R. (on the application of Chief Executive of the IPCC) v Independent Police Complaints Commission and ors. [2016] EWHC 2993 (Admin)

Facts

On 10 July 2013, Dorothy Begley (DB) called the police for assistance in relation to her son, Jordon Begley (JB). Her primary concern was that he may become violent. By way of background, JB had been drinking on the date in question and was upset about having been accused of stealing a handbag. DB reported to police that JB had a knife, and further, that he wanted to go outside to confront his accusers.

A number of officers arrived at the scene.

After some initial interaction with JB, PC Donnelly decided to fire his Taser gun at JB. PC Donnelly stated that he took this action because he thought JB might have a knife in his pocket, and was walking towards him.

Once tasered, JB fell to the floor and was restrained face-down by more officers arriving at the scene. In the course of restraining JB, and controlling his behaviour, one of the officers, PC Mills, delivered two strong punches referred to as “distraction strikes” to JB’s back to enable him to be handcuffed.

JB became unwell after being handcuffed and an ambulance was requested to take him to hospital. He died shortly thereafter.

The Independent Police Complaints Commission (IPCC) investigation

The IPCC investigated the matter. This is required in cases such as this to ensure that the state complies with its procedural obligations under article 2 of the European Convention on Human Rights (the right to life). Essentially, the state must ensure proper accountability when someone dies as a result of action by state agents.

Stephen Liston (SL) was instructed by the IPCC to carry out the investigation. SL produced an investigation report dated 23 April 2014. The purpose of the report was to express an opinion as to whether or not the officers had a “case to answer” in respect of misconduct or gross misconduct; which is a feature of many disciplinary regimes.

SL concluded that there was no case to answer in relation to each of the officers. As is required by the relevant legislative regime under the Police Reform Act 2002, the IPCC sent SL’s report to the Chief Constable of the relevant police authority, in this case the Greater Manchester Police (GMP). Upon receipt of the report, the Chief Constable of GMP invited the police to reply with a memorandum stating whether or not the Chief Constable (acting through an Assistant Chief Constable) agreed with the report's finding that there was no case to answer.

The Chief Constable of GMP accepted the finding of the investigation in a letter dated 27 August 2014, but the final decision rested with the IPCC. The IPCC officer with overall responsibility for the investigation, Commissioner Dipple-Johnstone, also deemed the finding to be appropriate and agreed that no action should be taken. The officers were all notified.

Inquest

An inquest into JB’s death commenced on 1 June 2015. The verdict, whilst not directly relevant to the issues in the present case, prompted the IPCC to rethink its position.

The narrative verdict was delivered on 6 July 2015. The verdict was critical of the officers involved. The jury found that:

i. JB died as a result of stress-induced cardiac arrest;

ii. the discharge of the Taser and the manner in which the officers restrained materially contributed to his death;

iii. the length of time for which the Taser was deployed (over 8 seconds) was not reasonable;

iv. there was no need for PC Mills to have punched JB twice; and

v. the officers had not been sufficiently concerned with JB’s welfare once he was handcuffed.

Re-opening of the investigation

Commissioner Dipple-Johnstone decided that the IPCC should review the original investigation to determine whether or not there were grounds to re-open it having regard to the Divisional Court's decision in R (on the application of Demetrio) v Independent Police Complaints Commission [2015] EWHC 593 (Admin), subsequently approved by the Court of Appeal [2015] EWCA Civ 1248. In short, the Court held that an investigation could be reopened where there were compelling reasons to do so.

Commissioner Cindy Butts, charged with the review, concluded that the investigation should be re-opened, and produced a detailed report in which she stated there were various public law defects in the original report which justified quashing the original determination.

The IPCC decided that it should obtain a formal order from the court to quash the report and the consequential decision that there was no case to answer.

A quashing order (a public law remedy only available through judicial review) when granted renders the decision (or non-decision) under challenge void ab initio. Thus, as a matter of law, the decision (or non-decision) never took place and any consequential decisions are, necessarily, voided too.

The legal framework

Section 12 (2) of the Police Reform Act 2002 (the Act) states:

(2) In this Part “conduct matter” means (subject to the following provisions of this section, paragraph 2(4) of Schedule 3 and any regulations made by virtue of section 23(2)(d)) any matter which is not and has not been the subject of a complaint but in the case of which there is an indication (whether from the circumstances or otherwise) that a person serving with the police may have—

(a) committed a criminal offence; or

(b) behaved in a manner which would justify the bringing of disciplinary proceedings

The procedure for the conduct of investigations is governed by Schedule 3 to the Act. In a death or serious injury matter, the IPCC will carry out the investigation itself by producing a report.

Paragraph 22(7) of Schedule 3 to the Act empowers the Secretary of State (normally the Home Secretary) to make regulations as to matters which must be included in any report. Regulation 20 of the Police (Complaints and Misconduct) Regulations 2012/1204 (the Regulations), made by the Secretary of State under para 22(7)), specifies the three matters which must be included in any report:

“… on completion of an investigation the investigator's report shall

(a) provide an accurate summary of the evidence;

(b) attach or refer to any relevant documents; and

(c) indicate the investigator's opinion as to whether there is a case to answer in respect of misconduct or gross misconduct or whether there is no case to answer.”

