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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Barracks v Coles & Anor  EWCA Civ 1041 (21 July 2006)
Cite as:  IRLR 73,  ICR 60,  Po LR 217,  EWCA Civ 1041
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HHJ ANSELL - SITTING ALONE
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MUMMERY
LORD JUSTICE WALL
| MISS JANET BARRACKS
|- and -
|(1) CHIEF SUPERINTENDENT JOHN COLES (2) COMMISSIONER OF POLICE OF THE METROPOLIS
MR DAVID PANNICK QC & MR JEREMY JOHNSON (instructed by Director of Legal Services) for the Respondent
MR TIM EICKE (Instructed by The Treasury Solicitor) for the Intervenor The Secretary of State for the Home Department.
Hearing dates : 27th & 28th June 2006
Crown Copyright ©
Lord Justice Mummery :
" … The danger is that the court will enunciate propositions of principle without full appreciation of the implications that these will have in practice, throwing into confusion those who feel obliged to attempt to apply those principles in practice."
Employment tribunal case management hearing
"7. …have an opportunity to tender the evidence of senior officers that had reviewed this decision [that is, the decision not to reveal the information about the precise reason for non-selection], and to prove the following: that even if there were no other candidate the Claimant would not have been appointed, the nature of the Trident operation, the role of the Field Officer and the sensitivity of that role, the system of vetting and matters that might be revealed, the sources of information and the nature of information that might be revealed."
"9. It was my view that the Respondent had not provided adequate reasons for the alleged discriminatory treatment in its Response. Furthermore I considered the manner in which these proceedings were conducted by or on behalf of the Respondent was unreasonable. I was satisfied that the Claimant would be denied a fair hearing if this claim proceeded to a Hearing, as requested by the Respondent."
(i)… further particulars to the Claimant and/or her solicitors stating on what ground(s) it seeks to resist her claim of unlawful race discrimination, including the reason(s) why she was not considered for the position of Field Intelligence Officer within the "Trident" shootings desk and /or
(ii) shall notify the tribunal in writing of the legal basis of its claim that by "law" it is prohibited from informing the Claimant of the reasons for her non-selection.".
Employment Appeal Tribunal decision
" 29. ….satisfied that the [police] are prohibited by law from revealing either the nature of the reasons for the [claimant's] negative vetting or, indeed, the legal provisions under which that refusal is made."
Hearing without disclosure of vetting details
"(1) Subject to section 18, no evidence shall be adduced, question asked, assertion or disclosure made or other thing done in, for the purposes of or in connection with any legal proceedings….. which (in any manner)-
(a) discloses, in circumstances from which its origin in anything falling within subsection (2) may be inferred, any of the contents of an intercepted communication or any related communications data; or
(b) tends (apart from such disclosure) to suggest that anything falling within subsection (2) has or may have occurred or be going to occur.
(2) The following fall within this subsection-
(c) The issue of an interception warrant …. (d) The making of an application by any person for an interception warrant ….."
Status of EAT rulings on EC and ECHR points
" Member States shall ensure that judicial and/or administrative procedures … for the enforcement of obligations under this Directive are available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them …."
Lord Justice Wall:
The Respondents respond to the Claimant's Originating Application without prejudice to their contention that the claim is an abuse of process of the Court;
(i) The Claimant is unaware of the reason why she was not selected as a Field Intelligence Officer;
(ii) The entire claim turns on the reasons why the Claimant was not selected as a Field Intelligence Officer, and, in particular, whether the reason amounted to unlawful discrimination under the Race Relations Act 1976;
(iii) The reason why the Claimant is unaware of the reason why she was not selected is that the Respondents are prohibited by law from telling her. The Respondents are likewise prohibited by law from providing relevant information to the Employment Tribunal herein;
(iv) In the premises, it is an abuse of process for the claim herein to be litigated.
Sir Anthony Clarke MR: