England and Wales Court of Appeal (Criminal Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Cardiff Civil Justice Centre 2 Park Street Cardiff Wales CF10 1ET
		23rd November 2011

1. THE DEPUTY JUDGE: This is the oral hearing of a claim for judicial review dated 9th August 2011bought by George Game against the Chief Constable of the Avon and Somerset Constabulary,.
2. The decision which he seeks to have reviewed relates to a request by him for the removal of a caution administered by Avon and Somerset Constabulary in 2004. The date of the decision which is challenged is 25th May 2011. The detailed statement of grounds upon which he relies are set out as follows:

a. "It has become clear that upon 30th October 2004 I was induced into making a confession with intention to be offered a caution, even before I reached the police station. Evidence of this is contained in a write letter written June 2009 on a different topic to the defendant's organisation and which gained additional support from the IPCC."

3. Then there is a reference to former case law and to a decision of His Honour Judge Seys Llewellyn QC on 12th April 2011, when the judge refused Mr Game's application for permission to bring judicial review proceedings against the IPCC, arising out of the same offence. The detailed statement of grounds go on:

a. "Evidence of any offence is ever committed is purely circumstantial and in truth there was never any intent. It was easier to confess and go home under the conditions explained in the police van. The defendant has deleted the custody data, contrary to statutory and MOPI guidelines. The chief officer accepts the risk of deleting it. There was a witness identified ... who could confirm key points of my defence who may or may not be traceable."

4. Permission in the present claim for judicial review was given by His Honour Judge Seys Llewellyn QC by a written decision, following consideration of the papers, dated 11th October 2011. Granting permission the learned judge said as follows:

a. "1. In April 2001 I refused permission in his application against the IPCC on the basis that he could not arguably succeed against the decision of the IPCC."

b. Pausing there, the claim does have a somewhat complex history. It is now not in dispute that reference by the judge to the IPCC in that case was a typographical error on which nothing turns in the case before me.

5. Mr Game, who has represented himself in these proceedings, accepts that by a claim form, dated 22nd September 2010, he did make a claim against the IPCC for judicial review, arising out of the same facts. The background to that, he says, was that he had written to the Chief Constable in 2009, requesting that the caution in question should be removed. That was refused. He made a complaint about the police officers involved in administration of the caution. That complaint went to the Independent Police Complaints Commission who did not uphold his complaint. Mr Game says to me that he accepted that decision at the time and probably still accepts it. He nevertheless admits that he brought the claim for judicial review and wrote to the IPCC subsequently when he realised that that was the wrong body against which to complain in the light of this acceptance.
6. It is not in dispute before me that such a letter was written. However, the matter was allowed to proceed to a consideration of whether permission should be given on the papers. Such consideration was given by His Honour Judge Bidder QC and refused on 20th August 2010. There was no application to renew that request for permission.
7. Instead, by a claim form dated 2nd February 2011, Mr Game then sought permission to bring proceedings against the Chief Constable of the Avon Somerset Constabulary. It was that claim, having been refused permission on paper by the His Honour Judge Cook QC, which came on for an oral hearing before His Honour Judge Seys Llewellyn QC in April 2011. That oral permission was refused.
8. 1. It is against that background that the question of whether permission should be given in the present claim should be considered. The observations made by the latter judge on that occasion continue as follows:

a. "2. I did recommend to the claimant that he make formal application to the Chief Constable of Avon and Somerset Police. I did not advise that it would be successful. I confess to some sympathy with him that this application had been refused. That sympathy is immaterial to whether there is an arguable prospect of success on application for judicial review.

