Kuldeep Singh Mahal v The Commissioner of Police for the Metropolis

This application was brought by the Defendant to strike out the Claimant’s case or alternatively to order summary judgment in favour of the Defendant.

The claim concerns an incident on 24th November 2020 when two police officers attended a 999 call made by the Claimant in which he reported being punched in the face by his half-brother, William Balmain, at the house where his half-brother lives, with his wife, mother-in-law and infant child.

The Claimant asserts he looked after the house where the incident took place on his father's behalf. He told the police that he would attend once or twice a week to collect rent, undertake maintenance and check on refurbishment work in the kitchen . He lives nearby.

It is undisputed that when the police arrived at the scene, the Claimant was standing outside the property with injuries appearing to be a broken nose. His half-brother was inside and said that the Claimant should not be at the property. The half-brother was recorded on police body worn video to have a bloodied scratch to his right forehead and blood was observed around his hands (which he said was from the Claimant scratching him).

According to the Claimant he had removed his half-brother’s bike into the back garden shortly before the assault complained of, in accordance with “house rules” but his half-brother disagreed stating that he was entitled to keep it inside. In terms of witnesses, the half-brother’s wife and mother-in-law said they believed the Claimant was the aggressor and should not be at the house, but they had not personally witnessed any assault. The Claimant's father confirmed to police that the Claimant had permission to attend the communal areas on his behalf.

The police noted mobile phone footage taken by the Claimant but considered that it did not show the assault sufficiently clearly to reveal who was the aggressor in the altercation, although parts of the footage were consistent with the account given by the Claimant. At the moment on the footage that the half-brother gets close to the Claimant the camera turns away and the Claimant is heard shouting that he had been attacked. The Claimant believes there is more to be seen on the recording than the police have identified. For example, he says at paragraph 26 of the Particulars that “In one, essential frame, a fist, resembling a mace, can be seen striking my face. Repeatedly prompting and asking the arrogant police officers to check the footage, made no difference. They simply did not care.”

The Claimant stated on his Claim Form that he had brought proceedings so he could “remain safe from the man who has assaulted him (since childhood) and has a history of domestic violence, hate crimes and other disturbances”.

The Claimant refers in his Particulars to the police officers attending the incident as “white” at [13] and says he was treated “with contempt” by them at [14], he accuses them of “racism” at [15] and that the suspect “was treated very leniently by the white officers, when he had his white wife, white mother-in-law , and white baby to arouse false feelings of fraternity” at [17] and “For these officers, race was of more consequence than their duty to the law”. He also argued at[19] that “The Police are always duty bound to pass all crimes which involve domestic violence, hate crime, actual or grievance bodily harm as was true in this case, directly to the Crown Prosecution Service”.

Following arrest and interview of the half-brother, on suspicion of assault occasioning bodily harm, and gathering of limited evidence (including house to house visits which revealed nothing), the police decided to take no further action as they considered there was no realistic prospect of conviction. Police documents in the hearing bundle included records of a site visit that was undertaken to identify any CCTV or witnesses but there was a nil return. The police concluded that there was insufficient evidence to refer the file to the Crown Prosecution Service (“CPS”).

The Claimant requested a review of the police decision which was undertaken in January 2021 under the Victim's Right to Review Scheme (“VRR”), by an inspector. He reached the same conclusion as the original investigating police officers.

The VRR decision records that the mobile phone footage was inconclusive and did not show a punch, the recording of the scuffle between the two men being less than one second, but repeated comments by the half-brother to get out of the house were audible. The VRR report concluded that there was ample opportunity for the Claimant to leave before injuries were sustained. The reasoning for the decision to uphold the earlier decision to take no further action in full was :

“Your statement alleges that you were punched three times by Mr William Balmain, your brother, in the hallway. Your brother told the arresting officer that you punched him in the head and that he pushed you out of the property in self-defence but you tried to re-enter. Your brother alleges that any injuries you sustained to your face were as a result of pushing against the door frame as he tried to keep you out. The mobile phone footage from your phone is inconclusive. It doesn't show a punch. There are moments of footage (recorded for less than a single second) which show a scuffle between you and your brother. The phone clearly records your brother repeatedly saying get out. You had ample opportunity to leave but choose not to do so. The resulting scuffle on the doorstep lasts approximately 10 secs. Importantly, the phone footage starts with footage of your brother who has no visible injury to his face. The arresting officers body worn video shows your brothers face with a bloodied scratch to his right forehead. Your brother also complains of scratches to his hand. It seems likely that you both sustained injuries during your scuffle. There are no other direct witnesses. The injuries are low level with no weapon used.

