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Cite as: [2013] EWHC 3969 (Admin)

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Neutral Citation Number: [2013] EWHC 3969 (Admin)
Case No: CO/14044/2012


Leeds Combined Court Centre
The Court House
1 Oxford Row
Leeds LS1 3BG
12 December 2013

B e f o r e :

Sitting as a Deputy High Court Judge


on the application of

- and





Interested Party


The Claimant in person
Georgina Wolfe (instructed by Glynis Craig, IPCC) for the Defendant
The Interested Party did not appear.

Hearing date: 13 September 2013


Crown Copyright ©

    Mr Stephen Morris QC:


  1. By these judicial review proceedings, Mr Anthony Derek Ramsden ("the Claimant") challenges a decision of the Independent Police Complaints Commission ("the IPCC") dated 29 October 2012 ("the Decision"). By the Decision, the IPCC decided to reject the Claimant's appeal, made under paragraph 25 of Schedule 3 to the Police Reform Act 2002 ("PRA").
  2. The underlying facts of the case arise out of events immediately following the football match between Leeds United and Manchester United at Elland Road stadium, Leeds on 20 September 2011.
  3. The Claimant attended the match with his daughter Chloe ("Chloe Ramsden"), and his friend, Andrew Casey ("Andrew Casey") and his son, Tom Casey ("Tom Casey"). At the time Chloe Ramsden and Tom Casey were aged, respectively 15 and 16. The Claimant alleges that, in the course of crowd disturbances following that match, he was subject to two separate incidents of assault by police officers. In the first incident, he says that one of the police officers on foot "pushed him and shoved his baton in his back to move him on". In the second incident, he says that a mounted police officer rode her horse at him against mesh fencing, and that he was then kicked by that officer. He complained about these assaults to the police the next day. The police carried out an investigation and found that his allegations were not proven. He appealed to the IPCC. That appeal was upheld. As a result, the police investigated again, and again declined to take action. The Claimant appealed to the IPCC a second time. By the Decision, that appeal was rejected.
  4. By claim form dated 28 December 2012, the Claimant sought to challenge the Decision on grounds of error of fact, procedural unfairness and bias. One of the nine errors of fact, alleged by the Claimant, is that the failure to take a witness statement from Chloe Ramsden and the failure to recognise the presence of Tom Casey undermines the finding in the Decision that there is "a lack of evidence to support or corroborate" the Claimant's account. (I refer to other alleged errors of fact further in paragraph 46 below.)
  5. Permission was refused on paper by HH Judge Roger Kaye QC on 5 March 2013. Upon oral renewal, on 24 May 2013 HH Judge Spencer QC granted permission, but limited only to one ground, namely "to seek a declaration that the decision not to direct statements to be obtained from Chloe Ramsden and Tom Casey was unreasonable".
  6. The Legislative Framework

  7. Before turning to the facts in detail, I set out the relevant legal framework, comprising the legislative context, and relevant legal principles.
  8. Police Reform Act 2002

  9. The IPCC was established by Part 2 PRA. Its statutory function is to secure suitable, efficient and effective arrangements for the handling of complaints against police officers, with an appropriate degree of independence: PRA, ss. 9 and 10. S.22 gives the IPCC power to issue guidance to the police in relation, inter alia, to the handling of complaints.
  10. S. 12 PRA distinguishes three types of matters known as complaints, conduct matters and death or serious injury matters (DSI). S.13 provides for Schedule 3 to make provision for the handling of these three classes of matter. The present case concerns a complaint.
  11. Schedule 3 to PRA: handling of complaints

  12. There are various ways in which complaints can be handled, one of which is by way of an investigation by the relevant police authority itself. Paragraph 16 deals with such investigations by the appropriate authority on its own behalf. In such a case the authority is required to appoint an investigating officer. Paragraph 22 deals with final reports following various types of investigation. As regards investigations by the police under paragraph 16, paragraph 22(2) provides that a person appointed by the appropriate authority to investigate a complaint must submit a report on his investigation to the appropriate authority.
  13. Paragraph 24 addresses the action to be taken by the appropriate authority in response to an investigation report. Paragraph 24(8) provides for the appropriate authority to notify the complainant of the outcome of the investigation report and of the complainant's right of appeal against the report. Paragraph 24(2), (2A) and (2B) provides that the appropriate authority shall determine whether the report indicates that a criminal offence may have been committed and whether it is appropriate for the matters to be considered by the DPP. By paragraph 24(6), the appropriate authority is required to determine, on receipt of the report, 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 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.
  14. Appeals under paragraph 25

  15. Appeals to the IPCC in respect of a paragraph 16 police investigation are governed by paragraph 25. Paragraph 25(2) (as in force at the material time) gives the complainant the following rights of appeal, inter alia, to the IPCC:
  16. "(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;
    (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.

    In the present case, the Claimant challenges, primarily, the IPCC's consideration of his appeal under sub-paragraph (b) above - the findings of the investigation.

  17. Paragraph 25(5) sets out the tasks of the IPCC upon such an appeal. In particular the IPCC is required to determine, amongst other things, "(a) whether the complainant has been provided with adequate information about the matters mentioned in [paragraph 25(2)(a)]" and "(b) whether the findings of the investigation need to be reconsidered" (reflecting paragraph 25(2)(b)).
  18. If the IPCC determines, under paragraph 25(2)(a) and 25(5)(a), that the complainant has not been provided with adequate information, the IPCC shall give the appropriate authority all appropriate directions to ensure that the complainant is properly informed: paragraph 25(6). If, the IPCC determines, under paragraph 25(2)(b) and 25(5)(b), that the findings of the investigation need to be reconsidered, then the IPCC must either review those findings without the need for further investigation or direct that the complaint be re-investigated: paragraph 25(8).
  19. The Statutory Guidance

  20. The "Statutory Guidance to the Police Service and Police Authorities on the Handling of Complaints 2010" ("the Guidance") was issued by the IPCC pursuant to section 22 PRA. Relevant provisions are as follows.
  21. Under the heading "Proportionality" the Guidance provides
  22. "302. The IPCC expects every investigator to adopt a proportionate approach to investigating a complaint. To use the term 'proportionate' is not another way of necessarily describing the investigation as limited or small scale. This is because every investigation needs to be proportionate to:

    - the seriousness of the complaint;
    - the prospects of a criminal trial or misconduct proceedings resulting;
    - the prospects of the complaint being upheld;
    - the investigation producing learning".

    Paragraph 303 goes on to state that investigators should use their professional judgment in determining the scope and methods in the investigation. Amongst the factors which they are expected to take into account are the need to establish the facts in all cases, the seriousness of the allegation, the availability of relevant evidence, for example, independent witnesses, CCTV footage, medical evidence, whether it is necessary to get an account from officers and police staff or whether sufficient other evidence is available.

  23. In a section entitled "complaint investigations without special requirements" (which applies to the present case), paragraph 308 states that even in such cases the complaint should be investigated so that a report can be prepared, but further that the legislation does not define what a report should be and that the IPCC supports a proportionate approach. At paragraph 310, it is stated "In these circumstances, how the investigation is planned and carried out should be tailored to the limited scope and relative simplicity of the inquiry. Deciding what evidence and/or information should be sought and how this is done are primarily matters of judgment for the investigator."
  24. Under the heading "Obtaining an account from an officer or member of police staff", paragraph 315 states that it may not be necessary to seek any account from the person subject to investigation if other evidence e.g. CCTV footage, shows clearly what happened, or if the person has already made a full account which addresses all aspects of the complaint e.g. in a pocket note book entry (PNB) or other written account, then no further account from the police officer/police staff member may be needed. Paragraph 316 states that where the investigator seeks an account there must be some minimum practice. Where a verbal account is obtained there must be an auditable record of it. The officer could be invited to sign handwritten notes or a PNB entry to confirm the accuracy of a record of conversation. However, this is the minimum: in many cases, more would be required, such as an account by email, letter, statement or interview.
  25. In a section entitled "Upholding/not upholding a complaint", paragraph 433 states that "a complaint should be upheld where the findings show that the service provided did not reach the standard a reasonable person could expect. Any facts on which the judgement to uphold the complaint is based must be proven on the balance of probabilities". Paragraph 435 goes on to provide that the decision to uphold a complaint in this way "should not be seen as in any way prejudicing the outcome of a subsequent misconduct meeting or hearing ... for police officers or misconduct procedure for police staff". The Guidance then continues:
  26. "437. A complaint will not be upheld where the facts are clearly established and it is determined that what the complainant claims happened did not occur.

