Shayab Miah v The Independent Police Complaints Commission The Commissioner of Police of thex Metropolis (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom |
| Judgment Date | 21 December 2016 |
| Neutral Citation | [2016] EWHC 3310 (Admin) |
| Date | 21 December 2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3068/2016 |
[2016] EWHC 3310 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Hickinbottom
Case No: CO/3068/2016
The Queen on the application of
and
Stephen Cragg QC and David Gregory (instructed by Hickman and Rose) for the Claimant
Jeremy Johnson QC (instructed by IPCC Legal Services) for the Defendant
The Interested Party neither attending nor being represented
Hearing date: 6 December 2016
Further written submissions: 8–9 December 2016
Approved Judgment
Introduction
Paragraphs 2(1) and 6 of Schedule 7 to the Terrorism Act 2000 ("the 2000 Act") empower an "examining officer" (including a police constable) to stop, detain and question a person at a port for the purpose of determining whether he appears to be a person who is a "terrorist" as defined in section 40(1)(b), i.e. a person who is or who has been concerned in the commission, preparation and instigation of acts of terrorism.
These powers lie outside the regulatory framework that covers other police powers of stop; and they may be exercised whether or not the officer has grounds for suspecting that a person is a terrorist (paragraph 2(4) of Schedule 7). Individuals stopped under the powers are not entitled to know if there are grounds for suspecting they are terrorists; and, if there are such grounds, what they might be. They are not under arrest, but may be examined for up to nine hours, during which time they may be questioned, searched and have samples of biometric data (including DNA and fingerprints) taken from them, regardless of the outcome of the encounter and all in the absence of a lawyer. Those stopped under these provisions are obliged to co-operate or face arrest, a period of imprisonment and/or a fine. As Mr Cragg QC, for the Claimant Shayab Miah, emphasised, these are intrusive and draconian powers.
The Equality and Human Rights Commission Research Report No 72 ("The Impact of Counter-terrorism measures on Muslim Communities"), published in 2011, said that the exercise of Schedule 7 powers were "having some of the most significant negative impacts across Muslim communities…"; and, for some Muslims, the stops had become routine. The annual reports of the Independent Reviewer of Terrorism Legislation David Anderson QC ("the Independent Reviewer") indicate that a high proportion of those stopped and examined under Schedule 7 are ethnically Asian. In the year 2010–11, 26% of those examined for less than one hour, and 45% of those examined for more than one hour, were Asian.
The Claimant is a British national. Ethnically, he is Asian. He is a practising Muslim.
On 30 August 2009, the Claimant arrived back in the United Kingdom from a visit to India. At Heathrow Airport, he was stopped and detained by a police officer, and was questioned for nearly an hour, under the provisions of Schedule 7.
Afterwards, the Claimant complained to the police, saying that the police officer who had stopped him had discriminated against him on the basis of his race and/or religion, i.e. he had been stopped because he was Asian and/or Muslim. That complaint was not upheld; and the Claimant appealed to the Defendant, the Independent Police Complaints Commission ("the IPCC"). On 16 March 2016, the IPCC made a decision dismissing that appeal. It is that decision which the Claimant challenges in this claim.
Before me, Stephen Cragg QC and David Gregory appeared for the Claimant, and Jeremy Johnson QC for the IPCC. I thank them all for their oral and written submissions.
The Statutory Scheme for Police Complaints
The IPCC was established by section 9 of the Police Reform Act 2002 ("the 2002 Act"), as a result of concerns about the independence and effectiveness of the Police Complaints Authority which it replaced. Statutory references in this part of the judgment are to the 2002 Act, unless otherwise appears.
The statutory functions of the IPCC include securing the maintenance of suitable arrangements for handling complaints made about the conduct of police officers; and also securing that public confidence is established and maintained in those arrangements (section 10).
