R (A) v Chief Constable of C Constabulary [QBD]
| Jurisdiction | England & Wales |
| Judge | The Hon. Mr. Justice Coulson |
| Judgment Date | 12 February 2014 |
| Neutral Citation | [2014] EWHC 216 (Admin) |
| Date | 12 February 2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2312/2013 |
[2014] EWHC 216 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr. Justice Coulson
Case No: CO/2312/2013
Mr Gordon Nardell QC and Mr Parishil Patel (instructed by Birketts) for the Claimant
Ms Fiona Barton QC (instructed by Force Solicitor for B Constabulary) for the Defendant
Hearing Date: 18 December 2013
Approved Judgment
INTRODUCTION
The claimant ("A") is a sole trader who provides, amongst other things, vehicle hire, breakdown and recovery services. For over 30 years he has provided recovery and breakdown services to B and C Constabularies, either directly or, more recently, as a sub-contractor. His applications for the relevant security clearance have now been refused and he seeks judicial review of those decisions. The application raises an interesting issue as to the appropriate test to be applied by the police when vetting for security those who provide services to them.
This matter has a relatively lengthy history. I propose to summarise the course of the original judicial review proceedings before going on to set out, as briefly as possible, the subsequent events. Having identified the issues, I then set out the relevant parts of the National Vetting Policy for the Police Community ("NVP") before identifying the correct test to be applied in situations such as this. I then consider the relevant decisions themselves. I am very grateful to Mr Nardell and Ms Barton for their clear and concise written and oral submissions.
THE ORIGINAL PROCEEDINGS
In 2009, having provided breakdown and recovery services for C Constabulary ("the defendant"), for many years, the claimant was obliged to seek security clearance to continue to act as a sub-contractor to the main contractor Recovery Management Service Limited ("RMSL"). That clearance was duly granted, despite the fact that, as has now come to light, there was some intelligence which suggested that the claimant may have been involved in serious criminal activity. The relevant officer indicated that, at the time, the defendant was prepared to run the risk on continuing to work with A because it was considered to be a low one.
In 2010, the claimant made a similar application for clearance so that he could continue to act as a sub-contractor in the B Constabulary area. That application was refused, without giving the claimant any opportunity to deal with the matters that gave rise to the decision, and without any reasons being provided. Accordingly, the claimant applied for judicial review of that decision. In those proceedings it became apparent that clearance was refused because of the claimant's alleged association with serious criminal activity. This was based on intelligence rather than anything more specific.
In his judgment, date 26 July 2012, Kenneth Parker J had little difficulty in concluding that it was unfair for the Chief Constable of B Constabulary not to provide any information at all about the basis of the decision. His detailed reasons are set out in the judgment at [2012] EWHC 2141 (Admin). The judgment is also important now because, at paragraphs 45 and 46, Kenneth Parker J set out what he considered to be the appropriate test when the police vet suppliers and subcontractors for security. The parties are agreed that these remarks were obiter but, in the absence of any other authority on the point, they are plainly important. I set them out and deal with them in Section 6 of this judgment.
SUBSEQUENT EVENTS
Following the judgment of Kenneth Parker J, a fresh decision had to be made. By that time, the two forces had a joint Professional Standards Department, headed by an area C officer, and their internal liability policies mean that the defendant is the correct recipient of this claim. On 4 September 2012, Mrs S Jarvis re-took the original decision and again refused clearance. That decision was upheld on review by Superintendant L Pepper in a letter dated 30 November 2012.
During the period of the original judicial review proceedings, and subsequently, the claimant had continued to carry out work for the defendant in the C area as a result of the clearance granted in 2009. Perhaps unsurprisingly, by a letter dated 16 January 2013, Mrs Jarvis purported to revoke that clearance on behalf of the defendant.
