England and Wales High Court (Queen's Bench Division) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		24/10/2008

Mr Justice Foskett :

1. Mr John Bennett, who appeared before me in person, has renewed his application for permission to apply for Judicial Review of a decision of the Independent Police Complaints Commission (IPPC), the application having been rejected on the papers by Dobbs J.
2. The decision he seeks to challenge is one made by the IPCC in March 2005 by virtue of which the Commission decided that a complaint made by him in March 2004 against officers of the Devon and Cornwall Constabulary had been properly investigated and that there was insufficient evidence to justify misconduct proceedings.
3. The complaint related to an incident on 4 March 2004 when Mr Bennett was arrested by two officers, PCs Watson and Bennett. Mr Bennett (the Claimant) alleged that PC Watson used "excessive and unjustified force" and that PC Bennett used excessive force in helping PC Watson to take him to the police van. The incident occurred when Mr Bennett had attended a Council meeting in Bude and there was a confrontation between him and his brother from whom, it is quite plain, he is estranged.
4. For reasons that will become apparent, I propose to say the minimum necessary about the circumstances. All that I need to say at the moment is that it is not in dispute that the Claimant was indeed arrested and some degree of force was used to effect that arrest.
5. Ms Dixon, who represented the IPCC at the hearing, helpfully drew my attention to the statutory framework within which the various procedures were conducted. The complaint made by the Claimant was investigated by a chief officer of the Devon and Cornwall Constabulary and he decided that no disciplinary proceedings would be brought. In accordance with his duty under Section 75(5) of the Police Act 1996 he notified the IPCC of that decision. The task of the IPCC in that situation is to consider the decision and decide whether to "recommend [to the chief officer] to bring such proceedings": Section 76(1). The procedure adopted involved the Commission forming a provisional view, inviting the Claimant's comments upon that provisional view and then reaching a final view. The provisional view was conveyed to the Claimant in a letter dated 8 February 2005 to which the Claimant did respond and the final decision was communicated in a letter of 18 March 2005. I will say a little bit more about these communications shortly.
6. Ms Dixon also drew my attention of the fact that the issue that would be before a disciplinary tribunal if one was convened would be whether it could be said against one or other or both of the officers that they "knowingly [used] more force than [was] reasonable" in the circumstances. Although the issue was not canvassed before me, it appears that the standard of proof required to establish such an allegation if it was made would be on a balance of probabilities: Regulation 27(3), Police (Conduct) Regulations 2004.
7. As it happens, at least part of the incident involving the two named officers was recorded on CCTV footage within the Council building. It does show PC Watson taking hold of the Claimant and PC Bennett joining him shortly afterwards and assisting in the removal of the Claimant from the building. It should, I think, be noted that the Claimant obviously has some disability and was walking with the aid of stick. It is really this part of the incident to which the Claimant's principal complaint relates.
8. The IPCC had this video footage available for consideration when reviewing the decision of the chief officer. As it happens, the Claimant also had the video footage it having been supplied to him, as I understand it, independently of the IPCC. I mention that simply because, in the normal course of events, there is no obligation of disclosure on the part of the IPCC whilst it is conducting its investigations: see R (Green) v Police Complaints Authority [2004] 1WLR 725.
9. At all events, that CCTV footage was considered by the IPCC along with statements from those who had been present during the evening, including the officers concerned, together with the pocket book entries of the officers and transcripts of the interviews with them.
10. In the letter of 8 February 2005 indicating the IPCC's provisional view that disciplinary proceedings were not warranted the following is said about the video footage:

"Video footage obtained of the incident shows PC Watson trying to take you out of the building. When you reach the staircase you can be seen to grab hold of a handrail; PC Watson takes hold of your lapels and tries to lift you away from the handrail, he is joined by PC Bennett who takes hold of your left arm and whilst PC Watson attempts to pull you away from the handrail. They pull you away from the stairs and take you out of the building."

Later in the letter the following is said about the CCTV footage:

"From what can viewed on the recorded CCTV footage it is not apparent that excessive force was used. On the contrary, you appeared to be resisting arrest and the officers responded by using reasonable force to remove you from the building under arrest."

11. In his letter of response the Claimant took issue with that interpretation of the video footage. He said that he stood by his suggestion that excessive and unjustified force was used upon him bearing in mind that he was disabled. What he said about the CCTV footage was as follows:

"My wife and I have both seen the CCTV footage…which shows PC Watson dragging me by the lapels to the main door, down over the steps. I grabbed a handrail pleading all the time about my legs, my spine and my back "don't do this to me." He grabs my left arm which I was supporting myself with my walking stick. He violently grabs hold of my lapels under the chin with his left hand and wrenches me towards him face to face and makes the comment 'I don't care if you're 16, 65 or crippled, nobody touches me, nobody.'"

