Demetrio, R (on the application of) v The Independent Police Complaints Commission & Anor [2015] EWHC 593 (Admin)

Case No CO/3012/2014

Case No CO/2398/2014

[2015] EWHC 593 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

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

Date Friday 6 th March 2015

Before

LORD JUSTICE BURNETT

MR JUSTICE WILLIAM DAVIS

Between

Between:Claimant

THE QUEENClaimant

on the application ofClaimant

MR MAURO DEMETRIOClaimant

THE QUEENClaimant

on the application ofClaimant

THE COMMISSIONER OF POLICE OF THE METROPOLISClaimant

(Transcript of the Handed Down Judgment of

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Official Shorthand Writers to the Court)

Alison Macdonald (instructed by Bhatt Murphy) for Mr Demetrio

Clive Sheldon QC (instructed by Metropolitan Police Legal Services) for Metropolitan Police Commissioner

Russell Fortt (instructed by the IPCC) for IPCC

Kevin Baumber (instructed by Reynolds Dawson) for PC Harrington

Hearing Hearing date: 10 and 11 February 2015

Judgment

[1]This is the judgment of the court to which we have both contributed.

[2]There are two claims for Judicial Review before the Court arising from an investigation by the Independent Police Complaints Commission (“IPCC”) into events in a police van surrounding the arrest of Mauro Demetrio on 11 August 2011. The IPCC conducted an investigation which culminated in a final report which is dated 31 October 2012. One of the allegations under consideration, to which we shall come in more detail in due course, was that Police Constable Joe Harrington put his hands around Mr Demetrio’s neck as if to strangle him. The IPCC report concluded that there was no case to answer in respect of that allegation. In consequence the Metropolitan Police Commissioner (“the Commissioner”) considered that there should be no disciplinary action relating to that allegation and the IPCC agreed.

[3]On 6 January 2014 the IPCC Commissioner who had taken over responsibility for the investigation, Jennifer Izekor, wrote to the Directorate of Professional Standards at the Metropolitan Police indicating that she was minded to reopen the investigation into that aspect of the complaints. After receiving representations from the Commissioner by letter dated 26 February 2014 she notified her decision to reopen that part of the investigation. By Judicial Review proceedings issued on 23 May 2014 the Metropolitan Police Commissioner seeks to quash that decision and obtain an order restraining the IPCC from carrying out any further investigation. He submits that the IPCC has no power to do so under the statutory scheme, they have become functus officio. He also submits that the circumstances in which the final report was produced and considered by the IPCC gave rise to a substantive legitimate expectation enforceable by PC Harrington that there would be no further action in relation to the allegation of strangling and that, even if the IPCC is not functus officio, there is no lawful basis for reopening the investigation. PC Harrington supports the Commissioner in that claim.

[4]Ms Izekor also corresponded with Bhatt Murphy, Mr Demitrio’s solicitors, who concurred in the view that the investigation was “seriously flawed”. In the light of the proceedings issued by the Commissioner, which carried the possibility that the reinvestigation might be thwarted, on 30 June 2014 Mr Demetrio issued his own proceedings which seek to quash the conclusions found in the final report relating to that part of the incident and the decisions made in reliance on them. The IPCC agrees that the findings should be quashed. That is because they accept the conclusion reached was irrational and also flawed by a failure to explore an obvious evidential line of inquiry. A draft consent order with supporting statement was agreed even before the proceedings were issued. That outcome is resisted by the Metropolitan Police Commissioner and PC Harrington who are both interested parties in that claim.

[5]Sir Stephen Silber granted permission in both claims at a hearing on 20 November 2014 and ordered an expedited hearing.

The facts

[6]11 August 2011 was a day on which there was public order disturbance across much of London. Large numbers of police officers and vehicles were deployed to provide a visible presence and thus enhance public confidence. Eight police officers were assigned to a van which was on patrol in the London Borough of Newham. At about 17.40 the driver of the police van, Police Constable Elton, saw a Citroen motorcar which he thought was driving at excessive speed. Mr Demetrio was the driver of the car. PC Elton searched him under section 23 of the Misuse of Drugs Act 1971. His hands were cuffed in a rear stack position. Mr Demetrio was arrested on suspicion of driving whilst under the influence of drugs. A computer check revealed that Mr Demetrio was wanted for failing to appear at Stratford Magistrates’ Court two days earlier. PC Harrington further arrested Mr Demetrio in respect of that. Mr Demetrio was placed into the van and taken to Forest Gate police station. He was also arrested for a public order offence arising out of what occurred in the van.

[7]Mr Demetrio made a complaint at the police station about the way he had been treated en route. It was recorded by Inspector Whitehead. His summary of the complaint was:

“Complainant alleges he was racially abused by officers after being arrested. He recorded the abuse on his phone without officers knowledge. Inspector Whitehead has listened … and heard “your gonna die soon”, “you’ll always be a black nigger”, “be proud of your black skin” … In addition complainant alleges he was strangled by an officer who he describes as the driver for 15 seconds and long enough for him to panic for breath. He also complains he was teased by songs sung in a way designed to intentionally make him mad.”

[8]On 6 October 2011 Mr Demetrio made a detailed statement in the course of interview for the purpose of the investigation which, by then, was being conducted by the IPCC. He described the driver of the van as Officer A. It is common ground that the description he gave is of PC Elton. Officer B is described as being about 5’7” with brown hair and “very overweight”. It was common ground before us that this was a description of PC Harrington. Seven other officers were described. The van internally was like a minibus (i.e. without a cage). Mr Demetrio gave an account of being stopped, of his getting out of the car and the officers being agitated. He identified PC Elton as being aggressive. He said he could smell cannabis. Mr Demetrio was arrested and cuffed. Officer A dragged him to the van, opened its sliding side door and put him in the van. Mr Demetrio described being upset, asking questions and then standing up in the van. He said that PC Harrington jumped on him, put a knee on his chest and started to strangle him with both of his arms outstretched and both hands around his neck. He explained how he was pushed back, with PC Harrington on top of him and how he could not breathe. When PC Harrington let go, Mr Demetrio sat up and his head was pushed against the van window. He could not see who was doing this.

[9]The van was stationary whilst this was going on. Mr Demetrio then described a series of exchanges with another officer (Officer C) who said he knew Mr Demetrio’s mother and had had a sexual relationship with her. That officer turned out to be Police Constable MacFarlane. His account continued by saying that he was being abused and being made fun of. That was when he thought about his mobile phone and managed to get it out of a pocket. PC Elton went back to the driver’s seat whilst PC Harrington remained close to him. All the other officers got in. Mr Demetrio explained how he managed to turn his phone on and make two short recordings. During the first, he asked PC Harrington why he had strangled him. During the second recording he was racially abused by PC MacFarlane. Mr Demetrio described all the other officers falling silent after the racial abuse. He asked them if they had heard what PC MacFarlane had said but all denied it.

