Kay, R (on the application of) v Chief Constable of Northumbria Police

This application raises issues on how allegations of misconduct of probationary police officers should be handled and whether the procedure adopted in the present case shows errors of public law.

The main issue is whether a probationary police officer, who during her probationary period was suspected of having made a false insurance claim, should have had her case considered under:-

Mr Paul Greaney counsel for Ms Fiona Kay (“the claimant”) contends that the Conduct Regulations were the appropriate regulations while Mr Nicholas Wilcox, counsel for the Chief Constable, submits that the Chief Constable was right to apply regulation 13. There are also other challenges to the decision of the Chief Constable based on procedural unfairness and on irrationality.

Ms Fiona Kay (“the claimant”) commenced serving as a probationary police constable with Northumbria Police on 5 April 2004. On 21 July 2005, she was arrested and she was suspended from duty as a result of an allegation that she had made a fraudulent insurance claim in relation to her engagement ring. The alleged offence had been reported to the police by the estranged husband of the claimant, who was also a serving police officer with Northumbria Police.

Subsequently, the claimant was charged with the offence of obtaining property by deception. She denied the charge and the case was committed to Newcastle Crown Court for trial. On 21 August 2006 at that court, the prosecution offered no evidence against her and a verdict of not guilty was entered. The case for the claimant is that the prosecution took that decision because of concerns about the credibility of the claimant’s estranged husband, who was the main prosecution witness. The claimant contends that her estranged husband had made up the allegations because she had rejected his proposals for reconciliation.

Before the end of the criminal proceedings, the claimant had been served with formal notice of the possibility of misconduct proceedings being brought against her under the Conduct Regulations. After the criminal matters had been resolved, Northumbria Police considered whether misconduct proceedings could be brought, but in fact no misconduct proceedings were brought against the claimant but proceedings were brought against her pursuant to regulation 13.

It appears from documents disclosed that counsel experienced in police misconduct work had advised the Chief Constable in September 2006 against the institution of misconduct proceedings on evidential grounds. Nevertheless, Deputy Chief Constable Warcup decided that the matter should progress to a misconduct hearing because of the serious nature of the allegations. It appears that the procedure, which he recommended, was formal misconduct proceedings at a hearing with a full range of sanctions available while counsel who had advised earlier concluded that the “matter should not progress to misconduct proceedings”. Investigations continued and by 30 April 2007, consideration was given for the first time to pursuing the complaint against the claimant under regulation 13.

Subsequently, there was advice from a Queen’s Counsel and by May 2007, it was decided that action against the claimant would proceed under regulation 13. This led to a hearing before Acting Assistant Chief Constable Steven Mavin on 26 July 2007, which focused on the allegation that the claimant had made a false insurance claim which the claimant denied. The hearing concluded with this exchange relating to the claimant starting with Assistant Chief Constable Mavin saying to the claimant :-

“Pc Kay, I’ve carefully considered the evidence in relation to this hearing today. I rely on my interview with you and the representations that have been made in reaching my decision. I’ve also considered the options that are available. I do not consider that you are likely to become a well conducted constable because I have doubts about your integrity and honesty. This is based on the answers you have given me today regarding the use of the original computer that you owned for the production of the photo of your ring and your explanation as to the way in which you say you took the photo of that photo and why you did not take the original photo to the jewellers as you did with the receipt of the ring. That leads me to believe that there was never an original photo. I am also not convinced of the veracity of your claim that you took a photo of a photo using a telephone camera because of the expert witness evidence provided by Mr Ian McArthur that states the photo on your camera phone is an original picture with a three dimensional hand. I therefore require that you resign forthwith. Will you resign?

