BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

England and Wales High Court (Administrative Court) Decisions


You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> AB, R (On the Application Of) v West Yorkshire Police [2016] EWHC 2054 (Admin) (10 August 2016)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2016/2054.html
Cite as: [2016] WLR(D) 475, [2017] PTSR 228, [2016] EWHC 2054 (Admin)

[New search] [Context] [View without highlighting] [Printable RTF version] [Buy ICLR report: [2017] PTSR 228] [View ICLR summary: [2016] WLR(D) 475] [Help]


Neutral Citation Number: [2016] EWHC 2054 (Admin)
Case No: CO/4070/2015

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL
10/08/2016

B e f o r e :

MR JUSTICE SWEENEY
____________________

Between:
THE QUEEN (on the application of AB)
Claimant
- and -

THE CHIEF CONSTABLE OF THE WEST YORKSHIRE POLICE
Defendant

____________________

Stephen Cragg QC (instructed by Hickman & Rose) for the Claimant
Matthew Holdcroft (instructed by West Yorkshire Police) for the Defendant

Hearing date: 10 March 2016

____________________

HTML VERSION OF JUDGMENT APPROVED
____________________

Crown Copyright ©

    Mr Justice Sweeney:

    Introduction

  1. By permission of Richard Clayton QC, sitting as a Deputy High Court Judge, which was granted, together with an extension of time, on 16 October 2015, the Claimant seeks judicial review of the Defendant's decision, made on 31 March 2015, not to uphold his appeal, made under the provisions of paragraph 25 Schedule 3 to the Police Reform Act 2002, as amended ("the 2002 Act"), against the adequacy and findings of an investigation into a complaint against police officers made by him on 29 August 2014 in relation to events on 11 December 2012. The complaint included the unlawful use of force, failure to follow correct arrest procedures and the fabrication of evidence.
  2. The issue at the heart of the Claimant's case is the alleged failure of the Defendant, either as part of the investigation or on appeal, to find that the Claimant's complaint was one which satisfied the test for the application of "special requirements" as provided in paragraph 19B(1) of Schedule 3 to the 2002 Act and associated Regulations and statutory guidance.
  3. It is asserted that the case concerns some important aspects of the police complaints scheme, and how it and the accompanying appeal scheme should be conducted by the police to ensure the fair and proportionate investigation of serious complaints.
  4. On behalf of the Defendant it is submitted, in summary, that:
  5. i) The Claim should be dismissed on the basis that when the Claimant's complaint was assessed against the information and evidence available at the time, his account was so undermined that there was no prospect of misconduct proceedings being brought and consequently the "special requirements" conditions were not satisfied.

    ii) If, contrary to the Defendant's primary submission, the investigation should have been certified subject to "special requirements", the claim should still be dismissed on the basis that no substantive criticism of the investigation has been made and that consequently the absence of certification had no adverse impact on either the investigation or the appeal.

    iii) Even if the Claimant's case is otherwise successful, the application / relief should be refused upon the basis that that the Claimant has alternative private law remedies (that he is in the course of pursuing) and/or because the claim is academic.

  6. Against that background, the Claimant submits that the following questions arise:
  7. i) Was it unlawful for the Defendant to find that this was a complaint in relation to which "special requirements" did not apply?

    ii) Was this an issue which should have been addressed by the Defendant as part of the complaints appeal process, and was it unlawful not to do so?

    iii) Should the determination of the appeal by the Defendant be quashed?

    iv) If the Claimant's case is otherwise successful, should the application and / or relief be refused because either the claim is academic, or because there are alternative remedies?

  8. The Claimant submits that the answer to each of the first three questions should be "yes"; that the answer to the fourth should be "no"; and that thus his claim should succeed. In that event, he submits that the decision not to uphold his appeal should be quashed; that there should be a declaration that this is a case that satisfies the test for "special requirements", and that his case should be reconsidered in that light.
  9. Background

  10. On 11 December 2012 the Claimant, then aged 19, of previous good character and living in London, attended an evening kick-off Capital One Cup quarter final football match between Bradford City FC and Arsenal FC. The match took place at the Valley Parade stadium in Bradford. There was an advertising hoarding around the pitch, and a track between that hoarding and the stands.
  11. When the match ended, following a penalty shoot-out, in victory for Bradford City FC, some of the home supporters ran onto the pitch. During the events that followed, and putting it neutrally, the Claimant was first detained by DC Irvine (an officer in the West Yorkshire Police, who was then the Football Intelligence Officer for Bradford City FC, and who is referred to in a number of the documents as PC Irvine) and then handcuffed and further detained by two other officers, before being taken to Trafalgar House Police Station in Bradford, where his detention was authorised by the Custody Officer PS Daniels.
  12. The Custody Record in relation to the Claimant variously records that:
  13. i) He was arrested by DC Irvine at 22.25 on 11 December 2012 for using threatening words or behaviour likely to cause harassment, alarm or distress, and that the arrest had been necessary in order to prevent the Claimant's disappearance and to allow prompt and effective investigation.

    ii) The circumstances of the arrest were that, following a pitch invasion, the Claimant had been seen to climb onto signage and to shout and swear continually, despite being warned by Officers.

    iii) The Escorting Officer was Special Constable Harman, and PC Stocks was the Investigating Officer and the Charging Officer.

    iv) The Claimant had arrived at the Police Station at 22.57; no force had been used prior to his arrival or whilst he was in custody; and that his detention was authorised at 23.29 in order to obtain evidence by questioning, and to secure / preserve evidence.

    v) At 23.31 he signed an entry that he had no illness or injury.

    vi) At 23.34 he signed the following entry:

    "A notice setting out my rights has been read to me and I have also been provided with a written notice setting out my entitlements whilst in police custody.
    I do not want anybody informed of my arrest at this time.
    I have been informed of my right to speak with a solicitor in person or on the telephone at any time during my custody. I do not want to consult a solicitor at this time because; DUTY" (sic).

    vii) The Claimant admitted having drunk two pints of lager, but did not appear to be drunk or incapable.

    viii) At 03.34 on 12 December 2012 a review of his detention was carried out by Inspector Strother - during which he was reminded of his right to legal advice but did not request to speak to a solicitor and made no other representations.

    ix) He was not interviewed.

    x) At 03.58 enquiries were made of the Metropolitan Police for an address check to be carried out prior to his release, and at 06.02 address confirmation was received back.

    xi) At 07.09 PS Collins accepted custody of the Claimant from PS Daniels and concluded that detention was still necessary.

    xii) At 07.46 the Claimant was charged with an offence of using threatening and abusive or insulting words or behaviour likely to cause harassment, alarm or distress, contrary to s.5(1) and (6) of the Public Order Act 1986, and on release at 07.57 was bailed to attend Bradford / Keighley Magistrates Court at 2pm on 27 December 2012 - with a condition not to go within a mile of any designated football match in England or Wales.

  14. Prior to midnight on 11 December 2012 both DC Irvine and PC Walters (a Metropolitan Police Officer who was the Football Intelligence Officer for Arsenal FC) made witness statements in relation to the relevant events at the match.
  15. DC Irvine stated that he had been on duty at the match, in full uniform, working as a spotter with PC Walters and another Metropolitan Police Officer PC Dawson – i.e. monitoring the crowd, intelligence gathering and supporting the club stewards. After Bradford had won the penalty shoot-out, there had been a pitch invasion by Bradford fans – a number of whom had behaved provocatively towards Arsenal fans in the Midland Road stand. Having pushed away one particularly provocative Bradford supporter, he had seen the Claimant with a number of other males standing on an advertising hording at the Midland Road end. The Claimant was shouting and swearing extremely loudly at the Bradford supporters and foaming at the mouth. DC Irvine had told him to get down, which the Claimant did, but he had continued to shout and swear – even after DC Irvine had told him to stop and go home or he would be arrested. The Claimant had then shouted at Bradford City supporters: "Come on then you fucking cunts". At that, DC Irvine said that he had taken hold of the Claimant to try to remove him from the stand. The Claimant was shouting "Fuck off" and others were trying to help him. At that point other officers had arrived and he had moved the Claimant from the stand. He had then told the Claimant that he was under arrest for an offence contrary to s.5 of the Public Order Act and had cautioned him. The Claimant had not been handcuffed by him and had been handed over to other officers to be taken to Trafalgar House Police Station.
  16. PC Walters, in his statement, broadly confirmed that account.
  17. The Police Niche Occurrence Form in relation to the Claimant recorded, amongst other things, that:
  18. i) After the match the Claimant had run down the side of the pitch and had become verbally aggressive towards home supporters and security; that he had been warned a number of times and asked to leave, upon which he had jumped on the hoardings; and that he had continued to be verbally aggressive, after which he had been arrested.

    ii) At 18.10 on 12 December 2012 the Claimant, who had lost the paperwork that he had been given by the police en route back to his home in London, had (in the presence of his mother) telephoned the Police to establish what had happened. Details were given and arrangements were made for him to be supplied with further copies of his charge and bail sheets.

  19. DC Irvine completed the Police Report to the CPS on 13 December 2012.
  20. The Claimant duly attended at the Magistrates Court on 27 December 2012, where he completed the relevant parts of the Court's "Preparation for trial" form to the following effect:
  21. i) He agreed that he had been present at the scene and that he had been arrested lawfully.

    ii) Whilst he accepted that he had used swear words, he denied that he had been on an advertising hoarding; that DC Irvine had ever told him to get down; that he had caused harassment alarm or distress; and that DC Irvine had cautioned him.

    iii) He had always been willing to accept his behaviour and thus wanted to plead guilty to a different offence.

    iv) If the matter proceeded he was likely to give evidence, and had one potential witness – Theo Velydon Pyke.

  22. In the result, the case was adjourned for trial until 28 February 2013 and thereafter until 2 September 2013.
  23. On 19 August 2013 the solicitors who by then represented the Claimant in the proceedings in the Magistrates Court contacted the CPS and enquired whether the Police would be willing to give the Claimant a Fixed Penalty Notice if he admitted his guilt. That was accepted, and on 2 September 2013 at the Magistrates' Court the case was discharged without trial as a result of the Claimant's admission and acceptance (he says reluctantly on legal advice) of a fixed penalty for the offence.
  24. Some five months later, on 16 January 2014, different solicitors (Tuckers) wrote on the Claimant's behalf to the Legal Service Department of West Yorkshire Police, notifying it of a potential civil claim and requesting that 7 documents be preserved.
  25. Seven months after that, on 29 August 2014, the Claimant signed a 6 page witness statement which, by way of lodging the Claimant's complaint, was sent to the Defendant by Tuckers that same day. In the statement the Claimant variously asserted that:
  26. i) He had attended the match with four friends, one of whom was called Theo.

    ii) At the end of the match he and Theo had gone onto the track between the seating and the pitch to try their luck at getting signed shirts from two of the Arsenal players. They had passed a man in his mid 20's who was standing on the advertising hoarding gesticulating and swearing at Bradford City fans. They had not succeeded in getting signed shirts.

    iii) They had decided to wait at the back of the track for their friends. Whilst waiting, he had commented to Theo, referring to the behaviour of others – "This is fucking ridiculous"; "This is fucking crazy"; and "They sound like fucking kirts" (the Turkish word for wolves) – but had otherwise not sworn or misbehaved.

    iv) DC Irvine had appeared out of nowhere, tripped over the advertising board between the pitch and the track, and had then started aggressively trying to grab Arsenal fans who were on the track.

    v) He was pushed from behind towards DC Irvine who looked angry. Then, without any explanation, DC Irvine had grabbed him and pulled him through the crowd, over the advertising board and onto the pitch where he had, with another officer, led him to the corner of the pitch and then back onto the track. He was not told at any time, whether before or after being taken to the corner, that he was under arrest or why.

    vi) Once back onto the track he had asked DC Irvine why he could not stop the pitch invasion and, with other officers nearby, DC Irvine had replied "you're an idiot". He had asked DC Irvine why he had called him an idiot and DC Irvine had replied "I don't like you".

    vii) Thereafter he was handed over to two other officers (who he described in general terms) who had searched and handcuffed him – after which he was placed in the back of a van and taken to the Police Station.

    viii) On arrival he was held in a waiting area for some time, and the handcuffs were only removed immediately before he was taken to the Custody Suite. It was only when told by the Custody Officer that he had appreciated that he had been arrested for an offence contrary to s.5 of the Public Order Act. The Custody Officer had told him that he was entitled to legal advice, which he had requested, but he had not seen or spoken to a solicitor.

    ix) He had accepted a fixed penalty notice on the advice of his trial advocate.

