On 11 February 2025, the High Court upheld the judicial review challenge by a serving police officer (D) against the decision of the Metropolitan Police Service (MPS) to remove his vetting clearance on review and then refer him to a third stage meeting under the Police Performance Regulations 2020 (the Performance Regulations) to decide whether he should be dismissed for gross incompetence (for the full judgment click here). 

Background 

The robust vetting of police officers is a hot topic due to the focus on vetting failings in the Casey Review, The Angiolini Inquiry and a 2022 HMICFRS report. In response to these findings, the ‘vetting test’ in the College of Policing’s national guidance has been/is being revised (the ‘Vetting Code of Practice’ was revised in July 2023 and it is currently consulting on a revised version of its ‘Authorised Professional Practice: Vetting’ document). Police forces have relied on this guidance to undertake a wholesale review of the vetting clearance of officers about whom ‘adverse information’ has come to light, and then, if their clearance is removed on the basis that this adverse information means they pose a risk to public safety and confidence, dismissing them due to their lack of clearance.  

However, it is important to note that there is not – at present – a specific statutory requirement for police officers to hold vetting clearance, so the legality of the decisions to dismiss officers on this basis is under scrutiny.  

The facts of this case 

In this particular case, D was the subject of a number of allegations between 2019 and 2022 of sexual misconduct, inappropriate behaviour against his female colleagues and threatening his ex-partner. D denied all the allegations. The investigations that were carried out concluded that there was insufficient evidence against D and therefore, no case to answer.  

In 2023, a decision was taken on review to withdraw D’s vetting clearance due to a pattern of behaviour that raised concerns about the risk he posed to women. D’s appeal against this decision was rejected. On 1 March 2024, D was referred to a third stage meeting under the Performance Regulations to determine the allegation of gross incompetence on the grounds that D could not perform his duties as a police officer without vetting clearance. A decision to dismiss was then inevitable because the third stage panel did not have any power to re-open or review the vetting decision and therefore the allegation of gross incompetence could not be investigated. 

Before the third stage meeting took place, D, supported by the Police Federation, sought a judicial review of the legality of the MPS’s decisions on five grounds. 

The High Court’s decision 

Mrs Justice Lang upheld D’s case that the MPS’s vetting decisions were unlawful on four of the five grounds: 

• Ground 1: The withdrawal of vetting is not a lawful basis for dismissal. 

The police has no power to dismiss an officer who does not have vetting clearance. “The Secretary of State has not yet made regulations for dismissal by reason of withdrawal of vetting clearance. Nor is there any statutory provision to the effect that vetting clearance is a legal pre-requisite to hold the office of police constable.”  

• Ground 2: The vetting regime does not comply with Article 6 of the European Convention on Human Rights [right to a fair hearing] 

Article 6 is engaged by vetting reviews. 

The vetting regime needs additional procedural safeguards to protect that right (including ensuring the officer understands the details of the concerns and has a ‘right of reply’, holding a hearing, allowing the officer to be represented and to call witnesses and cross-examine complainants). 

In this case, D’s “Article 6 rights were breached by the failure to consider and determine whether he should be afforded the opportunity to call witnesses or cross-examine complainants, and by not giving him the opportunity to be legally represented.” 

• Ground 3:A vetting dismissal for misconduct, to the exclusion and frustration of the statutory scheme under the Police (Conduct) Regulations 2020, is unlawful. 

“The determination in the misconduct proceedings should be respected and accorded primacy. So, in this case, the vetting officers should have made their assessment on the basis that, in the light of the findings of no case to answer […] those allegations should be disregarded. That was not the approach adopted by the vetting officers in this case. 

In a case where a vetting officer alights upon evidence of misconduct which was not considered or determined in the misconduct proceedings, I consider that the appropriate course will usually be to pause the vetting process and refer the new allegation for consideration by the appropriate authority, to determine whether misconduct proceedings should be instigated.” 

• Ground 4 (a): A vetting dismissal for gross negligence under the Performance Regulations is unlawful, as withdrawal of vetting is outside their scope  

“Applying the clear and natural meaning of the language used, in their statutory context, the terms “performance or attendance” and “gross incompetence”, as defined, clearly relate only to an officer’s competence, and his performance of his duties. They do not include circumstances where an officer is able and willing to perform his duties, but is prevented from doing so because his vetting has been withdrawn.” 

• Ground 4 (b):A vetting dismissal for gross negligence under the Performance Regulations is unlawful, as it frustrates their operation by stripping them of their content and efficacy, including procedural safeguards, depriving the officer of any meaningful opportunity to challenge the allegation of gross incompetence. 

“In my judgment, it is clear that the procedure under regulation 32 of the Performance Regulations has been adopted as a mechanism to overcome the absence of any lawful statutory procedure for a vetting dismissal. However, I do not consider that it is fit for purpose. As the panel has no power to re-open the vetting decision, the process deprives the officer of any meaningful opportunity to challenge a finding of gross incompetence. The panel merely confirms a decision that has already been made, by an internal vetting regime which is not Article 6 compliant.” 

In light of the conclusions made in relation to Grounds 1 to 4, the MPS’s vetting decisions in relation to D will be quashed and have to be re-considered. As a result, no findings were made in relation to Ground 5 – that the decision to withdraw D’s vetting was irrational. The quashing order is now awaited. 

What to take away 

This judgment has identified a clear gap in the law that has significant implications for all police forces in their efforts to address culture following the conclusions and recommendations of the Casey Review.  

The MPS has already indicated that it intends to appeal this decision, but, even if it does, any quashing order issued by the court in respect of D’s case will remain effective until an appeal has been decided.  

Although the quashing order is limited to the decisions made in D’s case, the court’s findings in this judgment are clear; police forces cannot lawfully dismiss an officer just because they lack vetting clearance. This ‘anomaly’ in the law can only be addressed by regulations. Draft regulations were issued for consultation by the Secretary of State on 15 January 2025 (the first day of the hearing in this case) and the MPS Commissioner has called on the government “to introduce new regulations as a matter of extreme urgency”. However, it is not clear when or if any regulations might be made, and if so, whether they would apply retrospectively.  

We recommend that police forces audit all ongoing vetting reviews and decisions that have been made, with the benefit of specialist legal advice, to identify any cases that may be at risk of challenge (by way of judicial review or otherwise), take the necessary steps to address any issues identified and minimise risk.   

How Capsticks can help 

Capsticks advise police forces on all aspects of misconduct proceedings including severity assessments, disclosure and the preparation and presentation of cases at Accelerated Misconduct Hearings, Misconduct hearings and at the Police Appeals Tribunal. We also represent clients in judicial review proceedings against panel decisions.  

We are experts in advising police clients on interpreting and implementing officer terms and conditions contained within the Police Regulations and supporting forces to manage the performance and attendance of officers and staff. We have significant experience in supporting employers to prevent discrimination and harassment, including drafting equality and diversity policies, codes of conduct and delivering training to employees at all levels. We also help organisations deal with any complaints that may arise by conducting investigations, supporting decision-makers and HR, and defending any employment tribunal claims. 

If you would like access to advice, and training or need further guidance on police misconduct and performance or judicial review, please contact Anna Semprini, Sophie Sharpe or Paul McFarlane.