To summarise Both you and your brother grappled with each other on the doorway where you each sustained minor injuries. Given the inconclusive evidence, I agree there is no realistic prospect of conviction against your arrested brother and the decision to no further action the case is upheld.”

A right to request a judicial review of that decision was clearly noted on the VRR response to the Claimant and the correspondence includes a “signpost” alert to take independent legal advice, if desired.

Following the outcome of the VRR, the Claimant complained about the police conduct to the PSU and his complaint was dismissed. His complaint was reproduced at page 63 of the hearing bundle and asserts:

For allegation one, the PSU investigating officer reviewed 50 minutes of body worn video recording by the officers attending the scene and the actions undertaken plus the evidence collected. They decided they could not identify any other investigations that the police could have taken; the police officers who attended the incident photographed the Claimant and the front door of the house where the half-brother lived, which was smeared with blood, and checked for and interviewed possible witnesses. There were no independent witnesses but the PSU noted that the two family members who heard the assault took the suspect’s side; the PSU discounted that latter evidence. The PSU observed that the Claimant’s mobile phone record of the incident was also uploaded onto PC Roger’s body worn camera as it was too large to send by email and that due consideration was given to the footage received.

Regarding the allegation of lack of empathy, the PSU disagreed with the Claimant and considered that priority had been given to the Claimant’s safety and well-being by the police officers attending the incident.

Similarly, allegation 2 also failed before the PSU because there was no documentary evidence of conflicting statements by officers about prospects of success which could have given “a kind of false hope that your brother would be charged”. The PSU investigating officer sought to reassure the Claimant there was no requirement on the police to disclose what the suspect had said in interview, therefore they had not failed in their responsibilities. The investigating officer agreed with the rationale to close the case, given the evidence to hand. The investigating officer explained that he had independently reviewed the video footage objectively but could not make out what was happening. He said the evidence would not prove or disprove how the injury which the Claimant had sustained had been caused. He also cited the original investigating officer’s reporting (at pages 67/68 in the bundle) that the decision not to refer the file to the CPS was not a finding that they did not believe the Claimant’s account, but simply the objective facts showed two conflicting accounts as to what had happened, whereas the onus is on the prosecution to prove the case. Therefore the evidence did not meet their threshold criteria on prospects of success to mount a public prosecution. The investigating PSU officer also did not disagree with the view of the original investigating officer, when addressing the Claimant’s concern that important evidence had been overlooked from the stills of the mobile phone footage, which the Claimant asserted showed him being punched. The officer had stated “Stills cannot postulate the full extent of a video and can take away its objectivity when not weighed against the full footage".

As to allegation 3, investigations revealed that a prior complaint had indeed been mislaid and an apology was provided.

The PSU dismissed allegation 4 as they could not find a lack of care in the preparation of the VRR report. A lengthy reply was produced, following a review of what had taken place at the VRR stage. The outcome recites the decision making process of the VRR officer who had noticed from the mobile phone record that there was “ample” opportunity between Mr Balmain requesting the Claimant to leave the premises, and the scuffle breaking out, for the Claimant to leave, but he had chosen not to do so. Furthermore, the earlier part of the video shows Mr Balmain’s face with no visible injury whereas the arresting officer’s body worn video recording later on showed by that stage his face had a bloodied scratch to the right forehead and scratches to his hand. The PSU investigating officer determined that it was not possible to state who was the aggressor and who was the victim given this evidence. In conclusion the report stated, “DI Dawson has carried out a fair and balanced review of the allegation from you and has reviewed all the relevant material and justified why he feels that this matter will not be taken further”.

In February 2024 the Claimant brought judicial review proceedings challenging the failure of the police to prosecute.

