Former PC Hart

IN THE MATTER OF THE POLICE (CONDUCT) REGULATIONS 2020 AS AMENDED 2024

AND IN THE MATTER OF FORMER PC BEN HART, SUFFOLK CONSTABULARY

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REPORT UNDER REGULATION 43 OF THE POLICE (CONDUCT) REGULATIONS 2020

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1. This is the decision of a Police Misconduct Panel sitting at Landmark House, Ipswich between 10^th February and the 13^th February 2025. The Panel consisted of Assistant Chief Constable (Chair) Nicholas Davison, Mr Simon Paley (Independent Panel member) and Mr Kevin Rogers (Independent Panel member).

2. The Panel was assisted on procedure and the law by its Legally Qualified Person (‘LQP’) Mr David Tyme.

3. The allegations against former Police Constable (PC) Ben Hart came to light on or after 1 February 2020 and therefore falls to be dealt with under the Police (Conduct) Regulations 2020 as amended (“the Regulations”). References to any specific Regulation in this document are to these Regulations unless otherwise stated.

4. The Panel is required by Regulation 41(15) of the Regulations to review the facts of the case and decide whether the conduct of former PC Hart amounts to Misconduct, Gross Misconduct, or neither.

5. If the Panel makes a finding of Misconduct or Gross Misconduct, it must go on to consider what disciplinary action is appropriate.

 

ATTENDANCE AND REPRESENTATION 

6. The Appropriate Authority (‘AA”) was represented by Mr Holdcroft. The former officer was represented by Ms Hill and was in attendance himself for the first two days of the hearing.

 

PRELIMINARY MATTERS 

7. Hearing in Public / Private. The hearing was held in public in accordance with the directions made at the pre-hearing on the 10^th September 2024.

8. Anonymity/Reporting Restrictions. The Chair at the pre-hearing directed anonymity of two witnesses, M A and PC B, for these proceedings and reporting restrictions to facilitate the proper conduct of the proceedings and in the interests of justice, pursuant to Regulation 39 (3)(c) of the Police (Conduct) Regulations 2020, prohibiting the publishing or broadcasting in any newspaper, magazine, public computer network, internet website, sound or television broadcast or cable or satellite programme, of details regarding both Ms A and PC B.

9. Attendance. It was noted that the former officer, Mr Hart was in attendance but was unable to attend for the duration of the hearing. Mr Hart and his Counsel indicated that he was happy for the proceedings to continue without him. He was legally represented and had a Suffolk Police Federation ‘friend’ in attendance who was available for the duration. Having satisfied himself that the former officer was voluntarily absenting himself for part of the proceedings the Chair, under Regulation 37(3), determined that the proceedings should be held.

 

Regulation 30 and Regulation 31 Response

10. The Chair raised an issue for the Panel in respect to the submitted Regulation 30 notice which indicted the Facts and allegations and the former officer’s response ( Reg 31). There was a drafting mismatch between the paragraphs set out in the Regulation 30 notice and those of Mr Hart’s response (Reg 31). Both Counsel indicated that they had resolved the drafting issue and confirmed that the Panel should read the two documents in its deliberations as set out below:

Reg 30 Paragraph 7 allegation corresponding officer response (Reg 31) Paragraph 9, 4-7.

Reg 30 Paragraph 8 allegation corresponding officer response (Reg 31) Paragraph 8-11.

Reg 30 Paragraph 9A allegation corresponding officer response (Reg 31) Paragraph 12.

Reg 30 Paragraph 9B allegation corresponding officer response (Reg 31) Paragraph 13.

Reg 30 Paragraph 10 allegation corresponding officer response (Reg 31) Paragraph 14.

 

11. Both Counsel confirmed to the Panel that Facts set out in Paragraph 1 to 5 were agreed by the AA and Mr Hart.

12. Both Counsel confirmed and agreed Mr Hart’s position in respect to Paragraph six of the regulation 30 notice in that it was agreed that the facts as set out were accurate but that Mr Hart denied the allegation from 2021 and that the hearing held in 2023 on the matter was unproven and dismissed.

 

The Allegations and Facts

13. The charges have been reproduced below and as set out in the Regulation 30 notice:

1. Police Constable Ben Hart (‘the Officer’) joined the Suffolk Police as a Constable on 18/01/2018. He had previously worked as a Special Constable since 19/06/2016.

2. The Previous Code of Ethics was published in July 2014 and states that an Officer must, 

‘ensure [their] behaviour and language could not reasonably be perceived to be abusive, oppressive, harassing, bullying, victimising or offensive by the public or your policing colleagues.’

3. The Officer received training in relation to the Code of Ethics on 12/10/2016 and 25/01/2021.

4. The Officer has received training in relation to equality and diversity and harassment on 12/10/2016, 09/09/2020 and 21/10/2021.

5. On 22 November 2019, the Officer received Management Action in relation to sending inappropriate SnapChat messages to a colleague.

6. [Redacted]

7. In April 2022 the Officer attended a ‘leaving do’ in Ipswich with Ms A. Ms A was very intoxicated. She was too intoxicated to be able to consent to any form of sexual activity. Despite this the Officer had penetrative sex with Ms A.

8. In September 2023 the Officer sent unwelcome sexually inappropriate messages to PC B, [redacted]

9. Following this the Officer sent further unwanted videos to PC B including:

a) Of his bedroom, and

b) Images of his legs wearing a tracksuit whilst lying on his bed.

