Ferriday v Chief Constable of Gwent

A chief officer may dispense with a probationer constable’s services where cumulative conduct reveals fundamental unsuitability of judgment, even if the conduct occurred off duty and did not result in criminal or disciplinary proceedings. The relevant duties include restrictions imposed by the police code of conduct. A procedural failure to explain that a performance procedure was not being followed does not necessarily invalidate the decision where the officer had a fair opportunity to answer the concerns. The court must respect the chief officer’s expertise and discretion in assessing suitability. An action plan is not required where the decision-maker reasonably considers the defect in judgment to be fundamental and incapable of being remedied through performance support.

The claimant, a probationer police constable, sought judicial review of the Chief Constable’s decision under regulation 13 of the Police Regulations 2003 to dispense with his services. The decision followed four incidents concerning his judgment and conduct, including conduct involving two intoxicated students, a breach of rules at a police rehabilitation centre, a lost warrant card and an issue concerning his place of residence.

The claimant alleged, among other matters, breach of article 8, misconstruction of regulation 13, procedural unfairness, failure to use the force’s unsatisfactory performance procedure, reliance on irrelevant or closed matters and irrationality. The central issues were whether the decision lawfully considered private conduct and whether the procedure adopted was sufficiently fair.

1. Claim dismissed. The decision under regulation 13 was within the Chief Constable’s powers and discretion. The court’s role was supervisory. It was required to respect the judgment of those responsible for assessing whether a probationer was suitable for the demanding duties of a police constable. The approach in Bolton v Law Society [1994] 1 WLR 512 and Law Society v Salisbury [2008] EWCA Civ 1285 supported that restraint.
2. Regulation 13 permitted consideration of conduct outside working hours. The duties of office included relevant restrictions in the police code of conduct, including the obligation not to behave in a way likely to bring discredit on the police service. The decision was not a condemnation of private sexual activity between consenting adults. The concern was the claimant’s judgment in circumstances which had led to complaints and investigations and which, viewed with the other incidents, raised doubts about his suitability.
3. The four incidents could properly be considered cumulatively. They demonstrated what the court described, adopting the language of R v Chief Constable of British Transport Police ex p Farmer [1999] COD 518, as fundamental behaviour. The fact that no criminal or disciplinary charge followed did not prevent the same conduct being considered in assessing fitness and the likelihood of becoming a well-conducted constable.
4. There was a procedural irregularity because the claimant was not clearly told that the force’s unsatisfactory performance procedure was not being applied in full. There was also uncertainty among the officers about that procedure. However, the irregularity did not remove the basic fairness of the process. The claimant had two hearings, received the material relied upon and had a meaningful opportunity to answer the cumulative concerns.
5. The Chief Constable was entitled to conclude that the claimant’s defective judgment was fundamental and that an action plan or support package would not alter it. The absence of disciplinary proceedings did not invalidate the decision because the decision concerned suitability under regulation 13, not proof of misconduct. The decision was neither irrational nor unreasonable.
6. The court declined to order reinstatement. Applying the principles discussed in Chief Constable of North Wales Police v Evans [1982] HL 1 WLR 1155, reinstatement would risk usurping the Chief Constable’s function, particularly where the force’s trust in the probationer had broken down.