Gilmore, R (On the Application Of) v Police And Crime Commissioner for West Yorkshire [2017] EWHC 2867 (Admin)

[2017] EWHC 2867 (Admin)Case No CO/1900/2017
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 14 November 2017
Before
THE HONOURABLE MR JUSTICE SUPPERSTONE
Between
THE QUEENClaimanton the application ofClaimantMARK GILMOREClaimantPOLICE AND CRIME COMMISSIONER FOR WEST YORKSHIREDefendant
Jeremy Johnson QC (instructed by Messrs McCartan Turkington Breen) for ClaimantJohn Beggs QC and Aaron Rathmell(instructed by Stephen Hodgson, Office of the PCC for Cleveland) for the DefendantHearing Hearing dates: 31 October & 01 November 2017
Judgment ApprovedMr Justice Supperstone :Introduction
[1]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”).[2]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”.[3]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.[4]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).[5]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).[6]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.[7]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

[8]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”).[9]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.[10]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.[11]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.[12]On 11 September 2014 the Defendant made a second referral to the IPCC in respect of the whistleblower allegations.[13]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.[14]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).[15]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.[16]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.[17]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”.[18]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.[19]On 5 October 2015 the Claimant responded to the whistleblower allegations, requesting further particulars and denying the allegations.[20]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.[21]On 26 July 2016 the Investigator presented the Report to the Defendant.[22]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.[23]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.[24]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.”
[25]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.[26]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.[27]Between 10 August 2016 and 21 February 2017 the Defendant received various requests for information relating to misconduct investigations against the Claimant under the Freedom of Information Act 2000 (“the FOI requests”). On 19 September 2016 the Defendant wrote to Kingsley Napley informing them that the PCC had received two FOI requests for the terms of reference of Lancashire Constabulary’s investigations into the conduct of the Claimant, and asking to be informed as to any concerns regarding disclosure. Kingsley Napley replied on 26 September recording the Claimant’s objections to publication of the terms of reference and allegations concerning his conduct at WYP. In relation to allegation 1 they wrote that it would be unfair to release details of the bare allegation where the investigation had concluded that there was no case to answer. In relation to allegation 2 they wrote: “The only rational conclusion which could follow on from the investigator’s findings in relation to benefit is that our client had no case to answer for misconduct. It is therefore plainly irrational – and astonishing – that the investigator’s conclusion was that our client has a case to answer for misconduct”.[28]On 18 November 2016 the Defendant wrote to Kingsley Napley with regard to further FOI requests, inviting representations on behalf of the Claimant. On 25 November 2016 Kingsley Napley wrote two letters to the Defendant: the first in response to the FOI requests, inter alia, again describing the investigating officer’s case to answer decision in relation to allegation 2 as plainly irrational; the second “to formally record our grave concerns about the final investigation report prepared by ACC Jacques…, as well as aspects of the investigation process”.[29]On 16 January 2017 McCartan Turkington Breen (“MTB”), the Claimant’s present solicitors, wrote to the Defendant as follows:
“It has now been almost six months since the promulgation of the Investigating Officer’s report. Although you are giving consideration to publication of the report, you do not appear to have followed the process that you are obliged to follow by statute. The purpose of this letter is to request that you: (i) Do not give any further consideration to the publication of the report (nor its Terms of Reference under the FOIA request) until the statutory process has been completed. (ii) Explain what steps have been taken to comply with the statutory requirements. (iii) Explain why (to the extent that you have made the decisions that are required to be made under statute) you have not communicated those decisions to Mr Gilmore. (iv) Explain why (to the extent that you have not made the decisions that are required to be made under statute) you have not done to, and have not complied with the statutory obligation to keep Mr Gilmore updated. (v) Consider representations from Mr Gilmore as to why you should not find that there is a case to answer. … On receipt of the report you were obliged to determine whether the report indicates that a criminal offence may have been committed, and whether the circumstances are such that it is appropriate for the matters dealt with in the report to be considered by the Director of Public Prosecutions (see para 24(2) of Schedule 3 to the Police Reform Act 2002). You are also obliged to determine whether Mr Gilmore has a case to answer in respect of misconduct or gross misconduct or has no case to answer, and whether or not his performance is unsatisfactory (see para 24(6) of schedule 3 to the Police Reform Act 2002, and reg.19(1)(b) Police (Conduct) Regulations 2012). Any decision made by you to the effect that there is a case to answer is (as a matter of fundamental and constitutional principle) of no effect unless or until it is communicated to Mr Gilmore – see R (Anufrijeva) v Secretary of State for the Home Department [2004] 1 AC 604 per Lord Steyn (for the Appellate Committee of their Lordships’ House) at [26]. By reg.19(7) of the 2012 Regulations you had a statutory obligation (in the event of a failure to make the necessary determination within 15 days) to notify Mr Gilmore of the reason for this. You have not complied with that obligation.”
