Case No: CO/3281/2013
Neutral Citation Number: [2013] EWHC 1009 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Manchester Civil Justice Centre
1 Bridge Street West
Manchester
M60 9DJ

Date: Thursday, 28th March 2013

Before:

MR JUSTICE STUART-SMITH

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Between:

	The Queen on the Application of RHODES
	Claimant	
	- and -		
	
POLICE AND CRIME COMMISSIONER
FOR LINCOLNSHIRE	

Defendant	
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(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400  Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
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Mr Beggs QC (instructed by Lewis Hymanson Small) appeared on behalf of the Claimant.

Mr Sweeting QC (instructed by Andrew & Co) appeared on behalf of the Defendant.

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Judgment
MR jUSTICE sTUART-SMITH:  
1.	By a claim form issued on 19 March 2013, the applicant, Mr Neil Rhodes, seeks to challenge the decision of the defendant, Mr Alan Hardwick, the elected Police and Crime Commissioner for Lincolnshire, made on 25 February 2013 to suspend him from the post of Temporary Chief Constable of Lincolnshire, and the decision made on 5 March 2013 to continue that suspension.  

2.	The grounds of claim list four grounds of challenge.  They are: (1) the decisions to suspend Mr Rhodes under Regulation 10 of the Police (Conduct) Regulations and to continue that suspension were unlawful and/or irrational in all the circumstances of the case; (2) the decisions to suspend Mr Rhodes under section 38(2) of the 2011 Act and to continue that suspension were unlawful and/or irrational in all the circumstances of the case; (3) the decisions to suspend Mr Rhodes under both provisions and to continue those suspensions were unlawful under section 6 of the Human Rights Act 1998, because they breached Mr Rhodes’ Article 8 rights; (4) Mr Rhodes’ suspension was unlawful in any event until 5 March 2013 because the PCC, that is, Mr Hardwick, failed to give proper reasons for the suspension and/or denied Mr Rhodes due process.

3.	The issued application came before me on the day it was issued.  I gave directions that required the defendant to file and serve detailed grounds for contesting the claim and any written evidence by 4.00 p.m. on 26 March 2013, and would have led to a rolled-up hearing on 18 April 2013.  The applicant applied without notice to HHJ Davis on 21 March 2013.  He brought forward the time for the defendant to serve his grounds and evidence to 12 noon on 26 March, and brought forward the rolled-up hearing to yesterday, 27 March 2013.  The following day, 22 March 2013 the defendant issued an application seeking a reversal of HHJ Davies’ order.  That application was considered by HHJ Wood QC the same day, which was last Friday.  He directed that it should be listed for an oral before me on Monday morning, which happened.  

4.	At the hearing of the defendant’s application on Monday, 25 March 2013, I maintained the date for the rolled-up hearing but extended the time for the defendant’s grounds of defence and evidence to 5.30 p.m. on 26 March 2013, that is, the day before yesterday.  That order stated that it was open to either party to make submissions at the start of the hearing on whether the hearing should go ahead at all and if it did what form the hearing should take.  

5.	At the commencement of the hearing yesterday, Mr Sweeting QC for the PCC indicated that he did not object to the hearing proceeding as a rationality challenge to Mr Hardwick’s two decisions, but that he would object to the matter proceeding on any wider basis.  In the event, whether by coincidence or agreement, Mr Beggs QC’s skeleton argument concentrated on the rationality challenge, and did not develop the other heads of challenge.  

6.	In the light of these submissions the hearing proceeded as a rolled-up hearing on the basis of a rationality challenge to Mr Hardwick’s decisions, with the other heads of challenge being reserved, either for future consideration at this level or otherwise.  This judgment therefore deals only with that ground of challenge.

The Legal Framework

7.	The Police Reform and Social Responsibility Act 2011 made provision for the election of Police and Crime Commissioners.  The Commissioners functions include securing the maintenance of the police force in his area, and holding the chief constable of his force to account for the exercise of the functions of the chief constable.  To that end, the Commissioner has powers relating to the appointment, suspension and removal of chief constables, which are conferred by section 38 of the Act in the following terms: 
“38. Appointment, suspension and removal of chief constables

(1) The police and crime commissioner for a police area is to appoint the chief constable of the police force for that area.

(2) The police and crime commissioner for a police area may suspend from duty the chief constable of the police force for that area.

(3) The police and crime commissioner for a police area may call upon the chief constable of the police force for that area to resign or retire.

(4) The chief constable must retire or resign if called upon to do so by the relevant police and crime commissioner in accordance with subsection (3).

[…]

(7) This section and Schedule 8 are subject to regulations under section 50 of the Police Act 1996.”

8.	Regulations have been made under section 50 of the Police Act 1996.  They are the Police (Conduct) regulations 2012.  It is convenient to address the material regulations out of sequence.  

9.	Regulation 5(1) provides: 
“These regulations apply where an allegation comes to the attention of an appropriate authority [that is a police commissioner or PCC] which indicates that the conduct of a police officer may amount to misconduct or gross misconduct.”

This appears to be a low threshold for the purposes of triggering the application of the regulations, and with it the power to commence an investigation.  

10.	The power to suspend is the subject of Regulation 10.  That regulation provides as follows: 
“(1) The appropriate authority may, subject to the provisions of this regulation, suspend the officer concerned from his office as constable and (in the case of a member of a police force) from membership of the force.

[...]

(4) The appropriate authority shall not suspend a police officer under this regulation unless the following conditions (‘the suspension conditions’) are satisfied –

(a) having considered temporary redeployment to alternative duties or an alternative location as an alternative to suspension, the appropriate authority has determined that such redeployment is not appropriate in all the circumstances of the case; and

(b) it appears to the appropriate authority that either –

(i) the effective investigation of the case may be prejudiced unless the officer concerned is so suspended; or

(ii) having regard to the nature of the allegation and any other relevant considerations, the public interest requires that he should be so suspended.

(5) The appropriate authority may exercise the power to suspend the officer concerned under this regulation at any time from the date on which these regulations first apply to the officer concerned in accordance with regulation 5 until --

(a) it is decided that the conduct of the officer concerned shall not be referred to misconduct proceedings or a special case hearing; or

(b) such proceedings have concluded.

(6) The appropriate authority may suspend the officer concerned with effect from the date and time of notification which shall be given either -- 

(a) in writing with a summary of the reasons; or

(b) orally …

(7) The officer concerned (or his police friend) may make representations against his suspension to the appropriate authority –

(a) before the end of 7 working days beginning with the first working day after his being suspended;

(b) at any time during the suspension if he reasonably believes that circumstances relevant to the suspension conditions have changed.

(8) The appropriate authority shall review the suspension conditions – 

(a)	on receipt of any representations under paragraph (7)(a) …”

11.	It can therefore be seen that the public interest is one of the considerations that must be central to the PCC’s determination whether or not to suspend, and he must not do so unless the public interest requires it.  

12.	The regulations make provision for allegations to be investigated.   Regulation 14 provides: 
“The purpose of the investigation is to – 

(a) gather evidence to establish the facts and circumstances of the alleged misconduct or gross misconduct; and

(b) assist the appropriate authority to establish whether there is a case to answer in respect of misconduct or gross misconduct or whether there is no case to answer.”

13.	Regulation 15 provides that as part of the process, where an investigation takes place the investigator shall give written notice to the officer concerned describing the conduct that is the subject matter of the allegation, and what the PCC’s view of the potential seriousness of the matter may be.  Regulation 15(2) provides:
“(2) If following service of the notice under paragraph (1), the appropriate authority revises its assessment of the conduct in accordance with regulation 12(5) or its determination of the likely form of any misconduct proceedings to be taken, the appropriate authority shall, as soon as practicable, give the officer concerned further written notice of –

(a) the assessment of whether the conduct, if proved, would amount to misconduct or gross misconduct as the case may be and the reason for that assessment; and

(b) whether, if the case were to be referred to misconduct proceedings, those would be likely to be a misconduct meeting or a misconduct hearing and the reason for this.”

14.	Regulation 12 deals with when there shall be an investigation: 
“(1) Subject to paragraph (6) the appropriate authority shall assess whether the conduct which is the subject matter of the allegation, if proved, would amount to misconduct or gross misconduct or neither.”

(I pause to mention that both misconduct and gross misconduct are defined in the regulations, to which I will come in a minute.)  

“(2) Where the appropriate authority assesses that the conduct, if proved, would amount to neither misconduct nor gross misconduct, it may –

(a) take no action;

(b) take management action against the officer concerned; or

(c) refer the matter to be dealt with under the Performance Regulations.

(3) Where the appropriate authority assesses that the conduct, if proved, would amount to misconduct, it shall determine whether or not it is necessary for the matter to be investigated and – 

(a) if so, the matter shall be investigated and the appropriate authority shall further determine whether, if the matter were to be referred to misconduct proceedings, those would be likely to be a misconduct meeting or a misconduct hearing;

(b) if not, the appropriate authority may --

(i) take no action; or

(ii) take management action against the officer concerned.

(4) Where the appropriate authority determines that the conduct, if proved, would amount to gross misconduct, the matter shall be investigated.”

15.	I referred a moment ago to the definitions.  Under regulation 3, gross misconduct means a breach of the standards of professional behaviour so serious that dismissal would be justified, and misconduct means a breach of the standards of professional behaviour.  That reference to the standards of professional behaviour links into schedule 2 of the regulations, which is headed “Standards of Professional Behaviour”, and includes as follows: 
“Honesty and Integrity 

Police officers are honest, act with integrity and do not compromise or abuse their position. 

[…]

Discreditable Conduct 

Police officers behave in a manner which does not discredit the police service or undermine public confidence in it, whether on or off duty.  Police officers report any action taken against them for a criminal offence, any conditions imposed on them by a court or the receipt of any penalty notice.

Challenging and Reporting Improper Conduct 

Police officers report, challenge or take action against the conduct of colleagues which has fallen below the Standards of Professional Behaviour.”

16.	Where an investigation takes place, regulation 18 provides for the investigator to provide a report to the PCC.  Regulation 19 then provides for the PCC to decide whether or not there is a case to answer as follows: 
“1) Subject to regulation 41 and paragraph (6) --

(a) on receipt of the investigator’s written report …

the appropriate authority shall, as soon as practicable, determine whether the officer concerned has a case to answer in respect of misconduct or gross misconduct or whether there is no case to answer.”

The regulations then make provision for the subsequent stages of disciplinary proceedings.  

17.	The structure as I have outlined it reveals three features that are potentially relevant for the present case: 

i)	The regulations make provision for reappraisal at regular intervals by the PCC of the potential or actual seriousness of an allegation against an officer.  This is necessary because the policing profession is particularly vulnerable to the making of malicious allegations or allegations which, though not malicious, are without foundation, and an officer requires regular review and reassessment to protect him or her from the dire consequences of having unfounded allegations hanging over them for protracted periods;

ii)	The power to suspend can be implemented at any stage after an allegation indicating possible misconduct or gross misconduct comes to the attention of the PCC;

iii)	But, third the regulations make provision for investigation of allegations as a preliminary to the PCC forming a view on the question whether there is a case for the officer to answer.  Such investigations are mandatory if the PCC considers that the conduct, if proved, would amount to gross misconduct.  They are not mandatory if the PCC considers that the conduct, if proved, would amount to misconduct but not gross misconduct.  They are not appropriate if the PCC considers that the conduct would not amount to misconduct or gross misconduct as defined if proved.
18.	Remaining with the regulations, regulation 6 provides: 
“(1) The officer concerned may choose --

(a) a police officer … 

who is not otherwise involved in the matter, to act as his police friend.

(2) A police friend may --

(a) advise the officer concerned throughout the proceedings under these Regulations;

(b) unless the officer concerned has the right to be legally represented and chooses to be so represented, represent the officer concerned at the misconduct proceedings or special case hearing or appeal meeting;

(c) make representations to the appropriate authority concerning any aspect of the proceedings under these Regulations; and

(d) accompany the officer concerned to any interview, meeting or hearing which forms part of any proceedings under these Regulations.

