Herd, R (on the application of) v Independent Police Complaints Commission [2009] EWHC 3134 (Admin)

[2009] EWHC 3134 (Admin)Case No CO/11598/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 12 October 2009
Strand
London WC2
B E F O R E:
MR JUSTICE BLAIR
Between
THE QUEEN ON THE APPLICATION OF HERDClaimant-v-
Between
INDEPENDENT POLICE COMPLAINTS COMMISSIONDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr I Hare appeared for ClaimantMr Storrie appeared for Defendant
J U D G M E N T
[1]MR JUSTICE BLAIR: This is an application for judicial review pursuant to permission given by Mr Justice Beatson on 6 April 2009. In short, the question is whether by its decision of 2 September 2008 the defendant - the Independent Police Complaints Commission (IPCC) - lawfully decided not to uphold an appeal against a decision of the Suffolk Constabulary, such decision being not to record a complaint made by the claimant in this matter regarding his criminal record.[2]The facts are as follows. In 1991 the claimant was convicted of criminal damage and received a small fine. During the course of his employment in the financial services industry over the years 2004 to 2006 he came to suspect that information was circulating about his conviction and that he had a drug problem. It is fair to say that these suspicions were of a relatively generalised nature.[3]During the course of this matter he sent the police a long document which recounts the problems he has had over many years, including what he freely accepts was an addiction in earlier life to kerb-crawling as well as the poor state of his mental health from time to time. However for these purposes the only relevant point is as to the treatment of his conviction. Such convictions are recorded on the police national computer. There are different classes of conviction. Some can be accessed by third parties, others not. What the claimant wanted in this case was for his old 1991 conviction to be "stepped down". That means it would go into the latter category so that only the police would have access to it.[4]The claimant began the process of seeking to have the matter stepped down by a letter of 7 May 2007 to Suffolk Constabulary. A copy is no longer available. There was a reply on 15 May 2007 to the effect that if the matter was to be proceeded, with further information should be supplied. By an undated letter the claimant provided some - although not a great deal of - further information. However there was then a long document that is either the same as or similar to the one to which I have already referred. That is mentioned in a letter from the Suffolk Constabulary dated 26 July 2007. At that point in time the claimant was asked to detail what offences he was alleging so that it could be considered whether a further investigation was required. There is some question as to whether that information was provided but it does not greatly matter for present purposes.[5]On 16 January 2008 the claimant received a letter from Suffolk Constabulary sincerely apologising for the "extreme delay" in responding to his correspondence. This was put down to staff changes. It was said that if the claimant "still wished me to look into your conviction from 1991 I will ensure this is actioned as a matter of urgency". The claimant did indeed wish these matters to be properly dealt with as he saw it.[6]On 24 January 2008 he received a further letter from Suffolk Constabulary as follows. It drew attention to and explained the guidelines that apply as regards access to data recorded on the police national computer. It said that the - " ..... step down time periods were based on the age of the subject, final outcome, sentence imposed and offence category" and continued as follows - "From the information held about you, your convictions will not qualify to be stepped down at this time. Your 1997 conviction for possessing controlled drugs will not be stepped down until 15 December 2017." Not surprisingly, this caused the claimant considerable distress since there has never been a conviction recorded against him for the possession of controlled drugs. It appears that there was a telephone conversation between him and the police very shortly after receipt of that letter.[7]On 28 January 2008 the police sent an apology to the complainant in these terms:
"Please accept my apologies for the mistake that was made in this letter. I trust you were reassured of the actions taken to rectify this matter and that you are aware that your record contains a conviction for criminal damage in 1991."
The letter goes on to state:
"With regard to your conviction as stated above, this is not considered exceptional for deletion. However I have made arrangements for this to be stepped down."
The letter concludes as follows:
"I appreciate this response does not satisfy your request to have your record deleted. However I trust the above will assist you to understand the new rules applied to the deletion of information held on the police national computer."
That was how matters stood. But the claimant remained dissatisfied with the way that matters had been dealt with by the Suffolk police.[8]On 25 June 2008, he made a formal complaint. The terms of that complaint are important. Without reading out the entire letter, it can be broken down into three separate compartments. First, the claimant notes that he initially wrote to the police with regard to having his criminal record stepped down in April 2007 but the matter was not resolved until January 2008 which is, as he puts it, "an exceptionally long period of time". Secondly, he said as follows:
