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Barrister - Colin Banham

Senior Practice Manager
Andrew Trotter

Practice Group Clerks
Christopher Norman

Chief Executive and Director of Clerking
Tony McDaid

Tel: +44 (0) 845 210 5555
Fax: +44 (0) 121 606 1501
[email protected]

Colin Banham - Regulatory & Licensing

For over fifteen years, Colin has been instructed by the Police Federation to appear on behalf of officers at gross misconduct hearings, gross incompetence meetings and associated appeals both to the Police Appeals Tribunal and High Court (Judicial Review). He has conducted cases for officers following a number of IPCC investigations, including those deemed to be ‘Force Critical Incidents’.

Colin is also possibly one of only a handful of advocates who regularly advise upon the Police Performance and Attendance Regulations 2012. He is often instructed to draft grounds of appeal in relation to those hearings and also from Stage 3 performance and attendance meetings. He has assisted a number of officers in front of Police Medical Appeals Boards and in relation to police pensions regulations.

He conducts training for solicitors and members of the Police Federation in advocacy skills, discrimination law, whistleblowing, UPP, and the Police (Conduct) Regulations 2012. He has, most recently, delivered training in relation to the changes under 2014 and 2015 Amendment Regulations.

Colin regularly appears before other regulatory bodies (legal, medical and Courts Martial) in addition to work in the financial services field. He has recently appeared before the High Court against the Solicitors Regulation Authority on appeal from the Solicitors Disciplinary Tribunal. He also acts as a legal adviser for the Chartered Institute of Legal Executives (CILEx).

NOTABLE CASES

Regulatory/Disciplinary

Re CF (2016): Led by Richard Horwell QC in a misconduct hearing brought as a result of covert surveillance on an officer who had made an application for Ill-Health Retirement. The officer is alleged to have been dishonest when describing the extent and degree of his medical condition. The case involved issues arising from the proportionate use of covert tactics and also expert medical evidence about the nature of the officer’s disability.

Re MS (2016): Successfully represented an officer on appeal to the PAT. The officer was alleged to have distributed pornographic images, with a close resemblance to his line manager, around his department whilst on duty. It was argued on appeal that there had been a clear and unambiguous promise by his line manager that the misconduct would not proceed any further. Furthermore, when this was argued at first instance, the panel failed to give sufficient reasons why they rejected the submission that there had been a legitimate expectation that the officer would not face a disciplinary investigation or subsequent misconduct hearing.

Re PC (2016): Successfully represented a PC at a misconduct hearing following allegations that the officer had breached the Standards of Professional Behaviour of Honesty and Integrity, Authority Respect and Courtesy, Orders and Instructions, Duties and Responsibilities and Discreditable Conduct. Following a 4-year long IPCC investigation into the actions of three officers, he acted for the first of two officers facing allegations of gross misconduct. It was alleged that, when dealing with the complainant, the officer was aggressive, falsified her own pocket notebook and lied about the circumstances. After a lengthy hearing, the panel found that the actions of the officers were not aggressive. They had carried out a number of enquiries following the allegation and had not, in any way, colluded to ensure that the matter did not proceed to charge. None of the allegations brought before the misconduct hearing were upheld.

Re HS (2016): Successfully represented an Inspector at a misconduct hearing arising from an incident where he was alleged to have assaulted fellow officers in the street, who were in the process of arresting an intoxicated member of the public. It was also alleged that, during the course of his interview, the officer gave a dishonest account saying the arresting officers had fabricated their evidence. The panel did not find the assault took place and concluded that the officer only raised his voice. They did not find that the officer lied in interview, in relation to the allegation of Honesty and Integrity. The behaviour was found to amount to misconduct only and he received a written warning.

Re EL (2016): Successfully represented a PC at a misconduct hearing following an allegation that she sent a letter to Swansea City and County Council, containing a dishonest and false account, in order to contest a Fixed Penalty notice. The officer accepted contributing to the letter but denied that she was responsible for all of its content. She conceded that it was sent both in her name and with her knowledge. On that basis she admitted breaching the Standards of Professional Behaviour relating to discreditable conduct. It was submitted on her behalf that the breach amounted to misconduct only. The Appropriate Authority claimed that she had deliberately lied in the letter in order to avoid paying the fine and was therefore in breach of the Standards of Professional Behaviour amounting to Honesty and Integrity. The officer denied being dishonest. The panel found the majority of the alleged breaches were not proven. They concluded that the officer was not dishonest but thought that allowing the letter to be sent in her name amounted to discreditable conduct, as the officer had accepted. This was found to amount to misconduct only and, after mitigation was heard, the officer received a written warning.