This claim, KB-2024-000763, covers similar matters, and was therefore stayed to allow the judicial review proceedings to conclude. The detailed grounds in support of the judicial review cited breach of a perceived statutory duty to pass the police file to the CPS and negligence, procedural unfairness/a lack of impartiality in the police investigation and an irrational outcome to the investigation. Breaches of Articles 1, 3 and 5 of the Human Rights Act 1998 were also relied upon.

The Defendant’s Grounds of Resistance (“the Grounds”) relied upon the Director's Guidance on Charging (“the Guidance”) being applied correctly. The decision not to refer the matter to the CPS was said to be reasonable because:

The Grounds clearly set out that cases which do not pass the evidential test specified in the Guidance “must not proceed, no matter how serious or sensitive". The assertion that the police are under a statutory duty to pass the file to the CPS for a charging decision was therefore stated to be incorrect.

Similarly the Grounds denied that there had been any procedural unfairness, and noted that the contradictory nature of the evidence between the victim and suspect was one of the reasons for taking no further action, because the evidence taken as a whole did not provide a realistic prospect of conviction. A suggestion that the police had not gathered all the evidence that they should have done was refuted, as it was asserted that it would not have advanced the case. The police asserted that the decision that the case did not meet the evidential threshold for a referral to the CPS, was not one that no reasonable prosecutor could have come to, and therefore was not irrational.

Lack of clarity regarding the alleged breach of Convention rights was relied upon as the reason for the Claimant’s application for permission in that regard to be refused. In addition to the specific points on the merits of the case, the Defendant sought to rely on the fact that the judicial review proceedings had been commenced out of time as a further reason for permission to be refused..

The Claimant filed written submissions on the application for reconsideration of his judicial review claim. In that document he cited alleged Data Protection Act breaches to the effect that he believed the police had deliberately not disclosed relevant papers to him in order to thwart his attempts to get the case prosecuted.

The judicial review proceedings were refused on the papers by a Deputy High Court Judge on 17^th June 2024 and, again, at a renewed oral permission hearing on 17^th October 2024 before Sir Peter Lane. The reasons given on the first occasion were:

Before Sir Peter Lane, each aspect was reconsidered and the findings of the Deputy High Court judge were upheld in all respects, namely the operation of the time limit, and that the Claimant had failed to satisfy the Court that the actions of the police had been irrational, illegal or procedurally unfair. It was further held the Grounds asserted under the Human Rights Act 1998 did not advance the case at all.

The Claim Form commencing this action listed 14 causes of action but the overarching summary of the claim on page one was “that the defendant refused to pass the criminal reference number for a matter in which the claimant was a victim”. The Claimant seeks damages of £1 million and the claims can be summarised as follows, with the numbers reflecting the relevant paragraphs in the Statements of Case:

Pursuant to CPR 24.2. the court may give summary judgment on the whole of a claim or a particular issue if:

Summary judgment applications are useful where there is a short point of law or construction which can adequately be addressed in argument without a fuller investigation into the facts, because there are no reasonable grounds for believing they would add to, or alter the evidence available to a trial judge, and thereby affect the outcome of the case.

Pursuant to CPR 3.4 (2) the court may strike out a statement of case if it appears to the court-

The notes to the White Book make it plain at 3.4.2 that a claim should not be struck out unless the court is certain it is bound to fail. Within the Practice Direction there are examples of cases where the court may conclude that the particulars disclose no reasonable grounds because they set out no facts indicating what the claim is about or they are incoherent, alternatively despite a coherent set of facts, those facts even if true do not disclose a legally recognisable claim. A two-stage test should be applied as set out in Asturion Foundation v Alibrahim [2020] EWCA Civ 32 at [ 63]: “First the court has to determine whether the claimant’s conduct was an abuse of process. Secondly, if it was, the court has to exercise its discretion as to whether or not to strike out the claim. It is at that second stage that the usual balancing exercise, and in particular considerations of proportionality, becomes relevant.”

As to what is an abuse of process, at 3.4.3 in the White Book the notes record that there is no clear definition, and the scope is wide but if any abuse can be addressed by less draconian methods than a strike-out, then the other option should be taken.