"With regard to likely illegal accessing of my criminal record and the further crimes which I believe have been committed, I would like to make it clear precisely what I am alleging against whom. I am alleging that my criminal record has been obtained illegally by one or more former clients of mine, investment banks in the City of London and Docklands."
This complaint has been described in this hearing as "the disclosure complaint". The letter goes on to say that the claimant does not know precisely how people came by the information he believes they came by, but he suspected that his criminal record was illegally accessed and the information sold to third parties.[9]Finally he deals with the letter to which I have referred in which a reference was made to his conviction for "possessing a controlled drug". As he said, this was subsequently acknowledged to have been a mistake in the letter of 28 January to which I have also referred. He said:
"I would like to know if Suffolk police or any other police force have had requests for my criminal record and provided this same erroneous information along with other details of my criminal record and to whom it was given."
[10]That letter received a response from Suffolk Constabulary on 18 July 2008. That response read as follows:
"Having considered the facts that you provide, they do not appear to comprise a complaint against the police. I shall therefore not be recording a complaint. However having regard to the detail provided in the latter part of your letter, I have referred it to the Information Compliance Manager for further consideration."
[11]The letter concluded by saying that if the claimant did not agree with the decision not to record a complaint against the police there was a right of appeal to the IPCC.[12]The claimant duly sought to exercise that right by a letter of 27 July 2008. That letter included a form which is entitled "Appealing against a complaint not being recorded". The matters state the complaint there as follows:
"I have notified Suffolk police which is responsible for my criminal record and I believe clients of my company had illegally obtained access to it."
The form continues - "For reasons best known to itself Suffolk police apparently does not believe it is responsible for investigating potential criminal disclosure of my criminal record by its serving or retired police officers or its civilian staff." That form was sent with an accompanying letter. There is, as I understand it, no dispute that the two documents are to be read together. The letter of 27 July 2008 states that it took a very long time for a response to come from the Suffolk police and there were numerous staff changes which delayed matters even more. That, it is submitted, clearly raises an appeal as regards the complaint relating to delay.[13]Secondly, there is reference in the letter to the possibility that - "corrupt serving or retired police officers or civilian staff of the Metropolitan and City Police may have been involved in passing on stolen information on my criminal record to the various investment banks I work for." That, it is submitted, raises the issue of disclosure.[14]Finally the letter says that the claimant "believes that erroneous information regarding offences which I did not commit has been passed on to my former clients". That, it is submitted, raises the issue of the mistaken conviction. The response from the defendant was contained in a letter dated 2 September 2008 attaching a decision. The letter states as follows:
"Before outlining our decision, I should explain that our role in the appeal process is not to investigate your complaint but to review: (1) whether or not the Suffolk Constabulary are the right police force to consider your complaint; and, if so, (2) whether or not they should have recorded it as a complaint as to the way their staff have behaved."
[15]The decision is then set out in a statement of findings. That document which is made by a caseworker states as follows. As to the background to the appeal, it is said that the claimant - "complains that former clients of his have obtained details from his criminal record. He is not aware of exactly how this information was obtained but suspects that his criminal record was accessed illegally and the information sold." The decision records the appeal grounds as follows. The claimant - " ..... complains that Suffolk Constabulary have failed to investigate the potential criminal disclosure of his criminal record. He states that this is by serving or retired police officers and/or civilian staff to his or his previous employee/ clients of his company. Also the claimant has provided information not relevant to the police or the IPCC and offered his personal opinions. However these are not relevant to the appeal against his complaint not being recorded."[16]There follows the appeal findings. Those state as follows:
"Did the force fail to notify the appropriate authority?"
The answer given is:
"Not applicable. Suffolk Constabulary are the appropriate authority."
