Burke, R (on the application of) v Independent Police Complaints Commission & Ors [2011] EWHC 423 (Admin)

Case No CO/9743/2009[2011] EWHC 423 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 08/03/2011
Before
MR JUSTICE WYN WILLIAMS
Between
THE QUEENClaimant
Julian Coningham, Higher Court Advocate (instructed by Coninghams) for ClaimantIvan Hare (instructed by Legal Department) for DefendantLaura Johnson (instructed by DWF LLP) for Second Interested PartyHearing Hearing date: 13 January 2011Further evidence submitted 27 January 2011 and 3 February 2011
Judgment

Introduction

[1]At all material times the Claimant resided at 29 Somborne House, Fontley Way, Roehampton in south west London. On 3 May 2004 four officers of the Metropolitan Police attended at those premises in consequence of a complaint made by a neighbour of the Claimant, Mr De Souza. The officers found the Claimant at home; they arrested him on suspicion that he had committed the criminal offences of harassing his neighbour, Mr De Souza and possessing offensive weapons, namely knives. The Claimant was taken to Battersea Police Station and detained overnight. On or about 4 May 2004 the Claimant was charged with offences of harassment and possessing offensive weapons.[2]The Claimant asserts that on 16 July 2004 he wrote a long and detailed letter of complaint to Inspector Julian Hagley, an officer of the Metropolitan Police, who was based at the Battersea Police Station. There is a dispute about whether or not that letter was sent or received but it matters not. There is no doubt that by 1 January 2005 at the latest officers of the Metropolitan Police had become aware that the Claimant was making a complaint about the conduct of the officers who had attended his home and arrested him.[3]On 1 August 2006 the Claimant’s complaint was referred to the Defendant. In turn, the Defendant directed that an inquiry should be undertaken by the Metropolitan Police. By September 2007 the Metropolitan Police had reached a conclusion about the complainant’s complaint. In the trial bundle there is a copy of a letter dated 19 September 2007, signed by DI Belej and addressed to the Claimant at his home. The letter informed the Claimant that his allegations against the police officers who had been involved in his arrest could not be proved. It also informed him that he had a right of appeal to the Defendant against that determination. The Claimant asserts that he did not receive the letter.[4]A significant period of time went by. On or about 9 February 2009 the Claimant discovered that the Metropolitan Police had completed its inquiry into his complaints and that it was maintaining that it had notified him of its decision by the letter of 19 September 2007. The Claimant sought an extension of time from the Defendant in which to appeal against the decision taken by the Police. On 29 May 2009 the Defendant refused the necessary extension.[5]These proceedings were commenced on 1 September 2009. They were aimed at impugning the Defendant’s decision to refuse an extension of time in which to appeal. On 18 September 2009 the Claimant received a letter from the Defendant in which the Defendant asserted that “the appeal determination [was] incomplete in that the decision [did] not reach a conclusion on whether the final report [of the Metropolitan Police] was sent to you or not.” By the same letter the Defendant sought the Claimant’s consent to a stay of the proceedings until the Defendant had “reached a full decision.” The Claimant refused to consent to a stay. However, by order dated 16 November 2009, Sir Thayne Forbes directed that the proceedings should be stayed pending the Defendant “completing its decision.”[6]By letter dated 7 December 2009 the Defendant notified the Claimant that it had concluded that on balance of probabilities the Metropolitan Police Service had sent the letter of 19 September 2007 to the Claimant although it stopped short of concluding that he had received it. In the light of that conclusion it maintained the decision to refuse the Claimant an extension of time for appealing against the decision contained in the letter of 19 September 2007.[7]The Claimant alleges that the Defendant has acted unlawfully. His principal contention and that upon which he has been granted permission to bring these proceedings is that the Defendant’s refusal to grant the necessary extension of time in which to bring an appeal is unreasonable in the Wednesbury sense or irrational.