Lino Di Maria, R (on the application of) v Commissioner of Police of the Metropolis

The claimant, a serving Metropolitan Police officer, sought judicial review of the defendant's decision to withdraw his vetting clearance and the subsequent referral for gross incompetence under regulation 32 of the Police (Performance) Regulations 2020 on the basis that he could no longer perform his duties without vetting clearance. The judge found that the Commissioner had power to require vetting of officers under section 4(3) PRSRA 2011 and related powers, but did not have power to dismiss an officer solely by withdrawing vetting clearance: dismissal is a matter for regulations under section 50 of the Police Act 1996. The court held that the vetting review process engaged Article 6(1) ECHR when withdrawal of minimum clearance risked dismissal, and that key procedural safeguards were missing in the Claimant’s vetting review (notably the opportunity for legal representation and to call/cross-examine witnesses on contested, serious allegations).

The court further held that allegations which had been finally determined in misconduct proceedings as "no case to answer" should generally be treated as having no reasonable grounds for suspicion in vetting reviews (absent significant new evidence), and that vetting decision-makers who uncover matters which amount to potential misconduct should pause and refer such matters into the statutory misconduct process rather than determine them within vetting. Finally, the judge concluded that using the third-stage Performance Regulations procedure as a mechanism to effect dismissal following withdrawal of vetting clearance subverted the purpose and safeguards of the Performance Regulations because the third-stage panel could not re-open the vetting decision and, in practice, dismissal became inevitable.

The claimant was a substantive sergeant in the Metropolitan Police Service whose Management Vetting and Security Check were withdrawn following a vetting review. The withdrawal relied upon a number of historical and contemporaneous allegations of inappropriate and sexual behaviour, some of which had been investigated previously and concluded with findings of "no case to answer" under the Police (Conduct) Regulations 2020.

The claimant sought judicial review challenging: (1) that withdrawal of vetting clearance is not a lawful basis for dismissal by the Commissioner; (2) that the vetting regime as a non‑statutory process fails Article 6 ECHR; (3) that vetting should not be used to circumvent statutory misconduct procedures; (4) that referral to a third-stage meeting under the Performance Regulations is outside their scope or, alternatively, frustrates their protections; and (5) that the vetting decision was irrational.

The court analysed the legal status of the Vetting Code of Practice and Authorised Professional Practice (APP), the statutory framework under the Police Act 1996, the Police Regulations 2003, the Police (Conduct) Regulations 2020 and the Police (Performance) Regulations 2020, and Strasbourg and domestic authorities on Article 6 procedural protections in disciplinary-type proceedings. Key issues framed by the court were:

• whether the Commissioner may lawfully dismiss an officer by reason of withdrawn vetting clearance;
• whether vetting reviews that risk dismissal must comply with Article 6 and to what extent (notice, disclosure, oral hearing, legal representation, examination of witnesses);
• whether vetting may be used to determine misconduct matters to the exclusion of statutory misconduct processes; and
• whether the Performance Regulations may properly be used to dismiss officers whose vetting has been withdrawn.

The judge held that the Commissioner may lawfully impose vetting requirements under his management powers, supported by the duty to have regard to the College's publications, but that those powers do not extend to effecting dismissal by mere withdrawal of vetting: dismissal is a matter for regulations made under section 50 of the Police Act 1996. The court found Article 6 engaged where loss of minimum vetting clearance would foreseeably lead to dismissal and that, in such cases, the vetting review ordinarily requires important safeguards: detailed written notice, a right to respond, ordinarily an oral hearing, a right to call and cross-examine important witnesses where credibility is central, and the right to legal representation. Those safeguards were absent in the claimant's vetting review (no consideration of legal representation and of calling/cross-examining witnesses), so Article 6 was breached. The judge also held that vetting exercises must respect prior final misconduct determinations (findings of "no case to answer" should, except in exceptional circumstances, be treated as negating reasonable grounds to suspect) and that potential new misconduct material uncovered in vetting should be referred into the statutory misconduct process. Finally, the use of regulation 32 third-stage meetings as a mechanism to dismiss officers whose vetting has been withdrawn was held to be an improper and ineffective substitute for a statutory dismissal route, because the panel cannot re-open the underlying vetting decision and dismissal thereby becomes inevitable, undermining the Performance Regulations' purpose and safeguards.

Reliefs: the court allowed the application on Grounds 1–4, quashed the vetting withdrawal and the referral to a third-stage meeting and declined to determine the rationality challenge (Ground 5) because the matters would be remitted for re‑consideration.

The claim for judicial review is allowed on Grounds 1 to 4 and the Defendant’s decision to withdraw the Claimant’s vetting clearance (and the related appeal decision) and to refer him to a third-stage meeting under regulation 32 of the Police (Performance) Regulations 2020 are quashed. Rationale: the Commissioner has power to require vetting but not to effect dismissal merely by withdrawing vetting clearance; vetting reviews that risk removal of minimum clearance engage Article 6 and require specific procedural safeguards (including, ordinarily, an oral hearing, opportunity to call/cross-examine witnesses and legal representation); vetting must not be used to circumvent statutory misconduct procedures and final misconduct determinations should ordinarily be respected; and the third-stage Performance Regulations process is not a proper substitute for a statutory dismissal route where vetting has been withdrawn because the panel cannot re-open the vetting decision and dismissal is inevitable.