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

Judicial review of an IPCC decision is review only. The IPCC has a discretionary area of judgment, and the court intervenes only where its conclusion was not fairly and reasonably open to it. An unrepresented complainant’s appeal is not confined to formal grounds where supporting documents clearly raise another issue, but the IPCC need not address an issue that is not clearly identified. The challenge must concern the rationality of the IPCC’s review of police diligence, rather than the court’s own view of the underlying criminal allegations. A late renewed Article 2 ground may be refused where delay is unexplained and the point adds nothing. On the facts, the cumulative investigative and other procedures were more than adequate.

Mrs Cubells died after receiving treatment for lymphoma. Her son alleged negligent treatment, gross negligence manslaughter and a subsequent cover-up. The police investigated and relied substantially on an expert report which did not refer to a blood picture or a recommendation for an urgent bone marrow examination. The police found no evidence of criminal conduct. The Professional Standards Branch rejected the complaint, and the IPCC upheld that decision.

The Administrative Court refused judicial review on the papers and, after an oral hearing, Simon J again refused the application. The Court of Appeal granted permission on the issue whether the IPCC had acted irrationally by failing to address the alleged inadequacy of the expert report. The appellant also sought to renew an Article 2 ground, which had been refused permission and was renewed late.

The Master of the Rolls gave the judgment. Davis LJ and Treacy LJ agreed.

1. Disposition. The court dismissed the judicial review application on the issue for which permission had been granted and refused the renewed application concerning Article 2 of the ECHR.
2. Legal framework. Investigators were required to pursue all reasonable lines of inquiry, whether pointing towards or away from a suspect, under para 3.5 of the Code of Practice issued pursuant to section 23(1) of the Criminal Procedure and Investigations Act 1996. The IPCC’s statutory functions and complaint-appeal role arose under sections 10 and 13 and Schedule 3 to the Police Reform Act 2002. The court endorsed the approach in R (Muldoon) v Independent Police Complaints Commission [2009] EWHC 3633: the IPCC has a discretionary area of judgment, and intervention is justified only where its conclusion was not fairly and reasonably open to it.
3. Application. Although Mr Cubells was unrepresented, the IPCC would have had to consider an issue clearly raised in supporting documents, even if absent from the formal appeal form. The documents did not clearly allege that the police investigation was defective because Dr Macdonald’s opinion was based on incomplete information. The reference to the omitted blood picture supported a different allegation of medical cover-up. The IPCC was therefore entitled to conclude that the police had diligently investigated the allegations. The proceedings concerned the rationality of that conclusion, not whether there was in fact a prima facie case of gross negligence manslaughter or a medical cover-up.
4. Article 2. The renewed point was substantially out of time without satisfactory explanation. In any event, it added nothing to the main issue. The proceedings before the General Medical Council, civil courts, Ombudsman and Coroner, taken together, were more than adequate to satisfy Article 2 requirements on these facts.

• Court of Appeal (Civil Division) — [2012] EWCA Civ 1292: dismissed the judicial review application on the permitted ground and refused the late renewed Article 2 ground.
• High Court, Administrative Court — HH Judge Pelling QC refused the application on the papers. Simon J subsequently refused it at an oral hearing on 19 March 2012. No citation for that decision was stated in the judgment.