Policing left in ‘hopeless position’ after High Court judgment on vetting-based dismissal, says MPS Commissioner

Sir Mark Rowley said it was “absurd” that the force cannot lawfully sack officers who are “not fit to hold vetting”.

The judgment was in relation to a judicial review in the case of MPS Sergeant Lino Di Maria following withdrawal of his vetting after allegations of rape and his conduct towards women, although he was not charged.

Sgt Di Maria applied to the court for judicial review, challenging the lawfulness of the MPS’s decision to remove his vetting and refer him to gross incompetence proceedings.

He challenged the wider Operation Assure process, which is the MPS’s procedure, based on national guidance, to consider dismissing officers who can no longer pass vetting.

The judge, Mrs Justice Lang, said the force’s “powers do not extend to the dismissal of a police officer by reason of withdrawal of vetting clearance”.

She said statutory misconduct procedures “should not be circumvented, directly or indirectly, by the use of more informal internal vetting procedures”.

The judgment was published on Tuesday (February 11) following the judicial review heard at the High Court between January 15 and 16.

The judgment found that it was unlawful to terminate the claimant police officer’s service with the MPS, following withdrawal of his vetting, and quashed the relevant decisions taken internally.

Sir Mark said: “For more than two decades police leaders have been asking Government for greater powers to sack officers who are not fit to wear the uniform. For two-and-a half-years I have repeated that call and successive governments have promised change.

“Tens of thousands of good officers joined the police because we care deeply about public safety. The majority of the Met is committed to this drive to clear out those who threaten our collective integrity. This makes us better placed to protect communities.

“Being able to sack officers who fail vetting is critical. Those we have removed vetting from, had a pattern of behaviour that meant if they applied to work in policing today, we’d never let them in.

“But today’s ruling on the law has left policing in a hopeless position.

“We now have no mechanism to rid the Met of officers who are not fit to hold vetting – those who cannot be trusted to work with women, or enter the homes of vulnerable people.

“It is absurd that we cannot lawfully sack them – this would not be the case in other sectors where staff have nothing comparable to the powers a police officer holds.”

He added: “This judgment is focused on the human rights of Sgt Di Maria. But there are wider human rights at play here, those of the public, and those of colleagues who have to work alongside officers like this.

“We are seeking leave to appeal the judgment, not just for the Met but for law enforcement nationally due to these profoundly damaging implications.

“The judge identified a clear gap in the law, one we have done our best to bridge. But as the judge said, the answer lies in strengthened Police Vetting Regulations.

“So in repeating the same request for two-and-a half-years, echoed by the Casey and Angiolini reports, I am once again calling on the Government today, to introduce new regulations as a matter of extreme urgency.

“It is crucial they are practical, nimble and empowering. They must allow police forces to deal with those who pose risks to colleagues and of course to the public, and must apply to those we have already removed.

“Finally, regardless of the current legal framework, the public of London have my assurance and that of my colleagues that Di Maria and those like him will not be policing the streets or working alongside other officers. They will remain on ‘vetting special leave’, a ridiculous waste of public money but the least bad option until regulations are fixed.”

In March 2023 the MPS became the first police force in the UK to adopt Operation Assure, a new process based on College of Policing guidance.

In the past 18 months under Operation Assure, 96 officers have been sacked or resigned due to vetting removal; 29 more are on special vetting leave, having lost vetting; and another 100 more are in the early stages of vetting reviews.

The force said Sgt Di Maria was “a Met officer who during his police service has received allegations of rape, and other allegations about his conduct towards women”.

It added: “Under the Met’s ‘Operation Assure’ – a key part of our drive to raise standards and root out corruption – Di Maria’s vetting clearance was reviewed and, in light of the significant pattern of adverse information against him, his vetting was removed.”

The officer would have been dismissed many months ago but for this legal action, the MPS said.

The judicial review, supported by the Metropolitan Police Federation, challenged the legality of Operation Assure, and how it applied to Sgt Di Maria’s case.

The multiple historical and serious allegations against Sgt Di Maria, attached to forensics at Kentish Town, were outlined in the hearing.

