Barwise, R (on the application of) v Chief Constable of West Midlands Police

A police constable’s office may be terminated only under applicable statutory or subordinate legislative provisions. A power permitting retirement on notice does not authorise a chief officer to treat absence or conduct as an implied notice of retirement, or to terminate the office on alleged misconduct or inefficiency outside the prescribed procedures. Where unlawful conduct is established on judicial review, relief should ordinarily be granted. Refusal of relief on the basis of the claimant’s conduct is exceptional, particularly where the relevant facts remain disputed.

The claimant, a police constable, challenged the Chief Constable’s decision that he had ceased to hold office after a lengthy period of sickness absence, non-attendance at occupational health appointments and residence in Spain. The Chief Constable relied on regulation 14 of the Police Regulations 2003 and the Secretary of State’s determination concerning retirement. The claimant argued that the decision was in substance a dismissal for absence or misconduct and could be made only under the statutory conduct, efficiency or medical-retirement procedures. The issues were whether regulation 14 authorised the decision and, if not, whether relief should nevertheless be refused in the court’s discretion.

1. Claim succeeded. The Chief Constable had acted unlawfully in purporting to terminate the claimant’s office.
2. The office of police constable could be terminated only in accordance with duly enacted statutory or subordinate legislative provisions. Regulation 14 of the Police Regulations 2003 provided that retirement occurred in circumstances determined by the Secretary of State. It did not itself create a general power to dismiss a constable.
3. The Secretary of State’s determination contemplated a member giving the police authority one month’s written notice of an intention to retire, or the authority accepting a shorter period of notice. It did not cover a case which was essentially an allegation of misconduct or inefficiency followed by termination. The claimant’s conduct could not be treated as implied notice of retirement accepted by the authority.
4. The existence of statutory procedures for conduct, efficiency and medical retirement reinforced that conclusion. The defendant could not avoid those procedures by characterising the claimant’s conduct as repudiation accepted at common law.
5. Although judicial review relief is discretionary, it should be refused after unlawful conduct only in exceptional cases. The claimant’s status was not academic because financial consequences could follow. The alleged misconduct was fact-sensitive and disputed, so it was inappropriate to refuse relief on conduct grounds without determining the underlying facts.
6. A declaration was granted and damages were ordered in the appropriate sum, with costs assessed at £7,000.