  27. At the end of the statement the Claimant said this:
  28. "I wish to make the following complaints. I want them all to be the subject of a formal investigation:
    a) I was unlawfully arrested and detained
    b) I was detained excessively in police custody for 9 hours. This was a disproportionate interference of my rights to liberty and security.
    c) I was not informed by the officer who searched me at the scene why he wanted to search me or the lawful basis for searching me. This was an abuse of power.
    d) I was not informed that I was under arrest or grounds for my arrest as soon as reasonably practicable, contrary to Section 28 PACE. I did not learn the reasons for my arrest until I arrived at Trafalgar House Police Station.
    e) I was not told I was under arrest or provided with any reason for my arrest before I was physically detained at the scene or prior to the officers putting handcuffs on me. This was unlawful and an abuse of power.
    f) Unlawful force………….. was repeatedly used against me by DC Irvine and the officers who assisted / participated in my detention at the scene. Each physical touching of me requires an explanation and should be justified in law by the officer[s].
    g) The decision to handcuff me prior to me being told I was under arrest was made without any lawful excuse or objective ground. This intentional application of force was an assault.
    h) DC Irvine's conduct was contrary to what is expected from a police officer, in particular:
    i) He behaved in a way which caused me to fear for my personal safety.
    ii) He used abusive and insulting words…… towards me.
    i) I was not permitted access to a solicitor despite me requesting for a solicitor. This was a breach of s.58 PACE 1984 and paragraph 6.5 Code C of PACE 1984.
    j) I was not given the opportunity to inform someone of my whereabouts. This was a breach of s.56 PACE 1984 and paragraph 5.1 of Code C of PACE 1984.
    k) DC Irvine and his colleagues made a number of false allegations in sworn statements against me. This resulted in me being charged and prosecuted for a Section 5 Public Order Act offence. By way of example, it was dishonestly alleged that:
    i) I was shouting extremely loudly and foaming at the mouth. I was not.
    ii) I was shouting and snarling my teeth towards the Bradford supporters on the pitch. I was not.
    iii) I was standing on the advertising board and shouting "You fucking cunts, fuck off". I did not stand or place my foot on the advertising board at any time and I did not shout or use these words.
    iv) I shouted "Come on then you fucking cunts" with my arms outstretched towards the Bradford City supporters. I did not shout or use these words towards any Bradford supporter. Nor did I have my arms outstretched towards any of the Bradford city fans.
    v) I shouted "Fuck off" when DC Irvine attempted to remove me from the stand. I did not shout this or anything similar at DC Irvine.
    vi) I was told several times to calm down, to stop swearing and to go home or I would be arrested but I ignored these warnings. I was never warned or cautioned by any police officer about my conduct at the scene.
    vii) I resisted arrest. I did not.
    viii) I was persistently shouting and swearing at DC Irvine. I did not swear or shout at DC Irvine at any time."
  29. Before turning to the investigation of those complaints and thereafter to the appeal, it is necessary first to set out the relevant law and guidance, and then to summarise the evidence of the Defendant's witness, Detective Superintendent Khan, as to the process used by the West Yorkshire Police in dealing with complaints.
  30. The Relevant Law and Guidance

    1. The source materials

  31. These are found in the combination of:
  32. (1) The 2002 Act, as amended (in particular by Schedule 14 to the Police Reform and Social Responsibility Act 2011).
    (2) The Police (Complaints and Misconduct) Regulations 2012 (S.I. 2012 no.1204), as amended ("the Complaints Regulations").
    (3) The Police (Conduct) Regulations 2012 (S.I. 2012 no. 2632) ("the Conduct Regulations").
    (4) The Independent Police Complaints Commission ("IPCC") Guidance on the recording of complaints under the 2002 Act ("the IPCC Recording Guidance").
    (5) The IPCC Statutory Guidance to the Police Service on the handling of complaints, as amended in May 2015 ("the IPCC Statutory Guidance").
    (6) The Home Office Guidance on Police Officer Misconduct, Unsatisfactory Performance and Attendance Management Procedures, as revised in May 2015 ("the Home Office Guidance").
  33. Counsel were agreed that, for present purposes, there was no significant difference between the May 2015 versions of the IPCC Statutory Guidance and the Home Office Guidance (to various paragraphs of both of which I refer below) and the versions of them that were in force at the material time, which had to be amended, in particular as to the content of reports at the conclusion of investigations, in the light of the decision of the Court of Appeal in Regina (Chief Constable of the West Yorkshire Police) v Independent Police Complaints Commission [2014] EWCA Civ 1367 – which was concerned with the nature of the conclusions that could lawfully be reached in a report by the IPCC at the conclusion of an investigation by them, certified as being subject to special requirements, of a complaint about the conduct of a police officer.
  34. 2. The IPCC

  35. Sections 9 and 10 of the 2002 Act provide for the creation and general functions of the IPCC. In section 12 "complaint" is defined as including any complaint about the conduct of a person serving with the police which is made (whether in writing or otherwise) by a member of the public who claims to have been adversely affected by the conduct. Section 13 provides that Schedule 3 to the Act, which makes provision for the handling of complaints and for the carrying out of investigations, is to have effect in all cases save, by virtue of section 14, complaints relating to Chief Officers or to those carrying out the function of a Chief Officer. Section 22 gives the IPCC the power to issue guidance in relation, amongst other things, to the recording and handling of complaints and, by virtue of section 22(7), every person to whom such guidance is issued is under a duty to have regard to it. That is reinforced in paragraph 1.7 of the IPCC Statutory Guidance which makes clear that if the Guidance is not followed there needs to be a sound rationale for departing from it, or there will be a risk of legal challenge.
  36. Paragraph 1.16 of the IPCC Statutory Guidance provides that:
  37. "The policing landscape and the police complaints system underwent major change in 2012. Amendments made to the police complaints system by the Government in the Police Reform and Social Responsibility Act 2011 were designed to streamline and remove unnecessary bureaucracy from the system, ensure that complaints are handled at the lowest appropriate level, and focus more on putting right the complaint made by a member of the public."
  38. Paragraph 1.26 of the IPCC Statutory Guidance emphasises the importance of complaints and other matters resulting in proper outcomes. Whilst recognising that the nature of a proper outcome is entirely dependent on the facts and circumstances of any individual case, the Guidance underlines that any proper outcome will take into account the initial complaint or allegation (where there is one) and the views of the complainant or interested person; will be based upon the facts established; and will be appropriate to the seriousness of the circumstances.
  39. 3. The initial handling of a complaint

  40. If the complaint is made to a Chief Officer, they must first decide whether they are the appropriate authority – see paragraph 2 of Schedule 3 to the 2002 Act. They must also, as soon as practicable, take all such steps as appear appropriate to obtain and preserve evidence relating to the conduct complained of – see paragraph 1(2)-(4) of Schedule 3 to the 2002 Act.
  41. Paragraph 1.13 of the IPCC Statutory Guidance includes a flow chart which provides an overview of the initial stages of handling a complaint that follow. In particular, consideration of whether the complaint is exempt from recording (see paragraph 2(8) of Schedule 3 to the 2002 Act and Regulation 3(2)-(4) of the Complaints Regulations which indicate, for example, that there is no requirement to record a complaint if it is vexatious, oppressive or otherwise an abuse of the process for dealing with complaints, or is repetitious or fanciful [i.e. no person could lend any credence to it]. In the event of non-recording an appeal against that can be mounted to the IPCC – see e.g. paragraph 3(3) of Schedule 3 to the 2002 Act); if not, the fact that it must be recorded and consideration given to whether it must or should be referred to the IPCC; if not, whether it is suitable for local resolution (because the conduct alleged, even if proved, would not justify the bringing of either disciplinary or criminal proceedings and would not involve the infringement of a person's rights under Article 2 or 3 of the ECHR – see paragraphs 6(7)&(8) and 8 of Schedule 3 to the 2002 Act) ; and if not, that it must proceed to a local investigation.
  42. By paragraph 29 of Schedule 3 to the 2002 Act, and Regulation 3 of the Conduct Regulations, disciplinary proceedings are defined as being (subject to certain exceptions) any proceedings under those Regulations or any appeal therefrom; misconduct is defined as a breach of the Standards of Professional Behaviour; and gross misconduct is defined as a breach of the Standards of Professional Behaviour so serious that dismissal would be justified.
  43. The Standards of Professional Behaviour are set out in Schedule 2 to the Conduct Regulations and include provisions in relation to honesty and integrity; authority respect and courtesy; the use of force; orders and instructions; duties and responsibilities; and discreditable conduct.
  44. The IPCC's Recording Guidance provides a Table of Definitions using alphabetical categories from A-Y to assist those recording allegations about police conduct linked to complaint cases, using non-exhaustive examples. Thus Category C includes the use of more than reasonable force under "use of force"; Category E includes unlawful arrest under "authority, respect and courtesy", "equality & diversity" and "use of force"; Category G includes perjury and making false statements under "honesty and integrity"; and Category M includes breaches of PACE codes at the Police Station under "orders and instructions" and "duties and responsibilities".
  45. 4. The investigation

  46. It is clear that, in practice, all but the most serious complaints are investigated by the relevant local police force, rather than by the IPCC itself. In this case there is no dispute that the Defendant was the appropriate authority to investigate the Claimant's complaints and that, by virtue of paragraph 16(3) of Schedule 3 to the 2002 Act, it was his duty to appoint a police officer to investigate them.
  47. Paragraph 9.2 of the IPCC Statutory Guidance provides that:
  48. "The purpose of an investigation is to establish the facts behind a complaint… and reach conclusions. This includes, where applicable, whether, in respect of those subject to investigation, there is a case to answer for misconduct or gross misconduct or unsatisfactory performance. It is also an opportunity to ascertain whether there is any learning for the force arising from the incident itself or the way it was handled. An investigation should be fair reasonable and objective and based on evidence. What is reasonable in each case will depend on the particular circumstances."
  49. Paragraphs 2.91 & 2.92 of the Home Office Guidance provide that:
  50. "The investigation into the complaint must be proportionate having regard to the nature of the allegation and any likely outcome (see also IPCC statutory guidance).
    An investigation into a complaint is not automatically an investigation into whether a police officer or a special constable has breached the standards of professional behaviour but rather an investigation into the circumstances that led to the dissatisfaction being expressed by the complainant of the actions of one or more persons serving with the police."
  51. As to the scope of the investigation, paragraph 9.14 of the IPCC Statutory Guidance provides that:
  52. "Investigators should adopt a proportional approach in any investigation in order to ensure, in the public interest, investigative resources are focussed and employed efficiently and fairly. However the use of 'proportionate' is not another way of describing an investigation as limited or small scale. It must be borne in mind that the adequacy of the investigation may be scrutinised when any appeal is considered by the IPCC or the Chief Officer. In order to decide what is a proportionate approach to investigating a complaint, it may be useful to discuss with the complainant what are his or her key points to ensure that these are covered. Every investigation needs to be proportionate to:
  53. By virtue of paragraph 9.15 of the IPCC Statutory Guidance, when determining the scope of an investigation and the methods to be used, investigators are required to take into account the need to establish the facts in all cases; the seriousness of the allegation; whether Articles 2 or 3 of the ECHR are engaged; any more general cause of a complainant's dissatisfaction; whether the facts are in dispute; how long ago the incident took place and whether the evidence is still likely to be available; what the learning investigation might yield for local or national policy and individual learning for persons serving with the police; and actual or potential public knowledge of, and concern about, the case.
  54. Paragraph 9.16 of the same Guidance makes clear that when further investigation is no longer proportionate to the likely outcome (for example, because no additional evidence is likely to emerge) it should be concluded.
  55. Paragraph 9.13 of the IPCC Statutory Guidance provides that:
  56. "Where the investigator seeks an account from a person who is the subject of investigation, there must be an auditable record of it. The person could be invited to sign handwritten notes or a pocket book entry to confirm the accuracy of a record of a conversation. However, this is the minimum. In many cases more would be required, such as an account by email, letter, statement, or (recorded) interview. If an investigation is subject to special requirements (see paragraphs 9.29 to 9.34) or is an investigation into a recordable conduct matter, a notice of investigation will in most cases have been served (see paragraph 9.39) and a statement under an appropriate caution should be taken or requested from the person to whose conduct the investigation relates or he or she should be required to attend an interview, which will be recorded ….".
  57. Paragraph 2.168 of the Home Office Guidance recognises that it will not always be necessary to conduct a formal interview with the police officer subject to the investigation. It makes clear that in some cases, particularly those involving low level misconduct, it may be more appropriate, proportionate and timely to request a written account from the officer.
  58. 5. Special requirements

