PETITION OF R AND OTHERS FOR JUDCIAL REVIEW AGAINST CHIEF CONSTABLE OF THE POLICE SERVICE OF SCOTLAND AND OTHERS

Factual and Procedural Background

The petitioners are serving police officers subject to misconduct proceedings under the Police Service of Scotland (Conduct) Regulations 2014 ("the 2014 Regulations"). The proceedings arise from allegations concerning their roles in events leading to the murder of a Mr. McGettigan. The deceased had handed in a handbag found on a canal path, which led to suspicions and subsequent criminal trials involving family members. An Investigating Officer (IO) appointed post-criminal proceedings concluded in April 2020 that each petitioner had a case to answer. Following this, procedural discussions took place about how misconduct hearings should be conducted, including whether to hold joint or separate hearings. The decision challenged in this petition was made by an Assistant Chief Constable ("ACC Speirs") in mid-2020 to hold separate misconduct hearings for each petitioner, each with a separate chairperson. The petitioners seek judicial review of this procedural decision.

Legal Issues Presented

1. Whether the decision to hold separate misconduct hearings for the petitioners was procedurally fair.
2. Whether the decision was rational, having regard to relevant considerations and the petitioners' actual position.
3. Whether adequate reasons were provided for departing from the published Guidance which normally favours joint hearings.
4. Whether the petitioners had an effective alternative remedy to challenge the procedural decision other than judicial review.

Arguments of the Parties

Petitioners' Arguments

• Procedural Fairness: The petitioners argued that the decision to hold separate hearings was unfair. They relied on established principles of fairness in administrative law, emphasizing the serious consequences for their careers. They contended that analogous matters should normally be tried together to avoid duplication, inconsistent decisions, and prejudice.
• Guidance and Legitimate Expectation: The petitioners submitted that the published Guidance on the 2014 Regulations created a legitimate expectation of joint hearings in circumstances like theirs. The departure from this norm was unjustified and procedurally unfair.
• Authority and Representation: They argued that the so-called "agreement in principle" reached between a police federation official and a professional standards officer was not binding, as the official lacked authority to represent or bind the petitioners on procedural matters.
• Rationality: The decision was irrational because it was based on a mistaken belief about the petitioners' position on separate hearings, relying on an irrelevant consideration.
• Reasons: The reasons given for separate hearings—representation by the federation official, impact on the deceased’s family, and need to avoid delay—were inadequate and misconceived.
• Alternative Remedy: The petitioners contended that no effective alternative remedy existed, as appeals against procedural decisions are only available after misconduct determinations, making judicial review necessary and not premature.

Respondents' Arguments

• The respondents submitted that the decision to hold separate hearings was within the discretion of the Deputy Chief Constable, delegated to ACC Speirs, and was appropriate given the differing nature of the allegations against each petitioner.
• They emphasized that while the investigation involved a single IO, the misconduct allegations were distinct and not a joint course of conduct, justifying separate hearings.
• Concerns expressed by the police federation official about a single chairperson were properly taken into account and shared by professional standards officers, supporting the decision for separate hearings to avoid unfairness and potential blame-shifting among officers.
• The respondents argued that the petitioners’ procedural fairness challenge was vague and lacked specific evidence of prejudice, and that the risk of "taint" in a single hearing was a legitimate consideration.
• They maintained that the petitioners’ challenge was premature, as the regulations provide for procedural applications during hearings, including the possibility of conjoining hearings, which should be pursued before judicial review.
• The respondents disputed that the Guidance created a binding legitimate expectation, noting its qualified language and the need to consider each case on its facts.
• They contended the decision was rational, reasoned, and made with proper regard to fairness and efficiency, and that no error in law or procedure had been demonstrated.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by identifying the precise decision under challenge: the appointment of separate misconduct hearings and chairs by ACC Speirs in mid-August 2020, following preliminary discussions between professional standards and police federation representatives that were not binding decisions. It was emphasized that these discussions occurred before any formal decision to hold misconduct hearings was made and that neither party had authority to bind the petitioners on procedural matters.

The court accepted the general principle that parties charged on the same factual background should normally be tried together, as reflected in criminal law and the respondents' own Guidance. The Guidance creates a legitimate expectation that joint hearings will be held unless there is a clear and rational justification for departure. The court found that the decision to depart from this norm was primarily based on an erroneous understanding that the petitioners opposed a joint hearing, relying on a mistaken representation by a police federation official lacking authority.

The court concluded that the decision was procedurally unfair because it was founded on inaccurate information and a misunderstanding of who could represent the petitioners. The reasons given for the departure from the Guidance were found to be inadequate and misconceived, particularly the purported impact on the deceased's family and the suggestion that separate hearings would reduce delay.

On rationality, the court held that the decision maker took into account an irrelevant consideration—an erroneous belief as to the petitioners' stance—and failed to properly apply the Guidance. The decision was therefore irrational.

Regarding alternative remedies, the court found that the 2014 Regulations did not provide an effective mechanism to challenge procedural decisions before misconduct determinations, and that requests to conjoin hearings during separate proceedings would be unworkable and could lead to inconsistent outcomes. Consequently, judicial review was appropriate and not premature.

Overall, the court found the procedural flaw significant enough to cause a real risk of substantive unfairness given the serious consequences for the petitioners and the risk of inconsistent findings by separate hearing chairs.

Holding and Implications

The court ACCEDED TO THE PETITIONERS' MOTION and granted declaratory and reduction orders quashing the decision to hold separate misconduct hearings and appoint separate chairs. The court did not grant other orders sought.

The decision directly affects the parties by requiring reconsideration of the procedural arrangement for the misconduct hearings in accordance with proper legal principles and the published Guidance. The court acknowledged the respondents' concerns about potential wider procedural implications but emphasized that the errors in this case arose from a lack of clarity about decision-making authority and the distinction between personal views and binding representations. No new precedent was established beyond the application of established principles to the facts of this case.