Immunity from challenge?

On August 7, 2014, judgment was given in the administrative court in the case of Woods and Gorton v Chief Constable of Merseyside Police [2014] EWHC 2784 (Admin). The decision has important implications for all forces in the operation of service confidence policies (SCP). The court held that:

•Decisions under the SCP were amenable to judicial review;

•Where reasons for the policy’s use in a particular case cannot be disclosed as a result of public interest immunity, then the threshold for judicial interference in the decision is very high; and

•The test is whether there is clear evidence of dishonesty, bias or caprice.

Central to the decision that the court should not intervene in this case was the finding at a separate hearing, by a different judge, that the reasons for the decisions under the SCP were subject to public interest immunity (PII) and could not be disclosed.

Background

The SCP exists to provide a framework to keep under review and control officers who are thought to be of questionable integrity. Decisions are taken on the basis of information or intelligence that cannot – for various reasons – be made public or disclosed. They cannot therefore found criminal or misconduct proceedings. They are not disciplinary processes, nor are they designed to deal with performance issues, both of which are governed by regulations.

The SCP in this case was expressly stated to be concerned with the protection of staff and the force by management action and provided for deployment of officers in such a way that they could not undermine the overall integrity of the organisation.

The two officers, an inspector and a constable, were made subject to the SCP in circumstances where Merseyside Police was unable and/or unwilling to tell them the reasons for its loss of confidence in them, save that one of them was told that serious concerns over his integrity had arisen as a result of an anti-corruption investigation into a team of which both officers were members.

This meant that misconduct proceedings were not a realistic option. The officers successfully completed action plans imposed under the SCP that were designed to address the loss of confidence. However, they were subsequently told that they would remain subject to the SCP. No explanation was given.

Judicial review: preliminary hearings

The officers sought judicial review of the decision that they should remain subject to the SCP. Merseyside Police argued that such decisions were not amenable to judicial review because they were operational decisions, relying on the important Court of Appeal decision in R (Tucker) v National Crime Squad [2003] EWCA Civ 57. This earlier case concerned the summary termination of an officer’s secondment to the National Crime Squad because of a loss of confidence in him.

The Court of Appeal held in Tucker that the test to be applied in deciding whether a decision was amenable to judicial review involved three considerations:

a.Whether the defendant was a public body exercising statutory powers;

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

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

The court in Tucker decided that the decision in question had been an operational matter, which related to the officer personally and had no public element.

It was therefore not amenable to judicial review. Other examples of such decisions were said to be transferring officers from uniform to CID, or from traffic to other duties. The case has been relied upon by police forces resisting judicial review challenges in respect of a range of decisions relating to deployment, promotion, etc.

In Woods, permission was granted for the judicial review claim on the basis that it was arguable Tucker could be distinguished.

Faced with the argument from Merseyside Police that it was unable to disclose the reasons for its loss of confidence in the officers,