Avon And Somerset Constabulary v Gray (Rev 1) [2016] EWHC 2998 (QB)

[2016] EWHC 2998 (QB)Case No CO2BS071IN THE HIGH COURT OF JUSTICEQUEEN’S BENCH DIVISIONVenue Sitting in BristolDate 23/11/2016
Before
MR JUSTICE WARBY
Between
The Chief Constable of Avon and Somerset ConstabularyApplicantBenjamin GrayRespondent
Robert Talalay (instructed by Legal Services Directorate, Avon and Somerset Constabulary) for ApplicantThe respondent in person for in personHearing Hearing date: 17 November 2016
Judgment ApprovedMr Justice Warby :
[1]On 17 November 2016 I granted an application made by the Chief Constable of Avon & Somerset Constabulary for an order extending a General Civil Restraint Order (“GCRO”) in respect of the respondent, Benjamin Gray. I extended the order for two years from the date of my decision. These are my reasons for doing so.

The CRO regime

[2]Civil Restraint Orders, or CROs, prohibit individuals from issuing claims or making applications without the permission of the court. The standard form of order provides that respondent is “restrained from issuing any claim or making any application … without first obtaining the permission of [a named Judge, and if unavailable some other judge]”. Provision is made for any application for permission, or any application to amend or discharge the order, to be notified to the other party in writing, giving them at least 7 days in which to respond; only then can the applicant seek the court’s permission. That is to be done in writing, setting out the nature and grounds of the application. The application is determined without a hearing.[3]There are three broad categories of CRO. The basic or “limited” CRO restrains the making of any further application in the proceedings in which it is made. An Extended CRO (“ECRO”) imposes restraint upon the issue of claims or the making of applications in specified courts “concerning any matter involving or relating to or touching upon or leading to the proceedings in which the order is made.” A GCRO restricts the issuing of claims or the making of applications in any courts, or in specified courts, in any form of proceedings.[4]The grant of CROs is governed by the Civil Procedure Rules, PD3C. Paragraph 4.1 sets out who may make a GCRO, and prescribes the threshold requirements:
“4.1 A general civil restraint order may be made by – (1) a judge of the Court of Appeal; (2) a judge of the High Court; or (3) a Designated Civil Judge or their appointed deputy in the County Court, where the party against whom the order is made persists in issuing claims or making applications which are totally without merit, in circumstances where an extended civil restraint order would not be sufficient or appropriate.”
[5]PD3C provides for the duration of a GCRO to be extended:
“4.10 The court may extend the duration of a general civil restraint order, if it considers it appropriate to do so, but it must not be extended for a period greater than 2 years on any given occasion.”
[6]A court which concludes that a claim or application is totally without merit (“TWM”) has a duty to record that fact, and to consider making a CRO: see, eg CPR 23.12. But a party to proceedings may apply for a CRO, as the Chief Constable has done in this case.[7]In view of some of the arguments advanced by Mr Gray in this case it is worth making five points about these provisions.(1) First, it is not a precondition for granting a GCRO that the person against whom it is made has brought claims which are. TWM. A GCRO may be made against a person who persists in issuing claims which are TWM, or someone who persists in making applications which are TWM.(2) Secondly, the threshold requirements in PD3C 4.1 need to be satisfied before a GCRO is made. But the test for the grant of an extension is different: it is whether the court “considers it appropriate”. This plainly makes sense, as a person who has already been subject to a GCRO will in principle have had no opportunity to issue any TWM claim or application, other than an application for permission to proceed, or to vary or discharge the GCRO.(3) Thirdly, when a Judge has determined that a claim or application is TWM, the circumstances in which it will be legitimate to contest that determination in subsequent proceedings before a Court at the same level of jurisdiction are limited. The CPR provide that those against whom orders are made on the court’s own initiative, or in their absence, may apply to vary or set aside the[8]Mr Gray is a litigious individual, who has been the subject of GCROs for most of the last 7 years, and for some time before that. The papers suggest that a GCRO was imposed by Mitting J in 2009. But the direct evidence before me covers only the last four GCROs against Mr Gray.[9]The first of those was made on 11 January 2010, by MacDuff J, sitting in the High Court, Queen’s Bench Division. MacDuff J dealt with an application by Mr Gray for permission to appeal against an order of Master Foster, in a claim brought by Mr Gray against the Chief Constable (HQ 08 X 03503). The Judge refused that application as TWM. The Judge considered seven other cases in which Mr Gray was claimant or appellant. Most but not all of those involved the Chief Constable. The Judge concluded that the threshold for granting a GCRO was met and that unless restrained Mr Gray would “issue further claims, applications, appeals and/or other processes which are wholly without merit.” The GCRO made by MacDuff J prohibited Mr Gray from issuing any new proceedings against any defendant in the High Court or county court, “or from issuing any application, appeal or process in this action or in any other action in any Court” without permission.[10]MacDuff J gave a fully reasoned written judgment in which he recorded details of some of the further cases he had considered. It is unnecessary to set out the details in this judgment. It suffices to say the following. The cases included two others brought against the present applicant:(1) HQ 09X 03911, in which Mr Gray’s claim against the Chief Constable was struck out by the Master and MacDuff J refused permission to appeal, certifying the appeal as TWM;(2) HQ 09X 03912, which followed the same course. The cases considered by MacDuff J also included a claim issued by Mr Gray in September 2009 against a Practice Manager at Mr Gray’s GP surgery named Steven Hartnell. The claim sought remedies for alleged negligent misstatement and libel, over a note in the medical records relating to Mr Gray. That claim was struck out by the Master, and an application to reinstate it was refused. Macduff J dismissed as TWM Mr Gray’s applications for permission to appeal against those decisions. He held that this claim was “totally without merit from the very outset”.