Nicholas Barnes v Chief Constable of Thames Valley Police

A probationary constable may be discharged under regulation 13 of the Police Regulations 2003 after misconduct proceedings concerning the same conduct, even where those proceedings resulted in a sanction short of dismissal. The two regimes address different questions: misconduct proceedings determine whether professional standards were breached and the appropriate disciplinary sanction, whereas regulation 13 permits a forward-looking assessment of whether the officer is likely to become a well-conducted constable. Earlier proceedings do not create cause of action estoppel, issue estoppel or collateral attack where the regulation 13 decision-maker is not acting as a judicial tribunal. Fairness requires notice, an opportunity to respond and reasons, but does not generally require an oral hearing or further submissions merely because the chief constable reaches a different assessment of evidence already available.

The claimant was a probationary constable discharged under regulation 13 after telling a racist joke while on duty. The same incident had previously been considered under the Police (Conduct) Regulations 2020. A misconduct panel found misconduct and imposed a written warning rather than dismissal.

The claimant challenged the decision to commence regulation 13 proceedings and the subsequent decision to discharge him. He argued that the second process was contrary to the Conduct Guidance, barred by estoppel or collateral attack, outside the purpose of regulation 13, irrational and procedurally unfair. The central issues were whether regulation 13 could be used after misconduct proceedings based on the same conduct and whether the decision-making process was fair.

1. Claim dismissed. The chief constable was entitled to commence regulation 13 proceedings after misconduct proceedings concerning the same incident. Regulation 13 and the misconduct regime serve different purposes. The former asks whether the probationary constable is likely to become an efficient or well-conducted constable; the latter determines whether conduct amounts to misconduct or gross misconduct and what disciplinary action is appropriate.
2. Section 87(3) of the Police Act 1996 required the chief constable to have regard to the Conduct Guidance. That duty did not make paragraph 4.87 a prohibition on subsequent regulation 13 proceedings.
3. The misconduct panel’s finding and written warning did not determine the forward-looking regulation 13 question. The chief constable was not acting as a judicial tribunal. Cause of action estoppel, issue estoppel and collateral attack therefore did not apply.
4. The chief constable was entitled to take account of the incident, its racist character, its implications for confidence in policing, and the claimant’s evidence about remorse, insight and his continuing uncertainty about why he had made the remark.
5. Regulation 13 contains no prescribed procedure or general requirement for an oral hearing. Fairness required notice of the case, an opportunity to respond and reasons. Those requirements were met. The chief constable was not required to invite further submissions merely because he disagreed with the earlier assessments.
6. The conclusion that the claimant was not likely to become a well-conducted constable was not irrational.