Rutherford, R (on the application of) v Independent Police Complaints Commission [2010] EWHC 2881 (Admin)

Case No CO/11727/2009[2010] EWHC 2881 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 22 October 2010
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE OUSELEY
Between
THE QUEEN ON THE APPLICATION OF RUTHERFORDClaimantv
Between
INDEPENDENT POLICE COMPLAINTS COMMISSIONDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
MR L THOMAS appeared for ClaimantMR M HOLDCROFT appeared for DefendantMISS A STUDD appeared for Interested Parties
J U D G M E N T
[1]MR JUSTICE OUSELEY: The claimant, Mr Joseph Rutherford, challenges the decision of the Independent Police Complaints Commission dated 9 July 2009 not to uphold his appeal to it against the decision by the investigating officer on his complaint against the Metropolitan Police Commissioner and a number of officers.[2]On 25 September 2007, at about 4.15pm, the claimant, aged 18, and his younger brother, 17, and a friend were in the Rutherfords' mother's P registered Metro in Thornton Heath, Croydon. The claimant was the driver. He was driving with her permission and lawfully. Two police officers, not in uniform and in an unmarked police car, saw them drop off the friend in the car, concluded that the two brothers looked rather young to be driving, as for their age they apparently did, and checked the number plate on the Police National Computer which showed that it was registered to a female in Tadworth, Surrey. At least one of the officers was suspicious, because that type of Metro was easy to steal and a favourite of so called joy riders. Both officers suspected that it had been stolen. They turned on the siren and flashed their blue lights to get the Metro to stop. It did so immediately and the police car stopped opposite it. The investigating officer described what happened next in this way: "In terms of what occurred next there is basic agreement. Joseph Rutherford got out of the driving seat of the vehicle and approached the officers, leaving his brother in the front passenger seat. Both officers got out of the police vehicle and DS Barnfather spoke to Joseph Rutherford, showing him his warrant card. It is raining at this point and DS Barnfather requests that Joseph Rutherford sit in the rear of the police vehicle whilst he asks him some questions regarding the vehicle. PC Tozer approaches the Metro in order to deal with [the younger Rutherford] who is still sat in the passenger seat. PC Tozer opened the door to the Metro and spoke with [the younger Rutherford]. He showed him his warrant card. Because of the inclement weather, PC Tozer got into the vehicle. [The younger Rutherford] became uncomfortable with the officer's presence and attempted to get out of the vehicle, opening the front passenger door. PC Tozer attempted to prevent him leaving by grabbing at the boy's arm from his position in the driver's seat. During the course of this struggle PC Tozer sustains an injury to his face; the exact mechanism for this injury is disputed but it is agreed that [the younger Rutherford] was attempting to get away from the officer. From his position in the back of the police vehicle Joseph Rutherford saw PC Tozer struggling with his younger brother. He immediately gets out and runs to the driver's window of the Metro. Again, the exact facts are the subject of some dispute but Joseph manages to release his brother from PC Tozer's grip. Joseph tells his brother to run and both boys then decamp down the road and away from both officers".[3]The reason why the younger brother was uncomfortable and his older brother was protective towards him arose from a concern that the two officers were not plain clothes police officers at all but were attempting an abduction or assault. This fear arose from an incident not long before in which the younger brother had been enticed into a car by a strange male. The fear was genuine but not one those officers were aware of at the time.[4]After the brothers decamped down the road and away, they were chased by the two plain clothes police officers and other police officers joined in. When the police caught up with them there was a struggle before they were arrested, in the course of which the claimant was punched quite hard by a police officer. The brothers were eventually taken to Lewisham Police Station, interviewed on tape, and they accepted formal cautions, without legal advice, in respect of offences of assaulting a police officer in the execution of his duty. The assault in question arose from the incident in the Metro where the younger brother struck PC Tozer trying to get out of the car and the older brother punched PC Tozer in the face to force him to release his grip.[5]The brothers had no previous convictions, cautions or reprimands.[6]The next day, 26 September 2007, the two brothers and their mother made complaints that two officers had assaulted the complainant, had used excessive force in his arrest, that four officers had conspired to misrepresent the circumstances of the incident, and had failed to act with fairness in accordance with the relevant codes. The complaint clearly focussed on the circumstances surrounding the arrest in the street after they had run off from the car, the circumstances surrounding the investigation at the police station and the way in which the cautions were taken. It did not relate directly to the stopping of the car by the police, although there were some factual differences over, for example, precisely how clearly either officer had shown their warrant card to the boys.