Then - and this was the matter that the IPCC had to consider on this occasion - "Q. Should the matters raised have been recorded as a complaint? A. I agree with the force's decision not to record the complaint made regarding the claimant's criminal record. There is no specific allegation of misconduct of an officer of Suffolk Constabulary. Therefore the decision not to record is correct, and also the referral of the claimant's details to the information compliance manager is correct." That was how matters rested.[17]In the light of that decision the claimant has pursued these proceedings for judicial review, seeking a quashing of the decision of 2 September 2008. As I mentioned, following an initial refusal of permission on papers, on a renewed oral application permission was given by Mr Justice Beatson.[18]The parties are in agreement about the law applicable to the dispute. I can set this out relatively briefly. Complaints against and misconduct by the police are subject to Part II Schedule 3 of the Police Reform Act 2002. Section 12 provides that - "References to a complaint are references ..... to any complaint about the conduct of a person serving with the police." Such complaints must be made by specified categories of person, including - "a member of the public who claims to be the person in relation to whom the conduct took place." That is the category in which the claimant is said to fall.[19]In Section 12 (2), one finds the definition of "conduct matter". That definition is an important one for the purposes of this claim. In brief, "conduct matter" means any matter which is not and has not been the subject of a complaint but in the case of which there is an indication - whether from the circumstances or otherwise - that a person serving with the police may have committed a criminal offence or behaved in a manner which would justify the bringing of disciplinary proceedings.[20]The decision given by the IPCC in terms says that there is no specific allegation of misconduct of an officer of the Suffolk Constabulary. This was the subject of considerable debate in front of the court. I shall revert to it in a moment. However what is plain is that the mere fact that the identity of an officer is unascertained does not stand in the way of a complaint being recorded if the facts would otherwise warrant the recording of the complaint. This is by reason of the provisions of Section 23 (2) (1) of the Act which gives power to the Secretary of State to make regulations dealing with the conduct of a person whose identity is unascertained, taken together with Regulation 22 (1) of the Police (Complaints and Misconduct) Regulations 2004 which deals with the approach in such circumstances. There has been no argument before me as to detailed operation of those provisions, and I say no more about them.[21]However I should set out provisions by which the appeal to the IPCC arises. Schedule 3 (3) of the 2002 Act provides: "Where anything which is or purports to be a complaint in relation to which paragraph 2 has effect is received by the police authority" and the police authority decides not to take action for notifying or recording the whole or any part of what has been received the authority has to notify the complainant of that decision, the grounds for it and the complainant's right of appeal against it. That, as I pointed out, was what was done by police in the present case in July 2008, specifically the letter from which I have already quoted dated 18 July 2008.[22]Paragraph 3 (3) of Schedule 3 goes on to confer the right to appeal to the IPCC against - "any failure by the police authority to make a determination under paragraph 2 or to notify or record anything under that paragraph." Paragraph 3 (4) goes on to provide that - "On an appeal under this paragraph the Commission shall -(a) determine when and whether any action under paragraph 2 should be taken in the case in question;(b) if the Commission finds in a complainant's favour, give such directions as the Commission considers appropriate to the police authority or chief officer as to the action to be taken for making a determination or for notifying or recording what was received.(c) It shall be the duty of the police authority or chief officer to comply with any directions given under paragraph (b)." Those are the relevant statutory provisions.[23]The parties' arguments have been relatively straightforward. In substance, the claimant argues that his complaint was not accurately summarised in the decision of 2 September 2008. That decision reflected only one aspect of his complaint, namely the disclosure aspect, whereas there were, the other two relating to the delay in dealing with his request to have the conviction stepped down, and the mistaken drugs conviction that was mentioned in the letter of 24 January 2008. This, it is said, must fall within the statutory scheme because complaints of this nature are, in substance, complaints against individual officers albeit those officers are unidentified.[24]It is said in reference to the threshold conditions in Section 12 (2) of the Act that so far as improper disclosure is concerned, that would raise issues as to whether a criminal offence had been committed. So far as the other two matters are concerned, those might have justified the bringing of disciplinary proceedings. Therefore it is submitted that these were plainly complaints that should have been recorded as such.