    438. A complaint will also not be upheld where there is insufficient evidence to conclude, on the balance of probabilities, that the complainant's allegation is true. Commonly, this will arise where there is a conflict of accounts that cannot be reconciled on the evidence available and the investigator cannot establish the facts"

    Thus these paragraphs make a clear distinction between the issue of whether the facts alleged in the complaint are established, on the balance of probabilities, and the issue of whether there is a case to answer of misconduct in respect of a particular officer.

  27. The Guidance addresses appeals to the IPCC in a section entitled "How the IPCC will consider the appeal". Paragraph 519 provides that, in considering the appeal, the IPCC may look at:
  28. "in relation to the investigation, whether it was carried out in a proportionate manner consistent with the guidance at paragraphs 302-305 ...;
    in relation to the findings, whether sufficient evidence was gathered and whether the conclusions reached were reasonable in the light of that evidence".

  29. The IPCC itself has produced an internal document entitled "Operations Manual", the "Appeals Manual" section of which provides, inter alia as follows
  30. "2.Have any lines of enquiry been missed?
    Asking whether lines of enquiry have been missed is a question of whether the action taken was proportionate. Have any lines of enquiry been missed that should have formed part of an investigation into the allegations that have been made? Any investigation should be proportionate to the seriousness of the allegations and the likelihood of a criminal or disciplinary outcome. It is important to relate the degree of investigation that you think should have taken place to how serious the incident was and the likelihood of proving the allegations which have been made. ..."

    Case law

  31. A number of authorities on the above legislative framework have been drawn to my attention: R (Dennis) v IPCC EWHC [2008] 1158, R (Crosby) v IPCC [2009] EWHC 2515 (Admin) (in particular 5, 39-42) , Muldoon v IPCC [2009] EWHC 3633 (Admin) (in particular at 18, 19, 24 and 40) and R (Erenbilge) v IPCC [2013] EWHC 1397 (Admin), from which the following principles can be stated in summary form:
  32. (1) The question for the police investigation is whether the allegations made in the complaints have been established on the balance of probabilities, taking account of proportionality: Muldoon 18 and Crosby (cited in Muldoon) at 41.

    (2) The IPCC's appeal procedure is by way of review; in considering the question under paragraph 25(5)(b) of Schedule 3, the IPCC's task is to ensure that, following a proportionate investigation, an appropriate conclusion has been reached by the police investigation: Muldoon 18, 24. Was the conclusion in the police investigation one which was fair and reasonable?

    (3) An IPCC appeal decision is not expected to be "tightly argued" - nevertheless the conclusion should be clear and the reasons readily understandable: Dennis 20.

    (4) The function of the Court on an application for judicial review of an IPCC appeal decision is confined to the question whether the IPCC has reached a decision which was fairly and reasonably open to it, even if the court might have reached a different conclusion. IPCC decisions involve matters of judgment and the court will allow the IPCC a discretionary area of judgment: Muldoon 19, 40.

    (5) Where the IPCC upholds the decision of the police investigation, the question for the Court involves an element of "double rationality": was the decision of the IPCC that the decision of the police investigation was fair and reasonable itself fair and reasonable? The question is not whether the Court would necessarily have reached the same conclusion as the police or the IPCC, nor whether it can be seen with hindsight that an error may have been made (Muldoon 24, 34).

  33. Following the hearing, the IPCC drew to my attention the recent decision of HH Judge Richardson QC in R (Chief Constable of West Yorkshire Police) v. IPCC [2013] EWHC 2698 (Admin). As the Claimant has correctly pointed out, that was a case where the complaint was referred directly to the IPCC (rather than a case of an appeal to the IPCC, under paragraph 25, from the outcome of complaint to the police) and the relevant rules and procedures are not the same. There, the IPCC upheld the complaint, finding both that, on the balance of probabilities, the use of force by the police office was unlawful and excessive and that there was a "case to answer" in respect of an alleged breach of the standards of professional behaviour. The judge, at 47, set out a series of propositions as to the appropriate role of the IPCC, when itself carrying out an investigation. Its functions were limited to gathering evidence and establishing the facts and to deciding, whether on a complaint made to it, there is a case to answer in respect of misconduct. The judge held that it was not the function of the IPCC to make definitive findings of criminal or civil liability or misconduct.
  34. I have considered whether this decision affects the principle (1) set out above. There may be a tension between the judge's criticism of the IPCC for having made definitive findings and what is said, both in Muldoon and Crosby, and in the Guidance, about establishing the complaint allegation on the balance of probabilities. In principle there is a distinction between, on the one hand, the primary facts of the complaint allegation and, on the other hand, whether those facts amount to misconduct or gross misconduct on the part of any individual. In a police investigation, the function of the investigator is to decide, as regards the former, whether the facts are established (and not merely whether there is a case to answer) and, as regards the latter, whether there is a case to answer. In some cases, where the complaint allegation and the potential misconduct allegation turned on essentially the same primary facts and those facts are found, it might be difficult for an investigator not to make a definitive finding, in respect of misconduct, which went further than a finding of "case to answer". In the present case, the police investigator decided the first question negatively, and in the light of that, also the second question. In the West Yorkshire case, the IPCC investigator decided both questions positively, but, so the judge decided, went on to express its conclusion on the second question in terms which were too definitive.
  35. Nevertheless, if it were to be said, on the basis of the West Yorkshire case, that the function of an investigator under paragraph 16 is to decide, and decide only, whether there is a "case to answer" as regards the facts alleged in the complaint, then I do not consider that this can be correct, in view of the clear authority of Muldoon and Crosby, and of the approach set out in paragraphs 433, 435 and 438 of the Guidance.
  36. Thus, I am satisfied that the question for the police investigation was whether the facts alleged were established, on the balance of probabilities, and not whether there was merely a case to answer as to those facts.
  37. The Facts

  38. On 20 September 2011, the Claimant, his daughter Chloe and Andrew and Tom Casey all attended the match at Elland Road stadium. After the match, there was crowd disturbance, as the police endeavoured to keep separate the fans of the two rival teams. The crowd disturbance was serious, with missiles being thrown at the police. The Claimant was caught up in this crowd disturbance. He, and his daughter, had called his wife to come to a point close to the ground to collect them. According to the Claimant, there were two separate incidents which took place at distinct locations.
  39. The first incident: at the VW garage on Elland Road

  40. The Claimant alleges that, in the first incident, he was assaulted by a police officer on foot who pushed or struck him with his drawn baton, causing him to fall over a low railing fence. This incident took place in the forecourt/car park area of a VW garage on Elland Road; events surrounding it are captured on CCTV footage. It has been suggested that the relevant officer who pushed the Claimant was PS Fretwell, the serial sergeant leading the police team present at that location.
  41. The second incident: further up Elland Road

