Factual and Procedural Background
The Plaintiff was appointed as a police constable on 25 July 2022 and was subject to a two-year probationary period under the Police Service of Scotland Regulations 2013. The probation involved completion of a training programme consisting of five modules. On 26 October 2022, an allegation of historical sexual offending was made against the Plaintiff relating to a period when he was a child. The Plaintiff denied the allegation. Subsequently, on 28 October 2022, the Plaintiff was suspended from duties, having completed only the initial training module.
Between October 2022 and August 2023, a criminal investigation was conducted. The Plaintiff was interviewed under caution but was not charged. Crown counsel decided no criminal proceedings should be brought due to lack of corroboration, although the case remained open pending any future evidence.
On 9 February 2024, a notice was served on the Plaintiff indicating consideration of discharge under regulation 9 of the 2013 Regulations. This was accompanied by a Summary of Evidence which referenced Police Scotland's Vetting Manual and assessed the allegation as adverse information potentially impacting the Plaintiff's suitability as a constable.
A hearing before the chief superintendent took place on 27 February 2024, where the Plaintiff made representations denying the allegation. Subsequently, the chief superintendent prepared a report recommending discharge under regulation 9, citing concerns about the operational risks and impracticality of supervision required if the Plaintiff were to continue.
On 27 March 2024, the Defendant, as chief constable, issued a letter discharging the Plaintiff with immediate effect under regulation 9, citing the serious and credible nature of the allegation and its impact on public confidence and operational deployment.
The Plaintiff sought judicial review challenging the decision on various grounds including errors in law, procedural unfairness, lack of evidential basis, irrationality, and failure to comply with regulation 9(2).
Legal Issues Presented
- Whether the Defendant erred in law in applying the correct statutory test under regulation 9(1) of the Police Service of Scotland Regulations 2013.
- Whether the procedure used to discharge the Plaintiff was appropriate and fair, particularly in light of disputed material facts concerning a criminal allegation.
- Whether the Defendant reached a conclusion without a proper evidential basis and whether that conclusion was irrational.
- Whether the Defendant provided adequate and intelligible reasons for the decision to discharge the Plaintiff.
- Whether the Defendant failed to comply with the procedural requirements of regulation 9(2).
Arguments of the Parties
Appellant's Arguments
- The Defendant erred in law by misstating the statutory test under regulation 9(1), effectively placing a burden of proof on the Plaintiff rather than making an evidence-based assessment.
- The procedure was inappropriate and unfair given the disputed material facts involving a serious criminal allegation, and the informality of regulation 9 procedure was insufficient to protect the Plaintiff’s rights.
- The decision was made in absence of a proper evidential basis and was irrational, particularly in treating the mere existence of an allegation as sufficient for discharge without assessing its credibility.
- The reasons given for discharge were inadequate and unintelligible, lacking clarity on how the statutory test was applied and on the assessment of the allegation’s credibility.
- The Defendant failed to comply with regulation 9(2) by not informing the Plaintiff properly of his rights and alternatives under the regulation, a failure conceded by the Defendant.
Respondent's Arguments
- The probationary period under regulation 8 allows assessment of fitness and likelihood of becoming an efficient and well-conducted officer, which is a matter of the Defendant’s discretion based on professional judgment.
- Assessment under regulation 9 can legitimately include external operational considerations, not limited solely to personal characteristics of the probationer.
- No specific procedural requirements exist under regulation 9, and the informality of the procedure is appropriate provided it is fair in all circumstances.
- The Defendant’s decision and reasons were clear and intelligible, and the admitted failure to comply with regulation 9(2) should not automatically invalidate the decision.
