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

A court has a discretion to order the reinstatement of a probationary police constable whose services were unlawfully dispensed with. The refusal of reinstatement in Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155 does not establish an inflexible rule. Reinstatement will not usurp the chief constable’s disciplinary function where the dismissal power was unlawfully exercised and any disputed misconduct must be determined through formal disciplinary procedures. Relevant considerations include the seriousness of the procedural breach, the claimant’s responsibility for the period out of service, the practical possibility of disciplinary proceedings, and the claimant’s prior service record.

The claimant had been a probationary police constable. Following allegations concerning a fraudulent insurance claim, the Chief Constable required her resignation under regulation 13 of the Police Regulations 2003, despite disputes about the underlying facts. Silber J quashed the decision, holding that the matter should have been dealt with under the disciplinary procedures. He made one declaration and left open further relief.

At this remedy hearing the claimant sought a declaration reflecting her entitlement to the rights and remedies she would have had absent the unlawful dismissal, together with a mandatory order for reinstatement and compensation. The central issue was whether reinstatement was an available and appropriate remedy.

1. Discretion to reinstate. Reinstatement is a discretionary remedy in a case concerning the unlawful dismissal of a probationary police constable. Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155 did not require refusal of reinstatement.
2. Regulation 13. In light of Silber J’s decision, disputed allegations of misconduct could not lawfully be determined under regulation 13. The claimant was entitled to the applicable disciplinary procedures. Any misconduct proceedings had to be determined through those procedures, rather than by the Chief Constable acting under regulation 13. Reinstatement therefore did not usurp the Chief Constable’s disciplinary function.
3. Relevant circumstances. The Chief Constable’s lack of confidence arose from a procedurally flawed five-minute hearing. The claimant’s other service evidence was positive, she was not responsible for the period during which she was absent, and the criminal prosecution had ended without evidence being offered. Although effective misconduct proceedings might by then have been difficult, that possibility did not outweigh the serious procedural wrong.
4. Application. The court was also assisted by observations in R (Bolt) v the Chief Constables of Merseyside Police and North Wales Police [2007] EWHC 2607, including that a chief constable does not necessarily possess an untrammelled power to determine who remains in the force.
5. A mandatory order for reinstatement was made. Assessment of compensation was adjourned for agreement or further determination.

1. High Court (Administrative Court) — Silber J allowed the judicial review and quashed the decision requiring the claimant’s resignation: [2009] EWHC 1835 (Admin). Further relief was left open.
2. High Court (Administrative Court) — the present judgment ordered reinstatement and adjourned assessment of compensation.