Police Scotland officer refused petition against decision to investigate him for failure to take drugs test

About this case:

• Citation:
  [2023] CSOH 90
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lady Drummond

The petitioner, D, had previously been investigated by Police Scotland on the allegation that he had taken a controlled substance, but it was decided he had no case to answer after he refused to take the test. It was argued by the respondent that the petition was premature, as the misconduct proceedings brought against him had not yet run their course.

The petition was heard by Lady Drummond. Dean of Faculty, Roddy Dunlop KC, appeared for the appellant and MacGregor KC for the respondent.

Rather not say

On 5 December 2017, the respondent received a report stating that the petitioner had taken controlled substances on licensed premises. Following the receipt of further information in 2022 and 2023, including that he was using cocaine on nights out, the petitioner was served with a notice of investigation.

It was decided that the petitioner should take a with cause drugs test. However, he refused to provide a sample, and when asked why he stated that he’d “rather not say”. Without a test result, it was decided there was no case to answer, and it was explained to the petitioner that he would instead be investigated for failing to comply with a lawful order.

The petitioner sought an order declaring that by requesting the sample the respondent had acted in a manner incompatible with his rights under Articles 6 and 8 of the ECHR. It was submitted that he had not been given fair notice of the first notice, and the second was unlawful and irrational, and separately procedurally unfair.

For Police Scotland it was submitted that it was incompetent to petition the court before the conclusion of the second investigation, which was only at a preliminary stage. The petitioner had been invited to a misconduct interview prior to the suspension of proceedings for the duration of the court challenge. He would have adequate opportunity to state his case, and further appeal rights to the Police Appeals Tribunal and then to seek judicial review.

Entrusted to the police

In her decision, Lady Drummond said of the prematurity issue: “As is plain from an understanding of the statutory regime, D is not currently subject to misconduct proceedings. He may never be. His case is at an investigatory stage under Part 2 of the Regulations. No decision on whether he has a case to answer has been taken. He has been notified of an allegation, an investigator has been appointed and a date and time for interview proposed. It is not known whether or not he will face misconduct proceedings. In that respect this petition is premature.”

She continued: “If it is decided that there is a case to answer and a misconduct hearing held, D can argue at the hearing that he had a reasonable excuse for not complying with the order. He can argue that the procedure was unfair and irrational for the reasons he contends. If he fails in all of that he can appeal. These are matters that Parliament has entrusted to the Police to first investigate and determine subject to statutory appeal. It would be trespassing on its territory for this court to intervene in that process in the circumstances of this case.”

On the relevance of the case law cited in support of the petitioner’s position, Lady Drummond said: “The circumstances of this case, whilst also involving a police officer and the Police Service of Scotland (Conduct) Regulations 2014, are distinct from the cases cited on behalf of D. All of the cases cited involved officers who were already subject to misconduct proceedings. D is not in that position.”

She concluded: “I leave the investigatory proceedings to take their course, to decide whether D has a case to answer and if so, for the misconduct proceedings to decide the outcome following evidence and argument. Given my decision, it would be inappropriate for me to comment on the substantive arguments made which are matters for any misconduct hearing.”

The petition was therefore refused on the ground of prematurity.