The Queen (on the application of X) v The Chief Constable of Y Police and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Phillips |
| Judgment Date | 27 February 2015 |
| Neutral Citation | [2015] EWHC 484 (Admin) |
| Docket Number | Case No: CO/17018/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 February 2015 |
[2015] EWHC 484 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Birmingham Civil Justice Centre
3 Bull Street, Birmingham, B4 6DS
Mr Justice Phillips
Case No: CO/17018/2013
Christopher Buttler (instructed by Public Law Solicitors) for the Claimant
John Beggs QC and Aaron Rathmell (instructed by Y Legal Services) for the First Defendant
Hearing date: 6th November 2014
The first defendant ("the Chief Constable") applies for an order that certain police records relating to the claimant ("X"), a man aged 32, should be withheld from disclosure in these proceedings on the grounds of public interest immunity ("PII").
The records in question ("the withheld records") were the determining factor in the Chief Constable deciding, on 26 July 2013, not to grant X the vetting clearance required to be appointed to a community liaison role ("the Position") by the second defendant ("the PCC"). That decision was upheld by an appeal panel appointed by the Chief Constable on 19 August 2013, the panel advising that X should not be appointed. The PCC accepted that advice.
In these judicial review proceedings X contends that the Chief Constable's retention of information concerning allegations against him was an interference with his right to respect for private life under Article 8 of the European Convention on Human Rights ("the ECHR"), as was the use of that information in reaching the vetting decision of 19 August 2013. He further contends that the 19 August 2013 decision, having been made without disclosing to X the allegations recorded against him or even the gist of those allegations, was in any event an interference with his Article 8 rights and procedurally unfair. The above interference, he argues, was disproportionate and/or not in accordance with the law, with the consequence that the 19 August 2013 decision was unlawful. He further contends that the PCC's decision not to appoint him, being based on an unlawful decision of the Chief Constable, was also unlawful.
On 28 February 2014 Green J granted permission for the claim to proceed, directing that written submissions be exchanged as to " how… procedurally the substantive hearing should be conducted eg. as a PII hearing or otherwise". The result was that, pursuant to a consent order of Hickinbottom J. dated 10 April 2014, the present interlocutory application was issued on 23 April 2014.
The procedure adopted was as follows. Two of the Chief Constable's officers prepared statements detailing the information held relating to X and exhibiting all relevant police records. The versions served on X were heavily redacted, removing all material in respect of which an order was sought, namely, the withheld records. In addition to the redacted version, the full unredacted material was lodged with the court and read by me in advance of the hearing. At the hearing of the application Mr Beggs QC, leading counsel for the Chief Constable, invited me to hear from him in private as to the import of the withheld records. Mr Buttler, counsel for X, objected in general terms to Mr Beggs being permitted to make submissions in the absence of X and his representatives, but accepted that such a course would be practical and appropriate if I had questions for Mr Beggs as to the possibility of providing any further indication as to the gist of the allegations in question. I therefore heard from Mr Beggs in private on that limited basis, before resuming the hearing in public, subject to the restriction that X's identity may not be disclosed or published. To further protect his identity I direct that he be referred to in connection with these proceedings as X and that the police area to which this matter relates shall be referred to as Y.
The background facts
The Position involves acting as the liaison between the PCC and (i) community groups in a specified locality within the county, in particular attending community meetings and reporting to the PCC on those meetings, and (ii) the local team of police officers. A person appointed to the Position is not an employee or a member of the PCC's staff, but is paid an annual fee of less than £1000 to recognise the minimum time commitment and likely expenses which will be incurred. The PCC regards it as essential that the holder of the Position is a person of integrity, of good standing and able to act with considered judgment: all successful applicants are subject to vetting by the police.
The Assistant Chief Constable of Y Police (who chaired the appeal panel dealing with X's case) explains in her statement that a holder of the Position would have access to police premises and would therefore see and hear confidential police information, including highly sensitive personal data, and might have sight of officers' computer screens displaying information from the command and control system or intelligence system. It was therefore considered appropriate that successful candidates for the Position should be required to pass Non Police Personnel Vetting at level 2 (there being 3 levels).
X applied for the Position by application dated 30 May 2013. On 18 June 2013 he was offered the post, subject to vetting clearance. X duly completed and submitted to the Chief Constable a standard security vetting form dated 1 July 2013. He declared (truthfully and accurately) that he did not have any convictions or cautions, whether or not spent.
By letter dated 26 July 2013 the Chief Constable's vetting case officer informed X that he had failed the vetting process and that he would not be granted vetting clearance. The officer stated that he was unable to explain further the reasons for their judgment on this occasion, but informed X of his right to appeal in writing to the Deputy Chief Constable.
X requested further information or reasons for the decision, but that request was refused. He lodged an appeal, protesting that it was very difficult to appeal a decision having little or no knowledge of the reason behind it. He was limited to making general assertions that he had always maintained probity in his private and public life and had never been in any sort of trouble.
As stated above, the appeal panel refused X's appeal on 19 August 2013. On 30 August the Chief Constable, in response to a Subject Access Request made by X, disclosed a redacted version of the appeal panel's decision sheet, as well as the redacted version of some of the police records.
The factual basis of the appeal panel decision was blanked-out in the disclosed version of the decision sheet, but the panel's conclusion was disclosed and reads as follows:
" It was felt that this was indicative of the applicant's personality thereby posing a potential risk to vulnerable people, which would be heightened if placed in a position of trust or authority.
Further, it was considered that there would be significant risk to the reputation of the organisation viz the Office of Police Commissioner should the intelligence known to ourselves become public knowledge as a result of complaints
The applicant would not be supported for any police role whether employed full time or as a volunteer with [Y] and [Z] police"
The police records, disclosed in redacted form, contained a number of incident reports during the period 2004 to 2010. In the Chief Constable's response dated 14 November 2013 to X's letter of claim, the position was summarised as follows:
"27. There were three separate aspects of intelligence held in [Y] Police records which formed the basis of the decision to refuse vetting in this case.
28. First, there are incident reports in relation to the breakdown of relationships between [X] and women, in particular the reports dated 29 March 2008 to 28 July 2008 and, less relevantly, the reports dated 5 and 10 June 2010. In these reports it is clear that the relationships became particularly acrimonious, cross-allegations were made and police were involved, but took no further action.
29. The records disclosed indicate that the intelligence held by police is mixed — [X] levelled allegations and is referred to as the victim — and the recording officers took a balanced approach. In the incident report dated 5 June 2010, it was recorded X reported to police that he had anxiety and depression issues at that time. The latter information accords with another, unrelated, incident report (dated 15 February 2010, also referring to anxiety and depression). It is acknowledged that these matters are three to five years old, and that the issues involved in the relationships were personal and may have been complicated.
30. For those reasons the information was considered relevant, but not determinative of [X]'s application. If this were the only information held about [X] it is less likely that vetting would have been refused.
31. The second and third aspects of intelligence held in [Y] Police records were more serious, and were determinative of the decision to fail vetting. We confirm that they did not involve criminal convictions or cautions, but they did involve allegations against [X] that were serious in nature. This information has not been disclosed as part of the subject access requests.
32. The Chief Constable is not able to detail these intelligence reports further without disclosing information relating to other individuals who would necessarily be identified from that information. In respect of both pieces of intelligence, the person...
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