[10]Mr Demetrio explained that at the police station he was placed in a cage with a number of other people who had been arrested, including a black boy who he says was assaulted by PC Harrington. The detail of that incident is immaterial for the purposes of these claims. It is sufficient to record that PC Harrington was prosecuted for assault occasioning actual bodily harm and acquitted in the Crown Court on 8 March 2013. Nonetheless, he faces gross misconduct disciplinary proceedings in connection with his actions relating to that prisoner which remain outstanding.

[11]Mr Demetrio said that PC Harrington took possession of his mobile phone and began to go through his text messages. He was scared that PC Harrington would come across the recordings he had made in the van and delete them. In due course Mr Demetrio was processed and strip-searched. The phone had been placed in an evidence bag. It was unsealed in front of Mr Demetrio by Inspector Whitehead. After he had listened to the recordings it was once more sealed in an evidence bag.

[12]Mr Demetrio was seen by Dr Ranu at the police station. Dr Ranu provided a statement in which he confirmed that Mr Demetrio alleged he had been assaulted with hands placed around his neck, with pressure on his chest from a knee or someone’s hands. He described Mr Demetrio as being shocked at what had happened during his arrest. He found a number of injuries including bruising around the right ear and a clear bruise on the neck. The bruises around the right ear were consistent with a blunt force injury. There were two scratches over the right cheek, a red superficial scratch measuring 4cm x 0.5cm over the left side of his neck. The bruise over the right side of the front of his neck measured 3cm x 0.5cm. Dr Ranu’s conclusion was that the bruise on the neck was consistent with the effect of pressure from a digit or hand pressed around Mr Demetrio’s neck, as Mr Demetrio had described. Dr Ranu also found a graze on Mr Demetrio’s chest with pain and tenderness. The language of “consistency” is very familiar in the context of injuries sustained in the course of a fight or struggle. Rarely can the nature of the injury determine precisely how it was caused.

[13]Mr Demetrio made two separate recordings, the first lasting three minutes and twelve seconds and the second three minutes and ten seconds with a gap between the two of a minute or so. The voice files were enhanced to improve the audio quality. It was the second recording which provided conclusive evidence of racial abuse. Amongst the comments recorded were “the problem with you is you’ll always be a nigger”. There was more. In due course PC MacFarlane was disciplined in respect of the racial abuse and dismissed from the force. The first recording concerned the strangling incident. Shortly after the officer speaking called Mr Demetrio a “scumbag”, the following exchange occurred:

“Demetrio: You tried to strangle me. Officer: No, I did strangle you. Demetrio: You did strangle me, yeah? Don’t worry bruv. Officer: I’m not worried, you’re a cunt. Demetrio: Why did you strangle me? What did I do for you to strangle me? Officer: Kicking out. Demetrio: Kicking at what? I was handcuffed, sitting down. Officer: Stopped you though didn’t it.”

The officer also confirmed in this conversation that he had pushed Mr Demetrio down. Mr Demetrio is heard calling the officer a “fat mug”. Demetrio: Why did you strangle me? What did I do for you to strangle me? Officer: Stopped you though didn’t it.”

Demetrio: Why did you strangle me? What did I do for you to strangle me?

[14]The subsidiary complaint was that the police officers in the van had sung a children’s song around this time which was insulting to Mr Demetrio. The recording confirmed the singing of the song.

The Statutory Scheme

[15]The IPCC was created by the Police Reform Act 2002 (“the 2002 Act”). It replaced the Police Complaints Authority. The 2002 Act created a detailed code for the investigation of complaints, conduct matters and incidents involving the police which result in death or serious injury. Section 10 identifies the general functions of the IPCC. It provides:

“10 General functions of the Commission (1) The functions of the Commission shall be– (a) to secure the maintenance by the Commission itself, and by local policing bodies and chief officers, of suitable arrangements with respect to the matters mentioned in subsection (2); (b) to keep under review all arrangements maintained with respect to those matters; (c) to secure that arrangements maintained with respect to those matters comply with the requirements of the following provisions of this Part, are efficient and effective and contain and manifest an appropriate degree of independence; (d) to secure that public confidence is established and maintained in the existence of suitable arrangements with respect to those matters and with the operation of the arrangements that are in fact maintained with respect to those matters; (e) to make such recommendations, and to give such advice, for the modification of the arrangements maintained with respect to those matters, and also of police practice in relation to other matters, as appear, from the carrying out by the Commission of its other functions, to be necessary or desirable; (2) Those matters are— (a) the handling of complaints made about the conduct of persons serving with the police; (b) the recording of matters from which it appears that there may have been conduct by such persons which constitutes or involves the commission of a criminal offence or behaviour justifying disciplinary proceedings; (ba) the recording of matters from which it appears that a person has died or suffered serious injury during, or following, contact with a person serving with the police; (c) the manner in which any such complaints or any such matters as are mentioned in paragraph (b) or (ba) are investigated or otherwise handled and dealt with. (3) … (4) It shall be the duty of the Commission— (a) to exercise the powers and perform the duties conferred on it by the following provisions of this Part in the manner that it considers best calculated for the purpose of securing the proper carrying out of its functions under subsections (1) and (3); and (b) to secure that arrangements exist which are conducive to, and facilitate, the reporting of misconduct by persons in relation to whose conduct the Commission has functions. (5) … (6) Subject to the other provisions of this Part, the Commission may do anything which appears to it to be calculated to facilitate, or is incidental or conducive to, the carrying out of its functions.”

[16]Section 13 provides that Schedule 3, which makes provision for the handling of complaints, shall have effect. Paragraph 1 of Schedule 3 imposes obligations upon the Chief Officer to obtain and preserve evidence when he knows of a complaint. Paragraph 2 imposes procedural duties upon the IPCC, Chief Officer and Local Policing Authority relating to the recording of a complaint. It enables the “appropriate authority” (i.e. either Chief Officer or Local Policing Authority, depending upon the circumstances) to decline to notify or record a complaint if satisfied that the subject matter is already being dealt with in criminal or disciplinary proceedings. By paragraph 3 that decision is subject to an appeal to the IPCC. This is the first of a number of instances found in the 2002 Act where the IPCC acts as an appellate body. Paragraph 4 requires certain categories of complaint to be referred to the IPCC. Mr Demetrio’s complaints were referred to the IPCC. Paragraph 5 requires the IPCC to determine whether the complaint needs to be investigated. If it decides that an investigation is necessary it must decide the form of investigation pursuant to paragraph 15. Even if it considers that an investigation is unnecessary it may refer the matter back to the appropriate authority for local resolution pursuant to paragraph 6. Local resolution is concerned with complaints which, in relative terms, are lacking in seriousness. The Schedule provides detail of mechanisms for local resolution and also a right of appeal to the IPCC against the outcome of local resolution.

