Woods & Anor, R (on the application of) v Merseyside Police

In this judgment I shall refer to Mr Woods as C1, Mr Gorton as C2 and the Chief Constable of Merseyside Police as D.

Michael Fordham Q.C. sitting as a Deputy High Court Judge granted permission to apply for judicial review. Apart from giving permission and certain standard type directions Mr Fordham ordered:

“2.

The Defendant to prepare a witness statement in two parts. Part A to be open, giving such reasons as the Defendant is willing and able to give to explain the Defendant’s position in respect of each Claimant. Part B to be closed, setting out any sensitive material, and in its nature, together with any reasons which he is not willing or able to give to the Claimants or in public. Part B to be accompanied by a Public Interest Immunity Certificate if justified. Part A to be filed and served on the Claimants by 4pm on 30 April 2014. Part B to be filed by the same date, but not served.

3….

4.

There be a hearing before a High Court Judge for consideration of:

(a)

The statements and PII certificate referred to in paragraph 2 above;

(b)

Any consequential directions;

(c)

Any request by the parties or any of them …for material to be considered by the court at the final hearing in such a way that it should become public and/or consideration to be given to any other “closed” process…”

D filed and served a witness statement of Mr John McKeon who is a Detective Chief Inspector with D and is head of the Anti-Corruption Unit. That statement is dated 28 April 2014. I attach it as Appendix A to this judgment (absent the exhibits). This is because it sets out all that is in the public domain in relation to why Cs are subject to the Service Confidence Procedure (“SCP”). There was also a Part B which was a closed part of Mr McKeon’s statement and was subject to a claim for public interest immunity. It was supported by a public interest immunity certificate signed by the Chief Constable. I have not seen that document as a result of the hearing before Blair J on 22 May 2014.

Blair J’s Order has not, as yet, been drawn up. Counsel are to liaise with his clerk so as to regularise this.

The claim concerns D’s SCP. The decisions sought to be challenged are the refusal of both Cs’ appeal against the continued imposition of the SCP against them. C1’s appeal was communicated to him in writing on 9 October 2013; C2’s appeal was communicated to him in writing on 23 October 2013.

D’s case is:

Cs’ case is brought on the grounds of Wednesbury unreasonableness/irrationality and unfairness. (Footnote: ¹)

There is a statutory misconduct regime for police officers. At the time relevant to Cs, this was contained in the Police (Conduct) Regulations 2008 (“The 2008 Regulations”). (Footnote: ²) They are made under the Police Act 1996. The regime is in essence a full and open adversarial process. Police forces in general, and D in particular, have SCPs. At the time Cs were made the subject of an SCP (2011) the SCP in force was dated June 2009. This has now been superseded by an SCP dated May 2012. (Footnote: ³) It is the latter document to which Cs are at present subject. I am told that D’s SCP is typical of that in force throughout the country.

The SCP begins with a “Statement” which reads:

“Merseyside Police Force recognises that it is legally accountable and subject to public scrutiny in respect of its delivery of policing services. It also acknowledges that in order to maintain and enhance public confidence in the Force it must create an ethically robust, corruption resistant, organisation

This policy introduces an ethical framework for dealing with loss of confidence in individual members of staff. The Force will take positive action to protect its staff, members of the public and its assets from risk.”

The “Aims” of the Policy are then set out:

“The main aims of this policy are to:

a)

Address loss of confidence by the Force in any particular individual/s when serious concerns arise as to their suitability to perform a specific role or duty.

b)

Protect the integrity of the organisation, individuals and operations

The policy is designed to ensure all police officers and police staff are fully aware of their respective and joint responsibilities regarding confidence issues. It is underpinned by procedures that detail the steps to be taken at all relevant stages.”

