The Commissioner of Police of the Metropolis, R (on the application of) v The Independent Police Complaints Commission & Anor

This appeal raises a short point of law concerning the powers of the Independent Police Complaints Commission (the “IPCC”). The question that actually arises on the facts of the case is whether, once the relevant police authority (in this case, the Metropolitan Police Service (“MPS”) represented by the Commissioner of Police of the Metropolis (“the Commissioner”)) has agreed to take no action against a police officer in a specific matter as recommended by an IPCC investigation, the IPCC is functus officio so as to be unable to review or re-open its investigation. The Commissioner, as appellant, says that such a conclusion is demanded by the structure of the regime created by the Police Reform Act 2002 (the “2002 Act”), and by the fact that the public will only have confidence in that regime if the IPCC is required to “get it right first time”. Conversely, the IPCC and the complainant, Mr Mauro Demetrio, the respondents in the appeal, support the Divisional Court’s conclusion (Burnett LJ and William Davis J) that the decision of the IPCC in this case not to recommend or direct disciplinary action against one of the police constables who was the subject of a complaint by Mr Mauro Demetrio (“Mr Demetrio”), Police Constable Joseph Harrington (“PC Harrington”), was not an irrevocable decision.

Before turning to the details of the relevant legislation, the Divisional Court’s decision and the parties’ arguments, it is necessary very briefly to summarise the factual background.

The relevant facts of this unfortunate case can be shortly stated. On 11^th August 2011, Mr Demetrio was arrested after being stopped whilst driving his car in Beckton. He was detained in the back of a police van accompanied by a number of police officers. Mr Demetrio complained on the same day that, in the course of that detention and whilst being transported to the Forest Gate custody unit, he was strangled and racially abused by police officers. The racial abuse was recorded by Mr Demetrio on his mobile phone and is not central to this appeal. The allegation that Mr Demetrio was strangled is, however, the foundation of the issue that I have described. The details are not important for these purposes, but they are carefully set out in the Divisional Court’s judgment.

The IPCC decided to undertake its own investigation of Mr Demetrio’s complaint against the police officers concerned. It appointed Ms Emma Yoxall as the Lead Investigator (the “Investigator”) and Ms Sarah Patten to assist her (together the “investigators”) to undertake that investigation. The Investigator informed Commander Spindler of the Directorate of Professional Standards Misconduct Unit in the MPS on 17^th August 2012 that the report had been finalised and was being reviewed by Commissioner Mike Franklin of the IPCC (“Commissioner Franklin”) before being forwarded to him in accordance with paragraph 23 of schedule 3 to the 2002 Act.

On 31^st October 2012, the investigators produced their “Final Report” (the “Final Report”) saying at paragraph 182 that there was “insufficient evidence to conclude PC Harrington strangled Mr Demetrio” and that there “was no case to answer for PC Harrington” on the allegation. The Final Report did, however, find a case to answer against PC Harrington and other officers in respect of other allegations arising from Mr Demetrio’s four complaints relating to his arrest and subsequent treatment on 11^th August 2011. On 30^th October 2012 (for some reason the day before the date of the Final Report), Commissioner Franklin sent the Final Report to Commander Gibson of the MPS under paragraph 23 of schedule 3 to the 2002 Act, inviting him to issue a determination under paragraph 23(7) setting out what action, if any, the MPS intended to take in respect of the matters dealt with in the Final Report regarding the identified misconduct matters.

On 23^rd January 2013, Chief Inspector Kirsty Andrew of the MPS (“CI Andrew”) wrote to Commissioner Franklin (the “Memorandum”) asking him to treat the letter as her memorandum under paragraph 23(7) of schedule 3 to the 2002 Act, saying that “it is alleged that officers strangled Mr Demetrio, the officers being identified as Pc Harrington and Pc Elton. I agree with the IPCC assessment in this matter and there is no case to answer”. CI Andrew disagreed with certain other recommendations of the Final Report including that PC Harrington should face an allegation of gross misconduct in relation to his failing to report the alleged racial abuse.

