Burke, R (on the application of) v Independent Police Complaints Commission

Where legislation provides that an appeal period begins when a determination is sent, the period does not automatically begin only on actual receipt. A statutory power to extend time can prevent injustice caused by delayed or failed receipt. Non-receipt within the appeal period is ordinarily a very weighty factor, and prompt action after receipt will normally justify an extension. It does not, however, make an extension legally automatic. The decision-maker may consider other relevant matters, including fault by the appellant and the effect of delay on persons affected by the investigation. A discretionary refusal to extend time is lawful where those matters are considered rationally and proportionately.

The appellant complained about the conduct of police officers involved in his arrest. The Metropolitan Police investigated the complaint and sent him a determination on 19 September 2007. He said that he had not received it and appealed to the Independent Police Complaints Commission in February 2009, seeking an extension of time under regulation 10(8) of the Police (Complaints and Misconduct) Regulations 2004.

The Administrative Court dismissed his judicial review claim: [2011] EWHC 423 (Admin). On appeal, he argued that time ran from actual receipt or that an extension was mandatory where timely notice had not been received. The central issue was whether regulation 10 required that result, or permitted the IPCC to weigh the circumstances of the delay.

1. Appeal dismissed. The refusal to extend time was lawful, and the decision of Wyn Williams J was upheld.
2. Regulation 10(1) of the Police (Complaints and Misconduct) Regulations 2004 clearly provides that the 28-day period runs from the date on which the appropriate authority sends notification of its determination. The scheme in paragraph 24(7) and (10) of Schedule 3 to the Police Reform Act 2002 is consistent with notification by sending, rather than notification taking effect only on receipt.
3. The power in regulation 10(8) is discretionary. Where the complainant did not receive notification in time and acted promptly after receiving it, that will normally be a decisive factor in favour of an extension. It is not an absolute rule. The IPCC may consider whether non-receipt resulted from the complainant’s fault, the length and cause of the delay, and the effect of delay on those under investigation.
4. The principle in R (Anufrijeva) v Secretary of State for the Home Department concerned an unnotified decision treated as legally effective. It did not address the distinct question of sending versus receipt under a scheme that expressly starts time on sending and provides a power to extend time. The reasoning in R (Saleem) v Secretary of State for the Home Department concerned an absolute time limit with no power to extend, and therefore did not make regulation 10 ultra vires. There was no conflict with the principle of legality explained in R v Secretary of State for the Home Department, ex parte Simms or with the fundamental right of access to a tribunal.
5. The IPCC had carefully and rationally considered the overall circumstances and the effect of the delay. Its refusal was neither unreasonable nor contrary to fundamental rights. The application was refused.

• Court of Appeal (Civil Division) — Appeal dismissed and the refusal to extend time upheld.
• Administrative Court — Judicial review claim dismissed: [2011] EWHC 423 (Admin).