The Chief Constable of the West Yorkshire Police, R (on the application of) v Independent Police Complaints Commission [2013] EWHC 2698 (Admin)

Neutral Citation Number: [2013] EWHC 2698 (Admin)

Case No CO/11952/2012

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 11 th September 2013

Before

HIS HONOUR JUDGE JEREMY RICHARDSON QC

Between

R (on the application of the Chief Constable of the West Yorkshire Police)Claimant

Independent Police Complaints CommissionDefendant

Police Constable Lee ArmstrongInterested Party

Mr Matthew Holdcroft (instructed by Alison Walker for Legal Services of WYP) for the Claimant

Mr Ivan Hare (instructed by IPCC) for Defendant

for The Interested Party was not represented

Hearing Hearing dates: 8 th July 2013

JUDGMENT

His Honour Judge Jeremy Richardson QC:

Introduction

[1]This case is about a report of the Independent Police Complaints Commission (IPCC) in respect of a complaint by a member of the public against a police officer. It is asserted some parts of the report exceed the lawful ambit of such reports. Consequently, this court has been afforded an opportunity to consider what is, and what is not, permissible to embrace within a report by the IPCC upon a complaint against a police officer.

[2]It almost goes without saying that all reports of the IPCC about a complaint made against the police are important. Those obviously affected are:(i) the complainant;

(ii) the individual police officer(s) covered by the complaint;

(iii) the police constabulary in question; and (iv), the wider public who have a plain interest in ensuring such matters are independently and thoroughly investigated. A complainant’s reputation and/or the professional career of a police officer are plainly engaged in such an investigation. It all enters the public domain in the end. Consequently, it is vital the IPCC act with rigour. It must also ensure it does not step outside the confines of that which it is charged to do under the Police Reform Act 2002 (2002 Act) and regulations made pursuant to that Act.

[3]The language used in reports of the IPCC is very important. There should be no imprecision or inaccuracy of language given the consequences for those affected by the report. Equally, such reports are not judgments, nor lawyer-crafted contracts. It is important to adjudge their contents with a spirit of realism. I feel it is important to have well in mind the purpose of such reports and to whom they are principally addressed. With that clearly stated, let there be no mistake: the contents (in language and import) must be focused upon that which the IPCC have a duty to resolve under statute – nothing more and nothing less.

[4]In this judicial review claim (brought with the permission of His Honour Judge Behrens) the Chief Constable of the West Yorkshire Police (Chief Constable) seeks to have quashed a report entitled Independent Investigation Final Report: Mr Leeford Sutcliffe: Allegation of Assault and Unlawful Arrest of 19th March 2012 (the report) completed by the IPCC. The interested party (PC Lee Armstrong) has taken no part in the proceedings. The whole case revolves around his conduct as a police officer on 11th March 2011 in relation to Mr Sutcliffe.

[5]When granting permission, Judge Behrens observed the case raised points of considerable public interest. In the result only one fundamental point has been argued. This relates to the role of the IPCC when “handling” a complaint under the 2002 Act in respect of a police officer.

[6]It would not be right to commence the detail of this judgment without recording the conspicuous ability of both counsel (Mr Matthew Holdcroft for the Chief Constable and Mr Ivan Hare for the IPCC) in the presentation – both written and oral – of their respective arguments. I am indebted to both counsel for their help in this case.

[7]I propose to divide this judgment into sections for ease of reference.

The Factual Backdrop

[8]This entire case stems from an incident that occurred at about 2.30pm on 11th March 2011 on the outskirts of Leeds city centre. Lee Sutcliffe (Mr Sutcliffe) was allegedly driving his Audi motor car in excess of the speed limit [at 50 mph in a 30mph zone]. PC Armstrong, who was a traffic officer, stopped the Audi and an altercation erupted which resulted in Mr Sutcliffe’s arrest for a public order crime. During the arrest PC Armstrong:(i) used incapacitant spray (CS spray);

(ii) struck Mr Sutcliffe with his police baton; and,

(iii) handcuffed him. Mr Sutcliffe was injured whereby he suffered permanent injury to his left thumb. There is an inevitable difference of accounts by Mr Sutcliffe and PC Armstrong. The former amounts to a case of complaint, whereas the latter is exculpatory. I might add: such a situation must be within the common experience of the IPCC.

