The Hon. Mr. Justice Coulson:
1. INTRODUCTION
- The claimant ("A") is a sole trader who provides, amongst other things, vehicle hire, breakdown and recovery services. For over 30 years he has provided recovery and breakdown services to B and C Constabularies, either directly or, more recently, as a sub-contractor. His applications for the relevant security clearance have now been refused and he seeks judicial review of those decisions. The application raises an interesting issue as to the appropriate test to be applied by the police when vetting for security those who provide services to them.
- This matter has a relatively lengthy history. I propose to summarise the course of the original judicial review proceedings before going on to set out, as briefly as possible, the subsequent events. Having identified the issues, I then set out the relevant parts of the National Vetting Policy for the Police Community ("NVP") before identifying the correct test to be applied in situations such as this. I then consider the relevant decisions themselves. I am very grateful to Mr Nardell and Ms Barton for their clear and concise written and oral submissions.
2. THE ORIGINAL PROCEEDINGS
- In 2009, having provided breakdown and recovery services for C Constabulary ("the defendant"), for many years, the claimant was obliged to seek security clearance to continue to act as a sub-contractor to the main contractor Recovery Management Service Limited ("RMSL"). That clearance was duly granted, despite the fact that, as has now come to light, there was some intelligence which suggested that the claimant may have been involved in serious criminal activity. The relevant officer indicated that, at the time, the defendant was prepared to run the risk on continuing to work with A because it was considered to be a low one.
- In 2010, the claimant made a similar application for clearance so that he could continue to act as a sub-contractor in the B Constabulary area. That application was refused, without giving the claimant any opportunity to deal with the matters that gave rise to the decision, and without any reasons being provided. Accordingly, the claimant applied for judicial review of that decision. In those proceedings it became apparent that clearance was refused because of the claimant's alleged association with serious criminal activity. This was based on intelligence rather than anything more specific.
- In his judgment, date 26 July 2012, Kenneth Parker J had little difficulty in concluding that it was unfair for the Chief Constable of B Constabulary not to provide any information at all about the basis of the decision. His detailed reasons are set out in the judgment at [2012] EWHC 2141 (Admin). The judgment is also important now because, at paragraphs 45 and 46, Kenneth Parker J set out what he considered to be the appropriate test when the police vet suppliers and subcontractors for security. The parties are agreed that these remarks were obiter but, in the absence of any other authority on the point, they are plainly important. I set them out and deal with them in Section 6 of this judgment.
3. SUBSEQUENT EVENTS
- Following the judgment of Kenneth Parker J, a fresh decision had to be made. By that time, the two forces had a joint Professional Standards Department, headed by an area C officer, and their internal liability policies mean that the defendant is the correct recipient of this claim. On 4 September 2012, Mrs S Jarvis re-took the original decision and again refused clearance. That decision was upheld on review by Superintendant L Pepper in a letter dated 30 November 2012.
- During the period of the original judicial review proceedings, and subsequently, the claimant had continued to carry out work for the defendant in the C area as a result of the clearance granted in 2009. Perhaps unsurprisingly, by a letter dated 16 January 2013, Mrs Jarvis purported to revoke that clearance on behalf of the defendant.
- The basis of each of the three decision letters referred to above is the same each time. The decision-maker sets out the test noted by Kenneth Parker J at paragraph 45 of his judgment. The decision-maker then identified the various pieces of intelligence which were said to link the claimant to serious criminal activity. That material was provided in "gisted" form to the claimant, and the claimant was given the opportunity to respond to the initial decision. It is that gisted intelligence which was the reason why security clearance was denied to the claimant.
- The intelligence came from multiple sources, and was provided by three separate police forces. There were 20 separate pieces of intelligence. The bulk of it covered the preceding seven years or so, although some intelligence was older than that.
- It is unnecessary to set out all of the gisted intelligence but, in order to give a flavour of the sort of material being considered by the decision-makers, it is perhaps instructive to note the following matters in particular, taken from the letter of Superintendent Pepper dated 30 November 2012. These matters were then repeated by Mrs Jarvis in her decision of 16 January 2013.
(1) 'It is alleged that [the claimant] transfers large sums of money through various bank accounts which are subject to financial investigation. This intelligence was received within the last four years'.
(2) 'It is alleged that persons in [B area] are supplied by [the claimant] who has a haulier business in [the B area]. The drugs are transported in his lorries. This intelligence was received within the last five years'.
(3) 'It is alleged that an individual by the name of XXXX who used to work at [the claimant's] business is involved in the theft of pallets of alcohol and tobacco from loads shipped by [the claimant]. It is believed that [the claimant] is complicit in these thefts and the victims are in fact the customers of [the claimant]. This intelligence was received within the last three years'.
…
(5) 'In 2009 [the claimant] purchased an old bank building in [the B area]. It is alleged that this was with a view to converting it into a wine bar. In 2009 there was an arson at the only other pub in the area. It is alleged that the offender was paid by [the claimant] to set fire to the pub. This intelligence was received within the last three years'.
…
(7) 'It is alleged that [the claimant] and another have access to large storage facilities and are rumoured to handle stolen goods. This intelligence was received within the last three years'.
