Khan, R (on the application of) v Chief Constable of Lancashire [2009] EWHC 472 (Admin)

Case No CO/10706/2007[2009] EWHC 472 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 30 January 2009
Strand
London WC2
B E F O R E:
MR JUSTICE ELIAS
Between
THE QUEEN ON THE APPLICATION OF KHANClaimant-v-
Between
CHIEF CONSTABLE OF LANCASHIREDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr Hugh Southey (instructed by O'Donnells) appeared for ClaimantMr John Beggs (instructed by Legal Department, Lancashire Constabulary) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE ELIAS: In this case the defendant Chief Constable dispensed with the services of the claimant, a probationary constable. He did so pursuant to Regulation 13 of the Police Regulations 2003, SI 2003/527, which provides:
"(1) Subject to the provisions of this regulation, during his period of probation in the force the services of a constable may be dispensed with at any time if the chief officer considers that he is not fitted, physically or mentally, to perform the duties of his office, or that he is not likely to become an efficient or well conducted constable."
The Chief Constable considered that the conduct of the claimant, evidenced by a particular incident, demonstrated that he was not fitted mentally to perform the duties of his office and was not likely to become a well conducted constable.[2]That incident involved the claimant and a friend of his having sex with a young woman. The Chief Constable accepted that until this incident the claimant had shown himself to be an enthusiastic, committed, efficient and effective officer. The claimant challenges by way of judical review the decision to dispense with his services on various grounds, which I set out below. The conduct in issue[3]The background facts giving rise to this incident are, for the most part, not disputed. The claimant picked up the young woman from a night club, in company with his male friend, on the evening of 26 March 2007. The claimant and his friend took the woman back to her room in a hall of residence. He says it was at her instigation. It is not disputed that the woman had been drinking. The claimant said:
"I could tell she's had a couple of drinks and she was merry. She wasn't totally bladdered or anything like that. She was totally merry."
The claimant was kissing the complainant. On his account the woman agreed to his friend joining in. It is not necessary to describe the sexual act in any detail. Suffice it to say that the claimant had both vaginal and anal intercourse with her. During the course of the intercourse the claimant starting videoing the events. His friend asked the woman to say, "I am not drunk."[4]Subsequently they all left the complainant's hall of residence to return the woman to the bar. The claimant accepted that at this stage she was "a bit unsteady on her feet and I was thinking that's because of what's just happened".[5]The claimant called her the next day, withholding his mobile telephone number, to tell her that they had a good time but he did not want to pursue any relationship with her. The claimant hung up on the woman when she asked for his telephone number because he did not want her to pester him. Later, the claimant downloaded the DVD footage on to his computer.[6]Subsequently the woman made allegations of rape, alleging that she had been asleep at the time of the intercourse. The claimant was arrested. Subsequently however the charges were dropped. The video evidence supported the claimant's case that sex was consensual. Furthermore there was an expert's report on blood and alcohol samples which ruled out the possibility of gross intoxication.[7]The claimant was suspended whilst the charges were pending but the suspension was lifted once they were dropped.[8]There were various procedural stages when it was envisaged that disciplinary charges might be pursued arising out of the alleged rape. These were not pressed. However on 26 July 2007 the claimant was invited to a conference with the Divisional Commander, Chief Superintendent Mallaby, to enable the Commander to consider whether to recommend that the Chief Constable dispense with the claimant's services under Regulation 13. That conference was held on 17 August. The claimant was served in advance with the statement of the woman, a transcript of the video and record of the interviews conducted with him. He also received a letter from the Human Resources Manager at the Lancashire Constabulary which summarised in some detail the issues to be considered at the conference.[9]The claimant was assisted at the conference by a representative of the Police Federation, Miss Gibbons. It transpired that legal advice had been obtained by the Chief Constable concerning his powers. The claimant's representative said that he was not willing to respond without seeing that advice, and he did not do so. Later, the claimant was provided with a transcript of the conference. He was informed that a recommendation would be made that the claimant's services should be dispensed with under Regulation 13, and this was duly done. He was invited to make further representations before 2 o'clock on 22 August 2007.