed is also reasonably arguable ”.

6. In these proceedings the Claimant was represented by Ms Taylor of counsel, who did not appear before the Tribunal. As is usual in cases of this sort, the Tribunal played no active part in the challenge. PS Hollis was represented by Mr Robert Morris of counsel who had also represented PS Hollis before the Tribunal. Both Ms Taylor and Mr Morris submitted skeleton arguments in advance of the hearing and made detailed oral submissions at the hearing. I am grateful to both counsel as well as those instructing them for their assistance.

7. The judgment is divided into the following sections: a) The factual background b) The hearing before the Tribunal and their decision at the hearing c) The Tribunal’s written report d) The regulatory framework and guidance e) Ground One f) Ground Two g) Disposal A)​ The factual background

8. PS Hollis was referred to a misconduct hearing in respect of two allegations concerning comments that he had made on separate occasions to Designated Detention Officers (“ DDOs ”).

9. The Particulars pursuant to Regulation 30 of the Regulations of the referral were: “ Allegation 1: Being a serving member of the Metropolitan Police Service, in around July 2022, whilst on duty, you had a conversation with DDO Sadler about her leaving early from work. At the time, DDO Sadler was roughly 16 weeks’ pregnant and had been allowed to go home early on the date in question because she was suffering from back pain. As part of that conversation, you said the following to DDO Sadler: “ you getting special treatment because you laid back like a whore ”, or words to that effect. At the time of this remark, you were aware that DDO Sadler was pregnant. Allegation 2

2. Being a serving member of the Metropolitan Police Service, on 4 September 2022, you were on duty as acting custody support inspector. The team members also on duty at that time included DDO Salici. At 12:05 you sent a WhatsApp message to DDO Salici stating the following: “ I can still smell your clunge in the back office ”. At the time, you and DDO Salici both understood the term “ clunge ” to mean “ vagina ”.

3. In the premises, by reason of the matters above, either individually or collectively, it is contended that your behaviour does not meet the standards required by the Standards of Professional Behaviour set out in Schedule 2 of the Police (Conduct) Regulations 2020, specifically in respect of the following standards: i. Authority, Respect and Courtesy. ii. Equality and Diversity. iii. Discreditable Conduct.

4. As a result of your behaviour as set out above, your conduct singularly or in its totality amounts to Gross misconduct.” B) The hearing before the Tribunal and their decision at the hearing

10. PS Hollis was referred to a Misconduct Hearing under Part 4 of the Regulations. This was heard by a Panel on 7 th and 8 th October 2024. The Panel consisted of Stacey Patel (Legally Qualified Chair), Detective Superintendent Allison Drew (Assessor) and Steven Hearn (Independent Panel Member). The hearing before the Tribunal

11. At the start of the hearing PS Hollis confirmed the response that he had given pursuant to Regulation 31 on 29 January 2024 in which he admitted both allegations although he maintained that he “ couldn’t recall ” using the word “ whore ”. He described the comments as “stupid and puerile ” and “disgusting and inappropriate” but stated that they had been meant “ in jest ”. PS Hollis accepted that he had breached the standards of Authority, Respect and Courtesy and of Discreditable Conduct. He denied that his behaviour was a breach of the Equality and Diversity standard.

12. PS Hollis also denied that his behaviour amounted to gross misconduct. He submitted that his conduct should be dealt with as reflective practice, or as misconduct only. PS Hollis relied upon his good working and personal relationship with both DDOs and felt that his jokes were made with affection. He apologised and accepted that his behaviour was inappropriate and unprofessional and that such comments should not have been made. The officer supplied character references.

13. The Claimant’s case in respect of the alleged breach of the Equality and Diversity standard was put in the Opening Note for the hearing in this way: “8. As set out above, the Panel will be required to consider whether the Officer by his actions has discriminated unlawfully or unfairly when considering the SPB of Equality and Diversity.

9. Unlawful discrimination in the workplace gives rise to considerations under the Equality Act 2010 (“EqA 2010”). The Panel is invited to consider the Officer’s comments with reference to the statutory test of harassment (in respect of the protected characteristics under s.4 of EqA 2010 of sex and pregnancy).

10. The Panel will find further guidance when assessing the breach of Equality and Diversity in the Independent Police Complaints Commission Guidelines for Handling Allegations of Discrimination (“IPCC Guidelines”), in particular sections 1.1 – 1.14.

11. Harassment requires unwanted conduct related to a person’s protected characteristic or unwanted conduct of a sexual nature, and that conduct has the purpose or effect of violating the person’s dignity or creating an intimidating / hostile / degrading / offensive environment (see s.26 EqA 2010). The IPCC Guidelines note at s.1.14: ‘ this would include making offensive comments or jokes or insulting gestures that relate to a relevant protected characteristic....’.

12. It is the AA’s case that: a. The Officer’s comments were made in relation to DDO Sadler’s pregnancy and / or sex, and DDO Salici’s sex; and those comments were unwanted; or b. The Officer’s comments were unwanted and of a sexual nature; and c. The comments had the purpose or effect of violating the DDOs’ dignity or creating an intimidating / hostile / degrading / offensive environment for them.

13. The Panel will note that in deciding whether the conduct has the purpose / effect as alleged, the DDO’s perception must be taken into account, however, this personal perception is only one factor for consideration: the Panel must also consider the other circumstances of the case, as well as whether it is reasonable for the conduct to have the effect as alleged: see s.26(4) EqA 2010. In this case, the AA highlights the following; both DDOs did not consider the comments to be funny regardless of any familiar relationship with the Officer; both DDOs were reported to be offended by the comments; PS Reid was ‘alarmed by the offensive and inappropriate nature of the message [to DDO Salici]’; the comments are objectively offensive and particularly so for a superior officer to have made to junior female colleagues at the workplace.

14. Whilst the above legal principles are set out in respect of unlawful discrimination, it is highlighted that the AA is not required to prove a breach of the EqA 2010, but only a breach of the SPB (i.e. that the Officer has acted without fairness and impartiality or has discriminated unlawfully or unfairly) .” (Emphasis added)

14. As is apparent from that Opening Note, the predominant focus of the Claimant’s case against PS Hollis in respect of the Equality and Diversity standard was that his behaviour constituted unlawful discrimination on the ground that it amounted to harassment. However, the Claimant also advanced the case on the unparticularised basis that he had “ acted ” without fairness and impartiality or that he had discriminated unlawfully or unfairly (see paragraph 14 of the Opening Note, above).

