PC Andrew Moss Outcome

Outcome published Fri 1st Jul 2022, 50 working days after the hearing ended

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Officer

Standards of professional behavior that have allegedly been breached

  • Honesty and integrity

Allegations Proven

  • Honesty and integrity

Sanction: Resigned

Summary

1. The Appropriate Authority (AA) in their Regulation 30 Notice filed pursuant to the Police (Conduct) Regulations 2020 (the “2020 Regulations”) alleges breaches of the Standards of Professional Behaviour relating to Honesty and Integrity by former Police Constable 1397 Andrew Moss (‘the officer’) arising from his attendance at a secondary place of work, Annyalla Chicks, on at least two occasions, namely the 24th May and 1st June 2021 while he was on sick leave from Humberside Police due to a bone fracture. It is further alleged that he failed to inform Humberside Police of his attendance at work at Annyalla Chicks.

1.2. The officer has since resigned from the force on 30 November 2021 but for ease he is referred to as the ‘officer’ in this determination. The officer informed the AA that he would not be participating in the Misconduct hearing and did not file a Regulation 31 response (although erroneously a Regulation 22 response under the Police (Conduct) Regulations 2012 was filed). In the circumstances, the Legally Qualified Chairperson (‘LQC’) determined that no witnesses would be required to give live evidence and the case would be considered by the Misconduct Panel on the evidence as written.

1.3. Overall, the Appropriate Authority (‘AA’) alleges that the officer breached the Standards of Professional Behaviour relating to Honesty and Integrity and that these matters taken individually and/or collectively amount to gross misconduct, and are so serious that the officer would have been dismissed if he had not ceased to be a member of the police force.

1.4. The Panel wishes to record that Mr. Simon Mallett of Counsel appeared for the AA. The officer was not formally represented, although Police Sergeant Lee Sims made submissions on his behalf regarding mitigation.

THE LEGAL FRAMEWORK
1.5. The Panel approached its fact-finding role in the following structured manner (as required by R (Dyfed Powys Police) v Police Misconduct Panel [2020] EWHC (Admin) (29 July 2020):

• To ascertain the facts (whether as admitted or found proven).
• To ascertain whether the facts as determined by the Panel, constitute a breach of the Standards of Professional Behaviour, as alleged;

and,

• Whether the breach of the Standards of Professional Behaviour amount to Misconduct or Gross Misconduct?
• What Disciplinary Action (sanction) is appropriate?

1.6. In deciding matters of fact, the Panel is fully cognisant that the AA brings the case and the burden of proof of proving the allegations rests with the AA. The standard of proof in misconduct proceedings is the civil standard of the balance of probabilities and the test is a simple unvarying balance of probabilities; what is more likely than not. However, as noted by Lord Hoffman In re B (Children) [2008] UKHL 35 “When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred, and, hence the stronger should be the evidence before the court concludes that the allegation is established on the balance of probabilities. …..The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established.”

PARTICULARS OF THE ALLEGATIONS (please see the Regulation 30 Notice)
1.7. The two allegations against the officer are as follows:

1. While on sick leave from Humberside Police due to a bone fracture, you attended work at your place of secondary employment, Annyalla Chicks, on at least the following occasions: (a) 24th May 2021 & (b) 1st June 2021.

2. While on sick leave from Humberside Police due to a bone fracture, you failed to inform Humberside Police of attending work at your place of secondary employment, Annyalla Chicks.

The Evidence and Factual Findings
1.8. In her statement dated 10 August 2021, PC Giblin recalled that she and the officer had attended the same secondary school and had been in contact as Facebook friends. She said that on 24th May at 05.37 hours he sent her a message on Facebook Messenger. The message said ‘Morning, driving to farm so free time anyway. X text or call’. At 06.13hrs he wrote ‘Just got to farm have a nice day X’.