[7]The complaint was made under the Police Reform Act 2002 and the related Police Complaint and Misconduct Regulations 2004 SI643. The purpose of an investigation into the complaint is to discover whether there is a case to answer in respect of misconduct. The investigating officer obtained witness statements from the officers and the complainants, and interviewed the officers under caution and also interviewed the two brothers. He concluded that there had been an error in the case of the younger brother, in that he had been administered the adult caution when he should have been cautioned as minor. That caution has therefore been expunged from his record. However, the investigating officer found that there was no evidence to prove that the officers had committed any criminal offence or done anything in breach of any Police Conduct Regulations. He commented in paragraph 82 that there was "no actual dispute" that the police officers had stopped the car lawfully. At the end of his report into the complaints the investigating officer added this, which is what has led to this case: "(4) Recommendations on other issues (a) Learning points for the force - Whilst not forming part of the Rutherford's original complaints, nor discussed in detail by this report, it would seem apparent to the investigating officers that in turning on the covert blue lights and tow tone sirens on the vehicle, DS Barnfather and PC Tozer have effectively requested [the younger Rutherford] and Joseph Rutherford to stop their vehicle. However, the officers would not be able to rely on section 163 of the Road Traffic Act 1988 (as amended by the Road Traffic Act 1991 and section 49 of the Police Reform Act 2002), as this only gives police officers in uniform the power to stop a mechanically propelled motor vehicle. Regulations state that plain clothes police officers in unmarked vehicles can request private vehicles to stop if their vehicles are equipped with appropriate visual and audible warning equipment (i.e blue lights and two tones), but the driver would not commit any offence under the Road Traffic Act by failing to so. DS Barnfather and PC Tozer were not directly questioned on this specific point during their tape recorded interviews, but stated that they had suspicions regarding both the vehicle and occupants. These suspicions were around the age and behaviour of the occupants, the result of the PNC check, and the type of vehicle it was. It may therefore be likely that they were relying on the auspices of section 1 of the Police and Criminal Evidence Act which gives a wide power to stop and search vehicles and persons for prohibited or stolen articles. The vehicle itself can be a stolen article for the purposes of the legislation. Although DS Barnfather and PC Tozer's actions in this particular incident are not unlawful, it was felt prudent by the investigating officers to highlight this particular issue with the officers' management, to consider as a learning issue for their future reference when dealing in plain clothes with persons in motor vehicles".[8]By letter dated 30 September 2008 the claimant and his mother appealed to the IPCC under paragraph 25.2 of schedule 3 to the Police Reform Act. The appeal letter stated:
"The primary grounds for appeal in this matter are two-fold - (1) the lawfulness of the stop/arrest in this case has not been properly established and/or properly explained ... in particular we take issue with paragraph 82 which says that it is not in dispute that the stop of a car was lawful. Now that we have received this report and had clarification of the basis upon which our client was stopped, the question of whether or not the stop was in fact lawful is very much in dispute and this should not have been assumed"
. The letter went on to say:
"Clearly as a matter of law it is important that the basis for the original stop is ascertained. It is clear and obvious that the law surrounding stopping of vehicles normally (and perhaps always) requires the officer to be in uniform. Therefore the fact that these officers were not in uniform is something that should have occurred to the investigating officers as being significant and therefore they should have dealt specifically with the question of whether or not them not being in uniform renders the stop unlawful"
. The letter contended that the lawfulness of the stop mattered because all that then happened flowed from the stop.[9]This was therefore an appeal, fitting it into the available grounds of appeal, on the grounds that the complainants had not been provided with adequate information about the findings of the investigation. As the IPCC explained in its letter of 9 July 2009 not upholding the appeal, its role in the appeal process is to review the investigation into the complaint not to re-investigate the complaint and its circumstances. The essence of the ground of appeal was that the officers had not been asked to provide their own explanation of the legal powers which they thought they were exercising when sounding the siren and flashing their lights for the Metro to stop.[10]The appeal assessment by the IPCC said this:
"This appeal only needs to consider one particular point on the grounds of information; has enough information been provided to the complainant in relation to the lawfulness of the initial stop? ... The point about the officers not providing a response was raised in Mrs Rutherford's appeal, in the statement of findings (our forms have since been revised) I stated: 'Although it is regrettable that the officers were not asked specifically under what legal provision they felt they had power to stop the boys I do not think that asking the question of the officers now will add anything to the investigators report or change the outcomes'. The amount of time that has passed since the incident will have a significant impact on the officers' ability to provide accurate recollections, and seeing as the force legal adviser has provided a response and the officers have had the opportunity to read the report, it is unlikely they will deviate from the explanation that has been put forward."
[11]The assessment referred to the available powers in this way: "There is a general power to stop vehicles arising under sec 163 of the Road Traffic Act 1988. The obligation to stop under RTA 163 arises where the officers are in uniform - a failure to stop in such circumstances amount to an offence. There is nothing to prevent an officer attempting to stop a vehicle when in plain clothes and in an unmarked car however in such circumstances a failure to stop would not, in itself, be an offence. There is no power under sec 1 Pace 1984 to stop a vehicle when you are not in uniform (sec 2(9)(b) - however a section 1 pace search can be undertaken when officers are not in uniform provided they identify themselves (code A para3.9) appropriately once the stop has occurred - so the stop was lawful in this case (and there was no obligation to have reasonable suspicion to undertake the stop) and the fact that the officers were never asked about the power they deployed is not an issue - they have used the correct power even if they were not aware what it was".[12]Mr Thomas, for the claimant, who has said everything that could properly be said on his behalf, submits, first, that the stop could not have been lawful unless the officers knew which power they were exercising and that only they would know which powers they thought they were exercising. The lawfulness of the stop did not depend on whether the power existed for what they did in the circumstances known to them. Mr Thomas submits, secondly, that as the stop was unlawful, or at least never shown to be lawful, PC Tozer was not acting in the execution of his duty when he tried to stop the younger brother leaving the car and was hit by both the younger brother and the claimant. That is to say he was not acting in the execution of his duty at the time of the assaults which were the subject matter of the caution.[13]I reject those submissions, preferring instead those of the defendant and the interested parties. First, Mr Thomas accepted that if the stop had been lawful, the subsequent actions of the police in separating the boys and, importantly, in seeking to prevent the younger brother leaving the car were lawful actions and would have been actions in the execution of their duty. The same would have been true, he accepted, if the car had already been stopped, for example by the driver, to let the friend out at the time when the police approached.[14]Second, it is plain that section 163 of the Road Traffic Act 1988 gave no power to the police in this instance to require the car to stop because they were not in uniform. It is also clear that section 1 of the Police and Criminal Evidence Act 1984 does not provide such a power either. The power to detain someone or search a vehicle does not give a power to a constable not in uniform to stop it. No other possibly relevant statutory power has been suggested.[15]However, it is also clear that at common law a plain clothes police officer does have a power to request a car to stop, see Steel v Goacher [1983] RTR 98 at page 103. Griffiths LJ said this:
"It is not therefore necessary to decide what might have been the position if the police officer had acted in excess of his powers in requiring the motorist to stop. It is, however, to be observed that precisely this position was considered by this court in Winter v Barlow [1980] RTR 209 and it was held that notwithstanding the police officer's mistaken view of his power to stop the motorist, he was, nevertheless, entitled to require the motorist to take a breath test as a result of smelling alcohol upon the motorist's breath"
. It may be otherwise if the reason for requesting a vehicle to stop is capricious or oppressive, but that could not be at issue here, because the police had clear reasons providing an adequate justification for requesting the Metro to stop, namely they genuinely believed on reasonable grounds that the car had been stolen.[16]It would not have been an offence for the claimant to refuse to stop when an unmarked police car with plain clothes officers inside sounded the siren and flashed the lights. This contrasts with the position in relation to a uniformed officer exercising powers under section 163 of the Road Traffic Act. Although a responsible driver would do as the claimant did here and stop upon the sounding of the siren and the flashing of blue lights, that does not turn a firm, even peremptory or impolite, request into the exercise of compulsion where there is no penalty for refusal to comply. This is not a case in which the refusal to stop in response to a request led to more assertive actions to compel the car to come to a halt.