(8) 'It is alleged that [the claimant] and another are suspected of involvement in the importation of heroin and illegal immigrants. This intelligence was received within the last five years'.
(9) 'It is believed that [the claimant] and another have stolen HGV tractive units locked up in an unknown location. This intelligence was received within the last five years'.
(10) 'It is alleged that [the claimant] has opened another prestige vehicle site. It is the Z motor company…It has many vehicles that are £30k plus…they have a website which if you search ['the claimant'], ['Y'] comes up. These premises and vehicles are for laundering money. This intelligence was received within the last 5 years.'
…
(12) 'It is alleged that [the claimant] associated with a company known as X and is using it to launder money. This intelligence was received within the last six years'.
…
(16) It is alleged that the claimant is associated with D, a group involved in prestige cars. It is rumoured that £2 million cash is passing through it every month. It is linked to prestige car dealers in the area. This intelligence was received within the last six years.
- In respect of each of the allegations noted above, the claimant had an opportunity to comment on the initial decision and either did not comment specifically or provided an explanation which was noted by (but did not satisfy) the decision-maker. Other numbered pieces of intelligence were considered by the decision-maker but rejected and not taken into account in reaching the relevant decision. Others, such as information (4) (concerned with drugs allegedly found in one of the claimant's vehicles in 'Monocco' (sic)), and information (14) (in connection with card schools with large stakes) seem to me to be peripheral at best, and without any proper connection to the vetting process. I note in relation to allegation (4) that it took place about 15 years ago, and the claimant dealt with the allegation by making it plain that he had no knowledge of, let alone involvement in, the incident in question.
- The claimant subsequently issued these proceedings complaining that the decisions were unlawful because:
(a) He was given no or no proper opportunity to make meaningful representations before the decisions were taken;
(b) They were taken on the basis of an incorrect test;
(c) They were irrational in treating the intelligence as a sufficient basis for refusing/revoking clearance.
In addition, in relation to the decision to revoke the clearance of 2009, the claimant also argued that the existing provision of services to the defendant was "a possession" within Article 1 of the First Protocol to the ECHR and the decision to revoke clearance has deprived him of, or unjustifiably interfered with, that possession.
- On 23 May 2013, Collins J granted permission to apply for judicial review. He expressed doubt as to whether the test identified by Kenneth Parker J was correct. Thereafter, in these proceedings, attention was focused on the detailed material available to the defendant, which was summarised for the purposes of the decision letters. The claimant applied for specific disclosure of the relevant material and the defendant cross-applied to withhold inspection of the documents, or parts of the documents, on PII grounds.
- On 5 December 2013, less than a fortnight before the hearing in front of me, Jay J heard the PII application in open court in the presence of the claimant and his junior counsel. The following day, Jay J gave judgment upholding the assertion of PII and therefore dismissing the disclosure application. Counsel provided me with an agreed note of the judge's judgment. It seems to me that the following matters noted in that judgment are important:
(a) The gist in the decision letters is an accurate summary of the wider intelligence;
(b) The police have carefully analysed each document and sensibly assigned categories to each;
(c) The closed material supports the material disclosed in the letters;
(d) The police analysis is coherent and sensible.
4. THE ISSUES
- On behalf of the claimant, Mr Nardell QC accepts that the PII decision creates an obvious difficulty in relation to the fairness ground for judicial review. Accordingly he made plain at the outset that, in consequence of that decision, and taking matters in the round, the claimant was now limiting his claim to two points only, namely the defendant's failure to apply the right test and the allegation that the revocation of clearance amounted to an interference in the possession of the claimant. Mr Nardell expressly accepted that the proportionality test under Article 1 of the First Protocol required the same balanced approach as he contended for under the NVP.
- Accordingly, I now turn to the NVP, and then go on to consider the correct test to be applied in cases like this.
5. THE NVP
- There are detailed protocols dealing with national vetting policy by the police. These have been drawn up since at least 2003, and the current version (August 2010), delivered under the auspices of the Association of Chief Police Officers (and the equivalent in Scotland), is entitled "ACPO & ACPOS National Vetting Policy for the Police Community" ("the NVP"). The general "Policy Statement" of the NVP states, at paragraph 1.4:
"1.4 Following the HMIC report 'Raising the Standard' it is the view of both the ACPO and ACPOS Professional Standards Committees that each force should have a central Force Vetting Unit. In addition, they should appoint a Force Vetting Officer to co-ordinate and control all vetting processes within their force and to adhere to the ACPO/ACPOS NVP."
Under "Procedure", it is stated:
"2.1 There are two types of vetting procedures in operation within the police community:
(i) Force Vetting – Includes Recruitment Vetting (RV), Management Vetting (MV) and Non-Police Personnel Vetting (NPPV) …"
Section 6 of the general provisions deals with "Force Vetting Levels", and paragraph 6.3 states as follows:
"6.3 Non Police Personnel Vetting (NPPV)
6.3.1 The purpose of 'Non Police Personnel Vetting' (NPPV) is to provide a means of ensuring that persons other than police officers, police staff and members of the Special Constabulary, having physical or remote access to police premises, information, intelligence, financial or operational assets have been assessed as to their reliability and integrity. The procedure serves to reduce the risks of unauthorised disclosure or loss of sensitive police assets.
