Police Procurement: High Court explains correct test for contractor vetting

Police Procurement: High Court explains correct test for contractor vetting

CategoryNews Author Parishil Patel KC Date

Gordon Nardell QC and Parishil Patel appeared for the Claimant in R(A) v. Chief Constable of C Constabulary [2014] EWHC 216 (Admin). The judgment of Coulson J deals with the proper approach to vetting of persons providing contractual services for a police force.

A’s business won sub-contracts to provide vehicle recovery services for the B and C police forces. The ACPO National Vetting Policy (NVP) applies to contractors who have access to police premises or information. A was originally refused vetting clearance by B force. A brought judicial review proceedings, during which it transpired that the refusal was based on intelligence indicating suspected, but unsubstantiated, involvement or association with serious criminality. In those proceedings Kenneth Parker J accepted that the vetting function was amenable to judicial review, and quashed the decision because the police had provided no information at all, before or after the decision, about the real reason for refusal: R(A) v. Chief Constable of B Constabulary [2012] EWHC 2141 (Admin).  Kenneth Parker J also stated, obiter, that working under contact with the police was a “special privilege” reserved only for “those in whom the police have absolute and unqualified trust”, so clearance could be refused if the police had “any basis at all for suspecting that a person might…be implicated, even innocently, in activities that could be considered criminal”.  On that basis B force again refused A clearance, and nearby C force revoked his existing clearance.

On A’s further claim for judicial review, Coulson J declined to follow Kenneth Parker J’s approach, which was unsupported by the terms of the NVP. He applied by analogy the line of cases dealing with enhanced criminal record certificates (ECRCs) issued to applicants for sensitive posts, including L. v Metropolitan Police Commissioner [2009] UKSC 3. Those cases require disclosure of information to be proportionate, based on a balance between the interests of the applicant and the public interest and a careful evaluation of the cogency of non-conviction information. Thus in NVP cases, the correct test involves two stages: (1) are there reasonable grounds for suspicion of involvement in criminal activity? (2) Is it appropriate in the circumstances to refuse clearance? As to the first stage, suspicion is less than proof, so non-conviction intelligence can be taken into account. However, its cogency must be properly assessed, bearing in mind the usual principle that the more serious – and therefore improbable – the allegations, the stronger must be the material relied on. The second stage is designed to ensure the NVP operates proportionately. The interests of the applicant, including the business and reputational impacts of refusal, can (though need not always) be taken into account at that stage.

By applying a much looser test based on Kenneth Parker J’s remarks, the police had erred.  Here, the judge declined to quash the decision because he found that the police would have refused clearance even on the correct test. However, the decision provides helpful clarification of the proper approach where police contractor personnel are subject to vetting under the NVP.

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