SBA Police Guidance on Outcomes in Police Misconduct Proceedings 2022 PDF

**SBA POLICE** **Guidance on Outcomes in Police** **Misconduct Proceedings** **2022** **TABLE OF CONTENTS** --------------------------------------------------------------------- ----------------------------...

**SBA POLICE** **Guidance on Outcomes in Police** **Misconduct Proceedings** **2022** **TABLE OF CONTENTS** --------------------------------------------------------------------- ------------------------------------ -------------------------------------- [**Introduction to Police misconduct proceedings**](#Introduction1) [Page 2](#Introduction1) [Section 1](#Introduction1) [**Available outcomes**](#Availableoutcomes2) [Page 3](#Availableoutcomes2) [Section 2](#Availableoutcomes2) [**Assessing seriousness**](#Assessingseriousness3) [Page 6](#Assessingseriousness3) [Section 3](#Assessingseriousness3) [**Operational dishonesty**](#Operationaldishonesty4) [Page 16](#Operationaldishonesty4) [Section 4](#Operationaldishonesty4) [**Personal mitigation**](#Personalmitigation5) [Page 17](#Personalmitigation5) [Section 5](#Personalmitigation5) [**Conclusion**](#Conclusion6) [Page 18](#Conclusion6) [Section 6](#Conclusion6) **[Guidance on Outcomes in SBA Police Misconduct Proceedings]** []{#Introduction1.anchor}**1 Introduction to Police misconduct proceedings** 1.1 Police officers exercise significant powers. The misconduct regime is a key part of the accountability framework for the use of these powers. Outcomes should be sufficient to demonstrate individual accountability for any abuse or misuse of police powers if public confidence in the police service is to be maintained. They must also be imposed fairly and proportionately. 1.2 When determining the appropriate outcome to impose, consideration should be made as to the purpose of police misconduct proceedings. The purpose of the police misconduct regime is threefold: maintain public confidence in and the reputation of the police service uphold high standards in policing and deter misconduct protect the public. 1.3 These aims derive from the following authorities on the nature and purpose of professional disciplinary proceedings: a\. Bolton v Law Society, in which Sir Thomas Bingham MR (as he then was) explained the apparent harshness of sanctions imposed by the Solicitors Disciplinary Tribunal: '*The second purpose is the most fundamental of all: to maintain the reputation of the solicitors' profession as one in which every member, of whatever standing, may be trusted to the ends of the earth. To maintain this reputation and sustain public confidence in the integrity of the profession it is often necessary that those guilty of serious lapses are not only expelled but denied re-admission. If a member of the public sells his house, very often his largest asset, and entrusts the proceeds to his solicitor, pending re-investment in another house, he is ordinarily entitled to expect that the solicitor will be a person whose trustworthiness is not, and never has been, seriously in question. Otherwise, the whole profession, and the public as a whole, is injured. A profession's most valuable asset is its collective reputation and the confidence which that inspires.*' b\. Redgrave v Commissioner of Police of the Metropolis where Lord Justice Simon Brown stated, by reference to the dental profession: '*The purpose of disciplinary proceedings against a dentist who has been convicted of a criminal offence by a court of law is not to punish him a second time for the same offence but to protect the public who may come to him as patients and to maintain the high standards and good reputation of an honourable profession.*' c\. R (Green) v Police Complaints Authority, where Lord Carswell stated, in relation to the police service: '*Public confidence in the police is a factor of great importance in the maintenance of law and order in the manner which we regard as appropriate in our polity. If citizens feel that improper behaviour on the part of police officers is left unchecked and they are not held accountable for it in a suitable manner, that confidence will be eroded.'* d\. R (Coke-Wallis) v Institute of Chartered Accountants, in which Lord Collins reaffirmed the purpose of professional disciplinary proceedings to be: *'...to protect the public, to maintain public confidence in the integrity of the profession, and to uphold proper standards of behaviour*'. While the great majority of people in policing act with honesty and integrity, any unprofessional behaviour detracts from the service provided to the public and harms the profession's reputation. 1.4 The Code of Ethics underpins and expands on the Standards of Professional Behaviour set out in Schedule 1 of the SBA Police and Prison Officers (Discipline) Regulations of 2022. 1.5 The policies on Police Officer Misconduct, Restoring Efficiency and Attendance Management Procedures confirms that the Code of Ethics should inform any assessment or judgement of conduct when deciding if formal action is to be taken under the Discipline Regulations.' 