[9]On 16th June 2011 the mother of Mr Sutcliffe made a complaint to West Yorkshire Police (WYP). Her complaint was in these terms:

“ ----- complaint is one of abuse of authority, in the way the officer spoke to her son, and assault as she alleges the officer sprayed her son with CS three times, once whilst he was handcuffed.”

[10]The complaint was held over until the criminal charge against Mr Sutcliffe was determined.

[11]On 17th June 2011 the Crown Prosecution Service (CPS) discontinued the charges against Mr Sutcliffe. Thereafter, on 29th September 2011, the complaint was referred to the IPCC. An investigation was commenced by a lead investigator and a deputy senior investigator of the IPCC. The report – that is the subject of this judicial review claim – was dated 19th March 2012. The conclusion was the complaint by Mrs Sutcliffe was upheld and there was a case to answer in respect of an alleged “breach of the standards of professional behaviour”. It was also clearly set out (inter alia) that the view of the IPCC was that the arrest of Mr Sutcliffe was unlawful. The case was referred to CPS for consideration of the prosecution of PC Armstrong with assault. On 26th July 2012 CPS decided that there was insufficient evidence for a realistic prospect of conviction and its view was the arrest was lawful. No prosecution of PC Armstrong was commenced.

[12]The report of 19th March 2012 was disclosed to PC Armstrong and Mrs Sutcliffe on 10th August 2012. These judicial review proceedings were commenced and permission to proceed was granted on 8th January 2013. It is asserted the contents of the report far exceed the lawful ambit of such reports and as such is unlawful.

The Independent Police Complaints Commission (IPCC)

[13]The IPCC is governed by Police Reform Act 2002 and regulations made there-under. Additionally, the Secretary of State for the Home Department (Home Secretary) has approved guidance issued by the IPCC under section 22 of the 2002 Act upon the handling of complaints against the police.

[14]For present purposes it is unnecessary to set out at any length the manner in which complaints and conduct matters are investigated and handled. The IPCC may appoint its own investigator and that person has the responsibility to investigate a complaint. Section 12 of the 2002 Act covers complaints about conduct by a police officer that may amount to a criminal offence, or would justify the commencement of disciplinary proceedings, or relate to a situation where death or serious injury has resulted. Section 12 is lengthy and almost indecipherable requiring reading several times to elicit a meaning. Section 12 governs the subject matter of the complaint and it may only be investigated if it falls within the terms of the section. All of this is subject to the general functions of the IPCC that are fully set out at section 10 which pursuant to section 10(2) (inter alia) covers the handling of complaints against police officers and: “(b) the recording of matters from which it appears that there may have been conduct by (a police officer) which constitutes or involves the commission of a criminal offence or behaviour justifying disciplinary proceedings; Sub-paragraph (ba) covers a situation where death or serious injury results from contact with a police officer (this part is irrelevant for this case).

[15]It is very important to observe the section makes it plain the function is to record matters and not to make findings or rulings upon such matters. The section – in this regard – makes it clear the ambit of the IPCC is restricted to factual investigation and nothing more.

[16]Investigations by the IPCC are executed pursuant to section 13 and schedule 3. At the conclusion of the investigation the investigator is required to submit a report to the IPCC. It is usually sent to the police constabulary and the complainant too.

[17]Regulations have been made to supplement the 2002 Act in the shape of the Police (Complaints and Misconduct) Regulations 2004 as amended (2004 Regulations).