[17]Paragraphs 10 to 14D are concerned with the nuts and bolts of handling conduct matters and incidents involving death and serious injury. Paragraph 15 provides:

“15 Power of the Commission to determine the form of an investigation (1) This paragraph applies where— (a) a complaint, recordable conduct matter or DSI matter is referred to the Commission; and (b) the Commission determines that it is necessary for the complaint or matter to be investigated. (2) It shall be the duty of the Commission to determine the form which the investigation should take. (3) In making a determination under sub-paragraph (2) the Commission shall have regard to the following factors— (a) the seriousness of the case; and (b) the public interest. (4) The only forms which the investigation may take in accordance with a determination made under this paragraph are— (a) an investigation by the appropriate authority on its own behalf; (b) an investigation by that authority under the supervision of the Commission; (c) an investigation by that authority under the management of the Commission; (d) an investigation by the Commission. (5) The Commission may at any time make a further determination under this paragraph to replace an earlier one. (6) Where a determination under this paragraph replaces an earlier determination under this paragraph, or relates to a complaint or matter in relation to which the appropriate authority has already begun an investigation on its own behalf, the Commission may give— (a) the appropriate authority, and (b) any person previously appointed to carry out the investigation, such directions as it considers appropriate for the purpose of giving effect to the new determination. (7) It shall be the duty of a person to whom a direction is given under sub-paragraph (6) to comply with it. (8) The Commission shall notify the appropriate authority of any determination that it makes under this paragraph in relation to a particular complaint recordable conduct matter or DSI matter.”

The IPCC determined that the complaint made by Mr Demetrio should be investigated by the IPCC itself. The difference between an investigation supervised or managed by the IPCC lies in the degree of control they may exercise over the investigation and then the procedures provided by Schedule 3 for determining whether an officer should face disciplinary action. Paragraphs 16, 17, 18 and 19 respectively make provision for the different types of investigation identified in paragraph 15(4). Paragraph 19(2) requires the IPCC to designate a member of its staff to take charge of its investigation and others to assist. Paragraph 19 confers the powers and privileges of a constable on the investigator. Paragraphs 19B to 19F provides for the serving of a notice upon a police officer, together with specified information, in cases where the investigation may lead to proceedings for misconduct or gross misconduct. They also concern submissions made by the officer and interviews with the officer under investigation. There follow complex provisions as to how the decision whether the investigation may lead to misconduct or gross misconduct proceedings should be made. Gross misconduct proceedings are those concerning allegations so serious that dismissal would be justified. (a) a complaint, recordable conduct matter or DSI matter is referred to the Commission; and (b) the Commission determines that it is necessary for the complaint or matter to be investigated. (a) an investigation by the appropriate authority on its own behalf; (b) an investigation by that authority under the supervision of the Commission; (c) an investigation by that authority under the management of the Commission; (d) an investigation by the Commission. (b) any person previously appointed to carry out the investigation,

[18]Paragraph 21 invests the IPCC with power to order the discontinuance of an investigation being carried out by the appropriate authority in prescribed circumstances and to discontinue its own investigation in circumstances authorised by regulations. There are some circumstances in which an appropriate authority may discontinue an investigation it has started, but that is subject to a limited right of appeal by a complainant.

[19]Paragraph 22 is concerned with final reports on investigations into complaints:

“22 Final reports on investigations: complaints, conduct matters and certain DSI matters (1) This paragraph applies on the completion of an investigation of— (a) a complaint, or (b) … (2) A person appointed under paragraph 16 shall submit a report on his investigation to the appropriate authority. (3) A person appointed under paragraph 17 or 18 shall— (a) submit a report on his investigation to the Commission; and (b) send a copy of that report to the appropriate authority. (4) … (5) A person designated under paragraph 19 as the person in charge of an investigation by the Commission itself shall submit a report on it to the Commission. (6) A person submitting a report under this paragraph shall not be prevented by any obligation of secrecy imposed by any rule of law or otherwise from including all such matters in his report as he thinks fit.”

A report under paragraph 16 is a local investigation on behalf of the appropriate authority. A report under paragraphs 16 and 17 is one arising from an investigation respectively under the supervision or management of the IPCC. The report in this case was submitted by a person designated by the IPCC and was thus under paragraph 19. Paragraph 23 specifies the actions the IPCC must take in response to a report following an investigation they have carried out themselves or that has been carried out under their management. Paragraph 24 deals with the action required following receipt of a report following an investigation by the appropriate authority or under the supervision of the IPCC.

[20]Paragraph 23 requires the IPCC to consider whether a criminal offence may have been committed and determines a procedure for informing the Director of Public Prosecutions (“DPP”) and the procedure then to be followed. The IPCC is also required to send a copy of the report to the appropriate authority which in turn must decide whether to take disciplinary proceedings (and if so in what respect) and send a memorandum to the IPCC setting out its determination. If the IPCC disagrees with the determination of the appropriate authority, pursuant to paragraph 27 it may make a recommendation relating to the action it considers should be taken. The appropriate authority must then consider the recommendation and decide whether it accepts it. If it does not, the IPCC may direct the authority to initiate the disciplinary proceedings it considers to be appropriate. By paragraph 27(8) the IPCC may at any time withdraw a direction given under this paragraph.

[21]The procedure under paragraph 24 is different, in particular, in that the decision about disciplinary proceedings rests with the authority, and not the IPCC.

[22]However, in the case of a local investigation or one under the supervision of the IPCC, Paragraph 25 confers various rights of appeal on the complainant. As with many aspects of Schedule 3 the provisions are complex. However, in general there is a right of appeal to the IPCC on five grounds: i) That he has not been provided with adequate information about the findings of the investigation or the determination made by the appropriate authority regarding disciplinary action; ii) Against the findings of the investigation; iii) Against any findings that there is or is not a case to answer in respect of misconduct or gross misconduct; iv) Against a decision to take, or not to take, action; v) Against a decision not to refer the matter to the DPP.

[23]Amongst the powers available to the IPCC on an appeal are to direct that a complaint be re-investigated or to review the findings itself. It may engage the recommendation procedure under paragraph 27 in respect of taking action against an officer.

[24]Two further aspects of the statutory scheme are of note. First, paragraph 2(8) of Schedule 3 provides:

“Nothing in this paragraph shall require the recording by any person of any complaint about any conduct if that person considers that the complaint falls within a description of complaints specified in regulations made by the Secretary of State for the purposes of this paragraph.”

Those regulations are the Police (Complaints and Misconduct) Regulations 2012 (SI 2012/1204) (“the 2012 regulations”). Regulation 3(2) describes those complaints as those which are already the subject matter of a complaint, the complaint is anonymous, the complaint is vexatious or an abuse, the complaint is repetitious or the complaint is fanciful. Secondly, regulation 20 concerns the scope of an investigator’s report in connection with an investigation into allegations of misconduct by a police officer:

“Report of investigation 20. For the purposes of paragraph 22(7) of Schedule 3 to the 2002 Act (final reports on investigations), on completion of an investigation the investigator’s report shall— (a) provide an accurate summary of the evidence; (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 misconduct or gross misconduct or whether there is no case to answer.”