On 22^nd February 2013, Commissioner Franklin wrote to Chief Inspector Murphy of the MPS acknowledging the Memorandum and saying that he had considered it and the actions that the MPS intended to take in response to the matters in the Final Report. The letter dealt with other allegations agreeing with the MPS’s proposal in one respect and disagreeing in another. It recommended that, in accordance with paragraph 27 of schedule 3 to the 2002 Act, on a balance of probabilities, there was a case against PC Harrington to answer for gross misconduct for failing to challenge the racial abuse of Mr Demetrio, and asked the MPS to inform the IPCC whether it accepted those recommendations and the steps it proposed to take in relation to them. If the MPS did not accept them, the IPCC said it would “consider whether to issue a direction”. The letter was silent about the allegation that PC Harrington had strangled Mr Demetrio.

A correspondence ensued between the MPS and the IPCC about whether or not it was appropriate for PC Harrington to face gross misconduct charges in respect of his failure to challenge the racial abuse of Mr Demetrio. On 19^th April 2013, the MPS concluded by saying that, if the IPCC’s assessment continued to be that PC Harrington should face a misconduct hearing in that respect, it formally requested the IPCC to make such a direction (under paragraph 27(4)(a) of schedule 3 to the 2002 Act). On 3^rd June 2013, the new Commissioner Jennifer Izekor of the IPCC (who had by this time inherited the matter from Commissioner Franklin) (“Commissioner Izekor”) duly gave that direction to the MPS, also directing that the hearing should be held in public (the “Direction”).

On 25^th June 2013, the IPCC wrote to Mr Demetrio’s solicitors informing them of the Direction that had been made, and indicating the outcome of Mr Demetrio’s other complaints including that the complaint that “[p]olice officers assaulted Mr Demetrio by strangling him … was not upheld”, and saying that it was now in a position to provide Mr Demetrio with a copy of the Final Report.

On 6^th January 2014, Commissioner Izekor wrote to Commander Gibson of the MPS saying that she had attended the panel hearing of PC MacFarlane (one of the other officers present at the incident) and had “become increasingly concerned about the robustness of the IPCC’s investigation into Mr Demetrio’s allegation that PC Harrington strangled him”. She said that, having taken counsel’s advice, she was minded to re-open the investigation into that allegation and invited the MPS’s views. Commissioner Izekor had presumably attended the disciplinary hearing that was held in private under the provisions of paragraph 29(1) of the Police (Conduct) Regulations 2012/2362, which allows the IPCC to attend misconduct proceedings and to make representations.

On 4^th February 2014, Deputy Assistant Commissioner Fiona Taylor of the MPS (“DAC Taylor”) wrote to Commissioner Izekor saying that the investigators’ findings on the point were “demonstrably well-reasoned and evidence based”, so that “I do not think it can be said that the strangulation allegation has not been properly considered”. DAC Taylor contended that the functus officio principle was applicable “on the basis that the IPCC has already made a determination in respect of misconduct matters for the officers concerned, and [had] no power to re-open that determination” unless the earlier determination was quashed.

Finally on 26^th February 2014, Commissioner Izekor issued a decision notice recording her decision to re-open the investigation into the allegation that Mr Demetrio was strangled by PC Harrington (the “Decision”).

On 23^rd May 2014, the Commissioner issued these judicial review proceedings seeking to quash the IPCC’s Decision and an order restraining the IPCC from carrying out any further investigation into the allegation that PC Harrington strangled Mr Demetrio, and a declaration that the IPCC was functus officio in these circumstances.

On 30^th June 2014, Mr Demetrio issued judicial review proceedings seeking to quash the conclusions in the Final Report and the decisions made in reliance on them.

On 20^th November 2014, Sir Stephen Silber granted permission to apply for judicial review in both sets of proceedings and ordered that the hearings be expedited. On 6^th March 2015, the Divisional Court gave its judgment on both applications. It quashed the conclusions contained in the Final Report concerning Mr Demetrio’s allegation that he was strangled in the back of a police van on 11^th August 2011, and declared them to be unlawful. Those orders are not appealed. It also dismissed the Commissioner’s claim for judicial review and declared that the IPCC was entitled to re-open the investigation into the allegation that Mr Demetrio was strangled. It is these conclusions that the Commissioner has appealed before us on the ground that the IPCC was functus officio, permission to bring this appeal having been granted by the Divisional Court itself.

