Tucker, R (on the application of) v National Crime Squad Director General

The Appellant is a Detective Inspector in the Derbyshire Constabulary, which he joined in 1978. In 1996 he was seconded for five years to the Regional Crime Squad, which subsequently became The National Crime Squad (“NCS”). In January 2001 his secondment was extended until May 2002, but on 28 April 2001 it was terminated and he was summarily returned to his local force. His claim for judicial review of that decision failed before Harrison J. on 12 April 2002 who held that the decision was amenable to judicial review but that the Director General of the NCS had acted fairly notwithstanding the absence of reasons for the decision and the lack of opportunity for the Appellant to make representations.

The Appellant appeals with the permission of Harrison J. There are two issues on the appeal (i) whether the decision was amenable to judicial review and (ii) fairness.

Secondment to the NCS requires both the consent of the seconded officer and the approval of his chief officer. The NCS is a creature of statute (see Section 48 Police Act 1997) whose purpose is the prevention and detection of serious crime which is of relevance to more than one police area in England and Wales. By Section 55(5) of the Police Act 1997 an officer is appointed on such terms and conditions as the NCS Service Authority considers appropriate. Throughout secondment, any disciplinary procedures relating to the seconded officer remain the responsibility of his home force notwithstanding that they may relate to his conduct as an NCS officer (see Section 97 Police Act 1996).

The conditions of service contain the following relevant provisions:

On joining the NCS the Appellant signed a declaration accepting the conditions of service and received a letter of appointment enclosing Notes for Guidance on Conditions of Service which were said in the letter to be “an integral part of this letter of appointment.” The letter also referred to the appointment being subject to the Appellant’s acceptance of the conditions of service. The notes said in the section headed: “Tenure and periods of notice”:

“……….Ordinarily, either party giving one month’s notice may terminate a secondment. However, the Director General reserves discretion to terminate an officer’s secondment without notice.”

In common with other police officers, the Appellant was and is an office holder as a police officer. He does not have a contract of employment. In practice secondments to the NCS are sought after because the work is interesting and frequently of a sensitive nature. They are regarded as high status postings.

In April 2001 the NCS was involved in a covert operation called Operation Lancelot into drug related crime. The operation was monitored by a Management Board. On 28 April 2001 ten people, some of whom were officers seconded to the NCS, were arrested on suspicion of drug related offences. Two other officers seconded to the NCS, DCI Hardy and DC Branston, had their secondments terminated with immediate effect and were returned to their home force for disciplinary investigation. The Appellant too had his secondment summarily terminated and was returned to his home force, but without any disciplinary implications. He was telephoned at home by a member of the Professional Standards Unit at the NCS and told that a number of officers had been arrested at the Nottingham Branch for drug related matters. He was asked to go to the Derby Branch Office but not to discuss the matter with anyone. On arrival he was told that the Deputy Director General of the NCS had, as a result of information provided to him, lost confidence in his management performance and that he was being returned to the Derbyshire Constabulary forthwith. He was handed a notice which said:

“The National Crime Squad Professional Standards Unit has received information that you have failed to maintain the professional standards required by a Detective Inspector on the National Crime Squad. The Deputy Director General no longer has confidence in your ability to carry out your responsibilities.

A number of police officers have been arrested this morning for drug related matters. The lack of confidence is not related to that criminal investigation. The reasons for lack of confidence relate to managerial issues in connection with your duties and conduct whilst a serving member of the National Crime Squad.

The decision to return you to force will be reviewed both during and at the conclusion of the inquiry to ensure that the grounds for your return remain proportionate, justified and necessary.”

It was later explained that the decision had been taken by the Deputy Director General with the prior concurrence of the Director General and on the recommendation of the Management Board. The Appellant asked for more information but was told that none could be given beyond that in the notice.