PC B believed these were intended to be sexually suggestive.

10. The Officer later sent a message to PC B to the effect of ‘Be a good girl, don’t tell anyone.’

 

EVIDENCE

Counsel submissions

14. The Panel had been provided before the Hearing with the AA’s bundle of documents, which included the Regulation 30 notice and Regulation 31 response of Mr Hart and other documents relevant to the incident. The Panel also received an opening note on behalf of the AA and heard oral submissions from Mr Holdcroft. Both the AA and Counsel for Mr Hart provided written and oral closing submissions. Following the closing of the AA case the Panel also received an application for dismissal on behalf of Mr Hart.

AA Opening Submissions

15. The Panel received and read the written case summary [embedded document redacted].

Witness Testimony

16. as part of the AA case the Panel heard live witness testimony from the following:

Ms A

PC B

PC Z

The Panel listened carefully to the evidence of each witness and the subsequent cross examination undertaken. The Panel, where it considered it necessary asked questions of witnesses. The testimonies were captured in the hearing record.

 

Galbraith Submission – No case to answer

17. Ms Hill, following the AA case made an oral application for the case against Mr Hart to be dismissed. Having received the oral submission, the Panel received legal advice from the LQP.
18. Having retired to consider the submission the Panel reconvened the hearing and set out its determination in respect to Mr Hart’s application to dismiss the case. The decision of the Panel was to dismiss the application and continue with the hearing.
19. The Panel provided a written determination and read it into the record. [Embedded document redacted]

 

FORMER OFFICER CASE

20. The former officer, Mr Hart gave live witness testimony including cross examination before the Panel. The panel listened carefully to that evidence and asked questions of Mr Hart following the cross examination.

 

CLOSING SUBMISSIONS

21. Following the presentation of the evidence both Counsel for the AA and Counsel for Mr Hart provided written and oral closing remarks before the Panel. The Panel listened carefully to the oral submissions and read the written submissions.
22. [Embedded documents redacted]

Legal Advice

23. The Panel requested legal advice in respect to the required standard and burden of proof the Panel was to use. The Panel also requested legal advice on relevant legal authorities, guidance and definitions in respect to consent and capacity regarding sexual offences matters.
24. In open session the LQP set out that advice orally and provided a written submission to the Panel which the Panel read carefully.
25. The Legal advice [Embedded document redacted]

R v Kamki [2013] EWCA Crim 2335 at 18:

"a. A person consents if he or she agrees by choice and has the freedom and capacity to make that choice,

1. When a person is unconscious, there is no such freedom or capacity to choose,
2. Where a person has not reached a state of unconsciousness and experiences some degree of consciousness, further considerations must be applied, 
3. A person can still have the capacity to make a choice and have sex even when they have had a lot to drink (thereby consenting to the act),
4. Alcohol can make people less inhibited than when they are sober and everybody has the choice whether or not to have sex,
5. If through drink a woman has temporarily lost the capacity to choose to have sexual intercourse, she would not be consenting, 
6. Before a complete loss of consciousness arises, a state of incapacity to consent can nevertheless be reached. Consideration has to be given to the degree of consciousness or otherwise in order to determine the issue of capacity, 
7. In this particular case, the jury would have to consider the evidence of M to determine what her state of consciousness or unconsciousness was and to determine what effect this would have on her capacity to consent,
8. If it is determined that the complainant did have the capacity to make a choice, it would then have to be considered whether she did or may have consented to sexual intercourse".

  26. Having heard the evidence, closing remarks and received the legal advice the Panel retired to consider its findings.

 

FINDING ON FACTS AND CONDUCT

27. The Panel approached its decision making by keeping in mind the purpose and character of police misconduct proceedings. The primary purpose being not to punish the officer/ former officer but to protect public confidence in, and the reputation of, the police service by holding police officers accountable and making clear that improper behaviour will not be left unchecked. A secondary purpose being to be declaratory of high professional standards. The final purpose being to protect the public and officers by preventing similar misconduct recurring in the future. The Panel had regard to Bolton v Law Society [1994] 1 WLR 512; Redgrave v Commissioner of Police of the Metropolis [2003] 1 WLR 1136; R (Coke-Wallis) v Institute of Chartered Accountants [2011] UKSC 1; Chief Constable of Dorset v PAT, Salter Interested Party [2011] EWHC 3366 (Admin), applying the high standards of honesty and integrity expected of lawyers to police officers and R (Williams) v PAT [2016 EWHC 2708 (Admin). Additionally, the Panel had regard to R(Green) v Police Complaints Authority [2002] UKHL 6 at [78], where Lord Carswell stated:

‘Public confidence in the police is a factor of great importance in the maintenance of law and order in the manner which we regard as appropriate in our polity. If citizens feel that the improper behaviour on the part of police officers is left unchecked and they are not held to account for it in a suitable manner, that confidence will be eroded.’ 

28. The Panel had regard to a framework of regulations and guidance, in particular the following:

The Police (Conduct) Regulations 2020 (the “PCR”) as amended by the Police (Conduct) (Amendments) Regulations 2024, including and in particular the Standards of Professional Behaviour (the “Standards” or the “SPB”) at schedule 2.

2018 Home Office Guidance (the “HOG”), including in particular Section 1, summarising the Standards and legal framework. As well as section 3: disciplinary processes and proceedings.

