AB, R (On the Application Of) v West Yorkshire Police

By permission of Richard Clayton QC, sitting as a Deputy High Court Judge, which was granted, together with an extension of time, on 16 October 2015, the Claimant seeks judicial review of the Defendant’s decision, made on 31 March 2015, not to uphold his appeal, made under the provisions of paragraph 25 Schedule 3 to the Police Reform Act 2002, as amended (“the 2002 Act”), against the adequacy and findings of an investigation into a complaint against police officers made by him on 29 August 2014 in relation to events on 11 December 2012. The complaint included the unlawful use of force, failure to follow correct arrest procedures and the fabrication of evidence.

The issue at the heart of the Claimant’s case is the alleged failure of the Defendant, either as part of the investigation or on appeal, to find that the Claimant’s complaint was one which satisfied the test for the application of “special requirements” as provided in paragraph 19B(1) of Schedule 3 to the 2002 Act and associated Regulations and statutory guidance.

It is asserted that the case concerns some important aspects of the police complaints scheme, and how it and the accompanying appeal scheme should be conducted by the police to ensure the fair and proportionate investigation of serious complaints.

On behalf of the Defendant it is submitted, in summary, that:

Against that background, the Claimant submits that the following questions arise:

The Claimant submits that the answer to each of the first three questions should be “yes”; that the answer to the fourth should be “no”; and that thus his claim should succeed. In that event, he submits that the decision not to uphold his appeal should be quashed; that there should be a declaration that this is a case that satisfies the test for “special requirements”, and that his case should be reconsidered in that light.

On 11 December 2012 the Claimant, then aged 19, of previous good character and living in London, attended an evening kick-off Capital One Cup quarter final football match between Bradford City FC and Arsenal FC. The match took place at the Valley Parade stadium in Bradford. There was an advertising hoarding around the pitch, and a track between that hoarding and the stands.

When the match ended, following a penalty shoot-out, in victory for Bradford City FC, some of the home supporters ran onto the pitch. During the events that followed, and putting it neutrally, the Claimant was first detained by DC Irvine (an officer in the West Yorkshire Police, who was then the Football Intelligence Officer for Bradford City FC, and who is referred to in a number of the documents as PC Irvine) and then handcuffed and further detained by two other officers, before being taken to Trafalgar House Police Station in Bradford, where his detention was authorised by the Custody Officer PS Daniels.

The Custody Record in relation to the Claimant variously records that:

Prior to midnight on 11 December 2012 both DC Irvine and PC Walters (a Metropolitan Police Officer who was the Football Intelligence Officer for Arsenal FC) made witness statements in relation to the relevant events at the match.

DC Irvine stated that he had been on duty at the match, in full uniform, working as a spotter with PC Walters and another Metropolitan Police Officer PC Dawson – i.e. monitoring the crowd, intelligence gathering and supporting the club stewards. After Bradford had won the penalty shoot-out, there had been a pitch invasion by Bradford fans – a number of whom had behaved provocatively towards Arsenal fans in the Midland Road stand. Having pushed away one particularly provocative Bradford supporter, he had seen the Claimant with a number of other males standing on an advertising hording at the Midland Road end. The Claimant was shouting and swearing extremely loudly at the Bradford supporters and foaming at the mouth. DC Irvine had told him to get down, which the Claimant did, but he had continued to shout and swear – even after DC Irvine had told him to stop and go home or he would be arrested. The Claimant had then shouted at Bradford City supporters: “Come on then you fucking cunts”. At that, DC Irvine said that he had taken hold of the Claimant to try to remove him from the stand. The Claimant was shouting “Fuck off” and others were trying to help him. At that point other officers had arrived and he had moved the Claimant from the stand. He had then told the Claimant that he was under arrest for an offence contrary to s.5 of the Public Order Act and had cautioned him. The Claimant had not been handcuffed by him and had been handed over to other officers to be taken to Trafalgar House Police Station.

PC Walters, in his statement, broadly confirmed that account.

The Police Niche Occurrence Form in relation to the Claimant recorded, amongst other things, that:

DC Irvine completed the Police Report to the CPS on 13 December 2012.

The Claimant duly attended at the Magistrates Court on 27 December 2012, where he completed the relevant parts of the Court’s “Preparation for trial” form to the following effect:

In the result, the case was adjourned for trial until 28 February 2013 and thereafter until 2 September 2013.

On 19 August 2013 the solicitors who by then represented the Claimant in the proceedings in the Magistrates Court contacted the CPS and enquired whether the Police would be willing to give the Claimant a Fixed Penalty Notice if he admitted his guilt. That was accepted, and on 2 September 2013 at the Magistrates’ Court the case was discharged without trial as a result of the Claimant’s admission and acceptance (he says reluctantly on legal advice) of a fixed penalty for the offence.

Some five months later, on 16 January 2014, different solicitors (Tuckers) wrote on the Claimant’s behalf to the Legal Service Department of West Yorkshire Police, notifying it of a potential civil claim and requesting that 7 documents be preserved.

Seven months after that, on 29 August 2014, the Claimant signed a 6 page witness statement which, by way of lodging the Claimant’s complaint, was sent to the Defendant by Tuckers that same day. In the statement the Claimant variously asserted that:

At the end of the statement the Claimant said this:

“I wish to make the following complaints. I want them all to be the subject of a formal investigation:

a)

I was unlawfully arrested and detained

b)

I was detained excessively in police custody for 9 hours. This was a disproportionate interference of my rights to liberty and security.

c)

I was not informed by the officer who searched me at the scene why he wanted to search me or the lawful basis for searching me. This was an abuse of power.

d)

I was not informed that I was under arrest or grounds for my arrest as soon as reasonably practicable, contrary to Section 28 PACE. I did not learn the reasons for my arrest until I arrived at Trafalgar House Police Station.

e)

I was not told I was under arrest or provided with any reason for my arrest before I was physically detained at the scene or prior to the officers putting handcuffs on me. This was unlawful and an abuse of power.

f)

Unlawful force………….. was repeatedly used against me by DC Irvine and the officers who assisted / participated in my detention at the scene. Each physical touching of me requires an explanation and should be justified in law by the officer[s].

g)

The decision to handcuff me prior to me being told I was under arrest was made without any lawful excuse or objective ground. This intentional application of force was an assault.

h)

DC Irvine’s conduct was contrary to what is expected from a police officer, in particular:

i)

He behaved in a way which caused me to fear for my personal safety.

ii)

He used abusive and insulting words…… towards me.

i)

I was not permitted access to a solicitor despite me requesting for a solicitor. This was a breach of s.58 PACE 1984 and paragraph 6.5 Code C of PACE 1984.

j)

I was not given the opportunity to inform someone of my whereabouts. This was a breach of s.56 PACE 1984 and paragraph 5.1 of Code C of PACE 1984.

k)

DC Irvine and his colleagues made a number of false allegations in sworn statements against me. This resulted in me being charged and prosecuted for a Section 5 Public Order Act offence. By way of example, it was dishonestly alleged that:

i)

I was shouting extremely loudly and foaming at the mouth. I was not.

ii)

I was shouting and snarling my teeth towards the Bradford supporters on the pitch. I was not.

iii)

I was standing on the advertising board and shouting “You fucking cunts, fuck off”. I did not stand or place my foot on the advertising board at any time and I did not shout or use these words.

iv)

I shouted “Come on then you fucking cunts” with my arms outstretched towards the Bradford City supporters. I did not shout or use these words towards any Bradford supporter. Nor did I have my arms outstretched towards any of the Bradford city fans.

v)

I shouted “Fuck off” when DC Irvine attempted to remove me from the stand. I did not shout this or anything similar at DC Irvine.

vi)

I was told several times to calm down, to stop swearing and to go home or I would be arrested but I ignored these warnings. I was never warned or cautioned by any police officer about my conduct at the scene.

vii)

I resisted arrest. I did not.

viii)

I was persistently shouting and swearing at DC Irvine. I did not swear or shout at DC Irvine at any time.”

Before turning to the investigation of those complaints and thereafter to the appeal, it is necessary first to set out the relevant law and guidance, and then to summarise the evidence of the Defendant’s witness, Detective Superintendent Khan, as to the process used by the West Yorkshire Police in dealing with complaints.

