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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> McKenzie, R (on the application of) v Department for Constitutional Affairs [2007] EWHC 7 (Admin) (11 January 2007) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2007/7.html Cite as: [2007] EWHC 7 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		11 January 2007

Kenneth Parker QC:

Introduction

1. This is an application, lodged on 14 December 2005, by Peter McKenzie ("the claimant") seeking permission to apply for judicial review of a decision by the Department for Constitutional Affairs ("the DCA") taken on 26 March 2004 through an official acting on behalf of the DCA. The challenged decision rejected a complaint by the claimant concerning the conduct of HH Judge Medawar QC at a hearing held at the Central London County Court on 30 and 31 July 2003 at which the claimant appeared in person to resist (unsuccessfully in the event) applications for summary judgment and/or strike out of claims in an action CL/2116620 brought by him against Sir John Stevens in his capacity at that time as Commissioner of Police of the Metropolis. In short, in this application the claimant alleges that the decision of 26 March 2004 in rejecting his complaint against HH Judge Medawar QC was irrational and so unlawful.

The procedural history

2. The claimant was arrested on 5 September 1997 on an allegation of attempted street robbery. The alleged victim made a statement on 6 September 1997 and the claimant was interviewed under caution on 16 September 1997. The matter finally came to trial at the Crown Court on 25 March 1998, but the alleged victim did not attend court on that day, no adjournment was sought and the claimant was acquitted without a substantive trial. In the light of his acquittal the claimant brought a civil action against the Commissioner of Police of the Metropolis alleging false imprisonment, malicious prosecution, entrapment and negligent conduct of the criminal investigation of the charges on which he was indicted. The Commissioner applied for summary judgment or strike out of these claims, save that relating to false imprisonment, and the applications were heard by HH Judge Medawar QC sitting at the Central London County Court over the course of two days on 30 and 31 July 2003. Judgment was given at the conclusion of the hearing in favour of the Commissioner against the claimant on all claims, including the claim of false imprisonment which the learned judge struck out on his own motion.
3. On 15 December 2003 the Court of Appeal refused the claimant permission to appeal against the order of HH Judge Medawar QC.
4. Meanwhile on 21 August 2003 the claimant sent a letter to the DCA complaining about the conduct of HH Judge Medawar QC during the hearing in July 2003. On 26 March 2004 Mr Silvester replied on behalf of the DCA and dismissed the claimant's complaint. The letter of 26 March 2004 concluded:

"The Lord Chancellor takes complaints about racism seriously, and consequently your complaint has been carefully considered. However, the conclusion is that there is ample evidence on the tape that the judge tried to be as helpful to you as he possibly could. It is unfortunate that the comment "You don't seem unintelligent, I don't know what level of education you had, but you seem to be capable of understanding" is open to misinterpretation, but our conclusion is that there was no intention by the Judge to act or speak in a racist way, and your complaint is therefore dismissed".

5. The letter of 26 March 2004 was sent in error to the wrong address and was not re-sent until 28 January 2005.
6. The claimant then on 23 February 2005 brought civil proceeding in the Central London County Court against the Lord Chancellor in his official capacity and the DCA, alleging that the investigation into his complaint against HH Judge Medawar QC had been carried out in a manner that was contrary to section 20 (1)(b) and/or section 20(2)(g) of the Race Relations Act 1976 and/or that the investigation was negligent, in part because it was carried out in a manner which contravened section 20(1)(b) and/or section 20(2)(g) of that Act. The defendants applied to strike out those proceedings.
7. On 17 June 2005 HH Judge Mackie QC struck out the claimant's claim, giving a fully reasoned judgment. The claimant sought permission to appeal against that order, but on 19 October 2005 Mr Justice Silber refused permission to appeal, again giving a fully reasoned judgment.

