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Hearing finding and Outcome – Police Constable 389 Andrew Barton
The misconduct hearing in respect of Police Constable 389 Andrew BARTON took place from Monday 16th – Wednesday 18th December 2024 at Norfolk Constabulary, Operations and Communications Centre, Wymondham.
Summary of conduct alleged:
On 31st October 2022, it is alleged that PC BARTON inappropriately communicated with and used excessive force in relation to a juvenile. On 13th November 2022, it is alleged that PC BARTON was involved in the arrest of a male, who then temporarily escaped. During his subsequent detention is alleged that PC BARTON used excessive force.
It is alleged that this conduct breached the Standards of Professional Behaviour in respect of:
It was determined that the allegations should be heard at a misconduct hearing.
Panel Members
Chair – Assistant Chief Constable Julie DEAN
Independent Panel Member – Mr Christopher TAYLOR
Independent Panel Member – Dr Julie RAFFERTY
Summary of Facts and Conduct
Introduction
For the hearing I now outline a summary of the panel’s approach, decision, and rationale.
The panel have reminded themselves of the threefold purpose of police misconduct proceedings, namely to:
The panel have had regard to a number of relevant legal authorities including Bolton, Redgrave and Salter. The panel have also had regard to the framework of regulations and guidance including, the Police Conduct Regulations 2020 as amended by 2024 Conduct amendment regulations, The Home Office guidance for those regulations, The College of Policing Code of Ethics 2024 and the College of Policing Guidance on outcomes in police misconduct proceedings 2023.
Furthermore, the panel have reminded themselves that the burden of proof rests with the AA and that the standard of proof is the civil standard which is a single unvarying standard with no sliding scale.
Findings on Facts (Balance of Probability)
Having carefully considered all of the evidence before us, the panel are satisfied on the balance of probabilities that the matters presented by the AA and held within the hearing bundle have been proved.
Particulars of Misconduct
The Regulation 30 alleges two breaches of the Standards of Professional Behaviour namely Use of Force and Authority, Respect and Courtesy.
Use of Force
“Your behaviour as set out in the Background Facts at paragraphs 11, 14, and 15, and 26 has breached this standard. In particular it was neither necessary, nor proportionate, nor reasonable to use any or all of the force identified in those paragraphs either individually or cumulatively.”
The specific allegations are detailed below.
Paragraph 11:
The Officer: a. Wrapped his right arm over Mr A’s shoulders. b. Restrained Mr A in a headlock c. Tucked Mr A’s head under his armpit and then moved Mr A across the landing.
This matter is proved. The evidence in support of this is as follows:
(a) The Panel are satisfied that PC Barton undertook the actions set out above. The BWV of PC Kamalova at 5 minutes 48 seconds shows that PC Barton wrapped his arm over Mr A’s shoulders. This is effectively accepted by PC Barton in his tape-recorded interview when he agrees that he placed Mr A in a headlock both inside and outside of the property. The Panel are satisfied that the BWV supports this conclusion. The Panel are also satisfied that PC Barton tucked Mr A’s head under his armpit and then moved Mr A across the landing. This is supported by the BWV of PC Kamalova and is effectively accepted by PC Barton.
(b) PC Barton maintains that his primary concern throughout the incident was to protect the welfare of the two juveniles at the scene (including Mr A) and to protect his colleagues. In respect of Mr A specifically, he stated that he was particularly concerned with the risk of harm to Mr A. This included a risk of Mr A causing harm by picking up available objects in the flat that could be used as a weapon and maintaining control of Mr A to prevent his escape. He stated in evidence (although it had not been mentioned before) that he had seen Mr A attempting to leave the property through a window in the bedroom when he first arrived. Mr A was a vulnerable juvenile and PC Barton wanted to return him to a place of safety. The Panel recognise that PC Barton was the most experienced officer at the scene and felt he had a duty to take the lead and seek to resolve the situation.
(c) The Panel accept that it was necessary to remove Mr A from the property and that reasonable force could be justified to do so in these circumstances. The Panel do not however accept that the force used by PC Barton was proportionate or reasonable for the following reasons:
Paragraph 14
As they exited the front door of the address, the Officer re-applied the same technique (as described at para 11) before taking Mr A to the floor.