The source materials

These are found in the combination of:

Counsel were agreed that, for present purposes, there was no significant difference between the May 2015 versions of the IPCC Statutory Guidance and the Home Office Guidance (to various paragraphs of both of which I refer below) and the versions of them that were in force at the material time, which had to be amended, in particular as to the content of reports at the conclusion of investigations, in the light of the decision of the Court of Appeal in Regina (Chief Constable of the West Yorkshire Police) v Independent Police Complaints Commission [2014] EWCA Civ 1367 – which was concerned with the nature of the conclusions that could lawfully be reached in a report by the IPCC at the conclusion of an investigation by them, certified as being subject to special requirements, of a complaint about the conduct of a police officer.

The IPCC

Sections 9 and 10 of the 2002 Act provide for the creation and general functions of the IPCC. In section 12 “complaint” is defined as including any complaint about the conduct of a person serving with the police which is made (whether in writing or otherwise) by a member of the public who claims to have been adversely affected by the conduct. Section 13 provides that Schedule 3 to the Act, which makes provision for the handling of complaints and for the carrying out of investigations, is to have effect in all cases save, by virtue of section 14, complaints relating to Chief Officers or to those carrying out the function of a Chief Officer. Section 22 gives the IPCC the power to issue guidance in relation, amongst other things, to the recording and handling of complaints and, by virtue of section 22(7), every person to whom such guidance is issued is under a duty to have regard to it. That is reinforced in paragraph 1.7 of the IPCC Statutory Guidance which makes clear that if the Guidance is not followed there needs to be a sound rationale for departing from it, or there will be a risk of legal challenge.

Paragraph 1.16 of the IPCC Statutory Guidance provides that:

“The policing landscape and the police complaints system underwent major change in 2012. Amendments made to the police complaints system by the Government in the Police Reform and Social Responsibility Act 2011 were designed to streamline and remove unnecessary bureaucracy from the system, ensure that complaints are handled at the lowest appropriate level, and focus more on putting right the complaint made by a member of the public.”

Paragraph 1.26 of the IPCC Statutory Guidance emphasises the importance of complaints and other matters resulting in proper outcomes. Whilst recognising that the nature of a proper outcome is entirely dependent on the facts and circumstances of any individual case, the Guidance underlines that any proper outcome will take into account the initial complaint or allegation (where there is one) and the views of the complainant or interested person; will be based upon the facts established; and will be appropriate to the seriousness of the circumstances.

The initial handling of a complaint

If the complaint is made to a Chief Officer, they must first decide whether they are the appropriate authority – see paragraph 2 of Schedule 3 to the 2002 Act. They must also, as soon as practicable, take all such steps as appear appropriate to obtain and preserve evidence relating to the conduct complained of – see paragraph 1(2)-(4) of Schedule 3 to the 2002 Act.

Paragraph 1.13 of the IPCC Statutory Guidance includes a flow chart which provides an overview of the initial stages of handling a complaint that follow. In particular, consideration of whether the complaint is exempt from recording (see paragraph 2(8) of Schedule 3 to the 2002 Act and Regulation 3(2)-(4) of the Complaints Regulations which indicate, for example, that there is no requirement to record a complaint if it is vexatious, oppressive or otherwise an abuse of the process for dealing with complaints, or is repetitious or fanciful [i.e. no person could lend any credence to it]. In the event of non-recording an appeal against that can be mounted to the IPCC – see e.g. paragraph 3(3) of Schedule 3 to the 2002 Act); if not, the fact that it must be recorded and consideration given to whether it must or should be referred to the IPCC; if not, whether it is suitable for local resolution (because the conduct alleged, even if proved, would not justify the bringing of either disciplinary or criminal proceedings and would not involve the infringement of a person’s rights under Article 2 or 3 of the ECHR – see paragraphs 6(7)&(8) and 8 of Schedule 3 to the 2002 Act) ; and if not, that it must proceed to a local investigation.

By paragraph 29 of Schedule 3 to the 2002 Act, and Regulation 3 of the Conduct Regulations, disciplinary proceedings are defined as being (subject to certain exceptions) any proceedings under those Regulations or any appeal therefrom; misconduct is defined as a breach of the Standards of Professional Behaviour; and gross misconduct is defined as a breach of the Standards of Professional Behaviour so serious that dismissal would be justified.

The Standards of Professional Behaviour are set out in Schedule 2 to the Conduct Regulations and include provisions in relation to honesty and integrity; authority respect and courtesy; the use of force; orders and instructions; duties and responsibilities; and discreditable conduct.

The IPCC’s Recording Guidance provides a Table of Definitions using alphabetical categories from A-Y to assist those recording allegations about police conduct linked to complaint cases, using non-exhaustive examples. Thus Category C includes the use of more than reasonable force under “use of force”; Category E includes unlawful arrest under “authority, respect and courtesy”, “equality & diversity” and “use of force”; Category G includes perjury and making false statements under “honesty and integrity”; and Category M includes breaches of PACE codes at the Police Station under “orders and instructions” and “duties and responsibilities”.

The investigation

It is clear that, in practice, all but the most serious complaints are investigated by the relevant local police force, rather than by the IPCC itself. In this case there is no dispute that the Defendant was the appropriate authority to investigate the Claimant’s complaints and that, by virtue of paragraph 16(3) of Schedule 3 to the 2002 Act, it was his duty to appoint a police officer to investigate them.

Paragraph 9.2 of the IPCC Statutory Guidance provides that:

“The purpose of an investigation is to establish the facts behind a complaint… and reach conclusions. This includes, where applicable, whether, in respect of those subject to investigation, there is a case to answer for misconduct or gross misconduct or unsatisfactory performance. It is also an opportunity to ascertain whether there is any learning for the force arising from the incident itself or the way it was handled. An investigation should be fair reasonable and objective and based on evidence. What is reasonable in each case will depend on the particular circumstances.”

Paragraphs 2.91 & 2.92 of the Home Office Guidance provide that:

“The investigation into the complaint must be proportionate having regard to the nature of the allegation and any likely outcome (see also IPCC statutory guidance).

An investigation into a complaint is not automatically an investigation into whether a police officer or a special constable has breached the standards of professional behaviour but rather an investigation into the circumstances that led to the dissatisfaction being expressed by the complainant of the actions of one or more persons serving with the police.”

As to the scope of the investigation, paragraph 9.14 of the IPCC Statutory Guidance provides that:

“Investigators should adopt a proportional approach in any investigation in order to ensure, in the public interest, investigative resources are focussed and employed efficiently and fairly. However the use of ‘proportionate’ is not another way of describing an investigation as limited or small scale. It must be borne in mind that the adequacy of the investigation may be scrutinised when any appeal is considered by the IPCC or the Chief Officer. In order to decide what is a proportionate approach to investigating a complaint, it may be useful to discuss with the complainant what are his or her key points to ensure that these are covered. Every investigation needs to be proportionate to:

•

The seriousness of the matter being investigated;

•

The prospects of a criminal trial, misconduct proceedings or unsatisfactory performance proceedings;

•

The public interest;

•

The investigation producing learning for the individual or organisation.”

By virtue of paragraph 9.15 of the IPCC Statutory Guidance, when determining the scope of an investigation and the methods to be used, investigators are required to take into account the need to establish the facts in all cases; the seriousness of the allegation; whether Articles 2 or 3 of the ECHR are engaged; any more general cause of a complainant’s dissatisfaction; whether the facts are in dispute; how long ago the incident took place and whether the evidence is still likely to be available; what the learning investigation might yield for local or national policy and individual learning for persons serving with the police; and actual or potential public knowledge of, and concern about, the case.

Paragraph 9.16 of the same Guidance makes clear that when further investigation is no longer proportionate to the likely outcome (for example, because no additional evidence is likely to emerge) it should be concluded.

Paragraph 9.13 of the IPCC Statutory Guidance provides that:

“Where the investigator seeks an account from a person who is the subject of investigation, there must be an auditable record of it. The person could be invited to sign handwritten notes or a pocket book entry to confirm the accuracy of a record of a conversation. However, this is the minimum. In many cases more would be required, such as an account by email, letter, statement, or (recorded) interview. If an investigation is subject to special requirements (see paragraphs 9.29 to 9.34) or is an investigation into a recordable conduct matter, a notice of investigation will in most cases have been served (see paragraph 9.39) and a statement under an appropriate caution should be taken or requested from the person to whose conduct the investigation relates or he or she should be required to attend an interview, which will be recorded ….”.

