Driver, R (on the application of) v Independent Police Complaints Commission [2012] EWHC 1271 (Admin)

Case No CO/5236/2011[2012] EWHC 1271 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Leeds Combined Court
1 Oxford Row
Venue Leeds West Yorkshire LS1 3BGDate Monday, 19th March 2012
B e f o r e:
MR JUSTICE HICKINBOTTOM
Between
THE QUEEN ON THE APPLICATION OFClaimantPETER DRIVERClaimantv
Between
INDEPENDENT POLICE COMPLAINTS COMMISSIONDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr Stanage (instructed by Ben Hoare Bell Sols) appeared for ClaimantMiss Whitelaw (instructed by Independent Police Complaints Commission) appeared for Defendant
J U D G M E N T
[1]The Claimant challenges the decision of the Independent Police Complaints Commission (“the IPCC”) not to uphold his appeal against the findings of the Chief Constable of Northumbria's investigation into the Claimant's complaint about his treatment in custody at Gateshead Police Station on 8 September 2007. It is important to mark at the outset that the focus of this claim is on the legality of the IPCC's review: the relief sought is an order quashing the IPCC's decision that the investigation and findings of the Chief Constable were appropriate, and a direction that the Chief Constable re-investigate the matter[2]The facts giving rise to this claim are as follows.[3]Shortly after midnight on 8 September 2007, the Claimant was arrested on suspicion of affray, having been named as the person responsible for threatening another person with a knife. He was taken to Gateshead Police Station, where he arrived at 00.20. His condition on arrival was recorded as being as follows:
"Fit and well, smelt of intoxicating liquor, under medication, handcuffed. Has attempted self injury in the past. DP [that is, of course, the Claimant] will need FME exam [that is a reference to an examination by a doctor]. DP states has consumed one-and-a-half bottles of wine. DP states has paranoia and depression has attempted self-harm by overdose in the past. DP also states has asthma and cannot remember when he last S/H. DP on level 3 CCTV cell and half hours."
The last note indicates that he was placed in a cell with constant CCTV observation, and in addition was subject to half-hourly physical checks.[4]His arrest was authorised at 00.40, and at 00.45 he was indeed seen by a Forensic Medical Examiner, Dr Roberts, who noted "[history of] mental health problems"; and he assessed the Claimant's risk of self-harm as "mild/moderate".[5]From 01.08, the custody records read as follows:
"01.08 DP in cell ripping shirt to attempt to tie around neck. DP had to be forcibly restrained and clothing removed to prevent harm. DP aggressive and tried to tie blanket around neck. Blanket removed. 01.43 DP checked and was taken to the toilet. DP was given blanket and a cup of tea. 02.05 DP has requested Gregory Taylor & Lambert Solicitors. 02.30 Checked. Awake, in order. 02.50 DP allowed to use toilet. Given clothes back. 03.32 Checked. Asleep, in order."
[6]There are then checks at approximately half-hourly intervals recorded. He was allowed to go to the toilet at 05.46. Because of the doctor's reference to a mental health history, the Claimant was interviewed the following morning with an appropriate adult as well as his solicitor present, and was bailed at 13.18 the same day. Subsequently, the matter was the subject of no further action.[7]In February 2010 (i.e. about two-and-a-half years later), in a 11-page letter to the IPCC the Claimant made numerous complains about the police and social services. The vast majority did not relate to his treatment on 8 September 2007. Many did not relate to the police at all. However, the letter did include the following passage:
"Furthermore when I was in the police cells Gateshead Police Station I was stripped naked by police officers and not allowed the toilet for a number of hours. I believe after a shift change I was given back my clothing and blanket after pleading to a police officer. Such was my desperation I had to stand over a drain in the middle cell floor naked and wee in front of the camera at the corner of the cell. I firmly believe my treatment and not being listened to in the circumstances was because I have had some mental health problems."