The decision in Burnford v Automobile Association Developments Ltd, BL-2021-000731 provides some assistance on the question of overlap between a summary judgment application and whether a defendant failing to prove grounds for summary judgment must necessarily fail on its strike out application too. HHJ Paul Matthews said at [20], when comparing and contrasting the two types of application, “These two methods of summarily disposing of a claim without a trial are frequently combined in the same application, as in this case. But it is clear that an application under rule 3.4 is not one for summary judgment: see eg Dellal v Dellal [2015] EWHC 907(Fam). It is generally concerned with matters of law or practice, rather than with the strength or weakness of the evidence. So on an application to strike out, the court usually approaches the question on the assumption (but it is only an assumption, for the sake of the argument) that the respondent will be able at the trial in due course to prove its factual allegations. On the other hand, on an application for summary judgment, the court is concerned to assess the strength of the case put forward: does the respondent's case get over the (low) threshold of “real prospect of success”? If it does not, then, unless there is some other compelling reason for a trial, the court will give a summary judgment for the applicant”.

At [21] the Judge continued, by reference to the judgment of Coulson LJ in Begum v Maran (UK) Ltd [2021] EWCA Civ 326 at [20] “in a case like this (where the striking-out is based on the nature of the pleading, not a failure to comply with an order), there is no difference between the test to be applied by the court under the two rules”. Then continuing at [21], “accordingly, I do not agree with the judge’s observation at [4] that somehow the test under r.24.2 is “less onerous from a defendant’s perspective”. In a case of this kind, the rules should be taken together, and a common test applied. If a defendant is entitled to summary judgment because the claimant has no realistic prospect of success, then the statement of claim discloses no reasonable grounds for bringing the claim and should be struck out: see Global Asset Capital Inc v Aabar Block SARL [2017] EWCA Civ 37…”.

Coulson LJ continued at [22] “As to the applicable test itself:

On the latter point I am also mindful of the decision in Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Company 100 Ltd [2007] FSR 63, where similarly the Court determined that it should hesitate about making a final decision without trial, even where there is no obvious conflict of fact at the time of the application, but where there are reasonable grounds for believing a fuller investigation into the facts would add to, or alter, the evidence available to a trial judge and therefore affect the outcome of the case.

It is helpful to record one of the other key principles to be applied on summary judgment, as set out by Lewison J, as he then was, in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch) at [15 vii)] “… it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725”.

Finally, it is important to remember that the evidential burden is on the applicant to establish that there are grounds to believe there is no real prospect of success and no other compelling reason for trial. It is only when the applicant has produced evidence which is credible to support the application, that the respondent becomes subject to the evidential burden of proving the opposite.

The Defendant relies on three grounds for their application as follows;

The Defendant relies upon CPR rules 3.4(2)(b) to strike out paragraphs 31, 32, 34, 35, 37, 41, 42 and 43 of the Particulars. They say their failure to refer the matter to the CPS (which is the subject matter of each of these paragraphs) has already been challenged through judicial review proceedings, and failed. The Defendant relies upon the principle of issue estoppel. That principle operates where an issue, which is common to previous proceedings and the current ones, has already being decided by another court on an earlier occasion, such that the earlier decision is binding on the parties and should not be relitigated. The Defendant referred to the relevant case law, notably Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46 in their skeleton argument, and for brevity I will not repeat it. Suffice to say that I am bound by that decision of the Supreme Court.

The Claimant said in his skeleton argument that the decisions of the two judges in the judicial review proceedings were “flawed and faulty”, that the judges had demonstrated a “lack of professional curiosity” and uncritically accepted what defence counsel had argued.

I conclude, having read the judicial review papers, that the Defendant is correct to say that the Claimant’s challenge to the decision of the police not to prosecute, is a common issue between both the judicial review proceedings and this claim. The Claimant seeks to mount a collateral attack on previous decisions of the Court which have concluded that a lawful process was followed in respect of these issues. This is therefore an abuse of process as defined in the CPR and case authority.