(3) Where a police friend is a police officer or a police staff member, the chief officer of police of the force of which the police friend is a member shall permit him to use a reasonable amount of duty time for the purposes referred to in paragraph (2).”

No such provision is made in the regulations for matters not falling within the ambit of the regulations.  I will return to the role of police friends later.

19.	The Independent Police Complaints Commission was established in 2002 to provide independent investigation of police conduct.  It is separate and distinct from the power of the PCC to suspend, and from the provisions about investigation to which I have just referred.  But here too there is a gradation of seriousness and appropriate response, which Mr Beggs QC for Mr Rhodes submits is of relevance to the present case.  

20.	The structure for the referral of conduct matters that are not the subject of complaint to the IPCC revolves around the concept of “conduct matters” and “recordable conduct”.  

i)	Section 12(2) of the Police Reform Act 2002 defines “conduct matters” in the following terms: 
“(2) In this Part ‘conduct matter’ means ... any matter which is not and has not been the subject of a complaint but in the case of which there is an indication (whether from the circumstances or otherwise) that a person serving with the police may have --

(a) committed a criminal offence; or

(b) behaved in a manner which would justify the bringing of disciplinary proceedings.”

21.	Evidently, the requirement that there is merely “an indication” that a person serving with the police “may have” committed a criminal offence or behaved in a manner which would justify the bringing of disciplinary proceedings sets the bar low for admission as a “conduct matter”.  

i)	Paragraph 13 of schedule 3 to the Police Reform Act 2002 provides for recordable conduct matters to be referred to the Commission in specified circumstances as follows: 
“(1) It shall be the duty of a police authority or a chief officer to refer a recordable conduct matter to the Commission if, in a case ... in which the authority or chief officer is the appropriate authority –
	
(a) that matter relates to any incident or circumstances in or in consequence of which any person has died or suffered serious injury;
	
(b) that matter is of a description specified for the purposes of this sub-paragraph in regulations made by the Secretary of State; or
	
(c) the Commission notifies the appropriate authority that it requires that matter to be referred to the Commission for its consideration.

(2) In any case where there is no obligation under sub-paragraph (1) to make a reference, the appropriate authority may refer a recordable conduct matter to the Commission if that authority considers that it would be appropriate to do so by reason of --
	
   (a) the gravity of the matter; or
   
   (b) any exceptional circumstances.”

22.	The reference in paragraph 13(1)(b) to regulations is taken up by the Police (Complaints and Misconduct) Regulations 2012.  By the combined effect of regulations 7(1) and 7(4), certain matters are specified for the purposes of paragraph 13(1)(b).  They include serious assaults, serious sexual offences, serious corruption, conduct which is aggravated by discriminatory behavior, and conduct said to have occurred at the same time as one of those types of matter.  So, taking the provisions of paragraph 13 of schedule 3 of the 2002 Act and regulation 7 of the 2012 Complaints and Misconduct Regulations together, the serious categories of matter specified under paragraph 13(1) must be referred by the PCC to the IPCC, but if the matter does not fall within those categories, it may be referred by the PCC to the IPCC if the PCC thinks it appropriate by reason of the gravity of the matter or any exceptional circumstances.  

23.	Once a matter has been referred to the IPCC, its powers are determined by paragraph 15 of schedule 3 to the 2002 Act.  The IPCC has a duty to determine the form which the investigation shall take.  In doing so it shall have regard to the seriousness of the case and the public interest.  There are then four forms of investigation which may be pursued, which are established by paragraph 15(4).  In ascending order of seriousness, they are:

“(a) an investigation by the appropriate authority on its own behalf;

(b) an investigation by that authority under the supervision of the Commission;

(c) an investigation by that authority under the management of the Commission;

(d) an investigation by the Commission.”

24.	Apart from the fact that these gradations are in ascending order of seriousness and that the Commission’s determination of which form of investigation is appropriate must have regard to the seriousness of the case and the public interest, there is no guidance in the 2002 Act, the 2012 Regulations or elsewhere on what criteria should be applied by the IPCC in reaching its determination.  

25.	Equally, the researches of counsel have not identified any guidance in authority or elsewhere on when suspension of an officer, pursuant to the provisions of regulation 10 of the 2012 Conduct Regulations, is or is not appropriate.  Some assistance by analogy may be gained from the similar regimes applying to the regulation of doctors and dentists and the imposition of interim conditions or suspension when allegations are made against those professionals.  

26.	Section 32(4) of the Dentists Act 1984 and section 41A of the Medical Act 1983 are in materially identical terms.  Section 32(4) of the Dentists Act 1984 states:
 
“Where a Committee are satisfied that it is necessary for the protection of the public or is otherwise in the public interest, or is in the interests of the person concerned, for the person’s registration in the dental care professionals register under a particular title to be suspended or to be made subject to conditions, the Committee may make— [orders imposing interim suspension or conditions].”

The section only expressly refers to necessity in connection with the protection of the public: but four first instance decisions have adopted a relatively demanding view of the standard to be achieved when considering the public interest as well as the necessity for the protection of the public:

i)	In Shiekh v General Dental Council [2007] EWHC 2972 (Admin) Davis J (as he then was) considered the public interest requirement at paragraphs 15 to 16.  There he said:
“15. As a matter of strict language, no grammatical interpolation of the word ‘necessary’ falls to be applied to the phrase ‘or is otherwise in the public interest’. But that is not the end of the matter because it does seem to me that if ‘the public interest’ is to be invoked in this context, under the statute, then that, to my mind, does at least carry some implication of necessity; and certainly it at least carries with it the implication of desirability. I think it is of some note in this context that the statute was amended, as I gather, to introduce a power to impose interim suspension or conditions where it was in the public interest in the aftermath of the Shipman case. It seems to have been the case that the General Dental Council, and indeed the General Medical Council, did not feel the need for such a public interest power before that happened; although Mr Bradly did make the point that it may be that they simply had been prepared to tolerate a not very satisfactory position. 
16. At all events, in the context of imposing an interim suspension order, on this particular basis, it does seem to me, adopting the words of Mr Winter, that the bar is set high; and I think that, in the ordinary case at least, necessity is an appropriate yardstick. That is so because of reasons of proportionality. It is a very serious thing indeed for a dentist or a doctor to be suspended. It is serious in many cases just because of the impact on that person's right to earn a living. It is serious in all cases because of the detriment to him in reputational terms. Accordingly, it is, in my view, likely to be a relatively rare case where a suspension order will be made on an interim basis on the ground that it is in the public interest. I do not use the words ‘an exceptional case’ because such language is easily capable of being twisted and exploited in subsequent cases; but I do think, as I say, it is likely to be a relatively rare case. Ultimately, of course, all these things have to be decided on the facts of each particular case.”

It is to be noted that, so far as this court is aware, there has been no equivalent to the Shipman case, which I just pause to observe is one of the things that Davis J referred to in the passages above in the field of police regulation.  So that aspect of Davis J’s reasoning is not transferrable.  However, the reference to the impact of an interim suspension on a dentist or doctor is directly transferable;

ii)	In Sosanya v GMC [2009] EWHC 2814 (Admin), Davis J considered the equivalent test under section 41A of the Medical Act 1983.  At paragraph 26 he said: 
“The statutory test is there, and that is the one to be applied. One would like, all the same, to think that in all these kinds of cases of potential interim suspension an interim orders panel would at least be asking itself, as part of its thought process, the following: will it be acceptable for us not to suspend in a case of this kind if at the end of the day the charges are proved and the guilt of the applicant is established? That is one aspect. Another part of the thought process should be: will it be acceptable for us to suspend an applicant in a case of this kind if, at the end of the day, the applicant may be acquitted of all charges? Those considerations should form at least part of the thinking of an interim orders panel, as it seems to me.”;

iii)	In the case of Harry v GMC [2012] EWHC 2762 QB, Burnett J said, in the context of the test under section 41A, at paragraph 2: 
“The test of ‘necessity’ attaches to the protection of the public, rather than the ‘public interest’ limb of the test. Nonetheless, there is some implication of necessity or desirability: Shiekh at [15]; Sandler at [14].”;

iv)	It is not necessary to cite specifically from GMC v Sandler [2010] EWHC 1029 (Admin), which was relied upon by Burnett J save to say that it is to the same effect as the other three cases.  

27.	Though not bound by them, I am in respectful agreement with the passages in these cases that I have cited.  I also accept that the reasoning that is contained in the passages is transferable by parity of reasoning to the suspension conditions laid down by regulation 10(4) of the 2012 Conduct Regulations.  In fact, regulation 10(4) is clearer than the test under the Dentists and Medical Acts, because it provides expressly that there shall be no suspension unless the public interest “requires” that the officer be suspended.  This carries the implication that the public interest leaves no other course open.  It follows, in my judgment, that a police officer is not to be suspended under regulation 10(4) unless: 

i)	Temporary redeployment to alternative duties or an alternative location has been considered as an alternative to suspension and determined not to be appropriate in all the circumstances of the case; and 

ii)	It appears to the authority that either the effective investigation of the case may be prejudiced unless the officer concerned is suspended or the public interest requires that he should be suspended, which carries the implication that suspension is necessary because the public interest leaves no other course open. 

28.	On the basis of this review of the statutory frameworks relating to suspension and investigation respectively, I accept the submission of Mr Beggs that the threshold that has to be crossed in order for a matter to qualify for investigation under the 2012 Conduct Regulations or for reference to the IPCC under the Police Reform Act 2002 is lower than the threshold for suspension under regulation 10 of the 2012 Conduct Regulations.  Beyond that, there is a singular lack of guidance about when and in what circumstances suspension may be justified, although consideration of the facts of this case provides one comparative example.  No direct assistance is to be derived from the provisions relating to gradation of investigation by the IPCC, and a decision by the IPCC to institute a particular level of investigation can only be of tangential relevance to a challenge to the lawfulness of a suspension, particularly in the absence of full and detailed information about the information available to the IPCC and the reasons for the decisions it has made.

29.	I can deal relatively shortly with the test to be applied by the court when considering the present ground of challenge.  The court must bear in mind that the PCC has been appointed by statute to be the primary decision-maker.  In making his primary decision on suspension, the PCC has been charged with considering the public interest in the manner required by regulation 10(4).  The court must not interfere simply because it thinks it would have made a different decision if it had been the primary decision-maker. Nothing less than Wednesbury unreasonableness will do.  In other words, the court must not interfere unless it is satisfied that the PCC’s decision is “irrational” or “perverse”.  The assessment of the PCC’s decision must be made by reference to the material he had available to him.  This could include not only the materials he considered but also the materials he could and should have considered if he was to discharge his function properly, fairly and rationally, taking into account his obligation to scrutinise the material at his disposal and the seriousness of the step being contemplated, namely suspension.  

30.	In assessing the applicant’s challenge, the court must bear in mind at all times that there may be more than one rational response to a particular set of circumstances.  If the PCC’s response falls within the range of possible rational responses, it is not to be disturbed.  The court must also bear in mind that it is not in a position to pre-judge the outcome of any investigation that may take place into the facts any more than the PCC was in a position to pre-judge whether the allegations, as he understood them, would prove to be true if investigated.  This fact on its own demonstrates the importance of considering the rationality of the PCC’s decision on the basis of the information that he had or should have had available to him.  Although the court may note and take into account that some or all of the allegations are disputed, and would have been disputed if Mr Hardwick had sought an explanation from Mr Rhodes before suspending him, it must not pursue a mini-trial of the facts.  That said, what was known by the PCC about both Mr Rhodes and the originator of the issues that led to his suspension can and should reasonably have been taken into account, and can be taken into account by the court in reviewing the PCC’s decision.

