Bisson -v- JPCA [2017] JCA 156 (26 September 2017)

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Cite as: [2017] JCA 156

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Appeal against decision of the Royal Court dated 12 Jun 2017.

[2017]JCA156

Court of Appeal

26 September 2017

Before     :

James W. McNeill, Q.C., President;

George Bompas, Q.C., and

David Anderson, Q.C.

Between

Roger William Bisson

Appellant

 

And

Jersey Police Complaints Authority

Respondent

 

IN THE MATTER OF AN APPEAL BY ROGER WILLIAM BISSON AGAINST THE REFUSAL EX PARTE OF LEAVE TO COMMENCE JUDICIAL REVIEW PROCEEDINGS AGAINST THE JERSEY POLICE COMPLAINTS AUTHORITY

Mr R. W. Bisson appeared on his own behalf.

judgment

anderson ja:

Introduction

This is the judgment of the Court.

1.        By application filed on 16 January 2017, the Appellant Mr Bisson sought leave to bring judicial review proceedings against a decision of the Jersey Police Complaints Authority ("JPCA").  That application was heard ex parte by Commissioner Michael Beloff Q.C. on 17 May 2017, who refused leave for reasons set out in a judgment of 12 June 2017.  By Notice of Appeal dated 3 July 2017, supplemented by oral submissions addressed to the Court of Appeal at a further ex parte hearing on 25 September 2017, Mr Bisson appeals the refusal of leave.

2.        The application arises out of the rejection of a complaint against the States of Jersey Police ("SoJP") made by the Appellant in 2016.  The underlying circumstances are fully set out, with citations from the relevant correspondence, in the judgment of the Commissioner, paragraphs 3-35.  In short summary:

(i)        On 20 October 2008, the Royal Court ordered that 3B Holdings Ltd. ("3B"), a company that had been partly owned by the Appellant's father, should be wound up on just and equitable grounds.

(ii)       On 23 January 2012 in Bisson v Rabet and Roberts [2012] JRC 021 ("the 2012 judgment"), the Royal Court (Commissioner Clyde-Smith sitting with Jurats) dismissed an application by the Appellant and his father to have the joint liquidators of 3B removed on a number of grounds including an allegation of dishonesty in the conduct of the winding up.

(iii)      The Appellant and his father did not appeal the 2012 judgment.  The Appellant did however on 17 September 2012 make a formal complaint to the SoJP that he had been the victim of "a combination of perjury and corruption in proceedings before the Royal Court".

(iv)      After repeated prompting, the Appellant elaborated on his complaint by a letter of 29 January 2014 which alleged perjury and corruption by individuals including the Comptroller of Taxes, Commissioner Clyde-Smith and two Jurats, to the benefit of the Comptroller of Taxes and of the Joint Liquidators of 3B.  Evidence for the allegation was said to be "available throughout the judgments [sic] dated 23 January 2012".

(v)       Detective Inspector Burmingham of the SoJP responded on 21 May 2014.  He summarised the allegations, added that police attention had focused on the question of "whether there is sufficient evidence for an investigation to commence", and stated that a thorough review of the paperwork provided had found no evidence to support the allegations of perjury or corruption.

(vi)      Almost two years later, by letter of 12 May 2016, the Appellant made what he described as "a formal complaint against DI Burmingham in connection with his mock investigation of my 2014 complaint in the matter of 3B and, in particular, for his failure to refer the evidence tendered to an independent legal advisor".  It is the rejection of this complaint which gives rise, indirectly, to the current application and appeal.

(vii)     A Notice of Complaint was served on DI Burmingham on 15 May 2016.  On 20 May, the Appellant was advised that DCI Williamson had been appointed to investigate the new complaint, and invited to submit any further documentation or information. 

(viii)    The Appellant was also informed that the investigation was being independently supervised by a member of the JPCA, with additional oversight by Mrs Debbie Prosser, the Chairman of the JPCA.

