Jeffrey, R (on the application of) v The Independent Police Complaints Commission [2017] EWHC 102 (Admin)

Case No CO/2811/2015

[2017] EWHC 102 (Admin)

IN THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT

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

Date 27/01/2017

Before

LORD JUSTICE IRWIN

Between

THE QUEENClaimant

(on the application of JOHN JEFFREY)Claimant

THE INDEPENDENT POLICE COMPLAINTS COMMISSIONDefendant

Susannah Stevens (instructed by Pattinson & Brewer Solicitors) for Claimant

Alan Maclean QC (instructed by The Independent Police Complaints Commission) for Defendant

Hearing Hearing dates: 28 - 30 June 2016

Judgment

Lord Justice Irwin :

Introduction

[1]This application for judicial review consists of a challenge to the investigation of complaints made by the Claimant to the Defendant, as to the Defendant’s actions when investigating the Claimant, and the conclusions about that complaint. The matter is multi-layered, and has become complex in its detail.

[2]The Claimant was, at the relevant period, a full-time Police Federation Representative. As such, he held welfare responsibilities for police officers – in particular Police Sergeant White and Police Constable Harratt – who were on duty in Brixton Police State on 21 August 2008. On that night, a man named Sean Rigg died there of a heart attack. Harratt and White gave evidence at the inquest. Suspicion arose as to collusion between Harratt and White over evidence in the inquest. The Defendant investigated. In the course of the investigation, IPCC staff came to suspect that the Claimant may have been part of the collusion. He was interviewed, arrested and on one occasion detained for about five hours. Subsequently, the Defendant concluded that no criminal proceedings against the Claimant should be commenced. PC Harratt was not in the end prosecuted, but PS White was eventually prosecuted for perjury, arising from his evidence at the Inquest. At the time of the hearing of this matter, his trial was proceeding. It was agreed that I would be unable to give judgment in the case until those criminal proceedings were concluded. They were concluded in November 2016, with acquittal on all charges against PS White.

[3]In order to consider the Claimant’s challenges, it is necessary to summarise the facts in stages, beginning with the events surrounding the inquest, then examining the IPCC investigation arising from the inquest, and concluding with the story of the Claimant’s complaint, the IPCC investigation into the complaint, the report on the complaint and the consequences.

The Inquest

[4]Since Sean Rigg died in police custody, the inquest was conducted before a jury. Sergeant White was the custody sergeant in Brixton Police Station at the relevant time, and PC Harratt was a probationary constable. Sean Rigg died of a heart attack in a police van in the police station yard. An important issue in the inquest was whether PS White visited him whilst he was in the van, to check on his welfare.

[5]At a hearing in June 2012, leading counsel for the Rigg family successfully applied to the Coroner for a ruling that four officers, including White and Harratt, should be prevented from hearing each other’s evidence. The application was made on the basis that the evidence of these centrally important witnesses might conflict, and that the direction sought was “necessary to reduce the risk” of contamination. The Coroner also ruled that the transcripts of evidence, which were being produced on a running basis, were not to be made available to that group of officers.

[6]As would be expected, the Coroner gave repeated warnings to witnesses to the inquest not to discuss their evidence whilst giving evidence.

[7]The inquest was set down for hearing over seven weeks. As often happens in a case of that length, the timing and duration of evidence was subject to change. The scheduling of these key witnesses was somewhat delayed, and they were again warned not to discuss their evidence. PC Harratt gave evidence on 9 July 2012. His account was that he was with Sean Rigg in the van as the vehicle travelled to Brixton. He then stated:

“I remember Sergeant White came out to visit me in the van”

. At the end of his evidence on 9 July he was expressly warned by the Coroner not to speak to the other police witnesses. He was not released as a witness, and was directed not to attend Court until he was recalled or released.

[8]PS White was called on the following day, 10 July. He gave evidence that:

“I think I went to the van and I think I looked into the van”

. In cross-examination just before the lunch break on 10 July, it was suggested to PS White that he was:

“…a liar. You never once left and went to the van, as will be shown on the CCTV when we resume at two o’clock.”

Following the short adjournment, the CCTV was played to the witness, and demonstrated that he had never visited the van. He agreed, in the face of the video, that he had never gone to the vehicle, and had therefore never made an assessment of Mr Rigg.

[9]On 11 July, Counsel indicated that the key police witnesses, including PC Harratt, would be required to return to the witness box. That was arranged for 19 and 20 July. The Coroner was informed on 19 July of the arrangements, including the fact that all four were positioned in four separate police stations, clearly to avoid the risk (and the suspicion) of discussion and contamination.

[10]Mr Harratt returned to the witness box on 20 July. On this occasion, when asked in evidence in chief who came to the van, PC Harratt replied:

“Possibly Sergeant White, I am not entirely a hundred percent sure of that.”

In cross-examination he was pressed on the point and the inconsistency between his original evidence and his current uncertainty. He continued to say he was uncertain. He appeared to give no coherent explanation for his change of evidence. He denied he had spoken to anyone about his evidence.

[11]The concern arose that the apparent convergence of the evidence of Harratt and White arose from collusion, which would of course have constituted a breach of the coroner’s direction that there should be no communication between the officers. At the conclusion of the inquest, the matter was referred to the Defendant by the Metropolitan Police Service [“MPS”].

The Claimant’s Role

[12]As I have said, the Claimant was the Police Federation Representative for both Sergeant White and PC Harratt. He was a senior police constable towards the end of his career, who was by then acting full-time as a Federation Representative. His role was to support both officers through the inquest, giving moral and practical support to them. In fact, for some of the time the Claimant went away on holiday, leaving the country on 20 July during the continuing hearing before the coroner. He returned on 13 August, leaving again from 17 to 31 August. In his absence, his role was filled by another Federation representative.

[13]It is critical to the Claimant’s position that it was at all stages legitimate for him to be in contact with the two key officers, as their Federation Representative. At one point counsel argued that the position of a Federation Representative is to be compared with that of a solicitor, a proposition which, in my judgment, is ill-founded for a number of obvious reasons. It is however a proposition which it is unnecessary for the Claimant to establish. The role of a Federation Representative is important. The provision of welfare and support means that frequent contact with officers through a difficult case may be perfectly proper, provided of course that no improper communication takes place. The latter point is common ground.

[14]I note before proceeding further: it may be that careful thought should in future be given in circumstances such as arose here, whether it is wise that the same Federation Representative should maintain contact with police officers who are forbidden to communicate with each other through the crucial phase of a case.

The IPCC Investigation

[15]The IPCC Terms of Reference were set on 6 August, to investigate the circumstances of the provision of evidence from PS White, extended on 9 August to include the evidence from PC Harratt. On 16 October 2012, Mr White was interviewed under caution. He gave a prepared statement denying any wrong-doing and replied “I have nothing further to add” to all questions asked. His prepared statement advanced an account as to why he had given evidence that he had gone to the back of the van when CCTV showed that he had not. Sergeant White was not asked about whether he had spoken to anyone during the inquest about his evidence.

[16]On 17 October 2012, PC Harratt was interviewed under caution. He, too, gave a prepared statement dealing with his evidence. He answered all further questions with “I have nothing further to say”. He served a second prepared statement in which he stated:

“I did not speak to [White] between 9 and 20 July 2012. I gave evidence on 9 July. On 11 July I was contacted by John Jeffrey, my fed rep, who told me that the coroner required me to come back to give evidence.”

