Police officer facing misconduct proceedings over sexual assault conviction loses legal claim for medical discharge

The officer raised judicial review proceedings after the SPA decided that he should not be granted a medical discharge until the conclusion of misconduct proceedings against him, but a judge in the Court of Session rejected his claim that the decision was “irrational”.

Sexual offences

Lord Woolman heard that the petitioner “BD” joined the force in 1993 and worked as a police officer for over 25 years.

Latterly he was a sergeant in the community policing team, until he was signed off work in April 2017 with various medical problems.

On 10 August 2018, the SPA refused the petitioner’s application to retire on the grounds of permanent disablement and decided to defer matters until the conclusion of misconduct proceedings against him, which stemmed from his 2017 conviction for sexual assault.

The court was told that on two separate nights in late 2016, the petitioner went out socialising and his behaviour towards two women on those occasions gave rise to concern. 

The police conducted an investigation and prepared a report, following which the procurator fiscal served a complaint on the petitioner. 

It listed five charges of sexual assault against two female complainers under section 3 of the Sexual Offences (Scotland) Act 2009 and following a summary trial he was convicted of all five charges, fined £500 and placed on the sex offenders’ register.

Medical discharge 

In early 2018 the petitioner applied to retire under the Police Pension Regulations 1987 on the ground that he was permanently disabled for the performance of his duty.

A selected medical practitioner (SMP) prepared a report which concluded that the petitioner was disabled from performing the ordinary duties of a member of the police force; and the disablement was likely to be permanent.

However, the SPA decided that he should not be granted a medical discharge until misconduct proceedings against him had concluded.

The SPA had regard to guidance issued by the Police Negotiating Board, which states that where an officer has been assessed as permanently disabled the police authority should consider all the evidence before it before reaching a decision, and that in cases where the conduct in question is “serious”, or whether the completion of disciplinary proceedings is “necessary for the maintenance of public confidence”, the “public interest in completing the proceedings will outweigh the significance of the officer’s condition, except in the most compelling compassionate cases”.

The basis of the decision was that on “public policy grounds” police officers should not be granted medical discharges while there are live misconduct proceedings against them, as there could be “a loss of public confidence in the service if police officers were seen to be evading misconduct proceedings by exiting the service on medical discharges before those proceedings had concluded”.

The petitioner was due to attend a misconduct hearing in August 2018, but it was postponed because of his lack of capacity and the disciplinary proceedings against him remain suspended.

‘Fundamentally flawed’

In seeking to set aside the SPA’s decision, counsel for the petitioner argued that the SPA took into account “irrelevant” matters, “acted irrationally”, and “fettered its discretion”, meaning that the decision was therefore “fundamentally flawed”.

But the SPA maintained that it acted “lawfully and rationally”, and that accordingly, the decision should stand.

On behalf of the petitioner, it was submitted that the SPA erred by assessing the misconduct as serious, ignoring the compassionate circumstances, and implying that the petitioner was trying to evade the disciplinary proceedings.

However, the judge disagreed. 

Lord Woolman said: “The existence of misconduct proceedings is relevant and important. Failure to evaluate the seriousness of the offending conduct would constitute an obvious flaw in the decision.”

On the issue of irrationality, counsel agreed that the test was whether the decision is one at which “no sensible person who had applied his mind to the question … could have arrived”.

The petitioner’s position was that his mental condition rendered him unable to participate in the misconduct proceedings and that he should not be required to remain in the police service when he will never be able to fulfil his duties, with his pension entitlement left “indefinitely in limbo”.

It was also claimed that the crimes of which he was convicted were at the “lower end of the spectrum” and that if he had retired immediately after committing the offences he would have kept his pension because the forfeiture provisions would not have been engaged.

It would be “inequitable” if, by pleading not guilty and standing trial, he risked losing his full pension rights.

‘Sensible decision’

Refusing the petition, the judge ruled that the test for irrationality had not been met.

In a written opinion, Lord Woolman said: “This is a powerful argument, persuasively presented. If correct, however, it would trespass into the SPA’s exercise of judgement. 

“It requires to consider not only whether the conduct in question is serious, but also ‘whether the completion of disciplinary proceedings is necessary for the maintenance of public confidence’. These are discretionary matters within its province.

“I am satisfied that a sensible person could have arrived at the same decision. Like the SPA, he or she could well have thought it logical to deal with disciplinary matters first and pension matters later. As the decision to defer adds up, the test for irrationality is not met.”

Nor did the court consider that the SPA had fettered its discretion.

The judge added: “I conclude that there is no foundation for holding that the SPA did not consider all the circumstances of the petitioner’s case. Having weighed the competing factors, the SPA saw the public policy as tipping the balance.

“I therefore conclude that the SPA did not fetter its discretion. Rather, it properly exercised its jurisdiction.”