Judicial review claims involving the police

INVESTIGATIONS AND PROSECUTIONS

Beatrice Collier

There has been a slow but appreciable rise in the number of claims in which the conduct of police investigations into alleged criminal offences are challenged by way of judicial review. In fact, it is generally a decision to take no further action — i.e. to end a police investigation and decline to refer the matter to the Crown Prosecution Service (CPS) for a decision on charge — which is the subject of the challenge, although there are some cases where it is the investigation itself which is impugned.

The legal framework

For all but the most minor crimes the legal responsibility for determining whether a suspect is charged following a police investigation lies with the CPS (see s.3(2)(a) of the Prosecution of Offences Act 1985; s. 37B(2) of the Police and Criminal Evidence Act 1984 and the Director’s Guidance on Charging, 6^th Edition, 2020). That decision is taken by the application of the Full Code Test within the Code for Crown Prosecutors (or the Threshold Test where appropriate). In summary, the CPS will advise that a suspect be charged with an offence where the prosecutor considers that there is sufficient evidence and it is in the public interest to do so. But the police have a duty to ‘take no further action’ and thereby decline to refer the case to the CPS for a charging decision in all cases where the police consider that there is insufficient evidence to provide a realistic prospect of conviction. This arrangement of responsibilities as between the CPS and the police means that while some cases will be brought to an end when the CPS decide that no charges should be brought, others will be terminated as a result of a police decision to take no further action.

It has long been the case that discretionary decisions of police officers and prosecuting bodies are amenable to judicial review, albeit it has repeatedly been emphasised that the circumstances in which the court would be prepared to intervene would be extremely limited, or “sparingly exercised” per Kennedy LJ in R v Director of Public Prosecutions, ex parte C [1995] 1 Cr. App. R. 136. Interestingly, in that case, where it was a CPS decision under challenge, the court described the limits of its function by reference to the circumstances in which police decisions could be subject to judicial review: Kennedy LJ quoted with approval the judgment of Watkins LJ in Chief Constable of Kent County Constabulary, ex p L [1993] 1 All ER 756 in which he said “it seems to me that a decision to discontinue proceedings by the CPS can be equated with a decision by the police not to prosecute and is, therefore, open to judicial review only upon the restricted basis available to someone […] seeking to challenge a decision by the police”. Kennedy LJ went on to explain that the “restricted basis” upon which a discretionary decision by a police officer whether to investigate or not might be amenable to judicial review had been articulated by Lord Denning MR in R v Metropolitan Police Commissioner, ex. p Blackburn [1968] 2 QB 118. In summary, Kennedy LJ held, the Administrative Court would only intervene on public law grounds if the CPS prosecutor, in arriving at a decision, had applied an unlawful policy; failed to act in accordance with the DPP’s own guidance or Code; or because the decision was Wednesbury unreasonable.

Since R v Killick [2009] EWCA Crim 1793, [2012] 1 Cr App R 10 it has been specifically recognised that victims are entitled to challenge a decision of the CPS not to prosecute. Killick prompted the introduction of the CPS Victims Right to Review Scheme in 2013 (VRR) which allows victims (including close relatives of victims who have died as a result of the criminal act) to seek a review of a decision not to charge/discontinue a prosecution. The CPS VRR scheme is complemented by police VRR schemes operated by all forces which, likewise, require police forces, upon the application of victims, to review a decision. The decisions amenable to review under the police VRR are those where the police decide not to charge a suspect (where charging authority lies with the police, as opposed to the CPS) or where the police determine that the case does not meet the relevant threshold for referral to the CPS for a charging decision — a decision to take no further action.

Recent cases

A victim who is dissatisfied with a negative decision from the police following an application pursuant to the police VRR may seek judicial review, and it is in this way that police investigations are most commonly challenged in the Administrative Court. However, now, in addition to the public law grounds described above, more and more claimants are praying in aid Articles 2 and 3 of the Convention, seeking to argue that a police investigation has not met the standard required by Article 2 ECHR.

A relatively recent example is R (AB) v Chief Constable of Hampshire Constabulary [2019] EWHC 3461 (Admin) in which the decision under challenge was that of the police to take no further action, but which also encompassed a challenge to the adequacy of the investigation itself. The case is noteworthy because it involved a number of different routes of challenge to the police investigation including traditional public law grounds and alleged non-compliance with Article 3 ECHR. The claimants were the parents of a 15-year-old boy with Down’s syndrome, autism and significant communication difficulties. The child demonstrated actions to his parents which led them to believe that he may have been subjected to a serious sexual assault, possibly rape, while in respite care, which they reported to the police. The police carried out an investigation but ultimately decided that no further action could be taken and did not refer the matter to the CPS. One of the main reasons for the decision was that, when the child was asked about what had happened during interview, although it was apparent that something had happened to his bottom, it was not clear exactly what that was; and when asked about the person who had done something to his bottom, his responses not only did not match, but flatly contradicted, the appearance of the carer with whom he had been in contact.

The claim challenged firstly the adequacy of the investigation and secondly the lawfulness of the decision to take no further action. The adequacy of the investigation was impugned on five grounds: (i) the police were under an implied statutory duty under the Youth Justice and Criminal Evidence Act 1999 to appoint an intermediary for the purposes of the interview, (ii) the police failed to act in accordance with relevant guidance in connection with the appointment of an intermediary and other matters, (iii) the investigation did not meet the standard required by Articles 3 and 8 of the Convention, (iv) there was a failure to make reasonable adjustments under the Equality Act 2010, and (v) the police were in breach of section 11 of the Children Act 2004 Act which required them to ensure that their functions were discharged in a manner that promoted the welfare of children. As to the decision to take no further action, the claimants made various criticisms of the reasons given by the Detective Superintendent who made the decision, asserting that these rendered the decision legally flawed.

The human rights aspect of the claim required the Court to apply the principles set out in DSD v Commissioner of Police of the Metropolis [2019] AC 196, and to make findings as to whether there had been “egregious and significant” or “conspicuous or substantial” errors in the police investigation. It would appear that the evidence as to the investigative steps taken was agreed, which enabled the court to conduct its assessment of whether those actions were ‘effective’ as required by Article 3.[1] The Court noted that the Article 3 duty was “a procedural duty, to carry out an effective investigation; it is not one to ensure a result, that is, that there is a prosecution or conviction”. On the facts, that duty was met. The other grounds of challenge also failed, the Divisional Court having reviewed the investigative actions and the evidence obtained and concluded that the police had acted in accordance with the relevant statutory provisions/guidance.

The more recent case of R (Balkwell) v Chief Constable of Essex Police [2022] EWHC 1288 (Admin) [2022] 3 All E.R. 520 provides a further illustration of the approach of the Administrative Court to claims which seek to challenge the adequacy of a police investigation.

The background to this claim was that in the early hours of 18 July 2002 emergency services were called to an address in Upminster, from where a Simon Bromley ran a concrete supply business, whereupon they found the body of Lee Balkwell trapped within the machinery of one of Mr Bromley’s cement mixer lorries. Lee Balkwell had been working for Mr Bromley as a driver delivering mixed cement. A police investigation ensued and a file was submitted to the CPS in August 2002; the CPS determined that there was insufficient evidence to charge Mr Bromley with gross negligence manslaughter.

The original police investigation was subject to intensive scrutiny in the years that followed, including by the Independent Police Complaints Commission and by West Midlands Police who conducted an independent review in 2009. The original investigation was found significantly wanting. Following the independent review, Kent Police undertook a thorough re-investigation in the course of which, in 2013, Mr Bromley was charged with manslaughter by gross negligence, stood trial and was acquitted. The re-investigation culminated in a report in July 2015. In October 2015, Essex Police admitted in private law proceedings brought by Mr Balkwell Snr that it had not carried out an effective investigation which met the requirements of Article 2 ECHR, paid out damages and offered an apology.

From the outset Lee Balkwell’s father had expressed his intense dismay and dissatisfaction with the original police investigation: he considered that it had not established the truth about what had happened to his son; that his son had been murdered and that an ‘accident’ had been staged. Mr Balkwell Snr commissioned his own investigators and experts who presented their findings to Essex Police in a 2017 report together with Mr Balkwell’s request for a (further) re-investigation. This request was declined by Essex Police on the basis that (i) there was, and would not be, sufficient evidence to bring charges for Lee Balkwell’s murder and (ii) it would not be in the public interest to re-investigate. It was this decision (and its later reiterations) which were the subject of the judicial review challenge, which was advanced on the basis that the decision not to re-open the investigation was (i) Wednesbury unreasonable and (ii) incompatible with the State’s Article 2 ECHR obligation to carry out an effective investigation of the incident which involved the loss of life.

The Court, upon conducting a conventional public law analysis, held that the decision not to re-investigate did not come close to meeting the high hurdle of Wednesbury irrationality. As to the human rights challenge — that in deciding to close the investigation and not to re-open it in light of the further material obtained by the claimant, the police were in violation of Article 2 ECHR — the Court examined the jurisprudence concerning the circumstances in which new evidence may ‘revive’ an Article 2 ECHR investigative obligation (Brecknell v UK App no. 32457/04; (2008) 46 EHRR 42, cited with approval by the Supreme Court in In re McQuillan [2022] 2 WLR 49) before applying the principles from Brecknell to the case before it. The Court explained that the Article 2 obligation to re-open an investigation arises “where there is credible fresh evidence, but the obligation may be satisfied where the state conducts a review of the credibility and significance of the new material. The state is allowed to take into account the prospects of a successful prosecution resulting if the case were re-opened, and there is no prescriptive formula that applies”.