The College of Policing Code of Ethics 2024, (non-statutory) including Ethical policing principles, Guidance for ethical and professional behaviour in policing which provides examples of what officers are expected to do and not to do and which I read in conjunction with the SPB in schedule 2 of the Regulations.

 

The Panel’s Approach

29. The Panel approached this decision on the following basis: -

i. First, to ascertain the facts whether admitted or found proven.

ii. Second to determine whether based on those facts the former officer has breached the standards of professional behaviour alleged.

iii. Third, if yes, to decide whether such breaches constituted misconduct, gross misconduct or neither.

iv. Fourth, dependent on our findings under two and three, to decide on the appropriate outcome.

 

Stage 1- Findings of Fact

30. In making its findings of fact, the Panel had full regard to all the documents as set out in the matter:- the digital material, the oral evidence and submissions from Counsel for the Appropriate Authority (AA) and Mr Hart.
31. The Panel noted that there had only been a partial admission (1 -5) to the Regulation 30 Facts but that the substantive matter of the allegations was denied. The Panel therefore proceeded on the basis that the Allegations as set out in the Regulation 30 notice were denied.
32. The Panel has been careful and considered in its analysis and assessment of the available material, and it listened carefully to the accounts provided by the live witness testimonies it heard.
33. The Panel, within its approach, considered the evidence and its task in the fact-finding stage with due regard to the agreed legal advice on the authorities provided to it in the submissions and the advice provided by the Legally Qualified Person (LQP) supporting the Panel, concerning the standard and burden of proof the Panel was required to make determinations against (Civil Standard). In addition, the Panel received advice concerning the Sexual Offences Act 2003 and the statutory definition therein defining consent as well as the legal authority relating to reasonable belief in consent and the test to apply R v Bree [2007].
34. In doing so the Panel examined each Fact, set out in the Regulation 30 notice in a systematic way, applying the balance of probability burden of proof to each and where appropriate (Para 7) the legal authorities and legal advice it received from the LQP concerning sexual offences alongside the balance of probabilities standard.
35. In applying the advice provided concerning sexual offences under criminal law the Panel had due regard to the CPS legal guidance on the statutory definition of consent within the context of criminal proceedings.
36. Finally, the Panel reminded itself that the burden of proof rests with the Appropriate Authority.
37. The Panel noted that the Regulation 30 notice set out a series of Background Facts and key central facts under pinning the allegations. The Panel took the decision to consider all facts listed.
38. The Panel has set out below its findings of fact and where disputes did exist the reasons for its findings are set out.

 

Regulation 30: Fact Paragraph 1

Police Constable Ben Hart (‘the Officer’) joined the Suffolk Police as

Constable on 18/01/2018. He had previously worked as a Special Constable since 19/06/2016. 

39. In relation to this matter, the Panel, was informed, jointly in the presence of Mr Tyme, by both the Legal Counsel for the AA and Legal Counsel for the former officer that this was accepted as fact by both the AA and the former officer. The Panel therefore concluded it was not controversial and was accepted by both parties. The Panel also noted that this was contained within the bundle of papers within the Investigating officers report.

40. Accordingly, the Panel finds on the balance of probability that paragraph 1 is proved.

 

Regulation 30: Paragraph 2

The Previous Code of Ethics was published in July 2014 and states that an Officer must, ‘ensure [their] behaviour and language could not reasonably be perceived to be abusive, oppressive, harassing, bullying, victimising or offensive by the public or your policing colleagues.’

41. In relation to this matter, the Panel, was informed, jointly in the presence of Mr Tyme, by both the Legal Counsel for the AA and Legal Counsel for the former officer that this was accepted as fact by both the AA and former officer. The Panel therefore concluded it was not controversial and was accepted by both parties
42. Accordingly, the Panel finds on the balance of probability that paragraph 2 is proved.

 

Regulation 30: Paragraph 3

The Officer received training in relation to the Code of Ethics on 12/10/2016 and 25/01/2021.

43. In relation to this matter, the Panel, was informed jointly, in the presence of Mr Tyme, by both the Legal Counsel for the AA and Legal Counsel for the former officer that this was accepted as fact by both the AA and former officer. The Panel therefore concluded it was not controversial and was accepted by both parties
44. Accordingly, the Panel finds on the balance of probability that paragraph 3 is proved.

 

Regulation 30: Paragraph 4

The Officer has received training in relation to equality and diversity and harassment on 12/10/2016, 09/09/2020 and 21/10/2021.

45. In relation to this matter, the Panel, was informed jointly, in the presence of Mr Tyme, by both the Legal Counsel for the AA and Legal Counsel for the former officer that this was accepted as fact by both the AA and former officer. The Panel therefore concluded it was not controversial and was accepted by both parties.
46. Accordingly, the Panel finds on the balance of probability that paragraph 4 is proved.

 

Regulation 30: Paragraph 5

On 22 November 2019, the Officer received Management Action in relation to sending inappropriate SnapChat messages to a colleague.

47. In relation to this matter, the Panel, was informed jointly, in the presence of Mr Tyme, by both the Legal Counsel for the AA and Legal Counsel for the former officer that this was accepted as fact by both the AA and former officer. The Panel therefore concluded it was not controversial and was accepted by both parties. Additionally, during the course of the hearing the Panel asked for, saw and read the Professional Standards Department (PSD) record of the vulnerability interview held with the former officer (IR log 95.19) relating to paragraph five.
48. Accordingly, the Panel finds on the balance of probability that paragraph 5 is proved.