Furthermore, however unsatisfactory the result of the judicial review proceedings is considered to be by the Claimant, this Court does not conduct appeals relating to matters that have occurred in the Administrative Court, and it would most certainly be an abuse of process to allow those aspects of the claim to continue that seek to challenge those findings.

Under the two-stage test referred to at [32] above, having found that part of the claim is an abuse of process, I have to consider the appropriate and proportionate sanction. Referring back to Asturion, I cannot identify any other solution to the problem of the abuse which has been identified, than to strike-out of those parts of the claim which are based on the failure to prosecute. Those claims raised in paragraphs 31 and 32 of the Particulars are bound to fail. For the avoidance of doubt, the Administrative Court has also considered whether the discretion of the police in charging decisions is fettered in any way where there is domestic violence, hate crime or grievous bodily harm. They concluded it was not.

Further, insofar as the allegation of negligent mis-statement at paragraph 34 of the Particulars, is intended to refer to any separate cause of action other than a failure to refer the file to the CPS, and is more simply interpreted as a claim for damages based on some reliance on an alleged indication that a prosecution would be forthcoming which was false and careless, leading to economic loss when that did not materialise, I am bound to conclude that there is no prospect of success on that basis either. That aspect of the claim should be struck out under CPR 3.4 (2) (a) because there are no reasonable grounds for making it. It is incomprehensible according to usual legal principles of English law, as to how the police could be said to owe a duty in such circumstances, even if such a statement had been made, for which there is no evidence, save the Claimant’s recollections of an oral conversation. Such a conversation is not reflected in any papers on the police file. The same points and conclusion can be made regarding the allegations at paragraph 35 of the Particulars where a claim for damages in respect of negligent mis-representation is advanced.

The Claimant alleges that the investigating officer told him that a criminal conviction was a certainty, and as such a contract was made between him and the police that a prosecution would follow.

The Defendant denies that any such contract between a member of the public and the police is recognised under English law. They say it is an abuse of process to bring this claim because it represents a collateral attack on the decision of the Administrative Court which considered the fairness of the police operation. I do not consider it necessary to make such a finding, as the answer to the request to strike this allegation out is simple; there are no reasonable grounds to make such an allegation when the law does not recognise any such claim. This Court cannot create new law in this regard. The claim must be struck out pursuant to CPR 3.4 (2) (a).

Similar to submissions concerning paragraph 37 of the Particulars, the Defendant sought to persuade me these causes of action were an abuse seeking to undermine the decision of another court.

In pursuit of a claim for malfeasance, the Claimant asserted that “the police refused to pursue matters to court as they were duty bound.”

In pursuit of a claim for misfeasance, the Claimant asserted that “the willingness of the Metropolitan Police to contest this matter ..all the way up to Judicial Review despite being in the wrong on this matter, shows, complete and utter bad faith.” Additionally the Claimant argued that a failure to uphold his complaint was actionable as part of this claim.

Given my previous conclusions that any attack on the legitimacy of earlier Court decisions relating to the same issues is an abuse, I need add nothing further than to say these claims are bound to fail and should be struck out. Insofar as any suggestion that the failure to uphold his complaint, was not part of the judicial review process, I agree with the Defendant that there is no real prospect of success, although I am inclined to the view that the subject matter of the complaint did relate to the matters considered within the judicial review. The VRR report clearly stated that judicial review was available as a process to challenge the decision, if the Claimant disagreed with it, and that was a course of action then undertaken by the Claimant, and dismissed by the Court. On that basis this claim too should be struck out on the basis of abuse; the Claimant’s allegation seeks to undermine a previous decision of the Court.

The claim for non-feasance covers similar ground to the previous 2 claims, but as such a tort is only recognised overseas, but not in the English jurisdiction, that too must be struck out, although I would do so under CPR 3.4(2) (a).

The Defendant relies upon CPR rules 3.4(2) (a) and (b) and the accompanying Practice Direction at 3A1.2-1.3 to strike out paragraphs 33, 36 and 38 of the Particulars on the basis that there are no reasonable grounds to bring them and/or they are misconceived.

