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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Philpot, R (On the Application Of) v Commissioner of Police of the Metropolis  EWCA Civ 66 (31 January 2023)
Cite as:  WLR(D) 51,  ICR 466,  EWCA Civ 66
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ON APPEAL FROM THE HIGH COURT OF JUSTICE (KING'S BENCH DIVISION)
THE HON. MRS JUSTICE LANG
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE THIRLWALL
LADY JUSTICE NICOLA DAVIES
| R (on the application of
|- and -
|THE COMMISSIONER OF POLICE OF THE METROPOLIS
Stephen Morley (instructed by Metropolitan Police Service Directorate of Legal Services) for the Respondent (Defendant)
Hearing date: 19 January 2023
Crown Copyright ©
Lord Justice Bean :
i) "Not to contact directly or indirectly or via 3rd party or any social media Kim PHILPOT";
ii) "Not to contact [Kim PHILPOT] to make arrangements for child contact of Children …. save through Social Services or a responsible 3rd party";
iii) "Not to go to [the address of the family home]".
"Options of alternatives to suspension considered
It is not considered appropriate or proportionate to suspend PC Philpot at this time. The officer can be effectively managed by their SLT by restricting their duty.
It is necessary and in the public interest to remove from normal duty because
The MPS and public expect that police officers conduct themselves with professionalism whether on or off duty. It is alleged that the behaviour of this officer has fallen below the standards expected of a serving officer.
It is not appropriate to remove the officer from normal duty because
Conditions to be imposed on the officer and rationale
PC Philpot is subject to criminal allegations of Coercive & Controlling Behaviour, Malicious Communications, and Common Assault and breaches of the Standards of Professional Behaviour in respect of Discreditable Conduct. Since 2016, PC Philpot is alleged to have subjected his partner and children to hostile and violent behaviour. This is alleged to have been in the form of threatening and abusive outbursts/insults towards family members, phone messages to his partner, psychological abuse concerning domestic matters, and physical assaults.
I have reviewed the circumstances of the allegations against PC Philpot. In my assessment of the risks, PC Philpot has demonstrated alleged criminal and unprofessional behaviour. I am of the opinion that these risks require management to ensure public and stakeholder confidence, and organisational confidence of officers and staff within the MPS. I consider placing PC Philpot on restricted duties ensures appropriate management of these risks.
It is directed that PC Philpot be placed on restricted duty subject to the following conditions:
• To work within the confines of a police building under supervision.
• To have no involvement in any matters concerning domestic matters or domestic violence.
• To have no direct or indirect contact with Kim Philpot. [emphasis added]
• To work in despatch only, only communicating with officers and staff via the P/R.
• No working in first contact.
The decision to restrict PC Philpot's duties will be reviewed on receipt of any further significant update."
"This form is to be served upon any officer where authority has been granted by the Director of Professional Standards to restrict their duties while they are subject to a misconduct investigation. Further details regarding Restricted Duty in this context can be found in the "Suspension of Police Officers Toolkit - Q&As" on the MPS Intranet.
Restricted duty is not defined within the Police (Conduct) Regulations 2020, but is consistent with a 'temporary redeployment to alternative duties or an alternative location as an alternative to suspension' (see Regulations 11(4)(a) of the Police (Conduct) Regulations 2020). Restricted duty does not therefore amount to suspension. It is important to note therefore that an officer subject to restricted duties will retain both their warrant cards and the powers and duties of a constable. The restriction from certain duties will be bespoke to the situation, reflecting the MPS' concerns regarding the conduct being investigated and the need to ensure that public confidence is maintained.
Being placed on restricted duties is not a misconduct outcome nor is it a presumption of guilt or a predetermination of the outcome of an investigation.
The officer's welfare will be a consideration in the decision to restrict and the boundaries to impose. Subject to the integrity of the investigation a restricted officer will be provided with details of the restriction and its rationale, in writing (see below). A restriction may, for example, specify that the officer will be employed in some other Operational Command Unit, or branch, other than their home BCU/OCU.
The circumstances of officers placed on such restricted duties will be reviewed should there be any significant change in circumstances or where a request is made by the officer concerned or their representative. Officers will be informed of the outcomes of such reviews in writing.