9. The nub of the present application is that there are grounds to accept that he was induced to accept caution by reason of a representation to him that the caution would be deleted after a few years.
10. The court will proceed with care not to allow an adult claimant of full understanding at the time for caution to pursue deletion of it based on simple change or heart or later regret. However the IPCC had found the claimant's point was not without merit and that "the manner in which he has raised these concerns does add to the veracity of the allegation." This material was available to the defendant at the time of his application.
11. Then there was reference to the authority of R v Metropolitan Police Commissioner ex parte Thompson [1996] EWHC 379 and an observation that there may be merit in Mr Game's complaint of failure to keep records for the period of 6 years. There was then reference to the delay but the observation continued that as Mr Game is a litigant in person and had been pursuing the matter for some considerable time, it was not considered that the delay is such as to preclude the grant of permission, if otherwise merited."
12. The substantive hearing came on before me. It transpired that some documents had been sent to Mr Game by or on behalf of the Chief Constable just days before the hearing. Moreover, although Judge Seys Llewellyn had ordered that skeleton arguments should be exchanged and the defendant should be sent to Mr Game not later than 14 days before the hearing, that was not done until 17th November. I gave Mr Game an opportunity for considering whether he was fully prepared in the light of those circumstances to argue his case and he assured me that he was.
13. The documents in question relate to the circumstances in which Mr Game came to be arrested and cautioned. First of all, there is the notebook entry of the arresting officer, PC Norton. The transcript of that notebook entry is now available. These documents were note available to Mr Game at the time of his original claims. They would have been available to the Chief Constable when he considered his decision.
14. I attempted to emphasise to the parties that in my judgment it is not for me to decide on the factual issues which now appear between the parties as to what happened on 31st October 2004. What I was must determine is whether the decision of the Chief Constable not to set aside the caution in question is a lawful one or not.
15. The decision in the first instance was made on 25th February 2010 and then communicated to Mr Game by the department head of Professional Standards Department of the Police Headquarters at Fortis Head. Reference was made to correspondence in 2009 and the letter continues:

a. "Without rehearsing the details of the incident, I can confirm that the arresting officer has been spoken with and has, despite the incident being over 5 years old, provided a comprehensive report and a copy of his pocket notebook.

16. On review of the above documents there is no evidence to support the allegation that 'you were advised by the arresting officer that the caution would be deleted after a few years'. On being booked in the custody officer would have advised you of your rights and the cautioning officer makes the decision whether to caution or not once the interview had taken place, at which time the repercussions of the ... the caution would have been explained. The arresting officer has confirmed that normal procedures took place at the time of the arrest and owing to some personal experiences did not feel he would have advised that the caution would be deleted after a few years. In view of the above [it is highlighted within Mrs Ford's letter] I therefore confirm that your caution will not be 'stepped down' but will remain on the PNC and available for disclosure to the CRB in relation to employment vetting."
17. The letter which is now challenged is dated 25th May 2011 and says this. It comes from the Legal Services Directorate at the Police Headquarter's in Fortis Head. It says:

a. "We must stress that whilst we appreciate your frustration and disappointment with the legal process the Constabulary is only permitted to make decisions within the constraints of the law. As previously stated in a Court of Appeal case, Chief Constable of Humberside Police & Ors v Information Commissioner and Secretary of State for the Home Department [2009] EWCA Civ 1079, the police must maintain records of all cautions and convictions. We are no longer permitted to remove them or step them down from the PNC. In very rare exceptional cases the Chief Constables do have the discretion to authorise the deletion of data from the PNC…….. Unfortunately on the basis of the individual circumstances of this case, we do not deem this to be an appropriate case for the Chief Constable to exercise his discretion as we have not seen any evidence to suggest that the caution you received was unlawful."

