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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Chief Executive of the IPCC, R (On the Application Of) v Independent Police Complaints Commission [2016] EWHC 2993 (Admin) (25 November 2016) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2016/2993.html Cite as: [2016] EWHC 2993 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE MALES
____________________
| The Queen on the application of CHIEF EXECUTIVE OF THE IPCC |
Claimant |
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| and |
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| INDEPENDENT POLICE COMPLAINTS COMMISSION and (1) DOROTHY BEGLEY (2) PC DONNELLY (3) PC MILLS (4) PC WRIGHT (5) PC FOX (6) THE CHIEF CONSTABLE OF GREATER MANCHESTER POLICE |
Defendant Interested Parties |
____________________
Mr Stephen Killalea QC and Mr Peter Edwards (instructed by Lexent Legal Solicitors) for the First Interested Party
Mr Hugh Davies QC (instructed by Slater Gordon) for the Second to Fifth Interested Parties
Miss Anne Whyte QC (instructed by Greater Manchester Police) for the Sixth Interested Party
Hearing date: 16 November 2016
____________________
Crown Copyright ©
Lord Justice Elias :
Constable
of the relevant police authority, which in this case was the Greater Manchester Police (GMP). Commissioner Dipple-Johnstone did so on 24 April 2014. He invited the police, in accordance with the legislation, to reply with a memorandum stating whether or not the Chief
Constable
(acting through an Assistant Chief
Constable)
agreed with the report's finding that there was no case to answer in either misconduct or gross misconduct. In a letter dated 27 August 2014 the GMP accepted the finding of the investigation. The final decision, however, rested with the IPCC who can if necessary override the views of the Chief
Constable
if they are not deemed to be appropriate. That did not happen in this case. Commissioner Dipple-Johnstone deemed them to be appropriate and agreed that no action should be taken. The officers were notified accordingly.
The legal framework
" on completion of an investigation the investigator's report shall
(a) provide an accurate summary of the evidence;
(b) attach or refer to any relevant documents; and
(c) indicate the investigator's opinion as to whether there is a case to answer in respect of misconduct or gross misconduct or whether there is no case to answer."
Constable
to an Assistant Chief
Constable
or officer of equivalent rank. That officer must then exercise an independent judgment about whether, in the light of the report, he or she considers that the relevant police officer does or does not have a case to answer. The authority must notify the IPCC as to what action, if any, it proposes to take (para. 23(7)). However, the authority does not have the last word. Under paragraph 23(8)(a), the IPCC must decide whether or not this determination is "appropriate". Paragraph 23(8)(b) then provides that the Commission shall, in light of the above, decide whether or not to make a recommendation under paragraph 27, i.e. a recommendation that disciplinary proceedings are brought against the police officer concerned. If the authority does not accept such a recommendation, the Commission has power to direct it to do so (paragraph 27(4).
Guidance
"In reaching conclusions, an investigator must apply the civil standard of proof, that is 'the balance of probabilities' whether it is more likely than not that the conduct alleged did, in fact, take place."
Constable
of
West
Yorkshire
Police) v Independent Police Complaints Commission [2014] EWCA Civ 1367, it is not the role of an investigator to reach final conclusions as to whether misconduct has been committed, or to resolve conflicting evidence, but only to express an opinion whether or not there is a case to answer. In the
West
Yorkshire
case Sir Colin Rimer, in a judgment with which Beatson and Gloster LJJ concurred, said this (paragraph 50):
"A "case to answer" in that context means a case to answer before a criminal court and/or a disciplinary tribunal. It is, one might think, obvious that if the investigators' task is to report their opinion as to whether there is such a case to answer before another tribunal, it is not their function also to purport to decide the very question or questions that are raised by such a case."
" for the investigators to purport to decide the matter themselves is potentially prejudicial to the fairness of the proceedings before that other tribunal "
West
Yorkshire
ruling. It provides, under the heading of "The 'case to answer' test":
"11.31 The investigator should indicate that in their opinion there is a case to answer where there is sufficient evidence, upon which a reasonable misconduct meeting or hearing could, on the balance of probabilities make a finding of misconduct or gross misconduct.