(ix)      By email of 28 July 2016, the Appellant questioned whether it was proper for Mrs Prosser to have oversight of the matter, given her role as a Commissioner of the Jersey Financial Services Commission.  Mrs Prosser did not acknowledge any conflict, but recused herself from any further involvement by letter of 1 August 2016.

3.        The decision of which judicial review is sought is contained in a Statement of Satisfaction by JPCA dated 5 September 2016, which stated that the investigation of the Appellant's complaints against DI Burmingham had been carried out to the satisfaction of the JPCA. 

4.        The Statement of Satisfaction was followed by a letter from Rob Bastable, Deputy Chief Officer of the SoJP, to the Appellant dated 23 September 2016.  That letter set out the process of the investigation into the Appellant's complaint against the SoJP, including the submission by the SoJP of a file for independent review by the JPCA, and stated:

"I have now carefully examined the papers in conjunction with the Jersey Police Complaints Authority who have confirmed that there is insufficient evidence to substantiate disciplinary proceedings in this case.

Conclusion

In view of this finding, I have recorded the complaint as Unsubstantiated and informed the officer of my decision."

There followed further correspondence, detailed in the judgment of the Commissioner.

The Law

5.        The JPCA is established under the Police (Complaints and Discipline) (Jersey) Law 1999 ("the 1999 Law"), the relevant parts of which are set out at para 36 of the judgment of the Royal Court.  The Statement of Satisfaction which forms the object of these proceedings for judicial review was submitted pursuant to Article 10(4) of the 1999 Law, which requires the JPCA, having considered the report submitted to them by the investigating officer, to state whether the investigation has or has not been conducted to its satisfaction, specifying any respect in which it has not been so conducted.

6.        As the Commissioner found, the investigation conducted by DCI Williamson was not one that the JPCA was obliged to supervise under Article 9(1) of the 1999 Law, but one that it had a discretion to supervise, "if it considers that it is desirable in the public interest that it should supervise that investigation", pursuant to Article 9(2) of the 1999 Law.  According to a letter from Mourant Ozannes of 16 December 2016, written in response to Mr Bisson's correspondence relating to his intention to seek judicial review, it is the current practice of the JPCA to supervise any complaints that are referred to it.

7.        That letter went on to state:

"It must be noted that the JPCA does not have the power to direct the Force in relation to the conduct of any criminal investigation.  The JPCA is not itself an investigatory authority; it does not conduct the investigation itself when a complaint is made and has no general role in overseeing investigations made by the Force.  The members of the JPCA are not members of the Force and are not trained investigators.  In the context of investigations, the JPCA's role is solely to supervise investigations of complaints and decide whether or not they consider such investigation has been conducted satisfactorily.

For the avoidance of doubt, therefore, in the event that the JPCA considered, in supervising the investigation of the 2016 Complaint, that there had been a breach of the Code by any officer of the Force, its remit would have been limited to directing that disciplinary action should be taken against the officer concerned and to members of the JPCA sitting as part of a tribunal to determine that disciplinary matter.  Even that remit would only operate in the event the Chief Officer of the Force had decided not to take any action.  The JPCA would not have had the power to issue any particular punishment, as that is a matter for the Chief Officer of the Force, although the Tribunal members are consulted on it."

8.        As a statement of the JPCA's function in the context of an investigation such as DCI Williamson's, we consider this to be broadly correct.

9.        The principles to be applied by the Royal Court on an application for leave to apply for judicial review were set out by the Privy Council in Sharma v Browne Antoine [2006] UKPC 57, [2007] 1 WLR 780, per Lord Bingham and Lord Walker at para 14(4):

"The ordinary rule now is that the court will refuse leave to claim judicial review unless satisfied that there is an arguable ground for judicial review having a realistic prospect of success and not subject to a discretionary bar such as delay or an alternative remedy: see R v Legal Aid Board, ex p Hughes (1992) 5 Admin LR 623, 628 and Fordham, Judicial Review Handbook, 4th ed (2004), p 426.  But arguability cannot be judged without reference to the nature and gravity of the issue to be argued.  It is a test which is flexible in its application."

