England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		26 July 2013

His Hon. Judge Curran QC :

Introduction

1. By his claim form issued on 6^th July 2012 the Claimant Mr David Mellory Burke, seeks to challenge by Judicial Review a decision of the Defendant ['the IPCC'] on 26 March 2012. He describes the decision in the following terms in the Claim Form:

"Failure to agree to a reasonable request for a review of a decision dated 26 March 2012, which refused to alter the mode of investigation ['MOI'] into a complaint of police corruption made on 9 April 2010 …."

2. The Claimant had originally made an application to Wyn Williams J for Judicial Review of the Defendant's refusal in May 2009 to extend time for appealing against a decision of the interested party in September 2007, the Metropolitan Police Commissioner, that a complaint ['the first complaint'] made by Mr Burke against police officers was not proven.

The factual background

3. The background to that matter was that on 3 May 2004 four officers of the Metropolitan Police attended at the Claimant's home in Roehampton in consequence of a complaint made by a neighbour of the Claimant, a Mr De Souza. They arrested the Claimant on suspicion that he had committed an offence contrary to section 4 of the Public Order Act 1986, and an offence of possession of offensive weapons, namely knives. The Claimant was taken to Battersea Police Station and detained overnight. On or about 4 May 2004 the Claimant was charged with those offences.

Consequent court hearings

4. On 13 October 2004 there was a hearing at the Crown Court at Kingston upon Thames. It is common ground that at this hearing the prosecution offered no evidence against the Claimant on the charge of possessing offensive weapons. A letter dated 26 March 2010 from the General Office Manager at the Crown Court as to this reads as follows:

"On the 13/10/04 the case was listed as a Floater Trial and on that day the prosecution decided to offer no evidence as it came to light that the Crown could not prove their case. The section 41 offence [sic] of 'threatening words and behaviour on the 3^rd May 2004 … with intent to cause police officers harassment, alarm or distress' was sent back to the Magistrates …. This is the exact wording from the paperwork we have on the file."

5. Some confusion seems to have arisen through what appears to have been the telescoping of some of the statutory provisions. Under s. 41 of the Criminal Justice Act 1988 magistrates can commit or send certain summary offences to the Crown Court where a defendant is committed for trial on an either-way offence. One such summary offence is that of causing "fear or provocation of violence" under section 4 of the Public Order Act 1986. That offence is defined as follows:E+W

"(1) A person is guilty of an offence if he … uses towards another person threatening, abusive or insulting words or behaviour, … with intent to cause that person to believe that immediate unlawful violence will be used against him or another by any person, or to provoke the immediate use of unlawful violence by that person or another,…."

The Crown Court cannot deal with a summary only offence under sections 41 or 51 if the defendant pleads not guilty to it, or if he is acquitted on all related counts on the indictment. There is no power in those circumstances for the Crown Court to dismiss the charges. They can be dealt with only by the magistrates' court. There is some doubt as to whether there is in law any power in such circumstances for the Crown Court to remit such a summary-only offence back to the magistrates court. (In practice the procedural problems are now usually circumvented by the Crown Court Judge using his or her statutory power to sit as a District Judge of the Magistrates Court, and giving appropriate directions in that capacity.)

6. Trial on the summary charge took place at Bow Street Magistrates' Court. On 16 May 2005 Mr Burke was convicted of the offence contrary to section 4 of the Public Order Act 1986. Curiously, the charge (see trial bundle 46) referred not to the police but to Mr de Souza as the target of the threats or abuse. Such explanation as has been given for that change is unsatisfactory – at least it most certainly is unsatisfactory in Mr Burke's opinion. An appeal against that conviction was dismissed at the Central Criminal Court in October 2005.