[18]The Police (Conduct) Regulations 2008 (2008 Regulations) contains provision about the ambit of internal police investigations. There is no direct equivalent of that in the 2004 Regulations. It is, however, instructive to consider this regulatory regime relating to internal police investigations.

[19]Paragraph 14 of the 2008 Regulations provides: “14. The purpose of the investigation is to –(a) gather evidence to establish the facts and circumstances of the alleged misconduct or gross misconduct; and

(b) assist the appropriate authority to establish whether there is a case to answer in respect of misconduct or gross misconduct or whether there is no case to answer. (a) gather evidence to establish the facts and circumstances of the alleged misconduct or gross misconduct; and (b) assist the appropriate authority to establish whether there is a case to answer in respect of misconduct or gross misconduct or whether there is no case to answer.

[20]Paragraph 14E of the 2004 Regulations (applicable to the IPCC) is differently crafted. It makes clear an investigator’s report shall: (b). attach or refer to any relevant documents; and (c) indicate the investigator’s opinion as to whether there is a case to answer in respect of any misconduct or whether there is no case to answer.”

[21]The Home Secretary has issued guidance to the police pursuant to section 87 of the Police Act 1996 when conducting their own internal investigations (albeit not strictly applicable to the IPCC) where it is made plain the investigative report may include a recommendation whether, in the opinion of the investigator, there is a case to answer in respect of misconduct or gross misconduct. Furthermore, the IPCC issued guidance (albeit not to itself but to the police) under section 22 of the 2002 Act which is also instructive:

“298. An investigation into conduct matters must focus on establishing whether there is a case to answer in respect of misconduct or gross misconduct, though what is discovered may also yield important findings and lessons for the police service.”

[22]It would therefore appear, following section 10 of the 2002 Act and regulatory provisions, that the scope of an IPCC report is to fully investigate facts and to record them. It is also important for the report to contain (if appropriate) an opinion as to whether there is a case to answer in respect of misconduct or gross misconduct.

The Report in this case

[23]The report in this case covers 24 pages and establishes at paragraph 5 the terms of reference:

“To investigate police interaction with Mr Sutcliffe before and during his arrest for a public order offence, in particular:- (a) To consider whether the arrest was lawful. (b) To consider the level of force during the arrest, including the deployment of CS spray.” (a) To consider whether the arrest was lawful. (b) To consider the level of force during the arrest, including the deployment of CS spray.”

[24]The report continues with reference to the duties of the IPCC to fully investigate the complaint as a public body under European Convention jurisprudence. Additionally, the report asserts that it must:

“---- identify whether any subject of the investigation may have committed a criminal offence and if appropriate make early contact with the prosecuting body”

Thereafter, it asserts the report will consider whether there was a breach of professional standards and any misconduct coupled with the issue as to whether anything could be “organisational learning” arising from the findings.

[25]It is unnecessary for present purposes to detail the evidence considered by the IPCC and the narrative of events embodied within the report. After that section the author of the report covers “Policies and Procedures” where section 5 of the Public Order Act 1986 (and some case law), sections 24, 28 and 117 of the Police and Criminal Evidence Act 1984 (PACE), and section 3 of the Criminal Law Act 1967 were considered. Reference is also made to the policy of the Chief Constable on the use of force and incapacitant sprays as well as the ACPO Personal Safety Manual.

[26]The conclusions of the IPCC are set out clearly at paragraph 83 et sequentia.

[27]It is acknowledged there are two versions of events and the report analyses whether there was a lawful arrest by reference to the statutes. There is almost a judgmental flavour to the report rather than the usual language of a report of this kind. The conclusions reached were these:(1) PC Armstrong’s arrest of the complainant was not lawful when he simply stated it was for “public order” under section 24 of PACE. Furthermore, he was not informed of the grounds for arrest.

