Adorian v Commissioner of Police of the Metropolis

The requirement under section 329 of the Criminal Justice Act 2003 to obtain permission for specified civil proceedings is procedural and directory. Proceedings commenced without prior permission are not a nullity. The defect may be cured by a later application, subject to an appropriate costs order.

Whether a statutory precondition invalidates proceedings depends upon Parliament’s intention, assessed through the language, purpose, legislative history and practical consequences of the provision. Access to the courts should not be excluded without clear words. At the permission stage, grossly disproportionate force may be inferred from severe injuries associated with an arrest where the evidence provides no alternative explanation.

The claimant suffered multiple fractures while being arrested and subsequently brought claims in trespass to the person and negligence against the Commissioner. Because he had been convicted of an imprisonable offence committed on the same occasion, section 329 of the Criminal Justice Act 2003 required the court’s permission for the proceedings.

Owen J, in [2008] EWHC 1081 (QB), held that the permission requirement was directory rather than mandatory. He granted permission because there was evidence from which grossly disproportionate force could be found. The Commissioner appealed on whether commencing the proceedings without prior permission made them a nullity and sought permission to challenge the evidential ruling. The claimant sought to cross-appeal against the costs order.

1. The Commissioner’s appeal was dismissed. Section 329 of the Criminal Justice Act 2003 imposes a procedural and directory permission requirement. Proceedings commenced without prior permission are not void. The defect may be cured by applying for permission after commencement, and the court may reflect any unjustified delay in costs.

2. The construction of section 329 depended upon a broad inquiry into Parliament’s intention. A restriction excluding access to the courts requires clear words. Unlike section 139 of the Mental Health Act 1983, section 329 had no legislative history showing an intention to create a jurisdictional bar. Its wording, statutory context and exclusively civil operation also differed materially from section 139.

3. Treating proceedings as void would produce serious limitation and procedural difficulties without appreciably protecting defendants from the costs of unmeritorious claims. A prior application would ordinarily have to be served and contested. The directory construction allowed the court to manage proceedings consistently with the overriding objective while preserving section 329’s filtering function.

4. The parliamentary material, even if admissible under Pepper v Hart, supported a permission stage designed to remove unmeritorious claims at an early stage. It did not disclose an intention to nullify otherwise sound proceedings commenced without permission.

5. Permission to challenge the finding of evidence of grossly disproportionate force was refused. The severity of the injuries, their temporal association with the arrest and the absence of any alternative explanation supported a rational inference that the arrest caused them and that grossly disproportionate force had probably been used. The possible effect of section 3 of the Human Rights Act 1998 on that statutory standard was reserved.

6. The claimant’s cross-appeal on costs was allowed. His application for permission had been made timeously and would ordinarily have attracted an order for his costs in the case. That order was substituted.

1. Court of Appeal (Civil Division): In [2009] EWCA Civ 18, dismissed the Commissioner’s appeal, refused permission to challenge the finding that there was evidence of grossly disproportionate force, and allowed the claimant’s cross-appeal on costs.

2. High Court, Queen’s Bench Division: Owen J, in [2008] EWHC 1081 (QB), held that the permission requirement in section 329 of the Criminal Justice Act 2003 was directory. He granted the claimant permission to proceed and dismissed the Commissioner’s strike-out application.