R J v The Chief Constable of West Mercia Police
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Steyn |
| Judgment Date | 11 January 2022 |
| Neutral Citation | [2022] EWHC 26 (Admin) |
| Docket Number | Case No: CO/5056/2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 26 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Birmingham Civil Justice Centre
33 Bull St, Birmingham, B4 6DS
THE HON. Mrs Justice Steyn DBE
Case No: CO/5056/2019
The Claimant appeared in person
Mark Thomas (instructed by West Mercia Police Legal Services) for the Defendants
Hearing date: 20 December 2021
Approved Judgment
A. Introduction
This is a claim for judicial review. The claimant challenges the lawfulness of a decision made by the defendants' Vetting Appeal Panel (“the Panel”) on 20 August 2019 to dismiss his appeal against a refusal to grant him Non-Police Personnel Vetting level 3 (“NPPV3”) clearance (“the decision”).
I granted the claimant permission at a renewed oral permission hearing on 27 May 2021. The claimant has raised grounds of challenge under the three heads of illegality, irrationality and procedural impropriety. There are a number of elements to each of these grounds. In particular, he contends that the Panel had an ulterior motive in making the decision; they took into account irrelevant factors, failed to take relevant factors into account and/or made errors of fact; the decision was irrational in the sense that it falls beyond the range of decisions open to a reasonable decision-maker; the decision was infected by bias and/or predetermination; the Panel failed to give the claimant a fair hearing; and the reasons for the original decision were inadequate.
B. The facts
In 2012 West Mercia and Warwickshire Police forces entered into a strategic alliance which led to the merger and sharing of various police functions and services (“the alliance”). In 2019 the defendants announced that the alliance between the two forces was to end. In preparation for the end of the alliance, the defendants advertised through a recruitment agency called Talent International for a Programme Manager to work within the Digital Services department of the two forces to separate the shared information and communications technology systems used by the defendants.
The claimant, through the IT consultancy company of which he is director, applied for the role of Programme Manager on about 6 June 2019. On 20 June 2019, the claimant was interviewed by a panel which included Nigel Lambie (the Senior Programme Manager in the Alliance Transformation Programme, of Warwickshire Police), Simon Bennett (the Head of Digital Services, of West Mercia Police, who was to manage the programme) and Paul Benfield (also of West Mercia Police). The interview panel decided that the claimant was the preferred candidate.
On 21 June 2019, the claimant was offered the role, subject to the claimant successfully obtaining non-police personnel vetting level 3 (“NPPV3”) clearance. The contract was for an initial term (which appears on the face of the draft contract to have been for 12 months), with the possibility of a series of extensions subject to the claimant's capability and performance.
The claimant completed and submitted the NPPV3 application form on 9 July 2019. Under the heading “Financial”, the claimant recorded, so far as material:
| “How would you describe your overall financial situation? | Manageable |
| Please enter details of your current borrowings (e.g. loans, HP and mail order ? exclude mortgages). Include number of borrowings, amounts left to repay and total monthly repayments: | £28K, £4 per month repayment |
| Please indicate the purposes of these loans below, inclusive of home improvements, holidays, debt repayment, stocks and shares, cars consumer durables, bridging finance, general expenses, students loans or other: | General expenses |
| … | |
| Compared to a year ago do you owe more or less on your loans, cards and overdrafts? | Much less |
| … | |
| In the last 10 years, have you had a credit/store/charge card withdrawn or been notified that a card or account had been defaulted? If yes, please provide full details: (emphasis added) | Default on credit card around 7 years ago – do not have specific details any more as so long ago.” |
Mr Bennett contacted the Vetting Unit to ask them to consider giving the claimant conditional clearance so that he could begin work prior to the completion of the full, standard vetting process.