(2) The report asserts:

“On the balance of probabilities the arrest of (the complainant) for a public order offence does not satisfy the requirements of either section 24 or 28 of PACE 1984 and, as such, the arrest was unlawful” (3) PC Armstrong did not use reasonable force when he unlawfully arrested the complainant. (4) It concludes by asserting: “Based on the fact the arrest was unlawful, the use of CS spray was not necessary or reasonable in these circumstances. Therefore, on the balance of probabilities the use of force used by PC Armstrong amounts to an assault” (5) Subsequent baton strikes and deployment of CS spray were also excessive. This conclusion received this observation by the IPCC: “On the balance of probabilities all uses of force used by PC Armstrong were unlawful and excessive and thereby constituted an assault”

[28]The complaint was upheld and a notice was served under Regulation 14A of the 2004 Regulations on PC Armstrong that there was a case of misconduct to answer.

[29]The report was dated 19th March 2012. As I have already indicated the CPS decided not to prosecute PC Armstrong. The report was shortly thereafter disclosed to PC Armstrong in August 2012. It was not modified to take account of the view of CPS or the fact PC Armstrong was not prosecuted. The report resolutely maintained its original expression of the police officer’s unlawful conduct.

[30]I shall briefly outline the arguments advanced by each side. It will be appreciated I have much abbreviated the submissions. I intend no discourtesy by doing this, but the elongation of this judgment by a full recital is not warranted. The following gives the flavour.

The Chief Constable’s case

[31]The Chief Constable has argued that the function of the IPCC is not to determine either criminal or civil liability – the role is investigative and to report alleged breaches of the criminal law or police discipline to the CPS or the chief constable as appropriate.

[32]It is, in consequence, argued the IPCC has reached unlawful and impermissible conclusions and has far exceeded the only permissible finding which is that there is a case to answer in respect of misconduct (gross or otherwise) and/or a criminal offence. It is forcefully argued that it is for the misconduct panel of the chief constable to find and determine whether there was misconduct; for a criminal court to determine guilt or otherwise of any criminal offence; and for a civil court to adjudge civil liability or not. It is asserted the IPCC has over reached itself in this report.

[33]The Chief Constable argued that the language employed in reports is not of marginal importance. It is of crucial importance the language of any report does not overstep the clear boundary of “recording” matters which “may” amount to criminal conduct or disciplinary misconduct. It is argued the language of determination must not be used when the 2002 Act restricts that which the IPCC can do.

The IPCC case

[34]The IPCC has argued that the report does not overstep the mark as only one of its responsibilities is the element of discipline. Its prime role is to respond to a complaint. As part of this it possesses procedural independence. Particular emphasis is placed upon section 10(2) (d) of the 2002 Act whereby it regards the repose of public confidence in its role as demanding complaints are handled with appropriate vigour.

[35]I was referred to certain authorities upon the interpretation of the 2002 Act. I shall refer to some of them later in this judgment. Emphasis was placed upon the duties imposed upon the IPCC (as a public body) by Articles 2 and 3 of the Convention (European Convention on Fundamental Freedoms and Human Rights 1951) in relation to its investigative duties.

[36]It is advanced that there is in reality no distinction between findings of misconduct and when there is an intrinsic need in a particular compliant for the issue of lawfulness to be resolved. In other words the complaint cannot be properly or adequately determined unless the legal issue is covered and answered by the report of the IPCC. The IPCC cannot decide whether a police officer has committed a criminal offence or indulged in conduct amounting to a tort as a matter of law. It accepts that is a matter for the courts. Emphasis was placed upon the context of a complaint and factual matrix for in some cases it would be impossible to respond to the complaint without delving into criminal and civil responsibilities.

[37]The IPCC was at pains to reiterate it cannot decide criminal or civil liability, but, such boundary as there is as to permissible opinion, has not been crossed in this case. It is for the CPS to decide whether to prosecute and for the criminal courts (if there had been a prosecution) to determine guilt or otherwise. It is for the civil courts to determine whether any civil wrong has been perpetrated. The IPCC has merely opined upon issues intrinsic to this complaint and has not overstepped any mark so far delineated by the courts.

