Jeremy Johnson QC and Mark Thomas appear for the Metropolitan Police and Dijen Basu QC represents Greater Manchester Police in the first 2 cases to reach the Court of Appeal on the existence and scope of any investigative duty arising pursuant to Article 3 ECHR.
Dijen Basu QCPrint PDF Version
YEAR OF CALL: 1994
Dijen Basu QC has over 20 years of experience, specialising in Police, Public and Employment Law.
Having originally qualified and practised as a doctor of medicine, Dijen is uniquely placed to advise on, and act in, contentious matters connected with healthcare, including employment disputes, regulatory and disciplinary issues and inquests. His medical background also makes him a particularly effective cross-examiner of medical experts.
2010: Attorney General’s Panel of Special Advocates
2009: Recorder of the Crown Court
“He is incredibly eloquent, he goes the extra mile all the time and his work ethic is immense.” (Police Law) Chambers UK 2017
“The jury likes his style, and he is intelligent and well prepared.” “His advice is spot-on and he provides a very quick turnaround of papers.” (Police Law) Chambers UK 2017
“He is very pleasant to work with and conveys confidence.” (Chambers UK 2016)
“Well regarded for cases involving the medical profession and police.” (The Legal 500 UK 2015)
“Dijen is: “first-rate”; “has sound judgement”; “is a real expert on police law” (Chambers UK 2014)
He “knows his stuff” and is “spot on in his analysis” (Chambers UK 2013)
“He has a broad employment law practice which includes industrial action, whistle-blowing and discrimination cases” (Chambers UK 2012)
Dijen is: “an all-round performer”; “making real strides in the employment law world” (Chambers UK 2011)
Dijen “has good communication skills”; “is well liked by clients”; “is very thorough and approachable” (Chambers UK 2015)
He is known for his “accessibility, speed of response and quick identification of the main issues of a case” (Chambers UK 2010)
Dijen is “first-rate” and “a real expert on police law” (Chambers UK 2014)
He advises and represents police forces and other police organisations in relation to matters of civil and public law unique to policing such as:
- Entry, search and seizure by police officers, whether under PACE powers or search warrants
- Police powers, including defending judicial review claims brought against police forces challenging their exercise of power
- Counter terrorism
- Defending claims brought against police alleging assault (including use of firearms), false imprisonment, malicious prosecution, misfeasance in a public office and discrimination
- Defending human rights claims
- Policing protests
- Charging organisers for the cost of providing Special Police Services at events such as football matches and large concerts
- Information Law: data protection and freedom of information.
Dijen has considerable experience in inquests where his experience as a doctor can give him the edge, especially where there are complex scientific and medical questions. He represented Surrey Police in the first 12 pre inquest review hearings in relation to the inquest into the death of Alexander Perepilichnyy, up to the point where the Senior Coroner was replaced by the Recorder of London, by the Chief Coroner. Mr. Perepilichnyy was a Russian émigré and businessman, whose unexplained death at the age of 44 years has been claimed to have been connected with his having ‘whistle-blown’ in relation to a large-scale fraud implicating the Klyuyev organized crime group.
Notable cases include:
MLIA & CLEL v Chief Constable of Hampshire Constabulary  EWHC 292 (QB): Lavender J: Dijen successfully defended the police (leading Mark Thomas) in a claim brought by a mother and daughter who reported serious allegations of domestic violence against the daughter’s ex partner to police in 2005. The Claimants claimed that the allegations engaged the investigative and protective duties under Article 3 ECHR and that the Hampshire Police investigation had breached those duties. Lavender J dismissed the claims, refusing to extend the 1-year limitation period and holding that the Claimants’ report to police would not have reached the necessary minimum level of seriousness to engage Art 3 and that, in any event, the Hampshire Police investigation met the required standard.
Ipswich Town Football Club Co Ltd v Chief Constable of Suffolk Constabulary  4 WLR 118: Green J: Dijen successfully defended the police (leading Catriona Hodge) in a claim brought by a football club in relation to whether the policing of roads at the club’s request, which just outside the club’s turnstiles and which were closed on match days, amounted to the provision of special police services for the purposes of s.25 of the Police Act 1996, enabling the police to charge for that policing. The club has appealed and the Court of Appeal will begin hearing the appeal on 27th June 2017. The English Football League have intervened in the appeal. The BBC News report of the trial is here. The more recent judgment relating to unjust enrichment, limitation and claims for compound interest is here.
