The recent case of R(on the application of Andrew Birks) v Commissioner of Police of the Metropolis  EWHC 3041 (Admin), has again thrown a spotlight on the issue of a police officer's ability to retire/resign, when faced with potential disciplinary proceedings.
The Claimant, a police officer with the Metropolitan Police Service (MPS), was the most senior of four police constables involved in the arrest and restraint of Mr Sean Rigg, who was detained and died in custody at Brixton Police Station in August 2008. The Independent Police Complaints Commission (IPCC) immediately commenced an investigation and in February 2010, concluded that there was no case to answer against any of the officers involved.
Following a full Coroner's inquest into Mr Rigg's death in 2012, the IPCC commissioned an external review of the case, which concluded in May 2013, recommending that the IPCC reconsider the conduct of the officers involved in Mr Rigg's apprehension, restraint and detention.
In the meantime, in 2009, the Claimant commenced the lengthy process required to become selected as an ordained minister and thereby had a clear intention to resign from the police in due course. As part of this process, in 2011 he began a three year degree in theology with associated training. The Defendant was fully aware of the Claimant's vocational training and his intention to resign from the police. In November 2012, the Claimant had a meeting with the MPS, during which he was given assurances that he would not be prevented from resigning. A letter was also sent to the Bishop of Chichester confirming that there were no current or proposed disciplinary proceedings against the Claimant.
In June/July 2013 the Claimant informed the Defendant that he had been offered and accepted the position of curate, to commence in June 2014, following his graduation and ordination. However, in November 2013, the IPCC decided to commence a fresh investigation of Mr Rigg's death on the basis that the first investigation was flawed and inadequate.
On 1 April 2014, the Claimant gave written notice of his resignation, which was accepted by the Defendant. However, on 16 May 2014, the IPCC notified the Defendant that it intended to serve statutory disciplinary notices on the four officers, including the Claimant. Shortly thereafter, the Defendant informed the IPCC that the Claimant's resignation had already been accepted. In any event, the IPCC served a formal disciplinary notice on the Claimant. At the same time, Mr Rigg's sister brought a judicial review claim against the Defendant for accepting the Claimant's resignation. The IPCC also wrote to the Defendant asking that it suspend the Claimant from duty, pending the conclusion of the disciplinary investigation. The significance of suspension is that it can prevent resignation/retirement. Later that day, the Defendant did suspend the Claimant from duty, in order to prevent him from resigning. The Defendant decided the Claimant's resignation could not take effect, and rescinded the earlier acceptance of the resignation.
In June 2014, the Claimant completed his degree and was to be ordained and to assume the position of curate. The Claimant made written representations to the Defendant asking for the suspension to be lifted and his resignation accepted. However, the Defendant decided that the suspension should be maintained and consent to resignation refused.
When the matter came before the Court, the Honourable Mrs Justice Lang DBE was satisfied that the statutory suspension provisions, when read in the light of Secretary of State Guidance, were intended to have a wider purpose than merely needing to remove an individual from active deployment. It was therefore considered legitimate on the grounds of public interest, for the Defendant to have suspended the Claimant in order to prevent him resigning.
Agreeing with Stuart-Smith J in R (Rhodes) v Police and Crime Commissioner for Lincolnshire  EWHC 1009 (Admin)) where it was said that an officer can only be suspended in the public interest if this course is required, and that this carries the implication that the public interest leaves no other course open, Lang J found "the conclusion I have reached is that the public interest in ensuring that the Claimant remained subject to police disciplinary jurisdiction in such a serious case justified the Defendant departing from the representation previously made that he would not be prevented from resigning."
The question of what is in the public interest is also central to the General Medical Council's (GMC's) consideration of a registered doctor's application for Voluntary Erasure ("VE") from the medical register. A doctor may make a VE application at any time, including at any time during the GMC Fitness to Practise (FtP) processes. Where the doctor's FtP is in question, the GMC must consider whether it is right in 'all the circumstances' to agree to VE. This requires deliberation of whether VE is in the public interest, which includes consideration of the GMC's duty to protect patients and the public generally from doctors whose FtP is impaired; maintenance and promotion of public confidence in the medical profession; and the maintenance and promotion of public confidence in the GMC's performance of its statutory functions. The GMC is also required to consider the application in light of the doctor's health and likelihood of return to practise.
The GMC's Guidance on making decisions on VE applications also states that the genuineness or sincerity of a doctor's desire to cease to be registered is a significant factor for decision makers to take into account, including looking at whether there is evidence to support the fact they have already instigated steps to retire. Caution is to be applied however, when the application for VE appears to be triggered by FtP proceedings.
While there may be a degree of drive for more cases to be dealt with by consensual disposal, it is clear that it must not permit an 'easy way out' for those whose conduct is called into question. It remains the case that the wider public interest demands that serious concerns about an individual's conduct, should be fully investigated and properly considered, thereby requiring disciplinary proceeding be concluded, before the individual can depart the profession.