Austin v Chief Constable of Surrey Police

The statutory power to dispense with a probationary constable’s services under regulation 13 of the Police Regulations 2003 must be exercised personally by the chief officer. Although statutory functions may generally be delegated where administrative necessity and the statutory scheme permit it, the binding authority concerning probationary dismissal establishes an exception.

An unlawful delegated dismissal does not necessarily result in automatic confirmation as a full constable. Where the force’s appeal procedure requires personal reconsideration by the chief constable, the probationary period is implicitly extended until that decision. Judicial review relief remains discretionary, and reinstatement may be refused where the chief constable has lawfully determined the merits.

The claimant joined Surrey Police as a probationary constable. After suffering serious injuries, his probationary period was extended. A temporary assistant chief constable subsequently decided under regulation 13 of the Police Regulations 2003 that his services should be dispensed with.

The claimant appealed under Surrey Police’s internal procedure. The Chief Constable personally reconsidered the matter and rejected the appeal. The claimant sought to quash both decisions, arguing that only the Chief Constable could make the original regulation 13 decision and that, because the delegated decision was unlawful, he had automatically become a full constable when his probationary period expired.

1. Delegation. As a general rule, a statutory power conferred on a named office-holder cannot be delegated. The principle may be displaced where administrative convenience clearly outweighs personal exercise of the function and the delegate is suitable. The Carltona principle may apply to chief constables.
2. Regulation 13. The decision to dispense with a probationary constable’s services is a matter of special substance. Following R v Chief Constable of Greater Manchester Police ex p Lainton [2000] I.C.R. 1324, it must be made personally by the chief officer. The decision of TACC Price was therefore ultra vires and of no effect.
3. Effect on probation. The invalidity of the delegated decision did not cause the claimant automatically to become a full constable. Regulation 13 permits dismissal at any stage of probation and provides for 28 days’ notice or pay in lieu. Surrey’s appeal system necessarily carried with it an implicit extension of the probationary period until the Chief Constable decided the appeal.
4. Final decision and relief. The Chief Constable’s decision was the proper regulation 13 decision. The claimant was entitled to pay in lieu of 28 days’ notice, together with pay for the intervening period. Even if the claimant’s alternative argument had succeeded, reinstatement would not have been ordered because judicial review relief is discretionary and the Chief Constable had fully considered the merits and reached a lawful decision.
5. A declaration was granted that TACC Price’s decision was unlawful. The court directed payment of approximately eight weeks’ salary, subject to final calculation, and reserved the question whether a wider declaration concerning Surrey’s system was appropriate.