31.	Before turning to the facts, I return to the role which Mr Rhodes was discharging on the occasion that has led to these proceedings.  I referred earlier to regulation 6 of the 2012 Conduct Regulations which refers to the appointments of police friends. The Chief Police Officers Staff Association (“CPOSA”) is a staff association whose membership is comprised of police officers who have reached the ranks of chief officer (that is to say, all ranks above chief superintendent, which outside the Metropolitan Police Service and the City of London Police is chief constables, deputy chief constables and assistant chief constables, and police staff who have reached equivalent staff grades).  Along with almost all police officers who are eligible to join, Mr Rhodes is a member of CPOSA.  Each of the three police staff associations, namely the Police Federation, the Police Superintendents Association and CPOSA, operate a system of police friends.  They are police officers or staff who act as peer support for an officer or member staff who is facing professional difficulties including during litigation and misconduct proceedings.  Being a police friend is unpaid and a voluntary role.  Each of the staff associations operates a panel of friends.  The panels receive training and guidance on how to perform their role.  

32.	As has been seen, the system of police friends is an established custom with statutory backing since it is recognised by the Conduct Regulations, as I have referred.  It is also recognised in Home Office guidance on police officer misconduct, unsatisfactory performance and attendance management procedures which state: 
“Police Friend

•	Police officers have the right to consult with, and be accompanied by, a police friend at any interview during an investigation into misconduct and at all stages of the misconduct or performance proceedings.

•	The police officer concerned may choose a police officer, a police staff member or (where the police officer is a member of a police force) a person nominated by the police officer’s staff association to act as his or her police friend. A person approached to be a police friend is entitled to decline to act as such.

•	A police friend cannot be appointed to act as such if he or she has had some involvement in that particular case e.g. he or she is a witness etc.

•	A police friend should not be asked to provide an account relating to any matter connected with their role as a police friend.  It is for police friends to be mindful of their role as a police officer and to disclose any information which it would reasonably be their duty to disclose.

The Police Friend can:

• Advise the police officer concerned throughout the proceedings under the Conduct Regulations 2008 and the Performance Regulations. 

• Unless the police officer concerned has the right to be legally represented and chooses to be so represented, represent the police officer concerned at the misconduct proceedings, performance proceedings, appeal meeting, a special case hearing or at a Police Appeal Tribunal

• Make representations to the appropriate authority concerning any aspect of the proceedings under the Conduct or Performance Regulations; and

• Accompany the police officer concerned to any interview, meeting or hearing which forms part of any proceedings under the Conduct or Performance Regulations.
…

A police friend who has agreed to accompany a police officer is entitled to take a reasonable amount of duty time to fulfil his or her responsibilities as a police friend and should be considered to be on duty when attending interviews,
	   meetings or hearings.
	   …
At a misconduct meeting, hearing or special case hearing under the Conduct Regulations or the Performance Regulations where the police friend attends, he or she may –

i) put the police officer concerned’s case

ii) sum up that case

iii) respond on the police officer concerned’s behalf to any view expressed at the meeting

iv) make representations concerning any aspect of the proceedings

v) confer with the police officer concerned

vi) in a misconduct meeting or hearing, ask questions of any witness, subject to the discretion of the person(s) conducting that hearing.”

33.	Three points must be noted:  

i)	First, the Home Office guidance contemplates that friends will take an active part in representing the officer and in making representations to the appropriate authority concerning any aspect of the proceedings: in other words, acting as a representative for the officer;  

ii)	The guidance is directed to proceedings under the relevant Conduct or Performance Regulations and not to other proceedings such as proceedings in the employment tribunal.  There is no similar guidance on the role of friends in those other types of proceedings, but there is no reason to suppose that similar considerations would not apply;  

iii)	Third, the general tenor of the guidance, and in some places its expressed terms, are framed most appropriately so as to apply to cases where the officer will not have other representation, legal or otherwise. 

34.	Given the nature of the role as police friend and the fact that some police officers do, regrettably, commit serious misconduct, the panels of police friends, including CPOSA’s panel of friends, operate a “cab rank system”. 

35.	I now turn to the factual background.

The Factual Background

36.	Mr Rhodes is an experienced senior police officer with almost 27 years’ police service.  He has a distinguished record of excellence, which is summarised in a report by Her Majesty’s Inspector of Constabulary dated 7 February 2013.  That document was not on the evidence before Mr Hardwick when he made his decision, but it is likely that it would have been made available if requested.  Even if that is not so, it gives the flavour of Mr Rhodes’ character and previous achievements and would be likely to have been reflected in similar terms in any of Mr Rhodes’ routine assessments, which would have been available to the PCC had he wished to call for them.  In any event, it is to be presumed that the PCC knew of his Temporary Chief Constable’s character and standing.  

37.	The assessment refers to Mr Rhodes’ 27 years of total service.  Under the heading “Leadership Strategic perspective” it says: 
“Neil worked tirelessly on the leadership of the change programme, showing admirable resilience and strength of character during some very tough times.  His commitment, understanding and ability to work with key stakeholders and partners, and his encouragement of others to grow and develop during the process was exceptional.”

His grading under that topic was “A”, which is the highest grading.  Under the heading “Leadership Maximising potential”, the document states:
“Neil has been the driving force behind the promotion of a strong culture and values based approach to policing, the PRIDE programme, which reinforces the importance of professionalism, respect, integrity, dedication and empathy.”

His grading under that heading was “A”.  Under the heading “Working with others Community and customer focus”, the report stated: 
“Neil has demonstrated an absolute and deep commitment to identifying and acting upon the needs of local people.  His leadership and development of the neighbourhood policing model in Lincolnshire has demonstrated his passion for this style of policing and he has consistently promoted the message to all staff that they are there to serve the interests and needs of local people.  His values led style of leadership communicates his commitment to staff, partners and to the public.”

His grading under that heading was “A”.  Under “Achieving results Personal responsibility”, the report said: 
“Neil takes a high degree of personal responsibility coupled with a complete commitment to integrity within the police service.  When he was DCC with responsibility for professional standards he led several key investigations which were fundamental in strengthening the integrity of the force.  He also made great efforts to demonstrate the importance of the values of the force, which incorporate integrity through his work with new recruits.  On a personal level, Neil has always maintained and demonstrated his high levels of personal responsibility in all aspects of his engagement with HMIC.”

His grading for personal responsibility was “A”.  In concluding that section of the report, the Inspector, Ms Billingham, said: 
“I have no hesitation in recommending Neil as a strong candidate for this role [which was to be a role as Chief Constable].  He is a committed, experienced and innovative leader, with a passion for policing and for excellence in public service.”

Under the heading “contribution to performance”, the report indicated the highly satisfactory state of crime statistics during Mr Rhodes’ tenure as Temporary Chief Constable and concluded: 
“I have no doubt that the improvement in Lincolnshire’s performance has been as a result of Neil’s contribution as DCC, and more recently as T/CC.”

In Part B of the document, under the heading “Suitability for role”, the report said: 
“Neil is an intelligent leader who demonstrates absolute commitment to improving policing, working effectively with his team and external stakeholders.  He has led Lincolnshire well over the last ten months, and has encouraged those around him to embrace change with conviction and confidence.  He has great personal integrity.  I have no doubt that these skills will equip Neil well in the MDP [which is a reference to a Ministry of Defence Police role].”

38.	As the excerpts that I have just read indicate, on 25 October 2008 Mr Rhodes was appointed Deputy Chief Constable of Lincolnshire Police under a fixed-term appointment, which expires on 25 October 2014.  On 1 April 2012 Mr Rhodes was appointed Temporary Chief Constable of Lincolnshire Police by the Lincolnshire Police Authority.  He was appointed on a fixed-term appointment, which expires on 31 March 2013 unless it were to be extended.  On 22 November 2012 Mr Hardwick assumed office as PCC for Lincolnshire.  He thereby became the appropriate authority for complaints against the Chief Constable and conduct matters arising with respect to the Chief Constable under the Police Reform Act 2002 and the Conduct Regulations to which I have referred.  

39.	On 11 December 2012 Mr Hardwick met Mr Rhodes and told Mr Rhodes that he did not wish Mr Rhodes to be the Chief Constable of Lincolnshire Police.  

40.	The next day, 12 December 2012, was the day of the conversation which has given rise to these proceedings.  Also on that day the applicant started to make applications for posts outside Lincolnshire.  Mr Hardwick would have known that this would happen and he had encouraged it.  Specifically, and looking ahead, he would have known that Mr Rhodes was in the middle of a selection process on 25 February 2013, because the meeting at which he suspended Mr Rhodes was arranged for that evening to avoid a clash with the selection process the next day.  

41.	Although it was plainly necessary for the applicant to consider options, he remained committed to remaining in post at Lincolnshire if he could.  Accordingly, he wrote to the Chief Executive of the PCC on 7 January 2013 by a letter dated 6 January 2013 in the following terms: 

“2. Joining Lincolnshire Police as a constable in 1986 and later returning as DCC in 2008, it is a matter of intense personal pride for me to have led this force as Chief Constable for the past year.  It is still my desire to continue leading the force, if the Commissioner has a change of heart.  I bear him absolutely no ill will in this matter.
...
5.  On our first meeting that day the Commissioner told me that, after long consideration ‘and I have thought of little else recently’ he had decided I was ‘not the man to lead Lincolnshire Police with (him) in the future.  He thought I ‘would make an outstanding chief constable in a larger force’ and that the work I had done around outsourcing would make me ‘a very attractive candidate’.  He then handed me a range of advertisements that he had asked staff to print out for him of chief constables’ jobs currently available across the country.  I reaffirmed to him my commitment to Lincolnshire Police and asked him why he didn’t consider me suitable.  The PCC’s only comment was that he had found our first meeting on the weekend of his appointment ‘a little bit heavy’ but felt I would be ‘a good chief constable in another force’.  He wanted ‘his own man’.  He strongly encouraged me to apply for roles in other forces and said he thought, in due course ‘you will thank me for this’.  He said, on three occasions during this initial conversation that ‘who I want at chief constable is my decision to make and I have made it’. 

6. I returned to meet him again later that day.  I asked him to consider working with me for a further year to build a relationship. . He was reluctant to do this.  I made clear, yet again, my absolute commitment to Lincolnshire Police and the fact that in recent years there had been many opportunities available in other forces, but I had stuck with my commitment to Lincolnshire. 

7.  In terms of the practicalities of applying for other jobs at the present time, I outlined my personal circumstances, which he was aware of from previous, recent conversations. Although I have two older children, one working and one away from university, my youngest, 17 years is part way through his ‘A’ levels.  My wife has recently had a very serious illness and is in recovery from it.  My mobility, in terms of moving home, is severely limited as a consequence.

8.  In our third, brief meeting towards the end of the day, the Commissioner gave me the assurance of absolute confidentiality in relation to our conversation, in order that I could pursue external applications without prejudice.  I was grateful for that. 

9. Since that time I have continued in my role as Chief Constable diligently and professionally. I have shared with the PCC positive proposals to complete the operational reshaping of the force, and sought always to protect his reputation and that of the force in the way we conduct our business.  However this matter concludes, I will continue in that vein as a matter of personal integrity.

10.  I am in a very uncertain position at the moment and I would ask for clarity in relation to the following matters.

11. Is the PCC able to reconsider his decision in relation to my future?

12.  Is the PCC proposing to extend my FTA as temporary chief constable at all, and if not has there been any decision as to when it will conclude?

13. I should be grateful if you would ask the Commissioner to consider these matters.”

42.	On 14 January 2013 the PCC’s Chief Executive wrote to the applicant, stating that his fixed-term appointment as TCC would not be extended when it expired on 31 March 2013. In that letter he said that the decision not to extend was irrevocable.  There is a dispute between the parties about whether sufficient notice was given, but that dispute does not form part of the matters for decision in these proceedings.  

43.	It is now necessary to divert to the facts that gave rise to the applicant’s disputed suspension.  

44.	Mr Ajaz Hussain was for a number of years Director of Legal Services at West Yorkshire Police.  He is an experienced solicitor and a tribunal judge.  By virtue of his seniority Mr Hussain was a member of ACPO and CPOSA.  In 2012, Mr Hussain was dismissed by West Yorkshire Police on the grounds of redundancy.  He commenced proceedings in the employment tribunal against West Yorkshire Police alleging unfair dismissal and discrimination on the grounds of his race.  His allegations of race discrimination involved allegations against the Deputy Chief Constable and two other named individuals, and implicated Sir Norman Bettison.  In connection with those employment tribunal proceedings, Mr Hussain was offered a CPOSA friend.  Initially, Assistant Chief Constable Dee Collins of the Derbyshire Police was appointed to undertake the role, but he ceased the role in circumstances about which the court does not know much or anything.  On 20 April 2012 Mr Rhodes was appointed by CPOSA to take over from Mr Collins as Mr Hussain’s CPOSA friend.  On being asked to undertake the role, he accepted, consistently with the cab rank principle to which I have already referred.  On the information available to the court, Mr Rhodes had never spoken to Mr Hussain before being appointed as his CPOSA friend.