[30]Having referred to the investigator’s findings in relation to allegation 2, MTB concluded: “…I respectfully invite you now to find that, contrary to the view of the investigator, Mr Gilmore has no case to answer, and to provide a reasoned basis for that decision”.[31]By letter dated 6 February 2017 Ms Susan Field, Interim Chief Executive of the Office of the Police and Crime Commissioner for West Yorkshire, responded, so far as is material:
“Each of the allegations of breach of statutory requirements set out in the letter are denied. Former Chief Constable Gilmore chose to retire, for whatever reason, at a time when the prospect of disciplinary proceedings against him was outstanding. His retirement had the effect of bringing the statutory conduct process to an end. This was before the decisions which you refer to fell due to be taken by the Police and Crime Commissioner (PCC) acting in his capacity as Appropriate Authority. As your client is no longer a member of a police force, there is no power to progress stages of the conduct process against him. He cannot, in any event, be subject to disciplinary proceedings. The suggestion now by your client, over five months following his retirement, that the PCC should have continued to take the statutory decisions, and kept your client informed of the same, is therefore surprising.”
[32]Following a pre-action protocol letter on 24 February 2017 and the Defendant’s response on 13 March 2017, this claim for judicial review was filed on 4 April 2017.[33]On 6 July 2017 Garnham J granted permission on all grounds, expressly reserving to the court hearing the matter the issue of delay.[34]On 22 August 2017 the Information Commissioner’s Office upheld the Defendant’s decision not to publish the Report pending determination of this claim.

The legislative framework

[35]The investigation of allegations of misconduct against the Claimant is governed by Part 2 of and Schedule 3 to the PRA.[36]In Part 2 “conduct matter” is defined by s.12(2) as “any matter which is not and has not been the subject of a complaint but in the case of which there is an indication (whether from the circumstances or otherwise) that a person serving with the police may have(a) committed a criminal offence; or(b) behaved in a manner which would justify the bringing of disciplinary proceedings”. For the purposes of this Part “a person is serving with the police if (a) he is a member of a police force” (s.12(7)).[37]S.13 of Part 2 and Schedule 3 provide for the handling of conduct matters. Paragraph 24 of Schedule 3 titled “Action by the appropriate authority in response to an investigation report” provides, so far as material: “(1) This paragraph applies where –(a) a report of an investigation is submitted to the appropriate authority in accordance with paragraph 22(2)... (2) On receipt of the report or (as the case may be) of the copy, the appropriate authority – (a) shall determine whether the conditions set out in sub-paragraphs (2A) and (2B) are satisfied in respect of the report;(b) if it determines that those conditions are so satisfied, shall notify the Director of Public Prosecutions of the determination and send him a copy of the report; and(c) shall notify the persons mentioned in sub-paragraph (5) of his determination under paragraph (a) and of any action taken by it under paragraph (b). (2A) The first condition is that the report indicates that a criminal offence may have been committed by a person to whose conduct the investigation related. (2B) The second condition is that – (a) the circumstances are such that, in the opinion of the appropriate authority, it is appropriate for the matters dealt with in the report to be considered by the Director of Public Prosecutions, or (b) any matters dealt with in the report fall within any prescribed category of matters. (3) The Director of Public Prosecutions shall notify the appropriate authority of any decision of his to take, or not to take, action in respect of the matters dealt with in any report a copy of which has been sent to him under sub-paragraph (2). (4) It shall be the duty of the appropriate authority to notify the persons mentioned in sub-paragraph (5) if criminal proceedings are brought against any person by the Director of Public Prosecutions in respect of any matters dealt with in a report copied to him under sub-paragraph (2)(b). (5) The persons are – ... (b) in the case of a recordable conduct matter, every person entitled to be kept properly informed in relation to that matter under that section. ... (6) On receipt of the report or (as the case may be) copy, the appropriate authority shall also – (a) in accordance with regulations under section 50 or 51 of the 1996 Act, determine – (i) whether any person to whose conduct the investigation related has a case to answer in respect of misconduct or gross misconduct or has no case to answer, and (i)(a) whether or not any such person’s performance is unsatisfactory, and (ii) what action (if any) the authority is required to, or will in its discretion, take in respect of the matters dealt with in the report, and (b) determine what other action (if any) the authority will in its discretion take in respect of those matters. (7) On the making of the determination under sub-paragraph (6) the appropriate authority shall give a notification – ... (b) in the case of a recordable conduct matter, to every person entitled to be kept properly informed in relation to that matter under that section. (8) The notification required by sub-paragraph (7) is one setting out – (a) the findings of the report; (b) the determination the authority has made under sub-paragraph (6); ...”