Following this is a heading “Objectives”. Particularly material is the following:

“The primary objective is to provide a framework that helps the Force deal with loss of confidence issues. Associated objectives are to:

………………………..

d)

Establish an ethical framework for dealing with those situations where management action is necessary without overt criminal or misconduct proceedings and where the reason for the action is based on information or intelligence that raises serious concerns about an individual occupying a particular post or carrying out a particular role.

e)

Establish the need to apply fairness, objectivity and proportionality in the application of the procedure.”

Paragraph 1 of the SCP is headed “Context”. A number of relevant paragraphs are contained in this section:

“1.1

Whenever any member of staff comes into possession of any information or material that raises concerns about the integrity of any member of the Force, they are under a duty to report it. Mechanisms for reporting are covered in the Doing the Right Thing - Confidential Reporting Policy.

1.2

The Anti Corruption Unit will be responsible for evaluating the information/material and ensuring that it is correctly investigated. Where appropriate it will be notified to the Assistant Chief Constable, Personnel & Development who may appoint a Senior Investigating Officer. The Assistant Chief Constable will review the investigation of the matter at regular intervals. Conventional criminal or disciplinary outcomes will be sought whenever appropriate. However, if at any stage of the investigation it becomes apparent that criminal or misconduct proceedings are not possible or appropriate then the Assistant Chief Constable will consider the invocation of this Service Confidence Procedure.

1.3

It must be emphasised that criminal or misconduct procedures will always remain the preferred course of action, and only when they prove to be unsuitable will this Service Confidence procedure be invoked.

1.4

Concerns about achieving a balance between the needs of Merseyside Police and the rights of the individual should be addressed by:

(a)

Adopting an open and transparent system within legal constraints;

(b)

Allowing individuals to be represented and the adoption of a reviews process;

(c)

Maintaining a clear position that the use of the procedure is about the protection of staff and Merseyside Police by management action and not misconduct procedures or sanction.

1.5

There will be occasions when verifiable confidential or source-sensitive material comes to the notice of investigators, which brings into question the suitability of a member of staff to continue to perform their current role or duties. When the circumstances do not warrant criminal or misconduct proceedings yet are such as to raise serious concerns that require immediate management action both for the protection of individuals and the Force, individuals will be considered for transfer to a less vulnerable post.

1.6

The test of whether there are “Serious Concerns” about an individual’s integrity will be based on an assessment of all the intelligence and evidence, including source sensitive material. The evidence must establish that it is more probable than not that the individual’s integrity is in question. Due regard will be paid to the principles of fairness as outlined above. This test is to be applied at all stages of the procedure.

…………

1.8

Merseyside Police acknowledges that this procedure may impinge upon aspects of the Human Rights Act1998, in particular:

•

Article 6 - Right to a fair trial.

•

Article 8 - Respect for private and family life…..

1.9

Further legal basis for this procedure is provided by:

•

Police (Conduct) Regulations 2004

•

Police Regulations 2003

•

Regulation of Investigatory Powers Act 2000 (RIPA)

•

Police Conduct Regulations 2008

The Service Confidence Procedure is not a trial.”

Paragraph 2 is a Definitions section. It gives a guide as to “Serious Concerns” and then provides:

“Confidential Or Source Sensitive Information

2.2.1

This will be considered as information or intelligence obtained legitimately but which legislation prohibits use of other than for intelligence purposes, or where disclosure would compromise and put at risk investigations, investigative tactics or individuals.”

Paragraph 3 sets out four “stages”. Stage 1 is Referral, Stage 2 is Case Conference, Stage 3 is Informing the Subject and Stage 4 is the Decision Making Process. Under Stage 3 is the following:

“3.3.1

If the case conference has made a referral to the Deputy Chief Constable, whichwill include its recommendations, the Area or Departmental Commander willmeet with the individual concerned to inform him or her of that referral. In accordance with normal practice, the individual will have the right to beaccompanied at that meeting by a friend or a member of a Trade Union or StaffAssociation. Minutes will be maintained of the meeting and retained with theconfidential file at the Anti Corruption Unit, Intelligence Cell. The meeting willaddress:

…….

c)

The recommended action plan, redeployment or other intervention for the individual, to be implemented with immediate effect

d)

The individual’s right to make a written submission to the Deputy Chief Constable within 14 days of the meeting with the Area / Departmental Commander.