The 2012 Regulations were not in force at the time of Mr Demetrio’s complaint. The material analogous provisions were found in the Police (Complaints and Misconduct) Regulations 2004 (“the 2004 Regulations”). Regulation 3 of those regulations mirrored Regulation 3 of the 2012 Regulations. Regulation 20 restated the terms of Regulation 14E of the 2004 Regulations.

The Investigation

[25]The IPCC investigator completed her report and submitted it to the IPCC on 31 October 2012. In practical terms that involved submitting it to the IPCC Commissioner with responsibility for the complaint in question, who at the time was Mike Franklin. The report is substantial. It runs to 65 pages and 194 paragraphs. It summarised Mr Demetrio’s account and the content of the two recordings. During the course of the racist abuse Mr Demetrio identified the officer by his collar number. The accounts of all the officers were summarised. Mr Demetrio was described as being abusive, something the recordings confirmed. None of the officers could recollect hearing the “strangling” conversation and all except PC Harrington roundly denied being the officer speaking. None heard the racist comments made by PC MacFarlane.

[26]PC Elton explained the circumstances of the arrest. He said that he had reached out instinctively with one hand to protect himself on an occasion in the van when Mr Demetrio attempted to head-butt him. That hand made contact with Mr Demetrio’s neck. He guided Mr Demetrio back to his seat with minimal force. He thought he was the only officer who had placed a hand on his neck. Mr Demetrio feigned passing out. He denied making the strangling remarks. The voice on the recording was not his and he did not recognise it. PC Harrington supported PC Elton’s account relating to the attempted head-butt and that his hand went onto Mr Demetrio’s neck. He admitted using force but only in response to Mr Demetrio kicking out. He accepted that he had held him down on his cheek, pushing his face to one side. Both officers said that the force they used was reasonable and lawful in the face of Mr Demetrio’s violence. PC Harrington said that Mr Demetrio had kicked out again a little later and this time he pushed him by placing his right hand on Mr Demetrio’s left shoulder. PC Harrington said he was behind Mr Demetrio. PC Harrington denied strangling Mr Demetrio with both his hands outstretched and denied kneeling or putting any weight on his chest. PC Harrington was played the recording. He had no recollection of the strangling conversation and said that “it did not resonate with him”. He had no recollection of hearing the racist remarks and, if he had heard them, he would have challenged them and reported the incident to his supervisor.

[27]The “conclusion” section of the report “upheld” the complaint relating to racist language [142]. In dealing with the allegations of violence it noted that Mr Demetrio had originally said to Inspector Whitehead that the officer who strangled him was the driver of the van and that PC Elton accepted that his hand had made contact with Mr Demetrio’s neck [143]. By reference to Dr Ranu’s findings it concluded that it was more likely than not that the bruise on the neck was caused by PC Elton, but that there was insufficient evidence to say that it was more likely than not that either of these officers was responsible for the chest injury [144]. Then the report noted that the two officers’ accounts were consistent in saying that there was only one incident involving Mr Demetrio’s neck and continued: “Given there were two different recorded accounts as to who Mr Demetrio alleged strangled him this investigation finds it is more likely than not that both officers were involved in the manner in which they described.” [145]

[28]The next question considered in the conclusion section was whether the force used was reasonable. The purpose of PC Elton’s use of force was to defend himself and PC Harrington’s use of force was to assist him in detaining Mr Demetrio [146]. Taking account of the fact that there were no pinpoint haemorrhages found by Dr Ranu and that PC Elton’s account was consistent with the injury to the neck and given the different accounts from Mr Demetrio “it is more likely than not that [he] was not strangled, rather proportionate force was used to restrain him as described by the officers. This complaint is therefore not upheld.” [148]

[29]The reasoning thus far has not considered the recording of the strangling conversation. The conclusion section moves on at this stage to deal with the singing allegation. The conclusion was that no disciplinary action was justified relating to that although the behaviour was unprofessional.

[30]The report later returns to consider the position of PC Elton and PC Harrington in more detail. The facts of PC Elton using force against Mr Demetrio were rehearsed and the conclusion repeated that the bruise to his neck was probably caused by PC Elton [169]. Paragraph [170] ends with these words: “On the balance of probabilities in respect of the allegation that PC Elton strangled Mr Demetrio, there is no case to answer.” [170] The question whether PC Elton should have intervened over the racist remarks was also considered with the conclusion that there was insufficient evidence that he heard them. Thus there was no case to answer [175].

[31]The individual consideration of the position of PC Harrington starts at paragraph [177]. At [178] the report noted that the officers’ accounts provided no explanation of how Mr Demetrio’s chest was injured but that it might have occurred during his interaction with PC Harrington. However, Mr Demetrio made no complaint of being struck by the officer behind his ear and so “there remains the possibility” that the injuries were sustained before his arrest. The evidence of another officer that he saw PC Harrington standing in the van in front of Mr Demetrio with PC Elton behind him did not fit with the officers’ account and tended “to support the account given by Mr Demetrio”. The report again noted that Mr Demetrio had initially said it was the driver who had strangled him [181] and then continued: “Based on the evidence available there is insufficient evidence to conclude PC Harrington strangled Mr Demetrio, although there is no dispute [he] was pushed down and held by his neck on the seat of the van by at least one officer. However, taking into account the fact that PC Elton has taken responsibility for holding Mr Demetrio by the neck, given the fact that there are two different recorded accounts of which officer was involved and given the consistency in officer’s accounts about the actions of Mr Demetrio in coming towards PC Elton it is concluded that it is more likely than not that PC Harrington’s use of force was as he described and was reasonable in order to prevent Mr Demetrio from coming towards him and head butting him. There is no case to answer for PC Harrington.” [182]

[32]In paragraph [183] the report begins its consideration of Mr Harrington’s failure to report the racist language of PC MacFarlane. It noted that Mr Demetrio’s evidence was that he extracted his phone from a pocket whilst PC Harrington was standing next to him. He stated that other officers were present when the remarks were made. It is at this point in the report that the recorded conversations are analysed: “It cannot be proved that the [strangling] conversation recorded by Mr Demetrio was with PC Harrington; however, given that PCs Elton and Harrington were the only officers involved in the restraint it is more likely than not that it was one of these two officers. PC Elton denied it was his voice. PC Harrington stated he could not recollect the conversation but did not specifically deny it was his voice. It was not possible to say on a balance of probabilities who was speaking to Mr Demetrio on the audio recording, but it is clear [he] firmly believed it was PC Harrington he was speaking with as he later identified him as the officer whose involvement he witnessed in an unrelated incident, and who had accompanied him to the custody desk.” [186] The significance of this recording identified at this stage in the report is that it was close in time to the second (racist) recording and that the racist language immediately followed another section in which an officer is speaking over his radio to provide details of the arrest. He identified his number. That number was PC Harrington’s. The officer was called “Joe” (as is PC Harrington). The racist language immediately follows the recording of the officers reporting. From that the report concluded that it was more likely than not that the officer recorded on his radio would have heard the racist remarks and that the officer was PC Harrington. The conclusion, therefore, was that there was a case of gross misconduct to answer for hearing, but then failing to report, the racist abuse.

