England and Wales High Court (Administrative Court) Decisions

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

		Sitting at: Cardiff Civil Justice Centre 2 Park Street Cardiff CF10 1ET
		15th May 2009

His Honour Judge Jarman QC:

1. By a claim form filed on 19 September 2008 the claimant seeks judicial review of a decision from the then Chief Constable of the Gwent Police dated 20 June 2008 to dispense with his services as a probationer police constable under Regulation 13 of the Police Regulations 2003 ("the Regulations"). Permission to bring the claim was granted by Bennett J on 7 November 2008. The claim challenges the decision of the Chief Constable on six separate grounds and seeks an order quashing the decision and reinstating him forthwith as a probationer constable. In particular he alleges that the decision was based upon defective reasoning and was the result of procedural irregularities.
2. The events leading up to the challenged decision can be summarised as follows. The claimant joined the police force as an office holder and probationer constable, and therefore not as an employee, in July 2006 at the age of 22, having completed a degree in sports science at Swansea University. As such a probationer he was subject to Regulation 13 (1) of the Regulations which says:

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

3. A few weeks after the commencement of his claim, the claimant, who was then living at the home of his parents in Hereford, discovered over the weekend that he had misplaced his warrant card. He thought he may have left it in his locker, but before he could confirm that upon his return on the Monday morning he was approached by a police officer who informed him that the card had been found in a hall of residence at Cardiff University. The address was one to which the claimant said he had not been. The matter was referred to the Inspector who advised and warned the claimant. No further action was taken in respect of this incident at that stage.
4. In about October 2006 the claimant began to stay overnight at a property in Cranbrook Street in Cathays in Cardiff, although some of his belongings remained at his parents' home. Paragraph 2 of Schedule 1 of the Police Regulations 2004 provides that he could not reside at premises which had not at the time been approved by the Chief Officer. The claimant did not make such a request until 20 November 2006 and that was granted some days later.
5. In March 2007 the claimant broke a leg when he was playing football and went to recover at a rehabilitation home run by a registered charity for police officers known as Flint House. One evening he returned with other officers in the early hours of the morning in contravention of house rules operated at the home, which required residents to return by midnight. As a result he and other officers were asked to vacate his room, which he did after apologising to the manager. That apology was accepted and he returned to Flint House for a further period of rehabilitation. He was spoken to by Sergeant Thorpe and Inspector Smith who emphasised the importance of high standards of conduct of police officers, off as well as on duty. The claimant accepted that advice.
6. By 23 August 2007 the claimant was thinking of moving from the Cranbrook Street address to a house occupied by two female students, neither of whom he had previously met. That evening whilst he was in a nightclub in Cardiff he made contact with the students by text and they came to the nightclub. He met them together before he left alone in the early hours. On the way home he sent a text to one of them saying that if they wanted to go on somewhere they could come to his house. He arrived home and shortly after, he and his male housemate were joined by other male friends. Then one of the students called him saying that she had lost her keys. It was agreed that she and her friend would catch a taxi to the claimant's house. The detail of what occurred thereafter is, in some respects, in dispute. What follows is the essential account which the claimant subsequently gave to the police when he was interviewed under caution.
7. By the time the students arrived each had consumed sufficient alcohol to affect each of them at least to a moderate degree. One of the students wanted to go to sleep and the claimant showed her into the spare room. A short while later the claimant indicated that he was going to bed, having said to the second student that she could sleep in the front room with his friends or sleep in his bedroom, and she chose the latter. Sexual intimacy took place between them which did not progress to penetrative intercourse because, he says, she was unwilling. He drifted off to sleep to be woken later by the sound of her friend on the landing. After briefly returning to his bedroom, he eventually made his way to the spare room, still naked. He said intended to find out whether the second student wanted sex. After some conversation he ended up having penetrative intercourse with her after he had a fetched a condom at her request.
8. The following morning the two female students returned to their own house, after which one of their housemates contacted the South Wales Police. Officers from that force attended their home that evening, and they took from the two students an account of what had occurred. This was recorded in one of the officers' notebooks and signed by them.
9. Each of them said she was very drunk. The first said that she went along with the claimant because she was not aware of what was going on. The second said that he was trying to have sex with her within minutes of coming into the room and she told him to get a condom. When he returned they had penetrative intercourse.
10. The claimant was arrested on suspicion of rape and attempted rape in respect of these events. On the evening of 25 August, Gwent Police were informed of the criminal investigations. Throughout those investigations it was clear that the students were uncertain about making a complaint. They told officers that they felt strongly that their drunkenness had been taken advantage of, but they seemed uncertain as to whether their part would be deemed consensual.
11. On 30 August detectives from the Professional Standards Department of the force spoke with the students. They explained the complaints process and the procedures. Each student indicated a wish not to proceed with any allegations against the claimant, and they said at no time did he abuse his position as a constable. They made Section 9 statements setting out in greater detail what they had told the officers on the evening of 25 August, but indicating that they wished to withdraw their complaints.
12. Before turning to the detail of what occurred after this, it is perhaps helpful at this stage for me to set out the basis upon which a court can review a decision such as the one made in this case. I have been referred to Mr Michael Fordham's textbook, Judicial Review Handbook. It is now in its fifth edition. At paragraph 13.1 the learned editor says this:

"Public authorities have an important role and function. There must necessarily be questions which it is for them rather than the judges to decide. In considering whether a public body has abused its powers, courts must not abuse theirs. In constitutional terms, just as judicial vigilance is underpinned by the new law, so judicial restraint is underpinned by the separation of power."

13. That principle is emphasised by two decisions in relation to professional disciplinary tribunals. The classic statement in respect of such tribunals was given in Bolton v Law Society [1994] 1 WLR 512. It was reinforced after the coming into force of the Human Rights Act 1998 by Jackson LJ in Law Society v Salisbury [2008] EWCA Civ 1285. At paragraph 30 Jackson LJ said this:

"The correct analysis is that the Solicitors Disciplinary Tribunal comprises an expert and informed tribunal, which is particularly well placed in any case to assess what measures are required to deal with defaulting solicitors and to protect the public interest."

14. It is of course true that that observation was made in the context of a professional disciplinary tribunal, in that case a Solicitors' Disciplinary Tribunal. Accordingly, it does not sit squarely with the circumstances of this case where a probationer police constable is being dealt with, but in my judgment, the principle applies with equal force to a police officer when the highest standards are expected with justification. The nature of the position of the probationer police constable was dealt with in R v Chief Constable of British Transport Police ex p Farmer [1999] COD 518 which came before the Court of Appeal in July 1999. Henry LJ made these observations at the end of his judgment:

"First, if there was force in point, one would expect to find the embargo on probationers' dismissal spelt out in the Standing Orders or General Conditions. Second, it is reinforced by the wording "this procedure would not apply…." accurate to describe the situation of separate procedures - rather than words of prescription such as "This procedure must not be used". Third, where the offence is admitted there will be many cases where it would be contrary to good administration to go by the disciplinary route. The probationary period is there to discover and deal with fundamental unsuitably of outlook or temperament or behaviour. Each of these might manifest themselves in misconduct but would in most cases be more appropriately resolved under the probationers' dismissal procedure, concerned as it is, not so much with individual charges, as with fundamental questions about whether the probationary police constable is fitted to perform the testing duties required of the police.

It would be a curiosity if such a rule did not apply to those more formalised probationary dismissal procedures but did apply to the BTPFs.

In conclusion there are two separate dismissal procedures which govern probationers. The decision which to use is a decision for the police force. Where the facts found in complaints are not admitted, in most if not all cases the decision is likely to be that the question of whether the charge is proved or not proved will be decided under the disciplinary procedures."

