Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2013] CSOH 65
P1193/12	OPINION OF LORD DRUMMOND YOUNG in the petition of M C Petitioner; for Judicial review of a decision taken by the Chief Constable of Strathclyde Police intimated by letter dated 19 July 2012 to discharge the petitioner from Strathclyde Police in terms of regulation 13 of the Police (Scotland) Regulations 2004 ________________

Petitioner: Ferguson QC, Watts; Balfour & Manson LLP

Respondent: Dunlop QC, Pugh; Simpson & Marwick

26 April 2013

[1] The petitioner was a probationary constable with Strathclyde Police. He now seeks judicial review of a decision of the Chief Constable of Strathclyde Police (hereinafter referred to as "the respondent") intimated by letter dated 19 July 2012 to discharge him from the force.

Facts
[2] The facts relied on by the petitioner are as follows. He joined Strathclyde Police on 10 November 2008 as a probationary constable, and was subsequently discharged from the force by the letter of 19 July 2012 already referred to. On Saturday 14 August 2010 the petitioner spent the evening socializing with a group of friends in Dumbarton; this occurred at a party hosted by one of his friends. Later that evening he was accompanied to his home address by a woman was referred to in the petition as "R". The petitioner and R had sexual intercourse. I was informed that R took a taxi home, and that she and the petitioner were of similar age. R subsequently attended at a police station and made an allegation of rape against the petitioner. She also stated that she had been encouraged to drink alcohol by the pursuer, to such an extent that she was incapable of any movement and was unable to resist his sexual advances. The petitioner contends, and always has contended, that the sexual intercourse was consensual and that he is innocent of any crime.

[3] On 15 August 2010 the petitioner was detained in connection with the allegation of rape and taken to Maryhill Police Office. He was advised by his solicitor to make no comment in respect of the allegations, and he followed that advice. He was then arrested for rape and indecent assault, but was released from custody the following morning. He made no appearance in court in connection with the allegations made by R and he was never charged with rape, indecent assault or any other crime. On 28 February 2011 the petitioner was formally notified by the procurator fiscal that no action would be taken against him in relation to the allegation made by R.

[4] In about January 2011, as investigations proceeded into R's complaint, a second woman, referred to in the petition as "D", approached the respondent and indicated that she wanted to make a statement about the petitioner. D is a friend of R. She advised the police that she had come forward as a result of having had discussions with R about the allegations that the latter had made against the petitioner. D did not make any allegation of assault or any other kind of criminal conduct on the part of the petitioner. She advised the respondent that she had attended the petitioner's flat one evening and that they had spent some time there alone together. She stated that the petitioner had encouraged her to drink alcohol. The petitioner had made sexual advances towards her, but she had indicated that she did not wish to have sexual intercourse with him, and he had called her a taxi. She had then left. She later advised the respondent that she had felt pressurized while at the petitioner's house.

[5] The petitioner asked for copies of witness statements provided by R and D, but the respondent refused to provide such copies. The petitioner avers that there is a significant and material factual dispute about the statements made by R and D. The petitioner does not accept that the allegations of wrongdoing advanced against him are well founded. He denies the allegation of rape made by R. R and D both alleged that they were pressured by the petitioner to have other forms of sexual activity, but the petitioner denies this. R and D allege that they were inappropriately encouraged to consume excessive amounts of alcohol by the petitioner, and that the petitioner encouraged them to drink by holding glasses of alcohol to their mouths. The petitioner denies both of those allegations.

[6] The petitioner avers that, prior to his discharge from Strathclyde Police, the respondent was aware that there was a significant and material factual dispute about the statements made by R and D. The petitioner provided a briefing paper to the respondent dated 25 May 2012 in which, over 34 pages, he provided a detailed response to the allegations advanced against him. That document, it is said, clearly identified that there was a significant and material dispute as to the facts of the allegations advanced against the petitioner. Apart from the allegations advanced by R and D, no concerns had been raised about the petitioner's conduct or performance while employed by the respondent.

[7] On the basis of the information provided by R and D, the petitioner was discharged from Strathclyde Police on the ground that he was not likely to become an efficient or well conducted constable in terms of regulation 13 of the Police (Scotland) Regulations 2004. That decision was intimated on 19 July 2012.

The relevant legislation
[8] The petitioner was discharged under the power contained in regulation 13 of the Police (Scotland) Regulations 2004 (2004 No. 257). So far as material, regulation 13 is in the following terms:

"Discharge of probationer

(1) Subject to the provisions of this regulation, during a constable's period of probation in the force the services of that constable may be dispensed with at any time by written notice given by the chief constable if the chief constable considers that that constable is not fitted, physically or mentally, to perform the duties of office of constable, or that that constable is not likely to become an efficient or well conducted constable".

