Met Police officer David Carrick admits to being serial rapist

I didn't say that. I said the CPS authorised charges.

 

Yes, but the inference was: ‘if the CPS authorises charges, they’re guilty’. That may not have been what you meant, but it’s what I took from what you wrote.

 

No, sorry, not inferring that at all. Post 34 refers. I'm trying to understand the logic of someone having been not guilty in a criminal court and then being dealt with for gross misconduct. Looks like a bit of double-jeopardy.

 

Not guity of manslaughter doesn't mean it's ok to batter and kick a mentally ill black man (or anybody else) - even if she was led astray by the more senior accomplice

 

No, it’s normal practice in the police. It’s not dissimilar to somebody being found not guilty but being sacked by their employer for bringing the firm into disrepute. It’s not really double jeopardy because it’s not being tried twice for the same offence. It’s just that the consequences are not only judicial.

 

No, 2 different charges. He may be innocent of murder, but there may be a civil case or professional misconduct case to answer. Let's take a silly example to illustrate the point. I'm at work in the factory, I get into a row with someone and punch him. More sensible heads step in, he goes away with a fat lip and the pair of us get escorted off site. That night, he dies. Potential murder or at least manslaughter charges. The police arrest me on the off chance that a punch to the head has triggered whatever killed him. Inquest comes back, no, no case to answer. OK, so far so good but I still have to answer for punching someone at work. That's gross mis all day long and I'll certainly be sacked, regardless of the fact that I'm not responsible for his death.

 

No, as has already been stated, the burden of proof is entirely different. In a criminal case the onus is on the prosecution to establish guilt beyond reasonable doubt in the consideration of a jury. An internal organisational process relies on the balance of probability, which is a significantly lower burden of proof.

In a criminal case, it is only the facts before the court that are considered by the jury. That is why the jury will normally be unaware of past convictions etc. and are strictly forbidden from trying to access information about the accused outside of the court room. My experience of internal disciplinary procedures is that HR will typically try to construct a pattern based on previous behaviours to establish an outcome that suggests, on the balance of probability, the allegations against an individual/ individual can be substantiated. A behaviour does not have to be a criminal offence to constitute gross misconduct that brings the organisation, profession etc. into disrepute.

 

HR will always do this bcause it's central to the case. If I'm abusive to someone at work, once, previous good behaviour, that's minor misconduct and I will be dealt with accordingly. Note to file, warning, etc. If I have a history of doing it then it's another matter, I'm clearly not listening to the discussions we are having about my behaviour so it's more likely to be gross miss (or out by totting up) and out I go.

 

Yes, but my point was addressing why a person may be found not guilty in a criminal trial yet subsequently be found guilty of gross misconduct for the same allegation in an internal, organisational disciplinary process.

In such a case, HR and the hearing manager will have access to the person’s file, and any instances of previous miscreance. That information is not available to juries, which explains why it’s far easier to substantiate allegations on the balance of probability rather than establishing guilt beyond reasonable doubt.

 

I think we're on the same page.

 

In your example, you've only been arrested, not charged. In the case of the serving officer in question, she's already been tried and found not guilty by a jury. Completely different.

 

Yep, very well aware of all that. I'll make it simpler: If Dave Smith is charged with rape, goes got court and is found not guilty, he's not a rapist. Would it be OK for his employer to deal with him for gross misconduct , for rape?

 

Well, rape does not fall under the aegis of terms and conditions of employment. It is a statuary offence and would be dealt with at a crown court rather than as part of an organisation’s internal disciplinary process.

But let’s go with it for the sake of argument. Im not a lawyer but in my extremely limited legal opinion, yes the employer could deal with it, for the reasons I’ve already given. Rape is notoriously difficult to prove, and in a criminal trial that proof has to be established beyond reasonable doubt. I did jury service a few years back. It was a sexual assault case. The defence barrister was absolutely first class and, frankly, he could have persuaded me that black, while perhaps not white, was not entirely black either.

Sexual assault, whether tested in a court of law beyond reasonable doubt or not, would certainly fall foul of any organisation’s policies and procedures, and allegations of such a nature would certainly (or should certainly) trigger the disciplinary process.

 

It would certainly make for an 'interesting' unfair or constructive dismissal claim at any subsequent employment tribunal.

 

I think I'd feel a bit aggrieved being dealt with by my employer for something I apparently hadn't done. But I see your point. In the case of the officer I don't think it's in doubt that she hit the poor man , so it's not quite the same as our sexual assault example. I just wanted to talk over the concept of being found NG at court and then being dealt with by way of disciplinary for exactly the same matter. Two bites of the cherry and all that.

 

No, I think you’re missing the point I’m trying to make. Criminal cases and internal disciplinary processes are entirely different scenarios. For example, if I was employed in an organisation that had policies around equality (and most will) but made a series of questionable posts on social media, under my own name and unconnected with my employment, I could still be subject to disciplinary procedure by my employer or governing body if I was adjudged to have brought the organisation into disrepute by failing to uphold its values.

The burden of proof is lower. Therefore I may still be contravening the policies and procedures of my employer even though I am not committing a criminal offence.

 

Anyway, to get back on track. Those adherents of the ‘rotten apple’ theory now have to take account of how the culture of the Met was determined and cascaded down from the highest level.

https://www.bbc.co.uk/news/uk-64995389

 

I agree with your social media scenario, but it doesn't automatically read across to the example of a criminal charge; if the person had been accused of a crime and then subsequently found not guilty, unless they had behaved like a **** during and after that trial (and associated with their employer), then there is no item in a legal conditions of employment that an employer can impose that wouldn't see them lose at an employment tribunal.

 

Yeah, as I say I’m not a lawyer and happy to be corrected by someone with more knowledge in this area. I’m simply trying to establish that criminal trials and employment disciplinary procedures are entirely separate processes and do not always comfortably cross-reference each other.

 

Most employers wouldn't care about the strength of their case at tribunal, people will never be reinstated.