Neutral Citation Number: [2022] EWHC 26 (Admin)
Case No: CO/5056/2019
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Birmingham Civil Justice Centre
33 Bull St, Birmingham, B4 6DS
Date: 11/01/2022
Before :
THE HON. MRS JUSTICE STEYN DBE
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Between :
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THE QUEEN on the application of J |
Claimant |
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(1) THE CHIEF CONSTABLE OF WEST MERCIA POLICE (2) THE CHIEF CONSTABLE OF WARWICKSHIRE POLICE |
Defendants |
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The Claimant appeared in person
Mark Thomas (instructed by West Mercia Police Legal Services) for the Defendants
Hearing date: 20 December 2021
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Approved Judgment
Mrs Justice Steyn :
A. Introduction
B. The facts
“How would you describe your overall financial situation? |
Manageable |
Please enter details of your current borrowings (e.g. loans, HP and mail order ? exclude mortgages). Include number of borrowings, amounts left to repay and total monthly repayments: |
£28K, £4 per month repayment |
Please indicate the purposes of these loans below, inclusive of home improvements, holidays, debt repayment, stocks and shares, cars consumer durables, bridging finance, general expenses, students loans or other: |
General expenses |
… |
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Compared to a year ago do you owe more or less on your loans, cards and overdrafts? |
Much less |
… |
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In the last 10 years, have you had a credit/store/charge card withdrawn or been notified that a card or account had been defaulted? If yes, please provide full details: (emphasis added) |
Default on credit card around 7 years ago - do not have specific details any more as so long ago.” |
“Vetting clearances must be granted before an individual is appointed or granted access to police assets. This is because the vetting process can uncover information which shows that the individual is unsuitable to serve in the police service, or to have access. To avoid undue delay in police business, vetting clearances need to be processed in a timely manner. Conditional clearances may be granted to an individual based on any known risks pending full clearance being received, or when an individual has been given a period of time to address any risks through the vetting clearance process. The acceptance of any identified risk should lie with the department to which the individual is being recruited, and it is recommended that either type of conditional clearance should only be used in exceptional circumstances where the force agrees that there is a justifiable business need to accelerate the appointment. …”
“A telephone interview was conducted on 24/07/19 to ascertain more information regarding the applicant’s declared £28k loan.
I asked the applicant if he could tell me who the £28k loan was with. He said this was a general loan and wasn’t sure what company it was with. He said all the paperwork was gone.
When asked if it was one just one [sic] loan or multiple consolidated he said that he didn’t know.
I asked why is he only paying £4 a month off and he said he was in between contracts at the minute but when he is back in contract he will ‘ramp it up’. He made reference to it being ‘flexible’.
When asked what year he got the loan he couldn’t remember. He said it was going back a few years. I asked was it more than 3 less than 10 and he said yes.
He has no credit cards just one debit card.
When asked what the loan was initially for i.e. car, he said it was for general expenditure.
He said there are people out there with hundreds of thousands of pounds of mortgages so why should he worry about £28k.
As the applicant could not tell me anything more I thanked him for his time and hung up.”
“The conversation during the informal call felt confrontational from Ms Goodman with requests to know what the loan was spent on and I explained that it was General Expenditure such as train tickets, meals etc going back as far as 10 years ago but I had no records on the specific itemised expenditures or any clear recollections as it was so long ago. Ms Goodman was not happy with this answer and I found it inexplicable how not having a photographic memory of all these expenditures had anything to do with a risk assessment vetting. The nature of the questions seemed to be very bizarre and little to do with a risk or threat assessment vetting and at one point remember thinking I had no idea what Ms Goodman was talking about as the questions made no sense at all; the vetting officer had not told me she had already undertaken a credit check and this had caused her concern, even though it was completely clean, which seems even more irrational. I did not believe that any reasonable person would be able to recall these details and so I asked Ms Goodman if she would be able to recall these details going back so far and she said that she would. At this point I began to feel that Ms Goodman had lost her objectivity and was determined to find a reason, no matter how unreasonable, to fail my vetting.”
“PNC & PND checks have been completed on the applicant and named associates. There are no problems here.
The applicant has declared he has £28,000.00 of debt and is currently paying £4 a month off of this. Experian does not show any debt in his name.
