Jersey Unreported Judgments

Appeal - leave sought by the Appellant to appeal to the Judicial Committee of the Privy Council against the decision of the Court of Appeal.

[2017]JCA192

Court of Appeal

13 November 2017

IN THE MATTER OF AN APPEAL AGAINST THE REFUSAL EX PARTE OF LEAVE TO COMMENCE JUDICIAL REVIEW PROCEEDINGS AGAINST THE JERSEY POLICE COMPLAINTS AUTHORITY

Mr Bisson appeared on his own behalf.

judgment

anderson ja:

This is the judgment of the Court.

Introduction

1.        By judgment of 26 September 2017 (Bisson-v-JPCA [2017] JCA 156), this Court dismissed Mr Bisson's appeal against the refusal of Commissioner Michael Beloff QC, in his judgment of 12 June 2017 (Bisson-v-JPCA [2017] JRC 087), to grant leave to apply for judicial review against the Jersey Police Complaints Authority ("JPCA").  By written application dated 30 October 2017, Mr Bisson seeks leave to appeal to the Judicial Committee of the Privy Council against our judgment.

Jurisdiction of the Privy Council

2.        Though we have not heard argument on the point (the JPCA having not been called upon to participate in these proceedings to date), we are prepared to assume in favour of Mr Bisson that the Privy Council has jurisdiction to entertain an appeal against a dismissal by the Court of Appeal of a refusal of leave to apply for judicial review: cf. R v London Borough of Hammersmith and Fulham ex p Burkitt [2002] UKHL 23, per Lord Slynn at [7] and Lord Steyn at [13].

Test for leave to appeal

3.        The Privy Council grants leave to appeal:-

"in civil cases for applications that, in the opinion of the Appeal Panel, raise an arguable point of law of general public importance which ought to be considered by the Judicial Committee at that time, bearing in mind that the matter will already have been the subject of judicial decision and may already have been reviewed on appeal; an application which in the opinion of the Appeal Panel does not raise such a point of law is refused on that ground"

(Privy Council Practice Direction 3, para 3.3.3(a)).

4.        The modern approach of the Court of Appeal to applications for permission to appeal to the Privy Council was set out in Boru Hatlari Ile Petrol Taşima AŞ and others v Tepe inşaat Sanayii AŞ [2016] JCA 199D, paras [23]-[30].  The Court of Appeal cited (at [18]) the comment of Lord Reed in the United Kingdom Supreme Court in the case of in Uprichard v Scottish Ministers [2013] UKSC 21, 2013 SC (UKSC) 219 at [59], in which he described the practice of the Courts of Appeal of England and Wales and of Northern Ireland in the following terms:-

"Appeals against any order or judgment of the Court of Appeal in England and Wales or in Northern Ireland can be brought only with the permission of the Court of Appeal or of this court. In practice, the Court of Appeal normally refuses permission so as to enable an appeal panel of this court to select, from the applications before it for permission to appeal, the cases raising the most important issues."

5.        The Court of Appeal continued:-

"23.    We begin by observing by reference to paragraph 3.3.3(a) of the JCPC Practice Direction that permission to appeal (or "leave" as it is in Art 14(a) of the 1961 Law) will only be granted by the Appeal Panel of the Judicial Committee of the Privy Council "in civil cases for applications that... raise an arguable point of law of general public importance which ought to be considered by the Judicial Committee at that time".  As that is the threshold which the Appeal Panel will apply in the event that we refuse leave and an application is made to the Privy Council for special leave, it appears to this Court that we would not be permitted to adopt a lower threshold.  Indeed, it may be said that a court of appeal in such a situation should actually adopt a stricter threshold simply because the Appeal Panel of the Judicial Committee can permit an appeal to proceed even where leave or permission has not been given by the court of appeal below, whereas the Judicial Committee cannot prevent the pursuing before it of an appeal where leave or permission should not have been given by that court of appeal. 

24.      This approach appears to be consistent with what was said by Lord Reed in his judgment at para [59] in Uprichard.  His Lordship further explained his reasoning at para [60] where he went on to say:

"The public interest is served, in relation to appeals from England and Wales and Northern Ireland, by the rule that permission to appeal is granted only for applications that, in the opinion of the appeal panel, raise an arguable point of law of general public importance which ought to be considered by the Supreme Court at that time, bearing in mind that the matter will already have been the subject of judicial decision and may have already been reviewed on appeal. An application which in the opinion of the appeal panel does not raise such a point of law is refused on that ground (Supreme Court Practice Direction 3.3.3). The reasons for adopting that approach were explained by Lord Bingham of Cornhill, at the time when the final court of appeal was the House of Lords, in R v Secretary of State for Trade and Industry, ex p Eastaway [[2000] 1 WLR 2222] (p 2228):

'In its role as a supreme court the House must necessarily concentrate its attention on a relatively small number of cases recognised as raising legal questions of general public importance. It cannot seek to correct errors in the application of settled law, even where such are shown to exist.'"