  59. Paragraph 19B of Schedule 3 to the 2002 Act applies, by virtue of paragraph 19A, to the investigation of complaints where the person concerned is a member of a police force or a special constable. It provides, in so far as relevant, as follows:
  60. "(1) If, during the course of an investigation of a complaint, it appears to the person investigating that there is an indication that a person to whose conduct the investigation relates may have –
    (a) committed a criminal offence, or
    (b) behaved in a manner which would justify the bringing of disciplinary proceedings,
    the person investigating must certify the investigation as one subject to special requirements.
    (2) If the person investigating a complaint certifies the investigation as one subject to special requirements, the person must, as soon as reasonably practicable after doing so, make a severity assessment in relation to the conduct of the person concerned, to which the investigation relates.
    …
    (4) For the purposes of this paragraph "severity assessment", in relation to conduct means an assessment as to –
    (a) whether the conduct, if proved, would amount to misconduct or gross misconduct, and
    (b) if the conduct were to become to subject of disciplinary proceedings, the form which those proceedings would be likely to take.
    (5) An assessment under this paragraph may only be made after consultation with the appropriate authority.
    (6) On completing an assessment under this paragraph, the person investigating the person or matter must give a notification to the person concerned that complies with sub-paragraph 7.
    (7) The notification must –
    (a) give the prescribed information about the results of the assessment;
    (b) give the prescribed information about the effect of paragraph 19C and of regulations under 19D.
    (c) set out the prescribed the time limits for providing the person investigating the complaint or matter with relevant statements and relevant documents for the purposes of paragraph 19C(2);
    (d) give such other information as may be prescribed.
    (8) Sub-paragraph (6) does not apply for so long as the person investigating the complaint or matter considers that the giving of notice might prejudice –
    (a) the investigation, or –
    (b) any other investigation (including, in particular, a criminal investigation).
    (9) Where the person investigating a complaint or matter has made a severity assessment and considers it appropriate, the person may revise the assessment.
    (10) On revising a severity assessment, the person investigating the complaint or matter must notify the prescribed information about the revised assessment to the person concerned."
  61. Paragraphs 9.30 – 9.33 of the IPCC Statutory Guidance provide, in relation to paragraph 19B of the 2002 Act, that:
  62. "9.30 This provision means that throughout the course of any investigation, the investigator must consider whether such an indication exists even if he or she initially decided it did not.
    9.31 Disciplinary Proceedings for the purposes of special requirements mean any proceedings under the Police (Conduct) Regulations 2012.
    9.32 There is an 'indication' where the investigator, having considered the circumstances and evidence available at the time, is of the view that the officer, or member of staff, may have committed a criminal offence or behaved in a manner justifying the bringing of disciplinary proceedings. A bare assertion of misconduct or criminality, particularly if it is undermined by other material or inherently unlikely, may not be sufficient. For example, a complaint that an officer is "harassing" someone without more is unlikely to be sufficient.
    9.33 The investigator must set out the reasoning behind his or her decision as to whether an investigation should be subject to special requirements."
  63. See also, in this regard paragraphs 2.94-2.100 of the Home Office Guidance. In particular, paragraph 2.95 provides that:
  64. "Where the person investigating does not consider that the conduct subject of the investigation either amounts to a criminal offence or (even if proven or admitted) would (in the investigator's judgement) be referred to a misconduct meeting or hearing, the matter will not be subject of the special requirements and no Regulation 16 (Complaint Regulations) Notice be served on the police officer concerned and no severity assessment will be required. If the person investigating the complaint does certify the investigation as one subject of special requirements, the investigator must, as soon as is reasonably practicable after doing so, make a severity assessment in relation to the conduct…"
  65. Guidance in relation to the making of severity assessments is provided, in particular, in paragraph 9.36 of the IPCC Statutory Guidance – which requires the investigator to make the assessment on the basis of what would happen if the conduct was proved (rather than involving any consideration of the likelihood of the conduct being proven).
  66. Paragraph 2.131 of the Home Office Guidance provides that:
  67. "In making an assessment of conduct, the starting point should be the circumstances and context of the allegation, taking into account the extent of known information and evidence that is relevant to the allegation. The assessment should then be forward looking by considering the nature and weight of the evidence that might be obtained, as well as to the extent that it is relevant and proportionate to seek and obtain such evidence."
  68. Regulation 16(1) of the Complaints Regulations prescribes in detail the content of the written notice that must then be given to the person concerned, and paragraphs 2.152-2.158 of the Home Office Guidance make clear, amongst other things, that the purpose of the notice is to inform the officer of various matters (including the fact that they are under caution and that they may, within 10 working days of receipt of the notice, provide a written or oral response to the matter under investigation); and that the notice must clearly describe in unambiguous language the particulars of the conduct that it is alleged fell below the standards expected of a police officer.
  69. Regulation 17 of the Complaints Regulations provides that where the person concerned is a police officer he may choose a police officer, a police staff member, or a person nominated by his staff association (who is not involved in the matter) to act as his police friend.
  70. Regulation 19 of the Complaints Regulations makes provision as to the making of arrangements for the interview of the person who is being investigated and for the attendance of their police friend.
  71. 6. Reports & decisions

  72. Section 11 of the IPCC Statutory Guidance covers what the investigation report should contain; how it should be written; and the action that an appropriate authority should take once a report has been received. Paragraph 11.2 emphasises that the report is an important document. Paragraphs 11.10 to 11.14 and the tables in paragraphs 11.38 & 11.41 deal, in accordance with Regina (Chief Constable of the West Yorkshire Police) v Independent Police Complaints Commission (above), with how the investigator should approach the reaching of conclusions and the potential findings that are available.
  73. In reaching conclusions, investigators in all investigations are required to apply the balance of probabilities standard of proof, which is a single unvarying standard, and in deciding whether it is more likely than not that something occurred, regard should be had to all the available evidence and the weight attached to it, including consideration of the extent to which that occurrence may be inherently probable or improbable – see paragraph 11.12 of the IPCC Statutory Guidance.
  74. Paragraph 11.21 of the same Guidance underlines that, in the case of an investigation into a complaint that is not the subject of special requirements, there will be no decision to make as to whether there is a case to answer for misconduct or gross misconduct, and that therefore, subject to certain exceptions, the report should state whether the complaint should be upheld or not upheld.
  75. Paragraphs 11.14 and 11.27 of the IPCC Statutory Guidance also underline that a decision whether or not to uphold a complaint should only be made by an investigator where the investigation is not subject to special requirements, and that (in a local investigation) it is for the appropriate authority (i.e. the chief officer or the person deputed by him) to reach the final decision as to whether to uphold a complaint.
  76. Paragraph 11.34 of the IPCC Statutory Guidance deals with the fact that no finding of misconduct or gross misconduct can be made unless there been a breach of the Standards of Professional Behaviour; and that gross misconduct should be considered first.
  77. Paragraph 11.20 of the IPCC Statutory Guidance indicates that, where relevant, it may also be appropriate to explain in the findings of the report why the investigation did not become subject to special requirements, and states that that may be particularly useful where the original complaint did make allegations of individual misconduct.
  78. As to complaints about lawfulness, paragraph 11.17 of the IPCC Statutory Guidance provides that:
  79. "A complaint can be about the lawfulness of police officer conduct (for example the making of an arrest is both an 'act' and a 'decision' and falls within the definition of 'conduct'). 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. In relation to complaint investigations concerning lawfulness that have not become subject to special requirements, an investigator can decide whether to uphold, or not uphold, a complaint, providing that the report makes clear that no final determination is being reached on lawfulness."
  80. As to investigations that are certified as being subject to special requirements, paragraph 20 of the Complaints Regulations requires that the investigator's report provides an accurate summary of the evidence; attaches or refers to any relevant documents; and indicates 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.
  81. Paragraph 11.13 of the IPCC Statutory Guidance and paragraph 2.106 of the Home Office Guidance make clear, in combination, that the investigator should evaluate the evidence and indicate whether, in their opinion, there is a case to answer; that often investigators are faced with conflicting accounts from, for example a complainant and a police officer; that sometimes an account is inherently implausible or is undermined by other evidence, but in other cases that is not so and it is a case of one person's word against another – which is often the case in court proceedings and does not mean that there is no case to answer.
  82. The case to answer test is set out in paragraph 11.31 of the same Guidance, namely that:
  83. "The investigator should indicate that in their opinion there is a case to answer where there is sufficient evidence, upon which a reasonable misconduct meeting or hearing could, on the balance of probabilities, make a finding of misconduct or gross misconduct".

    7. Appeals

  84. As to appeals in relation to an investigation, paragraph 25 of Schedule 3 to the 2002 Act provides, in so far as relevant, that:
  85. "(1) This paragraph applies where a complaint has been subjected to-
    (a) an investigation by the appropriate authority on its own behalf;…
    ...
    (2) The complainant shall have the following rights of appeal to the relevant appeal body-
    (a) a right of appeal on the grounds that he has not been provided with adequate information-
    (i) about the findings of the investigation; or
    (ii) about any determination of the appropriate authority relating to the taking (or not taking) of action in respect of any matters dealt with in the report on the investigation;
    (b) a right to appeal against the findings of the investigation;
    (ba) a right of appeal against any determination by the appropriate authority that a person to whose conduct the investigation related has a case to answer in respect of misconduct or gross misconduct or has no case to answer or that such a person's performance is, or is not, unsatisfactory
    (c) a right of appeal against any determination by the appropriate authority relating to the taking (or not taking) of action in respect of any matters dealt with in the report; and
    (d) a right of appeal against any determination by the appropriate authority under paragraph 24(2)(a) as a result of which it is not required to send to the Director of Public Prosecutions a copy of the report:
    and it shall be the duty of the relevant appeal body to notify the appropriate authority, every person entitled to be kept properly informed in relation to the complaint under section 21 and the person complained against of any appeal brought under this paragraph (except that the duty to notify the appropriate authority does not apply where that body is the relevant appeal body).
    …
    (5) On an appeal under this paragraph, the relevant appeal body shall determine such of the following as it considers appropriate in the circumstances –
    …
    (b) whether the findings of the investigation need to be reconsidered;
    …".
  86. Regulation 11 of the Complaints Regulations sets out the procedural provisions in relation to appeals. Paragraph 30 of Schedule 3 to the 2002 Act and Regulation 30 of the Complaints Regulations identify the complaints in relation to which the IPCC (as opposed to a chief officer) is the relevant appeal body.
  87. In particular, Regulation 30(2)(b) of the Complaints Regulations provides that the IPCC is the relevant appeal body in a case of which the appropriate authority is unable to satisfy itself, from the complaint alone, that the conduct complained of (if it were proved) would not justify the bringing of criminal or misconduct proceedings against a person serving with the police; or would not involve the infringement of a person's rights under Article 2 or 3.
  88. As to that test, paragraph 13.16 of the IPCC Statutory Guidance provides that:
  89. "The test… must be applied to the substance of the complaint, not applied with hindsight after the complaint has been dealt with. It means that if the appropriate authority cannot satisfy itself from the complaint as presented that the conduct complained about, if proved, would not lead to criminal or misconduct proceedings against a person serving with the police or infringe Article 2 or 3… any appeal in relation to that complaint must be dealt with by the IPCC regardless of how the complaint has been dealt with or any findings in relation to the complaint."
  90. As to appeals when a chief officer is the appropriate authority, Regulation 33 of the Complaints Regulations provides that:
  91. "(1) Subject to the remaining paragraphs of this regulation, a chief officer may delegate all or any of the powers and duties conferred or imposed on him by or under Part 2 of the 2002 Act to such an officer as is mentioned in paragraph (2), or to a police staff member who, in the opinion of the chief officer, is of at least a similar level of seniority.
    (2) That officer is – …
    …
    (b) a member of a police force of at least the rank of chief inspector.
    (3) A chief officer shall not, in any particular case, delegate any power or duty under paragraph (1) to a person whose involvement in the role could reasonably give rise to a concern as to whether he could act impartially under these regulations, whether because he has acted as investigating officer in the case, or attempted to resolve it by way of local resolution, or otherwise."
  92. Paragraphs 1.27-1.29 of the IPCC Statutory Guidance deal generally with appeals, including the anticipation that chief officers will delegate many of their responsibilities for determining appeals.
  93. More detailed guidance as to appeals is set out in section 13 of the IPCC Statutory Guidance. In particular, paragraphs 13.21 & 13.22 recognise that in many circumstances the type of case that will come to the chief officer on appeal will have been dealt with by local management and that, therefore, consideration of the appeal by the Professional Standards Department ("PSD") will provide sufficient distance for an objective review – with the fundamental consideration of the chief officer being whether a reasonable person could have concerns about whether the person deciding the appeal could act impartially.
  94. Paragraphs 13.2, 13.5, and 13.9 provide the following general principles in relation to appeals:
  95. "13.2 An appeal offers a final opportunity to consider whether a complaint could have been handled better at a local level and, where appropriate, to put things right. If a complainant is still dissatisfied after an appeal he or she may seek to challenge the appropriate authority's decision through judicial review.
    13.5 Consideration of an appeal must involve a fresh consideration of the case. Although it is not a re-investigation it should not be merely a 'quality check' of what has happened before.
    13.9 The right of appeal allows the complainant to challenge a decision or outcome. If the appeal is upheld, relevant action must be taken by the appropriate authority."
  96. It will be recalled that paragraph 9.14 of the IPCC Statutory Guidance (above) indicates that the adequacy of the investigation may be scrutinised when any appeal is considered.
  97. Paragraphs 13.80–13.107 of the same Guidance deal with the rights of appeal in relation to complaints provided by paragraph 25(2) of Schedule 3 to the 2002 Act (above), including what the person dealing with the appeal must consider or decide. In particular, paragraphs 13.81–13.98 deal with appeals against investigation – as to which paragraphs 13.81,13.89, and 13.96-13.98 variously provide that:
  98. "13.81 …the person dealing with the appeal does not have to consider a ground of appeal not mentioned by the complainant, but may still do so if he or she deems it appropriate; for example, where it appears that another ground of appeal may apply and may lead to the upholding of the appeal. The person dealing with the appeal should consider all grounds of appeal raised by the complainant
    13.89 The findings of the investigation include the eventual conclusions. In their clearest form this will be a series of allegations that are upheld or not. The findings of the investigation also include the reasons for the conclusions, the evidence that has been gathered in support of the conclusions, and a critical analysis of the evidence.
    13.96 The factors listed at paragraph 9.15 [above] of this guidance should be used to inform what approach was proportionate for an investigator to have taken to investigate a complaint…When considering the 'proportionality' of the investigation as a whole, a judgement is being made about the scope and robustness of the investigation weighed against the seriousness of the allegations…
    13.97 In considering the lines of enquiry pursued by the investigator, the person dealing with the appeal should take into account any terms of reference or similar document, such as an investigation log or file record of relevant decisions, that may have applied to the scope and methods used during the investigation. This may have required a particular direction to be taken by the investigation or put limits on what the investigation would examine including the availability of evidence required and considerations as to the sufficiency of the evidence to establish the facts given the seriousness of the allegation and likely outcomes.
    13.98 Guidance in paragraphs 11.18 to 11.24 outlines where a complaint should be upheld. The person dealing with the appeal should have regard to this guidance when reviewing an appeal and considering whether a complaint should have been upheld….If the person dealing with the appeal decides that the findings need to be reconsidered then the appeal should be upheld and the appropriate authority must then re-investigate the complaint…"

    8. The consequences of certification

  99. There is an issue between the parties, to which I return below, as to whether, following certification, a proportionate investigation is likely to be of a different order to an investigation for complaints where special requirements do not apply.
  100. Subject to that, and viewed overall, the principal consequences when an investigation has been certified as being one subject to special requirements include the following:
  101. i) As part of making the assessment of severity, the investigator should obtain a copy of the officer's disciplinary record – see paragraph 9.38 of the IPCC Statutory Guidance.

    ii) Subject to any delay required to avoid prejudice to the investigation or another investigation, and in order to provide certain safeguards in the interests of fairness, once the assessment of severity has been completed the officer concerned must be given notification in writing which sets out the prescribed information (which includes a caution) – see paragraph 19B(6)-(8) of Schedule 3 to the 2002 Act (above) and Regulation 16(1) of the Complaints Regulations.

    iii) Consideration has to be given as to whether or not to suspend the officer during the course of the investigation – see e.g. paragraph 19E of Schedule 3 to the 2002 Act and the Conduct Regulations.

    iv) Since 12 January 2015, if the Regulation 16 notice indicates that the allegation is one of gross misconduct (or an allegation of misconduct whilst a final written warning is in place) the officer is neither permitted to resign nor to retire.

    v) The officer may choose a police officer, a police staff member, or a person nominated by his staff association, to act as his police friend – see Regulation 17 of the Complaints Regulations.

    vi) There are specific provisions for the making of representations to the investigator – see paragraph 19B(7) of Schedule 3 to the 2002 Act and Regulation 18 of the Complaints Regulations.

    vii) There are specific provisions in relation to making arrangements for the interview of the person whose conduct is being investigated – see paragraph 19D(1) of Schedule 3 to the 2002 Act and Regulation 19 of the Complaints Regulations.

    viii) In accordance with paragraph 22(7) of Schedule 3 to the 2002 Act and Regulation 20 of the Complaints Regulations, the report of the investigation must provide an accurate summary of the evidence; attach or refer to any relevant documents; and indicate the investigators opinion as to whether or not there is a case to answer in respect of misconduct or gross misconduct (as opposed to deciding whether or not the complaint should be upheld).

    ix) Any appeal is to the IPCC, rather than to the Chief Officer – see Regulation 30(2)(b) of the Complaints Regulations (above).