Shortly before the hearing before us, the IPCC informed us that it had on 20^th November 2015 approved the issue of guidance as to the circumstances in which it will re-open an investigation. We were told that the guidance seeks to give effect to the decision of the Divisional Court. In short, the guidance provides that the IPCC will re-open an investigation if it is satisfied that the original investigation or conclusions were flawed in a manner which had a material impact on subsequent decisions, or there was significant new information and a real possibility that that information would have led to different decisions.

The regime established by the 2002 Act for the investigation of complaints against serving police officers is complex. For the purposes of this appeal, it is only necessary to deal with a relatively small part of it. In this case, the IPCC has undertaken the investigation itself; much of the legislation is concerned with other available types of investigation. There are 3 other such types of investigation which may be decided upon by the IPCC, generally for less serious allegations. They are designated by paragraph 15 of schedule 3 to the 2002 Act as follows (a) an investigation by the appropriate authority on its own behalf, (b) an investigation by the appropriate authority under the supervision of the IPCC, and (c) an investigation by the appropriate authority under the management of the IPCC.

The key provision for our purposes is in section 10 of the 2002 Act which provides as follows under the heading “General Functions of the Commission”:-

Section 13 of the 2002 Act gives effect to schedule 3 in relation to the handling of complaints, conduct matters, and death or serious injury (“DSI”) matters. This was a complaint rather than either a conduct matter or a DSI matter. Section 29(6) of the 2002 Act dealing with interpretation provides that “[r]eferences … to the investigation of any complaint … by the [IPCC] itself shall be construed as references to its investigation in accordance with paragraph … 19 of Schedule 3”.

The provisions of schedule 3 to the 2002 Act provide in many places for the IPCC to act as an appellate body. (From now on all paragraph numbers that I mention are to be taken, unless otherwise specified, to refer to those in schedule 3 to the 2002 Act). In the circumstances of this case, however, the IPCC was not acting as an appellate body at any stage, having undertaken the investigation itself. In those circumstances it is not necessary to set out the circumstances in which the IPCC can so act. It is, however, important to note that there are several provisions which provide express powers to review specific decisions that have been made. The Commissioner relies upon the absence of an express power relevant to the situation in this case. The express provisions of schedule 3 include paragraph 15(5) allowing a further determination of the form of investigation to replace an earlier one, paragraph 19B(9) allowing the revision of a severity assessment, and paragraph 27(8) allowing the IPCC to withdraw a direction under paragraph 27(4).

Paragraph 19 makes provisions that are applicable where, as here, the IPCC undertakes the investigation itself. Paragraph 19(2) provides for the designation of the IPCC’s staff to take charge of and assist in the investigation. Paragraphs 19-19E make provision for the process to be followed in undertaking an investigation, but again the details of these paragraphs are not material for our purposes.

Paragraph 20 provides that no criminal or disciplinary proceedings shall be brought in relation to any matter which is the subject of an investigation until a report has been submitted to the IPCC or to the appropriate authority under paragraph 22.

Paragraph 22 provides as follows under the heading “Final reports on investigations: complaints, conduct matters and certain DSI matters”:-

“(1)

This paragraph applies on the completion of an investigation of – (a) a complaint …

(5)

A person designated under paragraph 19 as the person in charge of an investigation by the Commission itself shall submit a report on it to the Commission.”

Paragraph 23 provides as follows under the heading “Action by the Commission in response to an investigation report”:-

“23(1) This paragraph applies where — …

(b)

a report on an investigation carried out by a person designated by the Commission is submitted to it under [paragraph 22(5)].

