PC Samuel Smith

NOTICE OF OUTCOME OF PUBLIC HEARING

Legally Qualified Chair: James Rickard
Dates of Hearing: 23 Jan 2023
Officer: PC 17764 Samuel Smith

IN THE MATTER OF
POLICE (CONDUCT) REGULATIONS 2020
BETWEEN:
The Chief Constable of Devon and Cornwall Police.
Appropriate authority
And
Respondent
PC17764 Samuel Smith

DECISIONS OF THE PANEL

APPROACH:

1. We are a panel considering allegations of gross misconduct against the above officer.

2. We have considered all of the evidence. All panel members have read the bundle provided to us before the hearing. We take into account the documents. We do not set out every point considered, as that would merely be an unnecessary total revisit of all the evidence that we have received. We have also considered all the submissions made on behalf of each party.

3. In approaching our tasks we have borne in mind that:
3.1. We do not have to decide every matter of dispute, only those which assist us as to whether these allegations are proved.
3.2. We can draw inferences from the evidence submitted to us, meaning we can reach common sense conclusions from the evidence, but we have guarded against falling into speculation when reaching those conclusions.

PURPOSE OF POLICE MISCONDUCT PROCEEDINGS

4. The applicable regulations are the Police (Conduct) Regulations 2020 (“PCR”). We are reminded by the AA of the caselaw which we will adopt at Para.7 and 8 of the opening note.

5.1 The approach of the Panel as set out in the PCR is:
a) To ascertain the facts, whether admitted or found proven.
b) To determine whether, on the basis of those facts, the former officer has breached the SPB alleged.
c) To decide whether any such breaches constitute Misconduct, Gross Misconduct or neither.
d) Dependent on the findings under b) and c), to decide on the Outcome.

BURDEN AND STANDARD OF PROOF

6.1 The burden of proof is on the A.A.

6.2 The standard of proof is at S.9 Home Office Guidelines p193.

6.3 The allegations are as set out in the Regulation 30 Notices contained within the bundle. It is set out for us in the opening note. However, it is set out below.

Allegation 1

On 22nd April 2021 in Bideford, North Devon, PC Smith used excessive, inappropriate force by punching the male who was intoxicated.
This is a breach of the Police Officer’s Standards of Professional Behaviour, namely:

Use of Force
Police officers only use force as part of their role and responsibilities and to the extent that it is necessary, proportionate, and reasonable in all the circumstances.

Authority, Respect and Courtesy
Police officers act with self-control and tolerance, treating members of the public and colleagues with respect and courtesy. Police officers do not abuse their powers or authority and respect the rights of all individuals.

Discreditable Conduct
Police officers behave in a manner which does not discredit the police service or undermine public confidence in it, whether on or off duty.

Allegation 2

PC Smith failed to take positive action with the male causing the situation to escalate unnecessarily where the circumstances suggest that had he been arrested, further force may not have been necessary. This is a breach of the Police Officer’s Standards of Professional Behaviour, namely:

Duties and Responsibilities
Police officers are diligent in the exercise of their duties and responsibilities.

Discreditable Conduct
Police officers behave in a manner which does not discredit the police service or undermine public confidence in it, whether on or off duty.

Allegation 3

The statement of PC Smith dated 22nd April 2021 referring to the incident involving the male differs to the video evidence captured on Body Worn Video at the time of the incident. This is a breach of the Police Officer’s Standards of Professional Behaviour, namely:

Honesty and Integrity
Police officers are honest, act with integrity and do not compromise or abuse their position.

Duties and Responsibilities
Police officers are diligent in the exercise of their duties and responsibilities.

Allegation 4

PC Smith failed to activate his personal issue Body Worn Video camera immediately upon arrival to the incident and before initiating any engagement with the male. This is a breach of the Police Officer’s Standards of Professional Behaviour, namely:

Orders and Instructions
Police officers only give and carry out lawful orders and instructions.
Police officers abide by Police Regulations, force policies and lawful orders.

Duties and Responsibilities
Police officers are diligent in the exercise of their duties and responsibilities.