15. In the Claimant’s closing submissions to the Tribunal, the focus was on the allegation of harassment: “Turning then to the thorny issue of equality and diversity, which is not accepted by the officer, I deal with this in more detail at paragraphs 8 through to 14 of the opening note. At the outset what I would highlight is that it is for the [Appropriate Authority] to prove that there is a breach of the standard of equality and diversity. Namely that the officer failed to act with fairness and impartiality and/or that he discriminated unfairly or unlawfully. The panel will have assistance from the IPCC guidelines, which are the guidelines for handling complaints of discrimination. THE CHAIR: They are accessible to us. That is fine. [COUNSEL FOR THE CLAIMANT]: I would invite you to note first in the summary guide section (v), there are outlines there of what discrimination actually involves and all sorts of different types of discrimination which includes harassment, roughly halfway down the page. Over the page on page (vi) there is a section there headed, "Assessing Gravity", which I would invite you to take into account in terms of looking at the impact, intent, serious negligence or recklessness, repeat behaviour, level of responsibility when assessing the conduct in question. You also have the benefit of more specific guidance to harassment, which is at 1.13 to 1.14 within the guidance document. Would it be of assistance to take you to that or explain the relevance of that guidance in any further detail? THE CHAIR: It would probably assist the panel if you could take it to the parts that -- yes. Let us say, "Yes it will". [COUNSEL FOR THE CLAIMANT]: In which case then, if I turn you to page 5 of the guidance and this sets out 1.13 that harassment under the Equality Act is prohibited relating to a relevant protected characteristic. I will come to deal with the Equality Act in more detail in due course.”

16. Having taken the Tribunal through the IPCC Guidelines, the Claimant continued: “In my submission, the panel's assessment will turn on section 26.1(b) of the Equality Act which is to say the conduct has the purpose or effect of violating these (sic) dignity or creating an intimidating hostile, degrading, humiliating or offensive environment which in future I will summarise as an adverse environment. It is less of a mouthful. You will be assisted by section 26.4 of the Equality Act which guides you when assessing whether the conduct has the effect intended to take into account the section of (b), the other circumstances of the case and whether it is reasonable for the conduct to have that effect.” (Emphasis added)

17. The Claimant submitted that the key consideration for the Tribunal was whether or not, regardless of intention, the comments by PS Hollis did in fact create an adverse environment for the two DDOs. The Claimant referred to a Note which had been prepared by Mr Morris, and which had subsequently been agreed by the Claimant: “In terms of that question, you have the assistance of a note prepared by my learned friend which references Altemimi and I would invite you to note paragraph 5 of the judgment in Altemimi which references a court of appeal case of Pemberton , which does confirm that the perception of the -- is key, so as to say if you do not find that the DDOs themselves did not consider the comments to have had the effect of creating an adverse environment for them, then the test under section 26 is not made out and I accept that.”

18. The Claimant concluded by referring to its alternative case: “So, for those reasons, the [Claimant] invites you to find all three standards breached, including the equality and diversity standard. Even if you do not consider section 26 of the Equality Act is made out, you could still make a finding of a breach of the equality and diversity standards because it is (Inaudible) that he acted unfairly in the circumstances .” (Emphasis added)

19. The focus of PS Hollis’ defence was correspondingly on the alleged breach of the Equality Act 2010. In respect of the Claimant’s “alternative” case in respect of the breach of the Equality and Diversity Standard, in closing submissions Mr Morris argued: “Equally the appropriate authority's suggestion that even if section 26 of the Equality Act is not engaged there might just be a further breach of standard of equality and diversity I am afraid to say is misconceived. Neither DDO suggested that they had, in fact, been unfairly treated by this officer in any discriminatory way. Both of them explained that they understood the officer to be making a joke but they did not actually feel badly treated by the officer. The way the equality and diversity standard is set out in schedule 2 of the Conduct Regulations is to focus on action. Are you treating individuals impartially or unfairly, perhaps favouring one individual because of a protected characteristic or adversely treating an individual because of protected characteristic? Neither of them complained that this officer was treating them unfairly as you sometimes find in other cases where two individuals embark upon a romantic relationship. The relationship goes badly and then the individual is treated badly. There is nothing of that kind here. So there is no adverse treatment. There is no unfair treatment in that case. What one is dealing with is an inappropriate joke which those officers, even though jokes can sometimes lead to that hostile environment, both these DDOs say, "Well that adverse environment simply was not created". Sgt Reid's opinion on how DDO Salici felt about it may not really assist you very much, particularly when you may conclude that the reason DDO Salici was upset about the matter because it was, in fact, being taken further when she felt the matter had been dealt with. As she said in her statement, "To me, this felt like the matter had been dealt with" and both acknowledged it was inappropriate but dealt with. That is the first issue in terms of law on the Equality Act and why the appropriate authority's position in relation to equality and diversity is misconceived. The second overarching submission I would like to make is in relation to effectively your assessment of seriousness.” The Tribunal’s decision on whether there had been a breach of the Equality and Diversity standard

20. At the end of the hearing, the Tribunal gave their decision orally in respect of whether or not there had been a breach of the Equality and Diversity standard: “Taking into account all of the above and in addition the IPPC guidance and the case of [ Altemimi ] that we were referred to, the panel finds that neither DDO Sadler or Salici perceive that their dignity had been violated, nor that an adverse or hostile environment had been created for them and that we do not consider that the officer acted in a way as to cause sexual harassment, pursuant to Section 26 of the Equality Act. The panel then went on to consider if the officer discriminated unlawfully or unfairly as the standard of professional behaviour, and for all the same reasons as mentioned before, we do not find that he acted in this manner. Therefore, overall, the panel do not find that there was a breach of the professional standard of equality and diversity.” The Tribunal’s decision on seriousness

21. The Tribunal then gave their reasons for concluding that the breaches of the two Standards amounted to misconduct. In relation to their assessment of whether PS Hollis’s actions amounted to misconduct and the seriousness, the Tribunal said: “In assessing whether PS Hollis's actions amount to misconduct or gross misconduct, the panel have looked at the College of Policing Guidance on Outcomes and assessed the seriousness of the matters. With regards to culpability, the panel do find an element of planning, with regards to DDO Salici, in that the officer says himself he sent it to shock her. However, we do accept that this was not premeditated to any great degree. We also find that while harm was unintentional, the panel do consider that the officer could have reasonably foreseen that by using the words, "Whore", and "Clunge", that there was a risk of harm, and we also consider that culpability is increased as the officer was holding a position of responsibility and trust at the time. The panel also considered the section on sexual impropriety within those guidelines. But as we have found no harassment, predatory behaviour, any desire for a sexual relationship or issues of misogyny, we do not consider these to be relevant to these proceedings. Moving onto harm, the panel found that no individual harm was caused to either of the DDOs, by virtue of the own evidence, as I referenced earlier. However, there is reputational harm, and we consider that these comments would harm public confidence. The panel took into account paragraph 4.66, where the College of Policing Guidance direct that: "Panels must always take misconduct seriously that undermines discipline and good order within the police service, even if it does not result in harm to individual victims". Turning to the aggravating factors and taking care not to double count, reconsider the only one applies here, and that is continuing the behaviour after the office realised or should have realised that it was improper. We deemed this relevant, because after saying the word, "Whore", to DDO Sadler, comments of such a nature should not have been repeated to DDO Salici. Turning to mitigating factors, we consider that both incident were of a brief duration. There were open admissions at an early stage. We have found evidence of genuine remorse and insight, although the panel does note that no immediate apology was given at the time of the incident. Taking all of the above into account, the panel considers that the use of the word, "Whore", and "Clunge", in a workplace environment, to junior female colleagues, is so serious that dismissal from the Force could be justified. Therefore, we find that these breaches amount to gross misconduct.”