 

Regulation 30 : Paragraph 6 [Redacted]

49. [Redacted]
50. [Redacted]
51. [Redacted]

 

Regulation 30: Paragraph 7

In April 2022 the Officer attended a ‘leaving do’ in Ipswich with Ms A. Ms A was very intoxicated. She was too intoxicated to be able to consent to any form of sexual activity. Despite this the Officer had penetrative sex with Ms A.

52. In relation to this matter, the Panel, approached its task by breaking down the paragraph and considering against the balance of probability burden of proof and the detailed legal advice it had received from the LQP that had been accepted, without comment by both the AA and former officer’s counsel. Additionally in respect to the element of paragraph seven ‘she was too intoxicated to be able to consent to any form of sexual activity’ the Panel applied its thinking and deliberations with regard to the sexual offences act legislation and legal authority it had received and done so without adverse comment from Legal Counsel.
53. The Panel first considered whether ‘In April 2022 the Officer attended the ‘leaving do’ in Ipswich with Ms A’. The Panel did not see this as contentious; it was admitted in the former officer’s interview, in his Regulation 31 response and in his live testimony to the Panel in the hearing. Additionally, Ms A stated in her Video Recorded Interview that she attended that event. Both stated they were in each other’s company at the event. Whilst both parties indicated they arrived separately there was evidence before the Panel that indicated some form of social media / WhatsApp communication between the two parties in advance of the evening out. Additionally, the Panel found numerous witness statement accounts from others [Names redacted] in attendance that night stating that both the former Officer and Ms A attended as well and during the time in Issacs establishment were engaged with each other with PC Z providing evidence about seeing them together in The Botanists.
54. This was not in dispute. Accordingly, the Panel finds on the balance of probability that the former officer and Ms A did attend the leaving do in April 2022.
55. The Panel then turned its attention to the element of paragraph seven stating that the former officer had penetrative sex with Ms A.
56. Here, the Panel concluded that this was not controversial. It was admitted by the former officer in his Criminal interview and his detailed description of events at Ms A’s home (page 075), his regulation 31 response (page 260) and in his live witness testimony before the Panel. Ms A in her first disclosure to PSD and DS Dunnett (01/12/2023) (page 267) stated ‘I think something sexual happened’ … ‘Felt like I’d had sex’. Officer Y in her statement stated that Ms A had told her that she had had sex with the former officer as did the former officer when she asked him sometime after that night in April. Accordingly, the Panel finds on the balance of probability, finds the former officer had penetrative sex with Ms A as set out in paragraph seven.
57. Following this the Panel then considered the sentence in the paragraph, ‘Ms A was very intoxicated’. The Panel recognised alcohol can cause intoxication when consumed in quantities. Here, the Panel noted that its common knowledge that alcohol affects people differently depending on quantity consumed, strength, speed of consumption, physical, tolerance, psychological, and emotional factors; the effect of food consumption on the absorption of alcohol to name some of the factors associated with how alcohol interacts with humans and its effect on them. Having considered this the Panel turned to the available evidence before it. The Panel concluded that there was a range of evidence in the documentation associated with this matter that supported the fact that Ms A was consuming alcohol that night. The statement of Officer Y ‘I recall PC Hart, and [Ms A] were drinking. I do not drink alcohol therefore I recall most details. I noticed both parties were buying each other drinks such as cocktails and shots. I remember this because Officer X was being given a lot of spare shots they did not wish to drink’ (page 163). The statement of Officer W, who in addition to stating she was not drunk herself as ‘I very rarely drink alcohol and if I do then I only have 1 or 2’ (page 156) went on to state ‘I recall HART and [Ms A] were sat pretty much directly opposite me at the table for the majority of the evening. I do not recall mixing much with HART or person V during the evening as they spent the entire night together. I recall HART was sat to the right of [Ms A]. I recall noticing they were both drinking quite a few shots, sometimes there were multiple shots on the table at the time. I do not recall these shots being shared out to anybody else aside from themselves’. I would not be able to say how much HART, or [Ms A] drank during the time in ISAACS, it must have been a fair amount and they both appeared very giggly and smiley. The Statement of Officer U (page 159) who stated before he left ‘People were drinking but it was not excessive. Some members of the group ordered food, and I recall Ben and [Ms A] sharing food together at the table’ and described people ‘as being under the influence of alcohol but not drunk’ at the time he left.
58. The Panel considered the evidence of others who also provided evidence of Ms A’s alcohol consumption, Officer Z, who in his statement (page 166) said, in Issacs, ‘ I cannot recall what[Ms A] was drinking but she was drinking alcohol, she appeared to be drinking more than Ben was’, then when he was with them for approximately fifteen minutes in Botanist at approximately 2230 to 2300hrs ( left at 2300hrs) ‘I recall thinking that [Ms A] appeared to be drunk, she was laughing and joking loudly… she was in good spirits, her words were slurred, movements unsteady and clumsy’. Here, the Panel considered his oral testimony on the first day of the hearing where under cross examination in contrast to the statement of Officer Y and Officer W who stated they do not drink or rarely drink told the panel that he accepted that the passage of time between the 28^th April 2022 and when he provided his statement could impact on his ability to recall. Ms Hill ‘Do you accept that your recollection of the events have faded through the passage of time?’ Officer Z replied ‘most likely yes’. And when questioned about this alcohol consumption that night, he agreed he had had quite a bit of alcohol that night, some 10 – 12 drinks most likely pints but he could not recall and two glasses of whiskey at the end of the night. Under further cross examination Officer Z accepted that his perception of the events could be affected by alcohol ‘yes it could have been’. Ms Hill put to him that the former officer had given evidence that whilst in Botanist Officer Z appeared to show signs of being drunk of slurred speech to which Officer Z replied ‘I can accept that. I was under the influence of alcohol at this point’. Ms Hill in discussing Officer Z evidence concerning his evidence of Ms A’s appearance (drunk, unsteady, slurred speech) in The Botanist agreed that he had not seen Ms A drunk on other occasions.
59. Here the Panel remined itself of Ms Hill’s closing note to the Panel where the Panel was invited to consider whether Officer Z was himself in a fit state to make the assessment that Ms A was drunk.
60. The Panel accordingly took the view in the round that, when considering what accounts were available to assist it assess this issue (Ms A was very intoxicated), it needed to consider what weight it gave to the available evidence of those that provided a statement commenting on drunkenness /intoxication. Whilst all witnesses provided statements many months after the night of the 28^th April 2022 some were under the influence of alcohol themselves and others did not drink or only drank a small amount.
61. The Panel also considered the information in the investigating officers report concerning Person T (page 018), who was at the time Ms A’s partner where he informed the investigating officer that he received a call / text that night and remembers thinking she was drunk, not making sense, speech slurred, telling him she was in a kebab shop.
62. The Panel then turned to consider what evidence Ms A provided on the issue of her own intoxication and the Panel recognised that her knowledge of herself could be a strong assessment. Here, Ms A in her Video Recorded Interview (VRI) (page 032) confirmed she had been drinking alcohol. When asked in the VRI:

Qu:“ Can you remember what you were drinking that night, what was your

normal go to?”

Ms A: “I think potentially I was drinking Corona, that seems to ring a bell.”

Qu:“ Okay, so bottles of Corona?”

Ms A: “Yeah.”

Qu: “Okay, can you remember how much you had?”

Ms A: “No, from there I would probably say three or four in there, but then I

don’t remember anything else, so I don’t know how much more I had.” …. “But that’s not an unusual amount for me.”

Qu: “Right, okay I was going to say how often do you drink and what sort of

tolerance have you got?”

Ms A: “I would say like when I do drink, I do drink quite a lot and like I say my

memory might be patchy sometimes, but I generally have an idea of

what’s happened.”

Qu: “And had you eaten?”

Ms A: “Yeah, I would’ve eaten before I went out and I did, like people were

having stuff and like putting it in the middle so I had like some chips and

stuff that people were having, so I ate while I was there.”

Then later in the VRI (page 052), In response to a question about speaking with her sergeant and why she had not spoken about it, ‘I think there was a lot of factors, unfortunately I felt like because I had been drunk…’

63. The Panel then considered Ms A’s live testimony she provided to the Panel and under cross examination indicated that it was Desperado beer not Corona beer whilst at ISAACS. In response to the question from Ms Hill ‘did you drink quite a lot of alcohol?’ Ms A replied ‘Yeah’. Beyond that when asked by Ms Hill questions about how she felt on leaving ISAACS, or what she drank in The Botanist, Ms A was unable to assist.
64. Ms A throughout her evidence was consistent in her account that she could not recall/ remember what happened that evening after leaving ISAACS until she woke the next morning to find the former officer next to her in her bed. Ms A in her evidence indicated that she accepted she had a horrendous memory anyway but when drinking would in her experience of herself more likely have a patchy memory about events when out drinking but that on this occasion [April 2022 leaving do] her evidence was that she had absolutely no recollection of anything after ISAACS until the following morning.
65. In addition to the above evidence the Panel considered the evidence in her bank statement (page 179) of purchases in ISAACS, The Botanist and Vodka Revolution venues. To see if this assisted in its task to consider the facts set out in paragraph seven. The Panel noted the monetary amounts of Ms A’s spending across the evening as indicated in her bank statement in each venue were relatively low and as a total amount was just over £50. Although it did not state against each entry in the bank statements what was bought (except for the Kebab venue) it was a reasonable assumption on the balance of probability that it was related to the purchase of alcohol but who then consumed that alcohol could not be deduced from the bank statements. The Panel did note Ms A’s comment in her oral evidence to the Panel that she could not recall being told by others that Ben had brought her drinks. She did say that when it comes to buying drinks ‘what I would usually do is buy one on one with the other. I do not recall though’.
66. Assessing the above evidence and information the Panel took the view that Ms A on the balance of probability was very intoxicated.
67. The Panel having considered these aspects of paragraph seven considered the remaining sentence ‘She was too intoxicated to be able to consent to any form of sexual activity’. Here, again the Panel considered the wider and available evidence and information, written, digital and live testimony in the round and draw upon its conclusion above concerning whether Ms A was very intoxicated incorporating it into its overall considerations concerning intoxication and assessed against the legal advice it had been provided concerning capacity and consent [R v Kamki [2013] EWCA Crim 2335 at 18:]

1. "A person consents if he or she agrees by choice and has the freedom and capacity to make that choice,
2. When a person is unconscious, there is no such freedom or capacity to choose,
3. Where a person has not reached a state of unconsciousness and experiences some degree of consciousness, further considerations must be applied, 
4. A person can still have the capacity to make a choice and have sex even when they have had a lot to drink (thereby consenting to the act),
5. Alcohol can make people less inhibited than when they are sober and everybody has the choice whether or not to have sex,
6. If through drink a woman has temporarily lost the capacity to choose to have sexual intercourse, she would not be consenting, 
7. Before a complete loss of consciousness arises, a state of incapacity to consent can nevertheless be reached. Consideration has to be given to the degree of consciousness or otherwise in order to determine the issue of capacity, 
8. In this particular case, the jury would have to consider the evidence of M to determine what her state of consciousness or unconsciousness was and to determine what effect this would have on her capacity to consent,
9. If it is determined that the complainant did have the capacity to make a choice, it would then have to be considered whether she did or may have consented to sexual intercourse". 

