The Deputy Chief Constable of Kent Police, R (On the Application Of) v Chief Constable of Kent Police

A second police misconduct investigation is not barred merely because the same conduct was investigated previously. The earlier investigation must itself have been lawful. A decision-maker assessing whether conduct may amount to misconduct acts as a gatekeeper, not as the final fact-finder. At that stage, relevant findings of an Employment Tribunal must be taken into account, although they are not binding on the eventual misconduct tribunal. Where potential misconduct could justify dismissal, doubt should generally be resolved in favour of treating it as gross misconduct so that the matter can be considered in a forum with power to impose dismissal. An investigation under the wrong statutory procedure, or decisions based on factual findings made by persons without authority to make them, may be unlawful and a nullity.

The Defendant investigated allegations concerning serving and former Kent police officers after an Employment Tribunal found direct race discrimination and victimisation in their treatment of Police Constable Bowler. The Defendant decided that some officers had no case to answer and that the remaining allegations did not warrant misconduct proceedings. A further investigation began after the Employment Tribunal proceedings concluded.

The Defendant sought judicial review of its earlier decisions, accepting that the legality of the further investigation depended on whether the first investigation had been lawful and, if so, whether the Defendant was functus officio. The application was heard as a rolled-up permission and substantive hearing.

1. Permission and relief. Permission was granted and the judicial review claim allowed. The relevant decisions were unlawful and a nullity.
2. The conduct found by the Employment Tribunal amounted to a conduct matter under section 12(2) of the Police Reform Act 2002. It was recordable under paragraph 11 of Schedule 3 and regulation 7(1)(f) of the Police (Complaints and Misconduct) Regulations 2012. The conduct involved discrimination and victimisation, affected the officer significantly, led to aggravated damages, and included criticism of the officers’ evidence. A reasonable decision-maker, directing itself correctly, was bound to conclude that the matter fell within the residual category of conduct whose gravity or exceptional circumstances made recording appropriate.
3. The matter should have been referred to the Commission under paragraph 13 of Schedule 3. Although referral was not mandatory under regulation 7(4), a reasonable decision-maker would have been bound to decide that referral was appropriate.
4. No reasonable decision-maker could have decided that the conduct should not be investigated. The investigation nevertheless proceeded under Part 3 of the Police (Conduct) Regulations 2012, although the matter should have been referred to the Commission. The premise of that investigation was therefore wrong.
5. At the initial assessment stage, the appropriate authority was a gatekeeper. It was not the fact-finder. Detective Chief Inspector Swan lawfully recognised a case to answer in relation to three officers, but erred by treating potential discrimination by two others as a matter for his own factual assessment. The Employment Tribunal findings were relevant evidence supporting the allegations, even though they were not binding on a later misconduct tribunal.
6. The assessment that the conduct, if proved, would amount only to misconduct rather than gross misconduct was not open to the decision-maker. Potentially serious conduct should be assessed so that it can be considered in proceedings where dismissal remains available.
7. Detective Inspector Rose wrongly assessed the evidence and reached factual conclusions, despite the limited investigative function. His conclusions that there was no case to answer were vitiated by that approach and were not reasonably open in light of the Employment Tribunal judgments. Detective Superintendent McDermott repeated those errors, failed properly to analyse discrimination and victimisation, and relied on the flawed investigation.
8. The court considered it unnecessary to determine finally whether the Defendant was functus officio. It indicated that regulation 12 of the Police (Conduct) Regulations 2012 permitted review of the assessments before misconduct proceedings began. The issue concerning retired officers was left for the appropriate authority.
9. The claim was brought late, but time was extended. The merits and significant public interest in proper investigation of potential police misconduct outweighed the prejudice to the interested parties.

The judgment describes earlier proceedings rather than an appeal from a lower court:

• Employment Tribunal: found direct discrimination and victimisation against Police Constable Bowler and awarded compensation and aggravated damages.
• Employment Appeal Tribunal: partly allowed the Defendant’s appeal and remitted issues to the Employment Tribunal.
• High Court (Administrative Court): granted permission and allowed the judicial review claim. The impugned decisions were unlawful and a nullity.