Case No: CO/17305/2013
Neutral Citation Number: [2014] EWHC 2784 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Manchester Civil Justice Centre
1 Bridge Street West, Manchester M60 9DJ

Date: 07/08/2014

Before:

MR JUSTICE STEWART
- - - - - - - - - - - - - - - - - - - - -
Between :

	The Queen on the application of David Woods (1) and Mark Gordon (2)	Claimant	
	- and -		
	The Chief Constable of Merseyside Police	Defendant	

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Mr Samuel Green (instructed by Slater & Gordon) for the Claimant
Mr John De Bono QC (instructed by Legal Services Department, Merseyside Police) for the Defendant

Hearing dates: 29 & 30 July 2014
- - - - - - - - - - - - - - - - - - - - -
Judgment
Mr Justice Stewart: 
Introduction
1.	In this judgment I shall refer to Mr Woods as C1, Mr Gorton as C2 and the Chief Constable of Merseyside Police as D. 
2.1	Michael Fordham Q.C. sitting as a Deputy High Court Judge granted permission to apply for judicial review.  Apart from giving permission and certain standard type directions Mr Fordham ordered:
“2. The Defendant to prepare a witness statement in two parts.  Part A to be open, giving such reasons as the Defendant is willing and able to give to explain the Defendant’s position in respect of each Claimant.  Part B to be closed, setting out any sensitive material, and in its nature, together with any reasons which he is not willing or able to give to the Claimants or in public.  Part B to be accompanied by a Public Interest Immunity Certificate if justified.  Part A to be filed and served on the Claimants by 4pm on 30 April 2014.  Part B to be filed by the same date, but not served.
3….
4. There be a hearing before a High Court Judge for consideration of:
(a) The statements and PII certificate referred to in paragraph 2 above;
(b) Any consequential directions;
(c) Any request by the parties or any of them …for material to be considered by the court at the final hearing in such a way that it should become public and/or consideration to be given to any other “closed” process…” 
2.2	D filed and served a witness statement of Mr John McKeon who is a Detective Chief Inspector with D and is head of the Anti-Corruption Unit.  That statement is dated 28 April 2014.  I attach it as Appendix A to this judgment (absent the exhibits).  This is because it sets out all that is in the public domain in relation to why Cs are subject to the Service Confidence Procedure (“SCP”).  There was also a Part B which was a closed part of Mr McKeon’s statement and was subject to a claim for public interest immunity.  It was supported by a public interest immunity certificate signed by the Chief Constable.  I have not seen that document as a result of the hearing before Blair J on 22 May 2014.  
2.3	Blair J’s Order has not, as yet, been drawn up.  Counsel are to liaise with his clerk so as to regularise this.
3.	The claim concerns D’s SCP.  The decisions sought to be challenged are the refusal of both Cs’ appeal against the continued imposition of the SCP against them.  C1’s appeal was communicated to him in writing on 9 October 2013; C2’s appeal was communicated to him in writing on 23 October 2013.  
4.	D’s case is:
(a)	The decisions sought to be challenged are operational and not properly subject to judicial review.  D relies primarily on the decision of the court of appeal in R (Tucker) v National Crime Squad [2003] EWCA Civ. 57.
(b)	In any event the substantive challenge is misconceived. 
5.	Cs’ case is brought on the grounds of Wednesbury unreasonableness/irrationality and unfairness.  
The SCP
6.	There is a statutory misconduct regime for police officers.  At the time relevant to Cs, this was contained in the Police (Conduct) Regulations 2008 (“The 2008 Regulations”).  They are made under the Police Act 1996.  The regime is in essence a full and open adversarial process.  Police forces in general, and D in particular, have SCPs.  At the time Cs were made the subject of an SCP (2011) the SCP in force was dated June 2009.  This has now been superseded by an SCP dated May 2012.  It is the latter document to which Cs are at present subject.  I am told that D’s SCP is typical of that in force throughout the country.
7.	The SCP begins with a “Statement” which reads: 
“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.”
8.	The “Aims” of the Policy are then set out:
“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.”
9.	Following this is a heading “Objectives”.  Particularly material is the following:
“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.”
10.	Paragraph 1 of the SCP is headed “Context”.  A number of relevant paragraphs are contained in this section:
“1.1 Whenever any member of staff comes into possession of any information or material that raises concerns about the integrity of any member of the Force, they are under a duty to report it.  Mechanisms for reporting are covered in the Doing the Right Thing  - Confidential Reporting Policy. 
1.2 The Anti Corruption Unit will be responsible for evaluating the information/material and ensuring that it is correctly investigated.  Where appropriate it will be notified to the Assistant Chief Constable, Personnel & Development who may appoint a Senior Investigating Officer.  The Assistant Chief Constable will review the investigation of the matter at regular intervals. Conventional criminal or disciplinary outcomes will be sought whenever appropriate. However, if at any stage of the investigation it becomes apparent that criminal or misconduct proceedings are not possible or appropriate then the Assistant Chief Constable will consider the invocation of this Service Confidence Procedure.
1.3 It must be emphasised that criminal or misconduct procedures will always remain the preferred course of action, and only when they prove to be unsuitable will this Service Confidence procedure be invoked.
1.4 Concerns about achieving a balance between the needs of Merseyside Police and the rights of the individual should be addressed by:
(a) Adopting an open and transparent system within legal constraints;
(b) Allowing individuals to be represented and the adoption of a reviews process;
(c) Maintaining a clear position that the use of the procedure is about the protection of staff and Merseyside Police by management action and not misconduct procedures or sanction.
1.5 There will be occasions when verifiable confidential or source-sensitive material comes to the notice of investigators, which brings into question the suitability of a member of staff to continue to perform their current role or duties. When the circumstances do not warrant criminal or misconduct proceedings yet are such as to raise serious concerns that require immediate management action both for the protection of individuals and the Force, individuals will be considered for transfer to a less vulnerable post.
1.6 The test of whether there are “Serious Concerns” about an individual’s integrity will be based on an assessment of all the intelligence and evidence, including source sensitive material. The evidence must establish that it is more probable than not that the individual’s integrity is in question.  Due regard will be paid to the principles of fairness as outlined above.  This test is to be applied at all stages of the procedure.
…………
1.8 Merseyside Police acknowledges that this procedure may impinge upon aspects of the Human Rights Act1998, in particular:
•	Article 6 - Right to a fair trial.
•	Article 8 - Respect for private and family life…..
1.9 Further legal basis for this procedure is provided by:
•	Police (Conduct) Regulations 2004
•	Police Regulations 2003
•	Regulation of Investigatory Powers Act 2000 (RIPA)
•	Police Conduct Regulations 2008
The Service Confidence Procedure is not a trial.”
11.	Paragraph 2 is a Definitions section.  It gives a guide as to “Serious Concerns” and then provides:
“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”.  Stage 1 is Referral, Stage 2 is Case Conference, Stage 3 is Informing the Subject and Stage 4 is the Decision Making Process.  Under Stage 3 is the following:
“3.3.1 If the case conference has made a referral to the Deputy Chief Constable, which will include its recommendations, the Area or Departmental Commander will meet with the individual concerned to inform him or her of that referral.  In accordance with normal practice, the individual will have the right to be accompanied at that meeting by a friend or a member of a Trade Union or Staff Association. Minutes will be maintained of the meeting and retained with the confidential file at the Anti Corruption Unit, Intelligence Cell. The meeting will address:  
…….
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.”
	   Stage 4, the Decision Making Process provides:
“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.”
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”.  It contains these provisions:
“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….”

