[View without highlighting]
[Printable RTF version]
[Buy ICLR report:  1 WLR 3817]
||Neutral Citation Number:  EWCA Civ 2108
||Case No: T3/2017/0173
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT (ADMIN COURT)
THE HON. MR JUSTICE HICKINBOTTOM
 EWHC 3310 (Admin)
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RUPERT JACKSON
LORD JUSTICE SALES
LORD JUSTICE FLAUX
|| The Queen on the application of:
||- and -
||1) The Independent Police Complaints Commission
2) The Commissioner of Police for the Metropolis
Stephen Cragg QC and David Gregory (instructed by Hickman & Rose) for the Appellant
Jeremy Johnson QC (instructed by The Independent Police Complaints Commission) for the First Respondent.
The Second Respondent did not appear and was not represented.
Hearing date: 29 November 2017
HTML VERSION OF JUDGMENT APPROVED
Crown Copyright ©
Lord Justice Sales:
- This case concerns the investigation at the local police level of a complaint by the appellant against an officer of the Metropolitan Police Service ("MPS") and an appeal by the appellant to the Independent Police Complaints Commission ("IPCC") pursuant to the regime set out in Schedule 3 to the Police Reform Act 2002 ("Schedule 3").
- The appellant is a British national of Asian ethnicity. He is a practising Muslim. On 30 August 2009, upon his return from a visit to India, he was stopped at Heathrow Airport and detained and questioned by a police officer of the MPS for a period of a little under an hour.
- The officer was exercising powers conferred under Schedule 7 to the Terrorism Act 2000 to detain and question a person entering the United Kingdom for a period of up to 9 hours, in order to establish whether he is someone who is or has been involved in the commission, preparation or instigation of acts of terrorism. These powers allow for random stops to occur and can be used in cases where there is no ground for believing that the person stopped is actually involved in terrorism. A police officer exercising such powers does not have to give reasons for that exercise to the person who is detained and questioned. This ensures that if there is intelligence information in relation to that person (which there may or may not be), its existence and contents do not have to be revealed to him.
- The appellant complained about this treatment at Heathrow and also about other treatment he had received at the hands of the Hampshire police. As regards being stopped, detained and questioned at Heathrow, the appellant's main complaint was that this had occurred as a result of discrimination against him on grounds of his religion.
- Originally, on 7 July 2010, the appellant sent his complaint in respect of all matters to the Hampshire police. The investigating officer for the Hampshire police produced an extensive 13 page report regarding his treatment by them, which also identified that he had been detained and questioned at Heathrow by an officer of the MPS. The appellant was provided with a full and unredacted copy of the report by the investigator for the Hampshire police.
- The appellant appealed to the IPCC in relation to that report. As part of its determination of that appeal the IPCC indicated that the appellant's passport had in fact had a "tag" placed on it, which was why he had been stopped at Heathrow. As I understand it, a tag in this context means a note entered on the computer system at passport control which is triggered when the passport is scanned upon entry into the country. The IPCC did not say why a tag had been placed on the appellant's passport. The IPCC also noted that the Hampshire police should have referred the appellant's complaint about his treatment at Heathrow on to the MPS. The appellant's complaint in relation to his treatment by the MPS officer at Heathrow was then referred to the MPS.
- Inspector Bhatowa, who was from the Counter Terrorism Command unit of the MPS, was appointed as the investigating officer in relation to this complaint. Inspector Bhatowa produced a report dated 29 March 2012 ("the investigation report"). The full text of this report was provided to the appellant.
- In relation to the appellant's complaint that he had been discriminated against by the MPS officer at Heathrow on grounds of his religion, Inspector Bhatowa wrote this under the heading "You feel your passport was tagged and that you were not stopped at random":
"Police officers using Schedule 7 powers are guided by the Codes of Practice for Examining Officers. The codes state:
"The powers must be used proportionately, reasonably, with respect and without unlawful discrimination. All persons being stopped and questioned by examining officers must be treated in a respectful and courteous manner. Examining officers must take particular care to ensure that the selection of persons for examination is not solely based on their perceived ethnic background or religion. The powers must be exercised in a manner that does not unfairly discriminate against anyone on the grounds of age, race, colour, religion, creed, gender or sexual orientation. To do so would be unlawful. It is the case that it will not always be possible for an examining officer working at a port to know the identity, provenance or destination of a passenger until they have stopped and questioned them".
As I have explained earlier, the codes of practice for examinations under schedule 7 does not require an examining officer to have any grounds or suspicion to stop, question or detain a person under this legislation. Following my review of the case, I am satisfied that the officer acted lawfully and followed the correct procedures when he used his powers to stop and examine you."
The conclusion section of the investigation report included this:
"Police officers have to abide by the Standards of Professional Behaviour as they perform their duties. The burden of proof that I must apply when considering such matters is the balance of probabilities. To determine that a standard has been breached, I must be satisfied that it is more likely than not that the officer's behaviour/actions fell below the standard.
On this basis, I am able to conclude that there is no evidence that the officer acted improperly and therefore I am unable to uphold your complaint
As I have found insufficient evidence to say that the officer has breached the Standards of Professional Behaviour, I will not be taking any disciplinary action on this occasion.