68. In determining Ms A’s state of consciousness versus unconsciousness and to determine what effect this had on her capacity to consent. Ms A’s evidence throughout her initial disclosure, VRI and oral evidence was only that she could not recall anything after ISAACs. In considering the test in Kamki [2013] [Para18] at (f) If through drink a woman has temporarily lost the capacity to choose to have sexual intercourse, she would not be consenting. The Panel combined its determination on intoxication with evidence indicating that Ms A was capable of making decisions and undertaking activity that infers as such right up to returning to her home with the former officer. Here the Panel took the view that Ms A appeared to be capable of operating her phone by taking a photo of cocktails whilst in The Botanist and posting it on her social media account. Ms A made a decision to purchase food, sometime later, in the evening’ as evidenced by her Bank Statement before getting in the taxi and going home. She texted / spoke to her partner Person T and although he stated she was slurring her words and he thought she was drunk; she had been capable of operating her phone to text / ring him. She also took a photo of ‘cheesy chips and the photo date and time stamped [redacted] (page 064). She had the ability to find a taxi get in it and provide information to the driver of her destination. On arriving at home, she sent a photo of her bedroom to her partner Person T saying she was home (page 018).

The Panel considered the evidence of Officer Y in respect to disclosure by Ms A sometime after the 28^th / 29^th April. In her statement she stated Ms A said ‘“She stated she had left with PC HART, and they had sex that night. She confirmed they had sex; she did not seem upset. She did not disclose any concerns, nor did she make any comments to make me concerned about consent.”

The Panel considered the statement from Officer S (page 172) [redacted] who stated ‘At some point following the night out I have received a phone call from [Ms A] where she stated that she had woken up at home and found Ben in her bed. She went onto say that she had found a condom but couldn’t remember what had happened when the pair of them had gotten home. [Ms A] sounded confused on the phone whilst she was telling me this information. Had [Ms A] disclosed to me any allegation of rape or state that Ben had forced himself on her then I would have disclosed this information to a supervisor.”

Accordingly, the Panel took the view that there was evidence of Ms A’s ability to function (albeit intoxicated) on the night.

The only direct evidence available to the Panel about consciousness/ unconsciousness or temporary through drink, outside of Ms A being able to provide evidence other than she could not recall, was that of the former officer and that of Person T stating received the photo of her bedroom (I’m home).

Having considered all of the above the Panel determined that on the balance of probability Ms A was not too intoxicated to be unable to consent to any form of sexual activity. There was no cogent evidence to indicate a loss of consciousness, whether temporary or otherwise on behalf of Ms A.

 

Credibility

69. Here the Panel took the view that, whilst it understood the former officer had a vested interest in self-preservation as presented by Mr Holdcroft in his submissions, his evidence was detailed and consistent. His criminal interview (page 066) saw him answer all the questions put to him. Despite having resigned from the police in April 2024 he attended the hearing and provided oral evidence to the Panel. That evidence was again consistent. He was subjected to cross examination and his evidence tested and challenged. [Redacted] He provided an answer to the questions put to him by the AA and when asked the direct question from the Panel about what were the factors he considered that made him believe Ms A was engaged and consenting beyond the detailed account of activity he described in his criminal interview in December 2023, he did so spontaneously and free flowing setting out why he believed she was capable of consenting and was consenting.

The Panel in assessing the answers of the former officer was invited by Mr Holdcroft to consider Painter v Hutchinson[2007] EWHC 758 (Ch)2 at [3] where Lewison J set out a list of behaviours that may indicate a witness is not providing credible evidence in its assessment of the former officer. This was in addition to Mr Holdcroft’s observations concerning assessing credibility where he drew (largely) from S.A(The Ocean Frost) [1985]3 WLR 640, Sean Thornton v Northern Ireland Housing Executive [2010]NIQB 4 and Gestmin SGPS v Credit Suisse (Uk) ltd [2013] EWHC 3560.

On Painter [2007],  the Panel considered carefully Mr Holdcroft’s closing submissions and went back over the former officer’s live testimony. Whilst the Panel noted Mr Holdcroft’s cross examination and submissions on the lack of bank records or phone statements from the former officer in moving heaven and earth to provide any and everything to assist the investigation conclude his account was correct, and the Panel understood as did the former officer Mr Holdcroft’s view on it, the Panel was not persuaded that the former officer’s testimony over all displayed the behaviours set out in Painter [2007] to any great degree. In fact the Panel considered the former officer had not demonstrated evasive and argumentative answers through any of his questioning, not avoided questions or provided tangential speeches, not been self-contradicting or provide a substantially shifting case and was consistent in his evidence.

On Mr Holdcroft’s invitation concerning Painter [2007] the Panel did not consider former officer Hart’s response to the question concerning ‘what would be best evidence’, when he replied, a toxicology report, was argumentative. It did not agree with the proposition that it was clever and sarcastic, he was a serving police officer up until April 2024 and in responding to the question ‘what’s the best evidence’, it was. The Panel concluded a reasonable response from a police officer who is trained and understands evidence.