This application

8. On 14 December 2005 the claimant filed this claim for judicial review against the DCA, seeking to challenge the decision exonerating HH Judge Medawar QC of professional misconduct at the hearing of 30/31 July 2003. On 3 March 2006 Mr Justice Collins refused on the papers permission to apply for judicial review. The claimant renewed his application for permission at an oral hearing before me on 16 June 2006. At the hearing the claimant indicated that he had already made arrangements to hear the tapes of the relevant hearing before HH Judge Medawar QC. It seemed to me, therefore, that if the claimant heard the tapes he might very well decide not to pursue his application for judicial review in whole or at least in part, particularly as he might with the passage of time have been able to listen perhaps more objectively and dispassionately to the record of the relevant proceedings. I therefore adjourned the application for permission to allow the claimant time to listen to the tapes and then to consider whether or to what extent he wished to pursue his application.
9. The claimant did listen to the tapes, in the company of a solicitor, as is set out in witness statements dated 29 June 2006. On 5 August 2006 the claimant amended his original claim in the present proceedings by withdrawing certain allegations and by refining the claim in the light of what he had heard on the tapes.
10. The application for permission was restored before me at an oral hearing on 14 August 2006 attended both by the claimant and by the DCA, appearing by counsel instructed by the Treasury Solicitor. Counsel for the DCA submitted for that hearing a written outline contending that permission should be denied on the grounds of delay, lack of merit and abuse of process. I took the view that the best course was for me to hear the tapes for myself to decide whether there was any merit at all in the application, particularly because the claimant appeared to be determined to seek to continue with his application, there was a prospect that if the matter were pursued and were allowed to proceed, a higher court might feel that it was appropriate to listen to the tapes, and it would be a more efficient use of judicial resources if I myself did so at the earliest opportunity. Therefore I made an order adjourning the application for permission to enable me to receive and hear the tapes. I indicated that I would hand down a written judgment after hearing the tapes and that no further attendance on the application for permission would be necessary.
11. On 31 August 2006 the Treasury Solicitor duly sent the relevant tapes to the Administrative Court. Unfortunately the tapes were by mistake placed in a draw in the office of the Court and no action was taken on them. At my next sitting in the Administrative Court in November 2006 I made enquires as to the state of the case, believing in the absence of any communication that it might have been amicably resolved. This proved not to be so, and after further investigation the tapes came to light and were given to me. On 1 December 2006 at a short hearing I explained the position to the parties and apologised for the administrative error made by the Court which regrettably had caused delay in my dealing with the application for permission.

