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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 >> Conaghan, R (On the Application Of) v Independent Police Complaints Commission [2013] EWHC 3994 (Admin) (30 October 2013) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2013/3994.html Cite as: [2013] EWHC 3994 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Manchester Civil Justice Centre 1 Bridge Street West Manchester Greater Manchester M60 9DJ
		30th October 2013

1. MR JUSTICE SUPPERSTONE: Mr Conaghan challenges the decision made by the Independent Police Complaints Commission on 27th November 2012 in relation to a complaint that he made in respect of his arrest on 30th March 2011.
2. The background to the complaint is that in May 2009 the claimant's father was arrested and subsequently charged with upholding indecent images of children. On 22nd December 2010 he was convicted at Carlisle Crown Court on 26 counts of making indecent images of children. He was given a 12 month suspended sentence and ordered to sign a sex offenders protection order, the conditions of which required him to have monitoring software on any computer to be used by him.
3. On 1st March 2011 the claimant's father was again arrested following allegations that he had inappropriately touched the claimant's niece. At that time a laptop belonging to the claimant's mother was seized from her house where she lived with the claimant's father. On account of his poor state of health he was released without being questioned.
4. On 30th March 2011 the claimant was arrested in relation to decent images having been found on his mother's laptop. His mother and father were also arrested. After being interviewed the claimant was released on police bail which was subsequently cancelled. I understand that in December 2011 the claimant's father pleaded guilty to these offences.
5. On 13th June 2011 the claimant was again arrested but this time in relation to images that were found on his computer. He was interviewed under caution and subsequently bailed. On 18th June 2011 he received a letter informing him that his bail had been cancelled and no further action was being taken.
6. On 4th August 2011 the claimant made a formal complaint against DC Davidson. Under the heading "Executive Summary" the letter of complaint starts as follows:

"This report describes the sequence of events and actions which occurred between 28th February and 6th July 2011 which were taken by or initiated by DC Davidson against myself in an attempt to discredit me, de-stable my family life and secure a conviction against me regardless of evidence."

7. Under the heading "Preamble", the claimant states that in June 2009 his father suffered a stroke which affected his mental capacity. This was followed in August by a more serious stroke. As a consequence he was deemed unfit to represent himself legally. His wife, the claimant's mother, assumed the role of sane representative for his father until August 2009, when his mother became unwell and with extreme reluctance he agreed to take on that role. It was, he said, when his father was released from Workington police station on 1st March 2011 that he was asked to transport him home and it was at this time that he had his first dealing with DC Davidson.
8. Paragraph 4 of the letter of complaint, is headed "Complaint". At paragraph 4.1.1 the claimant states that on arrival at the police station on 1st March 2011 he, DC Davidson and her sergeant had a discussion about his father's laptop. He informed DC Davidson that some weeks prior to this arrest he had installed blocking software on the laptop to ensure his father could not access inappropriate content. He explained that his mother had been waiting, without success, to have the required software installed by the High Tech Crimes Unit. He had installed it as a temporary measure. He also told DC Davidson that for added security, he was the only person who knew the code and he told her what it was. He said she wrote this code down in her logbook.
9. The letter of complaint then goes on the deal with a visit on 1st March 2011, that he says that DC Davidson and Miss Jill Robinson from Cumbria Social Services made to his house to interview his 6-year-old daughter in relation to allegations against her grandfather. He and his wife spoke to them prior to them questioning his daughter. This led to an initial assessment report that they received on 18th March. The claimant wrote:

"The assessment contained inaccuracies and wording with the sole purpose of indicating that I was a risk to my children and that I was dismissive of the crimes of my father and the concerns of the Social Services and the police."

10. There was a Cumbria Social Services Strategy Meeting held on 7th March attended, he said, by DC Davidson, at which DC Davidson compounded the issue by telling further inaccuracies. In relation to his arrest on 30th March 2011 by DC Greenhaw, under instructions from DC Davidson, the claimant's states that he believes that the only reason he was arrested was to ensure all his hardware was seized. At paragraph 4.3 of the letter of complaint the claimant deals with his second arrest on 13th June 2011 by DC Davidson in respect of the 11 level 1 images find on his PC base unit and two level 1 images found on the small laptop seized from his address on 30th March 2011. The claimant alleges that DC Davidson's conduct throughout this period was all part of the malicious prosecution that she was attempting to secure against him. Under the heading "Summary" at paragraph 6.1.3 of the letter of complaint, the claimant states that DC Davidson is "unwilling to act with any impartiality, assess the facts as laid out before her or even follow official procedure, all in an attempt to ensure that her own personal aims are achieved."
11. The claimant's complaint was investigated by DI Craven of the Cumbria Constabulary Professional Standards Department, who on the 13th March 2012 produced an investigation report. The report concluded:

"I am satisfied that the investigation report has identified DC Davidson had reasonable grounds for the arrests of Mr Conaghan. She had the relevant suspicion and reasonable grounds to suspect Mr Conaghan had committed an offence on both occasions due to the fact that he had access to the laptop and the other equipment, there existing an element of uncertainty as to who was responsible for the images."