1.9. PC Giblin said she later that day asked the officer if he was back at Humberside Police and he replied ‘Another 2 weeks off sick (with a sick emoji) then maybe another 2 after that’. She then sent him another message at 18.11hrs asking ‘Should you be working if you are off sick?’. He replied ‘Well not really not only me and you know lol plus farm is light work’. In the course of further exchanges PC Giblin said to the officer that he could be opening himself up to trouble as he is off sick. The officer apologised and also said ‘I was only helping with paperwork’.

1.10. The Panel notes that in his interview and Regulation 22 response the officer confirmed that on 16th May 2021 he had a work accident that resulted in a broken arm. He admitted to working at Annyalla Chicks whilst he was on sick leave on 1st June 2021 and other dates not mentioned in the regulation 30 Notice dates but did not admit to working at Annyalla Chicks on 24th May 2021. When he was asked at interview about the 24th May, he replied ‘Mm Hm’.

1.11. The officer further stated that he had registered a business interest in 2018 which was accepted by Professional Standards Department (PSD) allowing him to work at a poultry farm in Spalding on his days off from working at Humberside Police. The AA stated that the business interest was submitted in March 2018 for a period of 12 months to work at Annyalla Chicks at various farms in East Yorkshire for one day per week for 6-8 hours.

1.12. In respect of the disputed date of 24th May, the Panel has also reviewed the email dated 26th August 2021 from the HR Manager of Annyalla Chicks’ to DC Mandy Kellington of PSD, Humberside Police. The email confirmed that ‘On 24th May and 1st and 3rd June [the officer] was preparing for ACP audits. This would have been office based’.

1.13. A further email dated 13 August 2021 again from the HR Manager of Annyalla Chicks to DC Kellington stated that on 24 May the officer worked 10 hours and again a further 10 hours on 1st June at the Ryedale Poultry farm location. A further email of 27 August from Annyalla Chicks to DC Kellington confirmed that the HR manager was aware that the officer was in the Police Force.

1.14. The Panel has carefully reviewed the evidence and finds on the balance of probabilities that while on sick leave the officer did attend work at his secondary employment, Annyalla Chicks on 24th May. This finding is based on his own message to PC Giblin and from the emails received from the HR Manager at Annyalla Chicks, together with vehicular checks that show he drove on the A1079 to go to the farm on 24th May and again on 1st June. The Panel also finds based on his own admission and the emails from Annyalla Chicks that the officer worked there on 1 June 2021.

1.15. In the two statements of Police Sergeant Simon Boynton dated 9 June 2021 and 28 July 2021, he confirmed that the officer was on sick leave from 16 April to 30 June 2021 and that he had sick notes for the entire period. He stated that on 25th May the officer contacted him by text enquiring about when he was expected to return. In the course of the exchanges, the officer said that his ‘arm still hurts’ and that he intended to take another two weeks sick leave after the expiry of his then sick note on 6th June. He said that he had a physio appointment on the following Friday when he expected to start exercising. He said he did not ‘want be sat in the station for another six weeks. I’d rather be off strengthening it and come back virtually fit’.

PS Boynton replied ‘You can come back virtual fit for me instead of being kept in but obviously would still need sick notes in date etc’.

1.16. PS Boyton said on 9th June 2021 he was made aware that the officer was to be served Gross Misconduct papers and that he would become his welfare officer. At 11.45hrs that morning, PC Boyton said he was contacted by the officer who confirmed he had been served with the papers and informed him that he had in fact attended at his secondary employment on three occasions during his sick leave from Humberside Police.

1.17. PS Boyton said he was totally unaware of the officer attending his secondary employment whilst being on sick leave from Humberside Police. He further stated that a phased return to work or light duties had been discussed, but because it was agreed that his arm was still causing him discomfort a further sick was provided from his GP advising against being at work.

1.18. In his Regulation 22 response, the officer confirmed that on 16th May 2021 he had a work accident that resulted in a broken arm. He admitted to working at Annyalla Chicks whilst he was on sick leave. He stated that his duties were administrative and did not affect his rehabilitation or delay his return to Humberside Police. He confirmed that he had spoken to his supervisor PS Boynton and had told him that his arm was still hurting and that he did not want to be sitting in the station for 6 weeks preferring to be off strengthening it and would then come back to work fully fit for operational duties.