[17]On the first issue, the short point is whether it matters that a police officer knows whether he is acting under common law powers or erroneously thought that he had powers under, for example section 163 of the Road Traffic Act and was exercising those powers. If that does matter there may be an argument that the investigation was inadequate, although it is by no means plain that the argument would succeed in the light of the way the point arose and the limited nature of the available grounds of appeal to the IPCC. However, the fundamental basis for the contention put forward by Mr Thomas is clearly misconceived. It is not disputed, as I have said, that the police had a proper basis, in a reasonably founded suspicion that the car was stolen, for requesting it to stop. I am not purporting to erect such a requirement as a necessary precursor to the exercise of the power to request a car to stop; I am simply saying that a proper basis in common law for exercising the power plainly existed. This is not a case either in which some procedural requirement of the power actually deployed was ignored because the officers thought they were using a different power.[18]Accordingly, at the time at which the police officers acted as they did, with the belief they had, the police officers were empowered to act as they did. The power existed and they were justified in using it. There is no requirement at common law for them to be aware of the legal origin of the power they were exercising in order for the exercise of the power to be lawful. A legally accurate identification of the precise legal power under which a police officer acts is not, in the absence of specific provision to that effect, a requirement of its lawful exercise. There is no requirement to call the statutory provision or the correct section or subsection to mind at the moment a police officer exercises any power of stop, arrest or search in order for its exercise to be lawful. An act is not unlawful because a police officer does not ask himself or forgets which power he had, provided that he had the power to do what he did with the knowledge and belief which he had. No authority exists for Mr Thomas' proposition that knowledge of the legal origin of the power being used at the time it is used is necessary for its lawful exercise. I am not surprised that no authority exists; the proposition is untenable.[19]I turn to the second issue. Even if the stop had been unlawful for the reason contended for by Mr Thomas, it does not follow at all that all subsequent steps, including the ones which led to the assault in the execution of the police officer's duty, are unlawful. Mr Thomas accepted that if the vehicle had already been stopped, the officers would have been entitled to act on what reasonable suspicion they had, in the way they actually did and would have been acting in the execution of their duty. The mere fact that the vehicle was stopped by the police rather than already stationary cannot effect what powers exist to question and search those who are in the by now stationary vehicle. If after an unlawful stopping of the car the actions taken are justified in the use of the separate powers to question and search, the unlawfulness of the stop is completely irrelevant. A parallel would be where an unlawful arrest leads to the discovery of a legitimate basis of arrest, and a further arrest then lawfully takes place. It is not necessary for everyone to be returned to the last lawful situation, physically and mentally, before further powers are lawfully exercised. Of course there may be cases where what makes the stopping of a car unlawful, for example an intention to act in an oppressive manner, may also mean that no justification exists for the later exercise of the powers to stop and question an individual or search him or the vehicle, but that is because there was no basis for the exercise of those subsequent powers rather than a consequence of the unlawfulness of the original stop. In any event, that is not the way in which the alleged unlawfulness arises here.[20]Accordingly, the fact that the officers themselves were not asked what power they thought they were exercising has no bearing at all on the existence, availability or justification for their use of the powers which they had to do what they did. It could not affect the question of whether PC Tozer was acting in the execution of his duty when the claimant assaulted him. There is no need for the investigating officer to ask them and the IPCC was right to conclude that there was no fault on his part in not raising it. Accordingly, this application is dismissed.[21]I add that it is not necessary for me to deal with any rationality argument based on the lack of direct connection between the complaints raised on 26 July 2007 and the powers used in any stop, which never appeared to be the subject of complaint anyway.[22]Nobody has any applications?[23]MR HOLDCROFT: My Lord, the claimant is legally aided, so obviously there will be the usual order in relation to assessment of the legal aid. I have provided my learned friend with a schedule of the defendant's costs, I do not know if that has been provided to the court?