...

29.      This Court is satisfied that having regard to the formulation provided in the JCPC Practice Direction and its equivalence to that in the Supreme Court Practice Direction, and the resulting relevance of the practice described by Lord Reed in Uprichard (which is a decision already noted in this Court), this Court ought also to follow the same practice.  This means that we should only grant leave to appeal to the Privy Council if we are satisfied that the arguable point or points of law which have been identified are of such clear public importance that they merit consideration by the Privy Council now.  In approaching the issue in this way, we are conscious that the phrase used in paragraph 3.3.3(a) is "which ought to be considered by the Judicial Committee at that time".  That obviously encompasses a consideration as to the immediacy of the need to address the point of law which can really only be judged by the Appeal Panel of the Privy Council.  The result is that even where it can be said that there may exist an arguable point of law, we would also need to be sure both as to the existence of that point of law and of its importance, as well of its need for determination at this time, before we should grant leave.  That is the result of the practice described by Lord Reed in Uprichard and the reasons for which were described by Lord Bingham in Eastaway.  The practice has been adopted in relation to applications for permission to appeal to the Supreme Court, and given that the respective Practice Directions are identical in this respect we can see no reason why this Court should not follow the same practice."

6.        Following that approach, it is the practice of this Court to grant leave in a case such as this only if it can be sure that there is (i) an arguable point of law, (ii) of general public importance, (iii) that needs to be determined by the Privy Council at the present time.  This Court may be well placed to judge the general public importance (for Jersey) of a point of Jersey law: I v J [2017] JCA 045B, para 3.  But the third test - that the point needs to be determined by the Privy Council at the present time - is one which this Court will normally be slow to find satisfied, given the many competing claims on the time of the Privy Council, and the unique ability of the Appeal Panel to assess their relative importance and immediacy.

Determination

7.        Mr Bisson's application for leave to appeal identifies no fewer than 28 "specific grounds of appeal", which are further developed in the context of a number of broader themes.  The application does not, in our judgement, come close to satisfying the exacting standard identified above.

8.        The majority of the grounds identified are criticisms of the judgment of the Royal Court in Bisson v Rabet and Roberts [2012] JRC 021 ("the 2012 judgment").  As we noted in our judgment of 26 September, the appropriate means for challenging that judgment was to appeal it: a course of action which Mr Bisson chose not to take.  The issue in these proceedings for leave to apply for judicial review is whether Mr Bisson in his application of January 2017 put forward an arguable case, with a reasonable prospect of success, that the JCPA breached one or more of its public law duties in issuing its Statement of Satisfaction with DCI Williamson's investigation of DI Burmingham's investigation of the complaint lodged by Mr Bisson in September 2012 and elaborated upon in January 2014.  An appeal to the Privy Council cannot be used as a vehicle either for challenging the 2012 judgment or for supplementing a complaint that was lodged more than five years ago and has long since been determined.

9.        The remainder of the grounds are essentially repetitive of those that were developed before us and ruled upon in our judgment of 26 September.  We find them no more persuasive now than we did then, and see no need to revisit or elaborate upon the reasons that we gave in our judgment.  In short, having considered the application for leave to appeal to the Privy Council, we have failed to identify any arguable point of law in it, let alone a point of general public importance that it would be appropriate for the Privy Council to consider at this time.

10.      We therefore refuse to grant leave to appeal to the Privy Council.

Authorities

Bisson-v-JPCA [2017] JCA 156.

Bisson-v-JPCA [2017] JRC 087.

R v London Borough of Hammersmith and Fulham ex p Burkitt [2002] UKHL 23.

Boru Hatlari Ile Petrol Taşima AŞ and others v Tepe inşaat Sanayii AŞ [2016] JCA 199D.

Uprichard v Scottish Ministers [2013] UKSC 21, 2013 SC (UKSC) 219.

I v J [2017] JCA 045B.

Bisson v Rabet and Roberts [2012] JRC 021.