1.19. The officer also confirmed in his Regulation 22 response that he had spoken to his Physio (James) who said that the activities that he had described (presumably relating to his secondary employment) would not hinder his rehabilitation.

1.20. In his Record of Interview dated 11 August 2021, the officer stated the following relevant matters:

• He accepted that he had worked at Annyalla Chicks on 1st June and other dates but not on 24th May;
• He confirmed that his supervisor did not know he was working at Annyalla Chicks. He was asked ‘… did you at any point say to them, well just to let you know I’m doing some clerical work and a bit poultry thing at the farm? He replied ‘No’.

He was further asked ‘So why didn’t you tell them?’ He replied ‘cause, it was …..I’ve always done the poultry farming obviously, like as I say I’ve got a business interest form in place and it is just something that I do on my rest days and I just continued to do it because it wasn’t a fact of I enjoy doing it, for me and my personal reasons it’s a needs must to do it and I have to do it to survive unfortunately’.

• The officer accepted that he wasn’t transparent at the time. He was asked ‘….you weren’t being transparent at that time, were you?’ He replied ‘Not at the time, erm again maybe my judgement was fogged with obviously the concern about money’. Later, he said ‘I wouldn’t say I was being intentionally deceitful, no, I can see how it would come across that I was being, not being transparent but, like I said, I wasn’t being intentionally deceitful and intentionally dishonest’.
• The officer confirmed that whilst he didn’t tell anybody, he could go off and earn extra money. When asked about this he replied ‘Okay’.
• The officer admitted that had he told Humberside Police that he could return and do some administrative work as he had been doing at Annyalla Chicks, they would have told him to come back to the office.
• The officer accepted that the message he sent to PC Giblin showed him to be dishonest because had he told his supervisor that he working elsewhere he could not have earnt the additional money. He said ‘Its shows dishonesty yeah’.

1.21. The Panel has carefully considered the evidence of PS Boyton and the officer and finds on the balance of probabilities that the officer did not inform his supervisor while he was on sick leave that he was attending work at his secondary employment, Annyalla Chicks. The Panel finds on the balance of probabilities that he deliberately and intentionally failed to do so, as he knew very well that if he disclosed this information, he would have been required to return to Humberside Police earlier than 1 July 2021 thereby denying him the possibility of earning additional income from his secondary employment.

To ascertain whether the facts as determined by the Panel constitute a breach of the Standards of Professional Behaviour.

2. The Panel has considered the ascertained facts and is mindful that in considering this question, it will need to exercise reasonable judgement and give appropriate and careful consideration to the evidence. The Panel is also aware that when applying the Standards of Professional Behaviour in any decision or misconduct hearing they shall be applied in a reasonable, transparent, objective, proportionate and fair manner and, due regard shall be paid to the nature and circumstances of a police officer’s conduct, including whether his or her actions or omissions were reasonable at the time of the conduct under scrutiny. The Panel notes that all police officers are in a position of trust and responsibility whether on or off duty.

2.1. Turning to the alleged breaches of the Standards of Professional Behaviour relating to Honesty and Integrity:

HONESTY AND INTEGRITY
2.2. According to this Standard an officer will be honest and act with integrity at all times, and will not compromise or abuse their position. In particular, the Standard requires an officer to ensure that their decisions are not influenced by improper considerations of personal gain.

2.3. In reaching its findings on the issue of ‘dishonesty’ the Panel has addressed its mind to the test set out in the reported decision of Ivey v Genting Casinos [2017] UKSC 67. This requires the Panel to ask itself whether the officer’s conduct was, in the circumstances as he perceived them to be dishonest by the objective standards of ordinary decent people.

2.4. The Panel is also aware from the relevant caselaw [see SRA v Wingate [2018] EWCA Civ 366] that in professional codes of conduct, the term ‘integrity’ is a useful shorthand to express the higher standards which society expects from professional persons and which the professions expect from their own members. Also, that integrity connotes adherence to the ethical standards of one’s own profession that involves more than mere honesty, while at the same time recognising that the duty of integrity does not require professional people to be paragons of virtue but that in every instance, professional integrity is linked to the manner in which that particular profession professes to serve the public.