MR JUSTICE OUSELEY: No.

[25]MR HOLDCROFT: It is in the grand sum of £2,036.87. My learned friend accepts that the claimants should bear the defendant's costs in that sum but of course, given that the claimant is legally aided, I ask that that be a sum not to be enforced without the permission of the court.[26]MR JUSTICE OUSELEY: Yes. Anything you want to say about that, Mr Thomas?[27]MR THOMAS: Well, obviously costs are a matter for this court ultimately. I accept that I have not been successful in my challenge.[28]MR JUSTICE OUSELEY: Well, there will be an order for payment by the claimant of the defendant's costs in the sum of £2036.87.[29]MR HOLDCROFT: Yes, my Lord.[30]MR JUSTICE OUSELEY: Order not to be enforced without leave of the court. And you may of course have detailed assessment.[31]MR THOMAS: Thank you. My Lord, I do have an application to make. I do seek permission to appeal.

MR JUSTICE OUSELEY: Yes.

[33]MR THOMAS: I seek permission to appeal because -- it is always difficult having just been knocked back -- but despite your Lordship's ruling, this is an extremely important point in my respectful submission. There is a lack of clarity, I would say respectfully, on this point. My Lord, the implications of what you have concluded are far reaching, particularly in relation to what you have said vis-a-vis whether or not it matters if a police officer does not know, or cannot say, what the reason for the stop was as long as he has acted in a certain way.

MR JUSTICE OUSELEY: Well, that is not quite what I decided.

[35]MR THOMAS: We say these are matters that should be considered --

MR JUSTICE OUSELEY: This goes to the Court of Appeal does it?

[37]MR THOMAS: Yes, it does. I asked my friend who represents the interested persons, having not had an opportunity to ask my friend --[38]MR JUSTICE OUSELEY: But it is agreed between the three of you that this is not a supreme court matter, it goes to the Court of Appeal? Well, fine I will take that then.[39]MR THOMAS: Yes.[40]MR JUSTICE OUSELEY: Mr Thomas, it will come as no surprise to you that I am not going to grant you permission to appeal. For the reasons I have given in my judgment, I do not think there is actually a point of importance in this case at all, other than a wholly unarguable one.[41]MISS STUDD: My Lord, I do not have a schedule of costs.

MR JUSTICE OUSELEY: Well, you will not get any then.

[43]MISS STUDD: Could I ask at least for the costs of my acknowledgement of service --[44]MR JUSTICE OUSELEY: Yes, you can ask for that. In the sum of?[45]MISS STUDD: £820.83.

MR JUSTICE OUSELEY: Yes.

[47]MR THOMAS: My Lord, I do resist that. This is a judicial review and the interested party is here to assist if they wish to assist. The normal rule is that there should not be two costs orders against a litigant in judicial review proceedings unless there are exceptional reasons and there are no exceptional reasons why there should be two costs orders against the litigant.[48]MR JUSTICE OUSELEY: Well, you are right about the general approach Mr Thomas, but the officers have a very direct interest quite separate from the Independent Police Complaints Commission in the continuance or discontinuance of the complaints against them.[49]MR THOMAS: My Lord, I appreciate that but the test is not simply that. The test is, and this is why it is important to look at the stance taken by both the defendant and the interested party, the points that my friend who represents the individual officers, the interested parties, were more than adequately covered by the IPCC, and I made that clear in my skeleton, if you look at the argument prepared by both. My Lord, can I invite you to have a look at my friend's skeleton argument who represents the individual officers because she actually says in her skeleton -- just bear with me one moment.[50]MR JUSTICE OUSELEY: Well, you need not trouble about that aspect because she is only asking for the costs of the acknowledgement of service, as I am not going to give her costs because she has not produced a schedule. So it is confined to the costs of the acknowledgement of service.[51]MR THOMAS: Well, my Lord, as I say, it is still unusual. There is no good reason for displacing the usual rule, there has not been a schedule that has been prepared, and in those circumstances I do strongly urge your Lordship not to award costs, going against the usual rule on a legally aided litigant. I can say no more.[52]MR JUSTICE OUSELEY: I am going to make an order for the payment of the costs of the acknowledgement of service of the interested parties, subject again to not being pursued without leave of the court in the sum of £800. The issue in relation to the IPCC investigation goes directly to the continuation of serious complaints against the officers. They clearly have a separate interest. They do not seek the costs of representation here but it is, in my judgment, appropriate for them to put themselves in the position of being able to participate by providing grounds of defence and acknowledgement of service from their perspective. I do think that where there are specific allegations made against individuals, such as the police officers here, they have a much stronger case than many interested parties do for ensuring that their position is properly stated to the courts, even if, schedule or no, there would have been much greater difficulty in their costs in respect of representation at a hearing.[53]So, there will be an order for costs in that respect.[54]MISS STUDD: Is that costs in the full amount, my Lord, or just the sum of £800?

MR JUSTICE OUSELEY: Well, if you want me to examine the amount particularly I will, but --

[56]MISS STUDD: I just wanted to be clear.[57]MR JUSTICE OUSELEY: £800. I will lop a bit off because I am sure it is overcharged in some way.[58]Thank you.

Cited in 3 later judgments