[33]Internal arrangements within the IPCC enabled the report to be considered by Mr Franklin informally before it was ‘submitted’ to the IPCC by the investigator pursuant to paragraph 22(5).

[34]Pursuant to paragraph 23(6) of Schedule 3 to the 2002 Act the report was sent to the Commissioner. On 23 January 2013 Chief Inspector Andrew of the Directorate of Professional Standards wrote to Mr Franklin. The letter was the formal response (“memorandum”) required by paragraph 23(7). She agreed with the assessment in the report that there was no case to answer in respect of the strangling allegation. Chief Inspector Andrew disagreed with the conclusion that PC Harrington should face disciplinary proceedings over the alleged failure to report PC MacFarlane’s racist abuse. Mr Franklin replied on 22 February 2013. He said nothing about the strangling allegation but maintained that the other matter should be pursued. He made a recommendation to that effect pursuant to paragraph 27. On 14 March 2013 the Commissioner repeated the position that there should be no further action and on 19 April asked that the investigation and conclusions be reviewed. On 22 April Mr Franklin declined that review. He also indicated that the decision whether to issue a direction would be for Ms Izekor, who was taking over from him. In due course she gave that direction.

[35]The circumstances in which Ms Izekor came to consider it appropriate to review the strangling allegation were these. She attended PC MacFarlane’s misconduct hearing later in 2013 and became increasingly concerned about the way in which the strangling allegation had been dealt with. Having canvassed the views of both the Commissioner and Mr Demetrio she made her decision to do so on 26 February 2014.

Functus Officio

[36]Functus officio means no more than that a judicial, ministerial or administrative actor has performed a function in circumstances where there is no power to revoke or modify it. It is a Latin tag still in universal use and usually abbreviated to the short statement that someone is “functus”. On behalf of the Commissioner Mr Sheldon QC submits that there is no explicit or implicit power conferred by the 2002 Act upon the IPCC to revisit a report submitted to it in any circumstances – “once a report is provided to the IPCC everyone is stuck with it”. The statutory code found in Schedule 3 is more than a framework. It is an exhaustive statement of the IPCC’s powers. He submits that the IPCC became functus in respect of the strangling allegation when it acquiesced in, and thus implicitly agreed with, the Commissioner’s view that there should be no action in respect of it. The IPCC’s function in respect of that allegation was complete on 22 February 2013 when Mr Franklin responded to Chief Inspector Andrew’s memorandum. There is no power to revise that implicit decision. Mr Sheldon submits that the only route available to achieve the outcome desired by the IPCC is to have the report (or parts of it) quashed in the High Court on the basis of a public law failing. In the event that there is no claimant to challenge the IPCC’s decision the procedures in the High Court are flexible enough to enable the IPCC to seek relief on its own behalf. Mr Baumber for PC Harrington supports those submissions.

[37]Mr Fortt on behalf of the IPCC and Miss Macdonald for Mr Demetrio submit that the absence of any express prohibition in the statutory scheme against reopening an investigation, coupled with the strong public interest considerations which underpin the legislation, should lead to the conclusion that the IPCC can revisit a decision and a report, for good reason. Its decision to reopen an investigation would be subject to the controls of public law but the functus officio principle has no application.

[38]All parties referred us to section 12 of the Interpretation Act 1978 which states the general rule in relation to statutory powers that, unless the contrary intention appears, “the power may be exercised and the duty performed from time to time as occasion requires”. However, as the authors of the 11th edition of Wade and Forsyth Administrative Law state at 191:

“this gives a highly misleading view of the law where the power is a power to decide questions affecting legal rights. In those cases the courts are strongly inclined to hold that the decision, once validly made, is an irrevocable legal act and cannot be recalled or revised. The same arguments which require finality for the decisions of courts of law apply to the decisions of statutory tribunals, ministers and other authorities.”

Examples which follow include decisions relating to the fixing of statutory compensation and the amount of a pension due under statutory provisions: Re 56 Denton Road, Twickenham

[1953] Ch 51

; Livingstone v Westminster Corporation

[1904] 2 KB 109

. The issue is always whether there is legal power to undo the act in question.

[39]We are not persuaded by the analogy the Commissioner seeks to draw between these sorts of rights and what is said to be the right of PC Harrington to have an irrevocable determination on the question whether he is to face disciplinary action for the strangling allegation. A decision whether to initiate disciplinary proceedings is far removed from determinations of rights of that nature. We do not accept that a person against whom there is, or may be, a disciplinary case to answer can be said to have a right to know once and for all whether he will be proceeded against.

[40]There are two related questions which arise. First, is the Commissioner right to suggest that once a report is submitted to the IPCC it is “stuck with it” in the sense that it cannot ask for it be reviewed? Secondly, was the implicit decision not to disagree with the Commissioner’s assessment that there should be no disciplinary action in respect of the strangling allegation irrevocable?

[41]Mr Sheldon drew a contrast with the appeals mechanisms available under Schedule 3 of the 2002 Act in respect of reports produced on behalf of the appropriate authority and under the supervision of the IPCC and the statutory silence relating to challenges to reports produced under the management of, or by, the IPCC. There is no appeal available to the complainant in respect of the reports stemming from the latter two types of investigation and nowhere is there power in the IPCC to reject or seek amendment or modification of a report furnished following any of the four types of investigation identified in paragraph 15.

[42]It is important to bear in mind the different roles played by the actors in these investigations. The investigator makes no decision. He has a preliminary role, now identified in the 2012 Regulations, which includes expressing his opinion on whether there is a case to answer. The appropriate authority has the responsibility of making the first determination whether there should be disciplinary proceedings and, if so, what form they should take. The IPCC may disagree if there is an appeal relating to local investigations or supervised investigations; and in respect of managed investigations or those it has carried out itself the dialogue identified in Schedule 3 of the 2002 Act may unfold with the IPCC having the last word. The whole process is concerned to ensure that there is proper investigation into complaints against the police and an independent final arbiter of whether disciplinary proceedings should follow.

[43]The IPCC does not have to agree with the opinion of an investigator on whether there is a case to answer. It may take a different view, and press its view at the stage at which it becomes involved in the question whether there should be disciplinary proceedings. For reasons which will become apparent when we consider the alleged flaws in the report, this is a case where a strong argument could have been made in favour of disciplinary action on the strangling allegation without any further investigation.

