Wilkinson, R (on the application of) v Police Complaints Authority & Ors [2004] EWHC 678 (Admin)

Case No CO/4197/2003[2004] EWHC 678 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 19th March 2004
Strand
London WC2
B E F O R E:
MR JUSTICE GAGE
Between
THE QUEEN ON THE APPLICATION OF WILKINSONClaimant-v-
Between
POLICE COMPLAINTS AUTHORITYDefendantCHIEF CONSTABLE OF MERSEYSIDE POLICEDefendant&Interested PartyPC GRIFFITHS, PC McKEVITT, PC TINSLEY, PC O'SHAUGHNESSYInterested Party
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR S SIMBLET (instructed by Jackson & Canter, Liverpool) appeared for CLAIMANTMR J DE BONO (instructed by Merseyside Police Authority) appeared for SECOND DEFENDANTMR N PAUL (instructed by Russell Jones & Walker) appeared for INTERESTED PARTIES
J U D G M E N TFriday, 19th March 2004
[1]MR JUSTICE GAGE: This is an application for an order of the court quashing a decision of the first defendant, the Police Complaints Authority, by which it revoked a direction to investigate a complaint made by the claimant against police officers employed by the second defendant, the Merseyside Police.[2]It has a somewhat unusual history. Starting from the beginning, the claimant was arrested on 14th February 2003 as a result of an incident when he was preaching or making a sermon at or near St George's Hall in Liverpool. Following arrest he was produced before the Liverpool Magistrates' Court on 17th February 2003 and granted conditional bail; the condition being that he reside at a bail hostel. He complained that in the intervening time between his arrest and bail he had been subjected to serious assault and unpleasant behaviour by police officers, including "being thrown into a cell, forced to the ground and having his clothes removed from him by force, such that he ended up naked in a cell", and suffered some injury. Accordingly, he made a complaint through his solicitors. The complaint was to be investigated by the second defendant, the Merseyside Police.[3]I have been referred to the relevant statutory procedure in respect of complaints, which is contained in the Police Act 1996. The procedure starts off with the chief officer of police, in accordance with section 69 of the Police Act 1996, determining that he is the appropriate authority in relation to a member of the police force whose conduct is the subject of complaint. Following a determination his statutory duty is to record the complaint. The procedure is then set in motion. In fact, what happened in this case is that the claimant absconded from the bail hostel and was not to be found for a period of some weeks.[4]The investigation of his complaint did not proceed, on the sensible ground that it could not properly be dealt with until the proceedings against the claimant had been completed in the magistrates' court. However, the claimant not being available, the second defendant wrote to the first defendant, asking for the first defendant to dispense with the complaint, as it was entitled to do under regulations to which I will come in a moment. A copy of the letter was sent to the claimant's solicitors, but they had no instructions and made no reply.[5]On 10th June 2003 the first defendant decided to permit the second defendant to cease their enquiries; that is to say, they gave their dispensation. That was communicated to the claimant's solicitors and also to the second defendant.[6]On 13th June 2003, three days later, the claimant was brought back to Liverpool, having been arrested on a previous occasion in May 2003 in Glasgow. On his arrest in Glasgow he was detained in Barlinnie prison. It was not, as I have said, until 13th June that he was brought back to Liverpool.[7]His solicitors became aware that he was back in Liverpool and as a result asked that the investigation of the complaint be re-opened. That application for it to be re-opened was made by a letter to the second defendant dated 2nd July. It was not re-opened and accordingly these proceedings were issued, seeking an order quashing the dispensation of the first defendant and asking for the investigation to continue.[8]There are in the papers a large number of letters passing between the parties. That has culminated in an agreement between the claimant and the first defendant that the court should be asked to make a consent order. The terms of the consent order are as follows:
"1. That the decision dated the 10th June 2003 of the First Defendant granting the Second Defendant's application to dispense with the investigation be quashed. 2. That there be no order as to costs between the Claimant and the First Defendant."
The grounds for the application are as follows:
"1. That the First Defendant has, through its solicitors, filed an Acknowledgment of Service which concluded 'the First Defendant would accordingly consent to an Order that its decision granting the application to dispense be quashed'. Accordingly the parties are agreed that the First Defendant played no further part in these proceedings and that the appropriate Order so far as they are concerned should be made by consent ... 3. The decision of the First Defendant is one which is susceptible to judicial review in the light of the public function carried out by the First Defendant."
[9]So the matter has come before me this morning. Mr Simblet, on behalf of the claimant, asked that I make the order by consent and submitted that the court has jurisdiction to do so. Mr De Bono, on behalf of the Merseyside Police, submitted that I should not make the order because the first defendant has no power now to revoke its dispensation to the complaint being completed. Mr Paul, who represents the interested parties, that is to say the police officers the subject of the complaint, has submitted to me that the first defendant has power to review its own decisions and accordingly I can make the order quashing its decision. He makes no further submissions as to whether or not it is proper to make the order. I should add that Mr De Bono submitted that if I was considering making the order, it should not be made because to continue the investigation now would be an abuse of process.[10]The starting point, so far as the power of the first defendant is concerned, is what are now the Police (Dispensation From Requirement To Investigate Complaints) Regulations 1985. They are made by the Home Secretary under the Police and Criminal Evidence Act 1984.[11]Without reciting all of the regulations, it is clear, by paragraph 3 of the regulations, that the appropriate authority, that is the first defendant, can in appropriate circumstances "dispense" (as it is called) with the investigation of a complaint. The first defendant, as the Police Act shows, is the authority to whom any report will be made once the investigation has been carried out.[12]Mr De Bono submits that the first defendant, once it has exercised its power under the regulations to dispense with the investigation, has no statutory power to revoke that dispensation. Since it is a creature of statute, he submits that it cannot do that which it has sought to do, namely to ask the court to quash its order. I am bound to say, on the face of it, that sounds a bold submission to make. He seeks to gain assistance for that submission from section 76 of the Police Act, which states:
"(1) Where a memorandum under section 75 that a chief officer of police has not brought disciplinary proceedings or does not propose to bring such proceedings, the Authority may recommend him to bring such proceedings."
And under subsection (6):
"The Authority may withdraw a direction given under this section."
His submission is that if Parliament thought it appropriate to give the first defendant power to withdraw a direction under section 76, then it must be taken that there is no authority to dispense with the complaint, otherwise it would be provided for in the statute. I am bound to say I do not find that a wholly persuasive submission.[13]It seems to me, on general principles, that if the first defendant has made a dispensation under the appropriate regulations, as Mr Paul submits, there must be power in it to review that dispensation, and having reviewed it to revoke it.[14]Mr Simblet, on behalf of the claimant, has referred me to the case of R v Police Complaints Authority, ex parte Ronald F Broome, a decision of the Divisional Court, unreported but dated 6th December 1988, a decision of Bingham LJ (as he then was), which supports the proposition to which I have just referred. Indeed, the acknowledgment of service by the first defendant refers to that decision and sets out the three matters which it has to take into account if it is seeking to revoke its decision. They are questions which it should ask itself:
"A. Has there been a refusal or failure on the part of the complainant to make a statement or afford other reasonable assistance for the purpose of the investigation? B. If yes, is the Police Complaints Authority of the opinion that by reason of such refusal or failure it is not reasonably practicable to complete a satisfactory investigation within a period which is reasonable? C. If yes, is it in all the circumstances reasonable to grant a dispensation?"
[15]Mr Simblet submits, correctly in my judgment, that this court can quash the original decision and then that procedure will be adopted and undertaken by the first defendant in order to determine whether or not it is right for the matter to proceed.[16]The claimant is now available to provide assistance to the investigating officer, and in my judgment it is a perfectly proper case for me to quash the dispensation.[17]Perhaps I may be permitted simply to say this. It seems to me that it is in the interests not only of the claimant, not only of the police officers, but also of the general public, that complaints such as this one should be properly investigated. If for, as some would see it, technical reason the investigation ceases, there will inevitably be suspicion surrounding the circumstances of the complaint. That, in my judgment, is highly undesirable. It is to the benefit of all parties, and as I say the wider public, that the matter be cleared up. If the complaint is a valid one, then clearly it is a serious one. If the complaint is of no substance, then it is right that the police officers be cleared of any suspicion.[18]Perhaps I should also add this. The second ground upon which Mr De Bono relied was that to proceed with the investigation would be akin to an abuse of process. The basis for that submission is that, following the notification to the second defendant of the first defendant's dispensation in relation to the investigation, the police officers were informed that the investigation had ended. The submission is that, they having been so informed, it would be akin to an abuse of process for the investigation now to re-open and continue. Various authorities are set out in the skeleton argument, to which I need not refer in support of this proposition.[19]In my judgment, that submission really does not get off the ground in these circumstances. The police officers have not, on the face of it, been prejudiced in any way at this stage. The investigation was not going to be started until such time as the criminal proceedings against the complainant had been completed, and therefore nothing has been done in the investigation to this stage. If there are any circumstances that occur in the future in which it can be shown that the interested parties have been prejudiced, then that may itself be the subject of further proceedings, but in my judgment it is premature, to say the least, to adopt that as a ground for refusing to quash this order.[20]In the circumstances, for those reasons this is, in my judgment, a proper case for the court to approve the consent order made by agreement between the claimant and the first defendant. I approve and make the order by consent as asked.[21]MR JUSTICE GAGE: Having made that order, as I understand it, there are no further orders or directions sought from me by the parties; is that right, Mr Simblet?[22]MR SIMBLET: My Lord, it is only this. Your Lordship will notice that on the original claim form, partly because the Police Complaints Authority were saying at that stage that they did not have jurisdiction to change their mind in correspondence, an order was sought against -- and the Police Complaints Authority suggested that it was open to the Merseyside Police to resume the investigation, in other words not to --

MR JUSTICE GAGE: If you are saying that you are seeking an order that the investigation continue --

[24]MR SIMBLET: Yes, that was on the claim form.[25]MR JUSTICE GAGE: -- I do not imagine that Mr De Bono is going to submit that I should not make an order, but equally I do not imagine he is going to say it is necessary. Once I have made it plain what my views are, I imagine that Merseyside Police will carry on the investigation.[26]MR DE BONO: My Lord, it is not necessary to make the order.[27]MR JUSTICE GAGE: I am grateful to you for that indication. I dare say you will be back here if you do not get on with the investigation.[28]MR SIMBLET: My Lord, yes. The second matter is that of costs.