3.3.2

Wherever possible the subject will be informed of the reasons for the recommended action plan, redeployment or other intervention. However, nothing will be disclosed which might:

a)

Impede the apprehension or prosecution of offenders;

b)

Frustrate any investigation, or the prevention and detection of crime;

c)

Damage national security;

d)

Breach any legislation;

e)

Compromise or endanger any operation or individual.

3.3.3

When disclosure is not appropriate, the individual will be told that the action recommended is being effected on the basis of source sensitive information for the operational needs of Merseyside Police and that further disclosure is not appropriate at the present time for those reasons above.”

Stage 4, the Decision Making Process provides:

“3.4.1

On receipt of a referral from a case conference, the Deputy Chief Constable shall consider:

a)

Whether there is sufficient evidence to support the recommendation.

b)

Any submission provided by the individual…..

c)

Whether the action plan, redeployment or other intervention recommended is necessary, proportionate and non-discriminatory.

3.4.2

The Deputy Chief Constable will then decide whether to implement the recommendations and will maintain a record of his or her decision, which will form part of the confidential file held at Anti Corruption Unit, Intelligence Cell.

3.4.3

In all cases the individual will subsequently be notified by the Area/Departmental Commander of the Deputy Chief Constable’s decision.”

Relevant paragraphs of the Appeal process are:

“4.

Appeal Process

4.1

An individual can appeal against a decision made under the procedure. The application shall be in writing and made to the Chief Constable within 14 days of the individual being informed of the decision of the Deputy Chief Constable. The application must give the reasons and grounds for the appeal request.

4.2

The Chief Constable will appoint a Review Officer of the rank of Superintendent or above or equivalent Police staff to review the decision taking into account the material in the application. The Review Officer will have appropriate security clearance.

4.3

The review process will:

a)

Test the integrity of the process

b)

Test the strength and quality of the information and or intelligence on which the decision was based

c)

Ensure that the decision is proportionate, necessary and nondiscriminatory

d)

Consider other options, if appropriate…..

4.5.All reasonable steps should be taken to resolve appeals and the individual will be notified of the result within 21 days. The Chief Constable should consider whether the decision to subject an individual to a SCP was necessary, proportionate and non-discriminatory. The decision of the Chief Constable will be final…….”

Paragraph 6 of the SCP deals with “monitoring”. It contains these provisions:

“6.5

Individuals subject to the procedure will be the subject of ongoing monitoring by a supervisor (Monitoring Officer) nominated by the Area or Departmental Commander. Progress against the action plan should be reviewed at least every six months. Any further development needs should be identified and addressed.

6.6

If the Monitoring Officer believes the action plan has been successfully completed, then the Area or Departmental Commander should notify the Head of the Anti Corruption Unit in writing. On receipt of the notification, the Head of the Anti Corruption Unit will present the case papers, together with any further relevant information and intelligence, to the ACC Personnel & Development who will reconvene the case conference to consider:

a)

Whether the risk of recurrence has reduced sufficiently.

b)

The basis of the original decision and its ongoing validity.

c)

The potential risk to colleagues, the public, or Police operations should the Service Confidence procedure be terminated.

d)

Alternative options as appropriate.

e)

Issues surrounding any requirement to disclose the process to the Crown Prosecution Service.

6.7

The case conference will again notify the Deputy Chief Constable of their recommendations and the individual will be personally informed of the decision of the Deputy Chief Constable.”

2 Paragraph 7 of the SCP provides:

“7.

Responsibilities

7.1

The Responsibilities of the various parties involved in the delivery and operation of paragraphs 1 to 6.7 of this policy this policy are outlined below:

……

h)

Chief Constable will provide the final level of appeal against the decision….”

