SABRINA JAN (R on the application of) v THE COMMISSIONER OF POLICE FOR THE METROPOLIS

An appeal under paragraph 25 of Schedule 3 to the Police Reform Act 2002 is a review of the local investigation and outcome, not a rehearing or automatic opportunity to introduce further evidence. The appeal decision-maker must give due consideration to the complainant’s representations and act fairly, proportionately and rationally. However, the decision-maker may decline to examine documents supplied late where they were available earlier, were not put before the investigators, and the accompanying representations did not identify any genuinely material new evidence. Judicial review does not permit the court to substitute its view on that evidential or procedural exercise. Intervention requires unlawfulness, procedural unfairness, irrationality or a decision outside the reasonable discretionary range. An academic claim may also be dismissed where no practical relief remains and the public interest in determining the issue is insufficient.

The claimant sought judicial review of an appeal decision made by a police appeal unit on 23 September 2020. The appeal concerned the second local resolution of complaints about a police constable’s recording and handling of alleged neighbour harassment and his communications with medical practitioners.

The appeal decision-maker reviewed the investigation and upheld the adequacy of the findings and proposed actions. He accepted that the claimant’s representations and witness statement had been considered but declined to open 32 late-served appendix documents, stating that they would not assist his deliberations. The claimant challenged that decision on procedural fairness, legitimate expectation, improper exercise of discretion and failure to take relevant evidence into account.

1. The claim was dismissed. The appeal under paragraph 25 of Schedule 3 to the Police Reform Act 2002 was appellate and involved review of the local investigation, its scope, the evidence gathered and the conclusions reached. It was not a rehearing, and the legislation contained no express requirement to accept fresh evidence.

2. The governing guidance required a fresh consideration of the case, rather than a mere quality check. The appeal decision-maker had to consider the complainant’s representations, act impartially and proportionately, and decide whether the investigation findings and outcome were reasonable in light of the available evidence. That did not require him to examine every document supplied late where it had not been provided to the investigators and was not shown to contain material new evidence.

3. The claimant had had substantial opportunities to provide evidence during the local investigations. The appendix documents had not been provided to either investigator. The appeal decision-maker had the claimant’s detailed complaints, her later witness statement, the police evidence, the contemporaneous reports and the investigating officer’s report. The index and description of the appendix documents did not disclose a material new evidential point, overlooked investigative avenue, dishonesty or other comparable “smoking gun”.

4. It was therefore within the appeal decision-maker’s discretion to decline to read the documents. The court might have adopted a different course, but that was not the test. The decision was not irrational, unlawful, procedurally unfair or so unreasonable that no reasonable appeal assessor could have made it.

5. The claim was also academic. The alleged neighbour had died, the underlying protective objective could no longer be achieved, and the claimant had received the practical relief available through the complaint process. It was highly likely that the outcome would not have been substantially different if the documents had been read, within section 31(2A)(a) of the Supreme Court Act 1981.

This was a first-instance judicial review. The challenged decision was made by Sergeant Graham Smith of the police appeal unit on 23 September 2020. Permission to apply for judicial review was granted on 2 March 2021. The High Court dismissed the claim.