(2)

On receipt of the report, the Commission —

(a)

if it appears that the appropriate authority has not already been sent a copy of the report, shall send a copy of the report to that authority; …

(d)

shall notify the appropriate authority ... of its determination under paragraph (b) and of any action taken by it under paragraph (c) [concerning notification of the Director of Public Prosecutions]. …

(6)

On receipt of the report, the Commission shall also notify the appropriate authority that it must—

(a)

in accordance with regulations under section 50 or 51 of the 1996 Act, 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 receipt of a notification under sub-paragraph (6) the appropriate authority shall make those determinations and submit a memorandum to the Commission which—

(a)

sets out the determinations the authority has made, and

(b)

if the appropriate authority has decided in relation to any person to whose conduct the investigation related that disciplinary proceedings should not be brought against that person, sets out its reasons for so deciding.

(8)

On receipt of a memorandum under sub-paragraph (7), the Commission shall —

(a)

consider the memorandum and whether the appropriate authority has made the determinations under sub-paragraph (6)(a) that the Commission considers appropriate in respect of the matters dealt with in the report;

(b)

determine, in the light of its consideration of those matters, whether or not to make recommendations under paragraph 27; and

(c)

make such recommendations (if any) under that paragraph as it thinks fit.

(9)

On the making of a determination under sub-paragraph (8)(b) the Commission 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; and (b) in the case of a recordable conduct matter, to every person entitled to be kept properly informed in relation to that matter under that section.

(10)

The notification required by sub-paragraph (9) is one setting out —

(a)

the findings of the report;

(b)

the Commission’s determination under sub-paragraph (8)(b); and

(c)

the action which the appropriate authority is to be recommended to take as a consequence of the determination. …”

Paragraph 27 provides as follows under the heading “Duties with respect to disciplinary proceedings”:-

“27(1) This paragraph applies where, in the case of any investigation, the appropriate authority —

(a)

has given, or is required to give, a notification under paragraph 24(7) of the action it is required to or will, in its discretion, take in relation to the matters dealt with in any report of the investigation; or(b) has submitted, or is required to submit, a memorandum to the Commission under paragraph 23 or 25 setting out the action that it is required to or will, in its discretion, take in relation to those matters.

(2)

Subject to paragraph 20 and to any recommendations or directions under the following provisions of this paragraph, it shall be the duty of the appropriate authority —

(a)

to take the action which has been or is required to be notified or, as the case may be, which is or is required to be set out in the memorandum; and

(b)

in a case where that action consists of or includes the bringing of disciplinary proceedings, to secure that those proceedings, once brought, are proceeded with to a proper conclusion.

(3)

Where this paragraph applies by virtue of sub-paragraph (1)(b), the Commission may make a recommendation to the appropriate authority in respect of any person serving with the police —

(za) that the person has a case to answer in respect of misconduct or gross misconduct or has no case to answer in relation to his conduct to which the investigation related; …

(a)

that disciplinary proceedings of the form specified in the recommendation are brought against that person in respect of his conduct to which the investigation related;

(b)

that any disciplinary proceedings brought against that person are modified so as to deal with such aspects of that conduct as may be so specified;

and it shall be the duty of the appropriate authority to notify the Commission whether it accepts the recommendation and (if it does) to set out in the notification the steps that it is proposing to take to give effect to it. …

(4)

If, after the Commission has made a recommendation under this paragraph, the appropriate authority does not take steps to secure that full effect is given to the recommendation —

(a)

the Commission may direct the appropriate authority to take steps for that purpose; and

(b)

it shall be the duty of the appropriate authority to comply with the direction.

(5)

A direction under sub-paragraph (4) may, to such extent as the Commission thinks fit, set out the steps to be taken by the appropriate authority in order to give effect to the recommendation. …

(8)

The Commission may at any time withdraw a direction given under this paragraph; and sub-paragraph (7) shall not impose any obligation in relation to any time after the withdrawal of the direction. …”

The Divisional Court’s reasoning on the question of whether or not the IPCC was functus officio can be summarised as follows:-

When the appeal was called on, we asked counsel why we should hear it, bearing in mind that the questions raised were academic, now that the investigation had been re-opened following the quashing of the conclusions it reached in relation the strangling allegation. We drew counsel’s attention to the judgment of Moore-Bick LJ in Re X (Court of Protection Practice) [2015] EWCA Civ 599 at paragraphs 157-166. All the parties represented argued that we should hear the appeal. We reserved our decision on whether we should do so.

