PS Richard Lewington outcome report

IN THE MATTER OF THE POLICE (CONDUCT) REGULATIONS 2020 AS AMMENDED BY POLICE (CONDUCT)(AMMENDMENT) REGULATIONS 2024 (PCR)

CONCERNING: POLICE SERGEANT 78760 RICHARD LEWINGTON

Panel Findings

1. The Panel has been convened to consider allegations of misconduct made by the Appropriate Authority (AA) against PS Lewington. It is the AA’s case that the officer has acted in breach of the standards of honesty and integrity, authority respect and courtesy, orders and instructions, and duties and responsibilities.

2. We remind ourselves that the burden of proof lies with the AA and is discharged on the balance of probabilities.

3. We have considered all written and oral evidence contained within the bundle and have been assisted by the submissions of counsel. In addition we received a character bundle from the officer and took into account his good character.

4. As a preliminary point the evidence of PC Martin drew our attention to the proper nomenclature for the action of coming on to duty on a rest day. We agree that what is alleged amounts to rest day working rather than a recall to duty which would occur between two rostered shifts. We do not find that anything turns on this distinction.

Findings of fact

5. The AA has broken down its factual assertions into numbered points, and we have dealt with them in this way. We have been greatly assisted by the full and well drafted Reg 31 response and the succinct way in which the officer’s case has been presented which has allowed us to identify the areas of dispute.

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6. We find that the facts as set out are proven. We so find on the balance of probabilities. We do so having considered all the evidence and the officer’s admission as to these assertions.

7. 1.e It is accepted by the officer that he knew that, if available, the first on call rep should attend the with cause drugs test. It is the AA’s case that the on call rep, PS Ford, was available and told PS Lewington this fact. The officer’s case is that PS Ford indicated he was busy and he inferred from this that PS Ford could not attend. Whilst the formal details of the on call scheme speak of the lead on call being committed to a PIP as being the trigger to work being passed to the second on call rep, we accept the evidence of PC Martin that the scheme was far more flexible than this and the first on call rep could pass work to the second if this facilitated the smooth running of the Federation service. The next issue is what was actually said as between PS Ford and PS Lewington on the call. We have considered the evidence of PS Ford, DI Ford and PS Lewington. We have had the benefit of hearing each witness in person. PS Ford told us that he was engaged at HQ later that day on an unconnected matter, but this would not prevent him attending the with cause drugs test and he would be arriving at HQ at around 7am in any event. His recollection was that the misconduct interview he was to attend was at 9am. He denied making the comment attributed to him by PS Lewington, that he was busy. We find the evidence of PS and DI Ford to be credible but observe there is a degree of inconsistency. We are entirely satisfied that both witnesses have given evidence to the best of their ability and recollection, and would have been surprised if their evidence had been carbon copies of each other, especially given the circumstances of an early morning call for what at the time was a fairly mundane matter. Their statements were produced a little over a month after the events when they were asked to provide them. In particular PS Ford said he ‘had no issue dealing’ whereas DI Ford recalled PS Ford more positively saying ‘I will go’. Whilst the content of the conversation is not admitted by PS Lewington he accepts that at no point did PS Ford say he could not attend the with cause drugs test. In his oral evidence PS Ford told us that PS Lewington did not ‘Insist on attending’ and it is common ground as between PS Ford and PS Lewington that there was agreement that PS Lewington would attend the with cause drugs test, and PS Ford would deal with his pre-existing commitment. We therefore find that whilst PS Lewington could have made further enquiries as to PS Ford’s commitments, he honestly held the belief that PS Ford had another commitment and that as the first on call rep PS Ford had agreed to PS Lewington’s deployment to the with cause drugs test.

8. We find that PS Lewington, whilst aware that PS Ford could attend, said he would attend as a result of inferring a degree of reluctance on the part of PS Ford. We note the evidence of DC Smith, that when attempting to obtain the services of a Fed rep, the on call system was honoured more in the breach than in the observance, not even having the number for the on call rep or means to discover their identity. We also consider the evidence of PC Martin regarding the fluidity of the system and the unchallenged evidence of PS Lewington himself regarding other incidences of non-rota attendance. We find that the agreement reached by the two officers allowed for the proper deployment of PS Lewington to the with cause drugs test. We additionally observe that it is not in dispute that PS Lewington did in fact call PS Ford following the call from DC Smith, and accept this supports PS Lewington’s case that had he been motivated to simply take the call in order to obtain overtime, he would simply have told DC Smith that he would attend, having been told PS Ford was not contactable.