. (a) a report of an investigation is submitted to the appropriate authority in accordance with paragraph 22(2)... (a) shall determine whether the conditions set out in sub-paragraphs (2A) and (2B) are satisfied in respect of the report; (b) if it determines that those conditions are so satisfied, shall notify the Director of Public Prosecutions of the determination and send him a copy of the report; and (c) shall notify the persons mentioned in sub-paragraph (5) of his determination under paragraph (a) and of any action taken by it under paragraph (b). (a) the circumstances are such that, in the opinion of the appropriate authority, it is appropriate for the matters dealt with in the report to be considered by the Director of Public Prosecutions, or (b) any matters dealt with in the report fall within any prescribed category of matters. (b) in the case of a recordable conduct matter, every person entitled to be kept properly informed in relation to that matter under that section. (a) in accordance with regulations under section 50 or 51 of the 1996 Act, determine – (i) whether any person to whose conduct the investigation related has a case to answer in respect of misconduct or gross misconduct or has no case to answer, and (i)(a) whether or not any such person’s performance is unsatisfactory, and (ii) what action (if any) the authority is required to, or will in its discretion, take in respect of the matters dealt with in the report, and (b) determine what other action (if any) the authority will in its discretion take in respect of those matters. ... (b) in the case of a recordable conduct matter, to every person entitled to be kept properly informed in relation to that matter under that section. (a) the findings of the report; (b) the determination the authority has made under sub-paragraph (6); ...”.[38]The PCR were made by the Secretary of State in exercise of the powers conferred by Sections 50, 51 and 84 of the Police Act 1996. The requirement to make a decision as to a case to answer is further regulated by Regulation 19 in Part 4 of the PCR, titled “Misconduct Proceedings”: “19-Referral of case to misconduct proceedings (1) Subject to regulation 41 and paragraph (6) - (a) on receipt of the investigator’s written report; and (b) in the case of such a report submitted under paragraph 22 of Schedule 3 to the 2002 Act (final reports on investigations), in making a determination under paragraph 23(7) or 24(6) of Schedule 3 to the 2002 Act (action in response to an investigation report) as to what action to take in respect of matters dealt with in that report, the appropriate authority shall as soon as practicable, determine whether the officer concerned has a case to answer in respect of misconduct or gross misconduct or whether there is no case to answer. ... (3) where the appropriate authority determines there is no case to answer, it may – (a) take no further disciplinary action against the officer concerned; (b) take management action against the officer concerned; or (c) refer the matter to be dealt with under the Performance Regulations. (4) Where the appropriate authority determines that there is a case to answer in respect of gross misconduct, it shall, subject to regulation 9(3) and paragraph (2), refer the case to misconduct hearing. (5) Where the appropriate authority determines that there is a case to answer in respect of misconduct, it may – (a) subject to regulation 9(3) and paragraph (2), refer the case to misconduct proceedings; or (b) take management action against the officer concerned. ... (7) Where the appropriate authority fails to – (a) make the determination referred to in paragraph (1); and (b) where appropriate, decide what action to take under paragraph (5), before the end of 15 working days beginning with the first working day after receipt of the investigator’s written report, it shall notify the officer concerned of the reason for this.” (a) on receipt of the investigator’s written report; and (b) in the case of such a report submitted under paragraph 22 of Schedule 3 to the 2002 Act (final reports on investigations), in making a determination under paragraph 23(7) or 24(6) of Schedule 3 to the 2002 Act (action in response to an investigation report) as to what action to take in respect of matters dealt with in that report, (a) take no further disciplinary action against the officer concerned; (b) take management action against the officer concerned; or (c) refer the matter to be dealt with under the Performance Regulations. (a) subject to regulation 9(3) and paragraph (2), refer the case to misconduct proceedings; or (b) take management action against the officer concerned. (a) make the determination referred to in paragraph (1); and (b) where appropriate, decide what action to take under paragraph (5),[39]Paragraph 21 of the PCR titled “Notice of referral to misconduct proceedings and panel membership” provides:
“(1) Where a case is referred to misconduct proceedings, the appropriate authority shall as soon as practicable give the officer concerned – (a) written notice of – (i) the referral; (ii) the conduct that is the subject matter of the case and how that conduct is alleged to amount to misconduct or gross misconduct as the case may be; ... (b) a copy of any statement he may have made to the investigator during the course of the investigation; and (c) subject to the harm test, a copy of – (i) the investigator’s report or such parts of that report as relate to him (together with any document attached to or referred to in that report which relates to him); and (ii) any other relevant document gathered during the course of investigation.” (a) written notice of – (i) the referral; (ii) the conduct that is the subject matter of the case and how that conduct is alleged to amount to misconduct or gross misconduct as the case may be; ... (b) a copy of any statement he may have made to the investigator during the course of the investigation; and (c) subject to the harm test, a copy of – (i) the investigator’s report or such parts of that report as relate to him (together with any document attached to or referred to in that report which relates to him); and (ii) any other relevant document gathered during the course of investigation.”