PC Kay: Yes Sir

Supt Neill: The last day for pay purposes is 23 August section s1 and 2. I will require your Warrant Card and your holder and also your box key if you have them with you today. I need that. Do that before we leave”

On 7 October 2007, a letter before action was sent to the Chief Constable in accordance with the pre-action protocol for Judicial Review contending first that the Acting Assistant Chief Constable had no authority to act under regulation 13 as the decision was solely for a Chief Constable and second that his decision was Wednesbury unreasonable. It was said that the regulation 13 procedure should not have been used where the underlying conduct was one of misconduct which was neither admitted by the claimant nor established to be true.

On 17 October 2007, the solicitor for the Chief Constable wrote to the claimant accepting that there was some merit in the first complaint (which was that the Acting Assistant Chief Constable had no authority to act under regulation 13) while not accepting the second complaint which was the challenge of the decision before offering to reinstate the claimant pending a re-hearing before the Chief Constable.

The claimant wrote to the solicitor for the Chief Constable on 22 October 2007 stating that her understanding was that the proposal involved (i) the re-instatement of the claimant; (ii) the payment to her of any loss of earnings since the hearing on 26 July 2007; and (iii) the consideration of any regulation 13 issue at a hearing before the Chief Constable in early December 2007 and that would be:-

“a de novo hearing involving the Chief Constable considering any regulation 13 issues afresh and without regard to the hearing before the Acting Assistant Chief Constable Mavin”.

The letter stated that this agreement was “dependent on our understanding of your proposal being accurate. Accordingly we ask you to confirm urgently that it is”. (Underlining in the original). No such indication was given by the Chief Constable but the claimant was then reinstated.

On 5 November 2007, in anticipation of the hearing before the Chief Constable , the claimant made written submissions that (a) the regulation 13 power was not available in her case; (b) if it was available, then it was not appropriate for it to be used because of the disputed evidence; and (c) if the Chief Constable proceeded to use regulation 13, then full particulars should be provided of the matters said to put the claimant at risk of her services being dispensed with; and that (c) she should be legally represented at the hearing.

On 14 November 2007, the Chief Constable responded to that letter stating that he was awaiting legal advice but that as “this is purely an administrative process”, it followed thatthe claimant was not entitled to be legally represented.

On 19 November 2007, Deputy Chief Constable Warcup responded to that letter by stating that:-

“It is accepted that the principle of fairness is paramount in this matter. However it is clear that the vital issue is whether PC Kay is likely to become a well conducted Constable. It is accepted that PC Kay should understand clearly and well in advance of the hearing what matters it is considered are relevant to the issue of whether she should have her appointment confirmed or whether her services should be dispensed with pursuant to regulation 13. It is accepted that PC Kay is entitled to be supplied with particulars of those matters which impinge on the fundamental issues of the hearing. However it is clear that pursuant to the meeting with Acting Assistant Chief Constable Mavin in the presence of her Federation Representative there was a full discussion of the issues.

Unlike in disciplinary matters there is no provision in the Police Regulations or Annex C for lawyers to become involved. The issues to be discussed are plainly raised in the terms of regulation 13.”

A detailed bundle of documentation was sent to the Chief Constable and the claimant in late November or early December 2007. In consequence on 4 December 2007, the claimant’s solicitors wrote to the Chief Constable’s solicitors indicating that it would be inappropriate for the Chief Constable to receive the material, which included the transcript for the hearing before Mr Mavin.

The Chief Constable responded on 10 December 2007 explaining that:-

“.. this is not a hearing. It is an administrative process. I am not prepared to delay the process further. My view is that I can have access to any documents which I choose to have access to, which will inform and help me to determine whether or not [the claimant] is fitted to be a Police Constable. I do not agree with your suggestion that I should be unaware of the previous decisions of Acting Assistant Chief Constable Mavin. However, what I can assure you of, is that I will make my decision quite independently and I will not be influenced by the decision or view of any other officer”.

On 12 December 2007, concerns were expressed about the Chief Constable’s approach because he had impliedly accepted that the hearing would be conducted without regard to the hearing before Acting Assistant Chief Constable Mavin and yet he had been provided with information about that hearing, including prejudicial material. The Chief Constable was asked to recuse himself.

