Kay, R (on the application of) v Chief Constable of Northumbria Police

Regulation 13 of the Police Regulations 2003 must not be used as an alternative to misconduct proceedings where the facts relied on are materially disputed. In such a case, fairness ordinarily requires the allegation to be determined under the disciplinary procedure, with its procedural protections. The relevant question is whether there is sufficient conflict over the facts to make it unfair for the chief officer to decide the case on the basis of undisputed primary facts. Guidance stating that probationary dismissal procedures should not replace proper misconduct proceedings should ordinarily be followed. A decision to use Regulation 13 in a materially disputed case may be both Wednesbury unreasonable and in breach of the duty of fairness.

The claimant was a probationary police constable who was accused of making a fraudulent insurance claim concerning her engagement ring. The criminal prosecution ended when the prosecution offered no evidence and a verdict of not guilty was entered. The police did not bring misconduct proceedings, but proceeded under Regulation 13 of the Police Regulations 2003. Following a hearing, the Chief Constable required the claimant to resign, relying on disputed expert evidence, her account of the photograph, and her refusal to allow her daughter to be questioned.

The claimant sought judicial review, arguing that the wrong procedure had been used, that the process was unfair, and that the decision was irrational. The central issue was whether the disputed allegations should have been dealt with under the Conduct Regulations rather than Regulation 13.

1. Claim allowed and decision quashed. The Chief Constable unlawfully adopted Regulation 13 instead of the disciplinary procedure.
2. The governing approach was derived from R v Chief Constable of the West Midlands ex parte Carroll (Unreported, 10 May 1994) and R v Chief Constable of British Transport Police ex parte Farmer (Unreported, 30 July 1999). Although an employing force has a choice between the two procedures, where the facts founding the complaint are not admitted, in most cases the question whether the charge is proved should be determined under the disciplinary procedure.
3. The relevant test was whether there was sufficient conflict over the facts relating to the alleged misconduct to make it unfair for the Chief Constable to decide the matter on the basis of undisputed primary facts. The approach in R (Khan) v Chief Constable of Lancashire ([2009] EWHC 472 (Admin)) was respectfully adopted.
4. This was a classic disputed case. There were material disputes about whether the telephone image was a photograph of a photograph, the reliability and motive of the claimant’s estranged husband, the significance of the claimant’s refusal to allow her daughter to be questioned, and the omission of a digital camera from an inventory. Those issues required scrutiny under the Conduct Regulations, where legal representation and other safeguards were available.
5. The guidance in Home Office Circular 8/2005 stated that probationary dismissal should not be used as an alternative to proper misconduct proceedings. Such guidance should be followed unless there is good reason to depart from it. No such reason existed. The failure to hold disciplinary proceedings was both Wednesbury unreasonable and a breach of the duty of fairness.
6. The apparent-bias and irrationality issues were academic. The court made clear that the claimant was entitled to a declaration that the decision to dispense with her services was wrongful. The parties were given liberty to restore the matter concerning whether the remedy should include reinstatement or payment of salary.