About this case:

• Citation:
  [2023] NIKB 25
• Judgment:
  External link
• Court:
  NI High Court
• Judge:
  Judge Adrian Colton QC

The court found that judicial review here was appropriate, despite the fact that there were alternative remedies available to the constable.

Background

The applicant in this case was a serving police constable with the Police Service of Northern Ireland (PSNI). Through these proceedings he sought to challenge three decisions, namely:

1. the decision in August 2022 determining that the applicant had a case to answer for gross misconduct and referring his case to a misconduct hearing based on an investigation from 2018;
2. the decision to refuse/fail to give effect to a High Court order, granting judicial review and quashing a decision, so that the applicant was subject to unlawful working restrictions for a period in excess of five months; and
3. the decision to suspend the applicant (in connection with the first impugned decision).

All of these decisions stemmed from an allegation of an inappropriate sexual relationship with a woman known as K in 2017. The applicant was subject to a criminal investigation, suspension from duty, a police disciplinary investigation, and, finally, a Service Confidence Procedure (SCP) which resulted in restrictions in his work.

Ultimately, the criminal investigation concluded with a “no prosecution” decision by the Public Prosecution Service in February 2018. The original misconduct investigation was also formally withdrawn by the appropriate authority for prosecuting investigations under the Police (Conduct) Regulations (Northern Ireland) 2016 in December 2018.

Subsequently, however, significant restrictions were placed on the applicant’s work as a constable, via the SCP from early 2019 onwards. That decision was ultimately quashed by the High Court in April 2022 following a successful judicial review. Despite this, the SCP restrictions were maintained by the PSNI from the date of judgment on 8 April 2022 to September 2022.

On 18 August 2022, it was determined that there was a case to answer against the applicant for gross misconduct based on the same material and investigation which led to the misconduct proceedings which were withdrawn. On 19 September 2022, the applicant was, again, suspended from duty.

As a consequence, the applicant was now facing a misconduct hearing before a disciplinary panel, convened under the Regulations which govern the process of investigating and determining allegations of misconduct by police officers. This hearing was scheduled for March 2023.

The challenge

The court noted that this was not an appeal from a decision but rather a challenge to the decision to bring the proceedings themselves. The applicant argued that the proceedings were unlawful and without jurisdiction.

His essential point was that there is simply no jurisdiction under the regulations for the referral of these proceedings to a disciplinary panel. He argued that the decision to withdraw the proceedings against him in December 2018 was a lawful decision.

Further, there had been no new material or any new investigation into the events that formed the basis of a charge which would permit proceedings to be initiated.

The court also accepted that there was a clear public interest in the finality of administrative/quasi-judicial decisions and that the applicant was entitled to regard the question of disciplinary proceedings as having been already determined.

The applicant also contended that the respondent now lacked any power to re-examine their decision, in terms of any disciplinary proceedings arising from the same allegations which gave rise to these proceedings.

He also argued that the regulations did not permit these proceedings to be brought, that there was no legal basis to bring these proceedings, and that the decision was a nullity.

The proposed respondent, in turn, argued that the misconduct panel plainly had jurisdiction to hear the allegations against the applicant. Instead of bringing these judicial review proceedings, the respondent noted that the applicant would have been entitled to advance an “abuse of process” argument to the disciplinary panel.

As such, the applicant had an alternative remedy available to him within the police misconduct regime, and there were no special circumstances that therefore justified the issues raised in this case being dealt with by judicial review.

Consideration

A central issue here was the validity of the proceedings themselves. The court agreed that the issues raised in respect of the first decision challenged could have been argued in front of the misconduct panel, on the basis of an alleged abuse of process. That approach could have given rise to the disciplinary proceedings being dismissed at that stage.

However, the court also relied on the opinion of Justice Moses in the case of Redgrave v Metropolitan Police Commissioner [2022] EWHC 1074 (Admin). There, the court dealt with an application to quash a decision of a Police Disciplinary Board to refuse to stay proceedings. That applicant relied on grounds of delay and double jeopardy.

Although the applicant was ultimately unsuccessful, the court determined that the matter was suitable for judicial review despite the availability of an alternative remedy by way of appeal.

Adopting the language of Justice Moses, the court here found:

Conclusion

Ultimately, although the court accepted that it was “finely balanced”, the judge concluded that the applicant should not be refused leave on the grounds of the availability of an alternative remedy.

In terms of the merits of the substance of the judicial review, the court was satisfied that the applicant met the threshold for leave in respect of all three decisions challenged, and granted leave in respect of each.