The Claimant alleges that under the VRR scheme “due process” was not followed because he was not told how to challenge the decision through the Mayor’s Office, nor the time limit for judicial review. The Defendant says this is not a recognised cause of action under English law, and is also reflective of a fundamental misunderstanding, because the only way to challenge the decision was by way of judicial review, which the Inspector did communicate, and there was no legal obligation to inform the Claimant of the time limit.

The manner in which the Claimant presents this claim overlaps with others I must consider in due course such as professional negligence. He feels badly let down, and that the system has not properly operated to meet his needs and promote public safety.

It is unclear how any review by the Mayor’s Office would have brought about a different decision on the legal merits of a prosecution being advanced, a matter already considered within the judicial review process, irrespective of any missed time limits. In any event the opportunity to proceed via the Mayor’s Office in respect of PSU findings was set out clearly at the end of the PSU decision letter at [75] in the bundle, a fact which the Claimant acknowledged in later papers prepared for the judicial review (at [123] in the bundle).

At [58] of the hearing bundle, the VRR report clearly advises of the right to seek judicial review and it is correct that under English law no cause of action lies for the police failing to advise on relevant time limits. They did in any event inform the Claimant he might wish to seek legal advice. I note again that irrespective of the missed time limit for commencing judicial review the Administrative Court found the claim before them should fail on the merits. In these circumstances it is correct to conclude that there are no reasonable grounds for bringing a claim for breach of due process, as the claim would have failed if brought within time, so that allegation must be struck out. It is bound to fail.

An allegation of professional negligence for breach of an alleged duty of care in respect of the handling of the police investigation, is made by the Claimant who also asserts an alleged failure to recognise who the police should have assisted at the incident scene, namely the Claimant and not the suspect. The Claimant asserts there was a “spectacular failure of judgement”.

The Defendant asserted that it is well established in case law (Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335) that the police do not owe a duty of care and in any event they did call an ambulance and arrest his half-brother and interview him under caution. As such, the Defendant asserted the claim should be struck out because it is “obviously ill-founded”.

I agree with the Defendant that it is well established there is no general duty at common law giving rise to a private law claim against the police for a failure to act (Robinson v the Chief Constable of West Yorkshire [2018] AC 736). Paragraph 36 is unrecognisable as a valid cause of action. That is enough to strike it out. In passing I would also say it is hard to understand as a claim, even if such was recognised in English law, in circumstances where the initial police body worn video shows the efforts made to call an ambulance for the Claimant shortly after arrival at the incident scene, and attention only then being turned to the arrest of the suspect and his interview under caution, the case only being dropped when insufficient evidence could be gathered to substantiate it to the required threshold, such matters already having been subject to review by another court.

This allegation overlaps with the alleged breaches in professional negligence at paragraph 36. No such duty is recognised in English law, as I have set out previously at [61] so the claim is ill-conceived and should be struck out.

The focus of the Claimant’s complaint is that he was not taken to hospital when it was “crucial and critical that victim was assessed”. The Claimant believes that if evidence had been obtained that his nose was broken “it means that William Balmain used such violence and force and the Police’s utter failure to ascertain the fact” has by implication undermined the prosecution.

It is not the Court’s function on a strike out/summary judgment application to conduct a mini-trial. However, I mention again that the factual records do not bear out the history of events complained of; the body worn videos confirm that it was the Claimant who declined to attend the hospital. Insofar as the Claimant says he should have been advised it was crucial to attend in due course to have his injuries documented because it would have strengthened the prosecution evidence, that is yet another attempt to undermine a finding of another court as to the lawfulness of the actions taken and decisions reached by the police concerning this incident. It does not assist the Claimant in avoiding a strike-out.

The Claimant is aggrieved that Wembley police station would not hand over their file to him when he turned up and asked to collect it. He believes the refusal was “arrogant” and has thwarted his efforts to commence a private prosecution.

The Defendant relies on the documents produced to the Court evidencing that the Claimant’s formal written Subject Access Request (SAR) was received on 23rd January 2024 and acknowledged 5^th February 2024. The Data Rights Department required proof of address to proceed but the Claimant failed to respond so the request was closed. They assert that there is no realistic prospect of success on this claim currently, but if the Claimant makes a new SAR, which is not acted upon correctly, he could then consider bringing that matter before the Court; however it is wholly premature and unwarranted at this stage.