    The evidence of Detective Superintendent Khan

  102. The Defendant relies upon the evidence (in a witness statement) of Detective Superintendent Khan, the deputy head of the PSD for the West Yorkshire Police. He explains the system that the PSD use, in the initial stages, to assess and investigate public complaints – which the West Yorkshire Police define as "an expression of dissatisfaction by a member of the public about the conduct of a person serving with the police" (which is somewhat wider than the definition in s.12 of the 2002 Act – above).
  103. Detective Superintendent Khan states that due to the volume of complaints and conduct matters received by the West Yorkshire Police PSD it would not be practicable for investigators to deal with the initial actions required in relation to them – namely, making a recording decision; recording the complaint or conduct; and making an initial assessment. Rather, in order to ensure the accuracy and consistency of the recording and categorisation of complaints and conduct matters, and that they are dealt with in a proportionate and consistent manner, a Reviewing Officer ("RO") from the PSD is assigned to a complaint, or conduct matter, when it is received and is then responsible for the initial stages of decision making in relation to it.
  104. Taking a straightforward example of a complaint, the first stage involves the RO, working on the basis that the allegation within the complaint is true, deciding whether or not West Yorkshire Police is the appropriate authority for the purposes of the complaint – see paragraph 2 of Schedule 3 to the 2002 Act (above). If it is then, subject to certain exceptions (see Regulation 3(2) of the Complaints Regulations – above), the RO will formally record the complaint, allocate a reference number to it, and (in accordance with paragraph 1(2)-(4) of Schedule 3 to the 2002 Act – see above) collect all of the information immediately available in respect of it.
  105. At the second stage, and still working upon the basis that the allegation within the complaint is true, the RO will decide whether or not the matter is suitable for local resolution – i.e. that, even if proved, it would not justify the bringing of either criminal or disciplinary proceedings and that it would not involve the infringement of a person's rights under Articles 2 & 3 of the ECHR – see paragraph 6(7)&(8) of Schedule 3 to the 2002 Act (above). The rationale for the decision is recorded. If the RO decides that the complaint is not suitable for local resolution, the RO will categorise the nature of the complaint by reference to the Standards of Professional Behaviour (above) and, after the third stage, the complaint will be referred to an Investigating Officer ("IO") for investigation.
  106. At the third stage, the RO considers whether, under the provisions of paragraph 19B(1) of Schedule 3 to the 2002 Act (above) the investigation should be subject to special requirements – i.e. whether there is an indication that a person to whose conduct the investigation relates may have committed a criminal offence or behaved in a manner that would justify the bringing of disciplinary proceedings.
  107. Whilst, as Detective Superintendent Khan acknowledges that is, on the face of it, much the same as the test applied when determining whether the complaint was suitable for local resolution, at this stage the RO does not take the complaint at face value but rather consistent, Detective Superintendent Khan asserts, with paragraph 9.32 of the IPCC Statutory Guidance (above), assesses it against all the evidence and information that is available at the time – such as the custody record and the content of a relevant crime file (e.g. statements already made, exhibits, CCTV and bodycam footage etc..). In the light of that assessment the RO will then make a recommendation as to whether or not the investigation should be subject to special requirements.
  108. The RO's recommendation is then reviewed by the Appropriate Authority in consultation with the IO – who will consider all the information provided by the RO. If the IO concludes that that there is an indication they will certify the investigation as being one that is subject to special requirements, and they will go on to perform a severity assessment etc.
  109. Whether or not subject to special requirements, the investigation will then proceed to completion.
  110. As to special requirements, Detective Superintendent Khan asserts that, in accordance with the Home Office Guidance, the principal importance of certification is, in the interests of fairness, to afford the officer concerned certain safeguards. He further asserts that the fact that an investigation is certified as being subject to special requirements does not mean (save for the various additional procedural requirements) that the investigator takes a different approach to it and that, in accordance with paragraph 9.14 of the IPCC Statutory Guidance (above), the emphasis is on proportionality, with the investigating officer being required, throughout the investigation, to constantly keep the decision as to whether the test for special requirements is met under review – whether as a result of new evidence being obtained or because the initial decision is considered to have been incorrect.
  111. Detective Superintendent Khan also variously asserts that:
  112. i) If, as then appeared to him to be the Claimant's case, all complaints were to be assessed solely on the basis of the contention made, as opposed to being assessed in the context of all the available information, then that would lead to almost all complaints resulting in special measures requirements.

    ii) By way of example, if the Claimant was right, the following complaints would result in special requirements investigations being necessary:

    a) A complaint that an officer assaulted a person when police records show that the officer was on leave, out of the country, at the time.
    b) A complaint that an officer used excessive force taking a complainant to the ground when there is independent evidence from several witnesses to indicate that the complainant was not taken to the ground and medical evidence to confirm that they did not sustain injury.
    c) Any allegation that is completely undermined by contemporaneous evidence – e.g. CCTV footage.
    d) An allegation of corruption against a senior officer when the complainant has a history of making false complaints against officers, there is no independent evidence to support the complainant's assertions, and the allegations appear to be without foundation.

    iii) By way of further example, a common complaint is one in which it is alleged that the complainant was punched by an officer for no apparent reason. In such a case the RO would currently review the Niche occurrence, duty statements, custody record and other contemporaneous evidence and if, for example, the officer had submitted a witness statement stating that the complainant was resisting arrest, punching and kicking out to the extent that he was forcibly restrained, and that was supported by the Custody Record which had recorded that the complainant was not cooperating and had to be forcibly restrained then, based on an evaluation of the evidence, the RO would be likely to say that the investigation would not be subject to special requirements. If on the other hand there was no mention of force being used and the complainant had injuries, it was likely that the RO would determine that the investigation should be subject to special requirements.

    iv) The Taylor Review (in 2005) found that the system for dealing with police misconduct was overly bureaucratic and legalistic with little or no encouragement for managers to swiftly and proportionately deal with low level misconduct matters – which had resulted in the Taylor reforms which were introduced in the 2008 Regulations. If the Claimant was right the position would revert to that which applied before the reforms.

    v) Statistics variously indicated that, prior to the Taylor reforms, over 20% of investigations dealt with by the West Yorkshire Police PSD (in the years 2006-2007 & 2007-2008) were made subject to special requirements; that since the Taylor reforms, there has been a significant reduction in the number of cases – with only some 4% of investigations being made subject to special requirements between November 2014 and October 2015; and that police forces were giving the necessary credence to complaints at the outset – with the balance at the initial stages set very firmly in the complainant's favour.

    vi) The PSD did not have the resources to deal with all complaints on the basis contended for by the Claimant and, in any event, the purpose of the investigation is not automatically to investigate whether the conduct of the officer has breached the standards of professional behaviour, but to investigate the circumstances that led to the complaint being made.

    vii) Therefore, in line with the legislation and the statutory guidance, a proportionate approach was taken with the RO taking into account other relevant evidence that may be available at the time – thereby allowing the RO to make an informed judgement on the available evidence.

    The Initial Handling and Investigation of the Claimant's Complaint

  113. Helen Williams was appointed as the RO and, on a form entitled "PSD Severity Assessment Policy and Progress Log" (dated 15 September 2014) she summarised the Claimant's complaints and variously recorded that, having attended court on 2 September 2013, the Claimant had accepted a Fixed Penalty Notice; that it was at that point that he had become aware that officers had allegedly made false statements and that thus, although the incident had occurred in December 2012 the complaint (made at the end of August 2014) was still within the 12 month time limit; and that the Claimant had made a civil claim for unlawful arrest. She then variously set out that:
  114. (1) "….Having reviewed the complainant's statement and the duty statement of DC Irvine and PC Walters it is clear there was large disorder in the crowds. The complainant has accepted a FPT for his behaviour and therefore by his own admissions he was acting in an inappropriate manner. It is therefore likely that the officer used force that was necessary to remove the complainant from the crowd. This is assessed as not misconduct."
    (2) "I have reviewed the two officers' duty statements attached to the Niche occurrence. Due to the circumstances it is considered that it would not have been practicable for the officer to inform the complainant that he was under arrest. DC Irvine stated that he informed the complainant why he was under arrest once he had removed him from the stands. Enquiries should be made with the transporting, searching officer to identify when the complainant was informed he was under arrest and what information they were provided with. Based on the information available at this time the matter is assessed as not misconduct."
    (3) "I have reviewed the custody record. It is noted that the complainant does not want anyone informing of his arrest. It is also noted that he does NOT [sic] wish to speak with a solicitor but then it states DUTY. This is considered to be a typing error, pre charge it is noted that the complainant is remained [sic] of his right to legal advice which he declines. Continued detention was authorised by PS [sic] Strother as 'awaiting availability of OIC' and 'enquiries ongoing to confirm his address'. Due to the passage of time custody CCTV is unavailable. Further enquiries should be undertaken to establish whether duty were contacted. Based on the information I do not consider that there are any misconduct issues identified. Should during the course of enquiries any conduct issues be raised the matter should be returned for reassessment."
    (4) "The complainant raises a number of inaccuracies in the officers' duty statements. Both officer [sic] document the complainant was being verbally aggressive and DC Irvine records that he resisted arrest. Enquiries should be undertaken to establish whether CCTV was seized or independent witness account gathered of the event in order to support a charge of public order against the complainant."
    (5) "It is considered that there are no conduct matters in Mr AB's complaint, the matter is suitable for local resolution. Should the complainant not engage with this a proportionate investigation should commence, an account should be obtained from officers without notice."
  115. The RO completed the top of the form to variously indicate that special requirements did not apply; that it was not necessary to refer the complaint to the IPCC; that the complaint was suitable for local resolution; that there should be a proportionate investigation in relation to misconduct, without notice; and that the appropriate appeal body was the Force itself.
  116. At paragraphs 34-37 of his witness statement Detective Superintendent Khan states that where (as in this case) the complainant intends to bring a civil claim and has complained by way of a witness statement prepared by his solicitors, it is fair to assume that that there will be no further information forthcoming from him.
  117. Detective Superintendent Khan goes on to state that the RO's assessment was made on the basis of available information which included the Claimant's statement; the duty statements of the two officers (made contemporaneously and before it was known that a complaint was being made); the Niche Occurrence log; and the custody record. He further states that the RO determined that it was a recordable public complaint but that it was not suitable for local resolution (which is at odds with the RO's entry on the form), that there would have to be an investigation, and that (as above) her recorded rationale was that:
  118. i) The Claimant had accepted a fixed penalty notice.

    ii) Having reviewed the two officers' duty statements, it was not practicable for the officer to inform the Claimant that he was under arrest.

    iii) The custody record confirmed that the Claimant did not want anyone to be informed of his arrest.

    iv) In the assessment of the evidence, there was no indication that the matter may justify the bringing of misconduct proceedings as all of the available evidence undermined the Claimant's account.

  119. At all events, and whether or not there was contemplation of local resolution at one point, the complaint was forwarded to the Bradford District for investigation.
  120. On 17 September 2014 PS Claire Hargreaves from the Bradford District Quality of Service Department wrote to Tuckers to indicate that the complaint had been recorded as a public complaint involving allegations by the Claimant that:
  121. i) He was unlawfully arrested and detained for 9 hours.

    ii) He was not informed of the grounds as to why he was being searched, nor was he told that he was under arrest.

    iii) Unlawful force had been used in handcuffing him and the officer had used insulting words towards him.

    iv) He was not allowed access to a solicitor or for anyone to be notified of his detention.

    v) False allegations were made in the officers' statements.

  122. On 23 September 2014 Tuckers wrote to PS Hargreaves asserting that a number of the Claimant's complaints had either not been recorded or had been recorded inaccurately. They enclosed a schedule which outlined the relevant complaints, and invited correction.
  123. That was followed up in telephone calls to PS Hargreaves on 16 October 2014 – during which, as noted by Tuckers, and amongst other things:
  124. i) PS Hargreaves stated that she had received the Custody Record; the full police running log (incident log) at the match; the crime report; the bail sheet; various CDs from various parts of the ground; the statement of the arresting officer; the court file; and the schedule of used and unused material.

    ii) PS Hargreaves indicated that the officers would not be served with "Regulation 15" notices, and nor would they be interviewed, but that they would provide written accounts by email.

    iii) PS Hargreaves said that, having reviewed the complaint she was of the view that there was only one officer who was the subject of the complaint (whereas Tuckers suggested a number of others).

    iv) There was a disagreement as to the significance of the Claimant's acceptance of the fixed penalty.

