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The Brief: a need for clarity on improper relationships

The offence of Misconduct in Public Office is considered by some to be antiquated and ripe for reform.

The Brief: a need for clarity on improper relationships

Date - 2nd November 2020
By - Kevin Baumber
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In R. v. Luckett [2020] 2 Cr.App.R (S) a police officer had suffered several traumatic incidents during his service and as a result was suffering from mental health difficulties. He was awaiting therapy. He had been dealing with a traffic accident and was contacted by a female suspect in that investigation over Facebook. They had a 30 minute telephone call afterward. The officer reported this call to his sergeant that day, the traffic case was reassigned, and he was told not to contact her again. Furthermore, he blocked her on Facebook, and deleted her number.

Before conclusion of the professional standards investigation the officer obtained her telephone number from his pocket notebook for non-police purposes and began a sexual relationship with her. The discipline investigation unaware of the reignition of the relationship concluded that it was a one-off error of judgement and no further action was taken. The female suspect pleaded guilty to driving while over the prescribed limit for alcohol and was treated as a vulnerable defendant.

When the officer was arrested his phones had been smashed and his SIM card bent. He eventually pleaded guilty to one count of Misconduct in Public Office and was sentenced to 12 months' imprisonment. The relationship was entirely consensual and ongoing but the court found that his actions were serious and wrong. He had abused his position as a police officer by pursuing a sexual relationship. There was also a degree of manipulative and secretive behaviour to cover his tracks, although the officer was tried and acquitted of perverting the course of justice.

It was recognised that a prison sentence was inevitable due to the need for public faith and trust in police officers and the prime need for sentencing to be a deterrent. However, it was taken into account that the course of justice was not, in fact, harmed. The harm was to the reputation and integrity of the police. Given considerable personal mitigation including distinction with service, and mental health issues the Court of Appeal found that a notional sentence of no more than six months was appropriate. Giving full credit for the guilty plea, a sentence of four months' imprisonment was substituted.

While the relationship was with a vulnerable person, this case was not concluded on the basis of any exploitation of that vulnerability. It was uncontroversial that the relationship was entirely consensual. That relationship was at first initiated by her. The officer no longer had any involvement in her case.

The treatment of cases involving relationships with persons met through work as a police officer varies. The inconsistency in approach to such cases whether they are prosecuted criminally, taken in discipline only, or no action taken (as at first in this reported case) makes it difficult to predict what the outcome will be. The only sensible advice is for officers to steer well clear of anyone that they meet in the course of their work, even after the case has finished – but that is based more on the uncertainty than any examination of private life rights, criminal law effects, or professional responsibilities. It may be sacrificing Article 8 private life rights in the name of uncertainty.

The criminal law of Misconduct in Public Office should have a high threshold of seriousness, the cases say the offence should be strictly confined and that the element of culpability must be of such a degree that the misconduct impugned is calculated to injure the public interest so as to call for condemnation and punishment by the criminal courts – but whether an officer is criminally prosecuted or not in a ‘relationship’ case varies.

The Code of Ethics says that officers must

‘not establish or pursue an improper sexual or emotional relationship with a person with whom you come into contact in the course of your work who may be vulnerable to an abuse of trust or power’

but whether and what action is taken against an officer might vary as to how close the connection to the officer through work was, whether that work connection was finished, how close to the investigation the other person was, the seriousness or nature of the allegations being investigated, how long ago the connection was. There is no guidance on what is ‘improper’ and this language does not on its face prohibit all sexual and emotional relationships, although a blanket ban is the way it is often enforced.

The Law Commission questioned whether such relationships justify such criminalisation where there is no exploitation of vulnerability suggesting conduct should be dealt with under existing offences without resort to the charge of Misconduct in Public Office. That offence might be considered by some as antiquated and ripe for reform.

The Luckett case helps put the brakes on ever increasing sentences for police officers, although immediate custody (i.e. not a suspended sentence or community service) is reiterated. However,  those issues beyond the court’s reach of inconsistent use of this old common law offence and lack of reform to bring much needed clarity to the topic persists.

Kevin Baumber QC, 3 Raymond Buildings

3 Raymond Buildings is recognised as the leading specialist set of barristers nationally in representing police officers in misconduct, criminal and inquest proceedings, and police forces and officers in associated judicial reviews and public inquiries. Further details are at 3rblaw.com. Any opinions expressed in articles in The Brief are those of the individual author.

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