[17]On 21 November 2012, the Defendant’s terms of reference was further amended to include an enquiry as to whether PC Harratt had discussed his evidence with anyone between 9 and 20 July. It is clear from the relevant “policy entry” that this was prompted by Harratt’s confirmation that he did speak to the Claimant in the period 9-20 July.

[18]On 27 November, the Defendant’s investigator Miriam Davies concluded that there was “an indication of potential misconduct … for PC Jeffrey, specifically that he may have discussed PC Harratt’s evidence with him” at the relevant time. Her reason is recorded:

“PC Jeffrey is the only person identified by PC Harratt [as having been spoken to by Mr Harratt]. PC Jeffrey is likely to have been in the coroner’s court when PS White gave his evidence.”

[19]Following discussion with the MPS, Ms Davies recorded that the severity assessment for such conduct by the Claimant would be “gross misconduct”, as the Claimant’s “honesty and integrity as a police officer would be grossly compromised. He would in addition be in breach of a coroner’s direction which could be shown to be [a] deliberate attempt to interfere with the administration of justice”.

[20]It is noteworthy that at this stage the Defendant had no record of phone calls, texts or emails passing between the Claimant and either of the other officers.

[21]On 6 December 2012, the Defendant initiated contact with the Claimant, and on the following day there was a telephone conversation between the Claimant and the Defendant’s investigator, Miriam Davies. The Claimant was served by email with a Notice alleging that he “may have discussed PC Harratt’s evidence with him during the period … 9 and 20 July”. A number of questions were included with the Notice for response by the Claimant. On the same day, the Defendant requested sight of the work emails of PC Harratt and all emails sent and received by the Claimant.

[22]On 20 December 2012, the Claimant responded to the questions. In summary, he emphasised his role as Federation Representative, looking after the welfare of officers and acting as “liaison with solicitors and investigators should the need arise”. The Claimant stated that he could not be specific about all the dates on which he attended the inquest. He had attempted to be present at court “at the same time as the principal officers”. He “would assume that at least on the dates they gave evidence I would have been there”. He made clear that he had supported these officers during the IPCC investigation which followed the death in custody and preceded the inquest. He was “the officers’ only point of contact at the court”. His commanding officers had asked him “to provide verbal briefings of relevant events in court when I was in attendance. I was also responsible for housing officers prior to their attendance as well as their transport to and from the court”. The Claimant went on to say:

“During the inquest, as in the time before the inquest, I had regular contact with PC Harratt [emphasis added]. I was his Federation friend and as such I was always available to speak to him day or night if he had any issues. This “friendship” was extended to all of the principal officers … between 9 and 20 July I can offer no detail as to any conversations with PC Harratt other than to carry out my duties as his Federation friend. The reason for any contact would have been for welfare grounds or on the instructions of another.”

[23]On 2 January 2013, internal communications from Miriam Davies indicated that she was going to request further information from the Claimant, essentially asking him “to directly address the allegation that he discussed PC Harratt’s evidence with him. I don’t anticipate anything further for PC Jeffrey after that”. A letter from Ms Davies of 3 January indicates that Ms Davies at that stage had received responses from PC Harratt and PC Jeffrey and, based on those responses, she did not intend to interview them.

[24]However, on 25 January 2013, Ms Davies took a somewhat different line. Having reviewed the evidence to date, including work emails between the relevant officers, she took the decision to make RIPA requests for personal communications data relating to Harratt over the relevant period. Her reasons were recorded in note form as follows:

“Proportionate in relation to serious offences of perjury and pervert the course of justice. Review of evidence. Question raised by only looking at work emails – why not examine personal communications. It is most likely that if any conferring/conspiracy took place it would have been over personal coms such as mobile phone.”

[25]On 20 February 2013, Ms Davies noted that she intended to submit RIPA requests for subscriber checks on communications in relation to PS White and the Claimant. Her reasons were as follows:

“The results from RIPA request for PC Harratt has shown contact between both White and Jeffrey between 9 and 20 July 2012. This contact is significant given they all denied contacting each other (other than once) between these dates [emphasis added].The timings of some calls relate directly to key events at inquest (PS White’s challenge in court) and point to communications about the evidence. The level of suspicion is raised as officers have lied under oath.”

[26]On 25 February 2013, there was a Critical Investigation Meeting, attended amongst others by Miriam Davies and by Sinead McKenna, a senior lawyer with the Defendant. The important points in the reasoning to proceed to arrest and search of the officers’ homes were set out in a series of bullet points as follows:

“Next Steps/Actions • All agreed that the planning should start for the arrest • SM to provide a formal legal advice on the proposed arrests • MD/IT to advise the Commissioner once the legal advice is available • Gaon Hart’s advice to be attached to the formal advice • MD/IT to draw up the arrest plan • MD to advise DPS of the strategy once the plan is available • MD to advise CPS of the action being taken and ask for advice re questions • MD to ask DPS for their assistance with getting the officers on to the same shift so that they can be arrested simultaneously • DPS also to be asked for assistance with transport and Police station availability for interviews etc • Authorisation will be required for a search following arrest – DPS will be able to assist Action MD • MD to ensure that once officers are arrested they are served with a Reg 14 notice for lying to the IPCC i.e. honesty and integrity • A further RIPA search to take place on the telephones to monitor more recent calls for contact activity • All agreed that a review of the investigation should take place prior to the arrest MG to arrange • RB to set up further CIM w/c 18th March with a view to arrests taking place w/c 25th March” • All agreed that the planning should start for the arrest • SM to provide a formal legal advice on the proposed arrests • MD/IT to advise the Commissioner once the legal advice is available • Gaon Hart’s advice to be attached to the formal advice • MD/IT to draw up the arrest plan • MD to advise DPS of the strategy once the plan is available • MD to advise CPS of the action being taken and ask for advice re questions • MD to ask DPS for their assistance with getting the officers on to the same shift so that they can be arrested simultaneously • DPS also to be asked for assistance with transport and Police station availability for interviews etc • Authorisation will be required for a search following arrest – DPS will be able to assist Action MD • MD to ensure that once officers are arrested they are served with a Reg 14 notice for lying to the IPCC i.e. honesty and integrity • A further RIPA search to take place on the telephones to monitor more recent calls for contact activity • All agreed that a review of the investigation should take place prior to the arrest MG to arrange • RB to set up further CIM w/c 18th March with a view to arrests taking place w/c 25th March”

[27]Five days later, on 25 February, Ms Davies recorded her decision that PC Harratt would be arrested on suspicion of perjury, perverting the course of justice and contempt of court. This was based on the findings of the RIPA investigation into PC Harratt’s phone. Ms Davies records the following:

“This evidence indicates that PC Harratt had contact with PS White (previously denied) and extensive contact with John Jeffrey (only one instance submitted). This shows him to have misled the IPCC investigation in interview on 7, 17, 10, 13 … it is necessary to arrest simultaneously with White and Jeffrey to prevent one another “tipping off” and allow disposal of mobile phones. There is also a need to interview simultaneously to prevent collusion.”

[28]On the same day, a policy decision was taken to arrest the Claimant. The reason recorded is:

“as per policies [in relation to the arrests of Harratt and White] in addition, the phone data for PC Jeffrey shows an attempted phone call to PC Harratt, just after PS White had given his evidence and been called a liar. The timing of this call specifically raised suspicion against PC Jeffrey.”