[8]The letter was passed to the Chief Constable who, on 12 April 2010, responded by saying the complaints would not be recorded as they were "not a complaint against the police". The Claimant successfully appealed that decision to the IPCC which, on 6 August 2010, ordered the Chief Constable to treat the letter as making complaint against the police.[9]On 8 September 2010, the Chief Constable applied to the IPCC again, this time for a dispensation against recording and investigating the complaint as there were 12 months old. The IPCC refused that request, and sent the complaint back for investigation.[10]The IPCC identified seven separate complaints made by the Claimant in his letter, as complaints against the police.[11]On 7 October 2010, those complaints were investigated by DI Cruickshanks. Three officers had been named in the initial letter from the Claimant, and they were notified that they were the subject of an investigation. On 1 December 2010, the investigation was completed and sent to the Claimant's solicitors. .[12]None of the complaints was upheld. Of the complaint that he was stripped, and denied access to the toilet, it was noted (in paragraph 11.6 of the investigation report) that the custody record recorded that his clothes had been removed for his own safety and there were numerous entries that he had been allowed access to the toilet. There were findings that the custody record had been completed correctly, and his treatment and care whilst in custody was well-documented; and that the records indicated there had been no breach of Police and Criminal Evidence Act Code C, and that the treatment of the Claimant was "fair and proportionate". The complaint in those respects was not upheld; and the unidentified officer (who had ordered the Claimant's clothes to be taken off and allegedly denied him access to the toilet) was found not to have a case to answer.[15]The Claimant appealed to the IPCC against those findings. On 7 March 2011, the appeal was partially upheld in respect of police failures to provide the claimant with information; but the appeal in respect of his treatment in custody on 8 September 2007 was not upheld. The Claimant now accepts that he was provided with adequate opportunity to use the toilet whilst detained, but he challenges the IPCC decision not to uphold his complaint in respect of being stripped and left in his cell without clothing or blanket for 35 minutes from 01.08 to 01.43 that morning. It is that decision which the Claimant now challenges, with the permission of His Honour Judge Kaye QC sitting as a judge of this court.[16]Paragraph 25 of Schedule 3 to the Police Reform Act 2002 provides a right of appeal to the IPCC from findings of a police investigation. It provides that the IPCC shall determine a number of matters as it considers appropriate, including "whether the findings of the investigation need to be reconsidered" (paragraph 25(5)(b)). Where it comes to that conclusion, it may review those findings itself or direct the complaint to be re investigated (paragraph 25(8)). It is said on behalf of the Claimant that the IPCC erred in law in concluding that the findings that had been made in the investigation by DI Cruickshanks did not need reconsidering, because (it is submitted) the investigation that had taken place had not complied with the requirements of(i) Article 3 of the European Convention on Human Rights,(ii) the relevant provisions for the treatment of prisoners under Police and Criminal Evidence Act Code C, and(iii) the Chief Constable's own policy guidance with regard to depriving prisoners of their clothing.[17]I will consider these in turn.[18]First, the focus of this claim is on Article 3 of the European Convention. The rights granted by the Convention were first spelled in the Universal Declaration of Rights declared by the United Nations General Assembly on 10 December 1948 in the aftermath of the Second World War. Respect of human dignity is a value inherent in the Declaration, the very first recital of which recognises "the inherent dignity... of all members of the human family…". Article 1 declares that:
"All human beings are born... equal in dignity..."