[44]What is the IPCC to do if it receives a report following a local or supervised investigation which on examination it considers to be seriously inadequate but there is no appeal or such a report following an IPCC or IPCC managed investigation where no appeal mechanism exists for the complainant? We accept that there is no express power in the 2002 Act enabling the IPCC to ask for further work to be done. The IPCC did not repeat before us the submission it advanced in R (Mackaill) v Independent Police Complaints Commission

[2014] EWHC 3170 (Admin)

that the terms of paragraph 15(5) of Schedule 3 are broad enough to enable it to direct a different form of investigation even after an investigation had been completed. It was unnecessary for the court in MacKaill to determine the issue because of its conclusions on the facts that the flaws in the process were such that there was no report at all. Lord Justice Davis considered it unnecessary to express an opinion “on what is not an entirely straightforward issue.” In any event the terms of paragraph 15(5) are of no direct relevance in this case. However, it is impossible to conclude that the functions of the IPCC identified in section 10 of the 2002 Act would be furthered or secured if it were “stuck with” a deficient report. Those functions include securing public confidence in the operation of the arrangements put in place to handle and investigate complaints. Beyond the language of the statutory scheme itself no policy objective was advanced in support of the straight-jacketed approach favoured by the Commissioner. It is submitted that the statutory scheme is premised on the basis that the IPCC has just one chance to get it right.

[45]We recognise that paragraph 23 requires action to be taken immediately by the IPCC on receipt of a report. Nonetheless, in the absence of an express prohibition, we reject the submission that the IPCC has no power to seek further information in respect of a report it considers defective. Section 10(6) enables the IPCC to do anything calculated to facilitate the carrying out of its functions. That is expressed as being “subject to the other provisions of this Part” of the 2002 Act. Mr Sheldon QC argued that “subject to” in this context must mean “governed by” so as to restrict the powers of the IPCC to those set out in Schedule 3. We disagree. The opening words of Section 10(6) require the IPCC to apply the provisions of Schedule 3 and not to do anything directly contrary to those provisions. Other than that Section 10(6) provides the IPCC with the power “to do anything calculated to facilitate the carrying out of its functions”. That includes the power to seek further information as set out above. The provisions of Schedule 3 do not prohibit such a course.

[46]The question whether the investigator’s report can be revisited feeds into the wider question whether the Functus Officio principle applies to the circumstances of this case. The Commissioner prays in aid the provisions in Schedule 3 which provide mechanisms for revisiting various aspects of the investigation and decision making process as supportive of the submission that without express statutory authority the IPCC can not go back on a decision it has taken in that process. In particular, he places reliance on the various appeal processes established by Schedule 3 and the express power found in paragraph 27(8) which enables the IPCC to withdraw a direction relating to disciplinary proceedings. No such power would be needed unless the IPCC otherwise could not revoke its decision.

[47]There is no authority directly in point but a number of decisions of the High Court were drawn to our attention, which touch on this issue, in addition to the decision of this court in MacKaill.

[48]Two of those decisions, R (Hanratty) v Police Complaints Authority (Transcript 29 July 1995) and R (Wilkinson) v Police Complaints Authority

[2004] EWHC 678 (Admin)

, concerned whether the Police Complaints Authority (“PCA”), having exercised its power under the statutory scheme then in place to dispense with an investigation, could revoke that decision and require an investigation. In Hanratty Brooke J accepted a submission on behalf of the PCA that there was no power to revoke. In Wilkinson Gage J came to the opposite conclusion. Hanratty was not cited to him. Although the statutory scheme was different we accept that the reasoning of Brooke J provides some support for the Commissioner’s position.

[49]Of more direct relevance is the decision of Calvert-Smith J in R (Coker) v IPCC

[2010] EWHC 3625 (Admin)

because that was concerned with the statutory scheme of the 2002 Act and Schedule 3. The claim challenged the decision of the IPCC not to direct misconduct proceedings. The claimant was the sister of a man who had died following arrest. The conduct complained of related to politeness and tolerance in an officer’s dealings with another person, resulting in her withholding information relevant to Mr Coker’s condition. There was an IPCC investigation. The report recommended misconduct action. The Commissioner considered that “words of advice” would be sufficient. The IPCC and the Commissioner then entered into correspondence (and discussion) and agreed a compromise. The inspector concerned should receive a written warning. A written warning requires the consent of the officer. He refused to consent. The Commissioner wished to revert to his previous position (i.e. words of advice) but the IPCC did not agree. So both sides reverted to their earlier positions. There was the further consideration within the IPCC and in due course it agreed with the Commissioner’s position and made a decision not to recommend anything more serious. That decision was challenged. It was argued that having decided, after the written warning option melted away, that the proper course was a disciplinary hearing the IPCC could not then change its mind and agree with the Commissioner. It was functus officio. The judge was referred to a number of decisions relating to the correct approach when the IPCC is exercising its appellate functions, where its decisions have been regarded as irrevocable, and continued:

“34. The question here is whether, having communicated its findings so far as the investigation is concerned to the Metropolitan Police and the claimant, it should be in a position to reconsider that decision … in a given case. 35. In my judgment this ground fails. The justification … that there be finality in litigation is one thing. The situation that holds good in these circumstances is much more analogous to the decision to prosecute. As is well known, the Code for Crown Prosecutors requires prosecutors to keep such decisions under review throughout … In my judgment the set of circumstances with which we are concerned is entirely amenable to further representations, whether on behalf of somebody in Miss Coker’s position … or on the part of the potential defendant in misconduct proceedings. … [The letter] is firmly expressed [and] expresses opinion and does not direct under section 27(5) of the Act … In the end the actual decision, in the absence of a direction by the IPCC, was actually for the [Commissioner], provided it informed the IPCC of that decision.”

[50]The Code, made under section 10 of the Prosecution of Offences Act 1985, sets out a number of circumstances in which a decision not to prosecute may be reconsidered, including when a new look at a decision leads to the conclusion that it was wrong or that public confidence considerations tell in favour of a prosecution. Mr Fortt and Miss Macdonald rely by analogy on the position relating to criminal prosecutions.

[51]The similarity between the facts in Coker and this case are that the “decision” eventually made by the IPCC was to agree to the earlier decision of the Commissioner under paragraph 23 regarding action. The earlier expressions of opinion in the report and correspondence had not been “decisions” of the IPCC. However, Coker was not directly concerned with a situation in which the IPCC had acquiesced in or agreed with a decision of the Commissioner and subsequently wished to change its mind.

[52]As we have already observed MacKaill was a case in which the investigator’s report was found to be no report at all. For practical purposes no report had been prepared and the court so declared. The cases in which the question whether the IPCC’s decisions made when acting as an appellate body are irrevocable include R (Dennis) v IPCC

[2008] EWHC 1158 (Admin)

in which Saunders J concluded that a decision made and promulgated by the IPCC as the appellate body under paragraph 25 of Schedule 3 was irrevocable. We respectfully agree with that conclusion. In such cases the IPCC is acting in a quasi-judicial capacity determining a dispute between parties. But it does not answer the question in this case where the function of the IPCC is to conduct an investigation in accordance with its functions and play its part in determining whether PC Harrington will face disciplinary charges, and if so what they will be.