12. In relation to the first arrest of the claimant on 30th March 2011, DI Craven notes that DS Gidney had at the time a supervisory responsibility for DC Davidson. DS Gidney had considerable knowledge of the incidents involving members of the claimant's family. He stated that DC Davidson discussed the situation with him and a decision was made that all three family members needed to be arrested and interviewed about the computer and the images, in light of what they had said on 1st March 2011. DS Gidney said he was involved in the arrest of the claimant where further computer items were seized. As a result of examination illegal images were found on one of his computers and as a direct result the claimant was rearrested on 13th June 2011.
13. At paragraph 3.2.6 to 3.4.1 of his or DI Craven considered the contents of the e-mail dated 29th March 2011 sent by DS Brooker to DCI Bolton and the reply of the same date. The e-mail from DS Brooker incorporates at the end information written by DC Davidson, relating to planned arrests of the claimant and his parents the following day, which was approved by DS Brooker. DS Brooker added in his e-mail: "It is anticipated, having had contact with family members during the course of enquiries thus far, that complaints will be made as a result of the arrests being made." DS Brooker said: "The arrests in our opinion are justified, necessary and proportionate in the circumstances." DCI Bolton replied and I quote:

"Having reviewed the below commentary and had the opportunity to discuss the case I am more than satisfied it is both proportionate and necessary to arrest the individuals on suspicion of the downloading offences as at this time it cannot be established who has committed this offence and the accounts been provided which appear at this time to be discredited. It is also reasonable to conclude, that there may be some collusion or attempt to subvert justice by their duplicitous behaviour which may realistically lead to additional offences. As you know any member of the public can make a complaint, and this may be the case following our activity, but I am comfortable that the grounds to take that course of action are more than sufficient."

14. At paragraph 3.60 of his report, DI Craven noted that DC Davidson stated that she could not understand the allegation that she was targeting the claimant having only met him on one brief occasion at the police station. That would have been on 1st March 2011 and then when she went to his home to speak with his daughter on a safeguarding issue. That appears to have been on the same day or a few days later.
15. At paragraph 3.62 the report noted that DC Davidson stated that given the fact that the claimant and his parents all had access to the laptop and that she could not be certain who had downloaded the images, a decision was made to arrest all three. DI Craven met with Jan Hendren of Social Services, who explained that the initial assessment document was a Children's Services document written by a social worker, within that directorate. DC Davidsion would not have had sight of the document.
16. With regard to the allegation that DC Davidson provided information to the strategy discussion that the claimant had purchased the laptop for his father's use, which the claimant in his letter of complaint said was incorrect, Miss Hendren stated that that information had been provided to Jill Robinson, from a source other than DC Davidson.
17. By letter dated 18th May 2012 the claimant appealed against the findings of the Cumbria Constabulary Professional Standards Department report. There are three grounds of appeal. First, the claimant believes that DC Davidson did not have sufficient reasoning to arrest him on 30th March 2011. Second, he believes that DC Davidson is in breach of her code of conduct which she is obliged to adhere to, and third, he believes DC Davidson acted inappropriately and without impartiality whilst acting as an official police representative, throughout early investigations into his immediate family by Cumbria Social Services. The letter of 18th May 2012 refers in addition to further issues he has with Cumbria police force.
18. Mr Jack Harvey, an IPCC casework manager, handled the appeal. The IPCC Assessment of Investigation Appeal, which is the subject of the present challenge, sets out the IPCC reasons for rejecting the first ground of appeal, over five closely typed pages of the decision.
19. Mr Harvey started his analysis by setting out what he considered to be the best evidence as to what DC Davidson had in her mind at the time she proposed to arrest the claimant, namely that which is contained in her report to her superior officers, which is incorporated, as I have said, in DS Brooker's e-mail of 29th March 2011 to DCI Bolton. This indicates that DC Davidson believed:

(i) the complainant (that is the claimant) called the police every couple of days on behalf of his mother regarding the progress of the investigation.

