R Mark Gilmore v Police and Crime Commissioner for West Yorkshire
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone |
| Judgment Date | 14 November 2017 |
| Neutral Citation | [2017] EWHC 2867 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 November 2017 |
| Docket Number | Case No: CO/1900/2017 |
[2017] EWHC 2867 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Supperstone
Case No: CO/1900/2017
Jeremy Johnson QC (instructed by Messrs McCartan Turkington Breen) for the Claimant
John Beggs QC and Aaron Rathmell (instructed by Stephen Hodgson, Office of the PCC for Cleveland) for the Defendant
Hearing dates: 31 October & 01 November 2017
Judgment Approved
Introduction
The Claimant was appointed Chief Constable of West Yorkshire Police for a period of five years beginning on 1 April 2013 and terminating on 31 March 2018. However by an e-mail dated 8 August 2016 he informed the Defendant, the Police and Crime Commissioner for West Yorkshire, that he wished to retire. The Defendant agreed and his term of office ended on 9 August 2016. The Defendant is the person with decision-making responsibility in relation to the Claimant within the police misconduct regime, in which capacity the Defendant is referred to as the Appropriate Authority ("AA").
Before he retired the Claimant was the subject of two disciplinary investigations into what are referred to as "the DMG [Donnelly Motor Group] allegations" and "the whistleblower allegations".
On 26 July 2016 the Defendant received the report of the investigator, Assistant Chief Constable (ACC) Jacques, into the DMG allegations, titled: "Lancashire Constabulary Professional Standards Department Final Investigation Report" ("the Report"). The Report concluded with the investigator's opinion as to whether there was a "case to answer" in respect of the DMG allegations.
There were two allegations. In relation to the first, that " since 2013 as Chief Constable of West Yorkshire Police [the Claimant] has been involved in an inappropriate relationship with senior executives/associates of the Donnelly Motor Group (DMG) and has used this relationship to improperly promote this commercial company within West Yorkshire Police and its collaborative forces", the Investigator concluded that there is no case to answer. In relation to the second, that " [the Claimant] used [his] relationship with DMG in [his] capacity of Chief Constable of West Yorkshire Police to benefit personally via the purchase of a VW Golf for [his] son", the Investigator concluded that there is a case to answer, and if proven, the breaches are such they may warrant the consideration of dismissal and therefore amount to Gross Misconduct. (See Conclusion at paras 12–15).
Following receipt of the report the Defendant considered its contents and was of the view that the Claimant did have a case to answer for gross misconduct in respect of both allegations (see para 56 below).
The principal issue raised by this claim is whether paragraph 24(6)(a)(i) of Schedule 3 to the Police Reform Act 2002 ("PRA") requires the appropriate authority to determine whether the officer to whose conduct the investigation related has a case to answer in respect of misconduct or gross misconduct if the officer has retired.
It is common ground between the parties that if the Defendant had in fact made such a determination before the Claimant retired, that would be a complete answer to the claim. However I am satisfied that he had not done so (see para 57 below).
The Factual Background
The Claimant commenced his police career in the Royal Ulster Constabulary and served as a member of the Police Service of Northern Ireland ("PSNI"). In 2011 he was appointed the Deputy Chief Constable of Northumbria Police, and in 2013 he was appointed as Chief Constable of West Yorkshire Police ("WYP").
On 31 January 2014 the PSNI commenced investigation into offences of bribery and misconduct in public office, alleged to have been committed in Northern Ireland ("the criminal investigation"). The subject of the criminal investigation was, principally, vehicle contracts between PSNI and DMG, totalling £14m. The suspects in the criminal investigation included Mr Terrence Donnelly, the owner of DMG; Mr Gerry Murray, a former head of procurement with PSNI and subsequently a consultant at DMG; and Mr Duncan McCausland, a former senior officer with PSNI until 2011, subsequently a consultant to DMG. In the course of the investigation it was discovered that Mr McCausland was in contact with the Claimant.
On 18 June 2014 the Defendant referred the subject of the criminal investigation, so far as it concerned the Claimant, namely the DMG allegations, to the Independent Police Complaints Commission ("IPCC"). On 20 June 2014 the Defendant suspended the Claimant from duty as Chief Constable pending investigation.