45.	In his role as Mr Hussain’s CPOSA friend, the applicant has taken various steps, all but one of which is uncontroversial for the purposes of these proceedings.  Those steps involved speaking to Mr Hussain, meeting him and having conversations on his behalf including a conversation with a Mr Parkinson, the then Deputy Chief Constable of West Yorkshire Police, to introduce himself as Mr Hussain’s friend.  According to Mr Rhodes, on 11 December 2012 he spoke to Mr Hussain, who confirmed that he should have a without prejudice conversation with Mr Sampson, who was by now the Chief Executive and Solicitor to the Office of the PCC for West Yorkshire, to attempt to arrange a meeting between the parties to explore the possibilities of settlement.  That conversation happened on 12 December 2012.  It was a telephone conversation, which, according to one note, lasted 32 minutes.  

46.	The evidence about that meeting is as follows:

i)	Firstly, according to the applicant, the conversation was amicable, and Mr Sampson did not suggest at any stage that there was anything improper about it;

ii)	Secondly, the applicant made a short note of the conversation, which, apart from recording the duration of the conversation as being 32 minutes, does not record the substance of the conversation;

iii)	Thirdly, Mr Sampson made an attendance note of the conversation.  That note is central to the issues in this case and is annexed as an annexure to the judgment.  The critical feature which I read out for the moment is that at the outset it is recorded: 
“NR saying that AH’s solicitors [that is Mr Hussain’s solicitors] were not CPOSA’s usual ones and that they were heading helter-skelter for a very expensive hearing -- he wondered if it would be beneficial for a face-to-face meeting”

Most of the first page is a record of things said by Mr Sampson, at the end of which Mr Rhodes is recorded as saying that he appreciated Mr Sampson’s frankness and that he would speak equally frankly.  There is then a further passage before what the parties, and Mr Hardwick in particular, may have regarded as the most material passage, which reads as follows: 
“NR saying the litigation would have repercussions and reputational risk, that AH knew about other cases such as JC where people got substantial settlements and NR wanted to avoid some dirty tricks being played at hearing  

NR saying that he never had SNB [which is a reference to Sir Norman Bettison] down as a racist, and that the race element in the claim was simply a lever for damages, and that a wider unfairness was the real issue 

NR saying that he wanted to broker a sensible and reasonable resolution”

A little later on is a paragraph: 
“NR saying that CPOSA would not fund the hearing if a sensible offer were made and he invited WYP [West Yorkshire Police] to reconsider so that he had something to put to his insurers.”

I should have said that, before the passage relating to the litigation repercussions, it is recorded that: 
“NR saying that AH’s lawyers were giving AH unrealistic assessments of the compensation he would get and that he needed some realism”

iv)	Over a month after the meeting, on 15 January 2013 Mr Sampson notified his own PCC of concerns about the conversation.  That appears to have led to a sequence of events which culminated on 19 February, over two months after the conversation.  On that date, Mr Sampson wrote to the defendant’s Chief Executive outlining the history of Mr Hussain’s claim and the internal investigations that had occurred.  He then turned to “Involvement of CPOSA”, and continued in the following terms: 
“Involvement of CPOSA

Following the abolition of the Police Authority in November 2012, Mark Burns-Williams was elected as the Police and Crime Commissioner for West Yorkshire. As you know I am the Chief Executive and Solicitor to the Commissioner.

On 12 December 2012, Neil Rhodes (who I believe is Temporary Chief Constable of Lincolnshire Police) contacted me by telephone.  He advised me that he was acting as the CPOSA friend to Mr Hussain in his action against the force and the named individuals.  I then had a relatively detailed conversation with T/CC Rhodes, the contents of which I have recorded in the enclosed attendance note.  

I reflected on the conversation that had taken place and decided that I needed to notify my Commissioner, CPOSA and HMIC.  My reasons for doing were as follows.  

The essence of the conversation was that the litigation held substantial risk for my Police and Crime Commissioner, and the sooner we (the Commissioner’s Office) could get this settled the better it would be for us.  The principal risk was said by T/CC Rhodes to be reputational from the fact that the claim alleged race discrimination by a senior member of staff against several people including a chief constable and involved the conduct of another.  However, when I gave the view that this element of the claim was entirely unsupported and appeared to be an obvious contrivance, T/CC Rhodes agreed and said that it had been pleaded only to provide leverage by which to address other perceived unfairness.  This, in my view, raised issues beyond the litigation itself, the first of which is the scope for chief officers as public office holders to support the litigation against other public bodies in public tribunals, when they know or believe that the substance of what is being alleged is wrong.  Secondly, I question the propriety of a chief police officer contacting the Office of the Police and Crime Commissioner in this way and for this purpose.  Further, as our police authority felt obliged to record a conduct matter in respect of our then DCC (now a CC) substantially on the basis of the racial element pleaded in this case, to report it to the Commission and to appoint another chief constable as investigating officer, I think this raises further significant matters about the inter-relationship between different chief officers affected by such proceedings.  

Finally, I think the issues around insurance and candour with those providing the cover to CPOSA may also be engaged here and I subsequently looked at the policy to assess the extent of any express or implied obligations on those acting in the capacity of CPOSA friends.

On 15 January 2013 my Police and Crime Commissioner and I had a scheduled telephone conference with HMIC Roger Baker and, during the course of that discussion, notified him of our concerns at the involvement of T/CC Rhodes in this matter and the proper boundaries for chief police officers acting in the capacity of CPOSA friend.  We agreed that I would notify the President of CPOSA to clarify the extent of the proper involvement of chief officers in such matters and to consider the particular involvement of T/CC Rhodes.  

On 24 January 2013 I wrote in these terms to Craig Mackey, Deputy Assistant Commissioner of the Metropolitan Police in his capacity as President of CPOSA and he replied shortly afterwards (4 February) advising me that he was looking into the matter. 

On 10 February 2013 I notified the Home Office of my wider concerns in relation to these matters and sought a meeting to discuss them on 27 February.  

On 15 February after I telephoned you, I spoke with the Office of the Police and Crime Commissioner of South Yorkshire to advise them of my conversations and that I would be copying them into correspondence.  I also spoke to Rebecca Reid at the Commission and I am copying this letter to her.

In conclusion, the litigation will continue to take its course and I gather that our Temporary Chief Constable may have raised T/CC Rhodes’ intervention directly with him. I have been unable to arrange a meeting with CPOSA at this stage or to clarify what guidance their members receive in relation to the proper parameters of their role as ‘friends’.  I will leave any further considerations as to the appropriateness of that intervention for you to consider but my Police and Crime Commissioner and I believed you should be made aware of these circumstances.”

v)	The applicant’s first full account of the telephone conversation is in a letter dated 8 March 2013.  The whole letter is relevant, but for present purposes I recount the passage directly relating to the conversation: 
47. I outlined the fact I had had short conversations with Sir Norman Bettison, David Crompton and John Parkinson.  Mr Sampson said that John Parkinson was a candidate for the vacant Chief Constable’s post and mentioned that he did not want to appear to put him under pressure about this matter and so he had not discussed matters with him at length.  Mr Sampson has not recorded this in his note.

48. I related the fact that John Parkinson (DCC and then Acting Chief Constable) had told the ‘race’ element of the allegations had ‘hurt’.  He had said Mr Hussain’s lawyers were looking for very large sums indeed and that there was no point having a conversation on that basis.  We did discuss that and I did say that if we were to find common ground all parties would have to be realistic.  I am no expert in these matters and was aware expert lawyers had been involved on both sides, but this did seem to be a fairly obvious proposition that if a settlement was to be achieved then compromise was necessary on both sides.  

49. I believe that it was the comments I relayed that had been made by John Parkinson that led us into a discussion about the race element of Mr Hussain’s claim.  We did touch upon the personalities involved. I was careful not to say anything critical.  I know all of the parties involved.  ACPO is a very small world. . The situation around Sir Norman Bettison and his involvement with the Hillsborough Inquiry was and still is sensitive.  I did not really know John Parkinson, but he had made it clear in our short conversation that the ‘race’ element of the allegation ‘hurt’. 

50. This led to a comment about how discrimination around disability, gender, religion and race gives access to the law in a way simple ‘poor treatment’ does not. . I do not recall how this point developed or how it was introduced.  In his letter dated 19 February 2013 Mr Sampson says ‘I gave a view that this element of the claim was unsupported and appeared to be an obvious contrivance, T/CC Rhodes agreed and said....’, whereas in his attendance note he purports to record ‘NR saying that he never had SNB down as a racists and the race element in the claim as simply a lever for damages and that a wider unfairness was the real issue’.  Even Mr Sampson’s own accounts of what was said and by whom are not consistent.

51. For absolute clarity, I believe I remained silent when Mr Sampson stated that the race element of the claim was a ‘contrivance’ and a ‘lever’ and that I was careful not to express a personal opinion on this suggestion.  My silence, in order not to provoke argument, was not indicative of my assent.  

52. In conditions of perceived unfairness it is always possible to cite gender, race or disability to strengthen a case or enable a case to be pursued.  As a police officer I am trained when recording a complaint to look at the subject’s view of whether or not an issue is motivated by an element of discrimination.  This stance was recommended by Mr Justice McPherson’s Inquiry into the murder of Stephen Lawrence and has been train in policing since 1999.  As a CPOSA friend I have a duty to work in my client’s interests.  He is entitled to my support whatever my personal view.

53. For absolute clarity, I did not express agreement with Fraser Sampson’s assertion that Mr Hussain’s race claim was a contrivance.  

54. Furthermore, in terms of my personal view – which I stress is irrelevant to my role as a CPOSA Friend – I do not agree that Mr Hussain’s race claim is a contrivance.  Indeed, I am confident that Mr Hussain believes the treatment he has received is underpinned by racism and he believes he has been treated unfairly as a consequence.  

55. The note concludes shortly after.  I did say CPOSA would not press to a court hearing if a sensible offer was made.  I thought this was a statement of the obvious and perfectly sensible.  I did say the PCC’s reputation was at stake –as well as that of the wider police service (which is omitted from the note) – it plainly is.  Mr Sampson seems to recognise this himself as recorded earlier in his note. 

56. In summary, I deny either supporting the view of Mr Sampson and/or making reference to Mr Hussain’s claim for race discrimination being untrue or a contrivance of simply leverage.”

47.	On 24 February 2013 the applicant returned home from holiday.  25 February was his first day back in the office.  He was telephoned by the PCC’s Chief Executive that afternoon and requested to attend a meeting the next day.  He explained that he was due to go to London the next day for psychometric testing as part of the selection process for the selection of a new Chief Constable of the Ministry of Defence prior to an interview the following Monday.  The meeting was therefore arranged for 7.00 p.m. that evening, 25 February.  

48.	At the meeting:

i)	Mr Rhodes met Mr Hardwick, the PCC’s Chief Executive, and a solicitor acting for the PCC was also present.  The PCC read out and then handed to Mr Rhodes a letter suspending him from duty.

ii)	That letter said: 
“It is with regret that I have decided that I must exercise my powers to suspend you from your office as a constable, pursuant to S38(2) of the Police Reform and Social Responsibility Act 2011 and The Police (Conduct) Regulations 2012.  

The reason for my decision is set out below.  

On Friday, 22 February 2013 I received information that suggests you have breached the Standards of Professional Behaviour.  

The issues arise out of your involvement as CPOSA Friend to Mr Ajaz Hussain and the proceedings he has commenced against West Yorkshire Police.  

