Kay (R, on the application of) v Chief Constable of Northumbria Police [2010] EWHC 31 (Admin)

Judgment concerning remedy after a successful judicial review of decision to dismiss a probationary police officer after allegations that she had committed insurance fraud: at court no evidence was presented and the case was dropped. The claimant successfully sought reinstatement.

Neutral Citation Number: [2010] EWHC 31 (Admin) Case No: CO/4876/2008 IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT

The Courthouse, Oxford Row, Leeds LS1 3BG Date: 18th January 2010

Before:

HIS HONOUR JUDGE BEHRENS sitting as a Judge of the High Court

Between:

**THE QUEEN (ON THE APPLICATION OF FIONA KAY) (Claimant)

**CHIEF CONSTABLE OF NORTHUMBRIA POLICE (Defendant)

Paul Greaney (instructed by Russell Jones and Walker of Newcastle-upon-Tyne) for the Claimant Nicholas Wilcox (instructed by Director of Legal Services of Northumbria Police) for the Defendant Hearing date: 7th January 2010

Judgment (No 2)

**Judge Behrens: Introduction. **1. This is a hearing to determine the remedy to which Ms Kay is entitled following her successful application for judicial review before Silber J on 23rd July 2009. It is common ground between the parties that Ms Kay is entitled to compensation. It is equally common ground that the amount of compensation cannot be determined at this hearing. Ms Kay served a 41 page schedule of loss as recently as 30th December 2009 and the Chief Constable has not yet had the opportunity to consider it.

2. The main issue to be determined is whether the Court should grant Ms Kay a mandatory order directing the Chief Constable to reinstate her as a probationary police constable. Mr Greaney on behalf of Ms Kay submits that the Court has a discretion to order reinstatement and there is no good reason why it should not be ordered. Mr Wilcox on the other hand contends that this is not an appropriate case for an order for reinstatement. He relies on the circumstances of the case, the length of time Ms Kay has been away from active police duty (nearly 5 years) and the similarity between this case and a decision of the House of Lords in which reinstatement was refused.

3. Both Counsel have produced full and helpful skeleton arguments containing extensive citations from the authorities. I am grateful to them for their considerable assistance in what is a by no means straightforward matter.

**The Facts **4. The facts are set out in detail in the judgment of Silber J which is reported - [2009] EWHC 1835 (Admin). I have borrowed extensively from that judgment in the summary that follows.

5. Ms Fiona Kay commenced serving as a probationary police constable with Northumbria Police on 5 April 2004.  On 21 July 2005, she was arrested and she was suspended from duty as a result of an allegation that she had made a fraudulent insurance claim in relation to her engagement ring.  The alleged offence had been reported to the police by the estranged husband of Ms Kay, who was also a serving police officer with Northumbria Police.

6. Subsequently, Ms Kay was charged with the offence of obtaining property by deception.  She denied the charge and the case was committed to Newcastle Crown Court for trial.  On 21 August 2006 at that court, the prosecution offered no evidence against her and a verdict of not guilty was entered.  Ms Kay contends that her estranged husband had made up the allegations because she had rejected his proposals for reconciliation.

7. Before the end of the criminal proceedings, Ms Kay had been served with formal notice of the possibility of misconduct proceedings being brought against her under the Police (Conduct) Regulations 2004 (“the Conduct Regulations”).  After the criminal matters had been resolved, Northumbria Police considered whether misconduct proceedings could be brought against Ms Kay. In fact no misconduct proceedings were brought against her; instead proceedings were brought against her pursuant to Regulation 13 of the Police Regulations 2003, (SI 2003/527).