This, it will be appreciated, will have the effect in many cases of aligning the approach taken by the courts on traditional public law grounds with the approach taken on a human rights challenge. Indeed, this was the case in Balkwell: having observed that “there is a significant overlap between the rationality challenge and the challenge under article 2”, the Court went on to hold that the Article 2 investigative obligation had not been revived, relying on the same reasoning that had led it to conclude that it was reasonable for the police to consider that the new materials obtained by the claimant were insufficient to require the re-opening of the investigation of his son’s death. The Court went further, however, and held that even if the Article 2 investigative obligation had been revived, then the “careful consideration of [the new material obtained by the claimant] and the other steps that were taken in relation to it” were sufficient to meet the police’s investigative obligations under Article 2 ECHR.

In a separate category from the above cases, which were challenges to the adequacy of criminal investigations, is R (LXD) v Chief Constable of Merseyside [2019] EWHC 1685. The claimants were a mother and her children who had been threatened by associates of her ex-partner (and the father of two of her children). They challenged an alleged ongoing failure by the Merseyside police to take steps to protect them, a failure which, they claimed, amounted to a violation of their Article 2 and 3 Convention rights. While the grounds included challenges to past decisions of the police (risk assessments and reviews undertaken in the course of police involvement with the claimants), the Court considered that these added little to the case which was “essentially about whether there is a real and immediate threat to [the] life of the claimants and whether further steps should be taken by the Defendant to protect [them]”.

The Court proceeded to assess for itself whether, as at the time of the hearing, the evidence disclosed a real and immediate risk to the life of the claimants so as to require measures to be taken in accordance with the state’s operational obligations under Article 2. Dingemans J (as he then was) concluded that there was no real and immediate risk to the claimants’ lives  (whilst acknowledging that this did not mean that there was no risk to them) and therefore declined to make a mandatory order requiring the police to take additional steps to protect the claimants. This was an unusual case for various reasons, but most notably because the Court was prepared to decide whether the claimants were entitled to further protective measures from the police.

POLICE POWERS: SEARCH WARRANTS AND PUBLIC PROTEST

Charlotte Ventham

Police officers enjoy a wide array of statutory powers which, subject to certain safeguards/conditions, permit intrusion into the private lives of individuals and/or infringement of their ability to come and go – and to express themselves – as they please. The level of interference with fundamental human rights to which the exercise of such powers gives rise makes this an area ripe for judicial intervention, none more so than in the fields of (a) search warrants and (b) public protest. A number of recent cases illustrate the Courts’ approach to enforcing standards which comply with public law principles of lawfulness, and the challenges faced by the police in meeting those standards.

Search warrants

Introduction

Around 40,000 search warrants are issued in England and Wales every year. They are a vital tool in the police arsenal for investigating all forms of crime. They also represent one of the most intrusive powers of the state, amounting – as the cases repeatedly make clear [2]– to a serious interference with the liberty and privacy rights of the subject.

A search warrant is a court order. It therefore remains valid and lawful unless and until it is quashed or set aside by a court of competent jurisdiction. Judicial review is the only means by which to challenge the validity of a search warrant. The following grounds, or sub-species of them, are commonly advanced: (1) the statutory conditions for issuing the warrant were not met; (2) the court was provided with inadequate, incomplete or misleading information; (3) the statutory safeguards were not complied with, for example because the warrant was drawn impermissibly wide. The approach to be adopted by the Court is one of review on usual judicial review principles – so the Court will not intervene if “it was properly open to the judge below to be satisfied as to the various requirements” (R (Faisaltex) v Crown Court at Preston [2008] EWHC 2832 (Admin); [2009] 1 WLR 1687 at [31]).

The consequences of a successful judicial review challenge may be of the utmost significance including, potentially, the collapse of an entire criminal investigation. The relief that the Court, in its discretion, may grant will depend on the nature and gravity of any breach found. At one extreme is the quashing of the warrant itself and an order for the immediate return or destruction of any material seized on the basis that the police should be denied any benefit from its wrongdoing (see R (Chatwani) v The National Crime Agency [2015] EWHC 1283 (Admin); [2015] A.C.D. 110 at [136]).

The legal framework

Sections 15 and 16 of the Police and Criminal Evidence Act 1984 (PACE) lay down various conditions that must be met by the police when applying for and/or executing a warrant under any enactment. These include the requirements (i) to specify, in a written “information” before the court, the ground on which the application is made, the address of each and every premises to be searched and the articles sought; (ii) to answer on oath any question asked by the judge or justice hearing the application; (iii) to produce the warrant and supply a copy of it to the occupier; (iv) to carry out a search only to the extent required for the purpose for which the warrant was issued. Further guidance for police officers applying for and executing search warrants is contained in PACE Code B.

In addition to these general requirements, any specific provisions of the particular enactment under which the warrant is sought must be complied with. The majority of police warrant applications are made pursuant to s8 of PACE which requires a magistrate to be satisfied, amongst other things, that there are reasonable grounds for believing that relevant evidence of substantial value to the investigation of an indictable offence is present on the premises in question and that unannounced entry to the premises is necessary for reasons of practicability and/or to avoid prejudice to the investigation. Certain types of confidential material may not be included within the proposed search (although a warrant may be issued by a judge under s9 and Schedule 1 of PACE in respect of such material – not including legally privileged material – provided additional conditions are met).

The statutory provisions governing the issue and execution of search warrants are rigorously enforced by the Administrative Court. As Latham LJ reiterated in R (Redknapp) v Commissioner of the City of London Police [2008] EWHC 1177 (Admin); [2009] 1 WLR 2091 at [13], a warrant authorises the invasion of a person’s home and obtaining one “is never to be treated as a formality”. Any breach of sections 15 or 16 (of which there are numerous examples in the case law) renders the search and seizure unlawful (R v Chief Constable of Warwickshire Police, ex parte Fitzpatrick [1999] 1 WLR 199) which in turn imposes an obligation on the police to return any material seized – (albeit in most cases the police should be able to avail themselves of an application to the Crown Court to retain such material pursuant to s59 of the Criminal Justice and Police Act 2001 (“CJPA”): see Chatwani at [139]).

Duty of candour

One of the most common reasons for the Court quashing a warrant as unlawful is the failure to observe the duty of candour applicable in any ex parte application. The authorities are replete with statements as to the fundamental importance of the police giving full and frank disclosure of all relevant, including any undermining, matters to enable the court to reach a fully-informed decision as to whether to issue the warrant. But that does not mean “‘throwing’ material at the Court” in “an impenetrable, discursive mass lacking a discernible sense of order” (per Gross LJ in R (Fitzgerald) v Preston Crown Court and another [2018] EWHC 804 (Admin).

Despite these and other similarly unequivocal judicial exhortations, cases involving shortcomings in the presentation of evidence in support of warrant applications continue to come before the courts. The issue was re-visited in two recent cases, firstly by the High Court of Northern Ireland in Hughes’ Application for Judicial Review [2021] NIQB 113. In Hughes, the Court had cause to reiterate the “absolute, non-negotiable and non-delegable” nature of the duty of candour. It also highlighted the competing lines of authority, within the case law of both Northern Ireland and England and Wales, as to the test to be applied in determining whether or not there has been a material non-disclosure, such as to invalidate the warrant. The High Court of Northern Ireland followed the approach adopted in R (Dulai) v Chelmsford Magistrates’ Court [2012] EWHC 1055 (Admin); [2013] 1 WLR 220 at [45], namely that it is a question of whether the information that should have been provided was such that it “might reasonably have led [the court] to refuse to issue the warrant” (and not whether it would have affected the court’s decision).

In Al Hajjeh v Westminster Magistrates’ Court [2021] EWHC 2283 (Admin), the Divisional Court assessed the materiality point in a slightly unusual context. The Metropolitan Police, acting in response to a letter of request from the judicial authority in Turkey, had applied for a warrant to enter and search the premises of Christie’s auction house for an antique Qu’ran which had been put up for sale by the claimant but was suspected of being stolen property. The district judge was misinformed about and/or not informed (i) that the suspects’ trial had concluded in Turkey without the Qu’ran being physically before the court, and (ii) that the Qu’ran had been identified as an item of cultural significance and so was subject to an investigation in Turkey relating to the removal of cultural artefacts, which is not an offence under any law in this jurisdiction. The Court identified at [35] the appropriate test for determining the materiality of the misinformation (opting for the same formulation as the High Court of Northern Ireland in Hughes).  Seen in the context of the other relevant facts of which the judge was correctly informed, the Court held that the matters of which he was unaware would not have changed his reasoning or his conclusion that there were reasonable grounds to believe that the Qu’ran was likely to be of substantial value to the investigation of an offence of theft or handling of stolen goods, and neither would it have led him to conclude that the warrant was being sought for a collateral purpose. The warrant was accordingly deemed lawful.

