Gray, R (on the application of) v Crown Prosecution Service [2009] EWHC 239 (Admin)

Case No CO/6446/2008[2009] EWHC 239 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Wednesday, 14 January 2009
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE MAURICE KAY
MR JUSTICE WYN WILLIAMS
Between
THE QUEEN ON THE APPLICATION OF BENJAMIN GRAYClaimantv
Between
THE CROWN PROSECUTION SERVICEDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
The Claimant appeared in person for in person for The Respondent did not appear and was not represented
J U D G M E N T

LORD JUSTICE MAURICE KAY:

[1]I shall ask Wyn Williams J to give the first judgment.[2]MR JUSTICE WYN WILLIAMS: This is a renewed application for permission to apply for judicial review. Permission to apply was refused by Blair J upon consideration of the papers. He refused permission because he reached the conclusion that there was no arguable case for judicial review that had been made out in the papers supplied to him.[3]The relevant history is as follows. In October 2005 Mr Gray, the applicant, resided at an address in Boswell Street in Eastville in Bristol. His near neighbours were the Ellis family. The family lived across the road from Mr Gray and the family consisted of Mr and Mrs Ellis and their children.[4]On 21 October 2005, a verbal altercation, on any view, took place in Boswell Street between the applicant and Mr Ellis. During the course of that altercation it appeared that Mrs Ellis also became involved. The events in question took place at about 10pm at night. In very summary form it was to be alleged in subsequent Crown Court proceedings that the applicant had racially abused both Mr and Mrs Ellis.[5]The same night that these events occurred the applicant was arrested. He was interviewed under caution and subsequently he was charged with two specific offences contrary to section 31(1)(a) and (b) of the Crime and Disorder Act 1998, which are offences essentially concerned with using racially abusive words or conducting oneself in a racially abusive manner.[6]On 15 November 2006, apparently a further incident took place involving Mr Ellis and the applicant and again in very summary form the allegation was that the applicant racially abused Mr Ellis. In turn that led to a further charge contrary to section 31 of the 1998 Act.[7]In late January and early February 2007 the applicant was tried at the Bristol Crown Court upon an inditement alleging these three offences. The jury empaneled to decide the case failed to agree upon a verdict and a retrial was ordered. There is some want of detail about precisely what occurred at the retrial. There is some information which suggests that the trial did not begin, a prosecution witness had not attended and a directed verdict of "not guilty" was made by the trial judge, HHJ Darwall-Smith. This morning Mr Gray, the applicant, tells us that what actually happened was that the trial did commence, a prosecution witness did not attend and the learned judge stayed the proceedings.[8]For the purposes of this application it probably matters not what precisely occurred. It suffices to say that the proceedings brought against the applicant in the Bristol Crown Court came to an end before HHJ Darwall-Smith, and that the date when those proceedings came to an end was 22 May 2007. On any view of what occurred the applicant was not convicted of any offences as a consequence of the charges brought against him.[9]The applicant has always denied the allegations made by Mr Ellis and clearly then felt, and still feels, strongly that he has been the victim of an injustice. As I understand it, following the events in May 2007 at the Bristol Crown Court, the applicant wrote a letter to the Avon and Somerset Constabulary asking that there should be a wide ranging investigation as to whether a number of persons had committed criminal offences. The letters which the applicant wrote to the constabulary are not within the bundle of papers provided to this court, but the flavour of what was being suggested by the applicant can be gleaned substantially from a letter, dated 18 December 2007, from the Avon and Somerset Constabulary to the applicant. The author of that letter was Detective Chief Inspector Paul Appleton. He had been asked to conduct an investigation in the light of the complaints which the applicant had made earlier that year.[10]It is necessary that I read Detective Constable Appleton's letter in full:
"Dear Mr Gray I refer to my previous correspondence regarding your complaints made against members of the Avon and Somerset Constabulary, the Bristol Crown Prosecution Service and the Judiciary. As mentioned in previous correspondence to you, the Bristol CID office have undertaken to examine only the allegations of perjury made in respect of Mr Ellis, PC Cussen, PC Coombe and PC Collins. The other matters will be examined by the Avon and Somerset Constabulary Professional Standards Department and the Bristol CPS. I have reviewed the evidence available in respect of the perjury allegations. These are as follows: • Mr Ellis stating he was a member of the Police Federation • Mr Ellis stating that you attempted to assault him • Mr Ellis alleging that you called him "