C1 is a police constable. He was made the subject of an SCP in April 2011. D told C1 that serious concerns over his integrity arose as a result of an anti corruption investigation into the Matrix Disruption team (Footnote: ⁴) between 2010 and 2012. C1 was provided with an Action Plan in order to enable him to regain the confidence of D. The aim was for final restoration of confidence by 1^st April 2012, with regular three monthly reviews in that 12-month period. D has not lifted the SCP despite the fact that C1 has met the requirements of the Action Plan. In a document entitled “Third (Final) Interim Review” dated 13 June 2012 it is stated:

“Action plan completed…

Constable Woods has achieved what was required of him under this action plan. He has worked extremely positively and delivered excellent results and has been graded as Exceptional in his PDR.”

Nevertheless C1 was told by Chief Inspector Wellens that he was not going to have the SCP lifted, and no explanation was given.

C2 is an Inspector. He was made the subject of an SCP in August 2011 with the Action Plan stating the aim of aim of final restoration of confidence by 1^st August 2012. He was not given any explanation. During the period of the SCP C2 says (among other things) (Footnote: ⁵):

On 9 October 2013 a memorandum was sent to C1 as follows:

“Constable Woods

I refer to your recent appeal pursuant to paragraph 4.2 Service Confidence Policy and Procedure. The Chief Constable appointed Detective Superintendent Cummings to carry out a review of the decision in accordance with paragraph 4.3 of the Policy.

After due consideration by Detective Superintendent Cummings the Chief Constable has take the decision to dismiss the appeal. Unfortunately, no further correspondence into this stage of the process will be entered into.

Reviews of this matter take place every six months and your case will be reviewed six months from the original date of the last review. You will be informed of the decision after the next review.”

On 24 October 2013 the following memorandum was sent to C2:

“Inspector Gorton

Further to your recent appeal pursuant to paragraph 4.2 Service Confidence Policy and Procedure. The Chief Constable appointed a senior detective to carry out a review in accordance with paragraph 4.3 of the Policy.

After due consideration of the report submitted to him, the Chief Constable has take the decision to dismiss the appeal. In the light of this you will remain subject to the Service Confidence Policy. In accordance with the Policy, a further review will be conducted after six months and you will be notified of the decision.”

It is to be noted that no reasons were given in either memorandum.

I have an approved transcript of the decision of Blair J made on 22 May 2014. In paragraphs 29 – 32 the learned judge:

Cs now submit that D should not be able to rely on the fact that the material exists and he cannot deploy it for reasons of PII. I do not accept this for the reason which Blair J himself gave. As D submits, the hearing before Blair J was, in accordance with an agreed note of the judgment of Mr Fordham QC, an opportunity to balance a desire for (potential) scrutiny of the Defendant as a public body on the one hand with, on the other, a recognition that there may be cogent operational/intelligence reasons for the decision. C relied upon a statement of Lord Clarke in Al Rawi v The Security Service and others (Footnote: ⁶). At paragraph 159 of the judgment of the Supreme Court Lord Clarke said:

“159.

It appears to me that the way forward is or should be along these lines. After the PII process described above it should be for the parties to consider their respective positions and then to make representations to the judge as to the appropriate way forward. Depending upon the submissions advanced, the judge may wish to consider the three possibilities to which I have referred. They are (1) that the matter should proceed in the traditional way with the PII material simply being treated as both undisclosable and inadmissible and the trial proceeding on the basis of the disclosed and admissible evidence; (2) that the action should be stayed or struck out on the basis that through neither party's fault a fair trial is not possible; and (3) that there should be some form of closed procedure, involving special advocates, along the lines suggested by the appellants, but subject to the exigencies of the particular case.”