After a conversation on the phone with the applicant, he said this debt is a ‘general loan’ but could not tell me anything about it - what company it is with or how long he has had it. He also did not know what address he was residing in at the time. He said all paper work relating to it has gone. When asked why [sic] he got the loan for he said, ‘it was for general expenditure’.
Having £28,000 of debt did not seem to be a problem to him.
I personally think there is a risk here.”
“You were asked to consider an urgent Conditional Clearance for an ICT consultant called [J].
There are no known PNC or PND Traces/issues on the applicant or any of the people named on his application, but there is a question mark over his Finances (please see below email from a Case Officer).
It is unusual for a loan not to appear on his Experian record, which suggests this may not have been an ‘over the counter’ arrangement?
His reluctance to provide specific details, his evasiveness and his general demeanour towards the Case Officer are not the sort of things that one would expect from someone with nothing to hide and keen to work for the police?
Is there a risk that if someone offered to clear this debt he might be drawn into corrupt or improper practices?
All speculation, but that’s all we’ve got. He has no mortgage or HP/Car Loan.
He said he’s only paying £4 a month because he has no work and it’s all he can afford to pay. Which suggests Simon’s concern about his being ‘snapped up’ by another employer may not hold water.
Based on the Case Officer’s findings I believe this application is a medium to high risk; based on the fact we can’t ascertain where the £28k came from; who he owes it to; and why he needed in excess of £28k in the first place.
For your consideration.” (Original emphasis.)
“He started with that he had received a call from Simon Bennett in ICT who advised he was unlikely to pass vetting as there were early indications due to his finances. I advised he couldn’t start on a conditional basis but a decision had yet to be made. I said there were concerns regarding his finances and reiterated that he could not tell me any information regarding his loan.
He said that I misrepresented the need of knowing any information relating to it. He went on to say if he loses the contract the consequences to the organisation will be huge and there will be a big law suit landing on the Chief Constable’s desk.
I told him if he did have documents relating to the loan then to find them and call me back and we would go from there.
[The claimant] phones back a little while later -
He said the loan was with IDR but he doesn’t have any information relating to them, no address info, no statements etc.
I asked how he paid the £4 a month and he said via sort code and account number. He went on to say he has no contact with IDR though he pays a company called Link Financial who are representatives of IDR. I asked how long he has been paying £4 a month and he said about 2-3 years. He said he doesn’t know the current figure. He said he doesn’t go around memorising these things. He also said he is not paying interest on it.
The last he knew of the figure of the loan was 2-3 years ago. He said it was £28,939.80. He went on to say why would he check on it and it’s not a significant sum so why would it cause him concern.
He asked ‘if you were earning £100k a year would you be worried about a £28k loan?’ so I asked if he was earning £100k a year [to] which he replied no.
I asked if he was working and he said he is not currently in a contract due to West Mercia wanting him to start ASAP. He said if he loses the 6 figure sum contract he’ll be seeking to recoup.
He said he’ll be writing to the chief constable and the ICO for misuse of personal data. He said he wanted to hear an answer by the end of the week.”
“I was shocked by the telephone call which I had received from [the claimant]. I was only trying to help [the claimant] by asking questions that would enable me to properly risk assess his application. His manner was rude and improper, and caused me to become upset once I had finished the telephone call. This is not usual behaviour for a vetting application and so my colleagues in the office had stopped working due to check that I was okay as they could hear the conversation I was having with [the claimant] and his tone.
Following this telephone conversation, I reported to Mick Gillick and explained the conversation that I had had with [the claimant] and that he was unable to provide any further information. I also explained that he had threatened legal action.”
“had stated that she had misrepresented the need for knowing the information and that if he lost the contract, the consequences to the ‘organisation would [be] huge’ and that there would be ‘a big law suit landing on the Chief Constable’s desk’.”
“On this second contact with Ms Goodman, I was told that I had not explained what the loan was for and this was going to be formally recorded in the vetting decision. As this was not true, I reminded the vetting officer I had in fact provided this information and that I was being misrepresented.”
“I am writing to inform you that your application to join Warwickshire Police/West Mercia Police has failed the vetting process. I have notified HR of the decision and consequently you will not be offered employment on this occasion.
