The Queen (on the application of Raza Ali) v Police Appeals Tribunal

Hearing date: 9.3.22

Approved Judgment

I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

THE HON. Mr Justice Fordham

Introduction

This is a case about a student police officer, the timing of a Regulation 15 Notice and the ‘informal fact-finding’ which preceded that Notice. It came before the Court as an in-person substantive hearing of a judicial review claim commenced by the Claimant on 2 August 2021, brought with the permission of HHJ Gosnell granted on the papers. The claim impugns, as its target, the determination (“the Chair's Determination”) by a Chair of the Police Appeals Tribunal. The Chair's Determination was issued pursuant to Rule 11(5) of the Police Appeals Tribunal's Rules 2012 (“the Rules”), dismissing an appeal pursuant to Rule 4. The Claimant's appeal was against a decision on 13 November 2020 that he be dismissed from the North Yorkshire Police Service (“NYPS”) without notice. That decision (“the Panel Decision”) had been taken by a three-member Panel after a 5-day misconduct hearing held between 9 and 13 November 2020.

During the course of the misconduct hearing, the Panel determined as a preliminary issue (“the Panel Determination”) an application by the Claimant to dismiss one allegation against him (“Allegation 4”). The basis of the application was that there had been an:

… alleged regulatory departure causing irredeemable prejudice such that a fair hearing cannot take place

The “alleged regulatory departure” relied on was the failure to serve a notice (“a Regulation 15 Notice”) in accordance with Regulation 15(1) of the Police (Conduct) Regulations 2012 (“the Regulations”), before conducting a meeting with the Claimant on 12 December 2018 (“the Meeting”). The Panel Determination rejected the application. It is that rejection which is at the heart of this judicial review claim. The parties in the proceedings dealt with by the Panel, and then the Chair, were the Claimant and the Interested Party. The Tribunal, as Defendant to these judicial review proceedings, has properly adopted a neutral position.

Law

The Rules and the Regulations to which I am referring in this judgment are of those which, everyone agrees, were applicable at the relevant time and remain applicable to this case.Rule 11(5) provides for an appeal to be dismissed “if the Chair considers that (a) the appeal has no real prospect of success; and (b) there is no other compelling reason why the appeal should proceed”.Rule 4(4) (read with Rule 4(1)) provides for an appeal, whose “grounds of appeal” may be “(a) that [a] finding [made under the Regulations] or disciplinary action imposed [under the Regulations in consequence of that finding]; or … (c) that there was a breach of the procedures set out in the … Regulations …, or other unfairness which could have materially affected the finding or decision on disciplinary action”. The test “regulatory departure causing irredeemable prejudice such that a fair hearing cannot take place” was agreed between the parties, and remained common ground before me, as the legally correct test for the Panel to have applied. It had been derived from cases which include R v Merseyside Chief Constable, ex p Merrill [1989] 1 WLR 1077 (see 1085F-G); R (Redgrave) v Metropolitan Police Commissioner[2002] EWHC 1074 (Admin) (see §40); and R (Wilkinson) v West Yorkshire Chief Constable[2002] EWHC 2353 (Admin) (see §§25 and 56). It was – and is – also agreed between the parties that in applying that legally correct test there were two legally correct questions to be determined as:

Question (a): Has there been a departure from the requirements of the Regulations?

Question (b): If yes, did irredeemable prejudice arise as a result, so that continuation of Allegation 4 is unfair?

The parties were – and are – agreed that if the Panel answered Question (a) “no” – as it did – that was the end of the matter. It is also common ground, before me, that the appeal against that answer – and so the appeal against the Panel Determination — engaged Rule 4(4)(c) (“a breach of the procedures set out in the Regulations… which could have materially affected the finding or decision on disciplinary action”). That means it would not be necessary for the Claimant to surmount the ‘objective unreasonableness’ threshold (discussed in R (Wiltshire Chief Constable) v Police Appeals Tribunal[2012] EWHC 3288 (Admin) at §§32–34). The parties agree that I must apply conventional public law standards – including ‘public law unreasonableness’ – in the discharge of this Court's supervisory jurisdiction of judicial review in relation to the Chair's Determination (as illustrated by R (Wilby-Newton) v Police Appeals Tribunal[2021] EWHC 550 (Admin) at §§83–87, 102, 123, 125). Finally, there was also agreement that none of the decided cases involved any consideration or analysis which could assist in the present case regarding informal steps taken prior to the issuing of a Regulation 15 Notice.