Paragraph 2.168 of the Home Office Guidance recognises that it will not always be necessary to conduct a formal interview with the police officer subject to the investigation. It makes clear that in some cases, particularly those involving low level misconduct, it may be more appropriate, proportionate and timely to request a written account from the officer.

Special requirements

Paragraph 19B of Schedule 3 to the 2002 Act applies, by virtue of paragraph 19A, to the investigation of complaints where the person concerned is a member of a police force or a special constable. It provides, in so far as relevant, as follows:

“(1)

If, during the course of an investigation of a complaint, it appears to the person investigating that there is an indication that a person to whose conduct the investigation relates may have –

(a)

committed a criminal offence, or

(b)

behaved in a manner which would justify the bringing of disciplinary proceedings,

the person investigating must certify the investigation as one subject to special requirements.

(2)

If the person investigating a complaint certifies the investigation as one subject to special requirements, the person must, as soon as reasonably practicable after doing so, make a severity assessment in relation to the conduct of the person concerned, to which the investigation relates.

…

(4)

For the purposes of this paragraph “severity assessment”, in relation to conduct means an assessment as to –

(a)

whether the conduct, if proved, would amount to misconduct or gross misconduct, and

(b)

if the conduct were to become to subject of disciplinary proceedings, the form which those proceedings would be likely to take.

(5)

An assessment under this paragraph may only be made after consultation with the appropriate authority.

(6)

On completing an assessment under this paragraph, the person investigating the person or matter must give a notification to the person concerned that complies with sub-paragraph 7.

(7)

The notification must –

(a)

give the prescribed information about the results of the assessment;

(b)

give the prescribed information about the effect of paragraph 19C and of regulations under 19D.

(c)

set out the prescribed the time limits for providing the person investigating the complaint or matter with relevant statements and relevant documents for the purposes of paragraph 19C(2);

(d)

give such other information as may be prescribed.

(8)

Sub-paragraph (6) does not apply for so long as the person investigating the complaint or matter considers that the giving of notice might prejudice –

(a)

the investigation, or –

(b)

any other investigation (including, in particular, a criminal investigation).

(9)

Where the person investigating a complaint or matter has made a severity assessment and considers it appropriate, the person may revise the assessment.

(10)

On revising a severity assessment, the person investigating the complaint or matter must notify the prescribed information about the revised assessment to the person concerned.”

Paragraphs 9.30 – 9.33 of the IPCC Statutory Guidance provide, in relation to paragraph 19B of the 2002 Act, that:

“9.30

This provision means that throughout the course of any investigation, the investigator must consider whether such an indication exists even if he or she initially decided it did not.

9.31

Disciplinary Proceedings for the purposes of special requirements mean any proceedings under the Police (Conduct) Regulations 2012.

9.32

There is an ‘indication’ where the investigator, having considered the circumstances and evidence available at the time, is of the view that the officer, or member of staff, may have committed a criminal offence or behaved in a manner justifying the bringing of disciplinary proceedings. A bare assertion of misconduct or criminality, particularly if it is undermined by other material or inherently unlikely, may not be sufficient. For example, a complaint that an officer is “harassing” someone without more is unlikely to be sufficient.

9.33

The investigator must set out the reasoning behind his or her decision as to whether an investigation should be subject to special requirements.”

See also, in this regard paragraphs 2.94-2.100 of the Home Office Guidance. In particular, paragraph 2.95 provides that:

“Where the person investigating does not consider that the conduct subject of the investigation either amounts to a criminal offence or (even if proven or admitted) would (in the investigator’s judgement) be referred to a misconduct meeting or hearing, the matter will not be subject of the special requirements and no Regulation 16 (Complaint Regulations) Notice be served on the police officer concerned and no severity assessment will be required. If the person investigating the complaint does certify the investigation as one subject of special requirements, the investigator must, as soon as is reasonably practicable after doing so, make a severity assessment in relation to the conduct…”

Guidance in relation to the making of severity assessments is provided, in particular, in paragraph 9.36 of the IPCC Statutory Guidance – which requires the investigator to make the assessment on the basis of what would happen if the conduct was proved (rather than involving any consideration of the likelihood of the conduct being proven).

Paragraph 2.131 of the Home Office Guidance provides that:

“In making an assessment of conduct, the starting point should be the circumstances and context of the allegation, taking into account the extent of known information and evidence that is relevant to the allegation. The assessment should then be forward looking by considering the nature and weight of the evidence that might be obtained, as well as to the extent that it is relevant and proportionate to seek and obtain such evidence.”

Regulation 16(1) of the Complaints Regulations prescribes in detail the content of the written notice that must then be given to the person concerned, and paragraphs 2.152-2.158 of the Home Office Guidance make clear, amongst other things, that the purpose of the notice is to inform the officer of various matters (including the fact that they are under caution and that they may, within 10 working days of receipt of the notice, provide a written or oral response to the matter under investigation); and that the notice must clearly describe in unambiguous language the particulars of the conduct that it is alleged fell below the standards expected of a police officer.

Regulation 17 of the Complaints Regulations provides that where the person concerned is a police officer he may choose a police officer, a police staff member, or a person nominated by his staff association (who is not involved in the matter) to act as his police friend.

Regulation 19 of the Complaints Regulations makes provision as to the making of arrangements for the interview of the person who is being investigated and for the attendance of their police friend.

Reports & decisions

Section 11 of the IPCC Statutory Guidance covers what the investigation report should contain; how it should be written; and the action that an appropriate authority should take once a report has been received. Paragraph 11.2 emphasises that the report is an important document. Paragraphs 11.10 to 11.14 and the tables in paragraphs 11.38 & 11.41 deal, in accordance with Regina (Chief Constable of the West Yorkshire Police) v Independent Police Complaints Commission (above), with how the investigator should approach the reaching of conclusions and the potential findings that are available.

In reaching conclusions, investigators in all investigations are required to apply the balance of probabilities standard of proof, which is a single unvarying standard, and in deciding whether it is more likely than not that something occurred, regard should be had to all the available evidence and the weight attached to it, including consideration of the extent to which that occurrence may be inherently probable or improbable – see paragraph 11.12 of the IPCC Statutory Guidance.

Paragraph 11.21 of the same Guidance underlines that, in the case of an investigation into a complaint that is not the subject of special requirements, there will be no decision to make as to whether there is a case to answer for misconduct or gross misconduct, and that therefore, subject to certain exceptions, the report should state whether the complaint should be upheld or not upheld.

Paragraphs 11.14 and 11.27 of the IPCC Statutory Guidance also underline that a decision whether or not to uphold a complaint should only be made by an investigator where the investigation is not subject to special requirements, and that (in a local investigation) it is for the appropriate authority (i.e. the chief officer or the person deputed by him) to reach the final decision as to whether to uphold a complaint.

Paragraph 11.34 of the IPCC Statutory Guidance deals with the fact that no finding of misconduct or gross misconduct can be made unless there been a breach of the Standards of Professional Behaviour; and that gross misconduct should be considered first.

Paragraph 11.20 of the IPCC Statutory Guidance indicates that, where relevant, it may also be appropriate to explain in the findings of the report why the investigation did not become subject to special requirements, and states that that may be particularly useful where the original complaint did make allegations of individual misconduct.

As to complaints about lawfulness, paragraph 11.17 of the IPCC Statutory Guidance provides that:

“A complaint can be about the lawfulness of police officer conduct (for example the making of an arrest is both an ‘act’ and a ‘decision’ and falls within the definition of ‘conduct’). If there is a critical need to offer a view as to the lawfulness of conduct it must be couched in the language of an indication of opinion on the matter. In relation to complaint investigations concerning lawfulness that have not become subject to special requirements, an investigator can decide whether to uphold, or not uphold, a complaint, providing that the report makes clear that no final determination is being reached on lawfulness.”

As to investigations that are certified as being subject to special requirements, paragraph 20 of the Complaints Regulations requires that the investigator’s report provides an accurate summary of the evidence; attaches or refers to any relevant documents; and indicates 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.