The College of Policing Authorised Professional Practice for Vetting requires me to assess your ability to manage your finances effectively. From the information you have provided and by reference to the College of Policing Authorised Professional Practice it has been assessed that paying £4 per month off a £28,000 loan for a significant period of time does not amount to good financial management.
For this reason your application for NPPV3 vetting has been refused.
A future application would be considered if you were able to demonstrate a sustained period of sound financial management.
There will be no further communication about your failed vetting application unless you choose to appeal this decision within 28 days of this letter. If you wish to appeal please submit your grounds for appeal in writing (letter or email) to the Vetting Development Manager at the above address.”
“I will set out relevant background information for my appeal
I completed the online vetting portal with what I believed was all the correct information that had been requested. I received a call from Joanna Goodman whilst I was in the middle of dealing with some other paperwork and she had a few questions for me. She asked me what the loan was for and I explained it was for general expenditure. She asked who the loan was with and I told her I could not recall as I had had the loan for a number of years (and it had changed hands a few times as well) and didn’t have the information available at that moment. I suggested an Equifax check or similar would yield the information she was looking for and believed this is what she was going to do and that there was no further action required on my part and no more information outstanding. She also asked what my current income was and I explained as West Mercia Police has specifically asked me to be immediately available that meant I had no work income whilst waiting to start. She seemed to have an issue with my not working but having the £28K loan and I explained that as the role offered provided an income of £100K+ then the loan in this context was to all intents and purposes inconsequential and irrelevant and to raise this loan as an issue was entirely irrational and disproportionate in the circumstances. Also to highlight the rate at which I am currently paying off the loan is irrelevant to my financial management as no adverse impact can be shown to my financial circumstances by paying the loan off at this rate - again this logic is flawed and irrational. A few days later I chased progress of the vetting to be told that I was unlikely to pass the vetting and when I asked to know the reason, I was told by Joanna that I had told her I didn’t know what the loan for [sic], which is not true as I explained above and she said I didn’t know who the loan was with. If it was that important to know the loan company name then I could have gone away and found out the information which I then did and I should have been told that it was critical to the vetting process which I was not told - I assumed that the Equifax check would answer these questions. By inventing reasons that were not true to try to fail my vetting, I raise procedural impropriety in the way the vetting check was carried out and malice as to the reason why this was done and the decision based on this malice was then communicated which leads to defamation which I want the vetting team to retract and fully redress. The vetting team owed me a duty of care, this duty of care has been breached and this negligence has caused financial loss in terms of the unnecessary delay to my starting the provision of services.
After raising the issues in the previous paragraph with Joanna, I expected her to do the right thing and fairly reconsider the vetting, but instead I received the letter containing the vetting decision which in summary I challenge for procedural impropriety (as above) and for irrationality (as above - particularly for ignoring the context of my circumstances). I have also noted the negligence, malice and defamation which I trust will be fully addressed.”
“The applicant declared on his vetting form that he currently has a £28,000 loan which he pays a repayment of £4 a month. After conducting an Experian check, Experian showed no loan in his name. There was no outstanding debt (credit cards, HP loans etc). Just one active current account.
A telephone call was made to [the claimant] to ascertain some information relating to the declared loan. He could not tell me who the loan was with, how long he has had it or the current balance of the same. I asked if he had any paperwork and he said no. When asked why he received the loan he said it was for ‘general expenditure'. When asked why he only pays £4 a month he said it was a flexible loan and he could change the payment terms when it suits him.
I asked if he has any other debt and he said no. He has no credit cards, he owns his car and he pays rent for his flat.
He said there are people out there with hundreds and thousands of pounds of mortgages so £28,000 is nothing compared to that.
[The claimant] was very vague with his answers and was questioning why I was asking about it as he said it was an ‘insignificant’ amount. He also said that he thought I would have done an ‘Equifax' check to which I responded that I wanted to hear the answers from him.
As he could not tell me hardly anything in relation to the £28,000, I thanked him for his time and ended the conversation.
As I had concerns with the loan and the applicant’s attitude and evasiveness, I reiterated this back to the Force Vetting Manager who directed it to DCC Blakeman.
A few days later [the claimant] phones me and states he has been contacted by Simon Bennett in ICT who said he was unlikely to pass vetting. I confirmed that he hadn’t failed vetting but there was a risk due to his finances and it was decided he would not be granted conditional clearance.
