The King on the application of Alice Victor v Chief Constable of West Mercia Police
| Jurisdiction | England & Wales |
| Judge | Mr Justice Eyre |
| Judgment Date | 18 August 2023 |
| Neutral Citation | [2023] EWHC 2119 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2142/2022 |
[2023] EWHC 2119 (Admin)
Mr Justice Eyre
Case No: CO/2142/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Birmingham Civil Justice Centre
33 Bull Street, Birmingham, B4 6DS
Kevin Baumber and Ciju Puthuppally (instructed by Straw & Pearce Solicitors) for the Claimant
John Beggs KC and Aaron Rathmell (instructed by West Mercia Police Legal Services) for the Defendant
Hearing date: 10 th May 2023
Approved Judgment
This judgment was handed down remotely at 10.00am on 18 th August 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction.
The Claimant was formerly a student probationer police constable with West Mercia Police. On 16 th March 2022 the Defendant discharged the Claimant under regulation 13 of the Police Regulations 2003 (“the Police Regulations”). The discharge followed and was a consequence of the removal of the Claimant's Recruitment Vetting clearance as a result of a decision by the West Mercia force's Vetting Appeal Panel on 8 th December 2021 (“the Vetting Decision”). The removal of the Claimant's vetting clearance was because of an incident in which the Claimant had been involved on 29 th May 2021. The Claimant's behaviour in that incident had already been subject to proceedings under the Police (Conduct) Regulations 2020 (“the Conduct Regulations”). Those proceedings had resulted in a finding of misconduct and in the Claimant receiving a final written warning.
The Claimant seeks judicial review of the decision to discharge her (“the Discharge Decision”) and of the Vetting Decision on which it was based pursuant to permission given by Steyn J. The primary ground is that the Vetting Decision was unlawful because it amounted to using the vetting procedure to subvert the conclusion reached in the misconduct proceedings and the protections provided to the Claimant by the Conduct Regulations. It is said that the Vetting Decision had that effect because it caused the Claimant to be dismissed from the West Mercia Police for precisely the same behaviour which had been found not to merit dismissal under the Conduct Regulations. That was supplemented by the contention that in the light of the outcome of the misconduct proceedings it was not rationally open to the Vetting Appeal Panel or the Defendant to remove the Claimant's vetting clearance or to discharge her under regulation 13 respectively. The Defendant says that there was no unlawful subversion of the Conduct Regulations nor any irrationality in the decisions reached. Instead, the decision under the Conduct Regulations; the Vetting Decision; and the Discharge Decision were reached in separate, sequential, and independent processes with distinct, rational, and lawful decisions being reached at the different stages under each process.
Permission was only given on the grounds alleging irrationality to the extent that they overlapped with the primary ground of unlawfulness. The central issue was, therefore, whether it was lawful for the Claimant's vetting clearance to be removed and for her discharge to follow as a consequence in circumstances where the conduct on which the Vetting Decision was based had been addressed in misconduct proceedings and where it had resulted there in a final written warning rather than dismissal. For the Claimant Mr Baumber accepted this in his oral submissions where he said that the question was that of the lawfulness rather than the rationality of the decisions.
The Factual Background .
The Claimant joined West Mercia Police on 26 th April 2021 as a student probationary officer and enrolled on the Police Constable Degree Apprenticeship.
On 29 th May 2021 at about 2.00am while off-duty the Claimant was involved in an incident in a public house in Worcester. The Claimant had been drinking since about 6.00pm the preceding evening and the incident occurred when she confronted a man whom she believed had been sleeping with her twin sister's boyfriend. There was an altercation in which the Claimant shouted abuse at that man. The Claimant left the public house at the instigation of the door supervisor but then continued shouting abuse in the street.
The incident led to misconduct proceedings under the Conduct Regulations. In those proceedings the Claimant admitted that she had called the man a “gay prick” but denied having called him a “gay cunt”. She accepted that while in the public house and under the influence of alcohol she had shouted abuse and had continued to do so in the street. She did not admit that she had been required to leave the public house but did accept that the door supervisor had taken her outside to defuse the situation and so the difference on that point was immaterial. The Claimant said that she would not have acted in the way she had but for the combination of her anger at what she believed to have been the betrayal of her sister and the amount of alcohol she had consumed.