  42. The Claimant alleges that, shortly thereafter and as the crowd was moved by the police further up Elland Road, he was crushed against a wire fence by a mounted police officer's horse. It appears from maps and aerial photographs provided that the location of this second incident is some 500 yards distant from the VW garage. The Claimant claims that a mounted police officer rode the horse at him, that the horse trod on his foot and that the mounted officer kicked him in the back. The essence of the assault was the horse being ridden at him. The Claimant accepts now that the kick in the back was very much a secondary and more minor aspect - though in some of the earlier materials, his complaint appears to be centred upon the alleged kick. It is said that the mounted police officer involved was PC Marie Lawrenson
  43. The Claimant's complaint

  44. The next day, on 21 September 2011, the Claimant made a formal complaint to the police at Holbeck police station and on 8 December 2011 the Claimant sent a formal complaint letter to the police. The Claimant says that he "reported injuries, albeit of a minor nature, at Holbeck Police Station". However, the IO Report records that, subsequently, in a letter dated 3 February 2012 (see paragraph 33 below) the Claimant confirmed that he had been uninjured as he had been wearing "thick and heavy clothing and boots" and that "the horse nipped my boot at the side".
  45. The first police investigation and the first Investigating Officer's Report

  46. The police investigation of this complaint was undertaken by Inspector Thackray, as Investigating Officer. He had been an officer present on the day. Inspector Thackray took statements from PS Fretwell and from PC Lawrenson.
  47. In an email dated 14 January 2012, from CI Hunter to Inspector Thackray, headed "Investigation plan", CI Hunter said that he had discussed the complaint with DI Carr "to consider what a proportionate investigation ... should consist of which would stand scrutiny in the event of the strong possibility of an appeal to the IPCC and their review of the investigation". CI Hunter's email stated, further:
  48. "Contact with complainant - to explain that you have obtained an account from Mr Casey or you are struggling to make contact and can he assist further with contact details - also to ascertain if his daughter has any other evidence in addition to what he has already provided - it would not be "proportionate to spend time obtaining a repeat account."

    On 16 January 2012, Andrew Casey provided an account of relevant events in a letter to CI Hunter.

  49. A first Investigation Officer's Report was completed by Inspector Thackray. On 1 February 2012, the police notified the Claimant that his complaint had not been upheld.
  50. First appeal to, and first decision, of the IPCC

  51. The Claimant appealed to the IPCC for the first time under paragraph 25, setting out his grounds in a letter dated 3 February 2012 (which is misdated 2011). A copy of this letter was provided to the Court for the first time on the date of this judgment. In his appeal, the Claimant complained about the failure to identify all relevant police officers present at the time and about missing CCTV footage. No complaint was made about the fact that witness statements had not been taken from Chloe Ramsden and Tom Casey. (The Claimant had raised this issue in an email to the police back in September 2011. Although that email was included within the papers he sent to the IPCC for the appeal, the issue was not raised either in the 3 February letter nor in the accompanying appeal form). The relevant IPCC casework manager appointed to consider this appeal was Mr Mohammed Ejaz.
  52. By decision dated 29 May 2012, the IPCC upheld the Claimant's first appeal, on the basis of disproportionate investigation findings and insufficient information. The IPCC required the police to investigate further, and in particular to identify and interview officers present at the scene of the two incidents. In considering the issue arising under paragraph 25(2)(b), the decision concluded that the police had not fully addressed the complaint, and as such the investigation had not been adequate.
  53. "The IO has not followed all relevant lines of enquiry. There was an opportunity for the IO to explore other lines of enquiry to add substance to the findings of the investigation. In the CCTV footage captured by the police of the events of 20 September 2011, the IO identified PC Lawrenson and Sgt Fretwell as being present at the scene as the mounted officer and one of the front line officers respectively. There are clearly at least four officers, some with batons drawn, and one mounted officer on the front line when Mr Ramsden first comes into view. The evidential value of the accounts provided by other officers involved may have assisted with giving clarity to the investigation as a whole. I do not view the omission of the evidence of the other officers as appropriate, despite the supervisory role of Sgt Fretwell during the incident.
    The investigation is therefore not proportionate and the above enquiries need to be undertaken before the investigation is considered to be complete."

  54. The decision was addressed to the question of whether the investigation had been proportionate and adequate. In respect of paragraph 25(2)(a), the decision further concluded that adequate information had not been provided to the Claimant. The decision did not go on to address further issues, arising under sub-paragraph 25 (ba), (c) and (d).
  55. The IPCC concluded that the complaint should be re-investigated to include further evidence to ensure any conclusions were reached by conducting a proportionate investigation of the complaint. A proportionate investigation required the identification and interview of "other officers present".
  56. The second police investigation and the second Investigating Officer's Report

  57. The police re-investigated. This time the Investigating Officer was DI Carr of the Professional Standards Department (PSD). On 20 June 2012, the Claimant met with DI Carr. The Claimant alleges that, at that meeting, he was shown different CCTV footage.
  58. Between 11 and 13 July 2012, DI Carr sent emails to a number of police officer witnesses, in which he set out, in some detail, the nature of the Claimant's complaint, the evidence of Andrew Casey and then asked for an email response to a list of detailed questions, which were specifically tailored to each officer. It was in response to these emails that a number of police officers provided evidence to DI Carr. PS Fretwell and PC Lawrenson each provided a further account, in addition to his/her statement for the first investigation. Additionally, four other officers provided accounts for the first time: PC Twigg, PC Saeed, PC Shaw-Peters, and PC Russell. At around the same time, Chief Inspector Riley and PC Jones also provided statements to DI Carr.
  59. By letter dated 10 August 2012 from DCI Khan of the PSD, the Claimant was notified that his complaint was not upheld. DCI Khan stated that, in reviewing the allegations, he had to consider "whether there is a realistic prospect of proving to a misconduct panel that the officer's behaviour fell below the standard set out in the "Standards of Professional Behaviour". This has to be proved on the balance of probabilities which means that a misconduct panel must find that it is more likely than not that the allegation is true". That letter attached the Investigating Officer's Report from DI Carr ("the IO Report"). DCI Khan went on to state that the officers had provided a clear and detailed account of the incident, the CCTV footage had been viewed, the scene revisited and still photographs obtained. He concluded:
  60. "The investigation has not revealed any supporting evidence to your allegations and I am not satisfied that your allegations are capable of proof. I am therefore unable to uphold your complaints and I do not intend taking any further action."

  61. The attached IO Report itself recorded the two incidents, and PS Fretwell and PC Lawrenson, respectively, as being the officers, the subject of the complaint. It set out a review of the available CCTV footage, and summarised the evidence obtained from six police officers present and three other officers, as identified above.
  62. The review of the CCTV footage of first incident recorded at the important point in time as follows
  63. "22.00.12 Several officers and one mounted officer on brown horse advance towards a group on the pavement adjacent to the VW forecourt.
    22.00.21 Mr Ramsden featured on RH side of mounted officer, facing back towards the football ground
    22.00.22 Officer moves to inside of brown horse towards a small group of people. His baton does not appear to be drawn. The horse is positioned diagonally across the pavement with 6 officers in view on one side and Mr Ramsden on the other side
    22.00.23 The view of the single officer, Mr Ramsden and other persons is obscured by the horse and the mounted officer.
    22.00.24 Mr Ramsden emerges into view and can be seen looking back with no officer in his immediate vicinity.
    22.00.26 The single officer is seemingly engaged with others whilst Mr Ramsden has moved away and is looking back towards the officer." (Emphasis added)

