Reclaiming Motion By John Stewart Mauger Against The Chief Constable Of Police Scotland And The Scottish Police Authority
| Jurisdiction | Scotland |
| Judge | Lady Clark Of Calton,Lord President,Lord Malcolm |
| Neutral Citation | [2016] CSIH 44 |
| Court | Court of Session |
| Published date | 14 June 2016 |
| Year | 2016 |
| Date | 14 June 2016 |
| Docket Number | P715/15 |
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
[2016] CSIH 44
P715/15
Lord President
Lady Clark of Calton
Lord Malcolm
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD PRESIDENT
in the reclaiming motion
JOHN STEWART MAUGER
Petitioner and Reclaimer;
against
THE CHIEF CONSTABLE OF POLICE SCOTLAND
First Respondent;
and
THE SCOTTISH POLICE AUTHORITY
Second Respondents:
Act: McBrearty QC, Hay; bto
Alt: Maguire QC; Clyde & Co
Alt: Poole QC; DLA Piper
10 May 2016
Introduction
[1] This is a reclaiming motion from an interlocutor of the Lord Ordinary, dated 29 January 2016, dismissing a petition for judicial review. The petition sought reduction of a decision taken by a Review Panel, and communicated by letter dated 8 May 2015, upholding a decision taken by a Force Vetting Officer, on 18 March 2015, refusing the petitioner Management Vetting clearance under the Standard Operating Procedure of Police Scotland.
[2] The petitioner’s challenge primarily raised a question of procedural fairness and, in particular, whether the Review Panel were obliged to raise with the petitioner concerns, which they ultimately founded upon, about inconsistencies in his clearance application questionnaires.
Management Vetting clearance procedure
[3] Security vetting operates at a number of levels within the police. Each force has a Force Vetting Unit, and appoints a Force Vetting Officer. The first respondent has instituted a Standard Operating Procedure for the vetting of police officers in Scotland. This requires to be read alongside the several National (United Kingdom) SOPs.
[4] Management Vetting applies to police officers who hold posts in “designated sensitive areas” and thus have access to “sensitive Police information, intelligence, financial or operational assets”. The purpose of the vetting is to assess the “reliability and integrity” of those officers in order to “reduce the risks of unauthorised disclosure, or loss of, sensitive Police assets” (Police Scotland SOP, para 6.1). The rank of Assistant Chief Constable requires MV clearance.
[5] In order to obtain clearance, the applicant requires to fill in two questionnaires, relating respectively to personal and financial information. He must also provide information about third parties, including spouses, family members, and associates. The Force Vetting Officer takes the initial decision, often after an interview with the applicant. If the applicant disputes the decision, he may apply for a review by a panel consisting of a Chief Superintendent, a senior member of the Human Resources Staff and the Head of Counter Corruption (para 6.4.18). The appellant must be given “the opportunity to make personal representations and may be accompanied by a colleague or a Trade Union representative” (para 6.4.19). A written decision specifying the “reasons behind it” is required (para 6.4.20).
[6] National SOP 4 deals with the factors to be taken into account in Management Vetting. It repeats the purpose as being an assessment of “reliability and integrity” (para 3.1). A number of factors are listed as creating a presumption of unfitness. They include “Providing false or deliberately misleading information, or omitting significant information from the vetting questionnaires” and “Unauthorised association with persons with previous convictions...” (para 5.1). There is a continuing obligation to disclose changes in personal circumstances, including “known/suspected criminal association” (SOP 10, para 4.1).
[7] National SOP 16 deals with third party risk assessments. Where adverse information is uncovered about a third party, factors such as evidence of joint enterprise, the gravity of offences committed by the third party and the nature of the relationship between the parties, will all operate against clearance being granted (para 4.3). Factors which support clearance include evidence of distance between the applicant and the third party, the openness of the applicant and his ignorance of the third party’s activity (ibid). Where the details of a notifiable individual (associate) are missing from the vetting forms, and adverse information is held about that individual, that is “an integrity issue” (para 4.7). The presumption is that the information has been deliberately omitted (ibid; and Police Scotland SOP, para 17.5).
Facts
[8] The petitioner is a police officer. He joined the police in 1983. In 2009, he became Assistant Chief Constable of Central Scotland Police. The petitioner obtained Management Vetting clearance from Central in August 2009, having previously had clearance with another force. In April 2013, he transferred to Police Scotland, retaining the same rank.