The Appellant was aggrieved by the insensitive manner in which his secondment was terminated and the resulting association in the eyes of colleagues and others with serious allegations against other officers. The NCS issued a press release which might have been more felicitously worded. He was unable to answer the Deputy Director’s concerns without being told the basis of them.

Following several weeks of correspondence and meetings to which it is unnecessary to refer, and in response to the Appellant’s solicitor’s letter of 23 July 2001, the Respondent’s Solicitors wrote on 25 July 2001 saying that the Director General had again reviewed the evidence on which the decision had been made and again was satisfied the decision was right. The letter said:

“Legal constraints, after receipt of clear legal advice, prevent the Director General from disclosing the source of information which led to the Director General’s lack of confidence in the integrity of the claimant as an NCS seconded officer.”

The letter accepted that secondment to the NCS was a high status posting and that it was possible his return to force might have an impact on his career advancement and continued:

“The source of the information that the Director General and others were acting upon, as already stated, cannot be disclosed. The Director General is however under a general duty to uphold the integrity of the NCS, its officers and the particular operations that they may be involved in.”

There was a further review by the Director General in December 2001. Following it the Deputy Chief Constable of the Derbyshire Constabulary wrote to the Appellant on 14 February 2002:

“I was advised that your development needs should encapsulate the skill areas of informant handling and decision making, bearing in mind the difficulties surrounding the source of the intelligence. I took the view that it was not appropriate at this stage to take action on your development needs until the results of the judicial review are known. For any development to have value it will inevitably encroach into the subject of the judicial review with its attendant difficulties.”

The Appellant has been confined to clerical duties with the Derbyshire Constabulary since his return in April 2001. The position will be reviewed in relation to his development needs as soon as the judicial review is over. It remains to be seen whether, once the criminal proceedings relating to Operation Lancelot are complete, the Director General is able to be any more forthcoming about the information that led to the termination of his secondment and what professional standards he failed to maintain.

If the decision to end the Appellant’s secondment is not amenable to judicial review, that is the end of the matter. He has no remedy. Questions of fairness do not arise. Harrison J. however concluded that judicial review is available but went on to reject the Appellant’s case on fairness. The judge’s conclusion that judicial review is available is challenged in a Respondent’s notice and it is convenient to deal with this issue first.

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. There are some cases that fall at or near the boundary where the court rather than saying the claim is not amenable to judicial review has expressed a reluctance to intervene in the absence of very exceptional circumstances. See e.g. R v British Broadcasting Corporation ex parte Lavelle [1983] 1All ER 241.

The starting point, as it seems to me, is that there is no single test or criterion by which the question can be determined. Woolf L.J, as he then was, said in R v Derbyshire County Council ex parteNoble [1990] ICR 808, 814E:

“Unfortunately in my view there is no universal test which will be applicable to all circumstances which will indicate clearly and beyond peradventure as to when judicial review is or is not available. It is a situation where the courts have, over the years, by decision in individual cases, indicated the approximate divide between those cases which are appropriate to be dealt with judicial review and those cases which are suitable dealt with in ordinary civil proceedings.”

Sir John Donaldson MR in R v Panel on Take-overs and Mergers ex parte Datafin PLC [1987] QB 815, having referred to a number of different situations in which the court had asserted its jurisdiction, said at 838E:

“In all the reports it is possible to find enumerations of factors giving rise to the jurisdiction, but it is a fatal error to regard the presence of all those factors as essential or as being exclusive of other factors. Possibly the only essential elements are what can be described are a public element, which can take many different forms, and the exclusion from the jurisdiction of bodies whose sole source of power is a consensual submission to its jurisdiction.”

What are the crucial factors in the present case? In Leech v Deputy Governor of Parkhurst Prison [1988] AC 533 Lord Oliver of Aylmerton said that the susceptibility of a decision to the supervision of the courts must depend, in the ultimate analysis, upon the nature and consequences of the decision and not upon the personality or individual circumstances of the person called on to make the decision. I regard this as a particularly important matter to keep in mind in the present case.