1.6 Being aware of and adhering to human rights and the equality legislation is important. In determining the appropriate outcome to impose, having regard to the principle of proportionality, weighing the interests of the public with those of the officer is also important. 1.7 Misconduct proceedings are not designed to punish police officers. As stated by Lord Justice Laws in Raschid v General Medical Council case: '*The panel then is centrally concerned with the reputation or standing of the profession rather than the punishment of the doctor.*' 1.8 The outcome imposed can have a punitive effect, however, and therefore should be no more than is necessary to satisfy the purpose of the proceedings. Consider less severe outcomes before more severe outcomes. Always choose the least severe outcome which deals adequately with the issues identified, while protecting the public interest. If an outcome is necessary to satisfy the purpose of the proceedings, impose it even where this would lead to difficulties for the individual officer. 1.9 Ensure that processes and procedures are fair, objective, transparent and free from unlawful discrimination. 1.10 Do not use the procedures under the Discipline Regulations as a means of dealing with unsatisfactory performance. The 'Restoring Efficiency Policy' exists to address unsatisfactory performance, attendance, and issues of capability. []{#Availableoutcomes2.anchor}**2 Available outcomes** 2.1 Misconduct is generally defined as unacceptable or improper behaviour and for police officers will involve a breach of the Standards of Professional Behaviour set out in Schedule 1 of the Discipline Regulations. 2.2 Regulation 40 (14) of the Discipline Regulations provides that the person(s) conducting the misconduct proceedings that: *The person or persons conducting the disciplinary proceedings must review the facts of the case and decide whether the conduct of the officer concerned amounts---* 1. *in the case of a disciplinary meeting, to misconduct or not, or* 2. *in the case of a disciplinary hearing, to misconduct, serious misconduct or neither.* 2.3 Under Regulation 2(1): misconduct means a breach of the Standards of Professional Behaviour that is so serious as to justify a disciplinary penalty no greater than a final written warning serious misconduct means a breach of the Standards of Professional Behaviour that is so serious to justify a disciplinary penalty greater than a final written warning. 2.4 Thus the power to determine outcome 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 or serious misconduct. Regulation 40 (15) states that the person or persons conducting the disciplinary proceedings must not find that the conduct of the officer concerned amounts to misconduct or serious misconduct unless--- 3. *they are satisfied on the balance of probabilities that this is the case, or* 4. *the officer admits it is the case.* 2.5 Where the person(s) conducting the misconduct proceedings find that the conduct amounts to misconduct but not serious misconduct following a misconduct meeting or hearing, they may record a finding of misconduct but take no further action. This might be because the fact of the misconduct finding is sufficient to satisfy the purpose of the proceedings (including any public declaratory purpose) without the need for any sanction. 2.6 The power to impose disciplinary penalty at the end of misconduct proceedings is contained in Regulation 41(2) The disciplinary penalty available at a disciplinary meeting is--- 5. *a written warning.* 6. *a final written warning.* 7. *a written warning* 8. *a final written warning* 9. *1-, 5-, or 10-days' loss of pay* 10. *reduction in rank* 11. *requirement to resign* 12. *dismissal* 2.7 The disciplinary penalty at a misconduct meeting or hearing shall have effect from the date on which it is notified to the officer concerned which must be within five working days. 2.8 Regulation 41(12) provides that, when considering the question of disciplinary penalty action, before any such question is determined, the person(s) considering it: 13. *must have regard to the record of police service of the officer concerned as shown on the officer's personal record,* 14. *may receive written evidence from any witness whose evidence would, in their opinion, assist them in determining the question, including evidence of mitigating circumstances disclosed prior to the hearing to---* 15. *the Police Service or the Administration,* 16. *a registered medical practitioner, or* 17. *a staff association,* 18. *must give---* 19. *the officer concerned,* 20. *if the officer concerned is legally represented, the officer's relevant lawyer or, if the officer is not legally represented, the officer's police friend, and* 21. *the appropriate authority or, as the case may be, the originating authority or the person appointed to represent such authority in accordance with regulation 14,* 22. *where representations are received in relation to mitigating circumstances---* 23. *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 so mention them, and* 24. *in the light of their conclusions, may determine that it is appropriate to place less weight on those circumstances.