18 June 2008

Judicial Review against the IPCC - letter before claim

With the IPCC’s rejection of my correct request for a Professional Standards investigation of the Police’s behaviour in my case, there is now no other alternative but to start Judicial Review proceedings against the IPCC.

It is regrettable that more time and effort will be required (wasted), in order to force these organisations to accept that the Police’s role in my prosecution in 1992/93 was unprofessional, nevertheless that is apparently the way the IPCC wish to proceed. No doubt they will do all in their power to prevent the public learning how the Police really behaved in my case, and that rather than acting with honesty they were acting incompetently. Below is the basis of my case for a Judicial Review:

Letter from: Michael John Smith
Dated: 16 June 2008

To: Independent Police Complaints Commission
90 High Holborn
London WC1V 6BH

Your Ref: 2008/007545

Dear Sirs,

Letter before claim: Judicial Review

1. Proposed defendant:

Independent Police Complaints Commission

2. Proposed claimant:

Mr Michael John Smith

3. Reference details

(i) A letter from the defendant dated 4 June 2008. (1)

(ii) All Police Witness Statements relevant to Exhibit pp.51-59. (2)

(iii) All Police Witness Statements of Professor Merion Francis Lewis. (3)

(iv) Transcript of the trial testimony of Professor Meirion Francis Lewis. (4)

(v) Statement of an old work colleague. (5)

4. The details of the matter being challenged:
The letter from the IPCC rejects my call for an investigation into the conduct of Police Officers regarding the collection of the sworn statements of Professor Meirion Francis Lewis, and in not checking the veracity of Professor Lewis’s claims with qualified experts; especially my work colleague whose name appears on the original document.

The IPCC state the following:

• That your complaint is out of time, namely; more than 12 months have elapsed between the incident, or the latest incident, giving rise to the complaint and the making of the complaint and either that no good reason for the delay has been shown or that injustice would likely be caused by the delay.

• That your complaint is vexatious, oppressive or an abuse of process, because the correct avenue for challenging the findings of a court would be via the CCRC, unsuccessful attempts to resolve these matters through the correct channels has led to the police complaints system being used as another option.

• That it is not reasonably practicable to investigate your complaint as no electronic records of the case exist, nor is it clear at this time whether any papers have been retained.

In order to grant a dispensation application the Commission need only be satisfied that one of the grounds for dispensation, set out in the Police (Complaints and Misconduct) Regs 2004 are made out. I have carefully considered your complaint and the application made by the MPS, and have decided to grant the application to dispense with your complaint for the following reasons;

• The incident giving rise to your complaint was your trial in 1993. Given over 14 years have elapsed since this incident, I consider that injustice would likely be caused by this delay if your complaint were to now be investigated.

• Your complaint relates to evidence that was presented at your trial, and the conduct of the trial itself. In your complaint you stated the CCRC had been investigating your complaints that your trail was unfair, but they have failed to find any new evidence about the anomalies you drew their attention to. I agree with the MPS that the correct process for addressing concerns you have about the evidence produced at your trial would be through the CCRC. The police complaints system was not intended as an alternative means to review decisions made during criminal trials. Opportunities to challenge evidence at the hearing, such as failure to take statements from witnesses, would have been available during the trial, and could have been commented on by the CCRC. In the absence of clear evidence the police perverted the course of justice, and that these matters have already been considered by the appropriate bodies, I consider to address the same issues again via the police complaints system would be an abuse of process.

5. The issue:
The issues raised by the IPCC in their letter of 4th June 2008 basically resolve to:

(a) That I am out of time.

(b) That I am being vexatious, oppressive or that I am abusing proper process.

(c) That the issues I am raising are not reasonably practicable to investigate.

(d) That the issue of Professor M. F. Lewis fabricating his testimony regarding the ALARM missile should be overlooked, even though it provided the only technical justification for my prosecution under the Official Secrets Act.

(e) That the IPCC accept that they have discretion to investigate but have refused to exercise it in my favour.

I claim that the IPCC has:

(i) Made an error of fact (6) when they concluded that I am out of time, on the basis that more than 12 months has elapsed. They are denying the fact that my old work colleague made a statement on 11th October 2007, which completely refutes the testimony of Meirion Francis Lewis and which is within the specified period and is a matter of fact.

