Miah, R (On the Application Of) v The Independent Police Complaints Commission

Paragraphs 2(1) and 6 of Schedule 7 to the Terrorism Act 2000 (“the 2000 Act”) empower an “examining officer” (including a police constable) to stop, detain and question a person at a port for the purpose of determining whether he appears to be a person who is a “terrorist” as defined in section 40(1)(b), i.e. a person who is or who has been concerned in the commission, preparation and instigation of acts of terrorism.

These powers lie outside the regulatory framework that covers other police powers of stop; and they may be exercised whether or not the officer has grounds for suspecting that a person is a terrorist (paragraph 2(4) of Schedule 7). Individuals stopped under the powers are not entitled to know if there are grounds for suspecting they are terrorists; and, if there are such grounds, what they might be. They are not under arrest, but may be examined for up to nine hours, during which time they may be questioned, searched and have samples of biometric data (including DNA and fingerprints) taken from them, regardless of the outcome of the encounter and all in the absence of a lawyer. Those stopped under these provisions are obliged to co-operate or face arrest, a period of imprisonment and/or a fine. As Mr Cragg QC, for the Claimant Shayab Miah, emphasised, these are intrusive and draconian powers.

The Equality and Human Rights Commission Research Report No 72 (“The Impact of Counter-terrorism measures on Muslim Communities”), published in 2011, said that the exercise of Schedule 7 powers were “having some of the most significant negative impacts across Muslim communities…”; and, for some Muslims, the stops had become routine. The annual reports of the Independent Reviewer of Terrorism Legislation David Anderson QC (“the Independent Reviewer”) indicate that a high proportion of those stopped and examined under Schedule 7 are ethnically Asian. In the year 2010-11, 26% of those examined for less than one hour, and 45% of those examined for more than one hour, were Asian.

The Claimant is a British national. Ethnically, he is Asian. He is a practising Muslim.

On 30 August 2009, the Claimant arrived back in the United Kingdom from a visit to India. At Heathrow Airport, he was stopped and detained by a police officer, and was questioned for nearly an hour, under the provisions of Schedule 7.

Afterwards, the Claimant complained to the police, saying that the police officer who had stopped him had discriminated against him on the basis of his race and/or religion, i.e. he had been stopped because he was Asian and/or Muslim. That complaint was not upheld; and the Claimant appealed to the Defendant, the Independent Police Complaints Commission (“the IPCC”). On 16 March 2016, the IPCC made a decision dismissing that appeal. It is that decision which the Claimant challenges in this claim.

Before me, Stephen Cragg QC and David Gregoryappeared for the Claimant, and Jeremy Johnson QC for the IPCC. I thank them all for their oral and written submissions.

The IPCC was established by section 9 of the Police Reform Act 2002 (“the 2002 Act”), as a result of concerns about the independence and effectiveness of the Police Complaints Authority which it replaced. Statutory references in this part of the judgment are to the 2002 Act, unless otherwise appears.

The statutory functions of the IPCC include securing the maintenance of suitable arrangements for handling complaints made about the conduct of police officers; and also securing that public confidence is established and maintained in those arrangements (section 10).

Part 2 of the Act, headed “Complaints and Misconduct”, applies to “any complaint made about the conduct of a person serving with the police which is made (whether in writing or otherwise) by a person who claims to be the person in relation to whom the conduct took place” (i.e. “the complainant”) (section 12). Schedule 3, given effect by section 13, sets out the powers and duties of the IPCC in handling complaints, which seek to ensure that complaints are properly investigated and, where appropriate, police officers face disciplinary proceedings. It has been fairly said that, “The whole process is concerned to ensure that there is a proper investigation into complaints against the police and an independent final arbiter of whether disciplinary proceedings should follow” (R (Demetrio) v Independent Police Complaints Commission [2015] EWHC 593 (Admin) at [42] per Burnett LJ).

There are some circumstances in which the IPCC itself performs the investigation; but, generally, where a complaint is made against the police, it is for “the appropriate authority” to appoint a person to investigate the complaint (paragraph 17 of Schedule 3); and the “appropriate authority” is the Chief Officer of the police force in question (Section 29(1)(a)(ii)).

Even if the appropriate authority arranges the investigation, under paragraph 15(4)(b) of Schedule 3, the IPCC may supervise it. Where the investigation arranged by the appropriate authority (whether or not supervised by the IPCC), section 20(2) imposes an obligation on the appropriate authority to provide a complainant “with all such information as will keep him properly informed, whilst the investigation is being carried out and subsequently, of all the matters mentioned in subsection (4)”. Section 20(1) imposes a similar obligation upon the IPCC when it conducts or manages the investigation. The matters set out in section 20(4) are as follows:

“(a)

the progress of the investigation;

(b)

any provisional findings of the person carrying out the investigation;

(c)

whether any report has been submitted under paragraph 22 of Schedule 3;

(d)

the action (if any) that is taken in respect of the matters dealt with in any such report; and

(e)

the outcome of any such action”

The Secretary of State may provide exceptions to the obligation imposed on the appropriate authority under these provisions, but, section 20 goes on to limit the scope of possible exceptions, as follows:

“(5)

The duties imposed… on the… appropriate authority in relation to any complaint shall be performed in such manner, and shall have effect subject to such exceptions, as may be provided by regulations made by the Secretary of State.