The term 'Restricted Police Duty' can have a number of separate meanings within MPS databases; this guidance relates only to those officers whose duties are restricted following service on them of a Notice of Investigation under the Regulation 15 Police (Conduct) Regulations 2020 or Regulation 16 Police (Complaints and Misconduct) Regulations 2020 (or superseded versions of those regulations as the case may be).
Whilst on such restricted duties officers will receive pay at the rate which applied at the time of restriction…."
"To have no direct or indirect contact with Kim Philpot, unless it is required by the family court, or for child care matters which are to be via a third party."
"Reasons for continued restriction.
PC Philpot was subject to criminal allegations of Coercive & Controlling Behaviour, Malicious Communications, and Common Assault and remains subject to allegations of breaches of the Standards of Professional Behaviour in respect of Discreditable Conduct.
Since 2016, PC Philpot is alleged to have subjected his partner and children to hostile and violent behaviour. This is alleged to have been in the form of threatening and abusive outbursts/insults towards family members, phone messages to his partner, psychological abuse concerning domestic matters, and physical assaults. The criminal investigation into the allegations was conducted and referred to the CPS. Their decision has been no further being taken (sic). The misconduct investigation is being conducted.
Representations were received from PC Philpot's Federation Representative in regard to the restriction applied to the officer concerning the officer's contact with his partner. They have referenced the impact the restriction has upon PC Philpot's private life and that of his children.
I have carefully considered the restriction and the current circumstances and am satisfied that the restriction should remain until the conclusion of the misconduct case. This restriction should apply both on and off duty.
This is a serious allegation of domestic abuse and if proven could justify dismissal. I have discussed the case with the IO and her supervisor and am sighted on some of the evidence in the case. The matter is still under investigation for alleged gross misconduct so I do not make any judgement in relation to this but it is my view that we have a duty of care to protect the victim from any further contact whilst this investigation continues, despite criminal allegations being NFA'd. If the AA in this matter does decide that there is a case to answer, the victim may be required to give evidence at any future proceedings and any contact from PC Philpott (sic) may jeopardise this.
I have considered the impact of the restriction on PC Philpott's (sic) private life and I am of the view that this is minimal because the victim does not want him to have contact with her. The restriction does not prevent the officer from seeing his children as he is allowed to contact her about the children via a third party (his mother). The email from the Fed rep in this case states that he has not seen his children in person since his arrest but it is my view that this is not due to the restriction we have put in place. Family court proceedings will consider the contact he can have with his children and the restrictions should not affect this.
I have also considered the previous restrictions that have recently been removed. I am satisfied that the role in which is the officer is currently posted is suitable and that risks to public confidence can be managed.
The restrictions should remain until the next significant update which I suspect will be when the IO submits the report to the AA."
"…Mrs Philpot was the main witness in the ongoing misconduct investigation and if that investigation ended in a misconduct hearing Mrs Philpot would be required to give evidence at the hearing against PC Philpot."
The statutory regime for handling police misconduct
i) Complaints – These are defined within section 12 of the Police Reform Act 2002 as any expression of dissatisfaction with a police force expressed by or on behalf of a member of the public. How complaints should be handled is specified by Part 2 and Schedule 3 of the Police Reform Act 2002, supplemented by the Police (Complaints and Misconduct) Regulations 2020;
ii) Conduct Matters – These are defined within section 12 of the Police Reform Act 2002 as any matter, not the subject of a complaint, where there is an indication that a person serving with the police may have committed a criminal offence or behaved in a way that would justify the bringing of disciplinary proceedings. Conduct matters are investigated pursuant to the Police (Conduct) Regulations 2020;
iii) Recordable Conduct Matter – These are conduct matters that fall within particular categories defined within paragraphs 10, 11 and 13A of Schedule 3 to the Police Reform Act 2002, supplemented by Regulation 7 of the Police (Complaints and Misconduct) Regulations 2020. How a conduct matter comes to be defined as a recordable conduct matter is complex, but is essentially concerned with seriousness. Recordable conduct matters are investigated pursuant to Schedule 3 to the Police Reform Act 2002, supplemented by the Police (Complaints and Misconduct) Regulations 2020; and
iv) Death or Serious Injury (known as 'DSI' matters): it is not necessary to give the details of this category.
i) The Standards of Professional Behaviour for police officers (Regulation 5 and Schedule 2); these include requirements to act with integrity and to "behave in a manner which does not discredit the police service or undermine public confidence in it, whether on or off duty";
ii) The provision of legal representation (Regulation 8); and
iii) The suspension of police officers (Regulation 11).
