Alice Victor, R (on the application of) v Chief Constable of West Mercia Police

A police force may use a vetting process after misconduct proceedings, including proceedings resulting in a final written warning, provided that the process is used for its proper purpose and does not circumvent protections applicable to disputed misconduct allegations.

Where the relevant conduct is admitted or undisputed, the use of a separate process is not necessarily unlawful. The court must examine the factual dispute, the nature and purpose of each power, and the safeguards provided by each procedure. A post-misconduct vetting review required by guidance is ordinarily a genuine and full review. It may lead to withdrawal of recruitment vetting clearance and, for a probationer, consequential discharge under regulation 13 of the Police Regulations 2003.

The claimant was a student probationary police constable. After an off-duty incident, she received a final written warning for misconduct under the Police (Conduct) Regulations 2020. Her recruitment vetting clearance was subsequently withdrawn following a vetting review, and she was discharged under regulation 13 of the Police Regulations 2003 because she could no longer undertake the training and duties required of her.

She sought judicial review of both decisions, arguing that the vetting process unlawfully subverted the misconduct regime by bringing about her removal for conduct which had not warranted dismissal. The central issue was whether the prior misconduct outcome precluded a full vetting review and consequential discharge.

1. The claim was dismissed. The vetting decision was lawful, and the consequential discharge was rational and inevitable once the necessary recruitment vetting clearance had been withdrawn.
2. The general principle is that a broadly expressed power cannot be used to defeat the purpose of specific statutory provisions which provide protections or impose restrictions. That principle did not require the vetting decision to be treated as an unlawful dismissal for misconduct.
3. Where the underlying conduct is materially disputed, the protections in the Conduct Regulations should normally be used to determine whether misconduct occurred. Circumventing that process may render a later dismissal unlawful. Where the relevant conduct is admitted or otherwise undisputed, however, another procedure may lawfully be used if it serves that procedure’s distinct legitimate purpose. The decisive inquiry is whether the alternative process undermines or subverts the misconduct safeguards, or instead represents the legitimate exercise of a different power.
4. The vetting regime has purposes wider than protection of police assets. It includes public confidence and ensuring that persons with access to sensitive information possess appropriate integrity, maturity and self-control. Those purposes differ from, although overlap with, the purposes of the misconduct regime.
5. Section 8.50.1 of the APP required a vetting review after misconduct proceedings resulting in a written warning or final written warning. The review was not confined to enhanced clearance or to issues left unaddressed by the misconduct proceedings. It had to be a genuine review by reference to the considerations relevant to vetting generally and could result in withdrawal of recruitment vetting clearance.
6. The APP also contemplated that withdrawal of recruitment vetting clearance could lead to termination of service. The fact that this produced a different practical outcome from the misconduct proceedings did not make the review unlawful. The claimant’s conduct was admitted in substance, and the case did not involve a rejected allegation of gross misconduct or a disputed factual basis.
7. The court did not need to decide the defendant’s alternative argument under section 31(2A) of the Senior Courts Act 1981. If the vetting decision had been unlawful, relief would not have been refused because it was not highly likely that the claimant would have been discharged absent that decision.