Re AM (2016): Successfully represented a DCI at a misconduct hearing where the officer was alleged to have made sexist and racist comments to junior officers. Prior to the hearing, it was submitted that the appropriate authority had not complied with their disclosure duties under the test in R (Bonnard) v Sharpling [2012] EWHC B24 (Admin) and Reg. 21 of the 2012 Conduct Regulations. After further disclosure, it was clear the appropriate authority had purported to make no less than three ‘severity assessments’ under Reg. 19. The first two severity assessments had concluded that the behaviour of the officer amounted to misconduct only. The final, purported severity assessment was only made after a complaint from a senior officer outside DPS. It was argued that there is no mechanism for revisiting a Reg. 19 decision, that he panel did not have jurisdiction to hear the as there was no valid referral, the officer had a legitimate expectation that the case would not proceed to a hearing and, alternatively, there had been a significant departure from the intended and prescribed framework of disciplinary proceedings and it would be unfair to try the officer (R v CC of Merseyside, ex.p. Merrill [1989] 1 WLR 1077). The panel found that they did not have jurisdiction to hear the case and the officer was remitted to a misconduct meeting.

Re NB (2016): Successfully represented a PC at a misconduct hearing following an allegation that he dishonestly falsified a contemporaneous interview and was deliberately evasive when subsequently challenged about the amendments to the document. Following an initial decision that the matter should be dealt with under the Special Case Hearing (‘Fast Track’) provisions, the case was eventually heard before a full powers’ tribunal. The officer maintained that he made the amendment to the document without thinking and in order to remind himself of the need to update the collision record. He denied being deliberately evasive when challenged about the amendment. The officer was cleared of all allegations after a contested hearing.

Re NF (2016): Successfully represented a South Yorkshire officer alleged to have used excessive force against a youth after his arrest. The case involved cross-examination of the suspect involved, CCTV and expert evidence on the tactics deployed. The officer received a written warning after a finding of misconduct only.

Lawson v Solicitors Regulation Authority [2015] EWHC 1237 (Admin): Successfully represented a solicitor on an appeal against a 2-year suspension imposed by the Solicitors Disciplinary Tribunal. The appellant had admitted allegations, which included failing to act in the best interests of his clients and failing to co-operate with the Solicitors Regulation Authority. It was argued on behalf of the appellant that, in the specific circumstances of the case, the sanction imposed was manifestly excessive and disproportionate. It was further submitted that it was correct for the High Court to interfere with the sanction as it was ‘clearly inappropriate’ (Salsbury v Law Society [2009] 1 WLR 1286). Reliance was placed upon the case of R v Weston [1998] 31 LS Gaz R 35, where two partners with distinct roles in the same firm were dealt with differently notwithstanding the serious allegations alleged in both their cases. By analogy with other professions it was also argued that an order for suspension is a very serious sanction. For example, in MacLeod v. The Royal College of Veterinary Surgeons (The Disciplinary Committee of the RCVS) [2006] UKPC 39 Lord Carswell at para 27 likened an 8-month period of suspension to "an extremely heavy fine". In Dad v. The General Dental Council [2000] UKPC 17 a dentist had been convicted of serious drink driving offences. Notwithstanding that, the Privy Council set aside a sanction of 12-months' suspension. Having heard argument from both sides, Mr Justice Mostyn allowed the appeal ruling that the sanction awarded was ‘clearly excessive and inappropriate’. He halved the appellant’s suspension, allowing his return to work in the near future with conditions attached to his practicing certificate.

Re JV (2015): Successfully represented a Met officer at the PAT following an original outcome of dismissal with notice under the Police (Performance) Regulations 2012. Notwithstanding that the officer admitted that his attendance was unsatisfactory at a Stage 3 meeting, it was argued that there had been a material breach in procedure as the Panel had failed to explore the possibility of a referral to the SMP for ill-health retirement to be considered. It was argued that an officer may qualify for ill-health retirement even if they continue to work with reasonable adjustments (R v Sussex Police Authority, ex.p. Stewart [2000] EWCA Civ. 101). It was further submitted, analogous to the case of First Great Yorkshire Ltd. t/a First Leeds v Haigh (2008) IRLR 182, that fairness required the Stage 3 meeting to take reasonable steps to ascertain whether the employee is entitled to the benefit of a more generous ill-health retirement scheme, before dismissing for long-term sickness. The key question in the circumstances is whether reasonable steps were taken to consider ill-health retirement. It was found that there were a number of fundamental duties that the panel had not adequately considered, including whether ill-health retirement had been fully explored in the past and that there was a paucity of medical evidence, which could have been remedied. The original decision was set aside and the case was remitted to be decided upon by a fresh
 panel. The Officer's pay was reinstated from the date of his dismissal.

Re CW (2015): Successfully represented a Met officer at the PAT following an original outcome of dismissal with notice under the Police (Performance) Regulations 2012. It was argued, on behalf of the appellant, that there was a duty for a Stage 3 meeting under the 2012 Performance Regulations to consider ill-health retirement before dismissing an officer for incapacity. It was further submitted, analogous to the case of First Great Yorkshire Ltd. t/a First Leeds v Haigh (2008) IRLR 182, that fairness required the Stage 3 meeting to take reasonable steps to ascertain whether the employee is entitled to the benefit of a more generous ill-health retirement scheme, before dismissing for long-term sickness. The appeal was allowed on both grounds as the panel held that a reasonable decision would have been to adjourn in order for the SMP to reconsider the question of whether ‘disablement [was] likely to be permanent’ (Reg. H1(2)(a) of the Police Pensions Regulations 1987). The Officer's pay was reinstated from the date of her dismissal.

Re DM (2015): Successfully represented a DS at a misconduct hearing arising from allegations that an officer used racist language when conducting a stop and search, then fabricated his notes and accompanying property register when informed by PSD that he would be the subject of an investigation. The panel found misconduct only (on the officer’s own account) with the outcome of management action.

Re SH (2015): Successfully represented a Met officer at a misconduct hearing arising from a breakdown of a relationship. The officer was said to have stolen the credit card details of his ex-partner and used them without her permission. He was also alleged to have used derogatory language in a drunken phone call, which was overheard by a fellow officer. The accused officer denied the allegation of honesty and integrity but admitted using some inexcusable language. Lengthy legal arguments about the manner in which the AA sought to present the case. The panel agreed with the submission on the officer’s behalf, then found misconduct only (on the officer’s account) and gave the officer a written warning.

Re DR (2014-2015): Led by Nic Lobbenberg QC in misconduct proceedings on behalf of a firearms officer from GMP following the fatal shooting of a colleague, PC Ian Terry, during a training exercise. The deceased officer was killed in June 2008 during police firearms training at a disused warehouse in Manchester. Following the imposition of a requirement to resign, the officer requested a review from the Chief Constable of Merseyside and appeal to the PAT.

Re EB (2014): Successfully represented a Met officer at the PAT following an original outcome of reduction in rank under the Police (Performance) Regulations 2008. Following oral submissions, the Tribunal overturned the original outcome as they found there were 'exceptional circumstances' justifying an extension to the final written improvement notice. The officer's pay was reinstated from the date of his reduction in rank.

High Court (Judicial Review)

NS (& Others) v Commissioner of Police of the Metropolis (2016): Successful challenge to the decision by the MPS to remove both Chief Inspector and Commander from the rank structure. It was argued that the decision was unlawful and in breach of primary legislation (Police Act 1996 and Police Reform & Social Responsibility Act 2011). The Policing & Crime Bill, if passed would allow the Home Secretary to make amendments to the rank structure using secondary legislation, where certain preconditions have been met. The Bill, at that stage, had only recently passed the Committee Stage. In addition, one of the preconditions of the draft Bill was that a recommendation should be made by the College of Policing. Although the Government had requested a fundamental review of police leadership by the College of Policing, it had yet to propose any changes to the rank structure. After a LBC was sent to the MPS, it responded by stating that the changes communicated would not be made.

EK v CC of Hampshire (2016): JR of decision made by police to take no further action against a suspect in a criminal investigation involving allegations of child cruelty. After LBC served, the investigation was re-opened.

JM v CC of Cumbria (2016): Claim for misfeasance in a public office arising from the JR in 2015 (below). It was successfully submitted that the actions of officers from PSD exercised their power with reckless indifference as to the illegality of their acts in conducting the investigation into the claimant and psychiatric injury was caused.

LN v CC of TVP (2016): Successful JR of a decision to reduce an officer to half pay under Regulation 28, Annex K of the Police Regulations 2003, even though the claimant was suffering from an illness which ‘may prove to be terminal’ (PNB Circular 10/5). It was argued that the claimant had a legitimate expectation that her pay would continue, the decision was irrational and/or perverse and that the defendant had failed in its duty to give reasons.

RI v CC of West Yorkshire (2015): JR of a decision to proceed to a misconduct meeting in relation to an allegation of Discreditable Conduct where the report did not set out the investigator’s opinion on the alleged misconduct under Regulation 18(2) (Chief Constable of West Yorkshire v IPCC [2014] EWCA Civ 1367) and there had not been ‘substantial compliance’ with the disclosure regime under Regulation 21(1) of the Police (Conduct) Regulations 2012 (R (on the application of Bonnard) v Sharpling [2012] EWHC B24 (Admin).

JM v CC of Cumbria (2015): JR of a misconduct appeal meeting following the misapplication of the Harm Test under Regulation 4. Grounds included irrationality and unlawfulness. After JR lodged, the case was dealt with by way of a consent order quashing the original finding of misconduct.

SH v CC of Derbyshire (2015): JR of a decision to reduce an officer to half pay under Regulation 28, Annex K of the Police Regulations 2003. The DCC purported to make the decision on the basis that the absence arose from the officer's status as a police officer, as distinct from a specific injury sustained in the execution of duty. It was submitted that the DCC had erred in law, as it was not necessary to establish that being in the execution of duty was the sole cause of injury, R (app. of the Merseyside Police Authority v PMAB (McGinty) [2009] EWHC 88 (Admin) and the Court of Appeal, most notably in Commissioner of Police for the Metropolis v Stunt [2001] ICR 989, has repeatedly stated that the phrase 'in the execution of duty' should be afforded a benevolent interpretation. It was further argued that there was no proper delegation by the Chief Constable to the Human Resources professional. In the light of R (app. of Crudace) v Northumbria Police Authority [2012] EWHC 112 (Admin), in the absence of any arrangements for delegation, no authority existed to make the decision under Regulation 28. Having considered the submissions, the Force set aside the original decision and reinstated the officer’s pay from that date.