22. The Tribunal adjourned to give the parties an opportunity to prepare their submissions on sanctions. Following the adjournment the Panel went on to hear submissions on sanctions and then gave their decision on sanction: “Thank you. Please be seated. Everyone can hear us in the gallery. Right, PS Hollis, I'm going to be fair to you first of all and tell you that we are not going to dismiss you from the (Several inaudible words). But now you need to bear with me while I go through the full reasons for our decision. The panel have assessed the seriousness in this case, and I've already read out earlier our four-step approach from the case of Fuglers , and I don't seek to repeat it here because all of our previous submissions will remain the same. We have considered, therefore, started with the lowest of sanctions, if a final written warning would suffice in this case. We've taken into account the whole circumstances and considered if the effect of PS Hollis's actions significantly undermine the trust that the public need to have in the police system. In determining this, our overall assessment of this case is that you, PS Hollis, are a good police officer. We've taken into account the evidence that we've heard from the DDOs themselves and how they viewed the incident and how it affected them. We have read your character references and do find that you are a supportive officer, who genuinely regrets his actions and has insight into them. Overall, we find that this is a bad joke gone wrong and that you did not say it with any malicious thought and without any sexual motive or intent. However, you were also a senior officer, on duty, and you should have known that this sort of language is completely unacceptable in the workplace and should never be directed at anyone, let alone junior female colleagues, and on these two brief occasions you did not display the high standards expected of a police officer. But taking all of this into account, we do feel that a fair-minded member of the public, who has heard the facts of this case, as we have, would consider that a higher sanction would not be proportionate. Therefore, the decision of this panel is one of a final written warning for a period of two years. Is there anything else that any of the parties wish to raise?” (Emphasis added) (B) The Tribunal’s written Report

23. The Tribunal’s Report notifying the Appropriate Authority of the outcome of the hearing (in accordance with regulation 43(1) of the 2020 Regulations) was provided two days later on 10 October 2024.

24. The Report noted that the Panel accepted PS Hollis’s admissions of two standards of Professional Conduct, namely, Authority Respect and Courtesy and Discreditable Conduct. In relation to the Standard of Equality and Diversity the Tribunal said: “28. Turning to the Regulation 30 Notice and the allegations found proved therein, the Appropriate Authority also referred to the Standard of Equality and Diversity. A breach of this Standard was denied by the Officer. The Panel has carefully considered that standard as relied upon within the Regulation 30 Notice and whether the conduct of PS Hollis has amounted to a breach of that standard.

29. The standard of Equality and Diversity requires police officers to act with fairness and impartiality. They do not discriminate unlawfully or unfairly. In determining a breach of this standard, the panel also had to consider unlawful discrimination in the workplace by virtue of the Equality Act 2010 and the statutory test of harassment in respect of the protected characteristics under s4 of sex.

30. The legislation on sexual harassment comes from s26 Equality Act 2010 and reads as follows: […]”

25. The Tribunal summarised the submissions that had been made, noting that “33. [Counsel for the Claimant] concluded by reminding the panel that if a breach of s26 was not found, to consider if the Officer discriminated unlawfully or unfairly to the DDOs under the Standard of Equality and Diversity. She submitted that by using the words “whore” and “clunge” to junior female officers, this could be considered unlawful discrimination .” (Emphasis added)

26. The Tribunal then set out their conclusions: “37. In respect of the breach of Equality and Diversity the panel first looked at s26 Equality Act 2010. First turning to S26 (1) (a) by way of his admissions, the panel consider the Officer did engage in unwanted conduct related to a protected characteristic, namely sex. However, they examined closely the provision of s26 (1) (b) and considered if the conduct had the purpose or effect of violating the DDO’s dignity or creating an intimidating, hostile, degrading humiliating or offensive environment for the DDO.

38. Starting with DDO Sadler, in her statement she said “ He said this in a jokey way thinking he was being funny” and “ I don’t believe he did this in a malicious way…. I I didn’t take it as a personal attack that was done to cause me harm ” In oral evidence, she stated that she wasn’t “ sad or upset by it ” and that it “annoyed” her a bit. Turning to DDO Salici her statement reads that she “ did not feel sexualised, insulted or offended by this comment and was just shocked at the content as it was very random ” In oral evidence, she said that she didn’t think PS Hollis to be a sexual predator nor that he has any sexual interest in her and she showed PS Reid as [she] thought it was funny, not as she was distressed. PS Reid does give conflicting evidence to this; in his statement he says that DDO Salici looked “ shocked and angry ” and she was “ angry and disgusted ” by the message. In evidence, he said that she was visibly upset and he saw a difference in her behaviour upon seeing the message. The panel considered PS Reid’s evidence and accept that he could have perceived DDO Salici as bring shocked and upset, however the panel preferred the evidence of the victim herself about how the message affected her and not another’s perception of those feelings. The panel have also had regard to PS Stenning’s statement, but placed little weight on this as it was mainly all hearsay.

39. Taking into account all of the above and in addition the IPCC Guidance and the case of Altemim i that was referred to, the panel found that neither DDO Sadler or Salici perceived that their dignity has been violated, nor an adverse or hostile environment created for them and thus they did not believe the officer acted in a way as to cause sexual harassment pursuant to s26 Equality Act.

40. The panel then went on to consider if the Officer discriminated unlawfully or unfairly under the standard of professional behaviour, and for all the same reasons as mentioned above, they did not find that he acted in this manner and therefore overall, the panel do not find that there is a breach of the Professional Standard of Equality and Diversity.”

27. The Tribunal went on to make their findings as to misconduct: “44. Having accepted the admissions of breaching the standards of Authority, Respect and Courtesy and Discreditable Conduct, the panel first considered referring the matter for the reflective review process. It took into account Mr Morris’ arguments regarding the change in the 2020 Regulations to demonstrate reflection and learning rather than punishment. However, it has concluded that the words “Whore” and “clunge” when directed to junior female colleagues in the workplace, too serious to be dealt in this manner and we have determined that they amount to a type of misconduct.

45. The Panel went on to consider whether the breaches amount to gross misconduct – gross misconduct is defined in the Regulations as meaning a breach of the standards of professional behaviour so serious as to justify dismissal.

46. When deliberating, the Panel has reminded itself of the need to protect public confidence in and the reputation of the police service, the need to maintain high professional standards and the need to protect the public and officers and staff by preventing similar misconduct in the future.

47. The panel has carefully considered the circumstances of the case and the breaches found. The panel was particularly concerned by the following matters: a. The Officer was in a supervisory role at the time. b. The specific words used of “whore” and “clunge” are particularly offensive references to females and their genitalia and were directed on both occasions to junior colleagues.

48. For these reasons, the Panel was entirely satisfied that the misconduct was properly to be categorised as gross misconduct.”

28. The Tribunal then turned to set out its findings as to the appropriate outcome which they did in detail: “53. The Panel has regard to the [College of Policing Guidance on Outcomes] and reminded itself that in reaching its decision on outcome the Panel must have regard to the public interest, which includes the need to protect the public, to maintain confidence in the police service, and to declare and uphold proper standards of conduct and behaviour. References to paragraphs below are references to the Guidance. The Panel approached its decision on outcome in three stages to determining the appropriate sanction: Stage 1: Assess the seriousness of the misconduct. Stage 2: Keep in mind the purpose of disciplinary action Stage 3: Choose the sanction which most appropriately fulfils that purpose for the seriousness of the conduct in question.