(ii) the complainant produced information that his father was unable to understand the legal process.

(iii) the complaint's father was assessed as not fit to be detained or interviewed when in custody.

(iv) both the complainant and his mother had access to the computer and provided much insistence that it was the mother's machine with the father having little or no unsupervised access to it.

(v) the complainant informed the officer that he had tried to have appropriate software installed by the police but they had no record of such request.

(vi) the complainant had an extensive knowledge of computers.

20. Mr Harvey considered the evidence in relation to these six matters. He had regard to the fact that the claimant was of the view that it was not reasonable for DC Davidson to suspect him of an offence given his own conduct throughout the approximate 2 year investigation into his father during which time he had assisted the investigation and was never implicated or suspected of an offence. However, he notes the officer's suspicions were heightened by a variety factors including the claimant's eagerness to obtain/retrieve the computer, his contention that there was software on the computer, to which only he knew his password, his insistence that his father did not have access to it and indeed his knowledge of computers. Mr Harvey placed significant weight on the evidence that unlawful images and searches were found on the computer and DC Davidson details an instance from the claimant and his mother that the computer did not belong to their father and he had little or no unsupervised access to it. He concludes that he is not of the view because it might be considered more likely the offence was committed by a particular individual out of a number of suspects, that it is unreasonable to arrest alternative suspects at the same time or, more specifically, that reasonable suspicion cannot exist for those other suspects. In fact there may be a pressing investigative need for the arrest to be carried out at the same time.
21. I note that despite the claimant's allegation that DC Davidson acted maliciously throughout the period from 28th February to 6th July 2011 the grounds of appeal raise no issue in relation to his second arrest on 13th June 2011. Accordingly Mr Harvey does not deal with the lawfulness of the second arrest.
22. As to the second and third grounds of appeal, Mr Harvey reviews the evidence in respect of the claimant's criticism of DC Davidson, in relation to Social Services and concludes that on the evidence that it is available, he does not consider that the officer acted in a manner that could be considered untoward, or expressed views that are unreasonable. Mr Harvey expresses his understanding as to the profound concerns of the claimant regarding the arrests and the suspicion that has been directed towards him. He observes these are serious crimes which, even if dismissed, carry with them a heavy burden of negative connotations. However, having carefully considered all of the evidence available Mr Harvey concludes that he is not of the view that on the balance of probabilities the officer has breached the standards of professional behaviour or acted improperly. Mr Harvey was however critical of the rationale provided by Cumbria Constabulary in relation to some of the complaints. In particular he notes that the report is not sufficiently clear in its rationale regarding the lawfulness of the claimant's arrest. He concludes the report falls short in this regard and accordingly upholds the appeal on this ground.
23. On 27th February 2013 the claimant filed his claim for judicial review. The claim focuses on the claimant's arrest on 30th March 2011. The decision to arrest the claimant was, it is said, wholly without justification and perverse "because it was an officer's decision based upon a personal grudge and a malicious intent to prosecute another member of the family whether [I think it should read 'where'] the original defendant, (the claimant's father) might be regarded as having got off lightly."
24. I refused permission on the papers. At a renewed application for permission, having heard from the claimant in person, His Honour Judge Pelling QC granted permission. He did so on the basis that it was arguable that the IPCC report failed to take into account material considerations in arriving at the conclusions reached.
25. Mr Jeremy Dable, for the claimant, submits by reference to the six points made by DC Davidson in her e-mail of 29th March 2011, summarised by Mr Harvey, that each of the points amounts to distortion, fabrication or a disingenuous afterthought. Mr Dable states that the claimant does not accept the emails between DS Brooker and DCI Bolton, dated 29th March 2011, were written on this date. The claimant believes this, as I understand it, on the basis that DS Brooker anticipates that a complaint would be made by the claimant if he were to be arrested without providing any satisfactory explanation as to how he could have had that expectation at that time. Mr Dable confirmed to me that the claimant maintains his allegation that DC Davidson acted in bad faith in relation to his arrest on 30th March 2011.
26. There is no issue between the parties as to the legal framework and principles to be applied on this application. The IPCC was conducting a review of the investigation, carried out by Cumbria Constabulary Professional Standards Department under paragraph 25 of Schedule 3 to the Police Reform Act 2002. Paragraph 25(5) states so far as is material:

"On an appeal under this paragraph the relevant appeal body [in this case that is the IPCC] shall determine...

(b) whether the findings of the investigation need to be reconsidered."

Paragraph 25(8) provides that:

"If on an appeal under this paragraph the Commission determines that the findings of the investigation need to be reconsidered it shall.