[29]The decisions were also taken to search the Claimant’s premises, and a little later, to carry out credit checks and further personal investigations on the Claimant, including cell site and call data evidence.

[30]The Defendant’s investigator learned on 12 March 2013 that the Claimant had retired from the police on 14 February, which would mean that he would have relinquished his work mobile phone.

[31]On 27 March, the Claimant’s home was searched by officers acting on behalf of the Defendant, some IPCC staff and some Metropolitan Police officers. The search began at around 6:20am. The Claimant was not at home at the time, but was at work elsewhere in his new employment. The Claimant’s wife and 12 year old son were both at home and still asleep in bed. It appears that between five and nine officers attended the search, which was videoed. In the course of the search, it is suggested by the Claimant that one officer assaulted his wife by pushing past her. His wife was a Crown Prosecution Service lawyer. In the course of the search, professional diaries belonging to her were seized and retained. The Claimant’s wife objected to this at the time, representing that the diaries belonged to her and not to her husband, and that they contained legally privileged material. The material removed was extensive, allegedly including billings and financial records from many years before, diaries from before the time PC Harratt joined the police force, and a Kindle belonging to the Claimant’s son.

[32]The Claimant was contacted by telephone in the course of the search. He agreed to attend at Belgravia police station later that day. He did so attend voluntarily, but was arrested in any event at 3:12pm. He was then detained at the police station for approximately five hours, in the course of which he was interviewed. The decision that the Claimant should be arrested despite his voluntary attendance was made by Ms Davies. The grounds were recorded as being:

“Intent (i) to obtain evidence by questioning, (ii) prevent contact with other officers, (iii) to ensure interview strategy to conduct back to back interviews with the option of re-interviewing if disclosures are made … (iv) to enable bail conditions to be imposed following interview and on release. ”

[33]The detention was authorised at 3:12pm, according to the custody record, on the basis that there had been “numerous telephone conversations” with the other two relevant officers.

[34]The records obtained by the Defendant demonstrated that between the relevant dates of 9 and 20 July 2012 there were 37 texts or telephone calls between the Claimant’s mobile number and that of PC Harratt, and 68 texts or telephone calls between the Claimant’s telephone and that of PS White. The records also showed that the Claimant had telephoned Harratt at 13:45 on 10 July, just after leading counsel had begun the challenge to PS White in the course of the inquest. It is significant that the telephone evidence also revealed that there was direct contact between Harratt and White, and between Harratt and another officer in the inquest, PC Forward. In other words, the telephone evidence did not show that the Claimant was the only possible conduit of information.

[35]It is also relevant to note that there was reporting in the press and on social media of the challenge to Mr White’s evidence on 10 July.

[36]In the course of his interview the Claimant gave extremely full answers to a range of questions. He described the breadth and responsibility of his role. He stated early in the interview that he would “obviously” not discuss an officer’s evidence in an inquest. He did make clear that he was concerned as to the legal representation of this group of officers in the course of the inquest. The Claimant confirmed that he was present when PS White was giving his evidence and when the issue of the CCTV was raised by counsel before and after the lunch break on 10 July. He was then asked specifically if he had discussed PS White’s evidence with any other police officer and he confirmed that he had not. He also confirmed to the IPCC investigators that the evidence of PS White had been reported in the media, both in “Google” and the Independent newspaper.

[37]The Claimant was asked specifically about the frequent contact with the two officers, Harratt and White, between 9 and 20 July. In relation to PC Harratt, he was asked if the 35 contacts represented an unusual level of communication, and he said not, “because of my concern for him and because of the condition he found himself in, who else could he turn to?” In relation to PS White, the 68 contacts were put to him and the Claimant’s answer was as follows:

“Yeah I think there would be more there, because he is … I think at the time we’re talking about, he would have been more high maintenance. You know I’d been asked specifically as I said before, to bring him into the police station to discuss him. He was frightened, he thought his world was ending because he made this mistake. He couldn’t understand how he believed he’d done what he said he did, you know he thought he … you know, he’d say to me, (inaudible) I’m in trouble what can I do, I haven’t done anything wrong, you know (inaudible) he was a frightened person, (inaudible) tried to calm him down.”

[38]The investigators had analysed the contacts between the three officers and put them to the Claimant as follows:

“Carey: Yeah. It doesn’t quite add up to 35 but I’ll explain that in a second. In relation to Sergeant WHITE, 68 contacts. Sergeant WHITE sent John 22 texts. John sent Sergeant WHITE 16 texts. Sergeant WHITE called John 5 times and John called Sergeant WHITE 21 times. Just on that point John, you said that Sergeant WHITE is high maintenance, but you’ve actually contacted him 21 times. Jeffrey: Yeah because I’m worried about him.”

Jeffrey: Yeah because I’m worried about him.”

[39]As these short extracts may demonstrate, the Claimant gave very full answers to the questions asked of him. It would not be unfair to describe him as voluble in his replies.

[40]The Claimant was bailed. He was made the subject of bail conditions on the basis that “we have evidence to show that [the officers] have communicated with one another during the inquest – even though this was denied in interview with the IPCC”. As will by now be obvious, one of the important criticisms made by the Claimant is that he never made any such denial: rather the opposite. In that, he is correct.

[41]On 15 April 2013 there was an entry recording a request for the Claimant’s work telephone to be obtained. Entries in May 2013 confirm that there was ongoing forensic analysis of the computers seized from the Claimant’s home. On 31 May 2013, the Claimant was interviewed again. No further basis was given for this interview, or formed the platform for questions, beyond the telephone contact which had already been analysed in the first interview. On 29 August 2013, the Claimant’s bail date was extended once more to 11 November on the basis that the CPS required further time to consider prosecution. On 10 November, the Claimant was told that his bail had been cancelled as a result of an IPCC request, pending a decision on prosecution by the CPS. On 9 December 2013, the Claimant received a letter from the Defendant informing him that the IPCC final report was “currently being prepared for the Commissioner to consider whether a formal referral to the CPS is necessary. It is hoped to be completed by January 2014”.

[42]Whilst matters had been proceeding as above, an independent review was conducted into the Rigg investigation by the IPCC, carried out by Dr Sylvia Casale at the request of the IPCC chair, between November 2012 and April 2013. It is not necessary to repeat the conclusions here.

[43]By the early part of 2014, the Claimant was becoming extremely anxious at the delay in resolving his position. On 7 March 2014, he emailed an IPCC investigator, called Ian Tolan, asking him to explain what had made him a “criminal suspect”. He went on as follows:

“Mr Tolan, you mention frustration. This matter has rumbled on for 19 months. I was arrested a year ago, the last interviews were 10 months ago. What on earth is the delay? I believe that you know what the outcome of this debacle is yet, you and your organisation are unwilling to reveal it to me for your own reasons rather than for the good of those involved. I will remind you that I have human rights, I have the right to live my life without interference. I have waited for months on Mr Carey’s ever changing reports and I now expect to be given a reasonable timescale for when Carey will have completed his duty. I will not accept, “at some time in the future”

. I do not accept that you are doing anything in a timely manner.”