The first complaint

7. Mr Burke had by then already made the first complaint about the conduct of the officers who had attended his home and arrested him. In August 2006 that complaint was referred to the IPCC, who referred it on to the Interested Party for local investigation. He decided, a year after the referral, that the complaint was unfounded and claims to have informed Mr Burke by letter of his decision and of Mr Burke's right to appeal. Mr Burke said that he had never received such a letter.
8. About 16 months after the letter was purportedly sent to Mr Burke, he discovered that the Interested Party had completed the inquiry into his complaints, and also that he was maintaining that he had notified Mr Burke of his decision by letter.
9. Mr Burke sought an extension of time from the IPCC in which to appeal against the decision taken by the Police Commissioner. The IPCC refused the extension. After Mr Burke had commenced judicial review proceedings the Court directed that the proceedings should be stayed pending the IPCC completing its decision into whether the Interested Party had communicated his decision to Mr Burke. The IPCC concluded that the police commissioner had sent the letter, but it stopped short of concluding that Mr Burke had received it.
10. In the light of that conclusion the IPCC maintained its earlier decision ('the first decision') to refuse Mr Burke an extension of time for appealing against the commissioner's decision, on the grounds that he had an obligation to be pro-active about his complaint and his ill-health did not justify his failure to ask about progress of the investigation, and because it would be an injustice to the police officers to allow the complaint to proceed. Mr Burke contended that the Defendant Commission's decisions were perverse as he had been unaware of the decision letter and had been unwell during the period after the letter was purportedly sent to him.

The judgment of Wyn Williams J

11. In the course of his judgment Wyn Williams J said this,

"The appeal lodged on 10 February 2009 was considered on behalf of the Defendant by a casework manager, Mr Erik Waitt. He produced a written document ("the first decision") setting out the basis for his conclusion that the extension of time sought for the bringing of the Claimant's appeal should not be granted. His core conclusions were these. 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. It is clear that in reaching these conclusions the Mr Waitt considered the communications from the Claimant listed in the preceding paragraph. I say that because he lists each of them in his decision and considers, expressly, those parts, if any, which he considers relevant to the decision."

12. The learned judge refused to grant Judicial Review. He held that when the first and second decisions were read together, as they ought to be, it was clear that the commission had reached a decision which was neither irrational nor unreasonable. The Police (Complaints and Misconduct) Regulations 2004 reg.10(1) required that any appeal made by Mr Burke should have been made within 28 days of the date on which the commissioner had sent a notification to Mr Burke of his determination. The commission was empowered under reg.10(8) to extend the time for appealing in any case where it was satisfied that by reason of the special circumstances of the case it is just to do so.
13. The judge said that whilst it might seem hard that Mr Burke should lose a right of appeal when he might never have received the letter communicating the decision against which he wished to appeal, it had to be remembered that there was no communication between Mr Burke and the commission for a period of about 16 months, and the time for appealing expired within a few months of the beginning of that period. While Mr Burke had suffered ill health during that period it was not possible to say that the commission had been unreasonable or irrational in concluding that Mr Burke had the opportunity to make inquiries as to whether or not the commissioner had concluded its inquiry into his complaint very much earlier than he had, and that his failure to do so was a very significant factor weighing against the grant of an extension of time for appealing. Further it had to be borne in mind that the decision under challenge was a decision relating to an appeal. There had already been an inquiry into the police officers' conduct and that conduct would also have been scrutinised with considerable care during the course of the criminal trial against Mr Burke in respect of the section 4 offence.

The Appeal

14. Mr Burke was given permission to appeal by the Court of Appeal, but at the hearing they dismissed the appeal. They held that Regulation 10 could not sensibly be read as making time run from receipt of the decision notification: to do so would do violence to the language of the legislation and did not reflect the realities of the case. Further, there was no need for reinterpreting reg.10 so as to refer to receipt rather than sending of a notification. If the notification was sent, but there was a delay in receipt, justice could be done by extending time for appealing. If an appeal was out of time, the fact that the appellant had received late notification of the decision would be a weighty factor in exercising the discretion to extend time, but it would not always lead to an extension of time. There might be other legitimate considerations when exercising the discretion to extend time. The overall circumstances of the delay were given careful and rational consideration, and the Commission had been entitled to refuse to extend time for appealing. Judgment was given on the appeal on 19 December 2011.

Other proceedings

15. In other proceedings, Mr Burke had made claims for damages against the IPCC, the Interested Party, the DPP, one or more of the officers involved, and various other parties for malicious prosecution, misfeasance in public office, assault, false imprisonment, and personal injuries. (It is fair to say that the Claimant had begun his pursuit of a personal injuries claim against the police at a very early stage, as is evidenced by a letter from solicitors acting for the Interested Party dated 6 February 2005 (C 44-5), in which they mention the personal injury protocol, and which makes reference to a letter of claim from the Claimant dated 24 January 2005). All these claims were eventually struck out by the Master on 17 May 2011 and an application by the Claimant for permission to appeal was dismissed by Sharp J on 26 April 2012, who recorded that all the applications were totally without merit.

