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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Victor, R (On the Application Of) v Chief Constable of West Mercia Police [2023] EWHC 2119 (Admin) (18 August 2023) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2023/2119.html Cite as: [2023] WLR(D) 379, [2023] EWHC 2119 (Admin), [2024] ICR 109 |
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KING'S BENCH DIVISION
ADMINISTRATIVE COURT
33 Bull Street, Birmingham, B4 6DS |
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B e f o r e :
____________________
THE KING on the application of ALICE VICTOR |
Claimant |
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- and - |
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CHIEF CONSTABLE OF WEST MERCIA POLICE |
Defendant |
____________________
John Beggs KC and Aaron Rathmell (instructed by West Mercia Police Legal Services) for the Defendant
Hearing date: 10th May 2023
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Crown Copyright ©
Mr Justice Eyre:
Introduction.
The Factual Background.
The Grounds and the Procedural History.
The Core Decision.
The Legislative and Regulatory Framework.
"gross misconduct means a breach of the Standards of Professional Behaviour that is so serious as to justify dismissal;
"misconduct, other than in regulation 23(2)(a) and the first reference to "misconduct" in regulation 23(2)(b), means a breach of the Standards of Professional Behaviour that is so serious as to justify disciplinary action;"
"an allegation comes to the attention of an appropriate authority which indicates that the conduct of a police officer may amount to misconduct, gross misconduct or practice requiring improvement."
(2) The disciplinary action available at a misconduct meeting is
(a) a written warning;
(b) a final written warning.
(3) The disciplinary action available at a misconduct hearing is
(a) where the person conducting or chairing the misconduct proceedings decides the conduct of the officer concerned amounts to misconduct, in accordance with regulation 41(15)
(i) a written warning;
(ii) a final written warning;
(iii) reduction in rank, where paragraph (5) or (6) applies;
(iv) dismissal without notice, where paragraph (5) or (6) applies;
(b) where the person conducting or chairing the misconduct proceedings decides the conduct of the officer concerned amounts to gross misconduct, in accordance with regulation 41(15)
(i) a final written warning;
(ii) reduction in rank;
(iii) dismissal without notice.
"The purpose of the police misconduct regime is threefold:
- maintain public confidence in and the reputation of the police service
- uphold high standards in policing and deter misconduct
- protect the public."
"2.10 Misconduct proceedings are not designed to punish police officers. As stated by Lord Justice Laws in Raschid v General Medical Council 'The panel then is centrally concerned with the reputation or standing of the profession rather than the punishment of the doctor.'
2.11 The outcome imposed can have a punitive effect, however, and therefore should be no more than is necessary to satisfy the purpose of the proceedings. Consider less severe outcomes before more severe outcomes. Always choose the least severe outcome which deals adequately with the issues identified, while protecting the public interest. If an outcome is necessary to satisfy the purpose of the proceedings, impose it even where this would lead to difficulties for the individual officer."
"1.1 Everyone in the police service, and leaders in particular, must maintain high ethical and professional standards and act with the utmost integrity. This is crucial in ensuring public confidence in the service is maintained.
1.2 It is essential that the public is confident that police vetting processes are effective in identifying those who pose a potential risk to others or who are otherwise unsuitable for working within the police service.
1.3 Vetting is an integral part of a police force's framework of ethics and professional standards. It assists with identifying individuals who are unsuitable to work within the police service, or to have access to police assets. This includes people who are unsuitable through criminal activity or association, those who have a demonstrable lack of honesty or whose previous behaviour has been inconsistent with the Code of Ethics, and those who are financially vulnerable."
"Principle 1
In applying vetting, practitioners will comply with the requirements of this Code and the Code of Ethics. Each case must be treated on its own merits.
Principle 2
Everyone working in a police environment will be vetted to the requisite level. This includes those who: have unrestricted or unsupervised access to police information, assets or estates have access to force or national police systems, be that directly or remotely act as a representative of the police service have the power to make or significantly influence strategic decisions in the police service, and includes members of partner agencies.
...
Principle 4
Police vetting should comply with the standards laid out in APP on Vetting.
...
Principle 6
Decision-making in respect of vetting clearance should be separate from, and independent of, recruitment and other human resources processes. There should be an effective working relationship between vetting and professional standards departments.
..."
"Everyone within, working alongside or delivering service on behalf of the police service must maintain high ethical and professional standards, and must act with the utmost integrity. They must also be seen to maintain and promote such standards. A thorough and effective vetting regime is a key component in assessing an individual's integrity. It helps to reassure the public that appropriate checks are conducted on individuals in positions of trust. Vetting also identifies areas of vulnerability that could damage public confidence in a force or the wider police service."