[11]On 20 March 2013 Silber J, sitting in the Queen’s Bench Division, Administrative Court, made a further GCRO against Mr Gray. The proposed claim was for judicial review against Bristol Crown Court, the Crown Prosecution Service, and the Chief Constable. The application for permission was made outside the three-month limit, and was not prompt. It appears that Mr Gray had waited until after the expiry of the GCRO granted by MacDuff J. Silber J pointed out that he had not needed to do so. He could have sought permission from MacDuff J. Silber J concluded that the claim was not only out of time, it was also TWM, and he prohibited Mr Gray for two years from issuing any claim or making any application in the Divisional Court or Administrative Court of the Queen’s Bench Division, without the permission of Ouseley J or a nominated Queen’s Bench Judge.[12]On 15 July 2013 Swift J, sitting in the Administrative Court, heard an application by Mr Gray to set aside the GCRO granted by Silber J. She refused that application and instead extended the GCRO, with modifications, for two years from the date of her decision.[13]On 4 November 2014 Teare J, sitting in the County Court at Bristol, made a GCRO for a period of two years. The Judge was primarily considering Claim No A33YJ095, brought by Mr Gray against Local World Limited. He also considered the orders of District Judge Britton dated 1 July 2013 in case A83YJ395, an order of 2 September 2013 in claim PLC3YM15996, and a direction of his own. He considered of his own initiative whether to make a GCRO. He found that Mr Gray persisted in issuing claims or making applications which were TWM, and that an ECRO would not be sufficient or appropriate. He granted a GCRO prohibiting the issuing of any claim or the making of any application in any court without his permission or that of Dingemans J, these two being the Presiding Judges of the Western Circuit.[14]It is the order of Teare J which the Chief Constable has applied to extend. The application notice for that purpose was filed on 11 October 2016. On 1 November 2016 Teare J granted an extension until 18 November. The application was heard by me the day before that extension expired.

The case for the Chief Constable

[15]In support of the Chief Constable’s application a witness statement of Susan Dauncey is relied on. She has been in-house solicitor to the Chief Constable for 30 years. This statement, running to 131 paragraphs over 24 pages, recounts in detail the history of the litigation between Mr Gray and the Chief Constable, and the costs orders and attempts at enforcement. The statement concludes with a summary of the Chief Constable’s case in support of the extension of the GCRO. The statement has 43 exhibits, running to some 200 pages.[16]The detailed chronology which Ms Dauncey provides shows that Mr Gray has been arrested by officers of the Avon and Somerset force on a substantial number of occasions, and that it is these arrests that have led to claims and to litigation by him. The central points of Ms Dauncey’s evidence are summarised in the following extracts:- “4. To date, Mr Gray has brought nineteen civil claims against the Chief Constable. He has litigated thirteen of these claims. One of these claims was successful and two others were successful in part. The remainder of the claims were either not pursued, stayed through non-payment of costs, or successfully defended at trial. 5. Mr Gray has also made two judicial review applications involving the Chief Constable. …126. … As can been seen from the chronology above the Respondent will bring a claim where he has been arrested and detained and then either he is released without charge; criminal proceedings have been discontinued or he is acquitted at trial. These outcomes do not follow that the original arrest and detention was unlawful. Nevertheless the Respondent will make a claim for compensation against the Applicant in these circumstances. The Respondent has demonstrated that if liability is denied (or in one case was admitted) he will issue proceedings at the expiry of the three month pre-action protocol. If an offer of compensation is not made, the claim is pursued to trial. The Respondent has demonstrated that he will make application which are considered devoid of merit during the course of proceedings, including applications for the judge to recuse himself’/herself and strike out applications of the Defence. Where the Respondent has succeeded in the past compensation has been paid to him. Where the Respondent is unsuccessful, costs orders are made against him and he does not pay. A cost order is therefore not a sufficient sanction or deterrent.127. The basis for the Respondent’s refusal to pay costs is because he is unemployed and on benefits. The Applicant is a public body and to be forced to repeatedly defend claims to trial and then be unable to recover their costs is therefore costly to the tax payer. To date the Applicant has received costs orders in their favour totalling £91,839.14; £58,336.96 of this sum has recently been applied to a final charging order against the Respondent’s property. The remaining £33,502.18 is outstanding.128. As there is usually a factual dispute between the parties’ opportunities for the Applicant to apply for an early strike out or summary judgment to minimise their costs is rarely an option.”[17]Ms Dauncey refers to the four GCROs I have described above. She explains (at para 121) that the Chief Constable was not a party to the proceedings considered by Teare J when he made the GCRO of 4 November 2014. She states that the Chief Constable is aware of only two applications made by Mr Gray during the period of the Teare J GCRO: an application for permission to appeal which was “considered devoid of merit” and an application to set aside default costs certificates. As I shall explain, Ms Dauncey’s statement is misleading on the first point, in that the application for permission to appeal to which she refers was made before the imposition of the GCRO. She is however correct to say that it was dismissed as TWM.[18]Ms Dauncey suggests that if the GCRO is not extended Mr Gray will continue to issue claims or make applications that are TWM. In that context she refers to some correspondence of 2015, to which I shall return.[19]Mr Talalay has advanced his argument on behalf of the Chief Constable under three main headings:(1) The causes of the litigation prior to the GCRO made by Teare J;(2) Mr Gray’s behaviour since that order was made;(3) The current position. Mr Talalay’s submission is that Mr Gray’s litigation history stems from and demonstrates an unfounded belief that he is the victim of a malign conspiracy, into which some judges have been drawn; that his conduct since the GCRO was made – and in particular his more recent correspondence - shows no change of mentality, but an intention to make the same kinds of claim as before; and that the current situation, including a very large unpaid costs liability, shows the need for measures by way of prevention rather than cure.

