IXF, R (on the application of) v Chief Constable of West Mercia Police

On 5 September 2019, the Claimant was arrested by officers of the West Mercia Police, and kept in custody overnight. He was bailed the next morning. On 9 September 2019, the Claimant’s mother made a complaint to the West Mercia Police (“WMP”) about the treatment of her son by the police during that period. That complaint was “not upheld” by a Senior Complaints and Misconduct Manager in the Professional Standards Department of the WMP. The decision letter is dated 21 December 2021 (“the first decision”).

The Claimant appealed. The Defendant’s Independent Appeals Panel agreed with the original finding, and the appeal was “not upheld”. The decision letter is dated 22 March 2022 (“the appeal decision”). That is the decision challenged in this claim.

The Claim Form was issued on 22 June 2023. It seeks (1) a declaration that the appeal decision of 22 March 2022 was unlawful; and (2) an order quashing the decision and requiring the Defendant to refer the matter to the IOPC.

The Claimant relies upon four grounds, which are summarised at paragraph 3 of the Statement of Facts and Grounds. He contends that:

Permission was given by HHJ Tindal on all four grounds on 19 January 2023. I heard the claim at a hearing on 15 September 2023 and reserved judgment. Where I refer to documents by page number in square brackets, the reference is to the page number of the bundle of documents used in the hearing before me. The court was also aware that the Claimant has brought a claim against the Defendant in the County Court for damages for wrongful arrest and false imprisonment arising from this arrest. Mr Ley-Morgan is instructed for the Defendant in that matter also.

It is common ground that the Claimant was well known to the WMP prior to 5 September 2019. The WMP had carried out over 50 “welfare checks” in the preceding 12 months, usually following reports by the Claimant or members of his family that he was expressing thoughts of self-harm or suicide. At 16.53 on 5 September 2019, the Claimant’s father called the WMP. The details of the call were summarised in the police log in the following way [221]:

The email the Claimant had sent to his mother said this [184]:

The information provided to the WMP was that the Claimant had petrol in his property. The call handler called the fire brigade, and two police officers were sent to the Claimant’s property. The police arrived at 17.11 and were let in by the Claimant. They were wearing body cameras. There was footage of the first 34 minutes of their stay, but the cameras were then switched off. The impression is that the Claimant seemed to be calmer, and the two officers spent over two hours talking to him, and making inquiries with other agencies in an attempt to get him some help. It is of note that the Mental Health Crisis team refused to provide the Claimant with assistance. They had some considerable experience of his issues, and (I summarise) required that he controlled his drinking before they could help.

There is a dispute as to some aspects of what happened subsequently. The Defendant denies the Claimant’s version of events as set out in the Statement of Facts and Grounds [63/7]. The process of Judicial Review is not one which allows for the resolution of those matters. The civil claim the Claimant has begun may prove a more appropriate forum. In any event, the focus of this claim is on the investigation and determination of the subsequent complaint. I have read the police records from the time, and note the way the Claimant puts the case, but I concentrate on the information which was before the relevant decision makers.

I start with the terms of the complaint, which outline the particular matters of concern. Given the issues, I set it out in full:

The complaint can be seen as falling into two parts. The first is that a man with mental health issues had been arrested for making malicious communications when the recipient of the communication had asked for a safe and well check and had made no allegation that the Claimant had been acting maliciously. The second relates to the allegations of degrading treatment following that arrest. The complaint was allocated to Inspector Pinchin to investigate. His initial report did not deal with all matters to the satisfaction of the Professional Standards Manager, but after further work she was satisfied that the issues had been answered “as best they can” [179].

Grounds 1 and 2 in this claim raise issues as to the reasons for and necessity of the arrest, and the ill-treatment of the Claimant whilst he was detained. In this section of the judgment I concentrate on the material relevant to those matters. The report prepared by Inspector Pinchin is dated 22 October 2019 [175]. It summarises the complaint, sets out details of the events of 5-6 September 2019, and lists the material considered in the course of the investigation, including reports from Inspector Brennan, the custody officer on duty and the two officers who attended the Claimant’s property, and then comments on the particular allegations in turn.