[44]On 16 March, the Claimant lodged a formal complaint with the IPCC. He listed twenty-two separate heads of complaint. They were somewhat diffuse, prolix and repetitive. His counsel has stated in her written submissions the most important can properly be summarised under the following heads: i) There was no reasonable basis for his arrest, or detention; ii) There was an unlawful search of his house, an unlawful interference with, seizure of and/or retention of privileged documents clearly irrelevant to the IPCC enquiry; iii) Assault on the Claimant’s wife; iv) Delay in completing the investigation and communicating the outcome.

[45]The details of the complaints are addressed below. As will be seen, I consider the significant matters can be characterised a little differently.

[46]The IPCC were aware of the Claimant’s discontent and of his distress. Internal email traffic of 27 March 2014 reads:

“I feel I just need to raise the fact that Mr Jeffrey has been calling the FOI team (you know he has been constantly calling the investigations team as well as email them and appears to be threatening to harm himself). I have spoken to Bilal about the calls and he said that in his experience of working at the NHS with distressed people, he is concerned about Mr Jeffrey’s welfare. I appreciate it may not be for us to address this, but do feel the need to make you aware in case there is something we can do to manage this.”

[47]On the following day, 28 March 2014, the Claimant was informed via email by the Commissioner of the IPCC that her final report made no findings against him relating to his conduct during the inquest and that there was no indication that any criminal offences had been committed. That decision was subsequently confirmed.

[48]At the end of March 2014 the IPCC report into the Rigg affair was published. The report notes that the Claimant answered all questions that were put to him, that his contact with the officers in question appeared to show that he was providing support and advice to PC Harratt, and that there was no evidence indicating that the Claimant had breached the standards of professional behaviour. The Report went on to suggest that there were “issues” around the role of the Federation which required to be addressed.

[49]On 7 October 2014, the CPS published its decision that it would not be bringing charges against either PS White or PC Harratt. In this charging decision, the CPS referred to the fact that PC Harratt “had read about the evidence of another witness on social media”. The document also sets out the fact that call data established that there was direct contact between White and Harratt, but this was concluded to be “insufficient evidence to prove collusion or [to prove] that they discussed the matter at issue in this case”.

[50]There was a subsequent change of mind, for reasons which are not relevant to this judgment, in respect of PS White. As indicated above, he was prosecuted. Following an extensive period of criminal litigation, he was acquitted in November 2016.

Investigation of the Claimant’s Complaint

[51]Following the Claimant’s complaint on 16 March 2014, it was addressed in internal email traffic by the Defendant’s Internal Investigations Officer, Ayaz Hassan. On the morning of 17 March he spoke to the IPCC “Head of Quality”, Paul Davies. In his first witness statement, undated and unsigned, Paul Davies explains that he was responsible for managing the Internal Investigations Unit. Mr Hassan then sent an email which reads in part:

“My opinion is that we take a robust approach and state that we are not recording Mr Jeffrey’s complaint and forward it to the Rigg investigation team so they can respond to the issues Mr Jeffrey raises. I have already spoken to Paul about this. However, I would welcome your view Moir/Colin.”

It appears that Moir Stuart and Colin Dewar were also involved in the Rigg investigation.

[52]On 17 March, Paul Davies replied:

“The best way to deal with this may well be to record as non-serious, advise Mr Jeffrey the IIU cannot deal with his complaint against the police officers he has mentioned and Alan can deal with the remaining issue. I can see … that the arrest and search was given careful consideration and legal advice obtained. His subsequent detention by the police is also not a matter we can assist with.”

Alan Carey was a lead investigator handling the original investigation of the Claimant. Miriam Davies was the most active investigator, certainly in the earlier stages. One of the key complaints by the Claimant is it was inappropriate to ask one of the principal individuals complained about for his tactical views as to how the complaint should be progressed. A further complaint is that the internal email traffic discloses no reasonable basis for treating the matter as “non-serious”.

[53]On the morning of 18 March, Alan Carey emailed others within the organisation, including Miriam Davies and Ian Tolan, in the following terms:

“Ian/Miriam In relation to the previous indication Mr Jeffrey has made a criminal allegation against me, the attached has been sent from IIU. It would appear that, in addition to myself, Mr Jeffrey wishes to complain about a number of people working for the IPCC, and MPS, who were connected with this investigation. I have spoken to Paul Davies in IIU and he is going to record the letter as a complaint and prepare a response to Mr Jeffrey. Paul is of the view that much of the complaint is procedural and will reply as such. He is also going to send a copy of the complaint to everyone mentioned in the attached so they are aware. We have agreed that I will work with Ayaz [Hassan] to provide any information that is requested…”

[54]In a further email of 19 March 2014, 14:20, Alan Carey, writing to Mr Tolan, recorded further discussions about the approach to the complaint in the following terms:

“I had a very useful discussion with Paul Davies yesterday who is taking a pragmatic approach towards the complaint. I will speak to you more in depth when you get back to work but I think there may be a couple of useful learning points for reference, although I hope this can be avoided in the future. Paul is starting from the position of why has it taken him so long to complain and, if he had complained a couple of weeks later, it would have been time expired from the date of his arrest. IIU are going to record the complaint as “non serious” (IIU terminology for it not being serious). I do not believe IIU are going to record any complaint against Moir and related personnel who were part of the decision making process. Similarly, any complaints against the MPS will not be recorded as it not our business. I expressed concern to Paul about the last sentence of the complaint, which indicates it is just a summary and wanting an opportunity to make further complaints. I made Paul aware of the emails you have received and the implications of being drip fed and further complaints being made if he does not like the answers he receives. I also suggested that, from my previous employment, such a complaint would be acknowledged and sent back requesting him to outline what he is specifically complaining about so that his complaint could be considered and looked into. Not sure if this has influenced IIU but I spoke with Ayaz earlier and he is drafting a letter along these lines to be sent back to ask what his full complaint is. Once a reply has been received I will work with Ayaz to provide him with any details I can. This is where I may need some assistance but let’s see where we go first. In relation to the complaint against me, Paul does not consider it to be a criminal allegation, but procedural like the rest of the complaint.”

[55]On 21 March, Mr Hassan sent what was clearly a draft letter intended as the response to the Claimant, for comment to both Paul Davies and Alan Carey. Subject to some typographical errors, Mr Carey expressed his contentment with the draft later that day.

[56]In considering these exchanges, it must be recalled that the Claimant had not yet been told that no action was to be taken against him. As far as he knew, he was still the subject of a live (if prolonged) IPCC investigation which might lead to criminal charges against him.

[57]In his statement Paul Davies states that he was made aware of the complaint of the Claimant on 17 March and discussed the matter over the following days. Mr Davies states that it was his decision that the complaint was to be recorded as “non serious”. According to the statement, Mr Davies was the author of the draft letter to be sent to the Claimant, rather than Ayaz Hassan. Mr Hassan says he was the author, although he discussed the matter “in detail” with Mr Davies.

[58]The letter went out dated 27 March 2014. The letter informed the Claimant that the writer was conducting the enquiry into the complaint as a member of the Internal Investigation Unit, on the basis that that Unit:

“is responsible for dealing with complaints where it appears IPCC staff may have breached the staff code of conduct”

. It was the categorisation of the complaint as a non-serious complaint which permitted the matter to be handled in this way at all. As we shall see, a “non-serious” complaint, within the terms of the scheme, is one where a substantiated complaint is not likely to lead to dismissal of a staff member. This letter will have been received by the Claimant within the ensuing day or two. It will be recalled that 28 March was the day on which the Claimant was informed by email that there was a recommendation there should be no criminal proceedings against him, that decision partly being influenced by concern as to his distress and mental welfare.