Context

The Claimant joined NYPS on 18 July 2018. Like all student officers, he was enrolled on the Initial Police Learning and Development Programme (“the Programme”). On 25 July 2018 he attended an induction delivered by Caroline Stanley, the Programme's Lead Internal Quality Assurer (“IQA”). NYPS required student officers to successfully complete a City and Guilds (“C&G”) Level 3 Diploma in Policing, in order for their NYPS appointment to be confirmed. The Standards of Professional Behaviour (“SPB”) in Schedule 2 to the Regulations were applicable to student officers from the time of their joining NYPS. Breach of the SPB is “misconduct”; and breach of the SPB so serious that dismissal would be justified is “gross misconduct”: see Regulation 3(1). The first of the SPB is “honesty and integrity: police officers are honest, act with integrity and do not compromise or abuse their position”. An equivalent standard was discussed, in an operational context, in R (Salter) v Dorset Chief Constable[2012] EWCA Civ 1047. Ms Stanley's role as Lead IQA was to ‘assure the quality’ of the Programme for the purposes of C&G and C&G's applicable policies and standards. Those policies included C&G's requirements and guidance entitled “Managing cases of suspected malpractice in examinations and assessments”. Included within the Programme was the task of completing a Student Officer and Learning Assessment Portfolio of evidence (“the Portfolio”), successful completion of which would result in award of the Diploma. The Portfolio included the student officer uploading coursework evidence to a C&G website, through an NYPS intranet portal. On 24 September 2018, 4 October 2018, 29 October 2018 and 7 November 2018 (“the 4 Dates”) the Claimant submitted Portfolio work in relation to parts of the Programme: Units 404, 317, 313 and 401 respectively (“the 4 Units”).

Catherine Convey-Brown is a trainer working for NYPS. She conducted a routine assessment on 21 November 2018 for Unit 404 and identified similarities between the work uploaded by the Claimant and by a fellow student officer on the same cohort (PC Laura Hayley). Ms Convery-Brown was concerned that both submissions were extremely similar. She asked Ms Stanley to have a look at the materials, telling Ms Stanley that she was concerned and wanted to flag it up to someone. Ms Stanley reviewed the position. This was not the first time that a question concerning circumstances involving student officers copying each other's work had arisen. Ms Stanley and her colleague Rachel Wood had spoken about that subject, on 19 September 2018, with DI Coward in his role of the Detective Inspector in Professional Standards within NYPS's Professional Standards Department (“PSD”). That conversation on 19 September 2018 had led DI Coward to send an email, later that day, to the Head of Training, Louise Dunwell. Ms Stanley's review of the matter to which Ms Convery-Brown had alerted her concerning the Claimant and PC Hayley led to Ms Stanley completing a “Suspected Learner Malpractice Notification Form” dated 29 November 2018, which she submitted to C&G, in accordance with C&G's policies and procedures. At an unknown date prior to 7 December 2018, a conversation took place between Ms Stanley and DI Coward. Ms Stanley convened meetings with each of the student officers – PC Hayley and the Claimant – to be attended by those officers who were their supervisors: in PC Hayley's case PS Hauxwell; in the Claimant's case PS Rawet. Ms Stanley sent an “Outlook Invitation” by email to PS Rawet. The meeting conducted by Ms Stanley with PC Hayley (and PS Hauxwell) took place on 7 December 2018. The Meeting, conducted by Ms Stanley with the Claimant (and PS Rawet), took place on 12 December 2018. Following the meetings, Ms Stanley wrote a memorandum which was submitted to C&G. PSD was updated. An assessment was carried out by DCI Taylor (acting as the delegate to the “Appropriate Authority” (Regulation 5(1), Regulation 12(1)); a decision that the matter should be “investigated” was made (Regulation 12(3)(4)); a “person to investigate the matter” was appointed (Stephanie Ingham) (Regulation 13(2)); and Regulation 15 Notices were issued (19 March 2019)...