(a) review those findings without an immediate further investigation; or.

(b) direct that the complaint be re-investigated."

27. In Muldoon v Independent Police Complaints Commission [2009] EWHC 3633 (Admin), Parker J helpfully summarises the statutory framework with which we are concerned at paragraphs 15 to 20 of his judgment. In R v Parliamentary Commissioners for Administration ex parte Balchin [1998] 1 PLR 1, Sedley J stated by reference to the judgment of Glidewell LJ in Bolton Metropolitan Borough Council v Secretary of State for the Environment (1990) 61 P&CR 343 at 353, that when seeking to impugn a decision on the basis of failure to take into account material considerations, the relevant test is whether a consideration has been omitted which had account been taken of it might have caused the decision maker to reach a different conclusion. It is trite law that the weight to be given to the relevant consideration is of course always a question of fact and entirely a matter for the decision maker subject only to a challenge rationality.
28. A power to arrest is provided by section 24 of the Police and Criminal Evidence Act 1984. The relevant provisions are set out at pages 12 to 13 of the investigation report. It is not suggested on the claimant's behalf that the test as to whether there were reasonable grounds for suspicion to justify his arrest was incorrectly stated. Mr Dable submits that the decision of the IPCC was faulty and should be quashed. He seeks a reconsideration by the IPCC.
29. Turning to what Mr Dable describes as the flaws and failures in the IPCC assessment, Mr Dable made the following submissions with regard to the six points relied upon by DC Davidson for the arrest of the claimant on 30th March 2011.
30. As to point 1, frequency of calls to the police, the relevant time period is 1st to 30th March 2011. The claimant could not have called the police every couple of days as suggested, because he was hospitalised from 11th to 18th March and the week before he spent lying on his sofa rather ill. The claimant in an e-mail to Mr Harvey, dated 24th October 2012, says:

"Considering her [DC Davidson's] evidence states that I was constantly phoning about the laptop at that very time, knowing the pain I was in would make it extremely improbable that I would have been anywhere near a phone."

Mr Dable submits that having been alerted to this issue as to the frequency of the calls, he should have investigated the matter, for example, by obtaining logs of the claimant's phone calls during this period. I reject this suggestion. It was not for Mr Harvey to carry out his own investigation. In any event it does not appear that until his e-mail of 24th October 2012, that the claimant took issue with this matter. Even now he disputes the frequency of the contact but does not appear to suggest that there was no contact or that he could not make contact. He merely states that during a two week period it was "extremely improbable" he would have been anywhere near a phone. Mr Harvey considered the point without referring expressly to the frequency of the contact, at page 5 of the IPCC assessment where he stated:

"The officer was of the view that the complainants wished to be updated about the investigation and representations regarding the computer actually increased the suspicion that he may have committed an offence."

31. Points 2 and 3 can be taken together. They both relate to the claimant's father's capacity. Mr Harvey notes on page 4 of the assessment that the grounds for arrest do not state in categorical terms that the claimant's father was unable to use a computer to search for illicit material. Mr Harvey continues:

"Rather it is suggested that it was the complainant, who attended the police station on the day of his father's arrest and made representations that his father was unable to understand the legal process as a result of a stroke. It is also stated in the same email that the HCP (Health Care Practitioner) assessed Mr Conaghan (Senior) as unfit to detain or interview due to impaired cognitive function.

Of course the complainant is correct to state the officer is not medically qualified to state whether someone can or cannot operate a computer due to their medical state. However, I do not consider the officer has done that here. Towards the conclusion of her e-mail the officer states that 'if this is the case, it begs the question of whether he was or is capable of physically using a computer and searching for illegal material… If his functioning is so poor it increases the suspicion on his wife and son as suspects."

32. Mr Dable submits that Mr Harvey should have noted the complete absence on the part of DC Davidson to pursue what, as she says, begs the question as to whether the claimant's father can use a computer. Mr Dable describes this as a neutral point. Mr Harvey goes on to say:

"I'm not of the view that the officer has made a categorical statement about the cognitive capacity of the complainant's father. It is clearly something that she has used to form a judgment, but equally the remarks above suggest similar considerations or views were held by the complainant himself. Importantly I do not consider the views expressed by the officer in this e-mail to be inaccurate, misleading or unreasonable."