* 2.9 According Regulation 41 (7)(8)(9)(10)(11) where, on the date of the initial severity assessment under the Regulations the officer concerned had a written warning in force, a written warning must not be given. Where, on the date of the initial severity assessment under these Regulations, the officer concerned had a final written warning in force, neither a written warning nor a final written warning may be given. - *a period of 18 months beginning with the day on which it was notified to the officer concerned, in the case of a written warning, or* - *a period of two years beginning with the day on which it was notified to the officer concerned, in the case of a final written warning.* []{#Assessingseriousness3.anchor}**3 Assessing seriousness** 3.1 Assessing the seriousness of the conduct lies at the heart of the decision on outcome under Parts 5 and 6 of the Discipline Regulations, whether the conduct would, if proved, amount to misconduct or serious misconduct. Discipline Regulations are also a question of degree, ie, seriousness. 3.2 As Mr Justice Popplewell explained, there are three stages to determining the appropriate sanction: *assess the seriousness of the misconduct* * keep in mind the purpose of imposing sanctions* * choose the sanction which most appropriately fulfils that purpose for the seriousness of the conduct in question.* 3.3 Assessing the seriousness of the misconduct is the first of these three stages. 3.4 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. 3.5 When considering outcome, first assess the seriousness of the misconduct, taking account of any aggravating or mitigating factors and the officer's record of service. The most important purpose of imposing disciplinary sanctions is to maintain public confidence in and the reputation of the policing profession. This dual objective must take precedence over the specific impact that the sanction has on the individual whose misconduct is being sanctioned. In Fuglers LLP v Solicitors Regulation Authority \[2014\], Fuglers, states that: '*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. 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 and* *(4) mitigating factors (eg admissions at an early stage or making good any loss)*'. 3.6 Consider personal mitigation such as testimonials and references after assessing the seriousness of the conduct by the four categories above. 3.7 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 which causes minimal harm to individuals or the wider public but may still damage the reputation of the police service. 3.8 Carefully assess the officer's decisions and actions in the context in which they were taken. Where the misconduct has taken place on duty, consider the policing context and whether the officer followed the relevant policies and the National Decision Model. Many police officers are required to take decisions rapidly and/or in highly charged or dangerous situations, for example, in a public order or other critical incident. Such decisions may carry significant consequences. Take care not to confuse these consequences with what the officer knew or could reasonably have known at the time of their decision. 3.9 Weigh all relevant factors and determine the appropriate outcome based on evidence, independently of any views expressed by other sources such as the media. 3.10 Culpability denotes 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. 3.11 Conduct which is intentional, deliberate, targeted or planned will generally be more culpable than conduct which has unintended consequences, although the consequences of an officer's actions will be relevant to the harm caused. 3.12 Where harm is unintentional, culpability will be greater if the officer could reasonably have foreseen the risk of harm. 3.13 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. 3.14 It is not possible to categorise all types of cases where dismissal or requirement to resign will be appropriate because the circumstances of the individual case must be considered. Many acts have the potential to damage public confidence in the police service. 3.15 The following types of misconduct, however, should be considered especially serious. [Conviction or caution for a criminal offence.] It is entirely unacceptable for police officers, who are responsible for enforcing the law, to break the law themselves. 3.16 The level of culpability depends on the seriousness of the offence. The sentence imposed by the criminal court is not necessarily a reliable guide to seriousness in misconduct proceedings, which are principally directed towards maintaining public confidence in the profession. A relatively minor criminal offence may be of the utmost gravity in the professional context. 3.17 The conviction or caution may relate to on or off-duty conduct. While the person(s) conducting the proceedings cannot question the conviction or the sentence imposed, they can consider the circumstances of the offending and form their own view of the gravity of the case. 3.18 Offences of dishonesty, sexual offences and violent crime are particularly serious and likely to terminate an officer's career. Such offending involves such a fundamental breach of the public's trust in police officers and inevitably brings the profession into disrepute. 