Practice and Procedure


PUBLISHED January 17, 2003

The decision to terminate the appellant's secondment to the National Crime Squad did not involve sufficient public law elements to justify susceptibility to judicial review. Fairness did not require that reasons should be given for the termination because of the nature of the work of the National Crime Squad.Appeal from the decision of Harrison J that although the decision to terminate the appellant's secondment to the National Crime Squad ('NCS') had involved sufficient public law elements to justify susceptibility to judicial review, fairness had not required that reasons ought to be given for the termination because of the nature of the work of the NCS. The appellant ('T') was a detective inspector seconded for five years to the NCS. In April 2001 his secondment was terminated and he was summarily returned to his local force. His claim for judicial review of that decision failed. On appeal T submitted that: (i) he ought to have been given notice of the allegations against him and a real opportunity to meet them; (ii) there were no real concerns about national security, as all that was involved was "sensitive intelligence information" and there was no reason why the obligations of fairness ought to be have been excluded or modified; (iii) fairness required that reasons be given, the starting point being that public powers ought to be fairly exercised. The respondent ('DG') submitted that judicial review was not available to challenge the decision to terminate T's secondment. He submitted that there were three striking features about the case which, taken together, made it unsuitable for judicial review: (a) the nature of the relationship between the NCS and an officer seconded to it; (b) the National Conditions of Service; and (c) the operational rather than disciplinary nature of the decision.HELD: (1) There was no single test by which to decide whether an issue was open to judicial review. The susceptibility of a decision to the supervision of the courts had to depend on the nature and consequences of the decision and not upon the personality or individual circumstances of the person called on to make the decision (per Leech v Deputy Governor of Parkhurst Prison (1988) AC 533). (2) There had been nothing compulsory about T's secondment. It had been an express condition that DG could terminate his secondment without notice. DG had been exercising a power to which T had signed up. Also, the decision had involved no change in T's status as a police officer, no financial loss to him and no disciplinary allegations against him. (3) The decision to dismiss T was an operational decision because DG had lost confidence in his ability to carry out his responsibilities. There was a clear line between disciplinary issues, where an officer had the right to public law safeguards such as fairness, and operational management decisions, where the police were entitled to run their own affairs without intervention from the courts. (4) Any officer joining the NCS on secondment would appreciate, if he paused to consider the conditions of service, that his secondment could end at any time without reasons being given and that exceptionally this could be without any notice at all. Bearing in mind the sensitivity of the work of the NCS most people would not find this surprising. T was in any event with the NCS for a limited period anyway. It was critical that the NCS should be able to manage the deployment of its officers so as best to achieve its objective of preventing and detecting serious crime. The fact the NCS was a public body and that the decision to return T was taken against the background of an undercover operation did not turn what was essentially a managerial decision in relation to T into one with a sufficient public law element to trigger the jurisdiction of the Administrative Court. It was true that this was not a case in which T could invoke a private law remedy. That was a factor, but not in this case determinative. See R v Lord Chancellor's Department ex parte Nangle (1992) 1 All ER 897. What was crucial was whether the dispute had a sufficient public law element. The decision in the present case did not have a sufficient public law element to be the subject of judicial review; it was of purely domestic nature. (5) Fairness did not require DG to give reasons. Although the case might not have involved matters of national security, it shared some characteristic with it. T did not have a legitimate expectation that his secondment would run its full term or that reasons would be given for its premature termination.Appeal dismissed.