His vetting clearance was removed in September 2023 and his appeal against this dismissed. In March 2024 he was referred to a gross incompetence hearing due to having no vetting clearance. His particular case was paused pending the outcome of the  judicial review.

The College of Policing and Home Secretary were interested parties to the proceedings.

Assistant Chief Constable Tom Harding, Director of Public Safety and Risk at the College of Policing, said: “The public, and policing itself have been clear they want to see robust vetting for new and existing officers so that only those with the highest ethical and professional standards can work in the police service.

“We have made significant improvements to police vetting over the past year to ensure we can root out those who simply should not work in policing. We are disappointed by today’s judgment and will support the MPS’s decision to seek permission to appeal.

“We agree there is now an urgent need for government to update police regulations which will address today’s ruling and give forces the legal powers and confidence to dismiss officers, ensuring that only those who meet the highest standards have the privilege of serving.

“I want to reassure the public that the vast majority of police vetting remains unaffected by today’s ruling and forces will continue to vet officers. Policing will ensure that those who fail vetting will not undertake duties where they engage with or pose any risk to the public or their colleagues.”

The Metropolitan Police Federation said it was satisfied that the judicial review process has “answered the significant legal question which needed to be asked in regard to the vetting-based dismissal of police officers and the use of Operation Assure by the Metropolitan Police”.

Federation general secretary  Matt Cane said: “This judicial review was about ensuring a fair, but more importantly, legal process was in place.

“The Metropolitan Police must recognise the law and – it goes without saying – operate within it.

“That’s what today’s ruling clearly emphasises.

“I remain curious as to why those in Scotland Yard thought they could operate outside of the law when it comes to police officers.

“As far back as early 2023 I wrote to the Metropolitan Police raising our concerns around the legality of Operation Assure. I made it clear from the outset that where an individual is dismissed, unlawfully, this will not go unchallenged.

“These concerns were ignored.

“I offered to work with the Metropolitan Police to ensure any vetting based dismissal was fair and legal, this offer was also ignored.”

Mrs Justice Lang stated that the claimant should have been given the opportunity of “the right to a fair hearing” and have been given the opportunity to call witnesses and have the allegations against him “on important contested issues” cross examined, “to satisfy the requirements of fairness”, said Mr Cane.

He added: “The Metropolitan Police Federation emphasises that the good, brave and hard-working colleagues we represent are the first to say that the small minority of officers who are not fit to serve should not be in the police service.

“But police officers – like all people – need to be treated within the law of the land and they have the right to representation and a fair process. Would any other staff association or union sit back and allow its members to be dismissed unlawfully without challenge?”

Mrs Justice Lang stated: “In my judgment, as a matter of principle, the statutory misconduct procedures are the intended and proper legal route for the consideration and determination of allegations of misconduct against police officers.

“The statutory misconduct procedures provide important procedural safeguards for officers… those safeguards should not be circumvented, directly or indirectly, by the use of more informal internal vetting procedures.”

Mr Cane said: “The Metropolitan Police Federation are committed to working with the Metropolitan Police – as we always are – to ensure the public have trust and confidence in those who police London.

“The judicial review outcome is an underlining of the rule of law and will undoubtedly influence any future vetting revocation within Police Regulations. Hopefully this judgment has played a part in shaping this very important issue and that any future process is legal and follows natural justice.”

Mrs Justice Lang concluded: “The determination in the misconduct proceedings should be respected and accorded primacy. It is clear that the procedure under regulation 32 of the Performance Regulations has been adopted as a mechanism to overcome the absence of any lawful statutory procedure for a vetting dismissal. However, I do not consider that it is fit for purpose.”

Mr Cane thanked the legal team at Reynolds Dawson Solicitors and Three Raymond Buildings for their “painstaking work on this high-profile case” and the Police Federation of England and Wales for “financially supporting the undertaking of the judicial review”.

In a statement, the MPS said: “It is unacceptable there has never been an explicit legal provision to enable sacking of officers who fail vetting reviews. Policing has asked for this loophole to be closed for more than 20 years. We have been promised for two-and-a-half years that changes will happen but little progress has been made.

