First and foremost, the Regulator was established by the Government to approve and issue licences to those working in the private security sector. Of late, many practitioners have been clamouring for visible enforcement of the Private Security Industry Act 2001. That being the case, it’s interesting to note how the Security Industry Authority (SIA) has fared when faced by objections to refusals over the granting of licences and associated legal issues.
If an individual is refused a licence by the Regulator, they have the Right of Appeal to a Magistrates’ Court. As such, a network of agents has been created throughout the country – most recently in Scotland – to represent the SIA in Courts of Law. There have so far been eight appeals from north of the border.
Until the present time, cases brought to Court have almost always been in relation to those individuals with one or more criminal convictions (prohibiting them from being eligible for an SIA licence). Of the 1,213 cases completed, the majority (663) were won by the SIA. As at the end of November 2007, 204 appeals had been withdrawn. Only 10% (126) of cases were lost. Where appeals have been withdrawn, this has mostly occurred in ‘automatic refusal’ cases after it was explained that the Court had no discretion to overturn the SIA’s decision.
A small number of cases have been conceded by the Regulator, usually in those instances where the Court is able to ‘consider additional factors’ in accordance with the relevant criteria (and the individual provides appropriate mitigation).
Judicial Review: the case of Stewart and Others
The largest number of appeals – 1,037 in all – emanates from the door supervisor sector. Way behind in second place (with 142 appeals) stands the security guarding sector. It’s interesting to note that, since 2004, there have only been 34 completed appeals in all of the other licensable sectors combined. At present there are 54 appeals outstanding.
Initially, the majority of appeals were in relation to licences being refused, with far fewer being revoked or suspended. In recent months, however, appeals against revocations and suspensions have risen. The good news is that the SIA has been extremely successful here, particularly in the landmark case of Stewart and Others. On 31 October 2007, the Divisional Court gave its judgement having considered a number of linked cases concerning the Regulator’s approach to applications from individuals whose licences had been ‘automatically refused’ (due to relevant criminal convictions). The Court found that in such cases, if the SIA – and any Court on appeal – acts in accordance with the Regulator’s published criteria, there’s no discretion to grant a licence.
On 3 May 2001, Mr Stewart was convicted for obstructing a police officer in the execution of his duty and fined GB pound 125. Stewart’s application for a door supervisor’s licence was then automatically refused by the SIA in the wake of this conviction, which it deemed to be serious. Stewart successfully appealed the SIA’s decision, and the Regulator’s subsequent appeal to the Crown Court was dismissed.
In a lengthy judgement, the Court resolved all matters before it in favour of the SIA, confirming that the SIA, the Magistrates’ Court and a Crown Court on appeal must apply the SIA criteria, and that they don’t have the discretion to consider the merits of an application (including the facts behind a conviction) within the automatic refusal category. Most notably, the Court stated that the SIA was obliged to refuse licences (as it was doing), and that it had not been acting beyond its powers.
The Court emphasised that the intention of Parliament was to authorise ‘hard edged’ rules. Consistent with this, it accepted the criteria would necessarily include offences that might be committed in circumstances which were not inconsistent with an individual being deemed ‘fit and proper’ to hold a licence.
Clogging up the Court systems
The Court also accepted that it was impractical for the Regulator to consider the individual facts of every conviction because the information needed to do so is unlikely to be available. Even if it were, a given applicant may disagree with the records – leading to the Regulator having to evaluate the case in light of representations made by the applicant. In turn, this evaluation would lead to numerous appeals ‘clogging up’ the Court systems and diverting the SIA from its primary function – to protect members of the public.
Finally, the Court agreed that there had been no breach of an individual’s rights under the terms of the European Convention of Human Rights. At this stage, agents and the Courts have been advised of the decision and matters adjourned for appellants to consider their positions. It will certainly be interesting to see what – if any – effects this judgement will have on the number of appeals received. For the SIA, then, the case has proven to be an excellent result.
The Approved Contractor Scheme (ACS)
That’s the individuals assessed. What about the companies?
The Approved Contractor Scheme (ACS) has been in place since 20 March 2006. As most readers of info4security will know, it’s a voluntary accreditation scheme for private security companies who carry out licensable activities and demonstrate a commitment to quality through all key areas of the business. The basic aim of the ACS is to protect members of the public while maintaining and improving standards within the private security industry.
One of the benefits for any company securing ACS status is that, if they’re granted a Licence Dispensation Notice, a percentage of their staff may be employed on site without licences while their applications are being processed.
There is a right of appeal to the Magistrates’ Court from a refusal to grant – or from the revocation of – ACS status. To date there have been three appeals. The first of these involved the withdrawal of ACS status when it became clear that the company concerned didn’t meet the criteria (despite its own confirmation that it had done so). This matter was concluded in the SIA’s favour, with the company agreeing to make a fresh application and abandoning its original appeal. From a financial perspective, Kingsley Napley was pleased with this result as it obviously meant the Regulator was successful in relation to costs.
The second matter involved an appeal against a refusal to grant ACS status in circumstances in which the SIA didn’t consider the company involved to be ‘fit and proper’. There was an initial Court hearing, but the appellant decided that it wouldn’t proceed pending the outcome of ancillary matters. According to Kingsley Napley, it may be some time before this matter is concluded.
Finally, Kingsley Napley has recently been instructed in relation to a refusal by the Regulator to grant ACS status on the basis that one of the company directors involved was recently convicted of violent offences. In addition, a number of the company’s members of staff have been convicted for working without holding an appropriate SIA licence. Again, the Court’s findings will be made public in due course.
Higher standards than the police. Ridiculous really