(6)

The Secretary of State shall not by regulations provide for any exceptions from the duties imposed by this section except so far as he considers it necessary to do so for the purposes of…

(b)

preventing the disclosure of information in any circumstances in which it has been determined in accordance with the regulations that its non-disclosure –

(i)

is in the interests of national security

(ii)

is for the purposes of the prevention or detection of crime, or the apprehension or prosecution of offenders;

(iii)

is required on proportionality grounds; or

(iv)

is otherwise necessary in the public interest.

(7)

The non-disclosure of information is required on proportionality grounds if its disclosure would cause, directly or indirectly, an adverse effect which would be disproportionate to the benefits arising from its disclosure.

(8)

Regulations under this section may include provision framed by reference to the opinion of, or a determination by, the [IPCC] or any local policing body or chief officer.”

The Secretary of State made regulations under section 20, namely the Police (Complaints and Misconduct) Regulations 2004 (SI 2004 No 643) as amended (“the Complaint and Misconduct Regulations”), which, although subsequently replaced, apply to this case. Regulation 12 provides (so far as relevant to this claim):

“(1)

Subject to paragraph (2), the duties mentioned in section 20… (2) (duty to keep complainant informed)… shall not apply in circumstances where in the opinion of the… the appropriate authority, the non-disclosure of information is necessary for the purpose of –

…

(b)

preventing the disclosure of information in any circumstances in which its non-disclosure –

(i)

is in the interests of national security

(ii)

is for the purposes of the prevention or detection of crime, or the apprehension or prosecution of offenders;

(iii)

is required on proportionality grounds; or

(iv)

is otherwise necessary in the public interest.

(2)

The… the appropriate authority shall not conclude that the non-disclosure of information is necessary under subparagraph (2) unless it is satisfied that –

(a)

there is a real risk of the disclosure of that information causing an adverse effect; and

(b)

that adverse effect would be significant.”

Once the investigation has been completed, a report is sent to the appropriate authority (paragraph 24(1) of Schedule 3), which must then determine whether any police officer whose conduct has been investigated has a case to answer in respect of misconduct or gross misconduct or has no case to answer, and whether or not that officer’s performance is satisfactory or unsatisfactory (paragraph 24(6)(a)). It also has to determine any other action it proposes to take (paragraph 24(6)(b)).

The appropriate authority is then required to give the complainant notification of the findings of the report, the authority’s determination of the authority on the matters in paragraph 24(6) and the complainant’s right to appeal to the IPCC under paragraph 25 (paragraph 24(7)). This obligation is subject to any exceptions as provided for by the Secretary of State under section 20(5)-(7) (paragraph 24(9)) (see paragraphs 13-14 above).

The requirement to give the complainant notification of “the findings of the report” in paragraph 24(7) is supplemented by statutory guidance, issued by the IPCC under section 22. “Statutory Guidance to the Police Service on the Handling of Complaints” (May 2015) (“the IPCC Guidance”) is issued to local policing bodies, chief officers and persons who are serving with the police otherwise than as chief officers, concerning the handling of the complaints. Every person to whom such guidance is issued has a duty to have regard to that guidance (section 22(7)). This guidance was, of course, published after the relevant events in this case; but it reflects policy and guidance at the relevant time.

Whilst the Guidance is formally directed at others, it “also necessarily sets out the way in which the [IPCC] seeks to perform its own corresponding functions” (R (Saunders and Tucker) v Independent Police Complaints Commission [2008] EWHC 2372 (Admin) at [7] per Underhill J, as he then was). Mr Johnson accepted that the guidance was something which the IPCC is obliged to take into account when exercising its relevant functions.

Section 12 of the IPCC Guidance deals with “Actions after the Investigation”. So far as relevant to this claim, it provides:

“12.3

The appropriate authority should ensure that a complainant and any interested party receives a clear explanation of what has happened based on the facts established in the investigation. In most cases the investigation report will be sent to the complainant and any interested person unless there is reason under the harm test not to do so.

12.4

Appropriate authorities should take into account any further guidance issued by the IPCC concerning disclosure of information. They may discharge their duty to inform complainants and interested persons of the findings of the investigation by sending them a copy of the investigation report.

12.5

The IPCC believes that communication with complainants and interested persons should be based on a presumption of openness. Making the investigation report available to the complainant and/or interested person is the most transparent way of showing what the investigation found. It should usually be provided to the complainant and any interested person, subject to the harm test and any necessary redactions….

12.6

Complainants, interested persons and their representatives sometimes ask for additional disclosure, such as copies of statements or documentation collected during investigation. The IPCC considers that disclosure of material generated by a complaint investigation should occur through the appropriate disclosure gateway (i.e. the [2002 Act]; disclosure to other bodies; disclosure for the purposes of civil proceedings; disclosure under the Freedom of Information Act 2000 or the Data Protection Act 1998). All this means is that the complainant, interested persons and their representatives should make clear on what basis they are asking for this additional disclosure so that the appropriate authority can apply the relevant legal basis for disclosing it.