As the Commissioner pointed out, those principles have been consistently applied by the Jersey courts, e.g. in Welsh v Deputy Judicial Greffier [2009] JLR N37.

10.      The Commissioner was thus correct in characterising his task as requiring him to consider:

"whether the Applicant has shown that he has an arguable case with a reasonable prospect of success that the [JPCA] has breached one or more of its public law duties .. in issuing its Statement of Satisfaction and ought not, if faithful to those duties, to have declared itself satisfied that DCI Williamson had properly satisfied himself after a proper investigation that DI Burmingham had properly satisfied himself after a proper investigation that there was nothing in the Applicant's various complaints about various criminal conduct by the various persons referred to above".

11.      It is the duty of this court, in turn, to determine whether the Commissioner's decision was justified on the basis of the material before him.

Judgment of the Royal Court

12.      The Commissioner began by stating (at para 38):

(i)        The Statement of Satisfaction was in principle amenable to judicial review.

(ii)       The Appellant had standing to bring his application for leave for judicial review against the performance by the JPCA of its obligations under the 1999 Law.

(iii)      The JPCA was properly notified of the Appellant's complaint.

(iv)      The appointment of DCI Williams to examine the complaint complied with the 1999 Law.

(v)       The JPCA had a discretion to supervise the investigation; having decided to do so, it was subject to the usual public law duties (i.e. to act lawfully, fairly and rationally), bearing in mind that it was master of its own procedure.

13.      He dismissed the suggestions that DI Burmingham had based his reasoning on the Applicant's failure to exhaust his civil remedies (para 41), and that DI Burmingham had misinterpreted or misapplied the Corruption (Jersey) Law 2006 (paras 42-43).

14.      According to the Commissioner (paras 44-51), the real reason for DI Burmingham's conclusion was that, while Mr Bisson considered that the offences he alleged were self-evident from the material that he had provided, the police having reviewed them had no evidence at all of perjury or corruption, and no reasonable suspicion justifying the use of coercive police powers to investigate further.  That was described as a conclusion that DI Burmingham was "entitled, indeed compelled, to reach".  He was not, in the circumstances, required to embark upon further investigation or to take independent legal advice.  DCI Williamson in his discrete investigation could do no other than acquit DI Burmingham of dereliction of duty; and there was no basis for faulting the JPCA's expression of satisfaction as to DCI Williamson's conduct of his role.  The Appellant's assertions were simply unsupported by evidence.

15.      The Commissioner went on (at paras 52-56) to reject arguments that the JPCA had breached Article 6 of the European Convention on Human Rights ("ECHR"), commenting as he did so that the Chairman had been over-scrupulous in recusing herself.  Short shrift was given at paras 57-59 to arguments that the JPCA took into account irrelevant considerations, including allegations of non-co-operation by Mr Bisson and judicial and political sensitivities.  The suggestion that the JPCA made its decision for an improper purpose or motive and in bad faith was dismissed at para 60 as lacking "an iota of evidence".

16.      Mr Bisson's characterisation of the JPCA's decision as two discrete decisions, and his criticism of the JPCA for failing to give reasons for its statement of satisfaction or to send a copy of it to the Attorney General, were likewise rejected (paras 62-65).

17.      The Commissioner then observed that, as the Appellant himself had stated, the Appellant had declined to appeal the 2012 judgment because of "the apparent 'policy' of the judicial apparatus in Jersey to 'punish' those commencing legal proceedings where a conflict exists between the interests of the individual and the state".  That judgment of the Royal Court was described by the Commissioner as "the underlying casus belli".   The fact that the Appellant did not appeal it, but instead adopted the tactic of "making allegations of criminal conduct against various persons whose emptiness of content is matched only by the extravagance of language", was for the Commissioner in itself a sufficient reason to refuse leave (paras 66-67).

18.      Turning finally to the eight specific orders sought by the Appellant, the Commissioner declined to quash the Statement of Satisfaction, observed that the Royal Court lacked jurisdiction to make six of the other orders requested, and described the final order sought as meaningless (para 68). Leave to commence judicial review proceedings was refused.

