Police Vetting | Di Maria Judgement Briefing

The Di Maria decision is of great importance for everyone involved in police vetting. The police service over recent years has referred officers who have had their vetting status removed to Stage 3 proceedings for gross incompetence under the Performance Regulations 2020. This has led to their dismissal. The Court has now found this process to be unlawful. The Court also found that the process for removal of vetting must be fair in accordance with Article 6 of the Human Rights Act. They found that in this case the requirements of Article 6 had not been met and the withdrawal of vetting was unlawful.

The Facts

Several disputed allegations of sexual impropriety by the officer in question came to the attention of the Commissioner. Previous complaints investigations had found no case to answer. The Commissioner carried out a vetting review and removed the officer’s vetting clearance. The officer’s appeal under the internal appeals procedure was dismissed and the officer was referred by the Appropriate Authority to Stage 3 proceedings for gross incompetence under the Performance Regulations 2020. Those proceedings were postponed pending the court’s determination of the officer’s legal challenge to the withdrawal of vetting and reference to a stage 3 meeting under the Performance Regulations.

The Decision

The officer mounted five grounds for judicial review.

Ground 1 – Withdrawal of vetting is not a lawful basis for dismissal

It was conceded that the Chief Officer had a power to require vetting clearance and to remove it. It was not accepted that removal gave a power of dismissal because a specific set of regulations were required to do this pursuant to S50(3) of the Police Act 199166.

Ground 2 – The vetting regime does not comply with Article 6 ECHR, a right to a fair hearing, and the APP Vetting Code of Practice is therefore unlawful

It was agreed that Article 6 was engaged in the vetting process. The officer’s Article 6 rights were breached by the failure to consider and determine whether he should be given the opportunity to call witnesses or cross-examine complainants, and by not giving him the opportunity to be legally represented. The Article 6 requirements depended to an extent upon the facts of the case but the judge indicated that where there were expectations that looked very like the Conduct Regulations 2020, the officer should receive notice of allegations and have provision to respond. Further, the officer should have the opportunity to provide evidence, a hearing and the opportunity to call witnesses where there were serious allegations and disputed facts.

Ground 3 - Vetting dismissal for misconduct, to the exclusion and frustration of the statutory scheme under the Conduct Regulations, is unlawful

The Court ruled that as a matter of principle, the statutory misconduct procedures are the intended and proper legal route for the consideration and determination of allegations of misconduct against police officers. Where an allegation has been considered and finally determined in misconduct proceedings, by a finding of “no case to answer” (as had been the case here) or a finding that no misconduct has been proved, usually there will not be any reasonable grounds for suspecting that the officer may have committed the act alleged, save in exceptional cases, for example, where significant new evidence has come to light. The determination in the misconduct proceedings should be respected and accorded primacy. So, in this case, the vetting officers should have made their assessment on the basis that, in the light of the findings of no case to answer, there were no reasonable grounds for suspecting that the Claimant committed the rapes as alleged in allegation.

Ground 4

a) Withdrawal of vetting is outside the scope of the Performance Regulations.

b) Referral of vetting withdrawals to a third stage meeting under the Performance Regulations frustrates the operation of the Performance Regulations by stripping them of their content and efficacy, including procedural safeguards, and depriving the officer of any meaningful opportunity to challenge the allegation of gross incompetence.

This ground ties in with ground 1 where the court had already ruled that a specific set of regulations was required to deal with dismissal through lack of vetting. The Court however expanded their thinking and rationale by stating that the natural reading of the Performance Regulations suggested that they applied to cases where the officer had failed to perform their duties competently rather than to include circumstances where an officer is able and willing to perform his duties but is prevented from doing so because his vetting has been withdrawn.

The court went on to say that the Performance Regulations were frustrated because the officer had no means of challenging the decision to remove vetting. The panel hearing the gross incompetence application had no means of reopening the decision which was presented as a ‘fait accompli’.

The court found no need to consider the fifth ground for review, that the decision to withdraw vetting was irrational, given the decisions on grounds 1 to 4. The decision to refer the case to the Performance Regulations and the decisions to remove vetting were quashed. The court made no decision as to whether the Code of Vetting and APP were unlawful, merely observing that they might be amended in light of the judgment.

What are the consequences of the decision?

The main message is that an officer cannot be dismissed under the Performance Regulations following removal of vetting. A specific set of regulations are required. Vetting can be removed but the procedure must respect Article 6. In a way it is easy to see a solution to these problems – a dedicated set of regulations are required that allow dismissal for an absence of vetting, one that complies with Article 6. The Government has published a draft set of vetting regulations.

The decision does not affect all of the vetting regime. If a probationer’s vetting is removed, then it seems that the Chief Officer can move to Regulation 13 of the Police Regulations 2003 for dismissal, a dedicated set of regulations is already in place to deal with that scenario. The decision does not appear to effect police staff, no specific set of statutory regulations is required to dismiss them as employees. Both procedures must of course comply with Article 6 and be fair.

It is perhaps of more concern that the Court indicated that vetting could not be removed where a misconduct investigation had determined that there was no case to answer. This could be for many reasons and cogent evidence that justified the removal of vetting might well exist. For example, a vulnerable witness might be unwilling to come forward, there might be sensitive intelligence that could not be used under the harm test or there might be a pattern of similar fact evidence that was not apparent on an isolated investigation that led to a finding of no case to answer. The decision also contains an element of contradiction, if Article 6 is honoured and the officer can call evidence and witnesses, why should disputed and unproven allegations not be capable of being raised within the vetting regime?