18. The circumstances from Mr Game's point of view of the incident in question had been set out in two letters, one dated 2009 to the Avon and Somerset Constabulary and the other dated 2nd September 2010 to the IPCC. The version set out in those letters and in particular the first letter was in substance repeated by Mr Game to me, as part of his submissions in this case. He accepts that on the afternoon in question, a Saturday afternoon, at about 3.00 pm, whilst out shopping, he allowed a woman to get into his car and he then realised that she was a prostitute. Accordingly he intended to follow the one-way system of traffic to let the person concerned get out of his vehicle at the point where she got into it.
19. As he followed that course of action he drove past a police patrol vehicle. He realised, he said, that he was in a difficult position. He was stopped by the police. He was cautioned and he made no reply. On the way to the police station he asked what would happen. He cannot remember precisely which of the two or three officers who were present with him in the police vehicle; it may have been the arresting officer, or it may have been another officer or both. But what he was told was that as the offence was likely to be seen as a trivial one, that if he admitted it he would be able to go home in 1 hour. He was then interviewed, which lasted a few minutes. A transcript of that interview or a record of it has not been retained.
20. Then he underwent the sample process for fingerprints and DNA. He had a further discussion with PC Norton lasting some 5 to 10 minutes. Then he underwent the caution and procedure. He was told, he says, it was not a criminal offence. He was asked to sign on a dotted line. What he signed was a screen. He said to me that he did not see the documents on the screen, although they may have been somewhere. He could not recall. He says he was not told what he was being cautioned for but he was told would surmount to the effect that the caution would remain a record for 3 years; that he would walk out of the police station without a criminal record.
21. So, he submits, in all these circumstances, it is irrational for the Chief Constable to exercise a discretion in any other way than to set aside the caution. He points to a number of consistencies between his version and the notebook of PC Norton which is now available, the relevant extracts of which say as follows:

a. "15.05 Portland Square with K [then there is a reference to a black female loitering on the corner] wearing a mini skirt, a T-shirt and an open coat." (quote

22. The notebook entry continues:

a. "On seeing us she immediately walked away into Wilson Street."

23. Then, there are references to two police officers, one of which was a PC Brown, getting out on foot and calling up for observations on her. But the entry continues:

a. "We drove past Wilson Street. She looked at us intently observing to see if we were going to approach her. We went past, parked up by Bristol Batteries awaiting observation from PC Brown. L431 FGS Astra grey came past with the vehicle followed stopped by Cumberland Road, spoke to [the claimant] ... said he had picked female for lift, did not know her, never met her before.

b. 15.25. You're under arrest on suspicion of kerb crawling and soliciting a female for sex. Caution no reply."

24. Only a front sheet of the custody record has been retained. The remainder has not. The officer who opened the custody record was a PS Rose and it was opened at 15.37. It is recorded that Mr Game had arrived at the police station at 15.35. The arresting officer is recorded as PC Norton and the time of the arrest was said to be 15.20, at Cumberland Road. The circumstances are recorded as follows:

a. "Uniformed police on patrol in Portland Square, when they observed a female prostitute at location. A few minutes later this female was seen to be picked by the DP, who was driving a Vauxhall Astra index L431FGS both stopped and DP arrested."

25. Detention was authorised.
26. Then the record of caution which is dated the same date sets out the offence as follows:

a. "Solicited woman from vehicle, kerb crawling. On 30th October 2004 in the city of Bristol being a man solicited a woman for the purpose of prostitution from a motor vehicle while it was in a street or public place, namely Wilson Street, St Pauls, persistently owing to circumstances as to be likely to cause annoyance to ... to other persons in the neighbourhood contrary to section 1(1)(2) of the Sexual Offences Act 1985."

27. The record says it is to be read and signed by the person being cautioned. The person cautioned then made a declarations as follows:

a. "I acknowledge I admit the offence and agree to the caution. I understand that if in the future I should appear before a court and found guilty of another offence then details of this caution may be given to the court."

28. Then there appears the signature of Mr Game.
29. There were two reports by PC Norton in the course of Mr Game's complaints to the IPCC. The first was dated 6th January 2010 in which PC Norton said that at 15.05 hours he was on duty in the Portland Square and that officers saw a person who appeared to be soliciting at the junction of Portland Square with Carey Street. He said that PC Brown and PC Kayford left the vehicle to keep observations on her and he stayed in the vehicle and went to Bristol Batteries and was parked there. The report continued that he had received observations from "PC Brown, ref a grey Astra L431FGS, this vehicle came past us and we followed it into Cumberland Road, where we stopped the vehicle." He said that there was a female in the vehicle as Mr Game was driving and he arrested Mr Game for kerb crawling. He said:

a. "At 15.59 hours ... in company with PC Brown. He admitted the offence and was cautioned and released."

