“Merseyside Police Force recognises that it is legally accountable and subject to public scrutiny in respect of its delivery of policing services. It also acknowledges that in order to maintain and enhance public confidence in the Force it must create an ethically robust, corruption resistant, organisation This policy introduces an ethical framework for dealing with loss of confidence in individual members of staff. The Force will take positive action to protect its staff, members of the public and its assets from risk.”
“The main aims of this policy are to: a) Address loss of confidence by the Force in any particular individual/s when serious concerns arise as to their suitability to perform a specific role or duty. b) Protect the integrity of the organisation, individuals and operations The policy is designed to ensure all police officers and police staff are fully aware of their respective and joint responsibilities regarding confidence issues. It is underpinned by procedures that detail the steps to be taken at all relevant stages.”
“The primary objective is to provide a framework that helps the Force deal with loss of confidence issues. Associated objectives are to: ……………………….. d) Establish an ethical framework for dealing with those situations where management action is necessary without overt criminal or misconduct proceedings and where the reason for the action is based on information or intelligence that raises serious concerns about an individual occupying a particular post or carrying out a particular role. e) Establish the need to apply fairness, objectivity and proportionality in the application of the procedure.”
“Confidential Or Source Sensitive Information 2.2.1 This will be considered as information or intelligence obtained legitimately but which legislation prohibits use of other than for intelligence purposes, or where disclosure would compromise and put at risk investigations, investigative tactics or individuals.” 12.1. Paragraph 3 sets out four “stages”
“3.3.1 If the case conference has made a referral to the Deputy Chief Constable, whichwill include its recommendations, the Area or Departmental Commander willmeet with the individual concerned to inform him or her of that referral. In accordance with normal practice, the individual will have the right to beaccompanied at that meeting by a friend or a member of a Trade Union or StaffAssociation. Minutes will be maintained of the meeting and retained with theconfidential file at the Anti Corruption Unit, Intelligence Cell. The meeting willaddress: ……. c) The recommended action plan, redeployment or other intervention for the individual, to be implemented with immediate effect d) The individual’s right to make a written submission to the Deputy Chief Constable within 14 days of the meeting with the Area / Departmental Commander. 3.3.2 Wherever possible the subject will be informed of the reasons for the recommended action plan, redeployment or other intervention. However, nothing will be disclosed which might: a) Impede the apprehension or prosecution of offenders; b) Frustrate any investigation, or the prevention and detection of crime; c) Damage national security; d) Breach any legislation; e) Compromise or endanger any operation or individual. 3.3.3 When disclosure is not appropriate, the individual will be told that the action recommended is being effected on the basis of source sensitive information for the operational needs of Merseyside Police and that further disclosure is not appropriate at the present time for those reasons above.”
“3.4.1 On receipt of a referral from a case conference, the Deputy Chief Constable shall consider: a) Whether there is sufficient evidence to support the recommendation. b) Any submission provided by the individual….. c) Whether the action plan, redeployment or other intervention recommended is necessary, proportionate and non-discriminatory. 3.4.2 The Deputy Chief Constable will then decide whether to implement the recommendations and will maintain a record of his or her decision, which will form part of the confidential file held at Anti Corruption Unit, Intelligence Cell. 3.4.3 In all cases the individual will subsequently be notified by the Area/Departmental Commander of the Deputy Chief Constable’s decision.” a) Impede the apprehension or prosecution of offenders; b) Frustrate any investigation, or the prevention and detection of crime; c) Damage national security; d) Breach any legislation; e) Compromise or endanger any operation or individual. a) Whether there is sufficient evidence to support the recommendation. b) Any submission provided by the individual….. c) Whether the action plan, redeployment or other intervention recommended is necessary, proportionate and non-discriminatory. 12.2. Relevant paragraphs of the Appeal process are: “4. Appeal Process 4.1 An individual can appeal against a decision made under the procedure. The application shall be in writing and made to the Chief Constable within 14 days of the individual being informed of the decision of the Deputy Chief Constable. The application must give the reasons and grounds for the appeal request. 4.2 The Chief Constable will appoint a Review Officer of the rank of Superintendent or above or equivalent Police staff to review the decision taking into account the material in the application. The Review Officer will have appropriate security clearance. 4.3 The review process will: a) Test the integrity of the process b) Test the strength and quality of the information and or intelligence on which the decision was based c) Ensure that the decision is proportionate, necessary and nondiscriminatory d) Consider other options, if appropriate….. 4.5.All reasonable steps should be taken to resolve appeals and the individual will be notified of the result within 21 days. The Chief Constable should consider whether the decision to subject an individual to a SCP was necessary, proportionate and non-discriminatory. The decision of the Chief Constable will be final…….” 13.1. Paragraph 6 of the SCP deals with “monitoring”
“6.5 Individuals subject to the procedure will be the subject of ongoing monitoring by a supervisor (Monitoring Officer) nominated by the Area or Departmental Commander. Progress against the action plan should be reviewed at least every six months. Any further development needs should be identified and addressed. 6.6 If the Monitoring Officer believes the action plan has been successfully completed, then the Area or Departmental Commander should notify the Head of the Anti Corruption Unit in writing. On receipt of the notification, the Head of the Anti Corruption Unit will present the case papers, together with any further relevant information and intelligence, to the ACC Personnel & Development who will reconvene the case conference to consider: a) Whether the risk of recurrence has reduced sufficiently. b) The basis of the original decision and its ongoing validity. c) The potential risk to colleagues, the public, or Police operations should the Service Confidence procedure be terminated. d) Alternative options as appropriate. e) Issues surrounding any requirement to disclose the process to the Crown Prosecution Service. 6.7 The case conference will again notify the Deputy Chief Constable of their recommendations and the individual will be personally informed of the decision of the Deputy Chief Constable.” 13. 2 Paragraph 7 of the SCP provides: “7. Responsibilities 7.1 The Responsibilities of the various parties involved in the delivery and operation of paragraphs 1 to 6.7 of this policy this policy are outlined below: …… h) Chief Constable will provide the final level of appeal against the decision….”
