R Mr Mauro Demetrio v The Independent Police Complaints Commission The Commissioner of Police of the Metropolis and Another (Interested parties)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Burnett |
| Judgment Date | 06 March 2015 |
| Neutral Citation | [2015] EWHC 593 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3012/2014 |
| Date | 06 March 2015 |
and
and
2015 EWHC 593 (Admin)
Lord Justice Burnett
Mr Justice William Davis
Case No: CO/3012/2014
Case No: CO/2398/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Alison Macdonald (instructed by Bhatt Murphy) for Mr Demetrio
Clive Sheldon QC (instructed by Metropolitan Police Legal Services) for the Metropolitan Police Commissioner
Russell Fortt (instructed by the IPCC) for the IPCC
Kevin Baumber (instructed by Reynolds Dawson) for PC Harrington
Hearing date: 10 and 11 February 2015
This is the judgment of the court to which we have both contributed.
There are two claims for Judicial Review before the Court arising from an investigation by the Independent Police Complaints Commission ("IPCC") into events in a police van surrounding the arrest of Mauro Demetrio on 11 August 2011. The IPCC conducted an investigation which culminated in a final report which is dated 31 October 2012. One of the allegations under consideration, to which we shall come in more detail in due course, was that Police Constable Joe Harrington put his hands around Mr Demetrio's neck as if to strangle him. The IPCC report concluded that there was no case to answer in respect of that allegation. In consequence the Metropolitan Police Commissioner ("the Commissioner") considered that there should be no disciplinary action relating to that allegation and the IPCC agreed.
On 6 January 2014 the IPCC Commissioner who had taken over responsibility for the investigation, Jennifer Izekor, wrote to the Directorate of Professional Standards at the Metropolitan Police indicating that she was minded to reopen the investigation into that aspect of the complaints. After receiving representations from the Commissioner by letter dated 26 February 2014 she notified her decision to reopen that part of the investigation. By Judicial Review proceedings issued on 23 May 2014 the Metropolitan Police Commissioner seeks to quash that decision and obtain an order restraining the IPCC from carrying out any further investigation. He submits that the IPCC has no power to do so under the statutory scheme, they have become functus officio. He also submits that the circumstances in which the final report was produced and considered by the IPCC gave rise to a substantive legitimate expectation enforceable by PC Harrington that there would be no further action in relation to the allegation of strangling and that, even if the IPCC is not functus officio, there is no lawful basis for reopening the investigation. PC Harrington supports the Commissioner in that claim.
Ms Izekor also corresponded with Bhatt Murphy, Mr Demitrio's solicitors, who concurred in the view that the investigation was "seriously flawed". In the light of the proceedings issued by the Commissioner, which carried the possibility that the reinvestigation might be thwarted, on 30 June 2014 Mr Demetrio issued his own proceedings which seek to quash the conclusions found in the final report relating to that part of the incident and the decisions made in reliance on them. The IPCC agrees that the findings should be quashed. That is because they accept the conclusion reached was irrational and also flawed by a failure to explore an obvious evidential line of inquiry. A draft consent order with supporting statement was agreed even before the proceedings were issued. That outcome is resisted by the Metropolitan Police Commissioner and PC Harrington who are both interested parties in that claim.
Sir Stephen Silber granted permission in both claims at a hearing on 20 November 2014 and ordered an expedited hearing.
The facts
11 August 2011 was a day on which there was public order disturbance across much of London. Large numbers of police officers and vehicles were deployed to provide a visible presence and thus enhance public confidence. Eight police officers were assigned to a van which was on patrol in the London Borough of Newham. At about 17.40 the driver of the police van, Police Constable Elton, saw a Citroen motorcar which he thought was driving at excessive speed. Mr Demetrio was the driver of the car. PC Elton searched him under section 23 of the Misuse of Drugs Act 1971. His hands were cuffed in a rear stack position. Mr Demetrio was arrested on suspicion of driving whilst under the influence of drugs. A computer check revealed that Mr Demetrio was wanted for failing to appear at Stratford Magistrates' Court two days earlier. PC Harrington further arrested Mr Demetrio in respect of that. Mr Demetrio was placed into the van and taken to Forest Gate police station. He was also arrested for a public order offence arising out of what occurred in the van.
