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In R (Cubells) v IPCC [2012] EWCA Civ 1292, the Court of Appeal heard an appeal from Simon J’s refusal of a renewed application for permission to claim judicial review of the IPCC’s decision to reject Mr Cubells’ appeal against Greater Manchester Police’s (GMP’s) determination of his complaint.

Mr Cubbells’ complaint arose from the treatment his late mother had received in hospital. He alleged that his mother had been treated negligently (something the hospital later admitted and compensated him for) and that the hospital had also tried to cover up their negligence.

GMP undertook an investigation to consider whether there had been gross negligence manslaughter. An independent medical expert was instructed and concluded that, while Mrs Cubells’ treatment was below the standard expected, there was no evidence of a cover up and that she would probably have died in the immediate future in any event. The final police report concluded that there was no evidence that Mrs Cubells’ death was due to a criminal act. The medical expert’s report was “central” to that conclusion. It later materialised that the medical expert was missing a potentially significant piece of information about a blood picture.

Mr Cubells complained to GMP about the four officers who had conducted the investigation. He alleged that the investigation was conducted improperly and was not compliant with Article 2 ECHR. The complaint was investigated by GMP’s Professional Standards Branch. It was rejected on the basis that the officers had properly considered Mr Cubells’ allegations of criminal conduct and had diligently examined the facts before concluding that there was no evidence of crime.

Mr Cubells appealed to the IPCC against the complaint decision, as he was entitled to under paragraph 25 of Schedule 3 to the Police Reform Act 2002. He described the investigations as, “factually erroneous, factually flawed, factually deceptive, factually defective, factually slanderous, factually oppressive, lacking in the known about facts and biased in favour of the complained about police officers”. He also alleged that GMP’s Professional Standards Branch was “in cahoots with the accused hospital”.

The IPCC rejected Mr Cubells’ appeal, finding that there was no evidence to suggest that the officers’ actions fell below the standard expected, or that the criminal investigation as a whole was inadequate.

Mr Cubells applied for permission to claim judicial review of the IPCC’s decision. His application was refused on the papers and at a renewal hearing. Mr Cubells sought leave to appeal the refusal decision and was granted leave to appeal on a single ground, namely that the police’s appointed medical expert was in ignorance of potentially important information (the blood picture) at the time she reached her conclusion and that, since the IPCC did not address this issue in its report, it was arguable that its vindication of GMP’s investigation was flawed.

The Court of Appeal (Lord Dyson MR, Davis LJ and Treacy LJ) dismissed Mr Cubells’ appeal on the straightforward basis that his many grounds of appeal to the IPCC did not include any reference to the medical expert’s report ([24] – [25]). The only basis upon which Mr Cubells had been given leave to appeal to the Court of Appeal could not, therefore, be made out.

Commentary

This decision is an unexceptional decision that establishes no point of law. It is notable, however, that the Court of Appeal (at [21]) took the opportunity to endorse the guidance given in R (Muldoon) v IPCC [2009] EWHC 3633 on the Administrative Court’s powers when hearing a challenge by way of judicial review to an appeal decision by the IPCC. In Muldoon, Parker J said:

“[19] The IPCC is an independent statutory appeal body to whom Parliament has entrusted the function of reviewing the findings of investigations into police complaints if that is what an appellant requests. The IPCC’s decisions are likely to involve matters of judgment. For these reasons this court will allow the IPCC a discretionary area of judgment and will not intervene unless satisfied that the IPCC has gone beyond that permissible area to reach a conclusion not fairly and reasonably open to it …..

“[20] It has also been said that the court should not expect or look in the appeal decision for the sort of tightly argued judgment that might be expected of a Chancery judge. On the contrary, what is important and necessary is that the conclusion should be clear and the reasons for those conclusions can be readily understood by the complainant, the police officers concerned and the relevant police authority, who may need to review their procedures in the light of the decision.”

The Court of Appeal also indicated that where an appellant to the IPCC did not have legal representation, it would be wrong for the IPCC to limit the scope of their consideration to the issues raised in the appeal form if other issues had been clearly raised by the appellant in documentation submitted in support of their appeal ([26]). This did not avail Mr Cubells because the point about the medical expert was not “clearly raised” (or raised at all) in the 118 page document that he had submitted with his appeal to the IPCC.

The Court of Appeal had obvious sympathy for GMP and the IPPC, who had (as is not infrequently the case) been deluged with material by the complainant. At [23] the Court of Appeal said:

“…concerns about a cover-up led Mr Cubells to overwhelm the PSB of the GMP (and subsequently the IPCC) with long and elaborate documents, often expressed in extreme language. This has resulted in the only issue that is relevant for present purposes being buried under the sheer volume and complexity of the documentation.”