8. This led to a hearing before Acting Assistant Chief Constable Steven Mavin on 26 July 2007, which focused on the allegation that the claimant had made a false insurance claim which the claimant denied.  The hearing concluded with this exchange relating to the claimant starting with Assistant Chief Constable Mavin saying to Ms Kay :-

“Pc Kay, I’ve carefully considered the evidence in relation to this hearing today.  I rely on my interview with you and the representations that have been made in reaching my decision.  I’ve also considered the options that are available.  I do not consider that you are likely to become a well conducted constable because I have doubts about your integrity and honesty.  This is based on the answers you have given me today regarding the use of the original computer that you owned for the production of the photo of your ring and your explanation as to the way in which you say you took the photo of that photo and why you did not take the original photo to the jewellers as you did with the receipt of the ring.  That leads me to believe that there was never an original photo.  I am also not convinced of the veracity of your claim that you took a photo of a photo using a telephone camera because of the expert witness evidence provided by Mr Ian McArthur that states the photo on your camera phone is an original picture with a three dimensional hand.  I therefore require that you resign forthwith.  Will you resign?

PC Kay: Yes Sir

Supt Neill: The last day for pay purposes is 23 August ….  I will require your Warrant Card and your holder and also your box key if you have them with you today.  I need that.  Do that before we leave”

9. On 7 October 2007, a letter before action was sent to the Chief Constable in accordance with the pre-action protocol for Judicial Review contending first that the Acting Assistant Chief Constable had no authority to act under Regulation 13 as the decision was solely for a Chief Constable and second that his decision was Wednesbury unreasonable.  It was said that the Regulation 13 procedure should not have been used where the underlying conduct was one of misconduct which was neither admitted by the claimant nor established to be true.

10. On 17 October 2007, the solicitor for the Chief Constable wrote to the claimant accepting that there was some merit in the first complaint (which was that the Acting Assistant Chief Constable had no authority to act under Regulation 13) while not accepting the second complaint which was the challenge of the decision before offering to reinstate the claimant pending a re-hearing before the Chief Constable. It was thus accepted that there would be reconsideration of the decision by the Chief Constable.

11. Following further correspondence (which is set out in detail in the judgment of Silber J) on 10th December 2007 the Chief Constable expressed his view of his role:

“.. this is not a hearing.  It is an administrative process. I am not prepared to delay the process further.  My view is that I can have access to any documents which I choose to have access to, which will inform and help me to determine whether or not [Ms Kay] is fitted to be a Police Constable.  I do not agree with your suggestion that I should be unaware of the previous decisions of Acting Assistant Chief Constable Mavin.  However, what I can assure you of, is that I will make my decision quite independently and I will not be influenced by the decision or view of any other officer”.

12. Following further correspondence (also set out in Silber J’s judgment) the Regulation 13 hearing took place on 20th February 2008. The hearing was recorded as having lasted 5 minutes. The Chief Constable required the resignation of the claimant stating that-

“I have doubts regarding your personal integrity and honesty and also around your professional judgement.  My concerns regarding your honesty and integrity are based on the expert evidence of Mr Ian McArthur (sic – a reference to Iain McArthur, an expert who was to have been called during the criminal prosecution) who states that the photograph on your camera phone is an original of a 3 dimensional hand contrary to your own version.  I also have doubts regarding your truthfulness in regard to your version of events in claiming that there ever was an original photograph of the ring produced from a computer.  My concerns regarding your professional judgement stem from your decision not to allow access to your daughter in order to help establish the truth.  You are a professional police officer and I find it unacceptable that you would be expected to ask of the public that which you are not prepared to do yourself.  I am not swayed by your claim that you sought advice on this matter.  It remains your decision and your decision alone.  This is not the standard I expect of my officers.”

**The issues before Silber J **13. The issues which were considered by Silber J were:

  1. Whether the decision of the Chief Constable to proceed by Regulation 13 was unlawful or Wednesbury unreasonable (“The Regulation 13 Issue”)
  1. Whether the procedure adopted by the Chief Constable was procedurally improper and unfair; (“the Procedural Issue”); and
  1. Whether the ultimate decision was irrational (“the Irrationality Issue”)

*The Regulation 13 issue *14. Regulation 13 provides (with Silber J’s underlining):

“(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”.

15. Silber J cited a number of authorities including R v Chief Constable of the West Midlands ex parte Carroll (Court of Appeal- Unreported 10 May 1994), R v Chief Constable of British Transport Police ex parte Farmer (Court of Appeal- 30 July 1999 unreported), R (Begley) v Chief Constable of West Midlands Police [2001] EWCA Civ 1571 and R (Khan) v Chief Constable of Lancashire [2009] EWHC 472 (Admin).

