Case No: C1/2011/0856

Neutral Citation Number: [2011] EWCA Civ 1665
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEENS’ BENCH DIVISION
(ADMINISTRATIVE COURT)
(MR JUSTICE WYN WILLIAMS)
Royal Courts of Justice
Strand, London, WC2A 2LL

Monday 19 December 2011

Before:

LORD JUSTICE RICHARDS
LADY JUSTICE HALLETT
LORD JUSTICE STANDLEY BURTON

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Between:

	THE QUEEN ON THE APPLICATION OF BURKE	
Appellant	
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INDEPENDENT POLICE COMPLAINTS COMMISSION 	

Respondent	

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Mr H Southey QC (instructed by Coninghams Solicitors) appeared on behalf of the Appellant.

Mr I Hare (instructed by IPCC Solicitors) appeared on behalf of the Respondent.

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Judgment
Lord Justice Richards:

1.	The appellant, Mr Burke, was arrested at his home on 3 May 2004 by four officers of the Metropolitan police.  He was subsequently charged with offences of harassment and possessing offensive weapons.  The outcome of those charges was that the prosecution offered no evidence on the charge of possessing offensive weapons but the appellant was convicted on 16 May 2005 at the magistrates’ court of the offence of harassment.  An appeal against that conviction was dismissed in October 2005.  

2.	In the meantime the appellant had made a complaint about the conduct of the police involved in his arrest.  The complaint was referred to the Independent Police Complaints Commission (“the IPCC”) on 1 August 2006.  The IPCC decided that the matter should be investigated by the Metropolitan Police, with a right of appeal to the IPCC if the appellant was not satisfied with the outcome.  On 19 September 2007 the Metropolitan Police sent a decision letter addressed to the appellant at his home informing him that his allegations against the police officers in his arrest could not be proved.  

3.	The appellant says that he did not receive that letter and that he learned of the decision only in early February 2009.  By that time he was, on the face of it, a very long way out of time for appealing against the decision.  By regulation 10(1) of the Police (Complaints and Misconduct) Regulations 2004 (“the 2004 Regulations”) an appeal should be made within 28 days of the date on which the appropriate authority sends a notification to the complainant of its determination.  

4.	The appellant sought an extension of time within which to appeal against the decision.  On 29 May 2009, however, the IPCC refused the extension sought, a refusal which was maintained in a further letter dated 7 December 2009 following the commencement of judicial review proceedings.  Those proceedings challenged the lawfulness of the IPCC’s refusal of an extension on a number of grounds.  They were all considered with care by Wyn Williams J who dismissed the claim in a judgment handed down on 8 March 2011 (see [2011] EWHC 423 (Admin)). 

5.	Mr Southey QC, who did not appear below, puts the appeal to this court on an entirely different basis from anything advanced before Wyn Williams J, indeed on a basis inconsistent with a concession made by the solicitor advocate who represented the appellant below.  He submits that the appellant could not lawfully be denied an appeal unless he failed to bring an appeal within 28 days of receiving actual notice of the decision to be appealed.  To that end he submits first that regulation 10(1) of the 2004 Regulations is to be interpreted so that time for appeal runs from the date the actual notice is received and not when the decision is sent, alternatively that time should always be extended to permit an appeal where it is demonstrated that actual notice of a decision was not received on a timely basis.  

6.	Before examining the details of those submissions I should say a little more about the legal framework and the relevant facts.  

Legal framework
7.	The functions of the IPCC in relation to complaints of misconduct are governed by the Police Reform Act 2002 (“the 2002 Act”).  Paragraph 24 of schedule 3 to the 2002 Act concerns an investigation of the kind carried out in this case, that is by the Metropolitan Police acting as the appropriate authority.  It provides in subparagraph (6) for the making of a determination.  It then contains the following provisions as to the giving of notification of the determination: 

“(7) On the making of a determination under subparagraph (6) the appropriate authority shall give a
notification – 
(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.”

8.	Paragraph 25 of schedule 3 concerns appeals to the IPCC with respect to an investigation.  Subparagraph (2) sets out a complainant’s right of appeal; subparagraph (13) empowers the Secretary of State by regulations to make provision for the form and manner in which appeals under the paragraph are to be brought, for the period within which any such appeal must be brought and for the procedure to be followed by the IPCC when dealing with or disposing of any such appeal. 

