Adorian v Commissioner of Police of the Metropolis

Failure to obtain prior permission under section 329(2) of the Criminal Justice Act 2003 does not automatically render civil proceedings a nullity. It is a procedural irregularity capable of cure by a subsequent application for permission.

The court must consider whether the statutory purpose requires invalidation, including the protection afforded to prospective defendants and the consequences for other causes of action joined in the proceedings. Permission may be granted retrospectively where the statutory threshold is met and the circumstances make that course just.

The claimant brought negligence and trespass claims against the Commissioner arising from injuries allegedly sustained during his arrest. He had been convicted of obstructing police officers, an imprisonable offence for the purposes of section 329 of the Criminal Justice Act 2003.

The defendant sought a declaration that the court had no jurisdiction and an order striking out the proceedings because permission had not been obtained before issue. The claimant sought retrospective permission and an extension of time. The central issues were whether non-compliance made the proceedings a nullity and, if not, whether permission should be granted.

1. Effect of non-compliance. The defendant’s application was dismissed. Section 329(2) was construed as imposing a procedural requirement, not as automatically invalidating proceedings issued without prior permission. The wording could accommodate a subsequent application, and the principle that access to the courts is not excluded except by clear words supported that construction.
2. Distinction from Seal v Chief Constable of the South Wales Police. The decision in [2007] UKHL 31 was not decisive. Its conclusion concerning section 139(2) of the Mental Health Act 1983 depended materially on legislative history showing that prior leave had historically been intended as a precondition, and on the fact that the provision applied to criminal proceedings, which could not sensibly have been treated as valid without prior consent.
3. The restrictive construction was also unattractive because it would invalidate the entire proceedings, including causes of action such as negligence that were not themselves caught by section 329. The statutory protection remained effective because the defendant could seek a strike-out and oppose the later permission application by relying on the hurdles in section 329(3) and (5).
4. Permission. The evidence was sufficient to make it plainly open to the court to conclude that the force used during the arrest was grossly disproportionate. The claimant’s serious fractures, the medical evidence describing an unusually high-energy injury, and the absence of any other suggested cause supported that conclusion.
5. Retrospective permission was granted under section 329(2). The injuries were extremely serious, the claims would otherwise become time-barred, the defendant would suffer no prejudice beyond losing the benefit of the procedural error, and the failure to seek permission had not been deliberate.