16. In the light of those authorities he concluded in paragraph 38 of the judgment that:

"the test for determining if a case against a probationary police officer should be determined under regulation 13 or under the Conduct Regulations is whether there is such conflict over the facts relating to the misconduct relied on with the consequence that it would be unfair for the Chief Constable to make the judgment he did on the basis of the undisputed primary facts rather than giving the probationary police officer the protection to which he or she was entitled under the Conduct Regulations"

17. Silber J rejected a submission from Mr Wilcox that there was limited dispute on the evidence and referred in particular to four matters:

  1. There was a dispute about a photograph of Ms Kay’s engagement ring said to support the claim that a false insurance claim had been made. The photograph was relevant because it was taken after the date of the alleged theft. There was an issue whether the photograph was an original photograph or a photograph of a photograph. This issue involved the consideration of the disputed evidence of Mr McArthur which required careful scrutiny in the light of the change of his views between October 2005 and March 2007.
  1. There was a dispute over the reliability of Ms Kay’s former husband. Ms Kay alleged that he had made up the allegations following her refusal at attempts for a reconciliation.
  1. There was a dispute as to why Ms Kay had refused to allow access to her daughter. As noted above the Chief Constable placed reliance on this in coming to his conclusion. Ms Kay contended that there was an innocent explanation.
  1. There was an issue as to whether Ms Kay had the digital camera that she claimed was used to photograph the ring.

18. In Silber J’s judgment (paragraph 44):

"Each of those contentious matters and other matters could and should properly have been the subject of scrutiny under the Conduct Regulations.  In my view, this was a classic case of a disputed claim where a full disciplinary hearing was required.  The ordinary rule explained by Henry LJ and set out in paragraph 34 above should not have been displaced with the consequence that the rule 13 procedure should not have been invoked."

*The Improper and Unfair Procedure Issue *19. Silber J came to no conclusion on these issues which were academic in the light of his conclusion on Regulation 13. He did however express a provisional view that Ms Kay must have known from the correspondence and the history that she was charged with making a dishonest claim, that reliance would be placed on the evidence of Mr Iain McArthur and her failure to allow her daughter to be questioned.

*The Irrationality Issue *20. Silber J made the point that this point too had become academic in the light of his conclusion on Regulation 13. He expressed the provisional view that if the Chief Constable had been entitled to invoke Regulation 13 and if the Chief Constable had been entitled to conduct the hearing in the way he did, he would have required much persuading that the decision under challenge was irrational.

**Silber J’s views on the question of remedy **21. It is plain from paragraph 51 of the judgment that the decision of the Chief Constable to compel Ms Kay to resign had to be quashed. Silber J then received submissions from Counsel as to the consequential orders that should be made. Mr Wilcox submitted that the Chief Constable did not wish to reinstate Ms Kay; it would be difficult to hold a misconduct hearing now for a variety of reasons. Accordingly Mr Wilcox submitted that Ms Kay was not entitled to reinstatement or to any salary from 20th February 2008 because that is the date when Ms Kay’s tenure came to an end.

22. Silber J rejected that submission as being totally inconsistent with his conclusion that the decision made under Regulation 13 was wrongful. He referred to the decision of the House of Lords in Chief Constable of the North Wales Police v. Evans [1982] 1 WLR 1155 where a decision to dispense with the services of a probationary police constable was overturned. Declarations were made that (a) the Chief Constable acted unlawfully and in breach of his duty in threatening to dispense with the probationary police constable’s services unless he resigned from the police force and thus causing him to resign; and (b) by reason of such unlawfully induced resignation the probationary police constable thereby became entitled to the same rights and remedies, not including reinstatement as he would have had if the Chief Constable had not unlawfully dispensed with his services under the appropriate regulation. It will be necessary to consider the decision in Evans in more detail later in this judgment.

23. Silber J held that Ms Kay was certainly entitled to declaration (a) but had concerns about declaration (b) with or without the italicised words. He accordingly gave the parties liberty to restore the application if a declaration in the form of declaration (b) was  sought by Ms Kay.

