Force Vetting After “No Case to Answer”: Misconduct Outcomes Do Not Negate Reasonable Suspicion

1. Introduction

Di Maria, R (On the Application Of) v Commissioner of Police for the Metropolis [2026] EWCA Civ 28 concerns the correct interpretation of the “vetting test” in the College of Policing’s statutory Vetting Code of Practice (“the Vetting Code”) in the context of Force Vetting.

The Respondent (Mr Di Maria) is a serving Metropolitan Police Service officer whose Management Vetting and Recruitment Vetting were withdrawn following multiple allegations (including allegations of rape) which had not resulted in criminal convictions or findings of misconduct/gross misconduct under the Police (Conduct) Regulations 2020. He succeeded in judicial review before Lang J in the Administrative Court on several grounds. On appeal, only one point remained live: whether, following a “no case to answer” outcome or an allegation “not proved” under the Conduct Regulations, a vetting review is generally barred from finding “reasonable grounds for suspecting” the same conduct occurred absent exceptional circumstances.

The Appellant (the Commissioner) and the First Interested Party (the College of Policing) argued that the Administrative Court had wrongly elevated misconduct outcomes into a near-determinative constraint on the vetting test, undermining the distinct risk-based purpose of vetting. The Court of Appeal (Whipple LJ and the Lady Chief Justice agreeing) allowed the appeal.

2. Summary of the Judgment

The Court held it had jurisdiction to hear the appeal, because the Appellant sought to reverse part of the Administrative Court’s order (allowing Ground 3), not merely to challenge reasoning.
Despite the practical “academic” character of the dispute (the officer’s vetting status having expired and legal reform in 2025), the Court exercised its discretion to decide the issue in the public interest.
On the merits, the Court held Lang J erred at paragraph 170: a “no case to answer” determination or a finding of “not proved” in misconduct proceedings does not equate to an absence of “reasonable grounds for suspicion” under the Vetting Code.
Vetting is a different exercise from disciplinary adjudication: it is an evaluative assessment of risk and trust, applying a “reasonable suspicion” threshold which is materially lower and conceptually different from findings made on the balance of probabilities in misconduct proceedings.
The Court also rejected the notion (at least as a matter of principle) that a vetting review must usually “pause” to refer new allegations into misconduct proceedings before they may be considered for vetting purposes.

3. Analysis

3.1 Precedents Cited

A. Appellate jurisdiction and “appeals against reasons”

Lake v Lake [1955] P 336: cited for the orthodox proposition that appeals lie against orders, not merely against reasons. The Court treated this as the starting point but not the end of the inquiry.
Re B (A Child) (Split Hearings: Jurisdiction) [2000] 1 WLR 790: used to emphasise that an appeal may lie where findings could have significant future effects on parties’ rights/obligations, even where the form of an “order” may not capture the practical consequences.
Cie Noga d'Importation et d'Exportation SA v Australia and New Zealand Banking Group Ltd and others ("Noga 3") [2002] EWCA Civ 1142; [2003] 1 WLR 307: relied upon for the principle that if a decision could have been embodied in a formal order such that it was not susceptible to challenge, the Court may lack jurisdiction. Here, the Appellant was challenging a component of the order (Ground 3 allowed), bringing the appeal within jurisdiction.
Braceurself Ltd v NHS England [2023] EWCA Civ 837; [2024] 1 WLR 669: provided the modern synthesis (Coulson LJ) applied by the Court. This case framed the Court’s structured approach to the jurisdiction question.

B. Discretion to hear academic public law appeals

Sun Life Assurance Co of Canada v Jervis [1944] AC 111 and Ainsbury v Millington [1987] 1 WLR 379: private-law authorities illustrating the general reluctance to decide academic questions.
R v Secretary of State for the Home Department, ex p. Salem [1999] 1 AC 450: the leading authority allowing appellate courts to decide academic public law issues where there is a “good reason in the public interest,” especially a discrete construction point likely to recur. The Court used Salem as the governing framework.
R (Dolan and others) v Secretary of State for Health and Social Care and another [2020] EWCA Civ 1605; [2021] 1 WLR 2326: a contemporary example of applying Salem to decide an academic vires issue due to wider importance and recurrence risk. Dolan supported deciding the vetting-code question authoritatively rather than leaving it to future fragmented litigation.

