THE QUEEN ON THE APPLICATION OF TUCKER v DIRECTOR GENERAL OF THE NATIONAL CRIME SQUAD [2002] EWHC 832 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
[2002] EWHC 832 (Admin)Case No NO: CO/2986/2001Venue Royal Courts of Justice, Strand, London WC2
Between
THE QUEEN ON THE APPLICATION OF TUCKERDIRECTOR GENERAL OF THE NATIONAL CRIME SQUAD
Before
Mr Justice HarrisonMR M WESTGATE (instructed by Russell, Jones & Walker, Solicitors) appeared on behalf of the ClaimantMR J McGUINNESS QC and MR C JOHNSTON (instructed by Winckworth Sherwood) appeared on behalf of the DefendantDate 12 April 2002
[1]MR JUSTICE HARRISON: Background The claimant is a Detective Inspector with the Derbyshire Constabulary, who was seconded to the National Crime Squad ("the NCS"). On 28th April 2001 his secondment to the NCS was terminated. He now seeks judicial review of the decision to terminate his secondment.[2]The claimant joined the Derbyshire Constabulary in 1978. In 1996 he was seconded for five years to the Regional Crime Squad, which later became the NCS. In January 2001 his secondment was extended to 20th May 2002. Throughout that period of service in both the Derbyshire Constabulary and the NCS he received good appraisals and was the subject of commendations.[3]Whilst the claimant was seconded to the NCS, there was a covert investigation into drug-related matters known as Operation Lancelot. A management board was set up to monitor the operation. As a result of that investigation, on 28th April 2001 ten persons, some of whom were officers seconded to the NCS, were arrested for drug-related matters. Two other officers seconded to the NCS, Detective Chief Inspector Hardy and Detective Constable Branston, had their secondments terminated and they were returned to force with immediate effect for disciplinary investigation. The claimant's secondment to the NCS was also terminated and he was returned to force with immediate effect. In his case he was issued, on that day, with a notice, which stated:
"The National Crime Squad Professional Standards Unit has received information that you have failed to maintain the professional standards required by a Detective Inspector on the National Crime Squad. The Deputy Director General no longer has confidence in your ability to carry out your responsibilities. "
A number of police officers have been arrested this morning for drug-related matters. The lack of confidence is not related to that criminal investigation. The reasons for lack of confidence relate to managerial issues in connection with your duties and conduct whilst a serving member of the National Crime Squad. "The decision to return you to force will be reviewed both during and at the conclusion of the enquiry to ensure that the grounds for your return remain proportionate, justified and necessary."[4]It was later explained that the decision to terminate the claimant's secondment had been taken by the Deputy Director General of the NCS with the prior concurrence of the Director General and on the recommendation of the Management Board. The claimant asked for the reason for the termination of the secondment, but he was told that none could be given apart from the information given in the notice served upon him. He was told that the termination was not in connection with the arrest of the other officers and that he was not the subject of any disciplinary investigation.[5]Subsequently, on 25th July 2001, the defendant's solicitors replied to the claimant's solicitors' pre-action protocol letter, stating inter alia as follows:
"It is correct that the Claimant has been told that his return to force was not connected with the arrest or inquiry relating to four officers seconded to the Nottingham NCS branch who were arrested on the 28th April 2001. It is also correct that the Claimant is not and has not been the subject of any discipline investigation and neither has he been charged with any disciplinary offences. Legal constraints, after the receipt of clear legal advice, prevent the Director General from disclosing the source of information which led to the Director General's lack of confidence in the integrity of the Claimant as an NCS seconded officer. " ... "
The Claimant is right to allege that the secondment to NCS is a high status posting and it is possible that his return to force may have an impact on his career advancement. The source of the information that the Director General and others were acting upon, as already stated cannot be disclosed. The Director General is however under a general duty to uphold the integrity of NCS, its officers and the particular operations that they may be involved in. "In response to the assertion that the decision to return your client to force was unfair and in breach of the rules of natural justice, our client makes the following points:
"(i) it is not possible to give the Claimant particulars of any specific allegations or their source which ultimately would be protected by Public Interest Immunity. "(ii) the Claimant has been allowed to make representations both written and in person but the source of the information is not disclosable. "(iii) the reasons for the decision relate to the operational integrity and the confidential integrity of NCS and its operations both specific and in general terms. "
So far as the notice of any termination of secondment is concerned and any procedures in relation thereto the urgency of the matter and the need to take action for the integrity of NCS, the operation and its officers was such that more normal terms of notification were not appropriate. "The fact that NCS and the Director General were acting in the interests of the operational and general integrity of NCS and that the precise source and nature of the information they were acting upon is not able to be disclosed does not invalidate or impugn the justification and propriety of the decision. Neither is the validity of the decision qualified or questioned by the exceptional circumstances which had arisen. The paramount considerations, given the information available to the Director General, were the integrity and security of the National Crime Squad and its officers and the integrity of the operation in question. These were balanced properly and fully in relation to the conduct and judgment of the Claimant and any judicial review proceedings which take place will be answered in the same way by the Director General and ultimately with regard to the source and nature of the information by reference to Public Interest Immunity."[6]In December 2002 the Director General undertook a review of the decision to terminate the claimant's secondment, the outcome of which was that the decision was confirmed as correct. Following delayed notification of that decision to the Derbyshire Constabulary, the Deputy Chief Constable wrote a letter to the claimant on 14th February 2002 in which he said:
"I was advised that your development needs should encapsulate the skill areas of informant handling and decision making, bearing in mind the difficulties surrounding the source of the intelligence. I took the view that it was not appropriate at this stage to take action on your development needs until the results of the judicial review are known. For any development to have value it will inevitably encroach into the subject of the judicial review with its attendant difficulties."