**Events since the order of Silber J **24. By letter of the 14th of August 2009 Ms Kay’s solicitor’s indicated that Ms Kay would be seeking a mandatory order for reinstatement but remained open to suggestions of alternative solutions.

25. The Chief Constable’s position about reinstatement has never changed since the original claim was put forward.  This was repeated in a letter dated 11th September 2009. In the letter the Chief Constable’s instructing solicitor sought alternative proposals from Ms Kay’s solicitors.

26. On 16th September 2009 Ms Kay’s solicitor’s asked if the Chief Constable would be prepared to discuss the issue of compensation.

27. On 28th or 30th October 2009 Ms Kay submitted a formal Notice to the Chief Constable for further relief. In summary she sought:

  1. A declaration that by reason of her unlawfully induced resignation, the claimant thereby became entitled to the same rights and remedies as she would have had if the defendant had not unlawfully dispensed with her services.
  1. A mandatory order requiring the defendant to reinstate the claimant to the office of police constable.
  1. Damages to compensate her for the loss of earnings and pension incurred by her in the period between the 20th February 2008 and the date of reinstatement.

Or,

  1. If the Court is not prepared to exercise its discretion to make a mandatory order requiring reinstatement, damages.

28. It will be seen that the primary relief sought by Ms Kay was the declaration in the form of declaration (b) identified by Silber J with the addition of the italicised words together with a mandatory order for reinstatement. The alternative claim for damages is her fallback position.

29. A Schedule of Loss was not served on the Chief Constable’s solicitors until just before Christmas and was not seen by Mr Wilcox until 30th of December 2009. Plainly the amount that Ms Kay is entitled to recover by way of compensation is dependent on whether there is an order for reinstatement.

**Mr Greaney’s submissions *30. Mr Greaney first makes the point that Ms Kay’s strong wish is to return to her duties as a police officer. He submits that the authorities establish that there is a discretion to make an order for reinstatement. In the course of his submissions Mr Greaney analyses 3 authorities - Chief Constable of North Wales Police v Evans [1982] 1 WLR 1155, R (Bolt) v the Chief Constables of Merseyside Police and North Wales Police [2007] EWHC 2607, and McLaughlin v Governor of the Cayman Islands* [2007] 1 WLR 2839. He submits that these authorities establish a discretion to order reinstatement in the case of an office holder wrongfully deprived of his or her office. In so far as the discretion was in fact exercised against the office holder in question he seeks to distinguish the authorities on their facts. I shall consider the authorities later in the judgment.

31. He seeks to analyse the reasons given by the Chief Constable for refusing reinstatement:

  1. The Chief Constable does not wish to reinstate Ms Kay. Mr Greaney submits that this is no kind of reason at all. If and in so far as the Chief Constable’s reasons are that he believes the allegations against Ms Kay then he is prejudging matters that are in dispute. He also referred me to some observations of Underhill J in Bolt at paragraph 23 to which I shall refer later in this judgment.
  1. Ms Kay has not worked for the police for nearly 5 years. Mr Greaney points out this is factually incorrect in that Ms Kay did return to work between April 2007 and July 2007 after the criminal proceedings against her failed. Mr Wilcox accepts that Ms Kay worked for this period but makes the point that she was on restricted duties. Mr Greaney points out that the reason she has not worked is because of the Chief Constable’s wrongful use of the Regulation 13 procedure to deal with the allegations made against her. In any event it is not at all unusual for police forces to have to deal with cases where officers return to duty after lengthy misconduct proceedings. In the course of his oral submissions Mr Wilcox frankly accepted that Ms Kay was in no way responsible for the period that she has not been a police officer.
  1. That it would now be difficult to hold misconduct proceedings. In dealing with this allegation Mr Greaney drew my attention to the chronology. In particular he reminded me that in September 2006 the Chief Constable was advised by Mr Duff (counsel experienced in police misconduct work) against the institution of misconduct proceedings on evidential grounds.

