England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
LEEDS DISTRICT REGISTRY

		Royal Courts of Justice Strand, London, WC2A 2LL
		24 July 2009

Mr Justice Silber:

I Introduction

1. The main issue raised on this application is whether a probationary constable could have been lawfully dismissed on the basis that he "is not likely to become an effective ..police constable" where there was no criticism of his performance or of his ability to become a police constable but where the only reason for dismissing him was that there were restrictions on how he could be deployed because of some conduct which occurred before he joined the police force.
2. Mark Verity ("the claimant") seeks with permission granted by Bennett J to quash a decision of the Chief Constable of North Yorkshire Police ("the Chief Constable") made on 9 June 2008 to dispense with the claimant's service as a probationary constable pursuant to the provisions of regulation 13 of the Police Regulations 2003, which provides (with my underlining added) that:-

"…during his period of probation in the force the services of a constable may be dispensed with at any time if the chief officer considers that he is not fitted physically or mentally to form the duties of his office or that he is not likely to become an efficient or well conducted constable".

3. The decision to dispense with the services of the claimant as a probationary police constable was taken in respect of matters, which occurred before his employment with the North Yorkshire Police Force started. The claimant was required to attend a regulation 13 hearing before which he had been supplied with much documentation and through his representative he had been given an opportunity to make representations. The Chief Constable decided to dispense with the services of the claimant in a decision which is under challenge in these judicial review proceedings. The Chief Constable gave a lengthy explanation of his decision in which he explained that he did not:-

"…feel comfortable or confident that…[the claimant] could be entrusted to deal with incidents involving young children on his own" and "it is my assessment that this officer could not for the foreseeable future perform independent patrol or deal singly with children. For example I would be extremely concerned if he had to deal with a child accused of shoplifting, a common occurrence for a police officer to deal with. Further I think it would be inappropriate for [the claimant] to be or was required to deal with any incident involving a child (sic)".

4. The Chief Constable stated that he had:-

"…no option but to place what I consider are necessary restrictions on the deployment of this officer specifically that he should not be allowed to patrol independently or be deployed as a police officer in the area of the City of York. However due to unforeseeable occurrences which happen during a police officer's tour of duty it would not be realistic to prevent [the claimant] from dealing with children whilst on operational patrol or to stipulate that he must be accompanied by another officer at all times".

5. The Chief Constable continued by stating that:-

"In these circumstances the safest course of action would be to restrict his duties very significantly indeed so as to make him office bound. In these circumstances it would be difficult to see how [the claimant] could complete his probation and be properly assessed in the core competencies required for the office of constable".

5. The conclusion of the Chief Constable was that:-

"I am driven to the certain view that [the claimant] was not likely to become an efficient or well conducted constable having regard to these reasonable and necessary and proportionate measures which I would otherwise inevitably impose to protect children. Accordingly his services will be dispensed with pursuant to regulation 13..".

6. The complaint which led to the regulation 13 proceedings being brought against the claimant were that before he had been employed by North Yorkshire Police, he had been charged with ten counts of sexually touching children under the age of 13. After a trial at Leeds Crown Court, the claimant was on 7 March 2008 found not guilty by a majority verdict on six counts with the jury unable to agree on the two remaining counts. The Judge also ordered the jury to return formal "not guilty" verdicts on the remaining two counts.

II The Issues

7. The issues raised on this application are whether:-

(i) the wording of regulation 13 enabled the Chief Constable to dispense with the services of the claimant where no criticism had been made of the claimant's performance as a probationary police constable but where the Chief Constable considered that there were "necessary restrictions on the deployment of this officer" with the consequence that he "is not likely to become an efficient or well conducted constable having regard to these reasonable necessary and proportionate matters which I would otherwise inevitably impose to protect children" (The Regulation 13 Issue");

(ii) the decision of the Chief Constable to dispense with the claimant's services was based on irrelevant considerations relying on the opinions of "professionals or partner agencies on the suitability of [the claimant] to undertake police duties" (The Irrelevant Considerations Issue); and

(iii) the claimant was deprived of an opportunity to be heard at the hearing in front of the Chief Constable on 30 May 2008("The Hearing Issue").