54. In assessing the seriousness of the conduct found proven the panel have had regard to 4 issues namely a. The Officer’s culpability b. The harm caused by the misconduct c. The existence of any aggravating factors d. The existence of any mitigation factors Stage 1: Seriousness of misconduct Culpability

55. The panel found an element of planning with regards to DDO Salici in that the Officer says himself he sent it to shock her however they accepted that this was not pre-mediated to a great degree. They found also that while the harm was unintentional, the panel considered that the Officer could have reasonably foreseen that by using the words “Whore” and “clunge” there was a risk of harm. The panel also considered that culpability was increased as the Officer was holding a position of responsibility and trust at the time.

56. The panel also considered the section on sexual impropriety but as they found no harassment, predatory behaviour, any desire for sexual relationship or issues of misogyny, it was not considered relevant to these proceedings. Harm

57. The panel found that no individual harm was caused to either DDOs by virtue of their own evidence referenced before. However, there was reputational harm as the comments would harm public confidence. The panel bore in mind para 4.66 of the Guidance which states: “Always take misconduct seriously that undermines discipline and good order within the police service, even if it does not result in harm to individual victims.” Aggravating Factors

58. Taking care not to double count, the panel considered the relevant factor to be: - Continuing the behaviour after the Officer realised, or should have realised, that it was improper. This was relevant as after saying the word “whore” to DDO Sadler, comments of such a nature should not have been repeated to DDO Salici. Mitigating factors

59. Both incidents are of a brief duration Open admissions at an early stage Evidence of genuine remorse and insight, although the panel does note that no immediate apology was given at the time of the incident Personal mitigation

60. The Panel has also considered the Guidance which states that personal mitigation is to be taken into account, however its impact will be limited in police misconduct hearings because of the need to maintain public confidence in the police. Mr Justice Burnet (sic) in Salter -v-The Chief Constable of Dorset [2012] EWCA Civ 1047 and [2011] EWHC 3366(Admin) at paragraph 73 concluded: ‘…the correct approach for a decision maker is to recognise that a sanction which results in the officer concerned leaving the force would be the almost inevitable outcome in cases involving operational dishonesty. That terminology itself recognises that there may be exceptions. In concluding that the case is exceptional, the decision maker must identify the features of the circumstances of the misconduct which supports a different conclusion, recognising that the number of such cases would be very small. The decision maker would take account of personal mitigation but must recognise its limited impact in this area.’

61. Nevertheless the panel considered the character references that were provided on behalf of the Officer which contained many references to his professionalism, strong work ethic, dedication to duty and compassion. Stage 2: Keep in mind the purpose of disciplinary action

62. In considering the outcome, the Panel also bore in mind the purpose of the police misconduct regime which is threefold: (a) To maintain public confidence in, and the reputation of, the police service. (b) To uphold high standards in policing and deter misconduct. (c) To protect the public. Stage 3: Choose the sanction which most appropriately fulfils that purpose for the seriousness of the conduct in question.

63. The panel then went on to consider the outcome which would most appropriately fulfil the purposes of imposing sanctions in the light of the seriousness of the Officer’s conduct. The panel considered all the available outcomes, starting with the least serious. The panel considered whether a Final Written Warning would be appropriate in this case or whether the seriousness of the case required a sanction of Reduction in Rank or Dismissal Without Notice.

64. Based on the assessment of seriousness that had been carried out, the panel came to the view that the appropriate sanction is for the Officer to be issued with a Final Written Warning for a period of two years, as per Regulation 42 (9)(b) of the amended 2020 Regulations.

65. The panel considered this to be a proportionate outcome in this case and considered that this sanction would be sufficient to maintain public confidence in the reputation of the police force as they have already marked the gravity of the Officer’s conduct by it’s (sic) finding of Gross Misconduct” (C) The Regulatory Framework and Guidance The Standards of Professional Behaviour

29. The Standards of Professional Behaviour are defined in Schedule 2 to the 2020 Regulations: “Authority, Respect and Courtesy Police officers act with self-control and tolerance, treating members of the public and colleagues with respect and courtesy. Police officers do not abuse their powers or authority and respect the rights of all individuals. Equality and Diversity Police officers act with fairness and impartiality. They do not discriminate unlawfully or unfairly. Discreditable Conduct Police officers behave in a manner which does not discredit the police service or undermine public confidence in it, whether on or off duty. Police officers report any action taken against them for a criminal offence, any conditions imposed on them by a court or the receipt of any penalty notice.”

30. Paragraph 29 of Schedule 3 to the 2002 Act and regulation 2(1) of the Conduct Regulations 2020 define “ gross misconduct ” as a breach of the Standards of Professional Behaviour that is so serious as to justify dismissal. Regulation 42(3)(b) of the Conduct Regulations 2020 provides that following a determination that the conduct of the officer amounts to gross misconduct the following sanctions can be imposed: (i) a final written warning; (ii) reduction in rank; (iii) dismissal without notice.

31. The IPCC guidelines for handling allegations of discrimination (“ the IPCC guidelines ”) provides guidance on unlawful and unfair discrimination. In respect of unfair discrimination, it states at para 1.7 “The Standards of Professional Behaviour also say that police officers must not discriminate unfairly. This covers discrimination of other identifiable groups that are not protected under the Equality Act. This could include, for example, homeless people or sex workers or groups from a particular town/region or from alternative sub-cultures such as goths, emos or punks. It could also include minority language speakers, such as Welsh language speakers, and it could include young people and children, as under 18s are not covered by the protection from age discrimination under the Equality Act.” O utcomes

32. Statutory guidance pursuant to section 87 of the Police Act 1996 has been issued by the College of Policing which is intended to assist persons appointed to conduct police misconduct proceedings. The College of Policing Guidance on Outcomes in Police Misconduct Proceedings (“ the Outcomes Guidance ”) recommends that a Panel follow the staged approach to determining outcome, which largely reflects the approach prescribed by Popplewell J (as he then was) in Fuglers LLP v Solicitors Regulation Authority [2014] EWHC 179 (Admin). That was a case involving the Solicitors Disciplinary Tribunal which had imposed fines on the firm of solicitors and two of its members following misuse of funds in the firm’s account. He made the following observations on the approach of the tribunal to determining sanction: “28. There are three stages to the approach which should be adopted by a Solicitors Disciplinary Tribunal in determining sanction. The first stage is to assess the seriousness of the misconduct. The second stage is to keep in mind the purpose for which sanctions are imposed by such a tribunal. The third stage is to choose the sanction which most appropriately fulfils that purpose for the seriousness of the conduct in question.