  125. The RO, Helen Williams, emailed Tuckers that same day and indicated that:
  126. i) She had considered their letter of 23 September 2014 and the schedule enclosed with it, and had concluded that all the Claimant's complaints had been captured (albeit concisely summarised into statistical summaries for recording purposes) but she had nevertheless added an additional complaint of incivility and impoliteness in relation to the allegation that the Claimant had been called an idiot.

    ii) The summary in PS Hargreaves' letter of 17 September 2014 had been produced for recording purposes only and all aspects of the complaint would be considered as part of the investigation including the five main areas that she (Helen Williams) then set out, namely:

    a) Other assault – relating to DC Irvine's conduct in dealing with the Claimant at the scene and the application of handcuffs by unknown officers prior to the Claimant being informed that he was under arrest.
    b) Breach of Code A of PACE – relating to DC Irvine not informing the Claimant why he was under arrest or providing him with a reason or explanation for detaining him, and the handcuffing officers not providing an explanation or lawful basis for their search.
    c) Breach of Code C of PACE – relating to the Claimant not being provided, in custody, with his rights; not being informed that he could have someone made aware of his detention; no solicitor being provided despite his request for one; and the fact that he was detained for 9 hours and alleged that to be disproportionate.
    d) Irregularity in relation to evidence – which was concerned with officers making false statements about his behaviour.
    e) Incivility, impoliteness and intolerance – relating to DC Irvine using abusive and insulting words and calling him an idiot.

    iii) Whilst only DC Irvine was named, as part of the investigation officers involved would be identified and their accounts obtained.

    iv) Based on the information and evidence reviewed, it was not considered that the criteria for "special requirements" were met, but that would be subject to continual review in the light of any new information or evidence gathered.

  127. The investigation itself was ultimately carried out by PC Marshall (rather than PS Hargreaves). At paragraph 37 of his witness statement, Detective Superintendent Khan states that PC Marshall affirmed the RO's recommendation that the complaint should not be subject to special requirements, and that during the investigation further evidence was obtained – but that none of it corroborated the Claimant's account or provided a basis for concluding that special requirements were necessary.
  128. At the conclusion of the investigation, PC Marshall completed a five page Report, dated 15 December 2014. As to the investigation, he variously set out:
  129. i) The fact that DC Irvine and PC Walters were the officers the subject of complaint.

    ii) Extracts from the Niche Occurrence Form and the Custody Record.

    iii) The fact that there were no images of the arrest in the CCTV footage that had been downloaded on 11 December 2012 (i.e. the day of the match), but that the footage showed that numerous supporters had run onto the pitch in celebration, and that the pitch had been cleared via the tannoy, police officers and stewards.

    iv) Summaries of the accounts of:

    a) DC Irvine - including not only that given in his statement of 11 December 2012, but also that he had said that he had used necessary force to pull the Claimant by the front of his jacket from the angry crowd in order to effect his arrest; that once the Claimant was away from the crowd, and at the first available opportunity, he had informed him that he was under arrest, the reasons for the arrest, and had read him the full caution; that he had then handed the Claimant to other officers whose identity, due to the length of time, he could not recall; and that he denied calling the Claimant an idiot or saying that he did not like him.
    b) PC Walters – including not only that given in his statement of 11 December 2012, but also that he had said that the Claimant was searched after his arrest and prior to being placed in the prisoner cage in the back of a police van; and that the Claimant had been handcuffed due to his behaviour being such that he could cause injury to officers or other people.
    c) Former Special Constable Harman - who was one of the officers who transported the Claimant, in handcuffs, to the Police Station. She said that the Claimant was handed over to her already handcuffed; that she was informed by the officer who handed him over that the Claimant was under arrest for a section 5 Public Order offence; and that, due to the length of time, she was unable to remember who was with her when they transported the Claimant to the custody area.
    d) PS Daniels – who was the receiving Custody Officer who said, amongst other things, that the Claimant had been given a notice outlining his rights and had signed as having received those rights; that the Claimant had declined both a solicitor and having someone informed of his arrest; that, as no solicitor had been requested, none had been contacted; that he had authorised the Claimant's detention to secure / preserve evidence and to obtain evidence by way of questioning; and that at no time during his detention had the Claimant sought to make a complaint about any aspect of his arrest and handling prior to arriving in custody, or whilst in custody.
    e) PC Stocks - who dealt with the Claimant being charged, and being given conditional bail.
  130. Against that background PC Marshall concluded that:
  131. i) There was no necessity to refer the matter to the CPS.

    ii) DC Irvine said that he had spoken with the Claimant prior to his arrest and (in accordance with section 5(3) of the Public Order Act 1986) had warned him, and that that was confirmed by PC Walters.

    iii) In the circumstances, it was reasonable for DC Irvine not to inform the Claimant that he was under arrest until he was away from the crowd, and DC Irvine had said that it was then that he had told the Claimant that he was under arrest, the reasons for that, and had cautioned him.

    iv) Given that under s.117 of PACE officers are empowered to use reasonable force, if necessary, when effecting an arrest, the force used by DC Irvine had been legal proportionate and necessary - to prevent both disorder and harm to himself, colleagues, stewards and members of the public.

    v) DC Irvine had refuted that he was "pushing everybody", and had said that he did not recall pushing anyone.

    vi) Due to the nature of the incident, the fact that it occurred at a football match, the number of officers deployed at it, and the length of time between the incident and the complaint, it had not been possible to establish who the handcuffing and searching officers were.

    vii) DC Irvine and PC Walters both denied fabricating evidence and DC Irvine denied using insulting words towards the Claimant.

    viii) The Claimant was detained to secure and preserve evidence and to verify his address in London, and the length of time that he was in custody was considered to be reasonable in the circumstances.

    ix) The Custody Record confirmed that the Claimant had been given a notice setting out his rights in custody, had declined both a solicitor and someone being informed of his detention, and had been reminded of his rights later on in his detention and had continued to decline a solicitor.

  132. Chief Inspector Akeroyd, who was the ultimate decision maker, wrote to the Claimant on 16 December 2014. She attached a copy of PC Marshall's report, and variously stated that:
  133. i) She was satisfied that the complaint had been properly investigated.

    ii) Against the background that the burden of proof in police misconduct proceedings was on the balance of probabilities, she had to ask whether "on balance" the officer's behaviour fell below the standards expected and set out in the Standards of Professional Behaviour.

    iii) Having reviewed the circumstances of the complaint together with the information available to her, she was not able to uphold the complaint.

    iv) She considered that no one had a case to answer for misconduct, gross misconduct or unsatisfactory performance.

    v) Therefore no further action would be taken against any party and the matter would not be referred to the CPS.

    The Claimant's Appeal

  134. On 9 January 2015 Tuckers wrote, in error, to the IPCC rather than to the Defendant, indicating that they were instructed to appeal and that the grounds of appeal were that:
  135. i) The complaints had not been adequately investigated.

    ii) The Claimant had not been provided with sufficient information in respect of the findings of the investigation.

    iii) The Claimant disagreed with the findings of the investigation.

    iv) The Claimant disagreed with the determination reached by the investigation that there was insufficient evidence to support a finding of misconduct and / or unsatisfactory performance.

  136. The letter was forwarded to the Defendant who received it on 16 January 2015. The appeal was thereafter considered on behalf of the Defendant by Gregory Rogers, the Compliance and Policy Manager in the PSD of the West Yorkshire Police.
  137. On 31 March 2015 he wrote to Tuckers enclosing his four page determination of the appeal. In that determination, Mr Rogers set out the background to the appeal, including summarising the Claimant's complaints under seven headings, namely that:
  138. i) He was unlawfully arrested and detained for 9 hours.

    ii) He was not told that he was under arrest.

    iii) Unlawful force was used on him including the use of handcuffs.

    iv) He was not told the grounds as to why he was being searched.

    v) The officer used insulting words towards him.

    vi) He was not allowed access to a solicitor or allowed to have anyone notified of his detention.

    vii) DC Irvine and his colleagues made false allegations in sworn statements against them.

  139. As to the complaints that the Claimant was unlawfully arrested and detained for 9 hours, and was not told that he was under arrest, Mr Rogers concluded that it was not appropriate for PC Marshall to consider whether the Claimant's arrest and detention was lawful since the lawfulness of those actions could only ever be determined by a court. It was appropriate for PC Marshall to consider whether the actions taken by the officers were reasonable and whether or not any officer had a case to answer. He noted that the account of PC Walters supported the account of DC Irvine (incorrectly referred to at that point in the assessment as "PC Marshall") as to the Claimant's behaviour prior to arrest, the fact that he was warned about his behaviour prior to arrest, that he failed to heed the warning that he was given, and that he was told the reason for his arrest by DC Irvine. It was acknowledged by PC Marshall that that there was a slight delay between the physical act of arresting the Claimant and him being informed that he was under arrest, but concluded that DC Irvine had provided a reasonable explanation for that delay. Mr Rogers further noted the account given by the Custody Officer PS Daniels to which PC Marshall had referred, and concluded that, on the available evidence, he was satisfied that the actions of the Officers in arresting the Claimant were reasonable; that it was reasonable for the Claimant to be detained in custody; and that the length of time for which he was detained was not excessive.
  140. As to the complaints that unlawful force was used, including the use of handcuffs, and that the Claimant was not told the grounds as to why he was being searched, Mr Rogers noted that the Claimant was not handcuffed or searched by DC Irvine, PC Walters or SC Harman, and that given the length of time between the events complained of and the making of the complaints, it had not been possible to identify the officers responsible for those acts – albeit that PC Walters did deal with why the Claimant had been handcuffed and the fact that he was searched after arrest – which was also referred to by DC Irvine. PC Walters and DC Irvine had both provided accounts for the force that they had used on the Claimant which PC Marshall had considered to be reasonable. PC Marshall could not have been reasonably expected to uphold the complaints specifically relating to the search or the use of handcuffs given the lack of evidence upon which to determine them.
  141. As to the complaint that DC Irvine used insulting words ("you're an idiot" and "I don't like you") towards the Claimant, Mr Rogers noted that DC Irvine denied the allegation and opined that given the nature of the complaint and the length of time since the events, it was proportionate for PC Marshall not to have attempted to trace the officers who were said by the Claimant to be nearby at the time. Hence he did not uphold the appeal in relation to this complaint.
  142. As to the complaint that the Claimant was not allowed access to a solicitor, or to have anyone notified of his detention, Mr Rogers recorded that, having reviewed the Custody Record, he was satisfied that the Claimant had signed it to confirm that he had been given his rights, that he did not want anyone to be informed of his arrest, and that he did not want to consult with a solicitor. Mr Rogers was also satisfied that the Claimant's detention had been reviewed by Inspector Struther at 03.34 on 12 December 2012 - when the Claimant was again reminded of his right to consult with a solicitor, but had declined and had made no other representations. Hence the appeal was not upheld in relation to this complaint.
  143. As to the complaint that DC Irvine and his colleagues had made false allegations against the Claimant in sworn statements, Mr Rogers noted that both DC Irvine and PC Walters denied that they had done so and that their statements were consistent. Mr Rogers recorded that he had also taken into account the fact that the Claimant had accepted a fixed penalty notice in relation to his behaviour, as well as the lack of any other evidence which would support his allegation. Hence the appeal was not upheld in relation to this complaint either.
  144. Finally, Mr Rogers variously concluded that the investigation conducted by PC Marshall was appropriate, and that the conclusions he had reached were reasonable in the light of the evidence; that the decision taken that there was no case to answer for misconduct, gross misconduct or unsatisfactory performance was appropriate; that the decision to take no further action was appropriate - as no failings had been identified as a result of the complaints; that the decision not to refer the matter to the CPS was appropriate as the report and the underlying evidence did not indicate that a criminal offence had been committed by any officer the subject of the complaints; and that, following the investigation of the complaint, Chief Inspector Akeroyd had provided adequate information.
  145. At paragraph 38 of his witness statement Detective Superintendent Khan says that he has considered the papers again, and the papers in this claim, and has concluded that there is nothing to suggest that the investigating officer's conclusions were incorrect or unreasonable and that, on a balanced assessment of all the evidence, the complaint is not sustainable.
  146. These Proceedings

