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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Clare, R (on the application of) v Commissioner of Police [2005] EWHC 1108 (Admin) (15 April 2005) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2005/1108.html Cite as: [2005] EWHC 1108 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		15th April 2005

1. MR JUSTICE WALKER:

Introduction

2. On 1st April 2004 the functions of the Police Complaints Authority were transferred to the defendant, the Independent Police Complaints Commission. The defendant was created by the Police Reform Act 2002. The Independent Police Complaints Commission (Transitional Provisions) Order 2004 is made under that Act. Paragraph 2, so far as material, of the Order provides that where a complaint was received before 1st April 2004 in respect of conduct by a member of a police force Chapter I of Part IV of the Police Act 1996 continues to have effect. There is just one difference. The functions of the Police Complaints Authority under that chapter in relation to that complaint are to be carried out by the defendant instead of by the Authority.
3. One of the last actions of the Police Complaints Authority concerned a complaint by the claimant, Deborah Clare. That complaint had been made in writing on 2nd January 2003. The complaint alleged that excessive force had been used by officers of the Metropolitan Police when arresting her on the night of 31st December 2002 to 1st January 2003.
4. The Commissioner of Police for the Metropolis is the first interested party. I shall call him "the Commissioner". He received the claimant's complaint and decided to investigate it. He also referred the complaint to the Police Complaints Authority. That referral was made under section 70(1)(b) of the Police Act 1996, and following that reference the investigation was supervised by the Police Complaints Authority.
5. It has emerged that one of the officers involved in arresting the claimant was the second interested party, PC John Davies. I shall refer to him as "PC Davies". He was given formal notice of the complaint by a document known as a Form 163 ("Form 163") on 15th January 2003. The form gave him details of what the claimant alleged had happened and said there was to be an investigation into the case.
6. Very shortly before the transfer of its functions, the Police Complaints Authority decided to grant the Commissioner what has been called a dispensation. This was done under the Police (Dispensation from Requirement to Investigate Complaints) Regulations 1985 (SI 1985/672).
7. Those Regulations enabled the Commissioner, if he considered that it was not reasonably practicable to complete the investigation of the claimant's complaint, provided certain circumstances were met, to request the Authority to dispense with the statutory requirements which would otherwise have compelled him to continue investigating the claimant's complaint.
8. The Commissioner did indeed make such an application, and the Authority decided that it agreed with it. Accordingly, it decided to dispense with those requirements. There is some inconsistency in the documents about the date of that decision, but it was accepted before me that it could be treated as having been taken on 26th March 2004.
9. The claim form in this case was issued on 1st September 2004. It sought permission to apply for judicial review, among other things, by quashing the decision to grant a dispensation. It also sought an extension of time. The application for an extension of time was necessary because by statute and by rules of court there is an obligation to seek judicial review promptly, and in any event within three months of the decision challenged. That time limit can, however, be extended by the court in an appropriate case.
10. Notwithstanding the lapse of time prior to 1st September 2004, the defendant accepts that the decision to grant a dispensation should be quashed. However, PC Davies does not accept this. He has two main submissions. His first submission is that the decision was not vitiated in any way such as to render it liable to be quashed as a matter of law. His second submission is that, even if the decision to grant a dispensation were liable to be quashed, that remedy should be refused as a matter of discretion on grounds of delay.
11. Counsel for PC Davies today is Mr Hugh Davies. I shall seek to distinguish him from PC Davies by referring to him as "Mr Davies". It seemed to me today that he had a possible third point: that the only reasonable conclusion in the light of all the facts now known was that dispensation should be granted.
12. The Commissioner does not appear and is not represented. He has at times expressed certain views through his officers, and I shall deal with these when describing PC Davies' submissions. As will appear, the case is one where other questions might, depending on my decision, arise. The result of the decision I have reached is that they do not arise. In this judgment I deal with the two main submissions and the possible third submission, and explain why it is that I have concluded that there was indeed a flaw in the decision of the 26th March 2004 such as to vitiate that decision, that it would be wrong to refuse to quash that decision and that it cannot be said that the only reasonable conclusion in the light of all the facts now known is that dispensation should be granted.

The facts

13. The factual background is helpfully set out in paragraphs 1.1 to 1.17 of the claimant's grounds. For convenience, I set out those paragraphs here:

"1.1 The Claimant (also known as Deborah Stubbs) made a complaint under the Police Complaints Procedure orally to Inspector Jones on 1 January 2003 complaining about the conduct of police officers on the night of 31 December 2002/1 January 2003. The Claimant complained, amongst other things of an assault by officers. The Claimant made a further statement to the police on 2 January 2003 in support of her complaint. PC 576 XH Rimmer noted her injuries and the retention of CCTV footage was requested. The Claimant attended Hillingdon Hospital Accident and Emergency on 1 January where her knee was x-rayed and she was given crutches. In summary the allegations as recorded in the Complaint included the following:

'... The Claimant was treated in a very heavy handed manner, she was thrown to the floor, knelt on and had her face pressed into the concrete; during handcuffing her dignity was exposed (i.e. her breasts were revealed) due to the nature of the top she was wearing; she was verbally abused by the officers, including being called a 'Pikey cunt'.

1.2 No action was taken by the Metropolitan Police Service (MPS) to investigate the complaint pending the conclusion of criminal proceedings against the Claimant. These proceedings were discontinued by the CPS in October 2003.

1.3 The Claimant met with officers from the MPS on 17 November 2003 to discuss her complaint and the officers put forward a number of options as to how the complaint might be resolved.

1.4 The Claimant instructed Christian Khan solicitors in relation to the complaint on 17th December 2003. On 22 December Christian Khan wrote to the investigating officer, DI Tracy Bell confirming that they had been instructed and setting out as follows:

'We understand that you wish to obtain a statement from our client so that you can investigate our client's complaints further. We confirm that we are currently taking detailed instructions and will be finalising a detailed statement on behalf of our client which we will send to you in due course. Whilst writing we would ask that you send all future correspondence to this office and not directly to our client.'

Christian Khan went on to request copies of the Claimant's custody record and notes of her examination by the FME and any notes taken in relation to the allegations made on 1 and 2 January 2003.

1.5 DS Gary Kidd of the Metropolitan Police Service Internal Investigation Command replied on 3 January stating:

'I understand that you are now representing Ms Stubbs and I will ensure that all future correspondence is addressed to yourself.'

DS Kidd confirmed the name of the PCA member who was supervising the complaint and also requested clarification of how the Claimant would like her complaint progressed and the Claimant's signed consent to disclosure of the claimant's medical records in relation to any injuries suffered in the incident, as well as her GP's details and confirmation of the date that the Claimant attended Hillingdon Hospital. (this last information was already contained in the details of complaint recorded on 2 January 2003.)

1.6 Christian Khan responded to DS Kidd on 14 January 2004, stating:

'We confirm that we will obtain our client's GP records and other medical records and send you the relevant notes to assist you in your investigations in due course. We also confirm that we will be submitting a detailed statement on behalf of our client.'

Christian Khan also requested that they be provided with the list of options given to the Claimant at the meeting on 17 November 2003.

1.7 Christian Khan wrote to the relevant PCA member on 14 January to inform him that they were instructed by the Claimant and requesting that all future correspondence be directed to them.

1.8 On 19 January 2003 DS Kidd wrote to Christian Khan setting out the options that had been presented to the Claimant on 17 November 2003 these ranged from withdrawal of the Complaint to a Full Investigation.

1.9 On 23 January 2004 Christian Khan replied to DS Kidd confirming that the Claimant wished her complaint to be fully investigated and stating:

'We note that it has been over a year since the complaint was first lodged, but you will appreciate that the complaint was not investigated by you pending the criminal proceedings. Further you will note that we have only recently been instructed. We are currently finalising a detailed statement on behalf of our client which we will send you shortly. In the meantime should you have any queries please do not hesitate to contact Shazia Khan of this office.'

