R the Commissioner of Police of the Metropolis v The Independent Police Complaints Commission Police Constable Harrington and Another (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Vos,Lady Justice Macur,Lady Justice Gloster |
| Judgment Date | 10 December 2015 |
| Neutral Citation | [2015] EWCA Civ 1248 |
| Docket Number | Case Nos: A1/2015/1015 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 December 2015 |
[2015] EWCA Civ 1248
Lady Justice Gloster
Lady Justice Macur
and
Lord Justice Vos
Case Nos: A1/2015/1015
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
LORD JUSTICE BURNETT AND MR JUSTICE WILLIAM DAVIS
Case Numbers CO/2398/2014 AND CO/3012/2014
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Clive Sheldon QC (instructed by Metropolitan Police Legal Services) for the Commissioner
Mr Jason Beer QC and Mr Russell Fortt (instructed by the IPCC) for the IPCC
Ms Alison Macdonald (instructed by Bhatt Murphy) for Mr Demetrio
Hearing date: 24 th November 2015
Introduction
This appeal raises a short point of law concerning the powers of the Independent Police Complaints Commission (the "IPCC"). The question that actually arises on the facts of the case is whether, once the relevant police authority (in this case, the Metropolitan Police Service ("MPS") represented by the Commissioner of Police of the Metropolis ("the Commissioner")) has agreed to take no action against a police officer in a specific matter as recommended by an IPCC investigation, the IPCC is functus officio so as to be unable to review or re-open its investigation. The Commissioner, as appellant, says that such a conclusion is demanded by the structure of the regime created by the Police Reform Act 2002 (the "2002 Act"), and by the fact that the public will only have confidence in that regime if the IPCC is required to "get it right first time". Conversely, the IPCC and the complainant, Mr Mauro Demetrio, the respondents in the appeal, support the Divisional Court's conclusion (Burnett LJ and William Davis J) that the decision of the IPCC in this case not to recommend or direct disciplinary action against one of the police constables who was the subject of a complaint by Mr Mauro Demetrio ("Mr Demetrio"), Police Constable Joseph Harrington ("PC Harrington"), was not an irrevocable decision.
Before turning to the details of the relevant legislation, the Divisional Court's decision and the parties' arguments, it is necessary very briefly to summarise the factual background.
Factual background
The relevant facts of this unfortunate case can be shortly stated. On 11 th August 2011, Mr Demetrio was arrested after being stopped whilst driving his car in Beckton. He was detained in the back of a police van accompanied by a number of police officers. Mr Demetrio complained on the same day that, in the course of that detention and whilst being transported to the Forest Gate custody unit, he was strangled and racially abused by police officers. The racial abuse was recorded by Mr Demetrio on his mobile phone and is not central to this appeal. The allegation that Mr Demetrio was strangled is, however, the foundation of the issue that I have described. The details are not important for these purposes, but they are carefully set out in the Divisional Court's judgment.
The IPCC decided to undertake its own investigation of Mr Demetrio's complaint against the police officers concerned. It appointed Ms Emma Yoxall as the Lead Investigator (the "Investigator") and Ms Sarah Patten to assist her (together the "investigators") to undertake that investigation. The Investigator informed Commander Spindler of the Directorate of Professional Standards Misconduct Unit in the MPS on 17 th August 2012 that the report had been finalised and was being reviewed by Commissioner Mike Franklin of the IPCC ("Commissioner Franklin") before being forwarded to him in accordance with paragraph 23 of schedule 3 to the 2002 Act.
On 31 st October 2012, the investigators produced their "Final Report" (the "Final Report") saying at paragraph 182 that there was "insufficient evidence to conclude PC Harrington strangled Mr Demetrio" and that there "was no case to answer for PC Harrington" on the allegation. The Final Report did, however, find a case to answer against PC Harrington and other officers in respect of other allegations arising from Mr Demetrio's four complaints relating to his arrest and subsequent treatment on 11 th August 2011. On 30 th October 2012 (for some reason the day before the date of the Final Report), Commissioner Franklin sent the Final Report to Commander Gibson of the MPS under paragraph 23 of schedule 3 to the 2002 Act, inviting him to issue a determination under paragraph 23(7) setting out what action, if any, the MPS intended to take in respect of the matters dealt with in the Final Report regarding the identified misconduct matters.
On 23 rd January 2013, Chief Inspector Kirsty Andrew of the MPS ("CI Andrew") wrote to Commissioner Franklin (the "Memorandum") asking him to treat the letter as her memorandum under paragraph 23(7) of schedule 3 to the 2002 Act, saying that "it is alleged that officers strangled Mr Demetrio, the officers being identified as Pc Harrington and Pc Elton. I agree with the IPCC assessment in this matter and there is no case to answer". CI Andrew disagreed with certain other recommendations of the Final Report including that PC Harrington should face an allegation of gross misconduct in relation to his failing to report the alleged racial abuse.