30. A few days later a further report, dated 23rd January came from PC Norton. He gave some further details. He said that one of the offences that was being dealt with at that time was soliciting by sex workers. The method employed was to identify possible offenders operating on the street. Two officers in uniform would be dropped off from a van and then keep an observation on the suspect. The mobile unit would stay mobile. If sufficient evidence was gathered, then the suspect would be arrested and taken to a station and processed. He said that he had read his pocket notebook and the log for the day. The report then continued:

a. "I don't remember the arrest of Mr Game, the processing of him... I've spoken to PC Brown but still cannot recall the detail of the incident, I've tried to get a copy of the tape to assist but it has been destroyed. Due to the fact I can only make the following points from written material, at my disposal including Mr Game's correspondence."

31. Then a number of other points are set out. the last of which realtes to the suggestion that he told Mr Game this caution would disappear after a few years. As follows
32. " I am one of the few people who joined the force with a criminal conviction. Mine is for damage when I was 16. My experience has been that in certain matters this record is never spent. I still have to disclose it for insurance purposes today, and have to disclose it at the age of 30 to join the Force. I usually give this advice ... when cautioning as well."
33. Mr Game, before me, has placed a particular emphasis on the difference between the notebook entry which says that he, PC Norton was awaiting observations from PC Brown and the report dated 6th January 2010, when he said that he had received observations from PC Brown. This was despite the fact that in his later report, on 23rd January, PC Norton said he had no recollection of the details.
34. Further, says Mr Game, the last point in the later report is inaccurate. The Rehabilitation of Offenders Act 1974 applies to criminal convictions on the one hand, as mentioned by PC Norton and to cautions on the other, as applies in this case.
35. Due to the passage of time, I am told by Miss Ventham, who appears for the Chief Constable in this case, that it is not possible to say with any certainty what the words of the caution which would have been given at that time were.
36. I was referred to the case of the Regina v Commissioner of Metropolitan Police ex parte Thompson [1996] EWHC (Admin) 379. In that case reference was made to the Home Office guidelines as to the circumstances in which cautions should be administered. Those were set out in Home Office Circular 18/1994 on the Caution of Offenders. So far as relevant the document reads as follows:

a. "1. The purposes of a formal caution are -

to deal quickly and simply with less serious offenders;

to divert them from unnecessary appearance in the criminal courts; and

to reduce the chances of their re-offending.

37. A formal caution is a serious matter. It is recorded by the police; it should influence them in their decision whether or not to institute proceedings if the person should offend again; and it may be cited in any subsequent court proceedings. In order to safeguard the offender's interests, the following conditions must be met before a caution can be administered -

there must be evidence of the offender's guilt sufficient to give a realistic prospect of conviction;

the offender must admit the offence;

the offender ... must understand the significance of a caution and give informed consent to being cautioned."

38. The latter point is emphasised by Mr Game. The guidance goes on:

a. "In practice consent to the caution should not be sought until it has been decided that cautioning is the correct course. The significance of the caution must be explained: that is, that a record will be kept of the caution, that the fact of a previous caution may influence the decision whether or not to prosecute if the person should offend again, and that it may be cited if the person should subsequently be found guilty of an offence by a court."

39. In the Thompson case, there was also reference made to the Metropolitan Police Case Disposal Manual which described the decision making process which lead to the prosecution of offenders. In that manual, there was a proforma record of a formal caution which was used in that case, which contained the following:

a. "Information re cautioning process.

