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SPS Humphrey

NOTICE OF OUTCOME OF PUBLIC HEARING        

Legally Qualified Chair: Kate Anderson

Date of Hearing: 24th July 2023

Officer: Former SPS Humphrey

IN THE MATTER OF A MISCONDUCT HEARING

POLICE (CONDUCT) REGULATIONS 2020

BETWEEN:

THE APPROPRIATE AUTHORITY

(Chief Constable Devon and Cornwall Police)

-v-

FORMER SPECIAL CONSTABULARY SEARGEANT BEN HUMPHREY

DECISION OF PANEL

1. Breach of standards of professional behaviour alleged against former Officer SPS Humphrey were as follows:

  • Allegation 1:  You accessed force systems namely STORM[1] via your PDA[2] between 29/04/2021 and 23/03/2022 and viewed up to 189 STORM logs on days whilst off duty for a non-policing purpose in contravention of the Force Data Protection Policy.

 

  • Allegation 2: You viewed whilst off duty Log 151 on the 13/05/21 and Log 408 on the 08/11/2021 which relates to incidents called in by your former partner Ms. S. You were off duty on both occasions and this was in contravention of the Force Data Protection Policy.

 

  • Allegation 3: You accessed between 29/04/2021 and 23/03/2022 whilst on duty force systems STORM and UNIFI[3] via your PDA and/or Force computer systems for a non-policing purpose in contravention of the Force Data Protection Policy.

 

  • Allegation 4: You conducted 4 separate PNC[4] checks on vehicles whilst off duty for which there was no policing purpose.

 

  • Allegation 5: You had a County Court judgment entered against you which had not been disclosed to Devon and Cornwall Police in the sum of £1507 on the 19/01/2018.

2. It was alleged that individually and collectively, the allegations amount to gross misconduct i.e. conduct that is so serious that, if proven, dismissal would be justified.

Preliminary Matters

The Absence of the Officer

3. The Panel were satisfied that former SPS Humphrey (‘the former Officer’) was aware of the proceedings against him and noted that he had indicated in communications with the Appropriate Authority that he would not be attending the hearing.  The Panel were satisfied that the former Officer had been made aware of the date and time of the hearing and considered that it was in both the interests of justice and in the public interest for this hearing to proceed and ruled in accordance with Regulation 37(3)(b) that the hearing could proceed and conclude in the absence of the Officer.

4. Furthermore, the Panel were satisfied that it was just to proceed without any legal representation on behalf of the Officer.  The Panel noted that the Appropriate Authority was represented by Mr Apthorp who would bring matters in favour of the former Officer to the attention of the Panel during the proceedings. 

5. The Panel considered the whole contents of the bundle in advance of the hearing. We had in mind that the former Officer should not be prejudiced by his non- attendance at the hearing.

Resignation of the Officer

6. The former Officer has resigned his position within the Special Constabulary of Devon and Cornwall Police. Nonetheless the panel approached the matter as if he were still a serving member of the police. We reminded ourselves that his position is not to be prejudiced as a result of his resignation.

7. The Regulations apply equally to members of the special constabulary as they do to any salaried police officer.

Anonymity

8. The former Officer had made representations prior to the hearing asking for the hearing to be conducted in private and for his identity to be anonymised. This had been considered by the Legally Qualified Chair in advance of the hearing. There is a presumption that misconduct hearings will be heard in public and the Home Office Guidance 2020 (at para 11.7) sets out “This is in keeping with a general principle that discipline proceedings should be as open, transparent and fair as possible …”.  There is a wider public interest in the transparency of the police misconduct proceedings and there is a need to maintain public confidence in the proceedings. A direction was made that there should not be a departure from the need for a public hearing in this case. The public notice named the former Officer and the Panel directed that the proceedings should be held in public with the outcome to be published.

9. Counsel for the Appropriate Authority applied to refer to the Officer’s former partner as Ms. S, effectively granting her anonymity. The panel found that there was no prejudice to the former Officer, who knows the name of his former partner. Any reporting of this case referring to his former partner as Ms. S will not prevent a full understanding of the case by anyone reading such reports.  In the view of the panel, Ms. S has a right to privacy, and we direct that there shall be no reporting of this case that identifies her. In addition, where members of the public’s details were accessed either on STORM, UNIFI or the PNC, these were also anonymised for the same reason.

APPROACH

10. The Panel approached its task by firstly deciding the facts, secondly determining if any professional standards have been breached and if so, deciding at what level we assess those breaches.