[The claimant] went on to say that l misrepresented the need of knowing all details of the loan and that if he loses this contract the consequences to the organisation will be huge and there will be a big law suit landing on the Chief Constable’s desk.
I reiterated again that a few days prior he told me that he couldn’t tell me anything about the loan and he knew no information about it. I told him if he does have documents to find them and phone me back.
The same day he rings back and told me the loan was with IDR and that he has no information regarding them, he has no address and he doesn’t receive monthly statements. I asked how does he pay the £4 and he said via sort code and account number. He said he has no contact with IDR as he pays Link Financial (a debt finance company) who are ‘representatives’ of them.
When asked how he gets in contact with them to change the monthly payment he said he’s been paying £4 for the past 2-3 years. I asked what the current balance is and he said he didn’t know and he doesn’t go round memorising these things. He did say that he is not paying interest on it.
The last time that he did know the amount was 2-3 years ago and it was at £28,939.80. He said why would he check on it as it’s not a significant sum so why would it cause him concern. He asked me ‘if you was earning £100k a year would you be worried about a £28k loan?’ so I asked him if he was earning £100k a year and he said no.
He also asked if I knew what goes out of my bank each month. As [the claimant] has no debt showing on his Experian, I find difficulty in thinking that he does not know his outgoings as he has already confirmed he pays rent and owns his car outright.
I asked if he was currently working and he said he’s not in a contract due to West Mercia Police wanting him to start ASAP. He said if he loses the six figure sum contract he will be seeking to recoup.
He went on to say that if he didn’t have an answer by Friday of that week he would be writing to the Chief Constable and ICO due to misuse of personal data and conduct in a public place [sic].
On Monday 5th August [the claimant] was refused vetting clearance.
During the telephone conversations, Mr Jones manner was rude and improper. Making threats to get your own way is not acceptable in any place of work.”
“The facts of [the claimant’s] case were not remarkable, however, I do recall that the Panel made comments about ‘respect and courtesy’ due to the ‘tone’ of [the claimant’s] grounds of appeal, which they believed spent more time challenging the process and threatening further action instead of giving an account for the circumstances of the loan and the way that [the claimant] was managing his finances. I can recall the Panel asking me a question about the conduct of [the claimant] when dealing with the Vetting Case Officer whereby I informed the Panel that the contact had left the Vetting Case Officer upset and in tears.”
The independent member, Haydn Price, led the discussion around [the claimant’s] loan as he was certain that this would not have come from a ‘high street’ bank or money lender due to there being no financial interest rate and as such, no profit to the organisation. Concerns were expressed about where the loan had come from, that [the claimant] could not recall this and that this was for general expenditure. The Panel was concerned regarding the risk to the Alliance through possible corruption and as such, all four Panel members unanimously agreed to refuse [the claimant’s] appeal.”
“Further to your letter dated 8th August, appealing against the Force decision not to grant you vetting clearance, I am writing to advise you that this has been considered by a Vetting Appeals panel, chaired by the Deputy Chief Constable Amanda Blakeman, and, regrettably, I must inform you that the decision has been made and vetting clearance will not be granted.
The College of Policing Authorised Professional Practice for Vetting requires Chief Officers “to assess the applicant’s financial position”; in your vetting application you disclosed a £28k loan that was being paid off at a rate of £4 per month. This raised concerns and led to the Case Officer contacting you for clarity. During that conversation you were vague in your responses to reasonable questions, i.e. at that time you said you didn’t know who you were repaying the loan to, you said you didn’t know how long you had had the loan; and when asked for the purpose of the loan you said it was for “general expenditure”. None of this indicated sound financial judgement.
Several days later you contacted the Case Officer where you accused her of ‘misrepresenting’ you and threatening her with “huge consequences for the organisation” and a ‘big law suit landing on the Chief Constable’s desk”. You then told the Case Officer that the loan was with “IDR” but that you had no information about IDR because you paid a Company called Link Financial, but received no statements to show the repayments. You said you believed £28,000 “was not a significant sum” and you were challenging when you asked the Case Officer if she knew what goes out of her bank account every month.
The College of Policing Code of Ethics has an expectation that every person working in policing will adopt the Code of Ethics and this includes all those engaged on a consultancy or contract basis. The Code of Ethics requires those working in policing to “act with self-control and tolerance, treating colleagues with respect and courtesy”. The way you interacted with the Case Officer (who was carrying out her role in a necessary and proportionate way) failed the ‘respect and courtesy’ threshold.
