Gilmore, R (On the Application Of) v Police And Crime Commissioner for West Yorkshire

A retired police officer is no longer amenable to case-to-answer determinations under the police misconduct regime. Police (Complaints and Misconduct) Regulations 2012, regulation 27, permits continuation of the statutory process only up to, but not including, a determination whether disciplinary proceedings should be brought. The case-to-answer determination and the decision whether to refer the matter to disciplinary proceedings form part of a single scheme directed to serving officers. An appropriate authority therefore has no duty under paragraph 24(6)(a)(i) of Schedule 3 to the Police Reform Act 2002 to make that determination after the officer has retired.

The claimant had been Chief Constable of West Yorkshire Police. He retired after an investigator’s report into alleged misconduct had been submitted to the Police and Crime Commissioner, who was the appropriate authority. The claimant sought judicial review of the Commissioner’s failure to determine whether he had a case to answer under paragraph 24(6)(a)(i) of Schedule 3 to the Police Reform Act 2002.

The Commissioner contended that retirement ended the statutory conduct process. The claimant argued that the duty to decide whether there was a case to answer survived retirement, even though disciplinary proceedings could not be brought. The central issue was whether the statutory scheme required a case-to-answer determination after the officer had ceased to serve.

1. The claim was dismissed. The Commissioner had not made a formal case-to-answer determination before the claimant retired. The evidence showed preliminary views and preparations for possible charges, but not the statutory determination required by paragraph 24(6)(a)(i) of Schedule 3 to the Police Reform Act 2002 (paras [46]-[57]).
2. The statutory scheme is directed to persons serving with the police. Under section 12(2) and section 12(7) of the Police Reform Act 2002, a conduct matter concerns an indication that a person serving with the police may have committed an offence or behaved in a manner justifying disciplinary proceedings. A retired officer is not a member of a police force.
3. Paragraph 24(6)(a)(i) must be read with the regulations made under the Police Act 1996. Regulation 19 of the Police (Conduct) Regulations 2012 is concerned with referral to misconduct proceedings and must be read as a whole. The court rejected the proposed distinction between determining whether there was a case to answer and deciding whether disciplinary proceedings should follow (paras [68]-[73]).
4. Regulation 27 of the Police (Complaints and Misconduct) Regulations 2012 allows the process to continue only up to, but not including, a determination whether disciplinary proceedings should be brought. Its effect does not preserve a separate case-to-answer duty after retirement. The consequential options of disciplinary action, management action and misconduct proceedings have no application to a former officer.
5. The investigator’s conclusions were views which the appropriate authority was not bound to adopt. It could reach a different case-to-answer conclusion, subject to the ordinary public law standard of review identified in R (Chief Constable of West Yorkshire Police) v Independent Police Complaints Commission [2014] EWCA Civ 1367 (para [75(i)]).
6. The agreed dismissal of the publication ground followed. The claimant had withdrawn the ground concerning whether the evidence permitted only a finding of no case to answer. The court added that, had delay arisen for decision, it would probably have granted no relief other than possibly a declaration (paras [43]-[44], [76]-[79]).