The first is the decision to arrest. It says this:

Inspector Brennan made the decision to arrest the Claimant. His account of the reasons for the arrest is set out in a written report he prepared for the investigation dated 27 September 2019 [229]. Here he explains the “rationale” for that decision. He begins by referring to the many calls the police had made to the Claimant’s home over the previous 12 months, the majority of which arose because the Claimant had threatened to take his own life. He gives examples of those threats. The next section gives details of the incident on 5 September 2019 in much the same terms as the report from Inspector Pinchin. The final section is headed Decision to Arrest. Given the importance of the issue to the claim, I set out the section in full:

Pausing there. The report refers to the Claimant being arrested for an offence pursuant to section 172 of the 2003 Act. There are two points. Firstly, in 2019 section 172 had long since been repealed. Consequently the grounds were drafted on the basis that the Claimant had been arrested for an offence that did not exist. The explanation is that the reference to section 172 was a typographical error. Inspector Brennan meant to refer to section 127. Consequently Ms Hirst did not pursue the “non existent offence” line of argument. Secondly, in the course of his submissions, Mr Ley-Morgan informed the Court that the Defendant’s case in the civil claim which the Claimant had brought in relation to this arrest, was that he had been arrested under section 1 of the Malicious Communications Act 1988. The terms of the two sections are similar but different. It was unclear how it was said that this affected the claim for Judicial Review, but it seems to me that the answer is that I should consider the claim on the basis of the material before the relevant decision makers. Consequently, I approach the issues relating to the arrest on the basis that it as made pursuant to section 127 of the 2003 Act.

The relevant terms of section 127 provides as follows:

The power to arrest without warrant is governed by section 24 of the Police and Criminal Evidence Act 1984. The relevant terms provide as follows:

The reasons are—

Having considered Inspector Brennan’s report, Inspector Pinchin’s opinion was that Inspector Brennan was left with “no other option”; in other words no other option but to arrest the Claimant. All other avenues had failed and he was unable to leave the Claimant safely at his property on his own. The Professional Standards Manager agreed with Inspector Pinchin’s view when reaching her decision not to uphold the complaint.

The second aspect of the complaint relates to the treatment of the Claimant. In addition to the other documents I refer to above, Inspector Pinchin watched the body worn video (although this only covered the opening 34 minutes at the Claimants house) and the CCTV footage of the Claimant’s custody in the holding cell at the police station and the charge desk. In the report, he also says that he had spoken with the Claimant’s mother “at length”, although she disagrees with that. I deal only with the matters relevant to this claim.

Inspector Pinchin saw no evidence of either officer speaking to the Claimant rudely or abruptly, or swearing at him. He says that at least one of the officers had the Claimant in sight when he was writhing on the floor of the corridor, save for about 10 seconds. A detention officer then came in, examined the Claimant and called an ambulance. He deals with the allegation that the Claimant was only being allowed to use the toilet if the door was left ajar. This is said to be the correct procedure when the detainee is stating that they are suicidal. The interview without an appropriate adult on the morning of 6 September 2019 is justified by the custody Sergeant’s reliance upon the hospital’s conclusion following a mental health review, that the Claimant had capacity. The Sergeant also undertook a face to face assessment. The complaint includes reference to a paramedic asking the police officers why the Claimant had been arrested, and their reply that “he pissed my boss off”. The police officers deny the allegation, and the paramedic had apparently been spoken to and said that he could not remember that being said.

The only issue Inspector Pinchin regarded as being substantiated was that the Claimant had been left writhing in pain on the floor of the corridor by the holding cell. The CCTV showed that one of the officers kept him in sight save for about 10 seconds, and the Inspector’s view was that there was no risk to the Claimant. In context, risk here is risk to the Claimant’s safety, rather than risk of escape. He regarded the officers’ view that the Claimant was feigning this injury as understandable, given that they had been with him for a number of hours by this stage and that during that time “he had been creating issues with them”. He also notes that the paramedics who were called could find nothing wrong with the Claimant. That said, he concluded that this did not “look good” and he suggested “management advice” for the officers. Again, the Professional Standards Manager agreed with these views and with the recommendation made.