Mr Gray’s case

[20]Mr Gray submitted a witness statement and exhibits of his own, in “rebuttal to” the Chief Constable’s application. Some of his evidence was couched in extreme terms. Ms Dauncey’s approach to the case was described as “casual to the point of sadism”. She was said to operate in a “ruthless and frankly depraved amoral vacuum”; to deploy “logic that is perverse to the point of sickening”; and to hold the opinion that Mr Gray is “a slave”. Mr Gray suggested that the application exposed him to the risk of “being terrorised or tortured out of having any recourse to lodge a criminal complaint by virtue of Ms Dauncey’s corrupt, sickening and criminal position”. These are clearly wild exaggerations. However, they should not be allowed to obscure the fact that the witness statement was an orderly document, which identified and sought to address points of relevance in a logical and coherent way.[21]Mr Gray also submitted a skeleton argument which had similar features: it was well-structured and had some logical and coherent content; but it also contained some wild rhetoric. It said of the grounds relied on by the Chief Constable that they were almost all “an obscene, venal, depraved, criminal, outrageous and frankly evil inversion of the rule of law, basic principles of natural justice or human rights”. The substance of the application was described as a “direct corrupt and criminal request to the court that her client be permitted to torture, falsely imprison, brutalise, wound, scar and generally violate” Mr Gray and his rights “with complete impunity from judicial sanction, investigation, review or accountability” until he either “dies in police custody, commits suicide, is crippled or driven insane.”[22]Mr Gray appeared at the hearing to advance oral arguments. For most of the hearing he advanced his submissions logically, patiently and courteously, though I had to pull him up on an accusation of lying made against Counsel. Towards the end of the hearing, however, Mr Gray’s submissions became increasingly extravagant. When I announced my decision he became very angry, denouncing me ironically for “not having any blood on [my] hands.”[23]Stripped of their considerable rhetorical baggage and their exaggerated form of expression, Mr Gray’s main points can be fairly summarised as follows:(1) The threshold requirement for granting a GCRO, or extending one, is not satisfied. Mr Gray argued that he has been the victim of a series of wrongful arrests, false imprisonments, and other wrongdoing by officers of the Avon and Somerset force. That is why he has brought proceedings. He has not brought any claim against the Chief Constable that was vexatious, unfounded, or totally without merit. On the contrary, he has succeeded at trial in two of his claims and the Chief Constable admitted liability and settled a third claim. In August 2008 magistrates found that he had been unlawfully detained. The claims in respect of which he has more recently written letters before claim to the Avon and Somerset force are not vexatious, but well-founded. Further, some of the judges who have dealt with his cases and ruled against him on the merits were corrupt, and he had the right to say so.(2) A GCRO would be wrong in principle, as it would protect a “persistent false imprisoner” and reverse the burden of proof established by law.(3) The Chief Constable’s argument was unprincipled (a) in so far as it relied on unpaid costs as a basis for granting a GCRO; an inability to pay could not justify exclusion from access to justice; and (b) inasmuch as it relied on the fact that Mr Gray has made allegations of corruption against the judiciary; he had the right to raise such allegations.(4) A GCRO should not be imposed because its practical effect would be to render the police immune from suit, and even immune from prosecution, in respect of their continuing mistreatment of Mr Gray. It would give them a licence to continue mistreating him, with impunity.(5) There was a further reason to refrain from imposing a GCRO, submitted Mr Gray: that, deprived of the chance of vindicating his rights via the courts, he would be forced to resort to physical force, to defend himself against threats to his physical wellbeing, freedom and property from the police or others.[24]In support of his fourth argument Mr Gray made two points in his oral submissions which did not appear, or not clearly, in his witness statement or skeleton argument. The first was that there was a risk that his applications would be “whitewashed” by the Judge dealing with permission, as he claimed had happened before when he made serious allegations of corruption. The second was that in practice the permission filter would prevent his access to the court because(a) the court administration would require him to pay a substantial fee in order to apply for permission to bring a claim or make an application;(b) in order to prepare such an application he would also need to incur substantial expense instructing solicitors to prepare the case, apply for legal aid, and pursue the application;(c) he has no resources and is not fee exempt

Findings and conclusions

