Concerns over fairness of conduct hearings

24 November 2021

The chair of West Midlands Police Federation has spoken of his concerns about the fairness of future misconduct hearings after changes were announced by the National Police Chiefs’ Council (NPCC).

Jon Nott says the changes threaten to undermine the independence and transparency of the misconduct process.

He was speaking after NPCC chair Martin Hewitt, in his keynote speech at the Association of Police and Crime Commissioners (APCC) and NPCC Summit, said it has asked all chief constables to chair more accelerated hearings, “wherever the grounds are met, to swiftly determine the facts”.

Mr Hewitt disclosed the NPCC had also asked chief constables to make submissions to legally-qualified chairs “wherever appropriate, so that sanctions always meet the gravity of an offence”.

Further, chief constables have been advised by the NPCC to seek judicial reviews where dismissal is not the outcome. The NPCC is also calling for amendments to the College of Policing guidance. The Police Federation of England and Wales believes this it to influence dismissals and hamstring panels.

“These changes are concerning,” said Jon, “The misconduct process in policing must be as open, fair and accountable as possible but these proposals threaten to undermine a tried and tested system.

“We can’t have a situation where chief constables are making submissions to the chairs of independent panels before they’ve received all the evidence. It risks a further erosion of trust in policing and the misconduct process.”

Dave Hadley, West Midlands Police Federation conduct lead, has argued that the changes would amount to an inappropriate use of the Judicial Review process, and entirely contrary to judges’ views on the matter.

He cites a published High Court decision, on the case of Chief Constable of Northumbria v PAT & Barratt [2019] EWHC 3352 (Admin), which states: “The Administrative Court should guard against the misuse of its jurisdiction by Chief Constables seeking to mount what are effectively ‘undue leniency appeals to decisions of misconduct panels or PATs.”

Dave further explains: “There is already an appropriate mechanism within the Police (Conduct) Regulations 2020 for forces to make representations to hearing chairs; Regulation 42 (14) (C) (iii) provides the appropriate authority with an opportunity ‘…to make oral or written representations before any such question [post-finding] is determined, including on the appropriate level of disciplinary action’ and chief constables should not seek to attempt to side-step this process by making contact with chairs outside of the statutory framework.

“This goes to the very heart of transparency, legitimacy and confidence in the process.”

Phill Matthews, the Federation’s national conduct and performance lead, has also spoken out against Mr Hewitt’s announcement.

Phill said: “We agree it is vital the service is as open and transparent about misconduct processes as possible, but what is being suggested risks undermining that which is deeply concerning. What is being proposed risks turning misconduct proceedings into kangaroo courts.

“Allowing chief constables to write to legally-qualified chairs of independent panels before they have heard evidence from all parties involved could unduly influence the outcome of a hearing and is akin to the Queen writing to crown court judges ahead of trials with her view of the outcome without hearing the evidence or trial.

“We already have a fair and transparent system in place with independent panels consisting of both officers and members of the public. We are under the impression chiefs want to hamstring and hinder this process so they can rig outcomes in order to suit their agenda.

“Permitting chiefs constables to chair more accelerated hearings, or make submissions, is far from open and transparent justice and could lead to a return to the dark days where officers were dismissed in the eyes of those present even before any evidence was considered.

“We are pleased to see the NPCC finally recognises the need to speed up disciplinary processes, which we have been pressing hard for this as part of our Time Limits campaign for the last two years, but chiefs have consistently refused to back this.

“Moving forward we will continue to work with forces and the Government to ensure disciplinary processes are fairer for not just officers, but also for members of the public, but this is not the way to do it.”