15. The investigating officer in the criminal investigation was a Detective Constable of the South Wales Police. He prepared a report on the complaint which had been made. He indicated that while the first student was drunk, she was able to tell the claimant, "No" to what she described as full sex and, "No" to oral sex. She did not say that he had forced those acts upon her when she resisted. The reference to oral sex was first made in the first student's Section 9 statement, but it was not made in the account that she gave on the night of 25 August.
16. The Detective Constable went on to interview the second student. He observed that whilst she was extremely drunk on her arrival at the house, she had been asleep for some time before the claimant entered the spare room. She was able to get out of bed, wrap her coat around her and find her way to the downstairs toilet in a house where she had not been before. In relation to the claimant's account the Detective Constable observed that he was not drunk, but he acknowledged that the two girls were very drunk. He invited them back to the house with a notion in mind as to what would happen. Then he made his way to the spare room where the second student was sleeping. He said she seemed less drunk than earlier.
17. The Detective Constable concluded that it may be possible to take the view that the claimant had put himself in a situation where he was able to take advantage of the drunken states of mind of the two females, but, observed the Detective Constable, that does not constitute rape or attempted rape. It may more accurately be seen as inappropriate behaviour. The advice therefore was that the criminal proceedings should not result in a charge. That was advice which the Crown Prosecution Service accepted. Furthermore, the view taken by the Professional Standards Department was similar.
18. On 3 September Superintendent Peter Keen called a meeting with the claimant following his concerns about the allegations. There is no full note of that meeting, although Mr Keen deals with it in a witness statement which he has filed for the purposes of these proceedings. He said that his initial view was that he was aware that the Gwent Police Procedure for Unsatisfactory Performance of Probationer Constables related to performance issues (the Procedure). Matters which were subject to his attention did not relate to the performance and duties but were associated with personal values, lifestyle and judgment. It appeared to him, he said, from the outset that such issues could not be the subject of developmental action plans under performance monitoring processes as described in that policy.
19. A short time after that meeting there is a note about it from Mr Keen to the claimant. It records that there was an outline of the previous issue regarding a breach of rules at Flint House, to which I have referred, as well as the fresh allegation regarding events in late August. Mr Keen informed the claimant that he had concerns as to whether he was fit to perform the duties of a constable. Moreover, he decided to transfer him to another police station, from Monmouth to Cwmbran, in order to maximise the level of supervision he would receive. He confirmed that the claimant would be granted leave and that he could then start at Cwmbran. Mr Keen also confirmed that there were no outstanding disciplinary issues as a result of his recent arrest. It is emphasised on his behalf that that note made no reference to Regulation 13 or the procedure which Mr Keen has talked about in his written statement.
20. As a result of that meeting Mr Keen concluded that the matter required further review by a member of his senior management team. He directed Chief Inspector Baker to report back with his findings. On 17 September 2007 Chief Inspector Baker did so report in written form. That dealt with three out of the four issues which were eventually dealt with by the Chief Constable. The report of Chief Inspector Baker referred to the loss of the warrant card and the position in relation to Flint House. He also referred to the events of 24 August 2007. Again, that report referred to the claimant wanting the first student to perform oral sex on him but she told him, "No". It referred to the claimant's submission that he was sober, and to the fact that he had agreed the second student was so drunk that she had to be helped out of the taxi, and taken upstairs to bed. He also agreed that both students were drunk. The report indicated the view that the claimant had deliberately tried to stitch the girls up. He placed the second in one bedroom with a double bed. The report concluded that the recommendation should be that consideration be given to dispensing with the claimant's services by the Chief Constable under Regulation 13.
21. Part of that report involved a report from Inspector Smith about the Flint House incident. In that report Inspector Smith says that he made it clear to the claimant after that incident that he had let down the organisation, himself, his line manager and the welfare officer. It has been emphasised that at that stage the claimant was in the company of more senior officers. It has also been emphasised that the claimant himself brought this to the attention of his superiors. Nevertheless, Inspector Smith went on to indicate clearly that he felt that the claimant had demonstrated a serious error of judgement by making a conscious decision to risk his position at Flint House. The Inspector told him that only high standards of personal conduct were acceptable for a serving police officer, both on and off duty. He added that it was his view that the claimant had clearly fallen short of this by his conduct at Flint house. He went on that police regulations made it possible for a Chief Constable to dispense with the services of a probationary constable if the former had reason to believe that he was unlikely to become an efficient and well-conducted constable. He further explained that the Flint House episode provided evidence which cast doubt upon the claimant being a well-conducted constable. He made it clear that any further misdemeanours would almost certainly result in Regulation 13 being considered and invited serious consequences for his continued police career.
22. On 21 September 2007 the office manager of the Professional Standards Department of the Police Force wrote to the Divisional Commander, saying this:

"The inquiry into the above matter has now been fully investigated and Detective Chief Constable Mayer has received a report from the investigating officer and concluding that the officer concerned has not contravened the Police Misconduct Regulations and no further action will be taken. This related to the incident in August."