[25]The threshold requirements for granting a GCRO were amply met at the time that Teare J made his order of November 2014. That much is clear beyond dispute, in my judgment. As Mr Talalay concedes, Mr Gray is right to say that he has not brought any claim against the Chief Constable that has been designated as TWM. But that is not a prerequisite for granting a GCRO, let alone for extending one that has already been granted. It would be enough to justify the grant of a GCRO if Mr Gray had persistently made applications which were TWM. It is perfectly clear that he had done that, at the time that Teare J granted the 2014 GCRO.[26]Mr Talalay has drawn attention to the following features of the history up to November 2014:(1) 20 November 2009: Master Foster, having heard Mr Gray and Counsel for the Chief Constable, dismissed an application made by Mr Gray, designating the application as TWM. This was in action HQ 08 X 03503. It is Mr Gray’s application for permission to appeal against this decision that came before MacDuff J in January 2010, and which was itself dismissed as TWM.(2) 3 December 2009: Burnett J dismissed as TWM renewed applications by Mr Gray for permission to appeal against two orders of HHJ Bromilow, in a claim by Mr Gray against the Chief Constable. The first order challenged was an order dated 4 September 2009, by which Judge Bromilow struck out Mr Gray’s claim against the Chief Constable and entered judgment against him with costs. The second order was a summary costs assessment, made on 19 October 2009. Nicol J had refused permission on the papers. A note of Burnett J’s judgment is in evidence. It reveals that the claim was struck out below because Mr Gray, accusing the Judge of bias and other misconduct, had walked out of the trial in July 2009. Burnett J found that all of Nicol J’s reasons for refusing permission were sound.(3) 14 May 2013: DJ Britton dismissed as TWM an application made by Mr Gray in County Court claim no 2YK23480, brought against the Chief Constable, recording that “the court finds that the application is entirely devoid of merit.” It is clear from the short reasons given that Mr Gray had sought to challenge the validity of the Chief Constable’s defence for reasons which did not stand up to scrutiny.(4) 25 July 2013: DJ Britton dismissed as TWM two applications made by Mr Gray as claimant in County Court action 3YK14936, brought against the Chief Constable. Permission to appeal was refused.(5) 17 August 2013: HHJ Denyer refused permission to appeal against the order at (4) above, recording that the application was TWM.(6) 2 September 2013: Mr Recorder Norman gave judgment in action 2YK2380, brought by Mr Gray against the Chief Constable, after a 5 day trial in August 2015. The claim was for damages for false imprisonment, malicious prosecution and assault relating to events on 29 April 2010. The Recorder found in Mr Gray’s favour on the claims for false imprisonment and assault, awarding damages of £5,025. He dismissed the claim for malicious prosecution, holding that there was reasonable and probable cause for the prosecution, and that Mr Gray had failed to prove malice. In the concluding paragraph of his written judgment Recorder Norman referred to Mr Gray’s “wide ranging complaints against the Police of which he characterises the events of and flowing from 29 April 2010 to be an illustrative and probative episode.” The Recorder did not find it necessary to provide any reasoned analysis of those complaints, but he stated “I reject them”.(7) 19 November 2013: DJ Britton gave directions in three cases brought by Mr Gray against the Chief Constable, in the Bristol County Court. He dismissed as TWM such parts of Mr Gray’s applications as sought the striking out of the defences in those cases.(8) 5 September 2014: In action 3YK14936, after a 4 day trial before HHJ Cotter QC and a jury, Mr Gray was awarded damages of £1 against the Chief Constable. He was ordered by the Judge to pay 90% of the Chief Constable’s costs. Judge Cotter QC later refused permission to appeal, declined to recuse himself on the application of Mr Gray, and gave a detailed judgment running to 87 paragraphs, explaining his decisions.(9) 11 September 2014: Mr Gray issued an application for permission to appeal against the orders at (8) above. That is the application mentioned by Ms Dauncey. It was issued before the GCRO of Teare J. However, when determined by Longmore LJ on 4 March 2015 it was dismissed as TWM.(10) 21 October 2014: Mr Gray applied to HHJ Cotter QC, seeking his recusal on the grounds of bias. The application was dismissed by Judge Cotter as TWM.[27]This history does show that Mr Gray has indeed won two claims, in the sense that he has recovered judgments in his favour on two occasions. The result before HHJ Cotter QC was however an entirely Pyrrhic victory. And the history reveals a minimum of 9 formal decisions that applications made by Mr Gray were TWM. The figure is greater if one counts each individual application.[28]It seems clear that not all of this history was before Teare J when he made his GCRO. But these matters plainly buttress the view that the threshold for granting a GCRO was met at that time. Moreover, this potted history does not include all the cases reviewed by MacDuff J in January 2010, nor the judicial review claim which Silber J found was TWM and which led to the GCRO imposed by him in 2013.[29]This is an application for a GCRO in terms which are not confined to protection of the Chief Constable. The effect of the order would be to prevent Mr Gray from suing others, without permission. So it is relevant to consider the wider picture. Mr Talalay fairly points to the 2009 claim against Mr Hartnell which was designated by MacDuff J as TWM. There is also, so it appears, the claim against Local World Limited in which Teare J made the order that is now before me.[30]It is material also to note some features of the judgment of Judge Cotter QC and the Grounds of Appeal put forward by Mr Gray. Judge Cotter reviewed in more detail than I have done Mr Gray’s long litigation history. He referred, for example, to a GCRO granted by Mitting J, before that of MacDuff J. He had available the reasoned judgment of Swift J explaining the order that she made against Mr Gray in 2013. The judgment of Judge Cotter should be required reading for any judge who has to deal with Mr Gray in future. The following are the most pertinent parts, for present purposes:
“Mr Gray’s history/conduct before the trial 3. Mr Gray has a list of previous convictions including a number relating to violence and harassment. As I understand matters having now heard him at some length he believes most of the convictions (and certainly all since 2006 when moved to Bristol) to have been the result of serial miscarriages of justice in the criminal and civil courts. 4. As he set out in his skeleton argument for the trial he believes that he has ‘a mountain of hard evidence that all convictions imposed by the Bristol criminal courts were the product of judicial collusion in perjury, police torture, perverting justice, false imprisonment and misconduct in public office.’ … 5. …. Significantly some of the actions have clearly had some merit. He has been successful in one action in respect of false imprisonment arising out of arrest and another action settled. … … 6. However, such potential merit in past (and future) actions has to been seen in the context of his past litigation and conduct before the courts generally.” … 9. In my opinion Mrs Justice Swift accurately and neatly summed Mr Gray up when she stated; ‘The claimant is a man who has an obsessive and paranoid belief that every public body and public servant (including any judge who has had anything to do with one of his claims) is dishonest, corrupt and intent on persecuting him and preventing him for obtaining justice. That belief does not extend only to public bodies and their employees but also to private individuals, in particular his neighbours. One outlet for his preoccupation is litigation. It is clear – and has been confirmed by his behaviour today in court and by his submissions – that he will continue persistently to litigate in the Administrative Court in the future if he is not restrained from doing so. It is a gross waste of public resources for the courts – and indeed defendants – to have to deal with repeated claims made by the claimant which are totally without merit.’ 10. If Mr Gray is frustrated in his ambitions before the court history tends to show that he will often do one or more of the following. (a) Accuse the Judge and Judiciary generally of a range of heinous crime (b) Complain that he is not allowed to say all he wishes to say/is interrupted/is not getting a fair hearing/trial (c) Become aggressive and/or intemperate (d) Storm out of court (e) Appeal/make applications that are totally without merit.” ‘a mountain of hard evidence that all convictions imposed by the Bristol criminal courts were the product of judicial collusion in perjury, police torture, perverting justice, false imprisonment and misconduct in public office.’ ‘The claimant is a man who has an obsessive and paranoid belief that every public body and public servant (including any judge who has had anything to do with one of his claims) is dishonest, corrupt and intent on persecuting him and preventing him for obtaining justice. That belief does not extend only to public bodies and their employees but also to private individuals, in particular his neighbours. One outlet for his preoccupation is litigation. It is clear – and has been confirmed by his behaviour today in court and by his submissions – that he will continue persistently to litigate in the Administrative Court in the future if he is not restrained from doing so. It is a gross waste of public resources for the courts – and indeed defendants – to have to deal with repeated claims made by the claimant which are totally without merit.’ (a) Accuse the Judge and Judiciary generally of a range of heinous crime (b) Complain that he is not allowed to say all he wishes to say/is interrupted/is not getting a fair hearing/trial (c) Become aggressive and/or intemperate (d) Storm out of court (e) Appeal/make applications that are totally without merit.”
[31]Judge Cotter also gave details of Mr Gray’s behaviour at the pre-trial review and the trial. He gave this account of his own experience:
“20. I have now had experience of Mr Gray, initially through a single PTR hearing which considered the progress of the four separate cases and then the trial of this action which commenced on the Tuesday 2nd September. He is well educated, clearly intelligent and eloquent. However he is also argumentative and at times intemperate. As regards the civil and criminal justice systems generally he is the most distrustful litigant I have come across in 14 years as a Recorder and full time Judge3”
[32]Footnote 3 to this paragraph said:
“3As a [Designated Civil Judge] I hear appeals and applications and cases involving litigants in person on a very regular basis and relatively regularly also have hearings involving those to be and subject to civil restraint orders. So I do have contact with those who are unhappy with elements of the justice system.”