- The serious nature of the allegation justified the decision not to deploy the Plaintiff operationally, thereby preventing completion of probation and justifying discharge under regulation 9.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Chief Constable of British Transport Police ex parte Farmer (unreported, 1999) |
Purpose of probation to identify fundamental unsuitability of outlook, temperament or behaviour |
Supported the interpretation of regulation 9’s purpose in assessing the Plaintiff’s suitability |
| C v Chief Constable of Strathclyde Police 2013 SLT 65 |
Informality of regulation 9 procedure is inappropriate where material facts are disputed |
Used to assess fairness requirements in the procedure applied to the Plaintiff |
| R (on the application of Kay) v Chief Constable of Northumbria [2010] ICR 962 |
Requirement of fairness and natural justice in disciplinary procedures involving disputed facts |
Applied to argue the need for procedural fairness in the Plaintiff’s case |
| R (Victor) v Chief Constable of West Mercia Police [2024] ICR 109 and [2024] ICR 161 |
Common law fairness requires assessment procedures allowing challenge of allegations; less protection for probationers than established officers |
Referenced in relation to procedural fairness and evidential requirements in regulation 9 proceedings |
| Chief Constable of Lothian and Borders Police v Lothian & Borders Police Board 2005 SLT 315 |
Permissibility of external evidence to explain reasons where no obligation to give reasons |
Supported the approach to interpreting the Defendant’s decision letter and reasoning |
| Wordie Property Co. Ltd v Secretary of State for Scotland 1984 SLT 345 |
Principles of supervisory jurisdiction including material error of law, irrelevant considerations, and irrationality |
Framework for judicial review applied to the Defendant’s decision |
| R (on the application of Verity) v Chief Constable of North Yorkshire Police [2009] EWHC 1879 (Admin) |
Assessment of deployment risks based on credible allegations |
Used to illustrate logical basis for deployment decisions in cases of credible allegations |
| Barnes v Chief Constable of Thames Valley Police [2024] ICR 161 |
Requirement to consider likelihood of becoming a well-conducted constable as a separate ground under regulation 9 |
Referenced to emphasize the need for separate evidential assessment of future conduct |
| Kulkarni v Milton Keynes Hospitals NHS Trust [2010] ICR 101 |
Protection of natural justice rights even for individuals in training or probationary roles |
Supported the argument that probationers retain procedural fairness rights despite probationary status |
Court's Reasoning and Analysis
The court examined the statutory framework of regulation 9, emphasizing the requirement that a decision to discharge a probationary constable must be based on an evidence-based assessment that the constable is "not likely to become an efficient or well conducted constable." The court noted a critical distinction between the Defendant’s phrasing "I am not satisfied that" and the correct test "I consider that," highlighting that the former suggests a burden of proof improperly placed on the Plaintiff.
The court found that the Defendant’s decision improperly relied on the mere existence of an unproven allegation without a proper evidential assessment of its credibility or its actual impact on the Plaintiff’s fitness and conduct. The chief superintendent’s report and the Defendant’s decision letter were inconsistent and unclear regarding the assessment of the allegation’s credibility, with the Defendant both asserting no assessment was made and that the allegation was credible simply because it was investigated.
The court held that the absence of evidence demonstrating how the Plaintiff would perform operational duties, combined with the speculative conclusion that the Plaintiff could not be deployed without impracticable supervision, lacked a proper evidential foundation. The reasoning was circular, as the Plaintiff was discharged due to an inability to complete probation, but the inability was inferred without concrete evidence.
Regarding procedural fairness, the court emphasized that the informality of regulation 9 procedure does not excuse failure to afford natural justice protections, especially when serious and disputed criminal allegations are involved. The Defendant conceded failure to comply with regulation 9(2), which requires informing the constable of rights and alternatives, a procedural step the court found material and prejudicial.
Applying established principles of judicial review, the court found material errors of law, including misapplication of the statutory test, failure to properly consider relevant evidence, reliance on irrelevant considerations, irrationality, and procedural unfairness. Consequently, the court held that the Defendant’s decision must be reduced.
Holding and Implications
The court REDUCED the Defendant’s decision dated 27 March 2024 to discharge the Plaintiff under regulation 9 of the Police Service of Scotland Regulations 2013.
The direct effect of this ruling is that the Defendant’s decision is quashed, and the Defendant is permitted to revisit the question of discharge on a proper evidential and procedural basis consistent with the court’s guidance. The ruling does not determine the merits of the underlying allegation or the ultimate suitability of the Plaintiff but requires compliance with statutory tests and procedural fairness. No new precedent was established beyond the application of existing supervisory principles to the facts of this case.