Friday, 12 May 2017

APPLICATION FOR JUDICIAL REVIEW OF POLICE INVESTIGATIONS AND REVIEW COMMISSIONER OMISSION TO RECTIFY FALSEHOOD ABOUT 82 LETTERS OF COMPLAINT TO THE POLICE


Form 58.3

 

Form of Petition for Judicial Review

 

UNTO THE RIGHT HONOURABLE

THE LORDS OF COUNCIL AND SESSION

 

PETITION

 

of

 

EDWARD EDELSTEN CAIRNS

residing at 72 Hillhouse Street, GLASGOW G21 4HP

 

for

 

Judicial review of the omission by the respondent, the Police Investigations and Review Commissioner, formerly called the Police Complaints Commissioner for Scotland, to take remedial action in respect of its published recommendation that the police no longer considers or responds to any complaint made by the petitioner which is directly related to those listed in its report for case reference PCCS/00448/08-SP and 0119/10/ PF-SP August 2010 regarding which the respondent had stated that it did not make this recommendation lightly, but had considered it necessary to do so for the reasons stated, which were that the petitioner had submitted 82 letters of complaint to the police which were often confusing and difficult to understand, in view of the respondent’s letter to the petitioner dated 8 February 2017 in which the respondent admitted that there were in fact only 8 letters of complaint submitted to the police by the petitioner.

 

 

 

 

HUMBLY SHEWETH:-

 

1.         That the petitioner is as designed in the instance. The respondent is as designed in Part 1 of the Schedule for Service. [The persons specified in Part 2 of the Schedule for Service may have an interest.] The petitioner has standing. The petitioner is alleged to have suffered injustice as a result of the omission in question.

                                                            .

2.         That the date on which the grounds giving rise to the petition first arose was 8 February 2017.

 

 

3.         That on that date the respondent admitted to the petitioner there were only 8 letters of complaint about the police submitted by the petitioner, not 82 as had been erroneously stated in the respondent’s report and as had been erroneously reported by the respondent to the Herald and the Scotsman, but nevertheless the respondent omitted to take any remedial action.

 

 

4.        That the petitioner seeks this omission by the respondent to be held to be unreasonable in the circumstances and seeks an order by the Court for the respondent to take remedial action by cancelling its recommendation to the police and by notifying the Herald and the Scotsman that the recommendation has been cancelled having been based upon a significant falsehood. The petitioner craves the court to pronounce such further order, decrees or orders (including an order for expenses and solatium for insult and hurt feelings) as may seem to the court to be just and reasonable in all the circumstances of the case.

 

 

5.         That the petitioner challenges the omission of the respondent on the following grounds.

 

 

6.       The respondent’s letter to the petitioner dated 8 February 2017 provided compelling grounds for the respondent to take remedial action since it admitted that the respondent’s report had greatly exaggerated the number of letters of complaint submitted by the petitioner to the police which meant that the recommendation for the police no longer to consider or respond to any complaint made by the petitioner which is directly related to those listed in the report had been unjustified and had been very damaging towards the petitioner in particular because of articles in the Herald and the Scotsman on 13 September 2010 which had also contained further disparaging comments by the respondent about the petitioner based upon this significant falsehood.

 

 

7.       Section 35 of the Police Public Order and Criminal Justice (Scotland) Act (“the Act”) gives the Commissioner the power to examine the manner in which a policing body has dealt with a “relevant” complaint, as defined in the Act.

 

According to published information about the Commissioner’s role, including information published in the original report in question, the Commissioner is independent of the police service and performs his functions in a fair and impartial manner. Before considering a complaint, the Commissioner’s office obtains all papers held by the policing body against which the complaint has been made. These papers are considered alongside information provided by the applicant. The Commissioner then assesses whether the policing body’s handling of the complaint was reasonable in all the circumstances. The Commissioner will look at the entire handling process, from the initial investigation by the policing body to the final response issued to the applicant. Among the factors which the Commissioner takes into account are the following:

  1. whether the policing body’s response to the complaint is supported by all material information available;
    whether in dealing with the complaint the policing body has adhered to all relevant policies, procedures and legal provisions;
    where the complaint has resulted in the policing body identifying measures necessary to improve its service, whether these measures are adequate and have been implemented;
    whether the policing body’s response to the complaint is adequately reasoned; and
    whether the policing body has communicated with the applicant in a reasonable manner.
     