"(1) The appropriate authority may, subject to the provisions of this regulation, suspend the officer concerned from the office of constable and ….. membership of the force.
(2) An officer who is suspended under this regulation remains a police officer for the purpose of these Regulations.
(4) The appropriate authority may not suspend a police officer under this regulation unless the following conditions ("the suspension conditions") are satisfied –
(a) having considered temporary redeployment to alternative duties or an alternative location as an alternative to suspension, the appropriate authority has determined that such redeployment is not appropriate in all the circumstances of the case, and
(b) it appears to the appropriate authority that either –
(i) the effective investigation of the case may be prejudiced unless the officer concerned is so suspended, or
(ii) having regard to the nature of the allegation and any other relevant considerations, the public interest requires that the officer should be so suspended."
Restrictions on the private life of police officers: the Police Regulations 2003
"6. Restrictions on the private life of members
(1) The restrictions on private life contained in Schedule 1 shall apply to all members of a police force.
(2) No restrictions other than those designed to secure the proper exercise of the functions of a constable shall be imposed by the local policing body or the chief officer on the private life of members of a police force except—
(a) such as may temporarily be necessary, or
(b) such as may be approved by the Secretary of State after consultation with the Police Advisory Board for England and Wales.
(3) Any restriction temporarily imposed under paragraph (2) shall be reported forthwith to the Secretary of State."
"(1). A member of a police force shall at all times abstain from any activity which is likely to interfere with the impartial discharge of his duties or which is likely to give rise to the impression among members of the public that it may so interfere.
(2). A member of a police force shall in particular –
(a) not take any active part in politics;
(b) not belong to any organisations specified or described in a determination of the Secretary of State."
The decision of Lang J
The judge's conclusions on the regulation 6 issue
"66. Regulation 6, read together with Schedule 1, sets out the general restrictions on the private lives of police officers which form part of their terms and conditions of service. They are of universal application to all police officers, or classes of police officers, and are permanent (unless formally amended), not temporary.
67. It was common ground between the parties that paragraph (1) of regulation 6 of the 2003 Regulations gives effect to the restrictions in Schedule 1. It does not confer a power on the Defendant to impose any other restrictions.
68. Paragraph (2) of regulation 6 of the 2003 Regulations does permit the imposition of some further restrictions on the private life of officers. The structure of paragraph (2) is convoluted, and the language lacks clarity. However, I was assisted by seeing how the same paragraph had been drafted in earlier versions of the Police Regulations. I accept the Defendant's interpretation of paragraph (2), namely, that it permits the local policing body or chief officer to impose three categories of restrictions on private life, not just two, as the Claimant submitted. The three categories are as follows:
i) those "designed to secure the proper exercise of the functions of a constable";
ii) those "such as may temporarily be necessary" under sub-paragraph (a), which must be reported forthwith to the Secretary of State under paragraph (3);
iii) those "such as may be approved by the Secretary of State after consultation with the Police Advisory Board for England and Wales" under sub-paragraph (b).
69. Generally, the 2003 Regulations set out terms and conditions applicable to all police officers, or classes of police officers. In my view, any restrictions imposed pursuant to sub-paragraphs (a) or (b) of paragraph (2) are likely to be applicable to all police officers, or classes of police officers, as they have to be reported and/or approved by the Secretary of State. As both parties submitted, it seems highly unlikely that the Regulations would require a temporary restriction on contacting witnesses, imposed on an individual officer, to be reported to, or approved by, the Secretary of State.
70. However, the description of restrictions "designed to secure the proper exercise of the functions of a constable" does not expressly or impliedly exclude the possibility of restrictions being imposed upon an individual police officer. In my view, it confirms that the broad powers which the Defendant has to direct and control police officers in the Metropolitan Police Service (currently set out in the PRSRA 2011), may include imposition of restrictions on an officer's private life, provided that those restrictions are "designed to secure the proper exercise of the functions of a constable".