The Claimant appealed. His solicitors made written submissions by letter dated 24 February 2022 [181]. At (a) the letter makes a number of representations in relation to the decision to arrest. The same points are made in a number of different ways:

At 2.10-2.12 the letter refers to the failure of the report to consider the

“criminalisation of vulnerable adults suffering from mental health issues in crisis experiencing thoughts of self ham or suicide”

At (b), the letter makes a number of representations about the “degrading treatment” the Claimant is said to have suffered. These are the allegations that the Claimant was left writhing on the floor in pain whilst he was experiencing a severe anxiety attack, that he could have been provided with more privacy in order to use the toilet, and that he felt humiliated and distressed as a result of the actions of the police. It is to be noted that there was no representation to the effect that the complaint and the appeal should be dealt with by the IPCC. Indeed, paragraphs 1.15 and 1.16 of that letter expressly contemplate an appeal to the Independent Appeals Panel [182].

The appeal process was to be conducted in accordance with the Statutory Guidance to the police service issued by the Independent Police Complaints Commission. The guidance current at the material time was the guidance as amended in May 2015 (“the Statutory Guidance”). Appeals are dealt with in section 13 of the Statutory Guidance.

The relevant paragraphs are as follows:

In addition to the provisions I refer to above, section 13.63 of the Statutory Guidance provides that when deciding whether the outcome is a proper one, the focus should be on whether the outcome is appropriate to the complaint, not simply on the process followed to reach that outcome, and that the decision should be made on the basis of the evidence available.

A key aspect of the Claimant’s case is that the Defendant failed to follow this guidance when conducting the appeal. But it is also important to see it as part of the context for a reading of the decision letter on the appeal. With those matters in mind, I note the following:

The next sub-heading is:

Paragraph 13.98 provides as follows:

The Appeal Panel met on 18 March 2022 and decided not to uphold the appeal. The decision letter is dated 22 March 2022 [97-98]. It is two pages long. It deals with some matters in greater detail than others, but overall it is surprisingly brief. I return to the content of the letter below.

Whilst the issue of whether the appeal should have been referred to the IPCC appears as ground 4, logically it is the first point to consider. If the Claimant is right, then the appeal decision is unlawful for that reason alone. As I understand it, the Claimant’s case here is twofold.

The Defendant disputes both aspects of the Claimant’s case on Ground 4. On the first, the underlying question is whether the conduct alleged was sufficient to justify misconduct proceedings. This is not a case where there is any prospect of criminal proceedings against the police officers concerned. Mr Ley-Morgan submitted that the misconduct alleged fell well short of what would be required for misconduct proceedings. He referred to the Standards of Professional Behaviour by which “misconduct” is defined, and submitted that at most this was a case of honest mistake. The allegations came nowhere near the threshold for the infringement of a person’s rights under Article 3 of the ECHR. Ms Hirst focussed more on the allegations made in the complaint about the police officers watching the Claimant writhe on the floor, and his treatment at the police station.

This was not an issue which was specifically raised with the chief officer of police when the appeal was made. Indeed, as I have noted, the Claimant’s solicitors made representations which appeared to confirm that the correct appeal body was the Independent Appeals Panel. Consequently it is not surprising that the chief officer of police has not expressed reasons for referring the matter to the Panel. I can properly assume that the chief officer was satisfied that the allegations did not warrant referring the appeal to the IPCC. Given the nature of the allegations made in the complaint, such a decision was clearly within the range of reasonable decisions open to the chief officer. The decision was not an unlawful one.

The right of “onward appeal” turns on a reading of the Statutory Guidance. Firstly the language used is only really consistent with one appeal.

Nor is there any obvious need for an onward or further right of appeal. If the allegations are such that the complainant considers that the appeal should be heard by the IPCC, they can say so when the appeal is made, and if the chief officer makes a decision which they regard as wrong, they can judicially review that decision. There is a need for an appeal process, and for complaints against the police to be properly investigated and dealt with. But there is also a need for finality. I agree with Mr Ley-Morgan that the argument that there is some onward or further right of appeal is misconceived.

The essence of the Claimant’s case on ground 1 is that the appeal decision is unlawful because the appeal panel:

failed to apply the Statutory Guidance;

reached conclusions which were not rational or supported by the evidence; and

failed to give adequate reasons.