It was also said that having regard to the chronology that:-

“The strong suspicion is that the discipline authority wished to proceed by way of misconduct proceedings, but having been advised that the state of evidence made that inappropriate and after much delay, decided to use the Regulation 13 procedure. If that is what occurred, then it would render the use of that procedure unfair and an abuse of process”.

It was also pointed out that the claimant objected to the use of the regulation 13 procedure. The Chief Constable replied on 14 January 2008 rejecting the complaints of the claimant but he did state that:-

“..one specific concern that I personally have is your client’s judgment in not allowing the police to have access to her daughter to answer questions which may have resolved issues in this case”.

A note from counsel for the claimant of 19 February 2008 stated first that it was inappropriate for the matter to be determined by the Chief Constable; second that regulation 13 procedure was not appropriate to the facts of her case and third that she had not sufficient particulars of what was being said and which might justify the conclusion that she was not likely to become an efficient or well- conducted constable.

It was explained that the reasons why she had not given her consent for her daughter to be questioned was because she had taken the advice of the Police Federation, her lawyers at the time and her occupational health counsellor all of whom advised against giving this consent. The note stated that this accorded with her own instinct to protect her daughter from a situation which was capable of causing her harm. It was said that it was difficult to see how that could justify a finding that the claimant was not likely to become “an efficient or well conducted constable”.

On 20 February 2008, the Chief Constable responded and he then dismissed the arguments. The regulation 13 proceeding took place later that day. The hearing was recorded as having lasted for 5 minutes.

The Chief Constable required the resignation of the claimant stating that-

“I have doubts regarding your personal integrity and honesty and also around your professional judgement. My concerns regarding your honesty and integrity are based on the expert evidence of Mr Ian McArthur (sic – a reference to Iain McArthur, an expert who was to have been called during the criminal prosecution) who states that the photograph on your camera phone is an original of a 3 dimensional hand contrary to your own version. I also have doubts regarding your truthfulness in regard to your version of events in claiming that there ever was an original photograph of the ring produced from a computer. My concerns regarding your professional judgement stem from your decision not to allow access to your daughter in order to help establish the truth. You are a professional police officer and I find it unacceptable that you would be expected to ask of the public that which you are not prepared to do yourself. I am not swayed by your claim that you sought advice on this matter. It remains your decision and your decision alone. This is not the standard I expect of my officers.”

The decision of the Chief Constable to dispense with the service of the claimant was influenced by first his conclusion that she had been untruthful about matters relating to the insurance claim and second the fact that she denied the police access to her young daughter.

The issues which have to be considered are:-

The case for the claimant is that the complaints against her should have been dealt with by the disciplinary procedure not by regulation 13. This is disputed by the Chief Constable as it is said that he was entitled to deal with this matter under regulation 13 and not under the Conduct Regulations.

The starting point in determining the correct approach is the decision of the Court of Appeal in R v Chief Constable of the West Midlands ex parte Carroll (Court of Appeal- Unreported 10 May 1994), which concerned a decision to dispense with the services of a probationary constable under a predecessor of regulation 13 but the material part of which was in identical terms. There were said to have been three episodes, which demonstrated that this probationer was unsuitable to retain office. It was accepted by the police that two of the alleged incidents could have been the subject of disciplinary proceedings because they amounted to allegations of conduct contrary to the police disciplinary code. The probationer strongly denied two of the allegations made against him and in addition, he contended first that there was a conspiracy to harm him from within the force and second that the charges were untrue.

The Court of Appeal unanimously reversed the decision of the Divisional Court, which was that it was appropriate for the police to use the equivalent to regulation 13 for the proceedings against the probationary officer. The Court of Appeal held that the matter should have been dealt with by the disciplinary procedure and not under the equivalent of regulation 13.