23. Shortly after, that there was a further meeting between Mr Keen and the claimant. That was after Mr Keen had sought appropriate advice from the force solicitor. Mr Keen then decided to hold a meeting with the claimant on 3 October 2007 to outline the facts upon which he would rely in making his recommendation to the Assistant Chief Constable. Mr Keen had formed the view that the behaviour, judgment and personal values which had come to light as a result of Chief Inspector Baker's report, together with his own view of the facts, could not lend itself to any action plans that could realistically be developed and monitored in a way that would meet those concerns. During the meeting Mr Keen says he outlined the matters upon which he was relying. The purpose of the meeting was to tell the claimant of the information that had been gathered. The purpose was not to elicit any further information. The claimant during the meeting did volunteer further information regarding his place of residence in Cardiff. As a result of that Mr Keen was able to gather further records which supported the claimant's account that he had sought permission to reside at the Cranbrook Street address. Prior to that, the view had been taken that no such permission had been applied for.
24. Mr Keen accepts that he did not make any references to the fact that the procedure which I have referred to did not assist him in dealing with this matter. The reason Mr Keen gives for this in his statement is that he had brought this issue to the attention of the Assistant Chief Constable in dealings with him on other matters, but that was not a matter which the Assistant Chief Constable deals with in his statement. Then on 5 November 2007 an important document was compiled by Mr Keen. He decided to send that report first to the force's solicitor. This was the first time that the fourth issue had been mentioned. The report refers to the loss of the warrant card, and to the fact that when the claimant was spoken to he was given informal words of advice. It refers to the Flint House incident and again underlines the fact that that was dealt with informally with words of guidance. Then the August 2007 incident was referred to. Another issue was then raised in that report in relation to an alleged misuse of the police national computer.
25. I should at this stage refer in slightly more detail to the Procedure. I referred to the Police Efficiency Regulations 1999. They have now been replaced by Regulations dated 2008, but with no material difference. There is a change of terminology from efficiency to performance. Those regulations do not apply to an officer of the rank of constable who has not completed his period of probation. That is why most forces have their own procedures on matters such as the conduct and performance of probationer constables and this force is no exception. The policy in question here provides that Gwent Police have established procedures to deal with the unsatisfactory performance of the probationer constables in order to ensure that all performance issues are handled fairly and consistently in order to ensure that Gwent Police provide a quality service to the people of Gwent. A procedure is laid down and a diagrammatic summary of that is given in appendix 2. It starts with the identification of unsatisfactory performance. If there is improvement then, no further action is taken. If there is insufficient or no improvement, then Stage 2 is reached. That is a case conference with the Superintendent. Again, if thereafter there is improvement in performance, no further action is taken. If improvement is insufficient or non-existent, then Stage 3 comes into play. That involves a case conference with the Divisional Commander. If after that stage there is improvement, again no further action is taken, but if there is not then there is a review by the Chief Constable. As a result of that review, either there will be a dispensation of services or a further action plan involving further review and, again, if there is no improvement, then services will be dispensed with.
26. On 17 December 2007 there was a report from a Detective Inspector Hopkins to Detective Superintendent Williams. Again, that set out the matters I have referred to. The incident in relation to the police computer was dealt with by Detective Inspector Hopkins. A statement was taken from the claimant on 31 January outlining his version of events. It was decided that there were no matters of issue for the claimant.
27. On the claimant's behalf a memorandum from Mr Keen dated 21 February 2008 has been emphasised. That memorandum refers to the meeting of 3 October 2007. The memorandum goes on to say that Mr Keen outlined matters of concern and informed the claimant that he would be preparing a report and he confirms that the report was compiled on 5 November 2007. What that memorandum shows is that the submission of that report was delayed pending the outcome of a separate misconduct investigation, to which I have already referred, but the memorandum confirmed the report would now be submitted to chief officers. The memorandum therefore asked that the claimant be advised of its progress and invited to note this memorandum and return the original to Mr Keen's office. The claimant noted the memorandum on 12 March 2008.
28. On the same day there was a report from Mr Keen to the Assistant Chief Constable, Mr Horne. It was by way of an updated report prepared on 25 November 2007. Again, it refers to the reason for the delay in sending the report to Mr Horne. It refers to advice given by the force solicitor that the matter should be referred further to establish whether there was any misconduct, and if possible to proceed on that basis. The Procedure was referred to and the action planning process in the staged manner to which I referred to was set out and Mr Keen said that that could lead to consideration of a crime under Regulation 13. He then went on to report that there was no guidance within the current procedure relating to matters of conduct within an officer's private life. He asked that his own report of the 5 November 2007 now be considered and a decision on whether the matter should be presented and form an application under Regulation 13.
29. On 7 May 2008 Inspector Baker reported to Mr Keen. That report confirmed that the claimant presented a positive image of the police service when on duty. He did not lack motivation and he could be relied upon. The Inspector emphasised that the claimant was still learning every day, and that he had the confidence to ask if he was unsure of his actions. He was, concluded the inspecting officer, developing quite well in the workplace. There were no issues surrounding his interaction with members of the public or his colleagues. Indeed he had been content just to work, despite the added stress he was under.
30. On 9 May Mr Keen wrote to the claimant. He said:

"Further to my memorandum dated 21 February 2008 concerning the submissions in the report recommending that your services are dispensed with under police Regulation 13, I now inform you of arrangements for a meeting with Assistant Chief Constable Horne. You and your Police Federation's representative are requested to attend a meeting at Assistant Chief Constable Horne's office, Police Headquarters, Cwmbran at 2 pm on Thursday 29 May 2008. The head of human resources will also be present as the adviser to the Assistant Chief Constable. The meeting is being convened in line with stage 3 of the Unsatisfactory Performance of Probationers Procedure. The purpose of the meeting is to allow you an opportunity to state why your services should not be dispensed with under Regulation 13 and for the Assistant Chief Constable to then consider what recommendation to make to the Chief Constable. Enclosed are two identical bundles of documents for you and your Police Federation representative. These consist of my report and a schedule of supporting documents."

31. The schedule runs from documents A to T and the final document, U was added in May. There had been a summary of the claimant's probation performance to date. The documents included a report of Chief Inspector Baker, the South Wales police investigation officer's report concerning the allegations in August 2007, the charging decision of the Crown Prosecution Service, the transcript of the interview with the claimant by the South Wales police on 26 August 2007, the report from Inspector Smith regarding the expulsion from Flint House and the note of the meeting which Mr Keen had with the claimant on 3 September 2007. It has been pointed out that what was not included were the reports which indicated that the Procedure was not implemented in its full rigour in this particular case.
32. On 29 May the meeting with Mr Horne took place as it had been indicated it would. Mr Horne, in a statement made for the purposes of these proceedings, says that he had a clear intent to apply the Procedure. He discussed this with human resources, and it had been concluded that in effect the Stage 3 option was started when the claimant was given the documents on 9 May 2009.
33. In the note of that meeting Mr Horne refers to the fact that the Police Federation adviser had the full file and Mr Keen's report and the statements. Written submissions were handed in. The claimant referred to the interview which he gave to the South Wales police in which he had said he was living in Flint House in October 2006. He gave this explanation:

"When I said living obviously it was on tape at the time, I wasn't living there, it wasn't my fixed address. It was a case of I had split with my girlfriend previously. I had gone to stay a few months with friends there and I had been there, I think the very end of October I went there and then I was back and forth between Hereford and Cardiff debating whether I would live in Cardiff or stay at home…"

Mr Horne said:

"OK, albeit you told me, the investigators that's where you were living"

The claimant replied:

"Yes. Obviously I appreciate how that might sound on the ROTI but at the time I was somewhat shook up about the events that had happened."