That emphasis is reflected in the Convention: it is well recognised that respect for human dignity, as well as freedom, is "the very essence of the Convention" (Pretty v United Kingdom (2002) 35 EHRR 1 at paragraph 65), the Convention translating that value into various specific rights of individuals, particularly (for the purposes of this case) Article 3, which prohibits torture and inhuman and degrading treatment.[19]In this case, the Claimant does not suggest that being stripped constituted torture or inhuman treatment. He submits that it constituted or may have constituted "degrading treatment". "Degrading treatment" can be defined in terms of "an assault on... a person's dignity and physical integrity", which Article 3 is specifically designed to protect (see Tyrer v United Kingdom (1978) 2 EHRR 1 at paragraph 33).[20]I recently considered degrading treatment in the context of Article 3 in R (Grant & Gleaves) v Ministry of Justice [2011] EWHC 3379 (QB) at [32] and following; and I need not repeat the general proposition of law there set out. In this claim, the Claimant not having suffered any injury, Mr Stanage, quite properly, does not rely upon any form of assault that the police may have committed in removing the Claimant's clothing. As the relevant degrading treatment, he relies upon the 35 minutes during which the Claimant was in his cell naked.[22]In relation to Article 3, it is a well-established principle that, to fall within the scope of the Article, a minimum level of severity is required (see, e.g., Ireland v United Kingdom Application No 5310/71 (18 January 1978) at paragraph 162). In this case, Miss Whitelaw for the IPCC submitted that the circumstances did not arguably reach that minimum level, given the following circumstances:(i) The removal of the Claimant’s clothing was not an arbitrary act: there was a clear and understandable reason given for it, namely for the safety of the Claimant himself.(ii) The clothes were removed for a modest period of time (35 minutes), and were returned to the Claimant then, on the face of the record, patently because it was considered that the risk of self-harm had receded.(iii) Although subject to observation by CCTV camera and physical inspection on half-hourly basis, the Claimant was not naked in the presence of anyone else, such as others held in detention.(iv) There is no evidence that, at the time, the Claimant considered that he was being made the subject of degrading treatment. He made no complaint about it for two-and-a-half years, and even then the complaint he made was in fairly modest terms. Without an arguable breach of Article 3, she submitted, no duty to investigate arose.[23]I accept that, where there is or has been a potential breach of Article 3, the state is subject to a secondary duty of investigation (see OOO v Commissioner of Police for Metropolis [2011] EWHC 1246 (QB)). However, where there is no potential Article 3 claim, of course no secondary duty to investigate can arise.[24]In the circumstances of this case, I am quite satisfied that there was no such arguable breach of Article 3 or potential Article 3 claim, for the reasons set out by Miss Whitelaw. The custody record gives a clear, unambiguous and good reason for the removal of the Claimant’s clothing: to prevent self harm. The period during which the clothing was taken was not only short, but also(i) there is no indication that he was, for example, cold or in any way suffering during that period;(ii) the period he was left without clothes was patently not arbitrary, because it is clear that after 35 minutes the custody officer considered that the risk of self-harm had receded to the extent that he should be given back his blanket and, less than an hour later, that it had receded to the extent that he could be given back his clothes; and(iii) there is no evidence that the Claimant himself found the conduct demeaning – he appears to have found more demeaning the perception, wrong in the event, that he was denied access to toilet facilities. I stress that he not only made no complaint at the time, but did not complain for two-and-a-half years and then complained only in modest terms. Although of course it is possible for a victim to suffer degrading treatment although not himself finding it degrading (e.g. if he has a mental health problem which means his perception is distorted), there is no evidence in this case that the claimant suffered any such mental health condition that could have distorted his perception.[25]There is in my judgment no prospect of this treatment of the Claimant being found to have been degrading for the purposes of Article 3. In other words, it does not meet the severity required for triggering that provision. Consequently, I do not consider that Article 3 was triggered; and hence no investigatory duty was triggered under Article 3.[26]Second, the Claimant relies upon Police and Criminal Evidence Act Code C.[27]The treatment of persons in police detention are governed by Part 4 of the Police and Criminal Evidence Act 1984 and Code C made pursuant to section 66 of that Act. In that Code, there is no provision which prohibits the removal of a detainees clothing, in the circumstances described in the custody record in this case. Paragraph 3.8 of the Code C provides:
"Risk assessments must follow a structured process which clearly defines the categories of risk to be considered and the results must be incorporated in the detainee’s custody record. The custody officer is responsible for making sure those responsible for the detainee’s custody are appropriately briefed about the risks ..."
Paragraph 3.9 and 3.10 continues:
"3.9 The custody officer is responsible for implementing the response to any specific risk assessment, e.g.: • reducing opportunities for self harm; • calling a health care professional; • increasing levels of monitoring or observation. 3.10 Risk assessment is an ongoing process and assessments must always be subject to review if circumstances change."