[25]The claimant also has maintained in his argument that the defendant has put its case in this matter on different bases. Mr Hare, for the claimant, submits that the court's approach in such circumstances is, as he puts it, to scrutinise with care attempts by public authorities to provide further and different reasons to those provided at the time, particularly if the further reasons produced are in response to the issue of the proceedings. There has been no challenge to that way of summarising the approach, nor does it seem to me to be particularly controversial. I need say no more than that this way of stating the basic principle as regards subsequent reasons was not in dispute.[26]What is submitted is that there was originally a simple ground, it is said, for declining to allow this appeal. That was that there was no named officer at Suffolk Constabulary identified by the claimant. That, it is submitted, was plainly a misdirection of law, reference being made to the provisions I have identified dealing with conduct of a person whose identity is unascertained. However, that aside, it is said that the decision falls to be treated as an unlawful one because it dealt with one but not the other two strands of the complaint, each of those being separate, and entitled to consideration in their own right.[27]Mr Storrie, for the defendant, has drawn attention to the definition of "conduct matter" in Section 12 (2) of the 2002 Act that I have already mentioned. He submits that the caseworker in cases of this kind must be guided by the documents which are put in by the claimant and, as he put it, what the complainant has sought to make of them. He points to the complaint as set out in the appeal form itself and the fact that in identifying the name of the police force about which the complaint was made, one finds the words "Suffolk police in the first instance", and counsel emphasises those latter three words.[28]Counsel relies on the fact that the claimant was invited to give further details about what it was that he was really complaining about and draws attention to the letter which was sent on 27 July 2008, and in particular passages in the letter that refer to a number of different organisations. The claimant said in that letter:
"I have had issues with the police forces of Suffolk and Nottinghamshire. I think it is also possible that corrupt serving or retired police officers or civilian staff at the Metropolitan and City Police may have been involved in passing on stolen information of my record to the various investment banks I have worked for here and intermediaries."
Reference is made to the last sentence of that letter by which the claimant said that he - "hope[d] that you will be able to swiftly come to my assistance in this matter and instigate the necessary investigations to uncover potential criminals who may conspire to ruin my career and cost me many hundreds of thousands of pounds in lost earnings."[29]It is submitted that the complaint in this case was not simply in relation to Suffolk Constabulary but the Metropolitan Police, the City Police and the Nottinghamshire Police, and indeed third parties as well have been mentioned by the claimant.[30]It is submitted by the defendant therefore that the substance of the matter in those circumstances was properly dealt with in the decision of 2 September 2008. What a complaint must do, it is submitted, is to establish the basis upon which the police authority in question is the right authority. That, it is submitted, was not done. Furthermore, objection was taken as to the vagueness of the complaint that was made.[31]What is said further as to the three strands of the complaint is as follows. First of all, in substance, in this case the disclosure issue, the defendant submits, was considered in the appeal decision and was dealt with appropriately.[32]Secondly, so far as the erroneous recording of a drug conviction is concerned, what is said is that essentially there was nothing in that anyway. It is right to say that the claimant did receive what Mr Storrie describes as a handsome apology on 8 September 2008 from the Chief Superintendent of the Suffolk Constabulary. That stated:
"With reference to the provision of the information to you in January regarding a drugs-related conviction, I wish to add my own personal apology for this error on the part of my data protection team. I can only imagine how distressing this disclosure must have been for you. As you mention ..... we have acknowledged this error and sent a letter of apology."
What is said is that either there was no substance at all in this head of complaint since it was a simple mistake as to what had actually been recorded against the claimant or alternatively I think Mr Storrie would say that it was within the spirit of the decision of 2 September 2008.[33]So far as delay is concerned, the defendant sought at the hearing to put in a further witness statement which contains a rather fuller version of the decision of 2 September 2008. It contains this passage: The complaint was made on 25 June 2008. However the claimant did not receive a response until 18 July 2008. This is obviously in excess of the 10-day requirement." Mr Storrie accepts, as is obviously the case, that this has to do with a relatively short delay in dealing with the complaint, and has nothing to do with the delay in dealing with the request to step down the conviction. In substance, he maintains however that the complaint was not such as to constitute potential misconduct on the part of the Suffolk police.[34]Those being the parties' submissions, I can express my conclusions as follows.