3.19 Any criminal conviction will be serious, and likely to have an adverse impact on public confidence in policing. An officer's conviction or caution may be disclosed to the prosecution and defence during a criminal trial, with the potential for undermining the investigation and prosecution. 3.20 In some cases, the officer will already have sustained a conviction for the conduct which is the subject of the misconduct proceedings. In other cases, there may be no conviction, either because there was no prosecution or there has been an unsuccessful prosecution. 3.21 If the conduct found proven in the misconduct proceedings is criminal in nature, take this into account when considering the culpability of the officer, notwithstanding the absence of a criminal conviction. For example, a finding that an officer has used unreasonable force may amount to the equivalent of a finding of assault occasioning actual bodily harm contrary to the criminal code CAP 154. By comparison, a finding that an officer watched adult pornography while on duty would not amount to a crime. Although the purpose of misconduct proceedings is not to punish the individual, the outcome imposed may reflect the criminal nature of the misconduct. 3.22 For these purposes a criminal conviction is any finding by a criminal court in the Sovereign Base Areas or any other competent jurisdiction whether in Cyprus or overseas if the conduct found proven would constitute a criminal offence if committed in the Sovereign Base Areas. 3.23 When considering any finding by an overseas court, take care to establish that the officer has been afforded a fair trial and equivalent protections to those which operate in the Sovereign Base Areas. **Operational dishonesty, impropriety, or corruption** 3.24 Honesty and integrity are fundamental requirements for any police officer. Treat any evidence that an officer is dishonest or lacks integrity seriously. In the words of Lord Justice Maurice Kay in Salter v Chief Constable of Dorset: '*police officers carry out vital public functions in which it is imperative that the public have confidence in them. It is also obvious that the operational dishonesty or impropriety of a single officer tarnishes the reputation of the SBA Police and undermines public confidence in it*.' 3.25 Impropriety involving corruption, deliberately misleading or compromising an investigation or wilfully failing to give proper disclosure in a criminal prosecution, is likely to be comparably serious to and/or to involve operational dishonesty. Other examples of operational dishonesty might involve tampering with evidence, interfering with witnesses or disclosing information held by police for financial reward. 3.26 Consider cases where an officer has exercised their police powers in bad faith, for personal gain or at the behest of a friend or relative in this category of very serious misconduct. 3.27 There may be cases where an officer has behaved dishonestly but the dishonesty is unconnected to a police operation or investigation and could be regarded as minor or trivial in nature. Examine the circumstances of the case with care by reference to the four categories for assessing seriousness outlined above. Cases involving any form of dishonesty on duty will always be serious because of the importance of maintaining public trust and confidence in the police service. 3.28 Police officers and staff should not, of course, be dishonest off-duty but some off duty dishonesty may be of limited relevance to the profession as a whole when viewed in its context. 3.29 Some off-duty dishonesty may be very serious, however, particularly where it carries implications for the officer's ability to carry out their professional duties or has the potential to bring the police service into disrepute. A dishonest statement made by a police officer in the public sphere or in an official or otherwise solemn document (such as an application for a mortgage or loan, or a tax declaration) will be at the more serious end of the spectrum of off-duty dishonesty. Other serious cases might involve an officer using their status as a police officer to act dishonestly or otherwise exert improper influence. As ever, consider whether the proven dishonesty has the propensity to affect the reputation of or the public's confidence in the police service. 3.30 Specific case law has developed regarding the approach to outcomes in cases where operational dishonesty is found proven, which is considered further below. **Data protection and misuse** 3.31 The misuse of police computer systems or confidential police information more generally, is a particular concern for any police service. Police computer and manual systems hold a significant amount of information about members of the public. Most of this is sensitive and it is both a public expectation and a legal requirement that information obtained during policing duties should be treated in strictest confidence, properly protected, and only used for legitimate policing purposes. 