Koraou v Chief Constable of Greater Manchester Police  QB 161, Court of Appeal: Lord Dyson MR, Laws & Kitchin LJJ: Dijen acted for the Chief Constable, defending the claimant’s appeal in one of the first two cases (the other being DSD v Commissioner of Police, with which it was heard) to reach the Court of Appeal, concerning (1) whether Article 3 imposes an investigatory duty, the breach of which sounds in damages (so as effectively to circumvent the core principle in Hill v West Yorkshire Police), and (2) the scope of that duty. The Chief Constable was successful.
R (B) v Chief Constable of Hampshire Constabulary  1 WLR 5250: Jeremy Baker J: police had revealed, to the girls’ school which employed the claimant, serious allegations of a sexual nature which had been made against him in a previous similar employment. The Court held that, contrary to the claimant’s contentions, the disclosure was ‘such as was in accordance with the law’ for the purposes of Article 8, but that it had been disproportionate in this case. Dijen acted for the Chief Constable.
Chief Constable of Devon and Cornwall Constabulary v Allard  ICR 875, Court of Appeal: Longmore, Patten & Gloster LJJ: with Jeremy Johnson QC, Dijen represented the Chief Constable (as he had below) in this appeal concerning overtime entitlements of police informant (source) handlers.
R (M) v Chief Constable of Hampshire Constabulary & Secretary of State for the Home Department  1 WLR 1176, Moore-Bick, Tomlinson & King LJJ: Dijen represented the chief constable before the Court of Appeal who held that the force did not breach a sex offender’s Article 8 rights by conducting unannounced visits to assess his risk of reoffending. The Claimant is petitioning the Supreme Court for permission to appeal.
R (Mackaill & ors) v Independent Police Complaints Commission & ors  ACD 19 QBD Div Ct (Davis LJ & Wilkie J): This case arose out of a meeting between Police Federation officers and the Rt Hon Andrew Mitchell MP shortly after the notorious ‘Plebgate’ incident at the gates of Downing Street. It precipitated his resignation from HM Government. After an IPCC supervised police investigation into the Federation officials’ conduct resulted in decisions by the forces that they had no case to answer for misconduct, the Deputy Chair of the IPCC had publicly expressed her strong disagreement with their decisions and the Home Affairs Select Committee had investigated the matter. The IPCC then purported to re-determine the form of the supervised investigations in order to conduct a fresh independent investigation itself. The officers challenged this decision and Dijen acted for the Chief Constable of Warwickshire Police in the case. The IPCC’s decision was quashed on grounds of apparent bias/prejudgment on the part of Ms. Glass.
Bloom v HM Senior Coroner for the Western District of London  Med LR 490;  ACD 2; QBD Div Ct (Mitting J & HHJ Peter Thornton (Chief Coroner)): Dijen acted for the Coroner in this claim for a fresh inquest into the potentially avoidable death of a woman after routine surgery in a private hospital. The claim was brought on the fiat of HM Attorney General and the claim was unusual because there had already been 2 previous inquests. The Court ordered a third. The Daily Mail report into the case is here.
R (Paolo) v City of London Magistrates Court & the Commissioner of Police for the City of London  LLR 298 QBD Div Ct (Laws LJ & Cranston J): Dijen (leading Catriona Hodge) acted for the Commissioner in a judicial review claim brought out of time. The Claimant was a businessman challenging a search warrant which had been issued in relation to a police investigation into his sale of Albanian decoder cards which were being used by publicans and others to view and display Premier League football matches without having to pay an expensive subscription to Sky or to ESPN. The Court were persuaded that the Claimant had misled them as to the reason for the delay in bringing his claim and peremptorily dismissed his claim on that ground.
XYZ v Chief Constable of Gwent Constabulary:  EWHC 1448 (QB): Dijen represented the force in a claim of misfeasance in a public office brought by a police informer who was a Fathers4Justice campaigner arrested in possession of bullets and gunpowder. The claim was robustly defended, culminating in an attempt to save it by seeking to add a claim of a breach of Article 8 in relation to a discrete allegation. The Court rejected the claimant’s application, applying the tougher approach to non-compliance espoused in Mitchell News Group Newspapers Ltd and refusing to extend the s.7(5) HRA time limit. The claimant subsequently discontinued his claim, which had been listed for 5 days in the High Court.
Koraou v Chief Constable of Greater Manchester Constabulary: Dijen defended a chief constable whose officers were accused of breaching the claimant’s Article 3 right by failing properly to investigate an incident in which his ear was partly bitten off. The trial judge found that, while there were shortcomings in the investigation, there were significant evidential weaknesses because the claimant’s accounts had been contradicted by others and by his own accounts. He held that there had therefore been no breach of his Article 3 rights and dismissed the claim. The claimant’s appeal to the Court of Appeal has been listed to be heard over 5 days with Commissioner’s appeal in DSD & NBV v Commissioner of Police of the Metropolis  EWHC 2493 (QB), between 11th and 15th May 2015.