Competing lines of authority also exist in relation to the reach of the duty of candour: does it apply only to those facts known to the applicant (see R (Superior Import/Export Ltd v Revenue and Customs Commissioners [2017] EWHC 3172 (Admin); [2018] Lloyd’s Rep FC 115 at [53]) or does it extend to facts which would have been known if proper inquiries had been made (see R (Brook) v Preston Crown Court [2018] EWHC 2024 (Admin); [2018] ACD 95 at [16])? This was one of numerous problematic areas of the law considered by the Law Commission in its report on search warrants laid before Parliament on 7 October 2020, a project requested by the Home Office and apparently prompted by comments from senior members of the judiciary suggesting that the law in this area was in need of reform. The Law Commission opined that the duty of candour and the duty to pursue all reasonable lines of enquiry were separate but interlocking duties [3].

The Law Commission made no fewer than 64 recommendations on a host of issues, including codification of the duty of candour in s15 of PACE (partly on the basis that this may “contribute towards bringing about a culture change in how applicants approach disclosure”) as well as the amendment of search warrant application forms to include within the guidance notes an extensive (but non-exhaustive) list of factors which could be relevant to discharging the duty.

The PII problem

A recurring issue in the case law is the question of how the Court should deal with material over which public interest immunity is asserted. If, as is frequently the case, sensitive police intelligence (or like material) was relied upon in the ex parte application for the warrant, how, if at all, can such material be deployed on the occasion of a subsequent inter partes challenge? The answer to that question was given by the Supreme Court in R (Haralambous) v St Albans Crown Court [2018] AC 236: permitting reliance on PII evidence in the subsequent judicial review challenge (and/or s59 CJPA application) was the only means of avoiding “an awkward mismatch between the bases of the original and reviewing decisions”. Accordingly, the use of a closed material procedure (“CMP”), in which the PII evidence is withheld from the claimant but deployed in the proceedings, was justified despite the absence of express Parliamentary authorisation for the same.

Haralambous has been applied, and built upon, in a number of cases since. In R (Jordan) v Chief Constable of Merseyside [2020] EWHC 2274 (Admin); [2020] A.C.D. 125, the Court addressed the question of the effect, if any, of the availability of a CMP on the public interest balancing exercise required when determining whether PII should indeed be upheld. Taking a different view from the one expressed by Marcus Smith J in Competition and Markets Authority v Concordia [2018] EWHC 2448 (Ch); [2019] Lloyd’s Rep. F.C. 183, Chamberlain J held that there was no reason to require a higher standard of cogency of the arguments in favour of withholding disclosure simply because the material might be considered by the court in a CMP. What was required was close focus on the issues in the case (both those pleaded and any others to which the undisclosed material gives rise) and the nature of the closed material. It should not be assumed that the availability of a CMP means that the adverse effect on the public interest in the administration of justice is materially greater than it would be were the material to be categorically inadmissible; indeed, as the discussion in Haralambous demonstrated, the opposite may be the case in that the unavailability of a CMP may result in the application of the presumption of regularity [4] or a claim being struck out as untriable [5]. The judgment also provides helpful guidance as to the procedure to be adopted in a judicial review claim in which PII is asserted.

The approach taken to the PII balancing exercise in Jordan was followed in R (AIG) v HM Courts and Tribunal Service [2021] EWHC 584 (Admin); [2021] A.C.D. 71, Swift J remarking at [12] that “there is no extra harm to the public interest that can be reliably measured and weighed in the balance in all cases where the rule in Haralambous applies” and that “the damage to the public interest caused by disclosure and the damage to the administration of justice caused by non-disclosure must be evaluated and weighed against each other, case by case”. The divergent view expressed in Concordia seems to have been put to bed.

Public protest

Introduction

The ability of the state to control and restrict public protest has always been a highly politicised issue, perhaps now more than ever. As the body empowered, and obliged, to enforce the law, the police often find themselves on the frontline of the tension between freedoms of expression and assembly on the one hand, and the rights of citizens at large to safe and peaceful enjoyment of their community and environment on the other. It has seemed in recent times that the police have entered (or been pushed, depending on one’s perspective) into the political arena in their operational decision-making and actions. The last three years alone has seen a number of high-profile protests giving rise to substantial policing challenges: for example, the defacing/destruction of public statues as part of the Black Lives Matter protests, the blocking of the M25 by climate activist group Insulate Britain, anti/pro Brexit demonstrations outside Parliament and nationwide protests against Covid lockdown restrictions.

Moreover, the nature of public protests has changed considerably over the last decade with the deployment of ever more sophisticated and imaginative techniques and the increased ability to galvanise and organise vast numbers of protestors via social media and other technology. Some recent cases provide an indication of the Courts’ attitude and approach to public law challenges to the operational decisions of the police in the new era of public protest.

Recent cases

R (Baroness Jones & others) v Commissioner of Police of the Metropolis [2019] EWHC 2957 (Admin); [2020] 1 W.L.R. 519 concerned a challenge in relation to the policing of the so-called Extinction Rebellion Autumn Uprising (“XRAU”). XRAU involved a series of coordinated protests taking place at multiple sites across London over 12 days in October 2019, the stated intention of which was to “take police resources to a breaking point” and “build pressure on the state to the point where their only option is to respond to demands for change”. The tactics employed by the protestors included leaving one protest and joining another and re-grouping at locations on and off the event footprint, thereby introducing a fluidity which was designed to evade the police response and cause maximum disruption.

Section 14 of the Public Order Act 1986 (as then enacted) empowered the police to impose certain conditions (as to location, duration and numbers) on any public assembly being held or intended to be held which, in the reasonable belief of a senior police officer, may result in serious public disorder, serious damage to property or serious disruption to the life of the community. Midway through the Uprising, a superintendent of the Metropolitan Police, purportedly exercising this power, issued a direction that “any assembly linked to the [XRAU] must now cease their protest(s) within London by 2100 hours 14^th October 2019”. In so doing, the superintendent treated the XRAU as a single “public assembly” within the meaning of s14 (with the obvious advantage that such a condition would, at a stroke, bring the entire Uprising to an end and avert the need for the police to issue separate conditions in respect of each individual protest, the location and timing of which may not yet have been identified).

The Court commenced its analysis with a reiteration of the importance of the common law right to protest, as recently underlined in R v Roberts (Richard) (Liberty intervening) [2019] 1 W.L.R. 2577. However, the claim ultimately turned on an issue of statutory interpretation: could a “public assembly” consist of a number of separate gatherings, separated in time and space but co-ordinated under the umbrella of one body? Having analysed the statutory language as a whole, the Court concluded that it could not and that a public assembly within the meaning of s14 “must be in a location to which the public or any section of the public has access, which is wholly or partly open to the air, and which can fairly be described as a scene” (emphasis added).

As if the legal landscape were not challenging enough, a further layer of operational complexity in the policing of public protests was presented by the various iterations of the Coronavirus Regulations. While it may be hoped that the restrictions contained therein are now consigned to history, the case law arising from them provides a striking demonstration of the Courts’ determination, even in the context of a public health emergency, to safeguard the Article 10 and 11 rights of those wishing to protest.

In R (Leigh & others) v Commissioner of Police of the Metropolis [2022] EWHC 527 (Admin), the Court considered the lawfulness of a series of decisions/pronouncements made by the Metropolitan Police Service (“MPS”) in response to a proposed vigil on Clapham Common prompted by the murder of Sarah Everard. The vigil was being organised by an informal collective going by the name #ReclaimTheseStreets. Its purpose was to highlight risks to women’s safety and to campaign for changes in attitudes and responses to violence against women. At the time, London was in a period of Tier 4 restrictions which prohibited gatherings of more than 30 people in a public outdoor place, the breach of which (without a reasonable excuse) constituted a criminal offence. The claimant organisers abandoned their plans as a result of repeated indications from the MPS that proceeding with the vigil would amount to an offence. (In fact, a vigil did go ahead but that and other similar events were not organised by the claimants.)

The first point of interest is how the Court dealt with the fact that the decisions under challenge were in the form of anticipatory messaging as to how the MPS would respond, rather than responsive action to events that had already taken place. The Court rejected the argument advanced by the MPS that in truth the claimants were objecting to the failure to provide them with assurances that they would not face enforcement action if the vigil went ahead and that, in the absence of any duty to provide such assurances, it could not be said that there had even been any interference with their Article 10 and 11 rights. The Court noted (at [9]) that the notion of interference is a broad one and extends to conduct which has a tendency to “chill” the exercise of the right in question. By way of example, the Court cited another recent police case exploring the reach of Article 10 (R (Miller) v College of Policing [2021] EWCA Civ 1926) in which conduct falling short of prosecution but nevertheless inducing someone to exercise self-restraint for fear of a future investigation or prosecution amounted to an interference. The Court concluded (at [76]) that each of the police’s pronouncements in relation to the vigil had a deterrent impact and therefore a “chilling effect” on the claimants’ exercise of their fundamental freedoms, and that they did therefore constitute an interference.