The second complaint

16. In the meantime Mr Burke had made a separate complaint about officers of the Metropolitan Police Service ['MPS'] to the IPCC on 9 April 2010, which I shall refer to as 'the second complaint'. By this complaint he asserted that senior officers in the MPS had covered up matters regarding the conduct of the 4 officers who were the subject of his original complaint. However, he did not provide any evidence to back up the assertion. An internal memorandum from Simon Timms dated 12 March 2012 (p.17 Interested Party Bundle) contains the following observations:

"I have reviewed numerous emails, letters, reports, legal documents and police records to see if there is any evidence to back up the allegations that senior police officers are involved in a cover-up. However, there is no evidence that I have seen to give any credence to these complaints. In an email … dated 11 February 2009 Mr Burke states that 'I am comforted by the knowledge that I have contemporaneous notes to provide that persons in the Met, at the highest level, knew what was going on.' …. At no point, however, does Mr Burke clarify who these senior officers are or what the details of his contemporaneous notes are that show any involvement of these unnamed officers. From the documents I have seen the most senior officer involved appears to be a Chief Inspector Theobald who made a statement which described how he had forwarded Mr Burke's complaint to the department of Professional Standards and Directorate of Legal Services ['PSD'], and how he had visited the complainant to personally give him a copy of the Custody CCTV. The IPCC would have no concerns with such actions taking place. The fact that Mr Burke has not provided any of his contemporaneous notes that are alleged to support his allegations is puzzling, if they support his allegations, why not provide them?"

17. In a pre-action protocol letter to the IPCC dated 31 March 2012, Mr Burke said that the issue was "quite simple". The second complaint to the IPCC had been referred to a senior lawyer on the staff of the IPCC in Manchester, a Mr Webb-James. He asked the author of the memo referred to above (Mr Timms) to investigate, as Mr Timms had no previous knowledge of the case. Whilst this seems to have been done with the intention of allaying any fears Mr Burke may have had as to the independence and objectivity of the investigator, it seems to have had something of the opposite effect, as Mr Burke says, "Webb-James effectively allowed an individual who had no prior knowledge of the case to look into a matter which he had been asked to look at and then accepted without reservation that the decision was reasonable". Mr Burke pointed out that the matter was referred to him on 29 February and Mr Timms completed his review "dressed up as an internal memo" on 12 March 2012. Mr Webb-James then sent him a decision letter on 17 April 2012: "It is this decision … that I am challenging". That last observation is plainly an error: the decision was on 26 March 2012.
18. The IPCC replied to Mr Burke's pre-action protocol letter on 17^th April 2012 (trial bundle pp.1-2). In that letter the IPCC made, inter alia, the following points:

i) The original determination of the mode of investigation took place in May 2010 when the matter was referred to the MPS. A local investigation took place. Whilst Mr Burke wrote a letter before action in respect of that, he did not in fact pursue Judicial Review of it.

ii) Upon receipt of Mr Burke's letter in March 2012, the matter was placed before a senior casework manager who had no earlier knowledge of Mr Burke's cases. This decision, to bring a fresh mind to bear upon the complaint, was as a result of "… your often stated intention to bring criminal proceedings against members of staff who have previously dealt with your appeals and the litigation that flowed from them".

iii) The consequence of the investigation was that the second complaint was rejected on a review of all the evidence.

iv) The suggestion by Mr Burke that the investigation should have considered the investigation of the first complaint was rejected. That was the same point as had been made when Mr Burke threatened proceedings, but did not issue them, following the May 2010 investigation.

v) The review was directed towards the second complaint – the cover-up by senior officers alleged by Mr Burke. His reference to documents which show that the original complaint was never properly investigated did not bear upon the cover-up issue.

19. Mr Burke's reference to "documents which show that the original complaint was never properly investigated" is a reference to documents which were not disclosed by the IPCC until Mr Burke made a 'Freedom of Information' ('FOI') application in either June or October 2011. On 22 December 2011 (the day upon which the Court of Appeal dismissed his appeal from the order of Wyn Williams J) the IPCC disclosed for the first time an internal report on the investigation into the first complaint which appears to throw a very different light upon it.