Allegation 5

Following the incident, having used force on and caused injuries to the male, PC Smith failed to submit a Use of Force form which contravenes recording requirements for this type of incident. This is a breach of the Police Officer’s Standards of Professional Behaviour, namely:

Orders and Instructions
Police officers only give and carry out lawful orders and instructions.
Police officers abide by Police Regulations, force policies and lawful orders.

Duties and Responsibilities
Police officers are diligent in the exercise of their duties and responsibilities.

Stage 1. The Facts.

7.1 The burden of proving these allegations rests on the Appropriate Authority. The standard by which they are required to prove the allegations is the balance of probabilities (the appropriate standard). We have considered the Home Office Guidance 2018. The panel has considered the allegations carefully. We have first ascertained the facts as we find them considering the burden and standard of proof. Then we have considered those facts as against the standards required under the Regulations.

THE EVIDENCE:

8.1 We then turn to the evidence heard by the panel. The Panel heard live evidence from:-
PC Rolfe
Mr Pearson as an Expert witness
Mr Carvello as an Expert witness.
We have been told the facts alleged and they are set out in the bundle.
We have also considered the responses by the officer as he has provided in the Reg 17 response.
We have heard live evidence from the officer PC Smith.
We are helped by the Summary provided in the opening note. Paragraph 8 to Paragraph 30. The panel adopts this outline.
We will deal with each allegation in turn.

Allegation 1

It is inevitable that there is some evidential overlap between the allegations 1 and 2 and to an extent 3 However what is clear that the officers were double crewed and were deployed to deal with a situation at Bideford Quay. The was the first encounter with Mr A and it appears that he was compliant leaving that
area when directed to do so despite being intoxicated. This was at approximately 1.10 a.m. There was then a further call from members of the public saying that a male was trying to gain entry to an address and had caused damage to some guttering. The incident was graded as an immediate domestic incident, and it was confirmed by the officers that they illuminated the blue lights. This was at 2.22a.m. Upon arrival it was eventually ascertained that Mr A was there he was more heavily intoxicated than earlier in their encounter.
It is not in dispute that PC Smith did not activate his body camera when he alighted from the vehicle. What is clear is that the officers examined the door and there appeared to be damage to it as well as some broken guttering on the ground. It seems that Mr A was determined to get into the premises his partner and children being within and who had told the officers that he was not welcome that night. The officers continued to refuse him entry. PC Rolf was at the door and PC Smith preventing Mr A’s entry. PC Rolfs Body worn Camera was operating PC Smiths was not. What then happened was that A it appears determined to gain entry grabbed at PC Smith body armour it was described around the neck area. Quite how many times is unclear, but Mr A was not responding to requests to go away. It was then that PC Smith struck Mr A in the face by using a punch we suspect on the nose. It was a single punch. Mr A fell to the ground. He got to his feet and complained that he had been hit on the nose at which PC Smith said to him that it was a “pre-emptive Strike” this was to stop him grabbing his Body Armour. No arrest was made nor any attempt to restrain Mr A at this point. Mr A was still determined to gain entry to the premises and despite repeated requests for him to leave he eventually crawled towards PC Rolfe and put his hands around the legs and feet of PC Rolfe who it appears remained calm and oblivious of the potential danger to himself. PC Smith said that he perceived the potential danger to his colleague and pulled MR A from PC Rolfe in that movement Mr A and PC Smith fell to the ground and again we are told was grabbing at PC Smiths Neck area. It was then that PC Smith struck Mr A about 3 times maybe more and told MR A repeatedly to get off him and also shouted to PC Rolfe that Mr A was biting PC Smith. PC Smith requested PC Rolfe to use PAVA spray on Mr A something that PC Rolfe was slow to do but did eventually. It was at this point that an arrest was made.
Pausing there in respect of the facts we can then consider the “expert “evidence that we heard and the matters that we as a panel are asked to consider.

Allegation 1.

