Barracks v Commissioner of Police of the Metropolis and another
| Jurisdiction | UK Non-devolved |
| Judgment Date | 18 October 2005 |
| Date | 18 October 2005 |
| Court | Employment Appeal Tribunal |
Court and Reference: Employment Appeal Tribunal, UKEAT/0394/05/DA
: HHJ Ansell
Appearances: K Monaghan (instructed by Pattinson & Brewer) for B; J Johnson (instructed by Metropolitan Police Service Directorate of Legal Services) for the Commissioner
: Whether the Commissioner was entitled to refuse to disclose (a) the reason why a black police officer had not been selected for a post and (b) the legal basis relied on for non-disclosure
: B, a black police constable, was invited to apply for a position as a field intelligence officer within the Operation Trident Shootings Desk. That operation is the response of the Metropolitan Police to the disproportionate level of shootings and gun-related murders in London's black communities. Since the post for which B applied allowed access to extremely sensitive information, all applicants had to go through a vetting check. That was carried out and she was not selected due to the results of that check. Instead, a white officer was selected.
B brought a claim for race discrimination. The Commissioner contended that he was prohibited by law from telling B why she was not selected and was likewise prohibited by law from providing the relevant information to the Employment Tribunal. At a case management conference the Tribunal Chairman ordered that the Commissioner disclose the reasons why B was not considered for the position of Field Intelligence Officer within the "Trident" Shootings Desk and/or notify the Tribunal in writing of the legal basis of his claim that "by law" he was prohibited from informing B of the reasons for her non-selection. The Chairman further ordered that unless that order was complied with the Response should be struck out. The Commissioner did not comply with the order and the Response was struck out.
The Commissioner appealed on the grounds that (i) the Tribunal made an Order that the Commissioner was unable, as a matter of law, to comply with; (ii) the Tribunal erred in deciding that B's conduct of the proceedings was unreasonable: it was not unreasonable conduct to comply with the law; (iii) that the Tribunal erred in refusing to allow Counsel for the Commissioner to refer to a bundle of authorities that had been prepared. The Commissioner did not reveal the specific reason for non-disclosure but argued that if this were a telephone intercept case, then ss. 17 and 19 of the Regulation of Investigatory Powers Act 2000 would prevent that fact from being revealed. B contended that ss. 17 and 19 of the 2000 Act were incompatible with EC and ECHR law.
1. This is an appeal from a case management order made by a Tribunal Chairman, Ms Taylor, at a hearing on 16 June 2005 when, having heard representations from Counsel for both parties, she ordered that no later than 4pm on 7 July 2005 (i) the Respondent shall provide Further Particulars to the Claimant and/or her solicitors stating on what grounds it seeks to resist her claim of unlawful race discrimination, including the reasons why she was not considered for the position of Field Intelligence Officer within the "Trident" Shootings Desk and/or (ii) shall notify the Tribunal in writing of the legal basis of its claim that "by law" it is prohibited from informing the Claimant of the reasons for her non-selection. The Chairman further ordered that unless the above Order was complied with on or before that date, the Response should be struck out on the date of non-compliance without further consideration of the proceedings or the need to give further notice or to hold a pre-review hearing or a hearing.
2. Although the Order was directed against only one Respondent, the Commissioner of Police of the Metropolis, no point is taken before me about that defect and it is accepted that the Order was meant to apply to both Respondents. The Respondents below now appeal that Order and leave for this was given by Burton J, President, in chambers, by an Order dated 1 July 2005.
3. The grounds of appeal are (i) that the Tribunal made an Order that the Appellants were unable, as a matter of law, to comply with. The Appellants had, through Counsel, explained to the Tribunal that they were prohibited by law from disclosing either to the Tribunal or to the Respondent the precise reason why the Respondent was not selected or the precise law which prohibited disclosure; (ii) that the Tribunal erred in deciding that the Appellants' conduct of the proceedings was unreasonable. It was not unreasonable conduct to comply with the law. The only reason for non-disclosure was that the Appellants were prohibited by law from giving disclosure; (iii) that the Tribunal erred in refusing to allow Counsel for the Appellants to refer to a bundle of authorities that had been prepared.