MR JUSTICE GAGE: Yes.

[30]MR SIMBLET: Although the Police Complaints Authority in correspondence said they did not have an ability to reconsider it, they did at an early stage set out what their position was and concede in their acknowledgment of service, and for that reason the claimant did not seek costs against the Police Complaints Authority.

MR JUSTICE GAGE: I see, that is part of the agreement.

[32]MR SIMBLET: That is part of the agreement, yes. If the order had just been approved in the usual way, none of us would be here this morning.

MR JUSTICE GAGE: Yes.

[34]MR SIMBLET: The reason that any of us are here this morning is because the Merseyside Police has, in its acknowledgment of service and in the skeleton argument, and in the submissions made this morning and in the correspondence, taken all the points that your Lordship has rejected. In those circumstances, in my submission, the matters having been flagged up clearly in correspondence prior to the claim form and set out in the claim form and in the skeleton arguments, this is an appropriate case for the costs to follow the event and for the second defendant to pay the claimant's costs.

MR JUSTICE GAGE: Yes.

[36]MR DE BONO: My Lord, my primary submission is that it was not self-evident that the court had the power to quash the decision, and in those circumstances it may have been necessary for my learned friend to attend.

MR JUSTICE GAGE: That is an argument for not paying the whole of the costs.

[38]MR DE BONO: Yes.[39]MR JUSTICE GAGE: But there must be -- it has taken rather longer and been rather more hardly contested than it otherwise would have been, I imagine it could probably have been done by consent in fact.[40]MR DE BONO: Yes. Can I invite your Lordship then to order that the second defendant should pay the claimant's costs of proceeding against the second defendant only, those costs to be subject to a detailed assessment.[41]MR SIMBLET: Well, the trouble with that is that, by the position the second defendant has taken, it has materially added to the costs of proceeding against the first defendant because --

MR JUSTICE GAGE: Why is that so?

[43]MR SIMBLET: Because the costs of proceeding against --

MR JUSTICE GAGE: You would have had to --

[45]MR SIMBLET: We would have had to issue the claim form.[46]MR JUSTICE GAGE: Exactly. I cannot actually see that it has materially added at all to the costs that you have incurred against the first defendant.[47]MR SIMBLET: Well, only in this measure. Certainly things like putting skeleton arguments and being here today has because we had reached terms.

MR JUSTICE GAGE: Yes.

[49]MR SIMBLET: If your Lordship recalls my first skeleton argument --[50]MR JUSTICE GAGE: Yes, but I do not see how your costs are any different in fact if I make an order that the second defendant pay your costs, excluding any costs in relation to the first defendant. I cannot see that you are really very prejudiced.[51]MR SIMBLET: I am just thinking about that on my feet and taking some instructions. A moment's reflection, we accept that that is probably right.[52]MR DE BONO: My Lord, I do not want to interrupt what is a favourable moment for the second defendant, but if your Lordship is putting it that way round, it may be appropriate to exclude the costs of proceeding against the first defendant or the interested parties for the avoidance of doubt.[53]MR JUSTICE GAGE: So far I have not heard from Mr Paul, but I am not sure you want anything much other than that nobody makes an order for costs against you.[54]MR PAUL: No, I do not want that.[55]MR JUSTICE GAGE: My first impression is that you should not have an order for costs made against you. You have been here and assisted the court and you have an undoubted interest in being here.[56]MR PAUL: My Lord, it has not been asked for by either party, and therefore I have nothing to add.[57]MR SIMBLET: My Lord, the original formulation of Mr De Bono is the right one, in my submission, that the second defendant should pay the claimant's costs of proceeding against the second defendant, to be subject to detailed assessment if not agreed.[58]MR JUSTICE GAGE: I agree. I will make that order.[59]MR SIMBLET: Could I also seek public funding assessment of the claimant's costs.

MR JUSTICE GAGE: Just remind me about this, do you have to put a certificate in?

[61]CLERK OF THE COURT: There is one in the file, my Lord.[62]MR SIMBLET: It is always agreeable when that happens.[63]MR JUSTICE GAGE: That is an exception to the norm. Very good. You may have that.[64]MR SIMBLET: Thank you, my Lord.[65]MR JUSTICE GAGE: I am very grateful to all of you. Thank you very much.

Cited in 4 later judgments