12.7

If, for example, a complainant, interested person or their representative wants to understand the report better, the request should be made and considered under the [2002 Act] gateway. The disclosure should then be aimed at providing the complainant with a better understanding of the findings of the investigation. The presumption of openness applies in favour of disclosure subject to the harm test, with appropriate redaction being made where necessary and providing disclosure does not incur unreasonable expense. Any non-disclosure must be necessary because there is a real risk of the disclosure causing a significant adverse effect. The risk must be real, which is assessed on a case-by-case basis. Therefore, appropriate authorities should not adopt a blanket approach when considering whether disclosure should be made in any case.”

The “harm test” is a reference to the test for non-disclosure in section 20(5)-(7) and regulation 12 of the Complaints and Misconduct Regulations set out in paragraphs 13-14 above (see footnote 18 of the IPCC Guidance).

The IPCC has also issued guidance to police forces in relation to how complaints about discrimination should be dealt with, namely “IPPC Guidelines for Handling Allegations of Discrimination” (2015) (“the IPCC Discrimination Guidance”), which says that it “[sets] the standards that complainants, families and other interested parties should expect when allegations of discrimination are made against the police”, and the standards to which the IPCC say they will hold police forces when they are considering appeals, and that they themselves will apply when investigating allegations of discrimination (see Foreword of the IPCC Chair, page II). In the Summary Guide, it is said that:

“A resolution based outcome should:

…

•

Give a clear, evidence-based response to the discrimination allegation (as well as other allegations made)

•

Give a clear explanation of what the investigation found about what happened and why…”.

Where there has been an investigation by the appropriate authority, the complainant has a right of appeal to the IPCC (paragraph 25 of Schedule 3). At the relevant time, so far as relevant to this claim, paragraph 25(2) provided for the scope of such a right, as follows:

“(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 on the report in the investigation;

(b)

a right of appeal against the findings of the investigation;…”

As said in Demetrio at [52], in an appeal, the IPCC acts in a quasi-judicial capacity; but, insofar as Burnett LJ suggested that the complainant is a party to a dispute that the IPCC is determining, that needs to be approached with some care. The complainant of course triggers the appeal against the decision of the police authority on his complaint with which he is not satisfied; but, the trigger having been pulled, the role of the IPCC is to investigate and report on that appeal as required by the statute. Before me, it is, rightly, common ground that that exercise does not engage article 6 of the European Convention on Human Rights, because it does not involve the determination of any civil right or obligation. The complainant is therefore in a very different position from a party to court proceedings. He is not a full player. He is a participant in an investigatory process, which is focused on others. His rights are set out in the statutory scheme; and he does not have the all of the general rights of a party in civil litigation.

In exercising its role when an appeal is made under paragraph 25, the IPCC’s obligations in respect of determination of the appeal are set out in paragraph 25(5):

“On an appeal under this paragraph, the [IPCC] shall determine such of the following as it considers appropriate in the circumstances –

(a)

whether the complainant has been provided with adequate information about the matters mentioned in sub-paragraph (2)(a);

(b)

whether the findings of the investigation need to be reconsidered;

(c)

whether the appropriate authority –

(i)

has made such a determination as is mentioned in sub-paragraph (3)(za) or (zb) [i.e. whether a person to whose conduct the investigation related has a case to answer in respect of misconduct or gross misconduct or has no case to answer; and whether such person’s conduct is, or is not, satisfactory] that the [IPCC] considers to be appropriate in respect of the matters dealt with in the report, and

(ii)

has determined that it is required to or will, in its discretion, take the action (if any) that the relevant appeal body considers to be so appropriate; and

(d)

whether the conditions set out in paragraph 24(2A) and (2B) [which relate to criminal proceedings] are satisfied in respect of the report.”

Before me, Mr Cragg submitted that the section 20(1) duty to keep the complainant informed applies to the IPCC when it is considering an appeal. However, on the plain wording of that section, that does not seem to be the case. That section is concerned with keeping a complainant informed of the various matters set out in section 20(4), which are, as Mr Johnson submitted, all related to the investigation itself. That is so, even though the duty applies “while the investigation is being carried out and subsequently”. An obligation is only imposed upon the IPCC by section 20(1), when there is an investigation of a complaint… by the [IPCC]… or under its management”, not when the IPCC is acting in an appellate capacity. Where there is an appeal after a supervised investigation, any vestiges of the obligation to keep the complainant informed under section 20 will continue to fall on the appropriate authority; although, given the nature of the matters set out in section 20(4), it is likely that the obligation will by that stage have been all but exhausted.

However, the IPCC does have an additional express obligation. Whilst, as I have described, the IPCC Guidance confirms that an appropriate authority has some obligation to explain its findings, the IPCC has an express duty to provide reasons. By regulation 10(7) of the Complaints and Misconduct Regulations:

“The [IPCC] shall notify the complainant and the appropriate authority of the reasons for its determination.”

This is again supplemented by the IPCC Guidance. Section 13 deals with “Appeals”. It states, so far as relevant to this claim:

“13.10

The complainant and, where applicable, the person complained about should be provided with a clear explanation of the outcome of the appeal and the reason for any decision made.

…

13.84

It is essential that a full explanation is given to the complainant about what has been found to have happened. A person whose complaint against a person serving with the police has been investigated should receive:

•

A clear narrative explanation for what has happened, based on the facts established

…

13.89

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

…

13.92

When communicating a decision about whether an appeal is upheld in relation to the findings, the rationale for the decision should be provided to the complainant with reference to the relevant evidence.

