R Shayab Miah v 1) The Independent Police Complaints Commission and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sales,Lord Justice Flaux,Lord Justice Jackson |
| Judgment Date | 14 December 2017 |
| Neutral Citation | [2017] EWCA Civ 2108 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: T3/2017/0173 |
| Date | 14 December 2017 |
[2017] EWCA Civ 2108
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT (ADMIN COURT)
THE HON. MR JUSTICE HICKINBOTTOM
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Rupert Jackson
Lord Justice Sales
and
Lord Justice Flaux
Case No: T3/2017/0173
Stephen Cragg QC and David Gregory (instructed by Hickman & Rose) for the Appellant
Jeremy Johnson QC (instructed by The Independent Police Complaints Commission) for the First Respondent.
The Second Respondent did not appear and was not represented.
Hearing date: 29 November 2017
Judgment Approved
This case concerns the investigation at the local police level of a complaint by the appellant against an officer of the Metropolitan Police Service ("MPS") and an appeal by the appellant to the Independent Police Complaints Commission ("IPCC") pursuant to the regime set out in Schedule 3 to the Police Reform Act 2002 ("Schedule 3").
The appellant is a British national of Asian ethnicity. He is a practising Muslim. On 30 August 2009, upon his return from a visit to India, he was stopped at Heathrow Airport and detained and questioned by a police officer of the MPS for a period of a little under an hour.
The officer was exercising powers conferred under Schedule 7 to the Terrorism Act 2000 to detain and question a person entering the United Kingdom for a period of up to 9 hours, in order to establish whether he is someone who is or has been involved in the commission, preparation or instigation of acts of terrorism. These powers allow for random stops to occur and can be used in cases where there is no ground for believing that the person stopped is actually involved in terrorism. A police officer exercising such powers does not have to give reasons for that exercise to the person who is detained and questioned. This ensures that if there is intelligence information in relation to that person (which there may or may not be), its existence and contents do not have to be revealed to him.
The appellant complained about this treatment at Heathrow and also about other treatment he had received at the hands of the Hampshire police. As regards being stopped, detained and questioned at Heathrow, the appellant's main complaint was that this had occurred as a result of discrimination against him on grounds of his religion.
Originally, on 7 July 2010, the appellant sent his complaint in respect of all matters to the Hampshire police. The investigating officer for the Hampshire police produced an extensive 13 page report regarding his treatment by them, which also identified that he had been detained and questioned at Heathrow by an officer of the MPS. The appellant was provided with a full and unredacted copy of the report by the investigator for the Hampshire police.
The appellant appealed to the IPCC in relation to that report. As part of its determination of that appeal the IPCC indicated that the appellant's passport had in fact had a "tag" placed on it, which was why he had been stopped at Heathrow. As I understand it, a tag in this context means a note entered on the computer system at passport control which is triggered when the passport is scanned upon entry into the country. The IPCC did not say why a tag had been placed on the appellant's passport. The IPCC also noted that the Hampshire police should have referred the appellant's complaint about his treatment at Heathrow on to the MPS. The appellant's complaint in relation to his treatment by the MPS officer at Heathrow was then referred to the MPS.
Inspector Bhatowa, who was from the Counter Terrorism Command unit of the MPS, was appointed as the investigating officer in relation to this complaint. Inspector Bhatowa produced a report dated 29 March 2012 ("the investigation report"). The full text of this report was provided to the appellant.
In relation to the appellant's complaint that he had been discriminated against by the MPS officer at Heathrow on grounds of his religion, Inspector Bhatowa wrote this under the heading "You feel your passport was tagged and that you were not stopped at random":
"Police officers using Schedule 7 powers are guided by the Codes of Practice for Examining Officers. The codes state:
"The powers must be used proportionately, reasonably, with respect and without unlawful discrimination. All persons being stopped and questioned by examining officers must be treated in a respectful and courteous manner. Examining officers must take particular care to ensure that the selection of persons for examination is not solely based on their perceived ethnic background or religion. The powers must be exercised in a manner that does not unfairly discriminate against anyone on the grounds of age, race, colour, religion, creed, gender or sexual orientation. To do so would be unlawful. It is the case that it will not always be possible for an examining officer working at a port to know the identity, provenance or destination of a passenger until they have stopped and questioned them".
As I have explained earlier, the codes of practice for examinations under schedule 7 does not require an examining officer to have any grounds or suspicion to stop, question or detain a person under this legislation. Following my review of the case, I am satisfied that the officer acted lawfully and followed the correct procedures when he used his powers to stop and examine you."
The conclusion section of the investigation report included this:
"Police officers have to abide by the Standards of Professional Behaviour as they perform their duties. The burden of proof that I must apply when considering such matters is the balance of probabilities. To determine that a standard has been breached, I must be satisfied that it is more likely than not that the officer's behaviour/actions fell below the standard.
On this basis, I am able to conclude that there is no evidence that the officer acted improperly and therefore I am unable to uphold your complaint
As I have found insufficient evidence to say that the officer has breached the Standards of Professional Behaviour, I will not be taking any disciplinary action on this occasion.
I can only reiterate that Ports officers carry out an essential role in keeping our borders safe and I sincerely hope that l have adequately explained the use of the their powers."
The investigation report did not acknowledge that the appellant's passport had had a tag placed on it, nor did it explain why that had been done. It gave no positive explanation of why the MPS officer had detained and questioned the appellant at Heathrow.
The appellant was dissatisfied with the investigation report. By letter dated 23 April 2012 from his solicitors, the appellant appealed to the IPCC. The letter summarised his grounds of appeal thus:
"1. The investigation did not address all of the issues raised in the complaint;
2. those issues which were addressed were not addressed adequately;
3. [the appellant] has not been given enough information about the substance of the investigation."
The letter then set out full details of his appeal in relation to a range of complaints about his treatment, including in relation to his complaint that he had been discriminated against because of his religion. In relation to that complaint, the letter referred to another part of the Code of Practice in relation to the exercise of powers under Schedule 7 to the 2000 Act, as follows,
"Although the exercise of Schedule 7 powers is not based on an examining officer having any suspicion against any individual, the powers should not be used arbitrarily … Selections for examination should be based on informed considerations such as those outlined above and must be in connection with the threat posed by the various terrorist groups active in and outside the United Kingdom."
It was pointed out that the investigation report failed to address this. It was also pointed out that the investigation report failed to address whether and why a tag had been placed on the appellant's passport, even though it appeared from the previous IPCC determination that one had been.
In the course of the IPCC's investigation for the purposes of the appeal it emerged that the actions of the MPS officer at Heathrow and the production of the investigation report took place in the context of provision of secret information by the intelligence services to the MPS. That was also the background to the treatment by the MPS of complaints about police conduct in a number of other cases as well. The MPS felt constrained by security concerns in relation to national security in relation to information of this kind to such an extent that its stance was that it could not provide details about it to the IPCC in the course of appeals being conducted by the IPCC under Schedule 3 to the 2002 Act.
This led to a dispute between the police and the IPCC regarding the provision of secret intelligence material to the IPCC for the purposes of its investigations in relation to an appeal. This dispute resulted in the IPCC issuing judicial review proceedings against the MPS in October 2013 in relation to three test cases (which included the appellant's case). The IPCC maintained that the MPS was not complying with its statutory obligations under Schedule 3 to provide it with information about complaints. Permission was granted and the IPCC and the MPS then settled the proceedings on the footing that the MPS would provide the IPCC with relevant secret intelligence material in its hands but would be afforded an opportunity to make representations and apply to court if the IPCC proposed to refer to such...
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