That provision applies only to probationary constables. Regulation 13 does not specify any procedure that must be followed in deciding whether to discharge a probationer, although the provision is clearly subject to the general legal controls that apply to administrative action. Three of these are potentially relevant. First, the decision reached by the chief constable must not be unreasonable, in the sense that no reasonable person in his position could have reached the same decision. Secondly, the requirements of natural justice apply; the chief constable must act fairly. Thirdly, Standard Operating Procedures for probationary constables have been issued by Strathclyde Police. These include, at section 23, detailed requirements relating to the exercise of the regulation 13 process.

[9] In the case of a constable who is beyond the probationary stage, dismissal for misconduct is governed by the Police (Conduct) (Scotland) Regulations 1996: see regulation 2. For the purposes of the 1996 Regulations, "misconduct" is defined in paragraph 1 of Schedule 1 as "Conduct likely to bring discredit on the police force or service, including... (g) disorderly conduct; or (h) acting towards, or treating, any person in an oppressive or improper manner". When an allegation of misconduct is made, the investigation is regulated in some detail by the 1996 Regulations. Regulation 5 requires that the assistant chief constable should prepare and maintain investigation procedures. These include the appointment of an investigating officer (regulation 5(1)), who must cause an investigation form to be prepared; this must contain a statement of the report, allegation or complaint against the constable. The investigating officer must send a copy of that form to the constable (regulation 5(7)). The investigating officer is then, after due investigation, to submit a report on the allegation of misconduct to the assistant chief constable (regulation 6(1)). The assistant chief constable must then decide whether or not the constable should be required to appear before a misconduct hearing (regulation 6(2)). If he does so decide, and is of opinion that following the hearing it should be possible to dismiss the constable from the force, notice of that opinion must be given to the constable (regulation 6(5)). The constable is then required to give notice to the assistant chief constable of his intentions regarding the hearing (regulation 9). He may be represented at the hearing (regulation 12). The hearing is governed by express procedures (regulations 13-16). These envisage that evidence will be led about the allegations of misconduct and that the officer's representatives will be entitled to cross-examine witnesses and lead witnesses on his behalf; the leading of evidence and cross-examination are clearly important features of the misconduct procedure. Provision is then made for findings in respect of the misconduct and disposal by, inter alia, dismissal from the force (regulations 17 and 18). Following the hearing, the constable has a right of appeal to the chief constable (regulation 20).

The submission for the petitioner
[10] The fundamental contention for the petitioner is that the investigation of the complaint against him should have been dealt with under the Police (Conduct) (Scotland) Regulations 1996, with their attendant procedural safeguards, rather than under regulation 13 of the Police (Scotland) Regulations 2004. Counsel submitted that what was involved was essentially a conduct complaint; the allegation was that the petitioner was guilty of misconduct. In such a case, where misconduct proceedings are not pursued and where the relevant facts of the alleged conduct remain in dispute, it was submitted that it is irrational and unfair to the petitioner to discharge him using the simpler procedures of regulation 13. It was equally unfair and irrational to use regulation 13 in a case where misconduct proceedings had not been instituted because they were bound to fail, if the facts remained in dispute. The fact that misconduct proceedings under the 1996 Regulations were not open to the respondent because of a lack of evidence did not make it "fair" to use the regulation 13 procedure.

The procedures followed by the respondent
[11] Initially the respondent proceeded under the Conduct Regulations. An investigation form under regulation 5(7) of those regulations listing three allegations against the petitioner was in fact served on him on 4 April 2011. The complaint was investigated by a Chief Inspector Craig, who on 28 June 2011 prepared a briefing note for the deputy chief constable who was acting on behalf of the assistant chief constable. This narrated that the complainer, R, had declined to provide a statement in respect of the misconduct investigation. Likewise, the complainer's mother, who was the first person to whom the complainer had spoken after the incident, had declined to provide a statement. The medical evidence was consistent with the incident's being consensual; the alcoholic drink taken by the complainer was merely alcohol, with no other incapacitting substances; and the taxi driver who took the complainer home had not noted any apparent distress. The conclusion expressed by Chief Inspector Craig began by noting that the allegations were very serious and had been made consistently by the complainer on a number of occasions. Nevertheless, the complainer's engagement with the misconduct process was crucial towards proving the allegations and her failure to do so was "catastrophic" to the investigation. In the light of that background and the similar reluctance of the complainer's mother to provide a statement, Chief Inspector Craig expressed the view that the allegation could not be proven on the balance of probabilities. He continued, however, by stating that concerns existed regarding the petitioner's conduct, particularly in the light of the previous incident involving D, which involved a similar modus operandi. On that basis, he submitted that the petitioner should receive strong and carefully worded corrective advice in connection with the matters raised. The deputy chief constable on 6 July 2011 agreed that corrective advice should be issued.

[12] On 8 August 2011 the petitioner attended a meeting with senior officers, at which he was formally notified in accordance with regulation 6(3) of the Conduct Regulations that no misconduct proceedings would take place. He was presented with an "Advice and Direction report", which he was asked to sign. He initially refused to do so on the basis that he thought it was one-sided; in particular, the evidence narrated in Chief Inspector Craig's report that supported the petitioner's contention that the incident was consensual was omitted. Eventually, however, the petitioner signed the document on the basis that he was acknowledging its receipt and was not indicating agreement to its contents. In this way he was given corrective advice. He was not permitted to retain a copy of the document, and he avers that he was advised that the matter was closed. He returned to full operational duties.

[13] The complaint was taken further, however, under regulation 13 of the 2004 Regulations. On 18 May 2012 Inspector Janice Barr prepared a briefing note for the Director of Human Resources. In this she noted that there appeared to be no adverse issues in respect of the petitioner's performance while he was deployed operationally. The history of the complaints against the petitioner was then narrated, and it was stated that the matter would now be considered in terms of regulation 13 of the 2004 Regulations. The statements obtained from R and D were then summarized; this included reference to the petitioner's having encouraged them both to drink alcoholic shots and holding a glass to their mouths. It was stated that both witnesses could properly be regarded as vulnerable while in the petitioner's flat at the time when he made sexual advances to each of them. The briefing note further stated that each witness indicated to the petitioner that his advances were not welcome but that he had persisted with them for some time thereafter. The report concluded by stating that, taken together, the incidents were suggestive of planning and a conscious attempt to exploit the vulnerabilities of others; this suggested a possible defect in the petitioner's character and judgment. It was stated that the petitioner's account and explanation for his behaviour had yet to be made known. Nevertheless, the writer continued, the petitioner had "failed to display conduct becoming of a police constable on two occasions and [had] failed to adhere to the appropriate standards". On that basis, it was recommended that the petitioner should be considered by the respondent for discharge in terms of regulation 13 of the 2004 Regulations.

[14] On the same date, 18 May 2012, the Director of Human Resources sent the petitioner a notice of intention to discharge him under regulation 13. A disciplinary hearing in front of Assistant Chief Constable Ruairidh Nicolson took place on 12 June 2012. The petitioner was present, accompanied by a representative of the Scottish Police Federation. He had prepared a lengthy written response to the allegations against him, which was available to Assistant Chief Constable Nicolson. The hearing was adjourned to 10 July 2012. At the adjourned hearing Assistant Chief Constable Nicolson explained that his decision had to balance the petitioner's rights, the requirements of Strathclyde Police and the expectations of the public. After taking those into account, he would recommend to the respondent that the petitioner should be discharged. On the basis of the overall circumstances and information he did not believe that the petitioner had the required qualities to be an efficient and well conducted police constable. On 13 July Assistant Chief Constable Nicolson submitted a briefing note to the respondent in which he recommended that the petitioner should be discharged in terms of regulation 13; I consider the terms of this recommendation below at paragraph [29]. On 18 July the petitioner made a further response to the recommendation to dispense with his services under regulation 13. Nevertheless, on 19 July the petitioner was informed that the respondent fully supported Assistant Chief Constable Nicholson's view, and that the petitioner would be discharged from his appointment as a probationary constable in terms of regulation 13.

The petitioner's criticism of the respondent's procedures
[15] The petitioner's fundamental criticism is as set out in paragraph [10] above. The reasons given for the petitioner's discharge had not been admitted by him, had not been formally proved, and remained in dispute. The briefing notes emphasized the petitioner's giving alcohol to the two vulnerable complainers rather than the sexual acts, and contained no mention of the allegation that R had been raped. Nevertheless, the allegations amounted to misconduct as dealt with under the Conduct Regulations. Their character was not affected by the fact that no misconduct proceedings had taken place. The allegations as to the sexual liaison spoken to by R were disputed. In addition, the petitioner disputed the accounts of R and D as to the amount of alcohol that they had consumed and the allegations that they had made about the way the alcohol was administered to them. He also disputed that they were incapacitated by alcohol.

[16] Counsel for the petitioner emphasized the level of protection that was available under the Conduct Regulations and its absence from regulation 13. He submitted that those protections were important if the facts were in dispute. If the respondent had in considering regulation 13 held a hearing similar to that required under the Conduct Regulations, there would have been no complaint. He had not done so, however. His decision to proceed under regulation 13, without protections equivalent to those available under the Conduct Regulations, was open to challenge on three grounds. First, it was unreasonable, in the sense that no reasonable person in the position of the respondent could have considered discharge of the petitioner under regulation 13 without a hearing embodying the procedures and safeguards found in the Conduct Regulations: reference was made to Council of Civil Service Unions v Minister for the Civil Service, [1985] AC 374; and Associated Provincial Picture Houses Ltd v Wednesbury Corporation, [1948] 1 KB 223. Secondly, the procedure is followed were unfair to the petitioner: reference was made to R v Home Secretary, ex p Doody, [1994] 2 AC 531, at 560D per Lord Mustill; and Barrs v British Wool Marketing Board, 1957 SC 72, at 82-83 per LP Clyde. Thirdly, it was recognized by section 23.6 of the Standard Operating Procedures issued by Strathclyde Police that the power to discharge a probationary constable should only be exercised after due consideration and determination of the facts presented; in this connection it was necessary to have regard to the principles of natural justice. In the present case, the problem was that the principal complainer, R, was unwilling to co-operate, and would not open herself to challenge. Testing credibility and reliability as a paper exercise, however, was generally regarded as unsatisfactory: Thomas v Thomas, 1947 SC (HL) 45, at 59 per Lord Macmillan.

[17] The petitioner's complaint was accordingly that it was unfair to dismiss him using the regulation 13 procedure because there was a dispute on the relevant facts and the conduct alleged against him amounted to misconduct. In that situation findings of primary fact were critical. In the present case, however they had not been the subject of any determination. Reference was made to a number of English decisions: R (Kay) v Chief Constable of Northumbria Police, [2010] ICR 962; R v Chief Constable of the West Midlands Police, ex p Carroll (1994) 7 Admin L R 45; R (Khan) v Chief Constable of Lancashire Police, [2009] EWHC 472 (Admin); and R v Chief Constable of British Transport Police, ex p Farmer, 1999 WL 1142693. In all the circumstances, for the procedures followed to be fair and reasonable in the Wednesbury sense, there had to be a hearing equivalent to that prescribed under the Conduct Regulations. The complaint against the petitioner amount to misconduct, but there had been no misconduct hearing and no finding of misconduct.

Submissions for the respondent
[18] For the respondent it was submitted that the procedure followed in the present case met the standards of fairness and Wednesbury reasonableness. By the time that the respondent decided to make use of the regulation 13 procedure, the possibility of a misconduct hearing had passed, but that did not in any way elide his duty, or at least entitlement, to consider the petitioner's fitness under regulation 13. Furthermore, in arriving at a decision under regulation 13, the respondent had been careful not to decide the charges of sexual misconduct; his decision rather proceeded on the basis of inferences legitimately drawn from facts that were not controversial. The fact that allegations of misconduct had been made did not give rise to any absolute prohibition on the use of the regulation 13 procedure; that was clear from the decisions in Carroll, supra at page 54, and Farmer, at page 8. Under the Scottish legislation, which differs in this respect from the corresponding English legislation, the regulation 13 procedure is under the control of the chief constable, whereas the investigation of allegations of misconduct is under the charge of an assistant chief constable. Thus the two procedures were quite distinct both conceptually and in practice; the chief constable's discretion under regulation 13 cannot be constrained by an earlier decision made in respect of alleged misconduct.

[19] Counsel further submitted that in the circumstances of the present case it was not unfair to make use of the standard regulation 13 procedures, without a hearing involving evidence and cross-examination as required under the Conduct Regulations. What is fair in a particular case depends on the circumstances: R v Home Secretary, ex p Doody, supra, at 560D per Lord Mustill. The fact that the standard regulation 13 procedure had disadvantages, in particular the absence of oral evidence, did not render it unfair. That was so even though there might be benefits from hearing oral evidence. Many cases existed where important decisions were made without an oral hearing or a full adversarial process; in this connection reference was made to R v Race Relations Board, ex parte Selvarajan, [1975] 1 WLR 1686, at 1693-1694, per Lord Denning MR; R v Commission for Racial Equality, ex parte Cottrell, [1980] 1 WLR 1580, at 1587 per Lord Lane CJ; and R (McGetrick) v Parole Board, [2012] 1 WLR 2488, at paragraph 36 per Stanley Burnton LJ. In relation to police disciplinary procedures, the test adopted in Khan, supra, at paragraph 31 and Kay, supra, at paragraph 37 was to focus on whether the chief constable was able to proceed on the basis of undisputed primary facts. In the present case, the petitioner accepted the important aspects of the way that he and the two young women had behaved. There was no need for the assistant chief constable charged with investigating the case or for the respondent to decide between conflicting accounts of what happened. The inferences drawn from the accepted primary facts were not challenged as unreasonable. Finally, in R (on the application of V) v Chief Constable of North Yorks Police, [2009] EWHC 1879 (Admin), Silber J had commented on the standard procedure that is normally followed in regulation 13 cases, pointing out that it gave the affected constable a full opportunity to make written and oral representations. It also enabled the constable to know the case against him and to be told the reasons for the chief constable's decision. All of those requirements was satisfied in the present case.

Decision
The applicable law
[20] The central question is whether the respondent was justified in considering the allegations against the petitioner under regulation 13 of the Police (Scotland) Regulations 2004, or whether those allegations should have been considered under the Police (Conduct) (Scotland) Regulations 1996 or an equivalent procedure. The Conduct Regulations set out detailed procedural requirements as summarized in paragraph [9] above; these include a formal misconduct hearing at which the officer charged with misconduct has a right to legal representation. At that hearing evidence will normally be led, and such evidence will be subject to cross examination. Under regulation 13, on the other hand, no procedures are specified. Nevertheless, the regulation 13 procedure is clearly subject to the general legal controls that apply to administrative action, which include a right to know the nature of the complaint and a right to be heard in response to the complaint.

[21] In the first place, I am of opinion that the fact that allegations of misconduct were made against the petitioner but then dropped does not prevent the respondent from considering the same allegations, in whole or in part, under the regulation 13 procedure. The two types of procedure are quite distinct. Regulation 13 involves a non‑delegable duty imposed on the chief constable. Under the Conduct Regulations, however, the responsibility for investigating an allegation or complaint is imposed on an assistant chief constable (regulation 5), who may appoint an investigating officer and may require that the officer under investigation should appear before a misconduct hearing (regulation 6). (In the present case the duties imposed on an assistant chief constable were in fact carried out by a deputy chief constable, but nothing turns on this point). The decision, made on 8 August 2011, not to proceed to a misconduct hearing but instead to proceed under regulation 13 was a decision of the deputy chief constable; the respondent, as chief constable, played no part in that decision.

[22] Furthermore, the two procedures are concerned with different issues. The misconduct procedure is concerned with allegations that an officer has been guilty of misconduct as defined in Schedule 1 to the Conduct Regulations. The regulation 13 procedure, by contrast, is concerned with the question whether a probationary constable is not fitted to perform the duties of office of constable or "is not likely to become an efficient or well conducted constable". Those questions, especially the latter, are capable of raising much wider issues than misconduct. Nevertheless, it would be quite extraordinary if actual misconduct could not be taken into account in making a regulation 13 assessment when other, lesser, matters could be. Nor does it matter that misconduct proceedings were considered and then dropped because the issues involved in the two types of proceeding are essentially different. In these circumstances, I am of opinion that the decision of the chief constable as to whether to proceed under regulation 13 cannot be constrained by any decision not to proceed to a misconduct hearing. In summary, two different decisions are involved, which are made for different purposes by different individuals and which may involve consideration of different material. On that basis, the decision to proceed by way of the regulation 13 procedure cannot be challenged.

[23] The important issue is accordingly whether the respondent was entitled to proceed by way of a standard regulation 13 investigation, or whether he was obliged to adopt procedures that were more akin to a misconduct hearing. Specifically, the crucial question would appear to be whether in the specific circumstances of the case the respondent was entitled to reach a determination under regulation 13 that the petitioner should be discharged from his appointment as a probationary constable without giving the petitioner the opportunity of a formal hearing involving the right to legal representation, the leading of evidence as to the allegations against the petitioner, cross examination of the witnesses giving such evidence, and the right to lead evidence on the petitioner's behalf. If the respondent was entitled to proceed by way of a standard regulation 13 investigation, it is not suggested that the procedure followed by him was unfair. What is in issue accordingly goes to the choice of procedure followed rather than the way in which the particular procedure chosen has been conducted.

[24] The choice of procedure has been considered in a number of English cases dealing with regulation 13 of the Police Regulations 2003. The test under that paragraph is that the services of a probationary constable may be dispensed with if it is thought that "he is not likely to become an efficient or well conducted constable", a test which is the same as that under regulation 13 of the Police (Scotland) Regulations 2004; thus the English cases are of assistance in considering the Scottish legislation. The principle that emerges from these cases is that in some circumstances a hearing involving the leading of evidence, cross examination and legal representation may be necessary, but the question of whether such a hearing is necessary is fact-specific. In R (Khan) v Chief Constable of Lancashire, supra, Elias J stated the test in the following terms (at paragraph 33):

"The issue, it seems to me, is whether there was sufficient conflict over the relevant facts to make it unfair for the Chief Constable to make the judgment he did on the basis of the undisputed primary facts".

That case involved a probationary constable who had taken part in certain sexual activities with a woman that he had met in a nightclub when she was under the influence of drink. There was no dispute that the activities had taken place; they had in fact been filmed. Elias J noted (at paragraph 32) that the primary facts were not disputed at all. He stated:

"There may be some uncertainty about the extent of the woman's inebriation, but there could be no doubt at all that she had had too much to drink. When one adds to that the fact that there were two men, both sober, alone in the woman's room, it was fanciful to think that she could be anything other than vulnerable. This was the inference from the primary facts that the Chief Constable was fully justified in drawing.... Furthermore, there was a real risk, which in fact materialised, that rape allegations would be made. This compounded the claimant's lack of judgment".