Here, the learned judge, in concluding that there was public law jurisdiction, appeared to base his decision on the grounds that the Appellant had no contract of employment and no private law remedy; that the NCS was a public body created by statue to perform public law functions; that there were aspects of the decision challenged that were associated with public law functions, and that the action taken could affect the Appellant’s career or reputation.

It is, of course, beyond dispute that the NCS is a public body and it is also accepted that the Appellant has no private law remedy. Both of these are factors which as a starting point might suggest that the court does have jurisdiction to intervene. But it is necessary to look further and focus on what the Deputy Director General was doing when he made the impugned decision.

Mr Martin Westgate, for the Appellant, submits as I understand it that the jurisdiction threshold is a low one and that the NCS being a public body plus the absence of a private law remedy are sufficient to found jurisdiction in this case. It is a matter for the judge to go on therefore, as Harrison J. did, and decide whether there are grounds for exercising that jurisdiction. His submission is that the cases show that there is often a mixture of issues. For example justiciability and the existence of an alternative remedy are often inextricably interlinked and that unless the area is one in which the courts have already indicated they will not grant public law relief e.g. employment it is necessary to explore the precise facts of the case to see whether it may be appropriate to grant relief. And even in employment cases the possibility of judicial review cannot be ruled out. See Lord Bingham M.R in R v Crown Prosecution Service ex parte Hogg, The Times Law Reports, 14 April 1994. It seems to me that the logical consequence of Mr Westgate’s submission, if correct, is that permission to apply for judicial review will be granted in many cases where a claim has negligible prospects of success and will ultimately fail at the substantive hearing. I cannot believe this to be desirable.

It is perhaps hardly surprising in this difficult area that the issues of whether the claim is justiciable and whether the court will provide a remedy have become intermixed. There is, after all, little purpose in the court entertaining a claim if it is satisfied that no remedy is, in the circumstances, available. Nevertheless it seems to me that there are two distinct questions.

Mr Westgate has concentrated on the availability of a remedy. He submits that the key to this case is to be found in the words of Purchas L.J in R v East Berkshire Health Authority ex parte Walsh [1985 1QB 152, 181H where he referred to the basic question as being whether the remedies sought by the applicant arose solely out of a private right in contract between him and the authority or upon some breach of the public duty placed upon that authority which related to the exercise of the powers granted by statute to it to engage and dismiss him in the course of providing a national service to the public. It is important, however to look at what the case was about. The Appellant was a nursing officer who was dismissed for misconduct and sought judicial review to quash the decision on the ground that there had been a breach of natural justice and that the district nursing officer had no power to dismiss him. The Court of Appeal held that an applicant for judicial review had to show that a public law right enjoyed by him had been infringed and that where the terms of employment by a public body were controlled by statute its employees might have rights both in public and private law to enforce those rights, but that a distinction had to be made between an infringement of statutory provisions giving rise to public law rights and those that arose solely from a breach of the contract of employment. Sir John Donaldson M.R at 164D, quoting Lord Wilberforce in Malloch v Aberdeen Corporation [1971] 1 WLR 1578, 1596 pointed out that while a statutory power of dismissal injected the public element necessary to attract the remedies of administrative law, employment by a public authority did not per se inject any element of public law.

The present case is not about dismissal. The impugned decision did not affect the Appellant’s status as a Detective Inspector. While it is true that the NCS performs an important public function, as do police forces generally, that does not mean that every decision personal to an individual officer engages public law remedies. There is a line over which the courts cannot go. It is impermissible to trespass into the management of police forces generally or the NCS in particular.

Mr Westgate’s argument is that what happened to the Appellant was inextricably linked to the public function of the NCS, whose core activity is the detection and prevention of serious crime. The Respondent in terminating the Appellant’s secondment was discharging his duty to uphold the integrity of the NCS. The public nature of what he was doing was an integral part of the decision. His decision was triggered by the receipt of information by the NCS in the exercise of a public function and it was inseparable from other actions in relation to Operation Lancelot that clearly did fall within the public sphere. Further, the decision affected the Appellant’s fundamental rights including the right to a reputation.