[7]The position is that the claimant has been on clerical duties with the Derbyshire Constabulary since the termination of his secondment to the NCS and that his development needs will be addressed once the judicial review proceedings are concluded. The issues[8]The first issue in this case is whether the claim is amenable to judicial review. If it is amenable to judicial review, the second issue is whether fairness required the defendant to give reasons for the decision and to give the claimant an opportunity to make representations. Preliminary Submission[9]Before coming to those issues, however, it is necessary first to refer to a preliminary submission made by Mr Westgate on behalf of the claimant, which arose out of the position adopted by the defendant, the Director General of the NCS, in his detailed grounds for contesting the claim. The defendant stated that he is prohibited by law from providing the claimant with the information or the source of the information which formed the basis of the NCS's loss of confidence in the claimant. Mr McGuinness QC, who appeared on behalf of the defendant, made it clear at the hearing that, despite the references in the defendant's solicitors' letter of 25th July 2001 to public interest immunity, he was not putting forward public interest immunity as the reason for not disclosing the information or the source of it. He declined to state why the defendant was prohibited by law from disclosing the information or the source of it and he declined to state why he was prevented from so stating.[10]Having been told that public interest immunity was not being raised by the defendant as the reason for refusing to give reasons for the termination of the claimant's secondment, Mr Westgate concentrated on sections 17 to 19 of the Regulation of Investigatory Powers Act 2000. Section 17 provides inter alia that no evidence shall be adduced, question asked or disclosure made in connection with any legal proceedings which tends to suggest that an interception warrant has been issued. Section 19 provides that it is an offence for any member of the NCS to disclose even the existence of an interception warrant, let alone its contents. Section 18(7)(b) permits a relevant judge, which includes a High Court judge, to order a disclosure to him of anything otherwise prohibited by section 17. Mr Westgate submitted that I should exercise the power under section 18(7)(b) to go into camera and require the defendant to disclose to me the reason why he was prohibited in law from giving reasons for the termination of the claimant's secondment. That submission was, of course, made on the assumption that the giving of reasons may involve the disclosure of the existence of an interception warrant. Mr McGuinness said that, if this were a section 17 case, he could not say so. He did not intend to refer to any other statutory provision but that did not mean that he was saying that it was a section 17 case because he could not say that. Mr McGuinness then made it quite clear that, if I were to accede to Mr Westgate's submission to require disclosure in camera, the defendant would concede the judicial review proceedings except on the issue of relief. That struck me as a very unsatisfactory state of affairs because one of the defendant's main submissions was that the decision in this case was not amenable to judicial review. At that point, Mr McGuinness made it clear that he was prepared to argue the two issues in this case, namely whether the decision was amenable to judicial review and, if so, whether fairness required reasons to be given and an opportunity to make representations, without relying on the fact that the defendant was prohibited by law from giving reasons. In view of that concession, Mr Westgate did not pursue his request for disclosure in camera. I should, however, say that, although I did not therefore have to decide that preliminary issue and although I had not heard argument from Mr McGuinness on it, I would have been very unlikely to accede to the submission that I had the requisite power in judicial review proceedings to require such closure in camera.[11]The relevance of Mr Westgate's preliminary submission and the subsequent concessions to which I have referred is that the two main issues in this case therefore fall to be considered in the somewhat artificial circumstances of the defendant not relying on the fact that he is prohibited by law from giving any further reasons for the termination of the claimant's secondment. It is on that basis that I have to consider those two issues, to which I now turn. Status and conditions of service of the claimant's secondment to the NCS[12]I deal firstly with the issue whether the decision in this case is amenable to judicial review. Before I deal with the submissions on that issue, it is necessary first to refer to the status and conditions of service of the claimant as a police officer seconded to the NCS.[13]It was in common between the parties that the claimant does not have a contract of employment. He is an office holder as a police officer. When seconded to the NCS he had, however, signed a declaration that, having read his letter of appointment and the "Notes for Guidance on Conditions of Service", he agreed to be appointed to the NCS on a period of temporary service in accordance with section 55(2)(b) of the Police Act 1997 and section 97 of the Police Act 1996.[14]Section 55(2)(b) of the Police Act 1997 permits a person to be appointed as a police member of the NCS if he is engaged with the NCS on a period of temporary service to which section 97 of the Police Act 1996 applies. Broadly speaking, section 97 of the Police Act 1996 provides that a member of a police force on temporary service with the NCS shall be treated as if he were not a member of his own police force during that service save for certain purposes specified in section 97(8). Section 55(5) of the Police Act 1997 provides that a person appointed as a member of the NCS shall be appointed on such terms and conditions as the NCS Service Authority considers appropriate.[15]The NCS Service Authority was created under section 47 of the Police Act 1997. Under section 48 it has a duty to maintain the NCS, and under section 49 it has a duty to ensure that the NCS is efficient and effective. Section 48(2) provides that the function of the NCS is:
" ... to prevent and detect serious crime which is of relevance to more than one police area in England and Wales."
