ON APPEAL FROM THE QUEENS' BENCH DIVISION
(MR JUSTICE WYN WILLIAMS)
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE HALLETT
LORD JUSTICE STANDLEY BURTON
| THE QUEEN ON THE APPLICATION OF BURKE
|- and -
INDEPENDENT POLICE COMPLAINTS COMMISSION
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Mr I Hare (instructed by IPCC Solicitors) appeared on behalf of the Respondent.
Crown Copyright ©
Lord Justice Richards:
"(7) On the making of a determination under subparagraph (6) the appropriate authority shall give a
(a) in the case of a complaint, to the complainant and to every person entitled to be kept properly informed in relation to the complaint under section 21…
(8) The notification required by sub-paragraph (7) is one setting out –
(a) the findings of the report;
(b) the determination the authority has made under subparagraph (b);
(d) the complainant's right of appeal under paragraph 25 ….
(10) Except so far as may be otherwise provided by regulations made by virtue of sub-paragraph (9), the appropriate authority shall be entitled (notwithstanding any obligation of secrecy imposed by any rule of law or otherwise) to discharge the duty to give a person mentioned in sub-paragraph (7) notification of the findings of the report by sending that person a copy of the report."
"(1) Any appeal made by a complainant under paragraph 25(2) of schedule 3 to the 2002 Act shall be made within 28 days of the date on which the appropriate authority sends a notification to the complainant of its determination under paragraph 24(7) of that schedule as to what action, if any, it will take in respect of the matters dealt with in the investigation report …
(8) The Commission may extend time period mentioned in paragraph 1 in any case where it is satisfied that by reason of the special circumstances it is just to do so."
"We have reviewed the complaint and decided that the circumstances warrant an investigation by the Metropolitan Police Service. Although this will be a local investigation you will have the right of appeal to the IPCC at the end of the investigation against its findings and outcome if you are not satisfied. If you choose to appeal at that stage we will review the completed investigation and its outcome. In the meantime the Metropolitan Police Service will have a responsibility to keep you informed on the progress and findings of the investigation; the investigating officer should be in contact with you shortly."
"First, the appeal had been made approximately 16 months out of time. Second, the issue of whether the appeal should be permitted to proceed should be determined by considering whether 'the circumstances in which the appeal was made were sufficiently special to make it just to permit the appeal to proceed.' Third, although it was possible that the Claimant had not received the letter of 19 September 2007 the Claimant had a responsibility to be proactive in relation to the progress of his complaint and that his alleged ill-health in the period August 2007 to February 2009 did not provide a proper reason for the Claimant's failure to question what had become of his complaint."
"Aside from the arguments over the cause or justification of the delay, it also has to be considered whether it would be proportionate to allow a delayed appeal application, and whether any injustice would arise because of the delay.
The incident giving rise to the complaint occurred on 03 May 2004, and the investigation into the complaint was finalised on 19 September 2007. Given that a significant amount of time has passed since the finalisation of the investigation, and an even greater amount of time since the incident itself, in the absence of a legitimate reason for the delay in appealing I would consider it an injustice to the subjects of Mr Burke's complaint if the matter were to be revisited.
In conclusion, although it is quite possible that Mr Burke was not in receipt of the outcome of his complaint, as discussed above I do not accept that Mr Burke could reasonably make the assumption that the investigation was ongoing for approximately 18 months without there being any contact with him. I believe that in his position as the complainant Mr Burke had a responsibility to proactively seek an update on his complaint over such a lengthy period and he has not provided sufficient reason for his failure to do so. As such I do not believe that the circumstances leading to the delay in Mr Burke's appeal can be considered to have occurred outside of Mr Burke's control and I do not consider it proportionate or just for the appeal to be considered after the significant time lapse that has occurred."
The appellant's case
"Notwithstanding that conclusion, at first blush, it may seem hard that a person should lose a right of appeal when he may never have received the document or letter communicating the decision against which he wishes to appeal. However, it must be remembered that there was no communication between the Claimant and Defendant for a period of about 16 months and the time for appealing expired within a few months of the beginning of that period. While no one doubts that the Claimant suffered ill-health during the 16 month period it is not possible, in my judgment, to say that Mr Waitt was unreasonable or irrational in concluding, nonetheless, that the Claimant had the opportunity to make enquiries as to whether or not the Metropolitan Police had concluded its enquiry into his complaint very much earlier than February 2009 and that his failure to do so was a very significant factor weighing against the grant of an extension of time for appealing."
"Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so. This is not a technical rule. It is simply an application of the right of access to justice that is a fundamental and constitutional principle of our legal system…"
"By a process of deeming those rules produce a mandatory and irrefutable result that a party to whom a determination has been posted may irretrievably lose the right of appeal to the appeal tribunal 'regardless of when or whether it was received'. So the party is prevented from appealing, even if he can establish as a fact that, without fault on his part, he never actually received the determination; that it was accordingly impossible for him, for the purposes of section 20(1), to be 'dissatisfied with' the determination; and it was impossible for him to exercise his right of appeal under that section.
Rules which extinguish the right of appeal in such circumstances cannot fairly and reasonably be regarded as 'regulating the exercise of the rights of appeal'. The combined effect of these two rules in the circumstances is to remove the right of appeal conferred by section 20(1) rather than to regulate the exercise of that right in a manner consistent with the nature and extent of the rights conferred."
"In this day and age a right of access to a tribunal or other adjudicative mechanism established by the state is just as important and fundamental as a right of access to the ordinary courts."
Lady Justice Hallet:
Lord Justice Stanley Burnton:
Order: Application refused