High Court decides police vetting and probation case
18th August 2023
The High Court has handed down judgment today in Victor v Chief Constable of West Mercia Police, available here. The decision is of some topicality and importance. John Beggs KC and Aaron Rathmell appeared for the defendant Chief Constable.
The facts were, briefly: off-duty misconduct by the claimant while she was a probationary police constable, in the form of verbal abuse in discriminatory terms while intoxicated in a public place (substantially admitted); final written warning given at a misconduct meeting pursuant to the Police (Conduct) Regulations 2020; vetting review conducted on behalf of the Chief Constable, pursuant to the College of Policing’s Authorised Professional Practice on Vetting (“APP”); recruitment vetting withdrawn, based on the behaviour demonstrated by the claimant in connection with the same off-duty incident; discharge pursuant to regulation 13 of the Police Regulations 2003, terminating the claimant’s probationary service, in light of the absence of vetting.
The claimant submitted that the vetting and regulation 13 decisions taken by the Chief Constable were unlawful inter alia because they were in “conflict” with the misconduct proceedings, which had not resulted in the outcome of dismissal. The claimant submitted that because her behaviour had already been dealt with in the misconduct proceedings, any review of her vetting clearance should be limited to consideration of her integrity and her access to police assets, otherwise the protections of the conduct regulations would be frustrated.
The Court dismissed the claim. Mr Justice Eyre observed that a review of vetting clearance following misconduct proceedings was a proper practice in accordance with the APP and was to be a full review, not constrained by the outcome of those proceedings (paras 81–83 and 91). All the more so because the claimant was a probationer, though this was not the only basis for the decision.
Further, the Chief Constable had been “right to say that public confidence in the police service would be diminished if those who are immature or who have shown an ability to lose their self-control when affected by drink or when in anger have access to confidential information” (para. 74). The decisions were “well within the range of permissible decisions … clearly rational” (para. 93).
The judgment affirms that “The starting point is that the misconduct proceedings and the review of the Claimant’s vetting clearance were different processes carried out by different officers applying different rules. The objectives of those processes were closely related but they were not identical. It is, accordingly, not surprising that the processes had different outcomes …” (para. 80). See also para. 91:
“…the misconduct proceedings and the review of the Claimant’s vetting clearance were different processes in which different, but related, criteria were applied. Moreover, and significantly the Vetting Code of Practice and the APP to which the Defendant was required to have regard called for the review to be undertaken in these circumstances. For such a review to be undertaken properly it could not simply mirror the outcome in the misconduct proceedings but had to be a genuine review of the vetting clearance having regard to all the considerations relevant to such a review. Although there is force in the Claimant’s point that primacy should be accorded to the conclusion reached in the misconduct proceedings as to the measures necessary to maintain professional standards and public confidence it cannot outweigh the factors in favour of lawfulness. In particular it cannot prevail against the fact that the requirement that there was to be a review of the Claimant’s vetting clearance is strongly indicative that this was to be a full and not an attenuated review …”
The judgment does not of course mean that Professional Standards Departments can bypass or otherwise subvert the important protections for police constables in the conduct regulations. Indeed, Eyre J noted the public interest in the independence of police constables and the protections given to them (paras 62–69).
What the judgment does do, however, is reiterate the “... potent public interest in ensuring the highest standards of integrity, professionalism, and performance by police officers and in limiting access to the material to which police officers are privy to those who are fit to have such access …” (paras 69, 91) and the distinct, important role for vetting in achieving this.
The judgment may also lend confidence to decision-makers who act in good faith, applying the regulations and vetting guidance for their intended purposes, sensitive to the facts of each case, and giving multi-factorial reasons for decisions.
It is a nuanced judgment, worth reading closely.
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