32. In support of Ms Kay’s claim for reinstatement he relies on 4 matters:

  1. During her probationary period she showed herself to be a good and capable police officer. In the course of his oral submissions Mr Greaney sought to make good this submission by reference to the Performance Development Portfolio disclosed by the Chief Constable and exhibited to her most recent witness statement. These documents are highly complimentary of Ms Kay’s progress. For example they include a comment by her shift Sergeant in the following terms:

Prior to leaving on suspension Fiona was developing into an efficient officer. I have absolutely no doubt about Fiona’s integrity and honesty. And believe she will make an excellent police officer. In the brief time I was given to prepare this I have spoken to officers still on the shift who worked with Fiona and they are willing to provide testimony to this effect.

In the course of his oral submissions Mr Wilcox accepted that, apart from the matters referred to by the Chief Constable on 20th February 2008, there was absolutely no reason to doubt Ms Kay’s honesty or integrity or her suitability as a police officer.

  1. There should be no problem in dealing with issues relating to her long absence. It is not an unusual situation for a police force to deal with.
  1. Ms Kay had, whilst absent from the police force, behaved in an exemplary manner. She has worked as a teaching assistant and not publicised her treatment by the Chief Constable. She has not gone to the press.
  1. Reinstatement would put right a serious wrong. In support of this submission he referred me to some observations of Underhill J in Bolt to which I shall refer below.

**Mr Wilcox’s submissions **33. Mr Wilcox submitted that it was an inappropriate case for an order for reinstatement both because of the length of time since Ms Kay’s suspension and because of the circumstances of the case.

34. He referred me to the observations of the Chief Constable at the hearing on 20th February 2008 which I have already set out.

35. He referred me to the 4 matters set out above identified by Silber J which Silber J thought should have been the subject of careful scrutiny in misconduct proceedings.

36. He referred me to Evans’ case. In effect he submitted that the treatment meted out to PC Evans was “little short of outrageous” yet there was no order for reinstatement in that case. He relied on an observation of Lord Brightman to the effect that it might border on usurpation of the Chief Constable’s powers. He made the point that in this case there have been no factual findings on the disputed matters.

37. He accordingly submits that it would be wrong to compel the Chief Constable to reinstate Ms Kay when he has no confidence in her.

38. He submitted that Ms Kay could be adequately compensated by an award of damages. He conceded that such damages would include damages for loss of her career as a police officer. He accepted that the loss of earnings claim would take into account the fact that she was earning significantly less than she earned as a police officer and that there was a loss of pension rights. He submitted, however, that there should be a discount to reflect the possibility that Ms Kay’s career could have been terminated by successful misconduct proceedings. As I understood his submissions in Reply, Mr Greaney accepted that, as a matter of law, there was a theoretical possibility of a discount. In practice he submitted that it could and should be ignored. He reminded me that the criminal proceedings against Ms Kay had failed when no evidence was offered against her. Furthermore Mr Duff had advised on two occasions against misconduct proceedings on evidential grounds. It was only after receiving this advice that the decision was made not to proceed by way of misconduct proceedings but (erroneously as Silber J has held) to proceed under Regulation 13.

**The authorities *To my mind the two most important authorities were the cases of Evans and Bolt*

*Evans *39. As already noted Evans was also concerned with the summary dismissal of a probationary police officer by the Chief Constable under the then equivalent regulation to Regulation 13. He, too, had had good progress reports. A number of allegations were made against PC Evans; that he had bigamously married his aunt who was much older than him, that he had resided in a hippy commune with his aunt, that he was in breach of the terms of his council tenancy by keeping 4 dogs in his council accommodation. Many of these allegations were in fact found to be wrong. PC Evans had a brief interview with the Chief Constable at which he was required to resign. PC Evans made an application for judicial review of the decision of the Chief Constable. At first instance Woolf J held that the Chief Constable had not acted fairly in dismissing PC Evans but granted no further relief. The Court of Appeal made a declaration that the decision of the Chief Constable requiring PC Evans to resign or be dismissed was void. The basis of the decision was that he did not have a fair hearing. The House of Lords varied the decision of the Court of Appeal and made the declarations that I have set out above. Importantly they refused to make a declaration that PC Evans was entitled to reinstatement. It is, of course for that reason that Mr Wilcox invites me not to make an order for reinstatement for Ms Kay.