[40]Regulation 27 of the Police (Complaints and Misconduct) Regulations 2012 (“PCMR”) provides:
“27. Complaints or conduct matters concerning a person who has subsequently ceased to serve with the police Where a complaint or conduct matter relates to the conduct of a person who has ceased to be a person serving with the police since the time of the conduct, then Part 2 of the 2002 Act shall apply in relation to such a person as if it did not include any requirement for an appropriate authority to determine whether disciplinary proceedings should be brought against a person whose conduct is the subject-matter of a report.”

Grounds of Challenge

[41]The Claim Form identifies the decision to be judicially reviewed as being the Defendant’s failure to determine whether the Claimant has a case to answer in misconduct as required by paragraph 24(6) of Schedule 3 of the PRA. The date of the decision is said to be “Ongoing. Refusal to make decision communicated in letter dated 6 February 2017” (Section 3). The primary relief sought is an order that the Defendant complies with his statutory duty to determine whether the Claimant had a case to answer in misconduct. The Claimant also seeks the following remedies:(a) an order that the Defendant be restrained from publishing the investigating officer’s report until he has complied with his statutory duty to determine whether the Claimant had a case to answer in misconduct.(b) A declaration that the Claimant has no case to answer in misconduct (Section 7).[42]The Statement of Grounds contains three grounds: i) Failure to comply with statutory duty: The Defendant has a statutory obligation to determine whether the Claimant had a case to answer. He has failed to comply with that obligation and refuses to make the required determination (para 31) (Ground 1). ii) Publication of the Report unlawful: The Defendant is currently considering whether to publish the Report. He has not made a final decision and, to that extent, the Claimant agrees that a free-standing challenge to a decision to publish is premature. However, a decision has been long outstanding and it would be undesirable for separate emergency proceedings to be issued if and when the Defendant decides to publish. In any event it would be unfair to the Claimant to publish the Report before the completion of the statutory process. The court is therefore invited to restrain the Defendant from publishing the report, at least until he has complied with his statutory duty (paras 36 and 37) (Ground 2). iii) No case to answer: The decision on whether there is a case to answer is for the Defendant. However the Claimant submits that “on all of the evidence that decision is only capable of one rational conclusion. As the investigating officer’s report shows the Claimant did not secure a material benefit, he therefore has no case to answer in misconduct. The Court is invited to so declare” (para 38) (Ground 3).[43]Mr Jeremy Johnson QC, for the Claimant, and Mr John Beggs QC, for the Defendant, agree that I should not consider Ground 2 at this stage. They have suggested, and I agree, that after determination of Ground 1, they will endeavour to reach agreement with regard to Ground 2, failing which I will consider further submissions from them.[44]During the course of the hearing Mr Johnson informed me that the Claimant did not wish to pursue Ground 3.[45]Accordingly, it is to Ground 1 that I now turn. Ground 1: failure to comply with statutory duty Did the Defendant in fact determine whether the Claimant had a case to answer?