    The respondent’s letter to the petitioner dated 8 February 2017 admitted that the respondent did not act carefully in accordance with its published role and practice and the requirements of the Act as detailed above in the preparation of its original report. The respondent’s omission to take any remedial action further appears not to be in accordance with the respondent’s published role and practice and the requirements of the Act as detailed above.
     
    The petitioner seeks as a remedy an order by the Court for the respondent to take remedial action by cancelling its recommendation to the police and notifying the Herald and the Scotsman that the recommendation had been erroneous and has been cancelled, having been based upon a significant falsehood.    
     

 

PERMISSION TO PROCEED

 

8.       That the applicant requests permission for the application to proceed in accordance with section 27B(2) of the Court of Session Act 1988 since he can demonstrate a sufficient interest in the subject matter of the application and can demonstrate that the application has a real prospect of success in view of the following:

 

     (1)     The petitioner’s rights for complaints to the police to be considered have been nullified unjustifiably by the respondent but the respondent has omitted to take remedial action.

 

     (2)     The petitioner’s reputation has been seriously damaged, he has been insulted and he has had hurt feelings as a result of the respondent’s original carelessness and later omission to take remedial action.

 

     (3)     The respondent’s letter to the petitioner dated 8 February 2017 effectively admits that the respondent failed to act carefully in accordance with Section 35 of the Police Public Order and Criminal Justice (Scotland) Act and has omitted to take remedial action unjustifiably.

 

     (4)     The petition raises an important point of practice by challenging the respondent’s omission to take remedial action in view of the significant falsehood in its original report admitted in its letter to the petitioner dated 8 February 2017.

 

     (5)     The respondent’s original carelessness and its later omission to take remedial action would tend to undermine the general public’s confidence in the respondent’s practice since the respondent has not acted carefully in accordance with Section 35 of the Police Public Order and Criminal Justice (Scotland) Act.

 

 

 

TRANSFERS TO THE UPPER TRIBUNAL

 

9.       That the petition is not subject to a mandatory or discretionary transfer to the Upper Tribunal.  

 

 

 

 

PLEA-IN-LAW

 

1.     The respondent’s omission to take remedial action for the significant error in reporting the number of letters of complaint submitted by the petitioner to the police, admitted in the respondent’s letter to the petitioner dated 8 February 2017, was unreasonable in the circumstances therefore the petitioner seeks an order by the Court for the respondent to take remedial action by cancelling its recommendation to the police and notifying the Herald and the Scotsman that the recommendation had been erroneous and has been cancelled, having been based upon a significant falsehood.    

 

 

                                                                             According to Justice etc.

                                                                            

 

EDWARD EDELSTEN CAIRNS

PETITIONER

 

1 May 2017

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SCHEDULE FOR SERVICE

 

PART 1: RESPONDENT

 

Respondent on whom service is sought in common form

 

The Police Investigations & Review Commissioner, PO Box 26300, Hamilton ML3 3AR

 

 

PART 2: INTERESTED PERSON

 

Interested person on whom service is sought in common form  

 

Police Scotland, Police Headquarters Scotland, P.O. Box 21184, ALLOA FK10 9DE

 

 

 

SCHEDULE OF DOCUMENTS

 

 

1.     The Police Investigations and Review Commissioner’s report for case reference PCCS/00448/08-SP and 0119/10/ PF-SP August 2010

 

2.     Article published in the Herald on 13 September 2010

 

3.     Article published in the Scotsman on 13 September 2010    

 

4.     Letter from the respondent to the petitioner dated 8 February 2017

 

 

 

 

PERIOD OF NOTICE

 

The Petitioner submits that a period of notice of 21 days would be appropriate.

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