In The Queen on the application of Hopley v Liverpool Health Authority & Others (unreported) 30 July 2002 Pitchford J helpfully set out three things that had to be identified when considering whether a public body with statutory powers was exercising a public function amenable to judicial review or a private function that was not. These are:

i)

Whether the defendant was a public body exercising statutory powers;

ii)

Whether the function being performed in the exercise of those powers was a public or a private one; and

iii)

Whether the defendant was performing a public duty owed to the claimant in the particular circumstances under consideration.

That was a case where the Liverpool Health Authority had refused to consent to payment to the claimant of damages for personal injury by periodical payments under a with profits structured settlement made under Section 2 of the Damages Act 1996. He concluded that the decision was not amenable to judicial review because the function being performed by the Health Authority, as it affected the claimant, was a private one.

Applying those criteria, with which I agree, to the present case it seems to me clear that the third criterion was not met. The Deputy Director General in sending the Appellant back to his force was not performing a public duty owed to him. The decision taken in relation to the Appellant was specific to him. Other officers were dealt with differently. Some were arrested; some were sent back to be disciplined; one was retained with different duties. But the Appellant was simply sent back. It was a decision tailor-made to him. It was taken because of perceived deficiencies in his skills and conduct as an NCS officer. It was an operational decision taken because it was decided that he fell short of the particular requirements that were necessary to work in the NCS. It had nothing to do with his private life and I reject Mr Westgate’s contention that Article 8 of the ECHR was engaged.

Mr McGuinness QC, for the Respondent, submits that while no single test or consideration dictates amenability to judicial review there are three striking features about the present case which taken together put it outwith the public law jurisdiction. These are:

i)

The nature of the relationship between the NCS and an officer seconded to it;

ii)

The National Conditions of Service;

iii)

The operational rather than disciplinary nature of the decision.

I agree each of these features is relevant and that each falls to be considered in the context of the source of the power being exercised by the Respondent, the nature of his decision and the rights of the Appellant that are affected. I take each of the three points in turn.

A police officer is in a different position from other employees. On becoming an officer he forfeits certain advantages, for example the right to strike or bring proceedings for unfair dismissal. He is subject to the discipline of his force and has by and large to go where and do what he is told. On the other hand he gains certain advantages for example the right to remain in service, health permitting, and to ill health and injury pensions. Dismissal or other disciplinary punishment is governed by statutory procedures that are amenable to judicial review in the event of any breach of public law principles, such as fairness.

When a police officer is seconded to the NCS he remains an officer. No new office is created; he retains his existing rights and obligations. His secondment is temporary and he automatically ceases to be a member of NCS at the end of his period of temporary service. As I have already mentioned, disciplinary procedures are a matter for his home force. He is in a sense on loan to the NCS.

There was nothing compulsory about the Appellant’s secondment. He applied for it and was accepted. Crucially, it was an express condition that exceptionally, the Director General could terminate his secondment without notice (condition 7.2). That apart, the secondment was terminable on one month’s notice either way. On any view the Director General was entitled to terminate the secondment on one month’s notice for good reason, bad reason or no reason at all. Thus, putting it at its highest the Appellant’s complaint can only relate to the summary nature of the termination.

The Respondent, was in the event, exercising a power to which the Appellant had signed up. Also, the decision involved no change in the Appellant’s status as a police officer, no financial loss to him and no disciplinary allegation against him.

Neither party on the termination of a secondment on a month’s notice or summarily by Respondent is required by the conditions to give reasons. This seems to me to be entirely understandable in the light nature of the work undertaken by the NCS.

