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final decision adjudication panel for england

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									                               FULL DECISION
REF:                                  APE 0030

DATE:                                 28 March 2003

RE:                                   REFERENCE ABOUT POSSIBLE FAILURE
                                      TO FOLLOW THE CODE OF CONDUCT

RESPONDENT                            Mr E C Coleman

RELEVANT AUTHORITY                    Lincolnshire Police Authority
CONCERNED

ESO                                   Nick Marcar

ESO’s Representative                  Christopher Boothman

Case Tribunal                         Patrick J Mulvenna (Chairman), Mary
                                      McCowan and Darryl Stephenson

1       Preliminary Documents

                1.1     The Referral from the Ethical Standards Officer

                1.1.1   In a letter dated 17 December 2002, the Adjudication Panel
                        for England received a referral from an Ethical Standards
                        Officer (“ESO”) in relation to allegations made against the
                        Respondent. The allegation was from the Clerk to the
                        Lincolnshire Police Authority („the Police Authority‟), that by
                        the tone and language of a letter written by the Respondent
                        to the Lincolnshire Echo he had breached the Police
                        Authority‟s Code of Conduct in that the letter failed to treat
                        others with respect (a breach of paragraph 2(b) of the Code
                        of Conduct) and was such as to have brought his office or
                        authority into disrepute (a breach of paragraph 4 of the Code
                        of Conduct)

                1.1.2   The ESO in making his reference indicated that, in his view,
                        there had been no breach of paragraph 2 (b) of the Code of
                        Conduct but that there had been a breach of paragraph 4 of
                        the Code.

                1.1.3   The Respondent had not made any comments in relation to
                        the referral.

2       Oral Submissions (procedural)
           2.1     The Respondent and the ESO‟s Representative agreed that
                   the test as to whether or not there had been a breach of
                   paragraph 4 of the Code of Conduct was an objective one,
                   i.e. would a reasonable person with knowledge of all the
                   material facts consider that the office of member of the Police
                   Authority or the Police Authority itself had been brought into
                   disrepute.

3   Findings

           3.1     The Case Tribunal found the following undisputed facts:

           3.1.1   The Respondent had served as an independent member of
                   the Police Authority since 1 April 1999.

           3.1.2   In March 2000, the Police Authority adopted the Force‟s
                   Equality and Fairness Policy and each member signed a
                   declaration supporting it. The Policy included the following
                   advice -

                         “Think before you act! Remember, you represent
                         Lincolnshire Police.      Think about what you are
                         doing/saying. Ask yourself, „is it appropriate? is it
                         ethical and fair?; does it reflect the values of the
                         organisation?‟ Others; if in doubt seek advice. You are
                         responsible for your actions”.

           3.1.3   The Respondent signed his declaration on 1 October 2000.
                   In that declaration, the Respondent signed that, as a member
                   of the Police Authority -

                         “I do not accept and am committed to prevent
                         discrimination, harassment and bullying on grounds of
                         race, gender, religious or political beliefs, disability,
                         age, marital status, sexual orientation, colour,
                         nationality, racial and ethnic origin. I do not expect
                         people to live or work in conditions where
                         discrimination, harassment or bullying takes place”.

           3.1.4   In the same document the Respondent was also required to
                   sign “I undertake to treat everyone with dignity and respect,
                   not to behave offensively in word or deed and to carry out
                   my duties with integrity and to the highest professional
                   standards”. However, before signing, the Respondent added
                   the word “deliberately” to the above sentence so that it read,
                   “not to deliberately behave offensively”. The declaration that
                   the Respondent signed included the following: “I support and
                   endorse the Lincolnshire Force Fairness and Equality Policy”.

           3.1.5   On 15 May 2002 the Lincolnshire Echo published an article by
                   Peter Hitchens, first published in the Mail on Sunday, which
                   argued that the imposition on Fire and Rescue Services of a
                   quota of women fire-fighters was potentially dangerous as
                   some women fire-fighters would be physically less capable of
                   rescuing people from blazing buildings. Alongside the article
                   was one featuring a woman fire-fighter employed by
                   Lincolnshire Fire and Rescue Service. She challenged Peter
                   Hitchens‟ views and pointed to the stringent physical entry
                   requirements for recruits to the service, both male and
                   female.

           3.1.6   On 18 May 2002 the Lincolnshire Echo published a letter from
                   Mr P M Heard under the headline “Save us from bigotry over
                   women fire-fighters”. Mr Heard stated how angered he had
                   been on reading Peter Hitchens‟ article.

           3.1.7   In response to Mr Heard‟s letter, the Respondent wrote to the
                   Lincolnshire Echo. The newspaper published his letter on 23
                   May 2002 (A copy of this letter is set out at Appendix 2 of the
                   Appendix to Listing Direction).

