Probationary police officer wins legal case against dismissal over sexual offence allegation

A probationary police constable who was dismissed from the force after allegations were made against him of sexual offending as a child has won a legal challenge against the ruling.

The officer joined Police Scotland in July 2022 before an accusation of historical abuse was made against him by a family member three months later, and he was suspended from duty.

In March this year, he was told in a letter from the chief constable that his services as a probationary police constable were being dispensed with.

Lawyers acting for the officer challenged the decision in a judicial review at the Court of Session in Edinburgh, claiming there was an error in the law when applying the governing police regulations.

It was contended that an unfair and inappropriate procedure was used where material facts over an allegation of criminal conduct were disputed.

It was also maintained that a conclusion was reached without a proper evidential basis and that adequate and intelligible reasons were not given.

Following a hearing, a judge set aside the decision to dispense with the probationer’s services.

Lord Fairley said in a judgement: “The respondent reached the conclusions which caused her to discharge the petitioner without considering, on a proper evidential basis, material issues about the credibility of the allegation, its effect upon the petitioner and the level of supervision of him that might be required of him.”

He said the reasons given in a decision letter were “confused and inadequate”, and it was conceded there was a failure to comply with the appropriate regulation.

The judge said: “Individually and cumulatively, these are material errors of law which meet the required standard for intervention by this court in the exercise of its supervisory jurisdiction.”

Lord Fairley said the effect of his decision did not prevent the chief constable from revisiting the question of whether the officer, known as XY, ought to be discharged “on a proper factual basis”.

He said: “What is required for a ‘fair’ process will vary from case to case. The gravity of the allegation and the consequences for the person accused will be material factors.

“An allegation against a probationer constable of having committed a serious sexual offence plainly has the potential to deprive that constable of the ability to pursue his chosen career,” said the judge.

Lord Fairley said the officer in that situation before a decision was reached “must be given a fair opportunity to make representations upon and to challenge any material factors which are relevant to the engagement of the regulation and the exercise of the chief constable’s discretion.”

The court heard that the emerging allegation was said to have occurred between 2007 and 2015 when the man was between 9 and 15. He has consistently denied it.

He was investigated and interviewed but was not charged.

A report was sent to the Crown Office but counsel concluded there was no corroboration of the allegation and directed that no prosecution should be brought.

The decision was subject to the qualification that the case would remain open in case such evidence came to light in future.