The Court then considered how the police should have approached their decision-making in order to ensure that the interference was “prescribed by law”. That involved determining whether the decisions reflected a proper understanding of the law and in particular the relationship between the relevant Coronavirus Regulations and the Convention rights in issue. Thus, although the proportionality of the decisions was not, of itself, a live issue in the case, it was necessary for the Court to consider (and for the police to have correctly appreciated) what was required to conduct a lawful proportionality exercise.

The Court’s starting point was to recognise the right to freedom of expression as one of the essential foundations of a democratic society, as recently re-stated by the Supreme Court in Director of Public Prosecutions v Ziegler [2022] AC 408 in which Lords Hamblen and Stephens JJSC set out a non-exhaustive list of factors that could be relevant to the evaluation of proportionality. These included the nature and extent of any potential breach of domestic law; the extent to which the protest would interfere with the rights of others; “whether the views giving rise to the protest relate to ‘very important issues’ and whether they are ‘views which many would see as being of considerable breadth, depth and relevance’”; and the nature of any precautions proposed or considered.

The Court found, in summary, that the police had a duty to weigh up the competing considerations of, on the one hand, the public health risks that the Regulations were designed to address and, on the other hand, the Article 10 and 11 rights engaged. Merely noting the purpose of the Regulations did not discharge that obligation and would constitute a breach by the MPS of the public law (“Tameside”) duty to inform themselves about relevant considerations. In this case, the MPS had failed to acknowledge the requisite balancing exercise: there had been inter alia no evaluation of the “cause” at stake, no proper effect given to the “reasonable excuse” provision in the Regulations and no consideration of whether, in the particular circumstances of the case, the enforcement of the restrictions would be necessary and proportionate in pursuit of the legitimate aim of protecting health. In other words, rather than appreciating that a tailored proportionality assessment was required, the MPS had effectively imposed a blanket prohibition on protest in purported reliance on the Regulations. The decisions were therefore legally flawed.

Finally, the Court was not satisfied that it was “highly likely” that the same outcome would have been arrived at (that is, the claimants abandoning the vigil) if the conduct complained of had not occurred (albeit relief was limited to a declaration, damages not being required to afford the claimants just satisfaction).

Future challenges

The judgment in Leigh does not make the police’s job any easier, or the likelihood of future public law challenges any lesser. The latter point might equally be made about the latest raft of legislative provisions relating to public order policing in Part 3 of the Police, Crime, Sentencing and Courts Act 2022 which came into force on 28 June 2022. The government’s stated aim [6] in introducing these changes is “to allow the police to take a more proactive approach in managing highly disruptive protests causing serious disruption to the public”. This is said to reflect the proliferation over recent years of tactics which cause “a disproportionate impact on the hardworking majority seeking to go about their daily lives” resulting in protests which “have not only been highly disruptive and sometimes incredibly dangerous, they have also been a drain on public funds”.

Unsurprisingly, the new powers have not been greeted with the same enthusiasm by civil liberties groups who have raised a number of concerns that they further limit the freedom to protest, for example by widening the scope of activity which may be subject to police conditions; by curbing noisy protests (thereby removing a key part of what makes a protest effective); and by disproportionately impacting protestors with mobility difficulties.

The stage is set.

THE MANAGEMENT OF POLICE INFORMATION

Robert Talalay

The importance of police information

The law on the retention and use of information on police databases is a hot-button issue. Since 2014, it has spawned at least four Supreme Court cases (three of which went to Strasbourg) and any number of cases in the Administrative Court and the Court of Appeal. Why all the fuss? Whilst police data retention and disclosure may sound dry, they go to the heart of intelligence-led policing and issues of public safety; and the other side of the coin is that collection, retention and use of personal data by the police can sound the death-knell to an individual’s prospects of employment and directly impact their rights to freedom of speech and assembly.

What constitutes policing information is varied and broad. Plainly, it will include information gleaned in any particular investigation but it goes much further than that to include criminal records data, non-conviction data (e.g. acquittals and their underlying facts), safeguarding information arising from, for example, the Prevent duty or joint investigations with child services, CCTV processed by facial recognition software, fingerprint and DNA data, ANPR data regarding vehicle registrations, sensitive information about policing tactics and techniques, etc.. The variety of types of data inevitably results in there being a wide array of ways in which those data are retained. Each of the 43 territorial police forces in England and Wales will use their own local systems to record such matters as the fruits of criminal investigations, calls to the police, and safeguarding concerns. In addition, there are a number of national databases – other than specialist databases, the main ones are (a) the Police National Computer (PNC), which records convictions, acquittals, arrests, personal information, and firearms licensing information; (b) the Police National Database (PND), which records locally held data if uploaded to that database, (c) IDENT1, the police fingerprint database and (d) the National DNA Database (NDNAD), which contains biometric information.

In the modern era, the story starts with the Soham murders and the subsequent inquiry led by Sir Michael Bichard that followed, [7] which was damning of the police’s management of information. Whereas previously there had been a piecemeal and local approach to data retention, including the usage of information held in the national databases, the position in the two decades since Bichard has fundamentally changed and both local and national systems have greatly improved. The framework for the retention and use of policing data is hugely complex, but in very simple form, it currently stands as follows:

• All police data retention and use, insofar as it relates to personal data, is now covered by Part 3 of the Data Protection Act 2018 (DPA) other than the record of convictions held on PNC, which is governed by s.10 of the DPA and art.10 UK GDPR. The ambit of Part 3 DPA is wide and applies to data collected not just for the purposes of a particular criminal investigation, but more broadly to data held for the investigation detection and prosecution of crime generally (R (Elgizouli v Secretary of State for the Home Department [2021] A.C. 937 at [8]) and data held to prevent crime occurring (R (II) Commissioner of Police of the Metropolis [2020] EWHC 2528 (Admin) at [80]).
• Data held on the PNC and IDENT1 is subject to non-statutory national policy issued by the National Police Chiefs’ Council (NPCC). This provides that (a) convictions are held until the data subject is deemed to reach 100 years’ old with no exceptions, referred to inaptly as ‘the 100 year rule’, and (b) non-conviction data such as cautions and acquittals as well as other data, including fingerprint data, held on the PNC is also held according to the 100 year rule, but there are gateways by which an individual can apply to have their data deleted.
• Data held on the NDNAD is also subject to the NPCC’s policy, which is statutory guidance insofar as it applies to biometric information, and where there are set rules for retention under the Police and Criminal Evidence Act 1984 (PACE).
• Data held on all other systems are governed by statutory guidance. At a high level, this is issued by the Home Secretary. However, for all practical purposes, the relevant statutory guidance is now issued by the College of Policing in its Authorised Professional Practice (APP). This creates a tiered system of review where data is retained for fixed periods depending on a number of factors relating mostly to risk and there is provision for both regular and triggered reviews to shorten or extend the starting length of retention.
• The use to which data retained by the police can be put is governed mostly by statute, most significantly the DPA 2018, the legislation covering disclosure to potential employers under the Rehabilitation of Offenders Act 1974, through the Disclosure and Barring Service (DBS) in Criminal Records Checks (CRCs) and Enhanced CRCs (ECRCs) under the Police Act 1997, and pursuant to numerous memoranda of understanding and data sharing agreements between police forces and other public bodies such as Children Services.

Challenges to police data processing

Unsurprisingly, people become aggrieved knowing that, for example, their acquittal for rape or their caution for shoplifting when aged 13 will be kept until they are 100 years’ old potentially being disclosed to future employers or other public bodies, or that their face is on a database somewhere being subjected to facial recognition software, or that what they say on Twitter is being perused by the state. It is around issues such as these that the legislation, policies, and authorities have been challenged, primarily under human rights and data protection legislation, resulting in this area being at the cutting edge of not just data protection law, but public law and human rights law more generally.

The three stages of data

As anyone who has tried to grapple with controllership since the GDPR/DPA 2018 will know, it is important to recognise the different stages at which data is processed (Fashion ID GmbH & Co KG v Verbraucherzentrale NRW eV v Facebook Ireland Ltd [2021] 1 W.L.R. 969 at [70] and [74]). For the vast majority of data, the three stages are (a) collection, (b) retention and (c) use.

Recognising which particular stage(s) of data processing is the subject of litigation becomes of particular importance when conducting the proportionality/necessity exercises under art.8 or the DPA: the more intrusive the interference with an individual’s rights the stronger the justification needs to be. As a rule, the Courts have held that collection and retention of data are significantly less intrusive than use (R (Catt) v Association of Chief Police Officers [2015] A.C. 1065 at [26]).

Interference with human rights

It is now well-established that the “state’s systematic collection and storage in retrievable form even of public information about an individual is an interference with private life” (Catt at [6]). As such, any defence to a claim (whether made under art.8 ECHR, other qualified rights, or under the DPA) will need to be justified. However, there will be cases where interference can be successfully challenged in respect of the specific data collected and retained (see, for example R (Butt) v Secretary of State for the Home Department [2019] EWCA Civ 256 in relation to data held under the Prevent duty).

In accordance with the law

It was a series of police information retention and disclosure cases that caused a significant disturbance in how the courts looked at the first step in justifying any interference with a qualified ECHR right: is the interference ‘in accordance with the law’?

