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

Police security vetting requires a two-stage test: first, whether there are reasonable grounds for suspecting that the applicant is or has been involved in criminal activity; and secondly, whether refusal is appropriate in all the circumstances. The second stage supplies the necessary proportionality assessment. It permits consideration of the seriousness, volume, reliability and corroboration of intelligence, the nature of the services, the impact on the applicant and the police’s legitimate interests. Actual criminal involvement need not be proved, and an elaborate asset-risk assessment is unnecessary. Intelligence alone may establish reasonable grounds for suspicion. Whether further investigation is required depends on the circumstances. A previous grant of clearance does not operate as a precedent. The claim may nevertheless be refused where application of the correct test would inevitably produce the same result.

The claimant, a sole trader providing vehicle hire, breakdown and recovery services to police forces, challenged decisions refusing and revoking his non-police personnel security clearance. The decisions relied on gisted police intelligence alleging association with serious criminal activity. An earlier judicial review concerning a refusal by B Constabulary had resulted in a finding of procedural unfairness and included obiter observations on the substantive vetting test: [2012] EWHC 2141 (Admin). Fresh decisions were then made and upheld on review.

Before Coulson J, the claimant limited the challenge to whether the wrong substantive test had been applied and whether revocation interfered unlawfully with a possession protected by Article 1 of the First Protocol to the ECHR. The central issues were the correct vetting test, the sufficiency of intelligence without further investigation, and the effect of the earlier clearance.

1. Correct test. Police security vetting involves two stages: whether there are reasonable grounds for suspecting that the person is or has been involved in criminal activity; and, if so, whether refusal is appropriate in all the circumstances. Concepts such as integrity and reliability alone were too nebulous to provide a practical and transparent test.
2. The reasonable-suspicion threshold avoids both extremes of treating any innocent association as sufficient and requiring proof of actual criminal involvement. Intelligence may establish reasonable grounds for suspicion, although it must be assessed with care. The seriousness of the suspected conduct is relevant, as more serious allegations require stronger and more cogent material.
3. The second stage is a proportionality-based balancing exercise. Relevant matters may include the volume, reliability and corroboration of the intelligence, the nature of the work, the interests of the police and public, and the impact of refusal on the applicant. The applicant has no right to an interview, although inviting comments on adverse material may be sensible. The applicant’s interests in contractor vetting are principally commercial.
4. There is no inflexible rule requiring further investigation whenever the material consists only of intelligence. A single uncorroborated item may require further inquiry, whereas numerous and disparate items from multiple sources, with available corroboration, may suffice without it.
5. The defendant had applied the wrong test, but the error was immaterial. The intelligence was extensive, concerned serious alleged criminality, and had been checked. It established reasonable grounds for suspicion and made refusal appropriate. The claimant’s financial and reputational interests were outweighed. The earlier grant of clearance was relevant but did not create a precedent. Applying the correct test would inevitably have led to the same result, so the existing decisions stood.
6. The vetting process pursued a legitimate aim and incorporated the required balancing exercise. It was compatible with Article 1 of the First Protocol. The application for judicial review was refused.