On 22 nd February 2013, Commissioner Franklin wrote to Chief Inspector Murphy of the MPS acknowledging the Memorandum and saying that he had considered it and the actions that the MPS intended to take in response to the matters in the Final Report. The letter dealt with other allegations agreeing with the MPS's proposal in one respect and disagreeing in another. It recommended that, in accordance with paragraph 27 of schedule 3 to the 2002 Act, on a balance of probabilities, there was a case against PC Harrington to answer for gross misconduct for failing to challenge the racial abuse of Mr Demetrio, and asked the MPS to inform the IPCC whether it accepted those recommendations and the steps it proposed to take in relation to them. If the MPS did not accept them, the IPCC said it would "consider whether to issue a direction". The letter was silent about the allegation that PC Harrington had strangled Mr Demetrio.
A correspondence ensued between the MPS and the IPCC about whether or not it was appropriate for PC Harrington to face gross misconduct charges in respect of his failure to challenge the racial abuse of Mr Demetrio. On 19 th April 2013, the MPS concluded by saying that, if the IPCC's assessment continued to be that PC Harrington should face a misconduct hearing in that respect, it formally requested the IPCC to make such a direction (under paragraph 27(4)(a) of schedule 3 to the 2002 Act). On 3 rd June 2013, the new Commissioner Jennifer Izekor of the IPCC (who had by this time inherited the matter from Commissioner Franklin) ("Commissioner Izekor") duly gave that direction to the MPS, also directing that the hearing should be held in public (the "Direction").
On 25 th June 2013, the IPCC wrote to Mr Demetrio's solicitors informing them of the Direction that had been made, and indicating the outcome of Mr Demetrio's other complaints including that the complaint that "[p]olice officers assaulted Mr Demetrio by strangling him … was not upheld", and saying that it was now in a position to provide Mr Demetrio with a copy of the Final Report.
On 6 th January 2014, Commissioner Izekor wrote to Commander Gibson of the MPS saying that she had attended the panel hearing of PC MacFarlane (one of the other officers present at the incident) and had "become increasingly concerned about the robustness of the IPCC's investigation into Mr Demetrio's allegation that PC Harrington strangled him". She said that, having taken counsel's advice, she was minded to re-open the investigation into that allegation and invited the MPS's views. Commissioner Izekor had presumably attended the disciplinary hearing that was held in private under the provisions of paragraph 29(1) of the Police (Conduct) Regulations 2012/2362, which allows the IPCC to attend misconduct proceedings and to make representations.
On 4 th February 2014, Deputy Assistant Commissioner Fiona Taylor of the MPS ("DAC Taylor") wrote to Commissioner Izekor saying that the investigators' findings on the point were "demonstrably well-reasoned and evidence based", so that "I do not think it can be said that the strangulation allegation has not been properly considered". DAC Taylor contended that the functus officio principle was applicable "on the basis that the IPCC has already made a determination in respect of misconduct matters for the officers concerned, and [had] no power to re-open that determination" unless the earlier determination was quashed.
Finally on 26 th February 2014, Commissioner Izekor issued a decision notice recording her decision to re-open the investigation into the allegation that Mr Demetrio was strangled by PC Harrington (the "Decision").
On 23 rd May 2014, the Commissioner issued these judicial review proceedings seeking to quash the IPCC's Decision and an order restraining the IPCC from carrying out any further investigation into the allegation that PC Harrington strangled Mr Demetrio, and a declaration that the IPCC was functus officio in these circumstances.
On 30 th June 2014, Mr Demetrio issued judicial review proceedings seeking to quash the conclusions in the Final Report and the decisions made in reliance on them.
On 20 th November...
To continue reading
Request your trial
-
Earl Ferguson v General Legal Council
...ministerial or administrative actor has performed a function in circumstances where there is no power to revoke or modify it’: Demetrio [2016] PTSR 891 at para 42…The panel had made its decision, if it had recorded its reasons for it, but the parties had not yet been informed of it. Since t......
-
Nicholas Eckland v Chief Constable of the Avon and Somerset Constabulary
...1; [2011] ICR 224; [2011] 2 AC 146; [2011] 2 WLR 103; [2011] 2 All ER 1, SC(E)R (Demetrio) v Independent Police Complaints Commission [2015] EWCA Civ 1248; [2016] PTSR 891, CAR (Deputy Chief Constable of Kent Police) v Chief Constable of Kent Police [2020] EWHC 2099 (Admin)R (Gray) v Police......
-
Michael Cooper v National Crime Agency
...if they are not) is plainly in the public interest: see also the Laverty judgment, at [49]. In R (Commissioner of Police of the Metropolis) v Independent Police Complaints Commission [2015] EWCA Civ 1248 at [34] and following, Vos LJ explained that an important object of the PRA 2002, incl......
-
Appeal By The Council Of The Law Society Of Scotland Against The Scottish Legal Complaints Commission (slcc)
...the Commission to take a case away from a professional body. The Commission relied upon R (Commissioner of Police of Metropolis) v IPCC [2016] PTSR 891 paragraph 34: but the Law Society’s position was that a provision such as paragraph 12, concerning an incidental power, could not assist in......
-
INDEPENDENT CRITICAL INCIDENT INVESTIGATION AGENCIES: A UNIQUE FORM OF POLICE OVERSIGHT.
...against SIU policy of requiring officers to attend SIU office for booking and fingerprinting); R. v. Indep. Police Complaints Comm'n, 2015 EWCA (Civ) 1248, para. 45 (Can.) (court finding that IPCC had authority to reopen a use-of-force investigation where there was a "compelling reason" to ......