Earlier this month, and as required by statute, Sir Tom Winsor sent Avon and Somerset PCC Sue Mountstevens his views on her proposal to require Nick Gargan to resign as chief constable following his suspension and investigation for misconduct. Sir Tom’s report is well worth a read, being meticulous, deft and fair and at least in this case clearly underlining the value of having a lawyer as HMCIC. In essence Sir Tom agreed that Mr Gargan could be pushed if he refused to jump, having to borrow a sporting analogy lost the dressing room.
Nick Gargan has now tendered his resignation at the end of what is likely to be judged in time as a sorry tale for the police service and IPCC. It is clear that he demonstrated poor judgement in a number of ways and the misconduct panel found that eight charges were proven at the level of misconduct. Nevertheless, it is possible, from a careful reading of the various reports generated during the 17-month misconduct process, to identify a number of issues with the way his case was handled that merit consideration by the police service, IPCC and Home Office.
First, there is something troubling about the mismatch between the allegations that were originally described by the IPCC when Nick Gargan was suspended, concerning inappropriate conduct towards female members of staff at the force’, and the unrelated allegations that were ultimately found proven after a 14-month suspension. It is clear from the IPCC report that there were individuals who were unwilling to get involved in the formal process, but nevertheless a particular cloud of suspicion hung heavily over the case and will very likely have had an adverse bearing on the perceptions of colleagues, the wider force and indeed the public. It seems relevant to note that the misconduct panel referred in their report to rudderless concern for whistle-blowers and informants’ (para. 4.25). Ultimately only eight of 16 charges were proven, and at least some of those proven appear to have only arisen as a result of the IPCC investigation (for example, when communications were examined).
Second, and related to this, are the potential (perhaps probable) implications of the lengthy timescales of the IPCC’s investigation for the confidence of constabulary colleagues and the public (setting aside, although not completely, the matter of cost to the public purse).
Indeed, in their own report, the misconduct panel members suggest the issues of timescales (and the IPCC’s insistence on suspension) and unsubstantiated allegations might justifiably’ be considered by Mr Gargan to be unnecessary set-backs, if not indiginities’. They are also highly critical of the IPCC’s lack of grasp of the detail around the question of disclosure.
Third, it is unclear whether the panel, or PCC as Appropriate Authority, considered dealing with the eight misconduct findings cumulatively. According to the 2012 Home Office Guidance in force at the time of the original allegations, they could have done so:
2.10A Where an appropriate authority is considering more than one allegation in relation to the same police officer, the allegations may be taken together and treated as a single allegation for the purpose of making an assessment, finding, determination or decision in connection with the conduct that is the subject of the allegation. Therefore in making the severity assessment, the assessor may determine whether all the conduct alleged (taken together) would meet the test of misconduct or gross misconduct.
2.205A Where the persons considering the misconduct hearing are considering more than one allegation in relation to the same police officer, the allegations may be taken together and treated as a single allegation for the purposes of making an assessment, finding, determination or decision in connection with conduct which is the subject matter of an allegation.
(Home Office Guidance: Police Officer Misconduct, Unsatisfactory Performance and Attendance Management Procedures, Version 2 Revised November 2012.)
In their report, the misconduct panel state that [i]n respect of those [eight] breaches we find proved we consider that none amounted to gross misconduct, but misconduct only’, but they do not mention whether they considered taking the charges together. Here it is significant that in the case of chief constable misconduct, panels merely make recommendations to the Appropriate Authority, which would seem to leave open the possibility that the PCC could have considered the charges together and reached a conclusion of gross misconduct resulting in dismissal. It is notable that the PCC went on to invoke her Section 38 (of the Police Reform and Social Responsibility Act 2011) powers, under which a PCC can require a chief constable to resign or retire on efficiency and effectiveness grounds, but which may not be used to remove a chief constable on misconduct grounds. One possibility is that she did so because dismissal on misconduct grounds would leave open to Mr Gargan the option of an appeal, with the possibility of success and thus his return to work.
Fourth and related to this point and this is an issue that Sir Tom airs in his report it is clear that there are muddy waters at the confluence of the misconduct process and the Section 38 process. In the present case it is clear that the misconduct findings are very likely to have impacted on confidence in the chief constable and therefore his ability to efficiently and effectively run his force. But there is also a double jeopardy/due process question, given that in effect Mr Gargan is being dismissed following proven behaviours that did not in themselves in the view of the misconduct panel justify dismissal, but where they have been compounded by a wider loss of confidence that may itself partially or even substantially have arisen from the mechanics of the misconduct process.
One clear implication is that chief officers, and especially chief constables, have to negotiate not just the misconduct process (which, along with the Code of Ethics, already factors in their seniority), but then also clear a consequential or additional confidence hurdle. That may suggest that in fact the misconduct process is ill suited to chief officer cases (in relation to which, although not relevant to this case, the consequences of public hearings may be especially onerous). Another implication may be that the misconduct panel erred in finding that Mr Gargan’s behaviour amounted to misconduct but not gross misconduct.
Fifth, a notable feature of Sir Tom’s opinion is that he places particular weight on the views of Mr Gargan’s chief officer team colleagues, effectively democratising the process of removing Mr Gargan. While it seems impossible for a chief to lead a force effectively and efficiently without the support of his or her fellow chief officers, it must nevertheless be asked whether Sir Tom’s view sets a precedent, and what the implications of that could be for the composition of chief officer teams in particular. At face value it would seem to incentivise chiefs to appoint trusted lieutenants, and consequently risks militating against diversity (in the broader sense). It may also conceivably act to deter applications for chief constable positions from force outsiders, particularly where the rest of a chief officer team is home grown’, and it may hinder necessary but unpopular reforms (what if a chief constable decided to halve the number of chief officers as a response to austerity?).
Finally, the weight applied to the matter of confidence in this case also raises the question of whether it might be invoked where there are no misconduct issues. Tom Winsor states [i]t is evident that CC Gargan has lost the confidence of a material element of his officers and staff. In those circumstances, I can see very little alternative for the PCC but to call upon him to resign’ (para. 29). Take the example of the Metropolitan Police Staff Survey from 2014, in which 62 per cent of respondents disagreed with the statement that they had confidence in the leadership provided by senior leaders’, while only 21 per cent agreed. There does at least seem the potential for a slippery slope to have been reached.
Although Mr Gargan has now resigned as the chief constable of Avon and Somerset, the human costs of this case seem likely to continue. Given the issues raised above, it also seems highly likely that this case will continue to echo around policing in the years ahead and it is to be hoped that any lessons are learnt quickly.
Gavin Hales was one of the authors of a College of Policing commissioned research report on misconduct by chief officers in policing. He has also written a blog raising concerns about the pattern of chief officer appointments under PCCs, and another highlighting a lack of consensus on standards in misconduct cases.
Gavin Hales, Deputy Director, the Police Foundation