French, R (on the application of) v The Chief Constable of West Yorkshire Police

A misconduct proceeding is allocated by reference to the officer’s status and the statutory assessment made at the specified time. Under regulation 19(9)(a) of the Police (Conduct) Regulations 2008, the relevant date is the initial assessment under regulation 12(1), not a later revised assessment under regulation 12(5).

An adjournment decision is discretionary. Judicial review is available only where a reasonable, properly directed panel could not have refused the adjournment. The panel must consider the effect on the respondent’s ability to present the case, the competing interests, likely delay, freshness of evidence, and responsibility for the need to adjourn.

The claimant, a police constable, brought two judicial review claims arising from separate misconduct proceedings. The first concerned whether proceedings for failing to attend court should have been conducted as a misconduct meeting rather than a misconduct hearing. The second challenged her summary dismissal following proceedings concerning alleged intoxication, disclosure of case information and alleged drink-spiking.

The second claim raised apparent bias or prejudicial-material issues concerning an independent panel member who had sat on an earlier panel, and the refusal to adjourn when a forensic report was disclosed on the hearing day. The first claim became academic as a result of the dismissal, but remained relevant to costs.

1. The claim concerning the third misconduct proceedings was dismissed. The panel was entitled to conclude that the independent member’s prior participation did not make the proceedings unfair or appear unfair. The issue in the later proceedings was materially different, the relevant information was limited, and the panel had legal advice. The judge preferred the approach in R v The Professional Conduct Committee of the General Medical Council ex parte Mahfouz [2004] EWCA Civ 233, treating the issue as the possible prejudicial effect of material on an otherwise impartial tribunal rather than as ordinary apparent bias.

2. The refusal to adjourn was not unlawful. Following CPS v Picton [2006] EWHC 1108, the question was whether a reasonable panel, properly directed and considering the circumstances, could properly have refused the adjournment. The panel had to consider whether refusal would impair the claimant’s ability to present her case, the interests of the parties and the public, the likely length and consequences of delay, the freshness of evidence, and responsibility for the need for an adjournment.

3. The forensic material did not support the claimant’s case, although it did not exclude the possibility of drink-spiking. She had representation, knew that expert evidence was important, declined to provide a further hair sample, and had not obtained her own expert evidence. The panel was entitled to rely on the evidence available and to refuse an adjournment to obtain further expert or medical evidence. There was no breach of regulation 21, and the panel’s decision was not Wednesbury unreasonable.

4. The first claim would have succeeded if it had remained live. Regulation 19(9)(a) refers to whether a final written warning was in force at the date of the assessment under regulation 12(1). It therefore refers to the initial assessment, made before the claimant received her final written warning. A later revision under regulation 12(5) cannot alter that statutory reference. The purported reassessment as gross misconduct was also defective because it addressed the potential penalty rather than the character of the conduct. The first claim was dismissed as academic, but the defendant was ordered to pay its costs.

This was a first-instance judicial review decision. The judgment records that permission for the First Claim was initially refused on the papers and later granted on renewal. The second claim was issued after the claimant’s dismissal and was heard with the first claim.