[10]On 22 August the claimant submitted written representations regarding the Regulation 13 procedure. He asserted that the Regulation 13 proceedings should not have been instigated because this was essentially a disciplinary matter; that the claimant had been denied disclosure of certain witness statements taken from the woman's friends; and that he was a suitable person to serve as a police officer.[11]On 25 August 2007 Chief Constable Finnigan considered the recommendation that he dispense with the claimant's services under Regulation 13. He reached a provisional view on the material before him and made a note of various points. He was satisfied that Regulation 13 was the appropriate procedure. He indicated in the note that the information that he had considered "leads me towards the decision to dispense with the claimant's services". He summarised his reasons as being these: the claimant's lack of judgment and the fact that there was abuse of a vulnerable young woman for personal gratification. He considered that the claimant had fallen considerably short of the standards to be expected of a member of the Lancashire Constabulary. He also noted that the claimant had been unable even to appreciate that his behaviour might bring discredit upon the Constabulary. The note does, however, emphasise that this was the Chief Constable's current belief and that he was prepared to give the claimant an opportunity to be heard when he would outline his concerns to the claimant, and would provide such materials to the claimant as would to enable him fairly to understand those concerns.[12]On 30 August 2007 the claimant met the Chief Constable. He was assisted by a representative of the Police Federation, Mr Finlay. The Chief Constable said that he had focussed upon "the admitted and the incontrovertible" facts and not the dispute as to consent. He notified the claimant of his concerns which can be summarised as follows: the claimant had engaged in sexual contact with a woman who was vulnerable; another man had participated; the claimant knew that women sometimes make allegations that are false and so he should have appreciated the risk he had put himself in; the claimant had attempted to contact the woman after the incident whilst withholding his number which implied that he appreciated that he was at risk; and the videoing of the incident demonstrated that the claimant was exploiting the situation.[13]The Chief Constable indicated that he could dispense with the claimant's services because of the lack of judgment and the abuse of a vulnerable young woman. However he emphasised very strongly that he wanted to hear what the claimant had to say, that the exercise was not just a charade, and that it was still open to the claimant to influence his decision.[14]There was an extensive dialogue between the claimant and the Chief Constable lasting longer than an hour. The Chief Constable's concerns were put to him and he responded. The claimant denied that his behaviour fell short of the standards expected of police officers. He stated that the woman was not so drunk that she was not in control of her actions and she was not vulnerable even though it was a two-on-one situation. He said that they were both nice to her. The claimant did not think that the woman would make an allegation of rape as she did not lack capacity to consent. He also said that he felt no remorse for a woman who had made a false allegation of rape; nor did he regret the incident or consider that it was a mistake. It was a private matter, a spur of the moment experience between consenting adults. He said he felt it was he who was the victim.[15]Chief Constable Finnigan responded to that by stating:
"I have absolutely no doubt in my mind that [the woman] is a victim, very much a victim in this and I want to be very, very clear on that."
[16]The Chief Constable was asked to read further reports and documents by the claimant's representative and did so.[17]On 30 August the Chief Constable wrote a memorandum to Mr Brindle, the Director of Human Resources, summarising the meeting that had taken place earlier that day with the claimant. This [memorandum] stated that the Chief Constable had decided that the services of the claimant should be dispensed with under Regulation 13 because the claimant had sexually abused a vulnerable woman for personal gratification. The Chief Constable expressed the view that the claimant's judgment and conduct had fallen considerably below the standard expected. He [the claimant] did not perceive the woman to be vulnerable; he did not consider that he had exposed himself to the risk of a rape charge; he did not think that there was anything wrong with filming the incident and putting it on the video.[18]On 31 August the claimant's services were dispensed with under Regulation 13. The letter confirming this decision stated that the claimant had shown a lack of judgment and had been involved in the abuse of a vulnerable young woman for personal gratification. Grounds of application[19]There are three principal grounds in this application. First, it is alleged that the defendant ought not to have used Regulation 13 at all. This was a case where the appropriate procedure was the disciplinary procedure.[20]Second, it is alleged that there is a breach of Article 8. Regulation 13 did not identify with sufficient clarity the circumstances when the claimant's rights under Article 8, in particular the right to respect for his private life, could be interfered with.