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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  EWHC 2054 (Admin) (10 August 2016)
Cite as:  WLR(D) 475,  EWHC 2054 (Admin),  PTSR 228
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN (on the application of AB)
|- and -
|THE CHIEF CONSTABLE OF THE WEST YORKSHIRE POLICE
Matthew Holdcroft (instructed by West Yorkshire Police) for the Defendant
Hearing date: 10 March 2016
Crown Copyright ©
Mr Justice Sweeney:
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.
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?
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.
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.
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.
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.
"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."
The Relevant Law and Guidance
1. The source materials
(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").
2. The IPCC
"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."
3. The initial handling of a complaint
4. The investigation
"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."
"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."
"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:
- The seriousness of the matter being investigated;
- The prospects of a criminal trial, misconduct proceedings or unsatisfactory performance proceedings;
- The public interest;
- The investigation producing learning for the individual or organisation."
"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 .".
5. Special requirements
"(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."
"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."
"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 "
"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."
6. Reports & decisions
"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."
"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".
"(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;
"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."
"(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."
"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."
"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
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
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
(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."
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.
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.
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.
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.
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.
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.
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
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.
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.
"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."
1. The Claimant
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).
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 ), 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.
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).
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
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
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.
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.
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.
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".
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  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.
3. The Claimant's reply
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.
"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."
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.
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  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  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.
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".