Part 2 of the Act, headed "Complaints and Misconduct", applies to "any complaint made about the conduct of a person serving with the police which is made (whether in writing or otherwise) by a person who claims to be the person in relation to whom the conduct took place" (i.e. "the complainant") (section 12). Schedule 3, given effect by section 13, sets out the powers and duties of the IPCC in handling complaints, which seek to ensure that complaints are properly investigated and, where appropriate, police officers face disciplinary proceedings. It has been fairly said that, "The whole process is concerned to ensure that there is a proper investigation into complaints against the police and an independent final arbiter of whether disciplinary proceedings should follow" ( R (Demetrio) v Independent Police Complaints Commission [2015] EWHC 593 (Admin) at [42] per Burnett LJ).
There are some circumstances in which the IPCC itself performs the investigation; but, generally, where a complaint is made against the police, it is for "the appropriate authority" to appoint a person to investigate the complaint (paragraph 17 of Schedule 3); and the "appropriate authority" is the Chief Officer of the police force in question (Section 29(1)(a)(ii)).
Even if the appropriate authority arranges the investigation, under paragraph 15(4)(b) of Schedule 3, the IPCC may supervise it. Where the investigation arranged by the appropriate authority (whether or not supervised by the IPCC), section 20(2) imposes an obligation on the appropriate authority to provide a complainant "with all such information as will keep him properly informed, whilst the investigation is being carried out and subsequently, of all the matters mentioned in subsection (4)". Section 20(1) imposes a similar obligation upon the IPCC when it conducts or manages the investigation. The matters set out in section 20(4) are as follows:
"(a) the progress of the investigation;
(b) any provisional findings of the person carrying out the investigation;
(c) whether any report has been submitted under paragraph 22 of Schedule 3;
(d) the action (if any) that is taken in respect of the matters dealt with in any such report; and
(e) the outcome of any such action"
The Secretary of State may provide exceptions to the obligation imposed on the appropriate authority under these provisions, but, section 20 goes on to limit the scope of possible exceptions, as follows:
"(5) The duties imposed… on the… appropriate authority in relation to any complaint shall be performed in such manner, and shall have effect subject to such exceptions, as may be provided by regulations made by the Secretary of State.
(6) The Secretary of State shall not by regulations provide for any exceptions from the duties imposed by this section except so far as he considers it necessary to do so for the purposes of…
(b) preventing the disclosure of information in any circumstances in which it has been determined in accordance with the regulations that its non-disclosure –
(i) is in the interests of national security
(ii) is for the purposes of the prevention or detection of crime, or the apprehension or prosecution of offenders;
(iii) is required on proportionality grounds; or
(iv) is otherwise necessary in the public interest.
(7) The non-disclosure of information is required on proportionality grounds if its disclosure would cause, directly or indirectly, an adverse effect which would be disproportionate to the benefits arising from its disclosure.
(8) Regulations under this section may include provision framed by reference to the opinion of, or a determination by, the [IPCC] or any local policing body or chief officer."
The Secretary of State made regulations under section 20, namely the Police (Complaints and Misconduct) Regulations 2004 (SI 2004 No 643) as amended ("the Complaint and Misconduct Regulations"), which, although subsequently replaced, apply to this case. Regulation 12 provides (so far as relevant to this claim):
"(1) Subject to paragraph (2), the duties mentioned in section 20… (2) (duty to keep complainant informed)… shall not apply in circumstances where in the opinion of the… the appropriate authority, the non-disclosure of information is necessary for the purpose of –
…
(b) preventing the disclosure of information in any circumstances in which its non-disclosure –
(i) is in the interests of national security
(ii) is for the purposes of the prevention or detection of crime, or the apprehension or prosecution of offenders;
(iii) is required on proportionality grounds; or
(iv) is otherwise necessary in the public interest.
(2) The… the appropriate authority shall not conclude that the non-disclosure of information is necessary under subparagraph (2) unless it is satisfied that –
(a) there is a real risk of the disclosure of that information causing an adverse effect; and
(b) that adverse effect would be significant."
Once the investigation has been completed, a report is sent to the appropriate authority (paragraph 24(1) of Schedule 3), which must then determine whether any police officer whose conduct has been investigated has a case to answer in respect of misconduct or gross misconduct or has no case to answer, and whether or not that officer's performance is satisfactory or unsatisfactory (paragraph 24(6)(a)). It also has to determine any other action it proposes to take (paragraph 24(6)(b)).
The appropriate authority is then...
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