[59]On the morning of 28 March, a senior IPCC staff member, Mr Joseph Penrose, sent an important email to Moir Stuart. It is worth quoting the content in its entirety:

“Moir, I have seen Mary’s email to Mr Jeffrey (not ‘Jeffreys’ as used) and wanted to point out that the impression created is misleading. The commissioner informs him she has ‘today’ received the final report and that she will take a decision with regards to him within 24 hours – she then goes on to tell him there is no case to answer, in essence. That itself defeats the object of this regrettable exercise; which was to take a formal decision on his case once the case against the other two was also considered … Have to say I am dismayed by our handling of his case, which clearly has resulted in a decline in his wellbeing. The final report has been completed for several months and was QA’d by me around the end of 2013, I found very little wrong with it. Mary and Noranne had views on the conclusions which led to the subsequent delays whilst these were fine tuned – repeatedly. Throughout that time Mr Jeffrey has been becoming increasingly agitated because of a lack of decision on his culpability, and this led to a series of complaints by him against staff, and the commissioner. Much of this could have been avoided, since it has been abundantly clear since the summer of 2013 that we had absolutely no evidence that Mr Jeffrey conspired with the other two officers at the inquest. We were in a position to confirm that when I QA’d the final report. I feel it is unacceptable that we have left him ‘in limbo’ for so long and that our handling of these issues risks reputational damage. I am happy for you to share my observations with others. Joe”

Joe”

[60]On 2 April 2014, Mr Hassan received a letter from the Claimant who informed him that he had made a parallel complaint against police officers who had assisted in his arrest, detention and the search of his home to the Professional Standards Department of the Metropolitan Police. The Claimant also rejected the letter of response from Mr Hassan. In particular, the Claimant objected to the suggestion in the letter that Ms Mercer would have to make an individual complaint to the IPCC before matters concerning her could be investigated.

[61]On 10 April, Mr Hassan states he was contacted by a police officer (Maria Kavanagh) who had been assigned to investigate the Claimant’s complaint against the Metropolitan Police officers. Mr Hassan and Ms Kavanagh agreed to meet and fixed a date on 8 May, Mr Hassan says by reference to Ms Kavanagh’s availability.

[62]There was further email traffic through the second half of April. The Claimant wished to meet Mr Hassan before he would provide full details which he said would substantiate his allegations. In fact that did not take place until 5 June. In the meantime there were further exchanges by email, in the course of which the Claimant pressed the IPCC to deal with his wife’s complaint as formulated and submitted by him. Mr Hassan declined.

[63]On 2 May, the IIU of the IPCC received a formal complaint from Mr Jeffrey’s wife, Ms Mercer. In response Mr Hassan took the point that she was complaining about an incident which had occurred on 27 March 2013, that is to say more than 12 months earlier. Under the relevant rules (the Independent Police Complaints Commission (Staff Conduct) Regulations 2004 [“the 2004 Regulations”] made pursuant to Section 27 of the Police Reform Act 2002) there is a 12 months limitation period for complaints. Mr Hassan decided to “dispense with Ms Mercer’s complaint” on the basis of time. She was informed of that by email on 13 May. She responded with a strong protest to Mr Hassan, but the matter was not taken further.

[64]Mr Hassan and the Claimant discussed his complaints on 5 June. The Claimant pressed Mr Hassan as to why his complaint had been classified as “non-serious”. Mr Hassan states that he repeated the explanation given in the letter of 27 March. The Claimant did not at that stage provide Mr Hassan with any witness statements. He named a witness (Chief Inspector Wright) as implicating Alan Carey in making an inappropriate remark about Mr Jeffrey. According to Mr Hassan, Chief Inspector Wright subsequently did not substantiate the allegation.

[65]Following the meeting with the Claimant, Mr Hassan concluded that the issues that the Claimant had raised warranted an investigation and response. He remained of the view that not all of the allegations made by the Claimant were conduct matters. According to his witness statement, he reviewed his decision “to classify Mr Jeffrey’s complaint as ‘non-serious’” but applying the criterion of potential staff dismissal, concluded the categorisation was appropriate. He discussed this approach with Mr Davies, who was in agreement. Mr Hassan was confirmed as the investigating officer for the case.

[66]In his witness statement, Mr Hassan described his approach to complaints numbered 2 to 5 from the Claimant, concerning the search of the Claimant’s house. He reviewed the application for the relevant warrants, “reviewed and analysed” the search warrant for the Claimant’s property and considered the risk assessment carried out prior to the search. He requested accounts from the Metropolitan Police officers who assisted in the operation and obtained accounts of events from the IPCC investigators who were present.

[67]As to the question of privileged information, Mr Hassan deals with that matter in his witness statement as follows:

“31. It has been brought to my attention that IPCC investigators did seize CPS diaries from Mr Jeffrey’s house. I did not draw this conclusion in my investigation as the property list I considered did not include reference to any diaries. However, more generally, an IPCC investigator did inform me that care was taken in identifying any legally privileged information, and that Ms Mercer was consulted about this. 32. Mr Jeffrey’s complaints numbered 6-8 related to Mr Jeffrey’s wife being pushed, his son being interviewed by a police officer and IPCC investigators seizing legally privileged information. In order to address this complaint, I considered the following documents: • The search warrant authorising the search of Mr Jeffrey’s property. • Return of IPCC property receipt to Mr Jeffrey. • Accounts from IPCC investigators who executed the search warrant at Mr Jeffrey’s house.” • The search warrant authorising the search of Mr Jeffrey’s property. • Return of IPCC property receipt to Mr Jeffrey. • Accounts from IPCC investigators who executed the search warrant at Mr Jeffrey’s house.”

[68]Mr Hassan goes on to emphasise that, although the complaints on these matters had been “dispensed” by him, he still sought to address the substance of the complaints.

[69]Complaints number 9 and 10 related to details of documentation which were reviewed by Mr Hassan. Complaint 11 related to a conversation between Mr Jeffrey and an IPCC investigator named Shaun Coleman. When spoken to by Mr Hassan, Mr Coleman rejected the Claimant’s account of the conversation.

[70]Of rather more importance was the Claimant’s complaint number 12 relating to the reason for the Claimant’s arrest by the IPCC. Mr Hassan reviewed the legal advice provided to the IPCC lead investigator. He also considered the notes made by Mr Coleman as to the arrest and the arrest statement. He looked at the custody record from the police station.

[71]Complaint number 17 and complaint number 18 related to the two successive interviews on 27 March and 31 May. In each case Mr Hassan says he sought to establish whether the investigators had behaved “in an unreasonable manner” to the Claimant.

[72]Complaint 20 was directed to the behaviour of Alan Carey. The Claimant’s suggestion was that Mr Carey had made a remark to serving police officers at Kentish Town that the Claimant had tipped off PC Harratt that their homes were about to be raided on 27 March. Mr Hassan spoke to Mr Carey but also obtained a witness statement from Chief Inspector Wright refuting the allegation.

[73]Perhaps one of the most substantial complaints made by the Claimant was the delay in investigating his position, a complaint which finds a strong echo in the email from Joseph Penrose set out above. Mr Hassan does not address this directly in the course of his witness statement. As we shall see, he categorised this complaint as being a complaint against the Commissioner, rather than the Commission, and thus as falling outside his remit.