We have applied the following principles:

  1. The burden of proving any allegation rests with the Appropriate Authority. The standard by which they are required to prove any allegation is on the balance of probabilities (the appropriate standard). It is not for the officer to prove anything, let alone his innocence from misconduct.
  2. The panel do not have to decide every matter of dispute, only those which assist us with our decision as to whether, or not a particular allegation is proved.
  3. We can draw inferences from the evidence adduced to us, meaning we can reach common sense conclusions, but we must not speculate. Any conclusions must be reached fairly.
  4. There is evidence of positive good character which we have taken into account in the following ways:
    • Weighing it in the Officer’s favour when considering the credibility of any accounts he has provided.
    • It means he is less likely to misconduct himself in the way alleged.

That balancing exercise in this case must also include the fact that the former Officer has made some broad admissions in relation to some of the allegations.

EVIDENCE AND SUBMISSIONS ON BEHALF OF THE APPROPRIATE AUTHORITY

11. The Appropriate Authority presented evidence of two audits undertaken on the former Officer’s use of the STORM, UNIFI and PNC policing systems following concern about an application to the police force by his former partner Ms. S.

12. The first audit, known as Lawful Business Monitoring (LBM), was carried out by DC Mark Summerfield.  This covered the period 01.02.21 to 18.01.22. During this period SPS Humphrey accessed 157 separate STORM logs on 78 days whilst off duty. These included two logs concerning his former partner Ms. S as well as a log reporting an issue close to SPS Humphrey’s home address. Some of these STORM logs were viewed multiple times and involved high profile Force investigations to which SPS Humphrey had no professional connection.

13. The second LBM covered the period from 19.01.22 to the date of the service of the Regulation 17 Notice, namely 23.03.22. This LBM revealed that SPS Humphrey had viewed a further 32 STORM logs whilst off duty, bringing the total number to 189. Included in these logs were:

  • Log 190 dated 29/04/2021relating to an unconscious member of the public.
  • Log 348 multiple times on the 19/09/2021 relating to men fighting near the former Officer’s home.
  • Log 879 multiple times on the 22 - 23/11/2012 relating to a high-profile missing person/murder inquiry.
  • Log 665, an incident involving a sudden death on the 20 – 21/12/2021 28 times.

14. DC Summerfield produced a report (p.82 of the bundle).  SLF01 was a record of STORM access by the former Officer between 19.01.22 and 23.03.2022. SLF03 was a record of his access to UNIFI for the same period. This was cross referenced with SLF05, his duty sheet for these dates. Analysis across the whole period showed SPS Humphrey had viewed a total of 147 logs whilst he was on duty. He was attached to, or involved in, only 12 of these logs. The Investigating Officer could find no connection to, or reason to view, the remaining 135 logs.

15. In relation to the UNIFI system, SPS Humphrey was always on duty when this was accessed. However, analysis revealed access to logs to which SPS Humphrey had no connection, including viewing the UNIFI record of a person involved in a fatal RTC and the UNIFI record of an individual who is now a member of Police Staff.

16. SPS Humphrey’s PNC access was reviewed, and it was noted he had made four PNC Vehicle Registration Mark checks whilst off duty on his PDA. One of these vehicles was registered at an address close to where Ms. S lived.

17. The Appropriate Authority exhibited evidence of an Experian credit check conducted which revealed SPS Humphrey had a County Court Judgment made against him in 2018 for a payment default.  This had not been disclosed to the Force.

18. The Devon & Cornwall police Data Protection policy was at pp.143 – 156 of the bundle. At paragraph 1.2.2 it states: ’This policy applies to individuals at all levels of both Forces including Police Officers, Police Staff, Special Constabulary, Police Community Support Officers (PCSO), temporary staff and 3rd parties (for example but not necessarily limited to partner agency staff, consultants, contractors and volunteers) who have authorised access to personal data which is held by either Force’.

19. Access and use of information is set out at 3.6.1 – 3.6.6. In particular, at 3.6.1:

‘All information held by either force relating to an identifiable person (personal data) is classified as OFFICIAL or OFFICIAL SENSITIVE according to Government Security Classification. Access and use of such information by Individuals described in 1.2.2 must only be in the course of their official duties or role. Use for any other purpose is prohibited and may result in criminal and disciplinary proceedings’.

20. The Training Supervisor had been asked about the training members of the Special Constabulary receive on the use of PDAs. She confirmed that they do not receive any specific training on using the PDA but they are required to complete data protection e-learning. SPS Humphrey’s training record showed he had completed this online course and passed the assessment with 75%.

21. The Appropriate Authority exhibited a screenshot of the Force Data Protection Act warning that appears when a member of the Force logs into their computer.  This requires the user to accept the terms of access, which include that information must only be accessed in order to fulfil their role.