…

13.95

The person dealing with the appeal must consider whether the conclusions of the investigation are supported by the evidence available, and ensure that a clear rationale is being made to link the evidence to the conclusions.”

The IPCC Discrimination Guidance (see paragraph 19 above) is also a matter which the IPCC is required to take into account when considering appeals in relation to complaints of discrimination by police officers. It expressly states that it sets the standards to which the IPCC will hold police forces when they are considering appeals, and that they themselves will apply when investigating allegations of discrimination (see Foreword of the IPCC Chair, page II).

In August 2007, and again in January 2009, the Claimant was visited at his home by an officer of the Hampshire Police Constabulary, and was asked about his views on terrorism and terrorist groups, and his friends and contacts. On the first occasion, he says he was told that the police had been informed that he had “praised the Taliban”, something which he denies doing. The second occasion was triggered because the Claimant had been looking into buying a hand-held thermal imaging camera.

On 20 July 2009, he was arrested in connection with unrelated matters. He was bailed, and told that he could leave the country so long as he answered his bail in due course. He travelled to India, but was there interrogated as to why he was visiting the country, and cut his stay short.

He arrived back at Heathrow Airport at about 7am on Sunday 30 August 2009. At the airport, he was stopped by a police officer, and was questioned, under the provisions of Schedule 7. The police records indicate that he was examined for 50 minutes. The Claimant says that he was detained, in aggregate, for over two hours. The Claimant says that he inferred that his passport was tagged from the reaction of the Immigration Officer who looked at it at Heathrow Airport. By the time of hearing before me, it was uncontroversial that the Claimant’s passport had earlier been “tagged”, i.e. marked in some way that triggered the stop when he returned to the United Kingdom.

The Claimant wished to complain about his treatment by the police; and, under the provisions of the 2002 Act referred to above, on 23 June 2010 he complained about the conduct of an officer of the Hampshire Constabulary in relation to the various episodes to which I have referred. The specific complaints were numerous. However, one was an allegation that the officer had placed a “tag” on the Claimant’s passport, which had led to his detention and interrogation at Heathrow Airport on his return from India. An overarching complaint was that officers of the Hampshire Constabulary had unlawfully discriminated against the Claimant on religious grounds. Those complaints were investigated by the Hampshire Constabulary; but, on 26 November 2010, the Claimant was informed that they had not been upheld.

On 15 December 2010, the Claimant appealed to the IPCC against the determination of his complaints. That appeal was, again, made on numerous grounds; but included the contention that the specified officer and other officers of the Hampshire Constabulary had harassed the Claimant, and subjected him to discrimination on the grounds of his race. The IPCC response to the appeal was by letter dated 5 August 2011. The letter properly stated that the IPCC’s role in the appeal was to review the investigation that had taken place into the Claimant’s complaint, and not to re-investigate it and the surrounding circumstances. The appeal was not upheld. However, in respect of the detention at Heathrow Airport, the IPCC Casework Manager who had reviewed the investigation (Ms Angela Goddard) said this:

“…I should explain that the IPCC has been privy to sensitive documentation pertaining to the marker requiring that Mr Miah be subject to examination when returning from a foreign visit, which in our view, was fully justified in the circumstances.

These particular matters, however, are about an officer from the Metropolitan Police and, therefore, are outside the remit of Hampshire Constabulary and this appeal.

… [I]t is unclear why Hampshire Constabulary did not in accordance with the provisions of the [2002 Act], forward these matters to the appropriate authority but they should now do so.”

The matter was consequently then referred to the Metropolitan Police Service (“the MPS”), to investigate as a complaint against the officer who conducted the Schedule 7 examination at Heathrow. The Interested Party (“the Commissioner”) is vicariously responsible for the acts and omissions of those within the MPS. On 23 June 2011, under paragraph 4(1)(c) of Schedule 3 to the 2002 Act, the IPCC determined that all complaints about the use of Schedule 7 must be referred to it.

The MPS investigated the complaint. It decided that there was no evidence that the officer had acted improperly (including on the ground that he had discriminated against the Claimant), and therefore it did not uphold the complaint. The Claimant was informed of that outcome by letter dated 29 March 2012. The letter said that the investigating officer had obtained and reviewed the documentation that was generated by the officer during the Claimant’s Schedule 7 detention/examination. It stated that the power under Schedule 7 must be used “proportionately, reasonably, with respect and without unlawful discrimination”; and recorded that the investigating officer was satisfied that the user of the power had been lawful, and the correct procedures followed.

By letter dated 23 April 2012, the Claimant appealed to the IPCC against that determination of the MPS, on three grounds, namely:

The grounds of appeal did not identify any positive case or specific evidence for suggesting that the examining officer did not have a proper basis for examining the Claimant, save that it was asserted that he discriminated against the Claimant “because of his [i.e. the Claimant’s] religion”.

In respect of that appeal, under regulation 10(5) of the Complaints and Misconduct Regulations, the MPS was required to provide all background papers to the IPCC. It did not do so; and it became clear that the MPS had security concerns about passing information to the IPCC. There was a lengthy impasse, during which the IPCC made continued attempts to obtain this information from the MPS on various terms. However, those attempts were unsuccessful.

On 9 October 2013, the IPCC issued judicial review proceedings against the Commissioner. The Claimant was an interested party in those proceedings. Mitting J granted permission to proceed. However, the case was then compromised by a Consent Order dated 21 January 2015, signed on behalf of the IPCC, the Commissioner and the Claimant, which included a protocol for dealing with the issue which had arisen between the IPCC and the MPS (“the IPCC/MPS Protocol”).

The Protocol provided that the IPCC would allow the Security Service (“MI5”) to attend its offices to review the security measures that were in place; with regard to protectively marked material, the IPCC would allow access only to those with appropriate security clearance; the MPS would provide the background material to the IPCC on request; and the IPCC would not disclose “the reasons for the stop or the ‘background information’” to a complainant, such as the Claimant, without first giving the MPS an opportunity to make representations and seek injunctive relief from the court. Although the Protocol was of course relevant to the Claimant’s own case, similar issues had arisen in other cases, and it was clearly designed to resolve issues which had arisen more widely.

The IPCC/MPS Protocol enabled the IPCC to obtain intelligence information in appropriate cases, i.e. when such information was relevant to its investigation, and it could have access to it without compromising the security interests of MI5. Whether information is to be provided to a complainant is initially a matter for the MPS on a complaint; and then for the IPCC on an appeal. Where the MPS considers that non-disclosure is necessary for public interest reasons of national security, but the IPCC considers that the information should be disclosed to an individual, then the court is the ultimate arbitrator in the injunction proceedings that the MPS take for that purpose. The IPCC/MPS Protocol does not directly affect any rights of individuals to obtain such information, nor does it give them a role in the determination of whether disclosure of information should be made to them; and it clearly envisages cases in which individuals will not obtain intelligence information, and even cases where, in the interests of national security, the very existence of intelligence information will be kept from individuals. It also makes clear that, so far as the Protocol is concerned, where the IPCC and the Commissioner (who will take into account the views of MI5) agree that material should not be disclosed to an outside party such as a complainant, then, without recourse to the court or the complainant, the material will not be disclosed.

Following that Consent Order, MI5 visited IPCC’s offices to satisfy itself as to IPCC’s security arrangements. The IPCC was then finally provided with the relevant background papers, including the reasons for the stop.

Ms Goddard on behalf of the IPCC determined the Claimant’s appeal by letter dated 16 March 2016. The appeal was again not upheld.

The IPCC letter gave reasons for not upholding the appeal on each of the grounds upon which it was made. In respect of the assertion that the Claimant suffered discrimination because of his religion, it said:

“… [A]s you have acknowledged, the purpose of questioning under Schedule 7… is to determine whether a person appeared to be someone who is or has been concerned in the commission, preparation or instigation of acts of terrorism. The powers should not be used for any other purpose and, therefore, it was entirely reasonable, in my view, that Mr Miah was not questioned about the unrelated matter he was on bail for, at the time. While Schedule 7… provides the power to stop, search and detain people without suspicion, if necessary, the Code of Practice pertaining to the Act does restrict an officer from deciding to stop a person based solely upon their appearance. In order to address public concerns that the powers are being applied in a discriminatory or otherwise inappropriate manner, the IPCC has taken an interest in complaints about police conduct during such stops. Having been privy to the factors that informed the examining officer’s decision to stop and question Mr Miah, you can be assured that I am satisfied that the reason for the stop was entirely justified. Though I am sorry to hear that Mr Miah perceives he has been discriminated against because of his religion, you can be further assured that I am satisfied that neither his race nor faith had a bearing in the decision to stop him. In the circumstances, I do not consider that these complaints require further consideration.”

The Claimant was not satisfied with that; and a pre-action protocol letter was sent on his behalf. In paragraph 4.10 of its response to that letter, the IPCC added this to that which they had said before:

“In context, it is plain that the ‘factors’ that influence the decision maker included intelligence from a security agency. It is not clear if the Claimant’s argument is that the intelligence should be revealed to him in answer to his complaint. If this is his argument, it is disputed on the grounds that concerns for national security must trump his rights in these circumstances. The negative but justified consequence of this is that the decision maker is unable to give reasons as fully as could be expected in circumstances where such restrictions do not apply.”

In a statement dated 1 June 2016, Ms Goddard says:

“1.

In my decision I referred to factors that informed the examining officer’s decision to stop and question Mr Miah. It was my assessment based on national security grounds, that these factors should not be revealed in my decision.

2.

Following receipt of Mr Miah’s letter before claim dated 6 May 2016, I have reassessed the information referred to and whilst I regret the disappointment that may result for Mr Miah, I am satisfied that the justification for withholding the information continues to outweigh his interests in understanding the details of the evidence my conclusions were based on.”

The Claimant issued these judicial review proceedings on 14 June 2016. In them, he relies upon four grounds of challenge to the IPCC determination on the appeal, as follows.

Following receipt of the IPCC’s Summary Grounds of Response, on 4 August 2016 Irwin J (as he then was), although expressing doubts about the strength of the claim, granted permission for judicial review. On 14 November 2016, in a Consent Order approved by Irwin LJ (as he had by then become), a preliminary issue was identified, namely:

“Whether, in the absence of disclosure of the reasons why the Claimant was examined under Schedule 7 of the Terrorism Act 2000 and in the absence of the court having reviewed the reasons by way of closed material proceedings, the Claimant’s grounds (or any of them) for seeking judicial review should nonetheless be dismissed.”

