McNeany v IPCC [2014] EWHC 1873 (Admin)

Case No CO/8493/2013[2014] EWHC 1873 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
The Courthouse
1 Oxford Row
Venue LeedsDate Thursday, 8th May 2014
West Yorkshire
LS1 3BG
B e f o r e:
HER HONOUR JUDGE COE QC
(Sitting as a Judge of the High Court)
Between
MCNEANYClaimantIPCCDefendant
Digital Audio Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
The Claimant appeared in Person for in personMiss Whitelaw appeared for Defendant
J U D G M E N T
[1]HER HONOUR JUDGE COE: This matter concerns the judicial review application made by the claimant, Mr. McNeany, in respect of a decision of the Independent Police Complaints Commission ("IPCC") dated 18th February 2013. The claimant had made a complaint about police misconduct and the IPCC effectively dismissed the complaint which had already been dealt with by the police by way of an investigation.[2]The claim for judicial review was lodged on 4th July 2013 and permission was initially refused on the papers by Judge Behrens on 4th September. On 9th December 2013 Her Honour Judge Belcher granted permission to the claimant on a very limited basis. I should point out, as is set out in the order, that the permission was granted on that occasion in the absence of the defendant, the IPCC and the interested party, Northumbria Police. I should say that Northumbria Police have taken no part in this hearing at all but it is clear of course that not being present they made no submissions on that occasion.[3]The very limited nature of the permission granted by Her Honour Judge Belcher was that it was limited to the ground challenging the conclusion contained in the Decision Letter of 18th February that all the elements of the offence of blackmail were not met such that the claimant's allegation was not dealt with properly. It is also worth saying that Judge Belcher's observations were that the letter of 18th February 2013 appeared to mischaracterise the offence of blackmail. It is not a defence to blackmail that there was a reasonable ground for making the demand. Given the letter appears to mischaracterise the offence of blackmail; it is plainly arguable that the conclusion based on that mischaracterisation is irrational and/or unlawful.[4]The chronology, in brief terms, of the history of this matter is set out (I should say it is set out in some length) in the chronology of events attached to the claimant's skeleton argument. It does identify on a daily basis each event that occurred. It is not appropriate for me to read that out in full or to set it out in full but there are large parts of that chronology which are not in effect in dispute between the parties. Clearly some of the claimant's interpretation of events, as he has set out to me is disputed by the defendant but the chronology of events on a factual basis is, as I say, identified there.[5]The complaint made by the claimant of misconduct by various officers of the Northumbria Police was in respect of their failure, as he alleged, to investigate criminal allegations made by him against the proprietor of an escort agency. The claimant first reported crimes alleging that the proprietor (“A”) of that agency had used menaces to stop the claimant from asking about the whereabouts of a former escort, a former female escort who the claimant had seen through the agency on I think some eight occasions until about October 2009.[6]The police investigated an offence and allocated this matter to a Police Constable initially and then to a Police Sergeant. Police Sergeant Graham visited the claimant and sought to reassure him that he was not being blackmailed and no crimes had been committed.[7]The claimant's original complaint, which was dated, I believe, 25th April 2012, was set out in a letter running to some 116 pages and it was allocated to Detective Constable Alderson for review. There was a local resolution meeting held at Gateshead police station between Detective Constable Alderson and the claimant, with I think Inspector Lowther was present. That was on 23rd May. The police refused to accept the claimant's allegations of blackmail by the agency proprietor.[8]There was then a series of correspondence from the claimant to the police submitting a written request to Detective Constable Alderson to ask for her opinion on the crimes. This included: a request for confirmation about whether or not any warning had been given to the proprietor of the agency; and a letter to Detective Chief Inspector Lillico, about a telephone message that had been left for Detective Constable Alderson. The claimant was notified that no further action would be taken. On 19th June 2012 he was given a formal warning by the police about his behaviour and his attempts to make contact with the former escort including indirectly through the agency or her place of work or study.[9]The claimant then made two applications to the IPCC and I am concerned with the outcome of one of those applications. The claimant has made further representations to both the IPCC and to the police throughout the course of 2012 and it was, as I say, on 18th February that the IPCC did not uphold the claimant's complaints against the police.[10]Thus, the claimant comes before the court today. It is right to say as part of that chronology in fact the claimant made a further complaint about the decision of the IPCC which was dealt with in correspondence. As I say, the chronology I have set out there is brief and I hope in neutral terms, but it identifies the background.[11]I should say also that there are a very large volume of documents and the claimant makes some very serious allegations against the police and those with whom he has been dealing. He began his submissions to me today by setting out, as he clearly feels very strongly that he is the victim of a crime and that he has been driven to come to the court to seek justice. He says that on 25th August 2010, at about 1 o'clock in the afternoon he was subjected to an unprovoked torrent of foul-mouthed abuse and threats amounting to blackmail by the proprietor of the agency. He said that in response to his saying he would report the matter the proprietor said:
"The police know about me, the police won't touch me"
. The claimant feels very strongly that the proprietor of the agency clearly meant that the police knew that he ran an escort agency, that they would not touch him because he ran an escort agency and that in using those words he was acknowledging that a crime had been committed but that the proprietor thought that he was above the law.[12]I repeat what the claimant submitted to me in those terms as (I hope) he put them to me because it clearly identifies not only the precise nature of the allegations with which we are concerned but also emphasises how very strongly the claimant feels that he has been the victim of crime and that crime has not been pursued and that the decision of the IPCC effectively that the “no crime” decision of the police was a reasonable one is wrong. I should also say that throughout the course of his submissions the claimant attributes dishonesty and fabrication and malign motivation to those who have made the decisions not to pursue the proprietor of the agency.[13]In respect of those contentions, I have seen nothing in the papers that would support any such serious contention. I should emphasise, as I hope I have already done to the claimant, that it is for me to consider whether or not the decision of the IPCC was reasonable and rational, or whether the IPCC's decision was rendered irrational and/or unlawful by reason of a mischaracterisation of the offence of blackmail. That is the extent of the decision which I have to make however wide-ranging the allegations made by the claimant when putting forward his submissions may be.