In addition, the lack of transparency in your approach to financial management and the fact you are paying £4 per month a £28,000 loan “shows signs of financial irresponsibility”.
It is for these reasons that your application for NPPV3 has been refused.”
C. The legal and policy framework
“The Code will be supported by Authorised Professional Practice (APP) on Vetting which will describe the technical processes and detail needed to implement vetting.”
This is supplemented by Principle 4 which provides that “Police vetting should comply with the standards laid out in APP on Vetting”.
i) “In applying vetting, practitioners will comply with the requirements of this Code and the Code of Ethics. Each case must be treated on its own merits.” (Principle 1)
ii) “Everyone working in a police environment will be vetted to the requisite level.” This includes those who “have unrestricted or unsupervised access to police information, assets or estates” and “have access to force or national police systems, be that directly or remotely”. (Principle 2)
iii) “Decisions about vetting status should follow the national decision model (NDM) and must be accurately recorded. The presumption is that the rationale for any rejection should be communicated to the applicant in as much detail as possible. There are occasions where it is not possible to provide a detailed rationale, but where this is the case, the justification must be documented and be auditable.” (Principle 9)
iv) “Where a person is subject to a vetting rejection they should have a right of appeal to a person independent of the original decision-maker. The outcome of an appeal should be communicated to the applicant in as much detail as possible.” (Principle 10)
“Non-police personnel vetting (NPPV) assesses the honesty, integrity and reliability, and the overall suitability for clearance of anyone other than police officers, police staff and members of the special constabulary, who have unsupervised physical or remote access to any of the following:
● police premises
● information
● intelligence
● financial or operational assets
● corporate databases
● data networks or hard copy material.”
“7.2.1 Risk is determined by the consideration of three primary factors:
● threat
● vulnerability
● impact (see background document).
7.2.2 Acknowledged threats across the police service include:
● police corruption (including noble cause corruption where the perpetrator of the corrupt act believes that their actions are justified by the outcome of the actions)
● infiltration
● financial vulnerability
● criminal or other inappropriate association
● substance misuse
● information leakage
● coercion.
7.2.3 Where potential threats are identified, there will be an associated vulnerability. The level of vulnerability is case-specific and depends on the circumstances of the vetting subject. In assessing risk and vulnerability, forces should consider all possible threats and, where potential threats are identified, assess these when determining the level of risk.”
“7.9.1 These checks are used to assess whether applicants have been, are currently, or are likely to be in financial difficulty, or show signs of financial irresponsibility to the extent that they could become vulnerable to financial inducement.
7.9.2 Financial checks assess the applicant’s financial position:
● at the point of initial application
● as they apply to move into sensitive or designated posts
● where further information is received in relation to debt issues.
7.9.3 Forces should recognise that a different approach should be taken with those applying at the point of entry into the police service from those applicants already in the organisation. This is because forces are better placed to risk manage those currently holding vetting clearance, owing to the pre-existing relationship and their history being known to the police service. Where individuals can demonstrate a history of managing their finances with responsibility, integrity and honesty, even if they have experienced debt problems, the final vetting decision can be made proportionately with regard to the vulnerability posed by any debt issue.
…
7.9.5 The principles outlined above should be applied when considering the potential financial risk relating to those who require NPPV level 2 (full) and NPPV level 3 clearance.” (emphasis added)
“The FVM should take time to explain to applicants both the principles and process of vetting procedures, and the necessity for enquiries to cover each of the areas. They should explain the reasons for the interview and the sensitive nature of some of the questions and seek consent to proceed. …”
“To obtain and retain a subject’s full cooperation, interviews must not become an interrogation but should be handled with sensitivity. Interviewers must emphasise that information revealed during a vetting enquiry is confidential. The way in which FVMs deal with sensitive information dictates the extent to which people will entrust them with it. Those conducting the interview should never make assumptions or display a judgemental stance and, while appreciating the sensitivity and importance of the interview, they must display neutrality.”
