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

The court held that the Defendant's initial handling of the Employment Tribunal findings and subsequent internal conduct assessment was unlawful. The Appropriate Authority erred in law by substituting its own fact-finding and assessment for the Employment Tribunal's findings and by failing to conclude that the conduct identified fell within the descriptions in the Police (Complaints and Misconduct) Regulations 2012 (in particular regulation 7(1)(f)) and thus should have been recorded and referred to the Independent Police Complaints Commission (now the IOPC). The court found multiple procedural errors in the assessments carried out by Detective Chief Inspector Swan, the investigating officer (Detective Inspector Rose), and Detective Superintendent McDermott: they unduly conducted fact-finding, misapplied the severity/disciplinary assessment, and failed to give due weight to the Tribunal findings.

Because those decisions were unlawful and a nullity, permission to apply for judicial review was granted and the application was allowed. The court extended time to bring the claim because the merits and public interest outweighed prejudice to the officers; the court left open consideration of appropriate relief and whether further investigation should proceed subject to submissions.

This is a judicial review of internal policing decisions made after Employment Tribunal findings that certain Kent Police officers had discriminated against or victimised a colleague. The Claimant (the Deputy Chief Constable) sought permission to apply for judicial review (and substantive relief) challenging the Defendant's internal investigative decisions taken in 2016–2017 and the later decision to re-open or re-run investigations in 2018–2019.

Background and procedural posture:

• The Employment Tribunal (ET) found instances of direct race discrimination and victimisation against the claimant officer (PC Bowler), made awards including aggravated damages, and recommended that the force refer relevant officers to Professional Standards.
• The Defendant carried out a local assessment in late 2016/early 2017 (Detective Chief Inspector Swan) and issued Regulation 15 notices to some officers. An investigating officer (Detective Inspector Rose) then produced an investigation report, and the Appropriate Authority (Detective Superintendent McDermott) determined there was generally no case to answer except for limited breach of the Authority/Respect/Courtesy standard by one officer, to be dealt with by management action.
• The ET's liability and remedy judgments were partially disturbed by the Employment Appeal Tribunal (EAT) and some issues were remitted to the ET, which in 2018 upheld some findings on remittal.
• Following further internal consideration and IOPC involvement in 2018–2019 the force sought to re-open or continue investigations. The Claimant sought judicial review of the earlier decisions as unlawful; the Defendant did not oppose the application.

Relief sought and issues framed:

• (i) Whether the conduct amounted to a "conduct matter" under the Police Reform Act 2002 and Schedule 3.
• (ii) Whether the conduct was recordable under regulations made under Schedule 3.
• (iii) Whether the Appropriate Authority should have referred the matters to the Commission/IOPC.
• (iv) Whether the matters should have been investigated and if so under Schedule 3 paragraph 16 (Commission-led/local investigation) or under Part 3 of the Conduct Regulations.
• (v) Whether the investigation actually carried out under Part 3 was lawful.
• (vi) Whether the force was functus officio and therefore barred from re-opening the investigation.
• (vii) Whether permission should be refused for delay or likely no substantial difference in outcome.

Court's reasoning and conclusions:

• The court found the officers' conduct, as portrayed in the ET judgments (direct discrimination, victimisation, cumulative detriment, aggravated conduct and questioned witness credibility), was at least a conduct matter and, on a correct legal analysis, fell within the residual but serious category of regulation 7(1)(f) of the Police (Complaints and Misconduct) Regulations 2012. A reasonable decision-maker would have recorded the matter and concluded it was appropriate to refer to the Commission/IOPC.
• The Appropriate Authority and investigator(s) made legal errors: they improperly conducted fact-finding and substituted their own assessments for the ET's findings rather than treating the Tribunal conclusions as material when deciding whether there was a case to answer. Detective Chief Inspector Swan wrongly down-graded the severity assessment in parts (notably in relation to two senior officers) and declined to refer to the Commission; Detective Inspector Rose carried out prohibited fact-finding and reached conclusions incompatible with the ET findings; Detective Superintendent McDermott repeated those errors and failed to apply the correct legal test when deciding whether there was a case to answer.
• Those errors rendered the decisions unlawful and a nullity. The court therefore gave permission and allowed the application for judicial review. The court extended time to bring the claim because the merits and public interest outweighed any prejudice to the officers, and because relevant legal advice only crystallised late in 2019.

Subsidiary findings and practical consequences:

• The court did not find it necessary to decide conclusively whether the force was functus officio because the primary decisions were unlawful.
• The court recognised the position of retired officers is a matter for the Appropriate Authority, noting the Regulations permit the applicability of the regime to former officers in certain circumstances.
• Relief was to be considered further on written submissions; the court held the earlier decisions unlawful and a nullity and that a fresh lawful process was required.

The court granted permission for judicial review and allowed the substantive application. It held that the Defendant's earlier investigative decisions were unlawful and a nullity because the Appropriate Authority and investigators conducted unlawful fact-finding, misapplied severity and referral tests under Schedule 3 of the Police Reform Act 2002 and the relevant regulations, and failed to treat the Employment Tribunal findings as material. As a result the decisions not to refer to the IOPC and to decline further proper investigation could not stand; time for challenge was extended on grounds of merits and public interest.