The preliminary issue was identified on the basis that, if the result of that issue was that the claim should be dismissed in any event, that would bring the proceedings to an end. However, if, on that preliminary issue, it was determined that the judicial review could not properly be determined without consideration of the closed material, then consideration should be given to making a declaration under section 6(1) of the Justice and Security Act 2013, with an application by the IPCC under section 8 of that Act to follow, to enable closed material proceedings if appropriate. In the meantime, I should say that I have dealt with this application on only open material; and, indeed, I have not seen any closed material.

Under the umbrella of Grounds 1 and 3, which can conveniently be dealt with together, Mr Cragg submitted that the IPCC had erred in the following ways.

First, he submitted that the IPCC was wrong to dismiss the Claimant’s appeal made on the ground that the MPS as the appropriate authority had failed to provide the Claimant with adequate information about “the findings of the investigation”. That term is defined in paragraph 13.89 of the IPCC Guidance to include “the evidence that has been gathered to support the conclusions, and a critical analysis of the evidence” (see paragraph 26 above). Contrary to its obligations under paragraph 24(7)-(8) of Schedule 3 to the 2002 Act, the IPCC Guidance and the IPCC Discrimination Guidance, the MPS as the appropriate authority did not ensure that the Claimant received a clear explanation of what happened and why. He, as the complainant, was entitled to an evidence-based response to his discrimination complaint, and a better understanding of the decision made not to uphold his complaint by the disclosure of the evidence upon which it was based. He did not receive either; and the IPCC erred in not making a finding to that effect.

Second, Mr Cragg submitted that, by failing to identify the evidence which satisfied it that the police officer who stopped the Claimant was justified in doing so, and did not act because of his race and/or religion, the IPCC failed to give adequate reasons for its determination, as required by regulation 10(7) of the Complaint and Misconduct Regulations (see paragraph 24 above).

In short, as Ground 1, Mr Cragg submitted that the MPS, and in its turn the IPCC, could not properly respond to the Claimant’s complaint of discrimination by rejecting it (and confirming that rejection) without providing the information (i.e. evidence) upon which that conclusion was based.

If that information includes that which cannot be disclosed to the Claimant for national security reasons, then, Mr Cragg submitted:

Mr Cragg therefore urged me to answer the preliminary issue, “No”: the Claimant’s grounds of challenge should not be dismissed without, at least, the court having reviewed the reasons why he was stopped and examined by way of closed material proceedings.

Mr Johnson provided two responses to those submissions.

His short response was that the Claimant has had his full entitlement of information and reasons, from both the MPS and the IPCC. The Claimant knows that he was stopped and examined under the powers in Schedule 7 of the 2000 Act. He knows that he is not entitled to know why he was stopped. His complaint is narrow: it is one of discrimination. The investigation found no evidence of discrimination, and the IPCC confirmed that to be the case. The Claimant thus knows that the reason for the stop was not based on his race or religion. It may have been better if the MPS and IPCC could have shared with the Claimant the positive information upon which the stop was made; but (as Mr Cragg accepts) the Claimant has no entitlement to that under the 2000 Act, and there was no need to disclose that information to satisfy the requirements of the 2002 Act statutory scheme including the IPCC Guidance. Leaving aside the issue of whether the material may include information that it might be in the national interest not to disclose, it is unnecessary to disclose evidence of any lawful, non-discriminatory reason. In other words, without reference to the security information, the IPCC has given the Claimant all of the information and reasons to which he is entitled under the 2002 Act and Guidance.

This submission has the attraction of simplicity; and, on its face, it is compelling. However:

Mr Johnson’s main submission focused upon the balance between the Claimant’s interest in having a better understanding of why his complaint (and, then, his appeal) had not been upheld, and the public interest in the non-disclosure of information the disclosure of which is, or might be, harmful to national security.

In relation to reasons, the courts have increasingly recognised that obliging a decision-maker to give reasons for an administrative decision is one strand of the wider requirement for procedural fairness that must be afforded to a person affected by a decision, particularly if that decision is adverse to that person’s interests (see, e.g., R v Secretary of State for the Home Department ex parte Doody [1994] 1 AC 531 at page 564E-F per Lord Mustill; and R (Lunn) v HM Commissioners of Revenue and Customs [2011] EWHC 240 (Admin) at [55] per Kenneth Parker J). That issue usually arises in the context of a situation where the issue is whether the common law principle of procedural fairness requires an obligation to give reasons to be implied. However, even where there is an express obligation to give reasons, that can be seen as a strand in the rope of procedural fairness towards those who are affected by the decision.

To be adequate, reasons must explain to a person affected, in broad terms, why the particular decision has been reached. That satisfies a simple entitlement to know; but it also enables the person to take an informed decision on whether to challenge the administrative decision.

There is no absolute standard, in the sense that it is well-established that what are sufficient reasons in a particular case depend upon the circumstances of that case, so that, “The extent and substance of the reasons must depend upon the circumstances” (Stefan v General Medical Council [1999] 1 WLR 1293 at 1304B per Lord Clyde). Simply because it might be possible to give further analysis or information behind the reasons put forward does not mean that those reasons are not “sufficient”.

