Barnes v Chief Constable of Thames Valley Police, is an important professional discipline case considering the power of the Chief Constable to discharge a probationary officer, notwithstanding misconduct proceedings relating to the same officer and the same concerns did not result in dismissal.

Facts

The claimant had told a racist joke to colleagues, which he knew was inappropriate and racist. He was subjected to disciplinary action pursuant to the Police (Conduct) Regulations 2020 and Home Office guidance, in which a panel chaired by an independent lawyer found the conduct amounted to misconduct rather than gross misconduct, and imposed a written warning.

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 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.

Decision

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.

Analysis

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.

John Beggs KC and Aaron Rathmell appeared for the defendant Chief Constable in R (Victor) v Chief Constable of West Mercia Police [2023] EWHC 2119 (Admin). This is a topical and important case considering the distinct but overlapping roles of the vetting review procedure and misconduct proceedings in relation to probationary officers.

Facts

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.

Decision

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 …”

Analysis

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.

The Independent Office for Police Conduct (IOPC), the College of Policing, and His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services (HMICFRS) have published their findings following a comprehensive investigation into the serious concerns raised in a police super-complaint submitted by the Suzy Lamplugh Trust on behalf of the National Stalking Consortium in 2022.

The investigation included interviews with victims of stalking, a thematic review of 50 IOPC cases involving stalking, and a focus group with representatives from 5 stalking victims support service providers.

Findings and Recommendations

The findings are comprehensive and deserving of a thorough read through. What follows below is a summary of just a select few of the key findings.

The investigation found that the criminal law on stalking is unclear and difficult to apply. For instance, there is a lack of a clear legal definition of stalking, and an overlap between stalking and harassment. As a result, police officers and staff do not always effectively understand and apply the distinction between the summary-only offence in section 2A of the Protection from Harassment Act 1997, and the more serious stalking offence in section 4A of that Act. In order to create a better foundation for policing to provide a good service to stalking victims, the recommendations include that the Home Office should consider whether there should be a single stand-alone stalking offence.

The investigation also found that guidance on stalking is scattered and inconsistent. There are several sources of advice and guidance for the police on stalking and stalking protection orders (SPOs)[1] and each has a different focus in terms of distinguishing what is and is not stalking. Importantly however, the investigation found that the Home Office statutory guidance on the Stalking Protection Act for the police, which is focussed on the application for and management of SPOs, has the clearest and most descriptive explanation of stalking in the current absence of specific statutory guidance on stalking offences. The findings in relation to SPOs include that, generally, the use of SPOs by the police is “worryingly low.” The number of SPO applications made per reported stalking crime varies across forces, and this suggests a variable approach between forces as to how SPOs are implemented. The report makes the following recommendation to chief constables:

By 27 March 2025, take steps to make sure that force strategies, structures and processes are in place so that police consider an SPO in every stalking case, and apply for an SPO where relevant and appropriate to prevent harm and further offending.

To achieve this, chief constables should review, and revise where necessary:

• • Local training and guidance on SPOs, including training and guidance for supervisors.
  • Mechanisms for supporting investigating officers to identify cases where SPOs would be appropriate and assisting them with SPO applications. This could be through dedicated teams or roles and/or through daily management meetings considering risk and safeguarding.

Lastly, in relation to the experiences of stalking victims, the investigation found that the availability of specialist stalking support services is sometimes variable within and between forces, and that there are poor levels of awareness within policing that stalking victims are entitled to enhanced rights under the Code of Practice for Victims of Crime.

Conclusion

Whilst many of the recommendations are for new or amended legislation, there are lessons which forces can apply now, including the provision of specialist stalking support services, training in the distinctions between harassment and stalking, and the different offences which apply, and cooperation between forces when making applications involving online stalking behaviours.

Several members of Serjeants’ Inn Chambers regularly advise forces on, and apply for, SPOs and can assist forces with any questions which may arise from the report’s findings.

 

[1] These include the College of Policing advice documents contained within authorised professional practice (APP) on stalking or harassment; the Home Office crime recording rules for frontline officers and staff; and the information on post-separation abuse, related harms, offences and other forms of domestic abuse within statutory guidance on coercive or controlling behaviour.