[14]I do not dispute of course that it would be a matter of great importance for a crime to have been committed and for the police deliberately to have failed to pursue or investigate such a matter out of any malign motivation. But as I say that is not what I am concerned with.[15]The claimant in his skeleton argument sets out essentially that the decision of Jane Spencer, decision-maker for the IPCC, was unlawful and irrational because it was done with the motivation of protecting the Northumbria Police. He says in support of his argument that Judge Belcher's decision to grant permission on the basis that the point was arguable suggests that his case “must stand”. He says that the use of the neutral phrases of characterisation does not exclude or preclude misrepresentations. He considers that the crimes that have been committed by the proprietor are ones which are clearly shown by the evidence that he has put forward and which he put forward to the police. He, in the course of his submissions, made very many assumptions. He called them logical conclusions which were based on his interpretation of events. He said for example that although there was no record of it, the proprietor must have been spoken to by the police.[16]It may very well be that the police spoke to the proprietor of the agency but there is no evidence of it and there is no record of it. He asks me to make findings about the mind set and temperament of the former escort herself. He feels very strongly that she was not unwilling to have contact with him and she would not have broken her promise not to disappear without telling him. She was not the sort of person who would break promises. Again I have no information and no evidence about those matters.[17]The claimant's position is that he was concerned for the former escort's welfare and that knowing she would not disappear without telling him, he was making attempts to find out that she was in effect all right and that nothing suspicious had befallen her which would account for her disappearance. He accepts that he persisted in those attempts. Those attempts included many contacts to the agency. He also made attempts to make contact with the former escort. It is apparent that he wrote a letter and a post card. She did not contact him. She had the means to contact him. She did not respond to the attempt to contact him and he did not report her as a missing person to the police.[18]The claimant says that there was no harassment involved here and that there was no complaint to the agency by her. She, he believes, rang the agency to keep her promise and he believes it is plausible that she was, in his words, threatened. If she had not been threatened she would have contacted him. He concludes that all of the elements of blackmail identified in the analysis of the offence are established here: that there were no reasonable grounds for menaces to have been made to him; and that since he was not harassing the former escort through the agency, in the circumstance the motivation which has been attributed is incorrect. He said that he was at all times acting out of a sense of duty and responsibility.[19]He urges me to find, as well as the evidence of blackmail, that the menaces were used in order to achieve a gain, the gain being by the proprietor to protect the money making potential of his business and that in those circumstances it was clear that when he reported the crime all of the elements were present.[20]It is not clear to me exactly what enquiries were made or to whom the police spoke, but it is apparent that the police's original investigation took into account the information that they were receiving, some of which information of course came from the claimant himself and that had been information following the police investigation. For ease of reference I should say that that it at Item 5 in the defendant's bundle and which sets out in quotation where it is bold and italics the claimant's account or part of the claimant's account of what he had to say. But it is apparent to me that the police were acting on the information that this was a man who had had contact with an escort from an agency who was no longer able to contact her and had been making determined attempts to renew that contact. The conclusions that the police reached and which were set out in the opinion section of the document that I have referred to are not matters that of course which it is for me to make any conclusion about reasonableness but those are the conclusions which were then put before the IPCC as part of that review.[21]The claimant was concerned that the remit of IPCC ought to hold Detective Constable Alderson to account for not deciding what he had reported amounted to a crime. Of course as is set out in the detailed grounds on behalf of the defence the remit of the IPCC via their case worker, who is not a qualified lawyer, is to review the decision following an investigation (the subject of the complaint) reached by the police and to consider whether or not that was a reasonable decision.[22]I accept what has been set out on behalf of the defendant as to the nature of the role of the case worker for the IPCC and that such a person has to reach a valid and appropriate conclusion as to the reasonableness of the police action but it is not a re-investigation and it is certainly not one carried out in the way that a lawyer would or, has been referred to, in the way the Chancery Court Judge might do. The remit of the IPCC is to reach a reasonable and understandable conclusion.[23]The claimant says that the behaviour of Jane Spencer, the IPCC case worker, has been the most sinister aspect of this very sorry story. It is his view that in order to reach the “preconceived” conclusion, she has to concoct some reasonable grounds to justify the agency proprietor's demands with menaces and that the decision has been taken on a basis that it would make him out to be a criminal and to make the proprietor appear to be innocent. It is his very strongly held belief that Miss Spencer knowingly and culpably gave a “no crime” opinion to protect a criminal and to protect the police.[24]The defendant's detailed submissions which are included I should say in the bundle at the beginning of the marked sections are succinct and I must deal, as I have already identified first of all with the role of the IPCC and the decision making process and setting out the nature of the history of this matter.[25]The factual background which begins at paragraph 4 identifies in very neutral and simple terms the history and it seems to me that it is an accurate reflection of the salient points of this matter which culminates of course in the appeal to the IPCC.[26]The submissions made on behalf of the defendant follow on from the definition set out again which is not in dispute but which refers first of all to the fact that “demand with menaces” is unwarranted unless the person making it does so in the belief firstly that he has reasonable grounds for making the demand and secondly that the use of the menaces is a proper means of reinforcing the demand. A person is guilty of the blackmail if he makes those menaces with a view to gain for himself or another or with intent to cause loss to another and interpretatively “gain” and “loss” are to be construed as extending only to gain or loss in money or other property.