England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
(SITTING AT MANCHESTER)

		Manchester Civil Justice Centre 1 Bridge Street West Manchester M60 9DJ
		4 July 2013

1. MR JUSTICE TURNER: This is an application for judicial review following upon permission granted by His Honour Judge Pelling QC following an oral hearing, permission having initially been refused by His Honour Judge Stephen Stuart QC, as he then was, on 4 February 2013.
2. The background to this application goes back to events which occurred in June 2006. In brief summary, the claimant in this case reported to the police that he had been set upon by a Rottweiler dog and bitten. He took the view at that stage that the people who were in control of the dog at the time had deliberately incited the dog to attack him and that this was not an event which simply reflected an overenthusiastic dog leaping up and incidentally and not deliberately causing some level of injury to the claimant.
3. The matter was recorded in police logs. Those logs are now before the court, having been disclosed I think yesterday for the first time in these proceedings. They also reveal that at the beginning of July 2006 the claimant made what on the face of it was a rather more serious allegation: that is that there were threats to kill from one of those in control of the dog in response to the realisation that the claimant had reported the events to the police. There are also incident reports in the logs before me with respect to that matter.
4. The claimant thereafter embarked on what was to prove to be a long and tortuous path in an attempt to obtain criminal injury compensation. There is no need for me to identify the proceedings and the history of those, suffice it to say that he was unsuccessful. But he complains that the officer who was responsible for proceeding in relation to his complaints had misled the Tribunal responsible for determining the outcome of the criminal injury claim and also that he had behaved inappropriately at the outset back in 2006 by failing to record the complaints he had made.
5. By way of further complaint, it is alleged that the officer also brought to the attention of the Criminal Injuries Compensation Tribunal a printed document relating to previous convictions which, although on the face of it may be confused by reason of one of the aliases of the actual perpetrator with the claimant himself, was in relation to somebody completely different. He complains that it was improper for those convictions to be brought out before the Tribunal in circumstances where a thorough check would have revealed that they were nothing to do with him.
6. It is possible to divide the claimant's criticisms into two main areas. The first, which for the sake of convenience and ease of reference I will call "A", relates to what the officer did or did not do within the context of the initial complaints. The second tranche of allegations, which I will refer to as "B", concerns the events in the context of the criminal injury compensation application and determination.
7. There came a time when the claimant took the step of making complaints with respect to the conduct of the officer in those two broad respects to the Greater Manchester Police. The Greater Manchester Police eventually were required to register formally those complaints and then took the step, as they were entitled to do, to apply to the IPCC (which is the decision maker and defendant in these proceedings) to provide them with dispensation from following the formalities which would otherwise be required under the relevant statutory regime.
8. I do not intend for the purposes of today to set out in detail the way in which the regime is worded. This is an extemporary judgment and the proportional response to this application is simply to identify the fact that the Police Reform Act 2002, unless a dispensation is granted to the police, requires the police to take a number of determined and formal steps with respect to any complaint that is made. There are circumstances, however, set out in schedule 3 to the Act in which it is permissible for the IPCC upon the request of the police to provide them with a dispensation. The effect of that dispensation does not automatically mean that any complaint will be ignored; it merely means that the police are not required to go through all the formalities that would otherwise be required of them under the legislation. It would therefore be consistent with the granting of a dispensation that there would still be a response to the complaint, not necessarily, however, in the precise form required by the procedure that would otherwise be formally required.
9. On this occasion, complaint was made and the police applied to the IPCC for dispensation. The grounds upon which such application was made are set out in a document, which again has recently been disclosed, in the defendant's bundle. The basis upon which a dispensation was sought was on the assertion that the complaints were out of time. The document, which is stamped as received on 13 August 2012 by the IPCC, in their standard template states: "Application for Dispensation", the basis is:

"Out of time: More than 12 months have elapsed between the incident, or the latest incident, giving rise to the complaint and the making of the complaint and either that no good reason for the delay has been shown or that injustice would be likely to be caused by the delay."

10. The IPCC decided in favour of granting the application for dispensation. Their decision was set out in the letter dated 4 September 2012. This is what the letter said:

"Dear Mr Adams,

I am writing about the application made by Greater Manchester Police to dispense with the complaint you made on 29 September 2011.

Greater Manchester Police have recorded your complaint as follows:

'Mr Adams raises concerns in relation to the conduct of an officer in that he:

A. Failed in his duty to report crime details in relation to an incident on 01/07/06.

B. Provided false or misleading evidence to a tribunal hearing held on 03/10/2010.

Having considered all of the available information I find it necessary to look at each allegation separately in order to put the application for Dispensation into context.