Ground 1: failure to comply with statutory duty

[46]The e-mail from Mr Sampson to Mr Chapman dated 5 August 2016 refers to “the Appropriate Authority’s decision having received the investigating officer’s report” (see para 24 above). This suggests that a decision had been taken by the Defendant as to whether the Claimant had a case to answer; and the reference to Mr Sampson being in the process of appointing a Chair to the misconduct panel and instructing leading counsel to settle the relevant disciplinary “charges” suggests that the decision was that he did have a case to answer.[47]In response to a question from myself, Mr Beggs submitted that it was indeed the Defendant’s case that he had made a determination that the Claimant had a case to answer.[48]Mr Johnson observed that that was the first time that the Defendant had made this submission. The Defendant’s case to date had been that he was not required to make such a determination upon the retirement of the Claimant on 9 August 2016 when he ceased to be a member of a police force. That was the Defendant’s case as set out in the letter dated 6 February 2017 (see para 31 above), the Defendant’s letter dated 13 March 2017 in reply to the pre-action protocol letter, the Defendant’s summary grounds for contesting the claim and the Defendant’s skeleton argument. The summary grounds state (at para 32):
“Following receipt of the report on 26 July 2016 the Defendant considered the contents of the report and was of the view that the Claimant did have a case to answer for gross misconduct, in respect of both the allegations explored in the report”
. However, having formed that view and in light of the Claimant’s request of 4 July 2016 (that he be sent a copy of the report: see para 20 above) the report was sent to him on 2 August 2016 so that he could make representations before a determination was made (summary grounds, para 34). The Claimant then retired before a determination was made.[49]The witness evidence before the court on this issue is as follows: the Defendant, at paras 61-64 of his witness statement, explains that he was “contemplating” making a decision “adverse” to the Claimant; his “preliminary views” were that the Claimant did have a “gross misconduct case to answer on both of the allegations addressed in the report”; but that he “had not made that decision in a formal sense”. If he had received compelling representations from those representing the Claimant even at that stage he would have considered them. He confirmed with his Chief Executive (Mr Sampson) that he was “minded to move towards the bringing of gross misconduct charges against the Claimant on both matters in the DMG report”, and agreed that Mr Sampson should put in hand some early enquiries in relation to the availability of potential panel members and “put counsel on notice” that his services could be required in the drafting of misconduct “charges” in the event that he formally confirmed his decision in writing.[50]Mr Sampson deals with his communications with the Defendant and the Claimant’s solicitors between 2-5 August 2016 at paras 67-74 of his witness statement. At para 67 he says:
“The following day, 2 August 2016, I spoke with the Commissioner by telephone. He said that he had considered all the circumstances and formally agreed with Jacques’ Report, save that both allegations would be furthered via gross misconduct charges. He said that I should share its content with the Claimant’s legal representatives and that I should speak to the solicitor having conduct of the matter – Sophie Kemp – the following day and that ‘the message’ for the Claimant should be that charges were being drafted, that a further report was being prepared by ACC Jacques, that the Commissioner was considering the matter of re-suspension of the Claimant, that any conduct hearing for the Claimant would be held in public and that this was a ‘window’ for the Claimant to consider his position. I recorded this decision as is my normal practice, in my day book.”
[51]On 3 August Mr Sampson contacted Ms Kemp and advised her that the Commissioner had received the Jacques Report. They discussed the issue of “timing” in relation to both the Report (“the first report”) and “the proposed second report from ACC Jacques” (in relation to the whistle-blowing allegations). Mr Sampson states (at para 68): “Ms Kemp asked me about the timeline for next steps and how the Commissioner’s decision about the Jacques Report would be communicated. I said that the Commissioner had 15 days to notify the Claimant which would likely take place early the following week. In the event, the Claimant retired and no letter or regulation 21 notice was drafted or sent to the Claimant”.[52]On 5 August Mr Sampson spoke to Mr Chapman in Ms Kemp’s absence. Mr Chapman advised him that the Claimant was considering retirement. Mr Sampson states (at para 74):
“He (Mr Chapman) said that he wanted to understand how three particular matters would be addressed in the event that his client were to retire, those three matters being the applicable notice period, any press statement issued by the Commissioner and how the Jacques Report (and any second report) would be dealt with in response to an application under the Freedom of Information Act. Mr Chapman said that the Claimant would like to work his notice period or receive a payment in lieu thereof, that he would like to have some say in the form of words used in any press statement or at least be given notice of what was to be said in order that he could comment on it and finally that his client would like to be given the opportunity to make representations to the Commissioner before the investigating officer’s reports were released and his client had some concerns about that report.”
[53]At paras 75-79 Mr Sampson relates what he did in the material conversations he had with the Commissioner after that conversation with Mr Chapman. Mr Sampson states:
“80. All of these activities and considerations are, in my view, entirely consistent with the Commissioner having made a determination under reg.19 about the Claimant’s alleged conduct as set out in the Jacques Report on 2 August 2016. All are recorded in my attendance note in my day book. 81. I subsequently sent the e-mail to Mr Chapman dated 5 August 2016.”
