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Legal bid over security checks on jobs
29 April 2010 --
Two civil servants denied jobs after failing security clearance checks have
launched a legal bid to gain access to secret information held on them.
Kevin Kennedy and Francis Devlin are seeking full disclosure of the details and
sources as part of civil actions they have brought against the Chief Constable.
Both men claim they are the victims of malicious falsehood and negligent
misstatement.
But because Public Interest Immunity (PII) certificates have been issued for
national security reasons, they have so far only received edited, or redacted,
documents on their cases.
Counsel for the men made a specific discovery application at the High Court on
Thursday for unredacted versions containing information which led to the
security clearance failures.
Desmond Fahy claimed that denial of the material would thwart their wider
lawsuit against the police.
He said: "The application of PII at this stage of proceedings injects such a
fundamental unfairness for the plaintiffs that it becomes, as a matter of
course, impossible to present a case to the court.
"If I don't have the material it is (like) being asked to present the case with
either one or both my hands metaphorically tied behind my back."
Mr Kennedy's case involves security clearance issues which arose after he was
offered a job with the Northern Ireland Policing Board in 2004.
The second plaintiff, Mr Devlin, was turned down for an administrative post
within the Northern Ireland Civil Service on similar grounds in 1992.
Both men have completely clear records, their solicitor stressed.
In court Mr Fahy drew parallels between their case and others including Binyamin
Mohammed, a British resident held at the Guantanamo Bay detention centre.
Following legal battles redacted information on his case was disclosed.
Mr Fahy said: "These cases are distinguishable from the present application on
their facts - but only in so far as they relate to allegations or suggestions of
connections to terrorism on a more global scale, or more national scale, than is
the case for both plaintiffs. But the principles are equally applicable."
Paul Maguire, responding in the case, claimed nothing had been put forward to
show anything in the redacted versions supported claims of malicious falsehood.
He argued the application was nothing more than a "fishing exercise" aimed to
trying to find out the source of information.
Mr Maguire said there was no entitlement to know the identity.
"In this case it will be of no surprise whatever that the question about
disclosure of sources is a question of considerable sensitivity and importance."
He added: "The simple reality is there are circumstances where the public
interest of non-disclosure overwhelms the public interest which would favour
disclosure for the benefit of the administration of justice."
After hearing both sides the judge, Mr Justice Hart, decided to study the
documents before making any ruling on the application.
Outside the court Mr Kennedy and Mr Devlin's solicitor, Jack Quigley of Madden
and Finucane, claimed they should be allowed the documents so they could fight
their case fairly and properly.
Mr Quigley added: "Otherwise it is tantamount to run, by way of an analogy, a
libel case without access to the written words."
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