I can only reiterate that Ports officers carry out an essential role in keeping our borders safe and I sincerely hope that l have adequately explained the use of the their powers."
- The investigation report did not acknowledge that the appellant's passport had had a tag placed on it, nor did it explain why that had been done. It gave no positive explanation of why the MPS officer had detained and questioned the appellant at Heathrow.
- The appellant was dissatisfied with the investigation report. By letter dated 23 April 2012 from his solicitors, the appellant appealed to the IPCC. The letter summarised his grounds of appeal thus:
"1. The investigation did not address all of the issues raised in the complaint;
2. those issues which were addressed were not addressed adequately;
3. [the appellant] has not been given enough information about the substance of the investigation."
- The letter then set out full details of his appeal in relation to a range of complaints about his treatment, including in relation to his complaint that he had been discriminated against because of his religion. In relation to that complaint, the letter referred to another part of the Code of Practice in relation to the exercise of powers under Schedule 7 to the 2000 Act, as follows,
"Although the exercise of Schedule 7 powers is not based on an examining officer having any suspicion against any individual, the powers should not be used arbitrarily … Selections for examination should be based on informed considerations such as those outlined above and must be in connection with the threat posed by the various terrorist groups active in and outside the United Kingdom."
It was pointed out that the investigation report failed to address this. It was also pointed out that the investigation report failed to address whether and why a tag had been placed on the appellant's passport, even though it appeared from the previous IPCC determination that one had been.
- In the course of the IPCC's investigation for the purposes of the appeal it emerged that the actions of the MPS officer at Heathrow and the production of the investigation report took place in the context of provision of secret information by the intelligence services to the MPS. That was also the background to the treatment by the MPS of complaints about police conduct in a number of other cases as well. The MPS felt constrained by security concerns in relation to national security in relation to information of this kind to such an extent that its stance was that it could not provide details about it to the IPCC in the course of appeals being conducted by the IPCC under Schedule 3 to the 2002 Act.
- This led to a dispute between the police and the IPCC regarding the provision of secret intelligence material to the IPCC for the purposes of its investigations in relation to an appeal. This dispute resulted in the IPCC issuing judicial review proceedings against the MPS in October 2013 in relation to three test cases (which included the appellant's case). The IPCC maintained that the MPS was not complying with its statutory obligations under Schedule 3 to provide it with information about complaints. Permission was granted and the IPCC and the MPS then settled the proceedings on the footing that the MPS would provide the IPCC with relevant secret intelligence material in its hands but would be afforded an opportunity to make representations and apply to court if the IPCC proposed to refer to such material in any determination to be issued by it.
- In relation to the appellant's case, the MPS then gave the IPCC access to confidential material held by the MPS to explain why nothing more had been said in the investigation report about why the appellant had been detained and questioned at Heathrow. The IPCC, acting by its casework manager Angela Goddard, then made its determination dated 16 March 2016 in the appellant's appeal.
- The IPCC dismissed the appellant's appeal. In the relevant parts of the determination the IPCC said this:
"1. Do the findings need to be reconsidered, either by us or the police?
To make a decision I have to see:
- if the investigation dealt with all of your client's complaints;
- if the investigation was carried out in a proportionate manner and if enough evidence was gathered; and
- if the right decisions have been made about whether or not the complaints that have been investigated should be upheld?
While I have carefully considered the comments you made in your appeal, I am satisfied that the Investigating Officer (IO) has sufficiently addressed your client's complaint and reached an appropriate finding based on the available evidence. I, therefore, consider that his complaint has been proportionately investigated. Since you have received a copy of the outcome report, it is not proposed to repeat the full contents here again but to address in turn the relevant points you raised in your appeal. For ease of reference I have adopted the numbering used in your letter dated 23 April 2012:
a) Allegation that Mr Miah was interrogated about the reasons for his trip to India rather than the other matters he was on bail for;
I have grouped complaints a) and f) together as they are intrinsically linked. As you have acknowledged, the purpose of questioning under Schedule 7 of the Terrorism Act 2000, is to determine whether a person appears to be someone who is or has been concerned in the commission, preparation or instigation of acts of terrorism. The powers should not be used for any other purpose and, therefore, it was entirely reasonable, in my view, that Mr Miah was not questioned about the unrelated matter he was on bail for, at the time. While Schedule 7 of the Terrorism Act 2000 provides the power to stop, search and detain people without suspicion, if necessary, the Code of Practice pertaining to the Act does restrict an officer from deciding to stop a person based solely upon their appearance. In order to address public concerns that the powers are being applied in a discriminatory or otherwise inappropriate manner, the lPCC has taken an interest in complaints about police conduct during such stops. Having been privy to the factors that informed the examining officer's decision to stop and question Mr Miah, you can be assured that I am satisfied that the reason for the Stop was entirely justified. Though I am sorry to hear that Mr Miah perceives he has been discriminated against because of his religion, you can be further assured that i am satisfied that neither his race nor faith had any bearing in the decision to stop him. In the circumstances, I do not consider that these complaints require further consideration.