On the non-provision of the Bank records and phone records whilst the Panel was surprised the former officer did not do more than he did to try and secure them and understood Mr Holdcroft’s point, the Panel saw that it is the AA who would have the responsibility to follow the principals set out in the CPIA legislation not the accused and it is for the AA to prove the case not for the accused to prove innocence. In any case the Panel has to make its determination of the evidence available and before it and it is pure speculation as to whether the content of any bank statements or phone records may have pointed towards or away from what the allegations are.

On the other aspects of Mr Holdcroft’s closing submissions towards credibility and assessing the evidence of the former officer, they were considered by the Panel and the Panel took the view that they were individually minor and even if aggregated the Panel was not persuaded.

[Redacted]. In then considering his ability to recall the events in Ms As home in detail and his explanation to the Panel as to why he thought and believed Ms A was consenting and capable of consent the Panel took the view that he was not so affected by alcohol that his account and recall was in wild speculation

The Panel also considered the credibility of Ms A’s evidence and her reliability. [Redacted] Whilst she was consistent in her accounts concerning being unable to recall there were examples where the statements of others did not corroborate her initial account and VRI. An example being when asked had she spoken with anyone about it she stated she had not but then changed that to one person [Person P] but the Panel recognised the statement of Officer Y and her evidence. Overall and more significantly Ms A’s principal evidence was that she could not recall what happened.

Overall, when considering the evidence from the former officer and Ms A having overlayed it with the statements of others and all of the information in the case papers the Panel preferred the evidence of the former officer.

70. In considering paragraph seven in its entirety and in all the circumstances set out above the Panel concluded on the balance of probability that notwithstanding the consumption of alcohol and her level of intoxication Ms A had capacity and did in fact freely choose to engage in sexual activity with the former officer. Here the Panel concluded that set against the R V Kamki [2013] Para 18 points (c), (d) and (e) it was more likely than not Ms A was interested in sexual activity with the former officer as could be seen by the way they behaved together earlier in the evening and that ‘I would not have wanted that’ does not, as Ms Hill invited the Panel to consider, preclude consenting in the moment:-she was conscious, had choice and freedom.
71. The Panel therefore found on the balance of probability that paragraph seven was not proved.

 

Regulation 30: Paragraph 8

In September 2023 the Officer sent unwelcome sexually inappropriate messages to PC B, [Redacted]

72. In relation to this matter, the Panel considered that there was ample evidence of the former officer sending the social media messages and engaging in an exchange with PC B. As evidenced by PC Bs statement, the screen shot and his admissions (page 229 -236). The Panel then turned its attention to the element of paragraph eight that stated that they were unwelcome sexually inappropriate messages. Here, the Panel noted the evidence of PC B when under cross examination she was asked by Ms Hill ‘do you believe at the time it was sexual?’ PC B replied ‘At the time not sexual’ Ms Hill immediately asked the following question’ Lighthearted banter?’ PC B replied, ‘At the time correct’. Ms Hill ‘No sexual overtones?’  Response ‘absolutely not’. Ms Hill then turned to the movement onto the snapchat platform, PC B stating, ‘I didn’t feel uncomfortable at the time’.
73. In any event the Panel noted the only comment PC B stated she was concerned about was the ‘be a good girl don’t tell anyone’ comment referenced in paragraph 10 associated with this incident to which she said ‘I did not appreciate it’.
74. [Redacted] However, the Panel then carefully and line by line examined the entire screen shot message sequence conversation between the former officer and PC B. It did so noting PC Bs confirmation that at the time she was a willing participant engaged in what, at the time she considered to be light hearted banter. In reading the exchange and placing [redacted] back into the full conversation the Panel concluded that it was reasonable to conclude that it was in context of an innocent exchange. The opening exchange was by the former officer in response to a ‘story’ posted by PC B about her baking cakes. ‘There’re quite impressive’, PC B responds, it continues about the cakes and the former officer asks to save one and introduces that he is on leave. PC B then asks doing anything fun. The Panel took this to mean PC B had picked up on him saying he was away and considered her reply to him ‘Doing anything fun’ as a natural and obvious response amongst colleagues who work together.
75. At the same time the former office picks up on PC B stating she will not be at the station anymore as he responds to that and her question about doing anything fun and introduces his holiday to Cyprus. The exchange continues thereafter in a mixture about her starting a new station and her concerns and his holiday.
76. Having then viewed the paragraph eight extract [redacted] in the totality of the exchange the Panel concluded that it could be equally capable of being an innocent exchange [Redacted]. The Panel then considered the former officers consistent evidence denying that it was anything other than banter between colleagues reciprocating the same energy in the conversation between the two of them. [Redacted]
77. Considering all the evidence in the round and placing the extract in the paragraph back into context the Panel concluded on the balance of probability that it was not an unwanted sexually inappropriate message. Therefore, the Panel found the fact not proven.
78. Accordingly, the Panel finds on the balance of probability that paragraph 8 is not proved.

 

Regulation 30: Paragraph 9

Following this the Officer sent further unwanted videos to PC B including:

1. Of his bedroom, and
2. Images of his legs wearing a tracksuit whilst lying on his bed.

PC B believed these were intended to be sexually suggestive.

