R (Mawusi) V (1) Cambridge City Council, (2) Cambridge Constabulary (3) Cambridge Business Against Crime

01 Jan 2018

Licensing, Public Law and Judicial Review

Business Against Crime Schemes: Second Bite

The High Court has rejected a renewed challenge by a person excluded from business premises in Cambridge, following an oral hearing. In its judgment, it provides further protection to local authorities against being pulled into judicial review claims as a result of indirect support for business against crime and pubwatch schemes.

The Claimant’s challenge was rejected on paper by Langstaff J who held that close co-operation between public authorities and such schemes did not make the schemes subject to public law, or the agent of the public authorities for the purpose of public law challenges. The Claimant renewed his application for judicial review which came before Lewis J.
Lewis J held that on the facts it was arguable that the scheme had crossed the line into the realm of a public function, by virtue of a number of factors, including liaison with the Police over decision-making, service of exclusion notices by the Police, the updating of the Police National Computer with records of exclusion notices, the provision of such data to the CPS, information sharing between the Police and the scheme, the provision of office facilities by the City Council, and so on.
However, the Learned Judge refused permission for judicial review because the exclusion notice issued had now expired, and because complaints about the disclosure of personal data were pre-eminently matters for the Information Commissioner and not the Court. In this case, the Council neither had not had disclosed any, although allegations were made by the Claimant against all three parties.

The Learned Judge refused to grant permission for judicial review against the scheme in general, because he said that challenges needed to be brought against individual decisions rather than schemes.

He also provided some comfort for local authorities. He said that the scheme was run by the Third Defendant. If the Council had limited involvement, that may be relevant to deciding whether the scheme was public or private, and therefore whether a decision under it was or was not amenable to judicial review. But the decision remains the scheme’s, nor the Council’s, so it is the scheme not the Council which should be a Defendant.

For these reasons, local authorities can, subject to the individual facts of the case, safely encourage business crime reduction schemes to happen without fear that the consequences will be a visit to the Administrative Court. Dependent on the extent of their involvement, the scheme may be public rather than private. But even in the former case, it is unlikely that two tickets for travel to London will be required, in the event of an allegedly unlawful decision by the scheme managers.

Philip Kolvin QC.