Thu, 12 Dec 2019
Counsel from No5 Barristers’ Chambers have successfully represented two officers who were alleged to have discriminated against a member of a public by reason of his race. The incident dated back to June 2014 but, due to a two separate appeals to the IOPC by the complainant, the hearing did not take place until November 2019.
PC P had transferred from the Metropolitan Police to Hampshire Constabulary at an early stage of the process. This required the consideration of the question as to which Force should act as the "Appropriate Authority" pursuant to Regulation 3(1) and 3(5) of the Police (Conduct) Regulations 2012. Rather unusually, both Forces jointly presented the case, as the view was take that the role cannot be transferred to a different policing area (see CC of TVP v Misconduct Panel  EWHC 923 (Admin)).
The main allegation in the case was that PCs P and H targeted the complainant, a black male, due to his ethnicity. The male had been driving a BMW and was seen in company with two other males. He was dressed very smartly and was driving a relatively new vehicle. Although the passengers were white, the officers gave an account that suggested they differed in appearance in a number of other aspects. They were gaunt-looking, their clothing was scruffy and the behaviour between them and the driver seemed suspicious.
The allegation also included more technical breaches relating to the officers stopping the complainant's vehicle, in that the Appropriate Authority said that they had no power to do so under the Road Traffic Act 1988 as they were in plain clothes. Uniformed officers had assisted in the stop but the timing of their involvement was in dispute.
Against PC H, it was alleged that he had misled the Custody Sergeant by reporting that the vehicle smelt of cannabis when it was stopped.
The defence alleged, from an early stage, that there were profound deficiencies in the handling of the investigation, that there were material breaches of the Police (Conduct) Regulations 2012 and also flaws in the subsequent disclosure process. A skeleton argument setting out, in terms, the duty of the Appropriate Authority to disclose relevant material under the CPIA (the test under the Home Office Guidance) resulted in significant disclosure about the complainant and the process that brought the officers before the misconduct hearing. This disclosure led to an application to dismiss the charges under the authorities of R v Chief Constable of Merseyside Police, ex.p. Merrill  1 WLR 1077, as applied in R (Wilkinson & Others) v Chief Constable of West Yorkshire  EWHC 2353 (Admin). Despite submissions on both officers’ behalf, the panel decided to hear the evidence and considered that any defects could be cured during the hearing itself.
The allegation that the officers had deliberately discriminated against the complainant on the grounds that (i) the officers were ordered to undertake pro-active patrols; (ii) the reason for the stop was not ‘because of race’ but due to the specific circumstances where the association looked out of place due to their clothing and appearance; (iv) the officers observed suspicious activity; (v) the main reason for stopping the vehicle was to check that everything was in order and to speak to the passengers; (vi) the officers also wished to check whether the vehicle was being driven on the road in accordance with the law.
The ability to stop vehicles where there is some suspicion about the driver is a power that is considered necessary in day-to-day policing. In relation to the more technical allegations, it was submitted that the officers had exercised their power under s.163 of the Road Traffic Act 1988, as they conducted the stop with uniformed officers. However, even if they had not, police officers retain a common law power to stop vehicles (Steel v Goacher  R.T.R. 98, as applied in R (on the app. of Rutherford) v IPCC  EWHC 2881 (Admin)).
Taking into account all legal submissions and the evidence in the case, the panel found that the officers had acted entirely appropriately. The stop was conducted lawfully and the difference in treatment between the driver and the passengers was due to the specific circumstances and the subsequent application of s.163 of the Road Traffic Act 1988, not because of his ethnicity.
The case lasted for five days, after which all breaches were found not proven.
To read about the case, visit: