NI High Court: Constable who lied on his pre-entry security check fails in judicial review challenge
Northern Ireland’s High Court has refused an application for judicial review where a police constable argued that any misconduct that he committed in previous employment should not have come under the scrutiny of the PSNI or its code of ethics.
About this case:
- Citation: NIQB 59
- Court:NI High Court
- Judge:Judge Adrian Colton QC
The court found that the code applied to any serving officers, and in this case the constable’s false claims on his pre-entry security check were an ongoing example of dishonesty.
The applicant in this case was a constable in the Police Service of Northern Ireland (PSNI). In 2016, as part of the application process to join the PSNI, he completed a security check and counter terrorist check questionnaire.
This questionnaire required him to describe “details of any other full or part time employment you have held within the last five years giving the most recent employment first”.
He did not disclose two separate part-time roles that he had worked, which included working as a sales assistant with Matalan between 2011 and 2014, and with Statement Menswear between 2015 and 2016.
During his employment with Matalan, he had been subject to disciplinary procedures culminating in a verbal warning for gross misconduct.
During his employment with Statement Menswear, he made unauthorised payments to himself on 10 occasions, totalling £1,675. He later took out a loan from Amigo Loans for £2,000 to repay his employer.
After the PSNI became aware of this information, the applicant was the subject of a misconduct charge. This was because of his answer to the questionnaire, and his choice to not correct the “falsity”, which was in breach of the PSNI code of ethics.
It was claimed that his conduct amounted to gross misconduct because it could discredit the police service, lacked integrity, and amounted to an act of dishonesty, which were all covered under the code of ethics.
A panel was appointed to hear and determine the misconduct charge against him. The applicant applied to stay the proceedings on the ground that the panel lacked jurisdiction to hear a charge based on allegations which pre-dated his attestation as a constable.
The panel refused to stay the proceedings. They found that although the action had been committed prior to the constable actually joining the PSNI, this had not absolved him from “correcting or completing that disclosure immediately and certainly as soon as practicably possible upon attestation. We understand this to be an ongoing, career-long obligation”.
The panel determined that they did have jurisdiction to entertain the complaint, and proceeded to hear evidence. It was this conclusion that was being challenged by the applicant.
The applicant’s case
The applicant accepted that the code of ethics applied to the conduct of police officers whether on or off duty, but argued that he only became a police officer after he completed the questionnaire.
Therefore, he claimed that the alleged misconduct fell outside the code, meaning that the panel lacked jurisdiction to determine the complaint. He noted that the regulations also referred to the conduct of a “member”. He was not a member of the PSNI when he made his application.
The applicant also argued that there was no duty on him to correct the false declaration. This supposed duty was far too vague, especially where it related to an allegation about his dishonesty.
Instead, the applicant argued that it was open to the PSNI to check the accuracy of these questionnaires, after the applicants had become members.
Finally, the applicant noted that whether or not someone is a member of the PSNI is considered in other areas of law. For example, former police officers are not subject to disciplinary procedure under the same regulations, even for conduct committed whilst they were police officers.
The court noted that the declaration signed by the applicant included the following:
“I declare that the information I have given is true and complete to the best of my knowledge and belief and I understand that any false statement or deliberate omission in the information I have given in this questionnaire may disqualify me from employment […] or make me liable to disciplinary action, which may include dismissal.”
Although the court found that the interpretation proffered by the applicant was an “attractive” argument, when analysing the code of ethics jurisdiction was conferred by reason of an officer being a serving member of the PSNI, rather than by reference to when the alleged misconduct occurred.
This was the same reasoning explaining why retired officers are not subject to the disciplinary regime.
Put simply: “As long as the person against whom the allegation of misconduct is made remains a police officer, they are subject to the jurisdiction of the Regulations”.
Further, these regulations did not indicate any temporal prohibition on a misconduct investigation, nor did they prohibit investigation by PSNI in respect of misconduct which occurred prior to the applicant becoming a member.
Ultimately, the court found that the correct interpretation of the code of ethics is that it applies to those who are police officers, even if they were not at the time of the misconduct, since that is consistent with the maintenance of public confidence in the PSNI.
Finally, the court made it clear that this discussion was not an assessment of the applicant’s dishonesty, or whether this amounted to misconduct However, in the court’s view, the panel did have jurisdiction to consider the complaint of misconduct, therefore the application for judicial review was refused.