[16]The claimant's letter of appointment expressly stated that the "Notes for Guidance on Conditions of Service" were an integral part of the letter of appointment and it strongly advised the claimant to read the Conditions of Service for Police Officers Seconded to the National Crime Squad. The "Notes for Guidance on Conditions of Service" stated that they should be read in conjunction with the Conditions of Service for Police Officers Seconded to the National Crime Squad.[17]Paragraph 2.2 of the Conditions of Service states that police officers seconded to the NCS cease to be members of a police force for the duration of their secondment for the purposes of the Police Regulations and that they are no longer under the direction and control of the chief officer of their parent force. Paragraph 2.3 of the Conditions of Service states that the Police Regulations do not apply to seconded officers, whose conditions of service are determined by the NCS Service Authority, but that, in practice, those Conditions of Service adhere as closely as possible to the provisions of the Police Regulations and the provisions of those Regulations will be applied unless otherwise stated in that document.[18]Paragraph 5.3 of the Conditions of Service states that the letter of appointment must provide for the secondment to be terminated without notice if the seconded officer has to be returned to the seconding force to face disciplinary proceedings. Section 7 of the Conditions of Service deals with the length of secondments. Paragraph7.1 states that officers of the rank of superintendent or below shall be appointed on secondment for three years, which may be extended annually for a further two years, the maximum period normally being five years. Paragraph7.2 states:
"Letters of appointment should set out how a period of secondment may be terminated. Ordinarily, either party giving notice one month in advance may terminate an officer's period of secondment. Exceptionally, theDirector General reserves discretion to terminate an officer's secondment without notice; such as when an officer has to be returned to the seconding force to face disciplinary proceedings, which may relate to misconduct occurring prior to the commencement of the secondment or whilst engaged with the NCS. Otherwise it may only be terminated by one month's notice on either side, unless a shorter period of notice is agreed between NCS and the officer."
Submissions on first issue -- amenability to judicial review[19]Having dealt with the status and conditions of service of a police officer seconded to the NCS, together with the relevant statutory provisions, I turn to the submissions of the parties on the issue of the amenability of the decision in this case to judicial review.[20]Mr Westgate submitted on behalf of the claimant that there was no contract of employment, the claimant's position being no different from any other police officer subject to the control of his chief constable, which is a relationship generally treated as raising a public law matter rather than a private law matter. He relied on the fact that the NCS was a public body created by statute under which the Director General was given statutory functions in the public interest. He accepted that the mere fact that the claimant may have no private law remedy did not mean that he had a public law remedy (see R v Lord Chancellor's Department, ex parte Nangle [1992] 1 All ER 897) and he submitted that, even if there was a contract between the parties, the court can still intervene by judicial review where there is a sufficient public law element. The real thrust of the claimant's case related to the defendant's actions outside the agreement, namely the process by which the secondment was brought to an end. Mr Westgate submitted that there was no universal test as to whether there was a sufficient public law element; it was a matter of impression (see R v Legal Aid Board, ex parte Donne & Co [1996] 3 All ER 1 per Ognall J at 11h).[21]Besides the statutory powers and lack of contract, Mr Westgate also relied on the fact that the decision in this case was only made possible because of the information held by the defendant which came into his possession as a result of his public law function. That, it was said, gave rise to a public law aspect in deciding how to use that information when dealing with the claimant. It was also suggested that the decision in this case was, in its context, inseparable from the other public law actions taken by the defendant at the time in connection with Operation Lancelot, namely the arrest of some officers and the return of some other officers to force for disciplinary investigation. It was said that the claimant would inevitably suffer the stigma of being perceived as being associated with that investigation and that he would have been better off if he had been the subject of disciplinary proceedings because he would then have had notice of the charge and have been able to respond to it, and the process would have been subject to control by judicial review.[22]Finally, on this aspect, Mr Westgate submitted that the defendant's reliance on the need to preserve the integrity of the NCS was more redolent of a public law function. He pointed out that the conditions of service were intended to mirror, so far as possible, the Police Regulations. Disputes under the Police Regulations may be subject to judicial review, whereas officers seconded to the NCS would be in an anomalous position if similar decisions were not to be the subject of judicial review.[23]Mr McGuinness, on the other hand, submitted on behalf of the defendant that the decision in this case is not susceptible to judicial review. He first of all suggested that the relationship between a police officer and the NCS is different from that with his home force, which is illustrated by the fact that, given the highly sensitive nature of the work of the NCS, Parliament has, in section 55(5) of the Police Act 1997, given the NCS complete discretion as to the terms and length of an officer's secondment. It is, he said, a unique relationship. Secondly, reliance was placed on the fact that, although there was no contract of employment, there was an agreement which set out the terms and conditions of the claimant's secondment to the NCS. It was submitted that the decision was made pursuant to paragraph 7.2 of the Conditions of Service, which expressly provide that the defendant could, exceptionally, terminate the claimant's secondment without notice, a power which was not confined to sending an officer back to force to face disciplinary proceedings. It was contended that the decision was taken pursuant to the agreement. It did not involve a termination of the claimant's status as a police officer, nor did it involve any disciplinary findings or allegations against the claimant, nor any financial loss; it was, said Mr McGuinness, a decision taken for operational reasons only which was no different in principle from operational decisions to transfer an officer from CID to plain clothes duties or from one CID squad to another. It was submitted that it was not surprising that the agreement did not provide for reasons to be given when terminating an officer's secondment, given the highly sensitive functions of the NCS. The giving of reasons could reveal an informant, expose an officer working under cover or compromise surveillance gathering. The point was made that, if the decision to terminate the secondment in this case were quashed, the defendant could then terminate by giving one month's notice without giving reasons.[24]Finally, on this aspect, Mr McGuinness submitted that there was a distinction between disciplinary decisions and operational decisions, namely that disciplinary decisions are subject to judicial review, whereas operational decisions are not. Mr Westgate, on the other hand, disagreed that there was such a fine dividing line between those types of decisions so far as susceptibility to judicial review is concerned.[25]Mr McGuinness submitted that the decision taken in respect of the claimant was wholly outside the disciplinary context. Disciplinary determinations are, in fact, made by the home force, not by the NCS, and no disciplinary proceedings had been taken against him by his home force.[26]Mr McGuinness relied on the dictum of Woolf LJ, as he then was, in McClaren v Home Office [1990] ICR 824, when he said at page 836:
"There can however be situations where an employee of a public body can seek judicial review and obtain a remedy which would not be available to an employee in the private sector. This will arise where there exists some disciplinary or other body established under the prerogative or by statute to which the employer or the employee is entitled or required to refer disputes affecting their relationship. The procedure of judicial review can then be appropriate because it has always been part of the role of the court in public law proceedings to supervise inferior tribunals and the court in reviewing disciplinary proceedings is performing a similar role. As long as the 'tribunal' or other body has a sufficient public law element, which it almost invariably will have if the employer is the Crown, and it is not domestic or wholly informal, its proceedings and determination can be an appropriate subject for judicial review."
[27]Mr Westgate suggested that that case did not support the distinction between disciplinary and operational decisions because it was a case where there was a contract of employment and, in any event, it was not exhaustive of circumstances where the court will intervene where there is a contract of employment.[28]Mr McGuinness referred to a number of other cases but I only need to refer to two of them. The first is an unreported decision of Maurice Kay J in R on the application of O'Leary v Chief Constable of the Merseyside Police (transcript, 9 February 2001). In that case, the claimant, who was a serving police officer with the Merseyside police, had pleaded guilty to one charge at a disciplinary hearing. The Chief Constable reprimanded him but removed any restriction on his deployment. Subsequently, the Head of Professional Services made known his concerns to the Chief Constable, who changed his previous decision and decided to impose restrictions on the claimant's deployment. The claimant alleged, firstly, abuse of discretion and breach of legitimate expectation and, secondly, procedural unfairness. The defendant's primary case was that the decision was an operational decision, not a disciplinary decision. Maurice Kay J held in favour of the claimant on both grounds. He said in terms that he was not persuaded that the decision could be justified on the basis that it was an operational, rather than a disciplinary, matter. It was too closely connected with the disciplinary hearing.[29]Mr McGuinness submitted that O'Leary was a clear example of what Woolf LJ had referred to in the case of McClaren, namely that it was a disciplinary matter, the inference being that the decision would have been different if it had been an operational matter. Mr Westgate suggested that the case involved the ordinary judicial review principle of legitimate expectation which was applied to an operational matter arising from disciplinary proceedings.[30]The other case to which I should refer is an unreported case, a decision of Scott Baker J in R on the application of Morgan v the Chief Constable of South Wales (transcript, 9 April 2001). The claimant in that case was a police officer in the South Wales Constabulary, who sought judicial review of a decision to withdraw his white ticket, which was his qualification for promotion, because the Chief Constable did not have confidence in the claimant's judgment to promote him to Chief Inspector. It was claimed that the withdrawal of the white ticket was akin to a disciplinary sanction and that natural justice required that the claimant should have a fair hearing. In distinguishing an unreported case of Murray v the Chief Constable RUC, Scott Baker J stated at paragraph 15 of his judgment:
"In no way could the withdrawal of his white ticket be properly construed as a punishment. The problem for the Chief Constable was whether the claimant was up to the post of chief inspector. It was his job to run an efficient and competent police force and once he had reached a conclusion that the claimant was not suitable for promotion there was no purpose in leaving his name on the list of those with a white ticket."