  64. The IO Report stated that six named officers (PC Russell, PC Shaw-Peters, PC Saeed, PC Twigg, PC Lawrenson and PS Fretwell) had been identified at the scene of the incident captured on the CCTV footage and had provided accounts. The IO Report went on that "Due to the lack of clarity of the CCTV images, three other officers remain unidentified, however the footage clearly shows them not to have been in direct contact with Mr Ramsden". The Report then proceeded to set out some, but not all, of the evidence provided by the six named officers.
  65. The IO Report concluded as follows:
  66. "It is clear that Mr Ramsden had some contact with officers on Elland Road as the officers sought to implement the policing strategy to prevent further disorder and create a 'sterile' area in which supporters could leave safely.
    The reason for this contact is unclear i.e. whether he was compliant or confrontational, as the officers' purpose was immediately apparent to the overwhelming majority of the public present who swiftly dispersed away from the ground without significant incident.
    In relation to the incident concerning PS Fretwell - there is no direct evidence to support Mr Ramsden's allegation. Analysis of the CCTV supports the Officer's opinion that he had not drawn his baton and the officer's direction and focus appears to be towards others who were not dispersing as instructed.
    The significant period is 22.00.22 - 22.00.24, two seconds of footage that do not feature Mr Ramsden when there is a possibility that there may have been some direct contact, however in the absence of additional information, the context of the evening and the circumstances of the policing strategy his allegation of assault/excessive force lacks substance.
    In relation to Mr Ramsden's complaint concerning a mounted officer, assumed to be PC Lawrenson, no supportive information has been found.
    Mr Ramsden's complaints are not upheld due to the absence of CCTV, witness or other supportive evidence."

    Second appeal to, and decision of, the IPCC

  67. On 5 September 2012, the Claimant appealed to the IPCC for a second time. In his appeal the Claimant raised 13 appeal points, including serious allegations of a "cover-up" by the police, most particularly in relation to the availability of relevant CCTV footage. The relevant IPCC casework manager appointed to consider this appeal was Anthony Coulson. On 29 October 2012, the IPCC issued the Decision. On this occasion, the IPCC did not uphold the appeal. The police had been provided with an account from Andrew Casey, but not from Chloe Ramsden or Tom Casey. I refer to the terms of the Decision further below.
  68. The Proceedings

  69. On 7 December 2012, the Claimant wrote a pre-action protocol letter to the IPCC. In that letter, he sought disclosure from the IPCC of materials, including the statements from police officers which had been provided in the course of the second investigation. He also offered mediation. By letter dated 9 December 2012, the IPCC stated that the Decision was maintained. On 28 December 2012, the Claimant filed his claim for judicial review.
  70. The grounds

  71. As set out in paragraph 4 above, the grounds raise (at paragraph 1b) the absence of evidence from Chloe Ramsden and Tom Casey (although in fact they do not expressly address the Decision's conclusions on Appeal Point 8 (as below)). Three of the other grounds of challenge were as follows. First, failure on the part of the IPCC to view all relevant CCTV footage and an allegation that the Claimant had been shown CCTV footage different from that seen by the IPCC. Secondly, failure on the part of the IPCC to take further measures to identify other officers; the IPCC's decision having been that it was not proportionate to cross reference a NATO helmet number with a collar number (This relates to Appeal Point 4, below). Thirdly, the IPCC wrongly characterised PS Fretwell's evidence as being that he did not draw his baton (This relates to Appeal point 13, below).
  72. In its Summary Grounds of Defence, the IPCC stated clearly that it had viewed all available CCTV footage relevant to the incident, and that it did not reveal any indication of the assaults as alleged.
  73. The Permission stage

  74. At the oral renewal hearing on 24 May 2013, HH Judge Spencer QC granted permission on the limited basis set out in paragraph 5 above. At that hearing, the Claimant presented his arguments to the effect that the IPCC had failed to find and review all relevant CCTV evidence that must have existed. However permission for those grounds of review was refused.
  75. After permission was granted, in June 2013, the Claimant served for the first time, witness statements from Tom Casey and Chloe Ramsden. In his skeleton for the main hearing dated 29 July 2013, the Claimant maintained his request for disclosure. The IPCC's skeleton in response did not address the issue of disclosure. Eventually on 6 September 2013, a week before the substantive hearing, the IPCC agreed to disclose to the Claimant the accounts of the police officers which had been given in the course of the second police investigation and which had been considered by the IPCC in the Decision. Ms Wolfe for the IPCC fairly accepted that this material properly fell to be disclosed and should have been disclosed earlier.
  76. The evidence before the IPCC: the police officers and Andrew Casey

    The police officers

  77. From the full accounts provided to DI Carr (and indeed to the IPCC on appeal) which have now been disclosed, the evidence of police officers can be summarised as follows.
  78. PS Fretwell was the officer who, from all the accounts, did have some interaction with the Claimant at the location of the first incident. In his first statement, he said he personally did not recall utilising his own personal baton, although he could see from the CCTV footage that some officers had "self deployed" their batons. In his second account, he stated, somewhat differently and more positively, "I do not believe that I drew my baton". (The CCTV footage appears to confirm this, as does PC Russell). The IO Report recorded that he was unlikely to have drawn his baton and did not witness any inappropriate conduct. In DI Carr's email, PS Fretwell was also asked specifically whether or not he had any knowledge of the two incidents. His answer did not respond to the question as asked, and to that extent it seems to me that his account was not complete. This was not mentioned in the IO Report.
  79. PC Saeed was one of the serial deployed at the first incident. He said he had no recollection of the Claimant, but he confirmed that he did use baton strikes and empty hand skills to disperse the fans. This evidence is recorded in the IO Report. He also said (not recorded in the IO Report) that he could see himself on the CCTV with his helmet number, but he could not see the helmets of others on the CCTV. In this way, he confirmed that an officer can be identified from his helmet number alone. In oral argument, the Claimant suggested, for the first time, that it must have been PC Saeed (and not PS Fretwell) who had pushed him with his baton.
  80. PC Russell was an evidence gatherer and photographer present at the first incident. His evidence is stated to be based solely on review of the CCTV footage of the first incident. Confusingly, part of his statement appears to be referring to the facts of the second incident, in circumstances where the second incident was not captured by the CCTV evidence he reviewed. Whilst it is not clear how this arises, I consider it likely that he was confused by the questions asked by DI Carr. Nevertheless he confirmed that there was an incident involving the Claimant and the police at the VW garage. The Claimant had remonstrated with a mounted officer. Another officer came in, but that officer did not appear to have his baton drawn, and PC Russell did not see anyone strike the Claimant. The IO Report recorded PC Russell's evidence that he had no recollection of the Claimant, but that from the CCTV, "there appears to be resistance from [the group near VW garage], one of whom I now believe to be [the Claimant]". (There is no reference to this evidence in the Decision.)
  81. PC Shaw-Peters was with PC Russell at the time. His account refers to the police having come under attack from bottles, bricks and traffic cones, that the mood was hostile and that people had to be physically moved by the laying on of hands and pushing them away at times. He considered these actions to be justified with the threat that the police faced. All this evidence is recorded in the IO Report. Further, in a passage not referred to in the IO Report, his evidence was that a male did fall over a fence, having been pushed away. He, along with others, had refused to move on because they seemed to be waiting for relatives. This supports the Claimant's version of events to the extent that the Claimant was pushed away, fell over, and further suggests that he knew that the Claimant was waiting to be collected by relatives. The Claimant submits that such knowledge can only have been gained from conversation with those people, which in turn indicates a lack of hostility on their part.
  82. PC Lawrenson said, in her first statement, that she did not strike or kick anyone or use offensive language. She would have been close to people, but at no time forcibly pushed into anyone. In her second account, she repeated these denials and said she reviewed the CCTV footage. However she did not respond to DI Carr's detailed questions in his email. The IO Report recorded these denials and her statement that she had no involvement with the Claimant.
  83. PC Twigg was a mounted police officer present and positioned next to PC Lawrenson. In her account, she confirmed that from the CCTV evidence, she was on a horse near to the VW dealership. She had no recollection of the Claimant or any contact with police officers. She said that, "as we moved up Elland Road" she "did not recall" any interaction between PC Lawrenson and any member of the public. It is not clear whether this last sentence relates to the first incident or the second incident. In the Decision, this evidence is relied upon as corroborating PC Lawrenson on the second incident.
  84. PC Jones, an expert in public order policing provided opinion evidence to DI Carr as to the events at the match on that day. He viewed the CCTV footage and recorded that he could see that batons were drawn, there was an incident at the VW garage, and that police officers were pushing a small group of supporters back. He was unable to view the specific incident with the Claimant, but overall he considered that in the circumstances the force and tactics used was appropriate, due to the threat faced from missiles and the reluctance of the group to disperse.
  85. Andrew Casey