           3.1.8   The letter made no reference           to   the   Respondent‟s
                   membership of the Police Authority.

4   Whether the Material Facts disclose a failure to comply with the
    Code of Conduct.

           4.1     The Respondent‟s submissions

           4.1.1   He did not see the original article in the Lincolnshire Echo by
                   Peter Hitchens and the first he knew about the article was
                   the letter from his friend Peter Heard published in the paper.
                   He said that he thought he would write a light-hearted reply
                   to his friend‟s letter based on evidence he had seen and what
                   he considered to be common sense.

           4.1.2   Prior to his retirement, he had been involved in recruiting for
                   the Royal Navy, Royal Marines and the WRNS. Since joining
                   the Police Authority, he had in the past advised on the
                   recruitment of police officers and special constables. He said
                   that, in his view, if a woman could do a job and if it was one
                   that she was physically able to do then she should not be
                   barred from any job simply because she was a woman.

           4.1.3   He said that he did not think his reference to “delicate
                   Daphne” would be offensive to others and he certainly did
                   not write it in order to cause offence. He said that the
                   phrasing was intended to be light hearted and the phrase
                   was used as an attempt to describe the opposite of
                   Desperate Dan, a very large muscular cartoon character who
                   featured in the pages of the comic Beano.

           4.1.4   He said that he had a moral and practical objection to
                   sending a woman police officer into a situation such as a
                   brawl inside or outside a pub. He said that if the choice were
                   between sending in a woman police officer of small stature or
                   a large male police officer of rugby-player‟s build, he would
                   find it morally repugnant to send the woman in instead of the
                   man to quell the brawl. The respondent said he would have
                   difficulty in suggesting that any woman officer, even one of
                   large build, be sent to such an incident because the woman
                   officer could, for example, be in the early stages of
        pregnancy. He said that, in addition, people engaged in a
        drunken brawl might try to use the woman police officer as a
        target.

4.1.5   He said that his attitude towards showing respect to women
        and protecting them from such situations stemmed from his
        background and experience. In his view, female police
        officers were just as capable as male police officers in
        fulfilling the range of tasks, which they were required to do.
        He said that an incident of a violent nature, such as a brawl,
        was probably the one occasion when he felt that a female
        police officer would not be an appropriate person to be sent
        to deal with that incident. He said that he believed that a
        male police officer would have more authority than a female
        police officer in that situation. The Respondent said that he
        would regard using a female police officer in such a situation
        as a bad use of resources.

4.1.6   He said that, at the end of his letter, he quoted a light-
        hearted story of an incident in Norfolk, Virginia.     The
        Respondent said that the United States Navy had single sex
        teams rather than mixed teams and he had given an example
        of one tugboat crew made up entirely of women which was
        every bit as good as the male tug crews. However, he said
        that was because they were strong, heavily built women who
        were able to perform the task necessary for the job.

4.1.7   He said that, in writing his letter, which he intended to be
        light hearted, he had no intention at all to offend people. He
        said that he did not imagine that the letter to the press would
        do so. He said that he intended that it be read in the spirit in
        which it had been sent.

4.1.8   He said that he accepts with hindsight that the letter to the
        press appears to have been offensive to some women but he
        did not believe that it was offensive to all women. The
        respondent said that several women of his acquaintance had
        said that they agree with his comments in his letter to the
        press and they did not find them offensive. He said that he is
        aware of some serving women police officers in Lincolnshire
        who share that view but they were not at liberty to express it
        because they were serving police officers.

4.1.9   He said that he was not seeking to undermine or undervalue
        the women who work for the Police Force as he holds them in
        the very highest regard. Rather he was seeking to protect
        their role by suggesting that they should not be put in
        situations where they were in specific danger.            The
        Respondent said he offered no view on the deployment of
        women police officers; he said all his letter did was to state
        the obvious reaction to a particular situation.

4.1.10 He said that he signed his letter to the Lincolnshire Echo “EC
       Coleman” not “EC Coleman of the Lincolnshire Police
       Authority”. He said that he recognised that to have done so
        would not have been acceptable because he was not writing
        in his capacity as a member of the Police Authority.

4.1.11 He said that he did not think in terms of following the official
       position of the Police Authority because he was not writing on
       behalf of the Police Authority and he did not seek advice from
       any other member of the Authority or Force before writing his
       letter. The Respondent says that with hindsight he should
       have thought of the likely reaction of the Chief Constable
       when he read such a letter but he did not do so. He says
       that perhaps he was naïve but he did not think of that at the
       time he wrote the letter.