40. After consideration of all the circumstances it has been decided that on this occasion it will not be necessary to proceed with the matter by way of court action.
41. The matter will be dealt with by way of a formal caution. It should be clearly understood that Police have been able to adopt this alternative method of dealing with this matter because you have admitted the offence(s) and have agreed to this course of action knowing that a record of this caution will be kept for three years and taken into consideration when deciding whether to prosecute should you re-offend in the future. This is not a criminal record, but may be cited in court if you are convicted of a future offence."
42. Then there is an acknowledgement of caution as follows:

a. "I admit the offence(s) detailed above and agree to be cautioned. I understand that I have received an official caution which may be cited or taken into consideration as outlined above."

43. I pause to observe that that acknowledgement is similar to the acknowledgement contained in the caution record in this case.
44. Miss Ventham acknowledged that whilst it has not been possible to obtain any such manual which was used by the Avon and Somerset Constabulary at the time of this caution was administered that it was at least possible that similar guidance was applicable to the officers of that constabulary at the time.
45. In all those circumstances, Mr Game submits that the decision of the Chief Constable of 25th May 2011 cannot stand and it should be quashed. What he seeks is that an order that the caution should be set aside. It seems to me even if he succeeds in persuading them that the decision must be quashed, it is not for me to decide whether or not the caution should be set aside. That is a matter for the Chief Constable.
46. The discretion which the Chief Constable has to exercise is referred to in guidance called "Retention of Nominal Records on the Police National Computer". Paragraph 4.32 of that guidance says:

a. "Chief officers are the data controllers of all PNC records referred to above, created by their Force. They have the discretion in exceptional circumstances, to authorise the deletion of any conviction, penalty notice for disorder, acquittal or arrest histories, 'owned' by them."

47. Appendix 2 sets out exceptional case procedures for removal of DNA fingerprints and PNC records and contains the following:

a. "Chief Officers have the discretion to authorise the deletion of any specific data entry on a PNC 'owned' by them. They are also responsible for the authorisation of the destruction of DNA and fingerprints associated with that specific entry. It is suggested that this discretion should only be exercised in exceptional cases ...

48. Exceptional cases will by definition be rare. They might include cases where the original arrest or sampling was found to be unlawful. Additionally, where it is established beyond doubt that no offence existed, that might, having regard to all the circumstances, be viewed as an exceptional circumstance."
49. Miss Ventham submits that, even taking Mr Game's account into consideration, as of course it must, that does not amount to an exceptional circumstance. The case of Thompson, she says, was different, in that the inducement there given was given before the interview and before the admission of guilt.
50. The fact remains, in this case, that Mr Game accepts that he was driving a motor vehicle in which there was a prostitute. His case is that he had no intent to do that. He did not realise she was a prostitute. But the physical elements of the offence are not in dispute. In those circumstances, submits Miss Ventham, the inconsistencies relied upon by Mr Game in had regard to the police entry and PC Norton's in substance report are nothing to the point. Furthermore, even on his own account, although he says there was talk about the caution on the way from the point of arrest to the police station, the time he was told that the caution would last only a few years was after the interview. That, it seems to me, is a distinction between this case and the facts set out in Thompson.
51. Mr Game refers to another authority, Chief Constable of Humberside Police & Ors v The Information Commissioner [2009] EWCA Civ 1079, in which Hughes LJ said this:

a. "It would be different if the Tribunal had found that SP had been induced to admit the offence by a promise that the record would be expunged if she reached 18 without further offence..."