Discussion

[38]A complaint under the provisions of the 2002 Act may only be “handled” by the IPCC in strict accordance with its statutory powers. Section 10 (2) sets out that responsibility quite clearly. It “handles” complaints about the police and is required to “record” matters which may amount to criminal and/or disciplinary misconduct.

[39]The case of R (on the application of Allatt) v Chief Constable of Nottinghamshire Police and IPCC

[2011] EWHC 3908

(Admin) is instructive. In that case interim relief was sought to prevent a disciplinary hearing taking place. As part of the argument advanced it was asserted the IPCC investigator overstepped the mark by using language that was arguably conclusive of that which was properly the remit of the police disciplinary panel and not the IPCC. The judgment of Mr Justice Langstaff was extempore and given in obviously pressured circumstances as the hearing sought to be terminated was imminent. Notwithstanding, there are highly relevant observations from which I derive assistance:(1) Care needs to be taken in the interpretation of IPCC reports. They are not judgments nor crafted by parliamentary draftsmen. The reports have a meaning which must be understood by those to whom the reports are addressed.

(2) The purpose of a report is to inform (the police disciplinary body or CPS) whether a charge should be brought. It is for the police disciplinary body or CPS to exercise that judgment. It is not for the IPCC to do so.

(3) An expression of opinion is necessarily called for by the investigator.

(4) Of importance: “Although there may be some cases in which what an investigator says may be so extreme or illogical or irrelevant that it should properly be excised ---”

(5) In that case there were expressions such as “the evidence indicates” which falls short of conclusive determination and is consistent with deciding whether there is sufficient evidence to place a police officer before a disciplinary panel for its decision.

[40]I am also influenced by the observation of Lord Denning in the House of Lords case Glinski v McIver

[1962] AC 726

at page 758as to the requirement of an investigator to lay a case but to leave the determination thereof to the courts. Although slightly archaic in tone, the import of his speech has resonance to this case.

[41]I also accept the proposition that the IPCC is entitled to evaluate competing evidence before making a recommendation: see the judgment of Lord Justice Longmore (with whom Lord Justice Ward and Lord Justice Jackson agreed) in R (on the application of Reynolds) v IPCC and Chief Constable of Sussex Police

[2008] EWCA Civ 1160

at paragraph 16 in particular. The evaluation of evidence is of importance, but evaluation is very different to determination. Evaluation of evidence may require an assessment of whether it is arguably unlawful. It cannot be suggested the IPCC is not permitted to express an opinion about whether, upon its evaluation of the evidence, something is arguably unlawful or potentially criminal, but it must be in an appropriate form and expressed in language devoid of purported actual determination.

[42]I fully accept the proposition that the IPCC must fully investigate all complaints and do so with rigour. It is vital the public repose confidence in the IPCC to undertake these investigations without a feeling (to use colloquial but helpfully graphic language) that one hand is tied behind its back. It must frequently be the case where the investigation necessarily involves examination whether a police officer (or indeed, the complainant) has transgressed the criminal law or committed a tort. It cannot be suggested, and is not in this case, the IPCC may not investigate that. It must; but the extent of its role in expressing a conclusion is truly limited to that which Parliament has reposed in it. The role of the IPCC, in this context, is purely investigative and must not trespass upon the territory of the decision maker or even hint at doing so. The language employed in reports is of crucial importance for very obvious reasons. These reports are frequently of huge importance and need to be carefully crafted within lawful boundaries. An ill chosen phrase or imprecision of expression or infelicity of language could have damaging consequences. IPCC reports are sensitive documents that can drastically affect the complainant and/or a police officer (and his or her career). A very clear grasp of the lawful extent of the role of the IPCC in the preparation of a report by an investigator is of paramount importance. I also regard it to be important that reports are correctly phrased and do not imply, still less, purport to exceed their lawful ambit.