Mr Demetrio made a complaint at the police station about the way he had been treated en route. It was recorded by Inspector Whitehead. His summary of the complaint was:
"Complainant alleges he was racially abused by officers after being arrested. He recorded the abuse on his phone without officers knowledge. Inspector Whitehead has listened … and heard "your gonna die soon", "you'll always be a black nigger", "be proud of your black skin" … In addition complainant alleges he was strangled by an officer who he describes as the driver for 15 seconds and long enough for him to panic for breath. He also complains he was teased by songs sung in a way designed to intentionally make him mad."
On 6 October 2011 Mr Demetrio made a detailed statement in the course of interview for the purpose of the investigation which, by then, was being conducted by the IPCC. He described the driver of the van as Officer A. It is common ground that the description he gave is of PC Elton. Officer B is described as being about 5'7" with brown hair and "very overweight". It was common ground before us that this was a description of PC Harrington. Seven other officers were described. The van internally was like a minibus (i.e. without a cage). Mr Demetrio gave an account of being stopped, of his getting out of the car and the officers being agitated. He identified PC Elton as being aggressive. He said he could smell cannabis. Mr Demetrio was arrested and cuffed. Officer A dragged him to the van, opened its sliding side door and put him in the van. Mr Demetrio described being upset, asking questions and then standing up in the van. He said that PC Harrington jumped on him, put a knee on his chest and started to strangle him with both of his arms outstretched and both hands around his neck. He explained how he was pushed back, with PC Harrington on top of him and how he could not breathe. When PC Harrington let go, Mr Demetrio sat up and his head was pushed against the van window. He could not see who was doing this.
The van was stationary whilst this was going on. Mr Demetrio then described a series of exchanges with another officer (Officer C) who said he knew Mr Demetrio's mother and had had a sexual relationship with her. That officer turned out to be Police Constable MacFarlane. His account continued by saying that he was being abused and being made fun of. That was when he thought about his mobile phone and managed to get it out of a pocket. PC Elton went back to the driver's seat whilst PC Harrington remained close to him. All the other officers got in. Mr Demetrio explained how he managed to turn his phone on and make two short recordings. During the first, he asked PC Harrington why he had strangled him. During the second recording he was racially abused by PC MacFarlane. Mr Demetrio described all the other officers falling silent after the racial abuse. He asked them if they had heard what PC MacFarlane had said but all denied it.
Mr Demetrio explained that at the police station he was placed in a cage with a number of other people who had been arrested, including a black boy who he says was assaulted by PC Harrington. The detail of that incident is immaterial for the purposes of these claims. It is sufficient to record that PC Harrington was prosecuted for assault occasioning actual bodily harm and acquitted in the Crown Court on 8 March 2013. Nonetheless, he faces gross misconduct disciplinary proceedings in connection with his actions relating to that prisoner which remain outstanding.
Mr Demetrio said that PC Harrington took possession of his mobile phone and began to go through his text messages. He was scared that PC Harrington would come across the recordings he had made in the van and delete them. In due course Mr Demetrio was processed and strip-searched. The phone had been placed in an evidence bag. It was unsealed in front of Mr Demetrio by Inspector Whitehead. After he had listened to the recordings it was once more sealed in an evidence bag.
Mr Demetrio was seen by Dr Ranu at the police station. Dr Ranu provided a statement in which he confirmed that Mr Demetrio alleged he had been assaulted with hands placed around his neck, with pressure on his chest from a knee or someone's hands. He described Mr Demetrio as being shocked at what had happened during his arrest. He found a number of injuries including bruising around the right ear and a clear bruise on...
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