Allegation A:

The incident happened on 1 July 2006 and you made the complaint on 29 September 2011. I have considered your letter dated to Inspector Davies, on 11 July 2012, where you state that the reason for the delay in making the complaint is a 'result of uncertainty.'

As more than 12 months have elapsed between the incident (or the latest incident) giving rise to the complaint and the making of the complaint and that you have not provided a good reason for the delay. As I find that you have not provided sufficient reasons for the delay in making the complaint I consider that you could have made the complaint at an earlier date.

Additionally, I find that injustice may be caused by the delay in making this complaint as the lapse of time from the date of the incident and the date of the complaint made will affect people's recollection of events and the availability of evidence. The IPCC Statutory Guidance states that it is important that complaints are made at the earliest opportunity to aid the effectiveness of the investigation.

Allegation B:

In order to investigate allegation B it would be essential to use the findings of allegation A. As allegation A has been found to be out of time, I consider that injustice would be caused as the lapse of time since the incident that you complained about is such that a satisfactory investigation could not be carried out.

As a result, I have agreed to grant a dispensation. This means Greater Manchester Police should handle your complaint as it sees fit. I have told the Greater Manchester Police of this decision.

I accept that our decision may be disappointing to you. However, in view of the circumstances set out above, I believe that it is appropriate for the Greater Manchester Police to deal with your complaint as it sees fit."

This is the decision which is the subject of the challenge by way of judicial review.

11. The matter came before His Honour Judge Pelling QC before certain documents had been disclosed, in particular the application for dispensation and the accompanying documents.
12. With respect to allegation A, I am satisfied that the decision letter is entirely supportable, rational and legal. For whatever reason, there had been a delay of several years since July 2006. In terms of whether or not what was said or observed at the time would justify a complaint in relation to a failure to record as a crime and a failure to act adequately upon the basis of what was alleged of the other evidence, I consider that it was entirely understandable that the IPCC, regardless of whether or not what was put forward for the reason for the delay was good or otherwise, was entitled to form the view that the passage of time was such that the necessary criteria identified in schedule 3 paragraph 7 had been fulfilled.
13. Allegation B, however, is a different category of complaint, not only because it related to a more recent matter (in fact over four years more recent that the allegations in relation to the dealing with the report of the crime) but also because it referred to matters which were at least evidenced by a level of formal contemporaneous documentary evidence. The formal contemporaneous evidence comprised in particular the incident report and also the formally recorded findings of the Tribunal. The complaint made by the claimant was that the officer concerned had actually misled the Tribunal in a number of respects. For the purposes of this judgment, I will identify those parts of the formal written reasons set out by the First-tier Tribunal for reaching their decision adverse to the claimant. Paragraph 10 of those formal written reasons reads as follows:

"The Tribunal heard evidence from the Applicant and PC Unison..."

I pause by saying that it is probably a misprint and that although the officer in question has been variously identified as "Unison", "Urmson" and others, that his name was probably not "Unison":

"The Applicant stated that he was walking in a local park on 29 June 2006 and that two boys with a dog were coming towards him. The dog was on a flexible lead and remained on the lead at all times. The elder youth made a remark in Asian which he (the Applicant) did not understand. The dog then jumped up, growled and 'bit into' his forearm. The Applicant claimed he had attended Manchester Royal Infirmary where he was given a tetanus injection. He did not require stitches for the wound, nor a bandage or dressing. The wound dried up and did not bleed profusely.

About a fortnight later, according to the Applicant the, the older youth pursued him on a bicycle, obstructing his way, and complained about him reporting the dog to the police. The boy threatened to kill him and indicated that he had a gun. The Applicant reported this to the police immediately by a 999 call.

PC Unison met the Applicant at the locus just after the alleged attack by the dog. He saw that his forearm was scratched but did not have any 'puncture' injury consistent with a dog bite. It seemed to be a scratch possibly caused by a dog's nails. He visited the dog's owner. The animal while large and boisterous was not aggressive. It was well cared for by a responsible owner. It was a Rottweiler and not a 'dangerous' dog in the statutory sense. It was not known to the police.

PC Unison visited the Applicant in his house at a later date. This was not in response to a 999 call. The Applicant did not report death threats by either youth or of his having a gun. Such reports given their gravity, would have been known generally by him and his colleagues and would have been investigated as a matter of urgency."

14. Subsequently, at paragraph 12(ix), the Tribunal recorded the following:

"No report of a crime as having occurred was made arising out of the Applicant's complaints. The dog had not been used as a 'weapon'.