In MM v United Kingdom (Application No 24029/07), the ECtHR stated that where the law permitted a discretion to be exercised it must “indicate with sufficient clarity the scope of discretion conferred … and the manner of its exercise” [193]. The ECtHR, at [206-207], held that the regime for retention of policing information in place in Northern Ireland at the time was not in accordance with the law because it lacked certain mechanisms setting parameters on how the exercise of discretion was to be conducted.

The baton was then picked up by Lord Reed in R (T) v Chief Constable of Greater Manchester [2015] AC 49 who held that the legislative framework governing disclosure of non-conviction information in CRCs and ECRCs was not in accordance with the law, following MM: “because of the cumulative effect of the failure to draw any distinction on the basis of the nature of the offence, the disposal in the case, the time which has elapsed since the offence took place or the relevance of the data to the employment sought, and the absence of any mechanism for independent review of a decision to disclose data under section 113A.”

Lord Reed went on to consider the interrelationship between legality and proportionality in art.8, and held at [114]: “in order for the interference to be “in accordance with the law”, there must be safeguards which have the effect of enabling the proportionality of the interference to be adequately examined. Whether the interference in a given case was in fact proportionate is a separate question.” This in turn led to a flurry of litigation where the legal framework for retention and use of information was challenged as not being in accordance with the law by reason of its failing to include explicit mechanisms setting out with specificity all of those issues in T as to how any discretion should be exercised, or where there was a bright line rule requiring retention/disclosure and where there was no discretionary mechanism at all.

Happily, the wrinkle in this area of the law has now been smoothed, largely following the judgments of Lord Sumption:

In Catt at [12-17], Lord Sumption held that the Data Protection Act 1998 provided an adequate statutory framework to regulate the retention of data by the police and, along with the publicly available statutory and non-statutory guidance, provided adequate protection against arbitrariness, and adequate safeguards. Lord Sumption concluded at [17] by saying that “the retention of data in police information systems in the United Kingdom is in accordance with law.” Catt was followed by the Divisional Court in R (CL) v Chief Constable of Greater Manchester [2018] EWHC 3333 (Admin) where, in the words of Hickinbottom LJ at [90], the DPA 2018 “imposes safeguards that are only more rigorous”.

Not dissimilar issues came back before Lord Sumption and the Supreme Court in Gallagher’s Application for Judicial Review [2020] A.C. 185, where the Court was asked to consider the legality of the scheme governing automatic disclosure on a CRC for certain kinds or numbers of criminal offences. Lord Sumption held that the question of whether a framework was in accordance with the law was a binary test – it either was or it was not, but that was not contingent on its application to any particular case. Further, he held that the principle of legality is limited to the classic understanding that it required accessibility and foreseeability so as to constitute a system of laws compatible with the ECHR (see R (Gillan) v Commissioner of Police of the Metropolis [2006] 2 AC 307 at [34]), but that there was nothing in that that precluded a bright line rule, even when it could produce unfair individual results. Finally, he held that the analysis of whether a policy for retention was unlawful by reference to the results it produced was better considered by reference to its proportionality.

The Courts have since applied these principles robustly in holding that a framework for retention and use of data is in accordance with the law so long as it (a) complies with the DPA 2018, (b) is set out in statute or in policy, and (c) does not allow for unlimited discretion on the part of a decision maker. Where the guidance does not effectively curtail arbitrary discretion then it will be found to lack the quality of law (see, for example, R (Bridges) v Chief Constable of South Wales Police & Information Commissioner [2020] 1 W.L.R. 5037 and the policy relating to the use of facial recognition software).

Proportionality/necessity

This is where the vast majority of cases fall to be determined, either by reference to whether that particular processing of information was justified or by reference to whether a policy on the retention or use of data is justified. The justification exercise under art.8(2) is identical to that under s.35 or s.39 of the DPA (YZ v Chief Constable of South Wales Police [2022] EWCA Civ 683 at [29]).

As to the latter, when it comes to assessing the proportionality of a general rule to be applied, especially where it is a ‘bright line’ rule or creates a strong presumption, “the stronger the justification for legislating by reference to pre-defined categories, the less the weight to be attached to any particular illustration of its prejudicial impact in individual cases. In my judgment, the legislative schemes governing the disclosure of criminal records in England and Wales and Northern Ireland provide as good an example as one could find of a case where legislation by reference to pre-defined categories is justified” (Gallagher at [50], applying Animal Defenders International v United Kingdom (2013) 57 EHRR 21 at [108-109]).

Unfortunately, there remains uncertainty on the margin of appreciation to be given to the police and the state, especially in respect of the retention of information, arising from conflicting judgments between the Supreme Court and the ECtHR. The decisions of the Supreme Court in Catt and Gaughran v Chief Constable of the Police Service of Northern Ireland (Secretary of State for the Home Department intervening) [2016] A.C. 345 were both successfully appealed in the ECtHR. The ECtHR left open in both whether the collection and retention of the data in question was in accordance with the law and decided both cases on proportionality grounds. Gaughran in particular, a case involving the retention of photographs and biometric information of persons convicted of criminal offences, demonstrates the differences between the Supreme Court and the ECtHR on how much of a margin of appreciation should be afforded to the police on the policing need to retain such information to prevent crime and keep the peace.

Collection

Collection does not usually raise public law questions – either there is a power to seize or capture the information in question or there is not. Where data was collected unlawfully then it usually falls to be deleted (e.g. a caution arising from duress).

However, advances in technology have led to litigation around what data can lawfully be captured. The leading case addressing this issue is the Court of Appeal’s decision in Bridges, a case concerning a facial recognition software pilot scheme used in South Wales. The Court of Appeal allowed Mr Bridges’ appeal in part because the guidance lacked particularity in the exercise of police discretion so as to make it not in accordance with the law (for example, in relation to the location of cameras) and because the police had not complied with the public sector equality duty. However, these presented easy fixes for the police and the key point to emerge is that, had the guidance met the art.8(2) legality requirements, the Court would have found the capture of facial images for recognition to be justified under art.8. In so finding, the Court emphasised that the capture of even facial images was a ‘negligible’ art.8 interference.

Collection of data, like other types of police action, can also have a chilling effect on free speech and assembly. In R (Miller) v College of Policing [2021] EWCA Civ 1926, Mr Miller, a former police officer, had expressed his views on transgender issues stridently on twitter and as a result received a visit from a constable who made vague threats about not doing it again and recorded the incident as a non-crime hate incident in accordance with the College of Policing’s guidance. Mr Miller challenged both the guidance and the recording by the constabulary. In a robust decision, Knowles J allowed the claim, comparing the defendants’ actions to those of Big Brother in 1984. The College of Policing appealed and lost, with the Court of Appeal finding that a policy that required recording of a perception-based non-crime hate incident (i.e. that hate was entirely in the eye of the beholder) was a disproportionate interference with art.10 ECHR.

Retention

There have been a number of challenges to the policies governing retention of policing information. They have all failed at a domestic level:

• As for conviction information (where there is a bright line rule permitting no right of removal from the PNC under the NPCC’s policy), the Divisional Court in R (QSA) v National Police Chiefs’ Council [2021] EWHC 272 (Admin) upheld the 100 years’ rule and, applying Gallagher, considered the rule to be proportionate and consistent with the GDPR.
• As for non-conviction information held on the PNC, the Court of Appeal in YZ, and the Administrative Court below, refused a challenge to the NPCC’s guidance insofar as it pertained to non-conviction data. In any event, as set out above, the Supreme Court considered and rejected this argument in Catt.
• The Supreme Court in Gaughran upheld the police’s policy of permanent retention of fingerprint and photographs of convicted persons.
• In R (II) v Commissioner of Police of the Metropolis [2020] EWHC 2528 (Admin), the Claimant withdrew a challenge to the College of Policing policy governing sharing of data under the Prevent duty. What remained was a challenge to the continued retention of information on local databases concerning the Prevent process and allegations of the radicalisation of a child.
• In the very recent decision of JR188’s Application [2022] NIQB 55, the High Court in Northern Ireland applied Catt and upheld a 75 year retention policy for child protection documents for looked after children by social services and also upheld retention as a factual error had been rectified (the Court mistakenly applied Part 4 DPA, but the principles are the same).

It is notable that Gaughran was successfully appealed to Strasbourg, with a finding that essentially permanent retention of biometric information without regard to the seriousness of the underlying offence was disproportionate. This is an ongoing battle between the UK and Strasbourg (and has been for some time, see S and Marper v The UK [GC], 30562/04 and 30566/04) as the UK has one of the most rigorous retention policies in Europe for criminal record data. This issue will come back again, not least because there is a disconnect between the rationale given by the ECtHR and the reasons why retention is said to be needed by the police, as supported by Lord Clarke in the Supreme Court – put simply, the use of holding biometric information is not just due to the seriousness of the offence that led to its collection, but in building up a database that permits future detection of crime.

