AB v A Chief Constable
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston |
| Judgment Date | 16 June 2014 |
| Neutral Citation | [2014] EWHC 1965 (QB) |
| Docket Number | Case No: 2MA91038 and CO/9848/2012 |
| Court | Queen's Bench Division |
| Date | 16 June 2014 |
[2014] EWHC 1965 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Liverpool Civil Justice Centre
Vernon St, Liverpool, L2 2BX
Mr Justice Cranston
Case No: 2MA91038 and CO/9848/2012
David Lock QC and Michael O'Brien QC (instructed by Lewis Hymanson Small) for the Claimant
John Beggs QC and Susanna Rickard (instructed by Shoosmiths) for the Defendant
Hearing dates: 12–15 and 23 May 2014
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
I INTRODUCTION
In outline the claimant, AB, was a senior police officer with the defendant Chief Constable's police force ("the Force"). He applied to a Regulatory Body for a job. A Regulatory Body has, as one aspect of its functions, ensuring the professional standards of individuals it regulates and deciding who can be disciplined and ultimately prevented from working in the area. The Force sent a standard reference which did not answer questions in the Regulatory Body's reference request raising the claimant's sickness and disciplinary record. The Regulatory Body gave the claimant the job and he resigned from the Force. In a novel argument the Chief Constable contends that he was under a legal duty in both private and public law to send a second reference with this information. The claimant's case is that the Chief Constable is under no such duty. If the Chief Constable is correct and there is a legal duty the claimant contends that to send the second reference would be in breach of data protection principles and his legitimate expectations.
II BACKGROUND
The Force
The police force in these proceedings ("the Force") covers one of the counties in England and Wales. As with other police forces in the country it has both warranted police officers and police staff. The latter are under the direction and control of the Chief Constable, as well as the warranted officers. In 2012 the Force was organised as follows. Immediately under the Chief Constable was the Deputy Chief Constable, CD. At the next level were Assistant Chief Constables E and F and Assistant Chief Officer GH. These five persons constituted the Force's executive. They were at the level to be members of the Association of Chief Police Officers. They occupied a suite of offices in close proximity in the same corridor at police headquarters. Each could contact the others simultaneously on the one email address. Below the ACPO Chief Officers were a number of chief superintendants, including the claimant.
Deputy Chief Constable CD was the decision maker ("the appropriate authority" under the Police (Conduct) Regulations 2008, now the Police (Conduct) Regulations 2012) in relation to disciplinary matters concerning the claimant. As a result of events which had happened during his time at a previous Force, CD was under an investigation. When CD came to make an application to move to another role CD disclosed details of the investigation before applying and discussed it at length with his prospective employers before a decision was made to offer him the position.
Assistant Chief Officer GH was the most senior member of the police staff, managing the finances, procurement and so on. After the appointment of the defendant Chief Constable, Human Resources (HR) was transferred within GH's remit. He was not a HR specialist and MN, who had spent his whole career in police human resources work, was appointed to head the HR department in 2011. Although under the supervision and control of the Chief Constable, Assistant Chief Officer GH's job description conferred on him "a strong element of self discretion". Assistant Chief Officer GH took voluntary redundancy in October 2012, shortly after the events considered in this judgment. Neither side called GH as a witness. All that I have heard leads me to conclude that GH was of the highest integrity.
The claimant, the 2011–2012 disciplinary investigation and his illness
The claimant had joined the Force in 1988 after being a special constable. Apart from a short period with another police force he spent the whole of his career with the Force. During his time with the other force he had been subject to professional criticism for his role in a high profile investigation although the investigation did not lead to any disciplinary charges against the claimant. He became a Chief Superintendent. For a relatively short period he was seconded to another police organisation. At the time of his resignation he had been a member of the local Criminal Justice Board and was involved in the Police Superintendents' Association.
In 2009 the claimant was disciplined for misconduct and accepted the charge. He was given a Final Written Warning. This is the most serious sanction in a misconduct case. He appealed this sanction on the ground, inter alia, that the disciplinary action imposed was unreasonable and disproportionate. The appeal was determined by the acting chief constable of another police force who dismissed the appeal and expressed concern that the panel's powers were restricted to those associated with misconduct rather than gross misconduct. In his view the claimant's explanations in response to the allegations raised further concern about his honesty and integrity and the evidence presented strong grounds to question whether the claimant should hold the office of constable and the rank of Chief Superintendent. On the evidence I conclude that it is rare for so senior a police officer to receive a final warning.
An action plan was devised for the claimant to address issues raised by the misconduct finding. The claimant met periodically with Assistant Chief Constable E to discuss its implementation. Eventually the Chief Constable accepted that the action plan had been completed and signed it off in May 2011.
The claimant was married with children but, as puts it in his witness statement, he came to realise that he had a homosexual orientation. He had met X by chance at a gym in September 2010 and they became friends. X is gay. The claimant's evidence was that he has never had a physical relationship with X although X did live with him for a period when X's father excluded him from the family home. In February 2011 the Force learnt that the claimant was gay after he was outed by a relation.
On Remembrance Day 2011 the Force issued the claimant with a notice of alleged breach of professional behaviour under regulation 15 of the Police (Conduct) Regulations 2008. The notice had been triggered by concerns raised by Assistant Chief Constable F about the claimant's role in attempting to influence the appointment of X as a special constable with the Force. The notice set out allegations that the claimant tried to influence more junior officers, a member of the interview panel and the head of human resources. It alleged that he had made adverse comments to a Superintendent in respect of other police officers possibly associated with X to influence the decision-making; that he informed X that he had passed vetting in November 2011 and needed to present himself for a medical, when that was not the case; and that he had actively involved himself in X's case despite the conflict of interest. The notice alleged that he had abused his position, which if proved might breach the standards of professional behaviour for honesty and integrity. The notice assessed the allegations as constituting gross misconduct.
About five weeks later, in December 2011, the Force issued a more detailed notice under regulation 15. It particularised the allegations contained in the first Regulation 15 notice. Over the following months the lead investigator into the allegations was Assistant Chief Constable F.
The claimant accepted in his evidence that these were potentially serious allegations which could lead to his dismissal from the police force but said that his lawyers had advised that he had a 75 percent chance that the allegations would be defeated. In evidence his explanation for the course he had taken in relation to X was that the Force was guilty of institutional discrimination. X had suffered depression but that was no reason to exclude someone from becoming a special constable. Concerns had been raised about X in a criminal intelligence report, but there seemed no suggestion that he was in any way criminal. The claimant said that the Force may be discriminating against X because of his sexuality. The claimant's evidence was that he was being disciplined because he was perceived as being disloyal to the Force. The Force was attacking him because he was challenging it on behalf of the minorities. Challenging discrimination seemed the right thing to do. The claimant's evidence was that he had acted in good faith and had not abused his authority because he was open about his concerns and declared his personal interest at all times.
Regulation 6 of the Police (Conduct) Regulations 2008 envisaged that the subject of disciplinary proceedings can have a friend appointed to assist ("a police friend"). (Regulation 6 of the Police (Conduct) Regulations 2012 is to the same effect). Chief Superintendent OP of a neighbouring police force occupied that role from November 2011. The defendant Chief Constable accepted that Chief Superintendent OP was of complete integrity and no one in the case questioned that.
During the gross misconduct investigation the claimant's point of contact with the Force was Assistant Chief Officer GH. As explained shortly, the claimant was away on sick leave during most of the period. GH's appointment to this role was effectively by a process of elimination since the other ACPO officers in the Force were...
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