“7.27.1 While each case needs to be considered on its own merits bearing in mind the role and assets to be accessed, where any of the following factors are present the case should receive particular scrutiny. In most cases the presence of one of these factors will properly lead to a vetting rejection. In cases where one of the following factors is present but it is decided this should not lead to a vetting rejection (perhaps because mitigating measures can be applied), the full rationale must be recorded and the decision approved by the force vetting manager.
● past infringement of security or vetting policy or procedures
● significant or repeated breaches of discipline
● providing false or deliberately misleading information, or omitting significant information from the vetting questionnaires
● unauthorised association with people with previous convictions or reasonably suspected of being involved in crime
● other identified areas of concerns, for example, drug and alcohol misuse
● abuse of position
● previous breaches of the Code of Ethics
● professional standards intelligence
● financial vulnerability
● identified conflict of interest
● other inappropriate behaviour which impinges on a person’s suitability to serve in the role.” (emphasis added)
“The vetting applicant can request in writing an appeal against the decision. On appeal, the applicant has the right to ask for the rationale behind the decision and should be provided with the information if the following applies:
● there is no risk to national security
● no laws are broken
● it does not frustrate the prevention or detection of a crime
● it will not impede the apprehension or prosecution of offenders
● it will not result in the disclosure of sensitive information
● it will not breach the confidentiality of any information provided.”
“An appeal may be made by the applicant in writing stating their grounds of appeal when one or more of the following factors apply:
● further information is available that was not considered by the decision-maker
● the vetting rejection was disproportionate considering the circumstances or details of the case
● the decision was perverse or unreasonable
● no explanation has been given for the decision.”
“7.43.5 Appeals may be conducted by an individual of suitable seniority who:
● is independent of the original decision-making process
● has not been previously involved in any aspect of the case
● has a working knowledge of vetting.
7.43.6 This will ensure that the transparency and integrity of the appeals process is maintained.” (emphasis added)
D. Preliminary matters
i) The successful candidate would be the program lead for Digital Services Transformation;
ii) They would have had uncontrolled access to information at a grade of Secret and occasional access to Top Secret assets.
iii) They would have had unrestricted and uncontrolled access to the IT systems and content of those within the two forces, including access to a vast amount of data concerning members of the public, criminal investigations and ongoing police operations.
iv) Given the specific skillset required of the successful candidate, that person would be uniquely placed to cause significant damage to the data held, for example, by installing viruses or malware within the IT systems.
v) In addition, the successful candidate would have unsupervised access to the defendants’ premises.
“a failed vetting is not recorded as a ‘black mark’ on an Applicant’s history nor is the Applicant ‘black listed’. Vetting is only a ‘snapshot’ in time and provided that [the claimant] was able to evidence sound financial management, if he was to submit a further application to either Force, he may receive vetting clearance.”
This reflects the penultimate paragraph of the letter from Ms Goodman to the claimant dated 5 August 2019 (see paragraph 23 above).
E. The Grounds
(1) Illegality - improper purpose/bad faith
(2) Errors of fact
“First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been “established”, in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal’s reasoning.”
i) The claimant’s contention that he would not have needed unrestricted access to the defendants’ systems or premises, which I have addressed above.
ii) The claimant’s contention that the initial contract was for 12 months and that the defendants’ evidence that the initial contract was for 6 months was false. On the basis of the evidence before me, I have accepted that the initial contract was for 12 months. Even if the defendants’ evidence as to the length of the initial contract was inaccurate - and I have not seen the full terms and conditions of the draft contract - that is a matter that would only be of relevance to any private law cause of action for damages. Such an error provides no proper basis for an allegation of bad faith.
iii) The claimant’s contention that it is a falsehood to describe the telephone call on 24 July 2019 as an “interview” and that the “Vetting Trace Sheet” is fabricated. I reject as obviously wrong the contention that in labelling the telephone call an “interview” Ms Goodman has given false evidence. The claimant has raised significant issues as to the way in which that telephone call diverged from the guidance regarding the setting up of interviews (which I address below). But in taking issue with the fact that she has labelled it an “interview”, the claimant has focused on a semantic issue. In reality, there is no difference of substance between the parties’ evidence regarding the way in which the telephone call was made (in particular, it was not prearranged) or what was discussed. The allegation that the defendants have fabricated evidence is a grave allegation for which there is no basis whatsoever. The Vetting Trace Sheet is entirely consistent with Ms Goodman’s email of 24 July 2019 and the rationale document of 12 August 2019. An allegation of such seriousness ought not to be made without a firm evidential foundation.