In my judgment, we are justified in hearing this appeal, because this is an unusual case in which two public authorities have a fundamental disagreement about an important point of public law which will affect their future conduct of investigations into police misconduct. It is therefore in the public interest for the point to be resolved at Court of Appeal level.

The Commissioner contends that the Divisional Court ought to have held that the IPCC had no power to re-open its decision not to recommend or direct disciplinary action, because it was functus officio, for essentially three reasons adumbrated in its grounds of appeal:-

In oral argument, the court asked Mr Clive Sheldon QC, counsel for the Commissioner, to identify the precise point at which the IPCC had determined, under paragraph 23(8)(b), not to make recommendations under paragraph 27(3) in respect of the pursuit of the strangling allegation against PC Harrington. Mr Sheldon relied on paragraph 58 of the Divisional Court’s judgment which he said had determined that the IPCC had made a decision not to recommend or direct disciplinary action. In any event, he submitted that the IPCC must have taken the final decision not to make a paragraph 27(3) recommendation between the letters of the 23^rd January and 22^nd February 2013 that I have referred to above.

More generally, Mr Sheldon QC placed reliance on the dictum of Simon Brown LJ in R. v. Parliamentary Commissioner for Administration Ex p Dyer [1994] 1 WLR 621, where the Divisional Court was considering the Parliamentary Commissioner’s power to re-open his investigation of a complaint under sections 5, 7 and 10 of the Parliamentary Commissioner Act 1967. He held that the Commissioner was clearly functus officio once his report had been sent to the MP concerned, and could not re-open the investigation without a further referral being made.

Mr Jason Beer QC, leading counsel for the IPCC, submitted it was not important whether there was a final decision in this case, but that the court should determine when the IPCC becomes functus officio. His submission was that the Divisional Court was right to say (as it effectively did at paragraph 53 of its judgment) that the IPCC only finally discharges its functions when any and all criminal and disciplinary proceedings arising from the complaint have been finally concluded. Mr Beer submitted that the functus officio principle does not apply to the report of an investigation at least until that stage. He relied upon the fact that the IPCC carries the responsibility for ensuring that such proceedings are carried forward appropriately, and that reinvestigation is often required as the proceedings progress. There is no investigating police force apart from the IPCC in many such cases. He relied by analogy on paragraph 48 of the judgment of Thomas LJ in R v. Killick [2012] 1 Cr. App. R. 10 where he held that it would be disproportionate for a public authority in the position of the CPS not to have a system of review without recourse to court proceedings.

It is, in my judgment, important to keep in mind that the order of the Divisional Court that is under appeal is its declaration that the IPCC was (in the circumstances of this case) lawfully entitled to re-open the investigation into the allegation that Mr Demetrio was strangled. It would, therefore, be going beyond the bounds of the case for us to make any general determination, as the parties suggested we should, as to when and in what circumstances the IPCC will generally become functus officio under the regime established by the 2002 Act.

I think that one should first identify the nature of the functions of the IPCC established by the 2002 Act. For this purpose, the starting point must be section 10 of the 2002 Act, which, though drafted somewhat mercurially, makes the IPCC’s responsibilities clear. They are defined in section 10(2) as the handling of complaints against the police, the recording of conduct matters and DSI matters, and the manner in which complaints and such conduct and DSI matters are investigated or otherwise handled and dealt with. The IPCC’s functions in relations to those matters are defined by section 10(1). They are, broadly summarised, to secure that it maintains and the police maintain suitable, efficient and effective arrangements, to keep those arrangements under review, and to secure that public confidence is established and maintained in relation to those arrangements. The IPCC placed special reliance on the IPCC’s ancillary power under section 10(6) to “do anything which appears to it to be calculated to facilitate, or is incidental or conducive to, the carrying out of its functions”. It does not seem to me that this sub-section does any more than allow the IPCC to facilitate the process laid down by schedule 3. There was an argument here and below about the meaning of the words “[s]ubject to the other provisions of this Part” that qualify the section 10(6) power, but I am not sure that this can much affect the proper interpretation of schedule 3. Plainly there is no express power in schedule 3 to re-open an investigation. I cannot see that one can be implied simply by the operation of section 10(6).