4.1.12 He said that he did not consider the Police Authority‟s Policy
       on Fairness and Equality, and its advice that staff of the
       Force and members of the Authority should think before they
       act, before sending his letter to the press.   He said that in
       his mind his letter was completely divorced from his
       membership of the Police Authority and its policy. He did not
       consider the letter to be one about police issues in general,
       but rather a personal comment of his own on the sort of
       officer he would prefer to see coming to his rescue if he were
       in danger of violent attack.

4.1.13 He said he did not consciously ask himself whether the views
       he was expressing in the letter reflected the Fairness and
       Equality policies of the Authority, as he had not been writing
       as a member of the Authority but writing in response to his
       friend‟s earlier letter to the press.

4.1.14 He said he took a pride in his membership of the Police
       Authority and in the Lincolnshire Police Force and had its
       interests at heart.

4.2     The ESO‟s submissions

4.2.1   There was no dispute as to the facts in this case. However, it
        raised strong and very different views, which the ESO had
        deliberately set out in detail in the referral. The evidence the
        ESO had recorded shows that the letter had caused serious
        concern both within the Lincolnshire Police Force and the
        Police Authority.

4.2.2   The allegations against the Respondent were that he had
        breached paragraph 2(b) of the Police Authority‟s Code of
        Conduct by failing to treat others with respect and paragraph
        4 of the Code by bringing his office or authority into
        disrepute.

4.2.3   Paragraph 2(b) was only relevant if the Respondent were
        acting in his official capacity as a member of the Police
        Authority. In writing his letter to the Lincolnshire Echo, the
        ESO did not believe that he was. He did not sign the letter as
        a member of the Police Authority and, whilst the letter in part
        concerned police issues, he had given no indication that he
        was a member of the Police Authority or indeed involved in
             any way with the police. To all intents and purposes he had
             written the letter as a member of the public. It was outside
             the ESO‟s jurisdiction to consider whether the Respondent,
             acting in a private capacity, had failed to treat others with
             respect.

 4.2.4       Consequently, the ESO found, pursuant to section 59(4)(a) of
             the Local Government Act 2000, that there was no evidence
             that the Respondent had breached paragraph 2(b) of the
             Code of Conduct

 4.2.5       The ESO then needed to decide if the Respondent had
             breached paragraph 4 of the Code of Conduct and brought
             his office or authority into disrepute.

 4.2.6       The following points supported the Respondent‟s position:-

              There was no evidence that the letter had had any impact
               on the force as a whole; only senior officers of the Force
               were aware at the time of the letter‟s publication that the
               author was a member of the Police Authority.
              The general public were not aware that the letter‟s author
               was a member of the Authority.
              The Respondent had said his motivation in writing the
               letter was to provide a light-hearted response to a friend‟s
               letter.
              There was no evidence that the Respondent‟s letter had
               adversely affected the recruitment of women to the Police
               Force.
              In his letter, Mr Coleman included the following:-
               „None of this reflects upon the courage or enterprise of
               women fire-fighters or police officers, but upon their
               physical ability to do certain jobs. It is this difference that
               prevents all jobs being done by all people – a principle that
               applies equally to men as to women.‟ *
                                                          *ESO‟s emphasis

 4.2.7       However, notwithstanding the above, the ESO considered the
             Respondent‟s action in writing his letter for publication had
             brought both his office and authority into disrepute.

 4.2.8       In reaching this decision, the ESO had, in particular, taken
             into account the following

(a) In recent years society, and particularly the police, had recognised
    the need to be more sensitive to issues surrounding equality.

(b) The Respondent was aware that two successful Employment
    Tribunal cases had been brought against Lincolnshire Police Force
    by former women police officers on the ground of unlawful
    discrimination.

(c) The Chairman of the Police Authority had pointed to the difficulties
    Lincolnshire Police had had in recruiting and retaining women
    police officers. As a member of the Police Authority, the
    Respondent should have been aware that any public comments,
   which might reflect negatively on recruitment levels, would be
   contentious.

(d) The Respondent had signed a declaration supporting the Force‟s
    Equality and Fairness Policy but he did not appear to consider
    whether his comments were appropriate before writing his letter.
    The ESO did not consider that his insertion of the word „deliberate‟
    in his declaration altered his view that he did not give proper
    consideration to a policy, which included the words „Think before
    you act‟.

(e) The Respondent must have, or should have, been aware that the
    views he expressed in his letter on the deployment of women
    police officers were at variance with the policies of the police in
    general and the Authority of which he was a member.

(f) The Respondent must have, or should have, been aware that he
    could not publish such a letter without it becoming known to other
    members of the Authority, and senior managers of the Police
    Force, including the Chief Constable, that he was the author of the
    letter and that its contents would cause an adverse reaction.

