Most interested parties have now been able to take stock of the impact of the vetting decision in R. (on the application of di Maria) v Commissioner of Police of the Metropolis (“Di Maria”) and the Vetting Regulations 2025. Di Maria caused something of a shock by ruling that there was no lawful means of terminating an officer’s service after withdrawal of their vetting. The decision suggested that the methods currently used in vetting breached an officer’s right to a fair hearing under Article 6 of the Human Rights Act and that use of vetting withdrawal to end an officer’s service might frustrate the police conduct regime.
Di Maria is being appealed but, in the meantime, the Vetting Regulations 2025, which came into force in May 2025, seem to address most of the concerns. An officer must now hold vetting clearance and if they don’t, they can be dismissed pursuant to the Vetting Regulations. The Chief Constable, or Vetting Authority (VA), must follow the process laid out by the Vetting Regulations, a process which satisfies the requirements of Article 6 by providing legal representation to the officer at interview stage and appeal. Officers have also been given two layers of appeal, internal and to the Police Appeals Tribunal.
The Court of Appeal have given leave for the Commissioner to appeal Di Maria. The appeal will hopefully iron out any legal wrangles that remain. So, after a period of some uncertainty the way ahead seems much clearer, but as ever the practical application of the new regulations raises some difficult questions.
The Vetting Regulations in many ways mirror the Police Conduct Regulations 2020, this gives them familiarity and clarity. It also raises some of the issues that we encounter in the Conduct Regulations. Under the Vetting Regulations an assessor must be appointed to carry out an investigation. They must have the appropriate levels of knowledge, skill and experience to carry out an investigation, write a report with recommendations for the VA and deal with disclosure to the officer. A difficult question for the VA is who to appoint to do this. The skillset seems to be like those for an IO on conduct matters because the assessor will need investigative skills but also knowhow in interviewing, report writing and disclosure.
Disclosure seems to be a particularly difficult area. Once again, the Vetting Regulations mirror the Conduct Regulations. Subject to the harm test, the officer should be supplied with a copy of the report, documents referred to in the report and other background documents. Other background documents means any relevant document but it’s essentially the CPIA test used under the 2020 conduct regime. In effect this is ‘any other document which might reasonably be considered to support or undermine the outcome of the withdrawal assessment.’
The harmtest is also the same as under the Conduct Regs, broadly similar to pii, that is to say, anything that could cause harm and damage public interests.
The reason that disclosure seems particularly difficult is the nature of vetting evidence. Much of the documentation will inevitably be intelligence and will come from sensitive sources. How to deal with disclosure remains a challenge with options to simply refuse to disclose under the harm test, give limited disclosure by gisting in the assessor’s report or giving redacted disclosure. How does the assessor and VA deal fairly with sensitive disclosure if the material passes the CPIA test, should they produce a disclosable sensitive schedule (the method suggested by the Home Office Guidance for Conduct)? If the officer seeks disclosure how would the VA deal with this, by closed session like a pii hearing? Should we be producing unused schedules for disclosure? We’d say yes for openness and transparency. The long series of question marks and unanswered questions reveal the present uncertainty. Home Office Guidance is going to be published but much of this will only become clear by putting the regulations into practice, trial, error and refinement of the basic principle.
The other intriguing question is what an interview in the process will look like. The officer and the VA can have legal representation. One would hope that the interview would be a genuine fact-seeking process and an opportunity for the officer to give their account.
The difficulty with two sets of lawyers in the room is that an interview could begin to resemble a formal legal hearing which would completely defeat its object. The Regulations helpfully state that the officer’s legal representative cannot answer questions but beyond that, there is little guidance.
In some ways the Vetting Regulations give clarity and resolve some of the issues that Di Maria brought to light. In other ways they raise new questions. Anyone involved in vetting and conduct will find this a familiar pattern. Expected Home Office Guidance will no doubt help.
As ever the resilience, perseverance and common sense of professional standard departments and anti-corruption units will let them find a way to work within the new regulations.
