Professor Philip Percival v Police & Crime Commissioner for Nottingham

Where a public-law challenge has become academic because the public authority has agreed to reconsider the impugned decision, the court will ordinarily refuse permission or decline to proceed. The court is concerned principally with the decision under challenge, rather than reasons which no longer affect the outcome. An academic claim may proceed only where there is a substantial residual public interest, exercised with caution. A discrete point of statutory construction, together with numerous existing or anticipated similar cases, may provide such a reason. A claimant remains able to challenge a later adverse decision following reconsideration.

The claimant renewed applications for permission to bring two judicial review claims. They challenged decisions by the Police and Crime Commissioner for Nottinghamshire and the Police and Crime Commissioner for Derbyshire concerning reviews of complaints about alleged litigation misconduct.

Permission had been refused on paper after the defendants accepted that the complaints had been handled improperly and offered to reconsider them afresh, including by the appropriate Derbyshire authority and with fresh contact with the claimant. The central issues were whether the claims remained live and whether they should proceed despite being academic because of an alleged public interest.

1. Permission refused. The defendants’ agreement to reconsider both complaints afresh supplied substantially the relief sought and rendered the challenges academic. The claimant’s disagreement with the reasons for the original decisions did not create a continuing justiciable issue where the decisions themselves could no longer stand.
2. Judicial review ordinarily addresses the lawfulness of the decision, not reasons considered in isolation. A claimant dissatisfied with the fresh handling of the complaints could bring a new judicial review claim against any later decision.
3. The court applied the cautious approach in R. v Secretary of State for the Home Department Ex p. Salem [1999] 1 AC 450. An academic public-law claim may proceed only where there is a good reason in the public interest, such as a discrete statutory-construction issue likely to recur in numerous existing or anticipated cases. No such issue or wider public interest arose here.
4. The proposed reconsideration included all matters raised in the complaints and the possibility of referral to the IOPC. The claimant’s argument that the claims remained live because reconsideration might not lead to referral was therefore premature.
5. The court found the proposed fresh process pragmatic and effective. It refused permission because allowing costly and protracted claims to continue would serve no useful purpose.

Permission was initially refused on paper by His Honour Judge Williams, sitting as a Judge of the High Court, on the basis that the claims had become academic. The claimant renewed the applications. The Administrative Court refused permission.