33. Mr Dable submits that Mr Harvey has failed to ask the proper question. The relevant question is whether this amounts to a ground for suspicion, warranting arrest of the claimant.
34. Mr Tom Mountford, for the IPCC, submits that on any view the claimant's father's cognitive capacity, together with the claimant's own belief that he would not have been able to commit further offences due to his condition, meant that it was a possibility that the claimant's father's cognitive capacity was relevant and the claimant cannot therefore impugn the reflection of this fact in Mr Harvey's assessment.
35. I accept Mr Mountford's submission that at the material time the claimant's father's medical condition, as expressed by the claimant and on the basis of the evidence referred to in the 29th March 2011 email, suggested that his ability to function normally was impaired, which gave rise to the question whether the claimant's father had committed the offences.
36. In relation to point 4, Mr Dable criticises Mr Harvey's reference to there having been insistence by the claimant that it was the mother's computer. The relevant passage in the assessment starts at bottom of page 5 over to page 6 and is as follows:

"The officer's suspicions were heightened by a variety of factors, including the complainants eagerness to obtain/retrieve the computer, contention that there was software on the computer to which only he knew the password, insistence that his father did not have access to it and indeed his knowledge of computers. I have been mindful of the fact that despite the assessment above regarding the software request by the family, I have considered what I believe to be a more significant piece of evidence in the fact that unlawful images and searches were found on the computer and the officer details an insistence from the complainant and his mother that the computer did not belong to their father and he had little or no unsupervised access to it. This is detailed in both their statement in response to the complaint and the statement to her superior officer prior to the arrest. I place significant weight on this evidence and I can see why this would raise the suspicions of the officer in relation to the other two family members."

37. Mr Mountford accepts that DC Davidson did not expressly state that it was the claimant who had done the insisting rather it was the claimant's mother. This was, Mr Dable submitted, a significant error in the assessment. Mr Harvey was wrong about this. However, I accept Mr Mountford's submission that it makes no material difference whether the insistence was by the mother or by the mother and the claimant. The evidence to which Mr Harvey attached significant weight was, first, the fact that unlawful images and searches were found on the computer, and second, the fact that the computer did not belong to the father and he had little or no unsupervised access to it. In this context, as I have said, it makes no material difference whether the insistence was by the claimant's mother or by the claimant. The facts raised a prima facie suspicion that the images were not made by the father. It raised the suspicion that the unlawful conduct was that of the claimant or his mother.
38. As to point 5, that the police had no record of a request by the claimant to have appropriate software installed, Mr Dable submits that Mr Harvey should have investigated the matter further and obtained logs of the claimant's telephone calls. As I have already said, such an investigation was not for Mr Harvey to carry out. In any event it is clear that Mr Harvey did consider this matter. At page 3 of the assessment it is noted:

"The complainant also states that prior to installing software himself he had called the police on behalf of his mother in order to get them to install the software. Importantly, this is disputed by the Force who claimed at the time they had no record of such a call (contained in the above mentioned email from DC Davidson to her superiors prior to arrest). I have reviewed the transcripts from the interviews under criminal caution, for both the complainant and his mother following their arrests on the 1st and 30th March respectively. (It is important to note here that both these were not assessed as part of the police complaints investigation). Both suggest that attempts were made to contact someone to have monitoring software put on the computers. This is not a matter that has been subject to any further scrutiny within the investigation. There have been no simple enquiries to find out whether or not the complainant or his mother made or attempted to make contact with the authorities in order that the required software be placed onto the computer or indeed what steps DC Davidson took to find out such information. This I do consider to be problematic as such attempts by the complainant and his mother could be seen to reduce suspicion that they had committed the offence. I balanced this consideration with the view that this incident occurred in excess of 18 months ago, meaning any recollection from an individual officer regarding conversations they may have had about this matter is likely to be extremely limited.

I will finally state in relation to this point that it seems to me eminently possible the complainant could have made such requests (of the Probation Service or the Police) and that there is no record of such an inquiry being made. I do not think these things are mutually exclusive."