[43]None of this in any way diminishes the duties imposed upon the IPCC to fully investigate complaints and/or alleged improprieties in accordance with Convention demands and jurisprudence. Not one word of what I have said in any way minimises the requirement of rigorous investigation and reporting of all relevant facts.

[44]The language of section 10(2) of the 2002 Act is deliberately restrictive and demands the IPCC “handles” complaints – note “handles” and not determines a complaint. It also requires the IPCC to “record” matters that “may” amount to a crime or a disciplinary matter. The regulatory regime under the 2004 Regulations is of pellucid clarity (in particular paragraph 14E) whereby the purpose of an investigation under the 2002 Act by the IPCC is to provide an accurate summary of the evidence and “indicate the investigators opinion as to whether there is a case to answer”. All of this gives the author of an IPCC report a substantial leeway as to its contents; providing always the report remains within the boundary of the statutory and regulatory regime.

[45]The regime demands investigation and reporting with, if appropriate, an opinion (and only an opinion) as to whether there is a case to answer. It is outside the permitted boundary to express any concluded view as to criminal liability or civil liability. There will be cases (and this is one) where it will be or may be necessary to express a view about the conduct of a member of the public or a police officer being lawful or otherwise, but that must be done in terms that do not trespass outside the boundaries of the investigation and encroach upon the territory of the body charged with the determination of that issue. The language of a report is as important as the investigation itself: both must be rigorous and both must be investigative of style and import – not determinative. As I have already stated the report may furnish an evaluation of evidence and may recommend a certain course to assist the decision maker if there is prima facie evidence of criminality or misconduct. Presenting a carefully investigated record of events with a carefully evaluated opinion as to whether there is case to answer is entirely remote from the language of determination.

[46]I have no doubt that the Administrative Court may intervene when a report steps outside the lawful boundary set by Parliament. I reject any suggestion that no one could be misled by what is contained within the report as the IPCC do not decide to prosecute a crime or commence police disciplinary proceedings and therefore the language is of marginal significance. I repeat: the language used in these reports is important.

[47]It will, I feel, be helpful if I distil my understanding of the law in these simple propositions:(1) The primary function of the IPCC in this context is to investigate a complaint against the police under the 2002 Act.

(2) Such a complaint must be investigated with rigour and determination in order to maintain public confidence in such enquiries and to comply with Convention jurisprudence.

(3) The function of the investigation is to record matters which may constitute a crime or breach of discipline. The investigative ambit must be confined to that important but limited role.

(4) It is no part of the function of the IPCC to make definitive finding or rulings upon any issue but to gather evidence and establish facts to enable those who have the lawful authority to decide whether to commence disciplinary charges or institute criminal proceedings (the decision maker).

(5) As a critical by-product (if appropriate) the report may go so far as to assist the decision maker to establish whether there is a case to answer in respect of misconduct or a criminal charge.

(6) In this regard the high water mark is the report may give an opinion as to whether there is a case to answer.

(7) The report is not permitted to be determinative or purport to be determinative of such matters.

(8) It is for the criminal courts to determine the guilt or otherwise of any individual; it is for the civil courts to determine civil liability of any person or body; and it is for the police disciplinary body (in any given constabulary) to institute and resolve disciplinary issues of a police officer.

(9) The IPCC must remain within the four corners of the 2002 Act which demands investigation and gathering of evidence to enable the decision maker to make a decision.

(10) If there is a critical need to offer a view as to the lawfulness of conduct it must be couched in the language of an indication of opinion on the matter.

(11) It is permissible to evaluate evidence and competing accounts. A report is not an arid distillation or summary of all that has been gleaned.

(12) In viewing reports of the IPCC it is vital to remember to whom they are addressed and approach each one with a sense of realism. They are not judgments, nor lawyer-crafted contracts.

[48]I repeat and endorse paragraphs 2 and 3 of this judgment (supra).