79. In relation to this matter, the Panel noted his acceptance in his regulation 31 response (p261) of sending an image of him lying on the sofa in his tracksuit bottoms and that he stated that the image was accompanied by words along the lines of: “I cannot wait to swap crap British weather and tracksuit bottoms for sun beds and swim shorts.” He didn’t accept that this was sexually suggestive. On the sending of a video the former officer as per Ms Hill’s closing note accepted sending a video but of him lying on his sofa not in his bedroom. PC B in her evidence accepted she could not be sure it was a video of his bedroom (she had assumed it was) and that she no longer had the video / image as it was on the snapchat platform and had self-deleted. PC B also stated that there had not been any previous reference in their previous conversations that had related to his bedroom. She also stated that she had friends that send similar pictures and videos whilst in their bedroom. ‘I did not think anything of this at the time’. But now I have had time to think about this it was a strange thing to do for someone who barely knew me’ In respect to the image showing him lying on his sofa clothed in what looked like tracksuit bottoms she said ‘I took a glance at the picture but did not take a lot of notice… assumed it was sent to a group of people…. A random picture… looking back I do not understand why he would have sent this to me’
80. The Panel took the view that there was some material inaccuracy about the location of the video but that the officer accepted sending a video regardless and therefore concluded that he had sent a video, and an image as set out. However, in respect to be being unwanted the Panel found no evidence of it being unwanted as both PC B and the former officer were already engaged in an exchange. Turning to the fact that PC B believed these were intended to be sexually suggestive the Panel considered her statement where she said ‘I did not respond to any of the snap chat messages due to my own growing concerns and the advice of my [person’s title redacted]. Looking back, I consider that the pictures and video he sent to me were strange. Based on the messages and images received I realised that Ben had taken our contact as being sexual. This is not something I wanted’. (page 227). Set against this the Panel observed that there was no physical evidence of the image and video for it to consider itself due to snapchat’ self-deleting. The Panel considered the evidence of the former officer (her repeated assertions that at the time she did not consider them sexually inappropriate) and also took note of PC Bs retrospective considerations on an image following a conversation.
81. Considering the accounts set out above and the totality of the evidence concerning the exchanges between the former officer and PC B the Panel concluded that on the balance of probabilities the former officer did not intend them to be sexual in nature regardless of PC Bs belief as set out in the paragraph. Accordingly, the Panel finds on the balance of probability that paragraph 9 is not proved.

Regulation 30: Paragraph 10

The Officer later sent a message to PC B to the effect of ‘Be a good girl, don’t tell anyone.’

82. In relation to this matter, the Panel had in its mind that this message has not been captured in any way. The former officer denies sending it. It was put to PC B that could she have been confused with the message she sent (p232) ‘I won’t say anything if you don’t’. She denied this. The Panel also noted the similarity in terminology and in particular to the term ‘good girl’(P232) used by the former officer in the messenger text exchange and the terminology used bears similarity to the alleged ‘Be a good girl, don’t’ tell anyone’. Ultimately, the Panel was left with PC B’s word against the former officer’s denial that the message was sent. The Panel accept Mr Holdcroft’s submission that PC B has no personal axe to grind and the obvious and sensible reason for discussing this interaction with her [person’s title redacted] is that she was becoming concerned about the messages.
83. Accordingly, the Panel determined that on the balance of probabilities the message was sent in the terms alleged and therefore proven.

Decision on Facts

84. The Panel determined that on the balance of probability that whilst the background facts in the regulation 30 notice (Para 1-5) were proved and it noted a position on Paragraph 6. None of the facts in paragraph 7,8,9 were proved. However, the Panel proved the facts in Paragraph 10.

 

Stage 2- Has former PC Hart breached all or any of the standards of Professional Behaviour?

Assessment of Conduct

85. The Panel having come to its determination that only paragraph 10 was proved turned its attention to the particulars of the alleged misconduct concerning:

Authority, Respect and Courtesy

Equality and Diversity

Discreditable Conduct

86. The Panel set about testing its finding on Paragraph 10 against each of the alleged breaches. In doing so it concluded that Authority, Respect and Courtesy (v) Your conduct had the effect of violating the dignity or creating an intimidating hostile, degrading, humiliating or offensive environment for PC B

And

Equality and Diversity (ii) Conduct which had the effect of violating the dignity or creating an

Intimidating, hostile, degrading, humiliating or offensive environment for PC B were both engaged.

 

Stage 3: Do any proven breaches constitute misconduct, gross misconduct or neither?

87. Having found the allegation at para 10 proved, the Panel went on to consider whether former PC Hart’s actions amounted to misconduct or gross misconduct or neither.
88. Under Regulation 2(1)

Misconduct is defined as a breach of the Standards of Professional Behaviour that is so serious as to justify disciplinary action.

Gross misconduct is defined as a breach of the Standards of Professional Behaviour which is so serious as to justify dismissal.

89. The Panel concluded that the single proven conduct and the content of the message sent in isolation, had overtures of misogyny and had the effect of violating the dignity of PC B.
90. However, on examination of the definitions of misconduct and gross misconduct and noting that PC B found the message and its contents such that she did not appreciate it, the Panel nevertheless concluded that this single proven event and the language used within the snapchat message itself, did not meet the definition of being so serious as to justify disciplinary action.
91. The Panel therefore concluded that it was neither misconduct or gross misconduct and as a former officer hearing this determination brings the proceedings to a close.

[Administrative matters redacted]

 

ACC N Davison (CHAIR)

19/02/2025