52. In my judgment, taking into account all the matters that were before the Chief Constable in making the decision on 25th May 2011, I am not persuaded that a case has been made out that his decision making process was flawed or that he should have concluded that the case put forward was an exceptional one, so as to dictate that he exercised his discretion in favour of setting aside the caution.
53. I was troubled during the hearing of this case, that some of the points raised by Mr Game, before me, were not raised in as focussed a way in the letters which he wrote to the defendant. He is not to be blamed for that because some of the documentary evidence, in particular the notebook entry, was not made available to him until recently. I gave Miss Ventham an opportunity to consider that matter and to take instructions. Her submission was that these matters would not have made any difference to the decision and for the reasons I have already given, I accept that submission. In relation to the question of retention of, or non retention of the remainder of the custody record and the interview transcript, I was referred to Guidance on the Management of Police Information second edition; chapter 7. That says this:

a. "Chief officers are required to balance resources against local policing needs. In this context chief officers should develop risk-based review, retention and disposal policies and procedures which have regard to this guidance document and the MOPI Code of Practice, while also taking into account the resources available to the force and other policing demands...

b. Records must be regularly reviewed in order to ensure that they remain necessary for a policing purpose, and are adequate and up-to-date..."

54. At 7.4, again reference is made to forces being confident that any records that they dispose of are no longer necessary for policing purposes. Records which are accurate, adequate and up-to-date are necessary for policing purposes should be held for a minimum of 6 years from the date of creation. That ensures that forces have sufficient information to identify the offending patterns over time and helps guard individual efforts to avoid retention of police information. That point is emphasised in 7.6, which deals with review and the point is made that the record should hold some value for the police in their effort to fulfil a policing purpose. Where an individual continues to offend or is implicated in continuing offending there is a clear need to hold information relating to them, in order to bring them to justice in the event of re-offending.
55. Miss Ventham accepts that information such as the remainder of the custody record and the interview transcript or record amount to more than information simply for administrative purposes. What she submits however, in circumstances where there was a signed acknowledgement of the caution by Mr Game, and where no further developments or complaints were raised until 2009, is that it cannot be said that the decision not to retain these records was in breach of the guidance. Even if they were, the question is how such a breach impacts upon the decision of the Chief Constable and, as he indicated, he had taken all circumstances into account, which must mean, says Miss Ventham, the information provided by Mr Game and by the police officers concerned such as it was. In my judgment there is force in that submission and I accept it.
56. I accept what Mr Game has said to me today, which is that he did nothing between 2004 and 2009 because he had no cause to do so. It was only when looking to take in lodgers that he realised he would have to undergo a criminal records check and that is when he made the enquiry as to whether this caution had been set aside or not. He remembered that he had been arrested. His delay in that is the subject of some criticism by Miss Ventham. But, I am not persuaded that those criticisms are justified. In my judgment Mr Game had no cause to raise these matters until the circumstances which he describes unfolded.
57. However, for the reasons which I have endeavoured to set out, I am not persuaded that this decision was unlawful or that the discretion of the Chief Constable could be said to have been exercised in a way that was flawed. Accordingly I dismiss the claim.
58. MISS VENTHAM: My Lord, just two further matters. First, just by way of assistance, at the outset of your judgment you referred to the caution being administered in 2005.
59. THE DEPUTY JUDGE: Sorry, 2004.
60. MISS VENTHAM: Yes. Throughout, on a number of occasions, your Lordship referred to the year 2001, when clearly it is 2011.
61. THE DEPUTY JUDGE: Thank you.
62. MISS VENTHAM: My Lord, further to that there is an application for costs against Mr Game.
63. THE DEPUTY JUDGE: Is there a statement?
64. MISS VENTHAM: I do not have a statement of costs, no, I would ask the costs to be assessed if not agreed.
65. THE DEPUTY JUDGE: Well, what is the requirement Miss Ventham? This was a case that was set down for 2 hours.
66. MISS VENTHAM: Yes.