5. If the information you were provided with was sufficient?
I am satisfied that the outcome report provides sufficient information about the complaint investigation. The appeal is not upheld in relation to this point…"
In these proceedings, the IPCC adduced in evidence a short witness statement dated 1 June 2016 from Ms Goddard which explained that in issuing the determination it was her assessment, based on national security grounds, that the factors which informed the decision of the MPS officer at Heathrow to stop and question the appellant should not be revealed in her decision. She also stated that she had reviewed the position for the purposes of the legal proceedings and remained satisfied that the justification for withholding the information continued to outweigh the appellant's interests in understanding the details of the evidence on which her conclusions were based.
The appellant maintains that the MPS did not provide him with proper information about the findings made by its investigating officer in respect of his complaint and that the IPCC should have so ruled on his appeal. The appellant commenced judicial review proceedings against the IPCC relying on four grounds of challenge, only the first of which remains in issue on this appeal. The appellant's claim under this ground is that the IPCC erred in not finding that the MPS had failed to provide sufficient information and a full explanation as to the reasons for the appellant's detention and examination and that, in breach of its own guidelines, the IPCC failed to provide sufficient reasons for dismissing the appellant's appeal.
At an early stage, it was identified that determination of the appellant's claim might involve the court in having to review for itself the secret material relevant to the investigation by the MPS and the decision of the IPCC. This was something which might have required the use of a closed procedure pursuant to the Justice and Security Act 2013. However, before resorting to such a procedure and in order to see whether the claim could be determined without this, Irwin J (as he then was) directed that there be a determination of a preliminary issue, as follows:
"Whether, in the absence of disclosure of the reason why [the appellant] was examined under Schedule 7 Terrorism Act 2000 and in the absence of the court having reviewed the reason by way of closed material proceedings, [the appellant's] grounds (or any of them) for seeking judicial review should nonetheless be dismissed."
The trial of that preliminary issue came on before Hickinbottom J (as he then was). Hickinbottom J came to the conclusion that the appellant's claim for judicial review should be dismissed without any need for use of a closed procedure. On the ground of challenge which is in issue on this appeal, the judge held that the IPCC was entitled to rule that sufficient findings had been set out in the investigation report. The judge so held for a range of reasons set out at para. , including in particular that in the context of the appellant's complaint it was sufficient for a finding to be made that there was no evidence of improper discrimination by the MPS officer in stopping and questioning the appellant, and there was no requirement for any finding to be made regarding the positive reason the officer had for acting in that way ([74(v)-(vi)]; imposition of a more demanding standard requiring provision of a full account of the reasons why the appellant had been stopped would defeat the Parliamentary intention behind Schedule 7 of the 2000 Act that reasons do not have to be given for use of the stop and search powers under that Act ([74(vi)]); the "appropriate authority" (as referred to in Schedule 3 to the 2002 Act) has the task of deciding whether non-disclosure is necessary on public interest grounds, and if it is of that opinion it can decline to disclose it ([74(vii)]); and the IPCC on an appeal must consider the same issue, acting as an independent, quasi-judicial body, and if, "like the MPS, the IPCC is also of the opinion that non-disclosure is necessary on national security grounds, then it will find that the information given by the appropriate authority to the complainant was adequate and will not uphold the appeal on that ground", as had lawfully happened in this case ([74(viii)]; I note that in this sub-paragraph of his judgment Hickinbottom J elided the investigating officer and the appropriate authority in his general reference to "the MPS"). On the facts, the proper inference was that the IPCC had had regard to its own relevant guidance and had applied the relevant statutory test for non-disclosure of information ([74(x)-(xi)]). Overall, the appellant had not shown that there was a sufficient evidential basis of error on the part of the IPCC ([74(xii)]).
The legislative framework
The Police Reform Act 2002 created a new regime for handling complaints against the police. I refer to its provisions in the form they had at the time of the MPS investigation and the appeal to the IPCC in this case.
Section 9 of the 2002 Act establishes the IPCC. Section 10 sets out its general functions. It provides in relevant part as follows:
"(1) The functions of the [IPCC] shall be –
(a) to secure the maintenance by the [IPCC] itself, and by local policing bodies and chief officers, of suitable arrangements with respect to the matters mentioned in subsection (2);
(d) to secure that public confidence is established and maintained in the existence of suitable arrangements with respect to those matters and with the operation of the arrangements that are in fact maintained with respect to those matters …
(2) Those matters are –
(a) the handling of complaints made about the conduct of persons serving with the police;
(b) the recording of matters from which it appears that there may have been conduct by such persons which constitutes or involves the commission of a criminal offence or behaviour justifying disciplinary proceedings; …"
For present purposes, in accordance with the definition provision in section 29(1), "the appropriate authority" is the Commissioner of the MPS ("the Commissioner").
Section 20 imposes a duty to keep a complainant informed while the investigation of a complaint is underway. Subsections (5) to (8) limit the effect of that duty and are relevant in the present case because they also govern the extent to which a complainant is required to be given information at the end of an investigation (see para. 24(9) of Schedule 3, set out below). They provide in relevant part as follows:
"(5) The duties imposed… on the… appropriate authority in relation to any complaint shall be performed in such manner, and shall have effect subject to such exceptions, as may be provided by regulations made by the Secretary of State.