Paragraph 11.13 of the IPCC Statutory Guidance and paragraph 2.106 of the Home Office Guidance make clear, in combination, that the investigator should evaluate the evidence and indicate whether, in their opinion, there is a case to answer; that often investigators are faced with conflicting accounts from, for example a complainant and a police officer; that sometimes an account is inherently implausible or is undermined by other evidence, but in other cases that is not so and it is a case of one person’s word against another – which is often the case in court proceedings and does not mean that there is no case to answer.

The case to answer test is set out in paragraph 11.31 of the same Guidance, namely that:

“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”.

Appeals

As to appeals in relation to an investigation, paragraph 25 of Schedule 3 to the 2002 Act provides, in so far as relevant, that:

“(1)

This paragraph applies where a complaint has been subjected to-

(a)

an investigation by the appropriate authority on its own behalf;…

...

(2)

The complainant shall have the following rights of appeal to the relevant appeal body-

(a)

a right of appeal on the grounds that he has not been provided with adequate information-

(i)

about the findings of the investigation; or

(ii)

about any determination of the appropriate authority relating to the taking (or not taking) of action in respect of any matters dealt with in the report on the investigation;

(b)

a right to appeal against the findings of the investigation;

(ba) a right of appeal against any determination by the appropriate authority that a person to whose conduct the investigation related has a case to answer in respect of misconduct or gross misconduct or has no case to answer or that such a person’s performance is, or is not, unsatisfactory

(c)

a right of appeal against any determination by the appropriate authority relating to the taking (or not taking) of action in respect of any matters dealt with in the report; and

(d)

a right of appeal against any determination by the appropriate authority under paragraph 24(2)(a) as a result of which it is not required to send to the Director of Public Prosecutions a copy of the report:

and it shall be the duty of the relevant appeal body to notify the appropriate authority, every person entitled to be kept properly informed in relation to the complaint under section 21 and the person complained against of any appeal brought under this paragraph (except that the duty to notify the appropriate authority does not apply where that body is the relevant appeal body).

…

(5)

On an appeal under this paragraph, the relevant appeal body shall determine such of the following as it considers appropriate in the circumstances –

…

(b)

whether the findings of the investigation need to be reconsidered;

…”.

Regulation 11 of the Complaints Regulations sets out the procedural provisions in relation to appeals. Paragraph 30 of Schedule 3 to the 2002 Act and Regulation 30 of the Complaints Regulations identify the complaints in relation to which the IPCC (as opposed to a chief officer) is the relevant appeal body.

In particular, Regulation 30(2)(b) of the Complaints Regulations provides that the IPCC is the relevant appeal body in a case of which the appropriate authority is unable to satisfy itself, from the complaint alone, that the conduct complained of (if it were proved) would not justify the bringing of criminal or misconduct proceedings against a person serving with the police; or would not involve the infringement of a person’s rights under Article 2 or 3.

As to that test, paragraph 13.16 of the IPCC Statutory Guidance provides that:

“The test… must be applied to the substance of the complaint, not applied with hindsight after the complaint has been dealt with. It means that if the appropriate authority cannot satisfy itself from the complaint as presented that the conduct complained about, if proved, would not lead to criminal or misconduct proceedings against a person serving with the police or infringe Article 2 or 3… any appeal in relation to that complaint must be dealt with by the IPCC regardless of how the complaint has been dealt with or any findings in relation to the complaint.”

As to appeals when a chief officer is the appropriate authority, Regulation 33 of the Complaints Regulations provides that:

“(1)

Subject to the remaining paragraphs of this regulation, a chief officer may delegate all or any of the powers and duties conferred or imposed on him by or under Part 2 of the 2002 Act to such an officer as is mentioned in paragraph (2), or to a police staff member who, in the opinion of the chief officer, is of at least a similar level of seniority.

(2)

That officer is – …

…

(b)

a member of a police force of at least the rank of chief inspector.

(3)

A chief officer shall not, in any particular case, delegate any power or duty under paragraph (1) to a person whose involvement in the role could reasonably give rise to a concern as to whether he could act impartially under these regulations, whether because he has acted as investigating officer in the case, or attempted to resolve it by way of local resolution, or otherwise.”

Paragraphs 1.27-1.29 of the IPCC Statutory Guidance deal generally with appeals, including the anticipation that chief officers will delegate many of their responsibilities for determining appeals.

More detailed guidance as to appeals is set out in section 13 of the IPCC Statutory Guidance. In particular, paragraphs 13.21 & 13.22 recognise that in many circumstances the type of case that will come to the chief officer on appeal will have been dealt with by local management and that, therefore, consideration of the appeal by the Professional Standards Department (“PSD”) will provide sufficient distance for an objective review – with the fundamental consideration of the chief officer being whether a reasonable person could have concerns about whether the person deciding the appeal could act impartially.

Paragraphs 13.2, 13.5, and 13.9 provide the following general principles in relation to appeals:

“13.2

An appeal offers a final opportunity to consider whether a complaint could have been handled better at a local level and, where appropriate, to put things right. If a complainant is still dissatisfied after an appeal he or she may seek to challenge the appropriate authority’s decision through judicial review.

13.5

Consideration of an appeal must involve a fresh consideration of the case. Although it is not a re-investigation it should not be merely a ‘quality check’ of what has happened before.

13.9

The right of appeal allows the complainant to challenge a decision or outcome. If the appeal is upheld, relevant action must be taken by the appropriate authority.”

It will be recalled that paragraph 9.14 of the IPCC Statutory Guidance (above) indicates that the adequacy of the investigation may be scrutinised when any appeal is considered.

Paragraphs 13.80–13.107 of the same Guidance deal with the rights of appeal in relation to complaints provided by paragraph 25(2) of Schedule 3 to the 2002 Act (above), including what the person dealing with the appeal must consider or decide. In particular, paragraphs 13.81–13.98 deal with appeals against investigation – as to which paragraphs 13.81,13.89, and 13.96-13.98 variously provide that:

“13.81

…the person dealing with the appeal does not have to consider a ground of appeal not mentioned by the complainant, but may still do so if he or she deems it appropriate; for example, where it appears that another ground of appeal may apply and may lead to the upholding of the appeal. The person dealing with the appeal should consider all grounds of appeal raised by the complainant

13.89

The findings of the investigation include the eventual conclusions. In their clearest form this will be a series of allegations that are upheld or not. The findings of the investigation also include the reasons for the conclusions, the evidence that has been gathered in support of the conclusions, and a critical analysis of the evidence.

13.96

The factors listed at paragraph 9.15 [above] of this guidance should be used to inform what approach was proportionate for an investigator to have taken to investigate a complaint…When considering the ‘proportionality’ of the investigation as a whole, a judgement is being made about the scope and robustness of the investigation weighed against the seriousness of the allegations…

13.97

In considering the lines of enquiry pursued by the investigator, the person dealing with the appeal should take into account any terms of reference or similar document, such as an investigation log or file record of relevant decisions, that may have applied to the scope and methods used during the investigation. This may have required a particular direction to be taken by the investigation or put limits on what the investigation would examine including the availability of evidence required and considerations as to the sufficiency of the evidence to establish the facts given the seriousness of the allegation and likely outcomes.

13.98

Guidance in paragraphs 11.18 to 11.24 outlines where a complaint should be upheld. The person dealing with the appeal should have regard to this guidance when reviewing an appeal and considering whether a complaint should have been upheld….If the person dealing with the appeal decides that the findings need to be reconsidered then the appeal should be upheld and the appropriate authority must then re-investigate the complaint…”

The consequences of certification

There is an issue between the parties, to which I return below, as to whether, following certification, a proportionate investigation is likely to be of a different order to an investigation for complaints where special requirements do not apply.

Subject to that, and viewed overall, the principal consequences when an investigation has been certified as being one subject to special requirements include the following:

The Defendant relies upon the evidence (in a witness statement) of Detective Superintendent Khan, the deputy head of the PSD for the West Yorkshire Police. He explains the system that the PSD use, in the initial stages, to assess and investigate public complaints – which the West Yorkshire Police define as “an expression of dissatisfaction by a member of the public about the conduct of a person serving with the police” (which is somewhat wider than the definition in s.12 of the 2002 Act – above).

