R A v Chief Constable of B Constabulary and Another

JurisdictionEngland & Wales
JudgeMr Justice Jay
Judgment Date06 December 2013
Neutral Citation[2013] EWHC 4120 (Admin)
Docket NumberCO/2312/2013
CourtQueen's Bench Division (Administrative Court)
Date06 December 2013

[2013] EWHC 4120 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Royal Courts of Justice

Strand

London WC2A 2LL

Before:

Mr Justice Jay

CO/2312/2013

Between:
The Queen on the Application of A
Claimant
and
Chief Constable of B Constabulary
Chief Constable of C Constabulary
Defendants

Mr P Patel (instructed by Birketts) appeared on behalf of the Claimant

Ms F Barton QC (instructed by Force Solicitor for B Constabulary) appeared on behalf of the Defendants

Mr Justice Jay
1

By an application notice issued on 2 August 2013 in these judicial review proceedings the claimant, who has been anonymised by court order as "A", applies under CPR Part 31.12 and 31.14 for an order for specific disclosure. The defendant, who has been anonymised as "the Chief Constable of C Constabulary", resists this application and cross-applies to the extent necessary to withhold any documentary material which would otherwise be disclosable on PII grounds. On 4 October 2013 Carr J made various orders in these applications and they now come before me for determination. I should add that on 19 November 2013 Holman J refused the claimant's application that a special advocate be appointed, although he ordered that the matter be kept under review. I have been loyal to Holman J order but at no stage have I come to the conclusion that a special advocate is needed to assist the court in relation to the withheld material.

2

This litigation has a lengthy history which it is only necessary to touch on for present purposes. In essence, the claimant had for many years been providing vehicle recovery and breakdown services to the Chief Constable of B Constabulary. In 2010 the police decided that those in the claimant's position would need security clearance, and on 15 February 2011 an employee of the Police Authority informed the claimant's manager by email that he had not been given security clearance to work on the relevant contract. The reasons supporting this decision were scanty in the extreme and the claimant brought judicial review proceedings which were ultimately successful before Kenneth Parker J (see [2012] EWHC 2141 (Admin)).

3

Kenneth Parker J's judgment has been subjected to some scrutiny in this application and I should therefore explain my understanding of it. The learned judge held first of all that the decision in question had sufficient of a public law element to render it susceptible to judicial review. That was the principal issue. However, there was also an subsidiary issue, namely the "actual content of the duty to act fairly in the present context" (see paragraph 44 of the judgment).

4

Ms Barton QC, for the Police Authority had submitted that "where decisions were based on sensitive intelligence information the duty of fairness required no more than that the decision maker acted honestly without bias or caprice" (see paragraph 23). Ms Barton further submitted in support of this contention that the existence of a contractual provision effectively relieved the Police Authority of the burden of giving any explanation for refusal of security vetting.

5

Kenneth Parker J rejected the Police Authority's case on this issue, holding that the contractual term in question could not lawfully reduce the extent of the duty to act fairly that would otherwise be imposed by public law (see the last sentence of paragraph 44). However, the learned judge went on to consider the context of the fairness obligation and he set out his conclusions on this matter at some length in paragraphs 45 to 48 of his judgment.

6

In my view, these paragraphs are, strictly speaking, obiter, although they could not have more than persuasive authority in this court in any event. No questions of issue estoppel or res judicata arise as between the parties.

7

I do not propose to subject paragraphs 45 to 48 of Kenneth Parker J's judgment to a close textural analysis. That would or might be to prejudge the substantive application for judicial review. However, a number of potentially relevant points need to be stated. First, the learned judge held that the Police Authority does not have to show that it had reasonable grounds for believing that a person has been or would be involved in criminal conduct:

"If the Police Authority has any basis at all for suspecting that a person might have been or might be presently or might in the future be implicated, even innocently, in activities that could be considered criminal or might be associated, again even innocently, with criminal elements, it would be justified in refusing security clearance." (see paragraph 45).