The Napier Review into the first complaint

20. That report is entitled "Review of Case re Judicial Review Application of Mr David Mellory BURKE". It is under the hand of Patricia Napier. Under the heading "Complaint" Ms. Napier states that a complaint was recorded by the MPS on 1^st January 2005. It was recorded as (1) perjury by the officers; (2) conspiracy between the CPS and the police to commit perjury; and (3) abuse of process. Ms. Napier said,

"It is unclear what, if any, investigation of these matters was conducted by the Professional Standards Department (PSD). After the complaint there was a period of sub-judice. Mr Burke wrote to PSD on 20^th July 2006 whereupon the allegation of a serious injury caused by police was identified by PSD officers and the case was referred to IPCC on 1^st August 2006. Referral stated: Mr Burke alleges that the officers have conspired together to falsify their evidence, and Mr Burke suffered a dislocated hip. Following an MOI [Mode of Investigation] decision it was returned to the police for local Investigation on 4^th August 2006. Subsequently on 10^th September 2007 a decision letter was sent from PSD to Mr Burke concluding the Investigation."

21. Ms. Napier then sets out a paragraph headed "Considerations". In this she records the fact that the IPCC received the notice of appeal from Mr Burke on 10 February 2009, while the deadline for an appeal would have been 25^th October 2007 "had Mr Burke received the decision letter from PSD with notification of his right of appeal". As a result, IPCC sent Mr Burke a copy on 16 April 2009. She referred then to Mr Burke's representations for permission to appeal out of time, in particular that Mr Burke had been unwell and that he had been under the impression that IPCC were investigating the matter, not the police. She mentions the decision to reject Mr Burke's 'out of time' representations on the basis that there was evidence that he had, when unwell, been capable of corresponding with doctors, and so he should "pro-actively sought an update on his case". Nevertheless Ms. Napier pointed out that on the MOI letter which is sent to all complainants by the IPCC when a complaint is sent for local Investigation, the wording is that "In the meantime, MPS … will have a responsibility to keep you informed on the progress and findings of the Investigation". She added,

"It was concluded that the appeal was invalid. This is not correct, the appeal was a valid appeal and the fact that it was deemed potentially out of time does not make it invalid". (She does not cite any authority.)

22. Ms. Napier then considered the merits of Mr Burke's representations. In a carefully-reasoned analysis she said, in effect, that whilst it might not be possible to be certain that Mr Burke had not received the letter from the PSD, it was possible to conclude that it was more likely than not that he did not receive it. The reason she gave was that if he had received it he would have been likely to have reacted to it, as it addressed only the element of deception by the officers, and not his complaint that the officers had seriously injured him. (That seems to me to be a good point: in virtually every letter and other form of written communication since 2006 at least the injury has been a predominant grievance.)
23. Ms. Napier pointed out that the rules provide for the IPCC to allow an extension of the period if it is satisfied that special circumstances exist which make it just to do so. She said that the nature and extent of Mr Burke's health problems, in her opinion, "do provide compelling argument as to why he did not pursue the status of the Investigation of his complaint", and added that there was clear documentary evidence to show that Mr Burke was under the misguided impression that IPCC were somehow involved in the investigation, so that in her view there were indeed special circumstances and the appeal should have been allowed.

Conclusions of the Napier Review

24. Ms. Napier then added the following observation,

"To say that this complaint has already been investigated is incorrect."

The reasons she gives may be summarised as follows. (1) Sub judice considerations would have caused some delay in the Investigation, but nevertheless after the referral letter from IPCC some 13 months elapsed before a decision letter was issued concluding the investigation when it was still, on the evidence before her, incomplete. (2) PSD did not refer the matter back to IPCC when new evidence was brought to the attention of the officers. (Ms. Napier does not make it clear exactly what evidence she is referring to). (3) Mr Burke was never at that stage interviewed, as he should have been. (4) His hip injury was not investigated. (5) The allegation of perjury was not given the weight it deserved. (She does not go into detail as to what she had in mind, although it is not difficult to think of a number of questions which should have been asked). (6) PSD did not follow IPCC directions: it only considered part of the complaint "and that not in any depth". (7) "PSD should have should have raised concerns for the IPCC about the investigation itself outside of the appeal". (8) The decision letter was inadequate: "it purports to represent … a final investigation report". However, it was just over 2 pages long and was based mainly on the evidence of the officers who were themselves the subjects of the complaint. There was no attempt, she seems to be saying, to explore the underlying truth of the matter, or, in an expression sometimes used (though not by her) to "drill down" through the officers' evidence. (9) Its concluding paragraph was an example of "lack of care" which characterised the whole document, with its reference to the MPS being committed to resolving all the issues that "your client has raised in her [sic] complaint". (10) When MPS were asked for background papers they were not provided.