[54]The Claimant in his witness statement at para 96 deals with the telephone conversation between Mr Sampson and Ms Kemp on 2 August 2016. He says:
“My legal adviser spoke with the Defendant’s chief executive and legal adviser. I was subsequently advised that the Defendant was minded to agree with ACC Jacques’ conclusion and that he (Fraser Sampson) had been instructed by the Defendant to have leading counsel draft up the misconduct charge and to seek to appoint a Chair to a Misconduct Panel. This was before the timeframe had elapsed that the Defendant notified me that I had to enter my representations to him to consider, before he made his case to answer decision.”
[55]The Claimant continues at para 97:
“This was particularly concerning for me as the Defendant again appeared to be ignoring due process to go directly to his pre-determined outcome that I could not return to force that he previously signalled in Sept. 2015 when he first invited me to retire. My confidence in any sense of fairness and adherence to due process was completely erased in this moment. This was particularly so when we then received an e-mail from the Defendant’s legal adviser the day after this disclosure of the Defendant’s thinking, which stated, again within the timeframe set aside to receive and consider my representations to the report, that he had now in fact made his decision and that the Defendant, would write to me in due course formally to inform me of this decision.”
[56]The position on the evidence, in summary, is as follows: i) Mr Sampson understood the Defendant to have said that he had made a determination that the Claimant had a case to answer; and that was what he communicated to Ms Kemp on 2 August and in his e-mail of 5 August. ii) The Claimant states that he was advised that the Defendant was “minded to agree” with the Investigator’s conclusion. However the e-mail from Mr Sampson stated that the Defendant had in fact made his decision. iii) The Defendant says that he was “contemplating” (“preliminary views”/”came to the view”) making a decision that the Claimant did have a gross misconduct case to answer on both of the allegations addressed in the Report, but that he “had not made that decision in a formal sense”. iv) The Defendant’s pleaded case is that he had not made a case to answer decision.[57]I find that the Defendant did not in fact make a decision that the Claimant had a case to answer pursuant to para 24(6)(a)(i) of the PRA. If he had made such a decision I consider it probable that he would have said so, and that would be the end of this claim (see para 7 above).[58]That being so I now turn to consider whether in the circumstances of this case the Defendant was required to make such a decision.

Whether the Defendant was under an obligation to make a case to answer decision

[59]It is again common ground that because the Claimant was no longer a serving officer the Defendant was not required, in the event of a case to answer decision, “to determine whether disciplinary proceedings should be brought against a person whose conduct is the subject matter of a report” (PCMR, reg.27, see para 40 above).[60]However it is the Claimant’s case that once the Report was submitted to the Defendant he had an obligation to determine whether he had a case to answer under para 24(6)(a)(i) of Schedule 3 to the PRA.[61]Mr Johnson submits that nothing in paragraph 24(6)(a)(i) limits the obligation to make a case to answer decision to cases where the person to whose conduct the investigation relates is still serving as a police officer. Further, he submits, nothing in the PRA limits the statutory complaints process to cases where the person is still serving with the police. The only requirement is that the person was serving with the police at the time of the underlying conduct about which complaint is made (s.12).[62]PCMR reg.27 provides expressly for the impact on the application of the statutory framework if an officer has retired (or otherwise ceases to serve with the police). Schedule 3 of the PRA has effect save to the extent that it imposes a requirement to determine whether disciplinary proceedings should be brought. Accordingly, para 24(6)(a)(i) of Schedule 3 is not caught by the proviso in reg.27 because nothing in para 24(6)(a)(i) requires a determination to be made as to whether disciplinary proceedings should be brought. Mr Johnson submits that the separate question of deciding whether to refer a case to disciplinary proceedings only arises once a case to answer decision is made. By reason of reg.27 where the officer has resigned then that obligation does not arise, but there is still the requirement to make a case to answer decision. Indeed there may be other steps that are required after completion of a report and before the decision as to whether to refer a matter to disciplinary proceedings. Duties that are imposed on the Appropriate Authority after the production of a report include also, for example, determining whether to notify the Director of Public Prosecutions (see para 24(2)).[63]Mr Johnson submits that regulation 27 excludes not the antecedent question of whether there is a case to answer (para 24(6)(a)(i)), but the requirement under para 24(6)(a)(ii) (read together with regulation 19(3)(a), (4) and (5)(a)) to determine whether disciplinary proceedings should be brought. There is, Mr Johnson contends, careful dovetailing of the provisions in the PRA with the PCR. The decision whether or not to bring disciplinary proceedings is a separate decision from the decision whether or not there is a case to answer, although of course as a matter of logic it only arises for determination if there is a case to answer.