8

Secondly, the Police Authority is entitled to draw widely on police intelligence (see paragraph 46). It is not obliged to confine itself to admissible evidence.

9

Thirdly, the Police Authority is not required to implement a "minded to refuse" procedure (see paragraph 47).

10

Fourthly, a blanket denial of any explanation in all cases cannot be squared with the duty to act fairly; "the giving of some explanation for the refusal of security clearance ordinarily can be accommodated within the vetting process without putting at risk efficient and effective policing" (see paragraph 47). That said, the degree of reasoning and justification capable of being provided in any particular case will depend on PII considerations in respect of which the court should intervene only in very exceptional circumstances; here I am paraphrasing paragraph 48.

11

Following Kenneth Parker J's decision, which was handed down on 26 July 2012, responsibility for security vetting in the B area then passed to the present defendant, the Chief Constable of C Constabulary, although no issue turns on this. On 4 September, Mrs SJ purported to retake the original decision. Security clearance was refused. The claimant's solicitors asked for a review and by a letter dated 30 November 2012 Superintendent LP purported to uphold that decision on review. This is the first decision under challenge in these proceedings. Meanwhile, the claimant had continued to hold vetting clearance in the C area originally granted in 2009 and he continued to provide services to C Constabulary. By a letter dated 16 January 2013 Mrs SJ purported to revoke that clearance. This was in identical terms to the first decision letter of 30 November 2012 and it forms the basis of the second decision under challenge.

12

The information provided to the claimant over time has evolved. In her letter dated 4 September 2012, Mrs SJ stated that she had received intelligence from over 20 different sources from three forces relating to the claimant's alleged involvement in serious crime, including money laundering, importation and supply of class A drugs, importation of alleged illegal immigrants, arson, theft, handling of stolen goods, fraud and interception of police communications. Mrs SJ went on to set out the position in relation to what she called Force A, Force B and Force C but, in my judgment, having read that, the claimant would have been none the wiser. Mrs SJ continued:

"I am unable to disclose any further details of the intelligence I have seen as to do so would be likely to:

• frustrate the prevention or detection of crime;

• impede the apprehension or prosecution of offenders;

• result in the disclosure of sensitive information;

• breach the confidentiality of information provided in confidence."

It has been the defendant's consistent position throughout these proceedings that to be more specific about which of these public interest considerations applies in any given case would itself necessarily undermine the very public interest which it is duty bound to protect.

13

I have also given careful consideration to the review decision given on 30 November 2012. There Superintendent LP set out 16 allegations on which the police relied, the claimant's explanation where available and her findings. By way of example only, I set out one of these, which happens to be the 16th:

"It is alleged that [the claimant] is associated with the [M] Group. The group is involved in prestige cars. It is rumoured that £2 million cash is passing through it every month. It is linked to two prestige car dealers in […] areas. This intelligence was received within the last 6 years."

The Superintendent's conclusion was as follows, again with necessary redaction:

"There is further information which is third party data which I am unable to disclose as to do so would frustrate the prevention or detection of crime, impede the apprehension or prosecution of offenders and breach the confidentiality of information provided in confidence.

[The claimant] states at paragraph 11 of his statement dated 28 February 2012 that the assertion that he is involved in a company with £2 million cash passing through it every month is ludicrous. He states that he is self employed and his main business handles large amounts of money. He stated that in 2011 income from sales was £17,241,333 and for 2010 it was £14,313,470. He states that he has only ever been involved in two companies, namely […], neither of which trades in the huge sums alleged.

[The claimant's] explanations do not allay my concerns in relation to this piece of intelligence when taken together with other intelligence which alleges that [the claimant] is involved in money laundering (see items 10 and 12 above). I therefore have no hesitation in upholding the decision to refuse security clearance."

14

The claimant raises a number of challenges to this decision letter. First and foremost he contends that he has never had the opportunity properly to contradict the allegations against him since...

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