[8]The first written record of the Claimant’s complaint is that which is contained in the letter of 16 July 2004. It is a long and detailed letter. It was written at a time after charges had been laid against the Claimant, after he had been committed to the Crown Court for trial but before any of the charges had been determined by a court. I hope I may be forgiven for summarising its main thrust shortly:-(a) there was no basis for the charge of possessing offensive weapons because the Claimant had never had any such weapons in a public place;(b) excessive force was used to arrest the Claimant at a time when he was obviously disabled and(c) three officers named as PC Martin McVeigh, PC Stuart Smith and PC Steven Jones had committed criminal offences by giving false evidence about the relevant events.[9]On 13 October 2004 there was a hearing at the Crown Court. It is common ground that at this hearing the prosecution offered no evidence against the Claimant on the charge of possessing offensive weapons and the harassment charge was remitted to be heard at the Magistrates’ Court.[10]The next written complaint was made on 1 January 2005. The details of the complaint were recorded as follows:- “Mr Burke was arrested for an offence of possession of an offensive weapon and public order following a dispute with a neighbour when police were called. Mr Burke alleges that the officers lied whilst completing their evidence. The matter in respect of the offensive weapon charge has been discontinued but he still awaits trial for the public order aspect. Mr Burke has also alleged that the CPS prosecutor has conspired with police to commit perjury and that an abuse of process has taken place. It is apparent that Mr Burke will not accept attempts at local resolution.” This time the complaint was made against four named police constables – those named above and PC Mark Trim; i.e. the four officers who had attended the Claimant's home on 3 May 2004. It is apparent that Mr Burke will not accept attempts at local resolution.”[11]On 24 January 2005 the Claimant wrote a letter of complaint addressed to Chief Inspector Theobold (the officer who had recorded the complaint on 1 January 2005). This letter was confined to complaining about the “three officers involved in my arrest.” In the second paragraph of his letter the Claimant wrote:- “The manner of my arrest, given that I was a 56-year old individual who is crippled with a degenerative illness and was recovering from a serious spinal operation at the material time, was scandalous. Moreover, I was further incapacitated by the loosening of the prosthesis in my left hip and the consequent bone disintegration.” Most of the remainder of the letter set out the Claimant's view that the officers involved in his arrest were likely to give false evidence about the circumstances of it.[12]On 16 May 2005, following a contested hearing, the Claimant was convicted of an offence by the Magistrates sitting at the Bow Street Magistrates’ Court. There is some doubt about the offence of which the Claimant was convicted. He maintains that the charge that he faced was harassing one or more of the police officers. It may be that the charge he faced related to an allegation of harassing Mr De Souza. Be that as it may, to repeat, the Claimant was convicted of an offence at the Magistrates’ Court. The Claimant appealed against that conviction; on 6 October 2005 his appeal was dismissed.[13]Following the dismissal of his appeal the Claimant continued to correspond with officers of the Metropolitan Police. So much is clear from a letter dated 15 February 2006 sent by Detective Inspector Crispin Lee to the Claimant. This letter made it clear that since the criminal process had been concluded DI Lee intended to proceed with the Claimant's complaint against the arresting officers. DI Lee asked the Claimant to contact him with a view to the Claimant providing a statement which would detail his allegations.[14]DI Lee’s letter provoked a long and detailed response dated 9 March 2006. It is noteworthy that it was in this letter that it became crystal clear, for the first time, that the Claimant was alleging that during the course of his arrest he sustained a significant injury to his hip which required a major operation “to repair the damage”. However, the Claimant did not respond positively to the suggestion that DI Lee and he should meet so that the officer could take a detailed statement from him.[15]As I have said, on 1 August 2006 the Metropolitan Police referred the Claimant's complaint to the Defendant. A referral takes place when a standard form is completed. The form completed by an officer of the Metropolitan Police described the nature of the complaint as “excessive force” and “corruption” and the Defendant was also informed that the Claimant had alleged that he had suffered a dislocated hip during the course of the incident which was the subject of the investigation. Four police constables were named in the referral form as being the officers who should be subject to investigation.