Cs submitted that the only realistic possibility in the present case is number (1). Lord Clarke was dealing with the situation in the context of the type of process involved in the Al Rawi case. This was a claim for damages. The importance of this is alluded to by the then Master of the Rolls, Lord Neuberger in the Court of Appeal judgment at paragraphs 32 and 33. Indeed, he envisaged circumstances in which the court would go further than just take account of the PII decision that material exists which a party cannot deploy for reasons of PII. He said it may be justifiable in certain circumstances for the court to see a document which is not seen by the parties to the proceedings. It is not suggested by D that the present case is one in that category. Nevertheless it is one where, to quote the Master of the Rolls, “a wider public interest is engaged.” Therefore it would be wrong for me to discount the fact that D cannot disclose his reasons because of PII considerations.

Mr Tucker was a detective inspector seconded for five years to the National Crime Squad (NCS). Thereafter several officers seconded to the NCS were arrested on suspicion of drug related offences and two other officers seconded to the squad had their secondments terminated and were returned to their own force for disciplinary investigations. Mr Tucker’s secondment was also summarily terminated and he was returned to his own force but without any disciplinary implications. He was just told that Deputy Director General of the NCS had, as a result of information provided to him, lost confidence in his management performance, but the lack of confidence was not related to the criminal investigation. The Court of Appeal decided that the decision of the Deputy Director General was not amenable to judicial review since it did not have sufficient public law element. The Court of Appeal pointed out that the boundary between public and private law is not capable of precise definition and the decision as to whether there is sufficient public law elements to justify availability of judicial review is often “as much a matter of feel, as deciding whether anyparticular criteria are met.” (Footnote: ⁷) Relying on the decision of Pitchford J (as he then was) in R(Hopley) v Liverpool Health Authority (Footnote: ⁸) the court set out three things 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:

Scott Baker LJ said: (Footnote: ¹⁰)

“Applying those criteria…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 officerswere 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 a National Crime Squad 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 National Crime Squad….

26.

Mr McGuinness, for the Director General, 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 National Crime Squad 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 Director General, the nature of his decision and the rights of the Appellant that are affected….”

In dealing with these three matters the Court of Appeal noted in relation to i) that a police officer is in a different position from other employees. On the facts of that case the officer’s secondment to the NCS was temporary and disciplinary procedures were a matter for his own force (Footnote: ¹¹). As regards to ii) Mr Tucker had applied voluntarily for his secondment. “Crucially, it was an express condition that, exceptionally, the Director General could terminate his secondment without notice”; in any event the secondment was terminable on one month’s notice either way. “Thus putting it at its highest the applicant’s complaint can only relate to the summary nature of the termination.” The Director General was exercising a power to which the applicant had signed up and the decision involved no change in the applicant’s status as a police officer, no financial loss to him and no disciplinary allegation against him. As to iii) the Court of Appeal said that there was no disciplinary element to the decision in Mr Tucker’s case. It was “an entirely operational decision…involving deployment of staff or running the force. They are decisions that relate to the individual officer personally and have no public element.” (Footnote: ¹²) Finally at paragraph 35 Scott Baker LJ said:

“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.”

I remind myself that in Tucker the court said that this question is decided often as much as a matter of feel rather than whether any particular criteria are met (Footnote: ¹³). D is a public body and Cs have no private law remedy. I have to focus on the third question elicited from the Hopley decision, namely whether D was performing a public duty owed to Cs in the particular circumstances under consideration. I have come to the conclusion that D was. After a preliminary point in the next paragraph, I shall consider each of the three factors referred to in paragraph 26 of Tucker.

Cs rely on an obiter dictum of the Judicial Committee of the Privy Council in Manning v Ramjohn (Footnote: ¹⁴) in which Lord Brown said:

“On the issue of reviewability, the Board has some doubt as to the correctness of the Court of Appeal's conclusion in Tucker that the DDG's decision was altogether beyond the Court's supervisory jurisdiction….”

From this Cs submit that this court should not be slow to distinguish it where the case before it plainly has more compelling public law features. As a matter of precedent, I am bound by the reasoning in Tucker. Either it is properly distinguishable or it is not.

The nature of the relationship between Cs and D is such that Cs are police officers and are therefore in a different position from other employees. Further, in the context of the present case, it is relevant that, as police officers, they know that they have to operate to some extent in a world of intelligence, informers and protected and sensitive information. Police officers’ discipline is governed by statutory disciplinary procedures amenable to judicial review. This is a factor upon which D can rely.

