In R (on the application of Monger) v Chief Constable of Cumbria [2013] EWHC 455 (Admin) the Administrative Court found that Cumbria Police’s decision to dismiss a Special Constable for misconduct matters was unlawful because the procedure in the applicable Police (Conduct) Regulations 2008 was not followed.

Mr Monger was a Special Constable with Cumbria Police. He was dismissed in November 2011 on the basis of a number of misconduct allegations, all of which he denied.

The Court found that the allegations had been treated as alleged breaches of the Standards of Professional Behaviour in the Schedule to the Police (Conduct) Regulations 2008 which were in force at the time (and have since been replaced by the Police (Conduct) Regulations 2012).

Cumbria Police did not, however, follow the detailed procedure for conduct matters in the Police (Conduct) Regulations. Mr Monger was simply dismissed. Cumbria Police argued that the Special Constable Regulations 1965 applied and provided an alternative route by which a Special Constables could be dismissed, including where the basis for the dismissal is the officer’s misconduct.

Regulation 3(2) of the Special Constables Regulations 1965 provides:

“The chief constable may require a special constable to retire on such date as he may specify—

(a) on account of age;

(b) on the grounds that he is disabled to perform the ordinary duties of a special constable and the disablement is likely to be permanent, or

(c) as an alternative to dismissal, where he has been remiss or negligent in the discharge of his duty or otherwise unfit for the same.”

Cumbria Police sought to rely on regulation 3(2)(c), while accepting that the person who had dismissed Mr Monger did not actually have this provision in mind when they dismissed him. It was submitted that regulation 3(2)(c) provided a wide-ranging power to dismiss a Special Constable for anything that might render the officer unfit for duty including concerns about performance, misconduct and physical capability.

The Administrative Court rejected that argument. Supperstone J found at paragraph [7] that Regulation 3 provides for retirement when the Special Constable is incapable of performing his functions by some impairment and that:

“Parliament cannot have intended that in a case of misconduct … a police force can choose to bypass the 2008 Regulations, specifically issued to lay down appropriate procedures and safeguards for police officers, including Special Constables, in cases of misconduct.”

Suppestone J concluded that the Police (Conduct) Regulations 2008 applied to Mr Monger and that since his dismissal was not in accordance with the procedures laid down in those Regulations, his dismissal was unlawful. The decision to dismiss Mr Monger was quashed and he was reinstated as a Special Constable, with it being left for Cumbria Police to conduct an investigation in compliance with the Police (Conduct) Regulations 2008 into Mr Monger’s alleged misconduct, should it so choose.

The Judge rejected Cumbria Police’s secondary submission that Mr Monger’s dismissal should not be quashed in any event since the delay was likely to cause prejudice to the Force because Mr Monger would be likely to mount an abuse of process argument if he were reinstated and “charged” with misconduct following an investigation. Supperstone J commented at paragraph [11]:

“… Serious allegations have been made. He was dismissed without the proper investigation he was entitled to. There is no other remedy that can provide the claimant with the opportunity to clear his name. There is no evidence …that no proper hearing following an investigation can take place.”

Commentary

Police officers are not employees but office holders. They do not enjoy the protection from unfair dismissal afforded to most employees by the Employment Rights Act 1996. Instead, Parliament has provided for a limited number “exit routes” for police officers, each of which is circumscribed by legislation including the Police (Conduct) Regulations 2012, the Police (Performance) Regulations 2012 and the Police Pensions Regulations 1987. Different regulations apply to Probationers (the Police Regulations 2003, regulation 13) and to Special Constables (the Special Constables Regulations 1965, which applied in this case).

These regulatory regimes cannot be circumnavigated, as was underlined in this case. Save in exceptional circumstances, where the concern is about an officer’s misconduct, the Police (Conduct) Regulations 2012, with their careful provisions for the protection of the officer’s rights, must be followed. Those exceptional circumstances pertain where a Probationer is accused of misconduct and the primary facts are not in dispute: see Kay v Chief Constable of Northumbria Police [2009] EWHC 1835 (Admin) at [27] – [38].