RAZA ALI (R on the application of) v POLICE APPEALS TRIBUNAL

An informal factual enquiry may precede a Regulation 15 notice under the Police (Conduct) Regulations 2012 where it is undertaken in good faith for a proper preliminary purpose. This may include deciding whether suspected conduct is properly characterised as performance rather than misconduct, or establishing basic facts such as whether an officer was involved. There is no hard-edged test determining when such enquiries become unlawful. The central question is whether the informal process has gone so far as to undermine the safeguards provided by Regulation 15. Whether a regulatory departure has occurred is context-specific and ordinarily involves evaluative judgment by the specialist misconduct panel. On judicial review, the court should respect the panel’s findings of fact and the Police Appeals Tribunal’s assessment of the appeal’s prospects unless the decision is legally inadequate, illogical or unreasonable.

The claimant, a student police officer, sought judicial review of a Police Appeals Tribunal Chair’s determination dismissing his appeal as having no real prospect of success. The appeal challenged a misconduct panel’s refusal to dismiss an allegation concerning answers given at an informal meeting about similarities between the claimant’s coursework and another officer’s work.

The claimant argued that a Regulation 15 notice should have been served before the meeting and that the failure to do so was a regulatory departure causing irredeemable prejudice such that a fair hearing could not take place. The central issue was whether informal fact-finding before the formal invocation of the misconduct procedure was permissible in the circumstances.

1. Claim dismissed. The Chair’s determination was reasonably open to her. The claimant was ordered to pay the interested party’s costs, subject to detailed assessment if not agreed.
2. The agreed legal test was whether there had been a regulatory departure causing irredeemable prejudice such that a fair hearing could not take place. The first question was whether there had been a departure from the requirements of the Regulations. If so, the second was whether irredeemable prejudice resulted.
3. Nothing in the Police (Conduct) Regulations 2012, or in their purpose, prohibited an informal factual enquiry before a Regulation 15 notice in an appropriate case. Such enquiries may be permissible where the decision-maker is assessing whether the matter should be characterised as performance or conduct. They may also be permissible to establish basic facts, including whether an officer was involved.
4. The Guidance supported these possibilities but supplied no hard-edged criterion. The relevant safeguard question was whether the initial assessment and fact-finding had gone so far as to undermine the safeguards of Regulation 15. It was impermissible to rely merely on the absence of the formal preconditions for a notice, since that could make the safeguards self-defeating.
5. Whether there had been a regulatory departure was context-specific. It involved good-faith evaluative judgment by the specialist panel, having regard to the circumstances as understood at the time, the evidence, contemporaneous documents and any live evidence. The panel had been entitled to find that the meeting concerned the City and Guilds quality-assurance process, that an innocent explanation remained possible, and that the matter had reasonably been treated as a potential performance issue.
6. The Chair was entitled to conclude that the appeal had no real prospect of success and that there was no other compelling reason for it to proceed. The distinction between asking whether an appeal had a real prospect of success and whether it had no real prospect did not alter the applicable realistic, rather than fanciful, standard.

• Police Appeals Tribunal: the Chair dismissed the claimant’s appeal under Rule 11(5) of the Police Appeals Tribunal’s Rules 2012, concluding that it had no real prospect of success and that there was no other compelling reason for it to proceed.
• High Court (Administrative Court): the judicial review claim was dismissed.