In these circumstances it was held that the Chief Constable had sufficient material to determine the question as to whether the claimant was "fitted mentally to perform the duties of his office" and was "likely to become a well conducted constable". Whether the woman in that situation was vulnerable was a matter of assessing the primary facts, and the chief constable was entitled to make that determination himself; a disciplinary body would not be in any better position to draw the necessary inferences. In all the circumstances (paragraph 34) it was not unfair to proceed under regulation 13.

[25] The test adopted by Elias J in Khan was cited by Silber J in R (Kay) v Chief Constable of Northumbria Police, supra, at paragraph 37. He continued (at paragraph 38):

"I respectfully agree and I would suggest that the test for determining if a case against a probationary police officer should be determined under regulation 13... or under the Conduct Regulations is whether there is such conflict over the facts relating to the misconduct relied on with the consequence that it would be unfair for the chief constable to make the judgment he did on the basis of the undisputed primary facts rather than giving the probationary police officer the protection to which he or she was entitled under the Conduct Regulations".

In Kay it was held that there was sufficient dispute about the primary facts to require a hearing. The allegation against the police officer in question was that she had attempted to commit an insurance fraud, and initially misconduct proceedings had been contemplated, but a decision was made not to proceed with those but instead to proceed under regulation 13. There was, however, significant dispute about four distinct issues of primary fact, and that made it essential to have a full misconduct hearing.

[26] In the last two cases, two earlier decisions of the Court of Appeal were followed. These were R v Chief Constable of the West Midlands Police, ex p Carroll, supra, and R v Chief Constable of British Transport Police, ex p Farmer, supra. The second of these cases involved a probationary constable who had been accused of assisting another probationer to cheat in the course of a training course at the Scottish Police College. The central issue in the case was defined (page 5) as whether, notwithstanding that the applicant's conduct constituted a disciplinary offence, it was open to the Chief Constable of British Transport Police to decide not to take disciplinary proceedings and instead to dismiss him summarily under the equivalent of regulation 13. The judge at first instance decided that the Chief Constable was required as a matter of good administration to have recourse to disciplinary proceedings (the equivalent of the Conduct Regulations), but this was reversed by the Court of Appeal. Henry LJ stated (at page 8):

"[Where] the offence is admitted, there will be many cases where it would be contrary to good administration to go by the disciplinary route. The probationary period is there to discover and deal with fundamental unsuitability of outlook or temperament or behaviour. Each of these might manifest themselves in misconduct, but would in most cases be more appropriately resolved under the probationer's dismissal procedure, concerned as it is, not so much with individual charges, as with fundamental questions about whether the probationary police constable is fitted to perform the testing duties required of the police....

In conclusion, there are two separate dismissal procedures which govern probationers. The decision which to use is a decision for the employing force. Where the facts founding the complaint are not admitted, in most if not all cases the decision is likely to be that the question whether the charge is proved or not proved be decided under the disciplinary procedures".

That passage makes it clear that in many cases the misconduct procedure and the regulation 13 procedure will be available as alternatives, and it may frequently be desirable to make use of the regulation 13 procedure because the issue is the fundamental question of whether the probationary constable is fit to become a regular constable rather than the narrow issue of whether misconduct has occurred in terms of the Conduct Regulations. I respectfully agree with that proposition.

[27] Henry LJ concludes by stating that in cases where the facts are not admitted it is likely "in most if not all cases" that the procedure should be under the equivalent of the Conduct Regulations. I agree that in cases where there is a dispute of primary fact the misconduct procedure is likely to be the norm. In some cases, however, there may be sufficient uncontroversial factual material that a decision under the regulation 13 procedure can properly be made even though other matters remain in dispute. That is I think clearly implicit in the tests adopted by Elias J in Khan and Silber J in Kay. On the basis of those tests, with which I respectfully agree, the critical question becomes whether the conflict over the primary facts is sufficiently great to make it unfair for the chief constable to make use of the standard regulation 13 procedure rather than giving the probationary constable the protection available under the Conduct Regulations. In all cases, however, it is essential to determine precisely what the material is that is to be relied on for the purposes of the regulation 13 procedure, and to ensure that there is no dispute of fact in that material that could render the standard regulation 13 procedure unfair.

