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Police Forces' 'Service Confidence Procedures' also amenable to Judicial Review - although threshold for judicial interference is very high

Police officers are subject to statutory disciplinary procedures, which, it is well established, are amenable to Judicial Review ("JR").  What is perhaps less well known, is that sitting alongside Police officers are subject to statutory disciplinary procedures, which, it is well established, are amenable to Judicial Review ("JR").  What is perhaps less well known, is that sitting alongside this statutory regime, each police force has its own non-statutory 'Service Confidence Procedure' ("SCP") (or similarly titled procedure).  At first blush, the SCP appears disciplinary in nature, given that being subject to the SCP can result in an officer being redeployed; made the subject of an action plan or "other intervention"; and can prevent promotion.

However, in the recent case of R. (on the application of Woods) v The Chief Constable of Merseyside Police [2014] EWHC 2784 (Admin)  while Mr Justice Stewart "did not accept that there is any quasi disciplinary element to the SCP" he also concluded that the SCP's were not merely deployment/operational decisions.   As such, Stewart J was satisfied that decisions to make and keep officers the subject of an SCP are decisions which have a sufficient public law element and are therefore also amenable to JR.  Although, as the facts of this particular case reveal, absent any very exceptional circumstances, namely clear evidence of dishonesty or bias or caprice on the part of the decision maker, the court would not intervene.

Merseyside's SCP states that it is a policy, the main aims of which are to "Address a loss of confidence by the Force in any particular individual/s when serious concerns arise as to their suitability to perform a specific role or duty."  Under the SCP any member of staff is under a duty to report concerns about the integrity of a member of the Force.  The Force's Anti-Corruption Unit is then responsible for evaluating the information/material and ensuring it is correctly investigated and conventional criminal or disciplinary outcomes will be sought whenever appropriate.  However, "if at any stage of the investigation it becomes apparent that criminal or misconduct proceedings are not possible or appropriate"  then use of the SCP will be considered.

The SCP identifies that "there will be occasions when verifiable confidential or source sensitive material" is available, which "brings into question the suitability of a member of staff to continue to perform their current role or duties".   The test of whether there are "Serious Concerns about an individual's integrity will be based on an assessment of all the intelligence and evidence… [and that] evidence must establish that it is more probable than not that the individual's integrity is in question." 

In the instant case, as a result of an operation by Merseyside's Anti-Corruption Unit, two officers were made subject to the SCP in 2011.  The reason for invocation of the SCP was that the Force has lost confidence in the officers, but the evidence "cannot be used in disciplinary proceedings for reasons of law" – in this case on the grounds of Public Interest Immunity ("PII").  Under the SCP, cases are reviewed every six months and the officers also have a right of appeal against a decision made under the procedure.  At each review the decision was taken that the two officers would remain subject to the SCP.  In late 2013 both officers appealed against the continued imposition of the SCP, and both appeals were refused.  No reasons for the refusal were given to the officers, on the grounds of PII.  The officers then sought a JR of the refusals.

Having determined that JR was available, Stewart J considered the court's approach and the level of scrutiny/interference permissible.  He was satisfied that where, as in this case, the Defendant was "hamstrung"  "from giving a properly reasoned justification of the decisions … there would have to be clear evidence of dishonesty or bias or caprice.  By "clear" the court have to be satisfied that there could be no possible reason which might justify the decisions taken.  This is a very high threshold, but one which seems to me to be appropriate."  In the circumstances of these two officers, Stewart J held that threshold had not been reached and the claims for JR were dismissed.

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