01 July 2008

IPCC response to judicial review pre-action letter

I received a response from the Independent Police Complaints Commission to my letter before claim. The IPCC’s senior lawyer, Mr Guido Liguori, has conceded important points in my favour, although he tries to rubbish my grounds for bringing this action against the IPCC. This is the letter Mr Liguori sent me:

Independent Police Complaints Commission
90 High Holborn
London WC1V 6BH

Tel: 020 7166 3000
Fax: 020 7404 0430
Minicom: 020 7404 0431
Email: enquiries@ipcc.gsi.gov.uk
Web: www.ipcc.gov.uk

DDI: 020 7166 3225
Email: guido.liguori@ipcc.gsi.gov.uk

Mr. Michael J Smith

Friday, 27 June 2008
Our reference: 2008/007545

Dear Sir,

The claimant
As above

Guido Liguori
Senior Lawyer
Directorate of Legal Services
90 High Holborn
London WC1V 6BH

Reference details
Guido Liguori 2008/007545

The details of the matter being challenged
The Dispensation decision made by the IPCC on 4 June 2008

Response to the proposed claim
Your complaint was dispensed with on two grounds. These were
a) delay
b) Abuse of the complaints process

As I understand your complaint, it is as made by you on the on-line complaints facility offered by the MPS. The substance of your complaint is that in October 2007, through the statement of Mr ……, you obtained information that a document which you say was a critical part of the case against you was misrepresented to the Court that tried you. You argue that the police officers involved in the prosecution perverted the course of justice. You also argue that other agencies were involved. However, the police complaints system does not extend to these agencies and as such they do not fall to be considered as part of your complaint.

Taking the delay point first, your argument appears to be that the evidence of Mr. …… was not available to you until October 2007 and that this was the earliest date upon which you had evidence to confirm what you suspected all along. You argue that the date from which the 12 month period should be calculated is therefore this date and not the date that you were tried. Mr Stacey in his letter to you says that “[the] incident giving rise to your complaint was your trial in 1993”. This would be correct if on the information supplied, there was material to suggest that you were, in 1993 and in the years that followed, asserting that the police had perverted the course of justice. That assertion was not available in such direct terms on the background papers supplied and so arguably it was not open to us to say that 14 years had passed since the incident that is now being complained of.

However, the MPS did extract details from your web pages in their submission to us where it is clear that you assert that there was a cover up and that you were at least aware of this in 2006 (if not before) when you received the CCRC report. Additionally it appears that you became aware of the matters now raised as a complaint when you spoke to the Technical Director for Marconi in January 2007.

Whilst it may not be open to say that “over 14 years have elapsed since the incident” it is certainly open to the IPCC to take the view that matters were known to you for some time before you made the complaint. It is quite clear that you were fully aware of the substance of the complaint by the very latest, January 2007. The complaint you made was lodged in April 2008 and as such you would be outside of the 12 month time limit. It is however arguable that you were aware of the issues for longer and this brings me to another point.

This is that to accept your argument that you were only aware of matters in October 2007 would require the legislation that covers dispensation on this ground, to be interpreted in a very wide manner.

Paragraph 7 to schedule 3 of the Police Reform Act 2002 sets out the frame work for dispensations. It states at paragraph 7 (1) “if......... The appropriate authority considers (a) that it should [apply for a dispensation] and (b) that the complaint [is specified by regulations] the appropriate authority may apply to the Commission [for a dispensation]”.

Regulation 3 (2) (a) of the Police (Complaints and Misconduct) Regulations 2004 specifies “[t]hose complaints ..... where the appropriate authority considers that .... more than 12 months have elapsed between the incident or latest incident giving rise to the complaint and the making of the complaint and that either no good reason for the delay has been shown or that injustice would be likely to be caused by the delay”.

For your argument to succeed it would be necessary to read into the legislation a need for evidence to support a complaint. There is no scope for this and a plain reading of the language used makes it clear that the complaint relates to an incident. Your incident would be the process by which you were convicted and the manner in which evidence was presented. This being the case, it would be the events of 1993 that would be the incident and not what you have discovered since. You assert that Mr. Stacey has made an error of fact by not taking the date of 11 October 2007 as being the relevant date. That is in my view the wrong date. You knew - or had suspicions - about how the case was prepared and presented before this date. This date (11 October) is the date when you first had your evidence.

I am satisfied that the complaint (that officers perverted the course of justice) was known to you before 11 October 2007. As stated above you knew this in 2006 (if not before) but if I am wrong about this, then it is clear that you knew this after you had spoken to the Technical Director in January 2007.

The determination of delay is only a part of the dispensation ground under regulation 3. Mr. Stacey was required to consider either “no good reason .... has been shown [for the delay]” or “that injustice would be likely to be caused by the delay”.

The letter that DCI Lawrence sent to you makes it clear that the limb that is being relied upon is that you have not provided any good reason for the delay but Mr. Stacey has determined this aspect of the dispensation by reason of injustice. Whilst he is entitled to do this, it is at least arguable that his decision to do so is illegal on the basis that Mr. Stacey may have misapplied the law.

The IPCC statutory guidance (5.8.2 Dispensations) states

In such cases the presumption will be made that it is not fair for those complained against if a complaint is made more than 12 months after an incident. Each case will however be considered on its merits and the IPCC will take into account the reasons given for the delay and the public interest in the case.