  147. Given the reliance, in argument, on aspects of the correspondence and pleadings, it is necessary to summarise the relevant aspects.
  148. In his letter before claim, dated 13 July 2015, the Claimant set out that the matters being challenged were the ongoing decision, believed to have been initially taken by the RO, thereafter by Chief Inspector Akeroyd and then by Mr Rogers, not to certify the investigation as one subject to special requirements; or, in the alternative, the decision of Mr Rogers that the decision that there was no case to answer for misconduct, gross misconduct, or unsatisfactory performance was appropriate – which, it was asserted, was a decision that no reasonable police force could have reached in the absence of an appropriate severity assessment correctly identifying the complaint as one which was subject to special requirements, and as such the decision was irrational and ultra vires. The issue was thus, in summary, said to be that in concluding unreasonably that the test for special requirements was not met, the Defendant had not only made errors of law but had also reached irrational conclusions. Reference was made, amongst other things, to paragraphs 332-336 of the 2010 version of the IPCC Statutory Guidance (which dealt with special requirements), and to paragraph 9.32 of the 2013 version of that Guidance, which provided (again in relation to special requirements) that:
  149. "The test has a low threshold – requiring only an indication. The investigator must think that there is an indication, but must also be satisfied that a reasonable investigator with knowledge of the circumstances or evidence would consider that the circumstances or evidence indicate a police officer or special constable may have committed a criminal offence or behaved in a manner that would justify the bringing of disciplinary proceedings."
  150. In the Defendant's formal response, dated 24 July 2015, various factual matters were set out and it was asserted, amongst other things, that the claim was time barred; that no failings in relation to the decision of Mr Rogers had been identified or set out; that the County Court was well placed to deal with the issues raised (including unlawful arrest which could not be dealt with in a misconduct context); and that, on any objective interpretation of the evidence, it was clear that there was no case to answer in misconduct against any officer, and that accordingly any claim for judicial review would be academic and should thus be refused.
  151. In his Claim Form, dated 17 August 2015, to which was appended a Statement of Facts etc., the Claimant indicated that he sought the quashing of the decision not to uphold his appeal; a declaration that this is a case that satisfies the test for special requirements; and an order that his complaint should be reconsidered in accordance with the provisions for special requirements. It was asserted, amongst other things, that the failure of the Defendant, either as part of the investigation, or as part of the appeal, to find that the Claimant's complaint was one that satisfied the test for the application of special requirements, lay at the heart of the case; that, from a practical point of view, a decision that special requirements applied would very likely lead to a more intensive investigation into the conduct complained of; that, from a legal point of view, it would lead to the additional safeguard of an appeal to the IPCC; and that the Defendant's contention that the complaint of unlawful arrest could not be dealt with in misconduct proceedings was wrong.
  152. The Defendant's Summary Grounds for Contesting the Claim, dated 21 September 2015, variously contended that the decision in relation to special requirements was analogous to a case management decision and there was no criticism of the actual findings of the investigation and appeal; that it had not been open to the Claimant to appeal the adequacy of the investigation, only its findings; that the Grounds did not identify any shortcoming with the conclusions of the investigation such as to make it even arguably amenable to judicial review; that it would be disproportionate and oppressive if every complaint allegation, no matter how unlikely or spurious, were to result in certification, and it was vital that the system contained a filter in order to properly allocate investigative time and resources appropriately; and that it was not open to appeal the adequacy of an investigation, only its findings.
  153. In his Response, dated 29 September 2015, the Claimant accepted that there may be cases in which the allegations, however serious, were so totally without foundation that special requirements should not be applied, but argued that the special requirements test is a low one; that it is first applied before an investigation of the complaint takes place; and that there is an appeal against the adequacy of an investigation.
  154. As the Claimant pointed out in argument the Defendant did not, whether within the relevant time limit or at all, file detailed grounds as required by CPR Part 54, but instead eventually indicated an intention to rely on the Summary Grounds and the statement of Detective Superintendent Khan.
  155. As already indicated above, permission was granted on 16 October 2015.
  156. The Arguments

    1. The Claimant

  157. Mr Stephen Cragg QC, on behalf of the Claimant, argued in broad outline that:
  158. i) The Defendant had failed to apply the correct (or any) test when considering the question as to whether special requirements apply in this case.

    ii) In any event, it would be irrational and not in accordance with the statutory test to decide that special requirements do not apply in this case;

    iii) It was not at all clear that the investigating officer had ever considered the issue.

    iv) The Defendant had erred in deciding that the issue of special requirements cannot be considered on appeal.

    v) When special requirements apply that will have a direct impact on whether an investigation is proportionate - which was an issue that should have been scrutinised as part of the appeal.

    vi) Hence the Court should declare that this is a case where the test for special requirements is met, and the Defendant should reconsider the appeal decision with a view to referring the case for re-investigation.

    vii) There were no alternative remedies that meant that the claim should not be allowed, and the case was not "academic" because the outcome of an appeal and/or a re-investigation could not be foretold (and, in any event, Detective Superintendent Khan indicated that the Defendant was of the view that there were issues in this case of some importance to the police complaints scheme).

  159. As to the decision in relation to special requirements, Mr Cragg variously submitted that:
  160. i) All the Claimant's complaints came within one or more of the specific Standards of Professional Behaviour.

    ii) Allegations that excessive force was used during arrest (particularly against the background of the approach in cases such as Bouyid v Belgium – Appn no 23380/09 28 September 2015 at [88]), that procedural requirements in relation to arrest were not complied with, and that officers have fabricated accounts were at the serious end of misconduct, and involved allegations that could lead to criminal prosecution, and certainly to findings of misconduct – rather than (as suggested by Detective Superintendent Khan in relation to allegations about force used during arrest) being likely to lead to an investigation without special requirements.

    iii) The test for special requirements (see paragraph 19B(1) of Schedule 3 to the 2002 Act and both the 2013 and 2015 versions of paragraph 9.32 of the IPCC Statutory Guidance – all above) was a low one, with only an indication that that conduct may justify the bringing of disciplinary proceedings being necessary. Equally, consistent with paragraph 9.30 of the IPCC Statutory Guidance (above), the initial assessment necessarily took place before the investigation, and therefore before an assessment of the credibility of the various accounts has been made; and paragraph 19B(2)&(4) of Schedule 3 to the 2002 Act (above), which deals with making severity assessments, was clearly premised on the basis that what was said in the complaint was to be taken as true – which was confirmed by paragraph 9.36 of the IPCC Statutory Guidance (above).

    iv) That said, it was accepted that, against the wide range of behaviour covered by the Standards of Professional Behaviour, complaints that met the test could cover a wide range of misconduct and it was not the Claimant's case that all complaints of a particular severity must be subject to special requirements. Rather, it was accepted that there may be cases in which judgement had to be brought to bear as to whether the complaint made was so totally without foundation that, however serious the content of the complaint otherwise was, special requirements should not be applied.

    v) However, the Claimant's complaint was clearly not, by reference to the example in paragraph 9.32 of the IPCC Statutory Guidance (above), a "bare assertion". Rather it involved a detailed statement from him, and there was also acceptance by the officers that force was used; that the Claimant was handcuffed; that words were exchanged; that he was detained; that evidence was provided; and that his rights were discussed. Hence the complaint involved competing versions of events - as to which it was not at all clear where the truth lay.

    vi) To the extent that Helen Williams, the RO, had reached a decision on special requirements, it was flawed. It involved an unwarranted pre-judging of all the major issues raised by the Claimant in favour of the officers before the investigation had even commenced, rather than concluding that the complaint amounted to an indication of misconduct which required a proportionate investigation, and was therefore a serious misapprehension of the correct application of the special requirements decision making process – which the Court had the potential to remedy. In particular:

    a) She was not the Investigating Officer; the decision in relation to special requirements should have been taken by that Officer; and (albeit not part of the claim as such) that was a failure of process.
    b) If, to the extent that she had concluded that there were "no conduct matters contained in Mr AB's complaint", that was her special requirements decision, she had not applied the right test.
    c) There was no evidence of any subsequent review of any special requirements decision.
    d) Notwithstanding paragraph 9.33 of the IPCC Statutory Guidance (above), no reasoning for her decision was recorded at any stage.
    e) Her assertion that DC Irvine had "no cause to manhandle" the Claimant was actually the gravamen of his complaint that unreasonable force had been used during his detention.
    f) She appeared to accept completely DC Irvine's account that he had fallen "for some unknown reason" and that the Claimant was hurt as he pulled himself up.
    g) Even if the Claimant had accepted that he was behaving inappropriately (which, in fact, he denied) it did not follow at all that it was "therefore likely that the officer used force that was necessary".
    h) The decision that the failure of the Officer to tell the Claimant that he was under arrest (which would amount to unlawful arrest) was "not misconduct" was flawed - given that the Claimant and the officer had presented different versions and there was a perceived need to obtain the accounts of other officers in relation to the issue.
    i) The decision that the word "DUTY" in the custody record was a "typing error" was also flawed – given that it corroborated the Claimant's account that he was denied a solicitor.
    j) In any event, she should not have accepted everything on the Custody Record.
    k) To say that the Claimant had accepted a Fixed Penalty and that "therefore by his own admissions he was behaving in an inappropriate manner" was to go too far.
    l) The Claimant's complaint that the officers had made "false allegations in sworn statements" was erroneously recorded as simply raising "a number of inaccuracies in the officers [sic] duty statements".
    m) Even though the Claimant's complaint raised a number of serious issues (as illustrated in the RO's email to Tuckers on 16 October 2014 – namely assault, handcuffing, unlawful arrest, breach of PACE, and making false statements) it was deemed suitable for local resolution (the lowest form of investigation).

    vii) Detective Superintendent Khan's reliance on paragraph 9.32 of the IPCC Statutory Guidance (see above) went far beyond what was envisaged in the statute and the guidance and was not, in any event, what the RO did.

    viii) In addition, to the extent that Detective Superintendent Khan appeared to suggest that an investigation would not be subject to special requirements if, on the available evidence, the RO considered that criminal/disciplinary proceedings were not justified, that was not the test described in the statute and the guidance.

    ix) Indeed, it was clear that the Defendant was applying a much higher test than that provided in the 2002 Act and the guidance, and that that was fuelled by concerns related to resources rather than being based on compliance with the statutory scheme, and concerns about resources could not possibly trump the application of the proper test.

    x) In any event, the examples given by Detective Superintendent Khan, of cases in which it would be extraordinary if special requirements had to apply, achieved nothing – and none of them related to a situation, as in this case, where there were competing versions of events and it was not at all clear where the truth lay.

    xi) The lack of interviews during the investigation showed that the Claimant's complaint had not been taken seriously. The investigation was nowhere near the sort of in-depth enquiry that was actually needed. It should have involved proper formal interviews during which, for example, the precise circumstances in which DC Irvine and PC Walters had made their witness statements could have been explored, along with any differences between their accounts, and the accounts of others – including the Claimant's account being put to them.

    xii) There was no mention in the Investigating Officer's report, or by Chief Inspector Akeroyd in her letter dated 16 December 2014, of any further, or any, consideration of special requirements, or of the Claimant's account being put to DC Irvine and PC Walters.

  161. As to the Claimant's appeal, Mr Cragg variously submitted that:
  162. i) Given that paragraph 13.2 of the IPCC Statutory Guidance (above) provides that an appeal offers a final opportunity to consider whether the complaint could have been handled better at a local level and, where appropriate, to put things right, there was no reason why the failure to apply special requirements to the investigation was not an issue that should have been dealt with by the Defendant. If the proper approach had been taken, it would have been realised that special requirements should have been applied – which route would have provided additional protections for both the officers and the Claimant.

    ii) To underline that, paragraph 13.5 of the same Guidance (above) provides that consideration of an appeal must involve a fresh consideration of the case; and paragraph 13.81 (also above) indicates that the person considering the appeal may consider grounds other than those advanced if they deem it appropriate (for example, when it appears that another ground of appeal may apply and may lead to the upholding of the appeal).

    iii) In any event, paragraph 25(2)(b) of Schedule 3 to the 2002 Act (above) provides a specific right of appeal "against the findings of the investigation"; and paragraph 13.89 of the IPCC Statutory Guidance (above) makes clear that the findings of an investigation include the eventual conclusions; the reasons for the conclusions; the evidence that has been gathered to support the conclusions and a critical analysis of the evidence.

    iv) Likewise, when (as in this case) consideration was being given to a findings appeal that should, by reference to paragraphs 13.96-13.98 of the IPCC Statutory Guidance (above), include consideration of whether the investigation has been carried out in a proportionate manner – given that those paragraphs provide, amongst other things, that when considering the proportionality of the investigation as a whole, a judgement is being made about the scope and robustness of the investigation, weighed against the seriousness of the allegation.

    v) In addition, as highlighted by Detective Superintendent Khan, paragraph 9.14 of the IPCC Statutory Guidance (above) confirms that the adequacy of the investigation may be scrutinised when any appeal is considered, and goes on to indicate that proportionality must take into account a number of factors – including the seriousness of the matter being investigated, and the prospects of misconduct proceedings resulting.

    vi) Hence the Defendant had been mistaken when, in his summary grounds, he had suggested that there was no appeal against the adequacy of an investigation – because an appeal against the findings of an investigation includes an analysis of the evidence that has been gathered, and a consideration of the proportionality of the investigation in relation to the specific complaints made.

    vii) If an assessment has been made that special requirements do not apply (essentially because there is not even an indication of misconduct and, by implication, the matter is not serious) then, applying the guidance, a proportionate investigation is not going to be as thorough or as intensive as in a case in which it has been found that special requirements do apply.

    viii) In contrast, investigations where special requirements apply are likely to be ones in which more serious allegations are made and thus, in accordance with the guidance, a proportionate investigation is likely to be of a different order than for complaints where special requirements do not apply – for example, in this case, had special requirements been certified:

    a) The investigation would have been a lot more formal, with proportionality likely to be judged differently when compared to the position hitherto that the complaint was not going towards a disciplinary hearing, and possibly with a different outcome.
    b) Regulation 16 notices would have been served, with subsequent statements and interviews being under caution and the investigator having the power to insist on attendance at interviews.
    c) It was inconceivable that there would have been anything other than proper interviews of the officers (as opposed to the obtaining of accounts by email).
    d) In accordance with paragraph 9.38 of the IPCC Statutory Guidance (above) the investigation would have involved consideration of the officers' disciplinary records.
    e) The conclusions in the Investigating Officer's report would have been confined to whether or not there was a case to answer.
    f) There would have been the further safeguard that any appeal would be to the IPCC – see Regulation 30(2)(b) of the Complaints Regulations and paragraph 13.16 of the IPCC Statutory Guidance (both above).
  163. Mr Cragg further submitted, as to the statistics cited by Detective Superintendent Khan (some of which appeared to come from the IPCC publication entitled Police Complaints; statistics for England and Wales 2014/2015), that they did not support the contentions advanced by reference to them.
  164. In conclusion, Mr Cragg submitted that:
  165. i) If the Claimant's complaints had been upheld then it was inconceivable that the officers would not have faced the possibility of disciplinary proceedings of some sort.

    ii) Hence a failure by the Defendant to recognise, whether as part of the investigation or as part of the appeal, that special requirements were clearly applicable at the start of the complaints investigation, fatally undermined the decision-making process in this case.

    iii) In those circumstances, both the investigation and the appeal should have concluded that this was clearly a case where special requirements applied and appropriate decisions would then have been made to ensure that that was how the complaint would be investigated.

    iv) To fail to do so was in breach of the statutory conditions and constituted a perverse and irrational decision-making process, and/or showed that the Defendant had failed to take into account the special requirements provisions when deciding the issues relating to the Claimant's complaint.

    v) The Defendant's response to the pre-action protocol letter, to the effect that a complaint of unlawful arrest could not be dealt with at all as part of the misconduct process, when the IPCC guidance included it under three separate Standards of Behaviour, was a further indication of the unlawful and mistaken approach by the Defendant to the issues in the case.

    vi) In this case, the appeal decision in relation to the findings of the investigation should have concluded that the complaint was clearly one to which special requirements should have applied; that a proportionate investigation (i.e. one of sufficient robustness and scope considering the seriousness of the allegations) had not taken place; and that thus the appeal should be upheld and a re-investigation directed on the basis that the special requirements test was met.

    vii) Whilst it was true that the Claimant had tortious remedies that he could pursue, they were not "alternatives" to the complaint process (which had the potential to lead to disciplinary or performance proceedings). Equally, a private law case would take 2-3 years to go to trial, and it would not be sensible (as suggested by the Defendant) to wait until then to discover whether judicial review had become the remedy of "last resort".

    viii) Nor was the outcome academic, given that an investigation in which special requirements were certified would have followed a different course (as outlined above) and it could not be said that the outcome of a properly allocated and investigated complaint would lead to the same result as currently made by the Defendant.

    ix) Thus the Claimant asked for the relief sought in order to ensure that the complaint appeal system delivers findings that properly scrutinise the investigation and the decisions upon which it is based.