9.	The relevant regulations are the 2004 Regulations to which I have already made reference.  The precise terms of regulation 10, so far as material, are as follows:

“(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.” 

	The facts
10.	A detailed account of the relevant facts is to be found at paragraphs 8 to 28 of the judgment of Wyn Williams J.  I propose merely to highlight some of the main events of the chronology.  The first written record of a complaint by the appellant was in a letter dated 16 July 2004 which he wrote to the Metropolitan Police.  It made various allegations about the lack of any basis for the offensive weapons charge, the use of excessive force to arrest him and the giving of false evidence by three named police officers.  The next written complaint was made on 1 January 2005, this time specifically against the four officers who had attended at his home on the occasion of his arrest.  There was a further letter of complaint on 24 January 2005 relating to the manner of his arrest and the alleged likelihood that the four officers would give false evidence about the circumstances of it. 

11.	Following the dismissal of his appeal against the magistrates’ court conviction in October 2005, the appellant continued to correspond with officers of the Metropolitan police.  A letter asking him to contact a police officer with a view to his providing a statement to detail his allegations provoked a long and detailed response dated 9 March 2006 in which, as the judge observed, it became crystal clear for the first time that the appellant was alleging that during the course of his arrest he sustained a significant injury to his hip.  The appellant, however, did not respond positively to the suggestion that he should meet so that an officer could take a detailed statement from him. 

12.	The next event was the referral of the complaint by the Metropolitan Police to the IPCC on 1 August 2006, followed by the decision that there should be an investigation by the Metropolitan Police.  The letter from the IPCC communicating that decision was dated 7 August 2006 and included this: 

“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.” 

13.	The officer charged with the responsibility for investigating the complaint was DS Hadfield.  He met the appellant on 22 August 2006; the meeting lasted about three and a half hours and concluded with a request to the appellant to re-examine his documents to ensure that all complaints were covered and to provide further information.  The officer told the appellant that when that information was provided he would draft a statement detailing all relevant matters.  There was reasonably frequent contact between the officer and the appellant in the months that followed.  The judge noted that the complaint to the IPC was in fact but one of the routes of redress that the appellant was pursuing.  He was concerned with the possibility of a further appeal against his conviction, of a private prosecution against the police officers against whom he had made his complaint and of civil proceedings against the Metropolitan Police. 

14.	By April 2007 DS Hadfield had still not completed his enquiries.  He sent an e-mail to the appellant indicating that he was being posted elsewhere and that he was handing over his caseload to another officer whose name he gave.  On 5 July 2007 the appellant had a meeting with a DS Fraser in order to discuss his complaints.  That officer’s record of the meeting suggested that the appellant was going to provide a statement or statements by 11 July.  On 30 July the appellant spoke to the officer by telephone and said that he would deliver his statement by hand the following day, that he was commencing proceedings for judicial review and that he was serving writs on four officers and the Commissioner.  Shortly thereafter he provided various documents to DS Fraser.  

15.	On 6 August 2007 he sent an e-mail to the IPCC requesting that the investigation of his complaint be returned to the IPCC.  The request was refused by the IPCC in an e-mail of the same date, which also reminded the appellant that he was free to contact the investigating officers and to appeal against any unfavourable decision. 

16.	From August 2007 to February 2009, however, there was no contact at all between the appellant and any officer of the Metropolitan Police or between him and any employee of the IPCC.  As I have said, it was in early February 2009 that the appellant became aware that his complaint had been determined by the Metropolitan Police on 19 September 2007.  He then lodged an appeal on 10 February 2009 and followed it with numerous communications dealing inter alia with why the appeal had not been lodged previously.  His stance was that his appeal should be considered because he had never received the decision of 19 September 2007 and did not know of its existence until February 2009; the allegations that he was making were very serious; and during the period August 2007 to February 2009 he had suffered significant ill-health which was said to explain why he had made no contact about his complaint.  

17.	The question whether the appeal should be entertained in those circumstances was considered by an IPCC casework manager, Mr Waitt, in a nine page document which looked carefully at the appellant’s various communications on the subject.  The judge summarised Mr Waitt’s core conclusions as follows (I quote from paragraph 28 of the judgment below): 

“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.”