The Factual Background: C1 and C2
14.	C1 is a police constable.  He was made the subject of an SCP in April 2011.  D told C1 that serious concerns over his integrity arose as a result of an anti corruption investigation into the Matrix Disruption team between 2010 and 2012.  C1 was provided with an Action Plan in order to enable him to regain the confidence of D.  The aim was for final restoration of confidence by 1st April 2012, with regular three monthly reviews in that 12-month period.  D has not lifted the SCP despite the fact that C1 has met the requirements of the Action Plan.  In a document entitled “Third (Final) Interim Review” dated 13 June 2012 it is stated:
“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.”
Nevertheless C1 was told by Chief Inspector Wellens that he was not going to have the SCP lifted, and no explanation was given.
C1 says that whilst he has been subject to the SCP, he has continued in front line policing duties including executing drug warrants and targeting OCG (Organised Crime Group) members.  He received a letter of commendation dated 23rd April 2012 from Detective Chief Superintendent Paul Richardson praising him for “professionalism and enthusiasm”, and in June 2013 he received a Certificate of Merit stating: 
“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.”
15.	C2 is an Inspector.  He was made the subject of an SCP in August 2011 with the Action Plan stating the aim of aim of final restoration of confidence by 1st August 2012.   He was not given any explanation.  During the period of the SCP C2 says (among other things):
(a)	That he is a qualified structured interviewer and was asked to assist in sitting on panels to conduct interviews for prospective candidates to become police officers.  On this occasion he declined purely because it would look inappropriate to have a person in whom D lacks confidence to be deciding whether one individual was more suitable than another to become a police officer. 
(b)	He has attained a Bronze Commander public order qualification, making him one of a pool of about 20 staff of D who can be called upon to take the lead in public order situations.  This can involve high profile events and is subject to significant media exposure.
(c)	He is a qualified police search advisor and re-qualified as such in March 2012.  As a result of which he received a letter from the NPIC dated 29 March 2012.  This was endorsed by ACC Ward on 10 April 2012 with congratulations.
(d)	He is also a nationally qualified hostage negotiator, and has recently been called out to numerous incidents, some of which have been sensitive and secret.  On one occasion he was contacted at home by ACC Cooke who thanked him for his flexibility and sensitivity whilst dealing with a high profile international incident. 
(e)	However when C2 enquired about a vacancy within the Force Operations Department, he was told he could not apply because he was subject to the SCP.  He was also informed he could not move to a busier and more demanding area of the Merseyside Force, such as Liverpool North, for the same reasons.  
Neither Claimant has been told why he has been found to be of questionable integrity.  
The Decisions Challenged
16.	On 9 October 2013 a memorandum was sent to C1 as follows:
“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.”
17.	On 24 October 2013 the following memorandum was sent to C2:
“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.”
18.	It is to be noted that no reasons were given in either memorandum.
The Public Interest Immunity Order of Blair J
19.	I have an approved transcript of the decision of Blair J made on 22 May 2014.  In paragraphs 29 – 32 the learned judge:
(i)	Did not accept Cs’ submission that unless a duty of candour applies so that the material has to be disclosed to Cs, the correct course was for D simply not to disclose the information at all so that a PII application is unnecessary.
(ii)	Expressly rejected Cs’ submission on the basis that it would have the effect that reasons for placing officers under the SCP procedure would simply drop out of the picture and continued (paragraph 29(5)) “They submit that no further reference could be made to such reasons.  However this does not take account of the fact that such reasons exist and are reasons for which the Defendant claims public interest immunity.  The question is whether the material is properly within that immunity.” 
(iii)	Expressed himself (paragraph 32) as “satisfied that the material set out in Part B of the statement of DCI McKeon is subject to public interest immunity and is therefore not to be disclosed.”
20.	Cs now submit that D should not be able to rely on the fact that the material exists and he cannot deploy it for reasons of PII.  I do not accept this for the reason which Blair J himself gave.  As D submits, the hearing before Blair J was, in accordance with an agreed note of the judgment of Mr Fordham QC, an opportunity to balance a desire for (potential) scrutiny of the Defendant as a public body on the one hand with, on the other, a recognition that there may be cogent operational/intelligence reasons for the decision.  C relied upon a statement of Lord Clarke in Al Rawi v The Security Service and others.  At paragraph 159 of the judgment of the Supreme Court Lord Clarke said:
“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.”
Cs submitted that the only realistic possibility in the present case is number (1).  Lord Clarke was dealing with the situation in the context of the type of process involved in the Al Rawi case.  This was a claim for damages.  The importance of this is alluded to by the then Master of the Rolls, Lord Neuberger in the Court of Appeal judgment at paragraphs 32 and 33.  Indeed, he envisaged circumstances in which the court would go further than just take account of the PII decision that material exists which a party cannot deploy for reasons of PII.  He said it may be justifiable in certain circumstances for the court to see a document which is not seen by the parties to the proceedings.  It is not suggested by D that the present case is one in that category.  Nevertheless it is one where, to quote the Master of the Rolls, “a wider public interest is engaged.”  Therefore it would be wrong for me to discount the fact that D cannot disclose his reasons because of PII considerations.