(6) The Secretary of State shall not by regulations provide for any exceptions from the duties imposed by this section except so far as he considers it necessary to do so for the purposes of…
(b) preventing the disclosure of information in any circumstances in which it has been determined in accordance with the regulations that its non-disclosure –
(i) is in the interests of national security
(ii) is for the purposes of the prevention or detection of crime, or the apprehension or prosecution of offenders;
(iii) is required on proportionality grounds; or
(iv) is otherwise necessary in the public interest.
(7) The non-disclosure of information is required on proportionality grounds if its disclosure would cause, directly or indirectly, an adverse effect which would be disproportionate to the benefits arising from its disclosure.
(8) Regulations under this section may include provision framed by reference to the opinion of, or a determination by, the [IPCC] or any local policing body or chief officer."
The Secretary of State has made regulations pursuant to section 20: see below.
Section 20(9) provides:
"It shall be the duty of a person appointed to carry out an investigation under this Part to provide the [IPCC] or, as the case may be, the appropriate authority with all such information as the [IPCC] or that authority may reasonably require for the purpose of performing its duty under this section."
Section 22 makes provision for the IPCC to issue guidance concerning, among other things, the handling of complaints. Subsection (7) provides that it is the duty of every person to whom such guidance is issued "to have regard to that guidance" in exercising their powers or performing their duties. Relevant passages in the guidance issued by the IPCC are referred to below.
Section 13 provides that Schedule 3 to the 2002 Act, which makes provision for the handling of complaints, shall have effect. Part 1 of Schedule 3 sets out a detailed regime for the handling of complaints. Investigations into complaints against the police may be handled in different ways. Sometimes they are conducted locally by the relevant police service, sometimes by the IPCC and sometimes by the local police service subject to supervision by or under the management of the IPCC.
As noted above, in the present case the investigation into the appellant's complaint against the MPS officer at Heathrow airport was conducted locally by the MPS. Pursuant to para. 6(2)(b) and para. 16(3) of Schedule 3, the Commissioner made arrangements for the appellant's complaint to be investigated by the MPS on its own behalf by appointing Inspector Bhatowa as the investigating officer.
Paragraph 22(1) and (2) of Schedule 3 provides that on the completion of an investigation of a complaint, the investigating officer appointed under para. 16 "shall submit a report on his investigation to the appropriate authority." Paragraph 22(6) provides that a person submitting such a report "shall not be prevented by any obligation of secrecy imposed by any rule of law or otherwise from including all such matters in his report as he things fit". Paragraph 24 of Schedule 3 is headed "Action by the appropriate authority in response to an investigation report". It applies where an investigation report is submitted to the appropriate authority in accordance with para. 22(2). It provides in relevant part as follows:
(2) On receipt of the report … the appropriate authority—
(a) shall determine whether the conditions set out in sub-paragraphs (2A) and (2B) are satisfied in respect of the report;
(b) if it determines that those conditions are so satisfied, shall notify the Director of Public Prosecutions of the determination and send him a copy of the report; and
(c) shall notify the persons mentioned in subparagraph (5) of its determination under paragraph (a) and of any action taken by it under paragraph (b).
(2A) The first condition is that the report indicates that a criminal offence may have been committed by a person to whose conduct the investigation related.
(2B) The second condition is that—
(a) the circumstances are such that, in the opinion of the appropriate authority, it is appropriate for the matters dealt with in the report to be considered by the Director of Public Prosecutions, or
(b) any matters dealt with in the report fall within any prescribed category of matters.
(5) The persons are—
(a) in the case of a complaint, the complainant and every person entitled to be kept properly informed in relation to the complaint under section 21; …
(5A) In the case of a report falling within sub-paragraph (1)(b) which relates to a recordable conduct matter, the appropriate authority shall also notify the [IPCC] of its determination under sub-paragraph (2)(a).
(5B) On receipt of such a notification that the appropriate authority has determined that the conditions in sub-paragraphs (2A) and (2B) are not satisfied in respect of the report, the [IPCC]—
(a) shall make its own determination as to whether those conditions are so satisfied, and
(b) if it determines that they are so satisfied, shall direct the appropriate authority to notify the Director of Public Prosecutions of the [IPCC's] determination and to send the Director a copy of the report.
(5C) It shall be the duty of the appropriate authority to comply with any direction given to it under sub-paragraph (5B).
(6) On receipt of the report … the appropriate authority shall also—
(a) … determine—
(i) whether any 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, and
(ii) what action (if any) the authority is required to, or will in its discretion, take in respect of the matters dealt with in the report, and
(b) determine what other action (if any) the authority will in its discretion take in respect of those matters.
(7) On the making of the determination under sub-paragraph (6) the appropriate authority shall give a notification—
(a) in the case of a complaint, to the complainant and to every person entitled to be kept properly informed in relation to the complaint under section 21; …
(8) The notification required by sub-paragraph (7) is one setting out—
(a) the findings of the report;
(b) the determinations the authority has made under subparagraph (6); and
(d) the complainant's right of appeal under paragraph 25.