1.10 Instead of replying to that letter, or contacting the named solicitor as suggested in that letter, on 9 February 2004 DI Bell of Internal Investigations Command wrote, not to Christian Khan as previously agreed by DS Kidd but directly to the claimant in the following terms:

'With regards to the complaint you made to Police following your arrest on 31st December 2002, a letter was sent to your solicitors, Christian Khan on 19 January requesting a statement from you with regards to this incident. To date we have received no statement from you and are therefore unable to progress this investigation. Unless I hear from you within 21 days of the dated of this letter then an application may be made to the Police Complaints Authority requesting a dispensation from any further investigation in this case. Your prompt co-operation would be appreciated.'

This letter was not copied to Christian Khan. The letter fails to refer to the letter from Christian Khan dated 23 January 2004 and also ignores the fact that the Claimant had already given a statement setting out the basis of her complaint as recorded by Inspector Jones on 2 January 2003.

1.11 In a letter dated 26 March 2004 the PCA wrote to the Claimant informing her that they had agreed to the Police's request for a dispensation, stating:

'The papers submitted to the Authority show that letters requesting your co-operation were sent by the Investigating Officer to your solicitor on 3 January 2004 and 19 January 2004 and to you on 9 January 2004 the final letter being sent by recorded delivery. To date the police inform me that no statement of complaint has been received despite your solicitor undertaking to provided one. From the information provided, the Authority had agreed that a meaningful investigation of your complaint cannot be undertaken without your co-operation. We have, therefore, agreed that the police cease their enquiries.'

Again, no mention is made of the letter from Christian Khan dated 23 January 2004, nor of the details of complaint recorded by Inspector Jones on 2 January 2003, nor of the fact that the letter dated 9 February 2004 was not copied or sent to the Claimant's solicitor.

1.12 The PCA's letter dated 26 March 2004 was copied to the Claimant's solicitors and received by them on 31 March 2004, they responded immediately by fax in their letter dated 31 March 2004, setting out their surprise and concern that they were not informed of the request for a dispensation and that no account was taken of the statement taken from the Claimant on 2 January 2003 they went on to request that in the circumstances no dispensation be granted or that it be revoked as being clearly unreasonable.

1.13 April 2004 the PCA was replaced by the IPCC. On 26 April 2004 the IPCC wrote to Christian Khan stating:

'I can advise you that a dispensation was granted by the PCA on 29 March 2004. As you may be aware the IPCC has no jurisdiction in cases which have been concluded by the PCA prior to 1 April 2004.'

1.14 By letter dated 1 June 2004 the Claimant's solicitors wrote to the MPS requesting that they continue with the investigation into the Claimant's complaint, enclosing a signed statement from the Claimant and pointing out that the details of the complaint had been provided by the Claimant on 1 January 2003.

1.15 By letter dated 25 June 2004 the MPS replied setting out its decision not to re-open the investigation and stating:

'I have examined the correspondence in relation to the investigation of your complaint against police and I apologise that you were to [be] informed of our decision to seek a dispensation from the Police Complaints Authority. However, a letter was forwarded to your client by recorded delivery informing her that unless we heard for her within 21 days we would submit such a request to the PCA. I also note that we only received Ms Clare's statement with your accompanying letter, your letter being dated 1st June. This was despite assurances made to DS Kidd in a letter from you on the 24th December 2003 that a statement was being taken from Ms Clare and would be sent in sue course. On the 14th January your firm contacted DS Kidd stating they would submit a detailed statement on behalf of Ms Stubbs. On the 23rd January a letter from your firm said you were 'currently finalising a detailed statement on behalf of our client which we will send you shortly'. Having carefully considered this matter, I regret to inform you that I am unable to find sufficient grounds to re-open the investigation.'

1.16 The Claimant's solicitors wrote to both the IPCC and the MPS on 12 July 2004 referring them to the case of R (on the application of Wilkinson) v the Police Complaints Authority and the Chief Constable of Merseyside Police [2004] EWHC 678 (Admin), inviting them to change their positions. In particular in their letter to the MPS they referred to the fact that the Police had had full details of the claimant's complaint since 1 January 2003 and referred to the details recorded on Form 3352 and to the failure to provide nether sufficient nor cogent reasons why they are unable to re-open the investigation.

1.17 Further exchanges of correspondence took place between the parties. The MPS have maintained their position. The IPCC however wrote to the Claimant's solicitors on 18 August 2004 in the following terms:

'Notwithstanding the representations contained within your letter before claim, it remains the IPCC's view that it has no power in law to reconsider or revoke its decision to grant a dispensation. I have had regard to the comments of Gage J in Wilkinson; however, as indicated in Ms Enston's 3 August letter, the court in that case was addressing the issue of whether it had a power to quash. It is the view for the IPCC that the decision of Brooke J in R v PCA & the Metropolitan Police Commissioner, ex parte Hanratty, Bradshaw & Harrison, not addressed in your letter before claim, which precludes any revocation of the dispensation decision. Addressing the powers of the PCA, Brooke J makes it clear (at page 28 of his judgment) that they do not extend to a re-opening where a decision as to dispensation has already been made:

"I am quite clear ... that there is no room in that statutory framework for the Police Complaints Authority then to reconsider their decision in the light of new submissions made to them by the applicants. Accordingly I accept Mr Burnett's submission that there was no jurisdiction to re-open the case ..."

Although, in the IPCC's view, it is functus officio in this matter, it is clear that a breakdown in communication occurred. Indeed, it seems that Detective Superintendent Donnelly has recognised as much. In the particular circumstances of the present matter, therefore, and in the event that proceedings are issued in the Administrative Court, the IPCC will be willing to agree to a consent order quashing the decision to grant a dispensation. I appreciate that such an approach might seem unwieldy, but any other will be unlawful and open to challenge.'

14. This is not a complete account of the facts. It was supplemented in certain respects in the submissions on behalf of PC Davies, and reference should be made to my account of those submissions for the relevant additional facts.
15. Simply looking, though, at the chronology of what occurred as set out in the claimant's grounds, one can readily understand that it must have been a welcome relief to PC Davies when, on 19th April 2004, he received notification of the dispensation and that as a result no formal disciplinary proceedings would be taken against him. This notification was in a formal document, a Form 163A.
16. As to the impact on him of the claimant's complaint and the Commissioner's investigation, I quote from PC Davies' witness statement. First, paragraph 5:

"5. ... As far as I was concerned that [the Form 163A] was absolutely the end of the complaint. This was a matter of considerable relief because, although the complaint is false, it is demoralising for the allegation to remain unresolved."

17. Next, at paragraphs 15 and 16:

"15. Although I have remained on unrestricted duties, any outstanding complaint has considerable practical consequences. Pending resolution of a complaint, I am unable either to transfer out of the Metropolitan Police Service to a different Constabulary, or transfer to another Borough within the Metropolitan Police, or to apply for any specialist post within the Metropolitan Police. Similarly, there is no realistic prospect of promotion.

16. Against that background, when I was advised, formally, that this matter was over I was relieved and started to plan my career. I have done nothing wrong and this is now hanging over my head again. I feel let down by the system. I am amazed that an application has been made to re-open this investigation, which I had been told was concluded. Other police officers are equally concerned that a complainant can be so casual in pursuing a complaint and then permitted to re-instate it."

18. It will be seen that paragraph 16 deals also with the impact arising from reinstatement of the investigation. In that regard PC Davies' statement says at paragraphs 17 and 18 as follows:

"17. Through no fault of mine it will be well over two years from the alleged incident that the matter would even be investigated. Realistically, even if discipline proceedings resulted, these would not take place for many months after that. In all the circumstances I do not believe either that this is fair, or that a meaningful investigation is now possible. Possible civilian witnesses will no longer be identifiable. The other police officer simply has a notebook that does not, I believe, support the complainant. The delay in supplying evidence to the investigating officers is attributable to the complainant.

18. I accept that there is a public interest in regulating the conduct of police officers. Equally, however, if a member of the public makes a complaint there is an obligation on them to co-operate with the investigation to ensure that the adverse consequences of delay are avoided. I genuinely feel that not only would a full investigation now be severely compromised, but that it is simply unfair to open up the whole matter again in these circumstances. Police officers are entitled to confidence in the fairness of proceedings just as much as complainants."

19. In these circumstances, it is hardly surprising that PC Davies felt a very deep sense of disappointment when he learnt that the defendant had consented to the quashing of the decision to grant a dispensation.