This matter is proved. The evidence in support of this is as follows:
(a) The facts are not disputed. PC Barton accepts that he reapplied the headlock restraint that he had used in the flat on Mr A as he was exiting and outside of the building. He accepted that both in interview and in his evidence to the panel.
(b) PC Barton stated that he was concerned about Mr A leaving the scene, causing injury to himself and others in doing this. He was primarily concerned about the safety of Mr A and colleagues.
(c) The Panel are satisfied that there was a necessity to continue to detain Mr A at this point. The necessity for this was to ensure the safe return of Mr A to care. The Panel are not satisfied that the force used by PC Barton at this point was proportionate or reasonable to the threat posed to PC Barton by Mr A, any threat that Mr A was under from others or the risk he posed to himself. Mr A had been exited from the immediate danger posed to him and by him in the flat. Mr A was using words to indicate that he was compliant, and the BWV of PC Kamalova again corroborates this as Mr A is indicating that he is prepared to walk and comply. The Panel are satisfied that the use of force at this stage of the incident was both disproportionate and unreasonable. The Panel note that there is no use of any de-escalation tactics by PC Barton or any consideration of any alternative tactics to deal with the situation in front of him.
Paragraph 15
The Officer handcuffed Mr A to railings outside the address. He was then moved from the railings and placed in a patrol car whilst handcuffed in a front stack. He was left in the car for 12 minutes.
This matter is proved. The evidence in support of this is as follows:
(a) The facts are not disputed. PC Barton accepts that he handcuffed Mr A to the railings. There was no dispute about this from PC Barton in his evidence to the Panel or in his written statements. He also accepts that Mr A was moved from the railings and placed in a Police Car in handcuffs. The Panel accept that he was kept there for a number of minutes, and this was accepted by PC Barton.
(b) PC Barton says he handcuffed Mr A to the railings because he was concerned about the escalation of the incident in the flat, predominantly owing to there being a number of officers dealing with three males left in the property and therefore to enable him to return inside the flat to assist. PC Barton was also concerned about the safety of PC Kamalova being left with Mr A because she had previously struggled to restrain Mr A whilst inside the flat. His priority continued to be to protect Mr A, his colleagues and to return Mr A to care and safety and to prevent his escape.
(c) The Panel do not accept that it was necessary, reasonable or proportionate to handcuff Mr A to the railings. Officers are strongly advised not to handcuff subjects to fixed or inanimate objects e.g. railings. This is because there is a further risk that the individual will be left unattended and therefore not monitored, with appropriate aftercare not being able to be provided. This is particularly exacerbated in the case of a vulnerable juvenile which Mr A was at the time. The panel note the evidence of SP Chapman, PPST trainer (page 66 of the bundle paragraph 2) where he says Mr A was not showing signs of active resistance and did not appear to be a threat towards the officers who were on the outside landing area; in fact Mr A states that he would stay calm. There is no evidence that PC Barton considered any other and more proportionate tactical options to deal with any threat posed by or to Mr A. The panel further considered it was inappropriate for PC Barton to hand over responsibility for his vulnerable juvenile prisoner to another officer without communication.
Paragraph 26
PC Barton drew and armed his Taser and discharged it into Mr B’s back on a five second cycle.
This matter is proved. The evidence in support of this is as follows:
(a) The facts are not disputed. PC Barton accepts that he did this. His evidence to the panel and his written evidence confirms this. There is no dispute that he did this.
(b) PC Barton says he did this because he feared that Mr B was about to assault PC Mutten and he feared for PC Mutten’s safety. PC Barton stated that when Mr B turned towards PC Mutten, PC Mutten was on his radio and was at a tactical disadvantage to properly deal with any threat posed to him by Mr B.
(c) The Panel do not consider the use of the taser in the circumstances faced by PC Barton as either necessary, proportionate or reasonable for the following reasons:
Authority, Respect and Courtesy
Your actions as set out at paragraphs 9, 16 and 19 of the Regulation 30 notice have breached this standard. You treated Mr A without respect and/or courtesy.
The specific allegations are detailed below.
