Case No: C1/2009/0467
Neutral Citation Number: [2009] EWCA Civ 1197
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE ELIAS)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 24th June 2009

Before:

LADY JUSTICE SMITH

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	The Queen on the Application of 
“K” 	

Appellant 	
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THE CHIEF CONSTABLE OF 
LANCASHIRE POLICE	

Respondent	

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Mr H Southey (instructed by Messrs O’Donnells) appeared on behalf of the Appellant. .
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
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Judgment
Lady Justice Smith:

1.	This is a renewed application for permission to appeal the decision of Elias J, as he then was, when he refused an application for judicial review made by Asfan Khan against the decision of the Chief Constable of the Lancashire Constabulary to dispense with his services pursuant to Regulation 13 of the Police (Conduct) Regulations 2004.  

2.	In early 2007 the applicant was a probationary police constable.  The following is the applicant’s own account of the events which led to the decision to dispense with his services.  On 27 March 2007, while off-duty, the applicant and a friend of his met a young woman in a bar.  The woman had been drinking alcohol.  The two men went with her to her room in a student hostel, where the applicant had vaginal and anal intercourse with her.  The other man also had intercourse with her in the presence of the applicant.  The events were filmed and recorded using a mobile telephone. At some stage, the other man asked the woman to say that she was not drunk; she said it and that was recorded.  The film and recording were later downloaded onto the applicant’s computer.  After the intercourse had taken place, the two men took the woman back to a bar.  At that time she was, according to the applicant, a bit unsteady on her feet.  

3.	The applicant telephoned her the following day, saying that he had had a good time but that he did not wish to pursue a relationship with her.  He refused to give his telephone number when she asked, and he later explained that that was because he did not wish her to pester him.  
4.	The woman made an allegation of rape, to the effect that she believed that the men had had intercourse with her while she was in a drunken sleep.  Being asleep, she could not consent.   That allegation was investigated by the police.  The applicant was interviewed.  He explained that he had indeed had intercourse with the woman, but denied rape.  He admitted that the woman was “totally merry”, but said that she was not “totally bladdered”.  He produced the recording of the event; the film made it plain that the woman had indeed consented to intercourse.  Also, blood and urine tests showed that the woman had not been excessively drunk at the time.  The police decided, very properly, not to press the charge of rape.

5.	Shortly after that decision had been taken, a notice pursuant to Regulation 9 of the (Conduct) Regulations was issued.  This indicated that the applicant was to face a disciplinary charge of conduct likely to bring the Police Service into discredit. However, that charge was not proceeded with.  Instead, the Chief Constable decided to proceed under Regulation 13, which provides as follows: 

“(1) Subject to the provisions of this Regulation, during his period of probation in the Police Service the services of a constable may be dispensed with at any time if the Chief Constable considers that he is not fitted, physically or mentally, to perform the duties of his office, or that he is not likely to become an efficient or well conducted constable.”

6.	The applicant was given an opportunity to be heard.  During the hearing he contended that he had done nothing wrong: the woman was not drunk and had consented to intercourse.  It was all his own private business.  The Chief Constable decided that the applicant was not fitted mentally to perform the duties of his office and was not likely to become a well-conducted officer.  He took the view that the applicant had shown poor judgment.  In a letter dated 31 August 2007, after some introductory paragraphs, the Chief Constable said this: 

“However, during my discussion yesterday, my concerns over your lack of judgment and your abuse of a vulnerable young woman for personal gratification were confirmed.  

At yesterday’s meeting, it appeared to me that you are unable to understand that your judgment and conduct during the incident had fallen considerably short of the standards I (and the people of Lancashire) would expect of a member of Lancashire Constabulary.  

In terms of those standards, you know that all our staff are expected to ‘treat people with respect and dignity, if we are to inspire their trust and confidence’.  You palpably failed to do that on 27th March 2007, hence my decision to dispense with your services.”

7.	The applicant sought judicial review of that decision.  Before Elias J, three points were taken.  It was said that it was unfair and therefore unlawful to rely on Regulation 13.  Formal disciplinary proceedings could and should have been taken.  There the test would have been whether the applicant had behaved in such a way as was likely to bring discredit upon the police service.  That was different from whether he was likely to become an efficient and well-conducted officer.  Also, formal disciplinary proceedings would have provided the applicant with a number of procedural safeguards which were not available to him under Regulation 13.  These included the right to formal legal representation and the right to disclosure of documents.  Reliance was placed on the Home Office Circular 8/2005, which provides as follows.  At paragraph (e) to the introduction of that Home Office Circular, it is said: 
“The provision for a chief officer to dispense with the services of a constable during his or her probationary period should not be used as an alternative means of dismissing a probationer who should properly face misconduct proceedings.  Where misconduct proceedings are appropriate and justified, they should be brought; where they are not brought, a probationer should not be left with the impression that he or she has been suspected of misconduct and been given no chance to defend him or herself.”