Initially the allegation against the Claimant was that she had breached the Standards of Professional Behaviour in relation to authority, respect, and courtesy; discreditable conduct; and equality and diversity such that her conduct amounted to gross misconduct. In the course of the misconduct proceedings the allegation that there had been a breach of the standards in relation to equality and diversity was dropped and the view was taken that the conduct amounted to misconduct rather than to gross misconduct. As a consequence the Claimant attended at a misconduct meeting chaired by Chief Inspector Gibbs. He found that the Claimant's behaviour had been deliberate and directed at a particular individual and that the Claimant had used discriminatory terminology based on the abused man's sexual orientation. CI Gibbs said that the Claimant's intoxication did not provide a defence and characterized her behaviour as “an ill-tempered emotional response” showing immaturity. Having found that the Claimant's actions constituted misconduct CI Gibbs imposed a final written warning to persist for two years.
The Claimant's vetting clearance was then reviewed. The initial decision was to withdraw the Claimant's recruitment vetting clearance because her behaviour on 29 th May 2021 had shown that she was not fit to hold vetting clearance. That was a consequence of “the impact on public confidence” of allowing the Claimant to retain her clearance and because of “the lack of integrity … demonstrated by [her] behaviour”. The starting point of that analysis had been the principle derived from the Vetting Code of Practice that “it is essential that the public is confident that police vetting processes are effective in identifying those who are unsuitable for working within the police service.”
The Claimant appealed that decision but her appeal was refused and the Vetting Decision was made on 8 th December 2021. The Vetting Appeal Panel noted the Claimant's behaviour on 29 th May 2021 and concluded that for her to retain vetting clearance despite such behaviour “would have a derogatory effect on [the public's] trust and confidence in West Mercia Police”.
The Defendant made the Discharge Decision on 16 th March 2022 after a meeting pursuant to regulation 13. In essence, the Defendant's reasoning was that the withdrawal of the Claimant's recruitment vetting clearance meant that the Claimant would not be able to continue with the Police Constable Degree Apprenticeship and so would not be able to become an efficient or well-conducted officer.
The Grounds and the Procedural History .
The Claimant advanced five grounds of challenge to the Vetting Decision and to the Discharge Decision. Permission was refused by HH Judge Mithani KC but Steyn J granted permission on grounds 1(b), 2, 3, and 5. However, in granting that permission Steyn J explained that ground 2 was the primary ground and that permission was only granted on grounds 3 and 5 insofar as they overlapped with ground 2.
The Claimant has abandoned ground 1(b) which was an assertion that the Claimant had not been given adequate notice or disclosure in relation to the Vetting Decision.
In ground 2 the Claimant asserted that the Vetting Decision was “infected with illegality in that the Vetting Appeal Panel misdirected itself in respect of the proper approach to the police misconduct regime and the police misconduct outcome in Miss Victor's case”. Ground 3 asserted that the Vetting Decision was irrational in failing to take into account the substantial mitigating factors; in being “fundamentally inconsistent” with the outcome of the misconduct proceedings; and in being outside the range of conclusions open to a reasonable decision maker. Ground 5 addressed the Discharge Decision under regulation 13 saying that this decision was not rationally open to the Defendant in light of the outcome of the misconduct proceedings and was made on the basis of “a manifestly flawed vetting decision”. The parties' respective cases on these points as they developed before me and the issues to be addressed are summarised at [2] and [3] above.
The Core Decision .
The central decision was that of the Vetting Appeal Panel to withdraw the Claimant's vetting clearance rather than the subsequent Discharge Decision. This is because the Discharge Decision was dependent on the Vetting Decision. If the earlier decision was unlawful then that illegality will necessarily have tainted the later decision. This was recognised by the fact that it was the Vetting Decision which was the subject of ground 2 which Steyn J identified as the primary ground. It is, however, to be noted that the Defendant in asserting the lawfulness of both decisions made the point that they...
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Gareth Watson and The Police Service of Northern Ireland
...albeit a probationary officer, as a result of vetting clearance being removed is R (Victor) v Chief Constable of West Mercia Police [2023] EWHC 2119. In the course of that judgment, at paras [40]-[44] and [88], Eyre J recognised the role of the Performance Regulations in this regard (albeit......