The proper application of the non police personnel vetting process set out in the national vetting policy devised by the Association of Chief Police Officers required the adoption of a two-stage test, namely: (i) whether there were reasonable grounds for suspecting that X was or had been involved in criminal activity; and (ii) if so, whether it was appropriate in all the circumstances for security clearance to be refused.

Coulson J, sitting in the Queen’s Bench Division, so held in a reserved judgment dismissing a claim for judicial review brought by the claimant, A, of the decisions of the joint professional standards departments of B and C Constabularies, and for which the defendant, the Chief Constable of C Constabulary, was ultimately responsible, to refuse the relevant security clearance to enable him to continue providing vehicle services to the two police forces on the basis of gisted intelligence linking the claimant with extensive serious criminal activity.

COULSON J said that the starting point was whether or not there were reasonable grounds for suspicion that X was or had been involved in criminal activities. It would be absurd if security clearance could be refused in circumstances where there were no reasonable grounds for suspecting that X had any involvement in criminal activities at all. Moreover, concepts of “integrity” and “reliability” were too nebulous to form the basis of a practical and transparent vetting policy. Applying a test of “reasonable grounds of suspicion” also avoided the debate between so-called “innocent association” and “actual involvement”. Those two extremes provided an unhelpful way of looking at the issue. It could not possibly be right for security clearance to be refused in circumstances where X had an occasional drink in the pub with a man who (possibly unknown to X) had criminal convictions. That would be an innocent association, but it would not provide a reasonable ground for suspecting that X himself was involved in criminal activity. At the other end of the scale, the test of reasonable grounds for suspicion meant that the police would not have had to have demonstrated actual involvement. There could be all sorts of reasons why proving actual involvement in criminal activity might be impossible, for example because the criminal activity was ongoing and the subject of a separate investigation. But a test of reasonable grounds for suspecting X’s involvement in criminal activity would plainly be met in such circumstances. As to the second part of the test, the reference to appropriateness was designed to do two things. First, it reflected the language of the national vetting policy. Second, it was intended to achieve proportionality. It allowed the police to have taken into account all the circumstances before deciding whether or not security clearance would be refused. Thus, if X had a previous conviction for a serious offence, but it was now many years old, and there was absolutely nothing to suggest that X had had any involvement in criminal activity since that conviction, it could well be inappropriate to refuse security clearance. On the other hand, if there was intelligence which an objective observer would accept amounted to reasonable grounds for suspecting that X remained involved in criminal activity then, although the police would be obliged to take into account the consequences of refusal on the applicant in deciding whether or not it was appropriate to refuse security clearance in the circumstances of the case, they could conclude that the strength of the intelligence outweighed the interests of X, and made it appropriate that security clearance be refused.

Such a formulation also allowed, where appropriate, the vetting process to take into account the interests of the individual who was being vetted. Clearly, any proportionate process of that kind ordinarily required a consideration of the impact on X if clearance was refused. But it was important that that aspect of the vetting process was not overstated. There was a difference between the interests of an applicant in a case involving information disclosed to third parties, such as an enhanced criminal records check (“ECRC”), and the impact of a refusal of security clearance to a supplier of particular services. In the former situation, the applicant was grappling with the potential unfairness of information which was provided to any third party who might have asked for it, and which often meant that the applicant was routinely refused employment on the basis of the contents of the ECRC. In those cases the police were acting, or were supposed to be acting, as an independent vetting authority providing impartial information to third parties. As a result, the interests of the applicant were significant because the provision of inaccurate or unfair information could affect an entire career. The position was not so acute in circumstances where the police were vetting contractors or subcontractors carrying out work on their behalf. That was more akin to a public procurement exercise. The police were offering a potential commercial benefit to an applicant who successfully obtained security clearance and whose bid was accepted. But there had to be an element of autonomy left to the police; they had, within the limits of the Public Contract Regulations 2006 (SI 2006/5) (as amended), to be entitled to contract with whom they wished. Moreover, the refusal of security clearance would not affect an applicant’s ability to work for anyone else. For those reasons, although an applicant’s interests had to be considered in the balancing act, those interests were broadly commercial and were not therefore of the same significance as those potentially affected by an ECRC decision.