SW (No 2), Re

This is another utterly misconceived application by a son (the son) in relation to his mother, SW. I dismissed a previous application on 12 April 2017: Re SW [2017] EWCOP 7. Of that application, I said this (para 33):

“As it has been presented to the court, this scarcely coherent application is totally without merit, it is misconceived and it is vexatious. It would be contrary to every principle of how litigation ought to be conducted in the Court of Protection, and every principle of proper case management, to allow this hopelessly defective application to proceed on the forlorn assumption that the son could somehow get his tackle in order and present a revised application which could somehow avoid the fate of its predecessor.”

I should also record my observation (para 23) that, in relation to the key jurisdictional issue under the Mental Capacity Act 2005 of whether, as the son alleged, SW lacked capacity, “the material put before me is … wholly unsatisfactory, falling far short even of what would be required to meet the interim threshold under section 48 of the Act.”

The present application was issued by the son on 15 September 2017, supported by his witness statement dated 6 September 2017. P was named as the applicant’s mother, who I shall continue to refer to as SW. The respondent was named as the Commissioners for Revenue and Customs (HMRC), who were described in the application as being “Competent Authority”. The relief sought was, and I quote:

“A Declaration from the Court, under its inherent jurisdiction, that it shall be unlawful for the Respondent to effect forced entry of the property of P or to restrict P’s liberty of movement without permission from the Court of Protection.”

The son’s witness statement and the various exhibits attached to it make clear that the complaint arises out of the execution on 29 September 2016 by officers of HMRC of search warrants under section 8 of the Police and Criminal Evidence Act 1984 authorising the search of two properties owned by SW and in one of which SW was living at the time. The searches were in connection with suspected VAT frauds relating to companies of which the son and his father, Dr Waghorn, were directors. The son was subsequently arrested on 27 October 2016, according to a witness statement of the arresting officer “on suspicion of submitting false documentation to HMRC in order to reclaim VAT repayments contrary to s 72(1) of the Value Added Tax Act 1994 and the subsequent money laundering offences under sections 327 and 329 of the Proceeds of Crime Act 2002.”

The son’s witness statement is explicit that he was not present at the events on 29 September 2016. Having set out extracts from various statements which, he says, were “given as evidence in prosecution at the Crown Court”, and exhibited documents relating to a complaint he made to HMRC and to a complaint made by Dr Waghorn to the Independent Police Complaints Commission in relation to the actions of HMRC, the son concluded his witness statement as follows:

“I am unaware that the Authority has obtained any authorisation, either urgent or standard, from the Court of Protection to control and manage the property of P nor to restrict P’s liberty of movement.”

On 22 September 2017 District Judge S Jackson struck out the application. The District Judge’s order read as follows:

“Upon considering an application for an order under the inherent jurisdiction of the Court of Protection and upon the court not having an inherent jurisdiction and upon the court considering that the application and statement in support is incomprehensible and therefore without merit.

IT IS ORDERED that:

1.

Application struck out

2.

This order was made without a hearing. Any person affected by it may apply (on form COP9), within 21 days of the date on which the order was served, to have the order set aside, pursuant to rule 89 of the Court of Protection Rules 2007.”

By an application dated 1 October 2017 and received by the court on 3 October 2017, the son sought an order that the District Judge’s order be set aside and that the court grant a declaration in the terms previously sought. His grounds were as follows:

“1)

Parliament has granted jurisdiction to the Court of Protection in Deprivation of Liberty cases by introducing into the Mental Capacity Act 2005 safeguards through the Mental Health Act 2007 (which received Royal assent in July 2007), in order that those who lack capacity have the protection of law which will comply with Article 5(1) and 5(4) of the European Convention of Human Rights (“ECHR”).

2)

P’s determination of her protected rights is envisaged in Article 6(1) of the ECHR and guaranteed in the EU Charter of Fundamental Rights (Article 47 – Right to an effective remedy and to a fair trial).”

He submitted no further evidence.

The application was made under Rule 89 of the Court of Protection Rules 2007 (now Rule 13.4 of the Court of Protection Rules 2017). In accordance with Rule 89(4)(a) (now Rule 13.4(4)(a)) I have reconsidered the matter without directing a hearing. The son was entitled under Rule 89(10) (now Rule 13.4(14)) to request that I reconsider the matter at a hearing. So far as I am aware he has made no such request. If he had done so I would nonetheless not have directed a hearing. There is no reason why the time of the court should be wasted, other litigants be disadvantaged and the respondent put to considerable expense and inconvenience for no good purpose, when an application is manifestly as misconceived as this.

The approach I adopt in considering this Rule 89 application is that explained by Her Honour Judge Hazel Marshall QC in Re S and S (Protected Persons) [2008] COPLR Con Vol 1074, paras 61-63, followed by Senior Judge Lush in Re MRJ (Reconsideration of Order) [2014] EWHC B15 (COP), [2014] EWCOP B15.

I can deal with the matter briefly. I agree entirely with both the decision and the reasoning of the District Judge. I add three points.

First, a ‘best interests court’, in which I include the Court of Protection, the Family Court and the Family Division of the High Court of Justice, has no power to regulate or adjudicate upon the decision of a public authority exercising its statutory and other powers: see, generally, A v Liverpool City Council and Another [1982] AC 363, (1981) 2 FLR 222, and, specifically in relation to the Court of Protection, Re MN (Adult) [2015] EWCA Civ 411, [2015] COPLR 505, appeal dismissed N v ACCG and Others [2017] UKSC 22, [2017] COPLR 200. But that is precisely what the son is seeking to persuade the Court of Protection to do here. He is seeking an order, albeit in declaratory form, to prevent HMRC exercising its powers “without permission from the Court of Protection.” The appropriate remedy, if one is needed, is by application to the criminal court, in a case such as this, or to the Administrative Court. I make clear that I am not to be understood as suggesting that, in the circumstances, any application the son might make to either court stands the slightest prospect of success; my view, for what it is worth, is that it would not.

Second, there is, in any event, no evidence before the court to demonstrate SW’s incapacity, which alone can give the Court of Protection jurisdiction.

Third, on the basis of the evidence which the son has put before the court, there is simply nothing to support any contention that HMCR has acted unlawfully or that it either has in the past done, or that it threatens in future to do, any of the things apparently alleged by the son: that is, to effect forced entry to SW’s property, to control and manage her property, or to restrict her liberty of movement. The son has placed before the court a number of witness statements prepared for the purpose of the criminal proceedings by officers of HMRC. He has not sought to challenge any of the facts asserted by those officers – indeed, he seeks to rely upon parts of their witness statements. And since, as I have said, he was not present, he is in any event hardly in a position to gainsay what they assert. The simple fact is that there is nothing in any of this material which even begins to suggest that what the son is asserting is even arguably right. On the contrary, what the material demonstrates is the seeming propriety with which HMRC obtained and executed the search warrants, the very proper concern which the HMRC officers involved had for the potential impact on SW of what was going on around her while the relevant search warrant was being executed, and the very proper steps which they appropriately took to protect and safeguard her welfare.

The son’s application as it was presented to the District Judge was, in my judgment, totally without merit, misconceived and vexatious. His application under Rule 89 is equally devoid of merit. It must be dismissed, with the consequence that the District Judge’s order striking out the original application remains in place.