III. The Regulation 13 Issue

8. The dispute between the parties is whether in a case where a probationary police officer, who is fit physically and mentally to be able to perform the duties of his office and whose performance has not been criticized, a Chief Constable could conclude that the claimant (in the words of regulation 13) "is not likely to become an efficient … constable".
9. Mr Paul Watson QC, who is counsel for the claimant, contends that the language of regulation 13 contemplates that there has to be something about the probationer himself, which leads to the conclusion that he is not likely to become an efficient constable. It is said by Mr Watson that the Chief Constable is not entitled to dismiss on facts such as in the present case although it is accepted that the grounds for invoking regulation 13 in the words of the claimant's skeleton:-

"may not be limited to performance as such and might include, for example, unsuitable personality, intellectual shortcomings, lack of judgment in a non-policing context, association with extreme political associations or inappropriate social connections".

10. In my view, that is a proper concession to make and it is noteworthy that in the case of R (on the application of Khan) v Chief Constable of Lancashire [2009] EWHC 417 (Admin) Elias J (as he then was) rejected a challenge against a decision of a Chief Constable dispensing with the services of a probationary police constable on the grounds that the probationary police officer "had shown a lack of judgment and had been involved in the abuse of a vulnerable young woman for personal gratification"[18].
11. My starting point is that a Chief Constable can under regulation 13 dispose of the services of a probationary constable if he considers for any of a variety of reasons that the probationary constable "is not likely to become an efficient.. constable". There is nothing in the wording of the regulation which shows that there should be any limitation on the word "efficient" or that it should be given anything other than its ordinary meaning. My understanding of the meaning of that word is consistent with that in the Compact Oxford Dictionary which is that "efficient" means "working productively with minimum wasted effort or expense".
12. It follows that in my view, a Chief Constable is entitled to dispense with the services of a probationary constable under regulation 13 if he considers that he or she is not likely to work "productively with minimum wasted effort or expense". There would be numerous instances where that could possibly apply because of some aspects of the probationary constable's past. One instance might possibly be if the probationary constable had previously been, but no longer was, a leading member of the British National Party or had previously expressed views which showed hostility to a part of the community with the consequence that he or she could not be used for substantial parts of the work of a police officer in a multi-racial area. In such a case, the Chief Constable would have had information which would have entitled him to decide that there would be difficulties with the probationer police officer being able to deal with members of some or all ethnic minority communities. So those limitations on the work that the probationer could do might in appropriate circumstances mean that he could not work productively and so he would not become an "efficient" police constable.
13. Moving from the theoretical meaning of the relevant words in regulation 13 to the practical position in this case, it now becomes necessary to decide if on the facts of this case, the Chief Constable was entitled to find that the claimant would not become an efficient police constable. As this is a judicial review application, my duty is to apply the recognised legal principles in resolving this issue and crucially that means that the present hearing cannot be used to appeal the decision of the Chief Constable because a quashing order is only made in limited circumstances.
14. Indeed, Richards J (as he then was) explained in Bradley v The Jockey Club [2004] EWHC 2164 (QB) in passages which were expressly approved on appeal in that case by Lord Phillips MR. [2005] EWCA Civ 1056 [17] when giving the judgment of the Court of Appeal:-

"37 ... The function of the court is not to take the primary decision but to ensure that the primary decision-maker has operated within lawful limits…the essential concern should be with the lawfulness of the decision taken: whether the procedure was fair, whether there was any error of law, whether any exercise of judgment or discretion fell within the limits open to the decision maker, and so forth . . ."

15. In this case, the Chief Constable had before him much material including not only the documents submitted by the claimant and his representative but also a letter ("Mrs Love's letter") from Mrs Ruth Love dated 29 April 2008 to the Investigating Officer. Mrs Love was the group manger of the 11+ Children and Families and Chair of the Strategic meeting of the Leisure Culture and Children's Services of York, which had met to consider the multi-agency response to the finding of not guilty at the end of the claimant's trial to which I referred in paragraph 7 above. She explained that the purpose of her letter was to ensure that the police knew the "views of the professionals involved" when considering the "complex Human Resources and public safety issues" in this case.
16. Mrs Love explained that the Group expressed some surprise at the "not guilty" verdicts recorded against the claimant but she appreciated that there was a difference between the burden of proof in the criminal process which was "understandably high" and the different burden of proof on the question of risk to the most vulnerable for which the burden of showing that there was risk on the "balance of probabilities". She pointed out in that letter that many members of the strategy group had access to all the available evidence in the trial of the claimant or had attended his trial and she had noted that there were a number of features which lent weight to the allegations made by the children against the claimant. Those factors included the facts first that although the children attended the same after-school club they did not have any relationship with each other outside of that setting and second that there was a similarity of the allegations.
17. In that letter, Mrs Love recorded that some children claimed that the claimant had said things that indicated a sexual intent. Mrs Love noted the resilience of the children in maintaining their accounts despite the time that had elapsed since the alleged abuse and also despite being subjected to robust cross examination.
18. Mrs Love said that she could not conclude if the alleged abuse occurred or whether the claimant "poses an ongoing risk". She did however write that:-