  86. In his account of events dated 16 January 2012, Andrew Casey stated, as regards the first incident, that he heard Chloe shout to her father, and that, as he turned around, he saw the Claimant arguing with an officer. He stated that he later found out that the Claimant had been struck by the officer. However he did not witness this. Later the Claimant had informed him that he had been struck in the back by a police officer. As regards the second incident, he said that Chloe Ramsden had shouted towards her father which made him (Andrew Casey) look round. He then witnessed the Claimant being crushed by the horse against a fence and the horse stood on his foot.
  87. The Decision

  88. I now turn to the Decision, the subject of challenge. After setting out the Claimant's thirteen appeal points, the Decision continues to "Appeal Assessment" and addresses the five issues that can arise under paragraph 25(2). Under the heading "1 Are the findings of the police investigation appropriate/proportionate to the complaint?", the Decision addresses the statutory issue in paragraph 25(2)(b), stating as follows:
  89. "The role of the IPCC in the appeal process is to review the investigation into a complaint. ..
    When assessing an appeal, the IPCC will always use the balance of probabilities as the appropriate standard of proof; this means that in order for a complaint to be substantiated, it has to be shown that allegation is more likely than not to have occurred."

  90. The Decision then states its general conclusions on each of the two incidents as follows:
  91. "Complaints 1 and 2
    In relation to the first incident Mr Ramsden alleges that he was struck/pushed by an officer on foot using his baton. There is no corroboration of Mr Ramsden's allegation, although I do take into account that no statement has been obtained from Mr Ramsden's daughter. I have viewed the CCTV footage relating to this incident. This incident does show Mr Ramsden in close proximity to a minor incident of disorder involving a number of officers on foot, some of whom have drawn their batons and some football fans. The images do not show any officer coming into contact with Mr Ramsden at any time. They do show Mr Ramsden walking away from the incident but looking back towards it. He does not appear to be in any discomfort or distress and does not appear annoyed. Accounts have been obtained from the officers who have been identified as being present at this incident of disorder. None has any recollection of any interaction with Mr Ramsden and in any event the images do not show any officer acting inappropriately in dealing with this incident of disorder. Due to the lack of evidence to support or corroborate Mr Ramsden's allegation and the lack of evidence to establish misconduct by any officer this Complaint is Not Upheld." (emphasis added)

    This assessment then continues, by addressing the second incident as follows

    "In relation to the second incident in which Mr Ramsden alleges he was forced against some mesh fencing by a Police horse which also trod on his foot and was then kicked by the officer on the horse. Mr Ramsden's account of this incident is corroborated by his friend, Mr Casey. The officer subject to this allegation has been identified as PC Lawrenson. This officer has provided a written account of her duties that night. She denies the allegation made by Mr Ramsden. Her account is corroborated by PC Twigg. I have viewed all of the available CCTV footage which is of no assistance in respect of this matter. There is no other evidence to consider. Whilst I do not dispute Mr Ramsden's account of either incident I do not consider there is sufficient evidence to establish misconduct by any officer in respect of this matter. This complaint is Not Upheld.
    (emphasis added)

    Thus, the conclusion is that, even if the Claimant's account of the incidents is accepted, in any event there was not sufficient evidence to establish misconduct.

    Appeal Point 8

  92. The Decision continues by addressing each of the Claimant's thirteen appeal points. For present purposes Appeal Point 8 is the most pertinent. Appeal Point 8 was as follows:
  93. "Mr Ramsden queries why none of his witnesses have been interviewed as the police officers have their colleagues covering up for them"

    The Decision's conclusion on Appeal Point 8 states:

    "Mr [Andrew] Casey has provided a statement in which he is unable to corroborate Mr Ramsden's allegation of assault against an officer on foot although he does state that he saw Mr Ramsden "arguing with an officer". Mr Casey states that later he "witnessed Mr Ramsden being crushed by the horse against a fence and the horse stood on his foot". I would accept that it would be likely that both Mr Ramsden's daughter and, possibly to a lesser extent Mr Casey's son, are likely to corroborate his account. I do not consider they could be considered as being truly independent witnesses. I also accept that police officers are likely to support each others account and could not be considered as being truly independent witnesses. The only independent evidence in this case are the CCTV images which do not provide anything of evidential value"
    (emphasis added)

    Appeal Point 4

  94. Appeal Point 4 was stated as follows:
  95. "Mr Ramsden states that the CCTV footage shown to him by DI Carr clearly identified the officers involved in the first ground assault as they had serial numbers on the back of their helmets"

    The Decision's conclusion on Appeal Point 4 states:

    "Whilst I accept that all officers have identification numbers on their NATO helmets I have not been able to distinguish any collar numbers of officers who have not already provided accounts. Neither do I consider it would be proportionate to request any further efforts are made to identify these officers. This is because I consider that with the passage of time since this incident occurred, now over twelve months, any officers recollection of their possible involvement with Mr Ramsden in such fleeting circumstances could not be relied upon. This appeal point is Not Upheld."

    The implication of this conclusion is that it is not possible to identify officers from the ID numbers on their NATO helmets.

    Appeal Point 13

  96. The Claimant's Appeal Point 13 was stated as follows:
  97. "Mr Ramsden alleges that PS Fretwell's account is a lie as the footage shown clearly shows batons being raised"

    In its conclusion on Appeal Point 13, the Decision quotes from PS Fretwell's first statement that he did "not recall utilising" his own baton. It then comments "The officer clearly does not deny that officers had drawn their batons he simply states that he did not". The Decision concludes, on this Appeal Point, that "there is no evidence of misconduct in relation to this appeal point".

  98. The Decision then goes on to consider other questions under paragraph 25(2). In relation to a case to answer for misconduct (paragraph 25(2)(ba)), it concludes that "there is no evidence of misconduct or gross misconduct by any officer subject of these complaints" In relation to proposed action (paragraph 25(2)(c)), it concludes that "no misconduct has been identified and therefore no further action is required by West Yorkshire Police". In relation to referring the matter to the CPS (paragraph 25(2)(d)), it concludes that "there is no evidence that any officer subject to these complaints has committed any criminal offence and therefore there is no requirement for any referral to the CPS"; and finally, in relation to the provision of adequate information (paragraph 25(2)(a)), it concludes that the Claimant has been provided with a comprehensive and accurate investigation report.
  99. Statements of Chloe Ramsden and Tom Casey

  100. In her witness statement, now provided, Chloe Ramsden says her evidence is entirely her own recollection. She says that they were waiting in the MacDonald's car park and that "I saw my father get struck to the floor by two police officers with batons - a male and a female - for no reason as he was walking away up the main road". Her father then got up and placed hands in air and shouted "why the fuck did I deserve that". This is the first time that it is suggested that two officers had used batons. As regards the second incident, she says, that as the police moved up the road, they decided to stop to see if they could get behind the line of mounted police officers by waiting at the fence at the side of the road, as the police were on a rage. She states:
  101. "As we waited by the fence, the mounted horses came trotting up again, so I, Andrew and Thomas decided to run, my father kept calling me to come back, but I screamed at him "Watch out, Dad, run" as the mounted officers were coming close, my father was crushed against the mesh fencing and was kicked in the back by a mounted police officer, for just walking calmly. She screamed at him to move on"