THE OFFICER’S CASE

22. SPS Humphrey did not attend appointments which were made to progress the investigation. He indicted his intention to resign from the Special Constabulary by email on 17 May 2022 and said that he ‘did not deny any wrongdoing as I did access logs from my phone whilst off duty’.  During further correspondence with the Investigating Officer on 21 June 2022 he apologised, saying ‘I would like to say that I am truly sorry for accessing logs and anything I did wrong. Any information that I ever accessed was only ever seen by myself and was never shared with anyone.’

23. In relation to one of the logs accessed relating to a high-profile investigation, SPS Humphrey stated that he had accessed the information as although off duty he believed that he could be of some assistance in the search.

FINDINGS OF FACT

24. The Panel found the facts alleged at paragraphs 5 to 10 of the Regulation 30 Notice to be proved on the balance of probabilities. The panel was satisfied that Former Officer Humphrey:

  • Accessed the force system STORM, UNIFI and PNC logs as alleged.
  • That SPS Humphrey did not have a legitimate policing purpose for the accesses whilst both on and off duty. He was most likely viewing logs out of curiosity and/or personal interest. The number and variety of incidents over a long period of time, including high profile matters clearly not related to SPS Humphrey’s role were strong indicators that the accesses were not for policing purposes. There was no evidence that access was required for any professional capacity by the former Officer.
  • That SPS Humphrey accessed logs which related to incidents reported by his former partner Ms. S. He was off duty on both occasions. There was evidence that he subsequently attempted to use this information to her advantage as part of her application to the Special Constabulary.
  • His activity was contrary to the D&C Force Data Policy throughout, and in particular, para 3.6.1.
  • That he had been made the subject of a County Court judgment that ought to have been disclosed to Devon & Cornwall police.

25. Consequently, the Panel found all 5 allegations against SPS Humphrey proved.

BREACH OF PROFESSIONAL STANDARDS AND LEVEL OF MISCONDUCT

26. The Panel went on the consider if the facts found proved amounted to breaches of any standards of professional behaviour on behalf of SPS Humphrey.  The Panel found that the following standards were breached:

  • Duties and Responsibilities: Police officers are diligent in the exercise of their duties and responsibilities.
  • Confidentiality: Police officers treat information with respect and access or disclose it only in the proper course of police duties.
  • Discreditable conduct: you behaved in a manner, which would discredit the police service and undermine public confidence in the police by accessing personal data which related to members of the public without a police purpose.

27. The Panel then considered whether the breaches found amounted to Misconduct or Gross Misconduct.  Misconduct is defined in Regulation 2(1) of the 2020 Regulations as “a breach of the Standards of Professional Behaviour that is so serious as to justify disciplinary action”.  Gross Misconduct is defined in Regulation2(1) of the 2020 Regulations as “a breach of the Standards of Professional Behaviour that is so serious as to justify dismissal”.  At this stage the Panel had not heard any mitigation.

28. The panel found that SPS Humphrey did not have a legitimate policing purpose for accessing the information and his actions amounted to a significant and serious breach of confidentiality and trust between the public and the police. The accesses were numerous and occurred over a significant period of time. In relation to Allegation 2, there was some evidence that an attempt was made to use the information to the advantage of his former partner. Accessing information in this way was clearly contrary to Force policies and ought to have been obvious to SPS Humphrey.

29. Members of the public who need to report matters to the police or engage with them must be able to do so without fear that their sensitive personal data is not being shared beyond those necessary to deal with their case. Members of the public would undoubtedly be distressed and concerned that people unconnected to the case viewed their personal data and information.

30. As a Special Police Sargeant, former officer Humphrey had a supervisory and mentoring role to junior colleagues and the panel found this particularly concerning in the context of these allegations.

31. The Panel concluded that Former SPS Humphrey’s breach of the Standards of Professional Behaviour amounted to gross misconduct, namely “… a breach of the Standards of Professional Behaviour that is so serious as to justify dismissal”.

SANCTION

32. The Appropriate Authority provided former SPS Humphrey’s record of service. Mr. Apthorpe referred the Panel to the College of Policing Guidance on Outcomes and submitted that the only appropriate sanction, had former SPS Humphrey still been a serving police officer, would have been dismissal without notice.

33. In relation to personal mitigation, Mr Apthorpe was unable to point to any personal mitigation other than Mr Humphrey had served as a member of the Special Constabulary since 2013. No character evidence was provided. 

Analysis

34. The Panel reminded itself that the purpose of the police misconduct regime is threefold:

  • Firstly, to protect the public confidence in and the reputation of policing.
  • Secondly, to maintain the high professional standards by demonstrating to other officers that misconduct will not be tolerated.
  • Thirdly, to protect the public and/or officers and staff by preventing the officers from committing similar misconduct again.