[16]The referral was considered very promptly. A caseworker employed by the Defendant, Mr Ben Twiston-Davies, considered the complaint and recommended that the complaint should be investigated by the Metropolitan Police under the supervision of the Defendant. The recommendation for supervision by the Defendant was made on account of the severity of the alleged injury sustained by the Claimant during the course of his arrest.[17]The Defendant accepted Mr Twiston-Davies’ recommendation that there should be an investigation. However, it determined that it should be a “local investigation” i.e. an investigation undertaken by the Metropolitan Police. That decision was communicated to the Claimant by Mr Twiston-Davies in a letter dated 7 August 2006.[18]The terms of the letter are important. I quote the relevant parts:- “We have reviewed the complaint and decided that the circumstances warrant an investigation by the Metropolitan Police Service. Although this will be a local investigation, you'll have the right of appeal to the IPCC at the end of the investigation against its findings and outcome, if you are not satisfied. If you choose to appeal at that stage, we will review the completed investigation and its outcome. In the meantime, the Metropolitan Police Service will have a responsibility to keep you informed on the progress and findings of the investigation. The investigating officer should be in contact with you shortly.” Enclosed with the letter was a copy of the IPCC leaflet which outlined the roles and responsibilities of that organisation.[19]The officer first charged with responsibility for investigating the Claimant's complaint was Detective Sergeant Steve Hadfield. He met the Claimant on 22 August 2007 and recorded a note of what occurred on 25 August 2007. The note reveals that the meeting lasted for about 3 hour 30 minutes during which time the Claimant’s complaints against the officers were discussed at length. The meeting concluded with a request to the Claimant to re-examine his documents to ensure that all complaints were covered, to provide the officer with a chronological history of operations and injuries and a list of the medication which the Claimant was taking at the time of his arrest. DS Hadfield told the Claimant that when that information was provided he would draft a statement detailing all relevant matters.[20]As is clear from the evidence sent to me by the Second Interested Party following completion of the oral hearing there was reasonably frequent contact between DS Hadfield and the Claimant in the months that followed. It is equally clear that in this time period the Claimant was concerned with the possibility of an appeal against his conviction to the Court of Appeal, the possibility of a private prosecution against the police officers against whom he had made his complaint and civil proceedings against the Second Interested Party; his complaint to the Defendant was but one of the routes to redress which he was pursuing.[21]By April 2007 DS Hadfield had not completed his inquiries. On 11 April 2007 he sent an email to the Claimant indicating that he was being posted elsewhere and informing the Claimant that he was handing over his case load to DS Vicki McQueen.[22]The Claimant's chronology suggests that on 5 July 2007 he had a meeting with a DS Fraser in order to discuss his complaints. The Second Interested Party agrees that a meeting took place on that date. The record of the meeting compiled by DS Fraser suggests that the Claimant was going to provide a statement or statements by 11 July 2007. On 30 July 2007 the Claimant spoke to a police officer on the telephone; he told the officer that he would deliver his witness statement by hand to DS Fraser on 31 July, that he was commencing proceedings for judicial review on 3 August 2007 and that he was “serving writs on four officers and Commissioner.” Shortly thereafter various documents were provided by the Claimant to DS Fraser.