The information potentially impacts on your honesty and integrity, reporting and challenging improper conduct by others as well as your own conduct which may or could bring discredit on the police service and undermine public confidence.

I have concluded that these issues are recordable conduct matters.  I have consulted with the IPCC and the matters are being referred to the IPCC.  

You will be notified of who will conduct the investigation as soon as possible.  

I have considered very seriously whether there is an alternative to suspension.  I have come to the decision that the circumstances are not appropriate for you to be temporarily redeployed to other duties and given the nature of the allegations the public interest requires that you are suspended from duty.

Whilst suspended, you do of course remain a police officer and will receive your full salary ... 

During the period of your suspension, you should not attend force HQ or any other police building unless requested to attend a meeting or interview as part of the investigation.  You should hand to my Monitoring Officer your warrant card, access key card and force issue mobile data equipment.”

iii)	It will be seen that the letter gives no details at all about the nature of the allegations or information that had led to Mr Rhodes’ suspension.

iv)	It is said that the act of suspension is “neutral” in the sense that it does not pre-judge the outcome of any disciplinary proceedings if the decision is ultimately taken to institute them.  In other respects, it is anything but neutral.  In argument, I suggested the use of the phrase “near-nuclear” to describe the step of suspension.  The immediate impact was very clear.  Mr Rhodes was escorted back to his office by the PCC’s Chief Executive and, albeit quite courteously, had his warrant card seized along with his electronic access passes, but he was allowed to remove his personal items.  He had to negotiate being allowed to use a police hold-all to take his photographs and personal effects.  He had to show papers to the Chief Executive to ensure that they were personal.  After a short discussion, he was allowed to take with him a police cape he was given 27 years before and which he had kept in a number of offices in three forces across the years.  In addition, though there may be no technical impairment, the practical effect is that he cannot apply for other posts.  He was in the late stages of selection for the Ministry of Defence position and he had been invited to re-apply for the re-running of the North Yorkshire position.  The suspension effectively closes off those possibilities.  While proportionality for the purposes of an Article 8 claim is not in issue in this hearing, these matters serve to illustrate the seriousness of a decision to suspend any senior police officer, as well as this officer in particular.  

49.	At this stage, and for a period of seven days thereafter, the applicant was not told who had made the complaint or raised the matters that had given rise to suspension. On 27 February Mr Rhodes’ solicitors wrote a full letter protesting at the suspension, asking for reasons and adverting to the prospect of proceedings in the event that the suspension was maintained. On 1 March 2013 the PCC’s solicitors responded but gave no reasons for the suspension. On 4 March 2013 Mr Rhodes’ solicitors sent a pre-action protocol letter threatening JR proceedings and demanding an explanation and reasons. That same day, the PCC’s solicitors sent Mr Sampson’s letter of 19 February, which was said to have been received by the PCC on 23 February 2013 and his attendance note.  I note in passing that 19 February was a Tuesday, 23 February was the Friday, and 25 February the Monday.

50.	On 5 March 2013 the PCC’s solicitors responded with what they called their response to the judicial review protocol letter of 4 March 2013.  That letter included the following: 

“1. The Police and Crime Commissioner is not prepared to revoke the suspension.  As requested in the alternative, this letter provides more detailed reasoning for the suspension (and provides more documentation), and is confined to that....

2. The information contained in those documents significantly underpinned the decision to suspend that decision and that decision was taken after consultation with the PCC’s monitoring officer and legal advisor, and the IPCC although the contact with the IPCC did not influence the decision to suspend.
...
Central allegation, and how it came about
4.1 The concern here in relation to TCC Rhodes does not come about because of his role, in itself, as CPOSA friend of Ajaz Hussain, but the way in which he has conducted himself.  It is therefore not a situation where you wonder whether the reason for suspension was (simply) ‘...his exercise of the role as Mr Hussain’s CPOSA friend.’ §9j protocol letter].  TCC Rhodes was, self-evidently, entitled to act as CPOSA friend, and he should be able to pursue his role fearlessly and robustly without fear of criticism. However, if Fraser Sampson is right – and the PCC has no reason to doubt him – TCC Rhodes has been complicit in the pursuit of racial discrimination claims which are a ‘contrivance’ and which he knows to be untrue and only pursued as leverage.

4.2  That is an extremely serious allegation going to fundamental honesty and integrity, and one which demanded a reaction from the PCC.  The allegation clearly raises a conduct matter within the meaning of s.12 of the Police Reform Act 2002 and engages Schedule 2 standards of professional behaviour.  We would be surprised, on seeing the material, if you were to contend to the contrary.

4.3 It is of note that the source of the allegation is an external force.  That, in turn resulted from an unsolicited contact by TCC Rhodes to Fraser Sampson.  Whether it was instructions from Mr Hussain, we cannot of course know, but if it was not, it is the more remarkable. 

4.4 The PCC took – and continues to take the view – that the allegation raises a serious case to answer in terms of Schedule 2 standards of:

(i)	Honesty and Integrity: Police officers are honest, act with integrity and do not compromise or abuse their position.
(ii)	Discreditable conduct: police officers behave in a manner which does not discredit or undermine public confidence in it. 
(iii)	Challenging and reporting improper conduct: police officers report, challenge or take action against colleagues which has fallen below the standards of professional behaviour.
4.5 We attach the PCC decision request/report dated 25.2.2013 which sets out the mechanism by which the PCC took the decision to suspend.  That report is the document referred to in the letter dated 25 February 2013 to Amerdeep  Somal at the IPCC (copy similarly attached.) That referral letter, whilst dated 25.2.2013 was sent on the following day. 

5. Redeployment and the public interest
5.1 It is clear from the terms of the suspension letter (25.2.2013) and the PCC decision report that redeployment and the public interest were properly considered by the PCC in the exercise of his discretion as to whether to suspend (as of course they must be under Regulation 10(4)(a) and (b) of The Police Conduct Regulations 2012.)

5.2 The PCC regarded – and continues to regard – the central allegation as being sufficiently serious that redeployment is not appropriate and that the public interest requires that TCC Rhodes should be suspended.  He has had regard – within the terms of Regulation 10(4)(b) – to the nature of the allegation and the wider public interest.  The suspension is in the public domain and the PCC takes the view that it is untenable for TCC Rhodes to remain in post in any capacity.  Whilst it is accepted that the central allegation is no more than that – an allegation – it is one which would rightly concern members of the public and would only undermine confidence in TCC Rhodes’s ability to head the force, but would undermine confidence in the force as a whole and the office of the PCC.”

51.	The following points arise on this letter:

i)	First, in asserting that the PCC had no reason to doubt Mr Sampson, there is no indication that the PCC took into account the fact that Mr Rhodes was a serving police officer of 27 years standing with a previously unblemished record for honesty and integrity, who had led the Lincolnshire force with some distinction since his appointment as TCC.  This, as will be seen, remains the position throughout the documents provided by Mr Hardwick and in his witness statement;  

ii)	The PCC used the words “complicit in the pursuit of racial discrimination claims which are a ‘contrivance’ and which he knows to be untrue” without explaining what they mean, but with the clear implication that Mr Rhodes has been fundamentally dishonest and lacking in integrity;

iii)	The PCC did not identify the precise role that he considered was or may have been undertaken by Mr Rhodes as the CPOSA friend of Mr Hussain; 

iv)	The PCC appears to have regarded it as “remarkable” that Mr Rhodes made “unsolicited” contact with Mr Sampson even if it was done on Mr Hussain’s instructions.  Fifth, at 5.2 the PCC states: 

“The suspension is in the public domain and the PCC takes the view that it is untenable for TCC Rhodes to remain in post in any capacity.”

The meaning of this sentence is opaque.  If it means that it would be untenable for Mr Rhodes to remain in post in any capacity because the suspension is in the public domain, it begs the proper question, which was the other way round, namely whether it was untenable for Mr Rhodes to remain in post in any capacity and therefore he had to be suspended.

52.	Attached to the letter of 5 March 2013 were documents signed by Mr Hardwick as evidence of the process he had followed in reaching his decision. For the purposes of this judgment, I will summarise the most salient points:  

i)	The summary of the matter to be considered was a paraphrase in the following terms: 
“In essence the information presented suggests that Mr Rhodes whilst acting as CPOSA friend to Mr Hussain, was aware that allegations of racial discrimination made by Mr Hussain against senior officers of West Yorkshire police were unsupported and a contrivance, and had been pleaded and alleged only to provide ‘leverage’.  The telephone attendance note of the conversation between Mr Rhodes and Mr Sampson, Chief Executive of West Yorkshire OPCC records Mr Rhodes as saying ‘the race element in the claim was simply a lever for damages’.  It is also recorded in the note Mr Rhodes saying that ‘the PCC’s reputation was at stake here’.  Mr Rhodes is recorded in the note of wanting to ‘broker’ a resolution, but that ‘what he could see was what looked like a paltry settlement being offered to a senior person who had been dismissed’.  Mr Rhodes is recorded as saying that he ‘wanted to avoid some dirty tricks being played at the hearing’.”;

ii)	That summary did not assert in terms that Mr Rhodes was “complicit” or as later asserted by Mr Hardwick, but it did make material changes to the actual terms of the letter and attendance note.  In particular, where Mr Sampson’s note said “NR saying he wanted to broker a sensible and reasonable solution” (emphasis added), the summary omitted the important words “sensible and reasonable”, and juxtaposed the truncated reference to wanting to broker a resolution with the words “but that ‘what he could see was what looked like a paltry settlement being offered to a senior person who had been dismissed’”, which in fact appeared in a different part of the attendance note and not in a juxtaposition that suggested that Mr Rhodes was linking his wish to broker a resolution with the reference to the present offer being paltry;

iii)	In the section recording the PCC’s decision, the document recorded under the heading “Discreditable conduct”: 
“I have considered whether the issues raised are sufficiently serious to suspend Mr Rhodes from duty as a police officer.  I have considered regulation 10 of the Police (Conduct) Regulations 2012.  While acknowledging that suspension is a neutral act I have decided that I cannot justify to the public of Lincolnshire or the Force for Mr Rhodes to remain on duty as a police officer pending an investigation.  I have authority pursuant to S.38(2) of the PRSRA 2011 to suspend the Chief Constable.”

The PCC did not explain why he had decided that he could not justify it to the public of Lincolnshire or the force for Mr Rhodes to remain on duty as a police officer pending investigation.

53.	On 8 March 2013 Mr Rhodes’ solicitors responded, making representations.  In briefest outline, he made the following points amongst others:

i)	He explained his role as a CPOSA friend including that he was not directly involved in negotiating a settlement himself but that he wanted the parties who were directly involved to explore the possibility of a negotiated settlement (see paragraphs 26, 34 and 58);

ii)	He pointed out that West Yorkshire and Mr Hussain had their own legal representatives who were qualified to understand the complexities of the case (see paragraph 28);

iii)	He said that it was not for him as CPOSA friend to evaluate or advocate the claim, and that he had not considered the case in any great detail or to the extent to allow him to make any judgment upon it, which in any event would not be his role as friend (see paragraphs 37, 38 and 58);

iv)	He said he did not recall how the point about discrimination developed or how it was introduced.  He accepted that Mr Sampson had used the words “contrivance” and “lever”, but said that he believed he had remained silent and had not expressed an opinion on the matter (see paragraphs 50 to 51, and 53);

v)	He accepted that he had said that the WYP PCC’s reputation and that of the wider force was at stake and asserted (correctly in my view) that it clearly was (see paragraph 55).  

54.	On 12 March 2013 the PCC’s solicitors replied.  The PCC maintained the suspension, giving essentially the same reasons as he had given previously.  

55.	By way of postscript, there is information about the attitude of the IPCC to this case:

i)	on 25 February 2013, after his meeting with Mr Rhodes, Mr Hardwick sent to the IPCC the report and his decision of that day, recording that he had already sent the IPCC Mr Sampson’s letter of 19 February 2013 and the attendance note of that meeting;

ii)	There are three emails originating from the IPCC.  The first, dated 27 February 2013, timed at 4.53 p.m., from the IPCC to Mr Rhodes’ solicitors says: 
“The IPCC has received a voluntary referral from the office of the Police and Crime Commissioner for Lincolnshire in respect of a telephone conversation made by CC Rhodes to Mr Sampson.  

