R Allatt (Claimant) Chief Constable of Nottinghamshire Police (Defendants) Independent Police Complaints Commission (Interested Party)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE LANGSTAFF |
| Judgment Date | 12 April 2011 |
| Neutral Citation | [2011] EWHC 3908 (Admin) |
| Docket Number | Case No: CO/3084/2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 April 2011 |
[2011] EWHC 3908 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Leeds Combined Court
1 Oxford Row
Leeds
West Yorkshire
LS1 3BG
Mr Justice Langstaff
Case No: CO/3084/2011
Mr Green appeared on behalf of the Claimant.
Mr Wilcox appeared on behalf of the Defendant.
The Interested Party did not appear and was not represented.
(As Approved)
1. This is an application for interim relief arising in proceedings for judicial review for which permission is sought. The interim relief essentially seeks to prevent a police misconduct hearing going ahead on Thursday of this week, 14 April. Because of the hour to which I have come to this judgment, it will be concise. If I miss matters, I hope the parties will understand that I have not, I hope, disregarded them.
2. The complaint sought to be made by judicial review is to review a decision to proceed to a hearing before a panel which has had handed to them an unedited report from an investigator who was charged with investigating allegations that police constable Allatt had been concerned in an assault upon a member of the public.
3. The statutory regime arises under the Police Reform Act 2002. That deals with complaints and conduct matters arising as affecting police officers. It provides for investigations to be managed or carried out by the Independent Police Complaints Commission. At schedule 3, entitled ‘Handling of Complaints and Conduct Matters’, there is contained part 3 headed ‘Investigations and Subsequent Proceedings’. As part of that, provision is made (see paragraph 22 schedule 3) for final reports on investigations into complaints, conduct matters etc:
“(5) A person designated under paragraph 19 as the person in charge of an investigation by the Commission itself shall submit a report on it to the Commission.
(6) A person submitting a report under this paragraph shall not be prevented by any obligation of secrecy imposed by any rule of law or otherwise from including all such matters in his report as he thinks fit.
(7) The Secretary of State may by regulations make provision requiring a report on an investigation within paragraph 19C(1)(a) or (b)—
(a) to include such matters as are specified in the regulations;
(b) to be accompanied by such documents or other items as are so specified.”
4. Here, cutting a long story short, Mr Allington was appointed investigator by the IPCC. He produced a report on 4 November 2010. The regulations which were envisaged by schedule 3 as I have read are the Police (Conduct) Regulations 2008. I have also had to consider the Police (Complaints and Misconduct) Regulations 2004. As to the Police (Conduct) Regulations 2008, by regulation 5 they apply when the allegation comes to the attention of the appropriate authority indicating misconduct. Regulation 12 provides for an assessment to be made of severity, and for investigation by the authority, the purpose of which is said to be to gather evidence to establish the facts and circumstances of the alleged misconduct, and it says the appropriate authority can establish whether there is a case to answer in respect of that.
5. There is provision made by regulation 18 for the written report of such an investigator which provides that that report shall provide an accurate summary of the evidence and “(c) indicate 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”.
6. The argument has drawn attention to the similarity between that and the provision by regulation 14(e) in the 2004 regulations dealing with the IPCC investigations, where it says the same. Thus, argues Mr Green, the report of the investigation must provide an accurate summary and it must attach or refer to any relevant documents and indicate the investigator's opinion. That opinion is not as to his belief in guilt or otherwise, but is as to whether there is a case to answer or whether there is no case to answer. That, argues Mr Green, is the extent of his powers. He draws attention to the fact that there may be good reason historically for those matters to be specified, since previously reports had permitted the investigator to express his views.
7. He argues that the words quoted not only prescribe what a report must contain or, to use the statutory language I used earlier, “include” but also circumscribe it. Accordingly, he says, it is not open to an investigator to express any more than that for which provision is made for by those three paragraphs.
8. Here what Mr Allington did was examine the material placed before him which indicated grounds for concern. That included a CCTV recording of an incident in which PC Allatt was said to decamp from a police car, come into immediate physical contact with a member of the public as a result of which it seems the evidence accepted by the officer was that he, the officer, struck two blows whilst being struck down himself as a consequence of which the member of the public claims to have sustained some injury.
9. Mr Allington drew attention to the accounts from their different perspectives of a number of people who had seen what had happened either partially or as passers-by. He noted, at page 50 of what is a long report, that there were some differences between them, and then said this, to which objection is taken:
“What the collective recollection does indicate together with CCTV footage of the incident is that PC Allatt's actions were both excessive and unnecessary.”
He then goes on to say:
“PC Allatt admits hitting Mr Portman twice in the face. There is no evidence that PC Allatt considered or attempted to use a lower level of force. Too late, distraction strikes are used where lower level of force options have been tried and are unsuccessful or where lower levels of force are inappropriate or unlikely to succeed. Any strike used in this context should only be used as a precursor to a control attempt. While PC Allatt is allowed to utilise and apply such a technique there is a caveat put on this. Any officer has to have appreciation of a likely cause and effect of a strike applied to the face and the potential to be more injurious than if delivered to other areas of the body. There is always a need to demonstrate necessity.”
Then exception is taken to the next paragraph:
“PC Allatt has failed to demonstrate necessity or provide a credible account of his actions on 16 January 2010 when examined against the CCTV and independent witness evidence.”
10. It is suggested that that demonstrates a concluded view by the investigator rather than him setting out his opinion (and the basis for it) whether there is a case to answer.
11. In my view it could not arguably be said to do that. Context is important. The context here is that established by paragraph 208 where the investigator is setting out what is necessary to justify use of force as a distraction strike. It does not seem to me to go beyond the permissible limits of the expression of opinion in the context of deciding whether or not the evidence indicates there is a case to answer and what the evidence may establish if it is unanswered: the usual definition of a prima facie case, or case requiring answer, which he was obliged to assess.
12. He continued in paragraph 211 to say this:
“On the balance of probabilities the evidence indicates that PC Allatt has used unnecessary and excessive force on Mr Portman. The evidence indicates he has a case to answer.”
Mr Green complains that the first of those sentences is not saved by the mantra of the second. The author expresses a view. He concludes or may be seen to conclude that the police constable actually used unnecessary and excessive force. That is not a decision for him; it is the decision for the panel should he having heard all the evidence and submissions that that is justified.
13. In my view I have to...
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R (Chief Constable of the West Yorkshire Police) v Independent Police Complaints Commission [QBD]
...and/or disciplinary misconduct. 39 The case of R (on the application of Allatt) v Chief Constable of Nottinghamshire Police and IPCC [2011] EWHC 3908 (Admin) is instructive. In that case interim relief was sought to prevent a disciplinary hearing taking place. As part of the argument advanc......
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R (on the application of The Chief Constable of the West Yorkshire Police) v Independent Police Complaints Commission Police Constable Lee Armstrong (Interested Party) Leeford Sutcliffe (Interested Party)
...jurisdiction was supported by that of Langstaff J in R (on the application of Allatt) v. Chief Constable of Nottinghamshire Police [2011] EWHC 3908 (Admin). Nowhere in the Act, Regulations or Guidance, said Mr Holdcroft, is it said that an investigator has the power to determine issues of l......