The claim form

20. Section 7 of the claim form dealt with the remedies that were sought. I quote paragraphs 1 to 3 of that section:

"1. An order quashing the Police Complaints Authority's decision dated 29 March 2004, such order would be by consent of the Defendant (please see their letter dated 18 August 2004 exhibited hereto as SK7 p. )

2. An order quashing the Defendant's decision dated 26 April 2004 and 18 August 2004 that they had no power to review the dispensation granted by the PCA.

3. A mandatory order requiring the IPCC to reconsider the grant of dispensation ..."

21. It was agreed in argument before me today that I should hear submissions on paragraph 2 only after the conclusion of argument on paragraph 1. In the grounds upon which these remedies were sought, paragraphs 3.1 to 3.5 asserted that the decision of 26th March 2004 was vitiated by three different types of unlawfulness. These were procedural impropriety, irrationality and failure to take account of relevant considerations. Paragraph 3.8 identified a further ground: error of law in failing to ask the correct questions.

The course of litigation after issue of the claim form

22. On 21st September 2004 the Administrative Court Office received a fax from Reynolds Dawson, solicitors newly instructed to advise PC Davies in the light of the decision by the Commissioner that he would not take an active part in the proceedings. That fax indicated that an acknowledgement of service on behalf of PC Davies would be filed. Such an acknowledgement of service was duly filed on 24th September. Unfortunately, it was not formally logged on to the Administrative Court system until 28th September.
23. On 27th September 2004 there was lodged a signed draft consent order. This document was signed on behalf of the claimant and the defendant. The statement of reasons, which accompanied this document, said this:

"The Defendant accepts that a dispensation should not have been granted and it failed to take into account the fact that [the claimant] was represented by Christian Khan solicitors and any correspondence in respect of the complaint should have been sent to Christian Khan solicitors as agreed in [the Commissioner's] letter dated 3 January 2004.

The Defendant agrees that the investigation into [the claimant's] complaint should continue forthwith."

24. Unfortunately, the papers came before Munby J on 14th October 2004 without the benefit of the correspondence with Reynolds Dawson or the acknowledgement of service on behalf of PC Davies, and without a letter from the claimant's solicitors dated 5th October 2004 which made it clear that PC Davies sought to contest the claim.
25. In the absence of that information, Munby J made an order as follows:

"UPON READING THE Claim Form in this matter.

AND UPON READING the Form of Consent together with the Particulars and Statement of Reasons signed by all the parties to these proceedings.

AND the Court being satisfied that the Consent Order hereinafter set out should be made.

AND pronouncing the said Order in Open Court without the requirement of the parties' attendance.

AND no order for costs having been sought or made save as is hereinafter provided.

BY CONSENT

IT IS ORDERED

(1) That the dispensation granted by the Police Complaints Authority to the Commissioners of Police for the Metropolis on 26 March 2004 to cease to investigate Ms Clare's complaint against the Police be quashed.

(2) That the Defendant reconsiders the application for the dispensation and agrees that the application for the dispensation should not be granted in the circumstances."

26. When Munby J became aware of the unfortunate mistake that had occurred, he directed on 15th December 2004 that the matter be listed before a judge of the Administrative Court. That duly happened on 1st March 2005, when the matter came before Munby J and after hearing counsel for the claimant, the defendant and PC Davies, the consent order of 14th October 2004 was set aside and permission was granted for the claimant's claim for judicial review to proceed to a full hearing. That is the hearing which was conducted before me today, although, as I say, it was agreed that submissions on the second head of relief should only be dealt with at a stage after consideration of those on the first head of relief.

The statutory framework

27. Under the Transitional Provisions Order 2004, the claimant's complaint is governed by Chapter I of Part IV of the Police Act 1996. Under that Chapter, relevant provisions are found in section 67 and following:

"67(1) Where a complaint is submitted to the chief officer of police for a police area, he shall take any steps that appear to him to be desirable for the purpose of obtaining or preserving evidence relating to the conduct complained of.

(2) After complying with subsection (1), the chief officer shall determine whether he is the appropriate authority in relation to the member of a police force whose conduct is the subject of the complaint.

...

69(1) If a chief officer of police determines that he is the appropriate authority in relation to a member of a police force-

(a) whose conduct is the subject of a complaint, and

(b) who is not a senior officer,

he shall record the complaint.

...

(6) If, after attempts have been made to resolve a complaint informally, it appears to the chief officer of police-

(a) that informal resolution of the complaint is impossible, or

(b) that the complaint is for any other reason not suitable for informal resolution,

he shall appoint a member of his own or some other force to investigate it formally

...

70(1) The appropriate authority-

(a) shall refer to the Authority-

(i) any complaint alleging that the conduct complained of resulted in the death of, or serious injury to, some other person, and

(ii)any complaint of a description specified for the purposes of this section in regulations made by the Secretary of State, and

(b) may refer to the Authority any complaint which is not required to be referred to them.

...

73(1) At the end of an investigation which the Authority have supervised, the investigating officer shall-

(a) submit a report on the investigation to the Authority, and

(b) send a copy of the report to the appropriate authority.

(2) After considering a report submitted to them under subsection (1), the Authority shall submit an appropriate statement to the appropriate authority.

(3) If it is practicable to do so, the Authority, when submitting the appropriate statement under subsection (2), shall send a copy of it to the member of a police force whose conduct has been investigated.

(4) If-

(a) the investigation related to a complaint, and

(b) it is practicable to do so,

the Authority shall also send a copy of the appropriate statement to the person by or on behalf of whom the complaint was submitted.

(5) The power to issue an appropriate statement includes power to issue separate statements in respect of the disciplinary and criminal aspects of an investigation.

(6) No disciplinary proceedings shall be brought before the appropriate statement is submitted to the appropriate authority.

(7) Subject to subsection (8), neither the appropriate authority nor the Director of Public Prosecutions shall bring criminal proceedings before the appropriate statement is submitted to the appropriate authority.

(8) The restriction imposed by subsection (7) does not apply if it appears to the Director that there are exceptional circumstances which make it undesirable to wait for the submission of the appropriate statement.

(9) In this section 'appropriate statement' means a statement-

(a) as to whether the investigation was or was not conducted to the Authority's satisfaction,

(b) specifying any respect in which it was not so conducted, and

(c) dealing with any such other matters as the Secretary of State may by regulations provide.

...

81(2) The Secretary of State shall by regulations provide-

...

(e) for enabling the Authority to dispense with any requirement of this Chapter; ..."

28. The 1985 Regulations, so far as material, provide:

"3(1) Where the appropriate authority is of the opinion-

(a) that a complaint is an anonymous or a repetitious one within the meaning of paragraph 2 or 3 of the Schedule to these Regulations, or that a complaint is vexatious, oppressive or otherwise an abuse of the procedures for dealing with complaints, or that it is not reasonable practicable to complete the investigation of a complaint, within the meaning of paragraph 4 thereof, or

(aa) that 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, and

(b) in either case, that, in all the circumstances, the requirements of Part IX of the Act of 1984 (to the extent that they have not already been satisfied) should be dispensed with,

the appropriate authority may, in accordance with this Regulation, request the Authority to dispense with the said requirements as respects the complaint.

(2) The request, which shall be made in writing, shall be accompanied by-

(a) a copy of the complaint;

(b) a memorandum from the appropriate authority explaining the reasons for being of the opinion mentioned in paragraph (1) ; ...

(c) where the appropriate authority is of the opinion that the complaint is a repetitious complaint and, as respects the previous complaint the person then the complainant gave such notification as is mentioned in Regulation 3 of the Police (Withdrawn, Anonymous Etc Complaints) Regulations 1977 or Regulation 11 of the Police (Complaints) (General) Regulations 1985 a copy of that notification unless it has previously been sent to the Board or, as the case may be, the Authority in pursuance of that Regulation; and

(d) where the appropriate authority is of the opinion that the complaint is a repetitious complaint and the previous complaint has been informally resolved in accordance with the provisions of section 85 of the Act of 1984, a copy of the record of outcome of the informal resolution procedure made under regulation 5 of the Police (Complaints) (Informal Resolution) Regulations 1985.

(3) If, after considering a request under this Regulation, the Authority share the opinion of the appropriate authority, they may dispense with the requirements mentioned in paragraph (1) but they shall not reject such a request except after consultation with the appropriate authority.