[74]At paragraph 41 of his statement, Mr Hassan makes it clear that having “collated and reviewed the evidence outlined” he concluded that it was unnecessary to conduct misconduct interviews with any IPCC staff member.

The IPCC Complaint Report

[75]The report upheld none of the Claimant’s significant complaints. It was served on him on 16 March 2015, a year after his complaints had been lodged.

[76]The report rejected the ambit of the Claimant’s complaint against all of the staff involved in the Rigg inquiry. The reason was the fact that the initial Rigg investigation had been the subject of the review by Dr Casale in 2012/2013.

[77]The report rejected complaint 2 concerning the obtaining of the warrant for the search of the premises. The information presented by the IPCC to the MPS to obtain the warrant was not misleading in any way. There was no evidence that IPCC staff members were inappropriate in their behaviour during the search, nor had they seen such behaviour by police officers.

[78]Complaint 3 concerned the removal of legally privileged material. This was not upheld. IPCC staff members had asked to be told if any material was privileged. There was no evidence they (as opposed to police officers) had removed such material.

[79]Complaint 4 also addressed the obtaining of the warrant, and was not upheld on the same basis as Complaint 2.

[80]Complaint 5 again addressed the search and was not upheld on essentially the same basis as Complaints 2 and 3.

[81]Complaints 6, 7, 8 and 9 related to behaviour in respect of the Claimant’s wife and son. IPCC staff denied pushing Ms Mercer, or seeing such behaviour by MPS officers. There had been an intention to arrest the Claimant at his home. When it was discovered he was not present, the search of the premises proceeded. The complaint of a misleading description of the warrant for arrest was groundless and was not upheld. The Claimant’s wife had been aware during the search that there was a search warrant. There was no evidence that entry had been obtained by any lie or subterfuge. No IPCC staff member witnessed any police officer interviewing the Claimant’s son in bed. As in relation to Complaint 3, there was no removal of privileged material by IPCC staff members or by others to their knowledge. There was no evidence, specifically, that IPCC staff seized CPS diaries.

[82]Complaint 10 related to whether Investigator Harrison recorded the time at which the search finished. Rather than on the relevant form, this was recorded on the back of a statement. This complaint was upheld. The reason was that at the time the IPCC did not have suitable forms of their own. This organisational issue had been addressed.

[83]Complaint 11 was a suggestion that IPCC investigator Coleman was rude and aggressive on the telephone on 27 March. This was denied. In the absence of independent evidence the matter was not upheld.

[84]Complaint 12 related to the Claimant’s arrest. It was not upheld. The reasons were as follows:

“… the decision to arrest Mr Jeffrey was taken after the lead investigator obtained detailed legal advice… it was decided to arrest Mr Jeffrey and two other Metropolitan Officers simultaneously. I have fully reviewed the legal advice provided to the lead investigator and I consider that on the basis of the advice given Mr Jeffrey’s arrest was lawful, proportionate and appropriate.”

[85]Complaint 13 was that Investigator Coleman had not made any arrest notes, and that the Claimant should not have been arrested or detained. Complaint 14 was that if the original investigation had been properly conducted, “none of us would have found ourselves in this position”. These were not upheld. IPCC investigations were not required to make notes in pocket books. Matters had been properly recorded in statement form. Complaint 14 added nothing.

[86]Complaint 15 addressed the detention following arrest. The report declined to uphold this complaint. There was no evidence that the custody sergeant had been misled by Investigator Coleman. Complaint 16 was consequential: the Claimant was humiliated by detention. Similarly this was not upheld. The IPCC investigation could not review the actions of police officers.

[87]Complaint 17 addressed the conduct of the Claimant’s interview on 27 March. There was no basis to substantiate complaints about the conduct of the interview. No concerns had been raised by the Claimant at the time, although he himself was an experienced police officer.

[88]Complaint 18 concerned the conduct of the second interview on 31 May 2013, conducted by Investigator Carey. This too was not upheld. There was no evidence to show there was unprofessional behaviour.

[89]Complaint 19 concerned delay. The complaint was framed widely, recounting the relevant dates and concluding in these terms:

“It has not been explained to me why it is now one year since I was arrested. This cannot be acceptable. The delay in this case is due to the incompetence of the investigators and commissioners. I want this complaint to include any commissioners involved in any Rigg enquiry.”

[90]The response to Complaint 19 stated that the IIU could not address any complaint against commissioners, adding some detail, including the fact that the Claimant had been made aware of the fact by Mr Hassan in May 2014. However, the report nowhere addressed the allegations against investigators or the substantive allegation of delay. Uniquely, this complaint was neither “upheld” nor “not upheld”.

[91]As indicated above, Complaint 20 concerned an alleged inappropriate remark in Kentish Town Police Station. This allegation was not supported by Chief Inspector Wright and was not upheld.

[92]Complaint 21 was directed to named IPCC staff, in particular Miriam Davies, Ian Tolan, Moir Stewart, Tamsin Dakoutous and Sinead McKenna:

“The group made the decision to regard me as a criminal suspect. That decision was perverse and possibly corrupt in its reasoning. They clearly began an action without foundation, most likely for personal or political gain.”

No further detail was suggested as to the “corrupt” basis for the decision or the potential “personal or political gains” said to be involved. Unsurprisingly, this complaint was not upheld, on the basis it was without foundation.

[93]Complaint 22 suggested in a general way that the IPCC had failed in its duty and “in their published values”. The complaint also suggested that the email containing the 22 complaints was “a summary” and the Claimant wanted the opportunity to “expand on it”. This complaint was not upheld. The law

[94]Both sides have approached the matter on the basis that the challenge to the IPCC investigation of the Claimant’s complaints must be based on the Wednesbury test (Associated Provincial Picture Houses Ltd v Wednesbury Corp

[1948] 1 KB 223

). I accept this approach. The test for the lawfulness of an arrest is laid down in Richardson v Chief Constable of the West Midlands Police

[2011] EWHC 773 (QB)

and developed in Lord Hanningfield v Chief Constable of the Essex Police

[2013] EWHC 243 (QB)

. Essentially, a lawful arrest must be based on a reasonable belief that there is a necessity to arrest the person concerned, and in order to establish a necessity, reasonable and practical alternatives must have been considered.

Should the Complaints have been handled by the IIU?

[95]It is not in dispute that Mr Jeffrey’s complaints were recordable complaints for the purposes of the 2004 Regulations. The relevant Regulations are Regulations 3, 4 and 5:

“3. Action to be taken in relation to a recordable complaint (1) Where the Commission receives a complaint to which regulation 2(3) applies, it shall – (a) cause a record to be made of the complaint; (b) determine whether the complaint is a serious complaint; and (c) notify the complainant and the person complained about of the recording of the complaint and that determination. … (3) For the purposes of paragraph (1)(b), a complaint is a serious complaint if it would, if proved, be likely to result in the person involved being dismissed or required to resign. 4. Complaints other than serious complaints (1) Subject to regulation 5(1), if the Commission determines that a complaint is not a serious complaint, it shall deal with it in accordance with its internal procedures. (2) For the avoidance of doubt, action taken under paragraph (1) can include the dismissal of any person or a requirement to resign. 5. Serious complaints (1) If the Commission determines that a complaint is a serious complaint, or if it determines that a complaint is not a serious complaint but it concerns the conduct of the Commission’s chief executive, it shall appoint a person (who may be a member of the Commission’s staff) to investigate the complaint. (2) The Commission may suspend any member of staff against whom a serious complaint has been made if it is of the opinion that it is necessary to do so – (a) for the efficient carrying out of the Commission’s functions, or (b) in the public interest. (3) A person appointed under paragraph (1) shall make a written report of the findings of the investigation and send it to the Commission. (4) The Commission shall determine whether to take any disciplinary or other action as a result of those findings and, if so, to proceed with such action to a proper conclusion. (5) Unless the Commission is of the opinion that it would be contrary to the public interest, the complainant shall be notified of the progress and findings of the investigation and of any disciplinary action taken as a result of those findings.”