[31]Scott Baker J also distinguished the case of O'Leary on the basis that that was not a case involving a decision not to promote and that a decision not to promote cannot be categorised as a disciplinary measure. At paragraph 19 of the judgment, Scott Baker J stated:
" ... the decision under challenge in the present case is one of a kind with which the courts should in my judgment only in the most exceptional circumstances, if ever, interfere. It is quite erroneous to look at the decision as one relating to discipline; it was a question of suitability for promotion."
[32]Mr McGuinness submitted that the decision in that case was essentially an operational decision, namely that the defendant had lost confidence in the ability of the claimant to be a Chief Inspector and so had decided not to promote him. It was contended that it was exactly the same type of decision as in this case where the claimant had been notified that he had failed to maintain the professional standards required by a Detective Inspector in the National Crime Squad and that the Deputy Director General no longer had confidence in his ability to carry out his managerial responsibilities. Those reasons had been amplified to an extent by the letter of 14th February 2002 from the Detective Chief Constable of the Derbyshire Constabulary when referring to the claimant's development needs relating to the skill areas of informant handling and decision-making. Mr McGuinness submitted that the cases of O'Leary and Morgan reflect well the dictum of Woolf LJ in the McClaren case.[33]Mr Westgate submitted that, if there were such a clear-cut distinction between disciplinary and operational decisions, the case of Morgan would have been reasoned differently because, if operational decisions were beyond judicial review, it would not have been necessary to deal with the way in which the decision was taken. In any event, operational decisions are normally by their nature transparent so that public law issues of fairness do not arise, whereas, it was contended, the present case is an exceptional case where information had not been disclosed in circumstances involving stigma and a blight on the claimant's career.[34]Before giving my conclusions on the first issue relating to the amenability of the decision in this case to judicial review, it is convenient next to refer to the submissions made on the second issue, namely the requirements of the duty of fairness in this case, so that I can give my conclusions on both issues together. That is partly because there is a degree of overlap in the defendant's submissions on the two issues. Submissions on second issue -- the requirements of fairness[35]The claimant's case on the requirements of fairness is that, where a public body proposes to exercise its powers in a way that may seriously damage a person's reputation or livelihood, there is normally a duty to give notice of the allegations, to give an opportunity to comment on them and to give reasons for the decision. In the defendant's solicitors' letter of 25th July 2001, quoted earlier in this judgment, it had been acknowledged that secondment to the NCS is a high status posting and that is was possible that the claimant's return to force may have an impact on his career. It was contended that the stigma arising from the way in which his secondment was terminated would result in a stain on his character and a blight on his career and that the normal requirements of fairness where a public body exercises its power in a way that may seriously damage a person's reputation or livelihood should apply in this case.[36]Reliance was placed on the Court of Appeal decision in R v Secretary of State for the Home Department, ex parte Al Fayed [1998] 1 WLR 763 , where it was held that the Secretary of State's refusal to grant the claimant's application for naturalisation without giving reasons breached the requirement of fairness. Reference was made to the decision of the Divisional Court in R v Higher Education Funding Council, ex parte Institute of Dental Surgery [1994] 1 WLR 242 at page 263 in support of the submission that fairness requires reasons to be given where the subject matter is highly regarded by the law. Reliance was also placed on the distinction between forfeiture cases and application cases made by Megarry VC in McInnes v Onslow-Fane [1978] 1 WLR 1520, where it was said that forfeiture cases involve a threat to take away something, so that the right to an unbiased tribunal, the right to notice of the charges and the right to be heard in answer to the charges was plainly apt. Mr Westgate submitted that the present case was more akin to a forfeiture case because the claimant's secondment was being brought to an end.[37]Mr Westgate's alternative submission on the issue of fairness was that the claimant had a legitimate expectation that his secondment would run its full term and that reasons would be given for its premature termination. The expectation was said to arise from the terms of the secondment and from the apparent practice of the defendant to give reasons, which appeared from a letter he wrote on 14th May 2001, in which he said:
"In other circumstances officers returned to force are given the reasons for that action. In this case, and it is an exceptional one, that cannot be done. I accept responsibility for that, in my position as DG."