I agree that it is premature to bring a claim for alleged failures under the Data Protection Act, when there has been a failure by the Claimant to comply with their legitimate request to seek proof of address before responding. In such circumstances, where there are no realistic prospects of success, as defined at paragraphs 29-30 above, the appropriate order is summary judgment for the Defendant.

The Claimant’s various claims were summarised at paragraph 28 above. The Claimant characterises a breach of Article 1 as “The victim was treated as if he was the common criminal… this was made much worse by the persistent and consistent manner in which the police have downplayed and tried to make out that this matter is not serious…. It's concerning the police have remained unable to reform themselves to treat those of other races fairly…”

The Defendant asserts that there is no Article 1 under the Human Rights Act and it is impossible to understand what this claim is about, and therefore it should be struck out.

I agree that there is no Article 1 under the Act. In any event the matters complained of relate to the same issues that have been considered by the Administrative Court. This claim should be struck out both as an abuse and because there are no reasonable grounds for bringing it.

The Article 3 breach is described as occurring because the police have contested matters all the way to court to stop the victim from obtaining justice which is “inhuman and degrading”.

The Defendant maintained that this Article was inapplicable to the events described. The threshold for applicability to conduct which is said to be “torture” or “degrading” is nowhere near as low as the events described in this claim. Those events include circumstances where officers responded to a 999 call, arrested a suspect, investigated a complaint and concluded there was insufficient evidence to charge. Unhappiness with the failure to charge does not engage Article 3 rights, the Defendant submitted.

I do not seek to be dismissive of the level of emotional pain which the Claimant says he is suffering as a result of the failure of the police to prosecute. However, applying correct interpretation of the law, Article 3 rights are not engaged in this claim; there has not been the type of “torture” that is envisaged by the Convention, the Administrative Court has already held that the claim is brought substantially outside the one year time limit applicable to the Act and has also stated that in any event the claim is “unarguable”. So for all those reasons the claim must be struck out.

Article 5 refers to the right to liberty and security, and has been pleaded as a failure of the police “to obtain a Restraining Order to stop the thug, William Balmain from visiting the home of the claimant.”

The Defendant says that this claim is incoherent as the purpose of Article 5 is to protect an individual from unreasonable detention, rather than to protect personal safety.

I cannot disagree with the Defendant as to their interpretation of the Article which is that is recognised by the legal system. Plainly the Article does not apply to the facts of this case. Paragraph 46 has to be struck out as it is bound to fail. Furthermore the reasons at paragraph 73 above also apply.

The Claimant was keen to emphasise that he had been advised to pursue this claim by a lodger with legal training who considered the claim was meritorious. The Claimant wants to go to trial so the facts can be established, and the police officers concerned with the incident can explain their “laziness” and why they misled him by stating initially that they would prosecute and then change their mind. He says he continues to feel unsafe around his half-brother and has been clear in his submissions to the Court that through this action he was hoping to achieve wider protection for society generally, not just for him.

Having completed the legal analysis of the claim. I do consider it appropriate to recognise that I am left in no doubt that the Claimant has been deeply affected by the unhappy family incident that the police were asked to attend on 24^th November 2020. The Court is in no way seeking to disregard either his trauma, or his wider aims for public good, but this legal action is not the answer to those issues. Despite the Claimant’s deeply held convictions about what he considers to be the unfairness and unlawful nature of the treatment he has received following his 999 call to the police, there is no realistic prospect of success for any of the claims that he has made, and no compelling reason why the case or issues should be disposed of at trial. There is no lesser step that can be directed that would meet the requirements of the overriding objective of the Court when managing cases justly and at proportionate cost. The whole purpose of strike out and summary judgment procedures is to “grasp the nettle” early on in proceedings, wherever possible, to avoid wasted time, costs and resource for all involved.

This Court cannot change public policy making on thresholds for charging suspects.

The Claimant still has the option of mounting a private prosecution if he wishes, which was his intended course of action, he asserted, when making a Subject Access Request for the police file. I agree with the Defendant that he can resubmit his request for the file, if he chooses to do so.