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Claim for judicial review over vetting-based dismissal rejected

A West Mercia probationer has had a claim for judicial review dismissed following the removal of her vetting.

A probationary officer who was sacked after her vetting was removed following a finding of misconduct against her has had a judicial review claim dismissed.

Formerly a student officer on the PCDA programme with West Mercia, Alice Victor was discharged in March 2022 under Regulation 13 – it followed the removal of her vetting clearance due to an off-duty incident she had been involved in in May 2021.

While under the influence of alcohol, she had confronted a man whom she believed had been sleeping with her twin sister’s boyfriend and had shouted abuse at him – then leaving the pub after the door supervisor intervened and told her to go.

She denied aspects of the case around some of the language used and did not admit that she had been required to leave although accepted the door supervisor had taken her outside. She accepted that she had shouted abuse while in the pub and continued to do so in the street. 

The initial allegations against her meant that her behaviour, if proven, would have amounted to gross misconduct but an allegation that she breached standards of equality and diversity was later dropped so the view was taken that her behaviour instead constituted misconduct.

She received a final written warning for two years. 

Her vetting clearance was reviewed and subsequently removed due to “the impact on public confidence”. Her appeal on that decision was refused. 

As such, the Chief Constable reasoned that she would no longer be able to continue her apprenticeship.

Ms Victor had sought judicial review over the decision to discharge her and the vetting decision on which it was based.

A judgement was handed down Mr Justice Eyre in August and dismissed Ms Victor’s claim.

Analysing other cases, he set out: “It can be lawful to dispense with a probationer’s services other than through the misconduct route even when the basis for taking that course was behaviour which could amount to misconduct. 

“The critical question in such a case would be whether the effect of the course adopted was (a) to undermine or subvert the protections provided for a constable accused of misconduct or (b) amounted instead to the legitimate use of a different power for its intended purpose.

“The lawfulness of the action will depend on both the particular circumstances and the particular procedures which were being used."

There was no material dispute as to the facts in this case.

Mr Justice Eyre highlighted the provision within the Authorised Professional Practice on Vetting which sets out that there should be a review of vetting clearance where a final written warning has been issued in misconduct proceedings.

He further underlined that the requirement for a review indicated that the removal of vetting clearance might be the outcome.

Although this is guidance only, there does need to be a good reason for a Chief Constable not to follow it.

Ms Victor’s case put forward that the vetting decision was unlawful because “it amounted to using the vetting procedure to subvert the conclusion reached in the misconduct proceedings and the protections provided to the Claimant by the Conduct Regulations.

"It is said that the Vetting Decision had that effect because it caused the Claimant to be dismissed from the West Mercia Police for precisely the same behaviour which had been found not to merit dismissal under the Conduct Regulations."

Assessing the principles, Mr Justice Eyre said where there is an issue as to whether certain conduct took place, protections provided by conduct regulations “should not be circumvented”.

However, where the conduct is admitted or otherwise not in dispute “then it is not necessarily the position that the use of other procedures instead of or in addition to those of the Conduct Regulations is precluded.”

In this case, there was no dispute over the facts. As such the Defendant (Chief Constable) was not using the vetting procedure to subvert protections afforded to a constable by the Conduct Regulations.

Mr Justice Eyre further set out that the “balance of interests” is different for the case of a probationer and an established officer.

He did not concede that by concluding the vetting decision was lawful he would “sweep the Conduct Regulations away” nor that it would permit them to be sidestepped.

Concluding, he said: “It is to be remembered that this is not a case where the allegation against the Claimant was dismissed in the misconduct proceedings or where an assertion of gross misconduct had been made and rejected by a panel with a subsequent vetting decision being based on disputed facts. Here there was no material dispute of fact.

“No one factor is determinative by itself but looking at matters in the round the position is that the misconduct proceedings and the review of the Claimant’s vetting clearance were different processes in which different, but related, criteria were applied

“Moreover, and significantly the Vetting Code of Practice and the APP to which the Defendant was required to have regard called for the review to be undertaken in these circumstances.

“For such a review to be undertaken properly it could not simply mirror the outcome in the misconduct proceedings but had to be a genuine review of the vetting clearance having regard to all the considerations relevant to such a review.

"The ultimate outcome of the misconduct, vetting, and regulation 13 processes was that the Claimant was discharged in circumstances where her conduct had not resulted in dismissal under the Conduct Regulations. That, however, was not because the vetting or regulation 13 processes unlawfully subverted the outcome of the misconduct proceedings but instead because those processes were applied properly and by reference to the criteria applicable and relevant to them in the particular circumstances."

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