The first line of argument is that the appeal panel have applied the wrong test. Ms Hirst relies in particular upon the Stautory Guidance at paragraph 13.5, and the requirement that there be a “fresh consideration of the case” and not merely a quality check. She submits that the panel have simply reviewed the first decision, asking whether the outcome and the process were reasonable and or proportionate.

Mr Ley-Morgan responds to the point by making reference to the opening section of the decision letter. This indicates that the appeal panel have considered “all the information available” and have “reviewed the detailed papers containing the original complaint, the actions of the investigating officer, and the grounds of the appeal and representations made by both yourself and your client”. The letter then says that:

The problem with that submission is that, after a paragraph summarising the complaint, the decision letter says this at the foot of first page and over to the top of the second:

The next three paragraphs of the letter deals with aspects of the complaint relating to the Claimant’s treatment whilst in custody at the police station. That indicates that the panel have indeed looked afresh at the material relating to those matters, rather than just reviewed the first decision. The letter ends with these two paragraphs:

The focus of this decision (certainly as it is expressed) appears to be on the handling of the complaint, and what is reasonable and proportionate, rather than being a fresh consideration of whether the complaint should have been upheld or not. At best, the approach is confused.

Mr Ley-Morgan accepts that the decision letter could have been fuller, but he submits that it is sufficient. There is support for his submission in the expressions of agreement with the original findings and the Appropriate Authority’s determination of the elements of the complaint. However, even if I were to read the decision letter benevolently, and was persuaded that this issue was a consequence of unfortunate expression rather than substance, the central problem is the decision letter fails to engage at all with the representations made on the appeal as to the decision to arrest.

There is agreement with the original findings, and with the rationale of the first decision, and I have considered whether the appeal panel’s general agreement with the first decision can be read as encompassing a fresh consideration of that issue in the light of the representations received on appeal. The appeal panel may be saying that the issue of whether there were grounds for an arrest had been considered in such detail during the determination of the complaint, that it was simply unnecessary to say any more.

However I have concluded that I cannot justify taking that approach.

Standing back, and having read and re-read the appeal decision, the confused approach and the inadequate reasons leave me in serious doubt as to whether the issue of the Claimant’s arrest was considered afresh by the panel in accordance with the Statutory Guidance. In those circumstances, the claim succeeds on ground 1.

In the course of my consideration of this matter I have focussed on the way the matter was put to the appeal panel. In her submissions before me, Ms Hirst emphasised the references in Inspector Brennan’s rationale to the strategy he had adopted reducing “demand” (which in context is the demand for welfare checks) and “holding the Claimant to account”. These, she submitted, were improper purposes. The decision was irrational. She characterised the arrest as a “corrective” or a “deterrent”. It may be that those matters will be explored further in the civil claim. But the argument is not really put that way in the appeal in the complaint. My decision on ground 1 is founded on the failure to deal with the matters which were put, and the lack of reference to the underlying point made in the complaint and in the representations on appeal. It is that which needed to be dealt with.

Ms Hirst also pointed up an internal consistency in the decision to arrest. On the one hand it was said that there were reasonable grounds for believing that the email had been sent by the Claimant in circumstances where he had no intention of carrying out his threat. On the other, it was said that it was necessary to arrest him to safeguard him (and others) because there was a risk that he would kill himself. Mr Ley-Morgan accepted that there was this inconsistency, but submitted (in effect) that it was possible to hold both views: a reasonable suspicion that the offence had been committed, and a concern that there was a risk that the Claimant might attempt suicide, which justified the need to arrest. On reflection, I can see that Mr Ley-Morgan may be right. These are two different questions, and it is at least open to the Defendant to say that that was the position taken. In any event, that point was never raised with the appeal panel.

I should say that nothing in this judgment is intended to determine the lawfulness or otherwise of this arrest. The Police found themselves in a very difficult decision. It is not suggested that Inspector Brennan or the officers at the scene acted other than in good faith. The decision in this claim goes only to the appeal decision in relation to the complaint. It will be for another appeal panel to consider how to deal with the appeal on the material before it, and to decide whether the first decision should be upheld or not.