“Action plan completed… Constable Woods has achieved what was required of him under this action plan. He has worked extremely positively and delivered excellent results and has been graded as Exceptional in his PDR.”
“For hard work, dedication and commitment in targeting individuals involved in serious and organised crime. With your efforts you have assisted in making Stockbridge Village a safer place for those who live and work in the community.”
“Constable Woods I refer to your recent appeal pursuant to paragraph 4.2 Service Confidence Policy and Procedure. The Chief Constable appointed Detective Superintendent Cummings to carry out a review of the decision in accordance with paragraph 4.3 of the Policy. After due consideration by Detective Superintendent Cummings the Chief Constable has take the decision to dismiss the appeal. Unfortunately, no further correspondence into this stage of the process will be entered into. Reviews of this matter take place every six months and your case will be reviewed six months from the original date of the last review. You will be informed of the decision after the next review.”
“Inspector Gorton Further to your recent appeal pursuant to paragraph 4.2 Service Confidence Policy and Procedure. The Chief Constable appointed a senior detective to carry out a review in accordance with paragraph 4.3 of the Policy. After due consideration of the report submitted to him, the Chief Constable has take the decision to dismiss the appeal. In the light of this you will remain subject to the Service Confidence Policy. In accordance with the Policy, a further review will be conducted after six months and you will be notified of the decision.”
“159. It appears to me that the way forward is or should be along these lines. After the PII process described above it should be for the parties to consider their respective positions and then to make representations to the judge as to the appropriate way forward. Depending upon the submissions advanced, the judge may wish to consider the three possibilities to which I have referred. They are (1) that the matter should proceed in the traditional way with the PII material simply being treated as both undisclosable and inadmissible and the trial proceeding on the basis of the disclosed and admissible evidence; (2) that the action should be stayed or struck out on the basis that through neither party's fault a fair trial is not possible; and (3) that there should be some form of closed procedure, involving special advocates, along the lines suggested by the appellants, but subject to the exigencies of the particular case.”
“In my judgment there is a clear line between disciplinary issues where an officer has the right to public law safeguards such as fairness, and operational or management decisions where the police are entitled to run their own affairs without the intervention of the courts.”
“On the issue of reviewability, the Board has some doubt as to the correctness of the Court of Appeal's conclusion in Tucker that the DDG's decision was altogether beyond the Court's supervisory jurisdiction….”
“If the Defendant is correct in its interpretation of regulation A19, the Defendant is entitled to take many features into account when deciding whether or not to retain the Claimant within the Scheme which are wholly unrelated to the Claimant's personal performance.”– In the present case there are no overarching features which are unrelated to Cs’ personal circumstances. (iii) Hodgson involved the exercise of a statutory power, unlike in Tucker. That power was specifically regulationA19 of the Police Pension Regulations 1987 . There is no direct exercise of a statutory power in the present case which could make it in any way comparable to Hodgson. 28.3. There are two material factors in relation to the SCP. The first is that, as demonstrated in the present cases, it has the capacity to be far from temporary. This is unlike the one-off decision in Tucker. The second is that D accepted in submissions that, although there is no formal bar as a result of being subject to the SCP, it is likely to be a significant disadvantage to anybody applying for promotion. I regard both of these as factors of significance in favour of there being sufficient public law element. I shall deal now with D’s submissions to the contrary: (i) the fact that promotion may be affected does not turn a deployment decision from being operational into being a decision amenable to judicial review. It may be that is correct. However it is a factor to be considered in the circumstances of the effects of the SCP generally. (ii) We do not know what the promotion prospects of these Cs were and do not know if they were harmed. Even if this is factually correct, Cs did not accept this. it does not assist in determining as a matter of principle whether the SCP is subject to judicial review. (iii) In the cases of Simpson and Hodgson there were other factors. I accept this. (iv) In Tucker there was a similar disadvantage/blight on Mr Tucker’s career. D relied upon the fact that the word “integrity” was used in a letter to Mr Tucker See judgment paragraph 9 . However it is not clear from the Tucker decision whether this meant integrity in the sense of honesty. There is substantial reference to “management performance” or “managerial issues”
“Application and Scope This policy applies to all members of the wider police family within Merseyside Police Force….”
“There are some cases that fall at or near the boundary where the court rather than saying the claim is not amenable to judicial review has expressed a reluctance to intervene in the absence of very exceptional circumstances. See e.g. R v British Broadcasting Corporation ex parte Lavelle[1983] 1All ER 241 .”
“All this, it seems to me, adds up to the fact that this is a case that falls into the 'sensitive intelligence information' category. In this type of case the duty of fairness requires no more than that the decision-maker acts honestly and without bias or caprice….”