The Tucker Case
21.	Mr Tucker was a detective inspector seconded for five years to the National Crime Squad (NCS).  Thereafter several officers seconded to the NCS were arrested on suspicion of drug related offences and two other officers seconded to the squad had their secondments terminated and were returned to their own force for disciplinary investigations.  Mr Tucker’s secondment was also summarily terminated and he was returned to his own force but without any disciplinary implications.  He was just told that Deputy Director General of the NCS had, as a result of information provided to him, lost confidence in his management performance, but the lack of confidence was not related to the criminal investigation.  The Court of Appeal decided that the decision of the Deputy Director General was not amenable to judicial review since it did not have sufficient public law element.  The Court of Appeal pointed out that the boundary between public and private law is not capable of precise definition and the decision as to whether there is sufficient public law elements to justify availability of judicial review is often “as much a matter of feel, as deciding whether any particular criteria are met.”   Relying on the decision of Pitchford J (as he then was) in R(Hopley) v Liverpool Health Authority the court set out three things to be identified when considering whether a public body with statutory powers was exercising a public function amenable to judicial review or a private function that was not.  These are:
(a)	Whether the Defendant was a public body exercising statutory powers.
(b)	Whether the function being performed in exercise of those powers was a private or public one.
(c)	Whether the defendant was performing a public duty owed to the Claimant in the particular circumstances under consideration.
22.	Scott Baker LJ said:
“Applying those criteria…to the present case it seems to me clear that the third criterion was not met. The Deputy Director General in sending the Appellant back to his force was not performing a public duty owed to him. The decision taken in relation to the Appellant was specific to him. Other officers were dealt with differently. Some were arrested; some were sent back to be disciplined; one was retained with different duties. But the Appellant was simply sent back. It was a decision tailor-made to him. It was taken because of perceived deficiencies in his skills and conduct as a National Crime Squad officer. It was an operational decision taken because it was decided that he fell short of the particular requirements that were necessary to work in the National Crime Squad….
26. Mr McGuinness, for the Director General, submits that while no single test or consideration dictates amenability to judicial review there are three striking features about the present case which taken together put it outwith the public law jurisdiction. These are: 
i) The nature of the relationship between the National Crime Squad and an officer seconded to it;
ii) The National Conditions of Service;
iii) The operational rather than disciplinary nature of the decision.
I agree each of these features is relevant and that each falls to be considered in the context of the source of the power being exercised by the Director General, the nature of his decision and the rights of the Appellant that are affected….”
23.	In dealing with these three matters the Court of Appeal noted in relation to i) that a police officer is in a different position from other employees.  On the facts of that case the officer’s secondment to the NCS was temporary and disciplinary procedures were a matter for his own force.  As regards to ii) Mr Tucker had applied voluntarily for his secondment.  “Crucially, it was an express condition that, exceptionally, the Director General could terminate his secondment without notice”; in any event the secondment was terminable on one month’s notice either way.  “Thus putting it at its highest the applicant’s complaint can only relate to the summary nature of the termination.”  The Director General was exercising a power to which the applicant had signed up and the decision involved no change in the applicant’s status as a police officer, no financial loss to him and no disciplinary allegation against him.  As to iii) the Court of Appeal said that there was no disciplinary element to the decision in Mr Tucker’s case.  It was “an entirely operational decision…involving deployment of staff or running the force. They are decisions that relate to the individual officer personally and have no public element.”  Finally at paragraph 35 Scott Baker LJ said:
“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.”
Is There Sufficient Public Law Element?
24.	I remind myself that in Tucker the court said that this question is decided often as much as a matter of feel rather than whether any particular criteria are met.  D is a public body and Cs have no private law remedy.  I have to focus on the third question elicited from the Hopley decision, namely whether D was performing a public duty owed to Cs in the particular circumstances under consideration.  I have come to the conclusion that D was.  After a preliminary point in the next paragraph, I shall consider each of the three factors referred to in paragraph 26 of Tucker.
25.	Cs rely on an obiter dictum of the Judicial Committee of the Privy Council in Manning v Ramjohn in which Lord Brown said:
“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….”
From this Cs submit that this court should not be slow to distinguish it where the case before it plainly has more compelling public law features.  As a matter of precedent, I am bound by the reasoning in Tucker.  Either it is properly distinguishable or it is not.
26.	The nature of the relationship between Cs and D is such that Cs are police officers and are therefore in a different position from other employees.  Further, in the context of the present case, it is relevant that, as police officers, they know that they have to operate to some extent in a world of intelligence, informers and protected and sensitive information.  Police officers’ discipline is governed by statutory disciplinary procedures amenable to judicial review.  This is a factor upon which D can rely. 