[38]Finally, Mr Westgate accepted that the court may not require reasons if there is a compelling public interest not to do so, but he submitted that such a suggestion in this case would be inconsistent with the defendant's practice of giving reasons in the normal run of cases. He suggested that the contention that the defendant's activities relating to serious crime are so sensitive that reasons could not be given was an attempt to bring in public interest immunity by the back door.[39]Mr McGuinness, on the other hand, submitted that, if the decision in this case is amenable to judicial review, it is one of the exceptional cases where there was no duty to give reasons. He referred to the highly sensitive work of the NCS in the fight to root out corruption in the police service, whereby any leaks of information can compromise major investigations and even put lives at risk, with the resulting need for all NCS officers to retain complete confidence in each other. He referred again to the fact that, in deciding whether an officer should remain with the NCS, the defendant may have to act on information which could reveal an informant's identity, expose an under-cover officer or compromise covert surveillance gathering. He submitted that, as a result, the decision to return an officer to his home force cannot of necessity be subject to the fairness requirements contended for by the claimant.[40]Reference was made to the case of Council of Civil Service Unions v Minister for the Civil Service (1985) AC 374 , where it was held that considerations of national security outweighed the claimant's legitimate expectation of prior consultation. It was submitted that the ability of the NCS to investigate and prevent serious crime was akin to such national security concerns.[41]Reliance was also placed on the R v Secretary of State of the Home Department, ex parte Adams [1995] All ER (EC) 177, where the Divisional Court held that the Secretary of State was not obliged to give reasons for a decision to impose an exclusion order under section 5 of the Prevention of Terrorism (Temporary Provisions) Act 1989 because reasons, in order to be meaningful, would usually have to reveal sensitive intelligence information, which it would be contrary to the public interest to disclose.[42]Mr McGuinness submitted that, if the decision in this case is amenable to judicial review, the requirement of fairness is limited to a duty to act honestly and without bias or caprice (see McInnes v Onslow-Fane per Megarry VC at page 1535). He submitted that the evidence showed that the decision to return the claimant to his home force was seriously considered at the highest level and that the decision was made honestly, in good faith and without caprice.[43]So far as the question of legitimate expectation is concerned, Mr McGuinness submitted that there was nothing in the Conditions of Service that gave rise to any expectation that the claimant's secondment would run its full term. Paragraph 7.2 of the Conditions of Service expressly stated that the secondment could be ended on notice or, exceptionally, without notice. There was no representation or promise that the claimant would be given reasons and the defendant's practice of giving reasons where it is appropriate to do so, but not doing so in exceptional cases, was entirely consistent with paragraph 7.2 of the Conditions of Service. It was submitted that what normally happens cannot be termed into a legitimate expectation and that the claimant had not adduced any evidence of any practice which could give rise to any legitimate exception.

(i) Summary of conclusions

[44]Overall, the conclusion I have reached, not without difficulty, is that it would not be appropriate for the court to intervene in this case. I have considered whether I should base that conclusion on the ground that the decision is not amenable to judicial review (the jurisdictional ground) or on the ground that fairness did not require reasons to be given. I have decided that my conclusions should be based on the latter rather than the former. (ii) Conclusions on first issue[45]The main reason why I do not base my conclusion on the jurisdictional ground is that there is, in my view, a sufficient public law element to justify susceptibility to judicial review, although I recognise that there are powerful arguments to the contrary. It is common between the parties that there is no universal test to decide the question. At the end of the day it is a matter of judgment, balancing the relevant considerations. No single consideration is by itself decisive.[46]There is no doubt that police officers seconded to the NCS are in a special position and that the work of the NCS, involving the prevention and detection of serious crime, can involve work of a highly sensitive nature. That is a matter to which I return when dealing with the requirement of fairness. There is some force in the point that this was an operational rather than a disciplinary decision, but I am not convinced that it is desirable to draw a hard and fast dividing line between those two types of decision so far as amenability to judicial review is concerned. In my view, this case is distinguishable on the facts from the cases of both O'Leary and Morgan. If anything, this case is closer to the case of Morgan insofar as both cases involve a loss of confidence in a police officer, although this case involves a loss of an existing status, whereas the case of Morgan involved a potential loss of enhanced status. It is interesting, however, that the jurisdictional question of amenability to judicial review was not argued in the case of Morgan, despite the fact that the decision in that case did not possess the same degree of public law aspects which are present in this case. I also accept that the decision to terminate the claimant's secondment without notice comes within the discretion of the defendant to do so exceptionally in accordance with paragraph 7.2 of the Conditions of Service.