Where the decision-maker has access to security information which is or may be material to the issue he is deciding, the courts have recognised that the public interest in not revealing that sensitive information may outweigh the individual interest in obtaining a full understanding of why a particular decision, adverse to that individual’s interests, has been made. For example, in R (Tucker) v Director General of the National Crime Squad [2002] EWHC 832 (Admin), the claimant was seconded to the National Crime Squad. That secondment was terminated. The only reasons given to him was that information had been received that he had failed to maintain professional standards that were required. Therefore, some level of reasons was given; but the claimant was not told what information had been received, or from whom it had come. Harrison J dismissed the claim for judicial review, brought on the basis of a lack of reasons for the termination of the employment. It was, rightly, accepted by the claimant in that case that there could be circumstances in which reasons would not be required if there was a compelling public interest not to do so. Harrison J found that there was such a reason in that case, namely the public interest in national security.

In relation to whether, as a matter of fairness, the claimant should be given reasons, Harrison J said (at [50]) “fairness works both ways”, i.e. the private interest of the claimant in having the information disclosed and so a better understanding of why his employment had been terminated had to be balanced against the public interest of keeping security information non-disclosed. The balancing exercise as to whether the restriction on disclosure was necessary in the circumstances was made by the National Crime Squad; but Harrison J did not consider it would be appropriate for the court to intervene. He said (at [51]) that:

“The court should only intervene in a case such as this if it can be shown that the defendant has acted for some improper purpose or in bad faith or has acted dishonestly or capriciously or in some other manner that would otherwise normally attract the intervention of the court on judicial review. There is no evidence of any such behaviour on behalf of the defendant in this case…”.

As Mr Cragg forcefully pointed out, it is true that this case was heard at a time before the closed material procedure was available; and so the issue for Harrison J was binary. But the case does illustrate that, where that procedure is not available, the court may be reluctant to intervene absent evidence of improper purpose, bad faith or the like.

In relation to the information disclosed by the MPS as the appropriate authority, either (i) as part of its obligation to keep the Claimant as complainant informed as to the progress of the investigation under section 20 of the 2002 Act or, more relevantly in this context, (ii) as part of its obligation to notify the Claimant of “the findings of the report” under paragraph 24(6)-(7) of Schedule 3 to the 2002 Act, that issue is dealt with within the confines of the scheme itself. Section 20(5)-(7), and regulation 12 of the Complaints and Misconduct Regulations made thereunder, provide that, in either case, the duty to disclose information “shall not apply in circumstances where in the opinion of … the appropriate authority, the non-disclosure of information is necessary for the purpose of… preventing the disclosure of information in circumstances in which its non-disclosure… is in the interests of national security” (see paragraph 13 above).

Relying upon Lord Griffiths’ observations on the phrase “necessary in the interests of justice or national security or for the prevention of disorder or crime” in the context of section 10 of the Contempt of Court Act 1981, in In re an Inquiry under the Company Securities (Insider Dealing) Act 1985 [1988] AC 660 at page 704, Mr Cragg submitted that “necessary” here should be given its ordinary meaning, which was something other than “proportionate”, which was why there was a separate exception based on “proportionality”. However, Lord Griffiths, as well as saying “necessary” was “an ordinary word”, said:

“Like all words, it will take colour from its context; for example, most people would regard it as ‘necessary’ to do everything possible to prevent a catastrophe but would not regard it as ‘necessary’ to do everything possible to prevent a minor inconvenience….

I doubt if it is possible to go further than to say that ‘necessary’ has a meaning that lies somewhere between ‘indispensable’ on the one hand, and ‘useful’ or ‘expedient’ on the other, and to leave it to the judge to decide towards which end of the scale of meaning he will place it on the facts of any particular case. The nearest paraphrase I can suggest is ‘really needed’.”

I agree with Mr Cragg that the approach adopted to “necessary” in the statutory context with which Lord Griffiths was concerned is equally applicable to “necessary” as found in regulation 12 of the Complaints and Misconduct Regulations. It has a high threshold, in the sense that it means more than “useful” or “expedient”. Furthermore, as a result of regulation 13(2), non-disclosure cannot be “necessary” unless there is a real risk that disclosure will cause a significant adverse event (see paragraph 14 above). However, Lord Griffiths made clear that “necessary” is conceptually relative, not absolute. Whether non-disclosure is “necessary” requires the exercise of judgment on the material factors, including the benefits of disclosure and the relevant purpose of non-disclosure, in this case the protection of national security interests.

In my view, just as important as the meaning of “necessary” is the fact that, in the statutory scheme with which are concerned, Parliament has made clear who should exercise that judgment. Section 20(8) provides that exceptions, drawn by the Secretary of State in regulations, which prevent the disclosure of information in which it has been determined that non-disclosure is in the interests of national security “may include provision framed by reference to the opinion of, or a determination by, the [IPCC] or any local policing body or chief officer.” In regulation 12 of the Complaints and Misconduct Regulations, the Secretary of State has indeed provided an exception to disclosure on national security grounds based on “the opinion of the [IPCC] or, as the case may be, of the appropriate authority, [that] non-disclosure is necessary…” in the interests of national security.