Greatrex v Chief Constable of Gwent Constabulary: Dijen acted for the chief constable whose officers had arrested a 67-year old man, who had never before been in trouble with the police and who was released without charge. Every aspect of the arrest was challenged but the focus was on necessity. After a 5-day trial before HHJ Seys-Llewellyn QC and a jury, judgment was given for the chief constable.
R (A) v Chief Constable of Kent Constabulary  EWCA Civ 1706 , (2014) 135 BMLR 22,(Pitchford, Beatson & Gloster LJJ): Dijen acted for the Chief Constable in his appeal against Lang J’s decision that he had breached the claimant’s Article 8 right in disclosing allegations which had been made about her. The Court of Appeal agreed with the Chief Constable that Lang J had erred in taking into account new material which had not been available to the decision-maker. The Court held that “in a case … where the primary decision-maker is not under a continuing duty in relation to the matter [being challenged] …, the reviewing court should not consider post-decision material when conducting its assessment of whether a prima facie infringement of an ECHR right has been justified as proportionate” (§91). This decision applies (save in “exceptional circumstances”) to all claims for judicial review founded upon a claim of a breach of an ECHR right, except where the decision-maker whose decision is challenged remains under a continuing duty in respect of the matter. Agreeing that the judge had erred in law “and possibly also erred in making findings of fact about the reliability of the allegations by resolving conflicts in the evidence without having heard oral evidence”, the Court of Appeal then considered the relevant pre-decision material for itself. In the result, it came to the same conclusion as Lang J and so dismissed the appeal.
R (R) v Chief Constable of West Midlands Constabulary  EWHC 2864 (Admin),  1 Cr App R 16 QBD Div Ct (Pitchford LJ & Hickinbottom J): Dijen acted for the chief constable in this, the first case concerning Operation Nutmeg, the national police operation to collect the DNA of serious offenders who are not on the National DNA Database. The claimant claimed that a detective inspector’s authorisation for the compulsory collection of a DNA sample from him was a breach of Article 8 and disproportionate, as the offence which triggered the decision had taken place 30 years before, he was not suspected of subsequent offences and very few of the other serious past offenders who had had their DNA taken, had produced DNA matches leading to any prosecutions. The Court agreed with the chief constable that the authorisation was lawful. The claimant is seeking permission to appeal. The BBC News website article can be found here.
Commissioner of Police of the Metropolis v Keohane  ICR 1073, EAT: a concerning discrimination on grounds of pregnancy and maternity and indirect sex discrimination. The claimant was a police dog handler, one of whose police dogs was taken from her while she was on maternity leave. The Daily Mail website article can be found here.
R (Mengesha) v Commissioner of Police of the Metropolis  EWHC 1695 (Admin), QBD Div Ct, Moses LJ and Wyn Williams J held that, when releasing people from a (lawful) containment, the force had unlawfully required each person to provide their name, address and date of birth, and to submit to filming, as the price for their release, and had as a consequence unlawfully collected and retained the data in question. The BBC News website article can be found here.
R (Minter) v Chief Constable of Hampshire Constabulary & Secretary of State for the Home Department  1 WLR 179 the Court of Appeal (Laws, Moore-Bick & Beatson LJJ) held that the Divisional Court (Richards LJ, Eady & Treacy JJ ( 1 WLR 1157)) had correctly decided that the Chief Constable had been right to inform the claimant that he remained subject to the sex offenders’ notification regime for life because the extended licence component of his extended sentence was part of his sentence of imprisonment for notification purposes.
Boardman v Nugent Care Society & another  ICR 927, CA: Dijen acted for a teacher dismissed for an assault on a pupil, which she vigorously disputed, who claimed wrongful and unfair dismissal. The Court of Appeal (Maurice Kay, Toulson & Jackson LJJ) dismissed the School’s appeal against the decision of the EAT (Supperstone J & 2 lay members) that the employment tribunal’s rejection of the claimant’s wrongful dismissal claim had been perverse. They reversed the EAT’s perversity finding in relation to the tribunal’s rejection of her unfair dismissal claim, given that the tribunal’s misapprehension of the facts had infected its own, but not the school’s, decision making.