Detective Superintendent Khan states that due to the volume of complaints and conduct matters received by the West Yorkshire Police PSD it would not be practicable for investigators to deal with the initial actions required in relation to them – namely, making a recording decision; recording the complaint or conduct; and making an initial assessment. Rather, in order to ensure the accuracy and consistency of the recording and categorisation of complaints and conduct matters, and that they are dealt with in a proportionate and consistent manner, a Reviewing Officer (“RO”) from the PSD is assigned to a complaint, or conduct matter, when it is received and is then responsible for the initial stages of decision making in relation to it.

Taking a straightforward example of a complaint, the first stage involves the RO, working on the basis that the allegation within the complaint is true, deciding whether or not West Yorkshire Police is the appropriate authority for the purposes of the complaint – see paragraph 2 of Schedule 3 to the 2002 Act (above). If it is then, subject to certain exceptions (see Regulation 3(2) of the Complaints Regulations – above), the RO will formally record the complaint, allocate a reference number to it, and (in accordance with paragraph 1(2)-(4) of Schedule 3 to the 2002 Act – see above) collect all of the information immediately available in respect of it.

At the second stage, and still working upon the basis that the allegation within the complaint is true, the RO will decide whether or not the matter is suitable for local resolution – i.e. that, even if proved, it would not justify the bringing of either criminal or disciplinary proceedings and that it would not involve the infringement of a person’s rights under Articles 2 & 3 of the ECHR – see paragraph 6(7)&(8) of Schedule 3 to the 2002 Act (above). The rationale for the decision is recorded. If the RO decides that the complaint is not suitable for local resolution, the RO will categorise the nature of the complaint by reference to the Standards of Professional Behaviour (above) and, after the third stage, the complaint will be referred to an Investigating Officer (“IO”) for investigation.

At the third stage, the RO considers whether, under the provisions of paragraph 19B(1) of Schedule 3 to the 2002 Act (above) the investigation should be subject to special requirements – i.e. whether there is an indication that a person to whose conduct the investigation relates may have committed a criminal offence or behaved in a manner that would justify the bringing of disciplinary proceedings.

Whilst, as Detective Superintendent Khan acknowledges that is, on the face of it, much the same as the test applied when determining whether the complaint was suitable for local resolution, at this stage the RO does not take the complaint at face value but rather consistent, Detective Superintendent Khan asserts, with paragraph 9.32 of the IPCC Statutory Guidance (above), assesses it against all the evidence and information that is available at the time – such as the custody record and the content of a relevant crime file (e.g. statements already made, exhibits, CCTV and bodycam footage etc..). In the light of that assessment the RO will then make a recommendation as to whether or not the investigation should be subject to special requirements.

The RO’s recommendation is then reviewed by the Appropriate Authority in consultation with the IO – who will consider all the information provided by the RO. If the IO concludes that that there is an indication they will certify the investigation as being one that is subject to special requirements, and they will go on to perform a severity assessment etc.

Whether or not subject to special requirements, the investigation will then proceed to completion.

As to special requirements, Detective Superintendent Khan asserts that, in accordance with the Home Office Guidance, the principal importance of certification is, in the interests of fairness, to afford the officer concerned certain safeguards. He further asserts that the fact that an investigation is certified as being subject to special requirements does not mean (save for the various additional procedural requirements) that the investigator takes a different approach to it and that, in accordance with paragraph 9.14 of the IPCC Statutory Guidance (above), the emphasis is on proportionality, with the investigating officer being required, throughout the investigation, to constantly keep the decision as to whether the test for special requirements is met under review – whether as a result of new evidence being obtained or because the initial decision is considered to have been incorrect.

Detective Superintendent Khan also variously asserts that:

Helen Williams was appointed as the RO and, on a form entitled “PSD Severity Assessment Policy and Progress Log” (dated 15 September 2014) she summarised the Claimant’s complaints and variously recorded that, having attended court on 2 September 2013, the Claimant had accepted a Fixed Penalty Notice; that it was at that point that he had become aware that officers had allegedly made false statements and that thus, although the incident had occurred in December 2012 the complaint (made at the end of August 2014) was still within the 12 month time limit; and that the Claimant had made a civil claim for unlawful arrest. She then variously set out that:

(1)

“….Having reviewed the complainant’s statement and the duty statement of DC Irvine and PC Walters it is clear there was large disorder in the crowds. The complainant has accepted a FPT for his behaviour and therefore by his own admissions he was acting in an inappropriate manner. It is therefore likely that the officer used force that was necessary to remove the complainant from the crowd. This is assessed as not misconduct.”

(2)

“I have reviewed the two officers’ duty statements attached to the Niche occurrence. Due to the circumstances it is considered that it would not have been practicable for the officer to inform the complainant that he was under arrest. DC Irvine stated that he informed the complainant why he was under arrest once he had removed him from the stands. Enquiries should be made with the transporting, searching officer to identify when the complainant was informed he was under arrest and what information they were provided with. Based on the information available at this time the matter is assessed as not misconduct.”

(3)

“I have reviewed the custody record. It is noted that the complainant does not want anyone informing of his arrest. It is also noted that he does NOT [sic] wish to speak with a solicitor but then it states DUTY. This is considered to be a typing error, pre charge it is noted that the complainant is remained [sic] of his right to legal advice which he declines. Continued detention was authorised by PS [sic] Strother as ‘awaiting availability of OIC’ and ‘enquiries ongoing to confirm his address’. Due to the passage of time custody CCTV is unavailable. Further enquiries should be undertaken to establish whether duty were contacted. Based on the information I do not consider that there are any misconduct issues identified. Should during the course of enquiries any conduct issues be raised the matter should be returned for reassessment.”

(4)

“The complainant raises a number of inaccuracies in the officers’ duty statements. Both officer [sic] document the complainant was being verbally aggressive and DC Irvine records that he resisted arrest. Enquiries should be undertaken to establish whether CCTV was seized or independent witness account gathered of the event in order to support a charge of public order against the complainant.”

(5)

“It is considered that there are no conduct matters in Mr AB’s complaint, the matter is suitable for local resolution. Should the complainant not engage with this a proportionate investigation should commence, an account should be obtained from officers without notice.”

The RO completed the top of the form to variously indicate that special requirements did not apply; that it was not necessary to refer the complaint to the IPCC; that the complaint was suitable for local resolution; that there should be a proportionate investigation in relation to misconduct, without notice; and that the appropriate appeal body was the Force itself.

At paragraphs 34-37 of his witness statement Detective Superintendent Khan states that where (as in this case) the complainant intends to bring a civil claim and has complained by way of a witness statement prepared by his solicitors, it is fair to assume that that there will be no further information forthcoming from him.

Detective Superintendent Khan goes on to state that the RO’s assessment was made on the basis of available information which included the Claimant’s statement; the duty statements of the two officers (made contemporaneously and before it was known that a complaint was being made); the Niche Occurrence log; and the custody record. He further states that the RO determined that it was a recordable public complaint but that it was not suitable for local resolution (which is at odds with the RO’s entry on the form), that there would have to be an investigation, and that (as above) her recorded rationale was that:

At all events, and whether or not there was contemplation of local resolution at one point, the complaint was forwarded to the Bradford District for investigation.

On 17 September 2014 PS Claire Hargreaves from the Bradford District Quality of Service Department wrote to Tuckers to indicate that the complaint had been recorded as a public complaint involving allegations by the Claimant that:

On 23 September 2014 Tuckers wrote to PS Hargreaves asserting that a number of the Claimant’s complaints had either not been recorded or had been recorded inaccurately. They enclosed a schedule which outlined the relevant complaints, and invited correction.

That was followed up in telephone calls to PS Hargreaves on 16 October 2014 – during which, as noted by Tuckers, and amongst other things:

The RO, Helen Williams, emailed Tuckers that same day and indicated that:

The investigation itself was ultimately carried out by PC Marshall (rather than PS Hargreaves). At paragraph 37 of his witness statement, Detective Superintendent Khan states that PC Marshall affirmed the RO’s recommendation that the complaint should not be subject to special requirements, and that during the investigation further evidence was obtained – but that none of it corroborated the Claimant’s account or provided a basis for concluding that special requirements were necessary.