The merits of this application

12. As explained by Mr Justice Silber at paragraph 4 of his judgment of 19 October 2005, the original complaint of the claimant to the DCA about the conduct of HH Judge Medawar QC on 30/31 July 2003 was dealt with by the Judicial Complaints Unit of the DCA, and the learned judge sets out in that paragraph the procedure which was adopted in the present case. Complaints about judicial conduct are now of course regulated under the Constitutional Reform Act 2005, there is an Office for Judicial Complaints which handles complaints under the provisions of regulations made by the Lord Chief Justice (The Judicial Discipline (Prescribed Procedures) Regulations 2006), and there is also a Judicial Appointments & Conduct Ombudsman to whom complaints against the Office can be addressed. None of these procedures was in force and operating at the time of the complaint in issue here, and judicial review appears to have been the only remedy available to a person aggrieved by a decision of the DCA rejecting a complaint about judicial conduct. My function in this application is to decide whether there are arguable grounds in public law for challenging the rationality of the decision taken by the Judicial Complaints Unit of the DCA dismissing the claimant's complaint.
13. It is important at the outset to appreciate the nature of the hearing on 30/31 July 2003 before HH Judge Medawar QC. On the face of it the claimant was confronted with a daunting uphill task. To maintain his claim for malicious prosecution he had to satisfy the learned judge that there was evidence fit to be left for a jury that the prosecutor had no reasonable and probable cause for bringing and continuing criminal proceedings against the claimant. The hurdle to overcome is a very high one: see the test set out in Hicks v Faulkner (1878) 8 QBD 167 at 171, by Hawkins J, approved by the House of Lords in Herniman v Smith [1938] AC 305. In the claimant's case the prosecutor had plainly acted on the victim's statement and did not believe the innocent explanation given by the claimant. In effect the claimant was arguing that no honest and reasonable prosecutor, making proper enquiries, could have rejected his version of events. But that is far from an uncommon scenario. As to entrapment, there is no such independent tort. As to negligent conduct of the criminal investigation, a duty of care towards a suspect could only be owed in the most exceptional circumstances: Elguzouli-Daf v Commissioner of Police for the Metropolis [1995] QB 335. As to false imprisonment, under PACE the police may hold a suspect for a preliminary reasonable period, and the claimant had been held in custody for no more than a few hours before his release.
14. Listening to the tapes of the proceedings I obtained the clear impression that the learned judge had already before the hearing considered in some detail the applicable legal principles, the (largely) undisputed facts of the case and the respective arguments. He had not found the claimant's pleading, which ran to 50 pages, an easy document, but distilling from it the essential points he had not found any material that could begin to support the claims. A judge who has carefully pre-read the material and who is familiar, as was the learned judge, with the criminal procedural background to the claims can hardly avoid forming a provisional view of the merits. I see nothing objectionable in a judge at the hearing making known, even robustly, the nature of his provisional view, so long of course as he or she does not demonstrate bias, incompetence, prejudice or hostility, and shows courtesy and patience, in particular to litigants, advocates and witnesses. Indeed judges are now encouraged by legislation, procedural rules and by statements of practice by higher courts to take a pro-active role in the management of trials, which would include making known at the earliest opportunity any provisional view formed by the judge with the object of focussing minds on the salient points and of promoting an efficient and expeditious hearing.
15. The learned judge in this case did at the outset of the hearing indicate in fairly strong terms his provisional view that the claimant's claims had no merit, and on a number of occasions during the course of the hearing he did reiterate that view. However, he maintained throughout a courteous and dignified tone. On several occasions he said that the claimant was at liberty to present his arguments in whatever order he preferred, and to expand on points made in his pleading or to raise any new points that were relevant to the issues.
16. There is a fine line to be drawn between a judge, on the one hand, indicating to a litigant that the judge is not impressed by the strength of a particular argument or arguments and, on the other, giving the impression that no matter what the litigant might say his or her case will not find favour with the tribunal. There is also a fine line between a judge drawing the attention of a litigant, particularly a litigant in person, to difficulties in his case, and on the other hand adopting an excessively didactic, overbearing or contemptuous attitude towards the case being presented.
17. On one or two occasions the learned judge did use strong language in commenting upon the claimant's arguments. For example, he referred to one analogy as "nonsense", and to another argument as "absolutely irrelevant". Another judge might simply have chosen to express a strong provisional view on the material points and to confine himself to listening to the claimant's arguments, even if he thought them insubstantial and on occasion repetitive, mindful that he was speaking to a litigant in person and not to a professional advocate who would be used to, and must with fortitude bear, such disparaging observations as from time to time fall from the bench on the apprehended frailty of his case. However, looking at the matter in the round, I would conclude that the learned judge was seeking no more than robustly to emphasise to the claimant the formidable difficulties which he faced, with a view to obtaining from him any further points that might save any of his claims from dismissal.
18. In this connection it seems to me that, given the draconian step of summary judgment or strike out that seemed virtually certain, the judge was genuinely and legitimately concerned that the claimant should understand precisely why the judge regarded the claims as unsustainable, so as to give the claimant an opportunity to put forward any new points or any points from his pleading that the judge might have overlooked or not properly understood. By way of illustration, the claimant alleged that the prosecutor had no belief in the claimant's guilt because (and this was in dispute) he had offered to resolve the matter by administering a caution on condition that the claimant admitted guilt. This was a hopeless argument. The claimant persisted with it and the judge sought firmly to explain why it was hopeless.
19. To sum up, I believe that the claimant had an entirely fair hearing and that the judge's general conduct at no stage overstepped the line into any impropriety. Certainly there is no arguable basis for claiming that the DCA were irrational in exonerating the judge from any misconduct, and that is the question which I must address.
20. Before reaching a final conclusion I should mention certain specific complaints raised by the claimant. The claimant does not allege any specific misconduct on the first day of the hearing, although he does state that the judge appeared "biased" against him. I have already explained in detail how and why the judge came to express his provisional view about the merits of the claims before him, and I do not add anything on that aspect. On the second day, when the claimant began to present his case in detail, it does seem that at one point the judge had the wrong document in front of him when the claimant was going through his particulars of claim. In my view, this had no significance whatsoever. As I have said, the judge had already considered the points made by the claimant in his pleadings and was seeking from the claimant an explanation of how he said that any of these points supported what he needed to show to justify his claims. It is plain from the tapes that the judge was fully following the claimant's arguments, whether or not he had the correct document in front of him.
21. It is correct that the judge criticised the length of the pleading. However, he did so temperately. He asked whether the claimant had taken legal advice, because the pleading did not appear to have been professionally drafted. However, his tone was polite and not at all "derisive", as alleged by the claimant.
22. The claimant also alleges that he felt his efforts to direct the judge to his pleadings were "almost futile". However, as I have explained, the judge had read the pleadings and had made clear that he had done so. He was inviting the claimant to explain how the points in the pleadings supported in law his claims and was indicating to the claimant that he was not being assisted by the claimant re-directing him to material with which he was already familiar.
23. The main cause of specific complaint appears to be in regard to the remark made by the judge that the claimant did not seem "unintelligent". The decision letter set out the relevant remarks in full and recognised that it was regrettable that the judge had made these remarks but concluded that there were no grounds for believing that they were in any way racially motivated. In retrospect one can see that the remarks might have been misinterpreted by a litigant as patronising or demeaning and might have given rise to offence. However, in my view, the remarks have to be seen in their proper context. The judge, as he expressly stated, was concerned that the claimant should be devoting so much of his physical and emotional resources in the pursuit of what the judge (correctly) saw as hopeless litigation. The judge believed, and said, that this was a "sad" situation. He then went on to say that the claimant did not appear "unintelligent". In the context the judge was in effect observing that sometimes hopeless litigation is brought because litigants do not perhaps have the intellectual capacity to appreciate the folly of their conduct. By contrast the claimant did not strike the judge as being in that category. In other words the judge was expressing genuine puzzlement as to why someone having the apparent intellectual ability of the claimant came to be pursuing such futile claims. The judge was seeking to encourage the claimant to transfer his energies to the pursuit of other potentially more rewarding life goals. For an objective observer understanding the full context, the judge's remarks could not reasonably be seen as demeaning or offensive. In that context I believe that they could not reasonably be treated as constituting judicial misconduct and that the DCA not only reached a rational but also a correct appraisal of them.
24. Finally, there was a short discussion before the judge concerning the claimant's ability to meet any costs order. The claimant alleges that the judge was laughing at him during that discussion. I have listened carefully several times to this part of the tapes. The discussion was entirely serious, the judge's demeanour was wholly correct and he did not laugh at the claimant during the course of the relevant discussion.