Having examined the information provided to us, we are unable to establish the statutory basis upon which the conduct of CC Rhodes has been recorded under the Police Reform Act 2002.  As a consequence of this, the IPCC will not at this stage be making a determination under paragraph 14 of schedule 3 of the Police Reform Act 2002.”

By an email timed four minutes later, the IPCC said as follows: 
“This is the statement I intend to give to media shortly who have been asking about the situation:

‘The IPCC has completed an assessment of information referred to us by the Lincolnshire Police and Crime Commissioner in relation to a potential conduct matter concerning the force’s Temporary Chief Constable, Neil Rhodes.  It is our assessment that the information supplied does not amount to a recordable conduct matter against Mr Rhodes, and therefore does not require IPCC involvement.  The IPCC has informed Lincolnshire’s Police and Crime Commissioner of its decision.’”

Subsequently, on 11 March 2013, in another email to Mr Rhodes’ solicitors, the IPCC wrote as follows:
“What we will put out as 4.00 p.m. as discussed [which sounds as if this was to be another media statement]:

‘The IPCC has now completed a detailed assessment of the referral of the potential conduct matter concerning the force’s temporary Chief Constable, Neil Rhodes.  The outcome of the IPCC assessment is that we are satisfied the matter requires investigation but does not amount to serious corruption or misconduct which would merit an IPCC investigation.  The decision to return this matter for local investigation has been communicated to the Lincolnshire Police and Crime Commissioner.  It will now be for him to determine the way forward.  The IPCC has advised that if other concerns come to light in the course of the investigation the matter should be re-referred to us.’”

iii)	No evidence is available to indicate what provoked the IPCC’s more detailed assessment.  In particular, it is not known whether the PCC or anyone on his behalf contacted the IPCC again after its publicly-declared decision on 27 February was notified to him, as stated in the media statement of that date, and speculation on that point is impermissible for the court.

Discussion

56.	The starting point is for the court to remind itself that this is a rationality challenge and that the Wednesbury unreasonableness test sets the bar high.  Mr Rhodes must show that Mr Hardwick’s decision was irrational or, to use another term, perverse.  And, in addressing that question, the court must bear in mind at all times that Mr Hardwick was the primary decision-maker, whose office was established by Parliament, which gave him and not the court the responsibility for dealing with the appointment and, if necessary, the suspension of chief constables.  

57.	It was a consistent thread in Mr Hardwick’s evidence, and the submissions made on his behalf, that the conduct he understood to be alleged by Mr Sampson, if true, would be serious.  That, however, is not of itself a reason to suspend an officer from his position as constable.  What was required in any rational process included consideration of the likelihood that the interpretation he placed on the letter and the attendance note was in fact correct.  This obligation would exist even if the documents from Mr Sampson had permitted only one explanation or interpretation.  If that had been the case, it would have been necessary for the PCC to consider: (a) whether Mr Sampson might be wrong in his recollection; (b) whether Mr Sampson might otherwise have misinterpreted what was being said to him; or (c) whether an investigation might conclude that, for some other reason, including the prospect of a contrary version being advanced by Mr Rhodes, an investigation, if undertaken, would ultimately exonerate Mr Rhodes.  Self-evidently, such considerations would include, but go wider than, simply assessing what was known about the writer, Mr Sampson, and the subject, Mr Rhodes.  

58.	I have said that this obligation would have existed even if the letter and attendance note from Mr Sampson permitted only the interpretation that Mr Hardwick placed upon them.  In the event, as detailed later, the material that was available to the PCC did not admit of only one interpretation.  In those circumstances, the obligation to address the possibility that the interpretation which Mr Hardwick placed upon them might not ultimately be sustained was all the more important.  

59.	Mr Sampson held significant positions of responsibility.  He is Chief Executive and Solicitor to the Office of the PCC for West Yorkshire, and the court was told that he is very experienced.  His letter and attendance note therefore demanded close attention.  The point was taken that he did not write his letter of 19 February 2013 until over two months after the conversation in question and that he had not raised any concerns with Mr Rhodes during the conversation.  That is true, but the weight to be attached to the point is reduced by the fact that he started taking the steps that culminated in the writing of the letter a month later, and the letter is a long and carefully prepared letter that indicates that Mr Sampson had real concerns.
  
60.	It is material to look at what he said were his concerns.  They were, as I have outlined, in the passage which set out what I regard as four separate concerns: 

i)	Before the passage where he set out his concerns, Mr Sampson had said in the letter that it was he who had said that he “gave the view” that the discrimination element of the claim was entirely unsupported and appeared to be a contrivance, and that Mr Rhodes had then agreed with that “view”.  Consistently with that, Mr Sampson expressed as his first concern: 
“...the scope for chief officers as public office holders to support the litigation against other public bodies in public tribunals, when they know or believe that the substance of what is being alleged is wrong.” 

In raising his first concern, therefore, Mr Sampson left open the prospect that, on any interpretation, Mr Rhodes was doing no more than expressing a belief that the discrimination claim was unfounded and a contrivance;

ii)	His second concern was to question the propriety of a chief police officer contacting the Office of the Police and Crime Commissioner in this way and for this purpose.  I return to the purpose of the conversation later, but no argument has been advanced to explain why it could be improper of itself for a CPOSA friend to initiate a without prejudice discussion.  Mr Hardwick described it in correspondence as “remarkable”, which in my judgment it was not.  But it does not appear to have been a material factor in his decision to suspend Mr Rhodes.  In any event, it could not of its own justify suspension and it has not been argued that it could;  

iii)	His third concern was not related to Mr Rhodes’ conduct but to the wider issue of the inter-relationship of chief officers affected by proceedings such as Mr Hussain’s.  It was not advanced as a reason for suspension, and I do not consider it further;

iv)	His fourth concern was about “the issues around insurance and candour with those providing the cover to CPOSA” and the obligations of CPOSA friends.  While extremely vague, this appears to raise a question about whether, if he believed Mr Hussain’s claim to be unfounded, Mr Rhodes had an obligation to notify CPOSA’s insurers.  This has not been advanced by the PCC as a ground for suspension, and I do not consider it further. 

61.	I turn, therefore, to the substance of the attendance note and the letter, since that was the raw material available to Mr Hardwick, on the basis of which he was obliged to scrutinise the concerns expressed by Mr Sampson in the way I have indicated when deciding whether the public interest required him to suspend Mr Rhodes.  

62.	Although undated, it is to be presumed for present purposes that the attendance note came first in time.  It should also have been apparent to Mr Hardwick that the attendance note was likely to have been composed at a time when matters were fresher in Mr Sampson’s mind than two months after the conversation when he wrote his letter.  

63.	The following points should have been clear to Mr Hardwick:

i)	The purpose of the conversation was stated by Mr Rhodes at the outset: “he wondered it would be beneficial for a face-to-face meeting”.  On the face of the attendance note, therefore, the purpose of Mr Rhodes calling was not actually to negotiate in the conversation towards a better offer but to facilitate a meeting between those who had conduct and control of the claim, the parties and their lawyers.  That did not include Mr Rhodes;

ii)	Most of the first page records Mr Sampson speaking.  It was after a page of Mr Sampson speaking to Mr Rhodes that “NR [said] he appreciated FS’s frankness and that he would speak equally frankly”.  He then did so, pointing out, in all probability correctly, that the availability of insurance to Mr Hussain and the fact that either no or a “paltry” offer had been made to him, combined with what he, Mr Rhodes, considered to be unrealistic assessments from Mr Hussain’s lawyers, “gave him nothing to work with and there was a ‘bloody day’ in court ahead”;

iii)	 In his submissions to the court, it was an important part of Mr Sweeting’s submissions, based upon what he submits to be a reasonable interpretation of Mr Sampson’s letter, that Mr Rhodes was prepared to push Mr Hussain’s discrimination claim and the reputational risk it held for the respondents in the West Yorkshire force, and that he did not acknowledge that the claim was unfounded until challenged by Mr Sampson.  This, submits, Mr Sweeting, is reprehensible, because it suggests that if Mr Sampson had not challenged him, Mr Rhodes would have been prepared to continue to promote what he believed to be an unfounded claim.  However, looking at the critical passage of the attendance note undermines that submission.  The note records that after Mr Rhodes had said, entirely correctly, that the litigation would have repercussions and reputational risk, it was Mr Rhodes, and not Mr Sampson, who said “he never had [Sir Norman Bettison] down as a racist” and that “the race element in the claim was simply a lever for damages and that a wider unfairness was the real issue”.  On its face, this was important material for Mr Hardwick’s consideration because: 

a)	It undermined the suggestion that Mr Rhodes would have been happy to promote or support the validity of the discrimination claim unless and until the challenge by Mr Sampson; 

b)	Read in context, Mr Rhodes was saying that the real issue in the case was “a wider unfairness”; 

c)	On the terms of the note, Mr Rhodes was not in any sense supporting the discrimination claim.  On the contrary he was saying it was unfounded;

iv)	Immediately after his observations on what Mr Rhodes had said was the real issue, Mr Sampson records Mr Rhodes as saying that he wanted to broker a settlement that was “a sensible and reasonable resolution”.  On the face of the note, and when read in context, that cannot have been a resolution that treated the discrimination claim as well founded; 

v)	For obvious reasons the reputational risk to the force would remain if Mr Hussain pressed on with the discrimination claim, whether or not it was well-founded.  The recorded observations from Mr Rhodes that the litigation would have repercussions and reputational risk, and that the PCC’s reputation was at stake, were accurate, as Mr Sweeting acknowledged.  It is a regrettable feature of everyday litigation experience that certain allegations when raised in litigation are liable to cause reputational damage even if they are ultimately shown to be ill-founded.  Allegations of discrimination can have that character.  That, amongst other reasons, is why settlement of claims where allegations of discrimination are made can be so difficult;

vi)	There is no reason to doubt the accuracy of Mr Rhodes’ observation, recorded at the end of the note, that “CPOSA would not fund the hearing if a sensible offer were made and he invited WYP to reconsider so that he had something to put to his insurers”.  That did not say that an improved offer should include an unjustifiable sum on the basis that the discrimination claim was being supported as well-founded by Mr Rhodes.  On the contrary, by then he had, on Mr Sampson’s account, made clear that in his belief it should not be.

64.	Turning to the letter, it stated that the respondents had engaged Eversheds as their external solicitors, and that Mr Hussain was being advised by lawyers.  Mr Hardwick therefore knew that, as Mr Sweeting accepted, Mr Rhodes did not have either conduct or control of the proceedings on behalf of Mr Hussain, and that his conversation was with someone who did not have conduct or control of the claim for the respondents.  Mr Hardwick also knew that Mr Rhodes was acting as Mr Hussain’s CPOSA friend.  He should therefore have known the role that a friend might be expected to take, including, as stated by the Home Office guidance, in proceedings under the conduct or performance regulations, making representations to the appropriate authority concerning any aspect of the proceedings.  It should therefore not have come as any surprise to him that Mr Rhodes might initiate a conversation, particularly as Mr Hardwick did not know whether or not he did so on instructions from Mr Hussain.

65.	In his witness statement, Mr Hardwick identifies the passage that he regarded as being the passage on page 30: 
“The essence of the conversation was that the litigation held substantial risk for my Police and Crime Commissioner, and the sooner we (the Commissioner’s Office) could get this settled the better it would be for us.  The principal risk was said by T/CC Rhodes to be reputational from the fact that the claim alleged race discrimination by a senior member of staff against several people including a chief constable and involved the conduct of another.  However, when I gave the view that this element of the claim was entirely unsupported and appeared to be an obvious contrivance, T/CC Rhodes agreed and said that it had been pleaded only to provide leverage by which to address other perceived unfairness”

It was necessary for Mr Hardwick to scrutinise this passage in context to see what it meant, and in particular whether it was capable of bearing more than one interpretation.  