[23]On 6 August 2007 the Claimant sent an email to Mr Sparrow, of the Defendant, which was copied to various other persons including DS Fraser. The purpose of the email was to make a formal request that the investigation of the Claimant's complaint should be returned to the Defendant so that it could manage or undertake the investigation. The email set out, in detail, the Claimant's reasons for making this request. One of the reasons advanced by the Claimant was that the “internal investigation [was hamstrung] by its terms of reference.” The email continued:- “As things stand they are investigating the alleged misconduct of four police officers during and after my arrest. In short, their remit does not cover the wider picture. I do not resile from my conviction that this is an extremely serious matter and the contemporaneous notes are indicative of a clear cover-up. The police have indicated to me that they are proceeding on the basis that a court of law has convicted me on the evidence of this case. But that is not the case. The courts have not been made aware that my hip implant was shattered during my arrest and I was left with aggravated injuries to my neck and spine which to date have required three major remedial operations….it should be remembered that at the material time I was almost 57 years of age, disabled and in recovery from a spinal operation, as well as supporting myself with a crutch on my right side. The injury to my hip was on the left side.”[24]The request made by the Claimant was refused by the Defendant in an email sent the same day. The email made the point that the Defendant had no power to recall the investigation once it had been referred for a local investigation. Whether or not that is correct matters not since the Claimant took no steps to challenge that decision at that stage. It is also worth noting, however, that the email from Mr Sparrow also reminded the Claimant that he was free to contact the investigating officers and to appeal against any decision which was unfavourable.[25]It is common ground that from August 2007 to February 2009 there was no contact between the Claimant and any officer of the Metropolitan Police or any employee of the Defendant.[26]In early February 2009 the Claimant became aware that his complaint had been determined by the Second Interested Party. On 9 February 2009 the Claimant sent a long and detailed email to Mr Sparrow of the Defendant. The following day Mr Sparrow responded by informing the Claimant that the Metropolitan Police were alleging that it had determined the complaint in September 2007. Mr Sparrow also told the Claimant that if he wished to appeal against the decision of September 2007 the appropriate form would be sent to him.[27]On 10 February 2009 the Claimant lodged his appeal. There followed a number of communications with the Defendant relating to why the appeal had not been lodged previously; the communications also dealt with other issues. The evidence before me shows that the Claimant sent emails dated 11 February 2009, 10 March 2009, 13 March 2009, 14 April 2009, 17 April 2009 and 22 May 2009; he also sent a letter dated 21 April 2009 headed “Formal representations in respect of an out-of-time appeal to the IPCC.” Reduced to essentials the Claimant’s stance was that his appeal should be considered by the Defendant because(a) he had never received the decision of 19 September 2007 and he did not know of its existence until February 2009;(b) the allegations he was making were very serious and(c) during the period August 2007 and February 2009 he had suffered significant ill-health which explained why he had made no contact with the police or the Defendant about his complaint.[28]The appeal lodged on 10 February 2009 was considered on behalf of the Defendant by a casework manager, Mr Erik Waitt. He produced a written document (“the first decision”) setting out the basis for his conclusion that the extension of time sought for the bringing of the Claimant’s appeal should not be granted. His core conclusions were these. First, the appeal had been made approximately 16 months out of time. Second, the issue of whether the appeal should be permitted to proceed should be determined by considering whether “the circumstances in which the appeal was made were sufficiently special to make it just to permit the appeal to proceed.” Third, although it was possible that the Claimant had not received the letter of 19 September 2007 the Claimant had a responsibility to be proactive in relation to the progress of his complaint and that his alleged ill-health in the period August 2007 to February 2009 did not provide a proper reason for the Claimant’s failure to question what had become of his complaint. It is clear that in reaching these conclusions the Mr Waitt considered the communications from the Claimant listed in the preceding paragraph. I say that because he lists each of them in his decision and considers, expressly, those parts, if any, which he considers relevant to the decision.

