Introduction

The case of D v Scottish Court of Session [2023] CSOH 90 addresses significant issues surrounding the procedural aspects of misconduct investigations within police services. The petitioner, a serving police officer referred to as "D," sought a judicial review of Police Scotland's decision to initiate a misconduct investigation following his refusal to undergo a with cause drugs test. The core of the dispute centered on whether the petition was premature and incompetent, thereby questioning the fairness and rationality of the investigatory process initiated by Police Scotland.

Summary of the Judgment

The Scottish Court of Session, presided over by Lady Drumond, adjudicated the petition brought forth by D challenging Police Scotland's procedural actions. The court identified two main issues:

• Whether the petition was premature and incompetent, suggesting that misconduct investigations should proceed before judicial review could be sought.
• If competent, whether the procedural steps undertaken by Police Scotland were unlawful.

After deliberation, the court concluded that the petition was indeed premature and incompetent, as the misconduct investigations had not yet concluded and alternative remedies were still available. Consequently, the court dismissed the petition without addressing the second issue regarding the lawfulness of the misconduct proceedings.

Analysis

Precedents Cited

The judgment extensively referenced several precedents to substantiate the court's decision:

• R (On the application of Redgrave) v Metropolitan Police Commissioner [2002] EWHC 1074 (Admin): Established that judicial review can intervene to prevent manipulation of disciplinary processes if no effective remedy exists.
• R (On the application of Wilkinson v Chief Constable of West Yorkshire Police) [2002] EWHC 2353 (Admin): Reinforced the necessity of exhausting disciplinary remedies before seeking judicial review.
• BC v The Chief Constable of the Police Service of Scotland & Others 2018 SLT 1275: Illustrated circumstances where judicial review was permissible despite available disciplinary remedies due to the ineffectiveness of those remedies.
• Other significant cases include Salha v GMC [2003] UK PC 80, Strouhos v London Underground [2004] EWCA Civ 402, and Yassin v GMC [2015] EWHC 2955 (Admin), which delve into the requirements for fair notice and specificity in misconduct allegations.

These precedents collectively influenced the court's determination that D should first undergo the established misconduct procedures before seeking judicial intervention.

Legal Reasoning

The court's legal reasoning hinged on two foundational principles: the concepts of prematurity and competence within the context of judicial review.

• Prematurity: Judicial review is intended as a supervisory mechanism, employed only when no effective alternative remedies exist. Since D was still within the investigatory phase of the misconduct process, and no final determination had been made against him, the petition was deemed premature.
• Competence: For a petition to be competent, it must be possible to consider it objectively and impartially. As D had not yet exhausted internal disciplinary remedies, the court found the petition incompetent.

Furthermore, the court assessed the arguments regarding the adequacy of the initial notice under Regulation 11, but found that since the petition was premature, it was inappropriate to evaluate these substantive claims at this stage.

Impact

This judgment reinforces the procedural hierarchy within disciplinary processes in law enforcement agencies. By emphasizing the necessity of exhausting internal remedies before seeking judicial review, the court upholds the integrity and efficacy of established disciplinary frameworks.

Future cases involving misconduct investigations by police officers will likely follow this precedent, ensuring that judicial oversight remains a secondary recourse reserved for instances where internal mechanisms fail to provide adequate remedies. Consequently, this decision may streamline judicial processes by discouraging premature legal challenges that could otherwise inundate the courts.

Complex Concepts Simplified

The judgment utilizes several intricate legal concepts, which can be demystified as follows:

• Judicial Review: A process where courts examine the legality and fairness of decisions made by public bodies. It ensures that such bodies act within their legal authority and adhere to principles of natural justice.
• Premature and Incompetent Petition: A legal claim is considered premature if the proper internal remedies have not been pursued or concluded. It is deemed incompetent when it does not meet the necessary legal requirements to be heard.
• With Cause Drugs Test: A drug test mandated on an officer based on reasonable suspicion or evidence suggesting drug misuse, as per procedures outlined in the Police Service of Scotland (Conduct) Regulations 2014.
• Regulation 11 and 12: Specific provisions within the Police Service of Scotland regulations that govern the initiation of misconduct investigations and the procedural requirements for notifying and interviewing officers involved.
• Article 8 of the European Convention on Human Rights: Protects an individual's right to respect for private and family life, which can be lawfully interfered with under specific, justified circumstances.

Understanding these concepts is crucial for comprehending the procedural dynamics and legal standards applied in this case.

Conclusion

The decision in D v Scottish Court of Session [2023] CSOH 90 underscores the judiciary's role in maintaining the procedural integrity of internal disciplinary processes within police services. By declaring the petition premature and incompetent, the court affirmed that internal mechanisms must first be exhausted before seeking external judicial intervention. This upholds the principle of subsidiarity in legal remedies, ensuring that specialized tribunals handle disciplinary matters unless significant procedural injustices preclude their effectiveness.

The judgment serves as a pivotal reference for future cases, delineating the boundaries of judicial review in the context of police misconduct investigations. It reinforces the necessity for individuals to engage fully with internal processes and exhaust all available remedies prior to appealing to the courts, thereby promoting efficiency and respect for established disciplinary frameworks.