25. Ms. Napier concluded that, on the evidence, Mr Burke had not received good service from the complaints system "as a whole". Those words seem to indicate that she must be including the IPCC. Since the MPS had not sent the IPCC background papers, she said that

"It is impossible to judge what investigation was undertaken in respect of Mr Burke's allegations that police officers conspired to falsify evidence and committed perjury."

26. Ms. Napier concluded that whilst in normal circumstances the PSD of the MPS should be asked to provide the IPCC with background papers and the appeal could then be decided on the papers. In view of everything that had happened in Mr Burke's case she said,

"… it might be considered appropriate to ask the force to make a re-referral to the IPCC to determine a new MOI, or simply re-determine based on the previous referral."

Ms. Napier's Review was accompanied by a 2½ page chronology, demonstrating the care with which she had examined such papers as were available to her.

Non-disclosure of the Napier Review

27. That Review was not disclosed by the IPCC in the original Judicial Review proceedings. In a letter to Mr Burke dated 30 January 2012 the Head of Legal Services at the IPCC said:

"Ms. Napier was not a decision-maker in relation to your first complaint. Mr Rushmere asked her to review the file for him prior to reaching his decision. However, he did not rely upon her review when he reached his decision because it dealt with issues that had already been considered quite properly by Erik Waitt (and could not be considered afresh without the leave of the court). …. In my view, since Ms. Napier's review did not figure in the decision-making of either Messrs. Waitt or Rushmere, it did not fall to be disclosed in the judicial review proceedings. It was not relevant to the issue the court was deciding, i.e. whether the IPCC's decision-making was rational/reasonable in the circumstances. … having reviewed the Judicial Review file, it seems to me that the IPCC has satisfied its duty of candour in relation to the information it provided to both you and the court."

28. The test for standard disclosure (CPR 31.6) requires a party to disclose not only the documents on which he relies but also any documents which "adversely affect his case … or support another party's case". It is not for me now to express any view upon the soundness of the observations on disclosure which I have just quoted from the letter of the Defendant's Head of Legal Services. In any event whether the document should have been disclosed in the previous proceedings is at most a side-issue in the present proceedings. However, at first glance at least, the document is capable of having a significant bearing on the question of the review of the MOI which is the issue in the present proceedings. Before coming to that, I shall direct myself as to the principles upon which Judicial Review proceedings operate.

Judicial Review – law and practice

29. I remind myself of the following general principles. The remedy of Judicial Review exists to provide a set of legal standards which enable people to challenge the lawfulness of decisions made by public bodies such as the IPCC and others exercising public functions. Public bodies must take into account all legally relevant considerations and avoid taking into account those that are irrelevant. Fair procedures must be followed. They may, according to the context, include requirements such as these: to give notice of a proposed decision before making it; to consult and receive written representations; to disclose information before a final decision is reached; to provide oral hearings; and to give reasons for a decision.
30. The court's role, when a dispute arises, is to adjudicate on whether a legal standard has been breached. Some of the legal standards of public administration rest on principles and rules developed by the courts as part of the common law. This is especially so in relation to procedural propriety and rationality requirements.
31. The rule of law requires that the courts be accessible to people with grievances. There is, however, a legitimate public interest in preventing or minimising disruption to public administration from misguided challenges, and the court itself has an interest in efficiency to prevent delays.
32. As to the criteria on which permission is granted or refused, no comprehensive statement of the criteria for determining applications for permission exists. Failure to use a substitute remedy (especially to exercise a right of appeal) will normally lead to the refusal of permission. The most commonly given reason for refusing permission is that the claim is unarguable. The test ought to be broadly similar to that governing applications for summary judgment in other types of claim, namely that there "no real prospect of succeeding on the claim or issue".
33. Section 31(6) SCA 1981 requires the court to consider whether the granting of relief would "be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration". In all but the clearest cases, the court will, however, normally postpone consideration of hardship, prejudice and detriment to good administration until the full hearing, though only if the judge granting permission has indicated that this should be so, or if fresh and relevant material relating to delay has arisen in the meantime.

