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28 AUG 2013

R (on the application of Simpson and others) v Chief Constable of Greater Manchester Police [2013] EWHC 1858 (Admin); (2013) PLLR 106

Judicial review - amenability of decision to judicial review - whether application for judicial review premature - legitimate expectation - whether substantive and/or procedural legitimate expectation was made out - published policy and past practice- whether frustration of legitimate expectation justified

Where police officers were selected for promotion in accordance with a published policy, that policy and past practice gave rise to a substantive legitimate expectation that that they would be promoted subject to a suitable vacancy becoming available and professional standards checks. A published promise to consult before making changes to a policy also gave rise to procedural substantive legitimate expectation of consultation. In the absence of any reasons justifying the frustration of those expectations, the decision to freeze the policy and remove the applicants from the promotion pool must be quashed.

28 June 2013

Administrative Court

Supperstone J

(1)        The applicant police officers, in accordance with a published promotion selection policy and having passed an assessment stage, were told that they would be promoted subject to an appropriate vacancy and professional standards checks. In 2010, D made an order freezing the promotion system and announced a review of the same due to the force's financial situation, and in March 2011 candidates were advised that the system may not continue as before when the freeze was lifted. In April 2012, the applicants were notified that they would no longer be eligible for immediate promotion, and would have to reapply when a new promotion recruitment exercise was introduced.

(2)        The applicants sought judicial review of the decision on the basis that their substantive legitimate expectation of promotion had been frustrated. In the alternative, they claimed that their procedural legitimate expectation to be consulted on a change to the promotion policy had been frustrated.

(3)        Supperstone J held that: as a preliminary matter, the decision was amenable to judicial review. D was a public body performing functions of a public nature in exercise of its statutory powers. The decision was a policy one which affected the status of a class of officers and raised public law issues (R (Tucker) v Director General of the National Crime Squad [2003] IRLR 439 distinguished). The fact that the officers' status had already been affected and D's submission in argument that the policy had been revoked rather the frozen, meant that the challenge was not premature.

(4)        The policy that officers who pass the assessment ‘will be promoted' and its past implementation, amounted to a specific undertaking to a particular group that was ‘clear, unambiguous and devoid of relevant qualification.' Neither the requirement of an appropriate vacancy nor the fact that the applicants' pool status was not a promise for life prevented the creation of a substantive legitimate expectation.

(5)        The critical question was whether the freeze on promotions in changed financial circumstances justified the change of position. The decision letters did not explain why it was necessary to empty the pool at this stage, rather than review the position when the freeze was lifted or a new promotion scheme was introduced. It had not been made out that the applicants' qualifications were stale, such as to automatically justify the change to their status. D had not established any overriding public interest to justify why the promotion freeze required the emptying of the pool.

(6)        That the commitment in the policy to give notice to, or consult with, those potentially affected by any proposed change was a paradigm case of procedural legitimate expectation.

(7)        There had no proper consultation.

Decision quashed.

Key Paragraphs

[1] - [5] - Introduction

[6] - [17] - Background

[18] - [22] - Legal framework

[23] - [27] - Preliminary issue 1 - amenability to judicial review

[28] - [29] - Preliminary issue 2 - is the claim academic?

[30] - [37] - Submissions

[38] - [60] - Judgment

[61] - [63] - Conclusion

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