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9. We are satisfied that the conversation as between PS Ford and PS Lewington culminated in an agreement between them that PS Lewington would attend. We are so satisfied as this is the evidence of both witnesses. We accept the evidence of PC Martin that it was within the gift of the first on call rep to decide issues of deployment. Once PS Ford agreed to PS Lewington’s deployment, we are satisfied that PS Lewington had ‘authorisation’ to attend and that given the position at the time that a Fed rep should attend a with cause drugs test, this attendance was necessary.

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10. It follows that we are satisfied that PS Lewington was properly on duty and that this was both authorised and necessary. Once properly on duty, he was entitled to claim overtime.

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11. We find that the facts as set out are proven. We so find on the balance of probabilities. We do so having considered all the evidence and the officer’s admission as to these assertions.

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12. We find that the facts as set out are proven. We so find on the balance of probabilities. We do so having considered all the evidence and the officer’s admission as to these assertions.

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13. We find that the facts as set out are proven. We so find on the balance of probabilities. We do so having considered all the evidence and the officer’s admission as to these assertions.

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14. We cannot be satisfied that the officer improperly submitted the second claim. We so find as this submission was, on balance, the standard route for such a submission and so there was nothing improper in submitting the claim in this way. We accept the evidence of PS Lewington that it was his honesty held belief that the first submission was rejected administratively rather than on its merits. We find that what is described as a second claim is no more than a revision of the original claim.

The standards.

15. Having made the findings of fact we consider the Standards

Honesty and integrity

16. We have found that PS Lewington did not believe he was doing the wrong thing by attending the with cause drugs test and that the expectation of an overtime payment was a natural consequence flowing from the work properly done. The overtime was properly payable and therefore making the claim was proper. The submitting of a revised claim following the rejection of the first was a reaction to what PS Lewington believed was an incorrect submission rather than any impropriety, and whilst the revised claim did not reference the first, this was not done with any improper intent. We therefore do not find the proven facts amount to a breach of the standard.

Authority, respect and courtesy

17. We do not find any breach of the standard of authority respect and courtesy. Whilst we are satisfied that the initial rejection included the words ‘please speak to the branch secretary’ the explanation given by PS Lewington, that he believed this to be an invitation to seek advice rather than an instruction, entirely plausible and so his rejection of this invitation did not breach the standard. Whilst we find that two claims were submitted we are not satisfied that this is properly described as an exercise of police powers and in any event find that there was nothing wrong in making such submissions.

Orders and instructions

18. We do not find that the proven facts amount to a breach of the standard of orders and instructions. The agreement of the on call rep that PS Lewington should attend the with cause drugs test amounted to authorisation for his attendance. As the attendance was proper it follows that the making of an overtime claim was also proper. We find that PS Lewington believed he was entitled to payment and that the initial rejection was administrative and so was acting properly in pursuing it. His previous experience led him to the belief that he did not need further assistance in the making of the claim and the ‘please speak’ was more in the way of an offer of assistance rather than an order or instruction. We found PS Lewington’s explanation credible on this point.

Duties and responsibilities

19. We do not find that the standard of duties and responsibilities was breached. We are not satisfied that PS Lewington failed to exercise the required degree of diligence in the exercise of his duties. We note that PS Lewington, having taken the initial call looked up who was on call and did in fact call PS Ford to meet the need for a rep. We are not satisfied that PS Lewington’s subsequent actions of attending the with cause drugs test and the making of overtime claims was inconsistent with the execution of his duties and responsibilities, given our finding that his attendance was proper and so his claim was proper and his revised claim was absent any dishonest intent.

Conclusion

20. We therefore find that the conduct amounts to neither misconduct nor gross misconduct and so in accordance with regulation 42(1A) direct that the matter is referred to be dealt with under the reflective practice review process.