Can police officer pre-attestation conduct amount to gross misconduct?

R (on the application of the Chief Constable of Thames Valley Police) A v Legally Qualified Chair v C [2024] EWHC

Executive summary

The High Court allowed the Chief Constable’s judicial review application, challenging a misconduct panel’s determination on an officer’s pre-attestation conduct. However, the High Court’s decision was that pre-attestation conduct was not caught by the conduct regime but a failure to disclose pre-attestation conduct was.

Background

C, a police officer, joined Thames Valley Police (‘TVP’) in 2010. As part of their appointment, they were vetted (as all officers are required to be). Among other information, the vetting questionnaire required C to make a full and frank disclosure of relevant information to include “other circumstances or characteristics which may affect… suitability for appointment”. A vetting review was completed in 2018 (which required C to re-complete the vetting questionnaire).

In 2021, B reported to the police that C had a sexual relationship with a child (‘A’) in 2008-2009, before he joined TVP as a constable. A criminal investigation was commenced but eventually discontinued. C strongly denied the allegations.

In June 2022, C was served with a misconduct notice, alleging gross misconduct on the basis of:

1. Discreditable conduct arising from sexual activity with A, when she was under 16.
2. Discreditable conduct and, honesty and integrity for failing to declare potentially criminal conduct when joining TVP as a constable.

In the officer’s reply, C submitted that a misconduct panel had no jurisdiction to deal with the allegations because they arose from conduct before they were a serving constable.

The panel dealt with this as a preliminary issue, determining it in favour of C, deciding that the statutory misconduct regime did not apply to pre-attestation conduct.

The appeal

TVP applied for judicial review, in that the Legally Qualified Chair’s (‘LQC’) preliminary issue ruling was wrong in law.

Law

On appointment, every officer is required to be attested by making a declaration. It is at the point of attestation that an officer assumes the powers and obligations of a police constable.

At the time, the Police (Conduct) Regulations 2020 were the applicable set of regulations regulating officer misconduct. The disciplinary regime is in place to maintain public confidence in the reputation of the profession and the integrity of its members, it is not designed to impose punishment for misconduct.

Separate to the above regulations, the Police Performance Regulations 2020 regulate ‘performance’ and, if – following a three-stage process – an officer’s performance is not to the required levels, they can be dismissed on notice for gross incompetence. Gross incompetence is a serious inability to fulfil the role of constable.

In Watson’s Application for Judicial Review [2022] (a Northern Irish case) the Northern Irish Court of Appeal held that conduct before an officer attests does not fall within the ambit of ‘misconduct’ to which the misconduct regime applies. A decision in Northern Ireland (or Scotland) should be followed unless there is a compelling reason not to do so.

Decision

The court allowed the appeal and addressed the following three issues in its decision.

1. The ongoing duty to disclose

A failure by an applicant seeking to become a member of a police force to disclose relevant information as part of a vetting process is capable of engaging an ongoing duty, once that person has been attested, to disclose that information. The onus lies on the officer to correct their earlier failure to disclose relevant information.

A breach of that duty is capable of amounting to misconduct and may be the subject of investigation and disciplinary proceedings under those regulations.

2. Does the misconduct regime apply to police officers pre-attestation?

The misconduct regime and standards of professional behaviour apply to police constables. They do not apply to the conduct of officers before they are attested – following Watson. However, this does not prevent pre-attestation conduct being caught by the misconduct regime where there has been a failure to make a material disclosure (see (1) above).

3. Vetting removal

In appropriate cases, the removal of vetting clearance (combined with the Performance Regulations) may address a person’s misconduct before they become a police officer, and offer a route to prevent them from being attested as a constable.

Comment

The case helpfully makes clear that an officer’s pre-attestation conduct (that is not proved to be criminal) will not in of itself result in misconduct proceedings. However, officers have an ongoing duty to disclose all relevant material and a failure to disclose pre-attestation conduct could amount to gross misconduct.

The case also contains a useful summary of the statutory framework regarding attestation of constables, the regime (at the time) for dealing with officer misconduct and performance and the standards of professional behaviour.