In relation to the Applicant's allegation of a subsequent death threat by one of the youths and of his having a gun there is no police record."

15. Then finally, the reasons set out in paragraph 13 of the Tribunal judge's decision:

"The Tribunal considered that no award was appropriate. It considered that on the balance of probabilities the Applicant had not been the victim of a crime of violence. The Applicant in the Tribunal's view, was not a credible or reliable witness. In particular while he claimed that the dog had 'bitten into' his forearm, he admitted that the wound did not bleed severely and that it did not require a bandage or dressing. PC Unison (whom the Tribunal considered to be straightforward and honest in his account) described it as a scratch injury consistent with contact with the dog's nails, but not consistent with a bite. There was no medical evidence available. The dog was not a 'dangerous' dog in the statutory sense: it was not known to the police: it was boisterous but not aggressive. The Tribunal did not consider that it had been used as a 'weapon'.

The Tribunal did not accept as credible the Applicant's account of a second incident in which he had been chased by the older boy, who was riding a bicycle, and threatening to kill him and warning that he had a gun. We find persuasive PC Unison's account that such a serious allegation, if reported, would have been investigated as a priority by the police and formally reported as a crime. There was no satisfactory evidence that this allegation had been the subject of a 999 call by the applicant.

After submissions we adjourned briefly having requested that a search of police records be made about the allegation of death threats and of a gun. No record of that or a relevant 999 call could be traced."

16. In stark contrast to those findings, the incident reports relate in particular to the second alleged incident of threats to kill in the following words:

"Message: Threats to kill. A/P was victim of dog bite ... States that police warned the owner of dog; owner of dog [has] just approached him on Parsonage Rd; demanded to see A/Ps arm; A/P refused.

...

Comments: Said it was him and he was going to kill him said he was a gangster then reached into his pants."