75. It is clear that the decision makers concluded that the Claimant represented a risk, both of harm to the complainant, and to the integrity of the misconduct proceedings, which needed to be managed by imposing Restriction 3. Restriction 3 was designed to ensure that the Claimant complied with the Standards of Professional Behaviour, in Schedule 2 to the Police (Conduct) Regulations 2020 by acting with integrity, and behaving in a manner which did not discredit the police service or undermine public confidence in it, whether on or off duty. In my view, compliance with these standards was an essential element of the Claimant's proper exercise of his functions as a constable. Furthermore, the statutory disciplinary procedures in the Police (Conduct) Regulations 2020 and the Police (Complaints and Misconduct) Regulations 2020 are part of police functions, in which the Claimant was participating. Restriction 3 was designed to ensure that the Claimant exercised his functions properly within the disciplinary proceedings, and did not jeopardise them by interfering with the complainant.
76. For these reasons, I consider that the imposition of Restriction 3 was "designed to secure the proper exercise of the functions of a constable" within the meaning of paragraph (2) of Regulation 6 of the 2003 Regulations."
The structure of regulation 6
(i) those designed to secure the proper exercise of the functions of a constable;
(ii) those which "may temporarily be necessary" under subparagraph (a) which must be reported forthwith the Secretary of State; and
(iii) those approved by the Secretary of State after consultation;
and that the first category, when applied in an individual case, need not be reported to the Secretary of State.
"Designed to secure the proper exercise of the functions of a constable"
88. Article 8 ECHR provides:
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
89. The Metropolitan Police Service is bound by section 6 of the Human Rights Act 1998 in its capacity as a public authority.
90. The Home Office Guidance advises, at paragraph 2.17, that Article 8 ECHR is relevant to determining restrictions on officers' private lives:
"Police officers have some restrictions on their private life. Some of these restrictions are set out in the Police Regulations 2003. These restrictions have to be balanced against the right to privacy in common law and right to a private life, as set out in Article 8 of the Human Rights Act 1998."
91. Although the decisions made no reference to Article 8 ECHR, the decision of 4 July 2021 did undertake a balancing exercise which was consistent with a proportionality assessment. Unfortunately, that was lacking in the decision of 20 October 2020.
92. Article 8 is a qualified right. An individual's right to respect for their private and family life may be interfered with if done in accordance with the law, in furtherance of one or more of the legitimate aims in Article 8(2), and where the interference is proportionate to the right pursued.
93. For the reasons I have set out above under Ground 1, the Defendant's decisions to impose and maintain Restriction 3, were not in accordance with the law, as they were erroneously made under regulation 11 of the Police (Conduct) Regulations 2020. Therefore there was a breach of Article 8 ECHR, and Ground 4 succeeds.
94. I go on to consider proportionality as this affects the question of relief. I accept that the Defendant could impose Restriction 3 in pursuant of the legitimate aims of the prevention of disorder or crime, and the protection of the rights and freedoms of others.
95. The Claimant's wife is the complainant and main witness and may have to give evidence against the Claimant. If the Claimant put pressure on his wife to withdraw the allegations, that could jeopardise the disciplinary proceedings.
96. Non-molestation orders, disciplinary proceedings and criminal proceedings are not preventative in nature. The police cannot apply for a non-molestation order; only the Claimant's wife can do so. Furthermore, the Claimant's conduct may not amount to molestation or a criminal offence, but still jeopardise the integrity of the disciplinary proceedings.
97. Restriction 3 does not prevent the Claimant from seeing his children. Arrangements for contact with the children are to be made via a third party. In the review decision of 4 July 2021, Detective Chief Superintendent Smith said:
"I have considered the impact of the restriction on PC Philpott's (sic) private life and I am of the view that this is minimal because the victim does not want him to have contact with her. The restriction does not prevent the officer from seeing his children as he is allowed to contact her about the children via a third party (his mother). The email from the Fed rep in this case states that he has not seen his children in person since his arrest but it is my view that this is not due to the restriction we have put in place. Family court proceedings will consider the contact he can have with his children and the restrictions should not affect this."
98. For all these reasons, I conclude that Restriction 3 was proportionate."
(There seems to be a minor error at the start of the judge's paragraph 96 as handed down: the word "unlike" appears to have been omitted. Non-molestation orders are indeed preventative in nature, but the important point is that disciplinary proceedings are not.)
Lady Justice Thirlwall
Lady Justice Nicola Davies