The court held that it is not the function of the investigator to decide whether criminal or disciplinary proceedings should be brought. The investigator’s function is to produce a report which provides an accurate summary of the evidence and states their opinion (which must be reasoned) as to whether there is a case to answer in respect of misconduct or gross misconduct (applying the civil standard).

Section 22 of the Act provides for the IPCC to issue guidance to police bodies and officers as to the way in which it will perform its functions. Such guidance must, necessarily, be consistent with the statute under which it is issued.

The court held that relevant guidance issued by the IPCC in 2013, and later revised in 2015, was, respectively, “wrong and misleading” and not “satisfactory”. The court instead said regard should be had to the judgment of the Court of Appeal in R (Chief Constable of West Yorkshire Police) v Independent Police Complaints Commission [2014] EWCA Civ 1367, in which it was held that it is not the role of an investigator to reach final conclusions as to whether misconduct has been committed, or to resolve a conflict of evidence. The investigator’s role is to express an opinion on whether or not there is a case to answer. Sir Colin Rimer, stated at paragraph 50:

“A “case to answer” in that context means a case to answer before a criminal court and/or a disciplinary tribunal. It is, one might think, obvious that if the investigators' task is to report their opinion as to whether there is such a case to answer before another tribunal, it is not their function also to purport to decide the very question or questions that are raised by such a case.”

Further, Sir Colin stated:

“…for … the investigators to purport to decide the matter themselves is potentially prejudicial to the fairness of the proceedings before that other tribunal …”

Pursuant to paragraph 23(8)(b) of the Act, the Commission shall decide whether or not to make a recommendation under paragraph 27, that disciplinary proceedings are brought against the police officer concerned. Accordingly the investigator's report is “one step in the process of determining whether criminal or disciplinary proceedings should be brought against an officer and the investigator's opinion as to whether there is a case to answer does not bind the decision makers. However, the report (including the investigator's reasoned opinion as to whether there is a case to answer) is obviously an important step. The contents of the report will certainly be the focus of any future decision making and are likely in practice to heavily influence those decision makers”.

The court made clear that although an investigator must explain the evaluation of the evidence collated that has caused them to come to their conclusion, they must: “be careful to stop short of expressing findings on the very questions that will fall to be answered by the disciplinary proceedings, court or tribunal which may consider the matter.

The investigator's opinion as to whether the case should succeed is immaterial.

Errors of law

The claimant’s case was that:

i. the investigator applied the wrong test when determining whether there was a case to answer; and

ii. there was a breach of regulation 20, in that the investigator failed to provide an accurate summary of the evidence.

As to the first ground, the court concluded that: “On any sensible reading of this report as a whole it is plain that the investigator was reaching his own determination as to whether misconduct or gross misconduct had been committed. The premise of the investigator's analysis was that unless he was satisfied on the balance of probabilities that misconduct had been committed, there was no case to answer. In so doing he was following the guidance which West Yorkshire later said was erroneous”.

At paragraph 29 of the decision, the court stated that the aforementioned error “fatally undermines the validity of the report”.

As to the inadequate statement of facts and failure to refer to documents, the court acknowledged that it is not the function of the investigator to provide an exhaustive account of the evidence, only such as is material to the matters in issue. Further, the investigator will no doubt exercise their judgement in determining what is material and what is not. This aside, the court would not seek to interfere with a report simply because with the benefit of hindsight it considered a particular document or such likes should have been referred to.

Whilst not the primary point, the court concluded that in this case the report did not adequately set out the material evidence which further reinforced that the report was unsatisfactory.

As to the police officers involved, the court stated as follows at paragraph 40:

“We are very alive to the difficulties which the individual officers have to face and the stress they will undoubtedly be under….However, we do not think that in a case of this nature those considerations can override the need for a proper investigation. A man's life has been lost while he was under restraint by the police. If there has been wrongdoing, the individuals concerned should be accountable. If there has not, that should be explained in a report which fulfils the statutory requirements. There needs to be a proper investigation to meet the requirements of article 2 and there has not been. Furthermore, the IPCC has an obligation to ensure public confidence that the police are being subjected to appropriate procedures which properly hold them to account”.

Decision

The court quashed the report and the consequential decision that there was no case to answer.

Commentary

This case is not just relevant to disciplinary proceedings involving the police. It provides an insight into the court’s view of the role of an investigator, which has long been an issue which those who work within the regulatory and disciplinary field have grappled with. Whilst an investigator plays a vital role in gathering the evidence, sifting documents, interviewing witnesses and such likes. They should stop short of making ‘findings’. That role is for subsequent bodies/panels. This of course, must be right, in order to maintain the integrity and independence of the disciplinary process as a whole.

More tangentially, this case also reminds regulators and regulated persons about the place of statutory guidance issued in relation to disciplinary procedures. Any such guidance must be consistent with the law. If guidance is not within the terms of the statute to which it relates, it is ultimately the court which must determine the meaning and effect of the relevant statutory provision in accordance with the general principles of interpretation and administrative law.