The College of Policing Approved Professional Practice guidance entitled “APP Vetting”, published in May 2019 (“the APP Guidance”), states at paragraph 3.2:
“Vetting clearances must be granted before an individual is appointed or granted access to police assets. This is because the vetting process can uncover information which shows that the individual is unsuitable to serve in the police service, or to have access. To avoid undue delay in police business, vetting clearances need to be processed in a timely manner. Conditional clearances may be granted to an individual based on any known risks pending full clearance being received, or when an individual has been given a period of time to address any risks through the vetting clearance process. The acceptance of any identified risk should lie with the department to which the individual is being recruited, and it is recommended that either type of conditional clearance should only be used in exceptional circumstances where the force agrees that there is a justifiable business need to accelerate the appointment. …”
At the time, Amanda Blakeman was the Deputy Chief Constable for West Mercia Police (“DCC Blakeman”). As such, her responsibilities included being the line manager of the Head of the alliance's Professional Standards Department, of which the Vetting Unit formed part. In this capacity, DCC Blakeman would consider requests for conditional clearance of applicants, although such requests were relatively rare, and she would chair the Vetting Appeal Panel. Michael Gillick, of Warwickshire Police, was employed as the Vetting Development Manager. Joanna Goodman, of Warwickshire Police, was employed as a Vetting Case Officer, a role which is referred to in the APP Guidance as Force Vetting Manager (or “FVM”), having the authority of the chief officer to grant, refuse or withdraw vetting clearance.
In response to Mr Bennett's request, DCC Blakeman requested that a series of checks be completed, and that Mr Gillick risk assess the claimant on the basis of those checks and report back to her with his recommendation as to whether to grant conditional clearance. Mr Gillick asked Ms Goodman to perform the preliminary vetting checks on the claimant with a view to considering whether conditional clearance could be granted. As requested, Ms Goodman completed checks on the Police National Computer (“PNC”), Police National Database (“PND”) and Experian. The PNC and PND checks returned with no issues, but Ms Goodman noted that the loan disclosed by the claimant did not appear on the Experian report.
On 24 July 2019, Ms Goodman telephoned the claimant to obtain more information about the loan that he had declared. In the “Vetting Tracing Sheet”, Ms Goodman recorded:
“A telephone interview was conducted on 24/07/19 to ascertain more information regarding the applicant's declared £28k loan.
I asked the applicant if he could tell me who the £28k loan was with. He said this was a general loan and wasn't sure what company it was with. He said all the paperwork was gone.
When asked if it was one just one [sic] loan or multiple consolidated he said that he didn't know.
I asked why is he only paying £4 a month off and he said he was in between contracts at the minute but when he is back in contract he will ‘ramp it up’. He made reference to it being ‘flexible’.
When asked what year he got the loan he couldn't remember. He said it was going back a few years. I asked was it more than 3 less than 10 and he said yes.
He has no credit cards just one debit card.
When asked what the loan was initially for i.e. car, he said it was for general expenditure.
He said there are people out there with hundreds of thousands of pounds of mortgages so why should he worry about £28k.
As the applicant could not tell me anything more I thanked him for his time and hung up.”
In his witness statement, the claimant describes this as a “brief unannounced call” and he takes issue with the description of it as a “telephone interview”. He states:
“The conversation during the informal call felt confrontational from Ms Goodman with requests to know what the loan was spent on and I explained that it was General Expenditure such as train tickets, meals etc going back as far as 10 years ago but I had no records on the specific itemised expenditures or any clear recollections as it was so long ago. Ms Goodman was not happy with this answer and I found it inexplicable how not having a photographic memory of all these expenditures had anything to do with a risk assessment vetting. The nature of the questions seemed to be very bizarre and little to do with a risk or threat assessment vetting and at one point remember thinking I had no idea what Ms Goodman was talking about as the questions made no sense at all; the vetting officer had not told me she had already undertaken a credit check and this had caused her concern, even though it was completely clean, which seems even more irrational. I did not believe that any reasonable person would be able to recall these details and so I asked Ms Goodman if she would be able to recall these details going back so far and she said that she would. At this point I began to feel that Ms Goodman had lost her objectivity and was determined to find a reason, no matter how unreasonable, to fail my vetting.”
Ms Goodman has given a witness statement in which she states that at the outset of such a telephone...
To continue reading
Request your trial
-
The King on the application of Alice Victor v Chief Constable of West Mercia Police
...vetting clearance and to a consequent ending of service. 83 As Steyn J explained in R(J) v Chief Constable of West Mercia & another [2022] EWHC 26 (Admin) at [86] “the APP Guidance is guidance, not legislation, but there would need to be a good reason not to follow it”. In that case there ......