Use of Regulation 13 in dispensing with probationary constables

Nicholas Barnes v Chief Constable of Thames Valley Police [2023]

Executive summary

The High Court dismissed Mr Barnes’ judicial review application, challenging the Chief Constable’s decision to dismiss Mr Barnes pursuant to Regulation 13. The sole basis for the decision to discharge Mr Barnes was an incident of professional misconduct which had previously been the subject of misconduct proceedings in which there had, in effect, been a decision not to dismiss him.

Background

Mr Barnes was a probationary constable of Thames Valley Police. On 15 April 2020, Mr Barnes told a racist ‘joke’ to colleagues. Mr Barnes was subject to misconduct proceedings that resulted in a misconduct panel, chaired by an independent legally qualified chair, determining that Mr Barnes should receive a written warning. The misconduct proceedings found, among other matters, that:

1. Mr Barnes knew, before he said it, that the joke was inappropriate.
2. Mr Barnes accepted that he was guilty of misconduct but denied that it amounted to gross misconduct.
3. It was accepted that, apart from the joke, there were no other concerns about Mr Barnes’ performance.
4. Mr Barnes relied on a number of very positive character references.

After the conclusion of the misconduct proceedings, the police invited Mr Barnes to a Regulation 13 hearing. The material relied on at the Regulation 13 hearing was the same material that had been relied upon in the misconduct proceedings. After the Regulation 13 hearing, Superintendent Baillie recommended to the Chief Constable that Mr Barnes should not be dismissed.

The Chief Constable considered Superintendent Baillie’s report (but no other material, neither did he hear from Mr Barnes) and decided on 2 June 2021 to dismiss Mr Barnes. The Chief Constable’s written reasons commented that:

1. There were a significant number of witnesses to the incident which no doubt assisted with his admission and remorse.
2. The findings of the misconduct panel came as a surprise given the seriousness of the behaviour. He was also critical of Mr Barnes’ mitigation and insight.
3. Due to the seriousness of the behaviour, there were doubts about Mr Barnes’ ability to be a constable and the risk to the public confidence this would cause.

Law

The Police (Conduct) Regulations 2020 require the Chief Constable to investigate allegations of misconduct and gross misconduct and, if there is a case to answer, to bring a misconduct hearing or meeting (depending on the severity of the misconduct alleged).

Regulation 13 of the Police Regulations 2003 permits the Chief Constable to dispense with a probationary constable at any time if they consider the probationer is not fitted to perform the duties of his office, or that he is not likely to become an efficient or well conducted constable.

The Home Office Guidance on Professional Standards, Performance and Integrity in Policing make clear that:

1. The Chief Constable has discretion whether to use the disciplinary procedures or the Regulation 13 procedure when dealing with probationary officers.
2. In exercising that discretion, regard should be had as to whether the conduct is admitted or not. If the misconduct is not admitted, in most if not all cases, the disciplinary procedures should be preferred.
3. Allegations of gross misconduct should ordinarily be subject to the disciplinary proceedings rather than Regulation 13.

The Chief Constable has no right to appeal a decision of a misconduct hearing but can seek a judicial review in the Administrative Court.

Decision

1. Was the Chief Constable entitled to use Regulation 13?
   Yes. The Chief Constable, in deciding whether or not to utilise Regulation 13, was not acting as a ‘judicial tribunal’. Regulation 13 was a discretionary decision, reserved to the Chief Constable to enable him to deal with managerial and operational matters. Accordingly, the misconduct proceedings determination did not prevent him from exercising this power – there was no estoppel.
   
   
2. Was the conduct of the Regulation 13 proceedings irrational or unfair?
   No. Mr Barnes knew what the alleged misconduct was and what the potential outcome could be. Therefore, he was able to advance his case on those issues before the Panel and had a further opportunity to do so before Superintendent Baillie.

The Chief Constable was entitled to disagree with the report of Superintendent Baillie and, in that circumstance, it was appropriate for him to give reasons as to why. The Chief Constable’s decision – which was thorough – showed that he had consider all the relevant issues, he did not need to make further enquiries or invite further submissions.

Comment

This case recognises the important role Chief Constables play in the management and disciplinary process of its probationary officers. It is also a helpful reminder that police forces should have due regard to the relevant regulations and guidance to ensure that the important procedural fairness protections are respected. The Chief Constable’s thorough and well-reasoned decision was a testament to that.