34. Mr Horne went on to say that his decision would not stand or fall on the basis of one of those issues, but he need to look at them in the round. He said that normally there would be a second case conference with the divisional commander, but he went on because the claimant's case involved the issue of judgment, that was not something that could be action planned. The whole point of the second case conference, Mr Horne said, was the action plan performance. It has been emphasised that what is not so clear is that the Procedure would not be replaced by some other procedure, or that there would be no opportunity to change. That criticism is accepted to a large extent.
35. By letter of 9 June 2008, Mr Horne wrote to the claimant attaching a copy of the report from himself to the Chief Constable recommending that the claimant's services as a probationer should be dispensed with. Again, he was reminded that he may be accompanied by a colleague or a Police Federation representative and that at the meeting with the Chief Constable that he or his representative would have the opportunity to make representations if he wished. The report is a report of some four pages in length. It refers to the four incidents. In the penultimate paragraph Mr Horne says this:

"I therefore invite you to review these matters in accordance with the Gwent Police Procedure on the Unsatisfactory Performance of Probationer Constables. We have taken the liberty of arranging a review date, being 2pm on Friday 20 June for this matter to be considered and at which [the claimant] will again have the opportunity to make representations to you."

36. At that meeting the claimant was accompanied by the same Police Federation representative. Mr Tonge in a witness statement filed these proceedings says that he took the view that the Procedure was not applicable to questions of judgment in matters occurring off-duty. During that meeting the Procedure was referred to by the claimant's adviser. It was referred to in the context of a complaint about delay. The adviser drew attention to paragraph 3.3 of the Procedure. The adviser contended that, in the claimant's case, if Regulation 13 was being relied upon, it should have been expedited at the earliest possible stage. That was after the August 2007 incident. In reality, the point was made. The process commenced on 9 May 2008, some nine months later. The process should not have been delayed; the matter should have been conducted expeditiously.
37. The point was made on the claimant's behalf at that meeting that the process could have been commenced in the autumn of last year and that to delay the process had led to the reasonably held belief by the claimant that these matters have been put to one side and that from ongoing reports he was performing well. It was noted that in none of these instances was the claimant issued with a written warning, or given a formal action plan. The point was made that those were standard processes that formally highlight issues to officers. The words of advice referred to the matter as being of a minor nature and that the officer need pay no more attention to it in the future. The point was made that the claimant had done just that. Reference was also made to the claimant's line manager, who confirmed he was making very good progress and to Police Sergeant Sparrow who confirmed that the claimant was progressing well towards the completion of his policing NVQ. Therefore there were no performance issues at that time, namely in May 2008.
38. After those submissions, the Chief Constable referred to Regulation 13. He agreed that there had been some delay in progressing this matter. He went on to deal with the four issues and to conclude that the claimant, on his own admission, had not exhibited the judgement which was expected. The Chief Constable further referred to the actions in relation to the female students and to the fact that they were intoxicated and looking for some assistance. He referred to the actions in failing to respect the rules at Flint House. Overall, he concluded that the claimant's actions showed that he was unfit to serve and that his services under Regulation 13 should be dispensed with. By the same date in a letter from Mr Tonge to the claimant, those matters were confirmed.
39. The reference to Mr Tonge personally detailing the high standards expected of the claimant when he joined as a probationer is supported by what is referred to as a crib sheet which Mr Tonge used for that meeting. The sheet refers to the fact that integrity as a public servant was non-negotiable and what was expected was professional support of the public for the next 30 years.
40. The first ground of challenge to the decision in June 2008 is that it involved a breach of duty under Article 8 of the European Convention on Human Rights, now enshrined as Schedule 1 of the Human Rights Act 1998. Alternatively, it involved a misconstruction of Regulation 13. By section 6(1) of the 1998 Act it is unlawful for the defendant as a public body to act in a way that is incompatible with a Convention Right. Article 8 provides:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