[21]Third, it is said that there were certain procedural breaches. First it is alleged that there was certain information which was not disclosed to the claimant; second, it is said that the Chief Constable had pre-judged the matter.[22]I deal with all these various matters in turn. Should the disciplinary procedure have been invoked? It was not disputed that the proceedings against the claimant could have been brought under the disciplinary rules. Schedule 1 to the Police (Conduct) Regulations 2004, SI 2004/645, contained the code of conduct for police officers. Paragraph 12 of the schedule provides that - "Whether on or off duty, police officers should not behave in a way which is likely to bring discredit upon the police service."[23]It is accepted that the claimant could have been charged with breach of this provision. That is clearly what was being alleged. Mr Southey says that if (which he does not accept) the claimant had abused or exploited a vulnerable woman, that would have been conduct likely to bring the police service into disrepute. There was a complete overlap between the conduct which led to the Chief Constable dispensing with the claimant's services and this disciplinary charge. Indeed, had the claimant not been a probationer, it is clear that disciplinary proceedings would have had to have been brought under the 2004 Regulations if the claimant was to have been dismissed.[24]Had the disciplinary route been chosen, it would have had certain consequences which the claimant alleges would have been advantageous to him. He would have been able to appeal to the Police Appeals Tribunal under Section 85 of the Police Act 1996. He would have been entitled to legal representation (see Regulation 17) - particularly important where Article 8 matters may have been raised - and he would have had the right to have misconduct established on the balance of probabilities (Regulation 27). In addition, there were disclosure obligations which would have secured him all the relevant documents.[25]The question in this case is whether the Chief Constable is entitled to go down the Regulation 13 route rather than initiate disciplinary proceedings. In this context it is relevant to note that under Section 87 (3) of the Police Act 1996 the Chief Constable is obliged to have regard to guidance issued by the Home Office in the exercise of his powers. Paragraph (e) to the Introduction to Home Office Circular 8/2005 states so far as material:
"The provision for a chief officer to dispense with the services of a constable during his or her probationary period should not be used as an alternative means of dismissing a probationer who should properly face misconduct proceedings. Where misconduct proceedings are appropriate and justified, they should be brought; where they are not brought, a probationer should not be left with the impression that he or she has been suspected of misconduct and been given no chance to defend him or herself."
[26]The guidance, therefore, recognises that there will be some cases where disciplinary proceedings should be brought notwithstanding the fact that the officer concerned is a probationer.[27]There are two Court of Appeal authorities which have considered this issue. R v Chief Constable of West Midlands Police ex p Carroll (unreported) 10 May 1994 concerned a decision to dispense with the services of a probationary constable under a predecessor of Regulation 13, which was in identical terms. There were said to have been three incidents which demonstrated that the probationer was unsuitable to retain office. It was accepted by the police that two of the alleged incidents could have been the subject of disciplinary proceedings because they amounted to allegations of conduct contrary to the police disciplinary code. The probationer strongly denied two of the allegations made against him and contended that there was a conspiracy to harm him from within the force and that the charges were untrue.[28]The Court of Appeal concluded that in the circumstances it was wrong to use the regulation equivalent to Regulation 13. The failure to use disciplinary proceedings was both Wednesbury unreasonable and procedurally unfair. Lord Justice McCowan pointed out, in a passage relied upon by the claimant, that if the disciplinary route had been taken it was perfectly possible that the claimant might have established that the charges were untrue. this was particularly so since the Divisional Court had found his evidence more credible than that of the other witnesses. Lord Justice Rose agreed and said:
"The fundamental flaw in the fairness of the Chief Constable's decision was that he assumed facts to be established which were and had been virtually from the outset disputed by the appellant, notably on the basis that other officers were conspiring against him."
[29]The other case is R v Chief Constable of British Transport Police ex p Farmer (unreported) 30 July 1999. The applicant had in that case admitted that he had committed an offence of dishonesty, helping another probationer to cheat in examinations. His services were dispensed with under a rule similar to Regulation 13. He contended that he ought to have been subject to disciplinary proceedings. The Court of Appeal disagreed. They rejected the submission that it was not legitimate to use the Regulation 13 procedure whenever a matter could be put through the disciplinary process.

