Rhodes, R (on the application of) v Police and Crime Commissioner for Lincolnshire

Suspension under regulation 10(4) of the Police (Conduct) Regulations 2012 requires consideration of redeployment and a conclusion that either investigation may be prejudiced or suspension is required in the public interest. The public-interest limb sets a demanding threshold: suspension must be necessary because the public interest leaves no other course open.

In reviewing such a decision, the court applies the high Wednesbury threshold but must examine the material available, including material the decision-maker ought properly to have considered. A rational decision requires attention to competing interpretations of the evidence, the likelihood that the adverse interpretation will be proved, and the officer’s character and standing. The court must not conduct a mini-trial.

The claimant, a temporary chief constable, sought judicial review of the defendant Police and Crime Commissioner’s decisions to suspend him and continue his suspension. The claim alleged unlawfulness and irrationality under regulation 10 of the Police (Conduct) Regulations 2012, section 38(2) of the Police Reform and Social Responsibility Act 2011, section 6 of the Human Rights Act 1998 and Article 8. At the rolled-up hearing, only the rationality challenge was argued; the other grounds were reserved. The central issue was whether the Commissioner had rationally concluded that suspension was required in the public interest before investigation.

1. Disposition. The decisions to suspend the claimant and maintain his suspension were quashed. The court granted permission in relation to the Article 8 ground. The claimant received his costs.
2. Regulation 10(4) of the Police (Conduct) Regulations 2012 requires the authority first to consider temporary redeployment and determine that it is inappropriate. Suspension may then occur only if effective investigation may be prejudiced or the public interest requires suspension. The latter wording implies that suspension is necessary because the public interest leaves no other course open.
3. The thresholds for commencing an investigation under the Conduct Regulations or referring a matter to the IPCC under the Police Reform Act 2002 are lower than the threshold for suspension. The IPCC’s choice of investigation level therefore gives only tangential assistance to a challenge to suspension.
4. The Commissioner was the primary decision-maker and the court applied the Wednesbury test. It could not substitute its own view, and had to allow for more than one rational response. It nevertheless had to assess the material available, including material that should have been considered, and could not pre-judge the eventual investigation or conduct a mini-trial.
5. A rational process required consideration of whether the adverse interpretation of the evidence was correct, whether the maker of the allegation might be mistaken, whether an investigation might exonerate the claimant, and the claimant’s character and standing. The Commissioner treated his preferred interpretation as the only possible interpretation, failed to consider the claimant’s unblemished professional record, and failed to assess the likelihood that the alleged dishonesty would be proved.
6. Those errors meant that the conclusion that the public interest required suspension rested on an inadequate and unjustifiable assessment. The decision was irrational and perverse. The judgment did not determine whether any allegation would ultimately be established.

The claim was issued in the Administrative Court on 19 March 2013. Procedural directions led to a rolled-up hearing on the rationality ground. The other grounds were reserved, and this judgment quashed the suspension decisions.