High Court considers what is, and what is not, permissible to embrace within a report by the IPCC upon a complaint against a police officer
Judgement date: 11 September 2013
On 11 March 2011 police officer PC Armstrong stopped a car, driven by a Mr Sutcliffe, that was allegedly speeding. In the course of the events that followed an altercation took place which resulted in Mr Sutcliffe’s arrest for a public order offence. During the arrest PC Armstrong used CS spray, struck Mr Sutcliffe with his police baton and handcuffed him. Mr Sutcliffe suffered permanent damage to his left thumb. Unsurprisingly perhaps, Mr Sutcliffe and PC Armstrong gave different accounts as to what in fact took place. In June 2011, the Crown Prosecution Service (CPS) discontinued all charges against Mr Sutcliffe.
A referral was made to the Independent Police Complaints Commission (IPCC) in September 2011 in relation to the behaviour of PC Armstrong during the arrest. The IPCC Report (the Report), dated 19 March 2012, concluded that the complaint was upheld and that there was a case to answer in respect of an alleged ‘breach of the standards of professional behaviour’. It was also clearly said that the view of the IPCC was that the arrest of Mr Sutcliffe was unlawful. The case was referred to the CPS for their consideration as to whether to prosecute PC Armstrong for assault, however, it was decided by the CPS that there was insufficient evidence. The Report was duly disclosed to PC Armstrong and Mrs Sutcliffe in August 2012.
The conclusions reached included that PC Armstrong’s arrest of the complainant was not lawful, he had not used reasonable force, the use of CS spray was neither necessary nor reasonable in the circumstances, and that the subsequent baton strikes were excessive. It was concluded that ‘on the balance of probabilities all uses of force used by PC Armstrong were unlawful and excessive and thereby constituted an assault’. The complaint was upheld and PC Armstrong notified that there was a case of misconduct to answer.
It was argued on behalf of the Chief Constable that the function of the IPCC is not to determine either criminal or civil liability; their role is to investigative and to report alleged breaches of the criminal law or police discipline to the CPS or Chief Constable as appropriate. It was argued that the IPCC had reached ‘unlawful and impermissible conclusions’ and had far exceeded the only permissible finding which is that there is a case to answer’ in respect of misconduct or a criminal offence. In short, it was submitted that the IPCC had ‘over reached itself’.
On behalf of the IPCC it was said that the Report did not overstep the mark, its primary responsibility being to respond fully to the complaint. It was said that the complaint could not be properly or adequately determined unless the legal issue is covered and answered by the Report of the IPCC. It was said that it was for the CPS and/or the civil courts to determine whether there has been any wrongdoing, but the IPCC is permitted to opine about issues intrinsic to the complaint.
Having considered the relevant provisions under the Police Reform Act 2002 and the Regulations made thereunder, it was made clear that the ambit of the IPCC is restricted to ‘factual investigation and nothing more’.
The Court said that ‘it cannot be suggested [that] the IPCC is not permitted to express an opinion about whether, upon its evaluation of the evidence, something is arguably unlawful or potentially criminal, but it must be in an appropriate form and expressed in language devoid of purported actual determination’. 
‘The role of the IPCC…is purely investigative and must not trespass upon the territory of the decision maker or even hint at doing so. The language employed in reports is or crucial importance for very obvious reasons. These reports are frequently of huge importance and need to be carefully crafted within lawful boundaries. An ill chosen phrase or imprecision of expression or infelicity of language could have damaging consequences’. 
The Court laid down the following propositions;
- The primary function of the IPCC in this context is to investigate a complaint against the police under the 2002 Act;
- Such a complaint must be investigated with rigour and determination in order to maintain public confidence in such enquiries;
- The function of the investigation is to record matters which may constitute a crime or breach of discipline. The investigative ambit must be confined to that important but limited role;
- It is in nor part the function of the IPCC to make definitive findings or ruling upon any issue but to gather evidence and establish facts to enable those who have the lawful authority to decide whether to commence disciplinary charges or institute criminal proceedings;
- As a critical by-product (if appropriate) the report may go so far as to assist the decision maker to establish whether there is a case to answer in respect of misconduct or a criminal charge;
- In this regard the high water mark is the report may give an opinion as to whether there is a case to answer;
- The report is not permitted to be determinative or purport to be determinative of such matters;
- It is for the criminal courts to determine the guilt or otherwise of any individual; it is for the civil courts to determine civil liability of any person or body; and it is for the police disciplinary body to institute and resolve disciplinary issues of a police officer;
- The IPCC must remain within the four corners of the 2002 Act which demands investigation and gathering of evidence to enable the decision maker to make a decision;
- If there is a critical need to offer a view as to the lawfulness of conduct it must be couched in the language of an indication of opinion on the matter;
- It is permissible to evaluate the evidence and competing accounts. A report is not an arid distillation or summary of all that has been gleaned;
- In viewing reports of the IPCC it is vital to remember to whom they are addressed and approach each one with a sense of realism. They are not judgement, nor lawyer-crafted contracts.
Applying these principles it was decided that the language used in the present Report amounted to a suggestion of determination rather than opinion. The author of the Report had wrongly embarked upon consideration of the lawfulness of the arrest of Mr Sutcliffe and of the actions of PC Armstrong. Further, when the CPS decision not to prosecute PC Armstrong was taken, the Report should have been revised. The Report was therefore said to be unlawful and should be quashed, with the IPCC invited to re-craft it in lawful terms.
Permission to appeal this decision was granted, this case being considered to be of considerable importance to the IPCC and the police.
The principles outlined in this judgement arguably create a difficult line to tread for the IPCC with respect to the terms in which their reports are couched. Whether these principles will survive the inevitable appeal remains to be seen.