[49]The issue now arises whether the author of the report in this case has paid any heed to these propositions?

Analysis

[50]My analysis of the report in this case is that the language used amounts to a suggestion of determination rather than opinion. The passages to which I have referred already reveal the author of the report intended to embark upon consideration of the lawfulness of the arrest of Mr Sutcliffe. Worse still the report goes on to say (in terms) PC Armstrong acted unlawfully and the arrest was unlawful. Moreover, PC Armstrong assaulted Mr Sutcliffe based upon two separate analyses of the evidence. At no stage does the report suggest a case is there to answer – it leaps to the conclusion. To make that leap is unlawful when the leap is not only daring but, in my view, comprehensively in excess of the powers and function granted by Parliament.

[51]In my judgment this report over-steps the lawful mark by some margin. It was perfectly permissible to record the facts and express an opinion to assist those who had to make decisions, but no more is allowed. It was perfectly permissible to evaluate the evidence and proffer an opinion to help the decision maker, but the boundary I have identified must be respected.

[52]I have weighed very carefully whether all that was done was to proffer an opinion (for that is all that could be done); however, the report so demonstrably over-steps the boundary that I feel it cannot be allowed to stand. Although, the evaluation of what Mr Sutcliffe said as opposed to what PC Armstrong said was entirely permissible, the final decision on whether any conduct amounted to an assault or was unlawful was ultimately a matter for the decision maker. It is also impermissible to express any view as to civil liability, or impliedly do so. That would be a matter for the civil courts in the event of a civil claim. All the report should have suggested was, at most, there was a case to be answered in respect of police disciplinary charges or criminal charges. Any purported observation about potential civil liability was out-with the remit of the IPCC; and if any evaluation of evidence needed to touch upon such an issue, considerable care in the language used was needed.

[53]It is plain the report had no influence on the CPS in this case as it decided not to commence criminal proceedings against PC Armstrong. Once that decision was known the report (which had not been promulgated at that stage) should have been revised. In any event, it should not have been drafted as it was and as the document reveals the approach and import of the IPCC in respect of the complaint by Mr Sutcliffe’s mother, it was unlawful in its approach and contents. Quite apart from anything else the report purports to find (not suggest) unlawful conduct – both criminal and civil. That far exceeds the lawful ambit of such reports.

[54]The Chief Constable is right to be deeply concerned about this report and so is PC Armstrong. The IPCC was justified in recording factual matters adverse to PC Armstrong, but to go further using the language of determination rather than recommendation (firm rather than provisional assertions) was outside the lawful boundaries of its statutory responsibility. The report was not merely evaluating evidence to enable a decision maker to make a decision – it was purporting to make findings of a kind it had no power to make.

[55]The report cannot stand.

Other grounds

[56]There were other grounds of challenge to the report which were not explored in submissions and I shall make no observations about them.

Conclusion

[57]In the result I have formed a very clear view the report is unlawful. It falls to be quashed and the IPCC will have to re-craft the report in lawful terms in accordance with the limits contained within the 2002 Act, the 2004 Regulations and statutory guidance as explained in this judgment.

[58]This claim for judicial review by the Chief Constable succeeds. I propose to quash the report of 19th March 2012. I shall hear counsel as to the form of order to be made today.

Permission to Appeal

[59]This judgment was circulated to counsel in draft form prior to handing down. Consequently, I received advance notice of the application for permission to appeal by the IPCC. That was developed further during submissions following hand-down of the judgment. It was agreed I should add this and the next paragraph so that my reasoning for granting permission should be part of the record of judgment.

[60]I grant permission to appeal on the basis there is a compelling reason why the appeal should be heard. This is a case of considerable importance to the IPCC and the police. It is also of great public importance for there to be an authoritative statement of the ambit of reports of the IPCC by the Court of Appeal. Whilst in no way taking the view that there is a realistic prospect of success, I am of the view that the important issues in this case need resolution by the Court of Appeal.