(9) Subsections (5) to (7) of section 20 shall have effect in relation to the duties imposed on the appropriate authority by sub-paragraph (7) of this paragraph as they have effect in relation to the duties imposed on the appropriate authority by that section.
(10) Except so far as may be otherwise provided by regulations made by virtue of sub-paragraph (9), the appropriate authority shall be entitled (notwithstanding any obligation of secrecy imposed by any rule of law or otherwise) to discharge the duty to give a person mentioned in sub-paragraph (7) notification of the findings of the report by sending that person a copy of the report.
Paragraph 25 of Schedule 3 is headed "Appeals to the [IPCC] with respect to an investigation". It provides in relevant part as follows:
"(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 [IPCC] –
(a) a right to 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
(5) On an appeal under this paragraph, the [IPCC] shall determine such of the following as it considers appropriate in the circumstances –
(a) whether the complainant has been provided with adequate information about the matters mentioned in sub-paragraph (2)(a);
(b) whether the findings of the investigation need to be reconsidered;
(c) whether the appropriate authority –
(i) has made such a determination as is mentioned in sub-paragraph (3)(za) [i.e. whether 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] that the [IPCC] considers to be appropriate in respect of the matters dealt with in the report, and
(ii) has determined that it is required to or will, in its discretion, take the action (if any) that the relevant appeal body considers to be so appropriate; and
(d) whether the conditions set out in paragraph 24(2A) and (2B) are satisfied in respect of the report.
(6) If, on an appeal under this paragraph, the [IPCC] determines that the complainant has not been provided with adequate information about any matter, the [IPCC] shall give the appropriate authority all such directions as the [IPCC] considers appropriate for securing that the complainant is properly informed.
(7) Nothing in sub-paragraph (6) shall authorise the [IPCC] to require the disclosure of any information the disclosure of which to the appellant has been or is capable of being withheld by virtue of regulations made under section 20(5).
(8) If, on an appeal under this paragraph, the [IPCC] determines that the findings of the investigation need to be reconsidered, it shall either –
(a) review those findings without an immediate further investigation; or
(b) direct that the complaint be re-investigated.
(12) It shall be the duty of the appropriate authority to comply with any directions given to it under this paragraph.
The Regulations made by the Secretary of State under section 20 of the 2002 Act are the Police (Complaints and Misconduct) Regulations 2004/643 ("the Regulations"). Regulation 12 provides in relevant part as follows:
"(1) Subject to paragraph (2), the duties mentioned in section 20… (2) (duty to keep complainant informed)… shall not apply in circumstances where in the opinion of the… the appropriate authority, the non-disclosure of information is necessary for the purpose of –
(b) preventing the disclosure of information in any circumstances in which its non-disclosure –
(i) is in the interests of national security
(ii) is for the purposes of the prevention or detection of crime, or the apprehension or prosecution of offenders;
(iii) is required on proportionality grounds; or
(iv) is otherwise necessary in the public interest.
(2) The… the appropriate authority shall not conclude that the non-disclosure of information is necessary under subparagraph (2) unless it is satisfied that –
(a) there is a real risk of the disclosure of that information causing an adverse effect; and
Regulation 10(7) states that "The [IPCC] shall notify the complainant and the appropriate authority of the reasons for its determination" on an appeal.
(b) that adverse effect would be significant."
In 2010 the IPCC issued detailed guidance pursuant to section 22 of the 2002 Act in respect of the handling of complaints, including guidance in Annex B in relation to dealing with allegations of discriminatory behaviour. This was the statutory guidance in place when the investigation report was produced. In 2015 the IPCC issued new guidance on the handling of complaints ("the 2015 handling guidance") and separate guidance for handling allegations of discrimination, to replace Annex B in the 2010 guidance ("the 2015 discrimination guidance"). It was common ground before us that the 2015 handling guidance and the 2015 discrimination guidance were in materially identical terms to what had appeared before in the 2010 guidance and that we could safely focus on the guidance in the 2015 documents for the purpose of our legal analysis.
Whilst the statutory guidance is as a matter of form directed to others, including in particular any investigating officer and any appropriate authority, it is common ground that the IPCC is also obliged to take it into account when exercising its own functions under the 2002 Act: see R (Saunders and Tucker) v Independent Police Complaints Commission  EWHC 2372 (Admin), at  per Underhill J (as he then was).
I do not think it is necessary to set out all the relevant passages from the 2015 handling guidance and the 2015 discrimination guidance, which are lengthy documents. The thrust of the guidance is that a complainant should be provided with a full explanation for what has happened to him, subject to information being withheld as a result of application of the harm test set out in section 20(5)-(7) of the 2002 Act and regulation 12 of the Regulations.
Section 12 of the 2015 handling guidance relates to actions after the appropriate authority receives an investigation report. It includes the following:
"12.3 The appropriate authority should ensure that a complainant and any interested party receives a clear explanation of what has happened based on the facts established in the investigation. In most cases the investigation report will be sent to the complainant and any interested person unless there is reason under the harm test not to do so.
12.4 Appropriate authorities should take into account any further guidance issued by the IPCC concerning disclosure of information. They may discharge their duty to inform complainants and interested persons of the findings of the investigation by sending them a copy of the investigation report.