Grounds of Appeal

19.      In a Notice of Appeal stretching to 116 paragraphs, the Appellant challenges the conclusions of the Royal Court on grounds which he groups into three categories: misdirections on principles of law, misapprehension of facts and failure to consider proper matters.  Most of these grounds were touched upon in oral submissions before us.  We address them in turn.

"Misdirection on principles"

Consequence of earlier failure to appeal

20.      The first point taken by the Appellant is to challenge the Commissioner's remark (at para 67) that a sufficient reason to refuse leave was provided by the fact that the Appellant chose not to appeal the 2012 judgment, but instead to launch ill-supported and extravagant allegations of criminal conduct.  That was not of course the Commissioner's only reason for refusing leave; but it was a self-standing reason and one that the Appellant is entitled to challenge.

21.      We have similar concerns to those expressed by the Commissioner in relation to the course taken by the Appellant.  The appropriate means of challenging an adverse judgment is almost invariably to appeal it.  The reasons advanced by the Appellant for not doing so lack any sound basis.  In particular, his reference to the supposed judicial "policy" of punishing individuals who bring proceedings against public bodies is absurd, as demonstrated by numerous reported decisions within this jurisdiction over many years in which individuals have been successful in such proceedings. 

22.      We can see no cogent validation for the alternative route, taken by the Appellant, of launching serious and unsupported criminal allegations against a range of individuals.  As noted by the Commissioner, and further explored with Mr Bisson in oral argument, the treatment of his allegations by the Royal Court in the 2012 judgment lay at the heart of his concerns.  The obvious - and probably the only appropriate - way to unravel the significance of the steps taken by the Revenue and the Liquidators (if there was anything in his complaints) was for him to appeal the Royal Court's decision.  A criminal investigation was entirely premature.

23.      We do not consider, however, that the Appellant's failure to appeal the 2012 judgment is a sufficient reason in itself to refuse leave in the circumstances of this case.  Mourant Ozannes on behalf of the JPCA, by letter of 16 December 2016 responding to the proposed judicial review proceedings, did not challenge the Appellant's entitlement to bring his criminal complaint, characterising it rather as a course that the Appellant was "absolutely entitled" to take.  The fact that a complaint may have been unattractive or even misconceived cannot exempt the SoJP from the obligation to investigate it in accordance with the Law; and by the same token it cannot exempt the JPCA from the obligation to supervise the investigation in a lawful, fair and rational manner, as the Royal Court rightly acknowledged at para 38(vi) of its judgment.  Where those obligations have been breached, a court must be able to say so.  The complainant's failure to avail himself of an alternative and preferable remedy to his complaint is not enough in itself, as it seems to us, to deny him access to the remedy of judicial review.

24.      We note, however, that the Royal Court's principal reason for refusing leave was that there was no arguable ground for judicial review having a reasonable prospect of success, and it is to this issue that our consideration of the remainder of the grounds of appeal is directed.

SoJP investigatory standard

25.      The second misdirection of law alleged by the Appellant concerns the Royal Court's formulation of DI Burmingham's duty in conducting his investigation of the Appellant's original complaint.  He submits that the Commissioner wrongly formulated that duty in subjective terms when he stated at para 47 that:

"once [DI Burmingham] had concluded that the Applicant had not provided any evidence of or even suggestive of corrupt or criminal behaviour, he did not need to embark on further investigation; his professional capacity to deal with such matter cannot be impeached."

and at para 48 that:

"there was no issue on which independent legal advice was required; given his factual conclusions the law became moot."

Rather, he submitted, DI Burmingham was obliged as a matter of law to assess the evidence provided to him by reference to established standards of investigatory practice and the Discipline Code scheduled to the Police (Complaints and Discipline Procedure) (Jersey) Order 2000.  Furthermore, according to the Appellant, DI Burmingham had a duty, which he did not discharge, to obtain professional advice in relation to questions of accountancy and legal practice falling outside his area of expertise.