[53]We have noted that the Commissioner relies upon silence in the letter of 22 February 2013 as amounting to an irrevocable decision not to recommend that PC Harrington face any action relating to the strangling allegation and an irrevocable implied statement that no direction under paragraph 27 would be given. If that were right it would disable the IPCC from reviewing the position whilst the process relating to other matters proceeded and changing their mind whilst on any view they were still seized of the complaint and determining what should flow from it. We find it impossible to accept that the IPCC could become functus officio in respect of different individual components of a single complaint by a single complainant arising out of a single incident. If functus officio has any application in this environment it could only bite when the IPCC had discharged its statutory functions with regard to the complaint in question. In our view the only point in time at which it reaches that position would be when it finally determines the question of disciplinary action (by issuing a direction) or agrees the course suggested by the Commissioner. That still leaves the question whether the principle applies at all.

[54]The arguments in support of the proposition that the IPCC cannot re-visit or reopen an investigation echo those which are deployed in support of the contention that the IPCC is “stuck with” a report whatever its quality. The detailed provisions of Schedule 3 undoubtedly provide support for an argument that the IPCC cannot reopen an investigation once it is effectively off its desk. Both Mr Sheldon and Mr Baumber emphasise the importance of finality from the point of view of officers under investigation and threat of disciplinary action and pray in aid the undoubted stresses that uncertainty brings with it. They submit that the action taken by Ms Izekor is simply incompatible with the statutory scheme.

[55]We asked how the IPCC would deal with a case in which additional evidence emerged which led it to a wish to reopen an investigation. Mr Sheldon submits that in such a case the only option would be to seek to quash the earlier decision in public law proceedings on the ground of mistake of fact. That seems to us to be not only cumbersome but also unsatisfactory. Such challenges are strictly circumscribed: see the analysis of the House of Lords in R v Criminal Injuries Compensation Board ex parte A

[1999] 2 AC 330

and the Court of Appeal in E v Secretary of State for the Home Department

[2006] EWCA Civ 49

;

[2006] QB 1044

. Reliance upon public law proceedings in such cases would hardly serve the public interest or secure and further the statutory functions of the IPCC. A consequence of the Commissioner’s argument that an investigation could only be reopened following a quashing order on public law grounds, which was recognised by Mr Sheldon, is that investigations which might be slipshod or unsatisfactory could not be revisited because no public law error was made. As he put it, “the IPCC have one chance to get it right”.

[56]In our judgment the arguments advanced by the Commissioner take little or no account of the public interest in the effective investigation of alleged police misconduct, or of the duties and functions of the IPCC identified in the 2002 Act. A direct comparison with the prosecution of alleged offenders is not precise because the Prosecution of Offences Act 1985 does not create a detailed framework for prosecutorial decision making of the sort found in the 2002 Act. Nevertheless, the factors that can weigh with the CPS in reconsidering a decision to prosecute (cases involving a careful review and a different decision being reached, cases involving fresh evidence and cases following inquests) are potentially relevant to investigations under the 2002 Act. Furthermore, the investigation under the 2002 Act is central for the purpose of determining whether the conduct in question amounted to criminal activity. There is no separate criminal investigation. The Commissioner’s approach could have the effect of protecting officers from criminal sanction.

[57]We have set out paragraph 2(8) of Schedule 3 which gives a discretionary power to decline to record a complaint in circumstances further set out in the 2012 Regulations and their predecessor regulations: see paragraph [24] above. The reliance upon functus officio (were it correct) could be circumvented in many cases by a fresh complaint. Were Mr Demetrio to make a further complaint to the IPCC it would not be required to reject it out of hand. Thus the Commissioner’s argument entails the consequence that the IPCC itself is prohibited by the statutory scheme from reopening an investigation but it could do so if a fresh complaint were made.

[58]All of these arguments to our mind point to the conclusion that the decision of the IPCC not to recommend or direct disciplinary action in respect of the strangling allegation was not an irrevocable decision.

[59]Any decision to reopen an investigation could be subject to the supervisory jurisdiction of this court. In practical terms there would need to be a compelling reason to reopen which would be scrutinised in any challenge.

Legitimate Expectation

[60]Legitimate Expectation and abuse of power are argued both in support of the Commissioner’s claim to quash the decision of the IPCC to reopen the investigation and to resist Mr Demetrio’s claim. We do not accept that either argument can avail the Commissioner or PC Harrington.

[61]The legitimate expectation argument is intimately bound up in the principal ground that the IPCC was functus officio. If it was not, there could be no legitimate expectation that the strangling matter might not be revisited absent any particular promise or representation to PC Harrington. There was no such promise or representation. In reality, the Commissioner and PC Harrington rely upon the statutory scheme as generating the legitimate expectation. In our judgment this argument fails at the first hurdle. There was no authoritative representation conferring a substantive benefit upon PC Harrington.

[62]The abuse of power argument is similarly of no substance. There is no suggestion of bad faith in this case. The decision to reopen the investigation relating to the strangling allegation proceeds upon a genuine assessment that the earlier investigation was wanting. As will become apparent when we turn to the irrationality argument, we share that assessment. The decision to reopen is attacked on the basis that it is unfair upon PC Harrington in particular because the complaint is now old. Having it hanging over him is said to be deeply damaging at a personal and professional level. We accept that the uncertainty flowing from the continuation of this investigation will add to PC Harrington’s professional and personal worries. However, they need to be viewed in the context of the two other misconduct proceedings he faces. The first arises out of his dealings with the prisoner we have mentioned; and the second from his alleged failure to report PC MacFarlane’s racist abuse of Mr Demetrio.

Irrationality

[63]We turn finally to the question whether the final report of the IPCC dated 31 October 2012 can be impugned on rationality grounds. The submission on behalf of the Commissioner (supported by PC Harrington) is that the burden on those seeking to argue irrationality in relation to a report of this kind is a high one. It is said that the court must ask the question: could any reasonable investigator have reached the conclusion set out in the report in question? Unless the answer to that question is no, any claim based on irrationality must fail.

[64]The language of “irrationality” carries with it pejorative overtones which may obscure the nature of the review called for. A decision will be vulnerable to being quashed where the reasoning is so flawed that it “robs the decision of logic”, as Sedley J put it in R v Parliamentary Commissioner for Administration ex parte Baldwin

[1998] 1 PLR 1

. That formulation has been repeated since, for example in R (Norwich and Peterborough Building Society) v Financial Services Ombudsman Ltd

[2002] EWHC 2379 (Admin)

[65]Accordingly, we consider that the proper approach when analysing a report of this kind for public law error is to consider the connection between the evidence available to the writer of the report and the conclusions drawn from that evidence. Where there is no logical connection on an objective analysis, the conclusions may be found to be irrational. Whether the lack of ostensible logic is sufficient to render the decision irrational will depend upon the significance of the evidence to which no, or no sufficient regard, was given. In this case the relevant conclusion is that no police officer had any case to answer in relation to the allegation of strangling Mr Demetrio.