McCowan LJ explained at pages 13 and 14 of the judgment that:-

“Prima facie, therefore, there should have been disciplinary proceedings concerning the allegations, since the appellant denied them and made serious allegations of conspiracy against his accusers… For my part, I consider that the appellant should have been charged with an offence against discipline, and it is not right to use the provision for dispensing with his service as an alternative means of getting rid of him…

I consider the decision not to hold disciplinary proceedings was both Wednesbury unreasonable and in breach of the duty of fairness”.

Rose LJ drew attention to paragraph 9.38 of the Home Office Circular which explained that provisions for a chief officer to dispense with the services of a constable during the period of probation should not be used as an alternative means of dismissing a probationer where he should properly be charged with an offence against discipline. He said at page 16 of the transcript that:-

“in relation to a practitioner the conclusion is, in my view inescapable that, contrary to the latter part of paragraph 9.38 of the Home Office circular [these words remain the present guidance (Home Office circular 8/2005 (“Guidance on Police Unsatisfactory Performance, Complaints and Misconduct Procedures”), the Chief Constable’s dismissal of the appellant left the impression that he had been suspected of an offence, but given no chance to defend himself at a disciplinary hearing”.

Balcombe LJ said at page 17 of the judgment that:-

“In my judgment, in failing to give [the probationary police officer] the opportunity to deal with those contested issues of fact by the means of a disciplinary hearing the Chief Constable broke the duty of fairness, which, of course, is recognised by paragraph 9.38 of the Home Office circular. In the end, by being denied the opportunity to contest effectively the allegations made against him in relation to the last two incidents, [the probationary police officer] was left with the impression that he had been suspected of an offence and given no chance to defend himself at a disciplinary hearing”.

It is said on behalf of the Chief Constable that there has been a retreat from that position although the decision in Carroll has not been overruled nor has it been criticised or not followed in any way in any case. Mr Wilcox attaches great importance to the approach adopted in R v Chief Constable of British Transport Police ex parte Farmer (Court of Appeal- 30 July 1999 unreported) where it was explained by Henry LJ giving the judgment of the Court of Appeal that cases such as Carroll (supra):-

“show that, in what I may call mainstream policing, where the Police Regulations apply, it has never been suggested that there is no discretion to proceed by the probationary disciplinary procedures where misconduct such as might be prosecuted under the disciplinary programme is charged. It would be a curiosity if such a rule did not apply to those more formalised probationary dismissal procedures, but did not apply to the [British Transport Police Force] procedure on the strength of the plainly ambiguous last sentence of condition 7 [in the British Transport Police Force Conditions of Service]”.

The case was dealt with under different regulations from those applicable in the present case but it is of great importance that Henry LJ concluded the judgment of the court by saying that:-

“In conclusion, there are two separate dismissal procedures which govern probationers. The decision which to use is a decision for the employing force. Where the facts founding the complaint are not admitted, in most if not all cases the decision is likely to be that the question whether the charge is proved or not proved be decided under the disciplinary procedures”.

Mr Wilcox then seeks to rely on a decision of Buxton LJ in R (Begley) v Chief Constable of West Midlands Police [2001] EWCA Civ 1571 in which he refused to grant permission to the former police officer, who sought permission to judicial review a decision made under the equivalent of regulation to dispense with the claimant’s services. Buxton LJ said that in the court below Richards J (as he then was) had said that:-

“it is open to the employing force to decide whether it shall use the disciplinary procedure that governs probationers or whether it shall use the disciplinary procedure”[6].

The judgment below of Richards J ([2001] EWCA Admin 534) shows that the facts in that case were not in dispute because first the assaults had been found to have occurred and second the police officer had been interviewed by the News of the World, which led to an article portraying her and other officers in an unfavourable light. In other words, that was a case where there was no dispute on the evidence. There is nothing in the comments of Buxton LJ, which qualify in any way the clear principles which emerge from the decisions and statements in Carroll and Farmer to which I have referred in paragraphs 27 to 34 above. No decision or comment qualifying them in any way has been adduced.

