Police vetting regime: Di Maria in the Court of Appeal

The King (on the application of Lino Di Maria) claimant / respondent and Commissioner of Police for the Metropolis and (1) the college of policing (2) secretary of state for the home department defendant / appellant interested parties [2026] EWCA Civ 28

Executive Summary

The Court of Appeal has overturned part of the first instance ruling in Di Maria. They have confirmed that forces can consider conduct related information in vetting withdrawal decisions even where an officer was cleared in misconduct proceedings or it was decided there was no case to answer.

The facts

We will all remember the decision of Di Maria at first instance. The court decided that, following the removal of vetting, it was unlawful to dismiss officers for gross incompetence under the Performance Regulations 2020. The decision led to the introduction of the Vetting Regulations 2025. The Regulations established a lawful and article 6 compliant means of dismissing ‘unvetted’ officers. 

That left one issue for the Court of Appeal to decide. It was successfully argued on behalf of the officer at first instance that it would frustrate the statutory scheme of the Conduct Regulations, if, after a matter has been investigated under the Conduct Regulations and it is concluded that an officer need not be dismissed, it is decided that they must be dismissed under the vetting regime. So if there was a no case to answer determination, or the officer weas cleared at a GM hearing, you couldn’t use that evidence in a vetting review. The decision caused a lot of concern for AAs who felt that the legal tests and rules of evidence were very different in the conduct and vetting regimes.

On appeal the Commissioner argued that the Judge erred in failing to have sufficient regard to the fundamental differences in the purpose and substance of the police misconduct and vetting regimes. Unlike the former, the latter involves (i) a multifactorial assessment of the risk posed by the officer arising from matters potentially much broader than a single incident of alleged misconduct; (ii) to the standard of reasonable grounds for suspicion rather than the civil standard of proof; (iii) against a wide range evidence, information and intelligence that may not be admissible in police misconduct proceedings. This was all a matter of public concern because it could mean that serious risks to the public would be ignored. So for all these reasons evidence from a conduct investigation should be available, in a vetting review, even if the conduct matter had been determined in the officer’s favour.

The court accepted the Commissioner’s arguments, relying in particular on the proposition that vetting was an assessment of future risk, conduct proceedings were a judgment on past conduct.

An interesting side issue arose. The Commissioner accepted that the conduct regime should have ‘temporal priority’, in other words the facts of a conduct issue should usually be dealt with before a vetting review. Whilst accepting this the court rejected the idea that vetting should be paused every time a possible conduct matter arose in a vetting review. The court agreed with the Commissioner, that the conduct regime had no substantive primacy. The court said that it was wrong in principle that there should have to be a “pause” every time a new allegation arises in the context of a vetting review. It is not necessary to pause the vetting review process to allow findings of fact to be made in misconduct proceedings. This is because the two types of proceedings are different in nature and purpose. In a vetting review, findings of fact do not, as such, need to be made, because the test is whether there are reasonable grounds for suspicion. If a new matter arises during the course of a vetting review, it may well be something that the decision-maker can properly take into account as part of the multifactorial assessment of risk that is required. The court observed that this reading will help in urgent cases where there may not be time to pause and await the result of conduct proceedings.

It seems to us that this reading is also consistent with the Vetting Regulations 2025. At Regulation 15, Vetting Severity Assessment, the vetting authority is directed to assess whether the matter could reasonably lead to withdrawal of vetting, not to assess the most suitable regulatory regime for the matter. Regulation 15 only requires consideration of the Conduct regime where it is decided that the matter could not reasonably lead to withdrawal of vetting clearance. Or to use the words of the court, the conduct regime has no substantive priority.

Comment

The judgment makes welcome reading for Chief Constables. It will allow them to consider conduct matters that have been determined in an officer’s favour in vetting withdrawal assessments. There is no need to pause the vetting review every time a new conduct matter arises. The Court of Appeal have adopted a practical approach in the assessment of suspicion and future risk that should reassure the general public.