K, R (on the application of) v Chief Constable of Lancashire Police

Under Regulation 13 of the Police (Conduct) Regulations 2004, a chief constable may dispense with a probationary constable’s services where the primary facts are sufficiently clear and the issue is chiefly one of judgment and inference. Formal disciplinary proceedings are required where there is a significant conflict about primary facts or the nature of the alleged misconduct. It is not enough that the conduct could also be framed as a disciplinary offence. Regulation 13 is not unlawful merely because it uses general language. Where admitted conduct plainly falls outside acceptable conduct, its application is sufficiently foreseeable for Article 8 purposes.

The applicant, a probationary police constable, challenged the Chief Constable’s decision to dispense with his services under Regulation 13 of the Police (Conduct) Regulations 2004. The decision followed admitted sexual activity with a woman who had been drinking, in the presence of another man, and the filming of the events. The applicant denied that the conduct was wrongful and contended that disciplinary proceedings should have been used instead, with additional procedural safeguards.

Elias J dismissed the judicial-review claim. He held that the primary facts were sufficiently clear for Regulation 13 and that the provision was sufficiently certain for any interference with Article 8 rights to be prescribed by law. The Court of Appeal considered the renewed application for permission to appeal.

1. Application refused. The Chief Constable had been entitled to proceed under Regulation 13 rather than institute formal disciplinary proceedings.
2. Regulation 13 is appropriate where there is no substantial conflict about the primary facts and the nature of the alleged misconduct. Formal disciplinary proceedings are required where there is a significant conflict of fact.
3. The matters relied on by the applicant as disputed were matters of judgment and inference, rather than primary fact. On his own account, the facts were sufficiently clear to support the inferences that the woman was vulnerable and that his conduct was exploitative. The Chief Constable was entitled to regard the applicant as having shown poor judgment and to take account of his continuing view that he had done nothing wrong.
4. There is no rule that disciplinary proceedings must be brought whenever conduct could be characterised as a disciplinary offence.
5. Article 8 was engaged because the decision relied on private sexual activity. Any interference had to be prescribed by law, requiring sufficiently clear rules. On these facts, any reasonable probationer would recognise that the conduct might justify dispensing with his services. The Article 8 argument therefore failed.

The renewed application for permission to appeal was refused.

• High Court of Justice, Queen’s Bench Division, Administrative Court: Elias J refused judicial review of the Chief Constable’s decision to dispense with the applicant’s services under Regulation 13.
• Court of Appeal (Civil Division): on a renewed application for permission to appeal, permission was refused.