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The dismissal of a Chief Constable

Sean Price, the Chief Constable of Cleveland Police, was found to have lied to the Independent Police Complaints Commission (“IPCC”) and to have instructed a member of staff to lie as well.

On 4th October 2012, a disciplinary panel concluded that he had breached the Standards of Professional Behaviour (effectively the new code of conduct) and that his conduct amounted to gross misconduct, in consequence of which he was summarily dismissed.

The allegations had centred on the former Chief Constable’s role in assisting the recruitment of the former Chair of the Cleveland Police Authority’s daughter to the force, but in the event the panel concluded that he had lied during the investigation into his conduct and asked a member of staff to do so as well.

In a statement published by the Cleveland Police, the current Chair of the Cleveland Police Authority, the former Chief’s actions were said to have “undermined his reputation and his credibility” and local MPs and the press have made significant adverse comment about his conduct. Not shying away from this public condemnation of the former Chief, in a statement published on its website, the IPCC has described its opinion of Sean Price’s conduct as being “shameful”.

Mr Price denies wrongdoing and contends that the panel reached an incorrect decision. The Crown Prosecution Service found no case to answer in respect of the same matters he says.

In his press statement, Mr Price, said:

“When the judgment was delivered and I was offered the chance to put forward mitigation I declined – the panel was mistaken in their finding and I could not seek to argue for a lesser punishment for something I haven’t done.

I will therefore be discussing with my lawyers over the next few days how this can be addressed.

While the burden of proof at misconduct hearings is of a lower standard, I am still perplexed as to why a misconduct panel could have found against me in the light of the evidence presented…”

Mr Price has the right to appeal from this decision. His comments raise two general points of perennial interest.

Burden of proof

First, one of the important distinguishing features of the disciplinary proceedings, as contrasted to any potential criminal proceedings, is that the standard of proof is the civil standard.

In Re: Doherty [2008] UKHL 33 the House of Lords was unequivocal that there is no room for a standard of proof somewhere between civil and criminal, depending on the gravity of the matter; there is simply one civil standard of proof, the balance of probabilities. However, where the allegation is a serious one this does require a court or tribunal to look carefully at the inherent probability of an event and may have to “look at the facts more critically pr more anxiously than in others before it can be satisfied to the requisite standard”.

What, however, of the disciplinary case which features allegations which are effectively allegations of conduct amounting to criminal conduct? Those allegations are to be considered against the standard applied in criminal tried i.e. proof beyond reasonable doubt. Should the lower (civil) standard be applied in a disciplinary context?

In R (IPCC) v. Assistant Commissioner Hayman [2008] EWHC 2191 (Admin) it was emphasised that the standard of proof does not change where it is applicable to disciplinary proceedings:

“Of course in disciplinary proceedings the Tribunal must look with the greatest care at accusations which potentially give rise to serious consequences. But in determining whether or not they occurred, it applies a single unvarying standard, the balance of probabilities. If satisfied it is more likely than not that the facts occurred, then it must find them proved…”

This is at odds with the Privy Council’s decision in Campbell v. Hamlet [2005] UKPC 19 in which an attorney at law practising in Trinidad and Tobago contended that he should be subject to the criminal standard of proof in professional disciplinary proceedings against him.

Lord Brown stated:

“It has, of course, long been established that there is a flexibility in the civil standard of proof which allows it to be applied with greater or lesser strictness according to the seriousness of what has to be proved and the implications of proving those matters.”

However, this was in the context of the PC’s judgment that, without a doubt, the criminal standard applied to the legal profession in absence of express provision (in the appellant’s particular case).

A good many professional regulators now apply the civil standard of proof. The Bar Standards Board, the predecessor of which was referred to in Campbell, still maintains the criminal standard. The Solicitors Regulatory Authority works to the civil standard in its disciplinary rules.

Mitigation conundrum

How does one adequately present evidence in mitigation when the alleged conduct is simply denied? If such evidence is not presented, can it be barred from later presentation after an adverse finding? If it is presented fully and robustly prior to the decision, does it suggest that the defendant is in fact insincere in his protestations of innocence and is in fact expecting a sanction to be imposed after an adverse conclusion. These are plainly difficult matters but to fetter a defendant’s ability to present evidence in mitigation, where it has been indicated at the outset that this will be done in the event of an adverse finding, would seem to breach principles of fair trial. However, where an appeal is likely to be instituted should someone facing disciplinary sanctions seek to mitigate ‘without prejudice to my appeal’. No doubt these are tricky strategic issues, but are plainly ones to be contemplated with care sooner rather than later.

Chambers has a dedicated Disciplinary & Regulatory Group within which there is expertise in police disciplinary work.

The Disciplinary & Regulatory Group launches the first of its breakfast seminars this November, starting with healthcare and education. For further details contact Penny Rutterford.
Related link:  Profile of Eleena Misra
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