29. In assessing seriousness the most important factors will be (1) the culpability for the misconduct in question and (2) the harm caused by the misconduct. Such harm is not measured wholly, or even primarily, by financial loss caused to any individual or entity. A factor of the greatest importance is the impact of the misconduct upon the standing and reputation of the profession as a whole. Moreover the seriousness of the misconduct may lie in the risk of harm to which the misconduct gives rise, whether or not as things turn out the risk eventuates. The assessment of seriousness will also be informed by (3) aggravating factors (eg previous disciplinary matters) and (4) mitigating factors (eg admissions at an early stage or making good any loss) …

30. At the second stage, the tribunal must have in mind that by far the most important purpose of imposing disciplinary sanctions is addressed to other members of the profession, the reputation of the profession as a whole, and the general public who use the services of the profession, rather than the particular solicitors whose misconduct is being sanctioned. ..

33. At the third stage, the tribunal will first consider which category of sanction is appropriate from the range which is available to it. …” Ground One The Claimant’s submissions

33. The Claimant argued that paragraph 40 of the Tribunal’s written report (cited above at paragraph 26) was “ inadequate and wrong in law ”. The Claimant submitted that when the Tribunal found that they had not been satisfied “ for the same reasons ” as the findings under the Equality Act 2010 the Tribunal fell into error. The Claimant argued that the Tribunal’s application of the Standard should not have been circumscribed by the subjective views of the putative victims.

34. The Claimant relied on three authorities in support of his arguments that the Tribunal had erred by not directing itself to consider whether or not PS Hollis’ conduct had been in breach of the Equality and Diversity standard because it was language which failed to treat people with respect and whilst it might not offend the Equality Act 2010 it was discriminatory language.

35. In R (Chief Constable of Northumbria) v (1) Police Appeals Tribunal (2) Barratt [2019] EWHC 3352 (Admin) (“ Northumbria ”), the officer repeatedly used racist language in reference to staff at a restaurant, when off duty with colleagues after a Christmas night out. In his judgment, Freedman J did not address the Equality and Diversity standard specifically as the admitted allegations were pursued as discreditable conduct. However, Freedman J did consider the concept of discrimination generally in the context of police misconduct and stated when addressing the Police Appeals Tribunal’s use of the words “ unconscious discrimination ” observed at [42]: “Further in context, the word “discrimination” does not refer to an act of discrimination in the sense that would offend the Equality Act 2010. It is not to prefer one person or class of persons over another. It is a reference to discriminatory language .” (at [41], emphasis added)

36. In R (Chief Constable of Avon and Somerset) v Police Misconduct Tribunal; PC Pauline Archer, Ms Jade Sasani (interested parties); the Director General of the IOPC (intervener) [2021] EWHC 1125 (Admin) (“ Sasani ”), the officer used a racist term when referring to her partner sunbathing. The term was used in a conversation with a colleague whilst on duty at a police station. The officer admitted this breached all three of the professional standards that were alleged in this case. In that case the regulation 21 notice in respect of the breach of the Standard of Equality and Diversity had stated that the officer had “ used a racist term, that your words as detailed above were discriminatory, and that you failed to take a proactive approach to opposing discrimination ” (see [4] of the judgment). The panel found a breach of that standard on the basis that “ the use of the offending term does not comply with the duty to treat all people with respect ” ([62] of the judgment). The panel were referred to the Northumbria judgment when considering whether or not there had been a breach of this standard (see [97] of the judgment).

37. Steyn J noted at [108] in her analysis of the decision of the panel: “ … the scope of the Standard of Equality and Diversity … extends beyond unlawful discrimination to cover the use of language which fails to treat all people with respect . This finding [by the panel] was correct .” (emphasis added).

38. Northumbria and Sasani were considered by Mr Mark Ockleton, sitting as a Judge of the High Court, in R (Commissioner of Police of the Metropolis) v Police Misconduct Panel v Eastop (unreported, 15 October 2024) (“ Eastop ”). The claim was undefended and an ex tempore judgment was delivered at the end of the hearing. In that case the officer was at a social event where off-duty Metropolitan Police Service officers were present with family and friends. Some of them were watching a football match on a mobile phone. During a discussion of the teams, PC Eastop was heard to use the word “ nigger ”. He was immediately challenged by officers around him (see [4] of the judgment). The judge observed that there was “ considerable scope for debate as to the precise finding of the Panel as to intention ” in relation to the use of the offensive word. In relation to the whether there had been a breach of the Equality and Diversity Standard the Panel concluded that there was “ no actual evidence that the officer was acting in a discriminatory way. The panel struggles to find that the use of a word possibly without intention necessarily amounts to discrimination .” ([14] of the judgment).

39. Mr Ockleton found that the Panel’s conclusion that there had not been a breach of the Equality and Diversity standard amounted to an error of law (rejecting the argument that it should be analysed through the prism of a rationality challenge, see [32] of the judgment). “ The law on the use of discriminatory language ” within the meaning of Equality and Diversity Standard was “ settled ” by Northumbria and Sasani ([32]). Having found that the officer had used the word then “ it should have found, as a matter of the interpretation of the relevant standard, that he had breached the equality and diversity standard .” (see [38] of the judgment).

40. Finally, the Claimant argued that the court should not focus on particular passages in which the “ alternative ” case was put but at the overall way in which it was pleaded and argued. It was accepted however that a finding that the Equality and Diversity Standard had been breached would not necessarily have increased the gravity of the conduct. The Interested Party’s submissions

41. In his Summary Grounds the Interested Party argued at para 10 that: “Offensive “jokes” may breach the standard of professional behaviour of equality and diversity where they create an intimidating, hostile, degrading, humiliating or offensive environment or where they result in unlawful or unfair treatment of individuals. Where, however, comments are merely directed at individuals who take them as jokes, do not take offence and they do not betray an unfair treatment of individuals, this does not amount to a breach of the standard of equality and diversity.”

42. In his oral submissions on behalf of the Interested Party, a more nuanced position was advanced by Mr Morris. He did not dispute that the use of discriminatory language could amount to a breach of the Equality and Diversity standard. He accepted that the Northumbria , Sasani and Eastop cases, although concerned with racist language, were applicable in principle to the use of offensively sexist language. However, Mr Morris argued that that was not how the case was put against him by the Claimant as the Appropriate Authority. Paragraph 14 of the Claimant’s Opening Note did not refer to the use of discriminatory language being a basis for a finding that the Equality and Diversity Standard had been breached. In the Claimant’s closing submissions to the Tribunal the alternative case was expressed on the basis that PS Hollis had “ acted unfairly in the circumstances ”. He placed emphasis on the word “ acted ” and argued that the case now being advanced by the Claimant was that the Standard was breached not by his actions but by merely using discriminatory language. In any event there was a distinction between using racist slurs and the vulgar and offensive terms used as a joke.

43. It was argued that PS Hollis had been entitled to know how the case against him was being put and the case now being put was not the case that was advanced before the Tribunal. The Interested Party relied on Steyn J’s observations in Sasani where whilst she accepted the Claimant’s argument that the officer’s conduct did constitute harassment contrary to s.26 of the Equality Act 2010, she rejected the argument that Tribunal had erred in making no such finding. That was because the regulation 21 notice had made no allegation of harassment nor was any such allegation made at any stage of the hearing and the Tribunal had in any event made a finding that the Equality and Diversity Standard had been breached (see [110] of the judgment in Sasani ).