6.3.2 There are three levels of NPPV, Level 1, 2 and 3 and further details of the checks required for each are given in SOP 5."
- Standard Operating Procedure 3 ("SOP 3") deals with recruitment vetting. Paragraph 7 is concerned with 'Other Force Intelligence / Information ("LIO") Check and provides as follows:
"7.1 'other force' intelligence checks should be conducted on the applicant and the others as above, who live outside the home force area. Checks should be made in the policing area where the applicant currently resides and all policing areas where the applicant has resided any time in the last five years, as detailed in SOP 13…
7.4 Any positive 'traces' must be followed up with a formal request to the relevant Force Vetting Unit (regardless of whether that force area was identified on the applicant's documentation) giving relevant details of the trace obtained by INI along with the core details of name, date and place of birth, to facilitate the further search…"
Section 14 SOP 3 is entitled 'Interviewing an Applicant' and provides that "applicants should be interviewed where necessary in order to clarify queries, ambiguities, or concerns raised during the vetting process."
- Standard Operating Procedure Number 5 ("SOP 5") governs non police personnel vetting. It is useful to set out section 3 Purpose of SOP 5 in full:
"3. Purpose
3.1 The purpose of 'Non Police Personnel Vetting' ("NPPV") is to provide a means of ensuring that any persons other than police officers, police staff and members of the Special Constabulary having physical or remote access to police premises, information, intelligence, financial or operational assets have been assessed as to their reliability and integrity and thus suitability for clearance. The procedure serves to reduce the risks of unauthorised disclosure or loss of sensitive police assets.
3.2 NPPV relates to the vetting of individuals other than police officers, police staff and members of the Special Constabulary who require access to police premises without constant supervision, and/or police information, corporate databases, data networks or hard copy material, either through direct or remote access. These include, but are not limited to, statutory crime and disorder partners, HM Revenue and Customs, UK Borders Agency, third party agents, Police Authority staff and members depending on role, and a variety of contractors and volunteers, consultants, auditors and researchers.
3.3 If a non-police person declines or refuses to be vetted, their access to police assets will be restricted, along with those described in 3.4 below.
3.4 Non-police personnel, who are admitted to police premises but who are accompanied or remain under constant supervision and are not permitted access to police information systems or protectively marked material, need not be vetted. In these circumstances, existing procedures for the reception of visitors should apply.
3.5 In relation to the multifarious group of people to which NPPV applies, careful consideration should be given to the level of NPPV to be applied to each role, taking into consideration the information, intelligence and other assets, to which the individual will have access. This is to ensure that non-police personnel are not subject to a disproportionate level of vetting."
Section 5 specifies the level of vetting for NPPV. It is common ground that Level 1 applied in this case, which is described as follows:
"5. Level 1. Limited Access – No Protectively Marked Assets
5.1 Level 1 applies to those persons having unsupervised access to police premises on an ad hoc and irregular basis but no access to any electronic systems and/or hard copy material. In the main this applies to utility workers such as plumbers, electricians etc and may, on occasions, apply to individuals on work experience etc if they have NO access to protectively marked information or electronic systems.
5.2 This level does not afford any access to protectively marked police material or assets.
5.3 Minimum Standard Requirement: PNC/CHS/CIS and INI/local intelligence and other non-conviction databases, including Special Branch on applicant only.
5.4 Length of clearance: 12 months."
Section 10 of SOP 5 refers to Appeals/Reviews, and states:
"10.1Applicants for NPPV have no right of appeal against a decision not to grant the relevant level of clearance. However, it is suggested as best practice that a review procedure is made available, as detailed in SOP [Standard Operating Procedure] 9."
- Standing Operating Procedure 8 ("SOP 8") governs Conviction and Cautions Criteria. Having set out the relevant criteria for convictions and cautions, paragraph 5.5 states:
"There may be circumstances where an individual does not fall within the criteria, but whose suspected involvement in crime, or criminal associations, make an offer of appointment inappropriate."
- Where "best practice" is followed, the "Process" is set out at section 4 of SOP 9 as follows:
"Scope of the Appeal and Review Processes
4.1 Where applicants are notified of an adverse vetting decision, they should be informed of the existence of the appeal/review procedures.
4.2 The following processes are to be used for appeals against, or reviews of, adverse vetting decisions; that is the refusal, withdrawal or suspension of clearance, and applies to the following forms of vetting:
- Enhanced Management Vetting (EMV)
- Non Police Personnel Vetting (review only)
- National Security Vetting (NSC) at all levels
- Transferees and Rejoiners (review only)
4.3 Requests for an appeal or a review must be made in writing and must be from the applicant themselves, or endorsed by the applicant.
4.4 When a written request for an appeal or review has been received, where possible, individuals will be provided with the reason for their refusal in writing, unless doing so would be likely to:
- Damage national security;
- Result in the force breaking any law;
- Frustrate the prevention or detection of crime;
- Impede the apprehension or prosecution of offenders;
- Result in the disclosure of sensitive information;
- Breach the confidentiality of any information provided in confidence.
4.5 It should be noted that the Chief Officer reserves the right to refuse appointment without giving reason under Section 6 Police Act 1996 and the Police (Scotland) Act 1967."
6. THE CORRECT TEST
- The Approach of Kenneth Parker J
- In his obiter remarks on this point, Kenneth Parker J said:
"45. On the other hand this is a very sensitive area. Non police personnel have no right as such to work together with the Police. It is a special privilege to do so, and it is reserved only for those that the police confidently believe are fit and proper to do so, and for those in whom the police have absolute and unqualified trust. Such is the importance of that objective that, in my view, the Police Authority does not have to show that it has reasonable grounds for believing that a person has committed, is engaged in committing, or would commit, some relevant criminal offence, or has been, or would be, knowingly involved in the commission of such an offence. If the Police Authority has any basis at all for suspecting that a person might have been, or might be presently or might in the future be, implicated, even innocently, in activities that could be considered criminal, or might be associated, again even innocently, with criminal elements, it would be justified in refusing security clearance. In other words, in this context the Police Authority would be entitled to adopt an ultra precautionary standard, and those wishing to work with the police must expect it to do so.
46. In turn the Police Authority must be able to draw widely on police intelligence to gather as much information as possible about the person who is subject to security vetting. Such information may well vary in specificity and reliability, but the Police Authority will draw on its long experience and expertise in the task of evaluating the information and in forming a picture of the person under scrutiny."
- The Observations of Collins J
- The observations of Collins J (paragraph 13) were as follows:
"There are now a substantial number of allegations made against the claimant said to justify the refusal to accept or the removal of the security clearance at Level 1. It is indeed surprising that he was given clearance by area C for so long and apparently with no suggestion of any misconduct seeing at is it surely unlikely that the relevant information would not have been available to area C as well as to area B. I am not persuaded that Kenneth Parker J was correct to say that innocent association would necessarily justify refusal and it is surprising that the claimant has never been interviewed or apparently the subject of any enquiry with a view to seeing whether he could be charged with any offence and I am unimpressed with the reliance on the Monocco (sic) (it clearly means Morocco) incident some 16 years ago.
I accept that there is no right to an oral hearing and I do not think the refusal to allow was arguably unlawful. But overall I think it is arguable that, unless some actual involvement can be shown that the allegations are at all substantial as opposed to attempts to do down a successful businessman, these decisions, particularly that of [the defendant] bringing an ongoing satisfactory relationship to an end, are flawed."
- It appears that, in his judgment in the PII case, Jay J noted what he called "a degree of tension" between these two observations. I respectfully agree with that: taken at its widest, Kenneth Parker J is suggesting that any sort of innocent association with crime or criminals would be sufficient to deny clearance, whilst Collins J suggests that only actual involvement in criminal activity would be sufficient.
- Other Relevant Authorities
- The parties are agreed that there is no other relevant authority directly in point. However, my attention has been drawn to a number of cases on related topics which do, I think, provide some assistance.
(a) Reasonable Grounds for Suspicion
- In Secretary of State for the Home Department v MB [2006] EWCA Civ 1140, the Court of Appeal dealt with the problem of control orders under the Prevention of Terrorism Act 2005 ("PTA"). Section 2(1) of the PTA allowed the Secretary of State to make control orders if he or she had reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity. Lord Phillips said:
"59. The test of reasonable suspicion is one with which the Strasbourg court is familiar in the context of Article 5(1)(c) of the Convention.
"Having a 'reasonable suspicion' presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence" – Fox, Campbell and Hartley v United Kingdom (1991) 13 EHRR 157 at paragraph 38.
60. Whether there are reasonable grounds for suspicion is an objective question of fact. We cannot see how the court can review the decision of the Secretary of State without itself deciding whether the facts relied upon by the Secretary of State amount to reasonable grounds for suspecting that the subject of the control order is or has been involved in terrorism-related activity."
- The second part of the test under Section 2(1) required a consideration by the Secretary of State of whether it was necessary, for the purposes of protecting the public, to make a control order. Lord Phillips said:
"63. Whether it is necessary to impose any particular obligation on an individual in order to protect the public from the risk of terrorism involves the customary test of proportionality. The object of the obligations is to control the activities of the individual so as to reduce the risk that he will take part in any terrorism-related activity. The obligations that it is necessary to impose may depend upon the nature of the involvement in terrorism-related activities of which he is suspected. They may also depend upon the resources available to the Secretary of State and the demands on those resources."
This decision was upheld by the House of Lords at [2007] UKHL 46.
- In Secretary of State for the Home Department v AF [2007] EWHC 651 (Admin) Ouseley J said at paragraph 132:
"…reasonable grounds for suspicion requires the existence of facts or information which would satisfy an objective observer that the person may have done acts within s1(9)."