On the contrary, I am fortified in reaching this conclusion by the recent decision of Elias J (as he then was) in R (Khan) v Chief Constable of Lancashire [2009] EWHC 472 (Admin) in which he had to consider a challenge to a decision to dispense with the services of a probationary officer under regulation13 where there had been an allegation of sexual misconduct. Having considered Carroll and Farmer (supra), Elias J stated that:-

“33 The issue, it seems to me, is whether there was sufficient conflict over the relevant facts to make it unfair for the Chief Constable to make the judgment he did on the basis of the undisputed primary facts. I do not think there was”.

I respectfully agree and I would suggest that the test for determining if a case against a probationary police officer should be determined under regulation 13 or under the Conduct Regulations is whether there is such conflict over the facts relating to the misconduct relied on with the consequence that it would be unfair for the Chief Constable to make the judgment he did on the basis of the undisputed primary facts rather than giving the probationary police officer the protection to which he or she was entitled under the Conduct Regulations as explained in paragraph 2(b) above. As Henry LJ explained in Farmer in the passage which I quoted in paragraph 34 above, the position in “most if not all cases” where the facts on which the complaint is based are not admitted, is that such cases should be dealt with under the disciplinary procedures and not under regulation 13.

Mr Wilcox says that even if that is right, this general rule or principles does not apply because in this case, there was limited dispute on the evidence but I am unable to agree and must refer to four matters. First there was a dispute about a photograph of the claimant’s engagement ring which was said to support the claim that the claimant had made a false claim to the insurance company for the loss of her ring because it is said against the claimant that a picture had been taken by her of the ring after the time when it is alleged that it had been taken. There was a dispute as to when that photograph was taken as the claimant states that it was taken before the theft and that the image in question is merely a photograph of a photograph. So one of the issues for the decision-maker was to determine whether the image on the telephone camera of the claimant was a photograph of a photograph or an ordinary photograph.

Mr Iain McArthur, who is a professional audio visual engineer, stated in October 2005 that he could not confirm 100% whether the image on the telephone camera was a photograph of a photograph or a photograph of a real hand. Nevertheless by 20 March 2007, he was able to state that the picture in question was an original picture taken on a photo camera of a real hand and that was contrary to the claimant’s account. This evidence, which was disputed, was of great importance and it would and should obviously have been the subject of substantial scrutiny at any disciplinary hearing. Therefore, legal representation would have been invaluable and necessary for the claimant.

A second area of dispute concerned the reliability of the claimant’s husband who reported the claimant to the police authorities because the claimant said that she had refused any attempts of reconciliation. As I have explained, the claimant concluded that the reason why the prosecution offered no evidence against her criminal charges against her was because of concerns about the credibility of the claimant’s estranged husband, who was the main prosecution witness. The claimant contends that her estranged husband had made up the allegations because she had rejected his proposals for reconciliation.

A third area of dispute was that the Chief Constable attached importance to the fact that the claimant did not want her young daughter to be questioned about the photograph of the ring on the mobile phone in relation to which the claimant’s daughter was a witness but the claimant would not allow her to be questioned. She had an explanation for her decision relating to the effect that such inquiries would have had on her young daughter and which she contends does not show in any way that she was hiding the truth or that she was not being candid.

Another area of dispute was the allegation that the claimant did not have a digital camera which she claims that she used to photograph the ring because it had been omitted from a very long list of items which she said had been removed. The claimant in answer states that there were many items that she had left off the list and so no inference can be drawn from its omission.

Each of those contentious matters and other matters could and should properly have been the subject of scrutiny under the Conduct Regulations. In my view, this was a classic case of a disputed claim where a full disciplinary hearing was required. The ordinary rule explained by Henry LJ and set out in paragraph 34 above should not have been displaced with the consequence that the rule 13 procedure should not have been invoked.