[27]The defendant submits that looked at as a whole against the background as a whole the defendant reached a correct lawful and reasonable conclusion, namely that the assessment of whether the claimant's allegations should be reported as crimes was correct and the requirements of the offence of blackmail could not be met.[28]Reference is made to the Decision Letter which sets out the offence of blackmail. The Decision Letter again for ease of reference is at Tab 6 in the defendant's bundle. The defendant submits that the decision maker has had regard to the correct requirements of the offence of blackmail. It is clear from the facts reviewed in the Decision Letter that the facts failed to satisfy the first ingredient of blackmail, that is, the person is guilty of blackmail if he acts with a view to gain for himself or another, with intent to cause loss to another.[29]The section of the letter dealing with the factual background as referred to in the IPCC which is from page 2 of the Decision Letter is repeated in the detailed grounds and I do not intend to read those two paragraphs out although they are part of this decision.[30]The defendant's submissions go on:
"The proprietor's actions in threatening to reveal the claimant's involvement with the agency to his wife appear to be motivated by a desire to stop the claimant's persistent calls to the agency, not with a view to gain or with a view to loss o the part of the claimant. Blackmail is an economic crime and “gain” and “loss” is defined as identified."
[31]Where the claimant is attempting to allege that the proprietor of the agency was seeking to protect the monetary interests of the agency, it is entirely reasonable of the decision maker to conclude that the facts in the present case could not support the offence of blackmail.[32]The difficulty of course and the reason why Judge Belcher granted permission is that the phraseology used in the Decision Letter at the particular part of it that was referred to (the third page of the letter), having set out the definition of blackmail says:
"In this instance the proprietor of the escort agency had reasonable grounds for making the demand for you to stop your activities and the female escort stated your actions were unwanted. On that basis all the elements of this offence are not met and it is therefore not blackmail. DI Alderson's assessment of whether your allegations should be crimed was appropriate. This complaint cannot be upheld to the required standard."
[33]It seems to me that in granting permission Her Honour Judge Belcher has considered those few sentences and properly concluded that there would be an arguable case on an interpretation of those words and on the basis that those words may very well have affected the outcome of the decision. It is therefore necessary for this hearing to take place and for there to be a broader view of the decision that was made against the background and on a full analysis.[34]I accept that the phraseology, particularly in the words “on that basis” are unfortunate and because the mischaracterisation that has been referred to is a mischaracterisation in that respect, the matters set out on behalf of the IPCC are incorrect. Incorrect in a very limited respect of an analysis of the offence of blackmail and if that were the sole part of the decision or the sole reason for the decision and clearly it would be appropriate to reach a conclusion that the decision was made on that basis, as it were, in isolation, wrongly.[35]However, it is not appropriate for me, as I find, to look at the decision on the basis of those few sentences in isolation. I have to consider the nature of the review by the IPCC and I have to consider the entirety of the Decision Letter, and I have to consider it against the background of the investigation by the police, and I have to consider it in light of the significant amount of evidence that was before the IPCC, most of it coming from the claimant.[36]The submissions of the defendant set out in some detail as I have already said and elaborated upon are submissions which I accept. I have reached the clear conclusion that the decision made by the IPCC was neither unreasonable, unlawful nor irrational. It took into account all the factors here and it reached entirely reasonable conclusions based on findings of the police investigation.[37]As I say I have to look at the decision of the IPCC based on the information before it. The claimant's 116 page letter was produced at the police investigation. For the purposes of that police investigation it was not disputed and it had never been disputed that the proprietor of the agency had demanded that the claimant stopped contacting him, seeking information and he did so with menaces and the menace used was clearly one which was intended to threaten and frighten the claimant. However, all of the evidence points very firmly towards the fact that the motivation of the proprietor was to stop him from being harassed or his business from being harassed by the claimant. There is no evidence to suggest that he was doing it to protect his business interests. The information, on which the conclusion of the police was reached, does not seem to me to point in any other direction. The mater has to be looked at as a whole. The evidence points, as I say, to the proprietor's motivation being to stop being pestered. I should say that on this point that the claimant's argument about his protection of his business interest is somewhat circular in that what he said was that the proprietor had been trying to stop him from asking questions about possible crimes that he was using menaces to protect his interest, because if it became known that he was using his business to blackmail the claimant, the business would be wiped out and if he were prosecuted the business would sink. As the motivation for blackmail it seems to me that that argument must fail.[38]For all of these reasons I do not find that the decision was unreasonable and the claimant's claim is dismissed.[39]As I have indicated however, because the evidence all points one way, even if I am wrong there will be no benefit to the claimant in quashing the decision. The remedy would be to ask for the IPCC to undertake a review again by reference to the correct elements of the offence of blackmail. If it did so the outcome would be the same.[40]HER HONOUR JUDGE COE: Can I say to both parties that obviously that is an extempore judgment and although I may not have referred to a particular document, as I indicated at the beginning I have considered the documents in each bundle when reaching my decision.[41]MISS WHITELAW: My Lady there is an application for costs. Could I have a brief moment just to amend it because we have been rather longer than we thought? (Pause) Thank you for that moment. I can hand back a schedule.[42]My Lady, could I indicate that there was an order for costs when permission was initially refused and that was £660 and that has been incorporated into the preparation figure that your Ladyship will see at £1155. The costs were then reserved when permission was granted on limited ground. In my submission the costs are relatively modest with regard to the fact that the IPCC has obviously had a large number of documents that are handwritten to deal with and certainly took some time. I do not know if I can assist the court on this costs aspect.