12.5 The IPCC believes that communication with complainants and interested persons should be based on a presumption of openness. Making the investigation report available to the complainant and/or interested person is the most transparent way of showing what the investigation found. It should usually be provided to the complainant and any interested person, subject to the harm test and any necessary redactions….
12.6 Complainants, interested persons and their representatives sometimes ask for additional disclosure, such as copies of statements or documentation collected during investigation. The IPCC considers that disclosure of material generated by a complaint investigation should occur through the appropriate disclosure gateway (i.e. the [2002 Act]; disclosure to other bodies; disclosure for the purposes of civil proceedings; disclosure under the Freedom of Information Act 2000 or the Data Protection Act 1998). All this means is that the complainant, interested persons and their representatives should make clear on what basis they are asking for this additional disclosure so that the appropriate authority can apply the relevant legal basis for disclosing it.
12.7 If, for example, a complainant, interested person or their representative wants to understand the report better, the request should be made and considered under the [2002 Act] gateway. The disclosure should then be aimed at providing the complainant with a better understanding of the findings of the investigation. The presumption of openness applies in favour of disclosure subject to the harm test, with appropriate redaction being made where necessary and providing disclosure does not incur unreasonable expense. Any non-disclosure must be necessary because there is a real risk of the disclosure causing a significant adverse effect. The risk must be real, which is assessed on a case-by-case basis. Therefore, appropriate authorities should not adopt a blanket approach when considering whether disclosure should be made in any case."
Section 13 in the 2015 handling guidance deals with appeals. It includes guidance regarding the extent of findings to be made in an investigation report if they are to be considered to be adequate for the purposes of the Schedule 3 regime, in particular at paras. 13.84, 13.86 and 13.89 as follows:
"13.84 It is essential that a full explanation is given to the complainant about what has been found to have happened. A person whose complaint against a person serving with the police has been investigated should receive:
- A clear narrative explanation for what has happened, based on the facts established
- A description of the context for any behaviour complained about …
13.86 Where an investigation report has been written, the IPCC considers that forces should disclose it to the complainant (subject to the harm test). This means that it is important that it is clear and easy to understand. If the report was redacted or edited before being given to the complainant, the person dealing with the appeal should satisfy him or herself that the relevant points in the report were not omitted unnecessarily because of the redaction.
13.89 The findings of the investigation include the eventual conclusions. In their clearest form this will be a set of allegations that are either upheld or not. The findings of the investigation also include the reasons for the conclusions, the evidence that has been gathered to support the conclusions, and a critical analysis of the evidence."
The 2015 discrimination guidance is to similar effect. The response to a complaint that police action has been taken on the grounds of unlawful or improper discrimination should "Give a clear, evidence-based response to the discrimination allegation (as well as other allegations made)" and should "Give a clear explanation of what the investigation found about what happened and why".
The appellant appeals against the decision of the judge on three grounds: (1) the judge erred in his assessment of what ought to constitute "the findings" of an investigation under Schedule 3, as that term is used in para. 25(2) and (5) of Schedule 3, and the IPCC erred in law in regarding the findings set out in the investigation report as adequate; (2) the judge erred in finding that the IPCC (and the MPS before it) had applied the correct test for non-disclosure of information in accordance with regulation 12 of the Regulations; and (3) the judge erred in his approach to deciding that the court could dismiss the appellant's claim without itself reviewing the available material to see whether the appellant's complaint in relation to being detained and questioned at Heathrow had any evidential basis and whether any non-disclosure of information pursuant to regulation 12 was justified. I address these Grounds in turn.
In my judgment, this appeal should be allowed on Ground (1). As I explain below, the IPCC should have ruled that the findings in the investigation report were not adequate, quite apart from any issue regarding the contents of the notification which the appellant was given pursuant to para. 24(7) and (8) by means of having the investigation report provided to him.
It became clear for the first time at the hearing of the appeal that something has gone wrong in the way that the MPS handled the complaint. Mr Johnson QC for the IPCC told us that the investigation report, in the form it was provided to the appellant and in which it appeared in the appeal bundle, was the complete text of what Inspector Bhatowa had produced as the report of his findings in the investigation he had been appointed to carry out into the appellant's complaint. That came as a surprise to Mr Cragg QC for the appellant and, I am bound to say, to me. It does not seem that Hickinbottom J had this explained to him and I think this obscurity about the facts made his task more difficult.
In my view, the statutory regime in Schedule 3 is clear. An investigating officer (here, Inspector Bhatowa) appointed by an appropriate authority (here, the Commissioner) under para. 16 to investigate a complaint against a police officer has to produce a report on his investigation and submit it to the appropriate authority: para. 22(2). There is no impediment in terms of secrecy in relation to what the investigating officer can include in that report: para. 22(6). The requirement of non-disclosure set out in regulation 12 and section 20(5) to (7) of the 2002 Act does not apply at the stage when an investigating officer produces his report for the appropriate authority.