39. Mr Harvey noted there was a dispute of fact as to whether the complainant had called the police, but for the reasons he sets out there was no realistic prospect of resolving that fact. In my view, there was no material consideration in relation to this point that the IPCC failed to take into account.
40. Finally, as to point 6, that the claimant had an extensive knowledge of computers, Mr Dable submits that at the time of the e-mail on 29th March 2011 there was nothing to suggest that the claimant did have an extensive knowledge of computers. Mr Harvey notes at page 3 of the assessment that in relation to the software that was installed on the laptop it is common ground that the claimant informed DC Davidson that he had installed some blocking software on the computer. On page 4 of the assessment Mr Harvey observes by reference to the transcripts of the interviews, with the claimant that they do suggest he has a higher than average level of computer literacy which includes the ability to repair computers for colleagues. He comments that it is apparent that this was DC Davidson's view prior to the interview with the claimant and that it was a view that was on balance accurate.
41. Mr Dable objects to this observation on the basis that the IPCC cannot rely on what the claimant said in his interviews which postdate his arrest. Mr Harvey does however note that DC Davidson had formed the opinion that the claimant had an extensive knowledge of computers, prior to his interview, following his first arrest. Mr Dable says that even if that is true, the evidence shows no more than he had a higher than average level of computer literacy.
42. Mr Mountford submits that DC Davidson was entitled to form the view that the claimant had extensive knowledge of computers. The investigation report records DS Brooker also expressing the view that the claimant had an extensive knowledge of computers "which could have accounted for the fact that the images appeared to have been deleted and were recovered from other unallocated spaces."
43. I do not consider that there can be any criticism of Mr Harvey in relation to this point. Again, there was no material consideration that he failed to take into account.
44. In summary my conclusions are as follows:

(i) There is no basis for the allegation that DC Davidson acted in bad faith.

(ii) The reasons for the arrest of the claimant on 30th March 2011 are clearly set out in the e-mails of 29th March 2011 to which I have referred. DC Davidson proposed the arrest for the reasons she gave and her superior officer approved the proposal for the reasons they gave.

(iii) There was no material error or omission in the assessment conducted by Mr Harvey on behalf of the IPCC. The one factual error made by Mr Harvey in relation to point 4 was of no consequence for the reasons I have stated.