18.	I think it also helpful to set out the last few paragraphs of Mr Waitt’s analysis which read as follows: 

“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.” 

19.	Mr Waitt referred to the appeal as being invalid but in substance what he was saying of course was that it was out of time and that time should not be extended. 

20.	The IPCC’s further letter of 7 December 2009 maintaining that refusal included a finding on the balance of probability that the Metropolitan Police had indeed sent the decision letter to the appellant on 19 September 2007. 

The appellant’s case
21.	The appellant’s case as advanced before Wyn Williams J was put essentially on grounds of irrationality which were rejected by the judge.  Having expressed that conclusion, the judge made these observations about the fact that the appellant had lost his right of appeal (I am quoting from paragraph 49): 

“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.”

22.	The case advanced by Mr Southey before us is in effect that discretionary considerations of the kind referred to by the judge have no proper place in the analysis.  He submits that the time for appealing runs from the date when actual notice of the decision is received so that the appellant had no need for an extension of time; alternatively that the fact that the appellant had not received notice of the decision meant that an extension of time had to be granted by the IPCC.  In oral submissions Mr Southey has indicated that the latter way of putting the argument may be the more attractive of the two alternatives.  As I have already mentioned, the case so advanced involves a radical departure from the position before the judge, who recorded in paragraph 32 of his judgment that it was common ground that the trigger for commencement of the period of time in which to appeal was not the date when the recipient received the letter but rather the date when it was sent.  

23.	At the root of Mr Southey’s submissions is an observation of Lord Steyn in R (Anufrijeva) v SSHD [2004] 1 AC 604, in particular at paragraph 26 where Lord Steyn said this: 

“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…” 

24.	Lord Steyn went on to refer to Lord Hoffmann’s explanation of the principle of legality in R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115, at page131 to the effect that although Parliament can, if it chooses, legislate contrary to fundamental principles of human rights, it must squarely confront what it is doing and accept the political cost.  Fundamental rights cannot be overridden by general or ambiguous words; and in the absence of express language or necessary implication to the contrary, the courts presume that even the most general words were intended to be subject to the basic rights of the individual.  

25.	Mr Southey also relies on the decision of the Court of Appeal in R (Saleem) v Secretary of State for the Home Department [2001] 1 WLR 443 concerning a rule which required an application for leave to appeal against an asylum determination to be made within five working days of the deemed date of receipt of the determination, with no power to extend time.  The appellant did not in fact receive the determination in time for her to comply with that time limit.  The court held that the rule was ultra vires the enabling power.  The reasons were expressed forcefully in this passage from the judgment of Mummery LJ at page 453A-C: 

“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.” 

26.	Mr Southey has also drawn attention to a passage in the judgment of Hale LJ at page 458A, where she said:

“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.”

27.	It is submitted that those authorities establish the following principles (I take this from Mr Southey's written skeleton argument).  First, for a decision to have legal effect, notice of it must normally be given and received.  Secondly, the reason why notice of a decision must be given and received is that a person must be given the opportunity to take action regarding the decision: a person has a fundamental right to take legal action regarding a decision they wish to challenge.  Thirdly, it is therefore objectionable for a person to be denied an appeal merely because, through no fault on their part, they have been denied notice of the decision they wish to appeal against.  Fourthly, procedural rules must be interpreted consistently with those principles and, if they cannot be, they are ultra vires unless Parliament has expressly authorised the making of rules that deny a person the right of appeal contained in primary legislation. 

28.	In the present case, submits Mr Southey, Parliament has not authorised the making of such rules.  Instead, the 2002 Act emphasises the importance of the right of appeal and contains provisions in section 20 that make it clear that a person must be kept informed so that they can exercise that appeal right. Accordingly, regulation 10(1) should be interpreted so that time runs from the date when notice of the decision is actually received.  If it cannot be interpreted in that way, time to appeal must be extended when it is demonstrated that notice of the decision was not received at a time allowing for a timely appeal.  Otherwise, if one does not adopt one or other of those approaches, it is submitted that it would cause regulation 10 to be ultra vires. 

