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

A decision by a statutory public body is not amenable to judicial review merely because the body performs public functions or because the affected office-holder has no private-law remedy. The court must examine the nature of the particular decision and whether it has a sufficient public-law element.

An individual operational or management decision concerning the deployment of a police officer, including the termination of a voluntary secondment, is ordinarily a domestic matter. It differs from disciplinary action, to which public-law safeguards of fairness may attach. Where sensitive intelligence information prevents fuller disclosure, fairness may be modified. It requires at least honest decision-making without bias or caprice, but does not entitle the court to scrutinise the withheld intelligence.

A detective inspector was seconded from Derbyshire Constabulary to the National Crime Squad. During a covert operation concerning drug-related crime, the Deputy Director General summarily ended his secondment because of a stated loss of confidence in his management performance. The decision carried no disciplinary allegation and did not affect his office as a police officer.

The officer sought judicial review. Harrison J held that the decision was amenable to judicial review but dismissed the claim because fairness did not require disclosure of the sensitive intelligence or a further opportunity to make representations. The officer appealed. The central issues were whether the termination was amenable to judicial review and, if so, whether the procedure was unfair.

1. Appeal dismissed unanimously. Scott Baker LJ gave the judgment, with which Sir Philip Otton and Aldous LJ agreed. The decision summarily to end the officer’s secondment had no sufficient public-law element and was not amenable to judicial review.

2. No universal test determines amenability. The relevant inquiry is the nature and consequences of the particular decision, including whether the public body was performing a public duty owed to the claimant. The National Crime Squad’s statutory status and the absence of a private-law remedy were relevant but not decisive factors. The court applied the approach identified in R v Derbyshire County Council, ex parte Noble [1990] ICR 808, R v Panel on Take-overs and Mergers, ex parte Datafin plc [1987] QB 815, and Hopley.

3. This was an individual operational deployment decision, made because the officer was considered unsuitable to continue his National Crime Squad responsibilities. It was neither a dismissal nor disciplinary action. His temporary, voluntary secondment could ordinarily be ended on notice and, exceptionally, without notice under the agreed conditions. The decision did not alter his police office, impose a disciplinary sanction, or cause financial loss. Operational police management of this kind is domestic and does not acquire a public-law character merely because it occurs against the background of a public criminal investigation.

4. Alternative finding on fairness. Even if judicial review had been available, there was no breach of fairness. Applying the contextual approach in R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531, the court held that sensitive intelligence information may justify modifying the usual duty to disclose the gist of a case. In this category, fairness required honest action free from bias or caprice. The decision-maker gave as much information as circumstances permitted, later reviewed the decision, and supplied some further indication of the perceived deficiencies. The court could not itself assess whether withholding the underlying intelligence was objectively justified.

5. The claimed legitimate expectation of fair treatment added nothing beyond the fairness challenge. The appeal was dismissed, with costs to be assessed if not agreed.

• Court of Appeal (Civil Division) Dismissed the officer’s appeal and held that the termination of his secondment was not amenable to judicial review: [2003] EWCA Civ 57 .
• Administrative Court Harrison J dismissed the judicial-review claim on 12 April 2002. He held that the decision was amenable to judicial review but that there had been no unfairness.