In contradistinction to the decision with regard to the other officers, there was no disciplinary element to decision in the Appellant’s case. He was returned to his force because the Respondent had lost confidence in his ability to carry out his responsibilities. It seems to me that this was an entirely operational decision similar to the kinds of decision that are made with officers up and down the country every day of the week. Examples are transferring officers from uniform to CID or from traffic to other duties. These, to my mind, are run of the mill management decisions involving deployment of staff or running the force. They are decisions that relate to the individual officer personally and have no public element. They are, if you like, the nuts and bolts of operating a police force, be it the NCS or any other. It is, in my judgment, quite inappropriate for the courts to exercise any supervisory jurisdiction over police operational decisions of this kind. There is, quite simply, no public law element to them. The position is different where, however, disciplinary proceedings have been taken against an officer and the ordinary principles of fairness have been breached.

The distinction is illustrated by two recent cases. The first is The Queen on the application of O’Leary v The Chief Constable of Merseyside, (unreported) 9 February 2001. Maurice Kay J. granted judicial review because there was procedural unfairness in procuring a change of mind of the Chief Constable on the basis of a report that contained mistakes and had not been disclosed to the claimant. The judge concluded that the error was too closely connected with a disciplinary hearing to be identified as an operational rather than a disciplinary matter. The Chief Constable had made a clear representation to the claimant that his future deployment would be considered on the merits free from any prior restrictions. He did so in the course of discharging his statutory responsibilities in disciplinary proceedings. In directing that his original decision had been superceded he had frustrated the claimant’s legitimate expectation and the claimant was entitled to a public law remedy.

The Second case is The Queen on the application of Morgan v Chief Constable of South Wales, (unreported) 9 April 2001. That case fell on the other side of the line. The claimant was an inspector in the South Wales Constabulary. He held ‘white ticket’ status which meant that he was in a pool awaiting promotion to chief inspector and that in the ordinary course of events he would be promoted to chief inspector when a vacancy arose. However, an operational incident occurred as a result of which he was admonished by the Assistant Chief Constable on the recommendation of the Police Complaints Authority. The Chief Constable decided not to promote him and removed his ‘white ticket’. The claimant argued that this was in reality a disciplinary sanction and that natural justice required he should have had a fair hearing. I said at para 15:

“The problem for the Chief Constable was whether the claimant was up to the post of chief inspector. It was his job to man an efficient and competent police force and once he had reached a conclusion that the claimant was not suitable for promotion there was no purpose in leaving his name on the list of those with a ‘white ticket’.”

And at para 18:

“The decision not to promote cannot be categorised as a disciplinary matter.”

Although the jurisdiction issue was not argued I said at paragraph 19 that the decision under challenge was one of a kind with which the courts should only in the most exceptional circumstance, if ever, interfere.

The present case it seems to me is much closer to Morgan than O’Leary. In my judgment there is a clear line between disciplinary issues where an officer has the right to public law safeguards such as fairness, and operational or management decisions where the police are entitled to run their own affairs without the intervention of the courts.

Taking the three factors together I see the position as follows. Any officer joining the NCS on secondment will appreciate, if he pauses to consider the conditions of service, that his secondment can end at any time without reasons being given and that exceptionally this may be without any notice at all. Bearing in mind the sensitivity of the work of the NCS most people would not find this surprising. The officer is, in any event, with the NCS for a limited period only. It is critical that the NCS should be able to manage the deployment of its officers so as best to achieve its objective of preventing and detecting serious crime.

The fact that the NCS is a public body and that the decision to return the Appellant was taken against the background of Operation Lancelot and the arrest of other officers does not turn what was essentially a managerial decision in relation to the Appellant into one with a sufficient public law element to trigger the jurisdiction of the Administrative Court. It is true this is not a case in which the Appellant can invoke a private law remedy. That is a factor, but not in this case determinative. What is critical is whether the dispute has a sufficient public law element. See R v Lord Chancellor’s Department ex parte Nangle [1992] 1 All E.R 897, 908B.

In my judgment the decision impugned in the present case does not have a sufficient element of public law to be subject to judicial review. It was of purely domestic nature.