C. Standards of proof vs reasonable suspicion; risk-assessment reasoning

Mallett v McMonagle [1970] AC 166: cited for Lord Diplock’s description of civil fact-finding—treating what is “more probable than not” as “certain” for legal purposes—highlighting the binary nature of past-event findings under the balance of probabilities.
Shaaban bin Hussein and Others v Chong Fook Kam and another [1970] AC 942: central to distinguishing “reasonable suspicion” from “prima facie proof.” Lord Devlin’s explanation that suspicion may rely on material not admissible as evidence underscored why misconduct findings do not foreclose suspicion-based decisions.
Secretary of State for the Home Department v MB [2006] EWCA Civ 1140; [2007] QB 415: used to show that “reasonable grounds for suspicion” can rest on a mixed “matrix” of established facts and suspicious circumstances; the reviewing function differs from finding each alleged fact to a defined standard.
R (R) v Chief Constable of Greater Manchester Police [2018] UKSC 47; [2018] 1 WLR 4079: deployed by analogy (via the Secretary of State) to support the proposition that unresolved serious allegations may remain relevant to safeguarding/risk decisions even after acquittal (noting the different context and standard of proof).
R (Victor) v Chief Constable of West Mercia Police [2023] EWHC 2119 (Admin); [2024] ICR 109: considered but not treated as determinative; it illustrated that vetting consequences (including dismissal outcomes in practice) can lawfully follow misconduct proceedings that did not themselves result in dismissal.
R (Pearce) v Parole Board [2023] UKSC 13; [2023] AC 807: highly influential: the Supreme Court rejected any general rule requiring a two-stage approach of (i) findings on balance of probabilities and (ii) risk assessment using only proved facts. The Court of Appeal treated Pearce as materially analogous in principle to Force Vetting’s risk-based evaluation.
U3 v Secretary of State for the Home Department [2025] UKSC 19; [2025] AC 1510: cited to reinforce that risk assessment may legitimately be based on individually disputable/inconclusive items that are cumulatively sufficient, provided there is an objective evidential basis and not mere speculation.

3.2 Legal Reasoning

A. Correct construction of the Vetting Code: “adverse information” and the Stage 1 threshold

The Court accepted (and endorsed) the Administrative Court’s clarification at paragraph 169: the Vetting Code’s reference to “adverse information” cannot be read as satisfied merely by the existence of an allegation as data. Rather, the Stage 1 question must be approached as whether “facts or information exist which would satisfy an objective observer” that the officer may have committed the acts alleged. This preserves “reasonable grounds” as an evidential threshold, not a purely formal one.

B. The core error: equating misconduct outcomes with the absence of reasonable suspicion

The Court identified Lang J’s mistake as a category error. Misconduct proceedings ask a tribunal (in effect) to determine whether past events are proved to the civil standard (balance of probabilities). Vetting asks whether, on the information and intelligence available, there are reasonable grounds to suspect disqualifying risk factors, as part of an overall suitability and risk appraisal.

Two specific equivalences were rejected:

“No case to answer”: even if it can be characterised as meaning no reasonable tribunal could find the charge proved on the balance of probabilities, that does not answer the different question whether there remain reasonable grounds for suspicion.
“Not proved”: a failure to meet the civil standard is not a positive finding that the event did not occur, still less a conclusion that suspicion is unreasonable.

This was anchored by the Court’s doctrinal distinction between (i) binary civil fact-finding (Mallett v McMonagle) and (ii) suspicion/risk standards (Shaaban bin Hussein and Others v Chong Fook Kam and another; Secretary of State for the Home Department v MB), and reinforced by the Supreme Court’s approach to risk assessment with unproven allegations (R (Pearce) v Parole Board; U3 v Secretary of State for the Home Department).

