The claimant, a serving police officer, was the subject of allegations of domestic violence and abuse against his wife and children. A police commander subsequently decided that, whilst suspension from duty pursuant to regulation 11 of the Police (Conduct) Regulations 2020 would not be appropriate or proportionate, the nature of the allegations made it necessary to place the claimant on restricted duties in a non-public-facing role subject to a number of restrictions, including that he have no direct or indirect contact with his wife. That restriction was reviewed on four occasions but remained in place. By the time of the last review, the Crown Prosecution Service had decided not to take any further action in respect of the criminal allegations, but the police misconduct investigation was still ongoing. The claimant sought judicial review against the defendant chief constable, challenging the lawfulness of the contact restriction on the bases that: (1) on the assumption that it had been made pursuant to a power in regulation 11, it was unlawful as that regulation did not include any power to restrict an officer’s private life; (2) the restriction was also unlawful if made pursuant to regulation 6(2) of the Police Regulations 2003; and (3) the restriction was ultra vires section 4(3) of the Police Reform and Social Responsibility Act 2011. The claimant also contended that the contact restriction was an unlawful interference with his rights under article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The judge found that, while the prohibition had indeed been purportedly made under regulation 11, which did not confer such a power, and that that was a material error of law which vitiated the decisions made, as well as rendering them not made in accordance with the law under article 8, the prohibition could lawfully have been imposed under regulation 6 of the 2003 Regulations, read together with section 4(3) of the 2011 Act. She therefore refused relief under section 31(2A) of the Senior Courts Act 1981. The claimant appealed.
On the appeal—
Held, appeal dismissed. Regulation 6(2) of the Police Regulations 2003 permitted the local policing body or chief officer to impose three categories of restrictions on private life, namely “those designed to secure the proper exercise of the functions of a constable”, those “such as may temporarily be necessary” (which had to be reported forthwith to the Secretary of State), and those “such as may be approved by the Secretary of State after consultation with the Police Advisory Board for England and Wales”. The purpose of regulation 6(2) was not to confer a power to restrict police officers’ private lives, but to limit the scope of that power. To the extent that an instruction given by a chief officer, whether generally or to an individual, restricted an officer’s private life, it was only lawful if it fell into one of those three categories. A police officer facing disciplinary proceedings, though not expected to be impartial in his own case, remained under a duty to act with integrity and to behave in a manner which did not discredit the police service or undermine public confidence in it. Accordingly, compliance with those standards of professional behaviour was an essential element of the claimant’s proper exercise of his functions as a constable and the prohibition on contacting witnesses was “designed to ensure that he exercised his functions properly within the disciplinary proceedings” within the meaning of regulation 6(2). On the facts the restriction was proportional under article 8(2) of the Human Rights Convention, and whether or not it fell within the heading of “the prevention of disorder or crime” was a matter of debate, but it was properly imposed for the “protection of the rights and freedoms of others”, namely the complainant (paras 45, 48, 49, 51, 53–55, 57, 58, 59).
Per curiam. (i) There is no express or implied power in either the Police (Conduct) Regulations 2020 or the Police (Complaints and Misconduct) Regulations 2020 to restrict an officer’s contact with witnesses during the course of a disciplinary investigation or during misconduct proceedings. The source of the general power is perhaps a combination of the Commissioner’s power of direction and control of his force under section 4(3) of the 2011 Act (and the identical power of other chief constables in England and Wales under section 2(3) of the same Act) and the obligation of police officers to observe the standards of professional behaviour set out in Schedule 2 to the Police (Conduct) Regulations 2020, and the right and duty of chief officers to enforce such standards. Where the restriction on contacting witnesses has no impact on the officer’s private life, the power exists (paras 41–42, 58, 59).
(ii) It is now generally recognised that complainants alleging domestic abuse are often subjected to pressure to withdraw the complaint. Such pressure comes in many forms: sometimes overt, sometimes more subtle. In the court system the precautions which may be taken to protect complainants from this pressure include conditions of bail in criminal cases , or the terms of injunctions against harassment or non-molestation orders in the family court. It is entirely appropriate that in a case such as the present the power of a chief officer to prohibit contact with a witness in police disciplinary proceeding should be used for the same protective purpose (para 56, 58, 59).
Kevin Baumber (instructed by Hempsons LLP) for the claimant.
Stephen Morley (instructed by Director of Legal Services, Metropolitan Police) for the commissioner.