Judicial review

R (on the application of the Chief Constable of the West Yorkshire Police) v Independent Police Complaints Commission

In March 2011, a motorist, S, was allegedly driving his motorcar in excess of the speed limit. The interested party, a traffic police officer (the officer), stopped the car and an altercation erupted, which resulted in S’s arrest for a public order crime. During the arrest, the officer: (i) used incapacitant spray; (ii) struck S with his police baton; and (iii) handcuffed S. S was injured, whereby he suffered permanent injury to his left thumb. In June, S’s mother made a complaint to the claimant West Yorkshire Police.

In September, the complaint was referred to the Independent Police Complaints Commission (the IPCC). In March 2012, the IPCC issued a report (the report), concluding that the complaint was upheld and that there was a case to answer in respect an alleged breach of the standards of professional behaviour. It was also clearly set out that the view of the IPCC was that the arrest of S was unlawful. The claimant issued judicial review proceedings, seeking the quashing of the report on the basis that its contents far exceeded the lawful ambit of such reports and, as such, was unlawful.

It contended that: (i) the IPCC had reached unlawful and impermissible conclusions, and had far exceeded the only permissible finding, which was that there was a case to answer in respect of misconduct and/or a criminal offence; and (ii) the language of determination could not be used when the Police Reform Act 2002 restricted that which the IPCC could do. It fell to be determined whether the report had been unlawful.

The application would be allowed.

It was settled law that care needed to be taken in the interpretation of IPCC reports. They were not judgments nor crafted by parliamentary draftsmen. The reports had a meaning which had to be understood by those to whom they were addressed. The purpose of a report was to inform the police disciplinary body or Crown Prosecution Service (CPS) whether a charge should be brought. It was for the police disciplinary body or the CPS to exercise that judgment. It was not for the IPCC to do so. An expression of opinion was necessarily called for by the investigator.

There might be some cases in which what an investigator said might be so extreme, illogical or irrelevant that it should properly be excised. In that case, there were expressions, such as ‘the evidence indicates’, which fell short of conclusive determination and was consistent with deciding whether there was sufficient evidence to place a police officer before a disciplinary panel for its decision. Further, it was the requirement of an investigator to lay a case, but to leave the determination thereof to the courts. The IPCC was entitled to evaluate competing evidence before making a recommendation (see [39]-[41] of the judgment).

In the instant case, the language used in the report amounted to a suggestion of determination, rather than opinion. It revealed that the author of the report had intended to embark upon consideration of the lawfulness of the arrest of S. Worse still, the report had gone on to say in terms that the officer had acted unlawfully and that the arrest had been unlawful. Further, that the officer had assaulted S based upon two separate analyses of the evidence. At no stage did the report suggest a case was there to answer – it leapt to the conclusion.

To make that leap was unlawful when the leap was not only daring, but comprehensively in excess of the powers and functions granted by parliament. The report had over-stepped the lawful mark by some margin and could not be allowed to stand. The IPCC had been justified in recording factual matters adverse to the officer, but to go further using the language of determination, rather than recommendation (firm, rather than provisional assertions) had been outside the lawful boundaries of its statutory responsibility. The report had not merely been evaluating evidence to enable a decision-maker to make a decision – it had been purporting to make findings of a kind it had had no power to make (see [50]-[52], [54] of the judgment).

Glinski v McIver [1962] 1 All ER 696 applied; R (on the application of Reynolds) v Independent Police Complaints Commission [2009] 3 All ER 237 applied; R (on the application of Allatt) v Chief Constable of Nottinghamshire Police and another [2011] EWHC 3908 (Admin) applied.

Matthew Holdcroft (instructed by Legal Services of West Yorkshire Police) for the claimant; Ivan Hare (instructed by the Independent Police Complaints Commission) for the IPCC; The officer was not represented.