Restrictions on the private lives of police officers under conduct investigations
R (Philpot) v Commissioner of Police of the Metropolis  EWCA Civ 66
In September 2020, P’s wife (“W”) alleged to police that P had subjected W to years of domestic abuse. P was arrested on suspicion of coercive and controlling behaviour and malicious communications against W, and common assault against W and their son. P was bailed with conditions, including not to contact W. Ultimately, in March 2021, the CPS advised there should be no further actions in relation to the criminal allegations. Consequently, the bail conditions expired.
In October 2020, P was served notice that he was subject to a misconduct investigation in respect of the allegations for which he was arrested. The misconduct investigation was suspended pending the outcome of the criminal investigation.
P was not suspended from duty, but he was removed from normal duty with restrictions placed on his duties. One of the restrictions (which came to be known in the proceedings as “Restriction 3”) was: “to have no direct or indirect contact with [W]”.
On 26 November 2020, Restriction 3 was varied to read: “to have no direct or indirect contact with [W] unless it is required by the family court”.
On 25 March 2021 (when the bail conditions had expired), W told the misconduct investigating officer that there was no need for P to contact her, and she wished for Restriction 3 to remain in place.
Restriction 3 was reviewed in April and June 2021 – the latter review resulted in an amendment of Restriction 3 to “to have no direct or indirect contact with [W], unless it is required by the family court, or for child care matters which are to be via a third party”.
P applied to amend Restriction 3 on 22 June 2021, which was refused because “[W] was the main witness in the ongoing misconduct investigation and if that investigation ended in a misconduct hearing [W] would be required to give evidence at the hearing against [P]”.
At the time of the Court of Appeal hearing in this matter, the misconduct investigation found that P did have a case to answer in respect of the alleged conduct.
Regulation 11 of the Police (Conduct) Regulations 2020 provides that:
"(1) The appropriate authority may, subject to the provisions of this regulation, suspend the officer concerned from the office of constable and ….. membership of the force.
(2) An officer who is suspended under this regulation remains a police officer for the purpose of these Regulations.
(3) The appropriate authority may not suspend a police officer under this regulation unless the following conditions ("the suspension conditions") are satisfied …
(a) having considered temporary redeployment to alternative duties or an alternative location as an alternative to suspension, the appropriate authority has determined that such redeployment is not appropriate in all the circumstances of the case, and
(b) it appears to the appropriate authority that either …
(i) the effective investigation of the case may be prejudiced unless the officer concerned is so suspended, or
(ii) having regard to the nature of the allegation and any other relevant considerations, the public interest requires that the officer should be so suspended."
Regulation 6 of the Police Regulations 2003 provides that:
(1) The restrictions on private life contained in Schedule 1 shall apply to all members of a police force.
(2) No restrictions other than those designed to secure the proper exercise of the functions of a constable shall be imposed by the local policing body or the chief officer on the private life of members of a police force except
(a) such as may temporarily be necessary, or
(b) such as may be approved by the Secretary of State after consultation with the Police Advisory Board for England and Wales.
(3) Any restriction temporarily imposed under paragraph (2) shall be reported forthwith to the Secretary of State."
P challenged the imposition of (and refusal to remove or amend) Restriction 3 on the basis that Restriction 3 was purportedly imposed under regulation 11 of the Police (Conduct) Regulations which does not permit a prohibition on officers contacting witnesses, and less so where such a prohibition impinges upon the officer’s private life. Lang J, in the High Court, held that whilst P was correct to say that Regulation 11 of the Police (Conduct) Regulations did not permit the imposition of such a restriction, Regulation 6(2) of the Police Regulations 2003 did.
The Court of Appeal affirmed and upheld the decision of Lang J at first instance in relation to both Regulation 11 of the 2020 Regulations (which did not permit such a restriction) and Regulation 6 of the 2003 Regulations (which did). The victory of the argument on Regulation 11 was therefore described by the Court of Appeal as a pyrrhic one – as the judge’s view was that it was “highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred”.
Further, the Court of Appeal agreed with Lang J that the restriction was a proportionate one which was properly imposed for the protection of the rights and freedoms of others. Additionally, in this case the impact of the restriction on P’s private life was minimal because W did not want P to have contact with her anyway.
It must be correct that the police, when investigating allegations that could amount to misconduct or gross misconduct, be able to impose proportionate restrictions on the officer(s) concerned in order to ensure the investigation may proceed unimpeded and in order to ensure the protection of the rights and freedoms of others.
It ought now to be accepted by those acting for officers under investigation that where such a restriction is imposed under regulation 6(2) of the 2003 Regulations that is prima facie permissible. All restrictions will remain, though, subject to the test of proportionality and investigating and senior officers will do well to ensure that all decisions are recorded and fully rationalised contemporarily and in detail. They would also do well to ensure that all pro formas are updated to make sure that they reflect this judgment and don’t purport to impose such restrictions under Regulation 11 of the 2020 Regulations!
It's a topic for another paper, but I share the apparent disappointment of Bean LJ (see paragraphs 40 to 42 of the judgment) that the court was not required to determine the “interesting question” of where the general power to impose a prohibition on contact with witnesses in the course of a disciplinary investigation. It is commonplace so to do, and Bean LJ was minded to find the source of the general power between the position of opposing counsel, supposing that “perhaps the source of the general power is a combination of the two, that is to say the power of direction and control and the right and duty to enforce the standards of professional behaviour”.
It suffices to say that the Court of Appeal has provided clarity on the ability of police forces to impose restrictions that may impinge on the private lives of officers where so to do is proportionate. This will undoubtedly be useful when conducting investigations into misconduct where the conduct in question took place in the officer’s private life.
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