As to conditions of service, there are factual distinctions between Tucker and the present case. Cs did not voluntarily apply for any temporary secondment which could be terminated without notice/on one month’s notice. This is a factor which weighs in Cs’ favour.

As to the nature of the decisions made:

Cs submits that the SCP is quasi disciplinary because it is to be used where criminal or misconduct proceedings are not possible or appropriate (Footnote: ¹⁵). I disagree with this submission. I do not accept that there is any quasi disciplinary element to the SCP. It is made absolutely clear (Footnote: ¹⁶) that “the use of the procedure is about the protection of staff and Merseyside Police by management action and not misconduct procedures or sanction.”

Cs also submit that the decision was made on the basis of a policy and was not a private decision relating just to them personally. There are competing factors here. Ultimately, I accept Cs’ submissions.

There are two material factors in relation to the SCP. The first is that, as demonstrated in the present cases, it has the capacity to be far from temporary. This is unlike the one-off decision in Tucker. The second is that D accepted in submissions that, although there is no formal bar as a result of being subject to the SCP, it is likely to be a significant disadvantage to anybody applying for promotion. I regard both of these as factors of significance in favour of there being sufficient public law element. I shall deal now with D’s submissions to the contrary:

The SCP appears to have been created under powers conferred on the Chief Constable by statute, namely section 2(3) of the Police Reform and Social Responsibility Act 2011. (Footnote: ²⁶) Cs rely upon this and/or the asserted fourfold statutory underpinning (Footnote: ²⁷) whereas they say Tucker was based on a non statutory term of secondment. Section 2(3) provides “A police force, and the civilian staff of a police force, are under the direction and control of the Chief Constable of the force.” The fact that there is a statutory basis for the power to create the SCP does not assist any determination, since there must be some background enabling power for whatever is done by Chief Constables or other senior police officers.

Finally Cs rely on a number of parts of the SCP. In particular they submit that the aimed-for fairness of the procedure (Footnote: ²⁸), the balance of probabilities test which indicates judgment not discretion (Footnote: ²⁹) and the potential impingement of the procedure upon aspects of the Human Rights Act 1998 (Footnote: ³⁰) together with envisaging the giving of reasons for the imposition of the SCP and the rejection of a review/appeal (Footnote: ³¹) – all demonstrate that the SCP does have a sufficient element of public law to be subject to judicial review. In further support of this submission Cs rely on the SCP statement:

“Application and Scope

This policy applies to all members of the wider police family within Merseyside Police Force….”

D’s first submission was that aiming for a fair procedure does not change the essential characteristic of what is, when all is said and done, an operational decision. It was said that, if trying to set out a system to reduce the risk of unfairness and improve operational effectiveness and decision making were to render what would be a purely operational matter into something which is amenable to public law challenge, then that would be a perverse incentive for police forces to withdraw the policies and to leave SCP’s entirely at the discretion of senior officers. This is not an answer to the point, since it is not the Policy itself which is relevant but the fact that the Chief Constable is dealing with difficult issues in an area which calls for a policy which is as fair as possible. It would in my judgment be impermissible for the Chief Constable to leave SCPs entirely at the discretion of senior officers.

In argument, D accepted that the point that there should be a policy is a factor in favour of Cs’ case. Nevertheless, D contended that it was not sufficient to endow the SCP decisions with sufficient public law element.

Taking all the above factors into account I consider the decisions in the present case to make and keep officers the subject of an SCP are ones which do have sufficient public law element. They are not in my judgment deployment/operational decisions and no more than that.

On the premise that judicial review is available, the question that arises is the court’s approach and the level of scrutiny/interference permissible.

In my judgment the present case, where there are reasons which have been the subject of a PII ruling, is in the category referred to by Scott Baker LJ in Tucker (Footnote: ³²) where he said:

“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.”

