Woods & Anor, R (on the application of) v Merseyside Police

A police force’s service-confidence procedure may be amenable to judicial review where it has potentially lasting effects on officers’ careers and is governed by a framework requiring fairness, proportionality and review. The procedure remains operational rather than disciplinary if its purpose is protection and management action. Where the reasons for the decision cannot be disclosed because of public interest immunity, the court must apply a very high threshold before interfering. Clear evidence of dishonesty, bias or caprice is required. The fact that officers continue to perform trusted operational duties, or have completed an action plan, does not by itself make continued inclusion irrational or unfair.

The claimants, a constable and an inspector, challenged the Chief Constable’s decisions refusing their appeals against continued inclusion in Merseyside Police’s Service Confidence Procedure. The procedure had been imposed following an anti-corruption investigation, but criminal or misconduct proceedings were not pursued because the available material could not properly be used in evidence. The claimants had received no substantive reasons because relevant material was subject to public interest immunity.

The issues were whether the decisions were amenable to judicial review and, if so, whether they were irrational, Wednesbury unreasonable or unfair. A previous judge had ruled that the undisclosed material was subject to public interest immunity.

1. Amenability to judicial review. The decisions to place and retain police officers on the Service Confidence Procedure had a sufficient public law element. The court considered the nature of the relationship between police officers and the Chief Constable, the absence of any voluntary temporary secondment, the potentially prolonged effect of the procedure, its likely impact on promotion prospects, and the existence of a policy requiring fairness, proportionality and review.
2. The procedure was not quasi-disciplinary. Its stated purpose was protection of staff and the force through management action, rather than misconduct proceedings or sanction. Nor did the statutory basis for the Chief Constable’s direction and control, under the Police Reform and Social Responsibility Act 2011, by itself determine amenability.
3. Intensity of review. The case fell within the sensitive-intelligence category discussed in R (Tucker) v National Crime Squad [2003] EWCA Civ. 57. Fairness required the decision-maker to act honestly and without bias or caprice. Because public interest immunity prevented disclosure of the reasons, the court would require clear evidence that no possible reason could justify the decisions before intervening.
4. Application. The continued performance of trusted operational duties did not establish irrationality, since the force might deploy the officers in roles consistent with its undisclosed concerns. Completion of an action plan did not automatically require restoration of confidence or removal from the procedure. The claims therefore failed and were dismissed.

Michael Fordham QC granted permission to apply for judicial review and directed the preparation of open and closed witness evidence. On 22 May 2014 Blair J ruled that the closed material was subject to public interest immunity and should not be disclosed. The present court then dismissed the claims.