[64]Mr Johnson emphasises that the duty that the Claimant relies on is that under the PRA, rather than that under the PCR. Reg.19(1) requires the appropriate authority to make a case to answer decision which is the requirement imposed by para 24(6)(a)(i) of Schedule 3 of the PRA. Even if the PCR do not apply once an officer has resigned, there is still the duty under the PRA to make a case to answer decision (albeit it does not then have to be made in accordance with the PCR).[65]Mr Johnson draws support for these submissions from i) the statutory guidance to the police service on the handling of complaints promulgated by the IPCC under the PRA (amended May 2015) which does not suggest that the AA may not make a case to answer decision if the officer has retired and recognises the importance of the statutory process continuing where an officer has resigned (save for the obligation to refer to disciplinary proceedings (see paras 6.11 and 11.43-11.44)); and ii) the authorities, in particular the judgment of Elias LJ in R (Chief Executive of the Independent Police Complaints Commission) v Independent Police Complaints Commission [2016] EWHC 2993 (Admin) at [15]-[16] which emphasises that the importance of an investigation report is to enable the appropriate authority to make a case to answer decision (and if appropriate then to consider whether disciplinary proceedings should be brought against the officer). (See also R (Chief Constable of West Yorkshire Police) v Independent Police Complaints Commission [2013] EWHC 2698 (Admin) at [47]).[66]Mr Johnson submits there are strong policy reasons why the statutory process should continue to the point of making a case to answer decision where an officer has ceased to serve. It brings, he submits, a degree of finality and transparency to the matter. If an officer resigns in circumstances where there is a case to answer for gross misconduct then it is unlikely that he will be permitted to re-join the police. On the other hand, if in fact there is no case to answer, the officer concerned and the public are entitled to that determination and to know of that decision. Mr Johnson contends that if the decision was made, then the Claimant is entitled to written notification of it in accordance with the statutory provisions (para 24(7) and (8), see para 37 above) and a reasoned decision.[67]I reject these submissions.[68]In Part 2 of Schedule 3 of the PRA “conduct matter” means any matter in the case of which there is an indication that “persons serving with the police” may have committed a criminal offence or behaved in a manner which would justify the bringing of disciplinary proceedings (s.12(2)). A person is serving with the police if “he is a member of a police force” (s.12(7)). A retired police officer is not a member of a police force.[69]Similarly para 24(6)(a)(i) of Schedule 3 of the PRA requires the appropriate authority to determine whether any person to whose conduct the investigation related has a case to answer “in accordance with the regulations under section 50 or 51 of the 1996 Act”. Reg.19 PCR refers to “the officer concerned”. That phrase is defined as “the police officer in relation to whose conduct there has been an allegation”; and “police officer” means “a member of a police force” (reg.3). A retired officer is not a “member of a police force”.[70]Accordingly as the Claimant is no longer a member of any police force he is not amenable to determinations under the PRA, the PCR or the PCMR by the Defendant, in his capacity as AA in relation to the handling of conduct matters.[71]Reg.19 (“Referral of case to misconduct proceedings”) should be read as a whole. I reject the distinction drawn by Mr Johnson between(1) determining whether there is a case to answer, and(2) a decision as to whether, in the light of the case to answer decision, there should be disciplinary proceedings.[72]Further I do not accept that PCMR reg.27 supports the Claimant’s construction. That regulation permits the continuation of a matter up to, but not including, a determination as to whether disciplinary proceedings should be brought against a person whose conduct is the subject matter of a report. Reg.19 is in PCR Part 4 titled “Misconduct Proceedings”, and reg.19 is titled “Referral of case to misconduct proceedings”. I agree with Mr Beggs that the references throughout reg.19 to the effect of a case to answer decision only make sense in relation to serving officers. A case to answer for gross misconduct would require a misconduct hearing against the officer. However, having resigned or retired, the officer cannot receive or file notices or documents in accordance with the PCR or respond to “charges” at misconduct proceedings.[73]I also agree with Mr Beggs that in lesser cases (no misconduct, or misconduct but not gross misconduct) the options of taking “no further disciplinary action”, or taking “management action” have no application to a person other than a serving member of a police force.[74]The IPCC statutory guidance does not in my view assist the Claimant. It does not state that an appropriate authority, such as the Defendant, can, or should, take a case to answer decision in relation to a retired officer, nor provide any guidance for so doing.