  102. Tom Casey explains, as regards the first incident, that the four of them had been waiting to be collected. The police came into the car park, told them they could not wait there and pushed them into the road. He saw part of the scuffle between the Claimant and a police officer and saw him get back to his feet after the scuffle. As regards what might have been the second incident he said "I heard Chloe screaming and shouting for Tony, when I looked back I saw Tony pushing off the mesh fence and the mounted officer swinging her baton around".
  103. The Issue and the Parties' contentions

  104. Whilst the specific ground for which permission has been granted is the decision not to direct that evidence from Chloe Ramsden and Tom Casey be obtained, in my judgment, it is appropriate to frame this issue slightly more widely: whether the IPCC acted unlawfully (i.e. irrationally) in coming to the conclusions that the IO Report dealt with this complaint fairly and reasonably, after a proportionate investigation, and that there was no sufficient evidence to establish the allegations of assault or misconduct; and, in this regard, whether the IPCC's conclusions that it was not necessary to direct the obtaining of evidence from Chloe Ramsden and Tom Casey was a conclusion that was fair and reasonable. The question is not whether I would have reached the same conclusion, but whether that conclusion was open to the IPCC. Was the IPCC's conclusion that it was proportionate for the police not to have obtained statements from the two witnesses itself an unreasonable conclusion?
  105. The Claimant's case

  106. The Claimant's case is that witness statements from Chloe Ramsden and Tom Casey would have had a material impact upon the investigation. It can be seen from the statements now obtained from these two that both of them corroborate the Claimant's account of the two incidents. There are now four witnesses attesting to his account of the first incident and three attesting to his account of the second incident.
  107. He contends, first, it was not sufficient for the IPCC merely to assume that any evidence from Chloe Ramsden and Tom Casey would corroborate the Claimant's account. In that way, no consideration was given to the extent to which such statements were likely to corroborate or the weight that could be attached to such evidence. This is particularly the case in respect of the first incident where the Claimant himself was walking away from police line and was hit in the back, and where other witnesses were likely to have had a clearer view of events. Secondly, the IPCC's reliance upon the proposition that Chloe Ramsden and Andrew and Tom Casey are not "independent witnesses" was inappropriate. Thirdly, as regards the first incident, this was not a case of a conflict of accounts. There were no police officers who positively stated that the assault did not take place. Furthermore, not all relevant officers present were interviewed. Fourthly, as regards the second incident, the important element of the assault was that officer rode her horse at the Claimant - and the kick in the back was a much more minor aspect. There are four witnesses who say the horse made contact with the Claimant. PC Twigg does not say that the assault did not take place. Fifthly, the Claimant submits that CI Hunter had told the investigator to take statements from Chloe Ramsden, after the police had been directed by the IPCC to reinvestigate. Finally, the IPCC's late disclosure of the statements of the police officers had been prejudicial. Had disclosure been given earlier, as it should have been, the Claimant would have been granted permission to pursue his claim for judicial review on other grounds.
  108. The IPCC's case

  109. The IPCC's case is that the question for the IO Report, and indeed for the IPCC in the Decision, was whether there was sufficient evidence to conclude on the balance of probabilities that the Claimant's allegations were true. Those allegations were, first, that he was pushed or struck with a baton and secondly, that the mounted police officer rode her horse at him and then kicked him. Here, there was insufficient evidence so to conclude on the balance of probabilities.
  110. There was a conflict of accounts between the police evidence and the Claimant's account. The analysis in the Decision was based on the CCTV evidence, being the only truly independent evidence. That footage was inconclusive. Moreover it showed the Claimant walking away for the incident, showing no discomfort or annoyance. Further, the Decision, in any event, assumed that statements from Chloe Ramsden and Tom Casey would corroborate the Claimant's account, and in this way, when the IPCC considered his appeal, it gave the Claimant the benefit of the doubt on this aspect. The taking of the statements would not have altered the outcome, because even with those statements, there would not have been sufficient evidence on the balance of probabilities to establish either the alleged assaults or misconduct, given the lack of supporting CCTV or other evidence. It was thus reasonable for the Decision to conclude that there was insufficient evidence to establish the Claimant's allegations and that further evidence from Chloe Ramsden and Tom Casey would not have changed that.
  111. Further, and in fact, the witness statements from Chloe Ramsden and Tom Casey now provided would not have had any impact upon that assessment, nor render it unreasonable. Apart from Chloe Ramsden's evidence on the first incident, they do not materially add to the evidence. There had been two substantial investigations, and any injury sustained by the Claimant had been minor. In all these circumstances, it had been reasonable and proportionate to decide that such statements were not required.
  112. Analysis

    The Two Incidents

  113. Before turning to address these submissions specifically, I consider the two incidents, and the evidence and the Decision's conclusions in relation to each.
  114. The first incident: the VW Garage

  115. It appears not to be disputed that the Claimant, his daughter and the two Caseys were waiting in for the Claimant's wife to collect them in her car. There was an incident on the footpath adjacent to the boundary wall of the VW garage involving a group of people which the police were physically pushing away. The Claimant was one of this group. He was pushed and he fell to the ground over the fence. The key issue was whether Claimant was hit or pushed by a police officer with a baton (and not whether there was an argument or altercation involving the Claimant or whether he fell to the ground). The evidence of PC Shaw-Peters that the Claimant did fall over a small wall and suggesting conversations about relatives support Claimant's account. However it does not establish the use of a baton.
  116. As to this key issue, the CCTV evidence is largely neutral, since there are two critical seconds of footage where the relevant view is obscured by a police horse. However the CCTV evidence does show the Claimant walking away unharmed and the officer nearest to the Claimant (thought to be PS Fretwell) not having his baton drawn (as confirmed by PC Russell). As regards the police evidence available to DI Carr and the IPCC, PS Fretwell says, first, he does not recall using his baton, but then subsequently that he did not believe he drew it. PC Saeed said he did not recall the Claimant, though he did use his baton himself. PC Russell, based on viewing CCTV, did not see anyone strike the Claimant. PC Twigg had no recollection of the Claimant.
  117. The Claimant's own description has not been entirely consistent - in his original complaint he alleged that an officer had pushed him and shoved his baton in his back to move him on. In his letter of 8 December 2011 he said a line of officers "hit me with a baton across the back". Andrew Casey did not witness the use of a baton upon the Claimant or the push. He did say subsequently the Claimant told him that he had been struck in the back, although he makes no reference to a baton.
  118. The Decision itself refers to the fact that the CCTV does not show any officer coming into contact with the Claimant, and that it shows him walking away. It states that accounts have been obtained from the relevant officers; none has any recollection of any interaction with the Claimant; and Andrew Casey is unable to corroborate the Claimant's allegation. To this extent, this is a fair reflection of the above evidence.
  119. As regards the new evidence which the Court now has, Tom Casey's evidence does not support the critical allegation. Chloe Ramsden's evidence does support it, to the extent that she saw the use of a baton. In fact her evidence is that she saw two different officers each strike her father with a baton; and it may be that this is at variance with what can be seen on the CCTV footage.
  120. The Second Incident: further up Elland Road