2.5. In the decision of Chief Constable of Thames Valley Police v Police Misconduct Panel [2017] EWHC 923, McGowan J stated ‘A lapse of integrity is very serious but can fall short of the quality of a lapse of dishonesty. Integrity in this context is not used in the sense of freedom from moral corruption rather in the sense of a failing to act in the right way, not behaving as the totally correct police officer would, in some way falling short of the whole. It is explained for police officers as ‘doing the right thing’.

2.6. Based on the evidence, the Panel finds on the balance of probabilities the officer knew that his conduct of attending work at his place of secondary employment while on sick leave was dishonest. This is evident from his message to PC Giblin when he was asked ‘Should you be working if you are off sick?’ to which he replied ‘Well not really not only me and you know lol plus farm is light work’. Even though he had registered a business interest, the Panel finds the scope of the permission granted by the force was to attend his secondary employment on his rest day, not while he was on sick leave. While questions remain as to the validity of his registered business interest as it was approved for only 12 months and would have expired in March 2020, the Panel finds that even if it was live, the terms of the permission would not have exonerated the officer from his conduct.

2.7. In his interview, the officer acknowledged a lack of transparency with his supervisor and accepted that if he had disclosed his secondary employment while he was on sick leave, he would very likely have been asked to return to Humberside Police earlier than 1 July thereby denying him much needed additional income. The Panel finds that it was not a coincidence that he made contact with his supervisor on 25th May informing him that he wanted more time off to strengthen his arm when he had already worked at Annyalla Chicks on 24th May. His contact was a cynical ruse to explore if he could get more sick leave so that he could continue his secondary employment beyond the 6th June when his sick leave certificate expired.

2.8. The Panel is in no doubt that the officer’s conduct would be judged dishonest and lacking integrity by the standards of ordinary decent people.

Whether the breach of the Standards of Professional Behaviour amount to Misconduct or Gross Misconduct?

3. In light of the proven breaches of the Standards of Professional Behaviour relating to ‘Honesty and Integrity’ the Panel went on to consider the issue of seriousness of the proven conduct to determine whether the proven conduct amounts to ‘misconduct’ or ‘gross misconduct’. In undertaking this task, the Panel is mindful that ‘Misconduct’ is defined as ‘a breach of the Standards of Professional Behaviour’ that is so serious as to justify disciplinary action’ and ‘Gross Misconduct’ is defined as a ‘breach of the Standards of Professional Behaviour that is so serious as to justify dismissal.

3.1. In relation to the seriousness or severity of the proven conduct, the Panel is aware that assessment of this issue is to be informed by consideration of the officer’s culpability for the misconduct, the harm caused by the misconduct, and the existence of any aggravating and mitigating factors.

3.2. In terms of culpability, the officer is solely responsible for his own misconduct. The Panel finds his conduct was deliberate and intentional for personal financial gain. The College of Policing Guidance notes ‘that honesty and integrity are fundamental requirements for any police officer and evidence of dishonesty and lack of integrity must always be treated seriously’. Although this was not operational dishonesty, the Panel’s findings show that the officer deliberately misled his Sergeant about his secondary employment and his ability to return to work.

3.3. In terms of aggravating factors present in this case, the Panel finds there was an abuse of trust by concealing his wrongdoing. Further, the misconduct was over a sustained period even though he knew it to be improper.

3.4. In terms of mitigating factors, the relevant factors include that he had personal financial problems and the financial gain was limited. He has made a limited admission regarding working on 1 June 2021. He also did not mislead Annyalla Chicks

3.5. Finally, in terms of harm caused by the conduct, the Panel is aware that officers occupy a position of trust and therefore any breach of the Standards of Professional Behaviour is capable of undermining public confidence in policing. Although no specific harm has been caused to any individual, the Panel finds that the officer’s conduct would undermine public confidence if known. As these proceedings are in public, the officer’s dishonesty will very likely damage and/or undermine public confidence in the reputation of the Humberside Police.