27.	As to conditions of service, there are factual distinctions between Tucker and the present case.  Cs did not voluntarily apply for any temporary secondment which could be terminated without notice/on one month’s notice.  This is a factor which weighs in Cs’ favour.  
28.	As to the nature of the decisions made:
28.1   Cs submits that the SCP is quasi disciplinary because it is to be used where criminal or misconduct proceedings are not possible or appropriate.  I disagree with this submission.  I do not accept that there is any quasi disciplinary element to the SCP.  It is made absolutely clear that “the use of the procedure is about the protection of staff and Merseyside Police by management action and not misconduct procedures or sanction.”
28.2	Cs also submit that the decision was made on the basis of a policy and was not a private decision relating just to them personally.  There are competing factors here.  Ultimately, I accept Cs’ submissions. 
Cs rely on R(Simpson) v Chief Constable of Greater Manchester Police and R(Hodgson) v South Wales Police Authority.  However in Simpson there was a freeze on the promotion system which affected all the officers concerned and which amounted to a change in status for all of them.  In Hodgson, Tucker was distinguished on three bases.
(i)	Mr Hodgson was being dismissed in the sense that he was being forced to retire – this was clearly a significant change in status to say the least.  Such a change in status does not apply to Cs.
(ii)	The decision in Hodgson was not personal to the Claimant in that it involved the application of general policy to a number of police officers within the scheme.  Wyn Williams J said: “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 regulation A19 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, 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.  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”.  Nevertheless, even if integrity was at issue in Mr Tucker’s case, there is no explicit recognition that Mr Tucker’s promotion prospects would be harmed by the operational decision made in respect of him.
(v)	D relied upon the case of R (Morgan) v Chief Constable of South Wales Police.  This was a decision of Scott Baker J (as he then was).  He returned to it in Tucker at paragraphs 34 and 35.  Mr Morgan’s “white ticket” status, which meant that he was in a pool awaiting promotion was removed by the Chief Constable.  It had been argued that this was a disciplinary matter and the judge decided it was not.  As Scott Baker LJ recognised “the jurisdiction issue was not argued”.   He had noted in Morgan  “that the decision under challenge was one of a kind with which the courts in the most exceptional circumstance, if ever, interfere.”  In my judgment the decision not to promote is again a factor in the basket of factors which I must consider as a whole.  In any event, Morgan left open whether interference was permissible in exceptional circumstances.  
29.	The SCP appears to have been created under powers conferred on the Chief Constable by statute, namely section 2(3) of the Police Reform and Social Responsibility Act 2011.  Cs rely upon this and/or the asserted fourfold statutory underpinning whereas they say Tucker was based on a non statutory term of secondment.  Section 2(3) provides “A police force, and the civilian staff of a police force, are under the direction and control of the Chief Constable of the force.”  The fact that there is a statutory basis for the power to create the SCP does not assist any determination, since there must be some background enabling power for whatever is done by Chief Constables or other senior police officers.  
30.1   Finally Cs rely on a number of parts of the SCP.  In particular they submit that the aimed-for fairness of the procedure, the balance of probabilities test which indicates judgment not discretion and the potential impingement of the procedure upon aspects of the Human Rights Act 1998 together with envisaging the giving of reasons for the imposition of the SCP and the rejection of a review/appeal – all demonstrate that the SCP does have a sufficient element of public law to be subject to judicial review.  In further support of this submission Cs rely on the SCP statement: 
“Application and Scope
This policy applies to all members of the wider police family within Merseyside Police Force….”
30.2	D’s first submission was that aiming for a fair procedure does not change the essential characteristic of what is, when all is said and done, an operational decision.  It was said that, if trying to set out a system to reduce the risk of unfairness and improve operational effectiveness and decision making were to render what would be a purely operational matter into something which is amenable to public law challenge, then that would be a perverse incentive for police forces to withdraw the policies and to leave SCP’s entirely at the discretion of senior officers.   This is not an answer to the point, since it is not the Policy itself which is relevant but the fact that the Chief Constable is dealing with difficult issues in an area which calls for a policy which is as fair as possible.  It would in my judgment be impermissible for the Chief Constable to leave SCPs entirely at the discretion of senior officers.
30.3	In argument, D accepted that the point that there should be a policy is a factor in favour of Cs’ case.  Nevertheless, D contended that it was not sufficient to endow the SCP decisions with sufficient public law element.  
31.	Taking all the above factors into account I consider the decisions in the present case to make and keep officers the subject of an SCP are ones which do have sufficient public law element.  They are not in my judgment deployment/operational decisions and no more than that.  
Judicial Review: the level of interference
32.	On the premise that judicial review is available, the question that arises is the court’s approach and the level of scrutiny/interference permissible.  
33.	In my judgment the present case, where there are reasons which have been the subject of a PII ruling, is in the category referred to by Scott Baker LJ in Tucker where he said:
“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.”
34.   Further, in Tucker the Court of Appeal considered the issue of fairness         beginning at paragraph 39.  At paragraph 42 the court cited Geoffrey Lane LJ when he said that what is fair cannot be decided in a vacuum.  In Tucker, as here, there were “constraints on the information that can reasonably be given for decisions”.  There, as here, sensitive intelligence information was at the heart of the reasons.  Against that backdrop the court said :
“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….”
35.	The circumstances which lead to a decision to invoke the SCP, namely the sensitivity of the relevant intelligence, rather than for example to institute misconduct proceedings, are those which require that the court not intervene in the absence of very exceptional circumstances.  There would be no need to invoke the SCP if there were no prejudice to the organisation or any other party from public scrutiny of the reasoning which underpins the decisions the subject of Cs’ challenge.  
36.	Cs accepted that the permissible intensity of judicial scrutiny varies according to the circumstances.   They also accepted that the degree of scrutiny in the present case would not be as intense as in some circumstances.  They submitted that, to the extent that there is information in the public domain then the court can look at a broader test for judicial review than “that the decision maker acts honestly and without bias or caprice.”  However this last point was substantially based upon Cs’ submissions as to how I should approach the decision of Blair J in respect of the PII material.  This I have rejected.  In effect D is “hamstrung” from giving a properly reasoned justification of the decisions.  In my judgment there would have to be clear evidence of dishonesty or bias or caprice.  By “clear” the court would have to be satisfied that there could be no possible reason which might justify the decisions taken.  This is a very high threshold, but one which seems to me to be appropriate.  
Wednesbury Unreasonableness/Irrationality and Unfairness
37.	Cs allege that even on the information they have it is patent that the decisions are unreasonable/irrational/unfair and must be capricious.  
38.	Cs’ case is that the SCP remains despite the fact that they have conducted sensitive front line functions since its imposition.  It is said that it cannot be right in such circumstances that D is unable formally to confirm that confidence in them has been restored.  I do not accept that this means there must be an inconsistency of approach by D.  It is quite possible that there are reasons why the SCP remains, but the continuing loss of confidence does not inhibit their operational deployment in certain roles which require substantial trust.  In C2’s case there is evidence, which I have summarised above, that he has been inhibited from carrying out certain roles.  There is no patent and unanswerable illogicality/irrationality/unfairness in D’s decisions.  It is certainly not possible to say that this makes the decisions capricious.  It may well be the case, as D submits, that the roles they have been given indicate that great care has been taken to make use of their abilities to the greatest extent possible consistent with D’s concerns.
39.	C1 further relies on the fact that he has met his obligations under the Action Plan and yet is still subject to the SCP.  He submits that D either acted irrationally in making him subject to the Action Plan or in Mr McKeon’s explanation as to why, despite having done what was required of him under the Action Plan, the SCP remains.  Criticism is made of paragraph 11 of Mr McKeon’s statement where he says “Essentially whilst the officers have been the subject of action plans, ‘integrity’ is not something that can be action planned.”  It is submitted that the only realistic alternative to irrationality is that this indicates cynicism since, if integrity cannot be action planned, why make an officer subject to an action plan?  
40.	I remind myself that para 3.4.1 of the SCP requires the Deputy Chief Constable to consider “whether the action plan…recommended is necessary, proportionate and non discriminatory.”  As to C1’s Action Plan it has “SMART” criteria The aim was to regain the confidence of D with a review every three months aimed at final restoration of confidence by 1 April 2012.  I consider that the submission overstates the case.  The position is not so logically stark that there must be the irrationality/caprice alleged or cynicism.  In circumstances where D is hamstrung from being unable to provide reasons for the loss of confidence the court should not, unless driven to do so, decide that there must be capricious unreasonableness/irrationality/unfairness.  Action Plans are referred to in the SCP as an example of “protection measures…put into place…to address issues.”  It may be that the “upbeat” language in the Action Plan may have given rise to C1 assuming that if he complied with it then he would regain D’s confidence.  One can understand why Mr McKeon says that integrity is not something that can be action planned; one can also understand C1 thinking that if he has been action planned and he has successfully completed it then that should restore confidence.  Yet this does not naturally follow.  It may well be difficult to construct an Action Plan which would, without more, lead to restoration of confidence.  On the other hand, not having an Action Plan may send out a signal to an individual officer that there is nothing that officer could do so as to restore confidence or to take realistic steps along that route.  In the final analysis, this is a difficult area for both an officer and D given that D cannot disclose reasons or sources of information.  What it does not mean is that D’s decision was flawed by reason of the challenges which are made.  
Summary
41.	In summary:  
(i)	The SCP is amenable to judicial review but, in circumstances where reasons for it are subject to a decision that they cannot be disclosed due to PII, then the threshold for Judicial interference is very high.
(ii)	In the circumstances of these cases, that threshold is not reached.
(iii)	Therefore the claims are dismissed.