26.      We see no merit in the latter contention.  As the Commissioner stated at para 39 of his judgment, it was incumbent on DI Burmingham, before he could reject the complaint, properly to satisfy himself after a proper investigation that there was nothing in it.  The JPCA had in turn to act lawfully, fairly and rationally in concluding that DCI Williamson had properly satisfied himself after a proper investigation that DI Burmingham had complied with his duties.  These are objective requirements, and were treated as such by the Commissioner.

27.      There will of course be circumstances in which the proper investigation of a criminal complaint may require legal and/or accountancy advice to be obtained.  But this was not such a case, for the simple reason that the Appellant did not produce any material that could have required the taking of such steps.  The Appellant's suggestion (developed in his letter of 29 January 2014 and again in submissions before us) that sufficient "evidence" for this purpose is to be found in the terms of the 2012 judgment itself is, with respect, fanciful.  Nor do we read the Royal Court as reflecting upon the duty on DI Burmingham in merely subjective terms.  On the contrary, it looked carefully at the allegations made by the Appellant, and at the lack of support for them, concluding that DI Burmingham's decision to reject the complaint was one that he was not only entitled but compelled to come to.  We detect no arguable error in that approach.

Failure to provide reasons

28.      The third misdirection of law alleged by the Appellant relates to the supposed breach by the JPCA of a duty to give reasons for its decision that the investigation had been conducted to its satisfaction.  The Appellant claims that such a duty flows from Article 6 of the ECHR, incorporated in this jurisdiction by the Human Rights (Jersey) Law 2000.  He further contends that while such a duty may not be found in the customary law, the JPCA's failure to give reasons "operates to its prejudice in the event of challenge to the extent that adverse inferences may be drawn". As he put it in his clearly expressed submissions to us, such a failure automatically compromised the decision and showed it to be amenable to characterisation as arbitrary or capricious.

29.      We consider that the Commissioner was right to conclude that Article 6(1), which requires a fair and public hearing and a judgment pronounced publicly, is of no application in this case.  The JPCA was not determining the civil rights and obligations of the Appellant, nor even adjudicating upon a claim brought by the Appellant; it was making a declaration of satisfaction or otherwise with the work of DCI Williamson.  The Appellant's civil rights and obligations had been determined by the Royal Court in a decision which he chose not to appeal.

30.      Nor is this a case where the giving of reasons, or fuller reasons, was required in the interests of fairness and openness: Stefan v General Medical Council [1999] 1 WLR 1293, 1300H.  The JPCA pronounced itself satisfied with an investigation whose conduct and findings had been described to the Appellant in a letter from the Deputy Chief Officer of the SoJP dated 23 September 2016.  He suffered no prejudice as a result of the brevity of the Statement of Satisfaction: indeed as the Commissioner said, it is not easy to see how reasons could usefully have amplified the decision itself.

"Misapprehension of facts"

31.      The Appellant takes issue with the Royal Court's finding (Judgment, para 15) that he failed to supply a detailed statement of his allegations to the police until January 2014.

32.      Having read the correspondence from 2012 and 2013 that is relied upon by the Appellant, we consider the Royal Court's conclusion to have been entirely justified.  An email from the Appellant to the SoJP dated 22 January 2014 acknowledged that "a full statement of allegations" had not as yet been prepared.  The Notice of Appeal seeks not so much to establish the contrary as to explain (by reference to the Appellant's other priorities, the allegedly inchoate nature of the alleged crimes and the stress being experienced by the Appellant) why the allegations were not spelled out sooner.

33.      Even if the Appellant's point were made out, it would take him nowhere.  DCI Williamson's investigation, pronounced satisfactory by the JPCA, dismissed the Appellant's complaint not because of his delays prior to 2014 but because there was no evidence to support his assertions that offences had been committed, and because DCI Williamson's attempt to "clarify the extent of your complaint and to establish what evidence you have in support .. has unfortunately not proved fruitful" (Deputy Chief Officer's letter of 23 September 2016).