[96]A critical provision is Regulation 3(3), specifying that a complaint should be treated as “serious” if the matter, once proved, “would be likely to result in the person involved being dismissed or required to resign”.

[97]That trigger must be construed with the IPCC’s disciplinary and dismissal procedure in mind, which procedure sets out relevant definitions of misconduct, gross misconduct and their consequences. In the case of misconduct, sanctions available include a written warning, a final written warning or “dismissal with notice (repeated offences following first written warning)”: paragraph 3.5.1. In the case of gross misconduct, the sanctions available are dismissal without notice (summary dismissal) or a final written warning: paragraph 3.5.2. Paragraph 7 of the Disciplinary Rules gives examples of misconduct and of gross misconduct. Each list is a set of examples but expressly not exhaustive. There is no general definition under paragraph 7.1 of misconduct. The list includes some significant failures, including negligence at work leading to injury or loss (7.1(d)); refusal to obey a reasonable and lawful instruction (7.1(e)); acts of discrimination or harassment; “inadequate work performance due to neglect or wilful failure to perform” (7.1(g)); failure to discharge obligations in accordance with statute or contract of employment (7.1(k)).

[98]Gross misconduct under paragraph 7.2 carries a general definition:

“Gross misconduct is of such a serious a fundamental nature that it breaches the contractual relationship between the employee and the IPCC.”

Examples given are: theft (7.2(a)); stealing (7.2(b)); physical violence or threatening or abusive behaviour (7.2(c)); “serious wilful refusal or negligence in carrying out the duties of the post” (7.2(e)); “bringing the IPCC into disrepute through conduct at work or outside work” (7.2(k)); “serious negligence in the performance of … duties, leading to unacceptable loss, damage or injury” (7.2(m)); improper use of an official position for private gain (7.2(p)).

[99]It is a significant feature of the Staff Complaints Procedure that a categorisation of a complaint as “non-serious” is not irrevocable. The relevant passage in the procedure makes that explicit:

“Procedure – non-serious complaint If a complaint is received and after determination by the internal investigations unit at IIU it is considered not to be a serious complaint then the following procedure will apply: … (d) if a matter is subsequently found to be a serious complaint, the person making the complaint will be informed that the above procedure for dealing with serious complaints applies.”

[100]The Claimant argues that there is a strong and significant similarity between the IPCC’s complaints system and the disciplinary system affecting the police. This similarity of content is said to be underlined by the distinction in the police system between misconduct and gross misconduct, the latter being defined under the Police (Conduct) Regulations 2012 as meaning “a breach of the standards of professional behaviour so serious that dismissal would be justified”. The Claimant thus argues, by way of analogy, that if a police officer was accused of matters such as assault, unlawful arrest, obtaining a search warrant or “intrusive intelligence on false information and/or wrongful detention” it would be categorised as gross misconduct. It is said that no reasonable distinction falls to be drawn between a police officer in a criminal investigation and the Defendant’s conduct in an IPCC led investigation.

[101]On this ground, the Claimant relies upon the suggested contradiction between the unsigned statement of Paul Davies, that he made the decision as to categorisation, and the statement from Ayaz Hassan of 7 December 2015 in which he stated that “I had classed his complaint as non-serious”.

[102]I address the latter point first. There is at least some degree of tension between the two statements. It seems to me that the proper inference is that the matter of categorisation was discussed between Mr Davies and Mr Hassan, and no doubt Mr Davies was critically influential on the decision on categorisation and recommended it to Mr Hassan. The statement from Mr Hassan taking responsibility for the decision is not however necessarily inaccurate. He was the officer with responsibility. It is not in the end illegitimate or misleading for him to say that he had taken the decision. Had he been in disagreement, he would no doubt have been in a position to say so, both internally and/or in his witness statement. In the end, this is an adjectival point.

[103]I do not conclude that the decision to treat the complaint as non-serious was unreasonable, and thus unlawful. The Claimant’s complaints had to be taken in total. As will already be clear, they were widely expressed, ranged from potentially significant matters to quite trivial points, were expressed in quite prolix language and were not even said to be in final form. That context colours the judgement to be exercised. I accept the Claimant’s argument that some of these matters were, if proved, potentially serious. However, in the end the test is not whether some part of the complaint might lead to a resignation or dismissal but whether, if proved, the complaint was “likely to” lead to those consequences. Those responsible had to make a judgement call. It is indeed important, in my judgment, that this decision was not irrevocable. In my view, whilst another IPCC representative might reasonably have taken the contrary view, it was not unreasonable to conclude that these complaints, if proved, would not be likely to lead to any dismissal or resignation.

[104]I add this: it would be wise if future decisions on categorisation such as this were formally recorded, alongside a statement of the reasons for such a decision, that is to say an explanation as to why no dismissal or resignation is likely.

[105]The Second Ground reads:

“The IPCC failed to carry out a fair and reasonable investigation to the complaints such that no adequate review has occurred.”

[106]This Ground is particularised quite extensively in both written and oral submissions. I do not intend to repeat all that was said on behalf of the Claimant. The submissions were extremely full and overlapping. However, it seems to me that some of the criticisms can be identified as central and significant.

[107]The first important point can be framed as follows: there was an undue informality and undue close consultation and discussion between those in the IIU responsible for the investigation and those IPCC staff against whom the complaint had been lodged.

[108]In my judgment, there was indeed an over-close and inappropriate relationship between the conduct of the investigation by Mr Hassan and those who were being investigated. Even assuming that the matters complained of were properly categorised as “non-serious”, they did contain significant matters. The obligation under the procedures to be open and transparent in dealing with complaints and to “treat each complaint with all due seriousness” should have meant a degree of distance from those who were the subject of complaint. That should have precluded many of the communications I have set out earlier in this judgment. It was not appropriate to include those subject to the complaint in consideration of the approach to be taken or indeed the categorisation itself. I do not find that this approach was within the bounds of what was reasonable in the course of such an investigation.

[109]However, I am not in a position to reach any specific conclusion as to any difference in outcome caused by this informality. Was there a proper enquiry into the existence of an adequate basis for arrest and detention?

[110]It is obvious sense that the investigation had to review the critical material underpinning the legal advice and tactical decision to arrest and detain. The most important meeting was that on 25 February 2013. I have set out above the key pieces of information that were put forward at that meeting and which formed the basis of the advice from the lawyer, Ms McKenna. Perhaps the central point of fact was that quoted above:

“All agreed that as they have already been ignoring a direction from the coroner and the IPCC has evidence of them lying [as to contact between then] it is sensible for them to be arrested because there is clear evidence of their dishonesty throughout the investigation.”