[9] In about 2000, whilst living in England, the petitioner met a music and events promoter, named BR. The petitioner and Mr R developed a friendship, which involved socialising with their spouses, both at each other’s homes and at public events. In July 2013, the petitioner borrowed £250,000 from Mr R. The loan was undocumented, unsecured and interest free.
[10] In July 2013, the petitioner submitted an application for the renewal of his MV clearance. He declared the existence of the loan, but did not identify the lender, beyond describing him as a “friend”. He referred to “a loan with no interest or conditions… [which] will be returned if I don’t go ahead with future plans or on receipt of the communtation (sic) at the point of retiring or when capital is released from a house sale”. The petitioner avers that he decided to return the money in early August 2013, and had communicated that to Mr R.
[11] In October 2013, following the breakdown of the Rs’ marriage, the petitioner was told by Mrs R that her husband had convictions for assault, fraud and firearms offences, for which he had received custodial sentences. The last such sentence had been imposed in 2000. Although the details of the convictions were not formally given to the petitioner in the vetting process, it was not disputed that they exist. On 16 October 2013, the petitioner sent an email to a superior officer, who was not concerned with vetting procedure, which told of the petitioner’s friendship with “a married couple”, who were “going through a bitter acrimonious separation”. It said “today the wife disclosed to me that the husband has criminal convictions and that he has served time in prison. I was and have been completely unaware of this”. The email did not identify Mr R by name, nor was the loan of £250,000 mentioned.
[12] On 1 November 2013, a “freezing” injunction was granted by the Family Division of the High Court of Justice in London. This prohibited the petitioner (amongst others) from taking any steps to defeat Mrs R’s claims by dealing with, or disposing of, Mr R’s assets. On 15 November 2013, the petitioner “returned” the loan funds. Although the relevant documentation was not all produced, it was accepted that the return followed an order from the High Court. The basis for this was not explained, nor was it said to whom the monies had been returned.
[13] In July 2014, the petitioner was interviewed in relation to his application. There is a dispute as to whether Mr R was named at that time. On 14 August 2014, the petitioner provided a witness statement in the divorce proceedings to support Mr R’s application for contact with his children. In that statement, the petitioner set out details of his police experience in order to add weight to his evidence. No mention was made of Mr R’s previous convictions.
[14] On 2 September 2014, the petitioner was refused MV clearance by the Force Vetting Officer. He tried to obtain a review of this decision, but he was out of time. After the refusal, he completed a Notifiable Association Report relating to Mr R. In this, he described Mr R as a friend, with whom he had had increasing social contact since 2000, and with whom he had had recent contact in 2014 at social events. He explained that the Rs were going through an acrimonious separation, during which he had learned of Mr R’s previous convictions. No mention was made of: the loan of £250,000; the witness statement in support of Mr R; or the injunction. The petitioner said that he had “no knowledge” of Mr R’s businesses. The description of Mr R’s address was left incomplete and his mobile phone number was expressly withheld.
[15] On 19 December 2014, as a result of the refusal of clearance, the second respondents gave notice to the petitioner that they intended to call upon him to retire or be required to resign on the grounds of effectiveness or efficiency, in terms of section 14 of the Police and Fire Reform (Scotland) Act 2012.
[16] On 2 February 2015, the petitioner submitted a fresh application for MV clearance. In the financial questionnaire, the petitioner described the events in 2013, when he had received £250,000 from “a (then) associate”, Mr R. He explained that the money had been returned and had never been used. He stated that the return had been delayed “as a result of an unexpected separation and claims from both parties”.
[17] On 8 March 2015, the Force Vetting Officer advised the petitioner that she had refused his application on two principal bases, first, “the financial arrangement you entered into in 2013 with Mr [R]”, and, secondly, “adverse information held by Police Scotland”. The latter statement is the standard method of referring to a third party associate having previous convictions. The petitioner sought review of this decision.
[18] A Review Panel hearing was held on 1 May 2015. The petitioner was represented by counsel. He had been provided with copies of all of the material considered by the Force Vetting Officer. This consisted of an incomplete copy of the injunction, the two sets of vetting application questionnaires, the Notifiable Association Report, the witness statement in the divorce proceedings and two articles from the Sun newspaper. This was all the material which the...
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