Paragraph 9
Whilst in the address the Officer said, ‘Come on you two, we can’t do this all night. [Mr A] you as well mate, don’t make … I will literally drag you up and take you out here’.
This matter is proved. The evidence in support of this is as follows:
The facts are not disputed. PC Barton accepts that he used these words. His reasons for doing so were to aid communication with Mr A in that he wanted to speak to him in a way that he would understand.
The panel have considered this explanation and do not accept it. The words used were ill-judged and inappropriate and should not have been used by PC Barton. Mr A was a vulnerable juvenile who needed to be treated with sensitivity, not threats. The Panel noted that PC Barton stated that it was not a threat. The Panel did not find this credible as very soon after saying these words PC Barton used disproportionate force in removing Mr A from the flat.
Paragraph 16
The Officer asked Mr A, ‘Are you going to be a divvy now or are you gonna be alright?’ Mr A replied, ‘I’ll be alright’. The Officer then said, ‘You sure, cos we not gonna have a repeat of that, if not I’ll just take you back upstairs and handcuff you to the railings.’
The matter is proved. The evidence in support of this is as follows:
The facts are not disputed. PC Barton accepted in his evidence that he used these words. In interview, he stated that he used these words to gauge an understanding from Mr A as to how he was going to be (i.e. act) and to highlight potential repercussions. The Panel do not accept that explanation. The Panel are concerned that this is a further threat made to a vulnerable juvenile who has just experienced the exact same action. PC Barton’s words were ill advised and inappropriate and, in the Panel’s determination, an abuse of power by a police officer on a vulnerable juvenile who could not be sure that the threat would not be carried out, instilling a fear of violence
Paragraph 19
The Officer said, [swear words redacted]’ He then shouted, ‘Officer with Taser stand still, stand still now!’ Mr B did not stop. The Officer did not draw or activate his Taser. The Officer drew his PAVA and chased Mr B on foot.
This matter is proved. The evidence in support of this is as follows:
The Panel have listened to PC Barton’s BWV and are satisfied that PC Barton used the words alleged. The Panel have noted what PC Barton has alleged he said but do not accept his version of events. The Panel are satisfied, on the balance of probabilities, that PC Barton used the words alleged. The Panel have noted that these words were not likely to be heard by Mr B.
Breach of the Standard
The panel find that for the reasons given the facts above satisfy the allegation of a breach of the Standards of Professional Behaviour relating to Use of Force and Authority, Respect and Courtesy.
Assessment of Misconduct
The panel have had regard to regulations 2(1) which states:
Misconduct means a breach of the Standards of Professional Behaviour that is so serious as to justify disciplinary action.
Gross misconduct means a breach of the Standards of Professional Behaviour that is so serious as to justify dismissal.
The panel have further regard to regulation 41(15) of the Conduct regulations which provides that the person conducting the misconduct proceedings must:
In the case of a misconduct hearing review the facts of the case and decide whether the conduct of the officer concerned amounts to misconduct or gross misconduct or neither.
The panel find that PC 389 Barton has breached the Standards of Professional Behaviour relating to Use of Force and Authority, Respect and Courtesy.
The panel find that the breaches relating to Use of Force at paragraphs 11, 14, 15 and 26 amount to gross misconduct in their own right. The panel find that the breaches relating to Authority, Respect and Courtesy at paragraphs, 9, 16 and 19 amount to misconduct.
The panel are satisfied that these breaches when taken together are so serious that dismissal would be justified.
As such the panel find gross misconduct.
Outcome Decision
The panel have had reference to the Guidance on Outcomes in police misconduct proceedings as produced by the College of Policing.
The panel note at paragraph 3.12 that the available outcomes at a misconduct hearing are:
The panel also note paragraph 3.15 of the guidance which states that if the officer had a final written warning in force on the date of the severity assessment, neither a written warning nor a final written warning may be given.
The panel note that PC Barton had a final written warning in place at the time of the two severity assessments which took place on 7th November 2022 and 16th February 2023.
Because PC Barton is a Police Constable, there is no opportunity to consider the outcome of reduction in rank.
As a result, the only available outcome to the panel is dismissal without notice.
[Procedural matters redacted as not relevant].
Julie Dean
ACC – Panel Chair
18th December 2024