3.32 Under no circumstances should anyone access or use police information for personal benefit. Personal reasons for accessing confidential police information, such as general curiosity or a desire to check on criminal activity, are not acceptable. If an officer is accessing police information not available to the general public, there should always be a specific and proper policing purpose for doing so. 3.33 Accessing confidential police information without a legitimate policing purpose is an abuse of an officer's position and may merit dismissal in serious cases. Accidental access to information without a legitimate policing purpose will not attract such an outcome. 3.34 Factors that support a more serious outcome include: the information accessed is of a secret nature or high classification onward disclosure of the information malicious motive for accessing or disclosing the information personal gain actual or potential compromise to a police investigation breaches of personal privacy where the data is very sensitive attempts to cover up improper accessing of data altering information held by the police. 3.35 When considering any misuse of confidential police information, be aware of the data protection principles under the Data Protection Ordinance 2020. 3.36 Officers regularly need to access and process confidential information and errors can occur. Officers who have acted in good faith or on instructions from a supervisor are less culpable and may be more appropriately addressed under the performance regime. **Violence, intimidation, or sexual impropriety** 3.37 Misconduct involving violence, intimidation or sexual impropriety undermines public trust in the profession and is therefore serious. 3.38 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 inappropriate emotional relationship with a colleague or member of the public. 3.39 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 serious misconduct. **Breach of position of trust or authority** 3.40 The nature of the Office of Constable means that all police officers are in a position of trust and authority in relation to members of the public. An officer's misconduct will be more culpable where it involves an abuse of this position. Where an officer has used their position to pursue a sexual or improper emotional relationship with a member of the public, this should be regarded as an abuse of authority for sexual gain. Such conduct can cause substantial damage to public trust and confidence in the police and is particularly serious where the subject of the officer's behaviour is a vulnerable person. 3.41 In addition to the Office of Constable, an officer may hold a position of trust or responsibility. Within the police service, positions of responsibility may be defined in relation to rank. There may, however, be other circumstances giving rise to an imbalance of power or authority, for example, a senior constable on a shift or a tutor constable in relation to their tutee. 3.42 An officer may also assume a specific responsibility to a person by performing a particular role, for example, as a family liaison officer or community officer. In situations of express responsibility towards a particular person or group of people, the need for scrupulous professionalism is greater. 3.43 The misconduct may involve members of the public, victims of crime, offenders or witnesses during the course of an officer's duties or as part of an investigation. **Misconduct involving a vulnerable person** 3.44 Many people come into contact with the police when they are at a particularly difficult or distressing point in their lives, and they are entitled to be treated professionally. 3.45 Officers must not, under any circumstances, use their professional position to initiate or pursue a sexual or improper emotional relationship with a vulnerable person. 3.46 Where an officer has a specific responsibility to a person (eg, as family liaison officer) there is likely to be a high level of reliance by that person on the officer, which may make that person vulnerable. Developing an intimate personal relationship in such a situation undermines the professional relationship between the person and the officer and can harm the vulnerable person. Such relationships, while the professional context or duty prevails, are matters of serious concern. Personal relationships with members of the public formerly involved with the police may also be inappropriate, depending on the circumstances, such as the length of time since the professional relationship ended, the nature of the previous (and any ongoing) professional relationship and whether the member of the public was or remains vulnerable. In the case of Williams v Police Appeals Tribunal \[2016\]: '*High rank and long service carry with them responsibilities, which the panel clearly expressed; and the maintenance of public confidence and respect in the police service may mean that a high-ranking officer must suffer a harder fall than would a junior officer in similar circumstances.*' 3.47 Factors which may give rise to vulnerability include: age, and any other protected characteristic physical disability mental ill health or learning disability substance misuse social circumstances such as homelessness or bereavement cultural differences and the person's ability to communicate in English/Greek/Turkish experience of crime, including harassment or domestic abuse the person's status relative to the officer. 