66.	Mr Hardwick states at paragraph 5 of his witness statement: 
“I took this to mean 
a. that Mr Rhodes had contacted the West Yorkshire Police and Crime Commissioner on behalf of Mr Hussain; 
b. that he had done so for the purpose of persuading the Commissioner to settle Mr Hussain’s claim; 
c. that he had drawn attention to the reputational risk of contesting the action, principally as a result of allegations of race discrimination; 
d. that when challenged about the basis of these allegations (race discrimination), he had agreed that they were unsupported and a contrivance and had himself then volunteered that they were only made in order to increase the prospect of the Commissioner settling rather than contesting the claim (i.e. ‘leverage’).”

It is immediately to be noted that Mr Hardwick’s “interpretation” does not state in terms that he interpreted the letter as meaning that Mr Rhodes was telephoning Mr Sampson for the purpose of persuading the Commissioner to settle Mr Hussain’s claim at a greater value than it deserved on its merits.  That being so, on the terms of Mr Hardwick’s interpretation, there is nothing objectionable about this summary, apart possibly from the implication that Mr Rhodes may not have agreed that the discrimination was unfounded if he had not been challenged, which again is not said, and which I have already addressed in relation to the attendance note.  However, in the light of Mr Hardwick’s subsequent actions, it must be assumed that he considered his “interpretation” meant that Mr Rhodes had dishonestly attempted to secure a settlement that was above the true value of the claim by pretending that the discrimination claim had substance when he knew or believed that it did not.  It does not appear that he considered whether the passage was capable of any other interpretation.  If he did, there is no sign of it either in his contemporaneous decision documents, the letter of 5 March 2013, or his witness statement.  He merely states in his witness statement in the present tense: “I do not think that what Mr Sampson says is seriously open to any other interpretation ...”.

67.	I am driven to disagree with Mr Hardwick’s assessment.  When what Mr Hardwick considers to be the material passage is read in context, including the context provided by the attendance note, the following points emerge:

i)	The letter omitted the fact mentioned in the attendance note that Mr Rhodes had said at the outset that he was ringing to see if a meeting could be arranged, and not to see if he himself could make progress towards a settlement in his conversation with Mr Sampson; 

ii)	Mr Rhodes was not responsible for the formulation or conduct of the claim, which was the responsibility of Mr Hussain and the lawyers representing him; 

iii)	If said, it was true that the litigation had substantial risk for the PCC, for reasons discussed above, and it was an entirely reasonable observation that it would be better to get the case settled.  Over and above the normal desirability of disputes being settled, a settlement would have the advantage of avoiding or minimising the reputational risk;

iv)	Although the court does not know the details or substance of Mr Hussain’s claim any more than Mr Hardwick did, an observation that the principal risk was reputational, and arose from the fact that the claim alleged race discrimination by a senior member of staff against several senior people, including a Chief Constable, is unexceptionable.  As already observed, this comment was valid, whether the claim that Mr Hussain and his lawyers were intent on pursuing was well-founded or not;

v)	What Mr Rhodes is recorded as agreeing to is Mr Sampson’s expression of “the view that this element of the claim was entirely unsupported and appeared to be a contrivance”.  Had Mr Rhodes been attempting to maximise an unjustified settlement, his response should have been to dispute that view and to attempt to bolster the validity of the discrimination claim; he did the opposite;

vi)	His reference to the discrimination claim having been “pleaded only to provide leverage by which to address other perceived unfairness” did not refer to anything he had done or for which he was responsible;

vii)	The letter is inconsistent with the attendance note in identifying Mr Sampson as being the person who introduced the suggestion that the discrimination claim was unfounded;

viii)	The letter omitted any reference to Mr Rhodes saying that “he never had Sir Norman Bettison down as a racist”, which is a further remark said in the attendance note to have been volunteered by Mr Rhodes, and therefore inconsistent with an attempt dishonestly to bolster a claim that he knew or believed to be without foundation;

ix)	The letter omitted any reference to Mr Rhodes saying that he wanted to broker a settlement that was “sensible and reasonable”.  

68.	Assuming in Mr Hardwick’s favour that he had the attendance note in mind when reviewing what he considered to be the material part of the letter, there is no indication in his decision documents that he recognised the significance of what it said, or of the points I have identified above.  Had he done so, he should and would have realised that at the least, what Mr Sampson had recorded Mr Rhodes as saying was consistent with his having made an entirely proper approach to Mr Sampson to investigate the possibility of establishing a face-to-face meeting.  There was material in the attendance note which indicated that he might be the conduit for the transmission of an offer to insurers, but that was in the context of him suggesting that Mr Hussain’s lawyers were giving unreasonable assessments, and that there was a need for a reasonable and sensible resolution.  Given the fact that Mr Sampson had said that he was concerned as a result of the conversation, it was reasonable for Mr Hardwick to investigate matters further; but as things stood, he could not rationally take the view that the only interpretation of what Mr Rhodes was recorded as having said was that he was engaged on a dishonest enterprise, with a view to procuring an unjustifiably inflated settlement for Mr Hussain.

69.	In my judgment, when read in context it is highly doubtful whether the words recorded by Mr Sampson, if proved, were capable of bearing the interpretation that Mr Hardwick appears to have placed upon them.  However, for the purposes of this judgment, I will accept that his interpretation was a possible interpretation.  Even so, it was not the only one, and was the most adverse interpretation possible against Mr Rhodes.  

70.	I have said that Mr Hardwick was entitled to place weight on the character and standing of the writer of the letter, Mr Sampson, and that he was entitled to place weight upon the fact that Mr Sampson was expressing concerns, whatever the precise terms of his attendance note and letter.  At the same time, both when deciding whether there was more than one admissible interpretation of the letter and attendance note, and when considering what steps he should take, it was necessary for him to consider the character and standing of Mr Rhodes.  This was for the basic reason that his character and standing went to the likelihood or otherwise of his having engaged in a dishonest enterprise on behalf of Mr Hussain.  It therefore went directly to the likelihood, or lack of likelihood, that the interpretation he favoured would prove to be correct if and when it was investigated further.  

71.	It is a remarkable and disturbing feature of this case that there is no mention of Mr Rhodes’ character or reputation anywhere in the decision documents, the letter of 5 March, or Mr Hardwick’s statement.  This is, to my mind, a serious omission at two stages in the process.  First, Mr Rhodes’ 27 years of unblemished service should have weighed in the scales when considering the likelihood that he had engaged in a dishonest enterprise; and second, because it was a factor that tended to suggest that Mr Rhodes was unlikely to have done so,  it should have weighed in the scales when considering suspension.  The question at that stage for Mr Hardwick was whether the public interest required him to suspend a chief constable whose integrity had never been questioned in 27 years of unblemished service on the basis of a letter and attendance note which had the features I have identified above.

72.	Mr Beggs submits that even if Mr Hardwick’s interpretation as I have elaborated it above proved to be correct, the matters did not merit suspension, and would not ultimately have merited dismissal.  He relies upon two factors in particular:

i)	The status afforded to the investigation by the IPCC; and 

ii)	What had previously happened in West Yorkshire when Mr Hussain made his allegations.  

73.	These submissions are made in the absence of authoritative guidance about what circumstances may justify suspension under regulation 10(4). I am unable to derive any significant guidance from the response of the IPCC, since I do not know enough about the decision-making process between notification and 11 March 2013, save that it shows that the IPCC may revise its assessment of the seriousness of a case over time.  The Manchester experience is more instructive.  Despite the seriousness of the allegations by Mr Hussain, and the fact that an internal inquiry was launched, and the IPCC’s decision to supervise the investigation that was carried out by the police authority, none of the subjects of those allegations were suspended.  This is of some value in attempting to assess the relative seriousness of the present case.  However, the value is limited because of this court’s lack of information about the facts of that case.  It is also limited because of the need to bear in mind at all times that each case will be fact-sensitive, and that there may be more than one rational response to a given set of facts.  That being said, I note that the appropriate authority did not consider that the public interest required the suspension of those against whom Mr Hussain alleged acts of race discrimination, but it should not determine my decision in this case.

74.	In my judgment, it is much safer to return to the terms of regulation 10(4) and the test it lays down, which I have outlined above.  I have already said that in deciding whether the public interest requires suspension, scrutiny must be given not merely to the possible seriousness of the allegations if proved, but also to the apparent prospects of their being upheld or not.  For the reasons I have given, while neither Mr Hardwick when making his decision nor the court on present information can predict the outcome of any investigation, it would not have been safe for Mr Hardwick to assume that Mr Sampson’s concerns would be found to give rise to a case for Mr Rhodes to answer or, even if he was required to answer a case, that the charge, however formulated, would be found proved.  While the assessment of likelihood was a matter for Mr Hardwick to assess, and he could have settled at more than one point within a range of possible assessments, there is nothing to indicate that he engaged in any such assessment at all.  He did not have the benefit of any investigation, nor did he have the benefit of a response from Mr Rhodes, as he did not ask for one.  He seems to have contented himself with his conclusion that what Mr Sampson was alleging amounted to “grave allegations which if proved involved fundamental dishonesty and lack of integrity on the part of Mr Rhodes”.  In my judgment, this failure to engage in any assessment of the likelihood was a serious error on the part of the PCC.  

75.	Mr Hardwick says that in the light of the representations that Mr Rhodes gave in his letter of 8 March 2013, he would not alter his view.  It is sufficient to say that there is nothing in those representations that would obviate the difficulties in the decision-making process, and the decision that I have identified in this judgment.  

76.	I therefore stand back to consider whether Mr Rhodes has discharged the high burden of demonstrating that Mr Hardwick went beyond his permitted sphere of discretion when deciding to suspend his chief constable.  In doing so, I return to the criteria laid down by regulation 10(4), and in particular the criterion that it should appear to the PCC that the public interest “required” that Mr Rhodes should be suspended.  The only overt reference to this criterion in the decision documents is the statement at paragraph 11 to which I have already referred, where Mr Hardwick said: 
“I have decided that I cannot justify to the public of Lincolnshire or the force for Mr Rhodes to remain on duty as a police officer pending an investigation.”

The reasoning supporting that statement, which does not exactly reflect the statutory criterion, is not given.  Once the materials that had been presented to the court are examined, it remains unclear why the public interest required the suspension of Mr Rhodes in advance of any investigation or any opportunity being given to Mr Rhodes to respond to the allegation that Mr Hardwick thought was being made against him.  

77.	It is, however, clear that Mr Hardwick’s conclusion must be based upon his assessment of the case as disclosed by the documents and discussed in this judgment. Once again, I remind myself that Mr Hardwick was the primary decision maker, and that his decision should not be disturbed unless it was irrational and perverse.  The materials that have been placed before the court disclose the following fundamental errors in the approach and assessment adopted by Mr Hardwick:  

i)	He treated his preferred interpretation of what Mr Sampson was saying as the only possible interpretation, which it was not;

ii)	He failed to take into account Mr Rhodes’ character and standing, which was essential to any fair assessment of the state of the case as revealed by Mr Sampson’s letters;

iii)	He failed to undertake any consideration of the likelihood or lack of likelihood that his interpretation of Mr Sampson’s letter would be proved correct, and that Mr Rhodes would be found to have acted in a fundamentally dishonest manner;

iv)	As a result, even assuming that he addressed the public interest criterion on a correct basis, he will have done so on an inadequate and unjustifiable assessment of the state of the case as it stood before him.  

78.	In the result, I am convinced that the decision taken by Mr Hardwick to suspend Mr Rhodes can only be described as irrational and perverse.  I therefore quash the decisions.  In doing so, I repeat that the court cannot and does not attempt to pre-judge or predict the outcome of any investigation that may take place.  This judgment is solely a ruling on the legality of the decisions to suspend and maintain the suspension, and the basis on which they were taken.

MR JUSTICE STUART-SMITH:  That concludes the judgment.

MR BEGGS:  My Lord, first of all, may I on behalf of both of us thank you for the obvious amount of hard work that you have put in, which I regret to say exceeds that of counsel, very obviously?  Secondly, may I formally then ask for costs of the rolled-up hearing?  And for what is worth, I think it is technically, might I also ask that you formally give permission on the Article 8 point?