[75]I am not persuaded by the Claimant’s submissions as to finality and transparency: i) The only obligation on an appropriate authority pursuant to para 24(6)(a)(i) is to determine whether the officer “has a case to answer in respect of misconduct or gross misconduct or has no case to answer”. It is common ground that the Investigator’s report contains the “views” of the Investigator which the authority is not bound to follow (see R (Chief Constable of West Yorkshire Police) v IPCC [2014] EWCA Civ 1367, per Sir Colin Rimer at [50]). That being so, in the present case, for example, the Defendant would be entitled to find, as was his preliminary view, that there was a case of gross misconduct made out on both allegations, despite the fact that the Investigator was of the view that there was only a case to answer on one allegation. It is further accepted by the parties that such a determination by the appropriate authority could only be challenged on Wednesbury grounds. ii) The Claimant could have requested written notification of the determination of the case to answer that he understood the Defendant had made (see para 24(7)(b) and (8) at para 37 above). If he had then been informed that in fact no determination had been made, he could at that time (before he retired) have requested that the Defendant make one in accordance with his statutory duty. If the Defendant did determine that there was a case to answer, and thereafter decided that there should be disciplinary proceedings, the Claimant could have contested any “charges” at a misconduct hearing. However the Claimant (having understood the Defendant had decided there was a case to answer) did not wait for him to refer the case to disciplinary proceedings, but decided to retire. That he was entitled to do. (Mr Beggs has drawn to my attention the recent reforms in the law concerning the application of the misconduct process to retired officers. PCR reg.10A limits resignation or retirement in the face of misconduct allegations when such allegations came to the attention of the appropriate authority after 12 January 2015; and the Policing and Crime Act 2017, s.29 will in certain circumstances result in former members of police forces being amenable to disciplinary proceedings). iii) The Investigator’s report sets out in detail the nature of the misconduct alleged, the investigation conducted, and the views of the Investigator. If the report is published (and I do not express any view at this stage as to whether or not it should be), then there will be some transparency achieved.

Delay

[76]In the light of the conclusion I have reached on Ground 1 the issue of any delay on the grant of relief does not arise. However I should add that if it had arisen I would not have granted any relief other than possibly a declaration for, in summary, the following reasons: i) The Defendant was required, on receipt of the Investigator’s written report, to determine “as soon as practicable” whether the Claimant had a case to answer. Absent good reason, that had to be done by 15 working days after 26 July 2016 (PCR para 19(7), see para 38 above). ii) The Claimant understood first that the Defendant was “minded to agree” with the Investigator’s conclusion (see para 54 above), and shortly thereafter from Mr Sampson’s e-mail of 5 August 2016 that the Defendant had now in fact made his decision and that he would write to him in due course formally to inform him of the decision (see para 55 above). However the Claimant never enquired of the Defendant as to exactly what decision he had made in relation to a case to answer; nor did he request any notification of the determination made by the Defendant (para 24(7) and (8), see para 37 above). iii) After the Claimant’s retirement correspondence from Kingsley Napley related to the FOI requests. The letters of 26 September and 25 November 2016 challenged the rationality of the investigating officer’s decision that the Claimant had a case to answer (see para 27 above), and aspects of the investigation process (see para 28 above). iv) No adequate explanation has been provided as to why it was not until 16 January 2017 that the Claimant raised any issue in relation to any decision by the Defendant as to whether he had a case to answer, and as to whether the Defendant had complied with his statutory obligations. v) The grounds of claim first arose 15 working days after 26 July 2016. The Claim Form was filed on 04 April 2017. It was not brought promptly or within three months of the date when the grounds of the claim first arose. I do not accept that time runs from receipt of the letter of 6 February 2017. The Claimant would have known that the Defendant had in fact made no determination of a case to answer if he had requested the information to which he was statutorily entitled (see (ii) above); the fact is that he showed no interest in the statutory process (other than to the extent indicated by Kingsley Napley’s letters, see paras 27-28 above), once he had decided to retire. vi) I consider it would be contrary to good administration for further time to be spent, and cost incurred, by the appropriate authority now having to consider whether the Claimant had a case to answer. This is particularly so as the Claimant considers that the Defendant cannot be impartial in further decision making, and therefore any further decision should be made by a different person, who should be an appropriate independent delegate of the Defendant. This will necessarily add to the time and expense involved in taking a decision, 15 months after the Claimant retired as a member of the police service.

Conclusion

[77]For the reasons I have given I consider that the Defendant is under no obligation to make a case to answer determination pursuant to para 24(6)(a)(i) of Schedule 3 of the PRA in respect of the Claimant. Accordingly Ground 1 of this challenge fails.[78]Having considered this judgment in draft, the parties are agreed that Ground 2 should be dismissed.[79]Accordingly this claim is dismissed.