41. The decision in this case was made upon each of the two alternative limbs to Regulation 13, namely that the claimant was not able mentally to perform the duties of his office and that he was not likely to become an efficient or well-developed constable. On the claimant's behalf it is accepted that the duties of his office within the meaning of that regulation include not only the duties of a police officer whilst he is working but also those involving restrictions on his private life under the Code of Conduct set out in Schedule 1 of the Police Conduct Regulations 2004. It is further accepted that that code requires officers to abstain from any activities which are likely to interfere with the impartial discharge of their duties or are likely to give rise to the impression to the public that they may so interfere. It also requires officers not to behave in a way which is likely to bring discredit upon the police service whether they are on or off duty.
42. What is argued here is that the claimant was dismissed because of criticisms of his judgment in this sphere of activity, which concerns conduct which has been determined by officers acting on behalf of the defendant not to be in breach of the Code of Conduct. It is further argued that the activities fell entirely within the private sphere and, accordingly, reliance upon it constitutes a breach of his Article 8 Rights. It is clear, in my judgment, that although each of the senior officers who considered whether to dismiss the claimant under Regulation 13 did so on the basis that the judgment he displayed in the early hours of 24 August was by far the most serious of the four issues which would of itself justify dismissal, each also placed weight upon the cumulative effect of the four matters considered.
43. In my judgment, this decision does not amount to condemnation of sexual activity which was wholly private between consenting adults. The activity resulted in complaints being made on behalf of the students to the police and statements being made by them which, at the least, call into question whether serious criminal offences had been committed. Whether or not criminal offences had been committed, it was foreseeable if not inevitable that a criminal as well as a disciplinary investigation would be carried out; as in the event occurred. Those investigations did not lead to a charge, either criminal or disciplinary. In my judgment it is clear in both cases that a view was taken by the investigating offices and the CPS as to whether there could be said to be consent or not. But in my view whether there was consent or not was not the central issue to consideration of the claimant's conduct as a probationer.. It is true that Mr Horne did not expressly refer to such consideration in his approach, but in my judgment there is a clear inference from his approach that he had regard to that consideration. In any event, the Chief Constable was clearly of the view that the serious concerns as to the claimant's actions were likely to infringe upon his ability to perform his duties and whether he was likely to be well-conducted constable. In my judgment, that was a view to which he was entitled to come.
44. The basis of the attack on the decision has been developed in oral argument. It has been submitted on the claimant's behalf that what the Chief Constable based his decision upon were the events of August 2007. The other matters were just "makeweight". I do not accept that submission. In my judgment the Chief Constable took the view, and was entitled to take the view, that the four incidents, spread out as they were from just weeks after the commencement of the probationary period until August 2007, showed an increasing concern over the judgment of the claimant. In my judgment, this was a matter of "fundamental behaviour", in the words of Henry LJ in Farmer.
45. It is said that some of the reports were factually wrong. For example, the reference by Mr Keen to the first student rejecting oral sex was not put to the claimant, because that only came to light in the later Section 9 statement. It is said that there was not sufficient emphasis on the claimant's account that the second student seemed to have sobered up and was more coherent by the time he met her on the landing in the early hours of the morning. Sufficient weight was not given to the claimant's version that it was the second student who asked him if he wanted sex. But, moreover, it is said that the finding in the reports of Mr Keen that the claimant had separated the students was not accurate and fair. Similar criticisms are made of the approach of Mr Horne and Mr Tonge. Mr Tonge referred to the claimant separating the students when they were at their most vulnerable. It may be that Mr Keen had come to the view that that was deliberate but in my judgment, after two full hearings, one before Mr Horne and one before Mr Tonge, Mr Tonge was entitled to come to the view that the students were separated and that was because of what the claimant on his own account had said to them, namely that the second student should go to the spare room and that the first student had the choice of either going in the front room with his male friends or going to the bedroom of the claimant. That as a matter of fact led to a situation where one of the students was in the spare room and the other was in the claimant's bedroom. I do not read Mr Tonge's assessment of what the claimant did in relation to that incident as anything more than that.
46. I turn now to the second ground. In essence, what is said is that the Procedure should have been applied in this case. Secondly the claimant was not told that this Procedure was not being followed. On the contrary he was led to believe that it was. Finally it is clear that he improved in his performance whilst on duty and what he says is that if the Procedure had been followed the outcome would have been different. His improved performance would have been taken into account and no further action taken. In my judgment, it was a procedural irregularity that the claimant was not clearly told of this view. It is also clear that there was some uncertainty and confusion and inconsistency between Mr Keen, Mr Horne and Mr Tonge as to the application of the Procedure. The defendant accepts the force of those criticisms.