Lord Justice Henry, with whose judgment Lord Justice Potter and Lord Justice Mummery agreed, said:

" ..... where the offence is admitted, there will be many cases where it would be contrary to good administration to go by the disciplinary route. The probationary period is there to discover and deal with fundamental unsuitability of outlook or temperament or behaviour. Each of these might manifest themselves in misconduct, but would in most cases be more appropriately resolved in the probationer's dismissal procedure concerned as it is not so much with the individual charges as with fundamental questions about whether the probationary police constable is fitted to perform the testing duties required of the police."
Later he said:
"In conclusion, there are two separate dismissal procedures which govern probationers. The decision which to use is a decision for the employing force. Where the facts founding the complaint are not admitted, in most if not all cases the decision is likely to be that the question whether the charge is proved or not proved be decided under the disciplinary procedures."
[31]The claimant says that in accordance with these principles, it was unfair not to employ these procedures. There were factual disputes which needed resolution. The claimant was strongly challenging two matters in particular. The first matter was the degree of inebriation of the woman; the second and related point was whether she was a vulnerable woman. It was the claimant's case that she was not. The Chief Constable had taken as a starting point that she was a victim and that the claimant had taken advantage of her. The Chief Constable's additional concerns about the claimant's lack of insight and inability to recognise his errors all pre-supposed that there were errors. The claimant's case was that he had done nothing wrong and this was simply a matter of consensual sex from a woman sufficiently in control of herself. That was the fundamental issue that could have been determined by an independent disciplinary body.[32]Mr Beggs, counsel for the Chief Constable, submits that this is precisely the kind of case that should be handled under Regulation 13. The primary facts were not disputed at all. There may be some uncertainty about the extent of the woman's inebriation, but there could be no doubt at all that she had had too much to drink. When one adds to that the fact that there were two men, both sober, alone in the woman's room, it was fanciful to think that she could be anything other than vulnerable. This was the inference from the primary facts that the Chief Constable was fully justified in drawing. Indeed, no other inference could sensibly be drawn. Furthermore, there was a real risk, which in fact materialised, that rape allegations would be made. This compounded the claimant's lack of judgment.[33]The issue, it seems to me, is whether there was sufficient conflict over the relevant facts to make it unfair for the Chief Constable to make the judgment he did on the basis of the undisputed primary facts. I do not think that there was. In my judgment, the Chief Constable was fully entitled to infer in the circumstances that the woman was vulnerable. He had to determine on the basis of undisputed primary facts whether the claimant was "fitted mentally to perform the duties of his office" and was "likely to become a well conducted constable". In my judgment he had sufficient material to determine that question. He was entitled to take the view, on the material that he had and which was not disputed, that this was inappropriate conduct. Whether a woman in that situation is vulnerable is itself a matter of assessing the primary facts. The Chief Constable was, in my view, entitled to make that determination himself. I do not accept that a disciplinary body would have been in any better position to draw inferences from that material.[34]Mr Southey placed considerable weight on the fact that Mr Beggs had accepted that if the case went before the disciplinary panel, it was possible that there would be a different outcome. Of course, it can never be stated categorically how a different body might assess matters or how the evidence might turn out. That does not, in my view, show that the Chief Constable's decision to go via the Regulation 13 route was mistaken. The question is whether the scope of the disputed matters was such that it would be unfair for him to make the assessment under the Regulations, not whether the outcome would inevitably have been the same even if the disciplinary process had been utilised.[35]Accordingly, this ground fails.[36]I turn to the second ground which is this. Mr Southey complains that the formulation of Regulation 13 fails to satisfy the requirement of Article 8 (2) that any interference with the private rights of Article 8 (1) must be prescribed by law. In order to be prescribed by law it is well established that there has to be a proper basis for any interference in the law. It must be accessible and it must be foreseeable. Mr Southey says that that is not the position here; there is insufficient clarity in the scope of the rule to make it foreseeable; the matter is compounded by the mistake of the Chief Constable that he expects particularly high standards from his serving officers.