The other major aspect of the complaint which falls into ground one, is the allegation of degrading treatment by the officers. As I note above, the appeal decision letter does make reference to this aspect of the matter. Whilst brief, a reading of the letter indicates that there was an engagement with the issues on this part of the complaint which is sufficient to show that the appeal panel considered the issue. Ms Hirst points to the unsatisfactory reference to the BWV footage. The letter seems to suggest that this shows that the Claimant’s complaints in this respect were shown to be wrong. The problem with that is that the BWV ends after 34 minutes at the Claimant’s home and does not cover any of the Claimant’s time in the police station, which is where the degrading conduct is said to have occurred. There would have been CCTV footage of the custody desk and in the cell area, and Mr Ley-Morgan submitted that it may be this footage which is being referred to.

The appeal letter is not without difficulty on this issue, but I am not persuaded that there is a failure to follow the statutory guidance in relation to this aspect of the complaint, or that the decision is irrational. The panel had the material including the evidence of the officers which denied these matters, and the first decision is a rational one. There appears to have been a consideration of the issues involved by the appeal panel, and the decision letter makes reference to the fact that there was an outcome which involved some remedial action. To uphold the first decision in this respect was a rational and reasonable decision.

Ground 2 is a different ground to ground 1, but related to it. The applicable legal principles are not really in issue; Ms Hirst sets them out at paragraphs 23 to 28 of her skeleton argument. The Defendant is a public authority for the purposes of section 6 of the Human Rights Act 1998. Article 3 ECHR imposes an absolute prohibition on torture or inhuman or degrading treatment or punishment. Whilst this ill-treatment must reach a minimum threshold of severity to fall within the scope of Article 3, the minimum threshold differs from case to case, and depends on all the circumstances including the nature and context of the treatment, the manner and method of its execution, its duration, its physical or mental effects and, in some cases, the state of health of the victim: see Kudla v Poland (2002) 35 EHRR 11.

Article 3 imposes an investigative duty on state authorities to investigate allegations of Article 3 ill-treatment: Commissioner of Police of the Metropolis v DSD and Anor [2018] UKSC 11. The Claimant’s argument is that this investigative duty was engaged. Whether or not such a duty is imposed turns not on the findings of fact made in the course of the complaint, but upon the nature of the allegations themselves. Ill-treatment in police custody will reach the Article 3 threshold where the conduct of officers goes beyond their powers and arouses feelings of fear, anguish and inferiority, capable of humiliating the detainee or causing him serious injury or suffering.

Ms Hirst accepted that the labelling of the alleged conduct as degrading in the complaint was not determinative. The issue is whether or not the conduct alleged was of such a quality as to cross the threshold. The submission is that if it was arguable that this conduct crossed the threshold, or there were substantial grounds for believing that the operational duty under Article 3 had been breached, then the duty arises. Ms Hirst further submits that this duty was breached because:

Mr Ley-Morgan submits that the conduct alleged does not come close to that necessary for an Article 3 duty to arise. There is no allegation of ill treatment as such, nor does the complaint refer to the officers laughing at the Claimant or mocking him. There are allegations of bad language and (what might be described as) a bad attitude, and an allegation that the Claimant was left on the floor writhing in pain whilst suffering an anxiety attack. However, none of that is of any great seriousness. Having considered those arguments, and recognising that the Claimant’s mental health issues would play a role here, on balance I conclude that the duty did not arise. The allegations are not of sufficient seriousness.

However, whether or not an investigative duty did arise, I agree with Mr Ley-Morgan that this ground fails because the Defendant substantially complied with such a duty in any event. The circumstances of and rationale for the arrest were investigated, as the investigation report shows. Inspector Pinchin viewed the body worn footage and the CCTV in the police station. Having done so he was able to conclude that the allegations made in the complaint (the swearing etc) were not correct. The failure to disclose the BWV to the Claimant does not take away from that. The refusal to use the toilet with the door shut was investigated and not denied. It was consistent with recognised practice when dealing with someone who had threatened suicide. Similarly the allegation that the Claimant was left writhing on the floor was seen on CCTV and investigated. There is a dispute as to whether or not the Inspector spoke at length with the Claimant’s mother, but I am in no position to determine that matter. The Defendant’s case is that he did speak to her, and the dispute (as I understand it) is that whilst they spoke, it was not about the matters she wished to convey. What those would be (given that she was not present at the material time) I do not know.