In considering the regime under schedule 3, it is to be borne in mind that it applies to complaints, but also to matters where there is no complaint in the case of conduct matters and DSI matters. In such cases, a fresh complaint cannot resolve an inadequacy contained in the IPCC’s report, because there will be no complainant. The only possible solution in many cases, if the Commissioner were right, would be for the IPCC to itself apply to the court to quash its own findings.

It is also, I think, to be borne in mind that schedule 3 gives the IPCC ultimate control over the progress of an investigation and any disciplinary and criminal proceedings that follow. In relation to complaints, they cannot properly be regarded as having been resolved until any such proceedings as are agreed or directed by the IPCC have been concluded. For example, as was mentioned in the course of argument, it might emerge in the course of such proceedings that the officer thought to have been responsible for the impugned act was not responsible for it, but that there was evidence that another officer was implicated. In such a case, it would be inconvenient, to say the least, if the IPCC could not re-investigate that other officer, despite having previously determined that he/she had no case to answer.

As it seems to me, schedule 3 seeks to set out a regime for the holistic handling of police complaint and misconduct matters from end to end. There are, of course, a series of intermediate stages in the handling of such matters, but the process should not be regarded as a number of self-contained steps that must be undertaken without regard to the overall statutory objective which is to handle complaints and deal with conduct and DSI matters efficiently, effectively and with public confidence. It is, in my judgment, against that background that the Commissioner’s submissions need to be evaluated.

My first impression was that this question turned upon whether or not the IPCC had made a final decision under paragraph 23(8)(b) not to make any recommendation under paragraph 27(3) that proceedings should be brought against PC Harrington. Paragraph 23(8)(b) does, of course, expressly provide that on receipt of the MPS’s Memorandum, the IPCC “shall … determine … whether or not to make recommendations under paragraph 27” (emphasis added). But in my judgment, Mr Sheldon and the Divisional Court were right to say that it was obvious that the IPCC had decided before it wrote its letter of 22^nd February 2013 not to make any recommendation that proceedings should be brought against PC Harrington in respect of the strangling allegation. The IPCC was at that stage more concerned about the allegations concerning PC Harrington’s response to the alleged racial abuse. And it plainly had no reason to mention the strangling allegation in its 22^nd February 2013 letter since the MPS had concurred with the conclusion in the Final Report that PC Harrington had no case to answer in respect of it. As it seems to me, however, the central question is not whether the IPCC had made a decision at that stage, or even whether that decision would itself have been judicially reviewable, but it is whether any such decision made in the course of the handling of the matter following the report of the investigation was irrevocable. In other words, was it open to the IPCC to re-open or review the decision, and to re-open the investigation when Commissioner Izekor decided to do so?

For my part, I am not certain that this question is truly one of functus officio, anyway in the circumstances of this case. I say that because I cannot see that the IPCC can properly be regarded as functus officio at a time when it was continuing the functions I have described in relations to Mr Demetrio’s complaints. The complaints had not been finally resolved when Commissioner Izekor made her Decision. It is only if one were to salami slice the process of complaint handling and to divide up the complaints into a number of individual complaints against a number of individual officers that one could regard a sub-division of the complaint, namely that Mr Demetrio had been strangled by PC Harrington, as even arguably concluded. Mr Demetrio made 4 substantive complaints, but several officers were involved as the objects of them. Mr Demetrio himself could not know precisely who had done what to him, or who was responsible for what aspects of the misconduct he alleged.

In these circumstances, I do not see how Mr Demetrio can be regarded as having made a discrete individual complaint that PC Harrington had strangled him that was finally resolved by the time the 22^nd February 2013 letter was written. His complaint form simply says that “he was strangled by an officer who he describes as the driver for 15 seconds and long enough for him to panic for breath”. But the form also makes other allegations against the officers that arrested him.