[33]Mr Gray’s Grounds of Appeal against the orders of Judge Cotter included a contention that the jury’s dismissal of his malicious prosecution claim was perverse, and other attacks on the merits of the findings on his claims; but the main focus of his grounds was alleged misconduct by Judge Cotter. The Grounds complained of “constant and barbaric treatment” of Mr Gray by the Judge. But that was not all. Mr Gray alleged:- “… for the reasons set out in the details below, it had become clear to the A from the first day of trial that Judge Cotter was going to collude in the overt criminal offences that were evidenced within the Defendant’s adduced documents and statements and legal position generally and was only continuing with the trial at all due to the inordinate public expense that had gone into proceedings thus far.”[34]The paragraphs which followed included allegations that the Judge had connived with defence witnesses in “such criminal offences as perverting public justice, perjury, misconduct in public office, torture and false imprisonment.” The Grounds referred to “potential jury tampering” by the Judge. The Judge was further accused of “psychological torture”. All of this gave further substance to Judge Cotter’s assessment of Mr Gray’s methods of operation.[35]Dismissing Mr Gray’s application for permission to appeal, Longmore LJ said “It is clear that the judge treated a difficult litigant in person with exemplary patience, as evidenced in the post-trial judgment.” He described Mr Gray as “a serial litigator” and referred to the CROs made against him. He concluded that the attempt to appeal was TWM.[36]For the reasons I have given it is not open to Mr Gray to challenge before me the conclusions arrived at in this case, or in the other cases which I have reviewed. That is so, whether his challenge is grounded on alleged corruption or misconduct by the judges involved, or otherwise. The appropriate route for any such challenge is by way of appeal. That is a route which Mr Gray sought to pursue, so far as Judge Cotter is concerned. The attempt failed utterly.[37]It is clear from the evidence, and from my observations of Mr Gray at the hearing before me, that he remains the obsessive and highly unreasonable litigant which his history suggests, and which other judges have found him to be. There is every reason to believe that if he were not restrained or restricted in some way he would persist in making applications which are TWM. He has issued claims which are TWM before, and I see a real risk that he would do so again.[38]In support of his submissions on the likelihood of further TWM litigation, Mr Talalay relied on two written communications which were said to show Mr Gray exhibiting the same state of mind as before. The first is an email of 19 March 2015 relating to an incident of 6 August 2014. Mr Gray wrote:- “Furthermore, I have sent you a letter of claim in regard to an incident involving PC Ashforth on the 6th August 14 … Can you please indicate whether you intend to respond to the allegations against PC Ashforth et al? I remind you that you have 3 months to investigate the potential claim, and although I am currently subject to a CRO I can and will still bring a claim the moment the CRO expires, and will rely on your failure to respond within the 3 months as evidence of support of the claim. … Finally, there is evidence of criminal collusion in all the matters that were before Judge Cotter and yourself. You will have my response to these matters before the end of April 2015.”[39]I have italicised the passages on which Mr Talalay relies. I had thought at one point that the Chief Constable was inviting me to reach the conclusion that the threatened claim over the events of 6 August 2014 was TWM. Mr Gray thought the same. It struck me that this was not the function of the court on an application such as this, and that I was not armed with the necessary material in any event. At the hearing, however, Mr Talalay made clear that he was not advancing that submission, or inviting me to assess in any way the merits of the threatened claim. He relied instead on Mr Gray’s threat to act as soon as the GCRO expires, and on the concluding passage which is said to exhibit the “same mentality that was in place before Teare J’s order.”[40]I agree that the email is evidence of an intent to sue, but if the threatened claim cannot be said to be TWM there is nothing inherently wrong with that. I accept, however, that the last paragraph justifies concern. Evidently, Mr Gray continues to maintain at least some of the complaints he made about Judge Cotter. The email suggests that if he sued over the events of 6 August 2014 he would be liable to present them as part of a wider picture, rather as he sought to do before Recorder Norman. I can see grounds, therefore, for concern that any claim might include irrelevant matters and be presented in a disproportionate way.[41]The second communication is a letter dated 15 October 2015, under the heading:
“Re: Letter of claim in regards to false imprisonment, sexual assault, assault, malicious prosecution and collusion in Perjury and attempt to pervert public justice re PS 8851 Sean Underwood, PC Parsons and others re arrest on suspicion of S5 POA offence at Bristol Central Library on the 10th February 2015”
. Mr Gray wrote:- “You are doubtless aware of the current Civil Restraining Order prohibiting me from issuing any claims in the civil courts until November 2016, but the offer to settle at the figure of £10,000 will expire if it has not been made prior to early December 2015 regardless of the fact I will not be able to issue the claim until November of the following year. In terms of the criminal element to these complaints, I have no intention of progressing them by way of complaint to Professional Standards as it is clear that this office is as hopelessly corrupt as the IPCC that has risibly been set up to supervise their investigations. The criminal aspect to these complaints will therefore only be addressed either by the civil court judge who has the power and duty to refer any evidence of criminal wrongdoing to the police under his or her own steam if civil proceedings are instituted or by way of citizen’s arrest of party related to the criminal allegations. … I mention all this in order to alert you to the futility of the self-defeating nature of your brass-neck policy of simply denying liability every time I am arrested regardless of the substance of my claim or nature of the injuries I receive. You are surely aware that so long as I am forced to live in Bristol I can and will take every lawful step necessary to expose criminal wrongdoing in the A&S constabulary and to defend myself against direct criminal attacks on my liberty and person, albeit I would prefer simply to have the means to re-locate elsewhere.”[42]Again, Mr Talalay disavows any contention that the threatened claim lacks merit. He does not admit that it has any, but does not invite me to find that it is TWM. I agree that I could not make that finding. Mr Talalay points to the allegation of corruption, suggesting it is all of a piece with the allegations against judges and others that have characterised Mr Gray’s past litigation. Mr Talalay accepts that the concluding words cannot, if taken in isolation, be faulted as a statement of principle. But he submits that read in light of Mr Gray’s past behaviour this is to be read as an expression of intention to bring unmeritorious claims against the police service. The two items of correspondence put together are, submits Mr Talalay, evidence of a state of mind about the police, and indicate a desire to bring claims about any involvement he has with the police, going beyond those two factual scenarios.[43]Broadly speaking, I accept Mr Talalay’s analysis of this material. Mr Gray has certainly put forward a vigorous statement of his right to take legal action if treated unlawfully, and there is nothing wrong with that. But he has gone further, and accused professional standards and the Independent Police Complaints Commission of “hopeless” corruption. I agree that when these assertions are considered in their full context they indicate clearly an intention to pursue legal claims over any interaction with the police, based on a fixed expectation that any such interaction will be actionable. There is good reason to believe that any claim would be likely to be accompanied by the same kind of extravagant and ill-founded claims about the conduct of the police generally that have featured in past cases brought by Mr Gray. There is good reason to fear that a claim would involve applications that are misconceived or have no discernible merit.