[35]First, I think that Mr Hare for the claimant was right to say that there were three separate strands to this appeal: one concerning delay in stepping down the conviction; one concerning unlawful disclosure of the claimant's record; and one concerning the incorrect recording of his conviction. It is right at this point to re-state that the conviction against the claimant is and only is a very minor conviction in 1991 for criminal damage for which he received a fine of £25. Not surprisingly, in my view, that is something he wishes to ensure is not available to third parties since he has long outlived that period of his life.[36]Secondly, however I do accept the defendant's submission that the three separate strands were not very clearly articulated. I further accept that a case worker in these matters has to deal with the complaint as presented to him or her. These are not precise documents and in my view considerable latitude has to be given to the case worker to interpret the complaint made and reach a decision accordingly. The court will not lightly entertain judicial review of such decisions.[37]Thirdly, there are thousands of complaints made annually against the police. Statistics put in by the defendant show 4,323 appeals to the IPCC in the year to 31 August 2009 of which about a quarter refer to failure to record a complaint. There are a limited number of case workers available to deal with such complaints. For my part I would readily accept that brief appeal findings are acceptable, as was the case here, otherwise a backlog will build up with no commensurate benefit to those who have legitimate complaints.[38]Fourthly, fairly read, I would accept the Defendant's submission that the decision of 2 September 2008 did deal with the complaint so far as it related to unlawful disclosure. The fact that no officer was named does not conclude matters. In refusing permission originally on the papers, Sir Michael Harrison said as follows:
"Whilst it is arguable that the absence of a specific individual against whom complaint is made is not in itself an adequate reason for not recording a complaint, the complaint in this case was so general and vague and based on numerous assumptions and that the IPCC were, in my view, entitled to refuse to accept it as a complaint."
[39]That matter was touched upon by Mr Justice Beatson in granting permission on the renewed application before him on 6 April 2009. One reads in the last paragraph of his reasons the following:
"Mr Hare has invited me to give a fuller judgment than is usual when granting leave. He did so in the belief that should the IPCC's position as to whether there was a complaint against the police in this case be said to be erroneous, the matter would not need to proceed to an oral hearing. The IPCC may take the view on re-consideration that this is so and investigate the complaint. In view however of what is said about the vagueness of the allegation, I do not consider this to be inevitable."
[40]Clearly before a complaint has to be recorded by the police there must be a degree of specificity or else any sensible proportionate investigation is impossible. That appears to me to be the substance of the position in the present case in respect of the disclosure aspect of the complaint. I do not think that the Suffolk police wree obliged to record the complaint about the illegal accessing of his criminal record. It was much too vague to be dealt with in a proportionate manner.[41]Fifthly, however I need not reach a conclusion on this point, because I disagree with the defendant that the decision of 2 September 2008 deals with the complaint so far as delay and the incorrect recording of the conviction is concerned. In my view, it simply omits those aspects of the complaint. Nor do I think that the defendant's efforts to rationalise the decision effectively meet this simple objection. Nor can I say with confidence that the defendant is right to submit that there is nothing in these points anyway and that there was no need to record them. I should say no more as to that. The fact is, in my view, that they were left out of account by the decision maker and on that narrow ground the decision cannot, in my judgment, stand.[42]Accordingly I propose to quash the decision of 2 September 2008 and direct that the claimant's appeal be reconsidered.[43]I will hear counsel as to any consequential matters that arising.[44]MR HARE: There is the question about the claimant's costs. We say that the claimant has succeeded although we take into account the manner in which your Lordship expressed himself in his conclusions. We say that this would be an appropriate case for you to proceed to consider a summary assessment of the claimant's costs's. I hesitate there because I know Mr Storrie is going to propose a detailed assessment. I do not want to embark on an exercise that you will not need to conclude. I would say before I sit down and allow Mr Storrie to address you on that question that we would rely on the general presumption, this being a case that has taken less than a day, that it is an appropriate matter for summary assessment of costs. The additional consideration which we do say is a very live one today is that the claimant has been funding these proceedings himself. He is obviously therefore very concerned about delay in obtaining any of his costs and also of course in the additional costs that a detailed assessment would involve. We would propose that your Lordship should proceed to assess the matter summarily, but since Mr Storrie - I know - takes a different view - - - - -

