R A v Chief Constable of B Constabulary
| Jurisdiction | England & Wales |
| Judge | Mr Justice Kenneth Parker |
| Judgment Date | 26 July 2012 |
| Neutral Citation | [2012] EWHC 2141 (Admin) |
| Docket Number | Case No: CO/4355/2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 July 2012 |
[2012] EWHC 2141 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Kenneth Parker
Case No: CO/4355/2011
Mr Gordon Nardell QC and Mr P Patel (instructed by Birketts LLP) for the Claimant
Miss Fiona Barton QC (instructed by Legal Services Department, B Constabulary) for the Defendant
Hearing date: 9 May 2012
Introduction
The Claimant (who in these proceedings is referred to as "A") is a sole trader who provides, among other things, vehicle hire, breakdown and recovery services. For many years A provided recovery and breakdown services to the Defendant (who in these proceedings is referred to as the Chief Constable of B Constabulary, or as "the Police Authority") directly and, more recently as a sub-contractor to a main contractor appointed by the Chief Constable.
In 2010 the Police Authority reviewed its vehicle recovery contract. A new contract was entered into with FMG Support (RRMM) Limited ("FMG"). FMG provides vehicle recovery services to a number of police forces in England and Wales. FMG sub-contracts the delivery of services to local operators.
On 13 December 2010 A entered into a sub-contract with FMG. The sub-contract was to begin on 14 January 2011 for an initial period of three years. The contract was essentially for the provision by A of recovery, storage and disposal services to the Police Authority in a small part of the Authority's area. Although the sub-contract is between FMG and A, the sub-contract governs the supply of services to the Police Authority and contains terms which refer to interaction between A and the Police Authority.
In particular, Schedule 3 of the contract sets out A's obligations. Paragraph 2.7 of Schedule 3 provides:
"2.7 …The Police Authority will be required to vet the Supplier's employees, agents or subcontractors and exclude any person from the Agreement without further explanation…"
The vetting procedure, which lies at the centre of A's claim, was carried out pursuant to this contractual provision.
Accordingly, the Police Authority requested that all those persons who were to be employed or engaged by A (including A himself) should complete a pro-forma giving information about themselves to enable a security vetting check to be carried out by the Police Authority.
In January 2011 A submitted pro-formas on behalf of himself and some of his employees, to enable security vetting to be carried out. It was necessary for A to secure vetting clearance as he was personally and directly involved in the discharge of the duties set out in the contract (and thus, like other employees, would enjoy a position of responsibility in that he would have access to, inter alia, police premises and assets).
A completed a pro-forma that contained basic identifying information to enable a security vetting check to be carried out.
On 27 January 2011 FMG informed A that six employees in respect of which a request had been made had been given clearance by the Police Authority to work on the contract. A further five employees were subsequently also security cleared.
On 15 February 2011 an employee of the Police Authority, Sue Jarvis, informed A's manager by e-mail that A had not been given security clearance to work on the contract. It is this decision, refusing A security clearance, that is the subject of the claim for judicial review.
A asked Ms Jarvis for more information. On 15 February 2011 (the same day) Ms Jarvis provided the following information to A:
"We do carry out checks on police systems both nationally and locally. We have a set criteria from the Home Office which prevent a person from gaining access to [the Police Authority's] premises and IT systems. There are time scales for offences i.e. a caution would be 5 years, bankruptcy 3 years, driving offences 4 in 5 years and so on.
Also if there is any ongoing investigation we would have to wait for the conclusion of that.
So it doesn't mean that we would not clear someone in the future.
If an individual wishes to find out what is held on them, they can apply through Data Protection for Subject Access. If the individual thinks that information may be held with a particular force then they should apply to that force who owns the information. I hope this makes sense and is of some help."
On 17 February 2011 Ms Jarvis spoke to A again and informed him that the Police Authority could not grant him security vetting clearance. She did not mention any information or intelligence that might have led to this decision.
On 1 March 2011 A wrote to the Information Security & Vetting section at the Police Authority, noting that he had not been able
"to absolutely determine the cause of this decision [not to give clearance] from my conversations with yourselves."
A stated that he was extremely concerned that the decision may have been influenced by incorrect information and asked to be provided with full details of the detrimental information held against him.
On 3 March 2011 A followed up his letter with a subject access request made under s7 of the Data Protection Act 1998, seeking:
"Information identified in relation to vetting procedure decline connected to FMG support vehicle recovery contract for [the Police Authority]."
On 5 April 2011 the Police Authority provided the information held in relation to A that it was obliged to supply under the Data Protection Act 1998 (i.e. that data which was the subject matter of the request and which was not exempt from disclosure by reason of one or more of the exemptions set out in Part III (ss27–29) of the 1998 Act). The covering letter notified A of his right to request the Information Commissioner to conduct an assessment of the Authority's response to his subject access request. Therefore, the procedure under the Data Protection Act 1998 appears to have been impeccably followed. However, as has emerged in the course of these proceedings, the Police Authority did not base its refusal of A's security clearance on any information disclosed under the 1998 Act. Furthermore, the inescapable inference was that the Police Authority well knew that in response to the data access request it would not be disclosing any information upon which it based the refusal of A's security clearance. From A's point of view, this exercise was a wild goose chase.
In any event on 11 April 2011 A wrote to the Police Authority referring to a few possible inaccuracies in the data disclosed to him. As I have observed, this was a somewhat pointless exercise in the present context because the Police Authority knew that the disclosed data had no bearing on the decision that concerned A.
On 15 April 2011 the Police Authority replied in detail to the points made by A in relation to the disclosed (and, in the relevant context, irrelevant) information.
On 15 April 2011 A's solicitors sent a short Protocol letter and on 9 May 2011 the Defendant sent a Protocol reply. This stated:
"[A] was not given security clearance as a result of information held by police for a policing purpose. I am unable to disclose the nature of that information."
For completeness, I should mention that it emerged in evidence in these proceedings that Ms Jarvis' refusal of 15 February 2011 was reviewed and approved by a senior officer at a later date. It also emerged that the initial and review decisions were made by reference to nationally published guidance, NVP, which was not mentioned, either expressly or impliedly, in any of the relevant communications with A in respect of the refusal of his security clearance.
The Legislative and Policy Background
(a) General Police Powers
In response to my questions at the hearing of this claim, I was provided with material relating to the statutory background. As to police powers generally, section 3 of the Police Act 1996 ("the 1996 Act") provides:
"(1) There shall be a police authority for every police area for the time being listed in Schedule 1.
(2) A police authority established under this section for any area shall be a body corporate to be known by the name of the area with the addition of the words "Police Authority"."
Section 6 of the 1996 Act sets out the general functions of police authorities, as follows:
" 6 General functions of police authorities.
(1) Every police authority established under section 3 shall secure the maintenance of an efficient and effective police force for its area.
(2) In discharging its functions, every police authority established under section 3 shall have regard to—
(a) any objectives determined by the Secretary of State under section 37,
(b) any objectives determined by the authority under section 7,
(c) any performance targets established by the authority, whether in compliance with a direction under section 38 or otherwise, and
(d) any local policing plan issued by the authority under section 8.
(3) In discharging any function to which a code of practice issued under section 39 relates, a police authority established under section 3 shall have regard to the code.
(4) A police authority shall comply with any direction given to it by the Secretary of State under section 38 or 40…."
Furthermore, a police authority is treated as a "local authority" for the purposes of, inter alia, Section 111 of the Local Government Act 1972 (see section 146A thereof), which provides:
" 111 Subsidiary powers of local authorities.
(1) Without prejudice to any...
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