A probationer constable could be dismissed by way of probationer's dismissal where the offence was a disciplinary one and where he had admitted the facts charged and had been judged to be unfit to be a police officer because he had acted dishonestly.

 

Appeal by the Chief Constable of British Transport Police against a decision of Lightman J on 30 July 1998 that a decision by the Chief Constable to dismiss a probationer constable was unlawful. The probationer constable, the respondent to the instant proceedings, had been dismissed after being found to have assisted another probationary constable to cheat in an examination. Lightman J had found that the cheating had constituted a disciplinary offence, the chief constable was contractually bound to follow the disciplinary route before dismissal, and that the chief constable's power to dismiss a probationer by way of a probationer's dismissal was restricted to non-disciplinary cases. It was submitted on appeal that it had not been appropriate to deal with the issue as a disciplinary offence as the fundamental issue raised by the cheating went to the fitness of the probationer to be a police constable.

 

HELD: (1) The trial judge had found that condition 7 of the Conditions of Service of Policemen and Policewomen did not allow for dismissal where a disciplinary offence was involved. However, that condition was not spelt out in the BTPF Standing Orders and General Conditions of Service. (2) The judge had found that "not fitted to perform the duties of his office" referred to reg.16(1) Police Regulations 1971 where that definition was qualified by not being fit physically or mentally. The 1971 Regulations did not apply in the instant case and the words physically and mentally had been deliberately omitted from condition 7 of the Conditions of Service. Condition 7 referred to fitness in terms of suitability which went further than fitness in the context of physical or mental fitness. In the instant case the respondent had been judged to be unfit to be a police officer because he had acted dishonestly and was not to be trusted, therefore he was not "fitted" to perform a constable's duties. That was the ordinary meaning of the word in that context. (3) It was set out in para.9.3.8 of he BTPF Standing Orders that a probationary constable should not be deprived of the full protection of the disciplinary procedure where he was denying the allegations against him. In the instant case the probationer was admitting the allegation and lost nothing by way of procedural protection under the probationer's dismissal procedures. (4) The cases in R v Chief Constable of North Wales Police, ex parte Evans (1982) 1 WLR 1155 and R v Chief Constable of the West Midlands, ex parte Carroll (1994) Adm LR 7 45 demonstrated that it had never been suggested that there was no discretion to proceed by the probationary dismissal procedures where misconduct, such as might be prosecuted under the disciplinary process, was charged. (5) There were two separate dismissal procedures which governed probationers and the decision of which one to use was the discretion of the force. Where the facts found were not admitted it was likely that the disciplinary procedure would be used.

 

Appeal allowed.

 

Nicholas Underhill QC and Jane McNeill instructed by Kennedys for the appellant.