Police Law Blog European Decisions Statutory Materials

Police Conduct Regulations 2012. Home Office Guidance 2018

The Home Office has published:

– Frequently asked questions on the barred and advisory lists; and

– Amended Home Office guidance on police misconduct.

The Home Office states that the changes include:

– further guidance on the regulations for former officers including whether they apply to cases of misconduct taken under Conduct Regulations issued prior to 2012

– clarification that police staff members who are under local probationary rules equivalent to Regulation 13 of Police Regulations 2003 will not be included on the barred list

– triggers and process for the advisory list have been made clearer and explanation of the process of automatic removal from the advisory list which exists for designated volunteers.



Appealing adjournments in misconduct hearings

Challenges to a failure to adjourn seem to be popping-up at the moment. There was the recent decision of the Court of Appeal in Solanki v (1) Intercity Telecom Ltd (2) Guidinglight Finance Ltd [2018] EWCA Civ 101 – where a judge had failed to give adequate reasons for rejecting medical evidence justifying an adjournment. By contrast, in the recent decision of Lindsay v Solicitors’ Regulatory Authority [2018] EWHC 1275 (Admin), the respondent in misconduct proceedings failed to advance adequate evidence to support such an application. What lies deeper beneath, however, is whether an appeal against a decision not to adjourn requires the appellate court or tribunal to consider whether the original decision lay within the range of reasonable responses open to the decision maker below or, alternatively, has to determine the question of fairness/correctness itself.

Proceeding in absence: Adeogba reaffirmed

Just a very short point on proceeding in misconduct hearings in the absence of defendant officers, following the judgment in Sanusi v GMC [2018] EWHC 1388 (Admin).

The position on proceeding in absence of a defendant officer in police misconduct hearings was always thought to mirror that in criminal proceedings – and for good reason. The central authority of R v Jones (Anthony) [2003] 1 AC 1, setting out the very high bar to proceeding in criminal actions was followed by Tait v The Royal College of Veterinary Surgeons [2003] UKPC 34, which adopted that test for disciplinary hearings. It is worth noting that although Tait was heard by the Privy Council, it did so as a first (and only) tier appeal tribunal. Regardless, the position in Tait no longer holds.

Competing private and public interests in suspension and investigation

R (Birks) v Commissioner of Police of the Metropolis [2018] EWHC 807 (Admin) is the case of an officer who wanted to resign in order to take up a position as a minister in the Church of England. He was suspended and not permitted to resign, so that the IPCC (as it then was) could investigate his conduct in connection with the arrest of Sean Rigg who died in custody at Brixton Police Station in 2008.

Before the “former officer” provisions were introduced by the Police (Conduct, Complaints and Misconduct and Appeal Tribunal) (Amendment) Regulations 2017, the IPCC could investigate the conduct of an officer, serving or retired but a case to answer decision and disciplinary proceedings could only be taken in relation to a serving officer. In 2003, the Home Secretary issued guidance (Circular 55/2003) to the effect that the power to suspend could be used to prevent a resignation and thereby ensure the completion of disciplinary proceedings. If an officer was suspended, they had to seek the permission of their Chief Officer to resign or retire.

In PC Birks’ case, his resignation had been accepted by the Metropolitan Police in 2014, notwithstanding the new IPCC investigation. But this acceptance was rescinded, under pressure from the IPCC and Mr Rigg’s sister – and PC Birks was suspended precisely to prevent him from resigning. PC Birks first challenged this in a judicial review claim. He alleged that that being required to remain a police officer breached Article 8 (privacy) and Article 9 (religion) of his Convention Rights. Further, that it amounted to an unlawful departure from a substantive legitimate expectation because the Metropolitan Police had already accepted his resignation.

Judicial review or internal appeal against bias?

Where a police officer makes an unsuccessful application for a panel to recuse itself on the grounds of perceived (or actual) bias, can he apply for judicial review of the decision before exhausting his ‘internal’ right of appeal (under rule 4(4)(c) of the Police Appeals Tribunal Rules 2012)?

The law in foreign, common-law jurisdictions is different but a similar question in relation to a doctor and a misconduct panel was answered affirmatively by the Supreme Court of Appeal of South Africa in Basson v Health Professions Council of South Africa [2018] ZASCA 1.