[47]On the other hand, the wider the discretion the greater the need for vigilance over the decision-making process. Although the claimant agreed to be governed by the Conditions of Service for Seconded Officers, it is common ground between the parties that there was no contract of employment and there was no suggestion on behalf of the defendant that the claimant had any private law remedy for breach of the Conditions of Service. The NCS is a public body, created by statute to perform the public law functions of preventing and detecting serious crime. The wide power of the NCS Service Authority to appoint police officers as members of the NCS on such terms and conditions as it considers appropriate is derived from statute, namely section 55(5) of the Police Act 1997.[48]Furthermore, there are aspects of the decision in this case which are associated with public law functions. Operation Lancelot was obviously an important investigation carried out in the public interest. The action taken against the claimant, although different in nature from the action taken against those who were arrested for criminal offences or for disciplinary investigation, was taken at the same time and it was almost certainly based on information obtained by the NCS during the exercise of its public law functions in connection with Operation Lancelot. Rightly or wrongly, that action could affect the claimant's career or reputation.[49]For all those reasons, I have come to the conclusion, on balance, that there are sufficient public law elements in this case to justify susceptibility to judicial review. (iii) Conclusions on second issue[50]I come, therefore, to the second issue -- the requirements of fairness. In considering the requirements of fairness, it is important to bear in mind the context in which the decision is made because fairness works both ways. The NCS is charged with the duty of preventing and detecting serious crime. It can involve highly sensitive work dealing with confidential information, the revelation of which could lead to serious consequences. As Mr McGuinness pointed out, it could lead to disclosure of an informant's identity, it may expose an under-cover police officer or it may compromise covert surveillance gathering. In this particular case, the fact that the claimant's development needs were subsequently assessed as including the skill of informant handling and decision-making is an illustration of the kind of work that can be involved. Whilst the work of the NCS may not involve matters of national security, it plainly shares some common characteristics in the handling of sensitive and confidential information. I do not find it surprising that paragraph 7.2 of the Conditions of Service for Seconded Officers reserves to the defendant the right, exceptionally, to terminate an officer's secondment without notice and without making any provisions for reasons to be given. It is simply a reflection of what may be required in certain circumstances. Whilst it may no doubt be sensible and desirable, when terminating an officer's secondment, for reasons to be given when it is appropriate to do so, it is evident from the nature of the work of the NCS that there may, exceptionally, be cases where, due to the sensitive nature of the information involved, it would be inappropriate in the public interest for reasons to be given.[51]It was accepted on behalf of the claimant that the court may not require reasons to be given if there is a compelling public interest not to do so. In my view, this is the type of case where it would not be appropriate or in the public interest for the court to require the defendant to give reasons for terminating the claimant's secondment. The court should only intervene in a case such as this if it can be shown that the defendant has acted for some improper purpose or in bad faith or has acted dishonestly or capriciously or in some other manner that would otherwise normally attract the intervention of the court on judicial review. There is no evidence of any such behaviour on behalf of the defendant in this case. It is plain from the evidence that careful consideration was given to this matter at the highest level, as a result of which different officers were dealt with differently according to their individual circumstances.[52]There was a suggestion by the claimant that mistakes may have been made in this case, that suggestion being based on what was alleged to have happened in the case of DC Branston, one of the officers who was returned to force for disciplinary investigation, where it was alleged that errors were made in the transcript of tape recordings and in a report relating to him. The alleged errors were, however, based on hearsay evidence which, according to evidence submitted on behalf of the defendant, was incorrect. There is nothing in that evidence which gives me any cause for concern.[53]The defendant in this case went as far as he felt he could to explain why the claimant's secondment was being terminated, namely that he no longer had confidence in the claimant's ability to carry out his managerial responsibilities due to his failure to maintain the professional standards required of a Detective Inspector in the NCS. The fact that he was later told that he needed to develop his skills in informant handling and decision making also provided a further indication to him of an area in which he was perceived to be deficient. That was, in my view, as far as the defendant could reasonably be expected to have gone. Furthermore, it was a decision that was subsequently reviewed and maintained by the defendant.[54]I appreciate that the decision could have an effect on the claimant's career or reputation as a result of the circumstances in which it was made, but the claimant was not being dismissed from the force; he remains a police inspector with his future development to be assessed after these proceedings are concluded. No financial loss is involved and there are no disciplinary proceedings.[55]Having regard to all of the matters that I have mentioned, and balancing the competing interests, I am satisfied that, in the circumstances of this case, fairness, or natural justice, did not require the defendant to give reasons for the termination of the claimant's secondment beyond the explanation that was given.