If, which is not the case, I had had any doubts about this conclusion, I would have been fortified in coming to that conclusion by the statement in the Introduction to the Guidance in Home Office Circular 8/2005 (“Guidance on Police Unsatisfactory Performance , Complaints and Misconduct Procedures”) that:-

“The provision for a chief officer to dispense with the service of a constable during his or her probationary period should not be used as an alternative means of dismissing a probationer who should properly face misconduct proceedings. Where misconduct proceedings are appropriate and justified, they should be brought; where they are not brought, a probationer should not be left with the impression that he or she has been suspected of misconduct and been given no chance to defend himself or herself ”.

It is settled law that guidance of this sort should be followed unless there is a good reason to the contrary but no good reason has been put forward. I would respectfully suggest this guidance is sensible and it reassuringly accords with my understanding of the authorities, which I have set out in paragraph 38 above.

For all those reasons, I have concluded that the decision should be quashed because the wrong procedure was adopted by the Chief Constable and regulation 13 should not have been adopted. I would respectfully adopt the same reasoning as was applied in the Carroll case (supra) and hold, that in McCowan LJ’s words, that in this case “the decision not to hold disciplinary proceedings was both Wednesbury unreasonable and in breach of the duty of fairness”.

It is said that the Chief Constable should have recused himself as this was a case of apparent bias because the Chief Constable had been provided with details of the hearing before Acting Assistant Chief Constable Mavin but he said that he would make an independent decision. Apparent bias is dependant upon an appearance of bias. I have decided that I cannot come to a conclusion on this because first it is an academic issue because, as I have already explained, the decision under challenge has in any event to be set aside. And second none of the relevant authorities on apparent bias were drawn to my attention.

By the same token, little time was spent on considering whether inadequate particulars were provided to the claimant but my provisional view is that she must have known from the correspondence and the history first that the charge was that she had made a dishonest claim for the loss of her engagement ring, second that reliance was placed on the evidence of Mr Iain McArthur and third that inferences would be drawn from the claimant’s failure to enable her daughter to be questioned.

This issue is also academic but I should say that if the Chief Constable was entitled to invoke regulation 13 and if the Chief Constable was entitled to conduct the hearing in the way he did, I would require much persuading that the decision under challenge was irrational.

For the reasons which I have sought to explain the decision under challenge has to be quashed. After I circulated the draft judgment to counsel in order to ascertain what order I should make I received submissions from both counsel which showed a radical difference in approach. Mr Wilcox explained that the Chief Constable did not wish to reinstate the claimant but that to hold a misconduct hearing would now be fraught with difficulties bearing in mind the time delay and other submissions that the claimant could make relating to the fairness of such proceedings. In those circumstances it was submitted that “the claimant is entitled to reapply as a police officer [and she] is not entitled to reinstatement or any payment of salary from 20 February 2008 because the decision of the Chief Constable put an end to the tenure of the claimant’s office as a constable”.

I am unable to accept that submission which is totally inconsistent with my conclusion that the decision made under regulation 13 to dispense with the services of the claimant was wrongful. The Chief Constable’s case is premised on the contrary and incorrect basis that he had been successful in these proceedings.

It is noteworthy that in Chief Constable of the North Wales Police v. Evans [1982] 1 WLR 1155 the House of Lords had to decide what order to make when it set aside a decision dispensing with the services of a probationary constable which contravened the principles of natural justice. In that case declarations were made that (a) the Chief Constable acted unlawfully and in breach of his duty in threatening to dispense with the probationary police constable’s services unless he resigned from the police force and thus causing him to resign; and (b) by reason of such unlawfully induced resignation the probationary police constable thereby became entitled to the same rights and remedies, not including reinstatement as he would have had if the Chief Constable had not unlawfully dispensed with his services under the appropriate regulation.

There can be no doubt that the claimant is entitled to declaration (a) and my only concern about imposing declaration (b) concerns the inclusion of the words italicised (“not including reinstatement”). I have received no submissions dealing with that aspect of the case and I therefore propose to give the parties liberty to restore if a declaration in the form of paragraph (b) is sought either with or without the italicised words.