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

When deciding whether to extend time for an appeal against a police complaints determination, the decision-maker must assess whether the case’s special circumstances make an extension just. This requires a balancing exercise. The seriousness of the allegations, possible non-receipt of the determination, delay, the complainant’s conduct, and the adequacy of the investigation may all be relevant, but no single factor necessarily determines the result. The weight given to each factor is primarily for the decision-maker. A later decision made pursuant to a court-ordered stay may be read with the original decision to remedy an omission. A human-rights context may require greater justification, but does not itself make a refusal irrational or unreasonable.

The claimant challenged the refusal by the Independent Police Complaints Commission to extend time for an appeal against a Metropolitan Police determination of his complaints about his arrest and alleged injury. He contended that he had not received the determination, that the investigation had been procedurally defective, and that the allegations were serious.

The Commission initially refused an extension without deciding whether the determination had been sent. During a court-ordered stay, it made a further decision finding on the balance of probabilities that the determination had been sent and maintained its refusal. The central issues were whether the refusal was irrational or unreasonable and whether the later decision could be taken with the first decision.

1. Challenge dismissed. The Commission’s refusal to extend time was neither irrational nor unreasonable.
2. Under regulation 10(8) of the Police (Complaints and Misconduct) Regulations 2004, the question was whether the special circumstances made it just to permit the appeal to proceed. The decision required a balancing exercise. The weight given to the relevant factors was for the decision-maker.
3. The Commission was entitled to take account of the approximately 16-month delay, the claimant’s failure to make inquiries about the progress of his complaint, the fact that the investigation had been completed, and the absence of substantial procedural failures. It was also entitled to recognise the seriousness of the allegations and the uncertainty about receipt of the determination without treating either matter as decisive.
4. The original decision’s failure to determine whether the determination had been sent was capable of being remedied. The second decision was made pursuant to the court’s order staying the proceedings so that the Commission could complete its decision. The two decisions were therefore to be read together.
5. The principle expressed in R v Ministry of Defence ex parte Smith [1996] QB 517 required the court to consider the human-rights context when assessing the margin of reasonable responses. That context did not make the refusal unlawful. The alleged conduct had already been investigated and had also been scrutinised in the criminal proceedings and related appeal.

The claim therefore failed. The parties were directed to agree the form of order, subject to the judge’s approval.

First-instance judicial review proceedings. No appellate history was stated in the judgment.