35. In determining the appropriate sanction, we followed the approach set out in the College of Policing Guidance on Outcomes in Police Misconduct Proceedings [updated in 2023] and the caselaw referred to within that document.  Following that approach, we took the following matters into account when assessing the seriousness of the conduct before us. 

 Culpability

36. The Panel considered that culpability was high.  The factors that tended in favour of this conclusion were as follows:

  • Conduct was intentional, deliberate and on occasions, notably in respect of Allegations 2 and 4, was targeted.
  • There was an attempt to use some information (in Allegation 2) for personal gain.
  • The activity was over an extended period of time; almost 12 months.
  • There were numerous occasions when it carried out.
  • The former Officer had been suitably trained in Force policies and was reminded of them frequently when he accessed his Force computer. The activity was a deliberate breach.
  • Culpability will also be increased if the officer was holding a position of trust or responsibility at the relevant time. SPS Humphrey was in a leadership role.
  • There was misuse of particularly sensitive data. The College of Policing Guidance at paragraph 4.34 provides:

‘The misuse of police computer systems or confidential police information more generally is a particular concern for the police service. Police computer and manual systems hold a significant amount of information about members of the public. Most of this is sensitive, and it is both a public expectation and a legal requirement that information obtained during the course of policing duties should be treated in strictest confidence, properly protected and used only for legitimate policing purposes.’ And further at paragraph 4.35:

‘Personal reasons for accessing confidential police information, such as general curiosity or a desire to check on criminal activity near an officer’s home, are not acceptable. Accessing confidential police information without a legitimate policing purpose is an abuse of an officer’s position and may merit dismissal in serious cases.’

37. The panel found this to be a serious case.

Harm

38. The Panel assessed Harm to be high.  Factors tending in favour of that finding included:

  • Potential breach of public’s trust as to how data is handled by the police and potential for reputational harm to the Force.
  • Potential to undermine public confidence in coming forward to engage with the police.
  • Extreme sensitivity in some of the data and particular vulnerability of members of public.
  • There was the potential for criminal investigations to be disrupted.
  • There was a breach of data subjects’ Article 8 ECHR rights to privacy.

Aggravating and mitigating features

39. There were no additional aggravating features that were not counted in the assessment of culpability and harm. No misconduct based mitigating factors were found to be present.

40. Having assessed culpability and harm, having identified the aggravating, and mitigating features in this case and before taking into account personal mitigation, the Panel concluded that the overall level of seriousness in this case was high.

Personal Mitigation

41. The Panel found the following personal mitigation:

  • Former SPS Humphrey had been a member of the Special Constabulary since 2013. Specials have an important role in the Force and he had given up his time voluntarily to fulfil this role.
  • He had made partial admissions once his conduct was established and apologised for his behaviour.
  • He resigned his position from the Force.

42. The Panel reminded itself of the purpose of imposing sanctions and our obligation to choose the sanction which most appropriately fulfils that purpose for the seriousness of the conduct in question, having considered least severe sanctions before more severe.

43. The Panel considered the options open to us.  We concluded that public confidence would not have been maintained if former SPS Humphrey had been allowed to continue as a serving officer if he were still serving. 

OUTCOME

44. As a result of this Misconduct Hearing the following was found under Regulation 42(3) (b) (iii)and imposed with effect from 24 July 2023:

“A finding that the officer concerned would have been dismissed if he had not ceased to be a member of a police force”.

45. As a consequence of this outcome former SPS Humphrey will be placed on the College of Policing Barred List.

PANEL COMMENTS

46. In the course of delivering this judgment the Panel would like to say something about the training provided to members of the special constabulary and wider Force in relation to accessing personal data on force systems.  This is the second case in recent months involving the misuse of police information in Devon & Cornwall and the panel is concerned that there may be a culture of ‘log surfing’ which needs to be addressed. 

47. Although there is reference to mandatory annual training on GDPR and DPA, the Panel are concerned that this may be inconsistently applied and felt it is particularly important that the significance of accessing information without a policing purpose is regularly emphasised to all members of the force who are trusted with confidential information relating to members of the public, particularly when being issued with PDAs that enable access to policing systems even when off duty.

 

Signature:  Kate Anderson

Date:  24.07.2023

LEGALLY QUALIFIED CHAIR

 

Signature: Jayne Clemence

Date:  24.07.23

POLICE PANEL MEMBER

 

Signature:  Supt Ian Thompson

Date:  24.07.23

INDEPENDENT PANEL MEMBER