Further, in Tucker the Court of Appeal considered the issue of fairness beginning at paragraph 39. At paragraph 42 the court cited Geoffrey Lane LJ (Footnote: ³³) when he said that what is fair cannot be decided in a vacuum. In Tucker, as here, there were “constraints on the information that can reasonably be given for decisions”. There, as here, sensitive intelligence information was at the heart of the reasons. Against that backdrop the court said (Footnote: ³⁴):

“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….”

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 Cs’ challenge.

Cs accepted that the permissible intensity of judicial scrutiny varies according to the circumstances. They also accepted that the degree of scrutiny in the present case would not be as intense as in some circumstances. They submitted that, to the extent that there is information in the public domain then the court can look at a broader test for judicial review than “that the decision maker acts honestly and without bias or caprice.” However this last point was substantially based upon Cs’ submissions as to how I should approach the decision of Blair J in respect of the PII material. This I have rejected. In effect D 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.

Cs allege that even on the information they have it is patent that the decisions are unreasonable/irrational/unfair and must be capricious.

Cs’ case is that the SCP remains despite the fact that they have conducted sensitive front line functions since its imposition. (Footnote: ³⁵) It is said that it cannot be right in such circumstances that D is unable formally to confirm that confidence in them has been restored. I do not accept that this means there must be an inconsistency of approach by D. It is quite possible that there are reasons why the SCP remains, but the continuing loss of confidence does not inhibit their operational deployment in certain roles which require substantial trust. In C2’s case there is evidence, which I have summarised above, that he has been inhibited from carrying out certain roles. There is no patent and unanswerable illogicality/irrationality/unfairness in D’s decisions. It is certainly not possible to say that this makes the decisions capricious. It may well be the case, as D submits, that the roles they have been given indicate that great care has been taken to make use of their abilities to the greatest extent possible consistent with D’s concerns.

C1 further relies on the fact that he has met his obligations under the Action Plan and yet is still subject to the SCP. He submits that D either acted irrationally in making him subject to the Action Plan or in Mr McKeon’s explanation as to why, despite having done what was required of him under the Action Plan, the SCP remains. Criticism is made of paragraph 11 of Mr McKeon’s statement where he says “Essentially whilst the officers have been the subject of action plans, ‘integrity’ is not something that can be action planned.” It is submitted that the only realistic alternative to irrationality is that this indicates cynicism since, if integrity cannot be action planned, why make an officer subject to an action plan? (Footnote: ³⁶)

I remind myself that para 3.4.1 of the SCP requires the Deputy Chief Constable to consider “whether the action plan…recommended is necessary, proportionate and non discriminatory.” As to C1’s Action Plan it has “SMART” criteria (Footnote: ³⁷) The aim was to regain the confidence of D with a review every three months aimed at final restoration of confidence by 1 April 2012. I consider that the submission overstates the case. The position is not so logically stark that there must be the irrationality/caprice alleged or cynicism. In circumstances where D is hamstrung from being unable 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. Action Plans are referred to in the SCP (Footnote: ³⁸) as an example of “protection measures…put into place…to address issues.” It may be that the “upbeat” language in the Action Plan may have given rise to C1 assuming that if he complied with it then he would regain D’s confidence. One can understand why Mr McKeon says that integrity is not something that can be action planned; one can also understand C1 thinking that if he has been action planned and he has successfully completed it then that should restore confidence. Yet this does not naturally follow. (Footnote: ³⁹) It may well be difficult to construct an Action Plan which would, without more, lead to restoration of confidence. On the other hand, not having an Action Plan may send out a signal to an individual officer that there is nothing that officer could do so as to restore confidence or to take realistic steps along that route. In the final analysis, this is a difficult area for both an officer and D given that D cannot disclose reasons or sources of information. What it does not mean is that D’s decision was flawed by reason of the challenges which are made. (Footnote: ⁴⁰)

In summary:

DAVID WOODS (1)

MARK GORTON (2)