- There is considerable authority for the proposition that intelligence, without more, is capable of giving rise to reasonable suspicion: see, for example, Hussein v Chong Fook Kam [1970] AC 942 at 949 and O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286 at 294 and 296.
(b) Sufficiency of Evidence
- Plainly, the best evidence of involvement in criminal activity is the existence of relevant criminal convictions or cautions. But the NVP expressly recognises that there may be circumstances in which security clearance will be refused because of intelligence which falls short of the certainty provided by convictions or cautions. There are a number of decisions in which the courts have stressed the need for such material to be used cautiously, usually in the context of enhanced criminal record certificates: see, for example, C v Chief Constable of Greater Manchester [2010] EWHC 1609 (Admin) and R (RK) v Chief Constable of South Yorkshire Police and Another [2013] EWHC 1555 (Admin).
- When considering intelligence of this kind, the decision-maker (and subsequently the court) must bear in mind what Lord Nicholls said in In re H [1996] AC 563 at 586:
"When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability…Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.
…The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established."
In In re B (children) [2008] UKHL 35, Lord Hoffman reiterated this passage and stressed that the factor will be borne in mind by the court "to whatever extent is appropriate in the particular case".
(c) The Balancing Exercise
- To the extent that the vetting process under the NVP involves a balancing exercise, between the interests of the police and public on the one hand, and the interests of the person being vetted on the other, I consider that a helpful approach is that set out by the Supreme Court in L v Commissioner of Police of the Metropolis and Another [2009] UKSC 3. That was another case concerned with an enhanced criminal record certificate ("ECRC") and the disclosure of information. It was concerned with the sort of information caught by Section 115(7)(a) of the Police Act 1997 which, as Lord Neuberger said at paragraph 77, could include information which either was not relevant or only peripherally relevant but which would unfairly blacken the applicant's name, unjustly prejudice her prospects of obtaining the post, or simply embarrass her. The issue was whether the information "ought to be included", which provided the requisite balancing exercise. Lord Neuberger went on:
"81. Having decided that information might be relevant under section 115(7)(a), the chief officer then has to decide under section 115(7)(b) whether it ought to be included, and, in making that decision, there will often be a number of different, sometimes competing, factors to weigh up. Examples of factors which could often be relevant are the gravity of the material involved, the reliability of the information on which it is based, whether the applicant has had a chance to rebut the information, the relevance of the material to the particular job application, the period that has elapsed since the relevant events occurred, and the impact on the applicant of including the material in the ECRC, both in terms of her prospects of obtaining the post in question and more generally."
As he put it, the issue is essentially one of proportionality.
- This approach was reiterated more recently by Lang J in R (A) v Chief Constable of Kent Constabulary [2013] EWHC 424 (Admin) where she said at paragraph 57:
"In my view, she should at this stage have considered all the questions in paragraph 18 of the Guidance, namely:
(a) is the information from a credible source?
(b) are there any specific circumstances which lead the decision maker to consider that the information is unlikely to be true?
(c) is the information so without substance that it is unlikely to be true?"
- The judge stressed that the credibility or reliability of the allegations was a relevant factor to consider in the proportionality balancing exercise, because otherwise the decision-maker is not considering whether the means employed were proportionate to the legitimate aim pursued, or whether a fair balance had been struck between the interests of the community and the protection of the individual's rights. This approach was not criticised in the subsequent appeal.
- The Parties' Submissions
- Mr Nardell proposed the following test:
"Are there sufficient grounds for concluding that giving X access to police property would create an unacceptable risk of loss or disclosure."
As to the relevant material he said that that material had to be sufficiently cogent to justify a conclusion of unacceptable risk given the serious consequence to X if security clearance was refused.
- During the course of his helpful submissions he accepted on behalf of the claimant that reasonable grounds for suspicion were enough to refuse clearance, and that it was not necessary for the police to demonstrate actual involvement in criminal activity. He also agreed that the police could take into account untested information but he said that the police had to make a proper assessment of any untested information and that particular care was necessary in circumstances where the police were not required to give the applicant an opportunity to respond. He reiterated the point that, the more serious the wrongdoing alleged, the greater the cogency of the material required.
- He had two further significant points to make. First, he said that, because the police in this case had operated on pure intelligence, which is not evidence, further enquiries were plainly appropriate. He said the police should have asked themselves the extent to which the intelligence justified making further enquiries. It was only after that that they could take an objective view of the material. In essence, he said that the police did not treat the intelligence gathered in this case as a starting point but instead treated it as the beginning and end of their considerations. There were no investigations and he submitted that resulted in a flawed decision.
- Mr Nardell's second argument was based on the fact that, in 2009, the claimant had been granted clearance in the C Constabulary area. That was despite the existence of most, if not all of the intelligence that subsequently led to the refusal of clearance. He argued that, because the defendant was expressly prepared to run the risk at that time, and that there was nothing to suggest that there had been any increase in the risk since 2009 (and certainly there was no evidence of such), then it was difficult to see how the decisions of 2013 could possibly be fair. He noted that between 2009 and 2011 the claimant was effectively under suspicion and yet there was no evidence that anything suspicious had happened. In such circumstances, he argued that the decisions should be quashed.