Conclusions on the merits of the application

25. For the above reasons I conclude that there are no arguable grounds for challenging the relevant decision of the DCA. I have described in some detail why I have reached that conclusion, but it would be wrong to infer from the length of this judgment that the application has any merit. On the contrary I have reached the firm view that, once the nature of the claimant's arguments are understood and analysed, the application is one totally without merit. I am therefore obliged by CPR r 3.11 to certify it as such, which I hereby do. At paragraph 10 of the outline submissions on behalf of the DCA it is indicated that in the light of any such certification the DCA will consider whether any further application may become necessary, but I say no more at this stage on that aspect.

Abuse of process/delay

26. For the sake of completion I should say that I have also considered the above questions of abuse of process/delay. The decision challenged was taken on 26 March 2004, but owing to administrative error the letter was not sent to the correct address until 28 January 2005. As explained earlier, the claimant on 23 February 2005 began a civil action against the DCA alleging breaches of the Race Relations Act 1976. There is a strong public policy that there should be finality to litigation: see Henderson v Henderson 91843) 3 Hare 100 and the other authorities cited at paragraph 44.45 and following of Phipson on Evidence, 16^th edition 2005. In my judgment it was incumbent on the claimant, if he wished to attack the rationality/legality of the decision, to do so within the prescribed time limits for bringing proceedings for judicial review. That would then have enabled sensible case management decisions to be taken, including considering the questions whether any application for judicial review should first be decided before any civil action was continued, and how best to organise the progress of two sets of proceedings which had strong overlapping elements.
27. Instead the claimant chose first to seek to impugn in a civil action the conduct of those who were responsible for taking the challenged decision and then, when that action was finally brought to an end by exhaustion of all appellate channels on 19 October 2005 (over 8 months after the decision letter had been sent) he waited almost a further two months before bringing his application for judicial review. I see no justification for such a lengthy delay and, in my view, it would be contrary to the important principle to which I have referred above, and also oppressive to the defendant in these proceedings, to allow the claimant to pursue his challenge to the decision in the piecemeal way that he has chosen to adopt. For those reasons also I would dismiss this application for permission.
28. I directed that to save any further unnecessary expenditure of costs in this matter that any further applications in the light of this judgment (for example, in respect of costs) should be made by way of short written submissions. I further direct that any such submission should be lodged with the Court within 7 days of receipt of this judgement.
29. I would also ask that the Treasury Solicitor ensure that a copy of this judgment be sent to HH Judge Medawar QC and to the senior presiding judge at the Central London County Court.