HER HONOUR JUDGE COE: The preparation figure that is broken down which is £660.

[44]MISS WHITELAW: £660 prior to the initial grant of permission.

HER HONOUR JUDGE COE: The additional sum, the preparation post that.

[46]MISS WHITELAW: Just the £660 was just the acknowledgement of service and summary grounds and preparation of costs.

HER HONOUR JUDGE COE: I am trying to do a sum. (Pause) £495.

[48]Mr. McNeany, the claimant is applying for their costs. There is set out a statement of cost which you have now got. As a matter of principle they have been successful they are entitled to the costs unless you have anything to say about that. Secondly, I am to assess those costs now unless you either object to the assessment or this is perhaps more importantly it is for you now to object.[49]THE CLAIMANT: I have no idea what to say.[50]HER HONOUR JUDGE COE: Well you have a schedule of cost there. You can see what the sum comes to.[51]THE CLAIMANT: I can, yes.

HER HONOUR JUDGE COE: You can see how it is broken down.

[53]THE CLAIMANT: I have no means of objecting to any of these things.[54]HER HONOUR JUDGE COE: In the absence of any objection by the claimant and the claimant to pay the defendant's costs, summarily assessed in the total sum of £3,843.20. Is there anything else Mr. McNeany?[55]THE CLAIMANT: Can I say something your Honour?

HER HONOUR JUDGE COE: Of course you can.

[57]THE CLAIMANT: This is not justice and I know it is not justice. It is the reward that I get for having properly reported a crime and for having pursued that crime in the public interest I have done that with no objective and as these costs demonstrate there is not a single shred of personal advantage to myself. In view I have done it purely in the interests of seeing a crime. Your Honour did say in your summing-up that you took it as a very serious matter if a person can go to the police and report a crime properly and the police refuse to investigate it. I reiterate in spite of what I've heard here and I have no reason whatever to think otherwise, that the police have refused to investigate a crime and I have done my best to try to make that crime. I have done my duty in every conceivable respect and it's almost killed me. That's obviously my saying this amounts to nothing as far as this court is concerned.[58]HER HONOUR JUDGE COE: Thank you. Is there anything else?[59]Thank you very much.