(4) The Authority shall, as soon as may be, notify the appropriate authority in writing, of their decision on such a request and, where they dispense with the requirements mentioned in paragraph (1), shall inform the complainant of their action unless the complaint is an anonymous one or it otherwise appears to them to be not reasonable practicable so to inform him within a period which is reasonable in all the circumstances of the case.

SCHEDULE

...

4. For the purposes of Regulation 3 it shall not be reasonable practicable to complete the investigation of a complaint if, and only if, in the opinion of the appropriate authority or, as the case may be, of the Authority, either-

(a) it is not reasonable practicable to communicate with the complainant or, as the case may be, the person who submitted the complaint, or any other injured person, notwithstanding that the complaint is not an anonymous one within the meaning of paragraph 2, or

(b) it is not reasonably practicable to complete a satisfactory investigation in consequence of-

(i) a refusal or failure, on the part of the complainant, to make a statement or afford other reasonable assistance for the purposes of the investigation, or

(ii) a refusal or failure, on the part of an injured person other than the complainant, to support a complaint, evidenced either by a statement in writing (signed by him or by his solicitor or other authorised agent on his behalf) to the effect that he does not support it or by a refusal or failure, on his part, such as is mentioned in sub-paragraph (i) above, or

(iii) the lapse of time since the event or events forming the subject matter of the complaint."

29. Guidance was given by Bingham LJ (as he then was) in the case of R v Police Complaints Authority ex parte Broome, unreported, transcript dated 6th December 1988. All parties agreed that a passage in this judgment gives a helpful analysis, and for convenience I set it out here:

"It is plain from the Regulations that if the appropriate authority -- here the Chief Constable -- forms the opinion defined by the statute, he may request the PCA to dispense with the requirements of Part IX of the Police and Criminal Evidence Act 1984, but he is not obliged to make the request even if he does form the opinion defined by the statute. It is a matter for his judgment whether he makes the request or not.

It is equally plain that, if the PCA shares the Chief Constable's opinion, it may dispense with the requirements of Part IX of the Police and Criminal Evidence Act 1984. If, properly directing itself, the PCA does not share the Chief Constable's opinion, that is the end of the matter. The PCA then has no discretion to exercise. If the PCA does share the Chief Constable's opinion, that is not the end of the matter. In that event the PCA does have a discretion to exercise, but it will be a matter for its judgment, in the light of all the circumstances of the particular case, whether to grant the requested dispensation or not.

The first question for consideration by the PCA in a case such as the present is, therefore, this: has there, in the opinion of the PCA, been a refusal or failure on the part of the complainant to make a statement or afford other reasonable assistance for the purposes of the investigation? If, properly directing itself, the PCA answers that question ion the negative, no further question arises. If it properly answers the question affirmatively, a second question arises.

The second question is this: is the PCA of opinion that by reason of such refusal or failure it is not reasonably practicable to complete a satisfactory investigation within a period which is reasonable in all the circumstances of the case? If, properly directing itself, the PCA answers that question in the negative, again no further question arises. If it properly answers that question affirmatively, then a third question arises.

The third question is: does the PCA, in all the circumstances, judge it to be appropriate to grant the requisite dispensation? Only if it answers that question affirmatively will it do what it is asked.

Here, the PCA asked itself the first question and conceived itself bound in law to give a negative answer. It considered that the complainant had not refused to make a statement or afford other reasonable assistance because the complainant had not said that he would not do so, but that he would not do so until after the conclusion of the civil proceedings. There being, as a matter of law, no refusal in the PCA's opinion, no other question of law or fact arose.

Mr Laws, for the PCA, supports the correctness of that conclusion. He suggest that there would be real difficulties in administering those provisions if any other construction were upheld, and that in particular a complainant would be hamstrung in pursuing a complaint while prosecuting a civil claim.

In my judgment any statutory provision has to be read in context. Here the context is that of investigating complaints within a reasonable time. I am of opinion that a refusal to make a statement or afford other assistance until after an event which may well be two years or more away is, in law, to be regarded as a refusal under the Regulations. But I am even more clearly of opinion that it must be regarded as a failure within the meaning of the Regulations. Of course it is not every minor or inadvertent or casual relay which is to be so regarded, but where a complainant does, over a period of weeks, decline to give a statement or afford assistance, and makes plain that he will similarly decline for a considerable period in the future, that is, in my opinion, a failure even if, contrary to my view, it is not a refusal.

I conclude that properly directing itself the PCA should have answered this question yes, and that it erred in law in failing to do so."

Submissions on the decision

30. Mr Stephen Simblet, who appears on behalf of the claimant, began by referring me to the case of R v Independent Appeals Committee ex parte Mellow Lane, unreported, transcript of 17th August 2000. I say no more about his submissions in relation to that case, for it seems to me very different from the present. It was a case where an interested party does not appear to have been able to dispute that the decision in question was in law liable to be quashed. Nor did the interested party seek to say that there was some discretionary bar to relief, such as delay.
31. Turning to the grounds upon which the decision could be said to be vitiated, Mr Simblet relied upon what was said in the statement of reasons that had formed part of the consent lodged by both parties. Those reasons made it clear that it was accepted that there had been a failure to take into account a material consideration.
32. My own review of this correspondence had led me to conclude that there must have been, subject to anything that PC Davies might be able to say to the contrary, a failure to take account of the matters set out in the statement of reasons. This was a case where the only relevant ground for granting a dispensation was that there had been a failure or refusal on the part of the claimant to assist. Far from failing or refusing to assist, the complainant's solicitors had explained that there were records that they needed to obtain and that they would prepare a statement as soon as they could, having obtained those records. The only countervailing factor was that the letter of 9th February had been sent by the investigating officer to the claimant and had informed her that, unless a reply was received within 21 days, an application for dispensation might be made. However, when one reviewed the correspondence, one saw that there had been an undertaking by the investigating officer to send all communications, not to the claimant herself, but to her solicitors. There is a very good reason for solicitors to seek an undertaking of that kind. It can often be the case that clients move their address or are difficult to get hold of or may be away, or simply assume that their solicitors are dealing with the matter and for that reason take no action.
33. I add by way of parenthesis that in this particular case we know from a witness statement on the part of the claimant that she made the assumption I have just described. She assumed that because all correspondence was to be sent to her solicitors, they would have received the letter of 9th February and dealt with it appropriately. But that is hindsight. Simply looking at the position as it was at the end of March, it seemed to me that the only explanation for the decision to grant dispensation must have been a failure to take account of the arrangements that had been made under which this letter should have been, but was not, sent to the claimant's solicitors.
34. Mr Simblet, in a skeleton argument, had referred to other grounds upon which the decision may well be invalid. One of them was a mistake. In that regard he cited the decision of the Court of Appeal in E v Secretary of State for the Home Department [2004] QB 1044. I indicated to Mr Simblet that, as the matter had been put before Munby J on the basis of an agreed statement of reasons in relation to a failure to take into account material facts, and as, subject to anything that Mr Davies might submit, it seemed to me that the material before me showed just such a failure to take into account material facts, he need not for the time being deal with any other ground upon which the decision might be unlawful.
35. In his submissions, Mr Jeremy Johnson, on behalf of the defendant, confirmed my understanding of the reasons which had led the defendant to agree that the decision was vitiated. The defendant was satisfied that there had been a failure to take a material consideration into account.
36. In his submissions, Mr Davies sought to show that the Authority was not guilty of any failure of the kind I have described. He said that the decision letter inferentially acknowledged that the letter of 9th February had not been sent to the claimant's solicitors. What had been done by the investigating officer, the sending of a recorded delivery letter to the claimant, was in accordance with guidance which had been issued, suggesting that such a course should be taken before making any application for a dispensation on grounds falling within paragraph 4 of the Schedule to the Regulations.
37. Mr Davies recognised that the investigating officer had said that correspondence would be sent to the solicitors, but it was submitted that the consequence of the failure to do this was not as straightforward as is suggested. His contention was that the claimant, having accepted that she received the letter, there was no sufficient explanation for her not acting upon it, at least by raising receipt of it with the solicitors. Allowing the claimant to ignore the letter, said Mr Davies, was too generous. It was clearly a letter to her, not to her solicitors. She was an adult of full capacity. It did not contain any statement that it was copied to the solicitors. It told her expressly that she must apply within 21 days. While there was arguably a basis for criticising the investigating officer for not sending a copy to the solicitors, that did not justify the claimant in ignoring the letter. She had ignored the clearest possible warning. The member of the Police Complaints Authority who had taken the decision, Mr Pilkington, was, said Mr Davies, under no illusions that the letter had not been sent to the claimant's solicitors. Mr Davies accepted, however, that Mr Pilkington may not have been aware of the undertaking to copy information to them.
38. At this point Mr Davies informed me that the Commissioner had not resiled from his stance that it was appropriate to seek and grant dispensation. In this regard, Mr Davies referred me, first, to a letter of 25th June from the Department of Professional Standards of the Metropolitan Police service to Christian Khan, the claimant's solicitors. This recorded, among other things, that a witness statement from the claimant had only been received on 1st June, despite assurances in letters of 24th December, 14th January and 23rd January by Christian Khan as to the finalisation of that statement. On that basis, the author of the letter concluded that they were not sufficient grounds to reopen the investigation.
39. Subsequently, on 27th July 2004 the Directorate of Legal Services, on behalf of the Commissioner, wrote to Christian Khan as follows:

"My client is unable to accede to your request to investigate your client's complaint in view of the dispensation granted by the PCA. Furthermore, my client considers that the dispensation was appropriate in the circumstances.

Even if it was open to the Commissioner to re open the investigation, the delay and lack of co-operation by the complainant and yourselves, together with the fact the officer, who was the subject of complaint, was informed on 19th April 2004 that he was no longer under investigation are relevant. In my view it is fair and proper that officers should be served with notification as soon as a dispensation notice is received as this is essential for the maintenance of force discipline. Any attempt by the Commissioner to revoke this notice could lead to any disciplinary proceedings failing due to an abuse of process particularly in view of the historic nature of this matter.

...

I consider that the PCA's decision to dispense with the requirement to investigate the complaint was neither irrational nor perverse and was in accordance with the relevant provisions of the Police Act 1996 and the Police (Dispensation for Requirement to Investigate Complaints) Regulations 1985."

40. Mr Davies told me that there had been no change to that position. He said he was able to say that because letters had been sent by PC Davies' solicitors asserting that the Commissioner had not resiled from this position. Those letters had been copied to the Commissioner, and there had been no objection from the Commissioner to what was said in those letters. Anybody advising the claimant, said Mr Davies, must have been aware that there was a risk of an application for a dispensation.
41. Mr Davies in this context went on to refer me to the position of PC Davies while the investigation was still alive. In addition to the matters that I have quoted earlier in this judgment from PC Davies' statement, Mr Davis said there were chronic effects, as for any professional person with a complaint hanging over him, and it was desirable to resolve it as soon as possible.
42. The problem for PC Davies, said Mr Davies, is that he has no standing in the investigation. His notebook that he prepared has been taken away from him, along with other colleagues' notebooks. He could not say to the Commissioner that the dispensation application should be made. He had no rights at all until an investigation was concluded. The matter was one of internal police regulation not public administration, and so not subject to judicial review. During the period from 15th January to 23rd March PC Davies had received no information. The matter was one which turned on witnesses who were present at an arrest in January 2003.
43. As to the Commissioner's obligation to obtain evidence in section 67(1), Mr Davies said that there was no CCTV material. The notebooks had been obtained. The claimant had asked for medical evidence, but had refused it. Apart from the fact that notebooks of other officers had been preserved, PC Davies did not know if there were other witnesses or whether potential witnesses might have been lost.
44. If it were right that the investigation could not start until the conclusion of the criminal proceedings against the claimant, then ten months inevitably had gone by and the onus was on the complainant to ensure that the matter was pursued expeditiously. That was consistent, said Mr Davies, with Bingham LJ's explanation of the overriding public interest in an earlier passage in the judgment in Broome. It was submitted that in these circumstances, with a failure to provide information during a period of 10/11 months on the part of the claimant, the degree of latitude given to her must be limited. There was not satisfactory progress in the production of the witness statement.
45. I found it difficult to see how these submissions went to the real question of whether there had been a failure to take into account a material consideration. Mr Davies replied that the assertion of failure to take into account a material consideration was one which assumed that, had the letter of 9th February been copied to the claimant's solicitors, they would have replied promptly. However, said Mr Davies, the chronology showed that that would not have been the case.
46. Mr Davies stressed the important public interest in the dispensation procedure. The dispensation came from an independent public authority. The consequence of an investigation starting necessarily later this month, should the dispensation decision be quashed, was that the adverse effects described at paragraph 15 of PC Davies' statement would continue until the matter was resolved, and that would be many months.
47. I pointed out that all of this, though no doubt upsetting for PC Davies, would be true if the claim form had been issued on 1st June 2004, well within the statutory time limit. Mr Davies replied that we were concerned with a period of five months on the part of the claimant between the date of the decision and the date when judicial review was sought, which was to be contrasted with the very substantial speed with which PC Davies had acted once he became aware that the Commissioner was not going to represent his interests.
48. At no time during that period, the period of five months, had PC Davies been in a position to take an active part. He had thought the investigation was over. As to later periods of delay after 1st September, first, they were caused by the unfortunate making of the consent order without being aware of the acknowledgement of service by PC Davies, and then by the need to get the consent order set aside and securing the first available date, which was today.
49. I repeated that I was still at a loss to understand how PC Davies was prejudiced by the delay, for all the matters that were being said to me were matters which could equally have arisen if the application had been brought in June. It was accepted by Mr Davies that the merits did not vary between 1st June and 1st September in this sense, that, if the dispensation was quashed, the complaint would still need to be investigated in the same way. That investigation, however, he said, could take some considerable time. There might then be an application by the claimant for judicial review. It might go to the Crown Prosecution Service for consideration of criminal proceedings, and then to the Commissioner himself for consideration of disciplinary proceedings. Mr Davies repeated that PC Davies had no rights to be involved in the process of investigation.
50. In relation to Broome, Mr Davies drew attention to the recognition by Bingham LJ of a temporal limit in the passage that I have quoted.
51. Overall, he said that a mere assertion of a breakdown of communication was not enough to found an attack as a matter of public law on the decision to grant dispensation. The Police Complaints Authority had been quite right to find that this claimant had failed or refused to assist.

Analysis of the criticisms of the decision

52. I found it difficult to identify the reasons why it was submitted on behalf of PC Davies that there had been no failure to take account of a material consideration. As will be apparent from the account I have given, the submissions included much material which, if it had any relevance at all, could only go to the question of a discretion.
53. So far as I can discern it, the points which are relied upon can be identified as follows.
54. First, the decision letter showed that the Police Complaints Authority was aware that the letter of 9th February had not been sent to the solicitors. To my mind, that is an insufficient answer. I note that Mr Davies accepted that the Authority may not have taken into account that the investigating officer had undertaken to ensure that future correspondence would go to the claimant's solicitors. I expressly raised with Mr Davies my concern that, in reaching its conclusion, the Police Complaints Authority must have failed to take into account that the letter of 9th February should have been sent to the solicitors. The correspondence, in my view, clearly shows that the solicitors had indicated that they were actively preparing a statement. In those circumstances, the mere fact that the decision letter by inference acknowledged that the letter of 9th February was not sent to the solicitors does not show that Mr Pilkington, on behalf of the Police Complaints Authority, had taken all material matters into account.
55. Whether the claimant had acted diligently or not was, as I understand it, a second point put forward by Mr Davies. As it seems me, such criticisms as might be made of the claimant personally would not have been sufficient to warrant the decision to grant dispensation, in the light of the clear material in the correspondence showing that the solicitors were actively working on the preparation of a statement.
56. As to the stance taken by the Commissioner, it does not seem to me that that in any way impacts on the question whether there had been a failure by the Authority to take account of a material consideration. Equally, the undoubted hardship to the officer while an investigation is under way does not seem to me to bear on the point. If anything, the fact that both the Commissioner and an officer whose conduct is under investigation will attach great significance to any dispensation, serves to underline the importance of the Authority giving very careful consideration to any application for dispensation before granting that dispensation; something which, with all respect to the Authority, does not appear to me to have occurred in this case, at least in the sense that it seems to me plain that all material matters were not taken into account.
57. The inability of PC Davies to insist on an application for dispensation being made seems to me not to have any relevance to this part of the case.
58. At the end of the day, it seems to me that this is a case where the defendant was clearly right to accept that there had been a failure to take account of a material consideration. It seems to me quite impossible to say on the basis of the material, when one is aware of the fact that the investigating officer had undertaken to send correspondence to the solicitors, that the requirements of paragraph 4 of the Schedule to the Regulations were made out.
59. Before leaving this part of the case, I wish to stress that it should not in any sense be assumed that the making of a consent order is a matter of course in the Administrative Court. The recitals which appear in the order made by Munby J on 14th October are not mere words. The court must be satisfied that the consent order should be made.
60. I am satisfied that, in the light of all the information before me, the decision of 26th March 2004 was vitiated by a failure to take account of a material consideration and is thus liable to be quashed. The question which next arises is whether, as a matter of discretion, that remedy should be refused for reasons of delay.