APPENDIX A
IN THE HIGH COURT OF JUSTICE 	Case No. CO/17305/2013
QUEEN’S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
ADMINISTRATIVE COURT
BETWEEN
THE QUEEN ON THE APPLICATION OF

DAVID WOODS (1)
MARK GORTON (2)
Claimants
and

CHIEF CONSTABLE OF MERSEYSIDE POLICE
Defendant

------------------------------------------------------------------------------------
WITNESS STATEMENT OF JOHN MCKEON PART A 
-------------------------------------------------------------------------------------

I John Michael McKeon of the Merseyside Police will say as follows;-
Introduction
1.	I am Detective Chief Inspector John Michael McKeon of the Merseyside Police.  I am head of the Anti Corruption Unit.  

2.	I was posted to the Anti Corruption Unit in 2008 as a Detective Inspector.  In 2011 I became a temporary Detective Chief Inspector and I was confirmed in the rank in 2013.

3.	The Anti Corruption Unit is part of the Professional Standards Department. It is responsible for the investigation of Police Officers within Merseyside Police who are suspected of corruption.  It undertakes the most serious investigations on behalf of the force and all of the investigations carried out by the unit start as criminal investigations.

4.	I make this statement pursuant to paragraph 2 of the order of Michael Fordham Q.C sitting as a High Court Judge on 19 March 2014.  

5.	The statement is in two parts, part A which appears below and is an ‘open statement’ and part B which is in a separate document and is subject to public interest immunity.
Part A 

Executive Summary

6.	Constable Woods and Inspector Gorton are currently subject to Merseyside Police’s Service Confidence Policy. They have been subject to the policy since 2011. The precise dates are set out below. 

7.	They are subject to the Policy due as a result of an operation by the force’s Anti Corruption Unit, this was known as operation 380.

8.	That which can be told to the officers as to their reasons for being on the Policy has been told to them and is set out below.

9.	There are other matters that cannot be told to the officers as they are subject to Public Interest Immunity, these are set out in part B of this statement. 

10.	The fact that the officers are subject to the policy is reviewed every 6 months and the officers have a right of appeal, which they have exercised.