Claimants have generally found more success in challenges to the retention of their data within the policy framework. These decisions generally turn on classic Bank Mellat art.8/DPA proportionality exercises, measuring the need for retention against the legitimate aim being pursued. Frequent examples of these are challenges to the administering of simple cautions by the police. These decisions are always fact-specific. However, challenges where there is a strong presumption of permanent retention in the policy (e.g. YZ, concerning acquittal information on the PNC and the 100 years’ rule) tend to be a lot harder for claimants than where there is no such strong presumption, even where there is a starting point of x years (e.g. Catt or II, concerning locally held data and the College of Policing’s APP). On a side note, one issue that the Court has yet to fully grapple with is whether s.167 DPA, which permits in a civil claim in the county court a remedy of deletion of data, is a suitable alternative to a judicial review against ongoing retention.

Use

The uses to which data held by the police will be put are many and varied, but the Courts have generally been troubled by disclosure to third parties outside the criminal justice system. After much agonising (see MM, T and Gallagher) the Courts have made it clear that the framework governing the use of policing data in CRCs and ECRCs is now lawful and is governed by the statutory provisions, especially the DPA. A good illustration of the key principles is the recent decision of R (M) v Chief Constable of Sussex [2021] EWCA Civ 42, where an information sharing agreement between the police and a local business crime reduction partnership was found not to have breached the DPA, and the sharing of information that revealed a vulnerability to child sexual exploitation did not breach statutory data protection rights.

Two interesting sidebars to the use to which data can be put have been around (a) child cautions and (b) using data within police vetting.

One of the gateways by which all convictions and cautions would be disclosable is where a person applies for one of a small number of offices and jobs as listed in sch.1 and referred to in reg 3ZA of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975. That list contains some of the most sensitive jobs in the country including the judiciary, the SFO, the NCA, and firearms and explosives dealers. It also includes applicants to the office of constable. That scheme was considered in R (RD) v NPCC and SSJ [2020] EWCA Civ 1346. In that case, South Wales Police had (incorrectly) rejected RD’s application to become a member of police staff due to her reprimand for theft. That had been unlawful since 2013 (as she applied to become staff, not a constable) and the Divisional Court robustly said so. The Divisional Court also held that the 1975 Exceptions Order was unlawful in that it required applicants to the office of constable to disclose spent youth cautions. The Secretary of State for Justice appealed successfully. The issue for the Court of Appeal was whether it was lawful and necessary for police forces to have sight of an applicant’s youth caution when considering their vetting status.

The Court of Appeal rejected the submission that the framework (a bright-line scheme requiring self-disclosure of convictions and cautions) was not in accordance with the law, directly applying Lord Sumption’s reasons in Gallagher.

The central issue in the case was the failure to provide an exception for child cautions. In Gallagher at [64], Lord Sumption had marked out youth cautions as being qualitatively different to other types of criminal record: “a warning or reprimand given to a young offender whose moral bearings are still in the course of formation, requires no consent and does not involve the determination of a criminal charge. Its purpose is wholly instructive, and its use as an alternative to prosecution is designed to avoid any deleterious effect on his subsequent life. Its disclosure to a potential employer would be directly inconsistent with that purpose. In my view the inclusion of warnings and reprimands administered to a young offender among offences which must be disclosed is a category error, and as such an error of principle.”

In RD, Males LJ, distinguished that statement of general principle for the purposes of the very short list in the 1975 Exceptions Order of professions of ‘utmost integrity’ requiring disclosure of even protected cautions and convictions [84]: “I have no doubt that the importance of maintaining police integrity and public confidence is of fundamental importance and that the requirement that all cautions should be disclosed, including reprimands received as a child, is rationally connected to that objective. It promotes public trust to know that nothing in an officer’s background has been held back before he or she is entrusted with the powers which a constable has, and that anything potentially relevant has been taken into account even if, in the end, it did not prevent an offer of employment.”

This approach is in line with a general trend coming from the higher courts that there is judicial acknowledgment that constables (and applicants to become constables) do not enjoy the same expectation of privacy in respect of their private lives as do other members of the public due to the requirements of their office, whether or not they are on duty. That was the finding of both the Inner and Outer Houses of the Scottish Court of Session in C v Chief Constable of the Police Service of Scotland 2020 S.L.T. 1021, rejecting an argument that there was an expectation of privacy between constables on a private messaging chat where the conversation disclosed misconduct.

Conclusion

As policing technology advances, and as more information is preserved online in perpetuity, the advantages and the impact of data collection, retention and use by the police will take on increased importance. Consider examples from both sides of the aisle. On the one hand, a biometric sample or fingerprint taken today might solve a rape in 40 years’ time and the more comprehensive the data set the better prospects the police have of solving cases in the future as forensic evidence becomes more and more important. Do the public not want these databases to be comprehensive? But on the other hand, should a 16 year old have a potentially false allegation made against them or a mistake they made when a child hang around their neck like an albatross for most of their adult life, potentially limiting their future in unknown and unknowable ways? The state does not always get it right (very occasionally, it acts in bad faith) and lives can end up ruined. These are difficult questions that do not result in easy answers.

And so, as the management of police information has been a topic at the cutting edge of public law for some years now, this seems set to continue. New cases are already focusing on data relating to children, the retention periods for non-conviction information, and the tort of misuse of private information. Expect this area to continue to create law of relevance to all public and data protection lawyers.

POLICE MISCONDUCT, EMPLOYMENT AND VETTING

Robert Cohen and Jennifer Wright

Four facets of recent judicial reviews in this area deserve especial emphasis. First, the courts have taken the opportunity to provide clear guidance on circumstances in which police officers are found to have behaved in a racist or otherwise discriminatory manner. Second, there is evidence of a clear tension between the Police Appeals Tribunal (‘PAT’) (and other specialist boards and tribunals) and Chief Constables. Third, orthodox principles of administrative law are as apt to deal with the specialist (and sometimes arcane) world of the police as one would hope; there are many cases in which the courts rely on long established administrative law doctrine. Fourth, there is scope for substantial disagreement between different police entities in respect of core principles.

Approach to racism and other discrimination

In R (Chief Constable of Northumbria) v (1) Police Appeals Tribunal (2) Barratt [2019] EWHC 3352 (Admin) the Chief Constable sought judicial review of the decision of the PAT to impose a final written warning in a case where an officer was found to have used racist language while off duty. The officer (a probationary constable) was intoxicated having enjoyed a Christmas night out with her colleagues in Newcastle city centre. While in a take-away restaurant waiting for her food, the officer made several offensive racist comments about the staff, which included calling them “fucking niggers” and using the word “paki” five times. These comments were made to her colleagues, one of whom subsequently reported her. Save for the staff (who were out of earshot), there were no other members of the public in the restaurant.

Although finding that her comments were out of character and an instance of “unconscious discrimination,” the Police Misconduct Panel noted that her language was extremely offensive and considered that it would undermine the trust and confidence placed in the police if she were to be permitted to remain in post. The panel found gross misconduct and considered that dismissal was the only appropriate sanction. On appeal, the PAT held that the sanction imposed was unreasonable and a final written warning was imposed instead.

The High Court disagreed and held that dismissal was not only within the range of reasonable responses, it was the only reasonable decision on the facts. The court noted that this “was not a word used inappositely or just an odd word that slipped out: it was a whole volley of expressions, and it contained vile, offensive and racist language” [57]. Agreeing with counsel for the Chief Constable, the court considered that Bolton v Law Society [1994] 1 WLR 512 (which involved dishonesty on the part of a solicitor) applied: even if this was an isolated incident, racist and offensive language of this kind simply could not be tolerated within the police.

R (Chief Constable of West Midlands Police) v (1) Panel Chair (2) Police Misconduct Panel (3) Officer A [2020] EWHC 1400 (Admin); [2020] ACD 88 also concerned a challenge to the imposition of a final written warning in response to racist language. The officer was part of a covert surveillance unit which had been experiencing a proliferation of unresolved internal grievances. In this context, the officer was recorded describing three Asian officers as “gangsters” and saying “take this as a racist fucking comment if you like I don’t care mate. When they start moving in streets they all live together. They don’t want fucking amalgamating, mix with other people. When they work together, they don’t want to work, mix.” He then mimicked an Asian accent.

The panel found that the officer had made clearly inappropriate racist comments and had engaged in racist stereotyping and held that his actions amounted to gross misconduct. Nonetheless, they afforded weight to his full admissions and regret and held that the behaviour had been a one-off occurrence connected to the grievances within the unit as a whole and “provoked” in the moment by the decision of three Asian officers to leave the office rather than stay and assist with the backlog of work. They imposed a final written warning.

The High Court quashed the decision to issue a final written warning and found that the panel had failed to adopt the approach laid down by the College of Policing in their Guidance on Outcomes in Police Misconduct Proceedings (“the CoP Guidance”). They failed to properly assess the seriousness of the officer’s actions and failed to recognise the actual harm caused to the Asian officers who heard the officer’s recorded words. The conclusion that his conduct was “provoked” was “sufficiently inexplicable as to be properly described as irrational” [63]. The matter was remitted to a differently-constituted panel for determination on outcome.