(g) The ESO accepted the Clerk to the Police Authority‟s evidence that
    anything, which damaged the reputation of the Police Authority in
    the eyes of the senior management of the Force, including the
    Chief Constable, was damaging to the work of the Authority.

(h) In the ESO‟s view, the Respondent must have, or should have,
    been aware that some of his words and phrases would be clearly
    unacceptable to some women, and indeed some men, serving in
    the Lincolnshire Police Force and within the Police Authority. His
    reference to „delicate Daphne‟ and to „tattooed women with big
    muscles and moustaches‟ and his unfounded assertion that „the
    only area in which women have been truly successful in a man‟s
    world is in the American police‟ in the ESO‟s view bound to offend
    some individuals.

(i) According to the Chief Constable it would discriminate against
    women and therefore be illegal for him to take into account the
    gender of an officer in deciding whom to deploy in a given
    situation, as advocated by the Respondent in his letter.

(j) If the Respondent felt strongly about the issues set out in his
    letter he could have sought to debate them at a meeting of the
    Police Authority. He did not do so.

 4.3     Case tribunal decision

 4.3.1   The Case Tribunal agreed with the view of the ESO that there
         was no evidence to support a finding that there had been a
         breach of paragraph 2(b) of the Police Authority‟s Code of
         Conduct. Not only was the Respondent not acting as a
         member of the Police Authority, but his published remarks
         were not aimed at any particular individual or individuals or at
         any group of individuals who could reasonably be considered
         to have been treated without respect.
4.3.2   On the question of the alleged breach of paragraph 4 of the
        Code of Conduct, the Case Tribunal first considered whether
        or not the publication of the Respondent‟s letter in the press
        could amount to a breach of that paragraph, which reads as
        follows, „A member must not in his/her official capacity, or
        any other circumstance, conduct himself/herself in a manner
        which could reasonably be regarded as bringing his/her office
        or Authority into disrepute.‟

4.3.3   The Case Tribunal did not consider that the Respondent was
        acing in his official capacity (which was accepted by the ESO
        in relation to paragraph 2(b) of the Code). They decided that
        the general words „or any other circumstance‟ were to be
        construed ejusdem generis with the specific words „in his/her
        official capacity‟ i.e. the circumstances must be sufficiently
        proximate to, or reasonably be capable of being linked to or
        having a bearing on, the official capacity. In this particular
        case, the letter-giving rise to the complaint contained
        reference to the deployment of police officers. The Case
        Tribunal found that this was sufficiently proximate to the
        Respondent‟s official capacity to give rise to the possibility to
        a breach of paragraph 4.

4.3.4   The Case Tribunal then went on to consider whether or not
        there had been an actual breach. They did this by considering
        the Respondent‟s letter in two ways. First, the views
        expressed in the letter, and, secondly, the language in which
        those views were expressed.

4.3.5   In relation to the views themselves, the Case tribunal found
        that the respondent was entitled hold such views. The
        holding of views, which were not shared by others, did not
        make them unreasonable. The ESO made the point that the
        Respondent could have put forward his views for debate at a
        meeting of the Police Authority. The Case Tribunal shared
        that opinion, but it must apply equally to those who wish to
        oppose the Respondent‟s view.

4.3.6   In relation to the language in which the views were
        expressed, the Case Tribunal found that this breached the
        Police Authority‟s Fairness and Equality Policy. The Case
        Tribunal did not, however, conclude that this in itself was a
        breach of paragraph 4 of the Code of Conduct. There was no
        evidence to support a finding that the Respondent‟s office or
        the Police Authority had been brought in to disrepute. The
        evidence of the Chief Constable was that the letter had not
        caused any damage and it had had no effect at all. The
        evidence from the Chairman and the Clerk to the Police
        Authority was subjective and took into account matters,
        which predated the adoption of the Code of Conduct and
        were outside the Case Tribunal‟s remit. None of this evidence
        helped in deciding the matter on the objective test, which the
        Case Tribunal was, bound to apply.
                4.3.7   The Case Tribunal found that, based on the evidence, a
                        reasonable person, aware of all the material factors and
                        ignoring all immaterial factors, would not conclude that the
                        Respondent had brought himself or the Police Authority into
                        disrepute.

                4.3.8   Having regard to all the evidence in the round, the Case
                        Tribunal decided that the Respondent had not breached
                        paragraph 4 of the Police Authority‟s Code of Conduct. He
                        had not failed to comply with the Code of Conduct.



Patrick J Mulvenna
Chairman of the Case Tribunal


28 March 2003

								
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