"However, I do believe there exists a prima facie case in respect of his suitability to return to his position within the police if the matter is considered on the balance of probability. I would add that where information to come to light that [the claimant] was having a significant contact with children in the future (i.e. within the context of a relationship or a family), that I would expect the local authority to instigate an inquiry under the Children Act 1989 (s47)".

19. Mrs Love pointed out that the meeting had considered whether an independent assessment should take place conducted by a suitable professional with necessary investigatory skills and child safe-guarding knowledge so that a judgement could be reached on the civil burden of proof. The meeting however concluded that the timescales would not allow such a piece of work to be commissioned and completed.
20. Mrs Love's letter finished with her stating that:-

"In summary, and speaking on behalf of the strategy group I remain concerned about [the claimant] resuming his role within North Yorkshire Police, especially in respect of the authority his bestows (sic). Further to this I would wish a referral to be made to the appropriate regulatory body".

21. It must not be forgotten that the Chief Constable would have been able to come to his own conclusion on the risk factors and indeed he explained that he had taken account of the provisions of section 11 of the Children Act 2004 and the duties imposed on the police and the statutory guidance made under it entitled "Every Child Matters". Set against that background, the representations made on behalf of the claimant, his reading of all the material and also his own concerns to which I have referred in paragraph 3 above, the Chief Constable was entitled to conclude, as he did:-

(a) that there had to be limitations on the work that the claimant could do with and in relation to children because the claimant "could not for the foreseeable future independent patrol or deal singly with children";

(b) due to unforeseen circumstances, officers on duty could find themselves dealing with children and so in words of the Chief Constable "the safest course of action would be to restrict [the claimant's] duties very significantly indeed so as to make him office bound";

(c) in that event again in the words of the Chief Constable "it would be difficult to see how [the claimant ] could complete his probation and be properly assessed in the core competencies required for the office of constable"; and

(d) for those reasons, the claimant "is not likely to become an efficient.. constable" and he discharged the claimant .

22. In my view the Chief Constable was entitled to reach this conclusion. If (which is not this case) I had been in any doubt about this conclusion, there would be two additional reasons which support it. The first is that the ability to discharge under regulation 13 depends not on whether on an objective basis the probationer would not become an efficient police constable but on whether the Chief Constable considers that he does. That means that the grounds for challenging the decision on factual grounds are limited to issues such as irrationality and Wednesbury unreasonableness on the part of the Chief Constable. This case does not come anywhere near reaching that threshold.
23. Second, the Chief Constable must be allowed a substantial degree of deference as he, unlike a judge, knows what constables are expected to do and the risks that the claimant might constitute to children. This constitutes an additional reason for supporting the decision under challenge.

IV The Irrelevant Consideration Issue

24. The complaint of Mr Watson is that the letter notifying the claimant that he was dismissed showed that the Chief Constable based his conclusion in part on the opinions of "professionals of partner agencies on the suitability of PC Verity to undertake police duties" and in consequence "the matters the professionals assessed lent weight to the evidence of the children".
25. Mr Watson also complains that the letter notifying the claimant that his services were disposed of showed that the Chief Constable had based his conclusion in part on:-

"the opinion of the ' professionals of partner agencies in concluding that the allegations might be true" on the suitability of [the claimant] to undertake police duties'. In his view, the matters the professionals assessed lent weight to the evidence of the children".

