A, R (On the Application of) v Chief Constable of B Constabulary

Police security vetting is a public function amenable to judicial review even where carried out under a private contract. The duty of fairness has substantive content. A police authority cannot adopt a blanket policy of giving no explanation for refusing clearance.

Fairness does not ordinarily require advance disclosure of the intelligence relied upon or an opportunity to answer it. The authority may apply an ultra-precautionary standard and draw widely on police intelligence. It must, however, consider whether some explanation or gist can safely be given. The authority principally decides whether disclosure would prejudice crime prevention, detection or prosecution. The court should intervene only in very exceptional circumstances where that assessment is plainly flawed.

The claimant, a vehicle-recovery contractor, was refused security clearance by a police authority before undertaking services under a subcontract. The authority relied on police information and declined to disclose the basis of its decision.

The claimant sought judicial review, arguing that the authority exercised public powers and owed him a duty to act fairly. The authority argued that vetting was a private contractual activity, that no reasons were required, and that data-protection and information-rights procedures provided an alternative remedy. The central issues were whether the refusal was amenable to judicial review and what fairness required in this sensitive context.

1. Amenability to judicial review. The refusal of security clearance was amenable to judicial review. Applying the three-stage approach approved in R (Tucker) v Director General of the National Crime Squad [2003] EWCA Civ 57, the police authority was exercising statutory functions, the vetting function was public rather than private, and the authority owed a public-law duty to the claimant. The statutory powers connected with vehicle seizure, recovery and retention provided a sufficient public underpinning.
2. Contractual context. The subcontract could not remove or reduce the public-law duty of fairness. The claim raised an allegation of unfairness in the exercise of statutory functions, rather than merely a contractual dispute. The availability of remedies under the Data Protection Act 1998 did not determine whether the authority could maintain a blanket refusal to explain its decision.
3. Content of fairness. The authority was entitled to adopt an ultra-precautionary approach. It did not need reasonable grounds to believe that the claimant had committed, was committing, or would commit a relevant offence. Any basis for suspecting possible involvement or association with criminal activity could justify refusal, including where the involvement was innocent. The authority could draw widely on intelligence of varying specificity and reliability, using its expertise to form an overall assessment.
4. Fairness did not ordinarily require advance notification of the proposed refusal or disclosure of the information relied upon. It did require more than a blanket refusal to give any explanation in every case. Ordinarily, the authority should consider whether a safe gist or other explanation could be provided. The authority alone was to decide whether disclosure would risk crime prevention, detection, apprehension or prosecution. The court should generally defer to that assessment and intervene only in very exceptional circumstances where the decision was plainly flawed.
5. The claim succeeded on its core ground. The police authority was required to reconsider its general position and the claimant’s case in accordance with those principles. The judgment did not require the authority to disclose further information if, on reconsideration, it concluded that disclosure would prejudice the relevant policing objectives.

First-instance judicial review proceedings. No prior appellate decision is stated in the judgment.