"3.1 Vetting is conducted in the police service to help identify, assess and manage risk relating to areas including, but not limited to: protection of police assets; national security; public safety; public confidence; protection of organisational assets; operational safety; leadership; corruption and coercion; integrity"
"3.2 Vetting clearances must be granted before an individual is appointed, employed or otherwise authorised to access police premises or information that is not in the public domain. This is because the vetting process can uncover information that shows the individual is unsuitable to be appointed, employed or otherwise given unsupervised access to police assets."
"There are two vetting regimes in the police service:
force vetting designed to protect police assets
national security vetting (NSV) designed to protect government assets"
"6.1.1 There are three levels of force vetting applicable to the police service: non-police personnel vetting; recruitment vetting; management vetting;
6.1.2 Force vetting levels are applied to all individuals who require unsupervised access to police assets (including information, systems or premises). Some of these individuals also require access to GSC information. Where this is the case, the appropriate level of NSV is applied.
6.1.3 Individuals who are not required to have unsupervised access to police information, systems or premises do not require force vetting clearance.
..."
"RV is the minimum level of check acceptable for police personnel to be allowed unsupervised access to police assets, estates and information...."
"RV clearance, preceded by authentication, allows regular access to police assets up to OFFICIAL-SENSITIVE and occasional access to SECRET. The RV process should be completed after the applicant has passed all other assessment criteria, such as assessment centres and interviews. In all cases, clearance must be processed and a decision must be reached as soon as reasonably practicable."
"Forces should check content on publicly available social media sites for the purposes of service reputational reassurance, and to ensure that the applicant's online behaviour is compatible with the Code of Ethics or Standards of Professional Behaviour.
- The applicant must use social media responsibly and safely.
- The applicant must not have published anything that could reasonably be perceived by the public or by policing colleagues to be discriminatory, abusive, oppressive, harassing, bullying, victimising, offensive or otherwise incompatible with policing principles.
- The applicant must not have published, or offered to publish, any material that might undermine their reputation or that of the policing profession, or might run the risk of damaging public confidence in the police service."
"In assessing information and intelligence revealed as part of the vetting process, forces should apply a two-stage test.
1. Are there reasonable grounds for suspecting that the applicant, a family member or other relevant associate: is or has been involved in criminal activity; has financial vulnerabilities (applicant only); is, or has been, subjected to any adverse information
2. If so, is it appropriate, in all the circumstances, to refuse vetting clearance?"
"8.46.1 Vetting clearances can be refused or withdrawn at any level.
8.46.2 Where RV clearance is withdrawn, consideration must be given to whether the identified risk(s) can be mitigated by placing conditions on clearance and/or using close supervision. When an MV is withdrawn, consideration must be given to alternative deployment to a role where the withdrawn clearance level is not required. In such circumstances, assessment must also be made in respect of the subject's continued suitability to hold RV clearance.
"
"8.47.1 Where vetting clearance is withdrawn or refused on renewal for existing personnel, a different process will need to be followed for police officers and police staff. If vetting clearance is refused at RV, unsupervised access to police assets, including premises, information and systems, cannot be granted. IF MV clearance is withdrawn, consideration must be given to whether RV clearance can be granted.
8.47.3 The ERA does not apply to police officers or special constables. Therefore, when clearance is withdrawn and suitable alternative employment cannot be identified, and/or the risk cannot be reasonably managed, the force should consider proceedings under the Police (Performance) Regulations 2020.
8.47.4 When a police officer's or special constable's RV clearance is withdrawn, they will be unable to access police information and systems. Unsupervised access to police premises will also not be permitted. As a result, the police officer will be unable to perform their role to a satisfactory level. This could, therefore, amount to gross incompetence and a third-stage meeting should be considered.
8.47.5 In cases where RV clearance is withdrawn and the risk cannot be managed, the matter should be referred to HR for progression."
"Following the conclusion of a misconduct hearing or meeting where the officer, special constable or member of staff is not dismissed but has been issued with a written warning or a final written warning, a review of vetting clearance should be carried out. The review includes a consideration of the applicant's suitability to maintain the level of clearance held and to continue in the post they occupy."
"Subject to the provisions of this regulation, during his period of probation in the force [ the services of a constable, [DE inspector, DE superintendent or rejoiner member] ] may be dispensed with at any time if the chief officer 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, [DE inspector, DE superintendent or rejoiner member] ]."
"4.87 Probationary officers are subject to the procedures concerning investigations and disciplinary proceedings. The chief officer has discretion whether to use the disciplinary procedures or the procedures set out at Regulation 13 of the Police Regulations 2003 (Discharge of probationer) as the most appropriate means of dealing with a misconduct matter.
4.88 Particular consideration should be given to allegations of gross misconduct which ordinarily should be subject to disciplinary proceedings rather than the Regulation 13 route.
4.89 However, where allegations of misconduct (rather than gross misconduct) are made, the chief officer may instead consider whether the circumstances of the matter merit consideration under Regulation 13 rather than under misconduct procedures. In exercising this discretion due regard should be given to whether the student police officer admits to the conduct or not. Where the misconduct in question is not admitted by the student police officer then, in most if not all cases, the matter will fall to be determined under the misconduct procedures.