R (V) v Commissioner of Police for the City of London  EWHC 3430 (Admin), QBD Div Ct, Richards LJ and Ouseley J: dismissed a claim for judicial review by a man, arrested, but never charged, who sought destruction of his DNA profile, fingerprints, custody photograph and PNC records. His claim relied on decisions (e.g. GC in the Supreme Court) that the policy under which DNA, fingerprints and custody photographs were held constituted a disproportionate interference with Article 8 rights. The Court agreed with City of London Police that there was a need for a consistent national approach to these data.
Alleyne v The Commissioner of Police of the Metropolis  EWHC 3955 (QB): Dijen acted for the Commissioner in a case where a large number of police officers entered a flat in search of the murderers of Ben Kinsella. The Claimant was the father of one of the murderers, who was injured when police entered. He claimed that he had been deliberately kicked by officers while lying on the floor and then unlawfully detained, questioned and denied medical attention. All of his claims were rejected, save that the Court held that officers had been negligent in causing him to suffer a black eye and broken ankle during the entry. Click here for a link to the Daily Mail article.
ABC, JKL & XYZ v A Chief Constable (High Court, Queen’s Bench Division, 13 September 2012): representing the Chief Constable of a police force in his application to strike out claims for damages for breach of contract and negligence brought by the claimants, who had been part of the force’s witness protection programme. The Court struck the claims out in their entirety.
Tyler v Easterbrook : Dijen acted for a young man who sustained a very serious brain injury in a car accident. On 30 August 2012, he represented the claimant at a joint settlement meeting at which he negotiated settlement at just over £1.2 million
British Sky Broadcasting Group Plc & Ors v Digital Satellite Warranty Cover Ltd & Ors (Chancery Division, Sir William Blackburne, 9 May 2012): intervening at the start of a trial on behalf of the City of London Police Force in order to secure an order postponing any reporting of the proceedings, pursuant to s.4(2) of the Contempt of Court Act 1981, while a related police investigation is at a sensitive stage.
D v Commissioner of Police of the Metropolis  All ER (D) 162 (Feb), Eady J: A case concerning the investigatory duty pursuant to Article 3 ECHR. The Master struck the claim out as being out of time, but Eady J reversed this decision on appeal by the Claimant. The case has now settled. The Guardian article can be found here.
Fitzpatrick, Wilkey & TBW solicitors v Commissioner of Police of the Metropolis  Lloyd’s Rep. FC 361, Globe J: This was 6-day trial in which Dijen was led by Ronald Thwaites QC. The case concerned claims of false imprisonment, unlawful search and seizure and breach of the Article 8 rights of solicitors arrested for alleged money laundering offences. The claimants’ costs (if successful) would have been a very high 6-figure sum. The Court dismissed all of the claims and gave judgment for the police force with costs. In so doing, the Court gave useful guidance on police powers of search and seizure for later sifting (under s.50 of the Criminal Justice and Police Act 2001), as well on searches of premises following arrest (under s.32 PACE). Click here for the Law Society’s note on this case.
R (CC) v Commissioner of Police of the Metropolis and another  1 WLR 1913, Collins J: This case is the first occasion on which the Court has considered the power of police officers to question, detain (for up to 9 hours) and search people (as well as vehicles, ships and aircraft) at ports, without requiring any grounds for suspicion, in order to determine whether they appear to be, or to have been, involved in terrorism. These are powers which have existed in a similar form for 4 decades and are now contained in Schedule 7 of the Terrorism Act 2000.
R (Howarth) v Commissioner of Police of the Metropolis & anor  EWHC 2818 (Admin), QBD Div Ct, Hallett LJ & McCombe J: In rejecting a test case supported by Liberty, the Court held that a s.1 PACE search of a large group of protesters on a train was lawful where officers had reasonable grounds to suspect that members of that group would be carrying items such as chalk intended for use in making marks at an oil refinery protest amounting to relatively minor and temporary criminal damage. The Court also held that there was no unlawful interference with the claimant’s human rights under Articles 8, 10 and 11 of the ECHR. The BBC News website article can be found here.
Gardner v Chief Constable of West Midlands Constabulary  Eq LR 20, EAT, Langstaff J: the employment tribunal erred in law in finding that the force had failed in a duty to make a reasonable adjustment to permit the claimant officer a “working practice [of] remote working so that he can operate between the workplace and a home office”, without first properly identifying the relevant substantial disadvantage suffered by the officer. The EAT remitted the claim to a freshly constituted tribunal, which subsequently dismissed the remitted claim, holding that the claimant’s return to work had been “a sham” and that his evidence about his difficulties and his true intentions over the material period had been “dishonest and untrue”. The claimant’s appeal was dismissed, and the Chief Constable is now seeking a costs order.
