Fiona Barton QC secures helpful guidance from the High Court on the vetting of independent contractors

Fiona Barton QC represented the Chief Constable in R (A) v Chief Constable of C Constabulary [2014] EWHC 216 (Admin)

The claimant, a sole trader, had provided breakdown and recovery services to B and C Constabularies for many years. In 2010 he sought security clearance in order that he could continue to carry out the role. Clearance was refused and in reliance upon a contractual term, no reasons were given for the refusal. The claimant applied for judicial review of that decision. Kenneth Parker J concluded that the relationship between the claimant and the police had a sufficient public law element to require reasons to be given, notwithstanding the contractual term. He went on to set out (obiter) what he considered to be the appropriate test to be applied when the police vet suppliers and contractors [2012] EWHC 2141 (Admin). The police made the decision again and provided reasons in accordance with the guidance given by Kenneth Parker J. The claimant, who was likely to suffer significant financial loss as a result, sought to judicially review the decision.

The Court concluded that the correct test was a two stage process, as follows:

a)      Are there reasonable grounds for suspecting that X is or has been involved in criminal activity?

b)      If so, is it appropriate, in all the circumstances, to refuse X security clearance?

The first stage of the test avoided, what the court considered to be, an unhelpful debate between innocent association and actual involvement at opposite ends of the scale. It was based upon the well-established test set out in Hussein v Chong Fook Kam [1970] AC 942. The second stage of the test is designed to reflect of the language of the National Vetting Policy and achieve proportionality.

The court expressly concluded that the decision may be based upon intelligence rather than evidence but in such circumstances the decision maker must be very careful before reaching a conclusion adverse to the applicant.

In reaching a decision, the factors to be taken into account will differ from cases to case but will include the gravity, cogency and age of the allegations. Whether there is a need for further investigation into the allegations will depend upon the facts, including available resources. The reputation of the force might be a relevant consideration depending upon the nature of the role in respect of which security clearance was sought. The interests of the applicant may also be relevant but the Court concluded that this element of the vetting process should not be over-stated.

It is also important to note that in the course of the proceedings the Court approved the use of gisted intelligence in giving reasons and recognised the impact of public interest immunity in vetting decisions. There cannot be a blanket refusal to give reasons, but a properly considered response where information covered by  public interest immunity is withheld  will be justified.

The full text of the judgment can be read here.

Fiona Barton was recommended for Police Law in Chambers UK 2014, which comments “She is trusted with very sensitive cases and provides no-nonsense advice. Her understanding of the law in this area is phenomenal.”