[44]These are all factors that support the view that the permission filter that a GCRO would afford is “appropriate”, to use the wording of the Practice Direction. In my judgment, the history and what it reveals of Mr Gray’s character, disposition and likely future behaviour, lends strong support to the conclusion I reached: that it is necessary in the interests of justice to ensure that any claim or application he wishes to bring is first reviewed by a Judge.[45]Mr Gray is wrong to characterise the Chief Constable’s application as based on the fact that he is making allegations of corruption against judges. The application is based on his history of persistent abuse of process by TWM applications, and the clear risk that he will issue claims or make applications that are TWM. It happens that Mr Gray’s history of TWM applications includes two which falsely impugned the integrity of a Judge. There is a plain and obvious risk that he will do so again, by way of a TWM application. I share the assessment of Judge Cotter, above.[46]The fact that Mr Gray has been ordered to pay nearly £100,000 in legal costs to the Chief Constable which he is unable to or has failed to pay, is also a factor that supports my conclusion. Mr Gray’s objection to the Chief Constable’s reliance on this point is misplaced. The argument is not simply that his claims are costly. Nor is it said that his rights must be restricted just because he has a debt. The relevance of the costs bills is threefold.(1) First, they show that Mr Gray has lost claims and applications, having caused the Chief Constable to incur substantial costs in the process.(2) Secondly, the costs bills tend to show that the litigation to date has been disproportionate. Mr Gray has recovered damages of £5,026. The costs recoverable by the Chief Constable in respect of failed claims or applications are nearly 20 times that sum.(3) Thirdly, costs orders are normally a disincentive for litigants, and set some limits on what they are prepared to do. But that form of control does not apply in the case of Mr Gray. As Mr Talalay submits, the position as regards costs tends to show that the situation is one that demands preventative steps, rather than after-the-event remedies.[47]Most of Mr Gray’s submissions to the contrary rest on the premise that he has been victimised by the police or, at the minimum, that his substantive claims against the Chief Constable have all had at least arguable merit. But those arguments are not a sufficient answer to the points I have made so far. The GCRO is made against a background of persistent abuse of process. It is designed to manage an identifiable risk of unfounded claims or applications in the future, by allowing only those which have arguable merit to proceed, subject to appropriate case management. That risk does not arise in relation to a single piece of litigation, or even in relation to matters concerning the same subject-matter. An ECRO clearly would not be sufficient to cater for the risk.[48]I am unimpressed by Mr Gray’s point (2). I do not see a GCRO as involving any reversal of the burden of proof. Such an order will prevent the Chief Constable from being harassed by claims which are clearly bound to fail, or which are framed in ways that are contrary to the overriding objective. If Mr Gray presents a claim with apparent merit he can expect to obtain permission to pursue it, provided it is appropriately framed, or subject to controls on the way it is formulated. If he passes these tests, the legal burden of proof will lie where it would otherwise have lain. So far as any arrest is concerned, it will be for the Chief Constable to establish its lawfulness. Nor is there the slightest merit in Mr Gray’s point (5). The fact that a person cannot sue the police or a fellow citizen for damages without first persuading a Judge that the claim has some merit could not possibly count as justification for an act of violence.[49]I was at one stage troubled by Mr Gray’s fourth point. Not because I see any substance in his complaint that the judiciary have not treated him fairly in the past and cannot be trusted to do so in future. As I have said, that is not a point he has any right to make on this application. Nor does it have any apparent merit at all. His position appears to be, as it was at this hearing, that the judge may be fair and impartial - unless and until he or she rules against Mr Gray. In my case, Mr Gray was able to predict that these reasons would amount to “whitewash”. He evidently does not need to wait to see what the reasons are before reaching such a conclusion.[50]The reason I was concerned about Mr Gray’s fourth point will be obvious: if a GCRO amounted in practice to a complete bar on a person’s access to justice, it would be an unacceptable fetter on a fundamental right. It would, indeed, deny the essence of the right itself. The bar would be all the more objectionable if those whom it protected from judicial scrutiny were public officers, and still more so if those officers were accused of conducting what is in substance a vendetta against a private individual. (Vendetta is my word, not Mr Gray’s; but it aptly sums up the nature of Mr Gray’s overall case against the police and others.)[51]But as I have said, there is no evidence to support Mr Gray’s point. He has produced nothing other than assertion to support a conclusion that the imposition of a GCRO would in fact prevent him from seeking permission. The assertion does not become any more persuasive by virtue of its frequent repetition, or the vitriolic terms in which it is put. I cannot accept, without more, that he would be so prevented. No detail has been provided. Mr Gray has demonstrated an ability to pursue claims and applications without legal assistance in the past. He does not appear to have been impeded by limits on the available funds. There is no evidence, nor even an assertion, of any particular occasion on which he has tried to apply for permission to bring a claim while subject to a GCRO, and been prevented on financial grounds. And if there was a problem over an inability to pay the right response would not be to refrain from making a GCRO. The solution would be to tackle the access to justice problem, once established, in a different way.[52]There is one other point which struck me about the Chief Constable’s application. It arose from Ms Dauncey’s evidence that the claims advanced by Mr Gray will typically give rise to a dispute of fact which cannot be resolved on a summary basis. This seemed to cast doubt on the utility of a GCRO in relation to Mr Gray. The Judge addressing an application for permission to proceed against the Chief Constable would not be able to refuse it on merits grounds. What then would be the point of, or justification for, requiring the application for permission?[53]In the end, however, there are several answers:(1) the GCRO does not just protect the Chief Constable; Mr Gray has brought at least one TWM claim before now, against a civilian defendant;(2) there is a risk that he may bring a TWM claim against the Chief Constable; the permission filter would allow any such claim to be eliminated at the earliest stage, with the lowest cost;(3) there is a very real risk that any arguable claim he brings will be festooned with irrelevant or disproportionate collateral allegations, which the court could rule out at an early stage;(4) there is also a real risk of TWM applications being made by Mr Gray in any claim that is permitted to proceed.[54]For all these reasons I was satisfied that it was appropriate to grant an extension of the GCRO first imposed by Teare J, and to do so for 2 years. I designated as the Judges to deal with any application for permission myself or, if unavailable, Dingemans J (as Presiding Judge of the Circuit), or alternatively a Judge nominated by one of us.