44. The Interested Party also submitted that in circumstances where the Tribunal had found “ gross misconduct ” there was a “ sterility to a ground of review which focuses on the label to be applied to the conduct in question, rather than on its gravity per se ” (relying on the judgment of Ellenbogen J in R (Chief Constable of the West Midlands) v Police Misconduct Panel and PS Sarah Srivastava [2022] EWHC 3076 (Admin). Discussion and decision

45. In my judgment it would have been open to the Tribunal to make a finding that PS Hollis did breach the Equality and Diversity Standard by using discriminatory language. I emphasise however that it would have been open to the Tribunal. As in Sasani, I am unable to accept that the Tribunal erred in making no such finding because that was not how the case was put by the Claimant.

46. The Claimant’s case on the Equality and Diversity Standard was predominately put on the basis that PS Hollis’ conduct amounted to harassment contrary to s.26 of the Equality Act 2010. The Claimant argued before the Tribunal that its consideration as to whether or not there had been a breach of that standard would “ turn on ” s.26 of the Equality Act 2010. Insofar as an alternative case was put it was understood by the Tribunal as being “ unlawful discrimination ” (see paragraph 33 the Tribunal’s written report where they summarised the Claimant’s submissions, set out above at paragraph 25). The examples of unlawful discrimination to which the Tribunal were referred were contained in the IPCC guidelines and which did not bear on the facts here.

47. Nowhere in the Opening Note, in the transcript of the hearing, or in the Tribunal’s report is there any reference to the Claimant’s alternative case on Equality and Diversity Standard being put on the basis that PS Hollis had used discriminatory language that whilst not offending the Equality Act 2010 was nonetheless a breach of the Equality and Diversity Standard. Although there is a passing reference to a breach of the Standard being established if an officer had acted “ unfairly ” there is no further elucidation of that being engaged by the use of discriminatory language that did not amount to a breach of the Equality Act. The Tribunal were not referred to the Northumbria , Sasani or Eastop cases. Nor did the Claimant argue that a breach of the Equality and Diversity Standard could be established on the basis that PS Hollis’ comments demonstrated that he had failed to treat all people with respect and that he had used discriminatory language even though such language was not a breach of the Equality Act 2010. If the alternative case had in fact have been put, then no doubt PS Hollis would have responded to it on that basis.

48. The lawfulness of the Tribunal’s findings is to be judged by reference to how the case was put at the hearing before them. Both the Tribunal and PS Hollis were entitled to proceed on the basis that was advanced by the Claimant as the Appropriate Authority bringing the misconduct proceedings. The circumstances here contrast to those in Sasani , where, as I have noted above, the case against the officer was squarely put on that the basis that she had “ used a racist term ” and that the words “ were discriminatory ”. On that basis the panel had found a breach on the basis that “ the use of the offending term does not comply with the duty to treat all people with respect ”. Similarly, in Eastop , whilst the details of how the case was put against the officer are not detailed, the inference must be that it was argued that by using the racist slur the officer had breached the Standard.

49. Whether looking at the particular passages in the bundle concerned with the alternative case or (as contended by the Claimant in his reply submissions) at the overall picture, it is clear to me that the case now being advanced was not advanced before the Tribunal.

50. It follows therefore that the Claimant’s challenge on Ground One fails. Ground Two

51. As noted above at paragraph 5, HHJ Dight KC gave permission on Ground Two on the basis that “ If the Claimant succeeds in its challenge as to the findings of breach of Professional Standards then it follows, in my view, that the challenge to the penalty imposed is also reasonably arguable”. The Claimant argued however that the Ground was not parasitic on the success of Ground One and that it was a free-standing ground of challenge which should succeed even if (as has happened) the court finds against the Claimant on Ground One. The Interested Party did not seek to argue that Ground Two should only be considered if the Claimant succeeded on Ground One and I will consider it as such. The Claimant ‘submissions

52. The Claimant did not accept the Interested Party’s argument that this was a disguised undue leniency challenge. The Claimant argued that the Panel’s decision on outcome was “ unlawful and/or irrational ” for a number of reasons: a. The Panel failed to apply guidance on discriminatory behaviour. b. The Panel failed to apply guidance on sexual impropriety. c. The Panel failed to give sufficient weight to PS Hollis’ position of seniority. d. The Panel gave undue weight to admissions. e. The Panel failed to give sufficient weight to the fact that this conduct gave rise to a pattern of behaviour. f. The Panel conflated their findings on misconduct with the assessment of seriousness. g. The Panel failed to give sufficient weight to the purpose of the regime and harm to the reputation of policing. h. The Panel’s consideration of personal mitigation was contrary to guidance.

53. The Claimant argued that as a consequence the Tribunal failed properly to assess the seriousness of the misconduct “ with regard to all relevant and applicable guidance ”. The Claimant goes on to argue that “ Had all the relevant Guidance been applied, and relevant factors accorded appropriate weight, dismissal without notice was the only rational disciplinary outcome available to the Panel. Alternatively, the determination on disciplinary outcome was reached on a flawed assessment of relevant factors, rendering it unlawful. ” The Interested Party’s submissions

54. PS Hollis argued that the Claimant was wrong to contend that dismissal was the only available outcome in this case. The Tribunal had a discretion as to the appropriate outcome having regard to all of the features of the case. The Interested Party argued that the Tribunal had correctly had regard to the Outcomes Guidance. He relied on the judgment of Swift J in R (on the application of O'Connor) v Police Misconduct Panel [2023] EWHC 2892 (Admin) where at [22] he had held that would be wrong to conclude the Outcomes Guidance “is some form of route map for misconduct panels that either removes or significantly reduces the opportunity for a panel to assess matters for itself. There are two important points to be made. The first is that the legal framework for a panel's decision is provided by the Conduct Regulations….The second point is that the Outcomes Guidance itself recognises the primary role and responsibility of the misconduct panel when it comes to assessing the case before it.”

55. The Interested Party relied on Section 31(2A) of the Senior Courts Act 1981. He argued that even if there was any error in the decision making then it is highly likely that the finding of gross misconduct and the imposition of a final written warning would have been made.

56. The parties’ submissions in respect of the specific criticisms advanced by the Claimant are discussed further below. Discussion and decision The context

57. The Claimant puts this ground of challenge as a rationality challenge as well as failure to follow the guidance. The Claimant submitted that irrationality in the context of misconduct proceedings was explained by Maurice Kay LJ in Salter v Chief Constable of Dorset [2012] EWCA Civ 1047 (“ Salter ”) at [22]: “22. I turn to the third issue, irrationality. That sometimes misunderstood word means no more here than the reaching of a conclusion which no reasonable Tribunal could have reached on the same material with the consequence that its decision was (in the words of Jackson LJ in Salisbury) “clearly inappropriate”. To my mind, this is the central question in the present case. Did the [Police Appeals Tribunal] exceed the limits that were reasonably open to it ?”.