At the conclusion of the investigation, PC Marshall completed a five page Report, dated 15 December 2014. As to the investigation, he variously set out:

Against that background PC Marshall concluded that:

Chief Inspector Akeroyd, who was the ultimate decision maker, wrote to the Claimant on 16 December 2014. She attached a copy of PC Marshall’s report, and variously stated that:

On 9 January 2015 Tuckers wrote, in error, to the IPCC rather than to the Defendant, indicating that they were instructed to appeal and that the grounds of appeal were that:

The letter was forwarded to the Defendant who received it on 16 January 2015. The appeal was thereafter considered on behalf of the Defendant by Gregory Rogers, the Compliance and Policy Manager in the PSD of the West Yorkshire Police.

On 31 March 2015 he wrote to Tuckers enclosing his four page determination of the appeal. In that determination, Mr Rogers set out the background to the appeal, including summarising the Claimant’s complaints under seven headings, namely that:

As to the complaints that the Claimant was unlawfully arrested and detained for 9 hours, and was not told that he was under arrest, Mr Rogers concluded that it was not appropriate for PC Marshall to consider whether the Claimant’s arrest and detention was lawful since the lawfulness of those actions could only ever be determined by a court. It was appropriate for PC Marshall to consider whether the actions taken by the officers were reasonable and whether or not any officer had a case to answer. He noted that the account of PC Walters supported the account of DC Irvine (incorrectly referred to at that point in the assessment as “PC Marshall”) as to the Claimant’s behaviour prior to arrest, the fact that he was warned about his behaviour prior to arrest, that he failed to heed the warning that he was given, and that he was told the reason for his arrest by DC Irvine. It was acknowledged by PC Marshall that that there was a slight delay between the physical act of arresting the Claimant and him being informed that he was under arrest, but concluded that DC Irvine had provided a reasonable explanation for that delay. Mr Rogers further noted the account given by the Custody Officer PS Daniels to which PC Marshall had referred, and concluded that, on the available evidence, he was satisfied that the actions of the Officers in arresting the Claimant were reasonable; that it was reasonable for the Claimant to be detained in custody; and that the length of time for which he was detained was not excessive.

As to the complaints that unlawful force was used, including the use of handcuffs, and that the Claimant was not told the grounds as to why he was being searched, Mr Rogers noted that the Claimant was not handcuffed or searched by DC Irvine, PC Walters or SC Harman, and that given the length of time between the events complained of and the making of the complaints, it had not been possible to identify the officers responsible for those acts – albeit that PC Walters did deal with why the Claimant had been handcuffed and the fact that he was searched after arrest – which was also referred to by DC Irvine. PC Walters and DC Irvine had both provided accounts for the force that they had used on the Claimant which PC Marshall had considered to be reasonable. PC Marshall could not have been reasonably expected to uphold the complaints specifically relating to the search or the use of handcuffs given the lack of evidence upon which to determine them.

As to the complaint that DC Irvine used insulting words (“you’re an idiot” and “I don’t like you”) towards the Claimant, Mr Rogers noted that DC Irvine denied the allegation and opined that given the nature of the complaint and the length of time since the events, it was proportionate for PC Marshall not to have attempted to trace the officers who were said by the Claimant to be nearby at the time. Hence he did not uphold the appeal in relation to this complaint.

As to the complaint that the Claimant was not allowed access to a solicitor, or to have anyone notified of his detention, Mr Rogers recorded that, having reviewed the Custody Record, he was satisfied that the Claimant had signed it to confirm that he had been given his rights, that he did not want anyone to be informed of his arrest, and that he did not want to consult with a solicitor. Mr Rogers was also satisfied that the Claimant’s detention had been reviewed by Inspector Struther at 03.34 on 12 December 2012 - when the Claimant was again reminded of his right to consult with a solicitor, but had declined and had made no other representations. Hence the appeal was not upheld in relation to this complaint.

As to the complaint that DC Irvine and his colleagues had made false allegations against the Claimant in sworn statements, Mr Rogers noted that both DC Irvine and PC Walters denied that they had done so and that their statements were consistent. Mr Rogers recorded that he had also taken into account the fact that the Claimant had accepted a fixed penalty notice in relation to his behaviour, as well as the lack of any other evidence which would support his allegation. Hence the appeal was not upheld in relation to this complaint either.

Finally, Mr Rogers variously concluded that the investigation conducted by PC Marshall was appropriate, and that the conclusions he had reached were reasonable in the light of the evidence; that the decision taken that there was no case to answer for misconduct, gross misconduct or unsatisfactory performance was appropriate; that the decision to take no further action was appropriate - as no failings had been identified as a result of the complaints; that the decision not to refer the matter to the CPS was appropriate as the report and the underlying evidence did not indicate that a criminal offence had been committed by any officer the subject of the complaints; and that, following the investigation of the complaint, Chief Inspector Akeroyd had provided adequate information.

At paragraph 38 of his witness statement Detective Superintendent Khan says that he has considered the papers again, and the papers in this claim, and has concluded that there is nothing to suggest that the investigating officer’s conclusions were incorrect or unreasonable and that, on a balanced assessment of all the evidence, the complaint is not sustainable.

Given the reliance, in argument, on aspects of the correspondence and pleadings, it is necessary to summarise the relevant aspects.

In his letter before claim, dated 13 July 2015, the Claimant set out that the matters being challenged were the ongoing decision, believed to have been initially taken by the RO, thereafter by Chief Inspector Akeroyd and then by Mr Rogers, not to certify the investigation as one subject to special requirements; or, in the alternative, the decision of Mr Rogers that the decision that there was no case to answer for misconduct, gross misconduct, or unsatisfactory performance was appropriate – which, it was asserted, was a decision that no reasonable police force could have reached in the absence of an appropriate severity assessment correctly identifying the complaint as one which was subject to special requirements, and as such the decision was irrational and ultra vires. The issue was thus, in summary, said to be that in concluding unreasonably that the test for special requirements was not met, the Defendant had not only made errors of law but had also reached irrational conclusions. Reference was made, amongst other things, to paragraphs 332-336 of the 2010 version of the IPCC Statutory Guidance (which dealt with special requirements), and to paragraph 9.32 of the 2013 version of that Guidance, which provided (again in relation to special requirements) that:

“The test has a low threshold – requiring only an indication. The investigator must think that there is an indication, but must also be satisfied that a reasonable investigator with knowledge of the circumstances or evidence would consider that the circumstances or evidence indicate a police officer or special constable may have committed a criminal offence or behaved in a manner that would justify the bringing of disciplinary proceedings.”

In the Defendant’s formal response, dated 24 July 2015, various factual matters were set out and it was asserted, amongst other things, that the claim was time barred; that no failings in relation to the decision of Mr Rogers had been identified or set out; that the County Court was well placed to deal with the issues raised (including unlawful arrest which could not be dealt with in a misconduct context); and that, on any objective interpretation of the evidence, it was clear that there was no case to answer in misconduct against any officer, and that accordingly any claim for judicial review would be academic and should thus be refused.

In his Claim Form, dated 17 August 2015, to which was appended a Statement of Facts etc., the Claimant indicated that he sought the quashing of the decision not to uphold his appeal; a declaration that this is a case that satisfies the test for special requirements; and an order that his complaint should be reconsidered in accordance with the provisions for special requirements. It was asserted, amongst other things, that the failure of the Defendant, either as part of the investigation, or as part of the appeal, to find that the Claimant’s complaint was one that satisfied the test for the application of special requirements, lay at the heart of the case; that, from a practical point of view, a decision that special requirements applied would very likely lead to a more intensive investigation into the conduct complained of; that, from a legal point of view, it would lead to the additional safeguard of an appeal to the IPCC; and that the Defendant’s contention that the complaint of unlawful arrest could not be dealt with in misconduct proceedings was wrong.

The Defendant’s Summary Grounds for Contesting the Claim, dated 21 September 2015, variously contended that the decision in relation to special requirements was analogous to a case management decision and there was no criticism of the actual findings of the investigation and appeal; that it had not been open to the Claimant to appeal the adequacy of the investigation, only its findings; that the Grounds did not identify any shortcoming with the conclusions of the investigation such as to make it even arguably amenable to judicial review; that it would be disproportionate and oppressive if every complaint allegation, no matter how unlikely or spurious, were to result in certification, and it was vital that the system contained a filter in order to properly allocate investigative time and resources appropriately; and that it was not open to appeal the adequacy of an investigation, only its findings.