Monkey Boy", which you believe couldn't have happened due to insufficient time between the end of the 999 call and the arrival of the police officers. • PC Cussen denying meeting Mr Ellis before the trial • PC Collins denying conversation re the neighbour at number 5 • PC Coombe referring to the imitation blunderbuss as a sawn-off shotgun. I also refer to our conversations in which you insisted that I obtain transcripts of the testimonies given in respect of the above at the Crown Court trial. I have not obtained the transcripts because having reviewed the available evidence, I had serious concerns over whether there were any offences of perjury made out in the circumstances. As you are aware, to obtain transcripts of the testimonies would be very expensive and I have a duty to consider whether or not progressing the investigation is both proportionate and in the public interest. I could find no evidence of any of the above circumstances amounting to wilfully making a statement, material in the proceedings, which was false. I concluded that it was neither in the public interest nor proportionate to progress the investigation further. As the allegations you made were in respect of police officers and CPS lawyers, I felt it was important to obtain an impartial second opinion. I contacted Sian Sullivan, Head of Bristol CPS and asked for the matter to be referred to another branch of CPS to review my decision. I was referred to the Head of Devon and Cornwall CPS and was allocated a Senior CPS lawyer within that branch. I have reprinted the final two paragraphs of the written advice provided by that lawyer. I do not consider that there is evidence of anyone committing perjury in this case. Neither do I consider there is the slightest evidence of anyone doing any act with intent to pervert the course of justice. In those circumstances I advise DCI Appleton to indicate to Mr Gray that the complaints have been investigated and examined independently and no further action should be taken. I fully understand that you will be disappointed with my decision, but I must stress that the review by Devon and Cornwall CPS was independent and objective. I will return the file to the Professional Standards department so that any other matters can be finalised."[11]In my judgment that letter constituted a clear communication of a decision taken by the Avon and Somerset Constabulary to the effect that following an investigation on its part no further action was to be taken against the named individuals in relation to any criminal offence. In my judgment no other reading of the letter is remotely possible.[12]The judicial review proceedings as against the Avon and Somerset Constabulary were commenced by a claim form in early July. It follows that the proceedings were brought many weeks after the relevant three-month time limit had expired. During the course of the oral submissions this morning we have not afforded Mr Gray the opportunity to develop reasons why he was late in making that application, and although this application is, on the face of it, out of time, I, for my part, would not reject it on the basis of time alone. If there is a serious issue in these proceedings it is of a nature and type to be investigated and should not be prevented from coming before this court simply on the basis of time.[13]However, in my judgment the letter of 18 December 2007, to which I have referred, clearly demonstrates that the police did not act unlawfully either in failing to investigate this case properly, or in failing to recommend to the CPS that anyone should be prosecuted. In this court this morning in his oral submissions Mr Gray has sought to demonstrate that that conclusion is erroneous. It is correct that he is able to point to what I will call "discrepancies" between what Mr Ellis apparently said to a police officer when first he was approached by the officer on the night in question, and what he subsequently said in a witness statement given in proper form.[14]Nonetheless, it is clear from the terms of the letter of 18 December that all those matters were considered by DC Appleton when he reached his conclusion. As the officer points out, a consideration of the existence of possible discrepancies between what a person says on one occasion, and what he may say on another, is only part of the process which the police must scrupulously follow in deciding whether or not it is in the public interest to investigate further or prosecute. The officer makes it clear that it is proper to have regard to both proportionality and what is in the public interest. In my judgment, there is nothing in this decision letter which begins to suggest that the police did not apply the correct criteria, or test, in deciding when they should draw to a close the investigation, which was obviously instigated, and/or whether they should prosecute anyone as a result of that investigation. In my judgment, therefore, there is simply no basis upon which there is the likelihood of a successful claim for judicial review against the constabulary.[15]The judicial review proceedings also joined the CPS. In summary, following the letter of 18 December 2007, there was correspondence between Mr Gray and various members of the CPS, which culminated in a letter of 6 June 2008 written by Mr Newell, a senior representative of the CPS, based at the CPS Head Quarters in London. Ostensibly it is that decision letter which is the subject of the challenge in this judicial review. It suffices that I say, in summary, that Mr Newell points out that the police had found no basis for a prosecution against anyone, and that in those circumstances it hardly beholds the Crown Prosecution Service to instigate proceedings against anyone. I remind myself that the decision whether or not to prosecute someone is very much a decision which is to be taken by the CPS without interference from this court, unless there are truly compelling reasons as to why that position should not prevail.[16]In my judgment there is nothing disclosed in the papers in this case which begins to demonstrate that any decision taken by the CPS not to prosecute individuals is susceptible to judicial review, or that there is any likelihood of success in any such proceedings. Accordingly as against the CPS I would also refuse permission. The result is that in my judgment this renewed application fails.

