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John Beggs KC and Aaron Rathmell for defendant in High Court professional discipline decision (estoppel, collateral attack, discharge from probation)

3rd November 2023

The High Court has today handed down judgment in a timely and important professional discipline case, Barnes v Chief Constable of Thames Valley Police, available here .

The claimant had told a racist joke to colleagues, which he knew was inappropriate and racist. He was subjected to discipline pursuant to the Police (Conduct) Regulations 2020 and Home Office guidance, but not dismissed by a panel chaired by an independent lawyer.

The Chief Constable decided, following those proceedings, that the claimant’s probation should be extended and that he should be subjected to performance-type proceedings – regulation 13, Police Regulations 2003 – to consider whether he should be confirmed as a full police constable officeholder, or not.

A senior officer recommended that the claimant should be confirmed as an officer, given that the incident had been a one-off, the claimant had strong testimonials and he had not been dismissed by the disciplinary panel, which had considered the same facts.

The Chief Constable disagreed, and exercised the power reserved to him to discharge the claimant from probationary office, due to the seriousness of the claimant’s conduct in telling the racist joke, what it said about his future as a police constable and the risk to public confidence.

In his written reasons, the Chief Constable expressed surprise at the decision of the disciplinary panel and was critical of the claimant’s mitigation and insight.

The claimant challenged that decision in judicial review proceedings on grounds of irrationality, estoppel, breach of legitimate expectation and procedural fairness. An interim injunction application to keep the claimant in office failed, and the High Court has now decided that the claim should be rejected on all grounds.

The Judge (Lavender J) noted there was “… no authority which has considered the situation which arose in the present case, where the same matter gave rise to both misconduct proceedings, resulting in a finding of misconduct and a sanction falling short of dismissal, and a subsequent decision to discharge a probationary constable pursuant to Regulation 13 …” (para. 34)

The judgment analyses the leading cases of R. (Coke-Wallis) v Institute of Chartered Accountants [2011] 2 A.C. 146 (cause of action estoppel in professional disciplinary proceedings) and Christou v Haringey London Borough Council [2014] Q.B. 131 (re-opening employment discipline allegations following public interest reviews).

The High Court concluded that the Chief Constable, in taking an important managerial decision reserved to him, was not acting as a litigant or judicial tribunal duplicating disciplinary proceedings, so cause of action estoppel and the collateral attack doctrine did not apply.

It was also not unfair or irrational, in the circumstances, for the Chief Constable to take a different view to earlier decision-makers as to the seriousness of the claimant’s conduct, and the extent of his remorse and insight.

Further, it was not unfair to take the discharge decision on the papers, without giving the claimant a (further) hearing or sharing a provisional decision. The claimant had in substance known the evidence and points which may be said against him, had the opportunity to make representations, and the Chief Constable relied on no new matter.

The High Court’s decision does not, of course, permit police forces to bypass the important procedural fairness protections in disciplinary regulations, when conduct allegations are in dispute. The judgment does, however, recognise the important role for Chief Constables, as heads of their organisations in respect of recruitment, appointment and probation.

All the more so when considered together with the recent High Court decision in Victor v Chief Constable of West Mercia Police, which related to successive decisions about discipline, vetting clearance and discharge from probationary office. See a summary of that case here .

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