R (Chief Constable of Avon and Somerset) v Police Misconduct Tribunal; PC Pauline Archer, Ms Jade Sasani (interested parties); the Director General of the IOPC (intervener) [2021] EWHC 1125 (Admin) stands in contrast to the above two cases and shows the greater leniency which has been afforded where racist language is considered to be unintentional or inadvertent. The case involved an officer who was on duty in an open-plan office when she was overheard using a racial slur (“nig nog”) to joke about her partner sunbathing to one of her colleagues. The Police Misconduct Tribunal accepted the officer’s account that she had used the term unintentionally without meaning to offend and found that it was not a term which formed part of her general vocabulary. Weight was placed on the officer’s clear and full admissions that the words used were racist and unacceptable, as well as her apologies and evident remorse. The tribunal found her guilty of gross misconduct but imposed a final written warning. The Chief Constable challenged this decision.

The High Court found that the tribunal reached conclusions regarding the officer’s mindset which were supported by the evidence and considered that the sanction imposed was within the bounds of reasonable decisions. The court drew an explicit contrast with the Northumbria case discussed above, noting that, although the word used was abhorrent, the unintentional use of a single word stood in contrast to the “volley of abuse” which occurred in that case.

The vital importance of adopting a methodical approach to decision-making including by following the three-stage test set out in Fuglers LLP v Solicitors Regulation Authority [2014] EWHC 179 (Admin); [2014] BPIR 610 and properly employing the CoP Guidance has been emphasised in several other recent cases of note.

In R (Chief Constable of Dyfed Powys Police) v (1) Police Misconduct Tribunal (2) PC England [2020] EWHC 2032 (Admin); [2020] IRLR 964 the Chief Constable challenged the decision of a Police Misconduct Tribunal tasked with assessing the conduct of a male officer accused of engaging in unwanted conduct, including of a sexual nature, which had the purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for his colleagues. In this case, a female officer alleged that a fellow officer had used highly sexualised language towards her on several occasions and had touched her neck and back. The officer provided a medical report stating that he suffered from depression, had Asperger’s syndrome, and found it difficult to judge appropriate behaviour. The tribunal found that three of the four incidents amounted to gross misconduct but did not consider that the officer’s actions were intended to be sexual. Instead, they were found to be a wholly inappropriate, misguided, crass and objectionable series of attempts to befriend. The officer was therefore issued with a final written warning.

The High Court held that the tribunal had erred in its findings and assessment of the officer’s actions. Specifically, they had failed to address each incident in a systematic and structured fashion and this had led to a failure to appreciate the overall severity of the conduct. On the female officer’s unchallenged evidence, the only conclusion available to a rational tribunal was that the officer had repeatedly used unwanted and highly sexualised language towards his colleague and had touched her in a sexual manner. The court held that, objectively judged, this had the effect of violating her dignity and created a degrading, humiliating and offensive environment for her. The High Court noted that the officer’s intentions (supported by the medical evidence provided) did not rebut the allegations: his intentions had no bearing on whether his conduct was in fact unwanted conduct of a sexual nature that violated her dignity and created a degrading, humiliating and offensive environment for her. The findings were quashed and the case was remitted to a differently-constituted tribunal.

The strict approach taken to allegations of racism and discriminatory conduct is also apparent in Scotland. In BC v Chief Constable of the Police Service of Scotland Livingstone [2020] CSIH 61; [2020] SLT 1021 the Court of Session (Inner House) considered a situation in which a group of police officers exchanged sexist, racist, antisemitic, homophobic and disability-mocking WhatsApp messages. They were off duty at the time. The officers asserted that the misconduct proceedings taken against them were a violation of their Article 8 ECHR rights. The first question which the Court considered was whether the officers had a reasonable expectation of privacy. They concluded that police officers hold public office by virtue of which they had accepted certain restrictions on their private life and this was relevant to the question of whether they could in the circumstances be said to have had a reasonable expectation of privacy. Given that they had exchanged such offensive and degrading messages (which were not personal), and had sent them to people obliged to report misconduct, the officers could not claim to have expected privacy. Article 8 was not engaged.

Tensions between Chief Officers and specialist tribunals

It is striking that each of the above cases involved a Chief Constable challenging the decision of a police misconduct panel or the PAT. It is clear that Chief Constables frequently regard the approach taken by such bodies to be unduly lenient. This apparently frequent tension is not confined to questions of discrimination. In R (Chief Constable of Nottinghamshire) v Police Appeals Tribunal; PS Jonathan Flint (interested party) [2021] EWHC 1248 (Admin) an officer had been found to have committed gross misconduct when he attended a dispute between a bailiff and a member of the public. The panel concluded that it was appropriate that he should be dismissed. The PAT disagreed. The High Court concluded that the PAT had been correct to identify misdirections in the panel’s approach. However, the PAT had only given brief reasons for imposing a sanction of a final written warning and had not referred to the Home Office Guidance on outcomes or followed a structured approach of assessing the seriousness of the officer’s proven conduct by reference to culpability, harm and aggravating and mitigating factors. In the circumstances the PAT’s redetermination of sanction was unlawful.

In contrast, where the correct approach has been followed, the High Court has dismissed challenges by Chief Officers and upheld decisions to issue final written warnings. This is true even where officers have received serious criminal convictions. R (on the application of Commissioner of Police of the Metropolis) v Police Appeals Tribunal; Superintendent Robyn Novlett Williams, Director General of the Independent Office for Police Conduct (interested parties) [2022] EWHC 1951 (Admin) and R (on the application of Commissioner of Police of the Metropolis) v Police Appeals Tribunal; DC Asweina Gutty, Director General of the Independent Office for Police Conduct (interested parties) [2022] EWHC 1950 (Admin) were heard together and raise similar, though not identical, issues.

The circumstances of the first case were particularly unusual and received a great deal of publicity at the time, in part due to the officer’s seniority. The officer, a Superintendent, was sent a video by her sister via WhatsApp on 3 February 2018 which showed a female child engaging in sexual activity with an adult male. The video was sent to 17 individuals, including the officer, one of whom reported it to the police. Despite being in contact with her sister over 3 and 4 February, the officer denied having any knowledge of the video until her sister telephoned her from the police station on 5 February to say that she had been arrested. The officer was convicted of possession of an indecent image of a child. When sentencing her, HHJ Marks accepted the circumstances were highly unusual but noted that the jury did not appear to accept the officer’s contention that she had not been aware of the video prior to 5 February. Her failure to act in these circumstances was described as a “grave error of judgment.”

In the second case, a Detective Constable pleaded guilty to an offence of assault by beating which was committed against her partner in their home. She accepted that her actions amounted to gross misconduct but put forward medical evidence suggesting reduced culpability on the grounds of her mental health.

In both cases, despite finding that the convictions were extremely serious and the officers were guilty of gross misconduct, the PAT imposed final written warnings. The Commissioner challenged this submitting, amongst other things, that the tribunal had failed to adopt the structured approach set out in Fuglers and the CoP Guidance. This was said to have led to a failure to appreciate the seriousness of the convictions and their impact on the trust and confidence placed in the police. It was submitted that the only reasonable outcome in both cases was dismissal.

However, in both cases the High Court declined to disturb the tribunal’s decisions. The court held that they had followed the structured approach required in law and had appreciated the seriousness of the conduct. The court considered that there remained a difference between operational dishonesty (for which dismissal is “almost inevitable”) and convictions for serious offences (where dismissal is merely likely) and noted that cases involving criminal convictions “may span a wide range of circumstances and a fact-specific assessment is required (by reference to the recognised structured approach).” Such cases make clear that, even where the conduct complained of is unquestionably serious, dismissal is not inevitable and any decision on sanction must remain a highly fact-sensitive assessment.

The use of orthodox principles

It is noteworthy that the High Court’s analysis of police decision-making stays true to orthodox principles of administrative law even when the subject matter is rather more arcane.

In R (Weed) v Commissioner of Police of the Metropolis [2020] EWHC 287 (Admin) the High Court considered a challenge to the refusal to give the Claimant discretionary sick pay. Regulation 28 of the Police Regulations 2003 permits a chief officer to extend the period of sick pay, in a manner that is more or less legally unique. The Claimant, a police officer on a sexual offences investigation team, alleged that he had become ill as a result of the stress that he experienced when he was criticised in the course of a criminal trial. He had secured an ‘injury on duty award’ following a decision by the Police Medical Appeals Board (‘PMAB’). There is guidance issued by the Police Negotiating Board on the circumstances in which an extension of discretionary sick pay may be appropriate. It provides that an injury on duty should normally merit an extension of sick pay. The Metropolitan Police have also published guidance which suggests that PTSD following an injury on duty is likely to merit an extension of sick pay but that workplace stress is not. The Assistant Commissioner who considered the Claimant’s application concluded that his situation was closer to workplace stress and that an extension was not justified.

Johnson J considered the situation and particularly assessed: a) whether the Claimant had had a legitimate expectation that he would receive discretionary sick pay, b) whether there was procedural unfairness, c) whether the Defendant gave insufficient reasons, d) whether the Defendant took account of irrelevant considerations and e) whether the decision as a whole was rational. Rejecting the application, he dismissed the argument that the decision of the PMAB is decisive as to whether or not an extension of sick pay is appropriate. He concluded that the Assistant Commissioner had properly and lawfully applied the Defendant’s own policy and that her decision was rational.

