Durowoju v Independent Police Complaints Commission (IPCC) [2013] EWHC 837 (Admin)

[2013] EWHC 837 (Admin)Case No CO/3012/2012IN THE HIGH COURT OF JUSTICEADMINISTRATIVE COURTVenue Royal Courts of Justice, Strand, London, WC2A 2LLDate 11/04/2013
Before
MR JUSTICE TURNER
Between
DUROWOJUClaimantINDEPENDENT POLICE COMPLAINTS COMMISSIONDefendant
Mr Colin Andress (instructed by TolTops Solicitors) for ClaimantMr Mark James (instructed by IPCC) for DefendantHearing Hearing dates: 11 th April 2013
Judgment

The background

[1]In 2001 the claimant’s home was burgled. Some of the items taken were recovered by the police and returned to her. These included a jewellery box. Its contents, however, appear to have been recovered in a batch which included jewellery stolen from other victims and the police had to go through the process of finding out which items belonged to whom before they could be returned to their respective owners.[2]The claimant’s case is that she made a number of unsuccessful attempts to arrange to view the jewellery at the police station in order to stake her claim to those which were hers. Many years passed and no progress was made. There is a dearth of evidence as to the detail of what communications passed between the claimant and the police over this period. Remarkably, nearly a decade elapsed before matters came to a head.[3]Eventually, on 24 September 2010, in response to an email prompt from the claimant, an officer of the Metropolitan Police emailed back indicating that there was nothing recorded under her name in the property store.[4]On 23 November 2011, the claimant forwarded this exchange of emails to the Directorate of Professional Standards of the Metropolitan Police requesting that a formal complaint should be recorded.[5]The Metropolitan Police recorded the complaint, as they were obliged to do, but applied to the defendant, on grounds of delay, to grant them a dispensation from the statutory requirements which would usually flow from the making of a formal complaint. The claimant was notified of the application and made representations notwithstanding which the defendant granted the dispensation on 23 December 2011.[6]The claimant commenced judicial review proceedings of the defendant’s decision on 20 March 2012. Permission for a full hearing was granted by the single judge on 12 June 2012. It now falls to this court to determine whether the application to quash the grant of dispensation should be granted.

The law

[7]Section 13 of the Police Reform Act 2002 gives effect to Schedule 3 of the Act with respect to the handling of complaints. Schedule 3 contains details of the duties owed and the procedures to be followed by the police upon the making of a material complaint.[8]However, paragraph 7 of Schedule 3 provides for circumstances in which the defendant can grant dispensation from what would otherwise be the full consequences of the application of the Schedule 3 duties and procedures. It states: “Dispensation by the Commission from requirements of Schedule 7(1) If, in a case in which paragraph (6) applies, the appropriate authority considers—(a) that it should handle the complaint otherwise than in accordance with this Schedule or should take no action in relation to it, and(b) that the complaint falls within a description of complaints specified in regulations made by the Secretary of State for the purposes of this paragraph, the appropriate authority may apply to the Commission, in accordance with the regulations, for permission to handle the complaint in whatever manner (if any) that authority thinks fit. (2) The appropriate authority shall notify the complainant about the making of the application under this paragraph. (3) Where such an application is made to the Commission, it shall, in accordance with regulations made by the Secretary of State— (a) consider the application and determine whether to grant the permission applied for; and (b) notify its decision to the appropriate authority and the complainant. (4) Where an application is made under this paragraph in respect of any complaint, the appropriate authority shall not, while the application is being considered by the Commission, take any action in accordance with the provisions of this Schedule (other than under paragraph 1) in relation to that complaint. (5) Where the Commission gives permission under this paragraph to handle the complaint in whatever manner (if any) the appropriate authority thinks fit, the authority— (a) shall not be required by virtue of any of the provisions of this Schedule (other than paragraph 1) to take any action in relation to the complaint; but (b) may handle the complaint in whatever manner it thinks fit, or take no action in relation to the complaint, and for the purposes of handling the complaint may take any step that it could have taken, or would have been required to take, but for the permission. (6) Where the Commission determines that no permission should be granted under this paragraph— (a) it shall refer the matter back to the appropriate authority for the making of a determination under paragraph 6(2); and (b) the authority shall then make that determination. (7) No more than one application may be made to the Commission under this paragraph in respect of the same complaint.[9]For the purposes of this claim, the regulations referred to in Schedule 3 paragraph 7 of the 2002 Act are the Police (Complaints and Misconduct) Regulations 2004. These Regulations have since been replaced by the Police (Complaints and Misconduct) Regulations 2012 but the transitional provisions of the latter operate so as to provide that the 2004 Regulations continue to apply in respect of complaints communicated prior to 22 November 2012.[10]In so far as is material, Regulation 3 of the 2004 Regulations provides:
“Dispensation by the Commission 3. —(1) For the purposes of paragraph 7 of Schedule 3 to the 2002 Act (dispensation by the Commission from requirements of Schedule 3) the complaints set out in paragraph (2) are hereby specified— (2) Those complaints are complaints where the appropriate authority considers that— (a) more than 12 months have elapsed between the incident, or the latest incident, giving rise to the complaint and the making of the complaint and either that no good reason for the delay has been shown or that injustice would be likely to be caused by the delay…”
[11]It was upon this ground that the defendant granted the dispensation sought in this case.

