Burke v Independent Police Complaints Commission & Anor

Judicial review may be arguable where a public body reviewing an investigation decision appears not to have considered material evidence bearing on the independence or adequacy of the proposed investigation. A public decision-maker must take legally relevant considerations into account and follow fair procedures appropriate to the context. At the permission stage, the court asks whether the claim has no real prospect of succeeding. Where a potentially arguable point has not been clearly pleaded, the fair course may be to permit amendment and adjourn the application for a rolled-up hearing, while reserving delay, abuse of process and good-administration issues.

The claimant challenged the IPCC’s decision of 26 March 2012 not to re-determine the mode of investigation of his complaint that senior Metropolitan Police officers had covered up misconduct by officers involved in his arrest. He relied principally on a later internal review, which identified serious deficiencies in the earlier investigation and questioned whether the complaint had been properly investigated.

The claim followed earlier proceedings concerning a separate complaint and an out-of-time appeal. The court considered whether the claimant had an arguable case that the IPCC’s 2012 review failed to take account of material evidence concerning the adequacy and independence of the proposed investigation.

1. Judicial review principles. Public bodies must take account of legally relevant considerations, disregard irrelevant considerations and follow fair procedures appropriate to the context. Those procedures may include disclosure, receipt of representations and giving reasons.
2. Permission threshold. The court’s task was to decide whether there was an arguable case for judicial review. The applicable threshold was broadly similar to summary judgment: whether there was no real prospect of succeeding on the claim or issue.
3. Material consideration. The IPCC’s review concerned whether the original decision to refer the second complaint to the police for local investigation should be reconsidered. The later internal review identified substantial alleged defects in the first investigation, including failure to investigate parts of the complaint and failure to interview the claimant. That material could arguably bear on whether an independent investigation was required.
4. The decision-maker’s review document made no reference to the later internal review or to the concerns it raised. If the document represented the decision-maker’s reasoning, it was arguable that those concerns had not been taken into account. If they had been considered and rejected, the absence of any recorded reasons also raised an arguable issue.
5. Permission was not granted immediately because the point had not been clearly pleaded and the defendant had not appeared. The claimant was permitted to re-draft his grounds to plead the point clearly. The application was adjourned for a rolled-up hearing, at which permission and, if granted, the substantive claim would be determined. Delay, abuse of process, prejudice and detriment to good administration were reserved. Costs were in the case.

• High Court (Administrative Court): the present claim challenged the IPCC’s decision of 26 March 2012. The court did not grant permission at this stage, but permitted amended grounds and adjourned the application for a rolled-up hearing.
• Court of Appeal: an earlier appeal concerning the claimant’s separate complaint and an extension of time was dismissed on 19 December 2011.
• High Court: Wyn Williams J had refused judicial review in the earlier proceedings.