4.90 Whilst an officer who had passed probation may have been subject to a misconduct meeting in such circumstances and would unlikely face dismissal (unless they are facing multiple counts or had existing warnings in force) the chief officer may determine that a potential breach amounting to misconduct during a probationary period would demonstrate that the officer is not fitted to become an efficient or well conducted constable, inspector or superintendent."
The Lawfulness of the Vetting Decision: the applicable Principles.
"At the end of the day, the last sentence of Condition 7 will, in my judgment not bear the weight which the judge attached to it. First, if there was force in the point, one would expect to find the embargo on probationer's dismissal spelt out in the Standing Orders or General Conditions. Second, this is reinforced by the wording "This procedure would not apply " accurate to describe the situation of separate procedures rather than words of prescription such as "This procedure must not be used." Third, where the offence is admitted, there will be many cases where it would be contrary to good administration to go by the disciplinary route. The probationary period is there to discover and deal with fundamental unsuitability of outlook or temperament or behaviour. Each of these might manifest themselves in misconduct, but would in most cases be more appropriately resolved under the probationer's dismissal procedure, concerned as it is, not so much with individual charges, as with fundamental questions about whether the probationary police constable is fitted to perform the testing duties required of the police. Fourthly, the cases of Evans and Carroll each show that, in what I might call mainstream policing, where the Police Regulations apply, it has never been suggested that there is no discretion to proceed by the probationary dismissal procedures where misconduct such as might be prosecuted under the disciplinary process is charged. It would be a curiosity if such a rule did not apply to those more formalised probationary dismissal procedures, but did apply to the BTPF procedure on the strength of the plainly ambiguous last sentence of Condition 7."
"In conclusion, there are two separate dismissal procedures which govern probationers. The decision which to use is a decision for the employing force. Where the facts founding the complaint are not admitted, in most if not all cases the decision is likely to be that the question whether the charge is proved or not proved be decided under the disciplinary procedures."
"In my judgment, Parliament cannot have intended that in a case of misconduct which, as in a case such as the present, led to a dismissal, a police force can choose to bypass the 2008 Regulations, specifically issued to lay down appropriate procedures and safeguards for police officers, including Special Constables, in cases of misconduct."
"Furthermore, the two procedures are concerned with different issues. The misconduct procedure is concerned with allegations that an officer has been guilty of misconduct as defined in Sch.1 to the Conduct Regulations. The reg.13 procedure, by contrast, is concerned with the question whether a probationary constable is not fitted to perform the duties of office of constable or ''is not likely to become an efficient or well conducted constable''. Those questions, especially the latter, are capable of raising much wider issues than misconduct. Nevertheless, it would be quite extraordinary if actual misconduct could not be taken into account in making a reg.13 assessment when other, lesser, matters could be. Nor does it matter that misconduct proceedings were considered and then dropped because the issues involved in the two types of proceeding are essentially different. In these circumstances, I am of the opinion that the decision of the chief constable as to whether to proceed under reg.13 cannot be constrained by any decision not to proceed to a misconduct hearing. In summary, two different decisions are involved, which are made for different purposes by different individuals and which may involve consideration of different material. On that basis, the decision to proceed by way of the reg.13 procedure cannot be challenged."
" Specifically, the crucial question would appear to be whether in the specific circumstances of the case the respondent was entitled to reach a determination under reg.13 that the petitioner should be discharged from his appointment as a probationary constable without giving the petitioner the opportunity of a formal hearing involving the right to legal representation, the leading of evidence as to the allegations against the petitioner, cross examination of the witnesses giving such evidence, and the right to lead evidence on the petitioner's behalf. "
" I agree that in cases where there is a dispute of primary fact the misconduct procedure is likely to be the norm. In some cases, however, there may be sufficient uncontroversial factual material that a decision under the reg.13 procedure can properly be made even though other matters remain in dispute. That is I think clearly implicit in the tests adopted by Elias J in Khan and Silber J in Kay. On the basis of those tests, with which I respectfully agree, the critical question becomes whether the conflict over the primary facts is sufficiently great to make it unfair for the chief constable to make use of the standard reg.13 procedure rather than giving the probationary constable the protection available under the Conduct Regulations. In all cases, however, it is essential to determine precisely what the material is that is to be relied on for the purposes of the reg.13 procedure, and to ensure that there is no dispute of fact in that material that could render the standard reg.13 procedure unfair."
The Lawfulness of the Vetting Decision: Discussion.
Factors supporting the Claimant's Analysis.
Factors supporting the Lawfulness of the Vetting Decision.
"The statutory regime cannot be taken to envisage that, if a police force is dissatisfied with the outcome of a misconduct procedure, it can try its luck through an alternative avenue"
Conclusion on Lawfulness.
Rationality
The Applicability of Section 31(2A) of the Senior Courts Act 1981.
Conclusion.