40. It is plain from the judgments of the House of Lords (and not disputed by Mr Wilcox) that the question of reinstatement was treated as a matter of discretion1. Thus it is necessary to consider why reinstatement was refused to PC Evans. There were 3 reasoned decisions on the question of reinstatement. Lord Hailsham expressed the view that the treatment of PC Evans was little short of “outrageous”. He stated that it was difficult to decide the appropriate order for the House to make. At 1163C – E he pointed out difficulties in treating the Chief Constable’s decision as “void”. These difficulties included the question of whether he was then an established constable, was he entitled to back pay or pension rights might he be subject to a fair hearing under Regulation (13) which would lead to dismissal on a month’s notice?

41. At 1163H he expressed the view that the case ought to have been dealt with either by re-engagement perhaps on a fresh term or by substantial damages. In his view the order of the Court of Appeal could not stand and the best that could be done was the order proposed by Lord Brightman.

42. At 1165H Lord Bridge made the point that at one stage he was strongly inclined to think that an order for reinstatement should be made. However as the other members of the House did not favour it he was not prepared to dissent. He thought that great practical problems would arise in relation to the training and other matters as a result of 4 years interruption from service. Furthermore human nature being what it is there would be an obvious danger that there would be an undercurrent of ill feeling which would affect his future relations with his superiors in the force.

43. Lord Brightman dealt with the position at 1176B-E. He made the point that the choice of remedy was difficult. An order for reinstatement was the only satisfactory remedy from PC Evans’ perspective. He had been much tempted to suggest that it be granted. However, in his view it would be unusual in a case such as this for a Court to order re-instatement and it might border on the usurpation of the powers of the Chief Constable. He pointed out that it would be open to PC Evans to apply to rejoin the police force and he hoped that any such application would receive serious consideration. If he were accepted in this way it would avoid the usurpation of the power of the Chief Constable. A decision to accept or reject must lie with him.

44. The most important difference between Evans’ case and the decision in the case of Ms Kay lies in the development of the law relating to the use of Regulation 13 to dismiss probationary constables in cases where there is a dispute of the facts alleged to constitute misconduct. It is now clear that in such a case the Regulation 13 procedure is not available to the Chief Constable. The only way that the probationary constable can be dismissed is as a result of formal misconduct proceedings. As is explained in Bolt the proceedings are determined by the panel and not by the Chief Constable. Thus it is not right to say, in this case, that the Chief Constable had the power to dismiss Ms Kay. Thus an order for reinstatement would not usurp the power of the Chief Constable.

*Bolt *45. Bolt was also an application for judicial review following the dismissal of a police officer. However PC Bolt was not a probationary constable. Furthermore the passages in the judgment relied on were not part of the ratio of the case. One of the observations relied on by Mr Greaney is plainly “obiter dicta”, the other is a comment by Underhill J on his view of the true construction of Regulation 36(3).

46. PC Bolt faced disciplinary proceedings arising out of his conduct in September 2003. One of the charges involved an allegation relating to his honesty and integrity. All of the charges against him were either admitted or found proved. The disciplinary panel ordered that he be dismissed from the service forthwith. PC Bolt exercised his right to require a review which was carried by the Chief Constable of a neighbouring force (Mr Brunstrom). Mr Brunstrom upheld the convictions of PC Bolt on all charges but went on to conclude that the punishment was excessive and sought to replace them with a fine of 13 days’ pay. He purported to reinstate PC Bolt. PC Bolt’s Chief Constable did not accept the decision of Mr Brunstrom and refused to reinstate him. PC Bolt therefore sought judicial review of the refusal.

47. Underhill J refused any relief to PC Bolt. In his view the decision of Mr Brunstrom in carrying out the review was unsupportable. Mr Brunstrom was himself carrying out a review and the decision of disciplinary panel to dismiss PC Bolt was – in Underhill J’s view – not open to challenge and thus Mr Brunstrom’s conclusions could not be sustained in law.