[37]It is not, I think, contested that there is here an interference with the claimant's private right, namely sexual activity in a private place. The terms of the regulation, as I have said, are whether the Chief Constable could dispense with services if he had not considered that the officer was fitted physically or mentally to perform the duties of his office or that he was not likely to become an efficient or well conducted constable. Mr Southey says these are far too vague and do not begin to identify with sufficient clarity the circumstances in which the rights conferred by Article 8 (1) can be the subject of interference.[38]In Sunday Times v United Kingdom [1979] 2 EHRR 245, the European Court of Human Rights noted that the degree of prescription needed in law would depend on the nature of the subject matter. The clarity required depends on the objective which the law is trying to achieve. It is really a matter of impression but, in my judgment, Regulation 13 does comply with the requirements. It would be impossible to formulate, with any degree of particularity, rules which could cover the multitude of fact situations which potentially could arise in circumstances of this sort.[39]Moreover, although I do not put much emphasis on this, I have been referred to the recent decision of the European Court of Human Rights in K v United Kingdom [2009] IRLR 139. The facts of that case are not very important. A probation officer was dismissed because of his activities in merchandising products connected with bondage, sado-masochism and so forth. The European Court considered that his dismissal was justified, and noted that an employee owed his employer a duty of loyalty and discretion. Mr Southey, quite rightly, says that in that case there appears to be no argument that the law was insufficiently clear but it appears that the court seems to have considered that a duty of that kind, formulated in that way, would have sufficed to give sufficient clarity and sufficient foreseeability. Yet it seems to me that that provision equally is cast in extremely general terms, necessarily so in order to catch a whole range of circumstances that may arise.[40]Accordingly, I reject that ground.[41]I turn to the final ground. The claimant alleges that there have been various procedural failings. The first is that certain material information was not provided for the claimant. It is accepted that it was not provided and it was desirable that it should have been. For example, the claimant did not have the report from the expert who had examined the blood and alcohol content shortly after the alleged rape had occurred. This, said Mr Southey, was potentially highly relevant to the degree of drunkenness.[42]In addition - but not so much play was made of this - there were two witness statements of friends of the woman which were not disclosed. One of these suggested that the woman was quite content to go in the car with the two men. The others however indicated that she had drunk, on any view, much more than she should.[43]I do not think that there was any material unfairness in the failure to disclose these statements. It was accepted that the Chief Constable was aware of them. He was not alleging that the woman was severely drunk, and that is all the expert witness' evidence would have disclosed. Nor was he suggesting that the woman was abducted or anything of that nature. He accepted that the intercourse was consensual. Accordingly, the evidence of the friend would not have been of assistance.[44]I do not, in truth, see how these statements could have assisted the claimant at all. They do not change the premise on which the Chief Constable made his decision which was on the basis of primary facts which were not disputed and were largely drawn from the claimant's own account.[45]There is also a point made that the legal advice should have been disclosed. However, it was privileged. It was not specifically argued that privilege had been waived. On the facts I suspect such an argument would have been very difficult to sustain. In any event, I am satisfied that there is no basis for that argument.[46]Finally, I turn to the assertion that the Chief Constable had pre-determined the matter. I do not think he did. It is true that he reached a clear and strong view on the documents before hearing what the claimant had to say in response (although he had, of course, by then seen what the claimant had said in interview). He went out of his way to assure the claimant that he would listen to him and take into account anything he wished to say in defence of his actions. I see no reason for doubting that this is precisely what the Chief Constable did. Judges will frequently go into court with a view - and sometimes a strong provisional view - about the strength of the case before them. That does not mean they have pre-determined the case. Indeed, sometimes it is difficult not to form a provisional view as one reads the papers.[47]For these various reasons, and notwithstanding the attractive arguments of Mr Southey, the application fails.[48]MR SOUTHEY: Mr Lord, on my side I have two applications, one of which I suspect is non-controversial, the other I suspect is more controversial.[49]I will get the non-controversial one out of the way. The claimant at the moment is legally aided. Can I seek assessment for the purpose of the Legal Services Commission?