On the contrary, I consider that it is clear from the scheme of Schedule 3 that the investigating officer is obliged to include all matters in his report which will enable the appropriate authority to consider for itself under para. 24 of Schedule 3 whether either of the conditions in sub-paragraphs 24(2A) and (2B) (i.e. whether a criminal offence may have been committed) is satisfied and whether, under para. 24(6), an officer under investigation has a case to answer in respect of misconduct or gross misconduct. The requirement that the contents of the investigation report should be sufficiently full as to enable persons other than the investigating officer himself to make such an assessment is underlined by the fact that the IPCC on an appeal under para. 25 of Schedule 3 has itself to consider whether the assessment by the appropriate authority is correct or not.
It is implicit in para. 22 of Schedule 3, when it is read with paras. 24 and 25, that an investigation report should set out "the findings" of the investigating officer in relation to his investigation. The investigating officer is appointed to investigate the complaint, namely to find out what happened and why. The word "findings" is to be read in that context as bearing its ordinary and natural meaning, to refer to the findings made by the investigating officer regarding what happened and why it happened. "The findings" which an investigating officer is required to report to the appropriate authority are his full findings in relation to what happened and why, and not some redacted version of them.
I consider that much is in fact apparent from the terms of the 2002 Act itself. But the IPCC guidance reinforces the message that the findings in the investigation report should be full and complete at the stage before any question of redaction on public interest grounds arises.
It is for the appropriate authority, upon receiving a full and unredacted investigation report and after making its determination about what other actions it should take, to give a notification to the complainant setting out "the findings of the report" (para. 24(7)-(8)). It is in relation to that obligation of the appropriate authority that there may arise a supervening obligation of non-disclosure on public interest grounds in accordance with regulation 12 and section 20(5) to (7): see para. 24(9) of Schedule 3. There are no public interest grounds why an investigating officer should withhold relevant information about his investigation and his findings from the appropriate authority to which he is reporting. It is for the appropriate authority, not the investigating officer, to make the relevant judgments regarding non-disclosure pursuant to regulation 12 and section 20(5) to (7). In my respectful view, the judge erred in running together the question of what constitutes relevant "findings" by an investigating officer with the question of what version of those findings might ultimately have to be notified to the complainant under para. 24(7)-(9) of Schedule 3, after relevant judgments as to non-disclosure have been made by the appropriate authority.
Once the scheme set out in Schedule 3 is understood, it is in my opinion clear that the findings set out in the investigation report as delivered to the Commissioner (as the appropriate authority) were inadequate. Either Inspector Bhatowa (as investigating officer) in fact found other facts in the course of his investigation but left them out of his report or he failed to investigate the complaint properly and failed to make findings of fact where he should have done, so that they did not appear in his report. Given the background to this case, it seems likely that the former explanation is the correct one and that Inspector Bhatowa, anticipating the possibility that his report would be forwarded to the appellant, carried out a redaction exercise of his own before producing his report for the appropriate authority to consider. But that was an error on his part.
Whichever explanation is correct, the appellant's grounds of appeal to the IPCC were couched in terms which called in question what Inspector Bhatowa had done in relation to setting out his findings in the investigation report as well as the content of the notification of those findings which the appellant received from the Commissioner pursuant to para. 24(7) and (8) of Schedule 3. In my view, the appellant's grounds of appeal in relation to the investigation report included a complaint that he "has not been provided with adequate information about the findings of the investigation": see para. 25(2)(a)(i) of Schedule 3. I think this provision covers both a failure by the investigating officer to set out all his findings in the report and also a failure by him to make findings where he should have done. In my opinion the appellant's complaints are also covered, if it is necessary to refer to it, by para. 25(2)(b) ("appeal against the findings of the investigation"), in that the appellant is seeking to appeal against the findings of the investigation as set out in the investigation report on the grounds that they are incomplete (either because other findings were in fact made by the investigating officer but he did not include them in his report as he should have done or that he did not make findings in circumstances where he should have done).
Having regard to the very limited information contained in the investigation report, it is difficult to see how the Commissioner could have made the assessments required of him as the appropriate authority under para. 24 of Schedule 3 with any confidence. He was provided with hardly any information about the circumstances in which the MPS officer at Heathrow came to act as he did in detaining and questioning the appellant.
In my view, in the appellant's appeal it was incumbent on the IPCC to rule upon the complaints made by him about the contents of the investigation report in purporting to set out "the findings of the investigation" in the very limited way it did: see para. 25(5)(a) and (b) of Schedule 3.
The IPCC should have ruled that the appellant's appeal about the findings of the investigation would be allowed and should have issued directions under para. 25(6) to require that the appropriate authority ensured that a full and complete investigation report was prepared for it, so that it could then consider the matters set out in para. 24 of Schedule 3 and could consider which findings set out in the investigation report ought not to be disclosed (see paras. 25(7) and 24(9) of Schedule 3). Further or in the alternative, the IPCC should have considered whether to issue a direction under para. 25(8)(b) requiring the appellant's complaint to be reinvestigated (possibly by Inspector Bhatowa) with a view to production of an investigation report which contained a full set of findings for consideration by the Commissioner under para. 24 as the appropriate authority.
This would leave open the question whether, upon receipt of an investigation report in proper form with a full set of findings, the Commissioner as appropriate authority would be entitled or obliged to make redactions from the findings set out in that report pursuant to para. 24(7)-(9) of Schedule 3, section 20(5) to (7) of the 2002 Act and regulation 12 of the Regulations when sending notification of the findings to the appellant.
