John Alexander Melvin Hemming v Independent Office of Police Conduct

On a renewed application for permission to seek judicial review of an appeal decision concerning police complaints, permission should be granted only where the claim is arguable and has a realistic prospect of success. The court must respect the decision-maker’s discretionary area of judgment. An appeal body must give proper consideration to the complainant’s representations and provide a clear explanation of its decision. A challenge may be arguable where the appeal decision fails to address a specific allegation of apparent bias or fails to engage with an alleged factual error said to underpin an operational decision. A disagreement with a rational decision about charging referrals, investigative priority or the description of a complainant as a victim is insufficient.

The claimant, a former Member of Parliament, challenged the Independent Office of Police Conduct’s decision not to uphold complaints about investigations by Staffordshire Police. The complaints concerned referral of allegations to the Crown Prosecution Service despite an investigating officer’s stated belief that the claimant was innocent, the handling and prioritisation of a later investigation into alleged perverting the course of justice, and the continued description of the complainant as a victim.

Permission had previously been refused on the papers. On renewal, the court considered whether any of the proposed grounds had a realistic prospect of success, including alleged apparent bias, failure to consider representations and irrationality.

1. Permission threshold. Permission was granted on two limited grounds. The court had to decide whether there was an arguable case with a realistic prospect of success. Judicial review remained a supervisory jurisdiction, and the court was not entitled to substitute its own view for a decision fairly and reasonably open to the appeal body.
2. Nature of the appeal. The applicable guidance required a fresh and impartial consideration of the complaint, proper consideration of the complainant’s representations, and a clear explanation of the outcome and reasons. The approach in Ramsden was applied: the court’s task was confined to whether the appeal decision was fairly and reasonably open to the decision-maker, allowing a discretionary area of judgment. Where the appeal body upheld a police decision, the court applied the resulting element of double rationality.
3. Complaint 1. The challenge to referral of the investigation to the CPS was unarguable. In a historic and complex child-abuse investigation, early CPS involvement and referral of the evidence were consistent with the relevant professional guidance. The investigating officer’s personal belief about innocence did not determine whether the evidential test had been met; guilt or innocence was ultimately for the criminal court. However, it was arguable that the appeal decision failed to address an email suggesting that the complaints investigator wished to assist the police force in mitigating related litigation. A separate allegation based merely on a senior officer’s previous service with another force was unarguable.
4. Complaint 2. The challenge to the timing of the investigation was unarguable, given the competing review process and operational priorities. It was nevertheless arguable that the appeal decision failed to address the specific allegation that the decision to assign low priority was based on false facts, namely that there was no apparent risk and that the allegations were historic.
5. Complaint 3 and disclosure. The challenge to describing the complainant as a victim was unarguable. That description did not establish that the allegations were true, just as being a suspect did not establish guilt. The court declined to determine at the oral renewal hearing whether an earlier refusal of specific disclosure and an adjournment had been wrong; that issue should have been raised separately or by appeal.

Permission had been refused on the papers by HHJ Rawlings by order dated 19 August 2022. On oral renewal, the High Court granted permission on two limited grounds and refused it on the remaining grounds.