LORD JUSTICE MAURICE KAY:

[17]It is not for this court to make findings as to what happened during the incidents in October and November 2005. Our procedures do not require or even enable us to do so. Our sole concern is whether there are arguable grounds to support an application for judicial review of the decision of the police not to investigate further the claimant's allegations of perjury and perverting the course of justice.[18]For the reasons given by my Lord there are no such arguable grounds. In my judgment the application is misconceived and totally without merit. It is refused. I understand my Lord to agree that it is totally without merit and the order will refer to that fact. Thank you, Mr Gray.[19]THE APPLICANT: My Lord, could I make a further application? There are really only two points I would like to make in fairness to myself. The first is, my Lord, as you know, I have made several judicial review applications to the High Court and it seems to me every time I do make those applications the grounds in the judgments are never referred -- the evidence I have referred to is never referred to in total contradiction of other judicial review decisions I have seen in the law books and on the internet.

LORD JUSTICE MAURICE KAY: Mr Gray, we have given judgment in thi case.

[21]THE APPLICANT: My Lord, in terms of my own appeal to your humanity if you just bear with me for two minutes, that is all I ask of your time. It is surely much better if it is made clear to me that I will never (because of my status perhaps as a non-barrister, or whatever) actually get to the point where a judgment for or against me does not include -- does actually include the grounds of the evidence that I have submitted and referred to in the decision to refuse it. Because if that is the case I should not make--

LORD JUSTICE MAURICE KAY: If you get past the stage of permission you will no doubt get a full and detailed judgment. I have explained to you permission applications, judgment included, are expected to take no more than half an hour. In fact your application has taken an hour. You are not entitled to expect longer judgments than you have been given.

[23]THE APPLICANT: I was only making the point, my Lord, that it costs the taxpayer a great deal of money because I am just coming on to my second point, because I am legally funded by the taxpayer, because I am on benefits. I'm on Job Seeker's Allowance. If I'm based and if I knew that I would never get a chance of actually having the grounds examined by anybody, by the police or the High Court I would not make any applications.

LORD JUSTICE MAURICE KAY: You had your grounds examined here and you have had a decision and reasoned judgment. Thank you very much.

[25]THE APPLICANT: There is no reference at all to the evidence. The only word that was referred to was "discrepancies". That was the only acknowledgement that referred to any evidence, Mr Ellis saying that I had attempted to assault him--

LORD JUSTICE MAURICE KAY: Have you any other applications?

[27]THE APPLICANT: Then denying that. That is more than a discrepancy. It is clear cut evidence of false evidence. The final application, my Lord, to conclude is because I am on Job Seeker's Allowance I cannot afford a transcript of your judgments. Would it be possible to have a copy at taxpayers' expense, at least so I can have the opportunity to appeal, which is my right, to the final tier (?) which is to the European Court of Human Rights? I do feel I have been abused in this case.

LORD JUSTICE MAURICE KAY: You may have a transcript at public expense.

[29]THE APPLICANT: I am very grateful to your Lordship.