3.6. In light of the above considerations, the Panel considers the officer’s culpability to be at the higher end of the range. Overall, the Panel finds the officer’s conduct amounts to Gross Misconduct.

PANEL’S FINDINGS ON OUTCOME/SANCTION
4. The Panel heard submissions concerning the appropriate and proportionate outcome in light of the Panel’s determination of gross misconduct.

4.1. Before turning to set out the outcome for the officer, the Panel wishes to first explain its approach by identifying some overarching considerations it has borne in mind.

Overarching Considerations
4.2. In approaching its decision making regarding an appropriate and proportionate sanction for the officer the Panel has considered the submissions, together with the officer’s record of police service in accordance with Regulation 42(14)(a) of the Police (Conduct) Regulations 2020. The Panel has also paid close attention to the general framework for assessing ‘Outcome’ set out in the College of Policing Guidance on Outcomes in Police Misconduct Proceedings (‘the guidance’). Of particular importance, are the following paragraphs in the guidance:

At para 1.2: the guidance sets out the purpose of the misconduct regime as follows:

“Police Officers exercise significant powers. The Misconduct regime is a key part of the accountability framework for the use of these powers. Outcomes should be sufficient to demonstrate the individual accountability for any abuse or misuse of police powers if public confidence in the police service is to be maintained. They must also be imposed fairly and proportionately.”

At para 2.3, the three-fold purpose is explained:

• Maintaining public confidence in and the reputation of the police service
• Upholding high standards in policing and deterring misconduct
• Protecting the public

4.3. In the context of the purpose of professional disciplinary proceedings the Panel is aware this is drawn from established case-law:

In Bolton v Law Society [1994] 1 WLR 512
Sir Thomas Bingham MR (as he then was) stated “A profession’s most valuable asset is its collective reputation and the confidence which that inspires”

In R (Green) v Police Complaints Authority [2004] UKHL 6 Lord Carswell stated in relation to the police service:

“Public confidence in the police is a factor of great importance in the maintenance of law and order in the manner which we regard as appropriate in our polity. If citizens feel that improper behaviour on the part of officers is left unchecked and they are not held accountable for it in a suitable manner, that confidence will be eroded”.

4.4. At para 2.10 of the guidance, it is noted that misconduct proceedings are not designed to punish police officers. As stated by Lord Justice Laws in the decision of Rashid v GMC [2007] 1WLR 1460 “The Panel is centrally concerned with the reputation or standing of the profession rather than the punishment of the doctor”.

That said, at paragraph 2.11. the guidance acknowledges:

“The outcome imposed can have a punitive effect, however, and therefore should be no more than is necessary to satisfy the purpose of the proceedings. Consider less severe outcomes before more severe outcomes. Always choose the least severe outcome which deals adequately with the issues identified while protecting the public interest. If an outcome is necessary to satisfy the purpose of the proceedings, impose it even where this would lead to difficulties for the individual officer”.

At paras 4.5-4.6, the guidance advises that, when considering outcome, a Panel should:

“4.5……first assess the seriousness of the misconduct, taking account of any aggravating or mitigating factors and the officer’s record of service. The most important purpose of imposing disciplinary sanctions is to maintain public confidence in and the reputation of the policing profession as a whole. This dual objective must take precedence over the specific impact that the sanction has on the individual whose misconduct is being sanctioned.

4.6 Consider personal mitigation such as testimonials and references after assessing the seriousness of the conduct.”

At para 6.3 of the guidance regarding the scope of personal mitigation, it states:

“Consider any personal mitigation advanced by the officer when deciding on the appropriate outcome. Such mitigation may include whether the officer has shown remorse, acted out of character or made a significant contribution to the police service.

4.5. The Panel also wishes to recall paragraph 2.9 of the 2020 Home Office Guidance which states:

“Disciplinary action has a part, when circumstances require this, but all outcomes should include learning opportunities”.