[28] Before considering the application of these principles to the facts of the present case, I should mention one further decision of Silber J, R (on the application of V) v Chief Constable of North Yorkshire Police, supra, a decision issued on the same day as Kay. In that case a probationary constable had been charged with certain sexual offences involving children but had been acquitted. As a result there were restrictions on how he could be deployed within the police. On that basis, the chief constable had determined that the probationer was not likely to become an efficient constable and that he should accordingly be dismissed under regulation 13. It was held that the word "efficient" in regulation 13 should not be subject to artificial limitations, but should be given its ordinary meaning. That suggests that the width of the discretion that is available to the chief constable under the regulation is wide, and is not restricted to matters such as proven misconduct. In the same case, reference was made to the protections that are available in practice under the regulation 13 procedure. In that case these included the service on the probationary constable of the documents that were to be considered by the chief constable and the ability to make both written and oral representations to the chief constable (paragraphs 35 and 36). Silber J went on to say (at paragraphs 37 and 38):

"In my view, there is no specific procedure which the Chief Constable had to follow when making a determination under regulation 13. It is noteworthy that regulation 13 itself contains no requirement of holding a hearing although of course, principles of fairness should apply first to enable a probationary Constable to know why regulation 13 is being invoked, second to understand what the case was against him; third to be able to make representations to the decision-maker and fourth to be told of the reasons for any decision. Each of those requirements was satisfied.

It is quite clear that regulation 13 does not require oral evidence to be called or for the hearing to be in the form of a judicial hearing. It must be stressed that the task for the Chief Constable was not to see if the allegations were true but to ascertain whether the claimant would be an 'efficient' Constable. I was left with the clear impression that the claimant had a fair hearing".

I regard those remarks as important, and I return to them subsequently.

Application to the present facts
[29] The respondent's decision, as expressed in his letter to the petitioner of 19 July 2012, was that it appeared that the petitioner was not fitted to perform the duties of office of constable nor likely to become an efficient and well conducted constable. The decision letter continued:

"You have articulated a case for consideration, which includes your verbal and written representation, in addition to your subsequent written response regarding the minutes and decision made by ACC Nicolson.

I must however take into consideration the overall circumstances and in this regard I would advise you that I fully support Mr Nicolson's view".

Thus the decision proceeds on the views advanced by Assistant Chief Constable Nicolson. Those views, which were arrived at following the making of written submissions and a hearing attended by the petitioner and a Police Federation representative, were contained in a briefing note dated 13 July 2012.

[30] That briefing note set out the background facts, including the decision not to prosecute any criminal charge and the issuing of corrective advice under the Conduct Regulations. It was expressly pointed out that witness testimony had not been tested, which was described as "unfortunate". Counsel for the petitioner suggested that Assistant Chief Constable Nicolson had simply assumed the reliability and credibility of R and D. In my view this criticism is not justified; Assistant Chief Constable Nicholson accepted the lack of cross examination and the limitations that that placed on the evidence of the two complainers. The procedures that had been followed during the regulation 13 investigation were then set out. The recommendation was set out at length. After stating the statutory test under regulation 13, the briefing note continued:

"The statement of [D] is not criminal in nature and demonstrates that [the petitioner] restrained from further sexual activity when [D] declined. This statement in itself does not prove anything regarding his fitness as a police officer. That said, [D's] perception of Strathclyde Police is poor as [the petitioner] remains employed as a police officer.

The statement of [R] has not been tested and as stated was dealt with by Corrective Advice in respect of his conduct in terms of Regulation 6(3) of the Police (Conduct) (Scotland) Regulations 1996.

My findings are that [the petitioner] has shown poor judgment and has left himself open to allegations, having not taken due cognizance of his position and what is expected of a police officer, both privately and publicly and ultimately discredited the organisation, whereby the public perceive that Strathclyde Police continues to employ an individual suspected of committing a serious sexual offence.

Having considered all the facts presented to me and the impact of [the petitioner's] actions on the witnesses, I consider that he created or exploited vulnerability in both witnesses, whereby he left himself open to allegations, damaging his reputation and that of Strathclyde Police.

Based on this and in particular regarding the public involvement and expectation resulting from these events my findings are that [the petitioner] is not likely to become an efficient or well conducted constable and I therefore recommend he is discharged in terms of regulation 13...".

[31] That briefing note was based on the earlier procedure described in paragraphs [13] and [14] above. It is clear that regard was had to the statements taken from R and D, although as the briefing note indicated D's statement did not prove anything in relation to the petitioner's fitness as a police officer. The allegation of rape against the petitioner was not proceeded with, at either a criminal or, except for the giving of corrective advice, at a disciplinary level. It is clear that that allegation was disregarded in the regulation 13 proceedings, and properly so. It follows that the allegations relied on relate to two matters. The first of these is the manner in which the petitioner was said to have provided alcohol for R and D when they were in his house and the quantity of alcohol consumed by them; in this way it was alleged that the petitioner had created a state of vulnerability in each of the two girls. The second matter is the exploitation of that state of vulnerability by making sexual advances to them, successfully in one case.

[32] In relation to these matters I am of opinion that there was not a sufficient dispute as to the primary facts to render the use of the standard regulation 13 procedure unfair. The petitioner did not dispute that the two girls had come to his flat; nor was it disputed that they were in a state of some intoxication; nor did the petitioner dispute that he had provided each of them with more alcohol when they were in the flat. Nor was it disputed that the petitioner had made sexual advances to both girls, successfully in one case but not in the other. It was accepted, too, that each of the girls was critical of the petitioner's conduct, albeit to a different degree in each case.