iv) The claimant’s contention that Ms Goodman’s evidence is “entirely false” when she said that it would have been perfectly acceptable if the claimant had said, when she telephoned him on 24 July, that he could not recall the information she sought but would call her back later to provide it. He alleges this is untrue because he did say that he could not recall the information or know where it was and the result was that the call was confrontational. However, it is clear from the contemporaneous documents that he said during the initial call that all the paperwork relating to the loan was gone, not that he would look for the information and call her back.
v) The claimant’s contention that Ms Goodman misrepresented what he had said during their first conversation when she referred to him not knowing what the loan had been for. He relies on the fact that he had said it was for “general expenditure” as showing that this was a misrepresentation. This is misconceived. Ms Goodman was seeking information as to why the claimant had needed to take a loan of more than £28,000. His response that it was for general expenditure was extremely vague and provided no explanation as to the circumstances in which his expenditure had so far exceeded his income that he had needed to take out that loan. It was not a question of being faulted for not remembering every meal or train ticket that he bought ten years ago, as the claimant contends, but for giving no explanation as to why he had needed the loan.
vi) The claimant’s contention that Ms Goodman’s evidence that she was upset by the way he spoke to her during their second and third conversations is “feigned”. I reject this contention. First, Ms Goodman gives evidence that she was upset after the telephone call. This is supported by the evidence of Mr Gillick, to whom she spoke about the conversations at the time, as well as by her contemporaneous rationale document in which, although she did not expressly say she was upset, Ms Goodman referred to finding the claimant’s manner rude, improper and unacceptable. The claimant was not present after the call. He has no basis for alleging the defendants’ witnesses are lying. Secondly, the claimant’s own description, in his letter of appeal, of the conversations he had with Ms Goodman make clear that having been told he was unlikely to pass the vetting, he telephoned her and was highly confrontational, accusing her of misrepresentation, malice and negligence in the way she had conducted the vetting process, and threatening to take the matter to the court, the ICO and the chief constable if she did not retract her vetting assessment by the end of the week. It is unsurprising that a vetting officer who received such an unexpected response from a vetting applicant would find it upsetting.
(3) Irrationality and irrelevant/relevant considerations
i) The information the claimant provided about the loan was extremely vague. He was unable to say whether he had taken out a single loan or multiple loans that had subsequently been consolidated. He was unable to say in what year he had taken out the loan. Beyond stating that it was for ‘general expenditure’ he gave no explanation as to why he had needed this unsecured loan. He gave the amount that he had owed 2-3 years earlier, but was unable to say what the current debt amounted to. He was unable to provide any contact details for the loan company.
ii) The claimant at no stage provided any documentation in respect of the loan. He claimed to have no documentation and to receive no statements in respect of this loan. The claimant sought to contend that it was normal to destroy documents that were more than six years old. However, even if the loan had been taken out more than six years earlier, it remained a current debt. In the same way, a mortgage that might have been taken out decades earlier would remain current so long as it had not been fully paid off. In undertaking a full financial check for the purposes of NPPV3 clearance, the defendants could reasonably expect that ordinarily an applicant would have some documentation in respect of current loans.
iii) The loan did not appear on the Experian report. The claimant sought to contend that the defendants should have known there was nothing untoward about that; it merely reflected the fact that the loan had been taken out more than six years earlier. Again, the claimant’s submission ignores the fact that it was a current loan. It is absurd to suggest that a credit report would deliberately omit existing debts because they were first incurred more than six years earlier. If that were the case, such checks would regularly fail to identify the existence of mortgages as they will often last many years.
iv) According to the claimant, he had been repaying the loan at a rate of £4 a month for about two to three years, he had had the loan for considerably longer, and he was not being charged interest.
v) Having regard to each of these factors, it was open to the Panel (and the vetting officer) to consider that the loan appeared not to be a commercial arrangement and to assess that there was an unacceptable risk that the claimant was financially vulnerable.
(4) Procedural impropriety: fairness and bias/predetermination
F. Relief and section 31(2A) of the Senior Courts Act 1981
“The High Court - (a) must refuse to grant relief on an application for judicial review… if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred”.
G. Conclusion