Bennett v Independent Police Complaints Commission & Anor

At the permission stage of judicial review, the court asks whether the proposed challenge is arguable. It does not determine the merits. An arguable challenge may arise where a decision-maker appears to have misunderstood or insufficiently investigated material evidence, including video evidence, or may have applied an unnecessarily demanding standard of proof. The court may grant permission while leaving substantive issues, including delay and prejudice, for determination at the substantive hearing.

The claimant renewed an application for permission to seek judicial review of the IPCC’s March 2005 decision that his complaint about the use of force during his arrest had been properly investigated and did not justify misconduct proceedings. Permission had previously been refused on the papers by Dobbs J, although an extension of time had been granted.

The claimant relied principally on CCTV footage, his account of the incident and alleged discrepancies in police notebook entries. The central question was whether the IPCC’s treatment of that material gave rise to an arguable public law challenge.

1. Permission granted. The claimant’s application for judicial review was permitted to proceed.
2. At this stage the court was concerned only with whether the challenge was arguable. It was not required to decide whether excessive force had in fact been used or whether the IPCC’s decision was ultimately unlawful.
3. The CCTV footage arguably supported a different interpretation from that adopted in the IPCC’s provisional view. It was therefore arguable that the IPCC should have investigated the claimant’s interpretation further before confirming its decision.
4. It was also arguable that the IPCC had placed too much emphasis on the need for independent evidence. The CCTV footage might itself have been the best independent evidence available, and the relevant misconduct issue appeared to be determined on the balance of probabilities under Police (Conduct) Regulations 2004, regulation 27(3), rather than by the criminal standard.
5. The claimant’s argument based on later-disclosed notebook entries was less persuasive. The court did not find that the alleged discrepancies existed, and it appeared difficult to contend that the material had been overlooked. The question whether delay and prejudice should defeat any eventual remedy was reserved for the substantive hearing.

The claimant renewed before the High Court an application for permission previously refused on the papers by Dobbs J. Mr Justice Foskett granted permission to proceed. The judgment records that an extension of time had already been granted and that delay and prejudice were reserved for the substantive hearing.