C. The nature of Force Vetting: multifactorial, cumulative, and future-facing

The Court treated the Vetting Code as mandating a risk assessment that is:

Multifactorial (not confined to one incident or one allegation);
Cumulative (patterns and aggregation may matter); and
Future-facing (the point is assessing prospective risk to the public and police integrity).

On this view, vetting can lawfully take into account matters that could not be proved (or could not be admissibly proved) in misconduct proceedings, so long as the assessment has an objective evidential basis and meets the reasonable suspicion threshold.

D. Relationship between misconduct and vetting: no “substantive primacy”

The Court accepted that misconduct proceedings may often come first in time, and that misconduct outcomes deserve careful scrutiny (with reasons if the vetting decision differs). However, it rejected a rule of “primacy” which would make misconduct determinations generally dispositive of the suspicion stage in vetting.

The Court also indicated that it is wrong in principle to require a routine “pause” of vetting to refer every new matter into misconduct, because vetting does not require proof of past events in the same way; it requires a reasoned suspicion-based evaluation within a risk framework. The Court emphasised operational realities, including urgency in safeguarding public confidence.

3.3 Impact

A. Practical consequences for police vetting and integrity management

Vetting reviews may rely on the same underlying conduct even where misconduct proceedings ended with “no case to answer” or “not proved,” without needing “exceptional circumstances” such as significant new evidence.
Decision-makers must nonetheless engage with misconduct outcomes and explain why suspicion remains reasonable, avoiding arbitrary divergence. The judgment implicitly raises the premium on transparent reasoning under the Vetting Code.
The decision supports vetting as an independent safeguarding tool, capable of responding to cumulative intelligence and patterns of concern that may not be justiciable as provable misconduct.

B. Public law significance beyond policing

The Court’s reasoning strengthens a broader administrative law theme: in protective regimes concerned with future risk, decision-makers may legitimately weigh the possibility of truth in unresolved allegations, provided the applicable threshold is met and reasoning is rational and evidence-based. The reliance on R (Pearce) v Parole Board and U3 v Secretary of State for the Home Department points to a cross-context convergence in judicial treatment of precautionary decision-making.

C. Interaction with legislative reform

Although the Police (Vetting) Regulations 2025 post-dated the Administrative Court judgment and were not construed in detail by the Court of Appeal, the decision is likely to influence how “considering a matter” (regulation 4(2)) is understood in practice: namely, that prior consideration under misconduct/performance regimes does not preclude reasonable-suspicion-based vetting conclusions.

4. Complex Concepts Simplified

“Balance of probabilities”: The civil standard of proof: a fact is treated as established if it is more likely than not (over 50%). If not, it is treated as not established. This is suited to deciding whether a past event happened.
“Reasonable grounds for suspicion”: A lower threshold than proof. It asks whether an objective person, with the available information, could reasonably suspect the matter. It can draw on a range of information and intelligence, including material that might not be admissible as evidence in a tribunal.
“No case to answer” (misconduct context): A procedural conclusion that the evidential case is insufficient to justify the matter proceeding to adjudication/being found proved on the balance of probabilities. It does not decide that the alleged conduct definitely did not occur.
Force Vetting vs Misconduct proceedings: Misconduct proceedings are disciplinary and adjudicative (did the officer commit misconduct, proved to a defined standard?). Force vetting is protective and evaluative (is the officer suitable/trustworthy given risks, assessed through reasonable suspicion?).
“Academic” appeal: A case where the result will not practically change the parties’ immediate position. Courts may still decide it in public law where the issue is important and likely to recur (per ex p. Salem).

5. Conclusion

This decision establishes a clear principle for Force Vetting: outcomes in misconduct proceedings—whether “no case to answer” or “not proved”—do not generally deprive vetting decision-makers of the ability to find “reasonable grounds for suspicion” about the same conduct. Vetting is a distinct, risk-based assessment directed to public protection and institutional integrity, not a re-run of disciplinary adjudication under the civil standard of proof.

The Court of Appeal also confirms its willingness, where the public interest demands, to decide “academic” points of public law concerning systemic regimes and recurring questions—particularly where public confidence in policing is at stake.