Later in the letter of response he says this:

"The Commission's provisional decision states that I appear to be resisting arrest and that the officers responded by using reasonable force to remove me from the building under arrest. There was no voice over on the CCTV so I could not be heard to say 'mind my spine, my leg, my back, let me walk I will walk out.' I believe the officers did use excessive force in the situation"

He also suggests that the footage shows PC Watson was holding him face to face and talking to him aggressively.

12. The letter of 18 March, giving the final decision of the IPCC, indicated that the Claimant's letter had been considered "carefully" and particularly in the light of whether it raised "new evidence or representations which should cause me to review and change the provisional decision." The Commissioner indicated that having considered the Claimant's representations he confirmed his agreement with the provisional decision and gave as his reason the following:

"In my view there is insufficient independent evidence to support your allegations or to justify misconduct proceedings against PC Watson and PC Bennett."

13. As part of his renewed application for permission to apply for judicial review the Claimant invited me to view the CCTV footage, an advantage not available to Dobbs J. Ms Dixon did not object and I did so. Since this is merely a permission application I say no more than that the video might suggest a more vigorous response to the situation that confronted the officers than was truly justified. However, it is not my duty to express a view about it, one way or the other, but merely to ask myself whether it was arguably wrong for the IPCC not to have investigated the Claimant's view of what the video footage showed further before expressing the view contained in the final letter. If the Claimant's view arguably put a different gloss on what was seen on the CCTV footage, then should the IPCC arguably have revised its provisional view of what it showed? Is it arguable that the IPCC placed too great an emphasis on the need for "independent evidence" to support the Claimant's allegations when (a) the CCTV footage is perhaps the best independent evidence there was of what happened and (b) misconduct could (though, of course, not necessarily would) be established on the balance of probabilities rather than by reference to the criminal standard of proof?
14. I raise these questions without, of course, answering them? But they do, to my mind, suggest that the Claimant has an arguable case for seeking judicial review of the decision of the IPCC and I shall grant him that permission.
15. I should say that the matters to which I have referred were more persuasive of granting permission than the essential argument advanced by the Claimant before me and in the papers put before the court. It was to the effect that the subsequent receipt by him of the pocket books of the officers concerned revealed discrepancies between the entries in those books and the CCTV footage. Those discrepancies (the existence of which I will assume for the purposes of this argument without, of course, finding that they do exist) would, or should, have been apparent to the IPCC and taken into account by the Commissioner if they were considered relevant. It would be difficult for the Claimant to argue that the material was overlooked. All I would say, however, is that there is one entry in PC Watson's notebook concerning something he said to the Claimant about the circumstances of his arrest that is not far removed from the Claimant's own recollection that I mentioned in paragraph 11 above. It was in these terms:

"I don't care if you are 16 year old drunk or a 60 year old man with a bad back. You do not assault me. That's why you have been arrested."

16. That was said, according to PC Watson, outside the building and not on the staircase when the incident recorded on the CCTV footage occurred. However, it might arguably be thought to be similar to the Claimant's version of what was said. If so, the Claimant might argue that it should have been considered by the IPCC before reaching its final view.
17. For these reasons, I would permit this application for judicial review to proceed. I should, perhaps, add that, very properly and fairly given that she was appearing against a litigant in person, Ms Dixon and her client's representatives disclosed during the hearing a document showing the initial thought processes of the Commissioner who eventually made the decision in this case. I will only say that those initial thoughts showed a concern that some aspects of what occurred that evening were not "reasonably necessary or proportionate to the problem that needed solving". I was told that that initial view had been formed before the CCTV footage had been seen by the Commissioner. I would merely say that it is at least arguable that the CCTV footage might, on one view of it, arguably lend support to that initial view. However, it is not for that particular reason that I have been prepared to grant permission to proceed: it is for the reasons I have given earlier.
18. Dobbs J. granted the Claimant an extension of time for seeking permission to apply for judicial review. Ms Dixon, again very fairly, has said that that decision as such will not be challenged. However, she has reserved the right to raise at any substantive hearing the argument that the delay since the material events would be sufficient to deny the Claimant a remedy even if his application for judicial review might otherwise succeed because of the prejudice to the officers concerned. I make no comment about that other than to say that Ms Dixon has made her client's position very clear and it will be a matter that will need to be addressed at the substantive hearing.