Submissions on discretion and delay

61. Mr Simblet acknowledged that the obligation on the claimant was not merely to comply with a three-month time limit, it is an obligation to bring the proceedings promptly. That said, however, the court had granted permission to apply for judicial review at the hearing on 1st March. There could be no argument, therefore, over the fact that an extension of time had been given. He recognised that that did not prevent PC Davies from asserting that relief should not be granted.
62. In that regard, however, as had been expressed in the recent case of R v Criminal Injuries Compensation Board ex parte A [1999] 2 AC 330, there was a statutory test to be satisfied. By section 31(6) of the Supreme Court Act 1981 the court could refuse to grant relief, but this power arose only if the court considered that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or be detrimental to good administration. There was, said Mr Simblet, a strong public interest which had been articulated by Gage J in R (Wilkinson) v Police Complaints Authority [2004] EWHC 678 (Admin). That same public interest applied here.
63. Mr Simblet referred me further to the submissions which had been set out in paragraph 16 of an earlier skeleton argument on behalf of the claimant. For convenience I set them out here:

"16. Whilst it is right that officers accused of misconduct have expectations and rights as to a fair procedure, it is submitted that it is only if it is unfair, in the sense of there being an abuse of process for the complaint to continue, that the Second Interested Party's position can be justified. On the facts no such abuse of process or unfairness is made out. In particular:

(i) merely telling someone that a case is not going to proceed is not determinative. It is only if that person suffers prejudice that cannot be remedied that a stay for abuse of process would be granted. It is clear from Attorney General's Reference (No 1 of 1990) [1992] 1 QB 630, (CA) that mere delay will be highly unlikely to create a stay. Lord Lane CJ giving judgment on behalf of the court at 643G-644A held as follows:

'Stays imposed on the grounds of delay or for any other reason should only be employed in exceptional circumstances. If they were to become a matter of routine, it would only be a short time before the public, understandably, viewed the process with suspicion and distrust. We respectfully adopt the reasoning of Brennan J in Jago v District Court of New South Wales (1999) 168 CLR 23. In principle, therefore, even where the delay can be said to be unjustifiable, the imposition of a permanent stay should be the exception rather then the rule. Still more rare should be cases where a stay can properly be imposed in the absence of any fault on the part of the complainant or prosecution. Delay due merely to the complexity of the case or contributed to by the actions of the defendant himself should never be the foundation for a stay.'

And at 644B:

'no stay should be imposed unless the defendant shows on the balance of probabilities that owing to the delay he will suffer serious prejudice to the extent that no fair trial can be held: in other words, that the continuance of the prosecution amounts to a misuse of the process of the court.'

(ii) The Second Interested Party relies on R v Bloomfield [1997] 1 Cr App R 135, CA, however it is submitted that this does not assist him where he knows and has been given the reason for the revocation of the original decision, namely that it was made erroneously in the absence of notification of the Claimant's solicitors.

(iii) The Second Interested Party also seeks to rely on R v Croydon Justices, ex parte Dean [1993] QB 769, CA, however that case is authority for the proposition that it is only where a person told that they will not be proceeded against worsens their position as a result (e.g. by supplying self-incriminating material to the prosecution) that a stay for abuse of process will be justified.

(iv) Merely communicating a decision not to proceed does not prevent that decision being revisited subsequently, particularly if there is a good reason for that, such as the administration of justice is not made disreputable. That principle has been reaffirmed in R v Murphy (2003) Crim LR 471."

64. There was, said Mr Simblet, nothing disreputable in the case resuming where the decision to stop was made on an erroneous basis. It would be disreputable if the case were not to be reopened.
65. I have set out earlier submissions by Mr Davies on behalf of PC Davies which canvass aspects of the question of refusal of relief on grounds of delay. As I indicated earlier, it has not been easy to disentangle those submissions which relate to the first question, whether there is something which vitiates the decision, and the second question, whether relief should be refused on discretionary grounds.
66. In addition to the points I have summarised earlier, Mr Davies said that these proceedings had been operated as if a tap could be turned on and off without PC Davies' knowledge. The court, he submitted, was entitled to take account of the consequence to PC Davies. It could also take a view of the consequences of an event in this sense, that eyewitnesses might be required to give evidence who had not been asked to provide an account for two years. The claimant's witness statement, said Mr Davies, would not put the investigating officer in a position to investigate. The consequences of that, he said, were the fault of only one person: the claimant.

Analysis of the delay argument

67. In part, as was acknowledged by Mr Davies, the delay arose because there was communication taking place between the claimant and the Commissioner and the defendant, and in the course of that correspondence there was some doubt as to the defendant's role in relation to what had been done by the Authority in March 2004.
68. Nonetheless, the claimant through her solicitors ought to have been keeping an eye on the position as to time, and as it seems to me ought to have brought these proceedings earlier than was in fact the case. That said, it seems to me that had these proceedings been brought on 1st June 2004 there could have been no complaint that they were brought in any sense late.
69. It seems to me that a very important factor is that, had proceedings been brought on that date, all the adverse consequences relied upon by PC Davies would have come about. The delay on the part of the claimant is not causative of any of these adverse consequences. When I contrast that with the fact that I have held that this was an unlawful decision, the undoubted important public interest in the resolution of complaints against police officers on the merits rather than on a technicality, and the circumstances in which the delay came about, I have no doubt that I should refuse to exercise my discretion so as to bar the claimant from obtaining relief.

The suggestion that dispensation would be the only reasonable course

70. There were passages in the submissions of Mr Davies summarised above which seemed to advance a submission that either on 26th March, or today, the only reasonable course open would be for a dispensation to be granted.
71. I cannot accept those submissions. I recognise and give full weight to the undoubted hardships to PC Davies while an investigation is in progress. As to whether the position has been reached where the only reasonable course is to dispense with continued investigation, it seems to me that there are many factors that come into play. The court is not the body which must make a judgment about those factors. If I were satisfied that the only reasonable course (even allowing for the court's limited expertise) was that a grant of dispensation should be made, then I would have been, to put it at its lowest, unwilling to see PC Davies continue to be subjected to the hardships associated with the investigation.
72. But when I look at the factors in this case, it seems to me that different factors point in different directions. Under the Regulations, the question of dispensation is a matter in the first instance for the Commissioner, who must decide whether to make an application, and in the second instance for the Authority (and now the defendant) to decide whether it agrees with any application made by the Commissioner. It would be wrong for the court to usurp those functions.

