R (Tucker) v Director General of the National Crime Squad
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE HARRISON |
| Judgment Date | 12 April 2002 |
| Neutral Citation | [2002] EWHC 832 (Admin) |
| Docket Number | NO: CO/2986/2001 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 April 2002 |
[2002] EWHC 832 (Admin)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand
London WC2
Mr Justice Harrison
NO: CO/2986/2001
MR M WESTGATE (instructed by Russell, Jones & Walker, Solicitors) appeared on behalf of the Claimant
MR J McGUINNESS QC and MR C JOHNSTON (instructed by Winckworth Sherwood) appeared on behalf of the Defendant
Background
1. The claimant is a Detective Inspector with the Derbyshire Constabulary, who was seconded to the National Crime Squad (“the NCS”). On 28th April 2001 his secondment to the NCS was terminated. He now seeks judicial review of the decision to terminate his secondment.
2. The claimant joined the Derbyshire Constabulary in 1978. In 1996 he was seconded for five years to the Regional Crime Squad, which later became the NCS. In January 2001 his secondment was extended to 20th May 2002. Throughout that period of service in both the Derbyshire Constabulary and the NCS he received good appraisals and was the subject of commendations.
3. Whilst the claimant was seconded to the NCS, there was a covert investigation into drug-related matters known as Operation Lancelot. A management board was set up to monitor the operation. As a result of that investigation, on 28th April 2001 ten persons, some of whom were officers seconded to the NCS, were arrested for drug-related matters. Two other officers seconded to the NCS, Detective Chief Inspector Hardy and Detective Constable Branston, had their secondments terminated and they were returned to force with immediate effect for disciplinary investigation. The claimant's secondment to the NCS was also terminated and he was returned to force with immediate effect. In his case he was issued, on that day, with a notice, which stated:
“The National Crime Squad Professional Standards Unit has received information that you have failed to maintain the professional standards required by a Detective Inspector on the National Crime Squad. The Deputy Director General no longer has confidence in your ability to carry out your responsibilities.
“A number of police officers have been arrested this morning for drug-related matters. The lack of confidence is not related to that criminal investigation. The reasons for lack of confidence relate to managerial issues in connection with your duties and conduct whilst a serving member of the National Crime Squad.
“The decision to return you to force will be reviewed both during and at the conclusion of the enquiry to ensure that the grounds for your return remain proportionate, justified and necessary.”
4. It was later explained that the decision to terminate the claimant's secondment had been taken by the Deputy Director General of the NCS with the prior concurrence of the Director General and on the recommendation of the Management Board. The claimant asked for the reason for the termination of the secondment, but he was told that none could be given apart from the information given in the notice served upon him. He was told that the termination was not in connection with the arrest of the other officers and that he was not the subject of any disciplinary investigation.
5. Subsequently, on 25th July 2001, the defendant's solicitors replied to the claimant's solicitors’ pre-action protocol letter, stating inter alia as follows:
“It is correct that the Claimant has been told that his return to force was not connected with the arrest or inquiry relating to four officers seconded to the Nottingham NCS branch who were arrested on the 28th April 2001. It is also correct that the Claimant is not and has not been the subject of any discipline investigation and neither has he been charged with any disciplinary offences. Legal constraints, after the receipt of clear legal advice, prevent the Director General from disclosing the source of information which led to the Director General's lack of confidence in the integrity of the Claimant as an NCS seconded officer.
“…
“The Claimant is right to allege that the secondment to NCS is a high status posting and it is possible that his return to force may have an impact on his career advancement. The source of the information that the Director General and others were acting upon, as already stated cannot be disclosed. The Director General is however under a general duty to uphold the integrity of NCS, its officers and the particular operations that they may be involved in.
“In response to the assertion that the decision to return your client to force was unfair and in breach of the rules of natural justice, our client makes the following points:
“(i) it is not possible to give the Claimant particulars of any specific allegations or their source which ultimately would be protected by Public Interest Immunity.
“(ii) the Claimant has been allowed to make representations both written and in person but the source of the information is not disclosable.
“(iii) the reasons for the decision relate to the operational integrity and the confidential integrity of NCS and its operations both specific and in general terms.
“So far as the notice of any termination of secondment is concerned and any procedures in relation thereto the urgency of the matter and the need to take action for the integrity of NCS, the operation and its officers was such that more normal terms of notification were not appropriate.
“The fact that NCS and the Director General were acting in the interests of the operational and general integrity of NCS and that the precise source and nature of the information they were acting upon is not able to be disclosed does not invalidate or impugn the justification and propriety of the decision. Neither is the validity of the decision qualified or questioned by the exceptional circumstances which had arisen. The paramount considerations, given the information available to the Director General, were the integrity and security of the National Crime Squad and its officers and the integrity of the operation in question. These were balanced properly and fully in relation to the conduct and judgment of the Claimant and any judicial review proceedings which take place will be answered in the same way by the Director General and ultimately with regard to the source and nature of the information by reference to Public Interest Immunity.”
6. In December 2002 the Director General undertook a review of the decision to terminate the claimant's secondment, the outcome of which was that the decision was confirmed as correct. Following delayed notification of that decision to the Derbyshire Constabulary, the Deputy Chief Constable wrote a letter to the claimant on 14th February 2002 in which he said:
“I was advised that your development needs should encapsulate the skill areas of informant handling and decision making, bearing in mind the difficulties surrounding the source of the intelligence. I took the view that it was not appropriate at this stage to take action on your development needs until the results of the judicial review are known. For any development to have value it will inevitably encroach into the subject of the judicial review with its attendant difficulties.”
7. The position is that the claimant has been on clerical duties with the Derbyshire Constabulary since the termination of his secondment to the NCS and that his development needs will be addressed once the judicial review proceedings are concluded.
The issues
8. The first issue in this case is whether the claim is amenable to judicial review. If it is amenable to judicial review, the second issue is whether fairness required the defendant to give reasons for the decision and to give the claimant an opportunity to make representations.
Preliminary Submission
9. Before coming to those issues, however, it is necessary first to refer to a preliminary submission made by Mr Westgate on behalf of the claimant, which arose out of the position adopted by the defendant, the Director General of the NCS, in his detailed grounds for contesting the claim. The defendant stated that he is prohibited by law from providing the claimant with the information or the source of the information which formed the basis of the NCS's loss of confidence in the claimant. Mr McGuinness QC, who appeared on behalf of the defendant, made it clear at the hearing that, despite the references in the defendant's solicitors’ letter of 25th July 2001 to public interest immunity, he was not putting forward public interest immunity as the reason for not disclosing the information or the source of it. He declined to state why the defendant was prohibited by law from disclosing the information or the source of it and he declined to state why he was prevented from so stating.
10. Having been told that public interest immunity was not being raised by the defendant as the reason for refusing to give reasons for the termination of the claimant's secondment, Mr Westgate concentrated on sections 17 to 19 of the Regulation of Investigatory Powers Act 2000. Section 17 provides inter alia that no evidence shall be adduced, question asked or disclosure made in connection with any legal proceedings which tends to suggest that an interception warrant has been issued. Section 19 provides that it is an offence for any member of the NCS to disclose even the existence of an interception warrant, let alone its contents. Section 18(7)(b) permits a relevant judge, which includes a High Court judge, to order a disclosure to him of anything otherwise prohibited by section 17. Mr Westgate submitted that I should exercise the power under section 18(7)(b)...
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