58. As Swift J noted at [15] in Chief Constable of Greater Manchester v Police Misconduct Panel and Taylor [2025] EWHC 3018 (Admin) (“ Taylor ”) the “ Tribunal is in a good position to consider what is necessary to give effect to the overall high-level purposes of the police disciplinary system ”. In considering whether the Tribunal’s decision was “ clearly inappropriate ” (to use the phrase adopted by Maurice Kay LJ in Salter ) I should give “ careful recognition of the Panel’s position within the statutory scheme as the body possessing expertise on questions of maintaining public confidence in and the reputation of police forces ” ( Taylor , at [17]).

59. The Court of Appeal has set out the correct approach to the Outcomes Guidance in R (O’Connor) v Panel Chair (Police Misconduct) and another [2025] EWCA Civ 27, [2025] ICR 1137 (“ O’Connor ”). In that case the Court of Appeal upheld an appeal in part from the judgment of Swift J but approved his observations as to the proper approach to the Outcome Guidance. Nicola Davies LJ (with whom Baker and Bean LJJ agreed) explained at [38] - [42]: “38. The purpose of the Police Misconduct regime is identified as being threefold namely: (i) to maintain public confidence and the reputation of the police service; (ii) to uphold high standards in policing; and (iii) to deter misconduct and protect the public. The Outcomes Guidance provided to Police Misconduct Panels in determining issues of misconduct is detailed. It “outlines a general framework for assessing the seriousness of conduct, including factors which may be taken into account” (para 1.4). The Guidance “does not override the discretion of the person(s) conducting the meeting or hearing. Their function is to determine the appropriate outcome and each case will depend on its particular facts and circumstances. Guidance cannot and should not prescribe the outcome suitable for every case.” (para 1.3.) The wording of these paragraphs, to be found in the Introduction to the Outcomes Guidance, does not support the appellant's contention that the Guidance mandates a specific approach. It is of note that an “outline” of a “general framework” is provided. The discretion of the Panel to determine outcome depending on the facts of an individual case is highlighted. These are not concepts which reflect the imposition of a “mandated” approach by the Outcomes Guidance.

39. Part 4 of the Outcomes Guidance addresses the issue of seriousness, its assessment and, within that assessment, the issues of culpability and harm. It is within this section that reference is made to the authority o f Fuglers and the three stages identified by Popplewell J in determining the appropriate sanction namely: (i) assess the seriousness of misconduct; (ii) keep in mind the purpose of imposing sanctions; and (iii) choose the sanction which most appropriately fulfils that purpose for the seriousness of the conduct in question. In assessing seriousness, Popplewell J identifies the most important factors as being culpability, harm, aggravating and mitigating factors (para 29).

40. I regard the attempt by Judge Pelling in Roscoe to place a gloss upon the clarity of Popplewell J's approach as unnecessary, further it has led to differing judicial interpretations. Some judges have interpreted the phrase “structured approach” as reflecting the three stages identified by Popplewell J in Fuglers and others have read it as also encompassing the assessment of seriousness which includes a further four factors. No gloss is required. The guidance of Popplewell J is clear: there are three stages in the determination of sanction; within the first stage of seriousness are four factors which fall to be considered. These factors can overlap.

41. The nuanced consideration of Eady J in R (Chief Constable of West Midlands Police) v Police Misconduct Panel [2020] EWHC 1400 (Admin) correctly reflects the guidance in Fuglers . Eady J acknowledged that the Panel was required to follow the three-stage approach laid down in the Guidance which reflected the Fuglers guidance but stated that the issue was one of substance rather than form, the Panel was not involved in a tick box exercise (para 53). At para 55 Eady J set out counsel's submissions, namely: “ although the Panel was required to adopt the three-stage approach laid down in the Guidance, the further provisions relating to seriousness were advisory rather than prescriptive—detailing how this element in the structure should be approached, not dictating a further structural requirement .” I agree.

42. I also agree with the observation of Swift J that it is unhelpful to speak in terms of a “structured approach”. This is not a template. There can be overlapping of the different factors/elements and that is why the attempt by the appellant to impose a mandated or structured approach does not reflect the discretion identified in the Outcomes Guidance still less the approach set out in Fuglers . As Swift J stated at para 29, notwithstanding the detail contained in the Outcomes Guidance “it would be wrong to conclude it is some form of route map for Misconduct Panels that either removes or significantly reduces the opportunity for a Panel to assess matters for itself”. The Outcomes Guidance recognises the role and responsibility of the Misconduct Panel in assessing misconduct and sanction and that should be respected.”

60. In allowing the appeal in part, Nicola Davies LJ found that the failure of the Panel to provide “ an adequate analysis, and resulting from it, adequate reasons for its findings in respect of seriousness and within the finding of seriousness the levels of culpability and harm ” to be a significant omission and represent an error of law (see [54] of her judgment).

61. Finally, I remind myself that it is axiomatic that reasons for a decision will always be capable of having been better expressed. It is well-known that a reviewing court should not subject a decision to narrow textual analysis. Nor should it be picked over or construed as though it were a piece of legislation or a contract (see Volpi v Volpi [2022] EWCA Civ 464 at [2 (vi)] per Lewison LJ and Re F [2016] EWCA Civ 546 at [23] per Sir James Munby P). What is required is that there is an “ adequate analysis ” and that “ adequate reasons ” are given (see O’Connor , cited above).

62. With that overview of the context in which I should consider this ground, I will take each of the separate criticisms in turn. The Panel failed to apply guidance on discriminatory behaviour

63. Given my conclusion in respect of Ground One then this criticism necessarily falls away. Having concluded that the conduct had not been discriminatory then the Tribunal were entitled not to refer to the Outcomes Guidance in respect of discriminatory behaviour. Nonetheless it is clear that the Tribunal firmly had in mind the “ particularly offensive ” nature of the language that was used by PS Hollis: see paragraph 47 of the Decision, set out above at paragraph 27. The Panel failed to apply guidance on sexual impropriety

64. Paragraph 4.40 – 4.43 of the Outcomes Guidance states: “4.40 Misconduct involving violence, intimidation or sexual impropriety is serious and can significantly undermine public trust in the profession (see also the section on 'Violence against women and girls'). 4.41 This includes cases involving bullying or harassment, either in the police service or towards members of the public. Give attention to the degree of persistence, the vulnerability of the other party, the number of people subjected to the behaviour and whether the officer was in a specific position of authority or trust. More serious action is likely to be appropriate where the officer has demonstrated predatory behaviour motivated by a desire to establish a sexual or improper emotional relationship with a colleague or member of the public. 4.42 If the matter involves sexual harassment, consider whether the behaviour has been driven by misogyny, which will increase the assessed seriousness. 4.43 The presence of any of these factors is likely to increase the seriousness of the misconduct, although the treatment of a single individual can be sufficiently serious to amount to gross misconduct.”

65. The Tribunal considered this section but found “ no harassment, predatory behaviour, any desire for sexual relationship or issues of misogyny, it was not considered relevant to those proceedings .” (see paragraph 56 of their Decision, set out above at paragraph 28). Given that the Tribunal had rejected the Claimant’s case on harassment that conclusion was one that was clearly open to the Tribunal. The Claimant criticised the finding in relation to misogyny on the basis that the language used was “ self-evidently misogynistic ” however the Outcomes Guidance indicates that the question of whether or not the behaviour had been driven by misogyny arises where the matter involved sexual harassment.

