About this case:

• Citation:
  [2022] NIKB 71
• Judgment:
  External link
• Court:
  NI High Court
• Judge:
  Mr Justice Gerald Simpson

The court rejected the claim that this refusal was done in the public interest, due to the fact that the officer in question had come under criminal investigation only weeks before submitting his retirement request.

Background

The applicant was a serving police officer in the PSNI, while the respondent was the Chief Constable of the PSNI.

In September 2019, the applicant initiated an application for retirement on the grounds of permanent disablement, commonly known as ill health retirement (IHR). Following an examination, the applicant was determined to be permanently disabled due to PTSD and depression.

Later that month, he became aware that serious allegations had been made against him, for which he was under criminal investigation.

He was suspended from duty in October 2019. Those proceedings ultimately ended with the prosecution offering no evidence and the judge directing the jury to enter a verdict of not guilty. This occurred in February 2023, and the applicant remained subject to potential disciplinary proceedings.

A letter in February 2021 notified the PSNI that the applicant’s application for IHR was granted, and that he would be retired with effect from April 2021. The letter included the following:

The Chief Constable notified the applicant that he had exercised this discretion to refuse permission for him to retire. It was this decision which was being challenged in the judicial review proceedings.

The applicant’s case

The applicant asserted that the decision was vitiated by illegality, and that Regulation 14 did not apply to compulsory retirement on the grounds of ill health. He also argued procedural unfairness, as he was not given any opportunity to make representations before the impugned decision was reached.

In correspondence from 2020, the Deputy Chief Constable explained: “The declaratory purpose of the police misconduct process is to protect public confidence in, and the reputation of, the police service. [The applicant] is potentially facing serious criminal allegations”.

The respondent contended that Regulation 14 applied, and that the applicant could not give notice or retire without the consent of the Chief Constable. They further argued that “not all cases of IHR [… are] properly considered to be compulsory”.

Consideration

The court noted that guidance on this topic clarified that: “In the event of medical retirement the misconduct proceedings would automatically lapse.”

However, the court was cautious of a situation where a police officer could apply for ill health retirement with the intention of avoiding disciplinary proceedings to be brought against him. They argued that “clearly there should be a procedure to prevent such a situation”.

The court considered the case of R v Cleveland Police Authority, ex parte Rodger [1998] Lexis Citation 3043. There, the applicant was a serving police officer who had been absent from work due to ill health. He was required by the Chief Constable to retire on medical grounds and was accordingly served with a notice of medical retirement pursuant to the Police Pension Regulations 1987, Regulation A20.

This was around the same time that allegations were being made against him which would have made him the subject of disciplinary proceedings. The Assistant Chief Constable therefore wrote to him deferring his retirement.

The court found that the wording of the English Regulation A20 was identical to the relevant regulations before them (Regulation A18 of the 1988 Regulations) in all material respects.

The court also found that the regulations provide that a member may be required to retire, irrespective of his own intentions. However, the respondent argued that under ill health retirement an officer may withdraw from the procedure at any time, which differs from the compulsory retirement procedure in Regulation A18.

The court rejected this claim that an officer could withdraw ‘at any time’. It was difficult for the court to see how an officer could return to work after being medically certified as being permanently disabled.

However, the court found that the existing regulations did provide for the prevention of retirement where an officer is suspended from duty pending the outcome of disciplinary proceedings, whatever the route towards retirement.

The court highlighted that the Northern Ireland Policing Board is granted discretion under Regulation A18, to consider representations from the applicant, the respondent; and to consider public interest, as to whether the suspended member should be required to retire or whether the suspended member should remain in service until the conclusion of the disciplinary proceedings.

Regulation 14 provides for any situation in which an officer indicates an intention to retire, by ensuring that he cannot give a notice of intention, or retire pursuant to a notice already given, if he is suspended from duty.

Whether an officer is being required to retire or is seeking to retire, they can be prevented from doing so while suspended from duty pending the outcome of misconduct proceedings. Therefore, the court was of the view that Regulation 14 did not apply, and the respondent could not rely on it.

Conclusion

Ultimately, the court granted the applicant a declaration that the decision of the respondent to rely on Regulation 14 of the 2005 Regulations in order to refuse permission to retire was unlawful.