This alleges a breach of the Public Sector Equality Duty. HHJ Tindal directed that:

The Claimant relies upon the written report of Professor Fox. His report is dated 10 May 2023, and was written following a video interview with the Claimant and an examination of his medical records. An updated report was provided on 6 September 2023. The Claimant is also bringing a civil claim for damages for the personal injury and loss he says he suffered as a consequence of the incident in September 2019, and another incident in April 2020, and much of the report deals with whether, and to what extent, those incidents have caused him injury. Professor Fox’s evidence touches on the issues which arise in this claim, but do not provide a direct answer to the questions identified by HHJ Tindal. The Defendant relies upon that lack of evidence. Given that this aspect of the case effectively deals with ground 3, it is convenient to deal with it at this stage.

The relevant sections of Professor Fox’s report are these:

Yes, alcohol dependence and bipolar

I confirm that his PTSD and bipolar II would fulfil the criteria for disability.

Mr Ley-Morgan submits that this evidence does not provide the Court with the required proof of disability at the material time. The PTSD referred to is said to be related to the incidents on 5 September 2019 and 23 April 2020; in other words caused by it rather than being present at the time. The only reference to Bipolar in the Claimant’s medical records prior to September 2019 was in May 2013. The current position is that his condition is in remission and that it is “quiescent”. Mr Ley-Morgan submits that this may have been the position in September 2019.

I have to reach a conclusion on the evidence before me. There is no reference in Professor Fox’s reports to the Claimant suffering from Bipolar in or around September 2019. The records closest to the incident on 5-6 September 2019 are notes from the Claimant’s addiction service [304-5]. On 27 August 2019 he is reported to be suicidal, and on 11 September 2019 he is said to be a vulnerable adult who is neglecting himself. There was no evidence of a lack of capacity but an acknowledged problem with alcohol. On 12 September 2019 he is reported as drinking 12-30 cans of Strongbow daily.

The evidence given by Professor Fox does not deal with the issue of whether the Claimant was disabled for the purposes of section 6 in September 2019, despite the fact that the issue was identified by HHJ Tindal. His evidence that the Claimant’s bipolar II would fulfil the criteria for disability is not sufficient. It makes no reference to whether it did, or to whether it did in September 2019. In the absence of some positive evidence to that effect, I am unable to conclude (on the balance of probabilities) that the Claimant was disabled for the purposes of the Equality Act 2010 at the material time. The evidence I have is to the effect that it is the Claimant’s alcoholism which appears to be the root problem at the material time. By regulation 3(1) of the Equality Act 2010 (Disability) Regulations 2010, that is not an impairment for the purposes of the Equality Act. In those circumstances, the Claimants case on the grounds of direct discrimination must fail.

The public sector equality duty in section 149 of the Equality Act 2010 requires a public authority, in the exercise of its functions, to have due regard to the statutory factors in section 149(1), namely to eliminate prohibited discrimination, advance equality of opportunity and foster good relations between those who share a protected characteristic and those who do not. The duty applies both to the formulation of policy and to individual decisions, and is to be complied with “in substance and with rigour”. It is not a “box ticking exercise” and requires the decision-maker to evidence steps taken to comply with it: see Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345 per McCombe LJ at [26].

As I understand Ms Hirst’s position, the claim is argued on the basis of section 149, and not (now) on the basis of direct discrimination. Having heard the parties’ submissions, I was left wondering whether that added anything to the claim. The Statutory Guidance makes reference to discrimination at paragraphs 3.29 and 9.22:

As to the investigation itself, I follow that the complaint has the potential to give rise to an investigation which involves a consideration of whether there has been discrimination. But given that my finding on ground 1 is to the effect that there needs to be a further consideration of the matter, including the representations as to the “strategy” which led to the Claimant’ arrest and detention, the issues of substance which lie behind this aspect of the Claimant’s case on ground 3 will be covered in any event. Ground three is academic.

The claim succeeds on ground 1. The decision of the 22 March 2022 is quashed and the matter remitted to an Independent Appeals Panel for the appeal to be redetermined. I make an order in the terms of the draft minute of order agreed by the parties.