- Ms Barton maintained that, in general terms, the test formulated by Kenneth Parker J was correct and should be followed. She did, however, concede that, where Kenneth Parker J said that even innocent association "would" justify the refusal of security clearance, it would be appropriate instead to read the word "may". She said that otherwise the test was too high, because it would mean innocent association would always lead to refusal.
- Ms Barton agreed that there had to be a proper assessment of intelligence; she agreed that the more serious the allegation, the greater the cogency of material was required; and she agreed that the various matters identified by Lord Neuberger in L, such as the gravity of the allegations, the reliability of the information and so on, were all relevant factors.
- Ms Barton did not agree that having reasonable grounds to suspect the applicant was an appropriate element of this sort of vetting exercise. Instead she said that what mattered was the question of reliability and integrity and, in this context, she stressed that Kenneth Parker J was right to talk about the necessity of the police having absolute and unqualified trust in those providing services to them. On the issue of further enquiries, she said that it had to be noted that there were thousands of these sorts of decisions every year, and that those were taken by representatives of the police who were not (or not necessarily) investigating officers. It was simply not appropriate to require the police to do large scale investigations. On the other hand she accepted that if there was readily available material which corroborated or undermined the intelligence then that should be looked at.
- Analysis: The Correct Test
- It is perhaps convenient if I set out what I consider to be the correct test and then explain my reasons for that conclusion. In my view, the correct test is a two stage process, as follows:
(a) Are there reasonable grounds for suspecting that X is or has been involved in criminal activity?
(b) If so, is it appropriate, in all the circumstances, to refuse X security clearance?
- I agree with Mr Nardell that the starting point is whether or not there are reasonable grounds for suspicion that X is or has been involved in criminal activities. It would be absurd if security clearance could be refused in circumstances where there were no reasonable grounds for suspecting that X had any involvement in criminal activities at all. Moreover, concepts of 'integrity' and 'reliability' are, in my view, too nebulous to form the basis of a practical and transparent vetting policy.
- Applying a test of "reasonable grounds of suspicion" also avoids the debate between so-called 'innocent association' and 'actual involvement'. In my judgment, these two extremes provide an unhelpful way of looking at this issue. It could not possibly be right for security clearance to be refused in circumstances where X had an occasional drink in the pub with a man who (possibly unknown to X) had criminal convictions. That would be an innocent association, but it would not provide a reasonable ground for suspecting that X himself is involved in criminal activity. At the other end of the scale, the test of reasonable grounds for suspicion means that the police would not have to demonstrate actual involvement. There may be all sorts of reasons why proving actual involvement in criminal activity might be impossible, for example because the criminal activity is ongoing and the subject of a separate investigation. But a test of reasonable grounds for suspecting X's involvement in criminal activity would plainly be met in such circumstances.
- As to the second part of the test, the reference to appropriateness is designed to do two things. First it reflects the language of the NVP (see, for example, paragraph 20 above). Second, it is intended to achieve proportionality. It allows the police to take into account all the circumstances before deciding whether or not to refuse security clearance.
- Thus, if X has a previous conviction for a serious offence, but it is now many years old, and there is absolutely nothing to suggest that X has had any involvement in criminal activity since that conviction, it may well be inappropriate to refuse security clearance. On the other hand, if there is intelligence which an objective observer would accept amounted to reasonable grounds for suspecting that X remains involved in criminal activity then, although the police would be obliged to take into account the consequences of refusal on the applicant in deciding whether or not it was appropriate to refuse security clearance in the circumstances of the case, they may conclude that the strength of the intelligence outweighed the interests of the claimant, and made it appropriate to refuse security clearance.
- I have deliberately left the second part of the test general. That is because I consider that the specific formulations that were proffered during the course of submissions carry with them potential complications. Thus, I reject Mr Nardell's suggestion that the second part of the test should require the police to consider whether or not the grounds for suspicion created an unacceptable risk of loss or disclosure, because I consider that that imposes much too high a burden on the police. The risk to the police of having those suspected of criminal activity working for them is obvious in a general sense, but may be more difficult to assess specifically. It may be very difficult to assess the risk or risks in such a way as to identify that which is acceptable and that which is unacceptable. In my view, it is not necessary for the police to have to undertake a detailed asset/risk assessment, and nothing was brought to my attention which suggests the contrary.
- Similarly, the general formulation of the second part of the test avoids identifying questions of reputation and standing as being automatically a relevant consideration every time there is a vetting procedure. I can quite see that there will be times when the reasonable grounds for suspicion may be such that the effect on the reputation on the particular constabulary would lead to a refusal of security clearance. On the other hand, there will be some circumstances where the issue of reputation, on its own, will be irrelevant to whether or not security clearance is granted. That may depend, for example, on the actual services being provided: the vetting of a provider of forensic laboratories may require a rather different approach to the vetting of the supplier of bacon sandwiches.
- My formulation also allows, if appropriate, the vetting process to take into account the interests of the individual who is being vetted. Clearly, any proportionate process of this kind will normally require a consideration of the impact on X if clearance is refused. But it is important that this aspect of the vetting process is not over-stated.