4.6. In distilling these important principles to reach an appropriate and proportionate outcome for the officer, the Panel is aware of the importance of following the three stage structured approach explained by Mr Justice Popplewell in the decision of Fuglers LLP v SRA [2014] subsequently reaffirmed by the High Court in the decision of His Honour Judge Pelling QC in the Chief Constable of Greater Manchester Police v Police Misconduct Tribunal (Roscoe – Interested Party) [13 November 2018] and in R (on the application of Chief Constable West Midlands Police) and Panel Chair, Police Misconduct Panel and ‘Officer A’ [2020] EWHC 1400.

4.7. The three stages are to assess the seriousness of the misconduct; to keep in mind the purpose of imposing sanctions; and, to choose the sanction which most appropriately fulfils that purpose for the seriousness of the conduct in question.

4.8 Turning first to the issue of seriousness of the proven conduct, the Panel is aware that this is to be assessed based on the officer’s culpability for the misconduct; the harm caused by his misconduct and the existence of any aggravating and mitigating factors relevant to the conduct.

4.9. The Panel has already considered the issue of seriousness in the context of its severity assessment and adopts here its earlier reasoning regarding Outcome. The Panel recalls that it has found the officer’s culpability to be at the higher end of the range.

4.10. Turning to the records of Police Service for the officer, the Panel notes that the officer has a written warning for discreditable conduct which was imposed on 26th March 2021, just two months prior to the current misconduct. The records show that he joined Humberside Police on 3 November 2018 and was in service for three years by the date of his resignation. During his three years of service, he was not inside the force sickness criteria having had 11 periods and 162 days absence. He is married.

4.11. The Panel has received no written testimonials on his behalf. However, Police Sergeant Simms from the Police Federation stated in mitigation that the officer accepted the facts as presented by the AA and apologised on his behalf for the trouble caused by his misconduct. He noted that the officer’s secondary employment was necessary due to serious financial pressures on his family. The officer was not motivated by greed but solely by wanting to provide for his family. Without the additional income he would have struggled to make ends meet. He said that the officer never intended to mislead anyone. He was a hard-working family man and was well liked by colleagues

4.12. In considering the appropriate weight to place on personal mitigation, the Panel has been guided by the decision of Holroyde J in the case of Williams v The Police Appeals Tribunal [2016] EWHC 2708. The judgment makes it clear that the weight to be attached to personal mitigation in any particular case is necessarily limited. Accordingly, while the Panel has attached limited weight to it.

4.13. The Panel next turned to consider the purpose of imposing sanctions. In this regard, the Panel is aware that the most important purpose of imposing disciplinary sanctions is to maintain public confidence in and the reputation of the policing profession as a whole. This dual objective must take precedence over the specific impact that the sanction has on the individual whose misconduct is being sanctioned.

4.14. In terms of maintaining public confidence in and the reputation of the police service the public would be rightly concerned that the officer has acted dishonestly in a deliberate and intentional manner by failing to disclose his secondary employment while he was on sick leave. In this regard, the public would no doubt be concerned about the risk of reoccurrence and the implications of his conduct regarding his ability to carry out professional duties in the future. In considering the risk of reoccurrence and the protection of the public, the Panel notes that the officer has disengaged from the process and shown little remorse, contrition or insight regarding his conduct.

4.15. In the circumstances, the Panel finds that if he was still in service, it would have no assurance that such conduct would not happen again or that he would adhere to the high standards of professional behaviour expected from him to maintain public trust and confidence in policing.

4.16. Turning to the most appropriate outcome for the former officer, the Panel has reviewed the case and sought to reach a fair decision on the most appropriate and proportionate outcome. In light of the seriousness of the proven misconduct involving dishonesty, the Panel finds that only disciplinary action would be sufficient to maintain public confidence in this case. In this regard, these proceedings look forward and are designed to protect the public, deter future misconduct and maintain the reputation of the profession. The Panel has carefully taken into account all of the relevant factors, taking care not to double count and finds that the officer would have been dismissed without notice if he had not ceased to be member of the police force.

Humberside Police
  • Stats since 1st January 2022
  • 6 Misconduct Hearings
    83% held in public


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