  121. The Claimant's principal case, now, is that the officer rode her horse at him (and that kick in the back was a much more minor aspect). But there is little or no evidence to support that allegation. As Judge Spencer QC remarked at the renewal hearing, the horse treading on the Claimant's foot and the Claimant being pushed against the fence were not actions which necessarily imported malice on the part of the horse or the rider. There is no relevant CCTV evidence of this incident. It may well be that the Claimant did find himself caught, or even crushed, between the mounted police horse and the wire mesh fence. The question raised by the complaint is whether in the course of that incident he was assaulted, either by being "ridden at" or by being kicked.
  122. As regards the police evidence available to DI Carr and the IPCC, PC Lawrenson denied the allegation, and in particular that she forcibly pushed into anyone. As noted above, however she did not respond to particular questions from DI Carr. The only other possibly relevant evidence comes from PC Twigg, who does not recall any interaction between PC Lawrenson and any member of the public (assuming that she is referring to the second incident).
  123. Andrew Casey's evidence is that he saw the Claimant being crushed against a fence. His evidence does not directly attest to the horse being "ridden at" the Claimant; nor does he refer to any kick.
  124. The Decision refers to this evidence, stating that Andrew Casey corroborates the Claimant's account. It then states that PC Twigg corroborates PC Lawrenson's account. Nevertheless it concludes, even accepting Claimant's account, that there is no sufficient evidence to establish misconduct.
  125. As regards the new evidence which the Court now has, Tom Casey's evidence does not assist much, other than confirming that the Claimant had been up against the wire mesh fence. It does not, as the Claimant submitted, support the allegation of a kick nor that the horse had been deliberately ridden at him. Chloe Ramsden does say that she saw that her father was kicked in the back. However she does not say, specifically, that the horse was being ridden at him. Nor is there evidence that, necessarily, any kick in the back was intentional or malicious. Contact alone between the horse and the Claimant is not sufficient to establish the key element of having been ridden at. There is no clear supporting evidence of this.
  126. The Claimant's case

  127. I address the matters raised by the Claimant in three parts: first, I address some wider points; secondly I consider the central issue relating to the evidence of Chloe Ramsden and Tom Casey; and finally, I consider the late disclosure of evidence and other grounds for review.
  128. (1) General observations

  129. First, it is the case that the police evidence which was gathered was not quite as clear as the IO Report or the Decision suggests. At places the accounts given by officers are confused and, in places, they do not respond to questions asked. For example, PS Fretwell's evidence about whether he used his baton changes between his first and second statements. This change of evidence is not explored, though it is possible that the change arose from his memory being refreshed by having had sight of the CCTV footage. Further both PS Fretwell and PC Lawrenson did not specifically respond to specific questions from DI Carr. PC Russell's account is very confused. Moreover the IO Report fails to refer to important parts of the evidence of PC Shaw-Peters, suggesting that there had been an altercation involving the Claimant at the VW Garage. It would have been better if this evidence had been referred to and considered.
  130. Secondly, some of the analysis by the IPCC in the Decision is less than satisfactory. In relation to the first incident, the Decision states, first, that there is a lack of evidence to support or corroborate the Claimant's allegation, but then, under Appeal Point 8, goes on to state that it is accepted that Chloe Ramsden and Tom Casey would be likely to corroborate his account, but that their evidence would not be "truly independent". It is not entirely clear whether the basis of the Decision is that there is no corroborative evidence at all or, rather, no independent corroborative evidence. Further, as the Claimant suggests, much of the evidence from police officers is that they "do not recall" what happened, rather than positively contradicting the allegations made by the Claimant. To that extent, it might be said that the balance between conflicting accounts is not equal. As regards PS Fretwell's evidence, whilst what is said, under Appeal Point 13 in the Decision is not an accurate reflection of his evidence in his first statement, it does reflect what he said in his second account; and to that extent, this is positive evidence that PS Fretwell did not use his baton. The IPCC's error there, if any, was not to make clear the change of his evidence.
  131. In relation to the second incident, contrary to the statement in the Decision, it does not appear that PC Twigg's evidence does corroborate PC Lawrenson's evidence. Even assuming that PC Twigg is referring to the events further up Elland Road, her evidence is that "she does not recall" and not that the events alleged did not happen. On the other side of the balance, the Decision also states that Andrew Casey's evidence corroborates the Claimant's account, whereas, on the key issues, in my judgment, it does not fully do so.
  132. (2) Failure to obtain witness statement from Chloe Ramsden and Tom Casey