[56]I am also satisfied that the claimant did not have a legitimate expectation that his secondment would run its full term or that reasons would be given for its premature termination. I do not consider that the terms of the secondment could be said to give rise to such an expectation, nor do I consider that the alleged practice of the defendant to give reasons in normal circumstances can be said to give rise to a legitimate expectation for reasons to be given in exceptional circumstances such as existed in this case. Furthermore, the claimant has not provided any evidence of any reliance by him on any promise or practice of the defendant upon which any legitimate expectation could be based. Overall conclusion[57]My overall conclusion in this case, therefore, is that, whilst there is a sufficient element of public law involved to justify susceptibility to judicial review, there are no grounds upon which the court should intervene because there was, in the circumstances of this case, no duty on the defendant to give reasons for the termination of the secondment beyond the explanation that was given, and there is no evidence that the defendant acted in any way improperly or in any other manner which would otherwise normally justify the intervention of the court on judicial review. Furthermore, there is no basis on which it could properly be said that the claimant had a legitimate expectation either that his secondment would run its full term or that reasons would be given for its premature termination. It follows therefore that this claim must be dismissed. MR McGUINNESS: Given the decision of the court, the defendant seeks an order for costs, to be the subject of detailed assessment if not agreed. MR JUSTICE HARRISON: Can you resist that, Mr Westgate? MR WESTGATE: I cannot object to an order for costs in principle. The only observation I would make is that, given the turn that the hearing took, as it were, with the 2002 issues being raised concerning the requirement of a duty of fairness, and then the further question of the ability on the part of the defendant to give reasons if they were required, matters might have been shortened if the defendant's position had been made clear at the outset and on that basis I do resist an order that the claimant pay the whole of the defendant's costs. MR McGUINNESS: Although it is right to say that the documents submitted in response to the claim for judicial review did raise the subject of whether or not the defendant could in law give reasons and could in law tell the court why it could not give reasons, as it was pointed out at the time the skeleton argument that was submitted by the defendant by counsel expressly disavowed any such intention, and therefore the submissions that were made at the hearing were consistent with the approach that was taken, and for that reason we do say that we are entitled to our costs. MR JUSTICE HARRISON: Thank you. Mr Westgate, although I appreciate the point that you have made, I do not think it gives rise to a sufficient reason to disentitle the defendants to their costs. MR WESTGATE: I have one further application, which is the permission to appeal. MR JUSTICE HARRISON: Could I just say then that there will be a detailed assessment of the costs, if not agreed. MR WESTGATE: Of course, my Lord. My Lord, as your Lordship's judgment shows, this is a matter which raises issues of some difficulty about the extent of a duty of fairness to give adequate notice of allegations and reasons in this particular statutory context, and the importance of the issues, both to the claimant and to the general public. The issues raised in this case are, I would suggest, self-evident and I do not intend to repeat the submissions that I made to your Lordship on the initial hearing of this matter, but, as far as your Lordship's conclusions on fairness are concerned, the general thrust of my points in support of my application for permission to appeal is that your Lordship's judgment, I would suggest, as it were, draws certain conclusions from the general circumstances prevailing in the NCS and the delicacy of issues that may arise, and applies in the particular circumstances of this case. What the claimant would say is that those are matters which fall to be determined, as it were, on a case by case basis, rather than being an overall reason for excluding an obligation to give reasons or an opportunity to comment. So, my Lord, that is the first general point. The second point is that your Lordship's judgment on this part of the case has concentrated on an obligation to give reasons, which are, of course, an important aspect of the duty of fairness. The claimant's complaint also concerned other aspects, which involved the absence of an opportunity on his part to comment on the allegations that were made against him. That too is something which needs to be taken into account in overall consideration of what fairness requires. Finally, your Lordship has referred to the legitimate expectation aspect, and one aspect of your Lordship's decision in that regard is that there has been an absence of any evidence of reliance on the claimant's part. That then raises the question, which I would suggest is an important point of law, which is, in the context of a decision of this kind what is the necessity for reliance. The claimant would say that, in a case of this kind, it is not necessary for there to be reliance in order to support the requirement for those reasons to be based on the importance of the issues raised. I have sought to outline before your Lordship what I would anticipate would be the main thrust of the type of arguments that would be advanced before the Court of Appeal. I do seek permission to appeal. MR McGUINNESS: Your Lordship will be aware that CPR 52.6 sets out the circumstances in which permission to appeal would be given, and it is only where the court considers that the appeal would have a real prospect of success or there is some other compelling reason why the appeal should be heard. I draw your Lordship's attention to the rules set out in that paragraph. I have no further observations. MR JUSTICE HARRISON: Mr Westgate, I think this case does raise some issues of some importance, and they were matters with which, as I said, I had some difficulty in coming to my conclusions, and in those circumstances I think it is right that I should grant leave to appeal. MR McGUINNESS: Might I ask that, because either party can seek permission to appeal, insofar as your Lordship found against the defendant on the first issue, might we have permission to appeal on that ground? MR JUSTICE HARRISON: Yes, you may.

Cited in 3 later judgments