In his Response, dated 29 September 2015, the Claimant accepted that there may be cases in which the allegations, however serious, were so totally without foundation that special requirements should not be applied, but argued that the special requirements test is a low one; that it is first applied before an investigation of the complaint takes place; and that there is an appeal against the adequacy of an investigation.

As the Claimant pointed out in argument the Defendant did not, whether within the relevant time limit or at all, file detailed grounds as required by CPR Part 54, but instead eventually indicated an intention to rely on the Summary Grounds and the statement of Detective Superintendent Khan.

As already indicated above, permission was granted on 16 October 2015.

The Claimant

Mr Stephen Cragg QC, on behalf of the Claimant, argued in broad outline that:

As to the decision in relation to special requirements, Mr Cragg variously submitted that:

As to the Claimant’s appeal, Mr Cragg variously submitted that:

Mr Cragg further submitted, as to the statistics cited by Detective Superintendent Khan (some of which appeared to come from the IPCC publication entitled Police Complaints; statistics for England and Wales 2014/2015), that they did not support the contentions advanced by reference to them.

In conclusion, Mr Cragg submitted that:

The Defendant

I have already summarised the Defendant’s ultimate submissions in paragraph 4 above.

On his behalf, Mr Matthew Holdcroft argued that the Claimant’s statements in his Judicial Review Claim Form (that he sought judicial review of the Defendant’s decision that the Claimant’s complaint was not subject to special requirements), and in his Grounds (that he challenged the Defendant’s decision not to uphold his appeal against the adequacy and findings of the investigation into his complaint) wrongly conflated the fact that the investigation had not been certified as being subject to special requirements with its adequacy (or proportionality).

There were, Mr Holdcroft submitted, three areas in dispute – namely:

Those issues involved, Mr Holdcroft suggested, considering the following:

As to the facts, Mr Holdcroft underlined, amongst other things, that the RO had reviewed the Claimant’s statement; that she had concluded that there were no misconduct matters identified and that special requirements were not satisfied; that she had recorded that if, during the course of the investigation any conduct issues were raised the matter should be returned for reassessment; and that, during the investigation, no additional matters were identified.

As to the test for special requirements, Mr Holdcroft submitted that:

As to the consequences of certification, Mr Holdcroft submitted that:

In this case, Mr Holdcroft submitted, the only difference in the investigation that the Claimant could suggest, had special requirements been certified, was that the officers would have been interviewed – but that would have made no difference. Given that the investigation was being undertaken some 18-20 months after the relevant events, the best evidence that was likely to be obtained from DC Irvine and PC Walters was the witness statements that they had provided immediately after those events – especially as, in the interim and as part of their duties, they would have been likely to have attended many other football matches.

As to the legal basis of the appeal available to the Claimant, Mr Holdcroft emphasised that the only available grounds are set out in paragraph 25(2) of Schedule 3 to the 2002 Act (above), and accepted that when (under paragraph 25(2)(a)(i)) considering the findings of the investigation, the appeal will necessarily involve a consideration of the evidence obtained and the proportionality of the investigation. However, he submitted, a decision not to certify the investigation as one subject to the special requirements does not, of itself and without more, render the findings of an investigation susceptible to appeal. It was a procedural step, and the Claimant had made no substantive criticism of the investigation’s findings or the appeal.

In view of the list that had been made, it was clear that a lot of evidence had been gathered at the outset. In the result the RO had almost all the relevant material in the case, and certainly everything that she and the Investigating Officer needed to make a decision in relation to special requirements. The Claimant’s real complaint in the case was that the RO did not think that the Claimant’s account could possibly be true.

In any event, on the basis of the available material and evidence it was reasonable to conclude that the investigation did not need to be certified as subject to the special requirements, given that the following matters all undermined the Claimant’s account:

As to an alternative remedy, Mr Holdcroft submitted that:

As to the issues being academic, Mr Holdcroft emphasised that, whether in the Claimant’s appeal letter, letter before claim, or Grounds, the Claimant had made no substantive criticism of the findings of the investigation. Nor had he put forward anything to suggest that the outcome would have been any different if special requirements had been certified, or identified any failing the correction of which would have made any difference. Hence, Mr Holdcroft submitted, the claim related to a decision made in the course of the investigation that was analogous to a case management decision, and (absent any criticism of the findings of the investigation) the claim was academic and should be refused on that ground alone.

The Claimant’s reply

Mr Cragg submitted, amongst other things, that:

Paragraph 1.5 of the IPCC Statutory Guidance states, correctly in my view, that:

“The police complaints system is not straightforward or easy to understand, even for practitioners. It can be even more difficult for complainants. That is why everyone involved in administering the system has a responsibility for ensuring that complainants and other parties are not disadvantaged and that they can access the information they need in a straightforward way. Accessibility is a vital part of securing public confidence.”

The need to secure public confidence in the police complaints system in general is obvious. It must therefore deliver the good practice in complaints handling identified by the IPCC in paragraph 1.3 of its Statutory Guidance - namely getting it right; being customer focused; being open and accountable, acting fairly and proportionately, putting things right, and seeking continuous improvement.

As paragraph 1.4 of the same Guidance makes clear, the focus should not be solely on the process involved and the issue of whether anyone is to blame. Instead, it should be on understanding that a complaint is an expression of dissatisfaction with the way that a person has been treated or the service he or she has received. Equally, such dissatisfaction needs to be taken seriously, and is an important part of feedback on performance.

Nevertheless, the real world absence of infinite resource has inevitably coloured the landscape in which both the 2002 Act, and the various changes since, were enacted – not least those provided by the Police Reform and Social Responsibility Act 2011 which, as paragraph 1.16 of the IPCC Statutory Guidance makes clear, were designed to streamline and remove unnecessary bureaucracy from the system, to ensure that complaints are handled at the lowest appropriate level, and to focus more on putting right the complaint made by a member of the public. Hence the focus on proportionality and proper outcomes. The checks and balances provided in the legislation (as amended), and in the IPCC Statutory Guidance, must clearly be viewed in that light.

All that said, and notwithstanding the time that it has necessarily taken to set out the various aspects of the legislation, regulations and guidance to which my attention was drawn in argument, together with a summary of the evidence and of the arguments themselves, it seems to me that the ultimate issues can be dealt with relatively shortly.

I have no doubt, subject to separate consideration below of the issues in relation to special requirements, that the West Yorkshire Police system in relation to the initial handling of complaints is lawful.

The initial actions that must be taken when a complaint is made to a Chief Officer (see [27],[28],[72] & [73] above) are:

There is no requirement, as such, that these initial actions be taken by the intended ultimate investigator. I accept Detective Superintendent Khan’s evidence (see [71] above) that it would not be practicable for investigators to deal with them, and it is clearly appropriate, in order to ensure the accuracy and consistency of the recording and categorisation of complaints, and that they are dealt with in a proportionate and consistent manner, for responsibility for dealing with these initial actions to be delegated, by or on behalf of the Defendant, to ROs from the PSD. It is equally clear that the correct approach (i.e. working on the basis that the allegation(s) within the complaint is/are true) is applied when deciding whether or not the West Yorkshire Police is the appropriate authority, and whether or not the matter is suitable for local resolution.

As to special requirements, paragraph 19B(1) of Schedule 3 to the 2002 Act (see [40] above) makes clear that it is the person investigating the complaint who is responsible for deciding whether or not the test is met.

However, I see nothing unlawful in the West Yorkshire Police system (see [74]-[76] above) which involves RO considering the issue first and making a recommendation in relation to it, which is then reviewed by the Appropriate Authority in consultation with the IO, with the latter then making the decision (and keeping it under review). The system is designed to ensure, as the 2002 Act requires, that it is the person investigating the complaint who ultimately decides whether or not the test is met etc.

Before considering the special requirements test itself, it is necessary to put it into the context that:

The test in paragraph 19B(1) of the 2002 Act (see again [40] above) must be considered in conjunction with paragraph 9.32 of the IPCC Statutory Guidance (as to which see [104] above for the 2013 version, and [41] above for the 2015 version) along with paragraphs 2.94-2.100 of the Home Office Guidance, and in particular paragraph 2.95 (see [42] above).

