J (R on the application of) v THE CHIEF CONSTABLE OF WEST MERCIA POLICE

Police vetting decisions may treat financial vulnerability as an unacceptable risk even though ordinary borrowing is lawful and debt does not automatically demonstrate poor financial management. Decision-makers may consider the applicant’s explanations, documentation, repayment arrangements and the consistency of credit-check information.

Natural justice generally requires disclosure of the rationale relied on during an appeal, so that the applicant can respond. Vetting appeal guidance requiring independence and no prior involvement should be followed unless there is good reason not to do so. Nevertheless, procedural errors need not result in relief where it is highly likely that the outcome would have been substantially the same.

The claimant challenged the decision of a Vetting Appeal Panel to dismiss his appeal against refusal of Non-Police Personnel Vetting level 3 clearance. The clearance was required for a programme-management role involving extensive unsupervised access to police premises, systems and sensitive information.

The claimant alleged improper purpose, bad faith, factual error, irrationality, failure to consider relevant matters, procedural unfairness, bias and predetermination. The appeal panel relied on concerns about his management of a substantial loan, his inability to provide detailed information about it, and the manner in which he had interacted with the vetting officer. The central issues were whether those matters lawfully justified refusal and whether defects in the appeal process required the decision to be quashed.

1. Claim dismissed. The claimant established limited procedural defects, but relief was refused because it was highly likely that the outcome would not have been substantially different.
2. The defendants were entitled to conclude that the claimant presented an unacceptable financial-vulnerability risk. Having a loan for general expenditure, or having debt, was not itself irrational or unlawful. The decision-makers could consider the claimant’s vague and incomplete account of the loan, absence of documentation, failure to identify its current balance or lender, its absence from the Experian report, and the repayment of £4 per month over several years. Those matters could rationally suggest financial vulnerability and possible susceptibility to inducement.
3. The claimant’s allegations of improper purpose, bad faith and factual fabrication were unsupported. The evidence showed that the decision-makers were addressing the vetting risks and the claimant’s interactions with the vetting officer.
4. Fairness required disclosure of the rationale document before the appeal was determined. Its omission deprived the claimant of an opportunity to respond to concerns about evasiveness, lack of transparency and his manner of dealing with the officer, and amounted to a breach of natural justice. The unfairness was limited because the claimant knew the financial concerns and could have addressed them in his appeal.
5. The appeal panel did not fully comply with the APP Guidance because its chair had previously been involved in an aspect of the case when deciding whether to grant conditional clearance. That was an error of law in the absence of a good reason for departing from the guidance. It did not, however, establish predetermination: prior involvement did not show that the chair approached the appeal with a closed mind. The fair-minded and informed observer tests for apparent bias and predetermination were considered under Porter v Magill [2002] 2 AC 357 and R (Lewis) v Redcar and Cleveland BC [2009] 1 WLR 83.
6. Applying section 31(2A) of the Senior Courts Act 1981, the court made its own objective assessment and concluded that the financial-vulnerability ground was rational and lawful. It was highly likely that the remaining panel members would have reached the same unanimous decision even without the identified procedural defects.