The basis of each of the three decision letters referred to above is the same each time. The decision-maker sets out the test noted by Kenneth Parker J at paragraph 45 of his judgment. The decision-maker then identified the various pieces of intelligence which were said to link the claimant to serious criminal activity. That material was provided in "gisted" form to the claimant, and the claimant was given the opportunity to respond to the initial decision. It is that gisted intelligence which was the reason why security clearance was denied to the claimant.
The intelligence came from multiple sources, and was provided by three separate police forces. There were 20 separate pieces of intelligence. The bulk of it covered the preceding seven years or so, although some intelligence was older than that.
It is unnecessary to set out all of the gisted intelligence but, in order to give a flavour of the sort of material being considered by the decision-makers, it is perhaps instructive to note the following matters in particular, taken from the letter of Superintendent Pepper dated 30 November 2012. These matters were then repeated by Mrs Jarvis in her decision of 16 January 2013.
(1) 'It is alleged that [the claimant] transfers large sums of money through various bank accounts which are subject to financial investigation. This intelligence was received within the last four years'.
(2) 'It is alleged that persons in [B area] are supplied by [the claimant] who has a haulier business in [the B area]. The drugs are transported in his lorries. This intelligence was received within the last five years'.
(3) 'It is alleged that an individual by the name of XXXX who used to work at [the claimant's] business is involved in the theft of pallets of alcohol and tobacco from loads shipped by [the claimant]. It is believed that [the claimant] is complicit in these thefts and the victims are in fact the customers of [the claimant]. This intelligence was received within the last three years'.
…
(5) 'In 2009 [the claimant] purchased an old bank building in [the B area]. It is alleged that this was with a view to converting it into a wine bar. In 2009 there was an arson at the only other pub in the area. It is alleged that the offender was paid by [the claimant] to set fire to the pub. This intelligence was received within the last three years'.
…
(7) 'It is alleged that [the claimant] and another have access to large storage facilities and are rumoured to handle stolen goods. This intelligence was received within the last three years'.
(8) 'It is alleged that [the claimant] and another are suspected of involvement in the importation of heroin and illegal immigrants. This intelligence was received within the last five years'.
(9) 'It is believed that [the claimant] and another have stolen HGV tractive units locked up in an unknown location. This intelligence was received within the last five years'.
(10) 'It is alleged that [the claimant] has opened another prestige vehicle site. It is the Z motor company…It has many vehicles that are £30k plus…they have a website which if you search ['the claimant'], ['Y'] comes up. These premises and vehicles are for laundering money. This intelligence was received within the last 5 years.'
…
(12) 'It is alleged that [the claimant] associated with a company known as X and is using it to launder money. This intelligence was received within the last six years'.
…
(16) It is alleged that the claimant is associated with D, a group involved in prestige cars. It is rumoured that £2 million cash is passing through it every month. It is linked to prestige car dealers in the area. This intelligence was received within the last six years.
In respect of each of the allegations noted above, the claimant had an opportunity to comment on the initial decision and either did not comment specifically or provided an explanation which was noted by (but did not satisfy) the decision-maker. Other numbered pieces of intelligence were considered by the decision-maker but rejected and not taken into account in reaching the relevant decision. Others, such as information (4) (concerned with drugs allegedly found in one of the claimant's vehicles in 'Monocco' (sic)), and information (14) (in connection with card schools with large stakes) seem to me to be peripheral at best, and without any proper connection to the vetting process. I note in relation to allegation (4) that it took place about 15 years ago, and the claimant dealt with the allegation by making it plain that he had no knowledge of, let alone involvement in, the incident in question.
The claimant subsequently issued these proceedings complaining that the decisions were unlawful because:
(a) He was given no or no proper opportunity to make meaningful representations before the decisions were taken;
(b) They were taken on the basis of an incorrect test;
(c) They were irrational in treating the intelligence as a sufficient basis for refusing/revoking clearance.
In addition, in relation to the decision to revoke the clearance of 2009, the claimant also argued that the existing provision of...
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