Similarly scrupulous adherence to core principles was apparent in R (on the application of J) v Chief Constable of West Mercia [2022] EWHC 26 (Admin). In that case the Claimant was offered a job by the police, which was conditional on him passing police vetting. He indicated that he was in debt, against which he was paying £4 each month. His manner in discussing the situation was said to have given officers cause for concern. He was therefore refused vetting clearance and appealed to a Police Vetting Appeal Panel. The Panel dismissed the Claimant’s appeal noting that “The way you interacted with the Case Officer (who was carrying out her role in a necessary and proportionate way) failed the ‘respect and courtesy’ threshold. In addition, the lack of transparency in your approach to financial management and the fact you are paying £4 per month for a £28,000 loan “shows signs of financial irresponsibility”.

Steyn J considered whether the panel had proceeded on a factually mistaken footing, whether the decision was irrational and whether there was procedural unfairness. She dismissed the application. Although the panel had been wrong to focus on the Claimant’s interactions with the case officer, its conclusion in respect of the Claimant’s apparent financial instability was not irrational.

An interesting appeal to classical principles of judicial review arose in R (Deputy Chief Constable of Kent Police) v Chief Constable of Kent Police [2020] EWHC 2099 (Admin). In that case the interested parties were current or former officers serving the Kent Police Force. In 2014, the First Interested Party, Police Constable Bowler (as he then was), brought a claim in the Employment Tribunal (“ET”) against the Chief Constable of Kent Police. The ET found that two of the officer IPs had directly discriminated against Police Constable Bowler, and that the other police officer IPs had victimised him for doing a protected act (bringing a grievance claiming that he had been discriminated against on the grounds of his race). The Defendant investigated the conduct of the officer IPs, and decided, on various dates in 2017, that they should not face misconduct proceedings. In 2019, the Defendant began a second investigation into the officer IPs. It came to be said that this investigation could not proceed because the Defendant was functus, having already investigated in 2017. It came to be said that this investigation could not proceed because the Defendant was functus, having already investigated in 2017.

The eventual answer which Kent Police gave to this challenge was to assert that their own investigation in 2017 had been unlawful on public law grounds, such that it was a nullity and they were not debarred from investigating in 2019. In particular, they contended that because of the wrongdoing alleged against the officer IPs the case should have been referred to the Independent Office for Police Conduct (“the IOPC”).

Elisabeth Laing J agreed with the Chief Constable that his force’s first investigation had been unlawful on public law grounds. She concluded (at [151]) that, “a reasonable decision maker, properly directing himself in law, would have been bound to decide that it was appropriate to refer the conduct to the [IOPC].” In these circumstances the ‘premise’ of the investigation was wrong, the initial investigation had been unlawful, and the Chief Constable was not functus officio and could reinvestigate.

A final reaffirmation that police misconduct cases follow conventional principles of public law is the decision in R (Short) v (1) Police Misconduct Tribunal (2) Chief Constable of Bedfordshire Police [2020] EWHC 385 (Admin). Misconduct proceedings were taking place following a death in custody. The papers were sent to the misconduct panel in advance of the hearing, but an error was made and the officers under investigation were not given the opportunity to secure redactions of inadmissible material in advance. The panel duly read the papers. The officers then made the, somewhat surprising, submission that the panel should recuse themselves on grounds of apparent bias. The panel refused noting that they could put inadmissible material from their minds, absolutely in accordance with usual practice. The officers then sought an urgent judicial review of the panel’s refusal.

Saini J resoundingly rejected the application observing as follows: “I should say that it is likely to be a common occurrence in tribunals, including within the Police Misconduct Tribunal, that members will read documents or hear oral evidence which might be inadmissible, irrelevant or prejudicial. I am confident that, in approaching their task professionally, they will be able to put such material out of their minds.”

Different attitudes within the police community

As may be all too clear from the abovementioned cases there are a plethora of specialist institutions, boards, and representative organisations in existence in relation to policing. Several recent cases demonstrate that these institutions do not always sit happily with each other.

In R (Rose) v Chief Constable of Greater Manchester Police [2021] EWHC 875 (Admin); [2021] 1 W.L.R. 3690 the Claimant made a report to the police that his staff were stealing from him. An eventual decision was made that no prosecution was merited. The Claimant believed that the investigation had been influenced by the suspects’ relationship with a police officer. He asserted that this had corrupted the investigation. The Claimant complained to the IPCC (now the IOPC). The complaint was forwarded to the Chief Constable. A review of the criminal investigation took place and it was decided that the complaint was ill founded. The Claimant appealed and an appeals officer found that the complaint had been suitable for local resolution because the conduct complained of would not justify criminal or disciplinary proceedings.

The Claimant made a second complaint, in 2018, to the IPCC. On this occasion he said that the review of the original criminal investigation had been biased. The complaint was forwarded to the defendant. Once again it was determined that no further action ought to be taken. However, the Claimant appealed noting that because an allegation of corruption had been made, the complaint was the subject of mandatory referral to the IOPC. The Chief Constable suggested that this was not correct. It was said that a police force is required to assess whether or not the complaint “had substance.” The Court resoundingly rejected this interpretation holding that if an allegation of corruption is made and has been recorded then a Chief Constable has no discretion: it must be referred to the IOPC.

The decision of the Court of Appeal in R (Officer W80) v Director General of the Independent Office for Police Conduct; (1) Commissioner of Police of the Metropolis, (2) Eftehia Demetrio, (3) College of Policing (Interested parties) [2020] EWCA Civ 1301; [2021] 1 W.L.R. 418 (in respect of which an appeal to the Supreme Court is outstanding) brings many of the tensions between different police bodies into focus.

The case arose from the lethal shooting of Jermaine Baker by a police officer W80. Mr Baker had been involved in a conspiracy to attack a Crown Court with a view to freeing an associate. Armed officers approached his car. W80 asserted that as he approached Mr Baker he saw him reaching up to a shoulder bag, which he believed to contain a firearm. W80 responded by shooting Mr Baker dead.

The IOPC investigated the incident. They concluded that W80 had honestly believed that Mr Baker was imminently going to attack him. They concluded that in the circumstances he had a defence of self-defence to any criminal charge. However, they indicated that the Commissioner of Police should commence misconduct proceedings against W80. The Commissioner declined to follow this indication. She noted that the test for self-defence in police misconduct appeared, according to the College of Policing’s Code of Ethics, to be analogous with the criminal test. The IOPC disagreed and directed the Commissioner to begin misconduct proceedings.

W80 judicially reviewed the IOPC’s decision. At first instance he succeeded. A divisional court concluded that the proper reading of the Code of Ethics required that the criminal law test for self-defence be followed in police misconduct cases. The IOPC appealed to the Court of Appeal. The College of Policing (who had declined to participate at first instance) joined the appeal to assert that the Code of Ethics did not necessarily have the meaning given to it by the High Court. The National Police Chiefs’ Council intervened to argue that the IOPC’s stance would imperil future firearms operations.

The Court of Appeal concluded that the High Court and the parties had all been wrong to understand there to be a question of whether the civil or criminal test for self-defence was applicable. Instead, the Court of Appeal preferred a third test, being the wording of the relevant standard of professional behaviour (taken from schedule 2 of the Police (Conduct) Regulations 2012). Vos C (as he then was) held that (emphasis added):

The IOPC was justified in concluding that it was open to a reasonable panel at a misconduct hearing to make a finding of misconduct if W80’s honest, but mistaken, belief that his life was threatened was found to be unreasonable. That conclusion was soundly based in law on the proper and plain meaning of the 2012 Regulations and the Code. The assessment of the disciplinary panel in misconduct or gross misconduct proceedings is not to be made by reference to any imported test relating to self-defence.

Permission to appeal to the Supreme Court has now been extended to W80, supported by the Commissioner of Police and the National Police Chiefs’ Council. The appeal is resisted by the IOPC.

References:

[1] cf. R (LXD) v Chief Constable of Merseyside [2019] EWHC 1685 where there were considerable areas of factual dispute as to the steps that had been taken by the police, leading Dingemans J (as he then was) to observe that it would have been advisable for the claim to have proceeded as a Part 7 claim (albeit the judicial review claim was ultimately capable of being decided without resolution of the factual disputes).

[2] See R (Mills) v Sussex Police and another [2014] EWHC 2523 (Admin); [2015] 1 WLR 2199 at [26].

[3] For further discussion of the requirement in PACE Code B, para 3.1 for the officer to take reasonable steps to check the accuracy of the information relied on, see R (B) v Huddersfield Magistrates’ Court [2015] 1 WLR 4737; see also Williams v Chief Constable of Dyfed & Powys Police [2010] EWCA Civ 1627.

[4] See R v Inland Revenue Commissioners, ex parte Rossminster Ltd [1980] AC 952.

[5] See Carnduff v Rock [2001] 1 WLR 1786.

[6] https://www.gov.uk/government/publications/police-crime-sentencing-and-courts-bill-2021-factsheets/police-crime-sentencing-and-courts-bill-2021-protest-powers-factsheet

[7] https://dera.ioe.ac.uk/6394/1/report.pdf