11.	The factors set out below and in part B of this statement mean that the organisation has lost confidence in the officers, the evidence that relates to these officers cannot be used in discipline proceedings for reasons of law.  Essentially whilst the officers have been the subject of action plans, ‘integrity’ is not something that can be action planned. And whilst the matter will be reviewed at 6 monthly intervals at present it is the contention of the Defendant that the officers should remain the subject of the Service Confidence Policy 

Operation 380

12.	The investigation involving the applications was known as operation 380, i.e. it was the 380th matter that had been referred to the Anti Corruption Unit in 2010. 

13.	On 17 November 2010 a disclosure was made by ethical officer (s) (further details of whom I decline to disclose on the grounds of Public Interest Immunity) This disclosure led the Anti Corruption Unit to suspect that officers may be involved in criminal activity.  Specifically; theft, misconduct in public office, corruption and supply of controlled drugs. 

14.	As at 17 November 2010 the suspicion was in relation to 3 Constables and 1 Sergeant only. None of whom are the Claimants in this matter.  

15.	Such was the seriousness of the investigation against the Sergeant, that it was necessary to move him from the Matrix Disruption Unit with immediate effect.

16.	It was also the intention of the anti corruption unit to monitor the Sergeant’s vehicle in order to further the investigation.  Whilst I know that certainly the Second Claimant (Gorton)  is aware of the tactic to be used it remains a covert police tactic and as such I do not further describe it here on the grounds of public interest immunity.  

17.	The Second Claimant (Gorton) was at all material times, the Line Manager of the relevant Sergeant.  As such he was taken into the confidence of the Matrix Command Team, Ch Supt Doherty, Supt Davies, and CI Brew and the Anti Corruption unit. 

18.	On 17 November 2010, following a series of meetings between the command team and the Anti Corruption Unit, the Second Claimant (Gorton) was told that allegations had been made against the Sergeant, namely that the Sergeant had been accused of dishonesty and the allegation was considered such that it was necessary to move the Sergeant from the Matrix Unit with almost immediate effect under the Service Confidence Policy.

19.	At that time the Sergeant was out of Force on a course, he was due to return on the Friday 19 November 2010.  The Second Claimant (Gorton) was told that the officer was going to be moved under the service confidence policy on 22 November 2010 and that the Force was going to take steps to monitor the officers vehicle as such there was a plan to deploy the covert devices. Further details of which I decline to disclose on the grounds of public interest immunity.

20.	On Wednesday or Thursday 17 or 18 November 2010 the Sergeant and the Second Claimant (Gorton) spoke by telephone. The Sergeant returned from the course early, on the Thursday which meant that the covert tactics could not be deployed. The Second Claimant (Gorton) advised the Command team that the Sergeant was returning from the course early. 

21.	On 22 November 2010 the Second Claimant (Gorton) attended at a meeting with the Sergeant when he was told that he was being moved from the Matrix team to Wirral BCU under the Service Confidence Policy. The Second Claimant (Gorton) knew this in advance and was asked to be present so that he could facilitate the Sergeant clearing his locker and his personal items from the Matrix offices. The Sergeant was upset by the fact that he was being moved his locker was not cleared on that date.  It was facilitated by the Second Claimant (Gorton) after that date.  

22.	 The investigation in relation to the officers progressed, as a result of the matters described above the Second Claimant (Gorton) and others were also included in the operation.  

23.	The first Claimant (Woods)  was also included in the operation at this stage. The reasons for his inclusion are subject to public interest immunity and will be detailed in part B of the statement. 

24.	On 26 November 2010 the Second Claimant (Gorton) was observed meeting with the Sergeant, the officers met at one location and then the Second Claimant followed the Sergeant in his car to a Second location where a meeting occurred. On this date the Second Claimant was on a rest day. 

25.	The methods used to investigate the criminal offences disclosed included, but were not limited to surveillance, authorised pursuant to the Regulation of Investigatory Powers Act 2000, and monitoring of the business phones of the officers concerned.  These were monitored under the Lawful Business Monitoring Policy and as a result, by the end of March 2011, the investigation team had reasonable grounds to suspect that the Second Claimant (Gorton)  and 8 others may have been responsible for various criminal/misconduct offences as outlined above.  

26.	In relation to the First Claimant (Woods), for reasons of law there was no material available to the anti corruption unit that could be used in evidence in either criminal or misconduct proceedings at that time and as such pending the outcome of the interviews with the other officers, the First Claimant (Woods)  was not to be the subject of either a criminal or a disciplinary interview at that stage.  He was made subject to the Service Confidence Policy (see below). 

27.	A ‘strike day’ was arranged for 1 April 2011, by this I mean that the officers suspected of criminal offences were interviewed under criminal caution and their homes were searched pursuant to search warrants. 

28.	In relation to the Second Claimant (Gorton) he was interviewed under criminal caution was on 1 April 2011 for Misconduct in Public Office.  There is now produced to me and marked JMMck 1, a copy of pages 1-22 of the 27 page interview between 01:11 pm and 01:55 pm on 1 April 2011.  This describes the some of matters that were discussed with the Claimant on that day.  Other matters were discussed with the Second Claimant at the end of the First interview and in a Second interview on 1 April 2011 between 1.56p.m. and 2.20p.m. these discussions are not relevant to the decision to envoke the Service Confidence Policy in respect of the Claimants. 