Aitken v Commissioner of Police of the Metropolis  ICR 78, Court of Appeal. Disability Discrimination. The Court of Appeal (Mummery, Rix and Patten LJJ) upheld the judgment of the EAT, who had held that a disability discrimination claim must be based on the claimant’s actual disability or on that of someone associated with them. They specifically praised the force for the way that it had handled Mr. Aitken’s management.
Balu v Dudley Primary Care Trust  All ER (D) 217 (Jun). A doctor, accused of misconduct toward a patient, mounted an appeal to the Administrative Court arguing that the (now first tier) tribunal had wrongly refused to exclude evidence which he claimed was covered by legal professional privilege. He was represented by a senior silk at the appeal. Dijen appeared for the PCT and successfully resisted the doctor’s appeal. The doctor was subsequently ‘struck off’ the medical register by the General Medical Council.
Coors Brewers Ltd v Adcock and others  ICR 983, Court of Appeal: This concerned the question whether discretionary bonuses could be recovered as unlawful deductions under the Wages provisions of the Employment Rights Act 1996. Dijen represented over 500 claimants in this litigation.
Guernina v Thames Valley University  EWCA Civ 34, Court of Appeal: whether national terms and conditions for university lecturers precluded outside employment. Dijen acted for the successful employer
Scope v Thornett  ICR 236, Court of Appeal: assessment of compensation where there is evidence that the employee’s employment might have ended in any event. In this case, the Court of Appeal held that an employment tribunal’s assessment of future loss inevitably involved speculation, declining to follow the approach of the Inner House of the Court of Session in King v Eaton (No. 2).
London Borough of Lambeth v Corlett  ICR 88. Employment Appeal Tribunal: the application of the statutory dispute resolution procedures. In this case, the EAT cast serious doubt on the correctness of Bissett v Martin, a case in the EAT in Scotland in which it was held that the statutory grievance procedure does not apply to grievances about fellow employees
Kaid v Gruppo Ltd  UKEAT 0546/03/25, Employment Appeal Tribunal: Representing the employer, this case concerned a contract of employment which had become illegal because of the way it had been operated by the parties. It was remitted to the employment tribunal on one point and the employee’s claim was rejected for illegality
London Underground Ltd & anr v Ferenc-Batchelor & anr  ICR 656, Employment Appeal Tribunal: Right to be accompanied at disciplinary and grievance hearings.
Azzaoui v the Commissioner of Police of the Metropolis (13.5.02): Muslim traffic warden declining to wear uniform depicting the Crown, as it had a cross on it. This led to a change in the uniform policy of the Metropolitan Police Force.
National Power v Young  ICR 328: Court of Appeal: Time Limits in Equal Pay cases
Kapadia v London Borough of Lambeth  IRLR 699: Court of Appeal: Disability Discrimination: This was the first ever case to be supported by the Disability Rights Commission
Clinical Malpractice and Personal Injury
A former practising doctor, Dijen is regularly instructed in cases involving clinical malpractice, including professional misconduct and clinical negligence claims.
He represented a primary care trust in a case involving a doctor accused of indecently assaulting a patient in which the doctor mounted an appeal to the Administrative Court, concerning a point relating to legal professional privilege (see Balu v Dudley Primary Care Trust  All ER ) 217 (Jun))
He acted for a husband and wife who sustained psychiatric injury when they witnessed their daughter being struck by a car driven by a drunk driver on Christmas morning. She succumbed to her injuries a month later and the couple recovered (in settlement) over £1 million in damages between them
He was instructed on behalf of a man gravely injured when knocked off his motorcycle by a Range Rover being driven by a well-known footballer. He secured settlement just short of £1 million
He represented a former SAS soldier who was crushed by a 2 tonne machine being moved negligently by his business partner. The defendant, represented by a senior silk, disputed liability, alleging that the claimant had devised the negligent system of moving the machine. The liability trial in the High Court ended with the claimant succeeding on liability and recovering his costs on the indemnity basis. During Dijen’s cross-examination, both the defendant’s managing director and another witness admitted having lied in their witness statements about the key allegation.
Aviation: Dijen holds Private Pilot’s Licences to fly both helicopters and fixed-wing aircraft. Volunteer passengers are most welcome!
1992 to present: Full Registration with the General Medical Council
1991 MB, BS degree (with Distinction in Surgery) [Less than 10% of all London University medical graduates gained a Distinction in 1991]
1986 to 1991 Guy’s Hospital Medical School
1988 Sir Frederick Gowland Hopkins’ Prize for Biochemistry