[33] Counsel for the petitioner submitted that important issues of fact were in dispute, quite apart from the question of rape; these had not been taken into account by the respondent. In particular, there was a dispute about the amount of alcohol consumed, the way it was consumed and the degree of intoxication of R and D. These differences, it was submitted, made it essential to have a full hearing of evidence. That was particularly so in view of the fact that R and D were both aged 18 and the petitioner 19; thus there was no question of exploitation of a much younger girl. Nevertheless, I am of opinion that the critical facts were that R and D accompanied the petitioner to his flat in a state of some intoxication, that he provided them with further alcohol in the flat, and that thereafter he made sexual advances to each of them. These facts were sufficient in my view to entitle the Assistant Chief Constable Nicolson and the respondent to conclude that the petitioner had placed each girl in a vulnerable position and had gone on to exploit or attempt to exploit that vulnerability. On that basis, it cannot be said that the absence of evidence was unfair to the petitioner; the critical facts were accepted. I accept that, if evidence had been led, it might have been possible to explore further the precise amount of alcohol consumed by R and D in the flat; it might also have been possible to explore the precise manner in which the petitioner behaved as the alcohol was being consumed (for example, whether the petitioner cheered as each girl finished a glass). Nevertheless, these matters are in my opinion incidental to the critical facts, which are that the petitioner supplied alcohol in his flat to young women in a somewhat intoxicated state and went on to make sexual advances to them. The respondent was entitled to make the decision that he eventually reached on the basis of the undisputed facts that he had before him.

[34] In this connection, I consider it important that the petitioner was given a full opportunity to make both written and oral representations to Assistant Chief Constable Nicolson, who was responsible for investigating the case on behalf of the respondent. In fact lengthy written representations were lodged, dealing with the statements of R and D in considerable detail, as well as other aspects of the available evidence including that of the taxi driver who had driven R home; he had given evidence that R appeared completely undistressed. The comments made by Silber J in V as to the procedures that are followed in practice under regulation 13 are pertinent. In the present case the petitioner was informed in detail of the allegations against him, and he was able to make detailed written and oral representations. As in V he was accompanied by a Police Federation representative at the oral hearing. In these circumstances I consider that was given an adequate opportunity to present his case, and that he took advantage of that opportunity. No doubt if regulation 13 proceedings raise significant issues of credibility and reliability it may be desirable to hear oral evidence and to permit cross examination. That is in accordance with the views expressed in Thomas v Thomas, supra, at 59 per Lord Macmillan. It also accords with the approach adopted in the English police discipline cases, notably Khan and Kay. In the present case, however, the elements in the evidence of R and D that were critical to the respondent's decision were accepted. The charge of rape, on which there was a serious dispute, was not taken into account, and the other differences in the accounts of R and D on one hand and the petitioner on the other were essentially matters of detail. In these circumstances I do not consider that oral evidence was essential to secure a fair hearing.

[35] I should refer briefly to the further cases relied upon by counsel for the respondent in suggesting that there was no need for an oral hearing in disciplinary proceedings. In R v Race Relations Board, ex parte Selvarajan, supra, Lord Denning MR stated (at 1694):

"The fundamental rule is that, if a person may be subjected to pains or penalties, or be exposed to prosecution or proceedings, or deprived of remedies or redress, or in some such way adversely afflicted by the investigation and report, that he should be told the case made against him and be afforded a fair opportunity of answering it. The investigating body is, however, the master of its own procedure. It did not hold a hearing. It can do everything in writing. It did not allow lawyers. It need not put every detail of the case against a man. Suffice it if the broad grounds are given".

That statement of principle is in my opinion still valid; in disciplinary proceedings it is not essential to have a full hearing of evidence, with cross examination, in every case. The critical question, as is illustrated by Khan and Kay, is whether the hearing of evidence is essential to permit the critical facts to be fairly considered. Similarly, in R v Commission for Racial Equality, ex parte Cottrell, supra, Lord Lane CJ indicated (at 1587) that there are degrees of judicial hearing, which run from the borders of pure administration to the borders of the full hearing of a criminal case. Judgment must be exercised in each case to determine what depth of hearing fairness requires. That is in my view wholly consistent with the approach taken in Khan and Kay.

[36] For the foregoing reasons I am of opinion that the procedures followed by the respondent in the present case satisfy the test of fairness to the petitioner. The decision to use the regulation 13 procedure without any hearing of oral evidence or cross examination was not unfair or unreasonable, far less irrational. I will accordingly sustain the second and third pleas-in-law for the respondent, which are to the effect that the petition is unfounded in fact and that the respondent's decision was not irrational and was arrived at fairly. On that basis I will refuse the remedy of reduction sought in the petition.