47. What is said on the defendant's behalf, however, is that that procedural irregularity was not fundamental enough to have taken away the basic fairness of the procedure, in particular in the hearing before Mr Horne and then a month later before Mr Tonge. I accept those submissions. Having regard to the way in which the matters were dealt with and responded to by the claimant and his advisers, in my judgment it was a clear opportunity for him to deal with these four issues. It had been explained to him that it was the cumulative effect of those issues which caused concern about his judgment which was being investigated. It is said on his behalf that attitudes can change with appropriate procedures and counselling and I accept that, but in my judgment this is a matter of fundamental suitability of judgment and of consequent delay and it was within the remit of the Chief Constable, and within the exercise of his discretion and his judgment that he was entitled to come to the views which he did.
48. There are other matters which have been relied upon by the claimant in the skeleton argument filed on his behalf. His counsel made clear that although the focus of oral submissions has been upon the matters to which I have already referred, the other grounds set out in the skeleton were still relied upon. The third ground is that the defendant acted on the basis of original matters which gave rise to concern, rather than any failure by the claimant to respond to concerns. The defendants failed to produce an action plan and/or a support package for the claimant and then to review his performance against such a plan. I have already dealt with this to some extent. As I have indicated, I accept the fact that plans can be changed and that an action plan and support package may in certain circumstances help to change attitudes sufficiently to allow a probation officer to fulfil the high standards expected of him or her. But in this case the Chief Constable took the view that the judgment displayed by the incidents on a cumulative basis, each one more serious than the last, was such as to be so fundamental that no plan, no support package could alter that.
49. Fourthly, it is said that there was a failure to commence disciplinary proceedings against the claimant, but on the other hand the defendant referred to disciplinary matters. In my judgment there is a sufficient distinction on the information before me between the criminal investigation and disciplinary investigation on the one hand, and the issue of fitness with the expectation of a well-conducted constable on the other. It was in this latter context that the decision was made. In my judgment the line between the various proceedings was sufficiently drawn. The issues arose out of the same incidents, but the focus of Mr Tonge in my view was sufficiently upon matters of judgment displayed by incidents rather than investigating matters that should be dealt with by way of disciplinary proceedings.
50. Penultimately, it is said that the defendants erred by seeking to rely upon closed or irrelevant matters. It is argued that the matter of the warrant card was of no relevance and was raised purely to add weight to insubstantial claims. Again, this is a progression of a point made in other contexts, but it was quite clear from the reports of the officers that these matters were taken seriously. In my judgment, it is artificial to expect a Chief Constable to investigate issues of fitness and to expect a focus solely on the most recent event, which calls into question a person's judgment, without looking at the matter in the context of other issues arising shortly after he became a probationer.
51. Finally, it is said that the decision was irrational. Given the conduct of the claimant in the period since August 2007, the failure to follow the Procedure and the absence of any linkage in the evidence between the judgments the claimant made in his private life and his conduct as a constable, the defendant reached a decision which was unfair, irrational and unreasonable, in all the circumstances. I do not, for the reasons I have already given, accept that that is a fair criticism of the decision made in June 2008.
52. Accordingly, I find that there is no ground for granting the relief sought. There was a subsidiary issue as to whether, if I were of the view that there should be some relief, it should be by way of reinstatement or some other such declaration that the decision was invalid as referred to in the authorities of Chief Constable of North Wales Police v Evans [1982] HL 1 WLR 1155. Lord Brightman, at the end of his opinion, which again dealt with a probationer constable, said this:

"I feel that the choice of remedy is a difficult one. It is a matter of discretion. From the point of view of the respondent who has been wronged in a matter so vital to his life, an order of mandamus is the only satisfactory remedy. I have been much tempted to suggest to your Lordships that it would in the circumstances be a remedy proper to be granted. But it is unusual, in a case such as the present, for the court to make an order of mandamus, and I think that in practice it might border on usurpation of the powers of the chief constable, which is to be avoided. With some reluctance and hesitation, I feel that the respondent will have to content himself with the less satisfactory declaration that I have outlined."

53. It is submitted on behalf of the defendant that it is clear here that, whatever the rights and wrongs of the decision made in June 2008, the trust which a force must impose in a probationer police officer has broken down, and I accept that submission. I do have sympathy with the claimant in respect of the length of time he has had to wait for this decision to be made. I refer to the time between September 2007 and June 2008. It must be harder for him to be bear, knowing that during that time the reports of his performance were glowing, but I am persuaded that, having regard to the view that was taken by a number of officers about his judgment, not just Mr Keen or Mr Horne or Mr Tonge, but other reporting officers, for example in relation to the Flint House incident and the warrant card incident, that it would not be right to impose upon the Chief Constable a reinstatement of the claimant.