45. In my judgment, the defendant plainly reached a conclusion that on the evidence was fairly and reasonably open to it. I am satisfied that the IPCC had regard to all material considerations. Accordingly this claim is dismissed.
46. UNKNOWN COUNSEL: Thank you my Lord. I wish to make an application for the defendant's costs in this matter. I have prepared a schedule; my friend has had a copy for a couple days. If I could hand a copy up?
47. MR JUSTICE SUPPERSTONE: Yes, certainly.
48. UNKNOWN COUNSEL: My Lord, you will see that when the schedule was initially prepared some of the costs were estimated. Happily we have been able to crystallise those costs and it has in fact led to a reduction in the bill that was estimated.
49. MR JUSTICE SUPPERSTONE: Yes.
50. UNKNOWN COUNSEL: The claim was set out in the schedule is for £3,155, which in my respectful submission is a reasonable claim in respect of a case that been disposed of in about half-a-day albeit over a period of 2 days.
51. MR JUSTICE SUPPERSTONE: Yes, that is your application.
52. UNKNOWN COUNSEL: Thank you. Mr Dable?
53. MR DABLE: As a matter of principle I cannot resist. I suppose that there is some grounds for me arguing before your Lordship that as your Lordship found in the course of the hearing, that there was a problem which arose in that the centrality of the claim itself involved really construction of six points which emanated from a document which was heavily and unnecessarily blacked out and I invite your Lordship to have some regard to that.
54. MR JUSTICE SUPPERSTONE: Just pausing there. Can I just ask who actually blacked out, who redacted that document?
55. UNKNOWN COUNSEL: That is Cumbria Constabulary.
56. MR JUSTICE SUPPERSTONE: Cumbria Constabulary.
57. UNKNOWN COUNSEL: That redaction, as I understand it, came about not through these proceedings but when they provided the documents to the claimant together with the investigation report.
58. MR JUSTICE SUPPERSTONE: So when the documents were handed to the claimant with the investigation report, that document was redacted.
59. UNKNOWN COUNSEL: That is my understanding.
60. MR JUSTICE SUPPERSTONE: Then there was the grounds of appeal, then there was the report that is the subject of the present proceedings. But then of course, in these proceedings, we continued with that redacted document.
61. UNKNOWN COUNSEL: Yes.
62. MR JUSTICE SUPPERSTONE: Thank you very much.
63. MR DABLE: I am not sure all of that can be strictly accurate because it seems that Mr Harvey knew more about the e-mail than could be gleaned from the redacted version. So it seems that --
64. MR JUSTICE SUPPERSTONE: There is no inconsistency. What has just been said is that in terms of the document coming to your side, it came redacted and has remained redacted until yesterday but what was said yesterday - correct me if I am wrong - was that both the Cumbria officer, who conducted the investigation and Mr Harvey had it unredacted.
65. MR DABLE: Yes, that is correct. Your Lordship can see that in certainly the mind of a person who for the most part of this application has been a litigant in person, that one tends to focus on detail which your Lordship has found to have been of no significance in particular, but that is not the case in perspective of an ordinary person.
66. MR JUSTICE SUPPERSTONE: I understand that. Is there anything, in what we now see, the unredacted version, which has any impact on the outcome?
67. MR DABLE: There is certainly a greater understanding.
68. MR JUSTICE SUPPERSTONE: Shall we have a look. It is unfortunate. Did you ever ask, or those instructing you ever ask for the unredacted version?
69. MR DABLE: I am not aware of any correspondence to that effect, would your Lordship give me one moment?
70. MR JUSTICE SUPPERSTONE: Yes, of course. (To the claimant): Please speak to your counsel. (Pause).
71. MR DABLE: With some force Mr Conaghan assures me that he has made at least one, possibly more requests for a number of documents of which this was one of them and they were refused on each occasion.
72. MR JUSTICE SUPPERSTONE: For this document unredacted.
73. MR DABLE: Yes.
74. UNKNOWN COUNSEL: Can I ask to whom that request was made?
75. MR JUSTICE SUPPERSTONE: Yes, certainly (Pause).
76. MR DABLE: My Lord, the investigation by Cumbria police, as my learned friend, Mr Mountford, yesterday enumerated there are 22 documents set out at the top of that report: if we go to that, it is at...
77. MR JUSTICE SUPPERSTONE: I am trying to compare the unredacted and redacted copies. Let me just have a look as we are doing this exercise.
78. The bottom of the first page, there is really nothing, is there?
79. MR DABLE: As we went through it yesterday my Lord, my recollection was that there was a great deal more in relation to cognitive capacity and the insights --
80. MR JUSTICE SUPPERSTONE: Well, I think you are right about that. I am going through it because ... I am just going through it. There is a bit of difficulty, saying where it is, halfway down the second page: "Conaghan Junior produced doctors letters stating that his father had been assessed by a doctor etc and the unredacted volume was one of the seized on his arrest on 1st March 2011, Conaghan Junior produced doctors etc". There is a bit that has been redacted there, "mental health assessment not appropriate, no suggestion of mental health issues". That does not add anything.
81. There is a bit there in the last paragraph, is there not, about the last date for searches for illegal materials appears to 13.12: "32.11 which points to Conaghan's Senior's cognitive function is closely much degraded which begs the question of whether he was or was physically capable of physically using computer, searching for illegal material if his functioning is so poor that cannot ... it increases the suspicion on his wife and sons as suspects." That is not in the redacted version, is it?
82. MR DABLE: No, there the points as well, about five lines down the "The laptop was easily accessible to Conaghan."
83. MR JUSTICE SUPPERSTONE: And at the end "it is known that Conaghan Junior has an extensive knowledge of computers could account for the fact that the images located appear to be deleted and have been recovered in allocated spaces". So none of that is in the redacted version.
84. MR DABLE: My Lord, there is, this forms part of perhaps a more wider point, which I had not appreciated until Mr Conaghan emphasis to me just a moment ago. Page 114, the second page of the police internal report.
