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

A police force may require officers to hold vetting clearance under its powers of direction and control, but withdrawal of clearance is not itself a lawful statutory basis for dismissing a constable. Allegations of misconduct must be dealt with through the statutory misconduct regime, whose safeguards must not be circumvented by internal vetting procedures.

Where Article 6 is engaged, a vetting review will generally require detailed notice, disclosure subject to appropriate public-interest limits, an opportunity to respond, an oral hearing, and legal representation. Witnesses should be called or cross-examined where their evidence is likely to be significant on an important disputed issue.

The Police (Performance) Regulations 2020 do not apply merely because an officer cannot perform duties after vetting has been withdrawn. A procedure which makes dismissal inevitable, while preventing review of the vetting decision, is unlawful.

The claimant was a serving Metropolitan Police officer whose management and recruitment vetting clearances were withdrawn after allegations of sexual misconduct, inappropriate behaviour and other complaints. The allegations of rape had been investigated under the statutory misconduct regime and resulted in findings of no case to answer; other allegations were unproved.

The withdrawal decision was upheld on appeal. The claimant was then referred to a third-stage meeting under the Police (Performance) Regulations 2020 for gross incompetence, on the basis that without minimum vetting he could not perform his duties. He sought judicial review of the vetting withdrawal, the appeal decision and the referral.

The central issues were whether vetting could lawfully lead to dismissal, whether the vetting procedure complied with Article 6 ECHR, whether it circumvented the statutory misconduct regime, and whether loss of vetting fell within gross incompetence.

1. Ground 1. The defendant could require officers to undergo vetting under section 4(3) and paragraph 4(1) of Schedule 4 to the Police Reform and Social Responsibility Act 2011. Section 39A(7) of the Police Act 1996 supported that conclusion. However, the power did not extend to dismissal by reason of withdrawal of vetting. Dismissal from office required regulations made under section 50(3) of the Police Act 1996. Ground 1 succeeded.
2. Ground 2. Article 6 was engaged because withdrawal of minimum vetting had a sufficiently direct connection with loss of office, profession and income. Judicial review supplied independent review of the administrative decision, but it could not ordinarily hear witnesses or make primary factual findings. A lower threshold of reasonable suspicion did not remove the need for procedural fairness.
3. In an Article 6 vetting review, the officer should generally receive detailed written notice supported by relevant evidence, an opportunity to respond, advice about a police friend, and an oral hearing. There is no absolute right to call or cross-examine witnesses, but that opportunity should be allowed where the evidence is likely to be significant on an important disputed factual issue. Legal representation was required where the gravity of the allegations and the likely consequences made it necessary. The claimant had been denied a fair procedure. Ground 2 succeeded.
4. Ground 3. The statutory misconduct procedures were the proper route for determining allegations of misconduct. Their safeguards could not be circumvented through informal vetting procedures. Where an allegation had resulted in no case to answer or no misconduct proved, it should ordinarily be accorded primacy in a later vetting review, absent significant new evidence. New allegations arising in vetting should usually be referred to the appropriate authority for consideration under the misconduct regime. Ground 3 succeeded.
5. Ground 4. The natural meaning and statutory context of “performance”, “unsatisfactory performance” and “gross incompetence” in the Police (Performance) Regulations 2020 concerned competence and performance of duties. They did not cover an officer who was able and willing to perform duties but was prevented from doing so because vetting had been withdrawn. In any event, the proposed process was ineffective because the panel could not reopen the vetting decision and dismissal was inevitable once minimum clearance had been withdrawn. Ground 4 succeeded.
6. The rationality challenge under Ground 5 was not determined. The claim was allowed on Grounds 1 to 4. The withdrawal and appeal decisions and the referral to a third-stage meeting were quashed. No order was made concerning the Code of Practice or APP.

First-instance judicial review in the Administrative Court. The claim was allowed on Grounds 1 to 4 and the impugned decisions were quashed.