17. There is therefore a stark contrast between the incident report and the evidence at least as recorded by the Tribunal as having been given by the officer relating to whether there was a record and what it said. The IPCC were in possession of the relevant incident reports because they had been provided with them as an attachment to the police for dispensation. They did not have in their possession the Tribunal reasons with which to compare them.
18. However, I am driven to draw certain conclusions in terms of the decision-making adequacy behind the letter of 4 September 2012 to Mr Adams which I have set out almost in full. First of all, the allegation A was a failure to report crime details in relation to the incident. It must have been abundantly clear to the IPCC that from the incident report forms they had there was a substantial amount of detail recorded contemporaneously and that, based on the way in which the claimant had put his case, they were put on notice that the actual factual background was entirely in contrast to that which had been provided in terms of the basis of the complaint by the claimant. Although I have already said that it was entirely appropriate for the IPCC to conclude in relation to allegation A that regardless of the existence of the report there would still be items of personal recollection which would entitle them to reach the decision that there would be substantial difficulties in making a just determination of the issue, it is difficult to see why, when they were in possession of those reports, that is not something which should have been brought to bear on the next decision: that is whether or not there would be justice in relation to the category B claim because, of course, the existence of contemporaneous records and the knowledge that there had been formal proceedings in relation to criminal injury would be something one would be forgiven for thinking might be in the forefront of their consideration. There is no reference at all to that in the passage within the letter of 4 September 2012 relating to allegation B.
19. One of the complicating features of this case is that the claimant (it is not suggested that this was done with any sinister motive, it was an error) identified the date of the Tribunal hearing as being later than it actually was. Accordingly, the IPCC treated that complaint as if it were within 12 months. Their determination of that issue, therefore, was based on the assumption that the basis upon which the dispensation had been applied, which was founded necessarily on the premise that there had been a 12-month delay, did not actually apply. The point has been made on behalf of the claimant, and there is force in this, that as a result the decision letter in relation to allegation B purported to resolve the application for dispensation on the basis in respect of which no application could have been consistent with their decision, because as I have remarked earlier the only basis was the out-of-time basis and the IPCC responded to the application under the assumption that it was within time.
20. The response to allegation B was relatively close in wording, but not identical, to that of subparagraph (f) of 3(2) of the 2004 Regulations made under the 2002 Act. That provides for dispensation to be given where it is not reasonably practicable to complete the investigation of a complaint or any other procedures under schedule 3 to the 2002 Act. The wording of the decision letter elides that concept with the question of injustice being caused, and therefore effectively creates a hybrid basis of discretion which is not formally set out within the provisions of the Act. That, in my view, is an unsatisfactory way of dealing with it.
21. Stepping back from that background detail, in relation to the decision letter I find that it was inadequate to deal with allegation B in that respect and inadequate in particular not to identify the fact that there was at least a substantial amount of detail available in relation to what had been recorded. This is not an aspect of the case that depended on recollection going back to 2006; the contrast is between what is recorded in the contemporaneous incident reports and what was actually said by an officer involved. It is noy part of my job to reach a decision as to whether or not that contrast is something that is susceptible of reasonable explanation by or on behalf of the particular officer. That is no part of the duty of this court. My function in the public law context is to reflect upon whether the decision letter can stand in relation to allegation B bearing in mind that no mention is made of the existence of the incident report in terms of determining it and also applying a test which appears to me to be legally irrelevant, because the basis upon which allegation B is set out does not comply with the recording of any regulation or statute.
22. In those circumstances, I am satisfied that the proper approach is to quash the decision in relation to allegation B. To make that clear, that relates to two particular questions: that is the evidence given by the officer concerned with respect to what was contemporaneously recorded and also the criticism that the criminal record, which it is now asserted had nothing to do with the claimant, was presented to the court. I stress again, in relation to the second allegation I make no findings as to whether that was justifiable or what the particular factual circumstances were, merely identifying an issue which it is right and proper to be determined on a public law basis.
23. The consequence of that, therefore, is that I remain satisfied that allegation A, as to what was complained of and whether it was treated as a crime report back in 2006, should not be reopened and that the decision maker in that regard was not susceptible to review. I do, however, quash the decision in relation to allegation B.
24. The consequence of that is that the matter must now be reconsidered by the IPCC, bearing in mind the relevant factors. Those factors, of course, will include all matters to which I have made reference in this judgment. Of course it is perfectly open to the IPCC to look at the wording of that part of the dispensation relating to the 12 months having been elapsed and now we know that that is the position. I am not going to speculate as to whether the decision be made as to whether it is a good or not a good reason. That is not my function; that is the function of the decision maker. Therefore, the matter will be proceeding now on the basis that it is looked at again in the context in which I have defined the proper test, and the resolution will be made on the basis of the knowledge that we now have, including the actual timing of the Tribunal hearing the evidence.
25. MR FIELD: My Lord, could I just add. I think it is implicit but so there is no doubt, not just we now know the timing but we now have a transcript of what was said. The IPCC have that and that is something they must consider.
26. MR JUSTICE TURNER: It will be on the basis of the entirety of the evidence now available.
27. MR FIELD: My Lord, yes.
28. MR JUSTICE TURNER: Are there any further applications?
29. MR FIELD: My Lord, there is an application by the claimant who is publicly funded that the defendant pay the claimant's reasonable costs so that it relieves the legal aid agency of that burden.
30. MR JUSTICE TURNER: What are the costs?
31. MR FIELD: There is no schedule and my understanding is that the way that such an application is made, the costs summary that would be generated for the LAA is not made on the same basis as a costs summary for the defendant. Could I invite the court to allow perhaps seven days for the schedule of costs to be formulated?
32. MR JUSTICE TURNER: I have not awarded them yet.
33. MR FIELD: No. If my Lord orders them.
34. MR JUSTICE TURNER: What do you have to say?
35. MS WHITELAW: I think on the basis that the decision be reconsidered then I do not really have any submissions to make in respect of costs.
36. MR JUSTICE TURNER: Well, I will therefore order in addition that the claimant's costs should be paid on the legal aid basis and also that a schedule of those costs will be provided by no later than 4 pm on 10 July 2013.
37. MR FIELD: Thank you, my Lord. Could I ask not in those terms, please, my Lord. The standard is that if a claimant is legally aided he applies for his costs from legal aid, or claimant's representatives, on the legal aid basis, but the way that the costs regime recognises a winning claimant, it is a different basis, and so the claimant goes to a party --
38. MR JUSTICE TURNER: Can I suggest that you put your heads together and agree an order?
39. MR FIELD: Yes.
40. MR JUSTICE TURNER: It does not look to me as if it is rocket science.
41. MR FIELD: It would simply be, my Lord, that you might be minded to make the D pay the claimant's reasonable costs. That is the usual order.
42. MR JUSTICE TURNER: I will make that order and I am going to invite you to email my clerk with an order that reflects my judgment, and assuming there is no dispute about that, that will be signed by me (Inaudible).
43. MR FIELD: It was 4 pm on 10 July, my Lord, the schedule of costs to the defendant.
44. MR JUSTICE TURNER: Yes. Thank you both very much.
45. MR FIELD: Thank you, my Lord. Could I just say in open court I apologise for what happened this morning. I know it found no favour with the court.
46. MR JUSTICE TURNER: I have forgotten all about it.
47. MR FIELD: I am grateful.