Discussion
29.	In my judgment, those submissions are plainly wrong.  They do violence to the language of the legislation and they do not reflect the realities of the case.  The wording of regulation 10(1) is clear:  time for appealing runs from the date on which the appropriate authority sends a notification of its determination to the complainant.  This, moreover, is in line with the 2002 Act itself which expressly contemplates that notification is given by sending the person a copy of the report containing the findings (subparagraphs 7 and 10 of paragraph 24 of schedule 3, which I have quoted).  The provisions of the statute and the regulations cannot sensibly be read as meaning that notification is given only when the determination or the report containing its findings is received by the person concerned, or as meaning that time for appealing runs only from the date of such receipt.  

30.	Nor is there any need for the process of reinterpretation of regulation 10 put forward by Mr Southey, so as to refer to receipt rather than sending of a notification.  If a notification is sent but there is a delay in receiving it, justice can be done through an appropriate exercise of the power to extend time for appealing.  It does not require the time for appealing to be automatically postponed until a date when the notification is received.  

31.	The fact that an appeal is out of time because the complainant did not receive notification of the decision within the time limit for appealing will obviously be a very weighty factor in favour of an extension of time.  If the complainant acted promptly once notification was received I would expect it normally to be a decisive factor, sufficient to establish that in the special circumstances of the case it is just to extend time (to use the language of regulation 10(8)).  But I do not accept that it must always, as a matter of law, lead to a grant of the extension of time as Mr Southey contends.  There may be other relevant considerations to which it is both legitimate and necessary to have regard when deciding whether to exercise the discretion to extend time (and that it is a discretion is plain from the wording of regulation 10(8)).  One such consideration canvassed in questions put to Mr Southey by the court in the course of his submissions might be whether non-receipt of a notification was the result of fault on the part of the complainant, for example through a failure to tell the authority of a change of address.  Another consideration, as illustrated by the circumstances of this case, is the effect of delay on those under investigation.  In any event, the decision whether to extend time is discretionary and it cannot be right that, however long the delay, whatever the cause of it and whatever other considerations there may be, the IPCC is always required to extend time in a case where the decision was not received at a time that would enable a timely appeal to be brought.  

32.	In the present case, the overall circumstances of the delay and the effect of the delay were given careful and, as Wyn Williams J held, rational consideration by the IPCC in reaching its decision whether to extend time.  In my view that was undoubtedly the correct approach.  As the judge said at paragraph 49, which I have quoted, at first blush it may seem hard that the appellant lost his right of appeal when he may not have received the decision against which he wished to appeal.  However, when the circumstances as a whole are taken into account, as they were, the result is not unreasonable; nor, as it seems to me, can it be said to be contrary to fundamental human rights or the principle of legality upon which Mr Southey relies.  

33.	Anufrijeva was a very different case.  An adverse asylum decision had been recorded on an internal Home Office file without any form of notification to the complainant, yet had been treated as effective to disentitle the claimant from further payments of income support.  In those circumstances it is not surprising that the House of Lords took the view that the decision had to be notified before it could have the character of a determination with legal effect.  Although an important part of the reasoning was that the claimant had to be in a position to challenge the decision in the courts if he or she wished to do so, their Lordships were focusing on the distinction between an unnotified decision and a notified one.  They were not addressing the distinction between notification by sending the decision and notification by receipt of the decision, let alone were they considering a legislative scheme that makes specific provision for time to appeal to run from the date when a notification is sent and that confers a power to extend time for appealing.  

34.	Saleem was also a very different case, because the effect of the absolute time limit under the rule in that case was that an asylum claimant could, through no fault of his or her own, be denied the chance to appeal.  Unlike the present case there was no discretion to extend time under the relevant provisions.  The reasoning by which the court concluded in those circumstances that the rule in question was ultra vires has no impact on the regulation with which we are concerned with in this appeal.  For reasons I have given, that regulation accords with the primary legislation and is capable of operating so as to avoid injustice.  There is in my view no tension between that conclusion and what Hale LJ said in Saleem about the fundamental nature of the right of access to a tribunal or other adjudicative mechanism, as of the right of access to the courts. 

35.	Accordingly, I am of the firm conclusion that the matters advanced on the appellant’s behalf in this court do not affect the lawfulness of the IPCC’s refusal to extend time or provide any basis for departing from the conclusion reached by Wyn Williams J.  I would dismiss the appeal.

Lady Justice Hallet:

36.	I agree.

Lord Justice Stanley Burnton:

37.	I also agree.

Order:  Application refused