- There is a difference between the interests of an applicant in a case involving information disclosed to third parties, such as an ECRC, and the impact of a refusal of security clearance to a supplier of particular services. In the former situation, the applicant is grappling with the potential unfairness of information which is provided to any third party who may ask for it, and which will often mean that the applicant is routinely refused employment on the basis of the contents of the ECRC. In those cases the police are acting, or are supposed to be acting, as an independent vetting authority providing impartial information to third parties. As a result, the interests of the applicant are significant because the provision of inaccurate or unfair information could affect an entire career.
- The position is not so acute in circumstances where the police are vetting contractors or sub-contractors carrying out work on behalf of the police. That is more akin to a public procurement exercise (and I note that, although no mention of it was made in the hearing, the claimant in this case has indeed commenced a separate procurement claim, issued in the TCC). The police are offering a potential commercial benefit to an applicant who successfully obtains security clearance and whose bid is accepted. But there must be an element of autonomy left to the police; they must, within the limits of the Public Contract Regulations 2006 (as amended), be entitled to contract with whom they want. Moreover, the refusal of security clearance may mean that the applicant cannot carry out work for the police but, unlike an applicant concerned about an enhanced ECRC, the decision will not affect his ability to work for anyone else.
- For those reasons, I consider that, although an applicant's interests do have to be considered in the balancing act, those interests are broadly commercial and are not therefore of the same significance as those that may be affected by, say, an ECRC decision.
- In that context, I should say, in respect of an issue that was specifically canvassed before me, that the prospective supplier has no right to an interview. The NVP expressly indicates at SOP 7, paragraph 14 that, although an interview may take place, there is no entitlement to an interview. The invitation to the prospective supplier to deal with points raised by the initial decision, as happened here, seems to me to be a sensible course.
- In summary, I consider that the test set out in paragraph 42 provides the necessary balancing exercise and avoids what I consider to be the pitfalls and complications of the other formulations that have been offered. Having identified this as the correct test I now turn to the second issue, namely whether, to the extent that this test was not the one applied in the relevant letters, it makes no difference because the same conclusion would have been reached, even if the correct test had been applied. In my view, that is the convenient place to deal with Mr Nardell's principal remaining point, namely the extent, if at all, to which security clearance can be refused on the basis of intelligence material only.
7. THE DECISIONS: SHOULD THEY BE REMADE?
- The Relevant Letters
- The relevant letters are set out in paragraphs above. It is common ground that they were based on the obiter formulation of Kenneth Parker J, and that they were based on intelligence only. My formulation of the relevant test is different to that of Kenneth Parker J. It is intended, with respect, to be more balanced; it is intended to provide a rather higher threshold before security clearance can be refused. To that extent, therefore, these decisions were based on the wrong test.
- As a matter of discretion, it is open to me to find that, even though the defendant applied the wrong test, it is unnecessary for the decisions to be remade because, even on the basis of the new test, the defendant would necessarily have made the same decision: see, for example, R v SoS for the Environment ex parte Brent LBC [1982] QB 593 and Simplex GE (Holdings) v SoS for the Environment and Another [1988] 57 PCR 306 at page 327. If however, it is possible that the defendant would have come to a different conclusion when applying the correct test, I should remit the decision to the defendant. It seems to me that, in this case, this issue turns on the nature and status of the intelligence that was summarised in the decision letters.
- The Nature and Status of the Intelligence
- I have already noted that a decision-maker must be very careful before reaching a conclusion that is adverse to the applicant based only on intelligence, rather than evidence. Equally, there can be no doubt that such intelligence, on its own, can be sufficient to amount to reasonable grounds of suspicion. The issue here is the extent to which the defendant was entitled to take into account the intelligence and to conclude that security clearance should be refused without undertaking any more extensive enquiries. In my view, for the reasons noted below, I consider that he was.
- The first point to make is that this intelligence was extremely extensive. There were twenty different sources across three separate police forces. Whilst some of the intelligence is as I have said, of peripheral value, much of it was significant. Whilst these things can never be a matter of numbers alone, I consider that the range and volume of intelligence in this case is highly significant.
- Secondly, the nature of the intelligence is also significant. The material that has been gisted relates to criminal activities ranging right across the top of the scale: human trafficking, drug dealing, arson, theft and money laundering. The particular nature of the criminal activity which is the subject of the reasonable grounds for suspicion will always be important: it is possible that, in some circumstances, suspicion of what might be fairly termed minor offending might not warrant refusal of security clearance. But the offending here is so significant that it was inevitably an important factor in the defendant's decision-making.
- Thirdly, there is the question of checking and corroboration. Take by way of example the intelligence concerned with arson. Checks were made which demonstrated that the claimant did buy an old bank building in the relevant town to convert it into a pub and research also demonstrated that the other pub in that town was the subject of an arson attack in that same year. Accordingly, the defendant can show that the intelligence was not simply taken at face value, and proper checks were made. That was in accordance with SOP 3, paragraph 7 (paragraph 18 above).
- Accordingly, in my judgment, the volume of the intelligence; the serious nature of the suspected criminal activity; and the checks that were carried out on the intelligence, all justified the defendant in refusing the claimant security clearance, because they demonstrated reasonable grounds for suspicion and made it appropriate, in all the circumstances, to refuse clearance.
- Further Investigations
- As I have said, Mr Nardell complains that notwithstanding these points, the intelligence was not a proper basis for refusing clearance because it was not the subject of any further investigation. He says that, on that ground alone, the decision was flawed. As I have also noted, Ms Barton's response is that it is not appropriate for the police to do further investigations given the volume of the decisions that need to be made and the fact that those making them are not necessarily investigating officers.
- In my view, there can be no hard and fast rule. If, at one end of the scale, there was one single piece of intelligence which indicated a possible involvement in serious criminal activity, but that was all, the police would almost certainly be obliged to carry out further investigations into that intelligence before they could rely on it to refuse security clearance. Such a thread would simply be too thin on which to hang such an important decision. On the other hand, and at the other end of the scale, if there are numerous and disparate pieces of intelligence, from multiple sources, which indicate extensive criminal activity, then it may not be appropriate to require the police to carry out further investigation, particularly if at least some of the intelligence has been corroborated to the extent possible.
- Accordingly, I conclude that the question of whether or not further investigation is required in circumstances, such as this, where the only relevant material is intelligence rather than anything more concrete, will depend on the particular circumstances of the case. But I am in no doubt here, that because of the volume of the material and the multiple sources from which it is derived, this is an overwhelming case in which any further investigations were not required.
- I should say that, although not directly relevant to my decision, I accept Ms Barton's subsidiary point that the issue as to whether or not further investigations are required must depend, at least in part, on the question of available resources. Police forces cannot always be expected to spend hard-pressed resources on chasing up every last piece of available information about potential suppliers for the purposes of security vetting. There are thousands of these decisions every year and resources must be properly used.
- Accordingly, I have reached the conclusion that, if the defendant had adopted the test set out in paragraph 42 above, he would inevitably have reached the same conclusion.
- That therefore leaves two remaining issues: first the effect, if any, of the 2009 decision; and second whether, in considering the second part of my test, the defendant might have come to a different conclusion when considering the particular effect of the refusal on this claimant.
- The 2009 Decision
- During the course of his submissions, Mr Nardell made a number of references to the defendant's decision in 2009 to grant security clearance, despite the existence of most, if not all, of this intelligence. His argument was that, since the defendant was prepared to run the risk then (because they said it was a low one), they ought not to be permitted now to take a radically different view of the same intelligence.
- I accept, of course, that previous decisions are a relevant factor to be taken into account. But it is wrong, I think, to elevate a previous decision into some form of precedent, requiring the defendant to justify any subsequent, different decision. The earlier decision may have been flawed. If, on a proper application of the test, the defendant was entitled in 2012/2013 to refuse security clearance, the fact that clearance had been granted in earlier years cannot, of itself, justify a different outcome.
- The Effect on the Claimant
- As I have said, the second part of the test, as with any test of proportionality, may require the defendant to take into account the impact on the applicant if the security clearance is refused. For present purposes, I am prepared to accept that that is the case here. I also accept that the financial consequences to the claimant of the refusal of clearance are significant. I am told that his turnover on work done for the defendant was £400,000 a year. There are also questions of loss or damage to the claimant's reputation.
- In my view, any adverse effect on the claimant is outweighed by the nature, scope and extent of the intelligence which provides the reasonable grounds for suspecting the claimant's involvement in serious criminal activity across a wide area. In those circumstances, even if the defendant had taken into account the claimant's interests, as the second part of my test envisages that it might, it would have made no difference to the outcome in this case.
- Conclusion
- In my judgment, even if the defendant had applied my test, as opposed to that of Kenneth Parker J, I am in no doubt that the result would have been exactly the same. Accordingly, it is unnecessary for me to remit this matter to the defendant for another round of decisions. The existing decisions noted at paragraphs 6-11 above can stand.
8. ARTICLE 1
- It is accepted that the benefit deriving to the claimant under his existing contract with RMSL in respect of the C Constabulary was capable of being a possession for the purposes of Article 1. But Ms Barton argued that, if and to the extent that the vetting process interfered with that right, then the State is entitled to control the use of property in accordance with the general interest by enforcing such laws as they deem necessary for that purpose: see Sporrong and Lonnroth v Sweden [1982] 5 EHRR 45 at paragraph 65.
- Ms Barton submitted that the vetting of police contractors to ensure that they are fit and proper persons is a legitimate aim. The vetting was subject to written policies and procedures and was subject to the control of the court. It seems to me that that is correct. I have identified a test which performs the necessary balancing exercise and accordingly I conclude that the vetting process is not incompatible with Article 1.
9. SUMMARY
- For the reasons set out above, although I consider that the test applied by the defendant was not the right one, I am in no doubt at all that, on the basis of the material, an application of the correct test would have led to precisely the same result. On the evidence before me, there could be no way in which the claimant was entitled to security clearance. For those reasons, the application for judicial review is refused.