4. Further, within his submissions, Mr Johnson, on behalf of the Appellants, raises an additional matter, namely that if, through no fault of the Respondent, a fair trial of the claim was impossible because of the legal prohibition on disclosure, the entire claim is an abuse of process and should be struck out.
5. The background to the case is that the Respondent is black and a serving police constable. She was invited to apply for a position as a field intelligence officer within the Operation Trident Shootings Desk. That operation, as is well-known, is the response of the Metropolitan Police to the disproportionate level of shootings and gun-related murders in London's black communities. It is not disputed that much of its work relies heavily on intelligence, some of an extremely sensitive nature which is only made available to a strictly limited number of officers. Since the post for which the Respondent applied allowed access to extremely sensitive information, all applicants had to go through a vetting check. That was carried out and the Respondent was advised that she could not be selected due to the results of that check. In due course, a white officer was selected.
6. The Respondent commenced her proceedings alleging race discrimination and in their amended Grounds of Resistance, the Appellants contended that they were prohibited by law from telling the Respondent why she was not selected and were likewise prohibited by law from providing the relevant information to the Employment Tribunal.
7. In due course, a case management conference was convened and the Respondent renewed her requests for further information as to the precise reason why she was not selected. Before the Chairman, the Appellants explained that they were prohibited by law from giving the precise reason why she had failed the vetting check and were prohibited by law even from disclosing the precise legal basis that prevented disclosure. They argued that, in any event, the hearing could proceed. They proposed to tender the evidence of senior officers that had reviewed the decision and to provide evidence on the following: namely that even if there were no other candidates, the Respondent would not have been appointed, the nature of the Trident operation, the role of the field officer, the sensitivity of that role, the system of vetting and matters that might be revealed, the sources of information and the nature of information that might be revealed. In response, the Claimant contended that without being given reasons, she would be denied the opportunity of having a fair hearing and offered to agree to the hearing being held in private and to other arrangements being made to ensure confidentiality. The Chairman's conclusions were contained in paras 9 and 10 of her Decision as follows:
"9. It was my view that the Respondent had not provided adequate reasons for the alleged discriminatory treatment in its Response. Furthermore, I considered the manner in which these proceedings were conducted on by or on behalf of the Respondent was unreasonable. I was satisfied that the Claimant would be denied a fair hearing if this claim proceeded to a hearing, as requested by the Respondent.
10. A Chairman may make an order or judgment striking out any response on the grounds that the manner in which the proceedings have been conducted by or on behalf of the respondent has been unreasonable (r18(7)(c) Employment Tribunal Rules of Procedure). The order to strike out was deferred for 21 days in order to give the Respondent an opportunity to review its position, notwithstanding its submission that a stay of the strike out order would serve no useful purpose".
8. Before me, Mr Johnson repeated and renewed the submission that the Appellants were prohibited by law from revealing the reason why the Respondent failed her vetting check and were not even permitted to state which law prohibited that disclosure and made it clear that nothing in either his Skeleton Argument or his oral submissions should be taken as breaching that prohibition. Mr Johnson then went on to give examples where, in certain very sensitive areas, a party in litigation was prohibited from revealing information that might otherwise be relevant such as public interest immunity or where a Court made an order prohibiting disclosure, but the bulk of his submissions were directed towards the prohibition on disclosure of intelligence emanating from a telephone intercept pursuant to theRegulation of Investigatory Powers Act 2000.
9. Mr Johnson then took me to the provisions of the Act. S1 makes it an offence for a person intentionally and without lawful authority to intercept any communication in the course of its transmission by means of a public communications system. Section 1(5) provides that an interception has lawful authority if it takes place in accordance with a warrant issued under s. 5. Section 5 provides for the Secretary of State to issue warrants authorising interceptions of a public telecommunications system for various purposes including "preventing or detecting serious crime".
10. Section 17 of the Act provides that:
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(1) Subject to s...
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