(ii) Ignored relevant considerations. (7) The IPCC have refused to look at my work colleague’s signed statement of the 11th October 2007. Because of that refusal the IPCC can maintain that all Police statements given by Professor M. F. Lewis at my trial were true. However, the IPCC’s wilful refusal to view my colleague’s statement, and to contrast it with Professor Lewis’s statements, has a material influence on the prominence of Professor Lewis’s statements. I do not ask the Police or the IPCC to determine whether Professor M. F. Lewis lied, although it may well be possible to do that, rather I seek to establish that Professor Lewis’s statements are false and irrelevant, and that the Police made no effort to check the veracity of Professor Lewis’s statements, which were made with an improper purpose and materially influenced the decision in my case.

(iii) Acted irrationally (8) by refusing to investigate the merits of my work colleague’s statement, revealing that Police Exhibit pp.51-59 was not a secret. The IPCC is acting irrationally by ignoring the fact that my colleague, one of the original recipients of the supposedly secret document, concludes that Exhibit pp.51-59 is not a secret.

(iv) Since the IPCC admits that it has a discretion to allow an investigation, they cannot invent excuses or fetter (9) any proposed investigation with creative internal policies or obligations to others such as the CCRC.

(v) Denied to me natural justice,(10) by refusing to investigate my work colleague’s position at the time of my prosecution with the statement he signed on the 11th October. The NEW evidence was in fact available before my trial, and has the capability to clear my name if investigated.

6. The details of the action that the defendant is expected to take:
Based on section 5 above, I expect the defendant to remedy their denial to investigate the NEW evidence of my old work colleague and to contrast such NEW evidence with the statements provided to prosecutors at my trial, clearly demonstrating that no secret parts were ever present in any documents in my possession or that were presented at my trial.

In the alternative I ask for two further orders from the Court under the following headings:

1. A declaration from the Court that Meirion Francis Lewis’s statements reveal inconsistent evidence for the truth of his statements.

2. Punitive damages for unconstitutional actions by the servants of government. The sum of £50,000 is sought. (11)

7. The details of the legal advisers, if any, dealing with this claim:


8. The details of any interested parties:


9. The details of any information sought:


10. The details of any documents that are considered relevant and necessary:
I attach to this protocol letter copies of the IPCC’s letter, all Police Witness Statements by Professor Meirion Francis Lewis, and the statement by my old work colleague. I disagree with the IPCC’s belief that records are not available, and I can provide copies of all other documents on request.

11. The address for reply and service of court documents:

M. J. Smith’s home address

12. Proposed reply date:

30 June 2008 (14 days)

Yours sincerely,
Michael John Smith

(1) Exhibit A: identified by reference number 2008/007545, and signed by Adam Stacey, Casework manager.

(2) Exhibit B: available on request.

(3) Exhibit C: Police Witness Statements of Professor Meirion Francis Lewis

(i). Dated 11 August 1992 (pp.111-112), witnessed D.S. A. Walsh

(ii). Dated 3 November 1992 (pp.113-114), witnessed D.S. S. Stafford

(iii). Dated 20 May 1993 (p.263), witnessed D.S. S. Stafford

(iv). Dated 23 July 1993 (pp.313-314), witnessed D.I. M. Morrissey

(v). Dated 11 October 1993 (p.349), witnessed ?

(vi). Dated 11 October 1993 (pp.350-351), witnessed ?

(4) Exhibit D: available on request.

(5) Exhibit E: Statement of my old work colleague dated 11 October 2007.

(6) Since my colleague’s new evidence is fact it is impossible for the IPCC to claim the fact does not exist.

R v Secretary of State Ex Parte Khawaja [1984] AC 74
R v Hillingdon Borough Council ex Parte Pulhofer [1986] AC 484

(7) Had the IPCC given consideration to my colleague’s statement, then it would have materially influenced their decision.

R v ILEA Ex parte Westminster City Council [1948] 1 KB 223
Padfield -v- Minister of Agriculture, Fisheries and Food [1968] AC 997; [1968] UKHL 1

(8) The IPCC’s decision not to investigate my colleague’s statement is outrageous, defies logic, and no sensible person would have arrived at such a decision.

Associated Provincial Picture Houses v. Wednesbury Corporation [1948] 1 KB 223

(9) Lavender v Minister of Housing and Local Government [1970] 1 WLR 1231
British Oxygen v Minister of Technology [1971] AC 610

(10) McInnes v Onslow-Fane [1978] 1 WLR 1520

(11) Rookes v. Barnard [1964] AC 1129, [1964] 1 All ER 367