3.48 Decide whether a person could be considered vulnerable in a given situation and whether the officer recognised or should have recognised this, taking account of all the circumstances. **Discrimination** 3.49 Persons affected by discrimination are those with protected characteristics: age disability gender reassignment marriage and civil partnership pregnancy and maternity race religion or belief sex sexual orientation. Discrimination towards persons on the basis of any of these characteristics is never acceptable and always serious. 3.50 Discrimination may involve language or behaviour. It may be directed towards members of the public or colleagues. It may be conscious or unconscious. 3.51 Cases where discrimination is conscious or deliberate will be particularly serious. In these circumstances, the public cannot have confidence that the officer will discharge their duties in accordance with the Code of Ethics. 3.52 Unconscious discrimination can, however, also be serious and can also have a significant impact on public confidence in policing. 3.53 There is inevitably a degree of overlap between the particular types of misconduct highlighted above. Take care to avoid 'double counting' factors which have been identified as being relevant to the assessment of seriousness. 3.54 Equally, these considerations should not be considered an exhaustive list. There may be other factors specific to the behaviour in question, which render it more culpable and therefore more serious. **Harm** 3.55 The harm caused by an officer's actions can be considered in various ways such as: The types of harm caused or risked by different types of police misconduct are diverse. Victims may suffer: physical injury sexual abuse financial loss damage to health psychological distress reputational harm loss of liberty (eg, if a person has been wrongfully arrested or detained) infringement of human rights. **Persons affected** Misconduct may affect particular individuals, in which case the harm caused may depend on the victim's personal characteristics and circumstances. Misconduct can also harm the wider community. Such harm may involve economic loss, harm to public health or interference with the administration of justice. **Effect on the police service and/or public confidence** 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, which would harm public confidence if the circumstances were known to the public, take this into account. Always take seriously misconduct which undermines discipline and good order within the police service, even if it does not result in harm to individual victims. 3.56 Assess the impact of the officer's conduct, having regard to these factors and the victim's particular characteristics. 3.57 Where no actual harm has resulted, consider the risks attached to the officer's behaviour, including the likelihood of harm occurring and the gravity of harm that could have resulted. 3.58 How such behaviour would be or has been perceived by the public will be relevant, whether or not the behaviour was known about at the time. 3.59 If applicable, consider the scale and depth of local or wider concern about the behaviour in question. A case being reported in local or wider media, however, does not necessarily mean that there is a significant level of local or wider concern. Distinguish objective evidence of harm to the reputation of the police service from subjective media commentary. 3.60 Whether a matter is of local or wider concern will be a matter for the person(s) conducting the proceedings based on their experience and the circumstances of the case. 3.61 Consideration of the harm caused will usually follow findings in relation to the facts, breaches of Standards of Professional Behaviour and whether the behaviour amounted to misconduct or gross misconduct. 3.62 Harm, including death or serious injury, can result where an officer has behaved appropriately, and no misconduct has been established. 3.63 Where serious misconduct has been found, however, and the behaviour caused or could have caused, serious harm to individuals, the community and/or public confidence in the police service, dismissal is likely to follow. A factor of the greatest importance is the impact of the misconduct on the standing and reputation of the profession. **Aggravating factors** 3.64 Aggravating factors are those tending to worsen the circumstances of the case, either in relation to the officer's culpability or the harm caused. 3.65 Factors which indicate a higher level of culpability or harm include: premeditation, planning, targeting or taking deliberate or predatory steps malign intent, eg, sexual gratification, financial gain or personal advantage abuse of trust, position, powers or authority deliberate or gratuitous violence or damage to property concealing wrongdoing in question and/or attempting to blame others regular, repeated or sustained behaviour over a period of time continuing the behaviour after the officer realised or should have realised that it was improper serious physical or psychological impact on the victim vulnerability of the victim multiple victims additional degradation, eg, taking photographs as part of a sexual offence any element of unlawful discrimination significant deviation from instructions, whether an order, force policy or guidance failure to raise concerns or seek advice from a colleague or senior officer scale or depth of local or wider concern about a particular issue multiple proven allegations and/or breaches of the Standards of Professional Behaviour. 