48. In paragraph 39 of the judgment Underhill J went on to consider a submission based on Evans that there should in any event be no reinstatement because of lack of confidence in PC Bolt:

"Mr. Beggs submitted that even if I held that Mr. Brunstrom’s decision was lawful and that the Defendant was in principle bound to implement it I should not as a matter of discretion grant relief requiring him to do so, because it was wrong in principle that a Chief Constable should be required to retain in his force an officer in whom he had no confidence.  He relied principally on the decision of the House of Lords in Chief Constable of the North Wales Police v. Evans [1982] 1 WLR 1155, and in particular on the observations of Lord Brightman at pp. 1175-6.  Since in the event I do not need to consider that submission, I prefer not to express any concluded view on it.  It is fair to say that I would have seen some difficulty in withholding relief from a claimant who had successfully established that he had been dismissed in plain breach of the applicable procedures: the position of the applicant in Evans was arguably somewhat different since he was a probationer and was not entitled to the benefit of the procedures in question."

49. It is, of course, now clear in the light of Silber J’s judgment that Ms Kay was entitled to the benefit of the disciplinary procedures.

50. The other passage relied on by Mr Greaney is paragraph 23 of the judgment. Underhill J was dealing with a submission as to the scope of Regulation 36(3) of the Regulations. It was argued on behalf of PC Bolt that Regulation 36(3) did not give the Chief Constable power to review the decision of the reviewing officer (Mr Brunstrom). One of the arguments put forward by the Chief Constable was that if there was no such power the Chief Constable might be saddled with someone in whom he had no confidence. In accepting the submission that the Chief Constable had no such power Underhill J said:

"[I]n my view the wording of the review provisions is clear.  If the result is that in a particular case a chief officer may be required to maintain in his force an officer whom he wishes to see dismissed I do not see that that result is objectionable in principle.  The fact that a chief constable has ultimate responsibility for the conduct of his force does not mean that he must have untrammelled power to hire and fire.  There are other circumstances in which, as here, a decision as to who should be a member of his force rests with someone other than himself – most obviously where a panel declines to recommend dismissal or where, if it does so, the decision is overturned by the Police Appeals Tribunal."

**Discussion and Conclusion **51. I have to confess that I have not found the exercise of my discretion easy. I am very conscious of the arguments put forward on the part of the Chief Constable. I realise that Ms Kay has been away from full active duties as a police constable for nearly 5 years. I appreciate that the Chief Constable says he has no confidence in her and that there is the possibility of an undercurrent of ill feeling as suggested by Lord Bridge. In the end, however, I prefer the submissions of Mr Greaney and have decided to make an order for reinstatement. My reasons for so doing are as follows:

  1. In my view the decision in Evans does not compel me to refuse reinstatement. It is accepted that the question of reinstatement is a matter of discretion. Furthermore there are differences between this case and Evans. For reasons I have given an order for reinstatement would not usurp the function of the Chief Constable because it would not be for him to determine any disciplinary proceedings. In the absence of power under Regulation 13 the Chief Constable had no power to dismiss Ms Kay.
  1. Whilst it is true that the Chief Constable has expressed the view that he has no confidence in Ms Kay that was as a result of a procedurally flawed hearing lasting 5 minutes. All of the other evidence relating to Ms Kay’s conduct was positive and to the effect that she was likely to develop into an efficient officer.
  1. I accept that it may now be impossible after 5 years to bring effective misconduct proceedings against Ms Kay. However it has to be remembered that no evidence was offered against her at the criminal trial. Furthermore consideration was given to misconduct proceedings. Following the advice from Counsel the decision was taken not to institute misconduct proceedings on evidential grounds.
  1. Ms Kay has established that she has been dismissed in plain breach of the applicable procedures and I agree with Mr Greaney that reinstatement will put right a serious wrong. Ms Kay has expressed a strong desire to be reinstated.
  1. I derive comfort from the observations of Underhill J in paragraphs 23 and 39 of his judgment in Bolt.

52. Both Counsel expressed the view that the assessment of compensation in the event of an order for reinstatement was unlikely to cause any insuperable problems and were content that it be adjourned in the hope that it could be agreed.

Published: 22/01/2010 14:10

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