Discussion

34. As Cox J observed in refusing permission on the papers, although the Claimant says that the decision which he seeks to challenge is that of 17 April 2012, that was simply the Defendant's response to the Claimant's pre-action protocol letter. The reality is that the decision challenged is that of 26 March 2012, namely that the mode of investigation into Mr Burke's complaint that senior officers have conspired to protect the officers involved in his arrest need not be re-determined. The Claim Form was issued on the 6^th July 2012, and thus it may be said that the claim was not made promptly or within 3 months of the decision. It is clear from the judgment of Stadlen J granting the Claimant permission on 18^th June 2010 that by that end of that hearing the Claimant was well aware that the obligation to bring the claim promptly was additional to the requirement to bring the claim within 3 months.
35. There is then the point that the Claimant has in any event exercised his right of appeal to the Defendant against the conclusion of the investigation of his second complaint by the MPS. Although that is not strictly speaking an alternative remedy (as it does not have a bearing on the merits of the decision by the Defendant as to MOI) one of the issues which may arise on such an appeal is whether the complaint should be re-investigated, and the Defendant submits that it is a matter of significance as it demonstrates that this application has no practical value.
36. I have to concentrate upon the question of whether there is an arguable case for granting Judicial Review of the actual decision which the Claimant seeks to challenge: i.e. the Defendant's alleged failure to agree to a reasonable request for a review of a decision dated 26 March 2012, which refused to alter the mode of investigation into a complaint of police corruption made on 9 April 2010. Disentangling the essential complaint from other matters in the Claimant's rather prolix Statement of Facts and Grounds, and accompanying documents, is not an easy task. The Grounds in section 5 of the Statement of Facts and Grounds mainly refer to decisions and other events in 2010. However, allowances have to be made for him as a litigant in person. As he has explained in oral argument yesterday the basic point he makes is that when in March 2012 it reviewed the decision to refer the matter to the MPS (which was precisely what had happened with the first complaint) the IPCC had clear reason – in the form of Ms. Napier's Review, which by now was out in the open, and in the hands of the Claimant in particular – to regard that first investigation as having been thoroughly flawed. That is the "new evidence" he refers to at section 5.
37. The question was whether there should be a review of the "mode of investigation" – i.e. whether it should have been done by the PSD or by themselves independently. Should they have regarded the content of Ms. Napier's Review as giving them the clearest possible reason for ensuring on review that a different MOI ensuring independent investigation of this complaint was adopted? If so, that might conceivably be regarded as a failure to take into account a material consideration, which is prima facie a ground for Judicial Review.
38. The Defendant chose not to appear or to be represented yesterday. I have considered its Acknowledgement of Service and Summary Grounds for Resistance, bearing in mind that the point is far from clearly raised in the Statement of Facts and Grounds. At paragraph 9 the Defendant says that following the making of the complaint in 2010 "the Defendant considered which mode of Investigation was appropriate for the complaint, and decided to refer the matter back to the MPS. They in turn decided to conduct a local investigation". So far as the "decision under challenge" is concerned, the Defendant says at paragraph 12 that the Claimant had made a number of complaints against its staff, threatening criminal and civil proceedings. At paragraph 13 it is said that "It was decided that the decision made in 2010 to refer the Claimant's complaint should be reviewed. The review document is at page 17 of the Interested Party's bundle …. It was decided that there were no grounds to re-open the original MOI determination".
39. Pages 17-18 of the Interested Party's bundle contains Mr Timms' "Internal Memo". The concluding paragraph of that document is in the following terms:

"Clearly Mr Burke is convinced of the alleged corruption but without any evidence to support his allegations, coupled with him not supplying his contemporaneous notes as evidence in support of his allegations, the complaints appear to be conjecture. The evidence does not show any link to senior officers, or the link is tenuous at best. It would appear that the matters have previously been looked at both at criminal trials [sic] and through a complaint investigation and subsequent Judicial Review process. Given the evidence available and the passage of time since the incident I would not consider that a decision needs to be made with regards to re-determining the MOI decision made in May 2010 as the circumstances do not warrant this intervention."

This document makes no reference whatsoever to Ms. Napier's Review or to any of the concerns as to the defects of the original Investigation which she raised. How that can have happened is not explained. On the face of it, therefore, if the Timms "review document", as it is described in the Acknowledgement of Service of the Defendant, represents the decision-maker's thought processes, it is quite clear that no account was taken of Ms. Napier's concerns. If it was considered, but disagreed with, there is no reference to such disagreement or the reasons for it.