MR JUSTICE BLAIR: Is there a schedule?

[46]MR HARE: There is a schedule, yes, which has been served.[47]MR STORRIE: The schedule indicates a grand total of £47,177.25. That follows, as my Lord would expect, a breakdown.[48]MR JUSTICE BLAIR: I am not sure that I have been given the schedule. (Same handed) Can we take it in stages? You have no submissions, do you, on costs in principle?[49]MR STORRIE: In principle, some reflection perhaps of the way my Lord expressed himself in the course of judgment, which is to say there may be some connection between the work done before the case and during the case and the judgment; in a sense rewarding the claimant for a proportion of his submissions but not entirely.[50]MR JUSTICE BLAIR: Mr Storrie, I do sympathise. These are always very difficult judgment calls but, albeit on a limited basis, the claimant has succeeded in having the decision quashed. I can see at the moment no reason why costs should not follow the event. That is without prejudice to the question whether there should be detailed or summary assessment.[51]MR STORRIE: The detailed assessment follows the questions that arise out of the schedule. I apologise if my arithmetic is letting me down, but there has been some 39 hours of consultation before this hearing between the claimant and his representatives.

MR JUSTICE BLAIR: You are asking for detailed assessment.

[53]MR STORRIE: I am indeed. Some cases demand rather intensive preparation, others are rewarded by it. In this case it is not quite clear why such an extensive amount of consultation and such an extensive level of contact should have been conducted.[54]MR JUSTICE BLAIR: It may be it was reasonable as between solicitor and client. You say you should not have to bear the costs as a party and the matter should go for detailed assessment.[55]MR STORRIE: Yes. Clearly an inquiry is appropriate.[56]MR HARE: We say that your Lordship is in a position to take a view on what the proportionate costs on a matter such as this are. Of course those considerations will involve the volume of documents, the fact that there was a third party and attendances on them and the fact of the manner in which the argument has been advanced on the part of the defendant, that is to say that it has changed - if I can put it that way - over the course of the months since the proceedings were issued up to the date of my friend's skeleton argument where we had the first indication that the defendant conceded one of the claimant's principal grounds, that is to say on the appropriate interpretation the law. I do not propose to go through with you those matters.[57]I would simply suggest to your Lordship that it is proper for you to have regard to the fact that there were two principal elements to this claim: one about a legal interpretation which has now been conceded a week before the hearing; and then three elements of complaint in the second part, on one of which you have not taken a final view but the claimant has succeeded on two of those. I would say it is not quite accurate to say that the claimant has narrowly got home and therefore should only be entitled to a very small proportion of his costs.

Ruling

[58]MR JUSTICE BLAIR: The claimant is to have his costs of the judicial review proceedings. However given the amount claimed which, for the record, is £47,177.25 it seems to me that it would be wrong to deal with that summarily. Costs recoverable against the defendant as a party to the litigation as opposed to what may have been entirely proper and reasonable as between the claimant and his own legal advisers seems to me to be something that should be the subject of detailed assessment.[59]MR HARE: That raises the question of whether or not you are minded - given the circumstances I described previously about the claimant funding this litigation on his own - to make some form of payment on account which I would invite you to consider. Mr Storrie wants to address you on that.

MR JUSTICE BLAIR: Mr Storrie, what do you say about that?

[61]MR STORRIE: May I take instructions?

MR JUSTICE BLAIR: Of course. (Pause)

[63]MR STORRIE: It is helpful sometimes to be very precise. What I was going to propose on behalf of the Commission is a payment of £15,000 on account.[64]MR JUSTICE BLAIR: If it is any consolation that was exactly what I had in mind. I think that is very sensible proposal. I shall make an interim order to that effect. How long do you need? (Pause)[65]MR STORRIE: May we ask for 14 days?

MR JUSTICE BLAIR: I do not think you will be arguing about that.

[67]MR HARE: No.[68]MR JUSTICE BLAIR: I am very grateful to both of you and those behind you for your assistance. Will you draft the order, Mr Hare?[69]MR HARE: Yes.[70]MR STORRIE: There is one matter and so everybody understands: before the hearing, in anticipation of this kind of outcome, it was arranged that case working staff in a different region of the IPCC would take charge of any review of this decision. The arrangements are already in place for someone to do that.

MR JUSTICE BLAIR: That is helpful.

[72]I do not think, Mr Hare, you would object if I said - for the benefit of the case worker - that no personal criticism is intended of her. My decision reflects my view of the law.

Cited in 1 later judgment