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Police misconduct: how is it established?

Whether the actions of a police officer amounts to “misconduct” is determined through internal processes within the police themselves. The definition of “misconduct” and the processes that should be followed are set out in regulations and guidance. The issue of “police misconduct” is distinct from a civil claim, where an individual sues the police, for which different rules apply. In this article, we summarise the key elements of police misconduct.

Definition of police misconduct

Misconduct is defined in the Police (Conduct) Regulations 2020 (hereafter “the Conduct Regulations) as a “breach of the Standards of Professional Behaviour that is so serious as to justify disciplinary action.[1]

Standards of Professional Behaviour

The Standards of Professional Behaviour are listed in Schedule 2 of the Conduct Regulations. These fall under the following ten headings:

  • Honesty and Integrity
  • Authority, Respect and Courtesy
  • Equality and Diversity
  • Use of Force
  • Orders and Instructions
  • Duties and Responsibilities
  • Confidentiality
  • Fitness for Duty
  • Discreditable Conduct
  • Challenging and Reporting Improper Conduct

Procedure to determine misconduct

Misconduct meetings and hearings are held when it is determined that an officer may have a case to answer for misconduct. This may follow from a complaint made by an individual, but it can arise in other circumstances.

The Home Office Statutory Guidance on Professional Standards, Performance and Integrity in Policing[2] (“Home Office Guidance”) states at paragraph 9.6:

The purposes of the formal misconduct meeting or hearing is to:

  1. give the officer a fair opportunity to make their case having considered the investigation report including supporting documents and to put forward any factors the officer wishes to be considered in mitigation…
  2. decide if the conduct of the officer breached the Standards of Professional Behaviour in a way that is so serious as to justify disciplinary action (misconduct) or in such a way that is so serious as to justify dismissal (gross misconduct). This determination is based on the balance of probabilities and having regard to all of the evidence and circumstances…
  3. consider what the outcome should be if misconduct is proven or admitted… Those making the decision on outcome should consider the College of Policing’s Guidance on Outcomes in Police Misconduct Proceedings.

The College of Policing Guidance on Outcomes in Police Misconduct Proceedings (“COP Guidance”) states at paragraph 3.5[3]:

The power to determine outcome therefore arises after the person(s) conducting the proceedings have:

  • Reviewed and determined the facts
  • Established which, if any, Standards of Professional Behaviour have been breached
  • Determined whether the conduct found proven against the officer amounts to misconduct, gross misconduct or neither

Assessing seriousness of conduct

After establishing whether there has been a breach of the Standards of Professional Behaviour, the next step is to assess the seriousness of any breach. In respect of determining the seriousness of conduct, the COP Guidance states:

4.3 Assess the seriousness of the proven conduct, by reference to:    

  • the officer’s culpability for the misconduct
  • the harm caused by the misconduct
  • the existence of any aggravating factors
  • the existence of any mitigating factors

In the footnote to paragraph 4.3, the COP Guidance quotes the following passage from Fuglers LLP v Solicitors Regulation Authority [2014] EWHC 179 (Admin), paragraph 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… 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).”

The COP Guidance also states:

4.4 When considering the outcome, first assess the seriousness of the misconduct, taking account of any aggravating or mitigating factors. The most important purpose of imposing disciplinary sanctions is to maintain public confidence in, and the reputation of, the policing profession as a whole…

4.5 Consider personal mitigation, such as testimonials and references, after assessing the seriousness of the conduct by the four categories above.

What amounts to harm?

The COP Guidance states at paragraph 4.64 that “harm” can include:

  • physical injury
  • sexual abuse
  • financial loss
  • damage to health
  • psychological distress
  • reputational harm
  • loss of liberty (for example, if a person has been wrongfully arrested or detained)
  • infringement of human rights

The Guidance places particular emphasis on conduct which may undermine public confidence in policing:

4.66 Harm will likely undermine public confidence in policing. Harm does not need to be suffered by a defined individual or group to undermine public confidence. Where an officer commits an act that would harm public confidence if the circumstances were known to the public, take this into account. 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.

What is meant by culpability

The COP Guidance defines culpability at paragraph 4.9 as “denot[ing] the officer’s blameworthiness or responsibility for their actions. The more culpable or blameworthy the behaviour in question, the more serious the misconduct and the more severe the likely outcome”.

However, the COP Guidance makes clear that culpability does not require the officer to have intentionally caused harm:

4.10 Conduct that is intentional, deliberate, targeted or planned will generally be more culpable than conduct that has unintended consequences, although the consequences of an officer’s actions will be relevant to the harm caused.

4.11 Where harm is unintentional, culpability will be greater if the officer could reasonably have foreseen the risk of harm

4.12 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.

Aggravating and mitigating factors

The COP Guidance gives several non-exhaustive examples of factors which “aggravate”, or worsen, the circumstances of the case. These can be found at paragraph 4.76 of the Guidance, and include factors such as premeditation, malign intent, concealing wrongdoing, and abuse of trust.

Mitigating factors are those which reduce the seriousness of the misconduct, such as factors which “indicate that an officer’s culpability  is lower, or that the harm caused by the misconduct is less serious  than it might otherwise have been.”[4]

In terms of weight to be placed on mitigating factors, the Conduct Regulations[5] state:

Where representations are received in relation to mitigating circumstances, the person(s) considering it:

  • must consider whether those circumstances have been mentioned at an earlier stage in the proceedings and, if they have not been so mentioned, whether the officer could reasonably have been expected to mention them
  • may determine, in the light of their conclusions under paragraph (i), that it is appropriate to place less weight on those circumstances.

Therefore, it is relevant if an officer relies upon any information, evidence or facts which they failed to provide at an earlier stage in the proceedings.

Final determination

The four factors - culpability, harm, aggravating and mitigating factors – must not be considered in isolation from each other. This is particularly true in respect of culpability and harm, as outlined in the COP Guidance:

4.6  There may be overlap between these four categories and/or imbalances between them. Low-level culpability on the part of a police officer, such as a failure to respond in good time to an incident, can result in significant harm. Equally, an officer may commit serious misconduct that causes minimal harm to individuals or the wider public, but may still damage the reputation of the police service.

The Guidance makes clear that a holistic approach must be taken to determine whether the seriousness of the breach amounts to misconduct.

If you are considering making a complaint and/or a civil claim against the police, our Actions Against the Police team may be able to assist. If you would like more information please call us on 020 7632 4300 or Make an enquiry and we will contact you.

 

[1] Regulation 2(1) of the Police (Conduct) Regulations 2020 (SI 2020/4).

[2] https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/863820/Home_Office_Statutory_Guidance_0502.pdf

[3] https://assets.college.police.uk/s3fs-public/2022-08/Guidance-on-outcomes-in-police-misconduct-proceedings.pdf

[4] COP Guidance, paragraph 4.79.

[5] Regulation 42(14)(d).

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