Discussion

[29]The Defendant was established to secure suitable, efficient and effective arrangements for the handling of complaints against police officers. The handling of complaints is governed by Schedule 3 Police Reform Act 2002 and the Police (Complaints and Misconduct) Regulations 2004.[30]Paragraph 4(1) of Schedule 3 of the 2002 Act imposes a duty on the “appropriate authority” (in this context the Metropolitan Police) to refer a complaint to the Defendant if the complaint is one alleging that the conduct complained of has resulted in “serious injury” or is of a description specified in regulations made by the Secretary of State. Regulation 2 of the 2004 Regulations specifies other complaints which must be referred to the Defendant. They include a complaint that a “serious arrestable offence within section 116 of the Police and Criminal Evidence Act 1984” has been committed. Serious arrestable offences within section 116 which are potentially relevant in this case are those which cause serious injury to the person or those which involve serious interference with the administration of justice or with the investigation of offences.[31]Section 20(2) of the 2002 Act provides that in any case in which there is an investigation of a complaint it shall be the duty of the “appropriate authority” (in this case the Metropolitan Police) to provide the complainant with all such information as will keep him informed of the progress of the investigation.[32]By Regulation 10(1) of the Regulations any appeal made by a complainant “shall be made within 28 days of the date on which the appropriate authority sends a notification to the complainant of its determination.....” Regulation 10(8) empowers the Defendant to extend the time for appealing “in any case where it is satisfied that by reason of the special circumstances of the case it is just to do so.”[33]I deal first with the ground upon which permission was granted. The Claimant alleges that the first decision was one which no reasonable decision maker could have reached and/or it was irrational. As this ground was developed in Mr Coningham’s skeleton argument it also encompassed the assertion that Mr Waitt failed to have regard to material considerations when reaching his decision. At the forefront of Mr Coningham’s submissions are the following points:-(a) Mr Waitt failed to take account of the seriousness of the complaints made by the Claimant;(b) he failed to take account of the failure of the Metropolitan police to report the complaints to the Defendant until 1 August 2006;(c) he failed to take account of serious procedural failures relating to the investigation undertaken by the police between 1 August 2006 and 19 September 2007;(d) he failed to conclude that the Claimant had probably not received the decision of 19 September 2009 and(e) he failed to appreciate that the decision of 19 September 2009 was “inadequate”; he ought to have permitted an appeal to take place so as to ensure that a proper investigation of the Claimant’s complaints had been undertaken. I deal with each of these points in turn in the paragraphs that follow.[34]As is clear from the first decision, Mr Waitt fully understood that the Claimant was alleging that he had suffered serious injury at the hands of the officers and that they had subsequently engaged in a “cover-up” of what had happened. He records those allegations in a section of his decision which summarises the representations received from the Claimant as to why the appeal should be permitted to proceed. Further, it is clear from the structure of the decision that Mr Waitt considered the fact that the complaint was about serious allegations to be relevant to his decision. I say that for the obvious reason that in his decision Mr Waitt extracts from the Claimant’s representations only those which he regards as relevant. It is true that he does not mention the serious nature of the allegations, expressly, when he draws together the threads of his reasoning in the concluding section of his decision. To repeat, however, it seems to me to be clear that he has taken this issue into account.[35]I do not accept that Mr Waitt was bound to afford this issue very significant weight, as Mr Coningham submits. The weight to be attached to any of the relevant issues was essentially for Mr Waitt to determine. While, of course, the offences alleged against the police officers were serious, it was necessary to carry out a balancing exercise, weighing up a number of competing factors, before deciding whether to extend time for appealing. That is what Mr Waitt did, submits Mr Hare, and, to repeat, the weight to be afforded to each factor was a matter for him.[36]The recital of the facts above makes it clear that the Claimant’s allegation that he had suffered serious injury at the time of his arrest evolved over time. I accept that there are suggestions that the Claimant may have suffered serious injury during the course of his arrest prior to his communication of 9 March 2006. However, it was on 9 March 2006 that he first made it clear that he was alleging that he had suffered serious injury at the hands of the officers who arrested him. On that basis the delay in referring the complaint to the Defendant does not appear that substantial. However, there can be no doubt that the Claimant had been asserting, in effect, that the officers had engaged in a criminal cover up from much earlier than 9 March 2006. I fully understand, therefore, why it is now said that there should have been a referral to the Defendant much earlier than 1 August 2006.