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

A probationary constable may be dismissed under Regulation 13 of the Police Regulations 2003 even where the conduct could also constitute misconduct. The appropriate procedure depends on whether disputed matters make it unfair for the chief officer to assess suitability from undisputed primary facts. A disciplinary hearing is not required merely because another body might reach a different conclusion.

Regulation 13 is sufficiently accessible and foreseeable for the purposes of Article 8. Procedural fairness requires relevant material to be disclosed, but non-disclosure is immaterial where it could not affect the premises of the decision. A provisional view formed from the papers is not pre-determination where the decision-maker genuinely hears and considers the officer’s representations.

The claimant was a probationary constable whose services were dispensed with by the Chief Constable under Regulation 13 of the Police Regulations 2003. The decision followed an incident involving sexual activity with a woman who had been drinking and was accompanied by another man. Criminal charges were later dropped.

The claimant sought judicial review. He argued that the disciplinary procedure should have been used, that Regulation 13 was insufficiently clear to satisfy Article 8, and that procedural unfairness arose from non-disclosure and pre-determination. The central issue was whether the Chief Constable could fairly assess the claimant’s suitability under Regulation 13 on the basis of largely undisputed primary facts.

1. Application dismissed. The Chief Constable was entitled to use Regulation 13 rather than the disciplinary procedure. The existence of an overlap between the conduct relied upon and a possible disciplinary charge did not require the disciplinary route.
2. The relevant question was whether the disputed matters made it unfair for the Chief Constable to assess the claimant’s suitability under Regulation 13. The primary facts were substantially undisputed. Whether the woman was vulnerable was an inference to be drawn from those facts. The Chief Constable was entitled to conclude that she was vulnerable and that the claimant’s conduct demonstrated that he was not mentally fitted for office or likely to become a well-conducted constable.
3. R v Chief Constable of West Midlands Police ex p Carroll was materially different because disputed primary facts had been central there. R v Chief Constable of British Transport Police ex p Farmer confirmed that Regulation 13 was not unavailable whenever disciplinary proceedings were possible. The present case fell between those factual situations, but the decisive question remained fairness, not whether another tribunal might reach a different result.
4. Regulation 13 satisfied Article 8(2)’s requirement that an interference be prescribed by law. The required degree of clarity depends on the subject matter and the objective pursued. It was impracticable to prescribe every factual situation in detailed rules. The general terms of Regulation 13 were sufficiently accessible and foreseeable.
5. Non-disclosure of the expert report and witness statements caused no material unfairness. The Chief Constable accepted consensual intercourse and did not rely on severe intoxication or abduction. The undisclosed material could not alter the primary facts on which the decision was based. Legal advice remained privileged.
6. The Chief Constable had not pre-determined the matter. A strong provisional view formed from the documents did not prevent a fair hearing where the claimant was invited to respond and the decision-maker considered his representations. Permission to appeal was refused. Costs were ordered in the usual terms, subject to section 11 of the Access to Justice Act.

First-instance judicial review proceedings. The application was dismissed. Permission to appeal was refused.