Remedy

73. In the light of the conclusions I have set out above, I grant the remedy sought at paragraph 1 of section 7 of the claim form; that is to say, the Police Complaints Authority's decision dated 26th March 2004 is quashed. The remedy sought at paragraph 2 of section 7 of the claim form does not arise.
74. As to the remedy at paragraph 3, this was that a mandatory order should require the defendant to reconsider the grant of dispensation. Neither Mr Simblet nor Mr Johnson contended that such an order would be appropriate. The circumstances had changed very greatly from those which had been before the Authority in March 2004. Mr Davies, however, urged that I should, if I were to quash the decision of 29th March, make an order of the kind suggested in paragraph 3. It would be appropriate, he said, for the defendant to look at the position in the light of current circumstances, and to consider in the light of those circumstances whether a dispensation should be granted.
75. As it seems to me, however, a key element in the Regulations is that it is for the Commissioner to make out a detailed case as to why the dispensation, it is said, should be granted. That requires the Commissioner, through his officers, to apply his own mind to the current circumstances and reach a view on them. It would be wrong, it seems to me, to prejudge whatever decision the Commissioner may reach in that regard. Should the Commissioner conclude that the stage has been reached where it is impractical to continue with the investigation so as to bring it within the relevant parts of the Regulations, including those parts which identify lapse of time as a possible ground for an application, then it will be open to the Commissioner to make exactly that application.
76. Indeed, that is a further reason for concluding that any such hardship as may result from the grant of relief is not such a hardship as should warrant the exercise of my discretion to bar the claimant from obtaining the remedy she seeks.
77. In those circumstances, I shall make the order at paragraph 1 of section 7 of the claim form, but not those at paragraphs 2 and 3 and I shall hear counsel on any other consequential orders.
78. MR SIMBLET: My Lord, certainly I heard -- and I do not know if others heard -- that when you were describing people by name that you described the claimant as the Deborah Clark rather than Deborah Clare.
79. MR JUSTICE WALKER: I am so sorry.
80. MR SIMBLET: If that is something else that was heard -- it is really for the shorthand writer's benefit. So if that could be corrected in the judgment if she heard the same thing.
81. In relation to consequential orders, the order that the claimant seeks is her costs. Now ordinarily, my Lord, costs follow the event and your Lordship will be aware that in Part 44.3 that is the general rule. So far as how one breaks down that application for costs and against whom, I put it in two ways. I seek the costs against the defendant, thus the IPCC, up to the point at which the consent order came before the court and was approved. I am fortified in making that application, my Lord, by the fact that in the original consent order -- and your Lordship has in his judgment confirmed that your Lordship thought that the dispensation perhaps ought not to have been granted -- but in that consent order the defendant agreed to pay the claimant's costs to be assessed if not agreed. So I seek an order for costs in those terms against the defendant up to the date upon which the consent order was approved.
82. In the alternative, if your Lordship is not with me on that, then I would seek the costs against the second interested party, against whom I seek the costs in any event from the date at which the consent order started being unscrambled up until today.
83. MR JUSTICE WALKER: It seems to me that the second interested party cannot be held responsible for the court's own errors.
84. MR SIMBLET: No, perhaps in relation to the costs of setting aside the order and to the point up to --
85. MR JUSTICE WALKER: It is really up to 1st March. After 1st March the second interested party was... I suppose it comes earlier.
86. MR SIMBLET: It is before then, my Lord, because the only reason the consent order was set -- it was first set aside ex debito justiciae, but at the time that that application was being made the claimant's solicitors wrote to the second interested party saying, "We do not think you have got a basis for having the order set aside, or having the remedy or the bar on remedies that you seek and that therefore, if you do seek to set it aside, we will seek the costs", and that is in correspondence.
87. MR JUSTICE WALKER: What order for costs did Munby J make?
88. MR SIMBLET: He reserved the costs, you will be pleased to learn.
89. MR JUSTICE WALKER: Were you objecting to the setting aside of the consent order?
90. MR SIMBLET: No. We agreed to that, that they had not been served. I am just taking some fuller instructions on that because there is some correspondence and I will take your Lordship to the page numbers in a moment. (Pause)
91. Between the date at which it was discovered that the second interested party opposed the substance of the consent order and 1st March, there was correspondence to the effect -- that it was objected to that the order should be set aside, on the basis that the second interested party did not have in law any reason to maintain his opposition, a view of the matter that has been, in my respectful submission, confirmed by your Lordship's judgment. So on ordinary principles --
92. MR JUSTICE WALKER: There is a difference between recognising that something which was done under a mistake should be set aside and....
93. MR SIMBLET: Yes, but where someone -- obviously, if there is a mistake -- on set aside two issues arise. One is whether in fact there was a mistake, whether there was a properly served party, which is one of the issues. But the other issue is whether in fact set aside had always been a discretionary issue, even if the party wishing to set it aside can have it set aside as of right, there is always that discretionary issue as to what is the merit of the order being set aside, and whether in the exercise of the discretion that is a useful or fruitful outcome. In relation to that, there was correspondence -- and if I can take your Lordship to page 312 of the bundle, as far back as 5th October 2004 -- pointing out that in the claimant's opinion this was not a meritorious position for the second interested party to take, and that correspondence follows --
94. MR JUSTICE WALKER: I am sorry, page?
95. MR SIMBLET: 312. Also page 306, and then also 278 and 270. Added to which, of course, my Lord the claim form itself adverted and the documents served in support of the claim form referred expressly to the case of Wilkinson, which is a recent decision of this court which has been highly material to a number of issues in this case, and said that the position was clear, in effect, that the interested party's position was ill-founded.
96. So for all the usual reasons, not least the fact that the only reason that the defendant and any of us are here today is because of the interested party's position in its acknowledgement of service maintained all the way through to this hearing, it is appropriate that it is the second interested party that should pay the costs occasioned by its stance.
97. The other point also, my Lord, and it may be that this is put in as a sort of conduct point, is that when the matter came before Munby J on 1st March, when he reserved the costs as your Lordship has heard, he did give a fairly specific timetable of directions. If I can take you Lordship to 207, and particularly directions (3) and (4), that he prescribed a timetable for the filing of evidence and so on, in the expectation that the second interested party's evidence, which was due by 29th March 2005, would address specifically the issues of prejudice. For the reasons that your Lordship has set out in his judgment and the submissions made today, there was in fact no attempt, in my submission, to isolate what that prejudice was in relation to delay and so on, and essentially an unreasonable and in ill-founded position has been pursued all the way through to this hearing.
98. Indeed, in my submission, there being a recent decision of this court where almost identical submissions to those made by Mr Davies had been made in the Wilkinson case on behalf of the Chief Constable, it may well be appropriate for those costs to be ordered on an indemnity basis, in order to discourage interested parties, whose positions in law are clear, from not obstructing the resolution by consent of a matter where the defendant makes a realistic and sensible concession at a relatively early stage of proceedings. The only reason these proceedings have taken place is because of an ill-founded intervention by the second interested party on a matter where, in my submission, the law as to his chances of success on that have recently been decided and was clear and was flagged up for all, both in the original claim documents and in a number of letters since the application to set aside was made.
99. So, in my submission, it is entirely appropriate that all of those costs should be recoverable by the claimant.
100. MR JUSTICE WALKER: Who is next?
101. MR JOHNSON: I am not sure how the application ended up as against me, because it seems --
102. MR JUSTICE WALKER: I think it was just that you should pay the claimant's costs up to the date of the consent order.
103. MR JOHNSON: My Lord, I understand that. My Lord, my submissions are these. First, we are not bound by the consent order in any way, it having been set aside.
104. Second, the claimant succeeded against the Authority, but not against the defendant. There is and can be, in my submission, no criticism of the defendant's conduct in these proceedings. On the contrary, it has acted responsibly throughout. It conceded a quashing order at the outset. It was suggested we conceded at a relatively early stage of proceedings. In fact the concession was made even before the claim was issued, and my Lord sees that at page 76 of the bundle.
105. MR JUSTICE WALKER: That is in August.
106. MR JOHNSON: That is in August. My Lord has the point.
107. My Lord, we conceded the quashing order, we conceded permission. We did not contest the claim on grounds of delay, and we indicated before the proceedings were even issued that no point on delay would be taken.
108. In those circumstances, the claimant not having succeeded against the defendant and the defendant's conduct not being open to criticism --
109. MR JUSTICE WALKER: You say "not having succeeded against the defendant". It is true that the remedy is that a decision of the Police Complaints Authority is to be quashed.