Postscript, 11 January 2017

[55]At an adjourned hearing on 16 December 2016 Mr Gray applied for permission to appeal, which I refused. One of his grounds was that I was wrong to reject his contention that an ECRO would in practice represent an absolute bar on his access to justice. I rejected that contention, for the reasons given at [49-51] above.[56]By a letter to the Court Manager dated 26 December 2016 Mr Gray made a “Request for clarity from Warby J in respect to interpretation of manner in which ‘written application’ for permission to bring claims/applications per GCRO must be made”.He complained that it was unclear whether he could write to me direct without paying a fee. In reply, he was told that he could challenge my ruling by applying to the Court of Appeal for permission to appeal; and that it was not my role to advise him, or to rule in the abstract, on whether he should be required to pay a fee for any application he might wish to make.[57]The general rule is that applications must be made by notice, which must be filed. The rules as to fees are contained in the Civil Proceedings Fees Order 2008 as amended by the Courts and Tribunals Fee Remission Order 2013. The basic rule is that a person who is subject to a CRO and wishes to seek permission to take a step covered by that CRO is not entitled to help with fees for that purpose; he is required to pay the prescribed fee, but if his application is successful he may claim a refund of the difference between the fee he paid, and the fee which would have been payable under the system for help with fees: see Article 5 and Schedule 2 para 19 of the 2008 Order.[58]It remains clear that Mr Gray has failed to make out this aspect of his complaint evidentially. However, on reflection, and in the light of Mr Gray’s application, I concluded that I should vary my order so as to make an exception to the ECRO. The exception would allow Mr Gray the opportunity to challenge the lawfulness of any decision to refuse to issue an application to me for permission as required by the ECRO (“Refusal Decision”), if the Refusal Decision is based upon his failure to pay a fee, and he contends that he is unable to pay the fee and that the effect of the Refusal Decision is unlawfully to deprive him of access to justice.[59]I have therefore made an order varying the ECRO that I made on 17 November 2016 to create an exception permitting (in principle) a judicial review claim of this kind. Any such claim would of course be against the decision-maker, not the Chief Constable. A claim for judicial review requires permission in any event, and the application for permission is dealt with in the first instance on the papers, without a hearing. The main significance of the exception is that it will allow the fee remission system to operate, if Mr Gray is able to show that it applies on the facts. An application for permission to seek such a judicial review may be dealt with by any suitably authorised judge, and need not be made to me, Dingemans J or anyone designated by us; but it must include or be accompanied by a copy of the ECRO as it now stands and my judgment, including this postscript.

order

see, eg, CPR rr 3.3(5) and (6); 23.8 - 23.11 & PD23 11.2. Otherwise, if the proceedings are between the same parties, there will be issue estoppel; and in any case, the correct means of challenge will normally be by way of appeal. (4) Fourthly, as Mr Gray has emphasised, a CRO interferes with the right of access to a court. That is a fundamental civil right. The court must be alive to that, and wary of too readily imposing restrictions upon the right of access. Restrictions should be imposed only if and to the extent that they are necessary in the pursuit of a legitimate aim. In the case of a CRO the legitimate aims in view include the protection of the rights of others, to be free from the waste of time and precious resources that flow from the bringing of unfounded claims and applications. The scarce publicly funded resources of the court also require protection against such waste. These are considerations which justify the existence of the CRO regime. (5) In that context, the fifth point is important. A GCRO is not, as some of Mr Gray’s submissions would suggest, a bar on the bringing of any proceedings. It imposes a permission filter. Permission filters are a well-established feature of civil and criminal procedure. They are most common as a way of controlling the use of appeal mechanisms. But permission is required to initiate a claim for judicial review. The court would not refuse permission to bring a claim of substance with arguable merit. What it might do, if presented with such a case, is to give directions to ensure that any untenable aspects of the claim were removed and to ensure that all remaining claims were conducted fairly and efficiently, did not consume disproportionate resources, and were otherwise dealt with in accordance with the overriding objective. Mr Gray’s GCRO history

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