Simpson & Ors, R (on the application of) v Chief Constable of Greater Manchester Police

A public authority’s decision to remove a defined group from an established promotion pool is amenable to judicial review where it affects their status under a statutory promotion framework. Clear and unqualified terms in a policy may create a substantive legitimate expectation that successful candidates will remain eligible for promotion, subject to stated conditions. A continuing financial or operational difficulty does not by itself justify frustrating that expectation. The authority must provide proper reasons establishing the overriding public interest relied upon. Where the policy expressly promises consultation before significant changes, affected persons must be consulted while proposals remain formative. Consultation with a representative body is insufficient without evidence that it adequately represents those affected.

The claimants were serving police officers who had passed the final stages of the defendant’s promotion selection process. The applicable policy stated that successful candidates would be promoted, subject to a suitable vacancy and a professional standards check. They entered a promotion pool while promotions were frozen.

In 2012 the defendant decided that their previous assessment results would no longer support immediate promotion and that they would have to undertake part of a future process again. The claimants challenged that decision, alleging substantive and, alternatively, procedural legitimate expectations. The central issues were whether the decision was amenable to judicial review, whether the expectations existed, whether their frustration was justified, and whether adequate consultation had occurred.

1. Amenability to judicial review. The decision was not merely an operational or managerial decision. Applying the three-fold approach identified in R on the application of Hopley v Liverpool Health Authority and others and approved in R (on the application of Tucker) v Director General of the National Crime Squad, the defendant was a public body exercising statutory powers, the relevant function was public, and the decision affected all officers selected under the statutory promotion framework. It therefore raised public law issues and was amenable to judicial review.
2. Substantive legitimate expectation. The policy and past practice contained a promise that officers who passed the live assessment stage would remain within the pool of officers selected for promotion and would be promoted into a suitable vacancy, subject to a professional standards check. The vacancy qualification and the policy’s reference to ability, experience and skills did not prevent that expectation. It was not necessarily lifelong, and the policy’s review provision did not remove it. The expectation continued until rational grounds for ending it arose.
3. Justification. The defendant had not shown that the claimants’ qualifications had become stale. The appropriate time to reassess their skills was when a new promotion process was under active consideration or when the promotion freeze was expected to end. The general financial circumstances and anticipated reductions in posts did not explain why the pool had to be emptied at that time. No proper reasons were given to justify frustrating the expectation, applying the approach in Paponette and others v Attorney General of Trinidad and Tobago.
4. Procedural legitimate expectation. In any event, the policy expressly promised consultation with all potentially affected parties before significant changes. The claimants fell within that class. Discussions with the Police Federation occurred only after the decision was substantially formulated and there was no evidence that the Federation had consulted on the claimants’ behalf. There was therefore no proper consultation, applying the guidance in R v North and East Devon Health Authority, ex parte Coughlan.
5. The decision was unlawful and was quashed by agreement.