    2. The Defendant

  166. I have already summarised the Defendant's ultimate submissions in paragraph 4 above.
  167. On his behalf, Mr Matthew Holdcroft argued that the Claimant's statements in his Judicial Review Claim Form (that he sought judicial review of the Defendant's decision that the Claimant's complaint was not subject to special requirements), and in his Grounds (that he challenged the Defendant's decision not to uphold his appeal against the adequacy and findings of the investigation into his complaint) wrongly conflated the fact that the investigation had not been certified as being subject to special requirements with its adequacy (or proportionality).
  168. There were, Mr Holdcroft submitted, three areas in dispute – namely:
  169. i) The test to be applied when considering whether an investigation should be subject to special requirements.

    ii) Whether the test was correctly applied in this case.

    iii) Whether, where a case is certified as being subject to the special requirements, it will have a direct impact on whether the investigation is proportionate

  170. Those issues involved, Mr Holdcroft suggested, considering the following:
  171. i) Whether certifying an investigation as being subject to special requirements necessarily alters the substance or approach of the investigation.

    ii) Whether, if the investigation had been certified as being subject to special requirements, it would have impacted upon the conduct of the investigation or the evidence sought and obtained.

    iii) How it is said that certifying the investigation as subject to special requirements would have impacted upon the adequacy of the investigation.

  172. As to the facts, Mr Holdcroft underlined, amongst other things, that the RO had reviewed the Claimant's statement; that she had concluded that there were no misconduct matters identified and that special requirements were not satisfied; that she had recorded that if, during the course of the investigation any conduct issues were raised the matter should be returned for reassessment; and that, during the investigation, no additional matters were identified.
  173. As to the test for special requirements, Mr Holdcroft submitted that:
  174. i) In relation to disciplinary matters, and in accordance with paragraph 19B(1)(b) of Schedule 3 to the 2002 Act (above), the test is whether it appears to the person investigating that there is an indication that the person to whose conduct the investigation relates may have behaved in a manner which would justify the bringing of disciplinary proceedings.

    ii) What justifies the bringing of disciplinary proceedings is the relevant person being found to have a case to answer – as to which, see e.g. paragraph 11.31 of the IPCC Statutory Guidance (above).

    iii) Paragraphs 9.32 & 9.33 of the IPCC Statutory Guidance (above) and paragraph 2.131 of the Home Office Guidance (above) make clear that when considering whether there is an indication that the complaint may satisfy the special requirements test, the investigator must assess the complaint on the basis of the evidence available to them at that stage.

    iv) Thus if, on the available evidence, there is no prospect of misconduct or criminal proceedings being brought, despite the contents of the complaint, then the investigator should not certify the investigation as being subject to the special requirements.

    v) That approach was obviously necessary if the system was to function at all - as it would be disproportionate and oppressive if every complaint allegation, no matter how unlikely or spurious, were to result in the service of misconduct notices on officers. Rather, it was vital that the system contain a filter in order to properly allocate investigative time and resources appropriately.

    vi) Against that background, the appropriate test to apply in deciding whether an investigation should be certified as being subject to special requirements was as follows:

    a) Identify from the complaint whether, on its face, it contains allegations that would amount to breaches of the criminal law or the standards of professional behaviour. If it does not, then it need not be certified.
    b) If potential breaches are identified, then those alleged breaches should be considered against the information and/or evidence available at that time. If the complaint is inherently unlikely or undermined by the available information and/or evidence then it may not be appropriate to certify the investigation as being subject to the special requirements.
    c) If, on the available evidence, an officer could be found to have a case to answer, in either criminal or misconduct proceedings, then the investigation should be certified as being subject to the special conditions.
    d) It is a fact specific issue in relation to the circumstances of each particular case.
  175. As to the consequences of certification, Mr Holdcroft submitted that:
  176. i) The only significant procedural step was the requirement that the officer be given notice of the allegation – which was intended to provide them with early notice of the investigation in order to allow them to participate in it and to safeguard their rights.

    ii) Otherwise, the conduct of the investigation remained a matter for the discretion of the individual investigator.

    iii) The Claimant's contention that recognition that the case is one where special requirements are needed is very likely to lead to a more intensive investigation into the conduct complained about (for example, by way of formal interviews which would have provided an opportunity to test that officers' version of the events) was misconceived and wrong in law – being contrary to paragraph 9.13 of the IPCC Statutory Guidance (above) and to paragraph 2.168 of the Home Office Guidance (above – which implicitly addresses the position of an investigation that has been certified as being subject to special requirements).

    iv) The critical requirement (see e.g paragraph 9.14 of the IPCC Statutory Guidance and paragraph 2.91 of the Home Office Guidance – both above), however serious the complaint and whether or not the investigation is certified, is that it must be proportionate – i.e. be one sufficient, commensurate with the seriousness of the allegation, to establish the facts.

  177. In this case, Mr Holdcroft submitted, the only difference in the investigation that the Claimant could suggest, had special requirements been certified, was that the officers would have been interviewed – but that would have made no difference. Given that the investigation was being undertaken some 18-20 months after the relevant events, the best evidence that was likely to be obtained from DC Irvine and PC Walters was the witness statements that they had provided immediately after those events – especially as, in the interim and as part of their duties, they would have been likely to have attended many other football matches.
  178. As to the legal basis of the appeal available to the Claimant, Mr Holdcroft emphasised that the only available grounds are set out in paragraph 25(2) of Schedule 3 to the 2002 Act (above), and accepted that when (under paragraph 25(2)(a)(i)) considering the findings of the investigation, the appeal will necessarily involve a consideration of the evidence obtained and the proportionality of the investigation. However, he submitted, a decision not to certify the investigation as one subject to the special requirements does not, of itself and without more, render the findings of an investigation susceptible to appeal. It was a procedural step, and the Claimant had made no substantive criticism of the investigation's findings or the appeal.
  179. In view of the list that had been made, it was clear that a lot of evidence had been gathered at the outset. In the result the RO had almost all the relevant material in the case, and certainly everything that she and the Investigating Officer needed to make a decision in relation to special requirements. The Claimant's real complaint in the case was that the RO did not think that the Claimant's account could possibly be true.
  180. In any event, on the basis of the available material and evidence it was reasonable to conclude that the investigation did not need to be certified as subject to the special requirements, given that the following matters all undermined the Claimant's account:
  181. i) The fact that he signed the Custody Record to the effect that he had been given written notice of his rights, did not want anyone informed of his arrest, and did not want a solicitor.

    ii) The fact that it was contemporaneously recorded that during the subsequent review of his detention he had been reminded of his right to legal advice, but did not request to speak to a solicitor and made no other representations.

    iii) The fact that, in the Court's Preparation for trial form on 27 December 2012 and whilst representing himself he had indicated that:

    a) He had been arrested lawfully (albeit that he not been on the advertising hoarding, had not been told to get down from the hoarding, had not caused harassment, alarm or distress, and had not been cautioned).
    b) He had used swear words.
    c) He had always been willing to accept his behaviour and (albeit denying aspects of DC Irvine's account) wanted to plead guilty to a different offence.

    iv) The enquiry, made on his behalf, as to whether the Police would be willing to give him a Fixed Penalty Notice if he admitted the s.5 offence.

    v) The subsequent acceptance by him, apparently on those terms, of a Fixed Penalty Notice, rather than, as claimed, on the basis of his trial advocate's advice, and hence the acceptance of the Notice did involve an admission of misbehaviour.

    vi) His ingenious, but inherently unlikely, explanation that he had referred to "fucking kurts" as opposed to "fucking cunts".

  182. As to an alternative remedy, Mr Holdcroft submitted that:
  183. i) The Claimant had alternative private law remedies available to him that he was in the course of pursuing.

    ii) Whilst conduct that underlies an allegation of an unlawful arrest or an assault may both breach one or more of the Standards of Professional Behaviour, and may be the subject of a misconduct investigation, it is no part of such an investigation to declare that such conduct was unlawful – see [50] of the judgment in R (Chief Constable of West Yorkshire Police) v IPCC (above) and paragraphs 11.14 & 11.17 of the IPCC Statutory Guidance (above).

    iii) In any event, if civil litigation reveals that an officer may be culpable of a conduct matter, then (via paragraph 10 of Schedule 3 to the 2002 Act) that may lead to an investigation and disciplinary proceedings.

    iv) Judicial review is a longstop remedy of last resort and litigants must utilise available alternative remedies rather than issue proceedings for judicial review – and relief should be refused on that basis alone.

  184. As to the issues being academic, Mr Holdcroft emphasised that, whether in the Claimant's appeal letter, letter before claim, or Grounds, the Claimant had made no substantive criticism of the findings of the investigation. Nor had he put forward anything to suggest that the outcome would have been any different if special requirements had been certified, or identified any failing the correction of which would have made any difference. Hence, Mr Holdcroft submitted, the claim related to a decision made in the course of the investigation that was analogous to a case management decision, and (absent any criticism of the findings of the investigation) the claim was academic and should be refused on that ground alone.
  185. 3. The Claimant's reply

  186. Mr Cragg submitted, amongst other things, that:
  187. i) Had special requirements been certified, the officers would have been required to attend formal interviews.

    ii) Albeit that it relates to all cases, paragraph 9.14 of the IPCC Statutory Guidance makes clear that the investigation needs to be proportionate to the seriousness of the matter being conducted.

    iii) The Claimant's proposed test in relation to special requirements (see [121 vi)] above) involved, at (b), a question of degree and, at (c), an inappropriate extra layer in relation to the indication. In reality the position was simple – applying the statutory test, the Claimant's statement provided an indication of misconduct.

    iv) Whilst it was true that the Claimant's statement had been prepared by expert solicitors, the police could not necessarily rely on the statement to cover everything – there may well be information that the police have or other points that need clarification, and there are lots of cases in which further information is requested from the Claimant.

    v) DC Irvine and PC Walters made their statements long before the complaint, and hence did not address it as such. In addition the assertion as to their work since was speculative.

    vi) If all the officers had been interviewed it may well have made a difference – for example, others might have said that they were concerned about DC Irvine's conduct and the force that he had used.

    vii) Carrying out a proper investigation would have been the best way to get the whole picture – whereas here the officers' accounts were not tested in any way.

    viii) It was important, in a case involving allegations of some magnitude, to use the right procedure – whereas here such assessment of special requirements as there was pre-judged the outcome and there was no evidence that it had ever been reconsidered.

    Discussion

  188. Paragraph 1.5 of the IPCC Statutory Guidance states, correctly in my view, that:
  189. "The police complaints system is not straightforward or easy to understand, even for practitioners. It can be even more difficult for complainants. That is why everyone involved in administering the system has a responsibility for ensuring that complainants and other parties are not disadvantaged and that they can access the information they need in a straightforward way. Accessibility is a vital part of securing public confidence."
  190. The need to secure public confidence in the police complaints system in general is obvious. It must therefore deliver the good practice in complaints handling identified by the IPCC in paragraph 1.3 of its Statutory Guidance - namely getting it right; being customer focused; being open and accountable, acting fairly and proportionately, putting things right, and seeking continuous improvement.
  191. As paragraph 1.4 of the same Guidance makes clear, the focus should not be solely on the process involved and the issue of whether anyone is to blame. Instead, it should be on understanding that a complaint is an expression of dissatisfaction with the way that a person has been treated or the service he or she has received. Equally, such dissatisfaction needs to be taken seriously, and is an important part of feedback on performance.
  192. Nevertheless, the real world absence of infinite resource has inevitably coloured the landscape in which both the 2002 Act, and the various changes since, were enacted – not least those provided by the Police Reform and Social Responsibility Act 2011 which, as paragraph 1.16 of the IPCC Statutory Guidance makes clear, were designed to streamline and remove unnecessary bureaucracy from the system, to ensure that complaints are handled at the lowest appropriate level, and to focus more on putting right the complaint made by a member of the public. Hence the focus on proportionality and proper outcomes. The checks and balances provided in the legislation (as amended), and in the IPCC Statutory Guidance, must clearly be viewed in that light.
  193. All that said, and notwithstanding the time that it has necessarily taken to set out the various aspects of the legislation, regulations and guidance to which my attention was drawn in argument, together with a summary of the evidence and of the arguments themselves, it seems to me that the ultimate issues can be dealt with relatively shortly.
  194. I have no doubt, subject to separate consideration below of the issues in relation to special requirements, that the West Yorkshire Police system in relation to the initial handling of complaints is lawful.
  195. The initial actions that must be taken when a complaint is made to a Chief Officer (see [27],[28],[72] & [73] above) are:
  196. i) Deciding whether they are the appropriate authority.

    ii) Taking, as soon as practicable, all such steps as appear appropriate to obtain and preserve evidence relating to the conduct complained of.

    iii) Considering whether the complaint is exempt from recording.

    iv) If not, recording the complaint.

    v) Considering whether the complaint must or should be referred to the IPCC.

    vi) If not, considering whether it is suitable for local resolution.

    vii) If not, categorising the nature of the complaint by reference to the Standards of Professional Behaviour, and making arrangements for it to proceed to a local investigation.

