Chief Constable of Thames Valley Police, R (on the application of) v A Legally Qualified Chair

The misconduct regime for police officers does not apply to conduct occurring before the person became a police officer. However, attestation may engage an ongoing duty to correct material non-disclosures or inaccuracies in information supplied during recruitment or vetting. A failure to comply with that duty may constitute misconduct or gross misconduct under the Police (Conduct) Regulations 2020.

Removal of vetting clearance, followed where appropriate by proceedings for gross incompetence under the Police Performance Regulations 2020, may provide an alternative route for addressing pre-attestation conduct.

The Chief Constable sought judicial review of a legally qualified chair’s decision that a misconduct panel had no jurisdiction to consider allegations concerning C, a former police officer. The allegations related both to alleged sexual conduct before C joined the police and to his failure to disclose that conduct during recruitment vetting and in later declarations.

The claimant relied on the Court of Appeal in Northern Ireland’s decision in Watson and advanced an alternative ongoing-duty argument. The central issues were whether the Police (Conduct) Regulations 2020 applied to pre-attestation conduct and whether post-attestation non-disclosure could constitute misconduct.

1. The claim was allowed in part. The decision declining jurisdiction was quashed because the allegations included an alleged breach of an ongoing duty to correct material non-disclosure.
2. Following Watson, the misconduct provisions apply only to conduct occurring when the person was a police officer. The statutory language, the scope of the Standards of Professional Behaviour and the underlying primary legislation did not support applying the regime to conduct occurring before attestation. The claimant had not shown that the Northern Irish Court of Appeal’s construction was plainly wrong, and the High Court should follow it under the principles in Deane and Jwanczuk.
3. Once attested, a police officer may be under an ongoing, career-long duty to correct material omissions, inaccuracies or false declarations made during recruitment or vetting. That duty arises from the requirements of honesty and integrity, read with the Code of Ethics, statutory guidance and relevant vetting guidance. It may be breached irrespective of whether the officer is later asked to confirm the earlier information.
4. A failure to comply with that post-attestation duty is capable of amounting to misconduct or gross misconduct under the Police (Conduct) Regulations 2020. The disciplinary panel therefore had jurisdiction to investigate and determine that allegation.
5. The removal of vetting clearance, combined where appropriate with proceedings for gross incompetence under the Police Performance Regulations 2020, may address some pre-attestation conduct. The route is fact-sensitive and may not always result in dismissal or removal of clearance.
6. The proceedings were remitted to a differently constituted panel.

The judgment describes an earlier misconduct-panel decision dated 8 August 2022, which declined jurisdiction. The present judicial review was allowed to the limited extent that the panel had jurisdiction to consider the alleged ongoing-duty breach.