Use of force. Both experts and the useful documents that have been provided say that a punch is permissible but has to be justified by the officer using the punch. Mr Pearson explained there had been alternatives available to PC Smith and that an arrest could have been made much sooner which would have prevented the need to punch. Mr Carvello was of a different view to Mr Pearson and both agree that it was a dynamic situation that had to be dealt with. However what we could not determine to the appropriate standard was whether or not the punch at that point described as the pre-emptive strike was excessive in the circumstances that were presented to the officer at that moment. Neither “expert” would say it was impermissible per se, however Mr Pearson suggested that there were other ways of dealing with the situation at that moment. PC Smith did not consider that the blow was dealt with particular force and we had no medical evidence of injury that could be attributed to that blow rather than any other blow suffered by Mr A and his altercation with another male about which we heard from Mr A in his PACE interview. Mr Pearson suggested that at this point the male should have been arrested. However we noted the evidence that the officers had a belief that he would leave the area. Whether or not with hindsight he should have been arrested at that point the decision was made the view by PC Smith was that the male would still disperse and go home.
PC Smith demonstrated to the panel a thought process that was clear, and not based on a need to use gratuitous violence on Mr A. We as a panel did not have medical evidence or evidence from Mr A that suggested excessive force. We were as a panel from the evidence presented having to speculate as to the different things that should have been done to control and restrain Mr A. Every use of force carries with it some risk it seems, and a “Punch” is not forbidden but like every application of force must be justified by the officer.
We could not as a panel find that the AA had discharged their burden of proof to the appropriate standard and there for the panel found that both allegations were not proved.

Allegation 2

This allegation relates to events after the first punch. Mr A had it seems wrapped himself around the legs or feet of PC Rolfe. PC Smiths body worn camera was on at this time and we see PC Rolfe calmly telling Mr A to “get of my feet”. PC Rolfe from his evidence and from the video did not seem to  perceive the same risks that PC Smith did by Mr A’s actions. PC Smith it seems did and acted by pulling Mr A off PC Smith and then the both went to the ground. PC Smith was not in control of the situation and PC Rolfe who was inexperienced appeared frozen and did not know what to do. PC smith was left on his own and had lost control of Mr A. In the struggle to get to his feet we are told by PC Smith again MR A had a grip on his body armour and started biting PC Smith. Again PC Smith punched MR A. and we see this on the video. He calls for assistance from PC Rolfe and demands that PC Rolfe uses his Pava spray which eventually he does.
After a struggle control is regained and Mr A is arrested and restrained. Assistance is requested and during the wait Mr A is made as comfortable as possible the officers even gather cardboard packing from a skip to place under him.
The expert evidence differs and Mr Pearson puts forward alternative methods that could be applied than the punches and the Pava spray. Mr Carvello gave evidence that the actions in his opinion could be justified and depended on the circumstances that the officers found themselves in. Again we had no medical evidence that suggested severe violence apart from a statement from the custody paramedic and a body map. When in custody he was considered fit to be detained.
All that the panel could gather from the evidence was that the situation could have been different if PC Rolfe had acted more quickly and arrested could have been made sooner and did not provide us with any evidence that would persuade us that this was a situation that could have gone better if PC Smith had been crewed with a more experienced officer. PC Smith was effectively on his own in dealing with a drunk unpredictable man, Mr A.
The panel also noted that Mr A appeared in court and was charged with assaulting an emergency worker. It appears that he pleaded guilty and was given a suspended prison sentence. If the court followed the sentencing guidelines and we have no reason to believe that the did not they would have had to conclude that the offence was “so serious” that only a custodial sentence could be imposed. This reasonably suggests that the level of violence used by Mr A was accepted by him at court.
We could not in terms of allegation 2 come to the conclusion that the AA had proved to the appropriate standard that the officer had breached the professional standards as alleged.