[66]We begin by observing that the author of the report did not appear to have in mind the need to set out the evidence and reach a conclusion about whether there was a case to answer on the strangling allegation, but rather proceeded as if she were the decision maker charged with resolving factual disputes, as would any tribunal hearing a disciplinary charge. The result was that the report was littered with observations that something was, or was not, more likely than not. The overall conclusion on the strangling allegation was “it is more likely than not that [he] was not strangled, rather proportionate force was used to restrain him as described by the officers. This complaint is therefore not upheld”. The conclusion on strangling in respect of PC Elton was “on the balance of probabilities … there is no case to answer”. This confusion may have played its part in leading to the errors which we will describe.

[67]We have concluded that there were errors of reasoning in the report which were of sufficient significance to rob the decision of logic to such an extent that it was irrational.

[68]First, there was incontrovertible evidence that a police officer had admitted that he had “strangled” Mr Demetrio. This came from the recording made by Mr Demetrio on his mobile telephone. We have set out the substance of what was recorded in paragraph 13 above. The discussion of this evidence by the investigator in the course of her lengthy conclusions at no point addressed the fact that what was said was on its face a clear admission by a police officer that he had strangled Mr Demetrio. The investigator considered in some detail the identity of the police officer who had used the word “strangled”. She concluded that she could not reach any proper view as to which police officer had spoken the words. But she did not go on to consider the implications of the fact that the words had undoubtedly been spoken by a police officer when concluding, as she did, that “Mr Demetrio was not strangled”. At no point did the investigator address the fact that there had been an apparent and contemporaneous admission of that very fact. Quite apart from his own account, this was clear evidence which supported the complaint that Mr Demetrio had been strangled. Yet the investigator concluded that he had not been strangled. No connection was made between the evidence of the recording and the conclusion. Mr Sheldon submitted that perhaps the words were uttered in jest, but there is no hint of that in the reasoning. In the course of her conclusions the investigator did not deal at all with what was said other than in the context of discussing who had made the remarks.

[69]Secondly, there were only two police officers who could have been party to this conversation, PC Elton and PC Harrington. The former expressly denied to the IPCC investigator that the voice on the recording was his. PC Harrington told the investigator after listening to the recording that he had no recollection of the conversation. Mr Demetrio said that the person who used the word “strangled” was the police officer who had strangled him. In his detailed evidence as given to the investigator he described this officer as “very overweight”. He had referred to the officer as “fat” in the course of the recorded conversation. That description was entirely consistent with the build and appearance of PC Harrington whereas it was wholly inconsistent with PC Elton’s appearance. Mr Demetrio identified the officer who strangled him as “Officer B” and he gave an account of what that officer had done once they had arrived at the police station. Other evidence available to the investigator indicated that what “Officer B” had done at the police station was consistent only with that officer being PC Harrington. So much is now common ground. The investigator set out all of this evidence in the report. She then said that “it was not possible to say on the balance of probabilities who was speaking…on the audio recording”. No reasoning was given for this conclusion. No evidence was set out which could support it. It can only be described as lacking in logic and therefore irrational.

[70]Thirdly, the evidence of PC Harrington referred to Mr Demetrio kicking out at him. This was precisely what was described by the officer heard on the recording. At no point did the investigator make what was the obvious logical connection.

[71]In our judgement, it follows from those three matters that the investigator was irrational in a public law sense in ignoring the evidence of the recording when she considered whether there was a case to answer in relation to Mr Demetrio’s allegation that he had been strangled and that her conclusion about the identity of the police officer on the recording was also irrational. That alone is sufficient to justify quashing those parts of the IPCC final report relating to the allegation that Mr Demetrio was strangled.

[72]The investigator went on to make positive findings as to what had occurred between Mr Demetrio and PCs Elton and Harrington. She concluded on a balance of probabilities both officers had used reasonable force to effect the arrest of Mr Demetrio, that conclusion being based expressly on an acceptance of the evidence of each of the officers. PC Elton’s evidence was that he had instinctively put out his arm when Mr Demetrio had lunged towards him. PC Elton said that his hand had just happened to encounter Mr Demetrio’s neck and that he then had guided Mr Demetrio back to his seat “using minimal force”. The investigator concluded that this account was “more likely than not” accurate. However, prior to setting out that conclusion, the investigator noted the evidence of injury to Mr Demetrio’s neck i.e. a bruise consistent with pressure being applied with the digit of a hand. The investigator said that “this does not tend to support PC Elton’s account that he only used minimal force”. The investigator did not provide any reconciliation between these two conclusions.

[73]In relation to PC Harrington the investigator said this:

“it is more likely than not that PC Harrington’s use of force was as he described and was reasonable in order to prevent Mr Demetrio from coming towards him and head butting him”

. The only proper inference to be drawn from that conclusion is that it was based on evidence from PC Harrington that Mr Demetrio at the relevant time was trying to head butt the officer. Yet, as we have noted, that was not the evidence of PC Harrington. That officer told the investigator that he had assisted PC Elton by holding Mr Demetrio down as the latter was kicking out and that, when Mr Demetrio had kicked out again, he had pushed him down by placing a hand on his left shoulder. The conclusion that the force used by PC Harrington was reasonable purported to be based on that officer’s evidence. Since the evidence did not suggest any attempt to head butt on the part of Mr Demetrio, the conclusion had no logical basis.

[74]It follows that irrationality also is demonstrated in relation to the specific findings concerning the physical contact between the police officers and Mr Demetrio.

[75]In making all these observations we emphasis that we are not purporting to make any findings of fact. We are reviewing the conclusion that there was no case to answer in respect of the strangling allegation on the basis of the evidence available and the reasoning of the investigator.

[76]Both Miss Macdonald and Mr Fortt suggest that the conclusions of the report relating to the strangling allegation are also flawed because the IPCC failed to follow an obvious line of evidential inquiry, namely subjecting the recording to voice analysis. We have seen the conclusion that the officer heard making a report via his radio was PC Harrington. The report suggests that the recording was enhanced in some way to make it intelligible. One can well understand that its quality was likely to be very poor given Mr Demetrio was holding his phone in his cuffed hands behind his back whilst making his covert recording. Nobody having heard the recording has positively identified the speaker during the strangling conversation as being PC Harrington. It must follow that it is not obvious to the casual listener that the two speakers were the same. Miss Macdonald submits that the clearly required next step which the investigator should have taken was to instruct an expert to subject the recording to voice analysis with a view to establishing whether the two speakers were the same, or not. She submits that the failure to do so undermined the conclusion on the strangling allegation such that on this basis also it should be quashed. It was irrational not to do so.

[77]We are unable to accept that submission. It is always a question of judgement (no doubt tempered by practical and financial considerations) whether an evidential lead should be followed. In this case the failure to follow that evidential lead could not amount to an independent public law failing. The reality in this case is that the investigator did not appear to appreciate the significance of the recording or that the evidence tended to suggest, in the context of there being only two candidates for the speaker, that it was PC Harrington.

Conclusion

[78]In the result we dismiss the Commissioner’s claim but allow Mr Demetrio’s claim. We will hear in writing from the parties on the appropriate form of order.