  133. Turning specifically to the potential evidence of Chloe Ramsden and Tom Casey, I consider first three particular points. The first two arise from the reasoning in the Decision addressing Appeal Point 8 (see paragraph 61 above).
  134. First, there is some force in the submission that the Claimant's witnesses and the police witnesses are not equal in their lack of independence, and that there is reason to question the assumption that the Claimant's witnesses would not be truly independent. Their motivation not to tell the truth is difficult to understand. In particular, the Caseys both seem to be independent of the Claimant; I am told that Andrew Casey's brother is a serving officer with the West Yorkshire Police. Indeed the fact that Andrew Casey's statement does not fully support the Claimant's account suggests independence of mind. Further, the Claimant points out that the Claimant has at no time sought financial recompense for the assaults. All he has been seeking is an explanation and an apology. (In this regard, I should add that, in his letter of 3 February 2012, seen for the first time today, the Claimant himself refers to Inspector Thackray previously "offering an apology on behalf of the police force"). On the other hand, as a general proposition, it is certainly possible that, especially in a situation of loss of crowd control and allegations of misconduct against unidentified officers, police officers might be motivated by a desire not to disclose too much. However, if by "independent", the IPCC means, in substance, "objective", then the IPCC's point is a valid one. The evidence of all witnesses is necessarily based on subjective recollection; the CCTV evidence is to be distinguished as the only objective evidence available, not affected by the vagaries of recollection. In my judgment, this distinction underlies the final sentence of the conclusion on Appeal Point 8 (see paragraph 61 above).
  135. Secondly, it is also fair to criticise the Decision for simply assuming that the evidence of Chloe Ramsden and Tom Casey would corroborate the Claimant's claim, without giving any consideration to the actual contents of such potential evidence, and how the detail of the evidence might affect the respective weight to be given to the various accounts of events. Without seeing such evidence, it cannot be said how it would be weighed in the balance and what probative value it might have. For example, since the Claimant himself was walking away from the police line and claims to have been hit in the back, evidence from other witnesses (such as Chloe) with a clearer view of events, might have greater weight. The Decision takes no account of how and why their evidence would or might have corroborated the Claimant's allegations. The IPCC could not assume that their evidence would have been the same in all their detail, and indeed it is possible that they might have been inconsistent in their detail (as in fact Chloe Ramsden's evidence turns out to be).
  136. Thirdly, it is the case that, at an early stage of the first police investigation, CI Hunter did raise the possibility of the need to obtain a statement from Chloe Ramsden (see paragraph 31 above). This was somewhat tentative, indicating that such evidence might or might not assist, and would not be proportionate to obtain if it was only a repeat account. The Claimant can fairly say, however, that unless the account was obtained, it could not be known whether it would "add" anything. However, it is not correct, as the Claimant contends, that, it was after the reference back for re-investigation, CI Hunter gave an order to DI Carr to seek a statement from Chloe Ramsden. The email was much earlier, it was sent to Inspector Thackray and it was more tentative than suggested.
  137. Nevertheless, despite the foregoing criticisms, I consider, that in the circumstances of this case, the decision of the police and the IPCC not to seek witness evidence from Chloe Ramsden and Tom Casey was one which was reasonably and fairly open to them, taking into account considerations of proportionality. This question falls to be considered, in the first place, without considering the content of the statements which have subsequently been provided, and it falls to be considered as part of the wider question as to the sufficiency of the evidence gathered. Was the IPCC's decision that sufficient evidence was gathered reasonably open to it? Was the investigation undertaken proportionate?
  138. First, there is no duty, upon an investigator, nor upon the IPCC, to interview all relevant witnesses (let alone all police officers). Indeed there are no hard and fast rules as to the conduct of an investigation. The decision as to the evidence to be gathered in an investigation is a matter for the discretion of the investigating officer, taking account of proportionality in the particular circumstances of the case: see Guidance, paragraphs 303, 308 and 310 (referred to in paragraphs 15 and 16 above)
  139. Secondly, in the present case, there were two highly relevant circumstances against which the proportionality of the scope of the investigation into the allegations of assault, and in particular the proportionality of seeking further evidence (after two investigations) fall to be assessed. First, there was the fact that the Claimant had sustained little, if any, injury as a result of the relevant events Secondly, the context was one of a very serious crowd disturbance which produced for all involved (including the police) a very difficult situation. It was not in dispute that the Claimant got caught upon in this disturbance nor indeed that he was involved in some form of altercation at the VW garage, leading to him being pushed over and he may well have been crushed against the wire mesh fence further up the road. However, even if he was assaulted as alleged, there was no injury and whether the force used was, in the particular context, excessive is a distinct issue.
  140. Further, the scale of the investigation actually undertaken is also highly material to the issue of proportionality. By the time of the IO Report, the police had conducted a reasonably detailed investigation, covering evidence from at least 6 police officers, from Andrew Casey, expert evidence from another officer and evidence from CI Riley, the detailed review of a very substantial amount of CCTV footage, site visit and consideration of still photographs. The approach of the investigating officer substantially complied with that set out in the Guidance see, for example, paragraphs 315 and 316.
  141. Thirdly, whilst there are criticisms of the Decision, overall the substance of the Decision in relation to the two incidents (set out at paragraph 60 above) is, in my judgment, by and large a clear, fair and accurate reflection and assessment of the evidence that had been gathered.
  142. The Claimant himself did not raise the issue of two witnesses in his first appeal, and he could readily have provided to the police or the IPCC evidence from the two additional witnesses. He did not do so. What is more, the IPCC in reaching its conclusion did make an assumption, in the Claimant's favour, that evidence from Chloe Ramsden and Tom Casey would support his account. It was not irrational of the police or the IPCC to conclude that, even with supporting evidence from the two witnesses, that would not have sufficiently resolved the conflict of evidence in relation to the allegations. Whilst the view is obscured at the important moment, the objective CCTV evidence, if anything, supports the proposition that PS Fretwell did not use his baton and that the Claimant was not particularly troubled, after falling over. The evidence in relation to the second incident was weak. There was no evidence of the horse being deliberately "ridden at" the Claimant, and the Claimant himself accepts that the alleged kick was minor.
  143. Fourthly, and importantly, in the Decision, the IPCC expressly concluded that, even assuming that the Claimant's account of the facts was correct, there was no sufficient case of misconduct: see Decision, as per paragraph 60 above, and evidence of PC Jones (paragraph 57 above). In short, even if the two officers had acted as alleged, in the context of the serious crowd disturbance, the pressure under which the police were operating, including the threat from missiles, and the reluctance of the group to disperse, such conduct would not have amount to a case of misconduct as any force used was not excessive. On that basis, further investigation would not be proportionate. The IO Report had concluded to the same effect: see paragraph 43 above.
  144. The question for the IPCC was whether the decision not to seek witness statements from Chloe Ramsden and Tom Casey was proportionate to the nature and seriousness of the allegations made, the context in which they occurred and the likelihood of proving them. IPCC concluded that it was proportionate. In my judgment, that was a conclusion was which was reasonably open to it.
  145. I conclude that, taking account of proportionality considerations, the IPCC's failure to direct the taking of those witness statement was not at the time irrational, because, first, they may not have assisted in establishing that the alleged facts did happen and secondly, because in any event, even if they did assist, the conclusion that there was insufficient evidence to support misconduct was one which was reasonably open to the IPCC.
  146. The statements now served

  147. Moreover, even if, contrary to the foregoing, I had found the decision not to direct witness statements to have been irrational, having now seen those statements, as a matter of discretion I would not have quashed the Decision. I am not satisfied that, had they been before the IPCC, their content would necessarily have led the IPCC to reach a different conclusion from that in the Decision. Only Chloe Ramsden's evidence might be said to provide any corroboration for the key elements of the assault allegations, and then only particularly in relation to the first incident. In any event, the conclusion of insufficient evidence of misconduct on the part of any officer would not have been affected.
  148. (3) Late disclosure of police evidence and other grounds for judicial review

  149. It is regrettable that the IPCC did not disclose the police officer evidence until shortly before the hearing. The question is whether if this material had been disclosed before the oral renewal hearing, permission would have been granted on other of the Claimant's grounds and, in any event, whether this new material is such that, exceptionally, I should exercise my discretion to revisit other grounds for review, for which permission was refused, without benefit of sight of this material. There are two such potentially relevant grounds of challenge.
  150. First, as to the claim that the CCTV evidence upon which the IO Report and the Decision were based was incomplete, HH Judge Spencer QC refused permission in respect of the Claimant's grounds based on his claim. In my judgment, nothing in the materials disclosed to the Claimant on 6 September 2013 raises any further points on this issue. For that reason, I do not consider that this is a matter which arises for reconsideration. I should add that, the IPCC has stated clearly, both in its Summary Grounds and in court that it had viewed and assessed all available CCTV evidence.
  151. Secondly, there is the issue of identification of other police officers present at the VW garage, arising from the challenge to the Decision on Appeal Point 4. Here, there is material in the recent disclosure relevant to this issue. The decision on permission might have been different, and for that reason it is appropriate for me to reconsider this ground.
  152. PC Saeed's evidence, now disclosed, suggests that officers can be identified from the number on their NATO helmets, and that, contrary to the suggestion in the Decision on Appeal point 4, it is not necessary to be able also to see their collar numbers. To that extent, the Claimant's criticism of the Decision is justified. However, first, it is not clear whether the numbers on the helmets were identifiable from the CCTV footage. Secondly, there is no evidence that any other officer would have been able to provide relevant evidence. The IO Report stated that the CCTV footage showed these officers not to have been in direct contact with the Claimant. Moreover, it appears that they were on the other side of the horse at the critical point in the first incident. The Decision concluded that it would not be proportionate to seek to identify these officers, taking account of the passages of time and their "fleeting" involvement. In my judgment, to the extent that this forms a separate ground of challenge to the Decision, this conclusion of the IPCC not to require evidence from other officers, on grounds of proportionality, was not irrational.
  153. Conclusion

  154. The Claimant, his daughter and their friends were undoubtedly caught up in an unpleasant and frightening situation of serious crowd disturbance. The Claimant believes he has suffered an injustice both in relation to the events of that day and the handling of his complaint by the police. He has pursued his claim in these proceedings fairly and properly and he has presented his argument effectively, courteously and with dignity. As I have indicated above, there are aspects of the investigation by the police and by the IPCC which have been less than satisfactory. Nevertheless, despite these valid points of criticism, in my judgment, the decision not to obtain evidence from Chloe Ramsden and Tom Casey was one which was fairly open to the IPCC, and to the police, and was thus not unlawful.
  155. In this light of my conclusions at paragraphs 100 and 105 above, the challenge to the Decision fails and the application for judicial review is dismissed.
  156. I will hear submissions on the appropriate terms of the order, if the parties are unable to agree. I propose dealing with this and other consequential matters, including costs, immediately following the handing down of this judgment, unless any party requests that they be dealt with subsequently and in which event, I will give further directions as to the procedure to be followed, including for the service of written submissions.
  157. I am grateful to the Claimant and to Ms Wolfe for their assistance to the Court in the presentation of oral and written argument in this matter.

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