[37]This point is not mentioned in the first decision. That is hardly surprising; the point receives no prominence in the long and detailed representations which were sent by the Claimant to the Defendant after 9 February 2009. The reality is that this point was given prominence only very late in the history of these proceedings; essentially as a consequence of the application to amend the grounds of challenge. I do not consider that Mr Waitt can reasonably be criticised for failing to take account of the point in his decision when it was given very little prominence in the course of very detailed written representations.[38]In any event, and probably more importantly, it is difficult to see why the fact that there should have been an earlier referral of the Claimant’s complaints to the Defendant had any real bearing upon whether or not the time for appealing against the decision of 19 September 2007 should be extended. The Claimant had ample opportunity to press for a referral to the Defendant between May 2004 and 1 August 2006. He knew full well that no referral had taken place. If he was truly concerned about the absence of a referral in that time period that was when he should have been pursuing the issue. If, as appears likely, Mr Waitt paid little or no attention to this point when reaching his conclusion upon whether to extend time for appealing I do not consider that he was either unreasonable or irrational in that stance.[39]In the light of the evidence adduced by the Second Interested Party following the conclusion of the oral hearing, I do not accept that there were any substantial procedural failures during the course of the investigation carried out by officers of the Metropolitan Police between August 2006 and September 2007. A careful reading of the documents produced by the Second Interested Party shows that the pace of the investigation was, in large measure, dictated by the Claimant. There were meetings between the Claimant and police officers. He was kept informed about what was happening at reasonable intervals. He was told in terms by Mr Sparrow in an email of 6 August 2007 that he had the right to appeal against any decision of the Police which was unfavourable to him once the Police had made a decision.[40]As part of his attack upon the procedures adopted, Mr Coningham submits that the Defendant should not have authorised a “local inquiry” by the Metropolitan police following the referral on 1 August 2006. Rather there should have been an inquiry under the supervision of the Defendant. I accept, of course, that the recommendation of the case worker who first considered the mode of investigation was that there should be an inquiry by the Metropolitan Police under the supervision of the Defendant. It is at least arguable that the decision to direct a local inquiry would have been susceptible to challenge had one been made close in time to the decision although I am far from concluding that point definitively. However, to repeat, the point in time for such a challenge was 2006. I simply do not see why the decision to authorise a local inquiry (not challenged at the material time) should become a reason for granting an extension of time for an appeal. Further, and importantly, this issue was not raised as one of significance in any of the detailed communications sent by the Claimant to the Defendant between February 2009 and the first decision.[41]The Claimant has at all material times asserted that he did not receive the letter of 19 September 2007. As I observed in the course of the hearing the Claimant has adduced evidence which demonstrates that it is likely that he did not. Whether or not he received the decision letter was obviously a material consideration when deciding whether to extend time for an appeal against the decision conveyed in the letter. It is clear that Mr Waitt proceeded on the basis that there was at least a reasonable doubt about whether the Claimant had received the letter and took that into account when deciding against extending time for appealing.[42]It is common ground however, that the trigger for the commencement of the period of time in which to appeal is not the date when the recipient receives the letter but, rather, the date when it was sent (see paragraph 32 above).[43]When these proceedings were served on the Defendant it quickly acknowledged that the first decision could be regarded as deficient because Mr Waitt had failed to reach a conclusion upon whether or not the letter of 19 September 2007 had been sent to the Claimant. A finding on the point was necessary because unless there was a finding that the letter had been sent the time for appealing had not commenced. It was for this reason that the Defendant suggested a stay of the proceedings so that it could re-visit the first decision.[44]On 7 December 2009 the Defendant made an express finding that on balance of probability the Metropolitan police had sent the letter of 19 September 2007 to the Claimant (the second decision). Assuming for the moment that it was entitled to make the second decision (as to which see below) the position now is that the Defendant has made a decision the effect of which is that time for appealing against the determination of the Metropolitan Police began to run on or about 19 September 2007. On that basis the appeal presented by the Claimant to the Defendant was approximately 16 months late. On any view that was a very long period of delay and likely to weigh heavily with any decision maker against the Claimant’s application that time for appealing should be extended.