MR JUSTICE STUART-SMITH:  Yes.

MR BEGGS:  Whether that proceeds is a matter for further instructions and discussion.

MR JUSTICE STUART-SMITH:  Yes.  Mr Sweeting, first of all, do you want to say anything about the Article 8 point, because I would be minded -- it is a fallback, but I said at the beginning it is being reserved.  My view is that it is a serious point which, if this matter went further, should be allowed to be ventilated.

MR SWEETING:  My Lord, I could not disagree, that is a serious point which certainly would need to be clarified in the context of suspension rather than dismissal, and --

MR JUSTICE STUART-SMITH:  So in that case, given that this is a rolled-up hearing, I grant permission; I grant the order; and I grant permission also in relation to the Article 8 ground.  Costs?

MR SWEETING:  My Lord, not all the points of course have been argued.  The reason for that principally was that the claimant applicant had claimed the benefit of a truncated hearing in front of your Lordship without, regrettably, giving notice of the application at first instance, so when time was pressing time was lost.  So, my Lord, there has not been a hearing -- the first submission -- in which matters on which the Commissioner might very well have succeeded, that have been dealt with even though they were raised.  Inevitably some preparation at least had to go into dealing with those matters in advance.  So we are slightly half-cocked, if I can put it that way, in terms of what has been dealt with, and the costs which have necessarily been incurred.
	The other matter is simply this: it is a wider matter, my Lord, that this is effectively a new area; I bear of course in mind that your Lordship has had to find the case established to a very high degree touching upon perversity, and I recognise the vulnerability of that position in terms of costs.  My Lord, this is as I say a very novel area.  Mr Hardwick was exercising a power which has not been dealt with by this court before, in circumstances where there is little or no guidance at all as to how it should be exercised.

MR JUSTICE STUART-SMITH:  As I recognised.

MR BEGGS:  Of course.  I wonder if, in those circumstances, your Lordship might take the view that this was a very important matter to be aired, and dealing with the matter on the basis that there would be no order for costs on either would be appropriate.  If your Lordship is not with me on that, then the first matter I have raised and perhaps this matter in its more general sense might be taken into account in altering the balance of costs to some extent in the Commissioner’s favour.  My Lord, that is the way I would put that.
	May I just also ask, as I must at this stage, for permission to appeal?  Obviously, that is a matter to which consideration will be given.  If the decision is taken not to appeal, then we will of course as a matter of politeness as much as anything else, inform my learned friend and Mr Rhodes as soon as that decision is taken, rather than simply waiting for the period to expire.  But my Lord, I would ask for permission.  It would necessarily be on the basis that your Lordship has got the balancing act which the court is required to undertake at this stage wrong, and in fact that you have intruded on the area which was a matter for the discretion of the Commissioner.  My Lord, without developing, as I think it would perhaps be unnecessary, any submission further at this stage, my Lord, I would draw attention perhaps to the question of whether it is appropriate for your Lordship to raise an interpretation of the letter contrary to that which Mr Hardwick had reached if, as we submit, it was a reasonable one.  He was not required, in our submission, to set out or refer to other possible interpretations, if the obvious one, we say it was an obvious one, was one which raised a serious allegation which would lead to a misconduct hearing. 

MR JUSTICE STUART-SMITH:  Just on that last point, what I have tried to make clear, and whether I have succeeded or not is a matter for others, is that although there are many areas of public law where the fact that you have taken one of a range of possible things is sufficient, when you are looking in this sort of context, you have to be looking at the likelihood and therefore you have to look at the range.  So I am not attracted to that.  
At the outset of your submissions on permission to appeal, you said something which indicated that a decision had not yet been made.  What I would be inclined to say was that I would not deal with an application for permission in abstract now, but if your client decides that he wishes to appeal, although you will not get a decision out of me in the next seven or eight days, he can have until, let us say, 10 April, to make an application in writing, and I will deal with it then as if it had been made today.  I can guess what Mr Beggs would say in response, but if the position is in truth that no decision has yet been made, I appreciate I have been going for two hours, and it is long, whatever its quality, and you may wish to review that before taking a decision.  So that would be my instinct at the moment.  Do you want to change -- 

MR SWEETING:  No, my Lord, that is very kind of your Lordship, if I may say so, and my Lord, no decision has been made simply for this reason.  It is not the Commissioner’s position that he would as a matter of principle and knee-jerk reaction simply seek permission.  Obviously it is --

MR JUSTICE STUART-SMITH:  Quite.  Well, I welcome that.  I cannot remember, but I think the 10th would be the Wednesday of that week, 10 April?

MR SWEETING:  Yes, I think that is -- I am not away over Easter, I know your Lordship is. 

MR JUSTICE STUART-SMITH:  Mr Beggs, if I say any application for permission to be made in writing, and I am not expecting vast tracts, your normal economy of effort, please, Mr Sweeting, by 4.00 p.m. on the 10th.

MR SWEETING:  Yes.

MR JUSTICE STUART-SMITH:  And I will deal with it on paper, and I would not expect to ask for any response from you, but I reserve the right to do so.

MR BEGGS:  Yes.

MR JUSTICE STUART-SMITH:  So time for any application for permission to appeal extended to 4.00 p.m. on 10 April.  On costs, I am afraid I am against you, Mr Sweeting.  I regard the honing down to the one issue as highly desirable and to be encouraged example of people taking a pragmatic view and reducing the burden.

MR SWEETING:  Yes.

MR JUSTICE STUART-SMITH:  I am sure you have had to incur some costs thinking about the other things, but we spent the whole of yesterday specifically on rationality, no time was spent on it at all, and I think the appropriate order in this case is to reflect the fact that on what he clearly regarded as his Exocet point, his Exocet has got home, he has won, he gets the costs.  Anything else?

MR BEGGS:  No, my Lord, other than to say, just for the avoidance of any doubt then, my client is now the serving temporary chief constable for another few days?  I say that so that there is no court mix up with any sealing of any lock and key.  

MR JUSTICE STUART-SMITH:  Yes, the decision to suspend has been quashed.

MR BEGGS:  I am very grateful.  Thank you very much.

MR SWEETING:  My Lord, just because I want to say it in open court, it is certainly my experience that it might be sensible for my learned and I just to sit down and work out for the benefit of those who are instructing us whilst they are here precisely and pragmatically what the position is, indeed what we would say the position is.

MR JUSTICE STUART-SMITH:  I think that would be to be welcomed.  We know that there are representatives of the media in court.

MR SWEETING:  Yes.

MR JUSTICE STUART-SMITH:  And that is a matter for you, though not for me.  You are not going to need my assistance on the phone?

MR SWEETING:  I do not think we will, no.

MR JUSTICE STUART-SMITH:  A luxury of my present position is that I have a car picking me up at 2.00 p.m.  Are you likely to want anything from me, like approval of an order?

MR BEGGS:  Sorry, I was taking --

MR JUSTICE STUART-SMITH:  That is all right.  Will you want me to approve an order?

MR BEGGS:  Well, my Lord, we can do that, but it can happen after Easter.  The key order, the quashing of the suspension is clear, the key order on costs is clear, and it also gives my learned friend time to reflect on his appeal point.  But we will get something together, send it to you by email, but there is no rush on it.

MR JUSTICE STUART-SMITH:  Thank you, good.  I may have driven everybody into submission, but is there anybody at the back of the court who would like me to print off a couple of copies of the decision section of my -- of the discussion section?

Unknown Speaker:  Yes, please.

MR JUSTICE STUART-SMITH:  All right, how many do you want me to print?  Three?  Fine, I will do that straightaway.  

MR BEGGS:  My Lord, may we have one as well?

MR JUSTICE STUART-SMITH:  Five.  That is always assuming I can operate the machine.

MR BEGGS:  My Lord, let me thank you for sitting today, I know your Lordship is travelling tomorrow, I hope it is warmer climes than this.

MR JUSTICE STUART-SMITH:  I hope it is colder climes, higher climes, deeper snow.  Right, I will do that straight away, it may take me a few minutes.  In fact, if you are prepared to wait, I will come back as soon as I am done.

----------------------

Annex

Tel Attendance Note – 12 December 2012

Neil Rhodes calling FS

NR saying that he was now AH’s CPOSA friend as the previous one had relinquished the role in frustration

NR saying that the next step in the litigation was a PTH listed for 17 December

NR saying that AH’s solicitors were not CPOSA’s usual ones and that they were heading helter skelter for a very expensive hearing – he wondered if it would be beneficial for a face-to-face meeting

FS advising that neither the PC nor OPCC were parties to the action, that he saw no professional conflict in talking to NR and he didn’t have conduct of the litigation

FS advising that in terms of some of the evidential issues, AH had reported to him that the WYP had used confidentiality clauses within CAs to silence employees and pay them off to mask management failings; that this was in contravention of public policy as considered by the HASC and it should be investigated

FS advising that he had instigated a full internal audit of the matters raised by AH and that AH himself had authorised a number of such agreements

FS advising that the approach of AH’s solicitors had seemed odd in as much as FS had picked up the conduct allegations contained in the pleadings and had pursued these under the terms of the PRA 2002.  The solicitors appeared not to have foreseen this and had seemed to think they could somehow trade off any conduct allegations against a settlement.  Irrespective of any settlement, the PRA was quite clear about the role for the “appropriate authority” – in this case that had been WYPA

FS advising that he had asked the CC of Cheshire Constabulary to conduct a full investigation into the allegations contained in the pleadings but that AH had refused to cooperate with the investigation – this made no sense to FS if AH genuinely wanted to get to the bottom of the allegations of less favourable treatment on grounds of race and the other facts in issue.  Nevertheless FS had made the report available to the parties

FS advising that, in making his allegations against senior officers and staff in the way he had, AH had set the ante very high – AH could reasonably expect a proportionate response in resisting and repudiating any unfounded allegations he had made against named individuals/WYP

FS advising that he had met with AH regularly to have lawyer-lawyer chats over a 3-yr period or so and, while AH had raised a series of issues about which he was unhappy or even dismayed in the way that some within WYP treated him, there had never been the slightest suggestion that AH’s race or ethnicity had played any part otherwise FS would have felt obliged to act
FS advising that he recognised the obvious risks of litigating a case in which the names of SNB and David Crompton and their respective police forces were joined, with allegations of management failings and less than transparent processes.  However that did not mean that the organisation should reward failure or give in to undue influence

NR saying that what he could see was what looked like a paltry settlement being offered to a senior person who had been dismissed

NR saying that AH enjoyed the shield provided by CPOSA insurance – at this stage WYP had offered nothing and therefore the insurers would have to maintain the shield

NR saying this gave him nothing to work with and there was a “bloody day” in court ahead

FS advising that the PA had no direct involvement in the litigation although the OPCC would be taking up responsibility for litigation decisions and a general counsel role in the future 

FS advising that the reports back from WYP indicated little chance of agreement on a settlement 

NR saying that AH’s lawyers were giving AH unrealistic assessment of the compensation he would get and that he needed some realism 

NR saying that in advising CPOSA’s insurers he needed some leverage as they were about to sign up to £100k of costs

NR saying the litigation would have repercussions and reputational risk, that AH knew about other cases such as JC where people got substantial settlements and NR wanted to avoid some dirty risks being played at hearing

NR saying that he never had SNB down as a racist and that the race element in the claim was simply a lever for damages and that a wider unfairness was the real issue

NR saying that he wanted to broker a sensible and reasonable solution 

FS opining that, as AH had claimed the use of substantial settlement agreements to “pay off” staff where management failings had been alleged was wrong and against public policy, it was difficult to square with his having used the same approach when he was the most senior lawyer in the WYP – for him not to seek the benefit of a similar arrangement and argue that others had been so compensated looked a little insincere

NR saying that CPOSA would not fund the hearing if a sensible offer was made and he invited WYP to reconsider so that he had something to put to his insurers

NR saying that the PCC’s reputation was at stake here

FS advising that he would speak to JP and revert – taking mobile no. [mobile number given]