67. THE DEPUTY JUDGE: Is there not a requirement for a statement of costs and is there not a procedure whereby ordinarily the costs would be summarily assessed?
68. MISS VENTHAM: I would have to look that up.
69. THE DEPUTY JUDGE: I am afraid in view of the lateness of the hour, the court staff have to be considered and in any event the court building shuts at 6.30, I am wondering whether you should take the opportunity to consider whether having regard to the late disclosure of this information on the skeleton argument you really would wish to press costs. If so, I would direct written submissions within 7 days on costs, within the schedule and Mr Game, you can make any submissions you want to in writing, send them to the sight on the court within 7 days thereafter, and I will make a decision in writing on costs.
70. MISS VENTHAM: I will certainly ensure that is reflected upon.
71. THE CLAIMANT: There was one error in your summing up which was quite a significant which in my view has actually thrown the case in a different direction. It is actually the key point that you made an error on: you said that I was given this information after the interview, which is absolutely correct, but I was also given it in line with a document that you have before the interview. I was told before the interview, as described by the police officers, that it would be deleted after a few years and it's a trivial offence. That's the key point that you've made the decision upon, as to whether it was before or after the interview. But I have stated quite clearly in all of my letters and you said that you agree with my document, that is actually--
72. THE DEPUTY JUDGE: I do not think--
73. THE CLAIMANT: Okay, you said you had sympathy with it.
74. THE DEPUTY JUDGE: No. Mr Game, please, it is very important to understand what I did say about that. I said that I had sympathy with your position: until you realised that there might be checks there was no reason why you should take this matter any further.
75. THE CLAIMANT: That's correct. The point that you made is that I was given the information after the interview whereas in fact I was given it before, that is the key point about the whole decision, whether it was before or after. You stated--
76. THE DEPUTY JUDGE: What information?
77. THE CLAIMANT: The information that it be deleted.
78. THE DEPUTY JUDGE: Which letter are you referring to now?
79. THE CLAIMANT: Page 67. (Pause) That is still at a point--
80. THE DEPUTY JUDGE: Just a moment please.
81. THE CLAIMANT: Sorry, I should shut up. (Pause).
82. THE DEPUTY JUDGE: Yes, I have that.
83. THE CLAIMANT: If you look at the top of page 67: "I was told that it was not criminal. I was only guilty of committing a minor offence and it would have no long-term implications, it would remain for a few years", and that is the key point, because it was actually told as described, it was said whilst in the police van.
84. THE DEPUTY JUDGE: Then you go on to say, over the page: "I was taken back to the police station several police officers advised that the best that I could do would be to admit the offence and accept the caution and go home in an hour. On that basis I admitted intent during the interview as I had no desire to drag through a court case." That is what you told me today and you told me that you were told of the 3 years during the caution procedure.
85. THE CLAIMANT: And before.
86. THE DEPUTY JUDGE: Sorry?
87. THE CLAIMANT: And before.
88. THE DEPUTY JUDGE: I made a record Mr Game and I have made my decision. If you wish to take the matter further, it is up to you to apply for permission to appeal. You can apply for permission before me. If I do not grant permission then you can renew that application before the appeal court. I can only grant permission if I feel that you have a realistic prospect of success before the appeal court, or that there is some other compelling reason for an appeal to take place.
89. THE CLAIMANT: Thank you your Honour.
90. THE DEPUTY JUDGE: Are you making an application?
91. THE CLAIMANT: Well, I don't ... I can't say yes or no, because I still think it is wrong and basically if you look at the evidence, I think that there is sufficient evidence to suggest that the police, because essentially have been withholding information from me, so that I could not even make my case until last Thursday.
92. THE DEPUTY JUDGE: The procedure is if you wish permission to appeal, you need permission, you must first ask me. If I disagree to grant you permission, you can go to the appeal court but the timing limits is very tight, I think you have 21 days. The first step is to ask me if you want permission.
93. THE CLAIMANT: I would like permission.
94. THE DEPUTY JUDGE: Is there anything else you wish to say on that application to persuade me?
95. THE CLAIMANT: Erm, no.
96. THE DEPUTY JUDGE: I am afraid I am going to refuse permission. I do not think there is a realistic prospect of success and, as I say, it is open to you to renew that if you would wish to do so. Is there anything else?
97. MISS VENTHAM: My Lord, no.