8.	Two authorities were cited where the use of Regulation 13 had been considered.  These were R v Chief Constable of West Midlands Police ex parte Carroll (unreported, 10 May 1994), where the services of a probationary constable had been dispensed with under a predecessor to Regulation 13 in similar terms.  There were said to have been three incidents which demonstrated that the probationer was unsuitable to retain office.  It was accepted by the police that two of the alleged incidents could have been the subject of disciplinary proceedings because they amounted to allegations contrary to the disciplinary code.  The probationer strongly denied two of the allegations made against him, and contended that there was a conspiracy to harm him from within the force and the charges were untrue.  The Court of Appeal concluded that, in those circumstances it had been wrong to use Regulation 13; the probationer should have had the opportunity to go through a disciplinary proceeding and the use of Regulation 13 had been unfair.

9.	The other case was R v Chief Constable of British Transport Police ex parte Farmer (unreported, 30 July 1999).  The applicant in that case had admitted that he had committed an offence of dishonesty, helping another probationer to cheat in examinations.  His services were dispensed with under a rule similar to Regulation 13.  In that case the Court of Appeal held that it was appropriate to rely on Regulation 13 because the conduct had been admitted.  There were no primary facts in dispute.

10.	The principle which I derive from those two authorities, and which as I understand it was also derived by Elias J, is that where there is no substantial conflict as to the facts and the nature of the misconduct relied on, Regulation 13 is an appropriate route to take when considering the future of a probationer.  Where there is a significant conflict of fact, there should be formal disciplinary proceedings. 

11.	Elias J was of the view that there was no significant conflict of fact. It was admitted that intercourse had taken the presence of a third party; it was admitted that the girl had had a good deal to drink; it was admitted that the proceedings had been filmed.  The Chief Constable was entitled, in Elias J’s view, to infer that the woman had been vulnerable and to conclude that the filming of the event had been exploitative.  In Elias J’s judgment the Chief Constable had been entitled to find that the facts were sufficiently clear and that it was appropriate and fair to proceed by Regulation 13 rather than by disciplinary proceedings.

12.	On this renewed application Mr Southey pointed out the seriousness of the decision to dispense with the services of a probationary constable. It ought not to be taken lightly, and if it is possible to frame the complaints as a disciplinary offence, that should be done, so that the procedural safeguards are provided.  Further, there were here important conflicts.  There was a conflict as to whether or not what the applicant had admittedly done showed that he was unfit.  It was also submitted by Mr Southey that there was a dispute as to the extent of the woman’s inebriation and as to whether she was vulnerable.  Those issues should have been decided by a disciplinary panel, which might have come to a different conclusion.

13.	In my view, the matters on which Mr Southey claims there was a dispute are matters of judgment not primary fact. Someone would have to draw inferences from the primary facts and would have to exercise judgment about the seriousness of the admitted conduct.  In my view, the primary facts as admitted by the applicant were quite sufficient for the Chief Constable to draw the inference that the woman was vulnerable and that the applicant’s conduct was exploitative. He was entitled to form the view that the applicant had shown poor judgment.  The Chief Constable was also entitled to take into account the applicant’s entirely open attitude towards these events, namely that he had done nothing wrong.  The Chief Constable disagreed.  My view is that it is exactly the kind of judgment which Regulation 13 empowers a Chief Constable to make, on the basis of facts which were quite clear on the applicant’s own account.  I would reject as unarguable the suggestion that if it is possible to bring disciplinary proceedings that must be done, and I am entirely satisfied that the Chief Constable’s judgment was exercised on the basis of primary facts which were agreed and on inferences which he was entitled to draw.

14.	As his second ground, Mr Southey contends that the decision to dispense with the applicant’s services was a breach of his article 8 rights.  Elias J accepted that article 8 rights were engaged by the Chief Constable’s decision to base his decision to dispense with the services on the applicant’s sexual activity in a private place.  Elias J also accepted that any interference with article 8 rights had to be prescribed by law.  That meant that there had to be a proper basis for interference.  In circumstances such as the present, that meant that the rules which the probationer police constable was expected to comply with had to be sufficiently clear.  Mr Southey complained that they were not. Regulation 13 was far too vague and did not convey to the applicant what kind of misconduct or other factors would be relied upon as a ground for interference in his private life.  Elias J held that Regulation 13 was sufficiently clear.  It would be quite impossible to formulate rules which would cover the infinite variety of factual situations which could arise and could give rise to a Regulation 13 finding.

15.	I accept that there are some circumstances in which a probationer might have a legitimate sense of because his services had been dispensed with for reasons for which it had never occurred to him might be relied upon. However, I cannot accept that the facts of this case could possibly give rise to such a sense of grievance in the mind of any reasonable person considering the decision of the Chief Constable.  It seems to me here that these admitted facts plainly fall on the wrong side of any line which might be drawn between misconduct and acceptable conduct. Any reasonable probationer would, if asked, have to acknowledge that these facts are plainly the kind of conduct that a Chief Constable consider would justify the decision to dispense with his services.  So although the legal argument is an interesting one, and might well be arguable in another case, I cannot accept that on the facts of this case the argument could possibly succeed. 

16.	Accordingly, this renewed application for permission to appeal is refused.  
Order:  Application refused.