Bain, R (on the application of) v IPCC

This is a renewed application by Mr Alistair John Bain for permission to appeal against Black’s J refusal to make an order on 19 February 2009 that the decision of the Independent Police Complaints Commission should be subject to judicial review as sought by Mr Bain in his application for court.

The application for permission to appeal to this court was refused on paper by Elias LJ and the reasons he gave were the following:

“The compliant is about the investigation carried by the Independent Police Complaints Commission into an investigation conducted by the Warwickshire Police. The conclusions were set out in two letters; one dated 29 August 2008 and one dated 18 September 2008. I think this demonstrates that there was a proper investigation and it could only be limited to the behaviour of the Police. Much of the challenge here is complaining that the Commission did not look much wider, but that is not within their powers. I am afraid that I do not think this application has any real prospect of success at all.”

Before I do any further I think I need to explain to Mr Bain precisely what my function is today. Many litigants in person come to this court thinking that the court has very wide powers to rewrite history, to put the clock back, to wave a wand, in effect, and to say that everything that has happened hitherto has been wrong and we should start again or the order that the judge made is plainly wrong and should be reversed. In fact, the position is very much different to that, because this court is not a court of first instance; it is a court of review. What this court does is to look at what the judge (in this case Black J) did and said, and ask itself: “Is it arguable that what she did was wrong as a matter of law, or that she has in some way made such an error that this court should review her decision?” I have had the opportunity of reading the transcript of Black’s J judgment and I have also had the advantage today not only of reading the documentation together with the two letters which my Lord, Elias LJ refers, but also to hearing Mr Bain develop his very profound sense of grievance at some length.

Mr Bain complains, amongst other things, that there is not a dialogue or proper discussion between the court and the bench, or indeed between any investigating body and himself; and he says therefore, as a result, the judge in particular has overlooked substantial portions of the evidence which, had she properly considered them, would have led her to a different conclusion. As I say, the way the system works is that this court gives the applicant before it the opportunity to develop his or her arguments and place them before the court, and if the court takes the view, on the basis of those arguments, that there is an arguable case, then the court will grant permission to appeal. Elias LJ plainly did not think there was an arguable case and, as is his right, Mr Bain has renewed that application before me.

So I go back to what the judge did and said. The judge recognised, I think quite properly, that Mr Bain has a sense of grievance, which he retains despite his attempts to go through the system to seek redress. On 26 February (his case is of 2003, some six years ago) he went along to his local police station to make what he perceived to be a perfectly legitimate complaint and he found himself not only detained under the Mental Health Act but as a consequence he was diagnosed -- wrongly, he says -- as being a paranoid schizophrenic and, as a result of that, he has lost his driving licence. So he undoubtedly has a powerful sense of grievance. He also makes a number of complaints, which he has repeated to me, about the conduct of the Warwickshire Police subsequent to these events coming to his home and intimidating him, failing to make proper investigation; for example, of the belief that Mr Bain has that there was a camera, in a house which would have observed a murder, which he says took place in his road and so on. In his final summary he says that he thinks that the IPPC (which, he understood, would properly investigate his complaint) does not understand the law. It has not supplied him with the appropriate documentation, particularly medical records. It has behaved, he says, unreasonably. It has allowed a number of factual inaccuracies to remain in being. It has not read the documentation which has been put before it; and, as I say, he labours under a feeling that he has been generally treated unfairly. The result, he says, is that he wants a proper investigation.

So how did the judge react towards this? In paragraph 13 of her judgment -- or I should perhaps start at paragraph 12 -- she reminds herself and Mr Bain that it is not the function of the court in judicial review to carry out its own investigation. She went on:

“Indeed, the role of the Police Complaints Commission was not to carry out its own investigation about what had happened at Rugby police station and in Mr Bain’s road and in his life generally. I am sure he understands that. The role of the Police Complaints Commission was to review independently the decisions and the actions of the police and not to reinvestigate the complaint and, of course, it is absolutely right, as they say, that it is the actions of the police officers that they investigate and not those of other bodies or people and they were right to get involved, therefore, with regard to conduct of the doctors or the DVLC.”

In paragraph 13 she says:

“I have looked very carefully at the matters that Mr Bain wants to raise. I appreciate how deeply anxious he is about these matters which have been going on since 2003 in his case. I have to bear in mind the limited role that this court has and I have not, I am afraid, identified any arguable case for judicial review in regard to the way in which the Independent Police Complaints Commission approached the matter of their conclusions and in these circumstances I cannot give permission for this matter to go any further.”

So the question I have to ask myself is: in saying that, has the judge committed an error of law? Is she wrong in some particular way? Mr Bain today argues she was wrong in a number of ways, some of which I have already summarised. He also points to the fact that, in his judgment and in his belief, the question of the Mental Health Act is not simply a civil matter; it involves the liberty of the subject and it involves the police. If the police behaved inappropriately in the context of the Mental Health Act proceedings, they are accountable, or should be accountable, to complaint.

I have of course read the investigation carried out by IPCC. I have seen the letter of 29 August which has attached to it details of Mr Bain’s appeal, and he very helpfully today has produced a letter of the 18 September to which Elias LJ refers. There are plainly two sections of what has occurred, but in my judgment I have to say, having looked at what Black J has to say, that in terms of this court saying that the IPCC has either exceeded its powers or not exercised its powers appropriately, or acted in a way which we describe in shorthand as “Wednesbury unreasonable” -- that is to say that nobody investigating would have done what they did -- in my judgment Mr Bain’s argument comes nowhere near satisfying me that the judge made a mistake in deciding that the IPCC carried out what they perceived to be, and what was, a perfectly reasonable investigation; and the fact that Mr Bain remains unsatisfied with it, I am afraid, is not a matter which is subject to judicial review.

It therefore follows that I have to say that, despite the legitimate sense of grievance which Mr Bain undoubtedly feels (I say legitimate in the sense that I do not doubt he feels it genuinely), there is in my view no scope here for judicial review and the judge was right to dismiss the application. The application for permission to appeal to this court, I think, would simply build up false hopes in Mr Bain, and I also point out to him something he may not appreciate, that, if we were to get the IPCC here to answer his complaint and the appeal was unsuccessful, he would end up having to pay the IPCC’s costs. In my judgment the line must be drawn here as far as judicial review is concerned. It was drawn properly by the judge and there is no scope for judicial review of the IPCC decision.

However, because Mr Bain is in person and will obviously want to consider what I have said, I propose to direct that a transcript of what I have just said is made available to him at public expense so that he has the opportunity to read it at his leisure. However, in my view the judge was perfectly correct in what she did and the application for permission to appeal to this court must be refused.