  197. There is no requirement, as such, that these initial actions be taken by the intended ultimate investigator. I accept Detective Superintendent Khan's evidence (see [71] above) that it would not be practicable for investigators to deal with them, and it is clearly appropriate, in order to ensure the accuracy and consistency of the recording and categorisation of complaints, and that they are dealt with in a proportionate and consistent manner, for responsibility for dealing with these initial actions to be delegated, by or on behalf of the Defendant, to ROs from the PSD. It is equally clear that the correct approach (i.e. working on the basis that the allegation(s) within the complaint is/are true) is applied when deciding whether or not the West Yorkshire Police is the appropriate authority, and whether or not the matter is suitable for local resolution.
  198. As to special requirements, paragraph 19B(1) of Schedule 3 to the 2002 Act (see [40] above) makes clear that it is the person investigating the complaint who is responsible for deciding whether or not the test is met.
  199. However, I see nothing unlawful in the West Yorkshire Police system (see [74]-[76] above) which involves RO considering the issue first and making a recommendation in relation to it, which is then reviewed by the Appropriate Authority in consultation with the IO, with the latter then making the decision (and keeping it under review). The system is designed to ensure, as the 2002 Act requires, that it is the person investigating the complaint who ultimately decides whether or not the test is met etc.
  200. Before considering the special requirements test itself, it is necessary to put it into the context that:
  201. i) As indicated above, on receipt of a complaint it is the responsibility of a Chief Officer to take, as soon as practicable, all such steps as appear appropriate to obtain and preserve evidence relating to the conduct complained of.

    ii) When considering whether the complaint is exempt from recording (which necessarily arises prior to any decision to investigate – see [28] above) the Chief Officer is, by virtue of Regulation 3(2)-(4) of the Complaints Regulations, under no obligation to record a complaint that is considered to be, amongst other things, vexatious, oppressive or otherwise an abuse of the procedures for dealing with complaints, repetitious, or fanciful (i.e. no reasonable person could lend any credence to it). Obviously, such consideration may involve matters in addition to the face of the complaint itself.

    iii) Given that a decision that a complaint is exempt from recording would otherwise bring the complaint to an end, there is an appeal against any such decision (see [28] above) to the IPCC.

    iv) A decision that special requirements do not apply means that (subject to ongoing review) the investigation will begin/continue without them. There is no immediate avenue of appeal in relation to that decision, and the Chief Officer is the ultimate appeal authority.

    v) A decision that special requirements do apply means that (subject to ongoing review) the investigation will begin/continue with them. There is no immediate avenue of appeal, and the IPCC is the ultimate appeal authority.

  202. The test in paragraph 19B(1) of the 2002 Act (see again [40] above) must be considered in conjunction with paragraph 9.32 of the IPCC Statutory Guidance (as to which see [104] above for the 2013 version, and [41] above for the 2015 version) along with paragraphs 2.94-2.100 of the Home Office Guidance, and in particular paragraph 2.95 (see [42] above).
  203. The use of the words "appears", "an indication" and "may" in paragraph 19B(1) are clearly intended to ensure that the threshold is a relatively low one. However, paragraph 19B(1) does not limit the application of the test to the face of the complaint, and the guidance makes clear that it is not so limited – which is also consistent, in my view, with the position in relation to exemption from recording. Applying, for example, the 2015 version of the IPCC Statutory Guidance, the IO is entitled to consider the circumstances and evidence available at the time, and whether or not a bare assertion is undermined by other material or is inherently unlikely. That fits in with the likelihood that, in accordance with the duty to obtain and retain evidence as soon as practicable, surrounding evidence will be available, if not from the outset (as in this case), then at a very early stage.
  204. I am fortified in that view by the analogous guidance as to conduct matters in paragraph 2.131 of the Home Office Guidance (see [44] above). Nor, in my view, is there any inconsistency between this approach and the need, after certification, for the severity assessment to be made upon the basis that the conduct alleged has been proved (see paragraph 19B(4) of Schedule 3 to the 2002 Act), nor with the test in relation to whether the IPCC is the relevant appeal body (see Regulation 30(2)(b) of the Complaints Regulations and paragraph 13.16 of the IPCC Statutory Guidance in [60] & [61] above), nor with the test in relation to local resolution (see [28] above) – all of which proceed upon the basis that the alleged conduct has been proved).
  205. It would indeed be a nonsense if, in the sort of situations postulated by Detective Superintendent Khan (see [79 ii) & iii)] above) the IO was required to certify the investigation as being one subject to special requirements. Equally, Mr Cragg accepted (see [112 iv)] above) that there may be cases in which judgement had to be brought to bear as to whether the complaint made was so totally without foundation that, however serious the content of the complaint otherwise was, special requirements should not be applied. However, he submitted, this is plainly not such a case.
  206. In this case it is clear (both from her Log dated 15 September 2014 and from her email dated 16 October 2014) that the RO did consider special requirements, and that she recommended that the investigation should not be certified as being subject to them. I accept the evidence of Detective Superintendent Khan that ROs in the West Yorkshire Police PSD routinely make such decisions by applying paragraph 19B(1) of Schedule 3 to the 2002 Act, and conclude from all the evidence that the RO did so in this case. Whilst she can rightly be criticised, for example, because of her reference to the Claimant raising "a number of inaccuracies in the officers' duty statements" (as opposed to making allegations that they had fabricated their accounts) and because of her apparent contemplation of local resolution, I agree that her recorded rationale (see [80] above) is correctly summarised by Detective Superintendent Khan (see [82] above).
  207. Paragraph 9.33 of the IPCC Statutory Guidance requires the IO to set out the reasoning behind his or her decision as to whether an investigation should be subject to special requirements. I have not seen any document from PC Marshall which records, as such, his reasoning – whether initially or during the investigation. Nevertheless, I accept the evidence of Detective Superintendent Khan (see [89] above) that PC Marshall affirmed the RO's recommendation. It also seems to me that I can safely do so upon the inference that PC Marshall also applied the test in paragraph 19B(1) of Schedule 3 to the 2002 Act.
  208. I also conclude, if his initial decision was right, that none of the further evidence that came to light provided a basis for then concluding that special requirements were necessary.
  209. Hence I have arrived at the first of the ultimate questions posed by the Claimant, namely whether (on the particular facts of this case) it was unlawful for the Defendant to find that this was a complaint in relation to which special requirements applied?
  210. It is clear (from the content of PS Hargreaves telephone calls on 16 October 2014 - see [87 i)] above) that, at the time that he made his decision, PC Marshall must have had available to him at least the Custody Record; the police incident log at the match, the crime report; the bail sheet; various CDs from various parts of the ground; the statement of the arresting officer; the court file; and the schedule of used and unused material.
  211. Thus, as Mr Holdcroft pointed out in argument (see [126] above) PC Marshall was in possession of material and evidence that undermined the Claimant's account, in that:
  212. i) Whilst he claimed to have done nothing wrong and to have been unlawfully arrested:

    a) He had indicated in the preparation for trial form on 27 December 2012 that he had been arrested lawfully (albeit that he had not been on the advertising hoarding, had not been told to get down from the hoarding, had not caused harassment alarm or distress, and had not been cautioned); that he had used swear words; that he had always been willing to accept his behaviour; and that (albeit denying aspects of DC Irvine's account) he wanted to plead guilty to a different offence.
    b) He had enquired, via his then solicitors, as to whether, if he admitted the s.5 offence, the Police would be willing to give him a Fixed Penalty Notice – after which, and apparently on those terms, he had duly accepted such a Notice.

    ii) Whilst he claimed not to have been allowed to have anyone notified of his detention, and not to have been allowed access to a solicitor:

    a) The Custody Record (the entry in which I do not regard as being undermined by the typing in of the word "DUTY") showed that he had signed to the effect that he had been given written notice of his rights, did not want anyone informed of his arrest, and did not want a solicitor.
    b) It was also contemporaneously recorded in the Custody Record that, subsequently, he had been reminded of his right to legal advice, but did not request to speak to a solicitor and made no other representations.

    iii) The inherent unlikelihood of the explanation that he had referred to "fucking kurts" as opposed to "fucking cunts".

  213. To those might have been added, given its importance in explaining why he was on the track (as opposed to having remained in the stand) in the first place, the profound implausibility of the Claimant's assertion that he thought that Arsenal players (having just been beaten in a penalty shoot-out by a team from three divisions below them, and with the home crowd celebrating wildly) would be minded to sign shirts.
  214. At all events, notwithstanding the nature of the allegations made in the complaint, and despite paying due regard to the importance of Article 3 of the ECHR, it seems to me that, in the particular factual circumstances of this case, and applying the test in paragraph 19B(1) of Schedule 3 to the 2002 Act, the decision that special requirements did not apply was neither irrational, nor otherwise unlawful. The IO was entitled to take the view that this was not, to use Mr Cragg's phrase, a case in which there were competing versions of events and it was not at all clear where the truth lay. Equally, as I have already indicated, nothing came to light thereafter that should have caused that decision to be changed.
  215. This complaint was made some 20 months after the relevant events, which themselves took place in a dynamic situation. The two principal officers involved had made detailed witness statements on the night in question. It was always going to be very difficult, given the lapse of time, for other officers (beyond those mentioned on the Custody Record) to be identified. In the result, the two principal officers gave accounts in addition to their witness statements (see [90 iv) a) & b)] above), and former Special Constable Harman, PS Daniels, and PC Stocks also gave accounts (see [90 iv) c)-e)] above. The contemporaneous CCTV footage was checked. It was reasonable, given that the Claimant's complaint had been put forward on his behalf in a statement made to solicitors who were representing him in prospective civil proceedings, not to make any further enquiries of the Claimant himself. Thus, whilst an account might, in addition, have been obtained from Inspector Strother, it seems to me that, overall, the investigation was a proportionate one.
  216. If I am wrong about the lawfulness of the decision in relation to special requirements I can, nevertheless, see no significant difference to the conduct and proportionality of the investigation if special measures had been certified.
  217. I have set out the broad consequences of certification in [69] above. As Detective Superintendent Khan has rightly observed (see [78] above), their principal importance, save for the decision of the IO being whether there is a case to answer and any appeal being to the IPCC, is to afford the officer(s) concerned certain safeguards – albeit that they can also be suspended and their discipline records considered.
  218. In particular, paragraph 9.13 of the IPCC Statutory Guidance (see [38] above) specifically provides that in a special requirements case a statement under caution should be taken or requested from the person to whose conduct the investigation relates or (my emphasis) he or she should be required to attend an interview. See also, in that regard, paragraph 2.168 of the Home Office Guidance.
  219. Mr Cragg submitted that a proportionate special requirements investigation in this case would necessarily have involved proper formal interviews of DC Irvine and PC Walters which, under Regulation 19 of the Complaints Regulations they could have been required to attend, and during which matters could have been explored to the potential benefit of the Claimant's complaint.
  220. However, I disagree with the proposition that formal interviews would necessarily have taken place. In any event, so long after the relevant events, and with the two principal officers having made witness statements on the night of the relevant events, and with no realistic likelihood of tracing any other officers who played any part or saw anything relevant, I see no realistic prospect of any different outcome, whatever the method of obtaining an account that was used, in so far as the actual accounts of the two officers are concerned.
  221. Equally it seems to me that the ultimate decision of Chief Inspector Akeroyd not to uphold the complaint (see [92] above) is unimpeachable, and that there is no realistic prospect of it changing after a further investigation involving special requirements.
  222. The Claimant's appeal did not specifically complain about the special requirements decision. Nevertheless, addressing the second of the ultimate questions posed by the Claimant, I accept (for broadly the reasons advanced by Mr Cragg - see [113] above), that there may be circumstances in which it may be appropriate, whether or not specifically raised, to consider on appeal the propriety of a decision not to certify a case as being subject to special requirements.
  223. However, for the reasons already canvassed above, in this particular case any such consideration could not have made any difference to the otherwise unimpeachable outcome of the appeal on the merits. I do not regard the admittedly ancillary issue as to the propriety or otherwise of PC Marshall considering the lawfulness, as opposed to the reasonableness (which would be likely to be determinative of lawfulness) of the Claimant's arrest as having any significant impact on that. Hence the third ultimate question posed by the Claimant must be answered in the negative.
  224. Nor would any re-investigation now, certified as being subject to special requirements be remotely likely to produce a different result on appeal.
  225. Against that background, to finally address the Claimant's fourth ultimate question, had the Claimant's case otherwise been successful I would have refused the application and/or relief because either it was academic, or (for broadly the reasons advanced by Mr Holdcroft – see [127] above) that there was an alternative remedy.
  226. Conclusion

  227. For the reasons set out above the application for judicial review is refused.
  228. I would be grateful if Mr Holdcroft could draft an Order accordingly.
  229. I will deal with costs administratively.


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2016/2054.html