Paragraph 8.5 provides:
"If it is necessary to remove a detainee’s clothes for the purposes of investigation, for hygiene, health reasons or cleaning, replacement clothing of a reasonable standard of comfort and cleanliness shall be provided. A detainee may not be interviewed unless adequate clothing has been offered."
[28]In this claim, there is no suggestion that clothing was not returned prior to interview; it was returned in the circumstances I have already described. Nor, in my view, is it arguable that the custody officer did not conduct a specific and proper risk assessment. At 01.08, with the Claimant making apparently determined efforts to self-harm, the custody officer took the decision forcibly to remove his clothing until that risk of harm receded. That, it seems to me, is quite evident from the custody record itself. Equally evident is that the blanket and then clothing were returned as soon as the risk was perceived as having sufficiently receded, making it clear that the custody officer assessed risk on an ongoing basis.[29]The steps taken in relation to the Claimant's period in custody appear from the custody record itself. Given his apparent mental health background, he was the subject of constant CCTV observation and also half-hourly physical checks. He was seen by Dr Roberts within 5 minutes, and that doctor assessed the risks of self-harm as mild to moderate. When there appeared to be a rise in that risk, the custody officer took action to protect the claimant from himself. Once the risk had receded, he returned first the blanket and then the clothes. In all of the circumstances of this case, those steps could not be said to be unreasonable or disproportionate to the perceived risk of harm.[30]Finally, the Claimant relies upon the Chief Constable's own policy in respect of removal of clothing during the period of detention. That policy is dated January 2008, i.e. after these events. It states:
"Other than when a detainee removes his/her clothing and refuses to wear any clothing offered, no person should ever be left naked in any part of the custody suite."
The policy then goes onto consider risk assessment, and suitable clothing which it describes in terms of trousers and a jumper or top. 31. However: (i) Although it would be perhaps surprising if there was not a predecessor of the policy I have set out, there is no evidence that that policy was in force in September 2007. The Chief Constable has taken steps to identify any pre-existing policy, but without success. (ii) Perhaps more significantly, even if it were in force, it was of course only a policy; and, where the custody officer on a proper risk assessment considered it was in the prisoner's own best interests that his clothing be removed to protect him from the risk of self-harm, that would have overridden any general policy to the effect that clothing in terms of a trouser and a jumper or top ought to be provided, which replacement clothes could, for a determined prisoner, provide the means of self-harm.[32]In my view, the evidence simply does not show that any police officer (named or unnamed) was guilty of any misconduct, or breach of any of the provisions to which I have referred. However, I am not required to make that judgment. I am simply required to decide whether the IPCC were entitled to come to make the findings that they did. Under the 2002 Act their role is to review, rather than to re-investigate, the Chief Constable's investigation into the Claimant's complaint.[33]As I have indicated, the Claimant's complaint was made two-and-a-half years after the relevant events, and the IPCC considered the matter about three-and-a-half years after the event. In my judgment, the IPCC were entitled to rely on the custody record as a true record of what occurred during the Claimant's period in custody. It was also reasonable for them to conclude that after that length of time, the custody officer - whoever that might have been - would not have been able to remember more than that which was recorded in the custody record. On the basis of what the record showed, there was no possible breach of Article 3, PACE Code C or any other provision applying to the events.[34]The Claimant complained of three named officers, none of whom was involved on 8 September 2007. In respect of that period in custody, he did not name any individual officer. It was open to the IPCC to direct the Chief Constable to identify and interview the custody officer – but they were entitled to conclude, as they did, that there would be no point in proceeding down that line because, whoever that officer was, there were no grounds for considering that there might have been any misconduct on his part. They were entitled to conclude that it would have been disproportionate to make any further enquiries.[35]For those reasons, I find that the IPCC's decision that the findings of the investigation conducted by DI Cruickshanks did not need to be reconsidered was one that they were entitled in law to make, and clearly so. I dismiss this application.