40. In his letter of 30th January 2013 referred to above, the Head of Legal Services for the Defendant Commission actually goes so far as to say this:

"Again, whilst Ms. Napier may well have made a recommendation in relation to method of investigation for your second complaint, she was again not the decision-maker in this matter. In my view, Ms. Mckenna's letter …" [which is not included in any of the parties' bundles] "… accurately and succinctly sets out why SI [Senior Investigator] Cummins reached the decision he did …" [again, this is not in any of the bundles] ",,, and that the IPCC's duty of candour has again been satisfied." [Emphasis added.]

41. The Acknowledgement of Service of the Interested Party simply does not deal with this point at all. Again, however, the point was not clearly pleaded and in any event there is little that the Interested Party could say about it, even if it had been. Mr Shetty, who appeared yesterday on behalf of the Interested Party made it quite clear that his side were previously unaware of the existence of the Napier Review, and he felt somewhat hamstrung, as he put it, in trying to deal with it ex improviso, even with the benefit of an adjournment for half an hour or so to consider it. That is perfectly understandable. It would have been wholly unreasonable for him to have been asked to argue the issue of permission in such circumstances.

Conclusion

42. Whilst I have some very serious misgivings about this case, as the Claimant has never produced any substantial evidence to support his allegations against the senior officers whose conduct he characterises as a "cover up", which is the fundamental complaint he was making, I have come to the conclusion that I cannot say that on the very narrow point (summarised at paragraphs 37-40 above) there is not an arguable case. The question of whether permission should be granted in respect of that point must, however, be subject to argument to the contrary from the Defendant and the Interested Party.
43. Therefore I must make it clear that I do not grant permission today on that point. I also make it clear that in my view the remedies which the Claimant seeks are far too widely expressed, and that whilst the court may have power, if persuaded to grant Judicial Review, to make a declaration, or to order that the Defendant re-consider its decision, taking into account all relevant considerations, the remedies available in a case such as this are limited.
44. I also make it clear that even if I had been minded to grant permission today I would have expressly reserved both the issue of delay, and (if it arises, as the Acknowledgement of Service from the Interested Party claims) the issue of abuse of process, or of prejudice and detriment to good administration, for the consideration of the court at the full hearing.
45. It does not seem to me to be fair to the Defendant, or to the Interested Party, to grant permission today on a basis which they may say has not been clearly pleaded.
46. The order I make is that (1) the Claimant has permission to re-draft his Grounds to add in clear terms the point I have mentioned as possibly meriting consideration; and (2) that the application is adjourned to be listed in court as a "rolled up hearing", on notice to the defendant and interested party, as soon as possible after the 1^st October 2013. I indicated my provisional views about these matters to Mr Shetty in advance, and invited him to make any submissions he may have wished to make upon them, and he did not seek to dissuade me from this course. Mr Burke did submit that I could deal with permission yesterday, but I overruled him. If permission to apply for Judicial Review is granted at the adjourned hearing, the Court will proceed immediately to determine the substantive claim.
47. I shall also make the following Case Management Directions.

i) The application is adjourned to be listed in court as a "rolled up hearing" on the first open date on which the parties are available after 28^th October 2012. If permission to apply for Judicial Review is granted at that hearing, the Court will proceed immediately to determine the substantive claim.

ii) Parties' dates of availability are to be sent to the Administrative Court List Office within 28 days.

iii) The Claimant must lodge, within 7 days of this order, an undertaking to pay the fee of £215 if permission to apply for Judicial Review is granted, or complete an Application for Remission of a Fee, if appropriate.

iv) The Claimant must file and serve by 4pm on 30 August 2013 any additional grounds any further evidence on which he intends to rely.

v) The Defendant and the Interested Party must file and serve by 4pm on 27 September 2013 detailed grounds of resistance and any further evidence on which they intend to rely.

vi) The Claimant must file and serve his skeleton argument and the index to a proposed core bundle by 1 October 2013.

vii) The Defendant and the Interested Party must file and serve skeleton arguments together with replies to any additional grounds by 21 October 2013. The Defendant and Interested Party must serve replies to the Claimant's proposed core bundle index by the same date.

viii) Skeleton arguments and witness evidence are to be filed with the Court, if possible, in digital WORD-compatible form as well as in printed form.

ix) The parties are to file a core bundle and bundle of authorities by 28 October 2013.

x) Costs in the case.

Listing Directions

xi) The application is to be listed for 1 day. If the Defendant disagrees with that time-estimate, the Administrative Court List Office must be informed in writing within 14 days.

xii) The case is suitable for hearing by a Deputy High Court Judge.