Where, as here, the appropriate authority has the opinion that non-disclosure is necessary on national security grounds, on appeal that can be tested by the IPCC acting as an independent quasi-judicial body. The IPCC/MPS Protocol reflects that.

Mr Cragg submits, however, that even that is not sufficient. He concedes that there will be circumstances in which it will be appropriate to withhold information from a complainant on national security grounds; or even withhold from a complainant even the fact that there is such information. However, he submits that, even if the appropriate authority and the IPCC hold the opinion that it is necessary to withhold information from a complainant, this court has the jurisdiction to review that decision, using the closed material procedure of the Justice and Security Act 2013, if necessary; and, if a complainant is dissatisfied with the result of his complaint and appeal, then he can petition this court on the basis that the information and reasons that he has been given are inadequate, and this court should then test that adequacy with the benefit of Special Advocates.

He effectively applies that same argument in respect of reasons: he submits that, even if the IPCC hold the opinion that it is necessary to withhold from a complainant information as part of its reasons, this court has the jurisdiction to review that decision too, using the closed material procedure, if necessary; and it should exercise that jurisdiction in this case.

Forcefully as those arguments were put, I cannot accede to them.

Mr Cragg accepted that there would be circumstances in which the IPCC would properly not disclose information on the basis that the public interest in non-disclosure on national security grounds would override the personal interest of a person in having a better explanation of why the IPCC made the findings they did make on his appeal. That concession is, of course, well made. As Mr Cragg submitted, the real issue is whether, in the circumstances of this case, the Claimant has the right to ask this court to review the opinion of the IPCC – shared by the MPS as the appropriate authority, presumably after any liaison with MI5 – that it would be in the national interest not to disclose that material. Mr Cragg submits that he has that right. Mr Johnson submits that he does not.

Each case of course has to be looked at on its own facts; but, in the circumstances of the case before me, I prefer the submission of Mr Johnson, for the following reasons.

That deals with Ground 1: it has not been made good.

It also deals with Ground 3. In my judgment, in the circumstances of this case, the reasons provided by the IPCC were adequate; and, therefore, there is no scope for suggesting that more should have been given by way of “gist”.

As to his second ground, Mr Cragg submitted that the IPCC applied a blanket ban on giving reasons where national security concerns are raised. In support of that contention, he referred to paragraph 4.10 of the IPCC’s response of 26 May 2016 to the pre-action protocol letter, which said that, where the decision-maker had taken into account intelligence from a security agency, “concerns for national security must trump [the individual’s] rights”.

However, on the evidence, it is clear that that was simply not the case. It seems that the MPS may have considered there should be such a blanket ban, which the IPCC opposed by issuing its own judicial review proceedings. The IPCC wished to see the security material so that, in line with its statutory obligation, it could come to its own view on whether non-disclosure of the material was necessary. In this case, that assessment was made by Ms Goddard. Where there is a dispute between the IPCC and the MPS (no doubt in liaison with security agencies) as to whether non-disclosure is necessary, then the IPCC/MPS Protocol sets out a procedure under which the court determines whether the information can and should be disclosed, in a procedure in which the individual concerned plays no direct part. When seen in its full context, the IPCC letter of 26 May 2016 clearly does not intend to portray that there is a blanket ban on disclosing any security material.

This ground has no force.

Finally, Mr Cragg submits that the IPCC acted irrationally in considering that the relevant information was so sensitive in this case as to justify non-disclosure. In his skeleton argument, he relies on five subgrounds.

The first is simply that, absent consideration of reasons for the stop, the court cannot satisfy itself that the decision was not Wednesbury unreasonable. That does not add anything of substance to Ground 1: there is no evidential basis for the assertion that the IPCC decision on the appeal is legally perverse.

Second, Mr Cragg submits that the IPCC did not consider the IPCC Guidance. I deal with those issues at paragraph 74(x).

Third, he submits that the IPCC did not consider whether the MPS had followed that Guidance or whether there was any justification for departing from it. The MPS letter of 29 March 2012 refers to compliance with the relevant Codes of Conduct, which I do not have; but, in any event, any defect in that regard would be immaterial, given that the IPCC had due regard to the Guidance.

Fourth, he submits that the IPCC did not consider the relevant legal test as to whether the failure to provide the reason to stop was “strictly necessary”, or whether there were alternatives. I deal with that issue in paragraphs 66-67 and 74(xi) above.

Fifth and finally, he submits that the IPCC did not follow the IPCC/MPC Protocol, and did not seek representations from the MPS as to the extent disclosure could be made. However, the Protocol was designed to ensure that disputes between the IPCC and MPS over the status of security information could be settled, if necessary by reference to the court. The Protocol did not require the collaboration that Mr Cragg suggests, where both the MPS and the IPCC are agreed that certain information should not be disclosed.

For those reasons, I am unpersuaded by any of the grounds put forward, ably, by Mr Cragg.

I would therefore answer the question posed in the preliminary issue, “Yes”: in my judgment, this judicial review should be dismissed, now, in the absence of any further reasons or information as to why the Claimant was stopped and examined under Schedule 7 of the 2000 Act, and without the court having reviewed the reasons by way of closed material proceedings.