85. MR JUSTICE SUPPERSTONE: 114.
86. MR DABLE: There is a list of 22 separate documents relied upon in the course of the investigation.
87. MR JUSTICE SUPPERSTONE: Yes.
88. MR DABLE: Mr Conaghan requested these documents and received not a single one.
89. MR JUSTICE SUPPERSTONE: Would he be entitled to these documents? When did he have the assistance of lawyers, from which date?
90. MR DABLE: In practical terms from September of this year. I will take instructions on whether there were solicitors at an earlier date.
91. UNKNOWN COUNSEL: There is a conditional fee agreement which is dated 28th March of this year.
92. MR JUSTICE SUPPERSTONE: Thank you.
93. MR DABLE: That is mine. It is one of 150,000 other conditional fee agreements that my chambers signed up in the 2 weeks before the end of March. But I did not undertake any work.
94. MR JUSTICE SUPPERSTONE: Whatever you say I accept. When did you effectively therefore appear on the scene?
95. MR DABLE: From my fee note... 8th October.
96. MR JUSTICE SUPPERSTONE: 8th October. Those instructing you?
97. MR DABLE: I am on a Direct Access basis my Lord.
98. MR JUSTICE SUPPERSTONE: Are there solicitors or not?
99. MR DABLE: There are no solicitors, no.
100. UNKNOWN COUNSEL: My Lord, what I would say about this, is firstly these were not applications made to the IPCC for disclosure, they are applications made to Cumbria. Cumbria it seems to me has applied the Data Protection Act enthusiastically. One can see, as so often public bodies do and so often the case and stepping back from it one can see that all of the information, certainly concerning family members is more likely than not to have been known to the claimant in this case.
101. MR JUSTICE SUPPERSTONE: That is right. That is a fair comment, in so far as it goes, but of course the parties to the proceedings are IPCC and the claimant and the fact that Cumbria redacted, is not real answer to whether IPCC should have produced the whole document knowing that their Mr Harvey had it at the time of his consideration.
102. UNKNOWN COUNSEL: But there was no request for disclosure of that document. The appeal assessment itself is a document which stands on its own. In my respectful submission, that point --
103. MR DABLE: I do not think that point, if --
104. MR JUSTICE SUPPERSTONE: If that was the document that Mr Harvey, had in full without redaction, then that document should have been produced in the proceedings without redaction.
105. UNKNOWN COUNSEL: It is not the practice to produce the whole file of documentation. The investigation report is produced by Cumbria. I was not aware that no material was provided to the claimant, my understanding was a number of documents were provided including the redacted copy of this e-mail and other redacted copies.
106. MR JUSTICE SUPPERSTONE: Redacted or unredacted?
107. UNKNOWN COUNSEL: Some retracted, some unredacted.
108. MR JUSTICE SUPPERSTONE: What about this particular copy?
109. UNKNOWN COUNSEL: My understanding is this was redacted. But there was nothing, in my respectful submission, which is contained within this e-mail that would have, that is conclusive so far as these proceedings are concerned.
110. MR JUSTICE SUPPERSTONE: Or perhaps that would have made any difference to the claimant's approach?
111. UNKNOWN COUNSEL: The proceedings were issued promptly after the appeal investigation. We are dealing here with the costs application. In my respectful submission there is no reason to depart from the general rule in costs applications where a claimant has been unsuccessful.
112. MR JUSTICE SUPPERSTONE: I understand. In principle it is accepted. The sum is not in dispute as I understand it.
113. MR DABLE: I am always in the court's hands on lack of assessment. I quickly pass the comment I appear on the telephone to my learned friend for certainly a shorter period than he was on the telephone to me. It is matter of very modest amount.
114. MR JUSTICE SUPPERSTONE: I have to say, it does not seem to me that the costs that are claimed are unreasonable.
115. MR DABLE: No my Lord. I should say on a matter of principle that Mr Conaghan did ask the IPCC, for the documents as well, he tells me, and also that essentially this was the central document and part of his claim, part of what motivated him was that he could not see, he could not grasp, he could not understand what the reasonable suspicion was that the police had to go on and that the IPCC had to decide.
116. MR JUSTICE SUPPERSTONE: I do not follow that because he had the two e-mails of 29th March, between the two senior superior officers. At the bottom of the e-mail from DS Brooker, he had what everyone has proceeded on throughout has been the six points from DC Davidson and those are the six points which have concerned us on this claim, on this application. So, I think it is incumbent upon you, Mr Dable, to identity, in the unredacted document, what you say would have made a difference.
117. MR DABLE: Would your Lordship give me one moment?
118. MR JUSTICE SUPPERSTONE: Of course I will, certainly (Pause).
119. MR DABLE: My Lord, I will not pursue the point.
120. MR JUSTICE SUPPERSTONE: I am very grateful.
121. You are entitled to your costs in the sum of £3,155.
122. UNKNOWN COUNSEL: Thank you my Lord.
123. MR DABLE: Might I ask that you allow the maximum time that is permitted on a summary application for payment. Ordinarily the matter falls within 14 days.
124. MR JUSTICE SUPPERSTONE: Most certainly I will. I do not think I do any more than summary assess. I do not think I send further than that. I do not say to be paid within any specific time.
125. MR DABLE: My understanding certainly is that most judgments become enforceable within 14 days automatically unless the court provides otherwise.
126. MR JUSTICE SUPPERSTONE: How much time would you ask for?
127. MR DABLE: I do not press your Lordship to... I cannot press your Lordship to more than 28 I should imagine today without specific application and reasons.
128. MR JUSTICE SUPPERSTONE: You are asking for 28 days?
129. MR DABLE: Yes my Lord.
130. MR JUSTICE SUPPERSTONE: I will grant 28 days. Thank you very much. Certainly.
131. MR DABLE: Thank you my Lord.
132. MR JUSTICE SUPPERSTONE: Thank you very much, Mr Dable, for your submissions and thank you.
133. UNKNOWN COUNSEL: I will pass that on to Mr Mountford.