11.32 It follows from the case to answer test, that where the investigator's opinion is that there is a case to answer, a subsequent misconduct hearing or meeting may, nonetheless, make different findings of fact and/or about whether the conduct breached the Standards of Professional Behaviour. Therefore, although the investigators must still explain the evaluation of the evidence that has caused them to come to such a conclusion, they must be careful to stop short of expressing findings on the very questions that will fall to be answered by the disciplinary proceedings, court or tribunal which may consider the matter."
These paragraphs indicate that it is not for the investigator to decide whether on the balance of probabilities there has been misconduct or gross misconduct but rather whether that conclusion would be open to a reasonable body assessing the facts and applying the law. This new formulation is still not in our view entirely satisfactory because para.11.32 suggests that a disciplinary body may make different findings of fact from the investigator; but the investigator should not be making findings of fact at all, at least not where there is credible conflicting evidence. It would be right to say, however, that the disciplinary body may reach findings of fact which are properly open to it on the evidence and yet are contrary to the findings which the investigator would make, if he or she were to make them. The investigator has to be alive to that possibility so that if there is a case to answer on one legitimate construction of the facts, the investigator has to recommend that there is a case to answer. The investigator's own opinion whether the case should succeed is immaterial and should not be revealed. Of course, where the investigator finds that there is no case to answer, it necessarily follows from the fact that in the investigator's view no reasonable body could think otherwise that the investigator himself, as a reasonable man, also considers that there was no misconduct. But the converse is not true: there may be a case to answer even though the investigator would personally find that there has been no misconduct.
The alleged errors of law
Ground 1: application of the wrong test
"On the basis of the evidence collected it is concluded that on the balance of probabilities, PC Donnelly has no case to answer for gross misconduct in respect of the allegation that he used excessive force on Mr Begley by deploying his Taser in contradiction to his training in the use of Taser."
West
Yorkshire
case, no doubt because the investigator was following the same defective guidance. The investigator is not asking whether a reasonable disciplinary panel, having regard to all the evidence and in particular the conflicting evidence, could on the balance of probabilities find that there was misconduct or gross misconduct. Rather he is reaching his own conclusion about that. Counsel accepts that if the investigator had in fact applied the right test but inaccurately expressed himself, that would not justify quashing the report. But he says that it is plain that when one focuses on the reasoning itself, including the various "Findings" referred to above, that is not what the investigator did. He has made no reference to the possibility that given certain conflicts in the evidence of the officers, there is potentially a number of factual conclusions which a reasonable body could reach, depending upon how it assessed the evidence. Those factual conclusions could in turn impact upon the decision whether misconduct or gross misconduct has been committed.
West
Yorkshire
later said was erroneous. Nowhere do we find the investigator recognising that potentially conflicting evidence could be evaluated in a number of ways, or applying his mind to the questions whether a reasonable disciplinary body could accept the evidence that was least favourable to the police officers or, if it did, whether it might go on to conclude that there had been misconduct. Rather, as explained above, he made a series of findings, on the basis of which he determined that no misconduct or gross misconduct had been committed. Mr Davies' contention that the investigator found that there was no misconduct on an assumption about the facts least favourable to the officers finds no echo in the report at all. In any event, even that conclusion would not be enough; it would still be necessary for the investigator to conclude that no reasonable body could find otherwise, and to give his reasons for so concluding.
Grounds 2 and 3: inadequate statement of facts and failure to refer to documents
Constable
as the appropriate authority, and the IPCC itself, which ultimately has to make the decision whether there is a case to answer, to take a properly informed view when determining that question.
Discretion
Constable
had to review it and were in a position to put it right. But that takes him nowhere if they did not in fact put it right, and they did not. The reality is that the report set the contours of the subsequent consideration and tainted the decisions both of the Chief
Constable and the IPCC itself. Mr Davies sensibly did not seek to argue otherwise.
Disposal