On 7 August 2014 judgment was given in the Administrative Court in the case of Woods and Gorton v Chief Constable of Merseyside Police  EWHC 2784 (Admin). The decision has important implications for all forces in the operation of service confidence policies (SCP). The Court held that:
- decisions under the SCP were amenable to judicial review;
- where reasons for the policy’s use in a particular case cannot be disclosed as a result of public interest immunity, then the threshold for judicial interference in the decision is very high;
- the test is whether there is clear evidence of dishonesty, bias or caprice.
Central to the decision that the court should not intervene in this case was the finding at a separate hearing, by a different judge, that the reasons for the decisions under the SCP were subject to Public Interest Immunity (PII) and could not be disclosed.
Service confidence policies exist to provide a framework to keep under review and control officers who are thought to be of questionable integrity. Decisions are taken on the basis of information or intelligence that cannot for various reasons be made public or disclosed and cannot, therefore, found criminal or misconduct proceedings. They are not disciplinary processes, nor are they designed to deal with performance issues, both of which are governed by Regulations.
The SCP in this case was expressly stated to be concerned with the protection of staff and the force by management action and provided for deployment of officers in such a way that they could not undermine the overall integrity of the organisation.
The two officers, an inspector and a constable, were made subject to the SCP in circumstances where Merseyside Police was unable and/or unwilling to tell them the reasons for its loss of confidence in them, save that one of them was told that serious concerns over his integrity had arisen as a result of an anti-corruption investigation into a team of which both officers were members. This meant that misconduct proceedings were not a realistic option. The officers successfully completed action plans imposed under the SCP that were designed to address the loss of confidence but they were subsequently told that they would remain subject to the SCP. No explanation was given.
Judicial Review: preliminary hearings
The officers sought judicial review of the decision that they should remain subject to the SCP. Merseyside Police argued that such decisions were not amenable to judicial review because they were operational decisions, relying on the important Court of Appeal decision in R (Tucker) v National Crime Squad  EWCA Civ 57. This earlier case concerned the summary termination of an officer’s secondment to the National Crime Squad because of a loss of confidence in him. The Court of Appeal held in Tucker that the test to be applied in deciding whether a decision was amenable to judicial review involved three considerations:
1. whether the defendant was a public body exercising statutory powers;
2. whether the function being performed in the exercise of those powers was a public or private one; and
3. whether the defendant was performing a public duty owed to the claimant in the particular circumstances under consideration.
The Court in Tucker decided that the decision in question had been an operational matter, which related to the officer personally and had no public element. It was therefore not amenable to judicial review. Other examples of such decisions were said to be transferring officers from uniform to CID, or from traffic to other duties. The case has been relied upon by police forces resisting judicial review challenges in respect of a range of decisions relating to deployment, promotion etc.
In Woods permission was granted for the judicial review claim on the basis that it was arguable Tucker could be distinguished. Faced with the argument from Merseyside Police that it was unable to disclose the reasons for its loss of confidence in the officers, and that the court therefore could not adjudicate fairly on the decision to continue to apply the SCP, the judge ordered a PII hearing to take place before the substantive hearing of the judicial review.
For that hearing Merseyside Police produced a statement in two parts from the head of its anti-corruption unit. Part A set out that part of the reasoning which could be made public and part B contained the sensitive reason(s) which could not be disclosed. In addition, pursuant to the judge’s order, there was a public interest immunity certificate signed by the Chief Constable.
The PII claim was heard by Mr Justice Blair, who approved the withholding of part B of the statement on PII grounds. In his judgment he said nothing at all about the content of the PII material, and made clear that although the judge hearing the substantive claim would know that the PII claim had been upheld, he would not know about the content of that material. As a result, there was no question, of the substantive judicial review claim being decided by an analysis of the adequacy of the reasons given in the material which was subject to PII.
Judicial Review: substantive hearing
“The boundary between public law and private law is not capable of precise definition, and whether a decision has a sufficient public law element to justify the intervention of the Administrative Court by judicial review is often as much a matter of feel, as deciding whether any particular criteria are met.” Scott Baker LJ in R (Tucker) v National Crime Squad
Hearing the substantive claim, Mr Justice Stewart emphasised that the boundary between public and private law was not capable of precise definition and that deciding whether there were sufficient public law elements to justify the availability of judicial review was “as much a matter of feel, as deciding whether any particular criteria are met.”
He held that Tucker could, indeed, be distinguished on the facts. He rejected the claimants’ argument that there was a disciplinary or quasi-disciplinary element to the decisions under the SCP. However, he found that the ongoing effect of the SCP made it different from the sort of one-off decision seen in Tucker. This, together with the ongoing detrimental impact on an officer’s career of being subject to the SCP and, in particular, his or her prospects for promotion, was enough to permit a judicial review challenge.
However, the judge did accept that this was a case falling at or near the boundary of amenability to judicial review, where the court should be reluctant to intervene in the absence of very exceptional circumstances. In Tucker, which also concerned sensitive intelligence information, the Court of Appeal had said:
“All this… adds up to the fact that this is a case that falls into the “sensitive intelligence information” category. In this type of case the duty of fairness requires no more than that the decision-maker acts honestly and without bias or caprice…”
Stewart J concluded that this was such a case:
“The circumstances which lead to a decision to invoke the SCP, namely the sensitivity of the relevant intelligence, rather than for example to institute misconduct proceedings, are those which require that the court not intervene in the absence of very exceptional circumstances. There would be no need to invoke the SCP if there were no prejudice to the organisation or any other party from public scrutiny of the reasoning which underpins the decisions the subject of [the claimants’] challenge.”
“In effect [the force] is “hamstrung” from giving a properly reasoned justification of the decisions. In my judgment there would have to be clear evidence of dishonesty or bias or caprice. By “clear” the court would have to be satisfied that there could be no possible reason which might justify the decisions taken. This is a very high threshold, but one which seems to me to be appropriate.”
“In circumstances where [the force] is hamstrung from being able to provide reasons for the loss of confidence the court should not, unless driven to do so, decide that there must be capricious unreasonableness/irrationality/unfairness.”
The claim for judicial review was dismissed.
Tucker remains the high water mark for police forces resisting judicial review challenges. Although it remains good law, the courts are less willing to accept the existence of judicial “no go areas”. It should be anticipated that future claimants may also be successful in distinguishing it from their own case.
Forces should nevertheless be reassured by the court’s willingness to tread carefully where sensitive intelligence material is relied upon. The approach in this case of holding a PII hearing where the reasons for invoking the SCP were set out in a closed witness statement is recommended for further cases. This approach attempts to strike a degree of balance between the need for judicial scrutiny on the one hand, and on the other the difficulty or impossibility for police forces of disclosing genuinely sensitive material.
A final point: in other cases it might be that the reason for invoking a SCP is a loss of confidence based on intercept evidence to which s.17 of the Regulation of Investigatory Powers Act 2000 applies. Section 17 not only prohibits the use of the intercept material as evidence, but also prohibits any reference being made to its existence or to anything that would even tend to suggest that there had been a warranted interception. This prohibition is absolute in civil proceedings, even in a PII hearing. In such a case very careful consideration will be required of what material may lawfully be put before the court at a PII hearing and how it is presented.
This article was first published in Police Professional.