It is common ground that the impugned decision was honestly made and that no question of bad faith arises. The judge concluded that whilst it may be sensible and desirable for reasons to be given when terminating an officer’s secondment, the sensitive nature of the work and information in the NCS’s hands may exceptionally make this inappropriate in the public interest. This was one of those cases. The Respondent went as far as he reasonably could in informing the Appellant why his secondment was being terminated. The decision was subsequently reviewed and maintained by him. There was no requirement in law to do more. I should add that Mr McGuinness readily accepted that in the interests of good man management the Appellant should be given fuller details if and when the reasons for not doing so ceased to apply. Such a situation might for example, arise after the conclusion of the current criminal proceedings; on the other hand it might not.

The thrust of Mr Westgate’s argument is that the Appellant should have been given notice of the allegations against him and a real opportunity to meet them. He could not do so unless he had adequate information about them. The starting point, he submits, is that public powers must be fairly exercised.

What does fairness require in the present case? In R v Secretary of State for the Home Department ex parte Doody [1994] 1 AC 531, 560D Lord Mustill detailed six principles from the authorities, pointing out that what fairness required was often an intuitive judgment. The six principles are that (1) Where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their applications to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken on with a view to producing a favourable result; or after it is taken, with a view of procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.

As Geoffrey Lane L.J said R v Secretary of State for the Home Department ex parte Hosenball [1977] 1 WLR 766, 786E what is fair cannot be decided in a vacuum. The context in which the decision was made to terminate the Appellant’s secondment is therefore of crucial importance. It is necessary for NCS officers to maintain confidence in each other and for the NCS to be able to continue to meet its statutory objective of tackling serious organised crime. Inevitably from time to time its officers will be recipients of sensitive or confidential intelligence information. Not infrequently informers may be involved. Disclosure of such information may lead to revelation of an informer’s identity, to the exposure of undercover investigations or the compromise of covert surveillance gathering. There may therefore be constraints on the information that can reasonably be given for decisions such as that impugned in the present case. Whilst disclosure of sensitive intelligence information may not have the same breadth of significance as disclosure of matters involving national security, it may still be of great importance to those whom it directly concerns.

It is clearly established that where there are real concerns about national security, the obligations of fairness may have to be modified or excluded. See Hosenball 773B-F, 786E. But as Mr Westgate points out this case does not involve any issue of national security. It does however involve, using the expression broadly, ‘sensitive intelligence information.’ There is no reason in principle why the ordinary obligations of fairness should not be modified in this class of case just as they are in cases where issues of national security are involved. Certainly there is no authority that limits any modification or exclusion to the latter category.

In R v Secretary of State for the Home Department ex parte Adams [1995] All ER (EC) 1995 177 Mr Adams had accepted an invitation to address Members of Parliament and journalists in the House of Commons with a view to encouraging dialogue and discussion on the Northern Ireland peace process. The Secretary of State made an order under Section 5 of the Protection of Terrorism (Miscellaneous Provisions) Act 1989 prohibiting his entry into the United Kingdom on the grounds that he was concerned with acts of terrorism. Mr Adams made representations challenging the order but the Secretary of State, having considered them, decided not to revoke the order. Mr Adams sought judicial review. Steyn L.J giving judgment of the court said at p 184:

“A decision of the Secretary of State to make an exclusion order under Section 5 of the 1989 Act is not as a matter of law immune from judicial review. It is, however, settled law that the Secretary of State is not obliged to give reasons for a decision under Section 5 to impose an exclusion order. That was the effect of the decision of the Court of Appeal in R v Secretary of State for the Home Department ex parte Gallagher (1994) Times, 16 February. The rationale of that decision was that reasons in order to be meaningful would usually have to reveal sensitive intelligence information which it would be contrary to the public interest to disclose. Given the premise that the Secretary of State is not obliged to give reasons, a decision under Section 5 (1) will not in practice be reviewable except in the most exceptional circumstances. The reason, is of course, that in practice one will hardly ever know what material was before the Secretary of State. To that extent the desirability of an effective remedy for judicial review must yield to the higher interest of state”

He added:

“Without access to the information available to the Secretary of State we cannot form any judgment that would enable us to conclude that the Secretary of State acted for an improper motive in the Padfield sense or that his decision was unreasonable in the Wednesbury sense.”