On 27 August 2014 the Defendant became aware of the whistleblower allegations which had been made anonymously against the Claimant to WYP's Professional Standards Department ("PSD"). The Claimant was alleged to have treated colleagues inappropriately; made comments of a sexual nature to female staff; misused police resources; bypassed the official procurement process in order to employ a friend into a senior management role; and received documents in breach of the terms of his suspension.
On 11 September 2014 the Defendant made a second referral to the IPCC in respect of the whistleblower allegations.
On 6 October 2014 the IPCC (1) determined that it was not necessary for it to conduct a further investigation into the DMG allegations, and referred those allegations back to the Defendant to be dealt with in whatever manner the Defendant determined; and (2) also determined that the whistleblower allegations should be the subject of a local investigation.
On 8 December 2014 the Defendant appointed ACC Jacques of Lancashire Police as the investigator to conduct an investigation into any conduct matters arising from the PSNI investigation (i.e. the DMG allegations) (although it was not until 11 May 2015 that the Defendant and the Investigator finalised terms of reference for an investigation into the Claimant's conduct).
On 14 May 2015 the Claimant was given formal notice under reg.15 Police (Conduct) Regulations 2012 ("PCR") of the DMG allegations (see para 4 above) which were assessed as potentially amounting to gross misconduct.
On 18 May 2015 the Defendant lifted the Claimant's suspension from duty and he was re-deployed to the National Police Chiefs' Council ("NPCC"), on secondment, pending investigation into the DMG allegations and the whistleblower allegations.
On 29 May 2015 the Claimant provided a detailed response to the DMG allegations, denying the allegations "on the basis that they are simply without any foundation".
On 27 August 2015 the Claimant was given formal notice under PCR reg.15 of the subject matter of the investigation into the whistleblower allegations, assessed as potentially amounting to gross misconduct. It was alleged that the Claimant had abused his position by (1) using staff members to perform personal tasks on his behalf, including the use of police vehicles or staff members' personal vehicles to do so; (2) misusing overtime payments to staff members performing personal tasks on his behalf; (3) abusing or mistreating members of staff by making degrading gestures, making inappropriate sexual comments, using profanity and throwing items at staff; and (4) bypassing WYP's procurement process in order to employ a friend or associate into a senior management role. Following a review by ACC Jacques the allegation that the Claimant had breached the terms of his suspension was not maintained.
On 5 October 2015 the Claimant responded to the whistleblower allegations, requesting further particulars and denying the allegations.
On 4 July 2016 the Claimant wrote to the Defendant to request disclosure of the DMG investigation report when it was complete, prior to any misconduct hearing.
On 26 July 2016 the Investigator presented the Report to the Defendant.
On 2 August 2016 a copy of the Report was sent to Kingsley Napley, the Claimant's solicitors, informing them that the Defendant had to make a decision pursuant to reg.19 of the PCR and inviting any representations the Claimant wished to make by 10 August 2016.
On 3 and 5 August 2016 the Claimant's solicitors had discussions (on a without prejudice basis) with the chief executive of the Defendant's office, Mr Fraser Sampson.
On 5 August 2016 Mr Sampson wrote to Mr Adam Chapman of Kingsley Napley further to their telephone conversation that afternoon, saying that he had spoken with the Defendant and raised the fact that the Claimant was considering whether or not to retire, stating:
"To reiterate our position I am in the process of appointing a chair to the misconduct panel and instructing leading counsel to settle the relevant disciplinary 'charges' in response to the Appropriate Authority's decision having received the investigating officer's report. The Appropriate Authority will be writing formally to your client pursuant to regulation 19 of the Police (Conduct) Regulations 2012."
By e-mail dated 8 August 2016 to Mr Sampson (copied to Mr Mark Polin (Chair of Chief Officers' Staff Association), and Mr Chapman, Mr Adrian Crawford and Ms Sophie Kemp, all of Kingsley Napley) the Claimant gave notice of his intention to retire from the service.
On 9 August 2016 the Claimant retired from the office of Chief Constable and thereby ceased to be a member of the police service. Ms Dee Collins continued in post as Temporary Chief Constable of West Yorkshire and was appointed Chief Constable on 2 November 2016.
Between 10 August 2016 and 21 February 2017 the Defendant received various requests for information relating to...
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