In my opinion, and with respect to the judge, the fact that Schedule 7 to the 2000 Act does not require reasons to be given when powers of stop, search and questioning are exercised under that Act does not have any bearing on what is required when an investigating officer appointed under Schedule 3 to the 2002 Act produces an investigation report for the benefit of the appropriate authority. The regimes under the two Acts are distinct. It is possible that powers under Schedule 7 could be exercised for improper reasons, and if someone makes a complaint that they have been the investigating officer under Schedule 3 must investigate that complaint and make full findings in relation to it for the consideration of the appropriate authority. After that stage, the appropriate authority might make redactions for public interest reasons pursuant to the harm test before giving notification of the findings in the report to the complainant.
For the reasons given above, I would allow this appeal on Ground 1.
I would also allow the appeal on Ground 2, insofar as that ground relates to the conduct of the MPS. It may be that Inspector Bhatowa applied the relevant rules in relation to the harm test under section 20(5) to (7) of the 2002 Act and regulation 12 when he decided what to include in his investigation report, though he does not say that he did and there is no evidence about it. But it was not his role to apply the harm test in drawing up the investigation report and, as explained above, he would have been wrong to do so. There is nothing to show that the Commissioner, as the appropriate authority for the purposes of Schedule 3 whose task it was to consider and apply the harm test, did any such thing. Rather, it seems that the Commissioner may simply have accepted the investigation report as prepared by Inspector Bhatowa and passed it on to the appellant.
In so far as Ground 2 involves a challenge to whether the IPCC applied the harm test under those provisions correctly, I consider that the judge was entitled to find on the evidence before him - particularly the witness statement of Ms Goddard, even though she did not refer distinctly to the relevant provisions in relation to the harm test - that she did have it properly in mind when considering how to proceed. This provided the foundation for a further submission made by Mr Johnson, namely that it was lawful for the IPCC to dismiss the appellant's appeal because it had investigated the background and satisfied itself that the only information which could safely be provided to the appellant, in accordance with the harm test, was that which was in fact provided to him in the form of the investigation report. In Mr Johnson's submission, it would have been a sterile exercise for the IPCC to uphold the appellant's appeal in circumstances where it had satisfied itself that he could not safely be provided with any more information relating to his treatment at Heathrow.
I do not accept these submissions, for a number of reasons. In the first place, it was or should have been clear to the IPCC that the appropriate authority in this case had been provided with a defective investigation report which did not provide that authority with the full information it required in order to exercise its functions under para. 24 of Schedule 3. Nor did it appear that the appropriate authority had ever itself considered the application of the harm test. In a context like this, where it is said that a complainant cannot be provided with full information about the findings made in relation to his complaint, it makes it doubly important that a complainant and the public at large can be assured that proper procedures have been followed and that the case has been considered correctly, even if only behind a screen which is required to be in place to safeguard the public interest.
In such a case, the IPCC's function of acting to secure that public confidence is established and maintained in the existence of suitable arrangements for the handling of complaints and in relation to the due operation of those arrangements (see section 10(1)(d) of the 2002 Act) requires it to check that the arrangements in place are in fact suitable and that they have been followed correctly. It is not appropriate for the IPCC to brush an appeal aside if it can see that the relevant procedures have not been followed, that appropriate information has not been passed to the relevant decision-maker (the appropriate authority) and that the appropriate authority has not properly and with full information applied its mind to the matters which ought properly to be for its decision. Rather, the IPCC should make a decision on the appeal that ensures that the relevant procedures will in fact be followed.
Secondly, the IPCC had itself already provided the appellant with information to suggest that there was a tag on his passport. It is therefore difficult to see how it could think that proper application of the harm test meant that such information could not be provided to the appellant by the appropriate authority.
Thirdly, in the absence of any closed procedure in court, the court below was not (and we are not) in a position to look into the background facts. This has the result that it is not open to the IPCC to argue that the claim for judicial review should in any event have been dismissed pursuant to section 31(2A) of the Senior Courts Act 1981 on the grounds that it is highly likely that, if the IPCC had not erred in law, the outcome for the appellant would not have been substantially different.
It may be that, once the proper procedures are followed by the investigating officer and by the appropriate authority in this case, the net result will be that the appellant is not provided with more information about the circumstances of his complaint than he has already received and that the appropriate authority again decides that there is no evidence that a criminal offence or a disciplinary offence has been committed. But it is important that the investigating officer and the appropriate authority should carry out their tasks properly before such a conclusion is arrived at. It is also important, if public confidence in the operation of the procedures put in place by the MPS pursuant to Schedule 3 is to be maintained, that the IPCC should check that they have in fact been properly followed, even if the appellant cannot be told more.
In my judgment, therefore, the appeal should be allowed on both Ground 1 and Ground 2, and the case remitted to the IPCC for further consideration in accordance with the guidance given by this court. If Jackson and Flaux LJJ agree, then in my view it is neither necessary nor appropriate to consider Ground 3.
Lord Justice Flaux:
Lord Justice Jackson:
I also agree.
Copyright Policy |
Donate to BAILII