[111]In my view the Claimant is right in his central criticisms of this thinking. The Coroner did not in fact prohibit contact between the four officers who were witnesses, although he did make arrangements that they should be kept apart during the evidence and did of course prohibit discussion of that evidence.

[112]However, this Claimant was not one of those officers and there was no direction in relation to him as to contact. The IPCC knew, and the IPCC at the time of the complaint investigation should have focused upon the fact, that the Claimant’s Federation Representative role meant he would inevitably be in contact with the officers whom he represented. Even more critically, there was no basis for saying that this Claimant had lied as to contact with the officers giving evidence. As I have made clear earlier in this judgment, the Claimant’s response to the initial questionnaire under Regulation 16 made it clear that he was “the officers’ only point of contact at court”, that he was at court throughout the time when the officers gave evidence, that he was “in regular contact” with PC Harratt, “always available to speak to him day or night if he had any issues”. This “friendship” was extended to “all the principal officers”. He could “offer no detail as to any conversations with PC Harratt” between 9 and 20 July but that contact would have been “for welfare grounds or on the instruction of another”. There was simply no basis for saying that this Claimant was someone who had “lied” about his contact. Had that document been properly held in mind at the time of the decision meeting in February 2013, the summary basis recorded for that critical investigation meeting could not have been written in the terms set down. The IPCC investigation does not appear to me to have come to grips with the Claimant’s Regulation 16 response.

[113]It may well be that the sheer frequency of contact between this Claimant on the one hand and Sergeant White and PC Harratt on the other, could reasonably have given rise to serious concern, and it seems to me would indeed have justified a fuller interview with the Claimant. However, that is a different question from whether the Claimant could be said to have lied about his contact. In short, it appears to me that the IIU investigation failed to get to grips with the basis for the decision on 25 February 2013. At the very least, this might have led to a different approach in respect of this Claimant, whether or not it did so in relation to PS White or PC Harratt.

[114]I also see no evidence that the investigation of the Claimant’s complaints focussed on whether those with conduct of the inquiry had a proper basis for thinking the arrest ‘necessary’, or indeed whether they considered the alternative of a voluntary interview, particularly once the Claimant set off to travel to the police station so as to speak to the IPCC. It appears to me that those investigating the Claimant’s complaints on this point were satisfied far too easily.

[115]It is important to stress that I am not in a position to make a finding that the arrest and detention was unlawful. I am concerned with the investigation of the complaint bearing on the point. I have not heard evidence from those who took the decision to arrest.

Search and Seizure

[116]A number of submissions on behalf of the Claimant bear on the investigation of complaints about the search of the Claimant’s home. Firstly, the conclusion that the search was not recorded on video appears to be in conflict with the Operations Strategy Document and the Briefing Note. The conclusion that no diaries were seized was reached on the basis of the property receipt. The Claimant points to entries in the premises search book, the statement of officers who searched the address, the statement of the exhibits officer, the day book of Miriam Davies, the day book of Alan Carey, and the notebook of the arresting officer Shaun Coleman, all of which indicate diaries were taken.

[117]The Defendant accepts that the list of property seized during the search, which does refer to the seizure of diaries, was not considered in the course of formulating the report “as it was not stored in the relevant file”. The Defendant does advance the steps that were taken by Mr Hassan in looking at this issue, in particular that the relevant investigation file was consulted and email correspondence considered. Accounts of all the IPCC investigators were obtained in addition to material of the Metropolitan Police. Other material was addressed. I accept those submissions, but the fact remains that this investigation failed to address much of the material which was obviously relevant to the question of seizures at the Claimant’s home. This was a point which had been emphasised in the Claimant’s complaint and in other correspondence and email traffic.

[118]I have come to the conclusion that there was a failure by the Defendant to investigate this matter with reasonable thoroughness. However, there is an important qualification to this conclusion. I accept also from the Defendant that the material in question was not the subject of legal professional privilege on the part of this Claimant. Perhaps more importantly, there is no evidence that there was any actual breach of the privilege. The relevant diaries were returned and there is absolutely no indication that there was any breach of the legal professional privilege. Therefore, despite my conclusion in relation to the investigation on this aspect of the case, as a matter of discretion I would make no further observation on the point and grant no remedy in respect of this aspect of the case.

The complaint concerning delay

[119]Much of the material I have summarised earlier in this judgment bears on the question of delay. The investigation into the Claimant’s complaint in relation to delay reaches no conclusion at all. This is on the ground that a complaint against the IPCC Commissioner is outwith the ambit of the IIU. That seems to me a very unattractive approach. This was not a complaint restricted to the Commissioner. It was a complaint against the IPCC. I can address this shortly and clearly. There was in my view overwhelming evidence of undue delay by the IPCC in relation to this Claimant. I have quoted in full the email of Mr Joseph Penrose of 28 March 2014. It seems to me his comments were fully justified and that the IIU investigation wholly failed to get to grips with the delay inflicted by the Defendant on the Claimant.

The third ground advanced by the Claimant

[120]This is framed as follows:

“The IPCC came to a Wednesbury unreasonable decision in relation to the complaint(s) made by Mr Jeffrey, when concluding that no complaint should be upheld.”

[121]This Ground represents an invitation to this Court to reach conclusions in the place of the Defendant. Having considered the matter, I am only able to do so on one topic, namely that of delay. I have already expressed my view that strong evidence of delay existed and it was in my view unreasonable on the part of the IPCC not to conclude that there had been unwarranted delay in completing the investigation and communicating the outcome to the Claimant.

Summary of Conclusions

[122]I do not find that it was unreasonable to categorise these complaints as ‘non-serious’, given the terms of the Rules and procedures governing IPCC complaints investigations.

[123]There was a clear lack of independence in the way Mr Hassan and Mr Paul Davies set about their investigation of the Claimant’s complaints. Even in the context of complaints which were significant but capable of being defined as ‘non-serious’, there was an improper and inappropriate closeness and consultation between those investigating and those subject to the complaints. However, I am not able to reach any conclusion that a different outcome would in fact have emerged from a more independent approach, in this instance.

[124]There was no properly directed or sufficiently rigorous enquiry into the decision to arrest and detain the Claimant. The IPCC complaint investigation did not look at the evidence with a rigorous eye, and did not appear to focus properly on the legal test of necessity as laid down in Richardson and refined in Hanningfield. While I have commented on much of the evidence bearing on this point, in particular on the misapprehension as to whether the Claimant had lied about his contact with White and Harratt, I am not in a position to make a finding that he was unlawfully detained.

[125]As to search and seizure, it appears to me there was a failure here to investigate thoroughly or rigorously. Whilst some of the key points here concerned the Claimant’s wife, the investigation did reach conclusions on the seizure of material which were erroneous, because the correct material was not considered. However, in the end it does not appear to me that anything turns on this, so far as this Claimant is concerned. Again, I am not in a position to make any findings about the suggested assault on the Claimant’s wife, or whether the Claimant’s son was disturbed or mishandled in any unlawful way.

[126]As to delay, there was the clearest failure to look at this complaint properly. Here, I am able to say that the evidence overwhelmingly points to marked delay in concluding that there was no basis for action against the Claimant, as was recognised in strong terms by Mr Penrose. There was here both a failure to investigate to a reasonable standard, and an obvious answer which would and should have emerged from a proper investigation.

[127]I will permit the parties to make brief written submissions as to the form of any order.