The Appellant in the present case wishes to scrutinise the Deputy Director’s decision and so obtain chapter and verse for why he was sent back to his own force. I have come to the conclusion he is not entitled to do so. The very nature of the work to which he was seconded is such as to be likely to involve sensitive intelligence information. It is relevant to look at what the Appellant was told about why he could not be told more. Initially it was that the Professional Standards Unit of the NCS had received information that he had failed to maintain the professional standards required of someone in his position and that the Deputy Director General no longer had confidence in his ability to carry out his responsibilities; later it was said that legal constraints following the receipt of legal advice prevented disclosure of the source of information. The operational and confidential integrity of NCS and the operations specifically and generally were also referred to as was the need to take action urgently. Finally in February 2002 the Appellant was told by his Deputy Chief Constable, after the decision to terminate his secondment had been confirmed as correctly taken, that his development needs required attention to “the skill areas of informant handling and decision making, bearing in mind the difficulties surrounding the source of the intelligence.”

Mr McGuinness referred to the Regulation of Investigatory Powers Act 2000, but without suggesting it had any direct application to the present case. He pointed out it would be unlawful for the NCS to disclose information revealing the existence or contents of material obtained as a result of a Secretary of State’s warrant authorising the interception of communications (see Sections 5 and 19). There is also the wide prohibition in Section 17.

All this, it seems to me, 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. See in a different context McInness v Onslow Fane [1978] 1 WLR 1520, 1535. The Deputy Director General was constrained by the circumstances in the information he was able to give to the Appellant. As time has passed the Appellant has been given a broad general indication of his deficiencies if he was unaware of them initially. I can well understand the distress that the decision caused the Appellant, particularly in relation to the manner in which it was made public and its proximity to decisions about other officers whose predicament was more serious. Unfortunately for the Appellant, however, this is not a matter with which the court can interfere. Even if the decision was amenable to judicial review, the appropriate standards of fairness in the context of this case have not been breached. Clause 7.2 of the Conditions of Service was a provision to which the Appellant had agreed and which the Respondent was entitled to use.

In my judgment the Deputy Director General was entitled to have in mind the risks attached to disclosing to the Appellant the full circumstances of why his secondment was being bought summarily to an end. This does not of course mean that fairness goes out of the window altogether and nor, so far as I can see, did it in this case. The bottom line is that the Deputy Director General acted in good faith and gave such information as he felt he could. Furthermore, the decision was reviewed and some further information provided as events unfolded. What the courts cannot do in a case such as this is scrutinise the decision and form its own view whether the Deputy Director General was objectively justified in withholding information.

There are cases, of which this is one, where although issues of national security do not arise the public interest requires that disclosure of information that would otherwise be given in the interests of fairness should be withheld. As Mr McGuinness accepted, some information is time sensitive whereas some is not. There is thus the possibility that information that cannot initially be disclosed can be later.

The Appellant founded an additional argument on the grounds that he had a legitimate expectation that (in summary) he would be treated fairly. But in my judgment this adds nothing to Mr Westgate’s main attack on lack of fairness. Either the claim succeeds or it does not; legitimate expectation makes no difference.

There was no sufficient public law element in the decision to terminate the Appellant’s secondment to warrant the intervention of the court. His claim is not amenable to judicial review and therefore the court has no jurisdiction to entertain it. I would therefore dismiss the appeal on this ground. I do, however, agree with Harrison J. that there was in any event no breach of the public law principles of fairness.

I agree.

I also agree.