MR JUSTICE ELIAS: Yes.

[51]MR SOUTHEY: The second application which is more controversial is that I would seek permission to appeal. My friend made the point in submissions - and surely he is in a better position to know than me - that this is a case that was regarded as being of some importance because of the Regulation 13 point and because of the fact that this has come up on a number of occasions.[52]Your Lordship's judgment, in my submission, essentially falls in between the two ends of the spectrum identified in Carroll and Farmer. Carroll, at one end of the spectrum, was a situation where primary facts were in dispute; Farmer, at the other end, where there could have been no possible plea in the disciplinary proceedings other than guilty because the admission had been made of dishonesty. This was a case where your Lordship correctly acknowledged that one could not necessarily be certain or have views on how probable it was the claimant would be convicted but one could not necessarily be certain what the outcome of the disciplinary proceedings would be, and it is possible that the disciplinary charges would have been found not proven. That is the sort of difficult issue that is perhaps left unresolved by Carroll and Farmer which is - in those cases in between where perhaps a finding depends on an assessment of the primary facts - whether it is fair, particularly in the light of the Home Office guidance, to proceed down the Regulation 13 route. That, in my submission, is contentious (?), particularly as it will arise in other cases.[53]MR BEGGS: I disagree.

MR JUSTICE ELIAS: You will tell me what a wonderful judgment it is.

[55]MR BEGGS: There is one thing that may assist your Lordship on that latter point: the new Home Office guidance which came into force on 1 December 2008 makes even clearer still that whether or not the probationer admits to the conduct is a very significant factor. It might be thought that my friend was dealing with what will become increasingly relevant law.[56]MR JUSTICE ELIAS: I do not think I will grant permission - you can press it before the Court of Appeal - principally because actually I think it turns on the facts. The Court may be interested in it. They may feel it is largely fact.[57]MR BEGGS: I raise two points. May I formally ask for costs?

MR JUSTICE ELIAS: Yes, in usual terms.

[59]MR BEGGS: Usual terms.

MR JUSTICE ELIAS: Whatever they are.

[61]MR SOUTHEY: I can assist. It is subject to Section 11 of the Access to Justice Act. That is the correct provision.[62]MR BEGGS: That is right. There was a phase of this litigation where my friend was funded by his equivalent trade union, the Police Federation. There will be costs that bite. I anticipate you will deliver down the written version.

MR JUSTICE ELIAS: Yes.

[64]MR BEGGS: May I invite one matter?[65]MR JUSTICE ELIAS: Yes. I may have something wrong.[66]MR BEGGS: It is this; I may have misunderstood. When you went through Mr Southey's three grounds you described them as "grounds of appeal".

MR JUSTICE ELIAS: I am sorry; grounds of application.

Cited in 3 later judgments