"Failure to consider proper matters"

34.      The Appellant completes his grounds of appeal with a further series of complaints, which he relates to:

(i)        evidence of the alleged predicate crimes;

(ii)       evidence that persons subject to the predicate crime allegations could not be absolved;

(iii)      an alleged contradiction between the Commissioner's stated and actual methodology;

(iv)      DCI Williamson referring the allegations to the Law Officer's Department, "an inherently conflicted source of legal advice";

(v)       the decision of the Chairman of the JPCA to recuse herself in the matter of the complaint, "and the impropriety inherent in her decision to remain involved in the complaint";

(vi)      the use of language by DI Burmingham, said by the Appellant to suggest that he had dismissed investigation of the predicate crime allegation due to the existence of alternative remedies; and

(vii)     the decision and motivation of the Commissioner.

35.      We have considered each of these grounds of appeal carefully, but see no merit in them.

36.      Objection is taken, first, to the use of ellipsis by the Commissioner when quoting from the Appellant's letter of 29 January 2014.  The complaint is frivolous.  The fact that a letter is not quoted verbatim does not imply that it was not taken into proper account.

37.      The Appellant claims, secondly, that the Deputy Chief Officer's letter of 23 September 2016 recorded the absence of evidence to support the Appellant's assertion that offences had been committed by some persons, but not by others.  It is however plain from the context that his allegations had been considered to be unsubstantiated in their entirety.  Had the Appellant been in any doubt about that, he could have raised those doubts in the lengthy correspondence that followed the Deputy Chief Officer's letter.

38.      Thirdly, the Appellant seeks to manufacture a conflict between the Commissioner's remarks that it was not for DCI Williamson to re-till the field tilled by DI Burmingham and that DCI Williamson, like the JPCA, was obliged not simply to rubber-stamp the original investigation (paras 49-50).  We discern no such conflict.  The functions of the two investigations were different: DI Burmingham was considering whether there was sufficient material to justify further investigation of the Appellant's assertions, whereas DCI Williamson was considering whether DI Burmingham had conducted his investigation properly.  The latter exercise required DCI Williamson to review (rather than simply to rubberstamp) the sufficiency of DI Burmingham's investigation; and as the correspondence demonstrates, he did so.

39.      Fourthly, the Appellant objects that DCI Williamson, given the nature of the allegations made, sought advice from the Law Officer's Department.  The seeking of legal advice is of course precisely the course that the Appellant maintains should have been taken by DI Burmingham in his original investigation.  But to have sought it from the Law Officers' Department is said to present a conflict of interest, since the Law Officer's Department had previously represented the Comptroller of Taxes (in 2010 proceedings) and been responsible for the preparation of the witness statement of Steve Lowethorpe.  Both men were accused by the Appellant of criminality.

40.      Whilst we are not aware of the precise issue or issues on which legal advice was sought by DCI Williamson, we do not agree that the fact of such advice having been taken is capable of rendering unlawful or unreasonable the JPCA's approval of the manner in which that investigation was conducted.  It does not seem to us that any fair-minded and objective lawyer is likely to have advised that the Appellants' allegations were such as to justify a fuller investigation than that which DI Burmingham conducted.  It is not necessary therefore to probe further into such arrangements as we would expect to have been applied within the Law Officers' Department to minimise any risk of real or apparent conflict of interest.

41.      Fifthly, the Appellant complains of the fact that, having stated that she would be recusing herself from further involvement in the JPCA's investigation on 1 August 2016, the Chairman of the JPCA issued the Statement of Satisfaction, signed other letters between that date and the end of her term of office on 31 December 2016, and was involved in the instruction of counsel in relation to the judicial review.  Her role in the investigation is said to have been "central", on the basis that there is "no evidence" that the procedure envisaged by the Chair in her letter of 1 August 2016 and involving a supervising member and the Deputy Chairman of the JPCA was actually followed.

