Bain, R (on the application of) v IPCC

On a renewed application for permission to appeal in judicial review proceedings, the Court of Appeal stressed that it is a court of review, not a court of first instance. The question is whether the lower court arguably erred in law or made an error warranting review. Judicial review does not provide a fresh investigation of underlying events. The IPCC’s remit was to review independently the decisions and actions of police officers. Continuing dissatisfaction with a reasonable investigation does not establish an arguable public-law error. Without evidence that the IPCC exceeded or misused its powers, or acted with Wednesbury unreasonableness, permission should be refused.

Mr Alistair John Bain renewed his application for permission to appeal after Black J, in the Administrative Court, refused on 19 February 2009 to order that the IPCC’s decision be subject to judicial review. Elias LJ had previously refused permission on paper. The challenge concerned the IPCC’s investigation into Warwickshire Police’s conduct in connection with Mr Bain’s detention under the Mental Health Act and related complaints. The central issue was whether Black J had made an arguable error of law in finding no basis for judicial review.

The renewed application for permission to appeal was refused.

1. Appellate function. The Court of Appeal was a court of review, not a court of first instance. It had to consider whether Black J had arguably erred in law or made an error warranting review. It was not the court’s function to revisit the history or conduct a fresh investigation.
2. Scope of judicial review and the IPCC’s role. Judicial review did not involve the court carrying out its own investigation into the underlying events. The IPCC’s role was to review independently the decisions and actions of police officers. It was not required to reinvestigate events generally or investigate the conduct of doctors or the DVLC. The fact that the complaint involved the Mental Health Act did not alter that limited remit.
3. Application of the public-law threshold. The IPCC had investigated the matters and set out its conclusions in letters dated 29 August and 18 September 2008. There was no arguable basis for concluding that it had exceeded its powers, failed to exercise them appropriately, or acted with Wednesbury unreasonableness. Mr Bain’s continuing dissatisfaction with the investigation was insufficient.
4. Order. Black J had been correct to refuse the application for judicial review. Permission to appeal would raise false hopes and was refused. A transcript was directed to be made available to Mr Bain at public expense.

• Court of Appeal (Civil Division): In [2009] EWCA Civ 961, Lord Justice Wall refused the renewed application for permission to appeal. Elias LJ had earlier refused permission on paper.
• Administrative Court, Queen’s Bench Division: Black J refused on 19 February 2009 to make an order for judicial review of the IPCC’s decision.