26. This complaint was referring to Mrs Love's letter but claimant had been served with this as well as the other relevant documents under cover of a letter dated 10 April 2008. The claimant had in that letter been invited to make representations to the Chief Constable on the contents of those documents. Representations were duly made on the claimant's behalf by his Federation representative in a letter dated 12 May 2008 in which the Chief Constable was invited to disregard Mrs Love's letter to "the extent that it expresses any views as to the genuineness of the allegations, and whatever standard of proof and should disregard any concerns there expressed as to [the claimant] resuming his role in the North Yorkshire police". No objection was made to any other material in Mrs Love's letter either in that letter or in the written representations made at the meeting on 30 May 2008.
27. It is noteworthy that Mrs Love's letter from the Board clearly states that she was "not in a position to conclude that the alleged abuse occurred or that [the claimant] poses an ongoing risk". The letter did, however, state there was on balance a question over his suitability to be a police officer. Significantly the letter did state that the Board would expect a Children Act 1989 enquiry to be carried out which was a risk assessment if the claimant had significant contact with children within the context of a relationship or family. She also stated as I have explained in paragraph 21 above that the view of the strategy group was that it "remain[ed] concerned about the claimant resuming his role with the North Yorkshire police, especially in the light of the authority it bestows".
28. In my view, Mrs Love's letter in common with all the material submitted to the Chief Constable relating to the claimant was relevant to the decision that he had to make relating to the claimant's ability to become an "efficient" constable. The danger he might pose to children was obviously a factor of importance which required serious consideration. It cannot be doubted that the Chief Constable was under a duty to seek relevant views and relevant material from as many sources as possible. He then had to decide what weight to give to each piece of information after he had given the claimant the opportunity to make representations about them.
29. In those circumstances, it cannot be irrelevant for the Chief Constable to take account of the views of an agency with which his force was required to have had an extremely close working relationship and their conclusion that they had lost confidence in the claimant's ability to be an efficient and acceptable police officer. The letter from Mrs Love showed that the agencies with whom the police worked in partnership had in the words of the Chief Constable "lost confidence in [the claimant] and would not be comfortable working with him on these issues".
30. It must not be forgotten that the body which was chaired by Mrs Love had a core membership which included local authorities, health bodies, the police and others and their task was to ensure the effectiveness of their membership agencies in safe guarding and promoting the welfare of children. Its views could not be rejected out of hand by the Chief Constable especially as the claimant in any career as a police officer would have had contact with children. So the views of a body established in order to consider the protection of children must be relevant in determining what a police officer could do. It might well be that in appropriate cases that to disregard the views of such a body might even have had the appearance of perversity, unless a good reason was given for disregarding it.
31. A further objection which was taken was to the statement made by a serving police officer in the Chief Constable's Force which contained allegations about the claimant's behaviour with the daughter of the police officer. There was some similarity between this complaint and the other complaints. Its limitations were evident as it was not a statement made by the child but a report of her evidence by her father even though he was a serving police officer. Obviously the Chief Constable would have been aware of these obvious limitations.
32. In my view, none of the material of which complaint is made was irrelevant. Indeed it was the task of the Chief Constable to get a complete picture about whether the claimant could perform any duty which might be expected of a police constable including dealing with children. No doubt it was for that reason that the representative of the claimant sent together with his letter of 12 May 2008 much material supportive of the claimant to the police authorities and further testimonials were served at the hearing.

V The Hearing Issue

33. The case for the claimant is that he did not have an adequate opportunity to deal with the children's allegations and that the hearing on 30 May 2008 was such that he did not have an adequate opportunity to effectively challenge much of the material before him.
34. It is important to bear in mind that the claimant was served in advance of the hearing with all the documents which were considered by the Chief Constable. Furthermore the Police Federation representative in the letter of 12 May 2008, which had been sent after the advice from Queen's Counsel had been obtained, contained submissions which were taken into account by the Chief Constable and which related to the evidence. Of course the representative of the claimant could have asked for further information or further time if he needed it but no such requests were made.
35. Furthermore, the claimant when attending the meeting with the Chief Constable on 30 May 2008 was accompanied by his Federation representatives. They were invited at that hearing to make oral representations to the Chief Constable and oral representations were indeed made. In addition as I have explained, the claimant's bundle of testimonials was handed and these oral and written matters were considered by the Chief Constable.
36. In my view, there is no specific procedure which the Chief Constable had to follow when making a determination under regulation 13. It is noteworthy that regulation 13 itself contains no requirement of holding a hearing although of course, principles of fairness should apply first to enable the probationary constable to know why regulation 13 is being invoked, second to understand what the case was against him; third to be able to make representations to the decision-maker and fourth to be told of the reasons for any decision. Each of those requirements was satisfied.
37. It is quite clear that regulation 13 does not require oral evidence to be called or for the hearing to be in the form of a judicial hearing. It must be stressed that the task for the Chief Constable was not to see if the allegations were true but to ascertain whether the claimant would be an "efficient" constable. I was left with the clear impression that the claimant had a fair hearing.

VI Conclusion

38. . Notwithstanding the clear submissions of Mr Watson, this application must be dismissed.