Discussion

[12]The following issues arise: i) What was the date of the incident, or the latest incident, giving rise to the complaint? ii) What was the date of the complaint? iii) If the period between the above dates is greater than 12 months then has a good reason for the delay been shown?[13]One approach, which was considered arguable by the single judge, was that the date of the incident never actually arose at all because the relevant “incident” was the failure to return the goods and this amounted to a continuing omission to which no crystallised date could ever be ascribed. Under this interpretation, regulation 3(2)(a) could never apply to the circumstance of this or similar cases.[14]This was not a pleaded ground upon which the application for review had been originally launched but, doubtless fortified by the encouragement given in the reasons given by the single judge for granting permission, the argument was enthusiastically adopted by claimant’s counsel at the substantive hearing.[15]With respect to the views of the learned single judge, I do not agree that this is a sustainable analysis of the facts in this case.[16]In my view, the “incident” about which the claimant was complaining was the loss of her property. Once the property had been lost then, unless it were arguable that inadequate steps had been taken thereafter to find it, there is no logical basis for a “complaint” that it was not subsequently returned. In this case it is not suggested that there is any evidence that the police had failed to make an adequate search after the property had gone missing. It may be difficult in many cases to determine as a matter of fact when property is irretrievably lost but it is not conceptually different from the situation where property is accidentally destroyed. If the police had incinerated the claimant’s goods then the date of the “incident” would be the date of their destruction. When determining the date when property has been lost the decision makers must simply do the best they can on the evidence available.[17]In this case, the defendant identified the relevant date to be 24 September 2010 which was when the claimant was informed that there was no trace of the jewellery in the property store. This was the latest date from which time could have been taken to have started running. There is no evidence as to the date upon which the police actually lost the jewellery. It could have been months or even years before the mail was sent. However, by 24 September 2010 the loss was confirmed. It is not necessary for me to pass any view on where the burden of proof falls in establishing the starting date for the purposes of the application of regulation 3(2)(a). Suffice it to say that, even upon the hypothesis that it falls squarely on the shoulders of the police, it had been fully discharged in respect of the 24 September date in this case.[18]In one particular respect, it is arguable that the defendant fell into error in its written reasons for granting the application for a dispensation. They did so by equiparating the claimant’s date of knowledge of the fact that the goods were lost with the date of the actual loss itself. In approaching the issue of identifying the date of the incident or incidents it is important to bear in mind that the state of knowledge of the complainant is irrelevant. It may become highly relevant to the issue of “good reason for the delay” but does not fall for consideration at the first stage of analysis. However, this error was one which was entirely in favour of the claimant. By definition, the date of knowledge can never arise before the incident in respect of which the knowledge has been acquired. The mistake is one, therefore, which is not material to the merits of this application.[19]The clear purpose of regulation 3(2)(a) is to provide the police with relief from compliance with the full formalities of the requirements of schedule 3 in cases where the complaint is stale either for no good reason or where prejudice has been occasioned as a result. To limit the scope of its operation by too readily categorising the relevant “incident” as a continuing omission rather than a definable act would be to drive coach and horses through the legitimate object of the regulatory scheme.[20]I now turn to the date of the complaint. This was taken by the defendant when granting dispensation to be uncontroversial and to coincide with the claimant’s communication of 23 November 2011.[21]In support of her application for judicial review, the claimant asserted that she sent an email to the Metropolitan Police in February 2011 which should have been regarded as the complaint. If this were correct then the complaint would have been made in time. However, no mention of this mail was made in the claimant’s representations to the defendant for the purposes of the dispensation decision.[22]I was provided with a copy of the mail on the morning of the hearing. Its entire content had been deleted and counsel for the claimant could offer no explanation for this. The fact of a communication between the claimant and the police fall far short of proving that a relevant complaint had been made.[23]In any event, the defendant was entitled to decide the date of the complaint on the evidence before it and, on this basis, the decision was unimpeachable.[24]Once the claimant became aware that her property could not be located then there was no good reason for her to delay longer than a year before making a complaint about this. The claimant informed the defendant that “The reason why we never made a complaint is because we never thought that the police as [a] public body steeped in personal integrity will fail to uphold its public duty.” Nevertheless, once the claimant had discovered that the police had lost her jewellery there could be no further doubt, however sanguine her general opinion of their institutional virtues, that she then had a ground for complaint.

Conclusion

[25]For the reasons above this application must fail. There is no material basis upon which the decision of the defendant could properly be reviewed and it therefore must stand.