Mr Sheldon places particular reliance on the fact that the IPCC’s 25^th June 2013 letter to Mr Demetrio’s solicitors purported to inform him of the outcome of various complaints, and said that the strangling complaint was “not upheld”. But I do not think that that letter, written as it was to the complainant, not to the MPS, can make the IPCC’s decision not to recommend proceedings under paragraph 27(3) irrevocable. Nor do I think that the desirability of finality for the individual officer concerned can make the decision irrevocable. The officer is the object of the complaint, and the IPCC exists, as I have said, to promote public confidence in the complaints and misconduct process. Of course, finality from the police officer’s point of view is highly desirable, but it cannot dictate a requirement that the process is dissected into individual stages which he is justified as regarding as conclusive and irrevocable.

In this case, the IPCC’s handling of Mr Demetrio’s complaint under schedule 3 was ongoing when it decided not to recommend that proceedings be brought against PC Harrington in respect of the strangling allegation. The complaint was not resolved or concluded, and the IPCC’s functions in respect of it were far from over. One only has to consider the definition of the term functus officio adopted by the Divisional Court to see that the IPCC cannot have been so regarded as a result of its decision under paragraph 23(8)(b). The definition is that “a judicial, ministerial or administrative actor has performed a function in circumstances where there is no power to revoke or modify it”. Before one comes to consider whether there is a power to revoke or modify the function, the actor must have performed it. What function could it properly be said the IPCC had performed? Its relevant function was to handle Mr Demetrio’s complaints. That function was still in progress. No help can be gained from the decision in Dyer supra where the Parliamentary Commissioner’s quite different function had indeed been concluded.

There is, however, rather more force in Mr Sheldon’s submission that schedule 3 contains express provisions for review in a number of cases, so cannot be taken to have intended the IPCC to have such a power where none is expressly provided for. But I do not think that can be sufficient to outweigh the clear definition of the IPCC’s functions and to allow for an interpretation of the steps in schedule 3 that makes every one finally and irrevocably concluded without the possibility of review for good cause if such a course is later shown to be desirable in the public interest. I do not see how it can be desirable or appropriate for the IPCC to be ‘stuck with’ a questionable decision until, at least, the entire handling of the complaint has been concluded. I would not want to comment in the context of this case on when that stage would be reached. I would also not wish to delineate the precise circumstances in which it would be appropriate for the IPCC to re-open an investigation or a decision not to recommend proceedings. Suffice it to say that, as the Divisional Court’s decision to quash the relevant findings of the investigation makes clear, there was an overwhelming basis in this case for the IPCC to decide to do so.

Finally, I should mention the analogy drawn by the Divisional Court and by the IPCC with prosecuting decisions made by the CPS. In my judgment, whilst the analogy at least demonstrates that it is desirable to allow a body charged with deciding whether proceedings should be brought to change its mind in the course of its processes for good cause, the analogy is not entirely an apt one. The CPS is governed by different legislative provisions, and I would prefer to confine the decision in this case to the regime established by the 2002 Act for the handling of complaints, conduct matters and DSI matters.

In closing on this point I should say that I entirely agree with the Divisional Court that any decision to re-open an investigation will be subject to the supervisory jurisdiction of the court, and that in practical terms there would need to be a compelling reason to re-open.

For the reasons I have sought to give, I would accept that this appeal should be heard and determined notwithstanding that its outcome has been rendered academic by the quashing of the conclusions of the Final Report insofar as they concerned Mr Demetrio’s allegation that he was strangled in the back of a police van on 11^th August 2011.

I would, however, for the reasons I have given, dismiss the substantive appeal against the Divisional Court’s declaration that the IPCC was, in the circumstances of this case, lawfully entitled to make the Decision to re-open the investigation into the allegation that Mr Demetrio was strangled by police. For the avoidance of doubt, I would make clear that in my judgment the IPCC was also entitled in the circumstances of this case to review its decision made under paragraph 23(8)(b) of schedule 3 to the 2002 Act prior to 22^nd February 2013 not to make any recommendation under paragraph 27(3) to bring proceedings against PC Harrington in respect of the strangling allegation.

I agree.

I also agree.