The MPS did not as part of their application provide material to support the injustice ground and for it to have been properly considered it would have been necessary for Mr Stacey to balance public interest in proceeding with a complaint against the injustice to the officers concerned. The only material available to Mr Stacey was the retirement of the officer and the possibility that the case papers no longer existed. I am not satisfied therefore that ground 3 (2) (a) was properly applied.

I now need to consider the second ground upon which the dispensation was granted. Mr Stacey is quite right when he says that only one ground needs to be made out. The second ground considered relates to 3 (2) (d) “the complaint is vexatious, oppressive or otherwise an abuse [of process]”.

It is only the latter part of the ground that concerns your application, namely abuse. Mr. Stacey does not consider vexatious or oppression and therefore neither will I.

What I will say at the outset is that I agree with Mr. Stacey’s arguments in support for finding that your complaint is an abuse of the complaints process because the scheme was not set up, or intended, to provide an additional avenue for aggrieved defendants to proceed under when trying to overturn convictions. The correct avenue is the CCRC.

Looking at your complaint as a whole, you state; that the restricted document was a key exhibit; that the prosecution ambushed the defence; that 16 potential witnesses were not interviewed as witnesses by the police or called to give live evidence and that there may have been material non-disclosure of the fact that the document had an obsolete classification. You also imply that Dr. Lewis may have perjured himself. Save for the last matter, your complaint is in essence directly related to the trial process and how that was regulated. Your defence team were at liberty to speak to the 16 potential witnesses and they were additionally at liberty to challenge the admissibility of the further evidence provided by Dr. Lewis. The trial judge would also not have allowed matters to proceed unfairly. The additional evidence of Dr. Lewis on that face of it appears to be called in rebuttal to your defence. Such evidence would generally need leave of the Court to be admitted as evidence. Your defence team would have been allowed to make submissions to the judge.

As regards the suggestion that Dr. Lewis may have committed perjury, this is not a matter that the complaints system was intended to deal with. It is outside the scope of the Police Reform Act.

Turning to your pre-action letter and email dated 2nd June 2008 (which email was not brought to Mr Stacey’s attention before he made his decision) it is quite clear that the matters that you are raising are trial issues and not matters of police misconduct. You say for instance in your email that the police did not interview any witnesses who “knew the truth because that would have destroyed the [Crown’s] case”. This ignores the fact that the CPS and Counsel are responsible for presenting the evidence at Court. The police do not direct any aspect of a prosecution. Additionally, at the risk of labouring the point, your defence team could have addressed this at your trial.

You also state in your email that a complaint may or may not uncover evidence useful to your cause. It is quite clear that your primary motivation is to have the conviction over-turned and to do this you are relying upon the complaints system.

Also, in your pre-action letter you state “The NEW (sic) evidence was in fact available before my trial and has the capability to clear my name if investigated”. This additionally shows your motive for the complaint but additionally it confirms that if the material was available prior to your trial then it can hardly be classified as fresh evidence. It also means that it may have been available to your defence team as well. I do not know why they did not have access to it.

Turning now to the 5 points that you raise at paragraph 5 I can comment as follows

(i) Error of fact - For the reasons outlined above, the IPCC does not agree with you that the relevant date is 11 October 2007.
(ii) Ignored relevant considerations - For reasons outlined above, the matters that you have raised are all matters that should and could have been dealt with at your trial and later through the appeal avenues open to you.
(iii) Irrationality - For reasons outlined above, the matters that you have raised are all matters that should and could have been dealt with at your trial and later through the appeal avenues open to you.
(iv) Fetter - the IPCC has properly applied its discretion in considering the application for dispensation. The reasons for this are set out above.
(v) Natural justice - For reasons outlined above, the matters that you have raised are all matters that should and could have been dealt with at your trial and later through the appeal avenues open to you. It is not the IPCC's role to undertake a investigation into the integrity of the trial process. That is for other bodies to do.

Details of the action that the defendant is expected to take
(a) The defendant was asked to consider a dispensation and as such it would not itself investigate matters. Additionally, the claimant is asking the IPCC to undertake a review of the evidence with a view to determining whether he had a fair trial
(b) The defendant is of the view that the Court cannot make the declaration sought.
(c) The defendant denies that the proper remedy is one of damages and in any event the defendant does not believe that it has acted incorrectly in granting the dispensation.

Details of any other interested parties
DCI Lawrence - MPS DPS Customer Service Team

Address for further correspondence and service of court documents
Guido Liguori
Directorate of Legal Services
90 High Holborn
London WC1V 6BH

In closing, I should point out that in my view the force may have erred in their approach to your complaint. In my view, an allegation made that a police officer has tried to pervert the course of justice should be referred as a referable complaint to the IPCC. This was not done. I would suggest that you seek legal advice on this point so that you can consider what action to take, in any.

Yours faithfully
Guido Liguori

Senior Lawyer
Independent Police Complaints Commission (IPCC)

IPCC reply to letter before claim p.1

IPCC reply to letter before claim p.2

IPCC reply to letter before claim p.3

IPCC reply to letter before claim p.4

IPCC reply to letter before claim p.5

IPCC reply to letter before claim p.6