The use of the words “appears”, “an indication” and “may” in paragraph 19B(1) are clearly intended to ensure that the threshold is a relatively low one. However, paragraph 19B(1) does not limit the application of the test to the face of the complaint, and the guidance makes clear that it is not so limited – which is also consistent, in my view, with the position in relation to exemption from recording. Applying, for example, the 2015 version of the IPCC Statutory Guidance, the IO is entitled to consider the circumstances and evidence available at the time, and whether or not a bare assertion is undermined by other material or is inherently unlikely. That fits in with the likelihood that, in accordance with the duty to obtain and retain evidence as soon as practicable, surrounding evidence will be available, if not from the outset (as in this case), then at a very early stage.

I am fortified in that view by the analogous guidance as to conduct matters in paragraph 2.131 of the Home Office Guidance (see [44] above). Nor, in my view, is there any inconsistency between this approach and the need, after certification, for the severity assessment to be made upon the basis that the conduct alleged has been proved (see paragraph 19B(4) of Schedule 3 to the 2002 Act), nor with the test in relation to whether the IPCC is the relevant appeal body (see Regulation 30(2)(b) of the Complaints Regulations and paragraph 13.16 of the IPCC Statutory Guidance in [60] & [61] above), nor with the test in relation to local resolution (see [28] above) – all of which proceed upon the basis that the alleged conduct has been proved).

It would indeed be a nonsense if, in the sort of situations postulated by Detective Superintendent Khan (see [79 ii) & iii)] above) the IO was required to certify the investigation as being one subject to special requirements. Equally, Mr Cragg accepted (see [112 iv)] above) that there may be cases in which judgement had to be brought to bear as to whether the complaint made was so totally without foundation that, however serious the content of the complaint otherwise was, special requirements should not be applied. However, he submitted, this is plainly not such a case.

In this case it is clear (both from her Log dated 15 September 2014 and from her email dated 16 October 2014) that the RO did consider special requirements, and that she recommended that the investigation should not be certified as being subject to them. I accept the evidence of Detective Superintendent Khan that ROs in the West Yorkshire Police PSD routinely make such decisions by applying paragraph 19B(1) of Schedule 3 to the 2002 Act, and conclude from all the evidence that the RO did so in this case. Whilst she can rightly be criticised, for example, because of her reference to the Claimant raising “a number of inaccuracies in the officers’ duty statements” (as opposed to making allegations that they had fabricated their accounts) and because of her apparent contemplation of local resolution, I agree that her recorded rationale (see [80] above) is correctly summarised by Detective Superintendent Khan (see [82] above).

Paragraph 9.33 of the IPCC Statutory Guidance requires the IO to set out the reasoning behind his or her decision as to whether an investigation should be subject to special requirements. I have not seen any document from PC Marshall which records, as such, his reasoning – whether initially or during the investigation. Nevertheless, I accept the evidence of Detective Superintendent Khan (see [89] above) that PC Marshall affirmed the RO’s recommendation. It also seems to me that I can safely do so upon the inference that PC Marshall also applied the test in paragraph 19B(1) of Schedule 3 to the 2002 Act.

I also conclude, if his initial decision was right, that none of the further evidence that came to light provided a basis for then concluding that special requirements were necessary.

Hence I have arrived at the first of the ultimate questions posed by the Claimant, namely whether (on the particular facts of this case) it was unlawful for the Defendant to find that this was a complaint in relation to which special requirements applied?

It is clear (from the content of PS Hargreaves telephone calls on 16 October 2014 - see [87 i)] above) that, at the time that he made his decision, PC Marshall must have had available to him at least the Custody Record; the police incident log at the match, the crime report; the bail sheet; various CDs from various parts of the ground; the statement of the arresting officer; the court file; and the schedule of used and unused material.

Thus, as Mr Holdcroft pointed out in argument (see [126] above) PC Marshall was in possession of material and evidence that undermined the Claimant’s account, in that:

To those might have been added, given its importance in explaining why he was on the track (as opposed to having remained in the stand) in the first place, the profound implausibility of the Claimant’s assertion that he thought that Arsenal players (having just been beaten in a penalty shoot-out by a team from three divisions below them, and with the home crowd celebrating wildly) would be minded to sign shirts.

At all events, notwithstanding the nature of the allegations made in the complaint, and despite paying due regard to the importance of Article 3 of the ECHR, it seems to me that, in the particular factual circumstances of this case, and applying the test in paragraph 19B(1) of Schedule 3 to the 2002 Act, the decision that special requirements did not apply was neither irrational, nor otherwise unlawful. The IO was entitled to take the view that this was not, to use Mr Cragg’s phrase, a case in which there were competing versions of events and it was not at all clear where the truth lay. Equally, as I have already indicated, nothing came to light thereafter that should have caused that decision to be changed.

This complaint was made some 20 months after the relevant events, which themselves took place in a dynamic situation. The two principal officers involved had made detailed witness statements on the night in question. It was always going to be very difficult, given the lapse of time, for other officers (beyond those mentioned on the Custody Record) to be identified. In the result, the two principal officers gave accounts in addition to their witness statements (see [90 iv) a) & b)] above), and former Special Constable Harman, PS Daniels, and PC Stocks also gave accounts (see [90 iv) c)-e)] above. The contemporaneous CCTV footage was checked. It was reasonable, given that the Claimant’s complaint had been put forward on his behalf in a statement made to solicitors who were representing him in prospective civil proceedings, not to make any further enquiries of the Claimant himself. Thus, whilst an account might, in addition, have been obtained from Inspector Strother, it seems to me that, overall, the investigation was a proportionate one.

If I am wrong about the lawfulness of the decision in relation to special requirements I can, nevertheless, see no significant difference to the conduct and proportionality of the investigation if special measures had been certified.

I have set out the broad consequences of certification in [69] above. As Detective Superintendent Khan has rightly observed (see [78] above), their principal importance, save for the decision of the IO being whether there is a case to answer and any appeal being to the IPCC, is to afford the officer(s) concerned certain safeguards – albeit that they can also be suspended and their discipline records considered.

In particular, paragraph 9.13 of the IPCC Statutory Guidance (see [38] above) specifically provides that in a special requirements case a statement under caution should be taken or requested from the person to whose conduct the investigation relates or (my emphasis) he or she should be required to attend an interview. See also, in that regard, paragraph 2.168 of the Home Office Guidance.

Mr Cragg submitted that a proportionate special requirements investigation in this case would necessarily have involved proper formal interviews of DC Irvine and PC Walters which, under Regulation 19 of the Complaints Regulations they could have been required to attend, and during which matters could have been explored to the potential benefit of the Claimant’s complaint.

However, I disagree with the proposition that formal interviews would necessarily have taken place. In any event, so long after the relevant events, and with the two principal officers having made witness statements on the night of the relevant events, and with no realistic likelihood of tracing any other officers who played any part or saw anything relevant, I see no realistic prospect of any different outcome, whatever the method of obtaining an account that was used, in so far as the actual accounts of the two officers are concerned.

Equally it seems to me that the ultimate decision of Chief Inspector Akeroyd not to uphold the complaint (see [92] above) is unimpeachable, and that there is no realistic prospect of it changing after a further investigation involving special requirements.

The Claimant’s appeal did not specifically complain about the special requirements decision. Nevertheless, addressing the second of the ultimate questions posed by the Claimant, I accept (for broadly the reasons advanced by Mr Cragg - see [113] above), that there may be circumstances in which it may be appropriate, whether or not specifically raised, to consider on appeal the propriety of a decision not to certify a case as being subject to special requirements.

However, for the reasons already canvassed above, in this particular case any such consideration could not have made any difference to the otherwise unimpeachable outcome of the appeal on the merits. I do not regard the admittedly ancillary issue as to the propriety or otherwise of PC Marshall considering the lawfulness, as opposed to the reasonableness (which would be likely to be determinative of lawfulness) of the Claimant’s arrest as having any significant impact on that. Hence the third ultimate question posed by the Claimant must be answered in the negative.

Nor would any re-investigation now, certified as being subject to special requirements be remotely likely to produce a different result on appeal.

Against that background, to finally address the Claimant’s fourth ultimate question, had the Claimant’s case otherwise been successful I would have refused the application and/or relief because either it was academic, or (for broadly the reasons advanced by Mr Holdcroft – see [127] above) that there was an alternative remedy.

For the reasons set out above the application for judicial review is refused.

I would be grateful if Mr Holdcroft could draft an Order accordingly.

I will deal with costs administratively.