66. In my judgment, the Claimant has not established that there was any public law error in respect of this aspect of the Panel’s consideration of the Outcomes Guidance. The Panel failed to give sufficient weight to PS Hollis’ position of seniority

67. Paragraph 4.12 of the Outcomes Guidance provides: “Culpability will also be increased if the officer was holding a position of trust or responsibility at the relevant time. All police officers are in a position of trust, but an officer’s level of responsibility may be affected by specific circumstantial factors, such as rank, their particular role and their relationship with any persons affected by the misconduct.”

68. The Claimant acknowledged that the Tribunal “ properly found ” that the fact that PS Hollis was in a senior supervisory role increased culpability. The Claimant also acknowledges that the Tribunal was “ right to be wary of double counting in the identification of aggravating factors ”. Nonetheless the Claimant argues that “ the Panel’s fleeting reference to this important factor was inadequate .”

69. I accept the Interested Party’s argument that there is no public law error in this criticism. The Tribunal plainly took into consideration PS Hollis’ seniority in their findings and their decision on outcome. It is wrong to characterise the Tribunal’s consideration of this aspect as “ fleeting ” given that it was evidently a significant factor in their findings – see paragraph 55 of their Report in respect of culpability, set out at paragraph 28 above. Undue weight to admissions

70. The Tribunal considered that PS Hollis had shown genuine remorse and insight albeit that the Tribunal noted that PS Hollis had offered no immediate apology at the time of the incident. The Claimant criticises that conclusion on the basis that PS Hollis had disputed whether or not his conduct amounted to gross misconduct.

71. PS Hollis had made admissions in relation to breaching two of the professional standards. Having heard PS Hollis give evidence, the Tribunal’s findings were reasonably open to them and cannot be impugned as being irrational. Failure to give sufficient weight to the fact that this conduct gave rise to a pattern of behaviour

72. It is not in dispute that this was an issue that the Tribunal took into account. The Tribunal expressly considered that it was a relevant factor – see paragraph 58 of the Tribunal’s written report which I have set out above at paragraph 28. The Claimant criticises the fact that the Tribunal also took into account that both incidents were of brief duration. In my judgment those findings were open to the Tribunal and cannot be said to be irrational. The Tribunal conflated their findings on misconduct with the assessment of seriousness

73. The Claimant argued that paragraph 65 of the Tribunal’s written decision indicates that the Tribunal had conflated their findings of misconduct with their assessment of gross misconduct. It was argued that to do so was not consistent with the Guidance nor “ the structured approach required ”.

74. PS Hollis submitted the Panel did not conflate its finding on misconduct with its assessment of seriousness. The Panel were required to choose the sanction which most appropriately fulfils the purpose of the misconduct regime which includes deterring others from engaging in misconduct. The Panel were entitled to conclude in this particular case that deterrence would be achieved through a finding of gross misconduct and the imposition of a final written warning.

75. I do not consider that the Tribunal’s approach was unlawful. In O’Connor , the Court of Appeal made clear the proper approach to a challenge to a Tribunal’s consideration of the Outcomes Guidance. It is unhelpful to speak in terms of a structured approach. The Guidance is not a template and there can be overlapping of the different factors/elements (see [42] of the judgment, set out at paragraph 59 above). The Tribunal failed to give sufficient weight to the purpose of the regime and harm to the reputation of policing

76. The Claimant argued that the Tribunal failed to demonstrate “ adequate consideration of the purpose of the regime and risk to harm to public confidence in policing ”. The Claimant acknowledges that the Tribunal did make some references to those aspects but argues that the Tribunal did not do so adequately. That was argued to result from the decision on equality and diversity leading to a “ flawed assessment ” and “ insufficient weight being given to the particular nature of the language used ”.

77. PS Hollis argued that this criticism was misconceived given the express reference to these considerations in paragraphs 9 and 53 of the Tribunal’s written report.

78. Recognising the Tribunal’s expertise in this area and the express consideration of the purpose of the regime and risk of harm to public confidence in policing I consider that the Claimant’s criticisms are mis-conceived. As PS Hollis argued, it is clear that the Tribunal had regard to these factors. The Panel’s consideration of personal mitigation was contrary to guidance.

79. The Claimant did not address this criticism at all in the skeleton argument for the hearing. In the course of her oral submissions, Ms Taylor explained that this was an omission on her part and that the Claimant maintained this criticism for the reasons that had been set out in the Claimant’s Statement of Facts and Grounds. The Claimant argued that “ [c]ontrary to the required structured approach and Guidance, the Panel addressed personal mitigation at paragraph 60 of their determination, as part of their assessment of seriousness rather than after concluding that assessment.” The Claimant also argued that that the Panel attributed excessive weight to positive character evidence.

80. Mr Morris on behalf of PS Hollis argued that there was no public law error in the Tribunal’s approach: the Tribunal reminded themselves (at paragraphs 60-61 of their report) that personal mitigation can carry limited weight in police misconduct proceedings and that they were, in any event, required under the guidance to take personal mitigation into account.

81. The Claimant is correct that in the Tribunal’s written report they appear to set out their consideration of personal mitigation as part of their final paragraph in the section headed “ Stage 1: Seriousness of conduct ”: see paragraph 27 above. Consideration of personal mitigation as part of the consideration of seriousness would have been an error (s ee Comr of Police of the Metropolis v Police Conduct Panel [2022] EWHC 2857 (Admin); [2023] ACD23, per Mostyn J at [58]-60] and O’Connor at [64]-[65] per Bean LJ). However, a careful consideration of the transcript where the Tribunal set out their findings on seriousness indicates that the Tribunal did not fall into this error: as can be seen from the extract from the oral reasons for their decision the Tribunal did not consider personal mitigation at the stage of considering seriousness (see above at paragraphs 21 in relation to seriousness and paragraph 22 where the Tribunal make clear that they rely on that analysis in deciding sanction). Insofar as the Report refers to personal mitigation it is clear that the Tribunal are considering that after considering culpability, harm, aggravating factors and mitigating factors. All of which stands in stark contrast to O’Connor where the panel had considered personal mitigation in their section on mitigating factors (see [20] of the judgment) and Comr of Police of the Metropolis v Police Conduct Panel where testimonials must have been “ a, if not the, key factor in leading to the least harsh sanction ” (see [59] of the judgment).

82. As to the Claimant’s criticism that the Panel placed excessive weight on personal mitigation, I consider such criticism to be misplaced. The Tribunal expressly directed themselves by reference to Salter and the fact that personal mitigation has only a “ limited ” impact in police misconduct hearings.

83. In my judgment there is no error of law in the Tribunal’s consideration of personal mitigation. Conclusion

84. Having considered the specific criticisms advanced by the Claimant and stepping back and reading the decision as a whole I am not persuaded that the outcome was irrational on the basis that it “ clearly inappropriate ”. I am similarly unpersuaded that that there was any inadequacy of analysis by the Tribunal such as to amount to an error of law. Ground Two therefore fails. (G) Disposal

85. Grounds One and Two having failed, the Claimant’s application for judicial review is dismissed.