3.66 This list is not intended to be exhaustive, and the aggravating factors are not listed in any particular order of priority. 3.67 On occasions, two or more of the factors listed will describe the same feature of the misconduct -- take care to avoid 'double counting'. **Mitigating factors** 3.68 Mitigating factors are those tending to reduce the seriousness of the misconduct. Some factors may 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. 3.69 Factors indicating a lower level of culpability or harm include: misconduct confined to a single episode or brief duration extent of the officer's involvement in the misconduct any element of provocation, threat or disturbance which may have affected the officer's judgement, eg, in relation to the use of force in the heat of the moment acting pursuant to a legitimate policing purpose or in good faith, ie, a genuine belief that there was a legitimate purpose but getting things wrong mental ill health, disability, medical condition or stress which may have affected the officer's ability to cope with the circumstances in question whether the officer was required to act outside their level of experience and/or without appropriate training or supervision open admissions at an early stage early actions taken to reduce the harm caused evidence of genuine remorse, insight and/or accepting responsibility for one's actions. 3.70 In cases where the misconduct occurred several years prior to the meeting or hearing, consider the outcome by reference to the standards of the time rather than current attitudes and standards. Give due account to the officer's conduct in the intervening years, for example, whether they performed their duties to a high standard. []{#Operationaldishonesty4.anchor}**4 Operational dishonesty** 4.1 Following Lord Bingham's judgment in Bolton v Law Society, Lord Justice Jackson held in Law Society v Salsbury that for cases involving dishonesty by a solicitor, there would only be a '*very small residual category where striking off was not appropriate'*. 4.2 In the High Court case of Salter,71 a case involving operational dishonesty on the part of a police officer, Mr Justice Burnett confirmed that: '*The reasons which underpin the strict approach applied to solicitors and barristers apply with equal force to police officers. Honesty and integrity in the conduct of police officers in any investigation are fundamental to the proper workings of the criminal justice system. The public should be able unquestioningly to accept the honesty and integrity of a police officer. The damage done by a lack of integrity in connection with the investigation of an alleged offence may be enormous. The guilty may go free. The innocent may be convicted. Large sums of public money may be wasted. Public confidence in the integrity of the criminal justice system may be undermined. The conduct of a few may have a corrosive effect upon the reputation of the police service in general.*' 4.3 Notwithstanding Mr Salter's unblemished service and the impressive character evidence called on his behalf, Mr Justice Burnett 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 support 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.*' The proper approach to cases involving operational dishonesty, derived from the case of Salter, and can be summarised as follows: dismissal will be almost inevitable in cases where operational dishonesty has been found proven there may be exceptions, but the number of such cases will be very small where the person(s) conducting the proceedings conclude that a case involving operational dishonesty falls into this very small residual category, they must identify the features of the case which render it exceptional. 4.4 Personal mitigation can be taken into account; however, its impact will be limited. This applies to all types of police misconduct. []{#Personalmitigation5.anchor}**5 Personal mitigation** 5.1 As Lord Justice Maurice Kay confirmed in the Court of Appeal decision in Salter: '*As to personal mitigation, just as an unexpectedly errant solicitor can usually refer to an unblemished past and the esteem of his colleagues, so will a police officer often be able so to do. However, because of the importance of public confidence, the potential of such mitigation is necessarily limited.*' 5.2 Purely personal mitigation is not relevant to the seriousness of the misconduct. Tributes and testimonials should not be confused with the mitigating factors relating to the misconduct itself, as outlined above. Consider any personal mitigation after forming an assessment of the seriousness of the misconduct. 