29.	 During the First interview the Second Claimant (Gorton) was asked about:-

1.	 His relationship with the Sergeant;

2.	The reasons why the Sergeant had come back from a course early frustrating Merseyside Police attempts to place him under surveillance.

3.	The service confidence meeting that had occurred on 22 November 2010 in relation to the Sergeant.

4.	The meeting that the Second Claimant (Gorton) had had with the Sergeant on 26 November 2010.

5.	The contact that the Second Claimant (Gorton) had had with the Sergeant following the 26 November 2010. 

30.	Following the conclusion of the interview the Second Claimant (Gorton) was suspended from duty.

31.	On 1 April 2011 his house was searched pursuant to a warrant.

Making the First and Second Claimants subject to the Service Confidence Policy 

32.	In relation to the Second Claimant (Gorton) only, by 7 July 2011 the investigation had progressed such that there was insufficient admissible evidence against the Second Claimant (Gorton) so that he could be the subject of either of criminal or disciplinary proceedings however, there still remained concerns in relation to his conduct, and with his contact with the Sergeant as described above which had not been adequately explained by the Second Claimant (Gorton) or indeed the investigation. There were further concerns which will be further described part B of this statement, that is subject to Public Interest Immunity.  

33.	Accordingly, it was determined that he should be subject to the Forces Service Confidence Policy, a copy of which appears at the bundle pages 35-48.   

34.	The Second Claimant (Gorton) was informed of the decision to place him on the Service Confidence Policy on 1 August 2011 at 1 pm by Chief Superintendent Tony Doherty. There is now produced to me and marked JMMcK 2 a minute of that meeting. 

35.	In accordance with the policy on 8 August 2011 the Second Claimant (Gorton) was given an action plan bundle page 67.  

36.	At 11:45 hours on Friday 1 April 2011. The First Claimant (Woods) was advised by Temporary ACC Doherty as he then was and Detective Chief Superintendent Paul Richardson of the decision to place him on the Service Confidence Policy. This had been taken on 30 March 2011. There is now produced to me and marked JMMcK 3 copy of the minute of that meeting.  The decision pertained to 2 other officers as well as the First Claimant (Woods), those officers are not parties to these proceedings. Further particulars in relation to the reasons why suspicions were raised in respect of the First Claimant, I cannot disclose on the grounds of Public Interest Immunity but these are set out in part B of this statement. 

37.	Both officers remain subject to the service confidence policy.  In accordance with the policy, the decision to place them on the policy has been reviewed periodically.  The reviews taking place on the following dates, 14 November 2011 when a decision was made to synchronise all the review hearings, 1 June 2012, 14 December 2012, 16 July 2013 &  21 January 2014. The officers have variously appealed the decisions the details of the appeals appear in the hearing bundle, pages 68-71 and  72-78.  On each occasion the appeals have been dismissed.

38.	In May 2011 the Sergeant described in this statement was dismissed from the force having admitted gross misconduct.   

39.	On 4 August 2011, 5 other officers Constables who formed part of investigation 360 were dismissed from the force, one of them admitted gross misconduct the conduct of the others was found, by the panel, to constitute gross misconduct. 

Matters post the imposition of the Service Confidence Policy 

40.	On or about 4 August 2012, further information was received by the anti corruption, the detail of which is subject to public interest immunity that led the Anti Corruption Unit to believe that those officers who had been dismissed and those who were subject to service confidence were trying to ascertain the identity the ethical officer(s) referred to in paragraph 6 of this statement as such operation Abbeydale was launched. 

41.	This operation specifically investigated perceived threats and suspicious incidents in relation to those who were believed by others to be the ethical officer (s) further specifics of this I decline to disclose on the grounds of public interest immunity.  This did not lead to any criminal or discipline matters being instigated. Such was the seriousness of the threats that a Detective Superintendent, Superintendent Leeman was appointed as Senior Investigating Officer. 

42.	On or about 4 August 2013 further information was received that indicated that person or person (s) were trying to ascertain the identity of the ethical officers referred to in paragraph 6 of this statement, again this did not lead to any criminal or discipline matters being instigated. 

Conclusion

43.	For the reasons set out above and in part B of this statement it is submitted that the Claimants were properly made subject to the Service Confidence Policy.  The decision to make the First and Second Claimants subject to the Service Confidence Policy remains subject to review as per the policy, however, integrity is not some thing that can be addressed through an action plan and therefore at this time is appropriate that the officers should not be taken off the policy but should remain on it subject to review. In any event it is submitted that this is an operational decision of the Chief Constable that is not amenable to Judicial Review. 

I believe that the facts stated in this witness statement are true.

Signed 	…………………………………

Dated 	…………………………………