UK: Judicial Review: the Requirement for a Public Law Decision

Last Updated: 10 April 2003

Even if a public body may in some circumstances be susceptible to judicial review, not every decision will be reviewable: only decisions or actions which are made in a public law context are subject to judicial review. Accordingly, there must be a decision with a public law element sufficient to justify judicial review. The Court of Appeal’s recent judgment in R (Tucker) v the Director General of the National Crime Squad [2002] (The Times, 27 January 2003) sets out helpful guidance on the test to be applied when assessing whether a decision is amenable to judicial review.

The Background

The appellant was a Detective Inspector in the Derbyshire Constabulary who had been seconded to the National Crime Squad (NCS). The NCS is a statutory body whose purpose is the prevention and detection of serious crime which is of relevance to more than one police area in England and Wales. The appellant’s secondment was terminated by the Deputy Director General of the NCS and he was summarily returned to his local force.

The appellant’s claim for judicial review of that decision failed before Mr Justice Harrison who held that the decision was amenable to judicial review but that the Director General of the NCS had acted fairly.

The appellant appealed. One of the issues before the Court of Appeal was whether the decision was amenable to judicial review.

When is a decision amenable to Judicial Review?

The starting point for the Court was that there was no single test or criterion by which the question could be determined. However, Scott Baker LJ (with whom the other Judges agreed) said a particularly important matter was that the susceptibility of a decision to the supervision of the Courts must depend in the ultimate analysis upon the nature and consequences of the decision and not upon the personality or individual circumstances of the person called upon to make the decision.

Accordingly, although the Court of Appeal accepted as a starting point that the NCS was a public body and that the appellant had no private law remedy, it held that the correct approach was to look further and focus on what the Deputy Director General was doing when he made the impugned decision.

The Court of Appeal applied a three-fold test in considering whether a public body with statutory powers was exercising a public function amenable to judicial review:

  1. Whether the defendant was a public body exercising statutory powers;
  2. Whether the function being performed in the exercise of those powers was a public or private one; and
  3. Whether the defendant was performing a public duty owed to the appellant in the particular circumstances under consideration.

Applying these criteria, the Court of Appeal concluded that the third criterion was not met: in sending the appellant back to his force, the Deputy Director General was not performing a public duty owed to him: the decision taken in relation to the appellant was specific to him and was taken because of perceived difficulties in his skills and conduct as an NCS officer. It was an operational decision taken because it was decided that he fell short of particular requirements that were necessary to work in the NCS.

The Court decided that three features of the case were relevant:

  1. The nature of the relationship between the NCS and an officer seconded to it;
  2. the National Conditions of Service; and
  3. the operational rather than disciplinary nature of the decision.

In respect of the third feature, Scott Baker LJ concluded that there was no disciplinary element to the decision. The appellant was returned to his force because the respondent had lost confidence in his ability to carry out his responsibilities. This was an entirely operational decision which related to the individual officer personally and had no public element. Other examples of such decisions included transferring officers from uniform to CID, or from traffic to other duties.

The Court of Appeal concluded that the decision did not have a sufficient element of public law to be subject to judicial review because it was inappropriate for the Courts to exercise any supervisory jurisdiction over police operational decisions of this kind.

Practical Implications

As noted by the Court of Appeal in this case, the boundary between public law and private law is not capable of precise definition, and whether a decision has a sufficient public law element to justify the intervention of the Administrative Court by judicial review is often as much a matter of feel, as deciding whether any particular criteria were met. However, the Court of Appeal’s reasoning in Tucker sets out helpful guidance on relevant factors to take into account when determining whether a decision is amenable to judicial review as having a sufficient public law element.

The Court of Appeal placed clear emphasis on the distinction between disciplinary and operational matters, holding that there was a clear line between disciplinary issues where an officer had a right to public law safeguards such as fairness (which was reviewable), and operational or management decisions where the police were entitled to run their own affairs without the intervention of the Courts. This will in some circumstances be an important distinction for public authorities including regulators to bear in mind when assessing potential challenges to decisions which they have taken.

Article by Andrew Lidbetter and Nusrat Zar

© Herbert Smith 2003

The content of this article does not constitute legal advice and should not be relied on as such. Specific advice should be sought about your specific circumstances.

For more information on this or other Herbert Smith publications, please email us.

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