5.3 Consider any personal mitigation advanced by the officer when deciding on the appropriate outcome. Such mitigation may include whether the officer has shown remorse, acted out of character or made a significant contribution to the police service. 5.4 Due to the nature and purpose of disciplinary proceedings, however, the weight of personal mitigation will necessarily be limited, particularly where serious misconduct has been proven. In the Williams v Police Appeals Tribunal case Mr. Justice Holroyde concluded: *'...the importance of maintaining public confidence in and respect for the police service is constant, regardless of the nature of the gross misconduct under consideration. What may vary will be the extent to which the particular gross misconduct threatens the preservation of such confidence and respect. The more it does so, the less weight can be given to personal mitigation*.' 5.5 As Lord Bingham stated in Bolton v Law Society, of disciplinary proceedings: '*Because orders made by the Tribunal are not primarily punitive, it follows that considerations which would ordinarily weigh in mitigation of punishment have less effect on the exercise of this jurisdiction than on the ordinary run of sentences imposed in criminal cases. It often happens that a solicitor appearing before the tribunal can adduce a wealth of glowing tributes from his professional brethren. He can often show that for him and his family the consequences of striking off or suspension would be little short of tragic. Often, he will say, convincingly, that he has learned his lesson and will not offend again. On applying for restoration after striking off, all these points may be made, and the former solicitor may also be able to point to real efforts made to re-establish himself and redeem his reputation. All these matters are relevant and should be considered. But none of them touches the essential issue, which is the need to maintain among members of the public a well-founded confidence that any solicitor whom they instruct will be a person of unquestionable integrity, probity and trustworthiness. Thus, it can never be an objection to an order of suspension in an appropriate case that the solicitor may be unable to re-establish his practice when the period of suspension is past. If that proves, or appears likely, to be so the consequence for the individual and his family may be deeply unfortunate and unintended. But it does not make suspension the wrong order if it is otherwise right. The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price*.' 5.6 The primary consideration for the panel or chairperson is the seriousness of the misconduct found proven. If the misconduct is so serious that nothing less than dismissal or requirement to resign would be sufficient to maintain public confidence, personal mitigation will not justify a lesser sanction. 5.7 There is also a public interest, however, in retaining officers who have demonstrated or developed particular skills and experience. In the words of Mr Justice Collins in Giele v General Medical Council case: '*It must be obvious that misconduct which is so serious that nothing less than erasure would be considered appropriate cannot attract a lesser sanction simply because the practitioner is particularly skilful. But if erasure is not necessarily required, the skills of the practitioner are a relevant factor.*' 5.8 Although personal mitigation may carry more weight where lesser outcomes are being considered, the case law confirms that the interests of the profession, and the protection of the public, are more important than those of the individual officer. 5.9 Nonetheless, personal mitigation is always relevant and should always be considered. []{#Conclusion6.anchor}**6 Conclusion** 6.1 This guidance should be used to inform the approach taken by panels and chairpersons to determining outcomes in police misconduct proceedings. It sets out an approach for assessing the seriousness of conduct, which can be applied to assessments of conduct within Discipline Regulations 2022. 6.2 There are three stages to determining outcome: assess the seriousness of the misconduct keep in mind the threefold purpose for imposing outcomes in police misconduct proceedings choose the outcome which most appropriately fulfils that purpose, given the seriousness of the conduct in question. 6.3 Assessing the seriousness of the conduct is the first of these three stages. In assessing the seriousness of the conduct, have regard to the four categories outlined: - Culpability - Harm - Aggravating - Mitigating factors. 6.4 Consider less severe outcomes before more severe outcomes. The more serious the conduct found proven against an officer, the more likely it is that dismissal or requirement to resign will be justified. 6.5 Always take personal mitigation into account. Due to the purpose of disciplinary proceedings, its impact will necessarily be limited. Less weight can be attached to personal mitigation where serious misconduct has been proven. 6.6 The reasons for imposing a particular outcome should be recorded. Refer to this guidance and explain any departures from it. 6.7 Each case will depend on its particular facts. Have regard to all relevant circumstances when determining the appropriate and proportionate outcome to impose.