“The regulations make it too hard to remove those few who undermine the majority. Our own analysis and that of Casey and Angiolini pointed to the need to ‘join the dots’ – using intelligence to spot patterns of behaviour to remove those who should not be in the job. This followed in the wake of significant cases such as Wayne Couzens and David Carrick.

“Operation Assure is a programme of prioritised vetting reviews for serving officers and staff where we hold significant adverse information that means we need to review their vetting clearance. In most cases this information has not previously led to a criminal conviction, and, in all cases, not dismissal from the Met.

“Operation Assure provides a pathway for the Met to follow if an officer’s basic vetting clearance cannot be maintained. It can lead to that person being dismissed from the Met at a gross incompetence hearing – as their inability to hold vetting clearance makes them ‘incompetent’ to hold a role.

“There are hundreds of pages of guidance, law and regulations telling us at length how important vetting is and how it should be done. But these are far less clear on what to do if things change and an officer can no longer can be trusted to hold that vetting, nor how such an officer should be dismissed.

“We carefully interpreted the existing guidance and laws as best we could and we filled that gap in the public interest. Operation Assure was the right thing to do in circumstances when the law did not provide a clear way of doing this, and it was supported by the College of Policing. It was a risk, but the issue was too important to ignore and too urgent to wait – the public deserve better.”

Police officers are vetted when they join the MPS, with vetting renewal every seven to ten years. The framework exists in the Vetting Approved Professional Practice – as set by the College of Policing.  The framework also says that vetting clearance should be reviewed upon “adverse information”.

The force said the majority of those subject to Assure have “worrying patterns of behaviour, mainly allegations of sexual offending”, adding: “They would not pass vetting if joining the police for the first time today.”

The primary pipeline for Operation Assure is Operation Onyx. The Operation Onyx team has reviewed completed domestic or sexual abuse cases against officers and staff for offences from the past ten years (until April 2022) to ensure those cases were dealt with properly, and revisit them if not via Operation Assure.

The MPS said under Operation Assure to date

More 300 officers and staff referred into the Assure process overall so far.

107 officers/staff have had vetting withdrawn.

96 officers/staff have exited the MPS (dismissals, retirements and resignations) while in the Operation Assure process (including 19 who resigned before their gross incompetence hearing).

This includes 24 officers/staff dismissed at gross incompetence hearing (or staff equivalent) for failure to maintain vetting.

29 officers and staff are in the MPS having had their vetting removed and are on vetting special leave. Until the High Court judgment, 12 of those were due to attend a hearing soon where they may have been dismissed – others had appeals ongoing.

Approximately 100 officers and staff are at an earlier stage of the Assure process – at an early review stage, or awaiting their vetting interview or vetting decision.

And:

82 have had their vetting retained – which is important to note as it shows the process is fair and proportionate.

Seven successful appeals.

Examples

Officer received multiple rape and sexual assault allegations from a number of separate female complainants in 2011-2023. Under Op Assure, officer had vetting reviewed, removed and he was dismissed at a gross incompetence hearing. Criminal charges followed a year later, as further information came to light following his dismissal. This was the first officer we dismissed under Assure, in October 2023.

Officer had numerous domestic abuse allegations, including rape of ex-partner, and also had received two reports of sexual assault/harassment of colleagues. He had been reduced in rank to a PC in 2022 for a separate matter for misuse of his warrant card while off-duty. Under Op Assure, officer had vetting reviewed, removed and he was dismissed at a gross incompetence hearing.

Officer committed indecent act on a train and pleaded guilty to outraging public decency – later received a final written warning. Under Op Assure, officer had vetting reviewed, removed and he was dismissed at a gross incompetence hearing.

Following intelligence checks it was identified that a serving officer was arrested in the USA on charge of endangering welfare of child, having travelled there to meet a 13-year-old girl he had met online.  No criminal charges were brought but the intelligence was reconsidered as part of Assure. Officer resigned in May 2023 when he was told he was to have a vetting review.