110. MR JOHNSON: That is why I say it, and secondly --
111. MR JUSTICE WALKER: But they are not here.
112. MR JOHNSON: No, nor do they exist.
113. MR JUSTICE WALKER: You represent them.
114. MR JOHNSON: No, I do not. I represent the defendant. The defendant now carries out the functions of the Authority, but it was not the defendant that took the decision that was quashed.
115. MR JUSTICE WALKER: Would not one of the functions of the Authority be to pay the costs that arise from its defective decision?
116. MR JOHNSON: My Lord, in my submission, no. In any event, I hesitate to make this submission, but even if I were representing the Authority and even if the Authority still existed, and even though the Authority's decision has been quashed, that is not really through any criticism of the Authority, so much as the antecedent fact which the Authority may or may not have been aware of, and in particular the failure of the first interested party to abide by its undertaking to correspond with the claimant's solicitors.
117. My Lord, the defendant having conceded throughout that the decision should be quashed on a narrow basis -- and that is the sole basis on which this court has quashed the order -- it would not in my submission be just or equitable to order the defendant to pay the costs, for example, of the very full claim form and grounds which were prepared, when, because of the responsible stance adopted by the defendant, the claim could have been much more focused on the ground for which we were prepared to concede, and the claim could have been determined even without a hearing taking place under Part 54, paragraph 18.
118. My Lord, in all those circumstances, it is my submission that the appropriate order so far as the defendant is concerned is that there be no order.
119. MR JUSTICE WALKER: Yes.
120. Mr Davies?
121. MR DAVIES: My Lord, I will not, unless I am invited to, address you as to the general principle. One accepts that costs ordinarily follow the event, and I am unable to identify any cogent argument for that to be resisted in this case. However, it would be on a temporal basis as the application has been made.
122. MR JUSTICE WALKER: What period of time do you accept responsibility for the costs?
123. MR DAVIES: My Lord, from service of the acknowledgement of our claim form, 24th September, excluding the preparation of the consent order on 27th September -- in other words, the matters that were between the claimant and the defendant -- and, my Lord, excluding the costs of the hearing before Munby J of 1st March 2005. My Lord, that hearing was a consequence. Firstly, at the hearing --
124. MR JUSTICE WALKER: You need not say any more about the costs before Munby J on 1st March.
125. MR DAVIES: Very well, thank you. So it is the preparation of this claim, excluding matters that would have arisen or had arisen in any event between the claimant and the defendant -- in other words, to the point of the consent order -- to be determined on the standard basis. My Lord, if I need to I will address you, if it was an application for costs on the indemnity basis.
126. MR JUSTICE WALKER: No, you need not trouble about that either.
127. I am just a bit troubled as to the logistics of working out what the costs are from 24th September, excluding those associated with the preparation of the consent order and excluding the costs of the hearing before Munby J.
128. MR DAVIES: My Lord, the most straightforward order would be to make -- because the hearing of 1st March was a matter of parity. On the day the parties consented to the consent order to quash the original order of the court. That was the position at the full hearing, as I remember it.
129. So the most straightforward application is for the costs from 2nd March 2005 to the resolution of the hearing today on the standard basis, because that in effect represents the additional preparation required of the claimant in promoting this claim. There are some isolated bits of correspondence before that my Lord, but that is certainly the most straightforward temporal delineation.
130. MR JUSTICE WALKER: Yes.
131. MR SIMBLET: My Lord, I repeat the point that set aside is only at the initiative of a party. If in fact Mr Davies' position have been, or his client's position had been, that although there had been a mistake in the Administrative Court Office, no harm had been done by it because they agreed with what was happening, then no application to set aside that order would have been made. So to say that costs should run from 2nd March is in my submission wrong, when one looks at the overall merits of why hearings took place and what the outcome of these proceedings has been.
132. When Mr Davies initially stood up he was prepared to accept the costs from the date of his service of his acknowledgement of service excluding that hearing on 1st March. While I can see that the court might not want to order his clients to pay the costs occasioned by a mistake made by the court, in my submission the rather fairer order to make is that he pay the costs, save for those involved in drawing up the consent order.
133. In relation to Mr Johnson's position, in my submission it is strange that he adopts a different position from that which his client --
134. MR JUSTICE WALKER: You need not trouble to deal with that.
135. MR SIMBLET: Can I also, while we are dealing with costs, since this is a publicly funded case, ask for an order that there be a public funding assessment of the claimant's costs.
136. MR JUSTICE WALKER: Yes.
137. On the question of costs, first, the claimant applies for her costs down to the date of the consent order (on 14th October) as against the defendant. Indeed, it had been part of that consent order that the defendant would pay those costs.
138. Rather surprisingly, it is submitted today by Mr Johnson on behalf of the defendant that some different order should be made. A point which to my mind is purely technical is advanced, that the relief granted is a quashing of the decision of the Police Complaints Authority.
139. As it seems to me, this is a matter where the defendant ought at a very early stage, long before the date when proceedings were in fact issued, to have recognised that there was a serious flaw in the decision of its predecessor, which meant that it was its job, under the Transitional Provisions Order, to accept that that decision should be quashed very much earlier than August 2004. I recognise that the concession was made on a narrow ground, but that ground seems to me to have been a compelling one. In those circumstances, I see no reason to depart from the order which had previously been agreed by the parties and I shall order that the defendant pay the claimant's costs up to 14th October 2004 when the consent order was made.
140. The claimant then seeks payment of her costs thereafter from the second interested party. Here it seems to me that, unfortunately, a substantial sum by way of costs has arisen through the error that was made in the court not having before it the acknowledgement of service of the second interested party. That said, such contentions as the second interested party is able to make arise, in part at least, out of the fact that the claim form had not been issued within the time required by relevant statutory provisions and the rules of court.
141. In these circumstances, it seems to me that the appropriate order is that the costs associated with the setting aside of the consent order should lie where they fall.
142. It was urged by the claimant that the second interested party should pay the costs of the hearing before Munby J on 1st March. That was because the respective contentions of the claimant and the second interested party on that day have now been resolved in the claimant's favour today.
143. I do not believe that is a true reflection. It would have been perfectly open to the claimant to accept on 1st March that the second interested party had arguable points to be made and that the matter should be dealt with at a full hearing. The claimant did not accept that. The claimant persisted in an argument before Munby J, as I understand it, that this was not -- I see shaking of heads. Have I misunderstood?
144. MR SIMBLET: I was not there, but I do not believe that to be right. Of course, one of the things that happened on 1st March was that permission that granted, which was one of the things that took place at that hearing. So it is not simply about setting aside the consent order.
145. MR JUSTICE WALKER: No. But were you not saying to Munby J: there is no need because the second interested party's points are unmeritorious?
146. MR JOHNSON: My Lord, I think the position was, because I was there, that up until the hearing before Munby J that was effectively the stance adopted by the claimant.
147. MR JUSTICE WALKER: Yes.
148. MR JOHNSON: And indeed her skeleton argument was served shortly before. But at the hearing there was no argument, I do not think. All parties agreed before Munby J --
149. MR JUSTICE WALKER: But the skeleton argument prior to the hearing had said -- what had it said?
150. MR SIMBLET: That it should not be set aside.
151. MR JUSTICE WALKER: Sorry?
152. MR SIMBLET: That it should not be set aside.
153. MR JUSTICE WALKER: That it should not be set aside. Yes. Well in those circumstances, I think the second interested party had no choice but to come along. While it may be that on the day the claimant resiled from that and accepted that it should be set aside, that was too late: the costs had already been incurred.
154. So it does seem to me that the costs of the hearing before Munby J are costs which it would not be right to require the second interested party to pay.
155. Initially in his submissions to me, Mr Davies was willing to accept that some part of the costs after receipt of his client's acknowledgement of service on 24th September would fall to be paid by his client. But as it seems to me, it is impossible to unravel what costs would have arisen on consideration of the acknowledgement of service of 24th September without the errors which occurred in the Administrative Court Office, and those costs which arise because of that error.
156. I conclude that the just resolution of this matter is that the second interested party should pay the costs of the claimant from 2nd March 2005 onwards.
157. MR SIMBLET: Could you also grant the detailed assessment?
158. MR JUSTICE WALKER: Yes, I also make an order for detailed assessment of the claimant's publicly funded costs.
159. MR DAVIES: On behalf of the Bar, can I thank the court for sitting so late.
160. MR JUSTICE WALKER: I am sorry to have imposed on all of you and on court staff. I am very grateful to everybody for sitting late to enable the matter to be dealt with.