42.      The Appellant presents no evidence that Mrs Prosser was herself involved in the substance of the JPCA investigation in the period leading up to the Statement of Satisfaction that is the subject of challenge in these proceedings.  But even if he had, this could have made no difference to the outcome since the Commissioner was in our view correct that Mrs Prosser was over-scrupulous in recusing herself (Judgment, para 54).  As she stated at the time, without challenge from the Appellant, she had no contact with the Joint Financial Crime Unit or DI Burmingham in the ordinary course of her work as the Deputy Chair of the Jersey Financial Services Commission.  In the circumstances, it does not seem to us that a fair-minded and informed observer, neither complacent nor unduly suspicious, would consider there to be a real possibility that Mrs Prosser was biased: Helow v Home Secretary [2008] 1 WLR 2416, per Lord Hope of Craighead at paras 2-3.  As the test was described by Jones JA in Syvret v AG and Connetable of Grouville [2011] JCA 130:

"It is whether a fair-minded observer, informed of all of the relevant facts and circumstances, would conclude that there was a real possibility that the judge was biased. (See In re Esteem Settlement [2001] JLR 169, per Vaughan JA, paragraph 21, as endorsed by the Court of Appeal at paragraph 6 of its judgment in Baglin v. Attorney-General [2005] JLR 180, and at paragraph 12 of the judgment of Montgomery JA in Syvret v Attorney-General [2009] JLR 330). The test is objective."

The Appellant does not in our view improve his case under this head by clothing it in the language of legitimate expectations, or by unsupported allegations as to the Chairman's motivations.

43.      Sixthly, the Appellant takes issue with the Commissioner's rejection (at para 41) of his submission that DI Burmingham dismissed his allegations of criminal behaviour because of his failure to exhaust his civil remedies.  The Commissioner's reading of DI Burmingham's letter of 21 May 2014 is in our view plainly correct: there is nothing in this point.

44.      Seventhly and finally, the Appellant states in his Notice of Appeal that:

"In common with the judgement of the Royal Court in the removal application, [and] the judgement of Commissioner Clyde-Smith in the matter of costs in the removal application, the Applicant is unable to regard the decision of the Commissioner in the application for leave to apply as the product of a 'mistake' or 'incompetence'.

Though on this occasion insinuated rather than clearly stated, this appears to be yet another instance of the Appellant's unhappy tendency to make vexatious allegations of deliberate misconduct for which evidence is entirely lacking. 

"Observations"

45.      The Appellant concludes his Notice of Appeal with a number of observations, not couched in the form of grounds of appeal but directed principally at the objectivity of the Commissioner.  Objection is taken to language used in the judgment of the Royal Court: in particular, references to the Appellant's "scattergun approach" and to the freedom with which the Appellant delivered himself of serious allegations, unsupported by evidence, against a variety of people.  It is suggested that the use of "derogatory terms" towards the Appellant is discourteous, disrespectful and indicative of a loss of objectivity.

46.      We unhesitatingly reject these observations.  As noted above, the Appellant's mode of operation throughout these proceedings has been to impugn the honesty of a wide range of people without producing any evidence to support his claims.  It is perfectly appropriate for a judge pointedly to draw attention both to the emptiness of the allegations of a litigant and to the irresponsible manner in which they were developed.

Conclusion

47.      The appeal against the refusal of leave to apply for judicial review is dismissed.

Authorities

Bisson v JPCA [2017] JRC 087.

Bisson v Rabet and Roberts [2012] JRC 021.

Police (Complaints and Discipline) (Jersey) Law 1999.

Sharma v Browne Antoine [2006] UKPC 57, [2007] 1 WLR 780.

Welsh v Deputy Judicial Greffier [2009] JLR N37.

Corruption (Jersey) Law 2006.

Human Rights (Jersey) Law 2000.

Stefan v General Medical Council [1999] 1 WLR 1293, 1300H.

Helow v Home Secretary [2008] 1 WLR 2416.

Syvret v AG and Connetable of Grouville [2011] JCA 130.


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