Fernie, R (on the application of) v Lincolnshire Police

J U D G M E N Monday, 1st November 2004

1. MR JUSTICE MOSES: This is an unfortunate application where, understandably, languishing in prison, where perhaps senses of grievance become magnified in a way that they do not when you are at liberty, Mr Fernie sought to recover property that he said was his held by the Chief Constable of Lincolnshire Police. He brought proceedings to that effect in the Magistrates' Court.

2. The proceedings maundered on while, for various reasons, they could not be heard. All the while Mr Fernie had the photocopies of these documents, and so he was, I am afraid, a prisoner standing on his rights rather than seeking to achieve anything of any great practical purpose. I know he will not agree with that, but that is how it strikes a bystander.

3. Nevertheless, the matter is all over because I am very happy to say that Mr Fernie is here before me released on parole. I hope he has the rest of his life ahead of him which will not involve disputes with Lincolnshire Police. He is now released and the property (which are documents in the main) in dispute is now going to be handed back to him. There is a letter from the Legal Services Department inviting him to withdraw these proceedings and to collect the property. I hope there will not be a great dispute about how he is to collect it if he wants it.

4. The judicial review proceedings were focused on proceedings in front of the magistrates that certainly, as Blackburne J in giving permission observed, gave rise to a strong argument that the magistrates had been, perhaps, a little too keen in refusing an adjournment when Mr Fernie failed to attend. I emphasise I am not deciding the matter because Miss Simcock, faced with an obstreperous judge, has not had the opportunity to argue, either on behalf of the police or the magistrates, but there was certainly a strong argument and she might have had a little uphill struggle, until I had calmed down, to persuade me that another phonecall ought to have been made to find out what Mr Fernie said about the assertion of the prison, that he had the opportunity to come but had refused to do so whilst escorted, a matter hotly in dispute. But it is all water under the bridge now.

5. As I say, it would be quite wrong to decide that matter and I do not, still less to decide a number of interesting arguments about the right of the police to hang on to these documents. They are saying that they are complying with the code. Mr Fernie is saying whatever the code says it is not what the statute says and the two things are inconsistent. Be that as it may, it would be quite wrong for me to decide what might, in certain circumstances, be an important matter in proceedings that have become wholly academic. They have become wholly academic for the reasons I have given.

6. What I propose to do is to dismiss these proceedings, but because there was at least a strongly arguable case by Mr Fernie, I propose to allow him some of his costs that he will have incurred, both in making phonecalls at the time and, importantly, in having the courtesy to come before me today prepared to argue the matter. So what I propose to do, in a form of palm tree justice, which is the very sort of justice that Mr Fernie objects to, is to say that I shall dismiss the proceedings but order the respondents to pay £100 towards his costs. I hope life can now move on.

7. Thank you all very much indeed.