[45]The final point taken on behalf of the Claimant is that the decision of 19 September 2007 was obviously inadequate; that should have been a powerful reason, submits Mr Coningham, why time for appealing should have been extended. I do not accept that the letter of 19 September 2007 demonstrates that the investigation carried out by the police was inadequate. Further, the evidence adduced by the Second Interested Party following the oral hearing satisfies me that the police officers involved in the investigation took reasonable steps to investigate the Claimant’s complaints.[46]It follows that I do not consider that the points taken on behalf of the Claimant discussed above demonstrate that the Defendant acted unlawfully when refusing to extend the time for an appeal. That does not definitively conclude the case against the Defendant, however, because it is submitted on behalf of the Claimant that the first decision, if divorced from the second decision, would be irrational since it failed to reach a conclusion upon whether or not the letter of 19 September 2007 was sent to the Claimant. Further, Mr Coningham submits that the Defendant cannot rely upon the second decision so as to “cure” this unlawful aspect of the first decision.[47]In my judgment it is not right that the Defendant cannot rely upon the second decision to remedy any legal flaws in the first decision. The reason why I reach that conclusion is that the second decision was made, in effect, under the express authority of an order of this court. The unambiguous effect of the order of Sir Thayne Forbes was a) to stay the proceedings, so that b) the Defendant could complete its decision. No argument was addressed to me by Mr Coningham (and in my judgment no such argument could sensibly be made) to the effect that Sir Thayne Forbes had no jurisdiction to make such an order. Once the order was made then, to repeat, what the Defendant did was authorised by this court.[48]When the first and second decisions are read together, as they should be, it is clear, in my judgment, that the Defendant reached a decision which was neither irrational nor unreasonable.[49]Notwithstanding that conclusion, at first blush, it may seem hard that a person should lose a right of appeal when he may never have received the document or letter communicating the decision against which he wishes to appeal. However, it must be remembered that there was no communication between the Claimant and the Defendant for a period of about 16 months and the time for appealing expired within a few months of the beginning of that period. While no one doubts that the Claimant suffered ill health during this sixteen month period it is not possible, in my judgment, to say that Mr Waitt was unreasonable or irrational in concluding, nonetheless, that the Claimant had the opportunity to make inquiries as to whether or not the Metropolitan Police had concluded its inquiry into his complaint very much earlier than February 2009 and that his failure to do so was a very significant factor weighing against the grant of an extension of time for appealing.[50]In reaching my conclusion that the Defendant’s decision was not unreasonable or irrational I have also borne in mind Mr Coningham’s submissions based upon the following passage from the judgment of Sir Thomas Bingham MR in R v Ministry of Defence ex parte Smith [1996] QB 517:
“The court may not interfere with the exercise of an administrative decision on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above.”
[51]Mr Coningham submits that the conduct of the police officers about which complaint was made was conduct which may have violated the Claimant's rights under Article 3 ECHR. The Defendant’s decision, therefore, must be viewed against that context.[52]As I have said, I have taken account of this submission. However, it must be borne in mind that the decision under challenge is a decision relating to an appeal. There has already been an inquiry into the police officer’s conduct. Further, inevitably, the conduct of the police officers alleged to have caused injury to the Claimant would have been scrutinised with considerable care during the course of the criminal trial and the appeal from the outcome of that trial. I am not persuaded that the human rights context raised by Mr Coningham affords a reason why I can categorise the Defendant's decision as unreasonable or irrational. It does not tip the scales sufficiently far in favour of the Claimant’s position.[53]At the outset of the hearing before me the Claimant sought permission to amend his claim to add four additional grounds. The Defendant and the Second Interested Party objected. With some hesitation I allowed the amendment, primarily because I was conscious that the Claimant would be left with a sense of grievance if any available argument was not deployed and considered by the court. It is unnecessary to identify those grounds separately at this stage. I say that because I have dealt with three of them as part and parcel of my consideration of whether it has been established that the Defendant's decision was irrational or unreasonable and the fourth ground – the lawfulness of making the second decision – is dealt with discretely in paragraphs 46 to 48 above.[54]I have reached the conclusion that this challenge must fail. If the parties can agree upon the appropriate form of order I will hand down the judgment in the absence of the parties and subject to my approval make the order in the form agreed.

Cited in 1 later judgment