Birks, R (On the Application Of) v Commissioner of Police of the Metropolis

A police officer may be suspended under regulation 4 of the Police (Conduct) Regulations 2004 to prevent resignation where the public interest requires that disciplinary jurisdiction be maintained. The statutory condition that suspension be required means that the public interest leaves no other course open. A substantive legitimate expectation may nevertheless be displaced by an overriding public interest or sufficiently powerful supervening factor. Interference with Convention rights under Articles 8 and 9 must be justified by a pressing social need and proportionate to the legitimate aim. In assessing proportionality, the court must determine compatibility itself while giving appropriate weight to the decision-maker’s expertise. In a case involving a death in police custody, maintaining disciplinary accountability and public confidence may outweigh serious interference with the officer’s religious vocation and private life.

The claimant, a Metropolitan Police officer, challenged the decision to maintain his suspension and refuse consent to his resignation while an Independent Police Complaints Commission investigation continued into the death of a detainee in police custody. He wished to resign in order to become an ordained minister and curate.

He argued that the statutory power had been used for an improper purpose, that he had a substantive legitimate expectation that he would be allowed to resign, and that the decision unlawfully interfered with his rights under Articles 2, 8 and 9 of the Convention. The court considered the scope of the suspension and resignation provisions, legitimate expectation, the State’s Article 2 obligations, and proportionality.

1. Statutory power. Regulation 4 of the Police (Conduct) Regulations 2004 could lawfully be used to prevent the claimant’s resignation, notwithstanding that its ordinary purpose concerned removal from active deployment. The regulation conferred a broad discretion, but suspension on public-interest grounds was permissible only where the public interest required it, meaning that it left no other course open. The IPCC’s letter proposing a fresh investigation, and subsequently the regulation 9 notice, were capable of constituting a report or allegation triggering the power. The power could be exercised later because regulation 4(5) permitted suspension at any time.
2. Legitimate expectation. Representations made by a senior officer in November 2012 founded a substantive legitimate expectation that the claimant would not be prevented from resigning even if a further notice of investigation were served. The claimant relied on those representations and the Defendant knew and reinforced his plans. The expectation was not lost because he had not immediately challenged the initial decision. Nevertheless, a public body may depart from a substantive expectation where departure is justified by an overriding interest or sufficiently powerful supervening factor. The public interest in maintaining disciplinary jurisdiction in a serious death-in-custody case justified departure from the representation.
3. Convention rights. The inquest satisfied the Article 2 requirement concerning the circumstances of the death, but could not itself identify and hold accountable persons responsible for wrongdoing. Depending on the outcome of the criminal investigation, misconduct proceedings might be required. The claimant’s inability to pursue ordination and the loss of his Church accommodation engaged Articles 8 and 9.
4. Proportionality. The decision-maker had pursued the legitimate aim of maintaining order and preventing crime, including preserving public confidence. The court conducted its own proportionality assessment, while giving appropriate weight to the assessment of a senior police officer with relevant expertise. The decision properly balanced the claimant’s serious personal and religious interests against the public interest in accountability for deaths in custody. The interference was justified by pressing social needs and was proportionate.
5. Disposition. The claim was dismissed.