Allegation 3

This relates to what the AA suggest are discrepancies between the S.9 statement that was prepared and the body worn footage.
We were told by PC Smith that this was a statement that was written on his PDA whilst in the hospital waiting with Mr A who was having seizures although whether Mr A’s seizures were genuine or no were, we were told by PC Smith, questionable. Certainly, despite those he was considered fit to discharge and be detained in custody.
It was certainly not the best statement that the panel have seen and was cursory but in terms of salient facts it contained all of the information including the controversial punches which were matters that if the officer wished to conceal anything we would have thought would not be there. They were and although the order of events were not right that was explained by the officer.
The panel also learned that the body worn camera is not the easiest information to access due to the cloud based system used.
The officers view was to write the statement as quickly as he could after the event and he felt that he was trained to rely on his memory rather than any other external information. We see the sense in that and having heard from the officer the panel were of the view that it was not the case that any differences were material nor were they based on the officers desire to lie, in fact quite the opposite. He was intent on writing the statement that contained information about the use of force and why it was applied in that way. The poor nature of the statement demonstrated how unvarnished it was and how truthful the officer was in his perception of events at the time of writing the statement.
The panel did not consider that the AA had proved this matter to the appropriate standard.
The LQC invited submissions from the Officer that the AA had not proved their case to the appropriate standard in respect of allegations 1.2.and 3. The panel are obliged to do this at and were reminded of this by the opening note of the AA and is referred to as Stage 1.
Those submissions were made and the panel did not consider that the AA had proved those allegations.
Therefore Allegations 1,2,and 3 were dismissed.
We then went on to consider allegations 4 and 5. (Stage 2)
We did find that the facts alleged were proved. It was accepted by the officer that the officer had not operated his body worn video camera upon arrival to the incident and before initiating any engagement with the male.
It was also the case that the officer failed to complete a use of force form in contravention of the recording requirements for this type of incident. Again a matter that the officer accepted when giving evidence. PC Rolfe competed his use of force form. The reg 31 was unhelpful in this regard in respect of both allegations but fortunately the officer clarified the position.

Allegation 4.

It is clear from the documentation provided in the bundle that the camera is to be activated when attending an incident. The guidance is a bit confusing as to when exactly that should be and probably relies on the officers, common sense or memory to turn the device on. It is for the officer to determine when and whether to activate the Camera.
There is no doubt that on any interpretation of the guidance the officer should have turned on his camera.
PC Rolfe seemed to do so.
The expert evidence was that it is something that is taught. We are also told there is limited retraining throughout the year. We were also told by Mr Carvello whose experience is beyond that of merely this police force that officers “simply forget” to turn on the device.
Firstly was the failure to turn the camera on deliberate?
The AA did not specifically suggest that the failure to switch on the camera was deliberate, however it was right for it to be considered.
There was no evidence that it was. It did not appear uncommon for officers to forget to switch the camera on and given the statement mentioned above, the officer did not conceal anything or attempt to conceal anything by this omission.
Was it a breach of the guidance? It was, but there appears at the time and possibly currently, a training gap as to when the device should be turned on and switched off. The officer himself conceded with hindsight the mistake and the advice he gives to others. We did not feel that the officer could properly be held responsible for the breach where there is an element of personal discretion, and the omission was not out of deviousness to conceal wrongdoing particularly when there was other evidence that he had provided which described his actions and PC Rolfes Body worn video as well as his own later in the incident which confirmed his actions at the time.
We believe that this guidance has been clarified. We as a panel hope that it is and that all officers are advised that a properly operated body camera avoids the implications that have been made in this case.
We as a panel found that the AA had proved to the appropriate standard that the officer had breached the standards of professional behaviour alleged. However, moving to Stage 3 we as a panel decided that the breaches did not amount to misconduct as the amended allegation put by the AA suggested.

Allegation 5.

This related to the use of force report. A use of force report was not completed by the officer. It was not completed by PC Rolfe until after he returned from Sick leave. It should have been. That it is an important document that should be completed is clear from the guidance. However, it appears from Mr Carvello, and both officers that its importance has been lost not just on these officers but others as well.
This was a surprise to the panel. That the officer thought that it was sufficient just to include the use of force in his statement and that the use of force report is merely a tick box form of no value is of concern. That it is not imparted that the form and the data it contains is vital in ascertaining that something may be going wrong not only in the officer’s self-appraisal of the use of force but whether it is happening often and whether a particular area is becoming more trouble some and whether a team of officers are having to use more force than one would ordinarily expect.
It was clear that despite training, there was a training need for these officers and others (if what we were told by Mr Carvello was correct), that the form provides data that if properly applied can save officers and the public from harm.
We as a panel found that the AA had proved to the appropriate standard that the officer had breached the standards of professional behaviour alleged. (Stage 2) However, moving to Stage 3 we as a panel decided that the breaches did not amount to misconduct as the amended allegation put by the AA suggested.

James Rickard
LEGALLY QUALIFIED CHAIR
Date: 2/2/2023